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Breach of Contract and Guaranty document sample
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CHAPTER 11 (Consideration)
CONSIDERATION
NO CONSIDERATION
contract under seal NO legal value
NO bargained-for-exchange (gift promise/gratuitous promise)
ONLY NOMINAL(insufficient) consideration ("shock the conscience of the court")
adequacy of consideration NOT questioned (SOME STATES) SOME STATES
promissory estoppel NO reasonable expectation to induce reliance
NO actual reliance
NO justifiable reliance
NO injustice
past consideration
illegal consideration
ONLY a gift/gratuitous promise
unforeseen difficulties (contract modified) pre-existing duty
illusory promise
legal consideration given option-to-cancel clause -- ONLY ILLUSORY PROMISE
best efforts is sufficient imposition best efforts contract -- ONLY ILLUSORY PROMISE
good faith obligation/ objective limitation output/requirements contract -- ONLY ILLUSORY PROMISE
ONLY a moral obligation
enforceable (SOME STATES)
NO satisfaction accord
public policy ?????
covenant not to sue ?????
PRIMA FACIE CASE
OFFER (Ch10)
objective theory of contracts
NO serious, objective intention
ONLY preliminary negotiations
ONLY expression of opinion
ONLY undue excitement
only advertisement
advertising language sufficiently definite
NO definiteness
NO identification of the parties
NO identification of the subject matter
NO identification of the consideration
implied terms (modern view: Restatement (Second) of Contracts)
no market/source to determine price
parties/subject matter CANNOT be implied
subject matter unique/personal
NO communication
offer NOT communicated
reward NOT communicated
TERMINATION of offer
revocation NOT received revocation
NOT communicated by same means
acceptance before revocation
irrevocable offer -- option contract option expired
irrevocable offer -- "firm offer"
irrevocable offer -- promissory estoppel NO promise made
(doctrine of detrimental reliance) NO reasonable expectation of reliance, etc.
NO actual reliance
NO injustice if promise NOT enforced
rejection NOT received rejection/counteroffer
acceptance before rejection
lapse of time
not reasonable time yet supervening illegality
acceptance before illegality subject matter destroyed
acceptance BEFORE destruction
fault of offeror/offeree death/incompetency of offeror/offeree
personal service option contract ?????
16e89675-1374-4567-b3cb-a640a4dd3b57.xls 1/7/2011
CHAPTER 10 (Acceptance)
ACCEPTANCE
NO ACCEPTANCE--unilateral contract
promissory estoppel NO ACTUAL ACCEPTANCE
No promise was made
No reasonable expectation of reliance
No actual reliance
No injustice if promise not enforced
implied-in-fact contract No property or services provided to D
P did not expect to be paid
No opportunity to reject
implied-in-law contract No benefit to D
D did not retain benefit
No injustice if D does not pay
NO acceptance -- COUNTEROFFER
NO acceptance--not accepted by offeree/third-party acceptance
NO acceptance--offeree has no legal power to accept
NO acceptance--not jointly accepted
NO acceptance--NOT RECEIVED
mailbox rule (acceptance-upon-dispatch-rule) NOT properly dispatched (Restatement @66)
acceptance timely sent AND received( @67)
NO acceptance -- equivocal acceptance (mirror image rule)
ONLY grumbling…
NO acceptance -- silence is NOT acceptance
duty to speak
offeree indicated silence is acceptable
offeree agreed to continuing deliveries
prior dealings between the parties notification ?????
offeree takes benefit provided by the offeror No opportunity to reject
No expectation of compensation
offer was solicited
implied authorization -- Restatement @30 NO ACCEPTANCE--NOT authorized mode of communication
NOT a reasonable means under the circumstances
NO similar, customary transactions
CHAPTER 11 (Consideration)
CONSIDERATION
NO CONSIDERATION
contract under seal NO legal value
NO bargained-for-exchange (gift promise/gratuitous promise)
ONLY NOMINAL(insufficient) consideration ("shock the conscience of the court")
adequacy of consideration NOT questioned (SOME STATES) SOME STATES
promissory estoppel NO reasonable expectation to induce reliance
NO actual reliance
NO justifiable reliance
NO injustice
NO consideration --past consideration
NO consideration -- illegal consideration
NO consideration -- ONLY a gift/gratuitous promise
unforeseen difficulties (contract modified) NO consideration -- pre-existing duty
NO consideration -- illusory promise
legal consideration given option-to-cancel clause -- ONLY ILLUSORY PROMISE
best efforts is sufficient imposition best efforts contract -- ONLY ILLUSORY PROMISE
good faith obligation/ objective limitation output/requirements contract -- ONLY ILLUSORY PROMISE
NO consideration -- ONLY a moral obligation
enforceable (SOME STATES)
NO satisfaction accord
public policy ?????
covenant not to sue ?????
