Term
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Definition
Offer by offeror with definite terms expressing intent to be bound that is not yet revoked or rejected creating the power of acceptance in a particular offeree;
Acceptaance by offereee (prior to revocation or rejection) through a return promise or performece of the act requested;
Consideration--benefit to pronimsor or detriment to promisee;
Legal Capacity of the parties, to infancy, insanity or intoxication ("3 I's");
Legal subject matter and not against public Policy.
SOF (MOULS) - Marriage; Over 1 yr; UCC over $500; Land sale or lease; Suretyship promise |
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Term
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Definition
Void or voidable circumstances (MUFFED - Mistakes, Unconsionability, Fraud, Fiduciary's undue influence; Estoppel, Duress);
Interpretation of K (II PACC - Intent of parties controls, Incorporation by reference; PER; Ambiguity, Controlling statute: Conflict of Laws);
Performance and Breach;
Remedies (MRS DAISI - Money Damages, Receission/reformation/replevin/restitution; Specific performance; Declaratory Jdmt; Accounting; Injunction; SOL; In quasi K) |
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Term
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Definition
Third pty ben, creditor or donee;
Assignment by promisee to assignee
Delegation of duties by obligor to delegate |
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Term
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Definition
| UCC (sale of moveable goods) imposes general standard of reasonableness and good faith on kt ptys. For merchants this is raised to honesty in fact and fair dealing in the trade.--mixed goods and services require "predominant purpose" analysis - always begin answer by stating which law applies and why and if CL state that the CT may apply UCC by analogy. |
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Term
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Definition
Express-bargained for exchange by written or oral language;
Implied in fact or by law to avoid unjust enrichment |
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Term
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Definition
| discuss unitlateral, whether the offer is asking for acceptatance (bilateral) or actual performance (unilateral); if offer is too vague and not create the power of acceptance it is not a valid offer and there can be no KT |
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Term
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Definition
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Term
| partial performance as acceptance |
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Definition
| under WA CL substantial part performance prohibits revocation of offer |
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Term
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Definition
| shipment may create bilateral K; Offeror should be explicit that promise to ship will not create contract |
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Term
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Definition
| CL treats as rejection of offer; UCC will knock out issue and fill in gap; especially where there was some performance. |
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Term
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Definition
| for non instantanious communication. The Offer is deemed accepted on DISPATCH as long as offeree uses same or faster mode of communication than used in offer. UCC allows acceptance on dispatch even if slower if reasonable. |
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Term
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Definition
| is no consideration for a new obligation |
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Term
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Definition
| is not consideration -- contractor who says he will finish contract if paid more. (unless some genuine dispute) |
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Term
| surrender of invalid claim as consideration |
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Definition
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Term
| UCC modifications (consideration) |
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Definition
| do not require if sought in good faith (honesty) example: proudcer's costs have gone up and he requests a price increase, binding if customer agrees. CL pre-existing duty rule would preclude |
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Term
