Exam 3

All contracts falling under UCC are to be performed under

"good faith"

UCC Statute of Frauds

- A contract for the sale of goods and at $500 or more and a lease contract requiring total payments of $1000 or more is not enforceable unless there is a writing that is signed by the party against whom it is sought to be enforced -the contract is usually not enforceable beyond the quantity stated in the writing, but other terms may be proven in court by oral testimony

discharge by agreement

-discharge by mutual rescission -discharge by novation -discharge by settlement agreement -discharge by accord and satisfaction

Texas Deceptive Trade Practices Act [DPTA]

-laundry list of deceptive practices -can enhance your remedy in ordinary breach of contract/warranty -treble damages -attorney fees -cost of court

Discharge by operation of law

-material alteration of the contract -statutes of limitations -bankruptcy -discharge by impossibility or impractiability of performance

contract provisions limiting remedies

-no damages can be recovered for certain types of breaches -only remedy to breach is replacement, repair or refund of purchase price -one party can seek injunctive relief if the other party breaches contract

material alteration of the contract

-one of the parties makes unilateral changes without consent 1. if there is a material alteration of a written contract without consent, the contract is voidable by the party who was unaware of the change 2. the party unaware of the change has the option of treating the contract either as discharged or as enforceable in accordance with the original terms or with the terms as altered

Equitable Remedies

-recission (an action to undo or terminate a contract--when breach is material and willful) and restitution (to rescind -- return goods, property or funds previously conveyed) -specific performance [will not be granted unless party's legal remedy is inadequate//unique good// WILL NOT usually grant for personal service contracts] -reformation [when parties have imperfectly expressed their agreement in writing // court can rewrite the contract to reflect the parties' true intentions

Offer

1. An agreement sufficient to constitute a contract can exist even if the moment of agreement is formed is not determined 2. open terms -- a contract will not fail for indefiniteness because some terms are left open

A. Implied Warranty of Merchanatability

1. Goods are merchantable if the goods are "reasonably fit" for the ordinary purposes for which they are used 2. In order to be merchantable, the goods must at least: a. be of average, fair, or medium grade quality; b. pass, without objection in the trade or market, for goods of the same description c. be adequately packaged and labeled as provided by the agreement; and d. conform to the affirmations of fact or promise made on the label or contained 3. a merchant seller is liable for breach of the warranty of merchantability, without regard to whether the seller knew of or could have discovered a defect which caused the goods not to be reasonably fit for the ordinary purpose for which they are used 4. sellers can be sued by any foreseeable user of a product for breach of warranty of merchantability without regard to privity of contract

Open Delivery Term

1. When the place of delivery is not specified a. goods are to be delivered at seller's place of business b. if the seller has no place of business, the goods are to be delivered at the seller's residence c. if the goods are at a location other than the seller's place of business and both parties know this, the goods are to be delivered at that location 2. When time for delivery is not specified, the goods are to be delivered within a reasonable time 3. If successive performances are indicated without stating the duration of the relationship, either party may terminate, subject to good faith and reasonable notification 4. if shipping is contemplated, and contract doesn't state arrangements, seller has the right to make good faith reasonable arrangements

Lemon Laws

1. [in addition to UCC remedies] state laws providing remedies to consumers who buy cars that repeatedly [usually 4 times] fail to meet standards or quality and performance 2. buyer may be entitled to a new car, replacement of defective parts, or return of all consideration paid, in addition to attorney's fees 3. binding arbitration is often required

Delegation of Duties

1. a party to a contract may transfer, or delegate, his contractual obligation to perform an an act 2. delegation DOES NOT relieve the delegator [party making the delegation] of the obligation to perform in the event of the delegatee [party to whom the duty has been delegated] fails to perform -- meaning delegator is legally responsible if the delegatee does NOT perform 3. no special form is required to create a valid delegation of duties. The delegator must only express an intention to make the delgation

