THIS IS JUST A PREVIEW
THE FULL BREEDEN ATTACK SHEET IS AVAILABLE FOR DOWNLOAD USING THE FOLLOWING LINK: http://www.scribd.com/Breeden%20Attack%20Sheets OR BY VISITING WWW.SCRIBD.COM AND USING KEYWORD “BREEDEN ATTACK SHEET.”
With over 50,000 views and over 15,000 downloads, the BREEDEN ATTACK SHEETS are the most downloaded and viewed bar study outlines on the internet. (SOURCE: docstoc.com and scribd.com). Most of these “attack sheets” are less than 3 pages, only covering the basic knowledge needed for bar success. Hundreds of you have emailed me your stories. The response to the Breeden Attack Sheets has been tremendous, and I am extremely proud to be a part of each of your bar studies. Keep the emails and success stories coming. Good luck!
Unless an offer that cannot be revoked: (1) Option (2) Firm Offer [goods, signed written promise, merchant, 3 months max] (3) Detrimental reliance [reasonably foreseeable] (4) Start of performance on unilateral K, have to give reasonable time to complete) REJECTION (Counteroffer, Conditional acceptance, Additional Terms [CL= “Mirror Image Rule”; UCC= if 1 merchant, proposal to be separately considered; UCC= if both parties are merchants, becomes part of K unless (1) materially alters or (2) rejection]) WAS OFFER ACCEPTED? FULL PERFORMANCE (may be notice issue if out of state party) START PERFORMANCE (bilateral=acceptance, Unilateral= not acceptance) PROMISE TO PERFORM MAILBOX RULE (acceptance when sent, unless rejection sent first) WRONG GOODS SENT (Sending goods (even if wrong) is Acceptance & Breach UNLESS sent with Accommodation/explanation
which would be a counteroffer and no breach)
IS THERE A LEGAL REASON NOT TO ENFORCE THE CONTRACT? LACK OF CONSIDERATION (Define: “Bargained for Legal Detriment”; BAR ISSUES: (1) Past consideration not valid, unless
expressly requested and expected payment) (2) Doing what you are already legally obligated to do is not new consideration UNLESS there is an addition or change in performance OR unforeseen difficulty so severe as to excuse performance OR 3rd party promise to pay (3) UCC does not require new consideration on sale of goods- good faith test (4) Consideration Substitute [written promise to pay debt barred by SOL or other defense OR promissory estoppel [detrimental reliance])
LACK OF CAPACITY (Infant, Mental, Intoxicated) (Necessity & Retain Benefit exceptions) STATUTE OF FRAUDS
FALLS WITHIN SOF: (1) Performance more than 1 year (2) Sale of Goods $500 or more (3) Services over 1 year (4) guarantee to pay 3rd party debt (5) executor promise to pay estate debt with own funds (6) transfers of real estate, with exception of leases of 1 year or less SATISFIES SOF: (1) Writing [Non-UCC SOF: “Material Terms Test” requires WHO and WHAT and be signed by person saying there is no agreement; UCC SOF: only need quantity and signature of person saying there is no agreement HOWEVER if both parties are merchants, SOF satisfied as long as quantity and no response within 10 days of receipt] (2) Performance [Service=full; Property=2 of 3 (payment, possession, improvements); Goods (Ordinary= if delivered; Special=substantial beginning)] (3) Judicial Admission OTHER ISSUES ON BAR: (1) Modification: if new deal falls within, whole deal must satisfy SOF. If new deal doesn’t, need not (2) K provisions requiring all modifications be in writing (CL=ignored; UCC=effective)
ILLEGALITY (Subject matter=illegal, K void; Purpose=illegal, K voidable) MISREPRESENTATION (False assertion, concealment of facts) DURESS (Improper threat + no reasonable alternative) AMBIGUITY IN WORDS (No K if material term open to 2 reasonable interpretations; each party attaches different meanings;
neither party knows or has reason to know term is open)