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Definition
| 3 I's - Infancy, Insane, Intoxicated, if child is over 14 and misrepresents age, it may be possible to bring a fraud claim, or seek quasi kt. Intoxication - not aware of legal consequences of act and other party took advantage of the intoxication. |
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Term
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Definition
| unfair or deceptive acts, treble damages to $25k; atty fees; MUST IMPACT MANY MEMBERS OF PUBLIC |
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Term
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Definition
| MOULS - always discuss if question unclear whether there was writing--IF ORAL KT UNCLEAR ABOUT YEAR, BUT REASONABLY COULD BE EXPECTED TO BE COMPLETED, THEN, EVEN IF IT ACTUALLY TOOK MORE THAN ONE YEAR, IT IS ENFORCEABLE - 1 YR PLS 1 DAY=WRITING; WATCH FOR ORAL AGREEMENT TO START IN ** DAYS AND TO BE COMPLETED ONE YEAR FROM START DATE = SOF = WRITING - |
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Term
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Definition
| PAWS EXCEPTIONS: PART PERFORMANCE; ADMISSION BY PARTY TO BE CHARGED; WRITTEN MERCHANT TO MERCHANT CONFIRMATION; SPECIFICALLY MANUFACTURED GOODS |
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Term
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Definition
| HAS TO BE SIGNED BY OFFEROR UNDER UCC- CREATES IRREVOCABLE OFFER WITHOUT CONSIDERATION. |
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Term
| LAND POSSESSOR EXCEPTION TO SOF |
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Definition
| ORAL ENFORCABLE IF LAND POSSESSOR MAKES DOWN PAYMENT, TAKES POSSESSION AND PERFORMS SUBSTANTIAL IMPROVEMENTS; PAYING TAXES IS STRONG EVIDENCE IN FAVOR |
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Term
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Definition
| I PROMISE TO PAY IF MY CHILD DOES NOT = WRITING NEEDED (UNLESS FOR NECESSITIES) |
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Term
| PRIVATE SOF "NO ORAL MODIFICATIONS" |
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Definition
| UNENFORCEABLE, BUT UCC ALLOWS; BUT WILL ACCEPT EXTRINSIC EVIDENCE AND COURSE OF DEALING. |
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Term
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Definition
| LOOK FOR PROMISSORY ESTOPPEL OR PART PERFORMANCE |
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Term
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Definition
| SUBSTANTIVE AND PROCEDURAL - IN WA EITHER, MOST OTHER REQUIRE BOTH. |
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Term
| CONSUMER GOODS LIMITATION ON TORT DAMS |
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Definition
| PRIMA FACIE UNCONSIONABLE |
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Term
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Definition
| FIRD: False statment; Intent to deceive P; Reliance on False Statement; Damage |
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Term
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Definition
| material fact concealed or not disclosed; active concealment may override mistake. |
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Term
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Definition
| HEAVILY TESTED: DUCAS EXCEPTIONS: Defect in formation, UCC Perfomance, Dealings and CPU (Course of dealing past course of dealings; useage of trade); Condition Precedent; Ambiguity Clarification, Susequent Modification - Berg context rule. |
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Term
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Definition
| Is final agreement Integrated?; Covered in contract--the contested issue; IS there a DUCAS EXEPTION? |
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Term
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Definition
| normally, reasonable person test (objective), but if performance approval requires personal approval (subjective) Time of essence enforceable if damages are created by late performance |
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Term
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Definition
| where technically not perfect performance, breach was minor, no bad faith, substitution of material permitted if difference is not merely cosmetic and does not reduce value of property- even if substantial breach, some recovery in quasi kt. If minor breach, the dams are the difference in value of the items that are not in compliance. |