Assignments

1. a party to the contract [assignor] assigns his rights under the contract to a third party [assignee] 2. the assignor's rights are extinguished upon assignment 3. the assignee may enforce the contract against the other original party [obligor]

incidental beneficiary

1. a person who is to receive an incidental benefit from the performance of a contract may not enforce the contract if there was no intent to confer a benefit upon him 2. courts apply the "reasonable person" standard 3. other factors courts consider: a. whether the performance is rendered directly to the third party b. whether the third party has the right to control the details of a performance c. whether the third party is expressly designated as the beneficiary of the contract

Discharge by Accord and Satisfaction

1. an accord is an executory contract to perform some act in order to satisfy an existing contractual obligation 2. satisfaction is the performance or execution of the accord agreement UNLIQUIDATED DEBT

Basis of Bargain

1. an affirmation or promise becomes the basis of the bargain if it comes at such a time that the buyer could have relied on it when he agreed to the contract 2. The buyer does not have to show that he actually relied upon the affirmation or promise

when the rights of a third-party vest

1. an intended beneficiary has a legal right to enforce the contract against the promisor after the beneficiary's rights vest 2. the third party intended beneficiary's rights vest so that the original contracting parties cannot modify, alter, change, rescind, or terminate the contract when the beneficiary: a. demonstrates manifest assent to the contract b. materially changes his or her position in detrimental reliance on the contract; or c. when conditions for vesting are satisfied 3. If the parties to the contract expressly reserve the right to cancel, rescind, or modify the contract, the intended third party beneficiary is subject to any change, recission, or cancellation

tender of complete performance [already formed contract in the past]

1. an unconditional offer to perform by a party who is ready, willing, and able to do so 2. The tendering party is discharged if his tender is not accepted

TWO EXCEPTIONS TO RULE OF PRIVITY

1. assignments/delegations 2. third party beneficiary contracts

EXCPETIONS to anti-assignment clauses

1. cant prevent assignment of the right to receive funds 2. can't restrict the assignment of the rights to real estate 3. can't prohibit the assignment of negotiable instruments [checks, notes, ect.] 4. can't prohibit the assignment of the right to receive damages from a breach of sale of good contracts

types of damages:

1. compensatory [cover direct losses and costs] 2. consequential [to cover indirect and foreseeable losses] 3. punitive [to punish and deter wrongdoing] 4. nominal [to recognize wrongdoing when no monetary loss is shown]

types of conditions

1. conditions precedent 2. conditions subsequent 3. concurrent conditions

consideration

1. consideration is still required for sales and lease contracts 2. however, consideration is not necessary for a modification of a contract, but modifications still require: a. good faith and b. sometimes must be in writing: i. agreement of the parties provides that any modification must be in writing; or ii. any modification that brings the contract under the Statute of Frauds must be in writing

contracts that require writing

1. contracts involving interests of land 2. the one-year rule 3. collateral promises 4. promises made in consideration of marriage 5. contracts for the sale of goods

EXCEPTIONS: parole evidence is admitted to show

1. contracts subsequently modified 2. the contract was voice or voidable 3. the meaning of ambiguous or vague language 4. the writing is incomplete 5. a prior course of dealings, course of performance, or usage in a trade 6. the contract was subject to orally agreed upon conditions 7. obvious or gross typographical or clerical errors

A merchant is a person who

1. deals in goods of the kind involved in the sales contract 2. holds himself out, because of his occupation, as having knowledge and skills peculiar to the business or goods involved in the transaction 3. employs other people who are merchants to act on his behalf

exceptions to collateral promises

1. if a secondary promise is made to the principal debtor instead of to the creditor, the promise is not within the statute of frauds [does not have to be in writing] 2. main purpose rule exception

Performance to the Satisfaction of Another [construction contracts will never fit]

1. if personal taste, preferences, aesthetics, fancy, or comfort is involved, it is a personal contract 2. if satisfaction relates to operative fitness, marketability, merchantability, or mechanical utility

open price term

1. if the parties intended to from a contract, but did not set a price, the price will be the reasonable price at the TIME OF THE DELIVERY 2. if the buyer or seller is to set the price , he must do so in good faith 3. if the price is not fixed through the fault of one party, the other party may treat the contract as canceled or fix a reasonable price

Time for performance

1. if time for performance is not stated, performance is to be rendered within a reasonable period of time 2. the time requirement must be complied with it parties stipulate that time is of the essence 3. if time for performance is specified, but not vital, performance prior to or within a few days of the stated time satisfies the contract

