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Contract1L Mod 11-12
Contracts 1L Things to Know Mod. 11-12
Question | Answer |
---|---|
What are conditions? | They essentially are promise modifiers. |
Define CONDITION PRECEDENT. | Where an event MUST occur before a duty matures and becomes performable. |
Define CONDITION CONCURRENT. | An event that must occur at the same moment the duty is being performed. A simultaneous occurrence. |
Define CONDITION SUBSEQUENT. | An event that will occur after the duty has matured and become performable. IF the event dos not occur then the duty will be discharged. |
What are 2 types of conditions. | Express Conditions and Constructive Conditions. |
What are the 3 kinds of conditions? | Condition Precedent, condition concurrent and condition subsequent. |
Explain a Simple or True Condition. | An event outside the control of either party. |
Are express conditions always expressed in a contract? | Per Prof. Moy-YES |
Discuss Promise and Covenant. | An event in which one or both partied has some control over the occurrence of the event. |
Define CONSTRUCTIVE CONDITIONS. | Are conditions that we interpret from the relative performances of the parties. |
How do we identify the constructive condition? | One parties' performance precedes the others; one parties' performance takes longer than the other; if the performances are simultaneous and instantaneous these are ex. of constructive conditions. |
What does it mean to voluntarily EXCUSE a condition? | Where the party entitled to the condition could either waive or be estopped from requiring. |
What does it mean to Waiver. | This is the relenquishment of a right. |
What does it mean to be estopped? | The party entitled to the condition says they will not require the condition; AND the other party changes position as a result of it. |
What are the 3 ways to FORCE "excuse of a condition?" | Failure to cooperate, Prevention and Anticipatory Repudiation. |
What does "failure to cooperate" mean re: excusing conditions? | Where the party entitled to the condition fails to cooperate in the occurrence of the condition. THAT MEANS THE CONDITION IS EXCUSED-WE TAKE AWAY THE CONDITION. |
What does "prevention" mean re: excusing conditions? | Intentionally prevent the performance (not in good faith) of the event or occurrence: THAT MEANS THE CONDITION IS EXCUSED. |
What does "anticipatory repudiation" mean re: excusing conditions? | Where the party entitled to the condition repudiates before the event is to occur. Excuses the condition and that person is immediately liable for breach. |
There are 2 ways to repudiate-What are they? | EXPRESS-tell the other party and CONDUCT-prospective inability to perform the contract. |
What are 3 ways to satisfy a condition? | Complete satisfaction, Substantial Satisfaction or Doctrine of Divisibility. |
Discuss Complete Satisfaction. | For any express condition-IF there is an express condition that the parties write into the contract-IT MUST HAPPEN IN ORDER TO PROCEED. |
Discuss Substantial Satisfaction. | Substantial completion of the condition will trigger the obligation of the other party. |
What is the essence of THE DOCTRINE OF DIVISIBILITY? | Satisfying conditions in its divisible parts. |
What is a CONDITION? | A condition is an act or and event (other than lapse of time) that unless it is excused, affects a duty to render a promised performance. |
Can a "lapse of time" be treated as a condition? | No, because it is looked at as an event certain to occur. |
What 2 ways can conditions be classified? | Based on time and based on the way the condition arises. |
Are express conditions agreements created by the parties? | YES |
Are constructive conditions imposed by law to do justice? | YES |
Can you breach a condition? | NO |
Can you breach a promise? | YES |
What does it means if a contract is VOID? | The contract has no legal effect thus, really isn't a contract at all. |
What is a mental infirmity? | A mental weakness cause by defect (mental illness) |
What is a promissory note? | A unconditional written promise signed by the maker to pay, totally, a certain amount of money to a designated person or bearer. |
Disaffirmance means what? | To repudiate or revoke consent. |
What is ratification? | The successful surrender of one's power of avoidance. |
What is STATUS QUO ANTE? | The situation that existed before something else (being discussed) occurred. |
What is the Doctrine of Respondent Superior? | "Let the supervisor make answer." Holds the principal liable for the agent's wrongful act committed within the scope of employment or agency. |
What are necessaries? | Items and things that are required for living (i.e. food, shelter, clothes, etc). |
Name two classes of persons whose contractual capacity is limited. | Infants and Persons suffering from mental infirmity. |
Discuss Infancy. | At common law, a person remained an infant until the age of 21. Most jurisdictions have set the age of majority at 18. |
When does Infancy end? | It is commonly held that one's infancy ends at the very first moment of the day preceding their 18th birthday. |
Can an adult party to a transaction avoid the contract on the ground of the others infancy. | NO! |
What happens after the infant has exercised the power to avoid the contract? | The transaction is treated for many purposes as if it were void from the beginning. |
Does an infant has no power to grant an irrevocable discharge? | NO |
TRUE OR FALSE? An infant may disaffirm a contract at any time prior to ratification. | TRUE!!!! |
Discuss Express Ratification. | A contract can be explicitly ratified, unless a statute indicates otherwise, an express ratification can be oral. b. Contracts not yet performed by the former infant: |
Discuss Ratification by Conduct. | Ratification by failure to make a timely disaffirmance, may be considered a kind of ratification by conduct, at least if inaction is deemed conduct. |
Are infants liable for their torts? | yes, Infants are liable for their torts. |
What are the three kinds of problems arise from the interplay of tort and contract liability in cases involving infants? | Infants' Torts Stemming From Contracts, False Representations by the Infant and Torts and Agency Relationships. |
Discuss UNDUE INFLUENCE. | Undue influence is a concept that courts of equity originated as a ground for setting aside a transaction that a dominant party had imposed on a subservient party. |
Name the 2 broad cases where we will see undue influences. | 1) One party uses a dominant psychological position to induce a subservient party and 2) One party uses a position of trust and confidence to unfairly persuade` the other into a transaction. |
Where does unfair persuasion normally take place? | In private. |
What are the 4 elements of evidence sufficient to create a circumstantial case on undue influence? | Facts showing the susceptibility of the party influenced; evidence of the opportunity to exercise undue influence; evidence of a disposition to exercise undue influence; evidence must show the unnatural nature of the transaction. |
Is it "OK" for attorneys to contract with their clients outside of the respective legal services? | YES (Although it is not advisable, a lawyer may also contract with a client with respect to matters not involving legal services, or in addition to legal services.) |
Discuss Attorney-Client Contracts and the attorney's fiduciary duty. | Because of the fiduciary duty that the lawyer owes the client, there is a heavy burden of proof on the lawyer to show that the transaction is free of undue influence. |
How is OVERPERSUASION generally accomplished? List some ways? | Discussion of the transaction at unusual/ inappropriate times; Demand that the business be finished at once; Emphasis on untoward consequences of delay; Multiple persuaders by the dominant side. |
Give examples of confidential relationships. | Husband/wife; Teacher/student; Employee/employer; Physician/patient. |