Consideration
What does consideration require based on Restatement 71
Patent V. Latent Ambiguity
Patent: Ambiguous on face
Latent: Appears clear, but hidden external circumstances make the application uncertain
In a statute of frauds case who must the writing be signed by
The party in which enforcement is sought
Can Lawyers Enter Covenants Not to Compete
NO
What can Promissory Estopell be an exception for
Consideration, Gratuitous Promise, Statute of Frauds
What is an Illusory Promise.
Bonus 100: for an example
unenforceable due to indefiniteness or lack of mutuality, where only one side is bound to perform.
Promise that does not bind the promisor
EX. I will give you $5,000 at the end of the year if the business does well
What are Fully and Partially Integrated Agreements and why do their differences matter?
Fully: all terms are agreed upon (typical to see merger clause)
Partially: a few terms are missing, but miniscule, still a final contract.
The difference matters because in fully integrated contracts PER can only permit evidence to explain contract terms, while with partially integrated agreements, PER allows extrinsic evidence to explain or supplement.
What contracts are required to be in writing due to the Statute of Frauds
Marriage
Year
Land
Executor
Goods
Surety
What are the different types of misrepresentation? And is it void or voidable
Fraudulent- intentional lie
Negligent- careless statement without checking facts
Innocent- believes statement is true but it is not
Void and Voidable- certain fraudulent misrepresentations are voidable
What are the types of conditions
300 BONUS POINTS FOR DEFINITIONS
Express- Very clear; has to happen first
Precedent- Before (if-then)
Subsequent- During (condition terminates duty)(hired subject to background check)
Concurrent- Simultaneous Transaction (handing over money and handing over item)
What is the pre-existing duty rule
BONUS 200: For when pre-existing duty shifts
If you are under a legal duty to perform there is no consideration (Alaskan Packers).
With no additional consideration, a contract agreeing to pay more for the same amount of services is unenforceable
Bonus- If it is fair for the promisee to be making more due to an increase in volume or etc. then that is the additional consideration
What is the hierarchy of terms the court will look at when interpreting a contract, and what do the terms mean.
BONUS: what term has an exception regarding knowledge
Express- Clear
Course of Performance- Behavior on the specific contract, repeated behavior
Course of Dealing- Conduct on previous transactions regular enough to be common
Usage of Trade- Practice regularly observed in trade
(BONUS: UOT counts even if you do not know trade)
Maya, a nurse in Asheville, interviews with a Raleigh clinic. The clinic's director emails her: "We'd love to have you. The position is yours at $90,000 a year, starting June 1. Like all our staff, you'll be employed at will." Maya accepts by email, quits her Asheville job (where she earned $80,000), signs a one-year Raleigh lease, and pays movers $3,000. On May 25, the director calls to say the clinic has "decided to go another direction" and hired his nephew instead. Maya can't find nursing work for two months. She sues the clinic. Which is the best answer?
(d) There was a promise, detrimental reliance, and financial harm; however, the statute only provides a remedy to the limits to prevent injustice, and all she lost was 3000
Non-Disclosure 2-Prong Test, and is it void or voidable
(1) Superior Knowledge (consider internet)
(2) Duty to Disclose
Necessary to prevent some previous assertion from being a misrepresentation or from being fraudulent or material or would correct mistake, or if non-disclosure doesn't align with fair dealing. Fiduciary relationship duty
VOIDABLE
Duress, and is it void or voidable
Economic- Change of date or money and only one person can do it. Immense financial pressure to comply (voidable)
Physical- Extortion (void)
what is a gratuitous promise, an example, and how you would argue to enforce your example
A commitment made without receiving anything of legal value in return
What levels are there to terms of the deal interpretation
The writing: plain meaning if clear and unequivocable
Context: Surrounding circumstances (BONUS POINTS FOR: COP, COD, UOT)
The Courts: What the other courts have decideed about the text (fill in gaps)
Statute: Regulations that fill in or override
On March 1, Dana, owner of a Durham bakery, orally hires Eli as a marketing consultant for a fixed 18-month term starting April 1, at $4,000 per month. That evening Dana emails Eli: "So excited to have you on board for the 18-month engagement at $4k/month. Welcome to the team! – Dana." Eli never replies in writing. Three months into the job, Dana fires Eli without cause. Eli sues for breach, and Dana raises the statute of frauds as a defense. Which is the best answer?
C
It was within the Statute of Frauds under the year category when Dana emailed Eli "So excited to have you on board for the 18-month engagement at $4k/month. Welcome to the team! – Dana." It was also signed by Dana (the party in which enforcement was being sought)
Rosenfeld v. Zerneck (typed email counts as sig)
Undue Influence, and is it void or voidable
Unfair persuasion of parties, excessive pressure or vunerability
(1) vulnerable party
(2) position of trust and authority
(3) Unfair persuasion
(4) Inequitable result
VOIDABLE
What are the types of mistakes
And when do the parties bear the risk of mistake
Mutual- Both parties misunderstood
Unilateral- One party makes a mistake
(clerical in both)
Risk of Mistake
Allocated in the agreement
Conscious ignorance
Allocated by the courts
*To note: mistake needs to be of a basic assumption and have a material effect*
Is moral obligation considered consideration? Why or why not?
Generally, moral obligation is not considered consideration. However, regarding statute-barred debts, bankruptcy-discharged debts, and the material benefit rule, moral obligation promises are enforceable
+200 For What is the Material Benefit Rule?
What is the effect of a collateral agreement in the Parol Evidence Rule.
Fully Integrated and Partially Integrated Agreements
Fully: If the collateral agreement is within the scope of the facts it is barred; however a collateral agreement outside of the scope will be allowed (something that would not have been talked about under the main contract). Can also come in to explain ambiguity, or prove fraud or duress
Partially: Collateral agreements can come is as supplements or explanations as long as there are NO CONTRADICTIONS
Restatement (Second) of Contracts § 90:
promise which the promisor should reasonably expect to induce action or forbearance, does induce action or forbearance, is binding if injustice can be avoided only by enforcement.
(1) Promise (2) Detrimental Reliance (3) Financial Harm (4) Prevent Injustice
What are the Questions for Covenants Not to Compete
(1) Reasonably Connected to Jobs/Services
(2)Does the employers restriction make sense?
(3) Reasonable time and territory restrictions
(4) Would restriction prevent promisee from making a living
(5) Special or Unique Skills?
(6) Blue Pencil Rule- can we take it out, it work, and be gramatically correct
What is Risk of Forfeiture
Circumstances in which a party may lose certain rights, benefits, or property if a condition is not met (courts will read in a way that keeps one side from losing everything)