CHAPTER 15-16 (Breach)
BREACH
NO breach -- performance was tendered
NO breach -- performance NOT due
NO breach -- condition precedent has or has NOT occurred
NO breach -- condition subsequent has or has NOT occurred
NOT satisfied -- subjective (personal satisfaction) test
performance NOT involving personal taste /comfort (objective test)
rejection NOT in good faith
NO breach -- Performance Discharged (by Agreement)
mutual rescission
substituted contract
novation
third party DID NOT agree accord and satisfaction
NO satisfaction
NO breach -- Performance Discharged (by Excuse)
impossibility of performance (objective impossibility)
death/incapacity of promissor
NOT personal service contract destruction of subject matter
NOT prior to performance supervening illegality
illegality is AFTER contract is performed
force majeure clause
NOT an impracticability state commercial impracticability
event NOT unforeseeable frustration of purpose
object of contract NOT made worthless
NO knowledge of purpose
event NOT unforeseeable
NO breach -- Performance Discharged (by Operation of Law)
statute of limitations
bankruptcy
NOT a material alteration alteration of contract
complete (strict) performance
inferior performance -- material breach substantial performance
performance NOT due
implied anticipatory breach
AFFIRMATIVE DEFENSES
(Capacity & Illegality)
DISAFFIRMANCE--lack of capacity (infancy doctrine)
NOT reasonable time after majority
emancipation
misrepresentation of age (some states)
necessaries of life
ratification disaffirm ratification (still a minor)
special contracts
(insurance, medical care, financial transactions, etc.)
DISAFFIRMANCE--lack of capacity (insanity))
mere weakness of intellect
NOT adjudged insane
necessaries of life (quasi contract)
lucid interval
NO knowledge of insanity
DISAFFIRMANCE--lack of capacity (intoxication))
NOT incapable (capable) of comprehending nature (majority rule)
intoxication was self-induced still voidable (most states)
forced to become intoxicated (some states)
unknowingly became intoxicated (some states)
ratification after sobriety
necessaries of life (quasi contract)
DISAFFIRMANCE--illegality
justifiably ignorant of law
fraud, duress, undue influence
withdrawal before performance
less at fault than other party (some states)
DISFFIRMANCE--contract constitutes usury
financial institution
exceeds statutory amount
loan is to a business
DISAFFIRMANCE--gambling
state statutes
under certain amount
…conducted by religious organization
…racing
DISAFFIRMANCE--Sabbath laws
necessaries of life
charitable donations
committing a crime
licensing statutes
revenue raising NOT regulatory
DISAFFIRMANCE--contrary to public policy
immoral contract
exculpatory clause
willful conduct, intentional torts, recklessness, gross negligence
equal bargaining power
covenant not to compete unreasonable line of business, geography, duration
void as against public policy -- NOT ancillary to a legitimate business
transactions
DISAFFIRMANCE--unconscionable/adhesion contract
NO unequal bargaining power
NO use of power to oppress
reasonable alternatives available
CHAPTER 13 (Genuiness of Assent)
(unilateral) mistake NO GENUINENESS OF ASSENT--mistake (mutual)
NOT mistake of a material fact
ONLY a mutual mistake of value
NO GENUINENESS OF ASSENT--fraudulent misrepresentation
(void/voidable)
silence is NOT misrepresentation (generally)
nondisclosure would cause bodily harm
fiduciary relationship
statutes require disclosure
nondisclosure constitues failure to act in good faith (Restatement)
misrepresentation of law
plaintiff is a professional
NO intention to misrepresent
innocent misrepresentation
partial performance exception NO GENUINENESS OF ASSENT--contract violates statute of frauds
main purpose rule (exception)
customized goods
business NOT considered important to public policy
promissory estoppel
NO GENUINENESS OF ASSENT--misrepresentation
innocent misrepresentation
silence is NOT misrepresentation
nondisclosure would cause death/bodily injury
fiduciary relationship
statutes require disclosure
constitutes failure to act in good faith (Restatement)
misrepresentation of law plaintiff is a professional
NO intent to misrepresent
D had alternative NO GENUINESS OF ASSENT--duress
ONLY threat to bring civil suit
lawsuit was frivolous
lawsuit brought in bad faith
NO fiduciary or confidential relationship NO GENUINENESS OF ASSENT--undue influence
dominant party did NOT use influence
CHAPTER 14 Statute of Frauds
ONLY contract to construct/insure real property statute of frauds
ONLY implied (NOT express) easement
part-performance exception
main-purpose (leading object) exception main purpose is NOT pecuniary benefit to guarantor
executed NOT executory (one-year rule)
guarantor is NOT primary benefactor
promissory estoppel
promise did NOT induce forbearance
reliance was NOT foreseeable
NO injustice by NOT enforcing oral promise
evidence shows contract is void or voidable parol evidence rule--NO statements to alter contract
evidence explains ambiguous language
evidence concerns a prior course of dealing
evidence concerns a prior course of performance
evidence concerns a usage of the trade
evidence fills in the gaps in the contract
evidence corrects an obvious clerical error
evidence introduced to prove fraud, misrepresentation
evidence introduced to prove duress, etc.
