MBE EXAM REVIEW 2024

MBE SUMMARY 2024 Equitable Reformation - Where a clerical error has been made in reducing an agreement to writing, a party may bring an action in equitable reformation to have the writing reformed to correct the writing or include the omitted provision. Lost volume seller - A seller who has enough supplies to meet the demands of their customers. Seller can recoup the contract price of a widget when - 1) where the buyer has accepted the goods; 2) where the goods are lost or damaged within a commerically reasonable time after the risk of loss has passed to the buyer, or 3) where the buyer has returned or rejected the goods and the seller is unable after reasonable efforts to resell the goods. Third party beneficiary - A third party acquires standing to enforce a promise only if it is the intended beneficiary of the promise. A party is an intended beneficiary of a promise if recognition of a right to performance in the beneficiary is appropriate to effectuate the intent of the parties such as where the promisor knows that the promisee intended to confer a benefit on the beneficiary. Bona Fide purchaser - A bona fide purchaser for value is one who takes without notice before delivery of conveyance or payment of the purchase price and is protected as to reasonable expectations arising from the apparent ownership of his assignor. Prohibition against assignment of a contract - This takes away the assignor's right to assign but not the power to assign. If an assignment is made inb reach of an express contractual provision, the obligor has the right to damages for the breach, but this right does not render the assignment ineffective unless the assignee knew of the prohibition. Incidental beneficiary - ... requirements contracts - type of sales contract that obligates the buyer to purchase all of its requirements of a good from the seller. Illusory Promises - The modern approach is to construe a promise wherever possible so as to not be illusory. For example, reading into the promise an obligation to exercise discretion in good faith. Abrogate - to repeal Modification of contract under UCC - Modification of a K for the sale of goods needs no additional consideration to be binding under the UCC. Options contract - Unless an options contract is created, the offeror retains the power to revoke the ofer any time prior to acceptance. In order to create an option, the offeror must manifest an intent not to revoke during the time stated, and the option promise must be supported by consideration. Third party standing - A third party acquires standing to enforce a promise only if that party is the intended beneficiary of the promise. Intended beneficiary - A party will be found to be an intended beneficiary where recognition of standing to enforce the promise is appropriate to effectuate the intent of the parties and where the beneficiary is either a creditor beneficiary or a donee beneficiary (where the promisee intends to give the beneficiary the benefit of the performance). Volume Seller - UCC Article 2 allows volume sellers to be entitled to the expected profit from the lost sale even though the same product was resold at the original price. Time of essence - On a services contract, a party is generally not required to perform by the exact date stated in the contract unless time is made of the essence. If time is not of the essence, a reasonable delay is not a material breach. Acceptance by performance - Restatement 2nd of K provides that where an offer invites acceptance by performance, the offeree's beginning of performance creates an option contract which precludes the offeror from revoking its offer. Implied in fact contract - type of enforceable k, but one based on tacit rather than express proise. IIF may be inferred from parties conduct such as where services are rendered by one person to another under circumstances where it may fairly be presumed that parties understood that compensation would be paid. PER exception- condition precedent - An exception to the parol evidence rule applies where the extrinsic evidence is offered to prove that the written agreement is to take effect only upon the occurrence of a stated condition (even if the condition is for only one party's benefit) Accord - An accord occurs when one party to a contract agrees to accept performance different from the performance promised in the original agreement. An accord generally requires consideration which can be less than that called for in the original contract. Payment of lesser amount than is due on a valid claim constitutes valid consideration if there is a bona fide dispute as to the amount owed and the dispute is in good faith. Perfect Tender Rule - Under the UCC's perfect tender rule, when a delivery under a contract for the sale of goods fails to conform in any respect to the contract, the buyer has the righ tto reject the goods. however, seller must be given an opportunity to cure the defective delivery if the time for performance has not expired. Condition precedent - one that must occur before an absolute duty of immediate performance arises in the other party. Condition concurrent - conditions that can occur together with both parties bound to perform at the same time. Condition subsequent - One that cuts off an existing duty of performance when it occurs. Quasi Contract - A. However, a breaching party can recover the reasonable value of a benefit conferred onto the non-breaching party via a quasi-contract action if: (1) the plaintiff has conferred a benefit on the defendant, (2) the plaintiff had a reasonable expectation of being paid, (3) the benefits were conferred at the request of the defendant, and (4) the defendant would be unjustly enriched if it retained the benefits without compensation Evidence - Rule 704B - prohibits an expert from testifying that a criminal defendant had or did not have the requisite mental state to commit the crime charged. no absolute bar for civil cases.