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Unformatted text preview: Ch. 17 –Assent Dr. Deborah Pomeroy BLaw 2361 - S10 REVIEW Ks which are otherwise valid, may be VOIDABLE by one of the parties under one of the “ AVOIDANCE DOCTRINES ” such as lack of capacity and lack of legal assent. Under such doctrines, one of the parties may be allowed to AVOID the K. “Avoidance” means the right to: 1 “ RESCIND” the K. --“ RESCISSION ” VOIDS or CANCELS the K. -- In addition , there must be RESTITUTION , whereby each party is returned to his/her PRE-K position, which means BOTH parties must RETURN everything given in performance of the K-- OR 2. Use the lack of assent as a DEFENSE to enforcement of the K against him/ her by the other party; AND 3. In addition , in FRAUDULENT MISREPRESENTATION cases, the non- assenting party may be able to sue for DAMAGES . A court may find that genuine assent is lacking because of the following: I-- mistake , II-- misrepresentation, III-- undue influence, or duress IV-- unconscionability (which we already looked at in last chapt.) I. MISTAKE A mistake is an erroneous belief about a past or present material fact of a K at the time agreement is made. However, mistakes about future facts, especially the future value of the object of the K, are NOT a basis for avoidance. 1 2 TYPES of Mistakes of Fact: 1. Unilateral Mistake: --A mistake regarding a material term made by one of the contracting parties....
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This note was uploaded on 09/24/2011 for the course BLAW 2361 taught by Professor Bible during the Spring '08 term at Texas State.
- Spring '08
- Business Law