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Term
| Excusable non performance |
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Definition
| CIISSU (B-1) Cooperation withheld or hinderance; Illegality after formation; Incapacity in personal service k; Source of supply destroyed; Subject matter destroyed - through no fault of party; UCC failure of presupposed condition; war breaks out, mere increased costs not enough. Be sure neither party assumed the particular risk or caused the impossibility, that may override the excuse; quasi kt still available |
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Term
| Non Performance, but agreement |
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Definition
| ANCWR - ACCORD AND SATISFACTION (NEW SUBSTITUTE AGREEMENT); NOVATION (NEW PARTY SUBTITUTED WITH RELEASE OF PARTY); CANCELLATION (LOOK FOR PROMISORY ESTOPPEL); WAIVER (CAN BE RETRACTED) |
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Term
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Definition
| PARTY POSITIVELY STATES WILL NOT RENDER PERFORMANCE, OBJECTIVE, UNEQIVICAL AND UNAMBIGUOUS - OTHER PARTY CAN SUSPEND PERFORMANCE AND SUE FOR DAMAGES (QUES USUALLY INVOLVES EQUIVOCAL LANGUAGE) |
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Term
| PERFORMANCE PRESENTLY DUE |
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Definition
| IF PERFORMANCE NOT COMMENCED ON TIME = BREACH |
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Term
| SHIPMENT OF NON-CONFORMING GOODS |
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Definition
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Term
| RETRACTION OF ANTICIPITORY REPUDIATION |
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Definition
| OK IF DONE BEFORE OTHER PARTY CHANGES POSITION |
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Term
| RETRACTION OF ANTICIPITORY REPUDIATION |
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Definition
| OK IF DONE BEFORE OTHER PARTY CHANGES POSITION |
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Term
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Definition
| -SEVERAL SHIPMENTS- CT AND UCC MAY ALLOCATE THE CONTRACT PRICE BETWEEN SHIPMENTS (UCC ASSUMES ONE SHIPMENT BUT STILL MAY ALLOCATE) - NON BREACHING MAY STILL SUE FOR DAMS AS TO OTHER NON DELIVERED SHIPMENTS. |
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Term
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Definition
| -SEVERAL SHIPMENTS- CT AND UCC MAY ALLOCATE THE CONTRACT PRICE BETWEEN SHIPMENTS (UCC ASSUMES ONE SHIPMENT BUT STILL MAY ALLOCATE) - NON BREACHING MAY STILL SUE FOR DAMS AS TO OTHER NON DELIVERED SHIPMENTS. |
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Term
| NUMBER OF ISSUES PER QUESTION |
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Definition
| USUALLY 10-15+ be sure to find |
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Term
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Definition
ALWAYS DISCUSS: MRS DAISI: MONEY DAMAGES; RECISSION/REFORMATION/RESTITUTION; SPECIFIC PERFORMANCE;
DECLARATORY JUDGMENT;
ACCOUNTING;
INJUNCTION;
SOL BAR; (LOOK FOR HIDDEN DEFECT DELAYING DISCOVERY AND TOLLING SOL)
IN QUASI KT (LACHES, NOT SOL, APPLY) |
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Term
| THIRD PARTY BENEFICIARIES-GEN RULE |
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Definition
| GEN RULE THAT W/O PRIVITY; THIRD PARTY HAS NO RIGHTS TO ENFORCE |
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Term
| WHEN 3RD PARTY CAN RECOVER |
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Definition
IF KT INTENDED TO BESTOW RTS ON 3RD PARTY;
IT IS SPECIFICALLY STATED THAT 3RD PARTY HAS RIGHTS;
CREDITOR WITH ASSIGNED RIGHTS;
DONEE BENEFICIARY-PERSONAL TO THE DONEE OF THE LEGAL RIGHTS; HE CANNOT ASSIGN |
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Term
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Definition
| has no legal rights to enforce |
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Term
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Definition
Assignability is the general rule, promisor must be notified of the assignment before being legally bound topay the assignee and extinguishes right of orig promisee to enforce kt rts
EFFECT OF NOT NOTICE IS TO ALLOW PROMISO TO CONTINUE TO PERFORM TO ORIG POMISEE UNTIL RECEIPT OF NOTICE WHEN RIGHTS OF ASSIGNEE VEST |
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Term
| oral assignments enforceable |
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Definition
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Term
| assignments - revoCability |