Discharge by Impossibility or impracticability of performance

1. impossibility 2. temporary impossibility 3. commercial impracticability 4. frustration of purpose

requirements of the statute of frauds

1. must be in writing 2. signed by party to be charged with damages for breach or the party to be sued

EXCEPTIONS for rule between merchants

1. offer expressly limits acceptance to only its terms 2. the terms materially alter offer; or 3. Th offeror objects to the new terms within a reasonable period of time

Open Terms

1. open price term 2. open payment term 3. open delivery term 4. open quantity term

exceptions to the statute of frauds

1. partial performance [see evidence of the deal] 2. admissions [admit to existence of contract in court] 3. promissory estoppel [to permit recovery under an oral contract, which otherwise would be unenforceable because of statute of frauds if: the reliance was foreseeable to the party making the oral promise and if injustice can be avoided by enforcing the promise] 4. special excpetions under UCC [in chapter 20]

Substantial performance

1. performance which does not greatly vary from the performance that is promised in the contract but is slightly less than that which reasonably could be expected 2. if performance is substantial, the other party's duty to perform remains absolute, less damages for the deviation

b. problems that arise if notice of the assignment is not given

1. priority issues [if assignee does not notice 1st able to prove 2. if notice of an assignment is not given, the obligor may continue to render his or her performance to the assignor [original obligee] and the original contract could be discharged by performance without the assignee getting performance

Standard measure

1. sale of goods: (price of contract-market price @ time of delivery) 2. Sale of Land: (Seller breached wants equitable remedy --> specific performance) (buyer: contract price - market price) 3. construction contracts -varies 1. breach by owner: before then recover profits that would have been made // during then recover profits plus costs // after then entire amount plus interest 2. breach by contractor measure of damages is cost of completion 3. breach by both -- courts attempt to strike a fair balance in awarding damages

B. Implied Warranty of Fitness for a Particular Purpose

1. the implied warranty of fitness for a particular purpose is made by a seller who has reason to know [but not necessarily actually knows] the particular use for which the buyer is purchasing the goods and that the buyer relies on the skill and judgment of the seller in selecting suitable goods 2. Implied warranties of fitness for a particular purpose and merchantability may be included in a contract for the sale of goods

3. collateral promises A promise is within the statute of frauds and must be in writing if:

1. the promise is made to the creditor by a person who is not presently liable for the debt or who does not have a present duty to perform [guarantor] 2. the liability of the guarantor is secondary and collateral to that of the principle debtor

general rules about goods and services combined

1. the serving of food and beverages have been treated as contracts for the sale of goods 2. Contracts for specifically manufactured goods is one for goods, NOT services

Discharge by novation *solution to problem with delegation law

1. the third person is substituted for one of the original parties with the consent of the party entitled to receive the performance 2. the original obligation of the prior party is extinguished, and the prior party is discharged *never see word novation in the contract -look for everyone being in the know; bring other party in before delegation and release yourself from liability

*landmark case Jacobs and Young

1920's Kent hires Jacob to build country residence 0asked for factory built, well galvenized, reading manufacture pipes -was not available for consult and builder but in factory-built, ect, but not reading manufacture -kent came back and found out about the substitute and wanted it changed and wouldn't pay else -builder sues kent and the court said it was SUBSTANTIALLY EQUIVALENT -- getting VALUE even if it wasn't exact

exception to lease interest in land

30 day month to month wouldn't need to be in writing

Rule of Privity

A contract is a private agreement and traditionally only the parties to a contract have rights and duties under the contract

Express Warrranties

A. Created by the seller who makes representations concerning the quality, condition, description, or performance potential of the goods 1. The goods will conform to the affirmation or promise of fact which relates to the goods 2. the goods will conform to a description of the goods 3. the goods will conform to a sample or model of the goods B. Basis of Bargain C. Statements of Opinion and Value

Implied Warranties

A. Implied Warranty of Merchantability B. Implied Warranty of Fitness for a Particular Purpose C. Implied Warranty from Prior Dealings or Trade Custom

