purpose is legal and not against public policy.
•
usury / gambling / licensing (revenue vs. protection) / restraint on trade (ex: non-compete) /
unconscionable / exculpatory clause that protects intentional misconduct / crime
•
may not be void if: justifiable ignorance of facts / members of protected class / withdraw from an illegal
agreement / severable / fraud / duress / undue influence
Characteristics / Enforceability
•
Valid:
all four elements exist (CALC).
enforceable
when no legal defenses.
unenforceable
or
voidable
if legal
defense:
1)
Voluntary Consent
(agreement but ….. no assent so voidable)
•
Unilateral Mistake: material fact (value) by one party / voidable only if other party knew/should have
known of mistake or inadvertent substantial mathematical error
•
Bilateral Mistake: voidable by either party / same mistake of material fact (value)
•
Fraudulent Misrepresentation: voidable / misrep of material fact, intent to deceive, and justifiable
reliance / puffery, silence unless latent defect, and misrep of law not actionable
•
Undue Influence: voidable / special relationship overcomes free will
•
Duress: voidable / force into contract by wrongful or illegal threat
•
Adhesion Contract/Unconscionable: voidable / one sided, standard form, uneven bargaining power
2)
Form
(not in writing when required … so unenforceable)
•
Void: no contract / contract lacking a CALC element
•
Quasi Contract: no contract / ct creates contract as equitable remedy “as if” there was one to prevent unjust
enrichment
•
Voidable: a party has an option of avoiding or enforcing the contract (capacity, voluntary consent)
•
Interpretation:
four corners unless ambiguity then interpret against the drafter and consider extrinsic
evidence (express terms
/ course of performance / course of dealing / custom and usage)
•
Description: bilateral (promise for promise) vs. unilateral (promise for an act)
/ formal (negotiable instrument)
vs. informal / express (words) vs. implied (act) / executed (fully performed) vs. executory (incomplete)
•
Claim Settlement: accord and satisfaction / release / covenant not to sue
You've reached the end of your free preview.
Want to read the whole page?
- Fall '15
