West Business Law 2
Terms
undefined, object
copy deck
- Is the obligor obligated through K after they assign it away?
- Yes obligor remains obligated to the K
- What is Novation?
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one party is substituted for another party by agreement. The subject matter remains the same but there are new parties
Only way a party can be off the hook for a K - What is the doctrine of substantial performance?
- Under common law, there is no perfection. As long as substantial performance is completed, one must abide by K
- what can one sue under the UCC for non perfection in an agreement?
- One can sue if time/performance/quantity is not perfect. (measured by industry standard)
- What will courts decide if performance is measurable by a standard?
- Personal satisfaction is not valid
- Can someone reject something based on personsal satisfaction?
- No as long as it is good faith it cannot be rejected
- Under UCC & common law, what is the doctrine of anticipatory repudiation?
- someone tells you in advance that they are not going to perform
- How must one treat an anticipatory repudiation?
- Must be treated as a breach immediately. Must seek substitution, sue, etc.
- what can the breacher do if the party does not take immediate action against the breach?
- the breaching party can revive the K
- What is the doctrine of commercial impracticality?
- The promisor has the burden of the promise. BUT if the economic burden is increased by 5 to 10 times than originally contemplated, the party may be set free from the K
- How are actual/compensatory damages measured?
- damages are based on K price. the purpose it to put the non breaching party in same economic position as if there had been no breach.
- What two things must the innocent party do in a actual/compensatory damages case?
- innocent party must mitigate damages and must have reasonable damages
- Under actual/compensatory damages what are incidental damages?
- costs of acquiring substitute performance (storage,transportation, etc)
- Under actual/compensatory damages what are legal & nominal damages?
- if no damages are incurred one can sue for $1 under anger
- Under actual/compensatory damages what are consequential damages?
- based on breach (NOT K PRICE)
- what are the 3 steps in the test of consequential damages?
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forseeability
Wrong doer must be aware of further risk
Must know that breach has its consequences - what are 3 things negotiated in a K?
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-consequential damages
-anti assignment clause
-arbitration clause: whether or not arbitration will be used if breach occurs - when are punitive damages awarded?
- only in fraud. NOT recognized under K law
- what is the liquid damages clause?
- agreement of per day accumulation of money
- List the details of liquid damages?
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-there can be a set amount or fixed amount(cap)
-common with airlines w/ lost luggage - Can someone be foreced to follow a K?
- Generally one cannot be forced to follow a K whether it be a sale of goods or a service but can be sued
- When can someone be forced into following the K?
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when the item being sold is unique or NEARLY unique
REAL ESTATE IS ALWAYS UNIQUE - What is provenance?
- it is the history of an item. found usually when an item belongs to a celebrity - these are unique or nearly unique
- what is an injunction?
- Prohibits someone from working for someone else for a period of time. Only applies for celevrity like status and not ordinary people.
- What is reformation?
- equitable remedy when there is a gross clerical error
- Under common law, what is the election of remedies?
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under COMMON LAW some one has to pick 1 specific remedy
i.e. specific performance but no money - what is the election of remedies under the UCC?
- can have more than one remedy
- Describe difference b/w real and personal property
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Real property is land & everything permanently attached to it.
Personal property is everything that is not real property - List some tangible personal property
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can be touched or moved
(computers, cars, etc)