Overlapping Warranties

A. More than one warranty may be made by a seller in a sales transaction B. If multiple warranties are consistent with each other, a buyer can base an action for breach of warranty against the seller based upon all of the warranties; the warranties are construed to be cumulative C. if multiple warranties are inconsistent, the intention of the parties will determine which will prevail. The following rules are used as guides in order to determine the parties' intentions: 1. Express warranties displace inconsistent implied warranties, except implied warranty of fitness for a particular purpose 2. Samples prevail over inconsistent general descriptions 3. exact or technical specifications prevail over inconsistent general descriptions.

bankruptcy

ALL DEBTS DISCHARGED 1. a discharge in bankruptcy operates as a release of a debtor from most debts and contractual obligations 2. after a decree of discharge in bankruptcy is issued by a bankruptcy court, a partial payment by a debtor will NOT revive the obligation

for alleged intended beneficiary

ASK REASONABLE PERSON FIRST

warranty of title

BROAD [applies to more than goods] A. Good Title B. No Liens C. No Infringements

Who is the promisor?

Courts must determine which party made the promise to the 3P so that the 3P can sue the Promisor directly

statutes of limitations

DEBT IS NOT DISTINGUISHED 1. statutes provide that a person who has a cause of action must bring his action or lawsuit within a specified period of time 2. failure to commence an action or suit within the period of limitation bars access to judicial remedies but does not extinguish a debt or underlying obligation

true or false: Delegation relieves the delegator of the obligation to perform

FALSE Delegation does NOT relieve the delegator of the obligation to perform

true or false: has to be full signature

FALSE does not have to be full signature -- initials, thumb print, x [ect.]

Remember which element throughout offer/agreement of sale of goods?

Good Faith

C. Implied Warranty from Prior Dealings or Trade Custom

If both parties toa sales/lease contract have knowledge of a well-recognized trade custom, the courts will infer that both parties intended for that custom to apply to their contract.

Open Payment Term

If the terms of payment are not specified, payment is due at the time and place at which the buyer is to receive the goods

is seeing a name intent enough to benefit 3P?

NO example: building a house and you really like specific manufacturers and you list them in contract -- but you aren't putting them in the contract to benefit the companies, you are trying to benefit yourself

How to determine third party beneficiary from assignment?

TIMING [at creation of contract -- it is for the benefit of someone else] design a contract to benefit a third party

The Uniform Commercial Code

The UCC is a comprehensive statute; it provides a consistent and integrated framework of rules to deal with all phrases of an entire "commercial transaction for the sale and payment of goods"

Third Party Beneficiary Contracts

The third party beneficiary is a stranger to the contractual relationship of the parties to the contract -The third party beneficiary makes no promises and gives no consideration to the promisor who is to render performance -The intention of the parties to the contract is to confer a benefit upon the third party beneficiary

Anticipatory Repudiation

When one party to a contract is refusing to perform the contract in ADVANCE of performance date refusal to perform before performance is due

How to assignment and delegation differ?

You can delegate duty itself, but not the liability associated with the duty // You can assign all rights.

consequential

[special] foreseeable damages that result from the breach of contract [INDIRECT damages] -- caused by special circumstances beyond the contract itself / flow from consequences or results of breach / for nonbreaching party to recover damages, the breaching party must have known or reason to know that special circumstances would have caused damages

conditions precedent [most common]

a condition precedent is one that must be fulfilled before a party's performance can be required if the condition precedent does not occur, the parties are discharged from their contractual obligations

conditions subsequent

a condition subsequent is one that operates to terminate a party's absolute promise to perform. The occurrence of the conditioning event extinguishes an existing contractual duty, so that the parties can be discharged

express conditions

a condition that is clearly stated and provided for in the contract by the parties

donee beneficiary

a contract is made for the express purpos of giving a gift to a third party donee beneficiary]. The donee beneficiary can enforce the promisee's promise.

admissions

a party admits in court or pleadings that the contract has been formed

warranty

a promise/guarantee of quality or character of a good

conditions

a qualification in a contract based on a possible future event can have one that triggers performance can cause performance to end

