Consideration
Consideration
Identify the promise the party is seeking to enforce
What does the party trying to enforce the promise claim the consideration was?
Bargain
Did the promisor make the promise to get what the promisee claims is consideration?
Did the promisee perform the consideration because the promisor made the promise?
A condition verus a promise
A promise creates a duty
A condition postpones a duty
to ameliorate the harsh consequences of forfeiture when the party has substantially performed
- when you haven't been paid
- breaching party must earn it
mental illness
- implies a nonunderstand
- a test they used to give
2. reasonableness test
- he is unable to understand in a reasonable manner the nature and consequences of the transaction, or
- he is unable to act in a reasonable manner in realtion to the transaction and the other party knows or has reason to know of this condition
undue influence
1. undue susceptibility
- age
- physical condition
- emotional vulnerability
2. excessive pressure to persuade
- unusal time and place
- now or never component
- bad things will happen if you dont do this
- multiple persuaders
- no ability to contact a third party
What if I want the promise to be binding but I dont want anything in return?
1. The message must be clear
2. The message must not be conspicuous
A condition must be
Expressly clear and complied with exactly
when would you use material breach
when the party wants out of a contract
they must show that the preformance they will not receive is significant
age
general rule: a minor can disaffirm a contract before they reach the age of maturity
- they can disaffirm after the age of maturity within a reasonable time
exception: a minor cannot disaffirm a contract for necessaries
unconscionability
1. procedural
- oppressive
- surprise
2. substantive
- overly harsh terms
- one-sided
Past Consideration
When the alleged consideration is something that occured prior to the promise
can a condition be waived?
the waiver must be express: intentionally relinquihsing a known right
or estoppel: prevents a party from going back on what they've already done
1. Would the failure to complete the performance frustrate the purpose of the contract?
2. How culpable was the party at fault?
3. what is the cruelty of enforcing the punishment?
misrepresentation
analysis:
1. prove the misrepresentaion
2. put it in a category
2. reliance analysis
Fraudulent v Material
a misrepresentation is fraudulent if a maker makes an assertion not in accordance with fact and:
1. the maker knows it was not true; or
2. they do not have the confidence that he states or implies the truth of the assertion; or
3. suggests he knows something that might cause reliance in the other party without basis
material:
1. it would be likely to induce a reasonable person to manifest his assent, or
2. it would be likely to induce the recipitent to do so
mutual mistake
1. a belief not in accord with fact
2. the mistake was mutual
3. the mistake was about a basic assumption
4. the mistake materially impairs the value of the contract
5. the party assumed the risk
- the court assigns risk
- the contract assigns risk
- concious ignorance
Promissory Estoppel
1. ID the promise
2. Did the promisor have reasonable expectations that the promise was likely to induce the promisee to change position?
3. Did the promisee actual change position in reliance on the promise?
4. Is the only way to prevent injustice to enforce the promise?
5. The remedy can be limited as injustice requires.
When would a court read in a condition to resolve a dispute?
The court would apply a condition based on the express logic of the terms
- who goes first?
the party who takes the longest to perform
common law anticpatory repudiation
1. reasonable grounds to be insecure
2. demand performance in writiing (clear and definite)
when is an opinion treated like a fact
1. there is a fiducairy or confidential relationship between the parties; or
2. one party is playing a trick on the other; or
3. the parties are not dealing at arm's length and the other party has knowledge that the other party does not have access to
unilateral mistake
1. a mistake is a belief not in accord with fact
1. one party knows about the mistake
2. the mistake is actually about the contract
- but, if one party imposes on the other party, the mistake is valid and the k is void
PE as a COA
1. What were the representations made?
2. Should the representor expect the representations to induce the other party to change their positioin?
- How many times were the representations made?
- Was the representative aware that the other party was changing their position?
3. Did the party to whom the representations were made rely on the representations?
- what was the strength of the representations?
- were they in the zone of expectation of the representatives?
4. Is the only way to prevent injustice to compensate for the change in position?
- what is the injustice?
- how will money prevent the injustice?
what does the court do in cases of ambiguity?
The court would imply a promise to create a breach instead of a forefeiture
material breach
1. to what extent will the injured party be deprived of the benefit they expected to receive under the contract?
2. to what extent can the injured party be adequately compensated?
3. to what extent will the injuring party suffer forfeiture?
4. the liklihood that the party failing to perform will cure their nonperformance
5. the extent to which the party failing to perform fails to comport with the standards of good faith and fair dealing
duress
1. unlawful threat
2. the threatended party needs the performance now
3. no reasonable alternative within a reasonable time
4. the legal remedy is inadequate
5. the threatended party must communicate that they are not doin this of their own will
good faith in contracts
neither party will do anything to deprive the other party of the fruits they reasonably expect to gain under the contract