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Who does the burden of proof fall on
person bringing claim
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what is a courts role in contract cases
to interpret contract
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laches
- a certain claim will only last so long
- this means if you wait too long you might lose your right to make a claim
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contracts must be constructed as a:
whole
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If there is a very clear contradiction, will court enforce the agreement?
No
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order court uses to help make decisions
- handwriting>typed writing>printed material
- written amounts>numerals
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Avoidance of hardship
Judges sometimes make decisions to avoid harships
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Can a third party beneficiary enforce contract?
only if the contract is intended to benefit the third party
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2 kinds of 3rd party beneficiaries
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what is an assignment
- a transfer of rights and obligations
- i.e. Assignment of mortgage - mortgage loan
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Subrogation
- in insurance, policy holder to insurance
- hand over rights to case in return for money for damages
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Contract rights that are not assignable
- if it will materially alter the other party's burden
- personal satisfaction contracts
- personal services contracts
- credit rights
- delegation of duty
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Defenses that are good against the assignor remain good against the
assignee
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Discharge by preformance
- when parties complete their performance and contract is terminated
- parties have no obligation to another anymore
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Tender of preformance
- offer to preform (ready willing and able)
- if you think other party is not going to do their part of the contract, you send this to them to show you are willing and able to do your part
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legal tender
- lawful money
- if you put in contract to be paid by cash you can deny checks
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are checks legal tender?
No
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Is an offer to work off a debt a legal tender
No
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If you put a check in the mail, does it count as paid
Not until it reaches the creditor
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Most common mistake on loans to family/friends
they do not specify date to be paid back
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"Time is of the essence"
dates and deadlines of contract are meant to be strictly enforced
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Adequacy of performance
Substantial, Good-faith performance is deemed enough
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Discharge by agreement
- Anything that the parties in a contract wish to terminate within the contract, then can by signing a mutual release to terminate it
- Can be used to terminate full contract too
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is being broke count as discharge by impossibility
No
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Contracts that death discharges
personal service contracts
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does death discharge death?
No
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Example of temporary impossibility
weather
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Discharge by obligation to law
to certain legal offense, discharge of contract
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What court deals with bankruptcy
Federal Court System
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Bankruptcy
- Debts discharged
- Does not effect secured credit
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Statue of Limitation
- maximum time after an event that legal proceedings based on that event may be initiated
- legal event that can end upending a contract
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Statue of Limitation in New York
6 years
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If someone breeches contract with you, how long do you have to file negligence claim
3 years
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Notice of claim
In NY, 90 days from event to make claim against municipal law potential claim against government
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3 primary breech of contracts
- Money damages
- Rescission
- Specific performance
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Compensatory damages
- damages to compensate victim
- in B/K cases
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punitive damages
- damages used to punish violator
- Not in B/K cases
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"Duty to mitigate damages"
victim is required to keep damages to a minimum
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Rescission
to put parties back to status quo
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Specific performance
- rarely available
- only available when you can convince the court the no money can make up damage
- Requires the other party to so ahead with the agreement
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places where specific performance can be used on
- real estate transaction
- antics
- work of art
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are specific performance orders available for personal service contracts
No
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Reformation
courts have authority to rewrite contracts if there has been a clear mistake
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Liquidated damages
- effect on parties to agree in advance to determine price of damages
- generally enforceable as long as it is not seen to punish breeching party
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Limitation of liability clause
allows parties to reduce or eliminate consequential damages in case of breech of contract
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Commercial paper
Negotiable instrument
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2 kinds of commercial paper
- Promissory note
- ordinary check
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promissory note
promise to pay back
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Payee
person check is intended to
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Drawer
person who issues check
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Drawee Bank
Bank check is written to
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Negotiability
legal transfer of commercial paper that a later part may get better rights down the road
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does reference to collateral affect negotiability
No
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ordered paper
only be claimed by payee or name ordered to get paid
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Barrer paper
cashable to whoever has it if signed on the back or written in print
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Does blank endorsement make a check cashable?
Yes
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Blank Endorsement
print name on back
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Restricted Endorsement
only deposit
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Holder
Person in physical possession of a check which at that time is payable to him as a payee or as barrer paper
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If there is ambiguity b/t joint or alternate, which is then assumed
alternate
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Is a forged endorsement an endorsement
No
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HTHDC
Holder though holder in due course
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Federal Trade Commission rule
HDC will not be allowed in consumers, credit transactions
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Drawers have ____ liability in ordinary check
secondary liability
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Bad check laws- civil
liability to pay the payee
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Bad check laws- criminal
If money not paid within 10 days of bounced check could face criminal charges
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Post-dated check
- when you write a check to be paid at a later check
- Must notify bank to make this valid
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Certified check
- starts off as an ordinary check
- drawee back certifies it, assumes primary liability
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Stale Check
6 months to cash it, after that, bank not liable to cash it
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How many days can a bank cash out a check after death of issuer
10 days
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oral stop notice for check
14 days
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legal stop notice for check
6 months
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If a check is forged and cashed out by drawee back, who is liable
drawee bank
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Dishonor of commercial paper
when drawee bank denies payment
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If you get a unsolicited good in mail, can you keep it for free
Yes
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special endorsement
"paid to the order of"
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