Merchant's Firm Offer

a. Offer for the sale of goods made by a merchant b. in which the merchant gives assurance in a signed writing c. that the offer will remain open for the stated period [or if not stated, for a reasonable time] d. no consideration is necessary e. the merchant's firm offer is irrevocably for the period stated [or if not stated, for a reasonable time]

exceptions to the UCC Statute of Frauds

a. Specially manufactured goods b. admissions c. partial performance

Goods Associated with Real Property are governed by the following UCC rules:

a. a contract for the sale of MINERALS or the like is a CONTRACT FOR THE SALE OF GOODS if SEVERANCE is to be made by the SELLER b. A contract for the sale of a STRUCTURE is a contract for THE SALE OF GOODS if SEVERANCE is to be made by the SELLER c. A sale of growing CROPS or TIMBER to be cut is a SALE OF GOODS REGARDLESS of who SEVERS them from the land d. Other "THINGS ATTACHED" to realty but capable of SEVERANCE WITHOUT MATERIAL HARM to the land are considered GOODS REGARDLESS of who SEVERS them from the land

effect of assignments

a. an assignee takes only those rights that the assignor originally had b. an assignee takes the claim subject to all defenses available against the assignor [the original obligee]

temporary impossibility

a. an occurrence or event that makes it temporarily impossible to perform the act in the contract will suspend performance until the impossibility ceases b. when the impossibility ceases, the parties must ordinarily perform the contract c. if the lapse of time and change in circumstances make the contract substantially more burdensome to perform, the parties will be discharged *Gene Autry example

Promise to Ship or Prompt Shipment

a. an offer to buy goods for current or prompt shipment is accepted when the seller promises to ship or promptly ships conforming goods b. if the seller does not promise to ship, but accepts by shipment, the shipment of nonconforming goods constitutes both an acceptance and a breach of contract c. if the seller, however, notifies the buyer that nonconforming goods are being shipped as an accommodation [a favor], the shipment is a counteroffer

What constitutes writing?

a. any order confirmation, invoice, sales slip, check, fax or email or even text messages can be enough b. can be more than a single document

Types of Intended beneficiaries [an intended beneficiary has rights and therefore, may enforce contractual promises, even though not a party to the contract]

a. creditor beneficiary b. donee beneficiary

effect of delegation

a. delegator is not relieved of liability by delegation b. obligee must accept performance from the delgatee unless the duty is one that cannot be delegated

liability of the delegatee -- if the delegatgee fails to perform, the obligee may

a. hold the delegatee liable if the delegatee has made a promise of performance that will directly benefit the obligee b. hold the delegator liable

When the offeree communicates that the offeree intends to accept an offer but adds different or new terms:

a. if offeree's response indicates a definite acceptance of the offer, a contract is formed, even if the acceptance includes additional or different terms

what is the measure of damages?

a. it's the cost to bring the object of the contract into compliance, if the cost is reasonable under the circumstances b. if that cost is unreasonable, then it's the difference between the value of performance rendered and the performance that should have been rendered [leads to zero $ difference]

what must be contained in the writing?

a. memorandum or other writing evidencing the contract need only contain the basic, essential terms of the contract b. contract for the sale of goods -- quantity must be indicated c. other contracts - parties, subject matter, consideration, and any other essential terms must be indicated with reasonable certainty. d. contract for the sale of land - in some states, the writing must contain the price and description of the property

duties that cannot be delegated

a. personal duties that depend upon the skill or talents of the obligor may not be delegated without the assent of the party to whom performance is to be rendered [Taylor swift is supposed to perform at livestock show, she cannot delegate her duty to someone else] b. when special trust has been placed in the obligor, the obligor may not delegate his duties [like a babysitter --> they cannot delegate their duties to someone else] c. when performance by a third party will materially vary from the performance expected by the obligee, duties may not be delegated d. when the contracts expressly prohibits delegation contract includes anti-delegation clause [anti-assignment covers both rights/duties]