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Definition
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Term
| DEFENSES OF PROMISOR - ALIMONY CLAIM ASSIGNMENT |
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Definition
| ARE GOOD AGAINST ASIGNEE; WA DOES NOT PERMIT THE ASSIGNMENT OF AN ALIMONY CLAIM |
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Term
| PROMISOR PAYS ASSIGNEE WITHOUT NOTICE FROM PROMISEE |
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Definition
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Term
| PROHIBITION AGAINST ASSIGNMENT |
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Definition
| UCC ENFORCES, INCLUDING DELEGATION; BUT CL MORE LIENENT |
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Term
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Definition
| EFFECTIVE ASSIGNMENT EXCEPT FOR REAL AND PERSONAL DEFENSES |
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Term
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Definition
CL FIRST IN TIME; FIRST IN RIGHT;
UCC: FIRST TO PERFECT, USUALLY WOULD BE TO FILE FS; BUT COULD BE POSSESSION |
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Term
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Definition
CAN BE PROHIBITED BY KT; (ACCEPTANCE OF DELEGATION MAY BE WAIVER);
NON DELEGATABLE IF PERSONAL SERVICE OR SKILL OF OBLIGOR; (OBLIGEE CAN CONSENT);
INCREASED BURDEN BY ASSING KT PERFORMANCE TO LESS EXPERIENCED OR QUALIFIED OBLIGOR - ANY DELEGATION CAN BE ANTICIPATORY REPUDIATION AND CREATE RIGHT OF OBLIGEE TO ASSURANCES |
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Term
| OBLIGEE RTS AGAINST SUBSTITUTE |
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Definition
| OBLIGEE CAN PURSUE BOTH FOR BREACH--CONSENT IS NOT RELEASE OF ORIG OBLIGO |
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Term
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Definition
| 4 YEAR OLD INCAPEABLE; UNDER 6 CANNOT BE CONTRIB NEGL |
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Term
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Definition
| STANDARD IS HOW A REASONABLY (BLIND)DEFICIENT PERSON WOULD ACT IN CIRCUMSTANCES |
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Term
| PRE DEATH SUFFERING AND ANGUISH - OTHER CLAIMS |
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Definition
| RECOVERABLE, BUT INTANGIBLE PERSONAL CLAIMS SUNCH AS DEFAMATION AND ABUSE OF PROCESS EXPIRE AT DEATH |
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Term
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Definition
| WA IS "PURE" COMP FAULT STATE, MEANING THAT P RECOVERY WILL BE REDUCED BY THE % OF FAULT. |
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Term
| FAILURE TO WEAR SEAT BELT |
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Definition
| IN WA INADMISSIBLE TO SHOW CONTRIB NEGL |
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Term
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Definition
1. P DRUNK AND MORE THAN 50% AT FAULT = NO RECOVERY.
2. P WAS COMMITTING A FELONY AND IF FELONY IS A PROXIMATE CAUSE OF INJURY P IS BARRED FROM SEEKING RECOVERY FROM OTHERS. |
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Term
| JOINT AND SEVERAL LIABILITY |
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Definition
| can only apply IF INJURY IS INDIVISIBLE |
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Term
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Definition
| IF THERE IS JT AND SEV; IF A D PAYS MORE THAN SHARE MAY CLAIM AGAINST OTHERS FOR CONTRIBUTION |
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Term
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Definition
| NO RIGHT TO SUE FOR DISCRETIONARY ACTS |
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Term
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Definition
| JP (BUT NOT SP) LIABLE FOR TORTS OF SPOUSE |
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Term
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Definition
1. AGENCY (FAMILY PURPOSE DOCTRINE);
2. DANGEROUS INSTRAMENTALITY (LEAVING A GUN TO PLAY WITH)
3. NEGL SUPERVISION (CHILD CANNOT SUE)
4. INTENTIONAL TORTS UP TO $5,000 |
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Term
| 2 YEAR SOL FOR TORTS (3 YEAR USUALLY) |
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Definition
| NUISANCE, ASSAULT, BATTERY, FALSE IMPRISONMENT, DEFFAMATION, LIABLE AND SLANDER. |
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Term
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Definition
