Bus Law C - 12

quantum merit

"as much as he deserves" a common law principle on which fees are based. the promise by the patient to pay the doctor as much as he or she deserves for labor

specific performance (equitable remedy)

-a decree from a court ordering a contracting party to carry out the promises made in a contract -the courts order SP only when the subject matter of a contract is unique or rare

accord and satisfaction

-a new agreement resulting from a bona-fide dispute between the parties as to the terms of their original agreement -the mutual agreement to the new terms is the accord -performance of the accord is the satisfaction -the accord is not binding until the satisfaction has been made

restrictions on personal and professional service contracts

-a party may not delegate the duties of a personal or professional nature. -musicians or artists could not delegate their services to someone else because they are chosen for their ability or artistic talent (personal) - doctors, lawyers, accountants, ministers are selected for their special abilities (professional)

compensatory damages

-a sum of money equal to the real financial loss suffered by an injured party. also called actual damages -actual damages

intended beneficiary

-a third party in whose favor a contract is made -are in privity or a mutual relationship to the same rights of property

donee beneficiary

-a third party who provides no consideration for the benefits received and who owes the contracting parties no legal duty -insurance beneficiaries

form of assignment

-assignment may be accomplished through written, oral or implied agreements between the assignor and the assignee -parties to the assignment must observe the requirement provided by the equal dignities rule

restrictions imposed by law

-assignments in special circumstances may be restricted by law or declared void because it is contrary to public policy. -members of the armed services may not assign any part of their pay except to a spouse or family member

tender of payment

-is presenting the money to the seller at the agreed time. -it is important to make tender even if one knows that the other party is not going to perform the contract -it tests the other parties readiness and willingness to perform

consequential damages

-losses that do not flow directly from an act but only from some of the consequences or results of the act -result indirectly from the breach because of special circumstances

restrictions on assignments

-on personal and professional contracts -imposed by original contract -imposed by law -employment contracts are not assignable

operation of law

-some law that causes the parties to be discharged by their obligations -bankruptcy or statutes of limitations

construction breaches

1. Before Performance has begun: Contractor can recover profits 2. During Performance: Contractor can recover profits plus costs incurred 3. After Performance: Contractor can recover the entire contract price plus interest

tender of performance

An offer to do what one has agreed to do under the terms of a contract.

condition concurrent

a condition that requires both parties to perform at the same time

condition subsequent

a condition where the parties agree that the contract will be terminated depending on a prescribed event occurring or not occurring (super bowl)

injunction

a court order preventing someone from performing a specific act

commercial impracticability

a doctrine under which the courts may excuse the performance of one party to a contract because an unforeseen and very SEVERE HARDSHIP has arisen that would place an enormous amount of hardship on that party

general release

a document expressing the intent of a creditor to release a debtor from obligations to an existing and valid debt

misrepresentation

a false statement innocently made by one party to a contract with no intent to deceive

assignor

a person who assigns rights or delegates duties under the assignment

third parties

a person who in some way may be affected by a contract but who is not one of the contracting parties

termination by terms of the contract

a professional athlete my contract with management that the agreement will be terminated if for any reason the player becomes either physically or mentally incapable

warranty

a promise, statement or other representation that a thing has certain qualities

actual damages

a sum of money equal to the real financial loss suffered by an injured party. also called compensatory damages

beneficiary

a third party receiving benefits from a contract made between two other parties

third party beneficiary

a third party receiving benefits from a contract made by others

outside party

a third party that is at times given benefits from a contract made by two or more other parties

fraudulent conveyance

a transfer of property with the intent to defraud creditors

fraud

a wrongful statement , action, or concealment pertinent to the subject matter of a contract knowingly made to damage the other party

condition precedent

an act or promise that must take place or be fulfilled before the other party is obligated to perform his or her part of the agreement.

notice of assignment

an assignment is valid at the time it is made, as a measure of protection against subsequent assignments, the assignee should give notice of the assignment to the obligor

tender of payment

an offer by the buyer of goods to turn the money over to the seller

tender of performance

an offer to do what one has agreed to do under the terms of a contract.

