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CONTRACTS OUTLINE Review on Defenses so far: *One of the biggest thing that we get tested on is issue spotting So look for the following in the fact pattern and then relate them to the main defense (1) Illegality/Public Policy a. To uphold the integrity of the court b. Protect society c. Looking @ the substance/terms of contract (2) Capacity a. To protect people who lack the ability to understand the contract b. Status (3) Duress a. Protecting people who have been threatened b. Behavior (4) Undue Influence a. Relationship of trust b. Status and Behavior The main goal of these defenses is to protect vulnerable individuals from making contractual decisions that they may not have the ability or awareness to make. Illegality and Public Policy Illegality – contract that violates statute Public Policy – contract violates public policy § 178 – Illegal contracts are unenforceable (1) A promise or term is unenforceable on grounds of public policy if legislation provides that it is unenforceable ( ILLEGALITY) or the interest in its enforcement is clearly outweighed in the circumstances by a public policy ( PUBLIC POLICY) against the enforcement of such terms (2) In weighing the interest in the enforcement of a term, account is taken of a. The parties’ justified expectations b. Any forfeiture that would result if enforcement were denied, and c. Any special public interest in the enforcement of the particular term (3) In weighing a public policy against enforcement of a term, account is taken of a. The strength of that policy as manifested by legislation or judicial decisions b. The likelihood that a refusal to enforce the term will further that policy c. The seriousness of any misconduct involved and the extent to which it is deliberate, and d. The directness of the connection between the misconduct and the term 1
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AC v. CB Issue: - Whether the parent’s sexual activities affect the child Rule: - A parent may enter into an agreement with another person concerning the custody of a child - Agreements between parents and others concerning children as subject to judicial modification when such modification is in the best interests of the child o Best interests of the child determinations are made on the basis of evidence before the court o Whether visitation would be against the best interest of the child is a factual determination that must be made on the evidence Analysis: - the Petitioner’s sexual orientation, standing alone, is not a permissible basis for the denial of shared custody or visitation o Sexual orientation does not automatically render the person unfit to have custody of children Conclusion: - Remanded to the district court Lack of Capacity: Children ****Minors are considered to lack the capacity to contract b/c of their vulnerability and the fact that they just may not understand.**** Capacity – looks just at the groups of people who do not have the ability to protect themselves.
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