EXCEPTIONS to quantity being essential to contract offer

a. requirements contracts b. output contracts

Nonbreaching party in anticipatory repudiation of contract has choices:

a. sue immediately b. contract elsewhere [mitigate damages] c. not full coverage

Written Confirmations Between Merchants:

a. the buyer and seller are both merchants and have entered into an oral agreement b. one of the merchants sends a signed written confirmation to the other c. The written confirmation must indicate the terms of the agreement d. The merchant receiving the confirmation must have reason to know of its contents e. the receiving merchant does not object within ten days after receiving the confirmation; then f. the contract is enforceable against both parties, even though the receiving merchant has not signed anything

rights that cannot be assigned

a. when a statute expressly prohibits an assignment -law usually favors reassignment, workers comp [protects worker], military pension b. the right to receive personal or confidential services may not be assigned without the consent of the person who is to perform the services [the obligor[ -nightclub singer can't be assigned to another nightclub c. a contract right cannot be assigned if the assignment will materially increase or alter the risk of the obligor -assigning to a different business changes d. when the contract prohibits the assignment i. called anti assignment clauses ii. must be reasonable ii. 4 exceptions to anti-assignment clauses

notice of the assignment

although it is not legally necessary to give notice of assignment to an obligor, it is wise to do so

breach of contrach

any non performance of anything in contract

quasi contract - quantum meruit

as much as he deserves

Rule Between Merchants General Rule:

both seller and buyer are merchants, the new or different terms become part of the contract

What contracts are subject to Article 2

contracts for the sale of goods --Article 2 contracts for leases -- Article 2A

2. the one-year rule

contracts that cannot be performed within one year

frustration of purpose

discharged because of unforeseeable event --> PURPOSE contract cannot be attained

mitigation of damages

duty injured party has to reduce damages *rental agreements *employment contracts

acceptance is ____________ when it is _______

effective; sent

liquidated damages clause // [determined, settled or fixed]

enforceable if: 1. when the contract was formed it was clear damages would be difficult to estimate 2. the amount set as damages is reasonable

discharge by mutual rescission

executory on both sides - each given up performance [consideration for valid recission] executed on one side - needs something new/give back for consideration of valid contract

Discharge by performance

full, complete performance in the manner prescribed by the contract discharges the performing party

Assignment of "All Rights"

general wording such as "I assign all my rights in the contract" are usually interpreted to mean an assignment of rights and delegation of duties

Open Quantity Term

generally essential to contract offer

specially manufactured goods

i. a contract for goods to be specially manufactured for a particular buyer ii. when the goods are not suitable for resale in the ordinary course of business and iii. the seller has begun production

Communication of Acceptance

if an offeree to a unilateral contract does not notify the offeror within a reasonable period of time that the offeree is beginning performance, "the offeror may treat the offer as having lapsed before acceptance"

What falls under Article 9?

if credit is being extended to buyers of goods

Rule when Seller or Buyer [or both] is a non merchant:

if either or both of parties are NOT merchants, the new or additional terms are viewed as mere proposals and do NOT become part of the contract - formed under OFFEROR's terms

Means of acceptance

if no method for communication of acceptance is spcified, any reasonable means of communication may be used

main purpose rule exception

if the main purpose or leading objective of the secondary promisor [guarantor] when making the promise to the creditor, is to protect his or her own interest or to secure a personal benefit, an oral promise is enforceable

when will parole evidence not be allowed?

if written instrument is considered to the complete, integrated agreement, final statement of the parties, the court will not allow parties to present parol evidence [no evidence allowed of prior negotiations, prior agreements or oral contemporaneous statements which contradict the writing

implied conditions

implied in fact condition is one that is not expressed by the parties but is understood or inferred from the contract

5. contracts for the sale of goods

in order for a contract for the sale of goods for a price of $500 or more to be enforceable, there must be a writing indicating that a contract was made by the parties and the written agreement must be signed by the party to be charged

impossibility of performance

it is objectively/absolutely can't be done a. death, serious illness, or incapacitation of a party who has to render personal services b. destruction of specific subject matter of a contract c. change in law making performance is illegal

how is a contract treated if a party repudiates a contract?

