Formation
What are the elements of a K
Promise, Consideration, Assent, Specifity, Capacity
Substantive & Procedural
Types of conditions
Express & Implied/Constructive
Types of reliance damages
-opportunity cost & out of pocket costs
What is anticipatory repudiation?
Unequivocal rejection of the K before performance is due, can be expressed or implied
Elements of Promissory Estoppel and type of damage
(1) clear & definite promise
(2) expectation promisee will rely
(3) actual & reasonable reliance
(4) detriment of definite & substantial nature
A number of jurisdictions limit PE damages to reliance
How definite must SOF be
Reasonably definite and certain within itself as to the parties, consideration, and subject matter that specific performance can be enforced without having a resort to parol testimony
What is a condition precedent
Dependent condition in which performance of condition must occur before a duty arises.
What are expectation damages
sum of money intended to place the non-breaching document in the position they would have been had the promise been performed
A contract provision that includes the impractability clause
What is an illusory promise
A promise that appears to be contractual in nature but has no real obligations, illusory promises are not valid consideration
When is a threat improper
176. When a threat is improper
1) A threat is improper if
a. What is threatened is a crime or a tort, or the threat itself would be a crime or tort if it resulted in obtaining property
b. What is threatened is a criminal prosecution
c. What is threatened is the use of civil process and the threat is made in bad faith
d. The threat is a breach of duty of good faith and fair dealing under contract w recipient
2) A threat is improper if the resulting exchange is not on fair terms
a. The threatened act would harm the recipient and would not significantly benefit the party making the threat
b. The effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or
c. What is threatened is otherwise a use of power for illegitimate ends
Williston v. Corbin
Williston is the four corners rule, while Corbin considers extrinstic evidence in determining whether the K is fully integrated
What are the equitable & legal remedies?
injunctions, declaratory statements, recission
What is present frustration?
○ The non-performance of the duty of the person receiving the performance is excused when:
1) A supervening event has occurred that frustrates the purpose of the contract recognized as the contracts purpose by both parties
2) The nonoccurrence of the event was a basic assumption on which the contract was made
3) The party seeking to be excused did not assume the risk of the event
i. Causing it, agreeing to perform in spite of risk, failing to foresee risk when it should have, court think party should bear risk
Explain what an accord & satisfaction is
An accord is an agreement to accept a future substituted performance, and satisfaction is when the futute performance is fully discharged, only then is the original duty discharged
3 categories of mutual mistake
What is the exception from duty to read?
Mistake in transmission
Elements of divisibility
b. Elements
1) Performance of each party is divided into two or more parts
2) The number of parts due from each party is the same, AND
3) Performance of each part by one party is agreed exchange for a corresponding part by the other party
New business rule
Lost profits must be proven with reasonable certainty and foreseeability; the rule limiting speculative new-business profits.
Moral obligation (minority) is valid consideration when...
when the party receives a material benefit
Real Estate Exception SOF
- To relieve the statute of frauds from covering real estate contracts you need all 3:
1) Payment of consideration (money or services)
2) Possession by the vendee
3) Making by the vendee of valuable and permanent improvements upon land with consent of vendor, or without improvements, presence of such facts would make transaction a fraud upon purchaser if it were not enforced
What are all the canons of construction
- handwritten>type>print
- construe > drafter
-construe < public interest
-construe < existence of K
-effectuate intent of the parties
-expression of one is in the exclusion of the other
-construe narrowly to the type of class or kind
-view K as a whole
-specific>general
-known from it's associates
Factors for equitable relief from forfeiture
Courts look at amount and length of default, degree of fault, amount of forfeiture, reason for delay in payment, speed in which equity is sought, if condition if precedent or subsequent, amount and length of forfeiture, value of forfeiture against value of property, amount of monthly payments compared to value of property
What does it mean for a performance to be impracticable?
A party is discharged from his contractual obligations even if it is technically possible to perform them, if the costs of performance would be so disproportionate to that reasonably contemplated by the parties as to make the contract impractical in a commercial sense