Duress
What is duress?
Behavior that overcomes the free will of a party to the contract. The action or threat in duress or menace must be unlawful and a threat to Take legal action is not unlawful unless the party making the threat knows the falsity of his claim.
Common mutual mistake on existing facts become voidable at the election of either party.
What is a 3rd party beneficiary?
Looks at the relationship between people and if it was primarily commercial or altruistic benefit of the 3rd party.
What are the 5 things in modern impossibility?
1. Did D perform his obligations?
2. Was performance rendered impossible by the destruction of _?
3. Did both parties presuppose the continued existence of the _ as a prerequisite for performance?
4. Did the plaintiff perform his obligations?
5. Is he entitled to damaged or rescission?
What are ways to alter contractual relationships after formation of a contract?
Rescission, executory contracts, bilateral accords, and substituted contracts.
What is undue influence?
Unfair persuasion rather than ceorcion. Persuasion that tends to be coercive in nature which overcomes the will without convincing the judgement. The hallmark of such persuasion is high pressure, a pressure which works on mental moral or emotional weakness to such an extent that is apporaches the boundaries of coercion.
When does a mistake of one party makes a contract voidable?
Where a mistake of one party at the time of contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performance that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake and
-the effect of the mistake is such that enforcement of the contract would be unconsciounable or
-the other party had reason to know of the mistake of his fault cause the mistake.
What is a creditor beneficiary?
For P to be a creditors beneficiary the performance by the promissory must be to satisfy an actual or supposed or asserted duty of the promised to the P.
How does the Restatement and UCC define impossibility?
-Must litterally be impossible
-excused party mustn’t bear the risk of the occurrence of the supervening event without fault of the excused party.
-event occured without fault of excused party
-contract must not have assigned the risk of the event to the excused party.
When is there a preexisting legal duty?
-modification is unenforceable when an obliged recieved absolutely no legal consideration for promise to render exactly the same performance.
-UCC no preexisitng legal duty but it must be modified in good faith.
-common law requires new consideration to modify.
What is over-persuasion?
Taking unfair advantage of another’s weakness of mind or taking a grossly oppressive and unfair advantage of another necessities or distres. The use of excessive pressure to persuade one vulnerable to such pressure, pressure applied by a dominant subject to a servant object.
What is a mistake in integration?
When parties written memo of their agreement fails to reflect accurately their actual contract. Must prove the agreement was difference than facts to get it corrected by a new writing and proved beyond a reasonable doubt.
What is a Donee beneficiary?
For P to be a donee beneficiary if must appear that the promises intent in obtaining the promissory promise to perform was the making a gift to the P or to confer a right to performance upon the P which performance was not due or claimed to be due by the promise to the P.
What is modern frustration of purpose?
Supervening event after formation interferes with parties expectation under that contract. Is still feasible But the purpose is defeated.
What is a substituted contract?
Obliged accepts the substitution contract in satisfaction of the obligatory duty under the original contract.
What is undue susceptibility?
Total weakness of mind which leaves a person entirely without understanding. A lesser weakness which destroys the capacity of a person to make a contract even though he is not totally incapacitated. Or the first elemnot in out equation, a still lesser weakness which provides sufficient grounds to rescind a contract for Undue influence.
According to the restatement when is an action equivalent to an assertion?
Action intended or know to be likely to prevent another from learning a fact is equivalent to an assertion that the fact does not exist.
What is the difference between the intended and incidental beneficiaries?
-the performance of the promise will satisfy and obligation of the promise to pay money to the beneficiary or
-the circumstances indicate that the promise intends to give the beneficiary the benefit of the promised performance
-an indedental beneficiary is a beneficiary who is not an indended beneficiary.
What are the conditions of frustration?
1. Frustration must have been a principal purpose of that party making contract. -both partis must understand without it it makes no sense to have it.
2. Must be substantial- becomes less profitable he will sustain a loss- mist not be part of the risk he assumed under contract
3. No occurrence of the frustrating event must have been a basic assumption on which the contract was made.
What is an accord?
Obliged promises to except a stated performance in satisfaction of the obligatory existing duty.
-suspends the duty until the obligatory fulfills the term of satisfaction.
What are some stereotypes of weakness?
-tendency of courts biased stereotypes in women, the poor, minorities, and uneducated
-negative self-images in the target status group
-if these exist who is to blame, the judge who relies upon them or the attorney who exploits them?
What all is included in mistake in a basic assumption?
Party asserting must establish that
-assent was based upon a mistake of a fact that is in existence at the time the contract was made.
-the fact is material/basic to the transaction and
-some other factor exists to rebut the normal presumption that a person bears the risk of his own mistake- the mistake was mutual, the other know that the asserting party made a mistake, The other party fault caused the mistake.
The other party may:
-deny any elements
-you didnt make a mistake
-the mistake was not a fact that existed at the time of the contract
-the mistake fact was not material or central to the contract
- i did not know you made the mistake or
-i did not make the same mistake- avoidance admit prima facie case of mistake by asserting an additional fact to shift the burden back, you assume the risk of mistake.
Again what was the situation the mocsary mentioned his mother on the last day of classes?
Talking about the st. Joseph case, and how his mother was in a nursing home like that.
What is the historical development of the impossibility doctrine?
(should be easy)
Promise must actually be able to be performed if the law if going to enforce them. Impossible to perform vs these rendered impossible to perform by subsequent events.
What is the difference between a NOM clause and a NOW clause?
NOW-purports to restrict the power of the parties to relinquish the right to insist on strict compliance with NOM.