| START WITH VOLUNTARY ACT BY D, INTENT TO HARM NOT REQUIRED; ONLY INTENT TO COMMIT THE RECKLESS ACT; INTENT CAN BE EITHRER A PURPOSE TO ACHIEVE THE CONSEQUENCES OR A KNOWLEDGE OF A "SUBSTANTIAL CERTAINTY" THAT SUCH A RESULT WOULD OCCUR. |
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Term
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Definition
| BAFTT TORTS: BATTERY, ASSAULT, FALSE IMPRISINMENT, TRESPASS TO LAND, TRESPASS TO CHATTLES |
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Term
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Definition
| (ON EVERY WA BAR EXAM)-UNPERMITTED, OFFENSIVE (REASONABLE) TOUCHING; ASSAULT IS THE APPREHENSION OF A BATTERY OR IMINENT HARM |
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Term
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Definition
| UNPRIVLEDGED CONFINEMENT OR RESTRAINT AGAINST FREE WILL, D MUST HAVE KNOWLEDGE HE IS CONFINING D AND P MUST HAVE KNOWLEDGE OF CONFINEMENT WITH DEFININTE PHYSICAL BOUNDARIES EITHER BY FORCE OR THREAT OF FORCE |
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Term
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Definition
| PVT CITIZEN MAY IF CRIME COMMITTED IN HIS PRESENCE, BUT NO REAONABLE MISTAKE ALLOWED AS DEFENSE; POLICE ARE ALLOWED A REASONABLE MISTAKE, IF PROBABLE CAUSE EXISTED. |
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Term
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Definition
| RT TO TEMPORARILY DETAIN A SUSPECT BASED ON REASONABLE GROUNDS FOR ONLY A REASONABLE PERIOD AND THE METHOD OF DETENTION MUST BE REASONABLE. |
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Term
| NON INTENTIONAL IMPRISONMENT |
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Definition
| NOT FALSE IMPRISONMENT, BUT MAY BE NEGLIGENT. (CONFINED TO DEFECTIVE ELEVATOR) |
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Term
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Definition
| SOME INVASION OF PROPERTY RIGHTS; IF ITENTIONAL; AT LEAST NOMINAL DAMS, IF UNITENTIONAL, ACTUAL DAMS. - REMAINING ON LAND (ENTRY OK, BUT ASKED TO LEAVE)= TRESPASS--MISTAKE NO DEFENSE |
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Term
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Definition
| INTERMEDDLING WITH PERSONAL PROPERTY -- ACTUAL DAMAGE AND LIMITED INTENT REQUIRED |
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Term
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Definition
| THEFT, EMBEZZLEMENT, DAMAGE OR DISTRUCTION, D MUST INTEND TO PERMANENTLY DEPRIVE TRUE OWNER OF PROPERTY; DAMS ARE THE FULL FAIR MARKET VALUE--INNOCENT CONVERTER MAY RETURN IN SAME CONDITION AND AVOID LIABLITY. |
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Term
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Definition
| CONDUCT THAT "SHOCKS THE CONCIENCE AND EXCEEDS ALL POSSIBLE BOUNDS OF COMMON DECENCY AND SOME DAMS MUST BE PROVEN AS A PART OF PRIMA FACIA CASE; MORE THAN MERE HURT FEELINGS (EXCEPT GROSS INSULTS BY COMMON CARRIERS); OBJECTIVE SYMPTOMS THAT USUALLY REQUIRE MEDICAL TREATMENT. TRANSFERRED INTENT DOES NOT APPLY BECAUSE THIS IS NOT A BAFTT TORT (ALTHOUGH IT COULD INCLUDE ONE)- ORDINARY AND REASONABLE SENSITIVITY IS THE USUAL STANDARD UNLESS D KNEW THAT P HAD A PARTICULAR SENSITIVITY - NEGLIGENCE CLAIM AVAILABLE, BUT REQUIRES MORE DAMS |
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Term
| COMPARATIVE FAULT IN INTENTIONAL TORTS |
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Definition
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Term
| MUTUALLY VOLUNTARY ALTERCATIONS (FIGHT) |
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Definition
| RAISES THE ISSUE OF CONSENT AS EXPRESS OR IMPLIED DEFENSE - ALSO WATCH FOR PRIVILEDGE OF SELF DEFENSE |
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Term
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Definition
| FAMILY MEMBERS CAN CLAIM EMOTIONAL HARM FROM WITNESSING AN INTENTIONAL TORT |
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Term
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Definition
| A GENERAL "CATCH ALL" EXCUSING D FOR AN INTENTIONAL TORT ADMINISTERED REASONABLY |
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Term
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Definition
| A LEGALE DUTY, BREACH OF DUTY; CAUSES HARM; FORSEEABLE RISK; STANDARD OF CARE; PROXIMATE AND FACTUAL CAUSE OF DAMS; SPECIAL/GENERAL (NO PUN); COMPARATIVE NEGLIGENCE |
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Term
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Definition
| MUST COMMIT GROSS NEGLIGENCE FOR LIABILITY |
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Term
