FLOWCHART FOR EXAMS ISSUE 1) Rule 2) Authority 3) Apply to Facts / Contrast/Analyze 4) Conclude What does client want? K Compensation Fix/alter K Performance FIND THE CONTRACT AND OBLIGATIONS DEFENSES and time period for basis of claim Formation Fraud PRE Mistake Common or Unilateral PRE – Invitation to treat Incapacity PRE Offer / acceptance Duress PRE Intention to create legal relations Unconscionability PRE Certainty of terms Undue Influence PRE Primary & secondary obligations Misrepresentation Oper / Neg / Fraud PRE – Bilateral/unilateral K Breach DURING Contract A/B Limitation Period DURING Parties Frustration DURING Illegality BOTH Privity 3rd party involved? – FIND THE REMEDY Period Void Formation, Mistake, Illegality, incapacity, duress, non est Price factum, frustration Notice sufficient? – Voidable weaker party doctrines duress, misrepr, Enforceability unconscionability, incapacity Seal / Consideration Unenforceable Illegaility, privity, consideration FIND THE BREACH Alter K severance, rectification (illegaility, uncon) Certainty of terms Common Law: Failure of consideration Repudiation Election? Time passed? Implied terms Rescission misrepresentation Damages for breach: Compensatory Were the terms written vs oral Expectation Interest Parol evidence rule invoked Reliance Interest Breach Restitution Interest Repudiatory breach Liquidated damages stated in K Condition or Intermediate term Deposit Forfeiture Exclusion/limitation clause Considerations: Was there notice (signature) Mitigation Does the clause even apply? Quantification Problems Is it unconscionable to apply to clause? Remoteness Weaker party? Duress? Equitable Keep K Alive: – Does the clause operate unfairly in the Rectification Mistake, misrepr context of the actual breach? Injunction Is the clause contrary to policy”? “public Specific Performance property, CL inadequate (relates to formation of K not subsequent Equitable - K NOT events) Equitable Damages Is breach fundamental? Restitution unjust enrichment, K void and need Good Faith compensation for what already happened Challenge Performance of Obligations Tort (deceit, negligent misrepresentation) Waiver Estoppel Frustration Impossibility Substantial performance Anticipatory Breach
FLOWCHART FOR EXAMS ISSUE 1) Rule 2) Authority 3) Apply to Facts / Contrast/Analyze 4) Conclude What does client want? K Compensation Fix/alter K Performance FIND THE CONTRACT AND OBLIGATIONS Formation Invitation to treat Offer / acceptance Intention to create legal relations Certainty of terms Primary & secondary obligations Bilateral/unilateral K Contract A/B Parties Privity – 3rd party involved? Period Price Notice – sufficient? Enforceability Seal / Consideration DEFENSES and time period for basis of claim Fraud PRE Mistake – Common or Unilateral PRE Incapacity PRE Duress PRE Unconscionability PRE Undue Influence PRE Misrepresentation – Oper / Neg / Fraud PRE Breach DURING Limitation Period DURING Frustration DURING Illegality BOTH FIND THE REMEDY Void Formation, Mistake, Illegality, incapacity, duress, non est factum, frustration Voidable weaker party doctrines duress, misrepr, unconscionability, incapacity Unenforceable Illegaility, privity, consideration Alter K severance, rectification (illegaility, uncon) Common Law: Repudiation Election? Time passed? Rescission misrepresentation Damages for breach: Compensatory Expectation Interest Reliance Interest Restitution Interest Liquidated damages stated in K Deposit Forfeiture Considerations: Mitigation Quantification Problems Remoteness Equitable – Keep K Alive: Rectification Mistake, misrepr Injunction Specific Performance property, CL inadequate Equitable - K NOT Equitable Damages Restitution unjust enrichment, K void and need compensation for what already happened Tort (deceit, negligent misrepresentation) FIND THE BREACH Certainty of terms Failure of consideration Implied terms Were the terms written vs oral Parol evidence rule invoked Breach Repudiatory breach Condition or Intermediate term Exclusion/limitation clause Was there notice (signature) Does the clause even apply? Is it unconscionable to apply to clause? Weaker party? Duress? Does the clause operate unfairly in the context of the actual breach? Is the clause contrary to “public policy”? (relates to formation of K not subsequent events) Is breach fundamental? Good Faith Challenge Performance of Obligations Waiver Estoppel Frustration Impossibility Substantial performance Anticipatory Breach