it is treated as a present material breach contract

A. Good Title

lawful, rightful ownership // lawful right to sell to other

if there is a minor, nonmaterial breach of contract, the breaching party is

liable for damages if the breach is not cured. The nonbreaching party is not discharged and is required to perform

classic third party beneficiary contract

life insurance contract i get the policy to benefit someone else

compensatory

loss of bargain [DIRECT damages} replace what was lost because of the wrong or damage "to make the person whole" a. 2-step process -- was there a contract? did the breach cause damages? b. standard measure

Commercial Impracticability

more subjective than impossibility // an unforeseen event that makes performance substantially more burdensome or costly to perform *wedding venue electricity going out

What is covered in Article 3,4,5

negotiable instruments

a party who totally fails to perform is

not discharged and is liable for damages for breach of contract. The other party, however, is discharged and need not hold himself ready to perform

penalties clause

not enforceable To determine whether a provision is for liquidated damages or for a penalty a court asks 1. At the time the contract was formed, was it apparent that damages would be difficult to estimate in the event of a breach 2. Was the amount set as damages a reasonable estimate of potential damages and not excessive [if either answer is no - the provision will normally not be enforced]

C. No Infringements

only a part of warranty if seller is a merchant // rights of others with intellectual property 1st sale doctrine

What is a sale?

passing of title from a seller to buyer for a price [title = ownership] NOT gifts or bailments

partial performane

payment for the goods or receipt and acceptance of goods by the buyer, to the extent of the performance

a material breach

performance not at least substantial

______ not probability is taken into account in the one-year rule

possibility

creditor beneficiary

promisor promises to pay a debt that promisee owes to a third party [creditor beneficiary]. The creditor beneficiary can enfroce the promisor's promise

punitive

rare / more common in tort /

1. contracts involving interests in land real property includes -- other interests in land include --

real property includes -- land, things attached to land, swimming pool, fencing, minerals other interests in land include -- mortgages, leases and easements [access rights]

B. No Liens

rights of others [creditors that have rights in them]

disclaimer of warranty of title

seller asserts that they are trading only such rights, title, and interest as they have in the goods

If Art 2 does not provide a rule regarding a particular issue, another ______ or ______ will apply

statute; common law

What are goods?

tangible, moveable [moveable in course of business] items of personal property

parol evidence

testimony or other evidence of communications between parties that is not contained in written contract itself

When the Battle of Forms results in conflicting terms is an established contract

the court can strike the terms the parties can't agree on

It is not an acceptance if

the modifications are conditional on the offeror's assent

exception to open terms

the parties must: -the parties intended to make a contract -there is a reasonably certain basis for the court to grant a remedy [QUANTITY]

concurrent conditions

the performance of each party is conditioned or dependent upon the simultaneous performance of the other parties

who must have signed the writing?

the writing must be signed by the party against whom enforcement is sought [or the party charged] or his authorized agent

when does the year begin in one-year rule

the year begins to run from the day after the contract is made and not the date upon which performance is to begin

vest

to take legal effect

what is discharge?

to terminate contractual duties, to be finished with duties, to no longer be required to performed

true or false: even if the performance actually takes more than on year, an oral contract is enforceable as long as performance was possible within one year

true

waiver of breach

under certain circumstances, a nonbreaching party may be willing to accept a defective performance of the contract *the party waiving the breach cannot take later action on it *a waiver by a contracting party will not operate to waive subsequent, additional or future breaches of contract

4. promises made in consideration of marriage

unilateral promises to pay money or give other property in exchange for promises to marry and prenuptial agreements must be in writing in order to be enforceable

Discharge by Settlement Agreement

usually compromise agreement on legal agreement

Warranty Disclaimers

warranties may be excluded, disclaimed, or modified by the parties A. Express Warranties 1. a seller can avoid making any oral express warranties 2. a seller may effectively disclaim those oral express warranties which the seller has made with unambiguous language to that to that effect in written contract for the sale of goods B. Implied Warranties 1. Warranty

Goods and Services Combined:

when a transaction combines a sale of goods and a rendering of services, courts try to determine which factor is predominant

if you do a general sub-lease, are you liable for the sub-lease tenant?

yes, you are not released from the original lease -- just adds someone else in [and you're still held liable]

form of the assignment

you do not need to see traditional consideration with assignee and assignor [not all elements of contract are here]