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Definition
| PROF. STANDARD OF CARE, GOOD SAMARATAIN EXCUSE, DEFENSES OF ASSUMPTION OF RISK AND CONSENT, AND INCLUDING EXCESS TREATEMENT. |
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Term
| Future Services for shares |
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Definition
| Allowed under new law, but allows Bd to escrow shares until future contingent consideration is satisfied |
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Term
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Definition
| Yes, unless reasonable restrictions in by-laws or shareholder agreement |
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Term
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Definition
| Allowed by default rule unless Articles specifically exclude WA retains more democratic rule requiring preemptive rights |
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Term
| Shareholder rights (favorite bar topic) |
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Definition
| Meetings, notice not less than 10 nor more than 60; Court ordered if annual not held, nor proper demand for special ignored; Waiver of notice OK, implied if attend and does not object at beginning of meeting. Shareholder owning 1% can submit resolutions with prior notice to corp. Proxies OK; Quorum (default-simple majority); voting cumulative; Shareholder meetings for fundamental changes require 20 days notice; Action without a meeting OK if all sign |
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Term
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Definition
| Regular meetings require no notice; Special meetings 2 days; electronic transmission of notice allowed |
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Term
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Definition
| provided s/h w/in 4 months of close of fiscal year, accompanied by a public accountants report or statement by president that they were prepared according to GAAP |
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Term
| Inspection of books rights |
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Definition
| written demand - 5 days any shareholder no minimum amount as in old law. Ct can enforce unless Corp shows that shareholder has improper purpose such as competing. |
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Term
| Direct action and Derivitave Suits |
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Definition
| Direct action in sharholders name and alleging negative impact on their personal finances (refusing to pay dividend to one class of shareholders); Deriviative" BOD refuses to enforce a corporate right that is damaging the corp, Corp is P - example BOD officers grossly overpaying themselves, fraud or taking corp opportunities. STANDING; S/H MUST HAVE BEEN SHAREHOLDER AT TIME OF MISCOUNDUCT AND MUST FIRST DEMAND THAT CORP PURSUE ACTION AND WAIT 90 DAYS, COMPL MUST ALLEGE THAT DEMAND WAS MADE AND REFUSED OR IGNORED. LEGAL EXPENSES, IF SUBSTANTIAL BENEFIT TO CORP, IT MUST PAY THE SHAREHOLDER'S LEGAL EXPENSES; ON THE OTHER HAND P MAY HAVE TO PAY CORP EXPENSES IF NO JUSTIFICATION... DEFENSE BUSINESS JUDGMENT RULE |
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Term
| S/H approval of FUNDAMENTAL CHANGES |
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Definition
| 2/3 MAJORITY OF QUORUM. (INCLUDES SALE OF SUBSTANTIAL ALL CORP ASSETS AND PROVISIONS THAT AFFECT S/H RIGHTS)- MIN 20 DAY NOTICE. |
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Term
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Definition
| APPRAISAL, PROCUDURE, MUST GIVE NOTICE OF DISSENT PRIOR TO MEETING IN WRITING AND INTENT TO EXERCISE APPRAISAL RIGHTS; MUST NOT VOTE BUT RATHER DEPSOTIT SHARE CERT DEMANDING CORP PURCHASE, PAYMENT MUST BE ACCOPANYED BY METHOD OF VALUE CALCULATION AND LAST SET OF FINANCIAL REPORTS. - S/H HAS 30 DAYS TO CONTEST, CORP CAN PETITION CT W/IN 60 DAYS |
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Term
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Definition
| SUBSCRIBED FOR SHARES; WATERED STOCK; IMPROPER DIVIDEND (MAKING CORP INSOLVENT) SOL 2 YRS; PIERCING VEIL - FAL: FRAUD; ALTER EGO; SOAN SUBORDINATION; PARTNERSHIP BY ESTOPPEL (MISLEADING 3RD PARY) CTS MORE WILLING TO PIERCE FOR 3RD PARTY TORT VICTIM. |
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Term
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Definition
| FOWD: FRAUD; OPRESSION; WASTE OF ASSTETS; DEADLOCK- SOL FOR CLAIMS AFTER = 3 YRS |
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