equal dignity rule -- contract must be in writing and is NOT
CHAPTER 15 (Third-Party Rights)
assignment of rights NO PRIVITY
contract involves personal service
contract involves future rights
contract involves materially altered risks
good faith NOT specified by contract
contract assigns legal rights
against public policy
assigned legal right is breach of contract
DEFENSES AGAINST OBLIGEE
CONTRACT PROHIBITION: waiver clause, exclusion clause failure to notify obligor of assignment
assignment NOT in good faith
assignment NOT for value
assignment NOT w/o notice
CONSUMER CONTRACT
denial of assignment: anti-assignment clause
anti-delegation clause
denial is NOT in good faith delegation -- personal service contract
delegation -- performance would materially vary
presumption of validiy PLUS ambiguous language
delegation is declaration of duties NOT assumption of duties
assignment was revoked
assignment was irrevocable
oral assignment
beneficiary (creditor/donee) incidental beneficiary
CHAPTER 14 Statute of Frauds
ONLY contract to construct/insure real property statute of frauds
ONLY implied (NOT express) easement
part-performance exception
main-purpose (leading object) exception main purpose is NOT pecuniary benefit to guarantor
executed NOT executory (one-year rule)
guarantor is NOT primary benefactor
promissory estoppel
promise did NOT induce forbearance
reliance was NOT foreseeable
NO injustice by NOT enforcing oral promise
evidence shows contract is void or voidable parol evidence rule--NO statements to alter contract
evidence explains ambiguous language
evidence concerns a prior course of dealing
evidence concerns a prior course of performance
evidence concerns a usage of the trade
evidence fills in the gaps in the contract
evidence corrects an obvious clerical error
evidence introduced to prove fraud, misrepresentation
evidence introduced to prove duress, etc.
equal dignity rule -- contract must be in writing and is NOT
CHAPTER 15 (Third-Party Rights)
assignment of rights NO privity
contract involves personal service
contract involves future rights
contract involves materially altered risks
contract assigns legal rights
assigned legal right is breach of contract
failure to notify obligor of assignment
anti-assignment clause
anti-delegation clause
delegation -- personal service contract
delegation -- performance would materially vary
delegation is declaration of duties NOT assumption of duties
(donee/creditor) beneficiary incidental beneficiary
REMEDIES
compensatory damages NO mitigation of damages
consequential damages NO reason to know of special damages
damages NOT foreseeable
rescission & restitution NO material breach, fraud, mistake, duress, or …
plaintiff has NOT made restitution
goods/property has been consumed
cash equivalent
inadequate notice of rescission
quasi-contractual recovery NO unjust enrichment
NO irreparable injury
injunction/specific performance legal remedy IS adequate
goods NOT unique
NO irreparable injury
liquidated damages tantamount to (excessive) penalty damages
actual damages NOT difficult to determine
punitive damages generally NOT recoverable in contracts cases
reformation
nominal
CHAPTER 14 Statute of Frauds
ONLY contract to construct/insure real property statute of frauds
ONLY implied (NOT express) easement
part-performance exception (land)
main-purpose (leading object) exception (guaranty) main purpose is NOT pecuniary benefit to guarantor
executed NOT executory (one-year rule)
guarantor is NOT primary benefactor
promissory estoppel
promise did NOT induce forbearance
reliance was NOT foreseeable
NO injustice by NOT enforcing oral promise
evidence shows contract is void or voidable parol evidence rule--NO statements to alter contract
evidence explains ambiguous language
evidence concerns a prior course of dealing
evidence concerns a prior course of performance
evidence concerns a usage of the trade
evidence fills in the gaps in the contract
evidence corrects an obvious clerical error
evidence introduced to prove fraud, misrepresentation
evidence introduced to prove duress, etc.
equal dignity rule -- contract must be in writing and is NOT
CHAPTER 15 (Third-Party Rights)
assignment of rights NO privity
contract involves personal service
contract involves future rights
contract involves materially altered risks
contract assigns legal rights
assigned legal right is breach of contract
failure to notify obligor of assignment
anti-assignment clause
anti-delegation clause
delegation -- personal service contract
delegation -- performance would materially vary
delegation is declaration of duties NOT assumption of duties
(donee/creditor) beneficiary incidental beneficiary
REMEDIES
compensatory damages NO mitigation of damages
consequential damages NO reason to know of special damages
damages NOT foreseeable
rescission & restitution NO material breach, fraud, mistake, duress, or …
plaintiff has NOT made restitution
goods/property has been consumed
cash equivalent
inadequate notice of rescission
quasi-contractual recovery NO unjust enrichment
NO irreparable injury
injunction/specific performance legal remedy IS adequate
goods NOT unique
NO irreparable injury
liquidated damages tantamount to (excessive) penalty damages
actual damages NOT difficult to determine
punitive damages generally NOT recoverable in contracts cases
reformation
nominal
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