Contracts 1L Things to Know Mod. 11-12
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| What are conditions? | They essentially are promise modifiers.
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| Define CONDITION PRECEDENT. | Where an event MUST occur before a duty matures and becomes performable.
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| Define CONDITION CONCURRENT. | An event that must occur at the same moment the duty is being performed. A simultaneous occurrence.
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| 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.
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| What are 2 types of conditions. | Express Conditions and Constructive Conditions.
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| What are the 3 kinds of conditions? | Condition Precedent, condition concurrent and condition subsequent.
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| Explain a Simple or True Condition. | An event outside the control of either party.
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| Are express conditions always expressed in a contract? | Per Prof. Moy-YES
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| Discuss Promise and Covenant. | An event in which one or both partied has some control over the occurrence of the event.
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| Define CONSTRUCTIVE CONDITIONS. | Are conditions that we interpret from the relative performances of the parties.
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| 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.
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| What does it mean to voluntarily EXCUSE a condition? | Where the party entitled to the condition could either waive or be estopped from requiring.
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| What does it mean to Waiver. | This is the relenquishment of a right.
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| 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.
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| What are the 3 ways to FORCE "excuse of a condition?" | Failure to cooperate, Prevention and Anticipatory Repudiation.
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| 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.
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| 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.
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| 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.
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| There are 2 ways to repudiate-What are they? | EXPRESS-tell the other party and CONDUCT-prospective inability to perform the contract.
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| What are 3 ways to satisfy a condition? | Complete satisfaction, Substantial Satisfaction or Doctrine of Divisibility.
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| 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.
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| Discuss Substantial Satisfaction. | Substantial completion of the condition will trigger the obligation of the other party.
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| What is the essence of THE DOCTRINE OF DIVISIBILITY? | Satisfying conditions in its divisible parts.
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| 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.
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| Can a "lapse of time" be treated as a condition? | No, because it is looked at as an event certain to occur.
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| What 2 ways can conditions be classified? | Based on time and based on the way the condition arises.
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| Are express conditions agreements created by the parties? | YES
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| Are constructive conditions imposed by law to do justice? | YES
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| Can you breach a condition? | NO
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| Can you breach a promise? | YES
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| What does it means if a contract is VOID? | The contract has no legal effect thus, really isn't a contract at all.
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| What is a mental infirmity? | A mental weakness cause by defect (mental illness)
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| 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.
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| Disaffirmance means what? | To repudiate or revoke consent.
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| What is ratification? | The successful surrender of one's power of avoidance.
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| What is STATUS QUO ANTE? | The situation that existed before something else (being discussed) occurred.
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| 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.
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| What are necessaries? | Items and things that are required for living (i.e. food, shelter, clothes, etc).
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| Name two classes of persons whose contractual capacity is limited. | Infants and Persons suffering from mental infirmity.
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| 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.
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| 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.
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| Can an adult party to a transaction avoid the contract on the ground of the others infancy. | NO!
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| 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.
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| Does an infant has no power to grant an irrevocable discharge? | NO
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| TRUE OR FALSE? An infant may disaffirm a contract at any time prior to ratification. | TRUE!!!!
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| 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:
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| 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.
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| Are infants liable for their torts? | yes, Infants are liable for their torts.
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| 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.
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| 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.
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| 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.
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| Where does unfair persuasion normally take place? | In private.
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| 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.
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| 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.)
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| 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.
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| 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.
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| Give examples of confidential relationships. | Husband/wife; Teacher/student; Employee/employer; Physician/patient.
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