tender

an offer to turn goods over to a buyer

incidental beneficiary

an outside party for whose benefit a contract was not made but who would substantially benefit if the agreement were performed according to its terms and conditions

creditor beneficiary

an outside party to whom one or both contracting parties owe a continuing debt of obligation arising from a contract

mutual rescission

both parties to a contract agree to rescind the contract and return to the other any consideration already received or pay for any services or materials already rendered

fraudulent

cheating, deceitful, deception, swindle

speculative damages

damage computed on losses that have not actually been suffered and that cannot be proved; they are based entirely on an expectation of losses that might be suffered from a breach; the courts do not allow speculative damages

liquidated damages

damages agreed to by the parties to a contract in the event of a breach

incidental damages

damages awarded for losses indirectly, but closely, attributed to a breach to cover any expenses paid out by an innocent party to prevent further loss

punitive damages

damages in excess of actual losses suffered by the plaintiff awarded as a measure of punishment for the defendants wrongful act. also called exemplary damages

exemplary damages

damages in excess of actual losses suffered by the plaintiff awarded as a measure of punishment for the defendants wrongful act. also called punitive damages

warranties to the obligor

if the assignor delegates to an assignee duties owed the obligor, there is an implied warranty that the duties delegated will be carried out in a complete and satisfactory manner

insurance beneficiary

insurance policies ensure that after a loss proceeds will go to the beneficiary

discharge by agreement

means that people can end a contract by mutual agreement

injunction relief (equitable remedy)

no damages, sought because class was treated alike

equitable remedies

non-monetary damages awarded for breach of contract when monetary damages would be inadequate or impracticable

anticipatory breach

occurs when a party to a contract either expresses or clearly implies an intention not to perform the contract even before being required to act. also called constructive breach.

assignment

one of the parties transfers rights or interests under a contract to another person

impossibility

performance of the contract is rendered impossible by some event or condition not reasonably foreseeable at the time the contract was formed ("Act of God")

repudiation

refusal to acknowledge or pay a debt or honor a contract (especially by public authorities)

frustration-of-purpose doctrine

releases a party from a contractual obligation when performing the obligations would be thoroughly impractical and senseless - example when 911 happened, New Years was cancelled at times square. no need for hotel room over-looking times square

obligor

remaining party to the original contract

deliberate breach of contract

results when one of the parties fails to do what was agreed to under the terms of the contract

restrictions imposed by original contract

some courts have held that a restriction against the assignment of a debt owed by the obligor robs the assignor of a property right guaranteed by law and would be contrary to public policy

warranties to the assignee

the assignor is bound by an implied warranty that the obligor will respect the assignment and make the performance, as required by the original agreement between the assignor and the obligor

liabilities and warranties of the assignor

the assignor is obligated to any express and implied warranties that serve to protect either the assignee or the obligator

consideration

the mutual promise to exchange benefits and detriments between parties

assignee

the outside third party

most contracts are discharged by performance

the parties do what they agreed to do under the terms of the contract

novation

the parties to a contract mutually agree, to replace one of the parties with a new one

privity

the relationship that exists between two parties of a contract giving each a recognized interest in the subject matter of the contract so that they are bound to the contract

termination by waiver

the situation that exists when a party to a contract with the right to complain of the other party's unsatisfactory performance or nonperformance fails to complain

complete performance

the situation that exists when both parties to a contract have fully accomplished every term, condition, and promise to which they agreed.

satisfactory performance

the situation that exists when either personal taste or objective standards determine the contracting parties have performed their contractual duties according to the agreement.

performance

the situation that exists when the parties to a contract have done what they have agreed to do

substantial performance

the situation that results when a party to a contract, in good faith, executes all the promised terms and conditions of the contract with the exception of minor details that do not affect the real intent of their agreement.

reasonable time

the time that may conveniently be required to do the task that is to be done, with regard to attending circumstances

assignment

the transfer of a contract right from one person to another

delegation

the transfer of a contractual duty

rights and duties of the assignee

they are the same by those previously held by the assigner under the original contract. it is fair to say that the assignee "steps into the shoes"of the assignor. claims the assignor had against the obligor now belong to the assignee

nominal damages

token damages awarded to parties who have experienced an injury to their legal rights but no actual loss

abandonment of contractual obligations

when a party to a contract stops performance once it has begun (breach)

equitable remedies

when money in the form of damages is not enough to provide a fair and just award to the injured party, the court may grant this...a court compels the breaching party to perform an act or refrain from an act

discharge by breach of contract

when there is a breech of contract, the injured party has the right to remedy in court

Death

will cancel only a personal contract