Breach For The Stars
Define Breach.
A wrongful failure to perform the terms of a contract; always action for damages by the aggrieved
What is the difference between remedies at law and remedies in equity?
At law: monetary damages
In equity: court orders to perform or act/refrain from acting in a certain way
What are the successive assignments approaches for majority and minority jurisdictions?
Majority: first assignee in point of time prevails
Minority: first assignee to notify the obligor prevails
What are the two types of procedural unconscionability?
1) Oppression
2) Surprise
What are the two types of non-fraudulent misrepresentation? For each, what happens to the contract if they are in it?
1) Negligent = voidable
2) Innocent = voidable
What is the difference between objective and subjective impossibility?
Subjective - only you cannot render performance; does not excuse from contractual duty
Define indirect damages and state the two types that fall under it.
Amount awarded for secondary losses resulting from the breach
1) incidental
2) consequential
What is a novation?
If delegator desires to be discharged of the duty, they may enter an agreement to obtain the consent of the obligee to substitute a third person in their place; delegatee must assent to perform to become liable
When can several documents/papers meet the SOF standards?
1) physically connected
2) refer to each other
3) under examination, they are in reference to each other
What are output and requirements contracts? Are these illusory?
Requirements: A purchaser's agreement to purchase from a seller all the materials of a particular kind that the purchaser needs
They are not illusory.
What are mutual and independent, sequential dependent, and simulataneous dependent promises?
MI: Either party may recover damages for injuries incurred by breach; breach of one party is not an excuse for other party's failure
SD: Performance of one depends on the prior performance of another; no duty owed until the prior promise is performed
SiD: Performed at the same time; if one party is ready and offers, they can perform and may maintain action for default of other if not performed
What are nominal damages?
Small sum fixed without regard to the amount of loss; when plaintiff has not sustained or cannot prove any injury or loss resulting from the breach
When is delegation prohibited?
1) Nature is personal and the obligee has substantial interest having the delegator perform
2) The performance is expressly made nondelegable
3) Prohibited by statute or public policy
Name THREE exceptions to the interest of transfer of an interest in land Statute of Frauds.
What is a conditional gift?
No consideration; if the happening of the condition will be of no benefit to the promisor and is obviously merely for the purpose of enabling the promisee to receive a gift
What three things can discharge a contract under commercial impracticability?
1) supervening event (not by their own fault)
2) based on a basic assumption for which the contract was made
3) cost of performance is disproportionate to the cost reasonably contemplated by parties making it commercially impracticable
When can the market price be calculated for anticipatory breaches?
1) they learn of the repudiation
2) a commercially reasonable time after they learn of the repudiation
3) when performance is due under the contract
What FOUR duties are implied under an implied warranty?
1) Will not defeat/impair the assignment
2) Assigned right exists and is subject to no limitations/defenses other than those apparent
3) Any writing that evidences the right and that is delivered to assignee is genuine and what it purports to be
4) The assignor has no knowledge of any fact that would impair the value of the assignment
When is a contract "of adhesion"?
1) There was superior bargaining power
2) It concerned a service of great public importance
What is the difference between undisputed and disputed debt?
UD: Payment of a lesser sum of money than is owed to fully discharge the debt is legally insufficient consideration
DD: A promise to settle the claim in exchange for an agreed payment or other performance is supported by consideration
What TWO things certainly constitute a total breach?
1) Repudiation
2) Such material failure 'of the essence' of performance that substantially frustrates the purpose of the contract for the aggrieved
In what TWO circumstances are damages foreseeable?
1) In the ordinary course of events
2) As a result of special circumstances, beyond prior, about which the party in breach had reason to know
What is the difference between an intended beneficiary and an incidental beneficiary?
Intended: Intended by two parties to the contract to receive a benefit from the performance of the agreement
Incidental beneficiary: The third party is not intended to receive a benefit under the contract
What is 'partially integrated agreement' called in the UCC and what does it mean?
Also, provide TWO exemptions to parol evidence
Final expression; Parol evidence rule excludes evidence of prior agreements and contemporaneous oral agreements that contradict or change terms in the written agreement, but allows evidence that adds the terms
Exemptions: part written/part oral; clerical error; lack of capacity; invalidating causes; condition precedent; subsequent mutual recission or modifiction
What are the two types of arbitration and what do they mean?
1) Consensual - parties agree to submit the controversy
2) Compulsory - statute requires arbitration for specific disputes (I.e. public employees)