MISTAKE OF FACT (both parties are mistaken; materially affects; not price) WHAT ARE THE TERMS OF THE CONTRACT? PAROL EVIDENCE RULE: 4 USES Of PE: (1) Contradicting the written deal (PE NOT allowed) (2) Getting out of written
deal/rescission (PE IS allowed) (3) Explaining terms of written deal (PE IS allowed) (4) Adding to the written deal (PE IS allowed UNLESS PE should be in separate agreement); PE applies to written agreements; whereas SOF concerns oral agreements
SOURCE OF TERMS: EXPLAINING WORDS OR GAPS IN CONTRACT: (1) Course of Performance (same people, same
K- what they’ve already done)- crt looks at first (2) Course of Dealing (same people, different K)- crt looks at next (3) Custom, Usage (different people, different K)
TERMS IN UCC SALE OF GOODS CONTRACT:
DELIVERY: Shipment contract (most common) or Destination contract (if FOB =anywhere other than city where seller located, it is a destination contract) RISK OF LOSS: if merchant, when goods are delivered (unless agreed otherwise); if seller not merchant, when goods tendered (seller tells buyer how to get them) WARRANTIES OF QUALITY: (1) Express (2) Implied Warranty of Merchantability (implied; goods fit for ordinary purpose; must be from merchant) (3) Implied Warranty of Fitness for Particular Purpose (Buyer has particular purpose that seller knows) (4) Contractual limitations on Warranty (disclaimer valid except for express; can limit remedies unless unconscionable)
WAS THERE PROPER PERFORMANCE? CL: “Substantial performance” UCC:
PERFECT TENDER: Seller obligated to deliver perfect goods REJECTION OF GOODS: Must be before acceptance; if goods less than perfect, buyer can reject (Exception- Cure & Installment Sale Contracts) CURE: Seller can cure before time has expired; if expired, must have reasonable grounds for believing cure will be acceptable INSTALLMENT SALES CONTRACTS: Can only reject if substantial impairment. ACCEPTANCE OF GOODS: If accept, can’t then reject. Must have opportunity to inspect; implied acceptance if more than one month REVOCATION OF ACCEPTANCE: can revoke if (1) nonconformity substantially impairs value of goods (2) excusable ignorance or reasonable reliance on seller’s assurances (3) revocation w/in a reasonable time after discovery of nonconformity.
IF NO PERFORMANCE, WHAT IS THE REMEDY? SEE CONTRACTS IN REMEDIES WAS THERE A VALID EXCUSE FOR NON-PERFORMANCE? MATERIAL BREACH: If one party materially breaches, other party is excused (exception= divisible K- then do unit by unit basis); if
not perfect tender, buyer can reject
PERFORMANCE CONDITION: Strict compliance with express condition ANTICIPATORY REPUDIATION: Unambiguous statement that party will not perform made prior to when performance is due.
(can be retracted if timely and no material change in position by other party)
LATER CONTRACT:
RECISSION (Later agreement to cancel the contract) ACCORD/SATISFACTION (Substituted performance) Original agreement still valid until new one performed MODIFICATION (Substituted agreement) Original agreement no longer valid; can only sue on new agreement (CL requires consideration) NOVATION: (Substituted party) Both parties agree to substitute new party. Old party excused, whereas DELEGATION would not excuse old party
LATER UNFORESEEN EVENT (Makes performance impossible, impracticable, or frustrates purpose); (Damage/Destruction of
contract subject matter after contract; Death; and Subsequent Law/Regulation)
IS THERE ANOTHER PARTY INVOLVED? 3RD PARTY BENEFICIARY (Did 3rd party know of and rely on contract; If so, her rights have vested and contract cannot be
cancelled or modified without her consent unless otherwise provided)
ASSIGNMENT DELEGATION (Party transfers work/duty to 3rd party; Permitted unless contract prohibits delegations OR assignments, or contract
calls for special skills/reputation of delegator)