Summary MBE Flashcards In-class activity

MBE Flashcards In-class activity contract - a promise that the law will enforce offer - 1) Manifestation of intent to K demonstrated by a promise, undertaking, or commitment; 2) Communicated to an identified offeree; and 3) Definite and certain terms Irrevocable offer - 1) Merchant's firm offer under UCC 2) Option contract - consideration given 3) Detrimental reliance Termination by Operation of Law - 1) destruction of subject matter 2) supervening illegality 3) death/insanity Mailbox Rule - Acceptance by mail is effective at dispatch, unless: 1) Send rejection & then acceptance, then first is effective 2) Send acceptance then rejection, then acceptance is effective unless the rejection arrives first & offer detrimentally relies on it Consideration - bargained-for exchange and detriment to promise or legal benefit to promisor Unilateral Mistake - contract is voidable if non mistaken party knew or should've known of mistake Mutual Mistake - contract is voidable by adversely affected party if: 1) Mistake concerns basic assumption on which contract was made; 2) Mistake has material effect; and 3) Party seeking avoidance didn't assume risk Statute of Frauds - Certain contracts must be in writing, signed by the party to be charged (MY LEGS) - Exception: specially manufactured goods, goods accepted, or goods paid for Parole Evidence Rule - When parties intend that a writing is the final expression of their bargain, no prior oral or written expressions are admissible to vary the terms of the writing Integration - final and complete expression Delivery Terms (noncarrier) - • Merchant seller - risk to buyer upon possession • Nonmerchant seller - risk upon tender of delivery Delivery Terms (carrier) - • Shipment - risk passes on delivery to carrier • Destination - risk passes on tender at destination • FOB - risk passes on delivery to FOB location Implied warranty of merchantability - goods fit for ordinary purpose Modification of Terms (CL) - RULE: need additional consideration - Modern - permits modification w/o consideration if due to unanticipated circumstances by the parties when the contract was made and is fair and equitable - Written contract can be modified orally even if contrary provision Modification (UCC) - - good faith - in writing, as modified, contract is for $500/+ - give effect to provisions prohibiting oral modification Anticipatory repudiation - unequivocally indicates he won't perform before time of performance Divisibility of K - 1) performance of each party is divided into 2/+ parts under the K; 2) number of parts due from each party is the same; and 3) performance of each part by one party is agreed on as the equivalent of the corresponding part Breach (CL) - o Minor breach - oblige gains substantial benefit of bargain so aggrieved party must perform, but right to damages o Material breach - oblige doesn't gain substantial benefit of bargain so no duty to perform, immediate right to damages and other remedies Breach (UCC) - Perfect Tender Rule - if goods or delivery fail to conform to contract in any way, buyer generally may reject all, accept all, or accept any commercial units and reject the rest Damages - can be recovered only to extent they can be proved w/ reasonable certainty and couldn't be avoided with reasonable effort Compensatory damages - - Expectation damages - Consequential damages available only if reasonably foreseeable Liquidated damages - 1) Actual damages difficult to calculate at the time of contracting; and 2) Amount is a reasonable forecast of the likely damages Buyer's Damages (UCC) - • Cover • K price - market price • Warranty damages if accepted nonconforming goods • Consequential damages (if seller knew of buyer's needs) Seller's Damages (UCC) - • K price - resale price • K price - market price • Lost profits (lost volume seller) Damages in employment contracts - • ER breach - full contract price • EE breach - cost to replace EE Restitution - prevents unjust enrichment; value of benefit conferred Recission - K voidable/rescinded if mutual mistake of material fact, unilateral mistake that other party knew or should've known or extreme hardship, misrepresentation of material factor, or duress, undue influence, illegality, incapacity, or failure of consideration Third-Party Beneficiaries (vesting) - No modification w/o consent after vesting - vesting occurs if: 1) Manifested assent; 2) Brought suit to enforce the promise; or 3) Materially changed position in justifiable reliance Duties that can't be delegated - - Involving personal judgment/skill - Involving special trust in delegator (DR, lawyer) - Restricted by K - Performance of which by a delegate materially changes the obligee's expectancy Case/Controversary - 1) Ripeness - harm must actually be threatened 2) Mootness - must be real, live controversy at all stages 3) Standing - P must have a concrete stake in the outcome at all stages 4) Injury in fact - specific injury, not theoretical 5) Remediable by court decision 11A - Generally can't sue state in fed ct for damages w/o state's permission -exception: actions against state officers & removal of immunity under 14A Necessary & Proper - congress has power to make laws necessary and proper for executing any power granted to any branch of fed gov't Taxing Power - if revenue raising, generally valid Spending Power - - may be for any public purpose - May regulate beyond enumerate powers by attaching strings to a grant as long as they are: (i) clearly stated, (ii) related to the purpose of the grant, and (iii) not unduly coercive commerce power - congress may regulate: 1) channels of interstate commerce -roads, rails, waterways, phones 2) instrumentalities of interstate commerce - trains, planes, automobiles 3) activities having a substantial economic effect on interstate commerce -Generally must be economic or commercial activity Government Property Power - o Eminent domain o Dispose of federal property o Rules regulating federal lands and Indian reservations Dormant commerce clause (negative implications of CC) - - If congress hasn't regulated, a state can regulate local aspect of interstate commerce if: Law doesn't discriminate against interstate commerce or unduly burden it States may not intentionally discriminate against interstate commerce