mass distinctions: contracts
Terms
undefined, object
copy deck
- definition of legal consideration
- bargained for legal benefit or detriment
- preexisting legal duty exception
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promisor's agreement to do more than she honestly and reasonably believes is required
is sufficient consideration for new promise - When debt discharged in bankruptcy, what is effect of part payment of debt?
- Revives the whole debt
- Effect of seal in MA
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conclusive presumption of adequate consideration IF signed, sealed, and delivered
** actual seal not necessary, can recite that are sealedin addition to L.S. after signature
** doesn't satisfy consideration requirement in options contracts - How long do people have to exercise rights under written contract?
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1. as stated in contract
2. if not stated, then a reasonable time restriction is imposed - Illegality of contracts made on sunday
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1. tons of exceptions, including contract for sale or residential real estate made on sunday
2. If no exception, is not effective when made on Sunday. But can be impliedly adopted through subsequent conduct on secular day. - enforceability of contracts that breach the corporate duty of loyalty
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Contract for personal gain of corporate fiduciary
that could cause breach of fiduciary duty of loyalty to corp
are genreally unenforceable as against public policy - At what age can one enter into a contract?
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1. life insurance if 15 or older
2. auto insurance if 16 or older
3. age of majority is 18 - When is oral contract for sale of land enforceable?
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SOF in contract for land is satisfied by performance when all three of following:
1) possession
2) payment
3) improvements - Promise to make a will: requirements
- Is within statute of frauds. Requires writing to be enforceable.
- Oral settlements made in open court: within sof?
- No, sof not applicable
- Clause requriing party to relinquish right to jury trial
- enforceable absent fraud or overreaching
- Clause committing parties to arbitration
- enforceable absent fraud or overreaching
- adhesion contracts
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enforceable unless:
1. unconscionable
2. offensive to public policy or
3. unfair under circumstances - Price unconscionability
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gross disparity of consideration accompanied by other relevant factors
can make a contract unconscionable - Rules on wage assignments in MA
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1. less than 3K must be in writing, approved by employer and spouse of employee, and filed with clerk of city
2) assignment valid for no more than one year
3) must state that 10$/week is exempt from assignment
_____
Same rule for assignments of over 3K except
1) 3/4 of wages are exempt.
2) valid for up to 2 years - anticipatory repudiation
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MA doesn't recognize in non-ucc contracts
Exceptions, will recognize in
* suits for specific performance of conveyance of real estate
* action in quantum meruit
* action for recession
* when anticipatory reputidation accompanied by actual breach - Excuse of conditions by substantial perofrmance
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1. MA requires that all conditions be perfectly performed
2. recovery in quasi-contract if failure not substantial - Can employee recover wages for time worked when employee breaches?
- Yes, unless breach was intentional
- liquidated damages in real estate sales
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Enforced if sum agreed upon represents
a reasonable estimate of the actual damages at the time of contract formation - obligation of good faith
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implied in every contract in massachusetts
requires honest dealing - charitable pledges, when enforceable?
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When oral or written promise:
1) consideration
OR
2) reliance - Can contract modifications be retracted unilaterally?
- No.
- Second acceptance of allegedly defective goods
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Can't revoke if have continued use of allegedly defective goods
This is a second acceptance.
**unless reasonable under the circumstances, then can reject - presumption that vendors are fully informed of product's risks at time of sale
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Violates implied warranty of merchantability if lack of adequate warning
regardless of fault of vendor - Disclaimsers of implied warranties
- Absolutely invalid
- Can contract for consumer goods or manufacture limit remedy to repair?
- Not unless retailer/manufacutere has a repair facility in MA
- Warranties--how far do they extend?
- Extended by statute to "all persons who the manufacturer or seller might reasonably expect to use, consume or be affected by the goods
- may buyer deduct damages from breach from price of goods?
- Yes, upon notifying seller of intent to do so.
- How can atty elicit testiomny from expert?
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1. if personal knowledge, can ask "on basis of info, what is your expert opinion"?
2. if no personal info, msut present question as hypo - On what facts cna expert base opinion
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1. admissible
and
2. customarily relied on by experts in a particular field - Can doctor render opinion on medical issue withotu having examined or treated patient?
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Yes, by statute, if
1) report states doctor's basis ofknowedge - Can experts give opinion on ultimate issue
- No, unless opinoin touches on ultimate issues and will aid jury in making final determination
- Can experts testify that sexual abuse in fact occured?
- No can't give opinion on ultimate issue. Intrude on jury's province to evaluate witness credibility
- polygraph info admissible
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Not in criminal trials
Maybe if can show reliability of test. - scope of cross ex
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Not limtied to direct
Can cross on any relevant matters - Can one impeach own witness?
- Yes, but only by contradiction by prior inconsistent statements
- Must foundation be laid for prior inconsistent statement impeachmetn?
- Only when impeaching own witness
- When permissible to impeach by evidence of prior convictions
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1. when convictions
2. felonies or misdemeanors
3. when against accused, judge balances danger of unfair prejudice against probative value of evidence
4. court can't exclude when offered against non-defendant witness - When is conviction too remote to be admitted?
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fELONy
1. w/in 10 years
2. or if convicted if another crime within 10 years of time of testifying
MISDEMANOR
1. w/in 5 years
2. or if witness convicted of another crime within 5 years of testifying - admissibility of juvenile records
- Not admissible against child for any purposes in any court proceeding
- Can a pardoned person be impeached for that crime?
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Yes unless
1) can show that pardon granted for rehabilitation
and
2) record subsequently sealed - impeachment by specific instances of misconduct
- not allowed in ma
- impeachment by proof of reputation
- Can testify to another's reputation for veracity in business and professional circles and community
- impeachment by opinion
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not allowed in ma
Can't say "in my opinoin" but can give reputation - When is rehabilitation after impeachment allowed in MA?
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Only when first witness impeached with:
past convictions OR
bad reputation for veracity (bad character) - when can error on appeal be based on exclusion of evidence
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only when offer of poof made
after sustained objection by opposing counsel - Do privileges survive death of clietn or patient?
- Yes, bleong to executor
- crime fraud exceptoin
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no atty client privilege if services of lawyer to enable to commit or plan crime that
client knew or reasonably should have known to be a crime or fraud.