Shared Flashcard Set


NY Bar Exam - Contracts Distinctions
distinctions for contracts and sales

Additional Law Flashcards




Restrictive covenants on employment

enforced if reasonable in time and area, necessary to protect employer, not harmful to public and not unreasonably burdensome.

Unsolicited and voulntary sent merchandise

gift, merchant cannot sell item if offer includes unsolicited sending of goods an drecipient may dispose of goods in any way.

Firm offers

1) option K - gen consideration for option

- EXCEPT merchants written/signed offer

- NY written offer signed by offerer says irrevocable it is for specific time period WITHOUT consideration.

2) promissory estoppial - detrimenal reliance

3) partial performance 

4) UCC firm offer rulewritten between merchants

Unilateral Ks

promise to do somethign by one party in return for act other. 

 - common lawa irrevocable once performance starts.

- NY offeror can revoke offer for K until offeree completes performance.

- NY promise to pay reward for return of property is enforceable if in writing or promisor caused offer ot be published.


1) bragained for exchange

- legal detriment and bargaine dfor exhange

- NY if promse or warranty written into deed or conveyance of real estate and recorded the promise or warranty is not denied for lack of considreration if none intended.

Preexisting Duty rule

common law: does not qualify as consideration unless promisor gives somethign in addition to what is owed. 

- exception for 3rd party promise contingent upon performance of anothers partys contractual obligation if sufficient consideraiton.


Past consideration

trend twoards enforcing pst promises but common law no consdieration for past action.

- NY written promise not invalid just because consideration is past as long as consideration is 1) in writing 2) proved to have been performed and 3) would be valid at that time.


CL requires new consideration andenforceable if 1) recission and new K formed 2) unforseen difficulties arise and one party agrees to compensate for them or 3) new obligation son both sides.

- NY written agreement to modify K or discharge debt not invalid for lack of consdieration if in writing and signed y party to be enforced against. 

- UCC no consideration necessary just good faith

Enforceability of Ks

1) void - entire transaction null as if no K existed

2) voidable - operates as valid K until/unless one party takes steps to avoid it

3) Unenforceable Ks - valid K cannot be enforced if one party refuses.


1) unilateral: one party mistaken to essential elemnt of K 

Mistaken party can Void if i) didnt bear risk of mistake and ii) mistake would make unsconsionable OR ii) non-mistaken party fialed to disclose/caused mistake.

2) Mutual: both parties mistake to essential element htat is substnatial difference between contemplated deal and actual deal with no intent to bear risk. 

- voidable by pary adversely affected but no void if reformation possible. 


both parties believe they are agreeing to smae materail terms but agree to different terms.

1) neither party knows = no K if material

2) one party knows = K formed based on meaning of material term as understood by unknowing party

3) Both parties kow = no K unless intended same meaning

4) Waiver = one party can choose to enforce K accoriding to other partys understanding.


1) fraud: knowingly made without confidence in assertion when person making assertion knows no basis exists for assertion.

2) nondisclosure : of known fact tantamountto assertion that fact does not exist


fraud in factum = void

fraud in inducemnt voidable by party affected

if negligent misrepsresenation voidable unless party cures misrepresentaiton. 


Infancy: voidable by infant.

- NY infant cannot disaffirm on infancy K involving i) marital home, ii) contract for artistic or athletic services iii) student loan K if 16 and iv) life insurance K if 14.5

Mental illeness: void if adjudicated, voidable if not

Guardianship: K is void 

Intoxication: K voidable by intoxicated if other party knew.


Defenses to enforcement

1) illegality: void

- NY certain Ks unenforceable when interst > 16% but borrower may pay reasonable expense without making K usurious

2) unconscionability

3) Public policy: 

- NY exculpatory clausts limitaiton liaiblity enforceable for negligence but not willful, gross negligence nor construction, ateration, repair or recreational facilities wher owner recieves fee for use.

- Pay if paid provisions in constrution not valid.

Third Party Beneficiary Ks

Intented benificiary: one to whom promisee wishes to make gift or satisf obligation to pay = has right to bring action on K

Incidental benefiiary: one who benefits from K even thoguh no contrctual intent to benefit = no right to enforce K


Vesting of beneficiary rights: intended beneficiary vest when beneficiary 1) detrimentally relies on rights 2) manifest assent to K or 3) files lawsuit to enforce.

Assignment of Rights

1) not allowed when materialyl increse duty or risk 

2) need present intent to transfer rihgt

3) if assignment for consdieraiton = irrevocable

4) assignee takes all rights to fassignor as K stands at time of assignmetn but subject to defense 

- NY assignemnt irrevocaby transferring righst snot denied for lack of consdieraiton if in writing and signed by assignor.

Delegation of duties

gnerally allowed except where other party to K has substantial interest in specific individalls perforams.

- when obligations are delgated delegator is not relseased from liability (unless novation)

Statute of Frauds

1. marriage

2. suretyship

3. one year

4. UCC 500

5. real property

- NY debt discharged in bankruptcy promise to pay, assignment of insurance poicy, contract ot compesnate real eate services , commission K for ereal esate

Breach of K

1) CL once duty to perform eists nonperformance is breach

- Material breach allow snonbreaching party to withhold any promised performance and peursue remeides 

- Minor breach non breaching party entiteld to pursue remeides but must perform udne rK

- NY unless K specificalyl says time is of the essense no  material breach for failure to perform by started daye. 

2) UCC seller must tricly perform all obligation or be in breach. mterial only applies to installement Ks

Duty to Mitigate

Party to K must avoid or mitigate damages to extent possible by takin gsteps to not involve undue risk expense or inconvenience.

NY no duty to mitigate in residential lease breaches landlord can 1) do nothign and colelct rent 2)accept surrender or ) notify tenant that enter and relet for tenants benefit.

Supporting users have an ad free experience!