Contracts

A remedy where the court orders the breaching party to perform the contract.

Real estate is considered unique, so contracts involving real property are typically enforceable by specific performance.

A remedy when no valid contract exists, but one party benefited unfairly.

Places the non-breaching party in the position they would have been in if there had never been a contract.

Returning a benefit conferred to prevent unjust enrichment.

The non-breaching party's duty to minimize damages after a breach.

Taking reasonable actions to avoid further losses after a contract breach.

Failing to mitigate damages may reduce the amount recoverable.

Transferring duties to another party; does not relieve the delegating party of their obligations.

The delegating party remains liable even after delegation, unless there is a novation.

A delegatee is only liable to the delegator if they received consideration from the delegator.

Duties are generally delegable unless prohibited by contract language, special skills are required, or the performing party has a special reputation.

An agreement where a new party replaces an original party, transferring all rights and obligations.

Assignment is a transfer of rights/benefits. Delegation is a transfer of duties/burdens.

A later assignment may breach the contract, but the Assignee can still enforce it if they didn't know of the prohibition.

A later assignment breaches the contract, creating no rights for the Assignee; the assignment is void.

An assignment cannot substantially change the duties of the Obligor.

After a valid assignment, the Assignee can sue the Obligor for performance and can sue the Assignor for wrongful revocation. Assignor is not liable if the Obligor can't perform.

The Obligor has the same defenses against the Assignee as they would have had against the Assignor.

A party (Delegator) transfers duties to a third party (Delegatee). The Delegator remains liable.

Consent is not required for a valid delegation. But if consent is given by all parties, it becomes a novation.

Acceptance can be indicated by silence if the offeree has previously agreed that silence constitutes acceptance.

Consideration is a 'bargained-for exchange' or a 'legal detriment' that must exist on both sides of a contract.

In sales, the seller must deliver goods that conform perfectly to the contract. If not, the buyer can reject them.

Courts generally don't assess if consideration is of equal value, as long as some consideration exists.

When a party declares they will not perform their contractual duties before the performance is due.

The non-breaching party is excused from performing and may claim damages.

Consideration requires either performance/forbearance or a promise to perform/forbear.

Promising to do something one is not obligated to do, or refraining from something one has the right to do provides consideration.

If retracted before the other party materially changes position, the non-breaching party must still perform.

Demand assurance if anticipatory repudiation is retracted.

Past consideration doesn't count as valid consideration. The act must be in exchange for the promise.

Parties mutually agree to end a contract, releasing each other from obligations.

At common law, a pre-existing legal or statutory duty does not qualify as consideration.

Similar to rescission, but occurs before the performing of the contract.

Work on a contract has begun, but the parties decide to cancel the contract.

An agreement to accept different performance than originally agreed upon.

The completion of the new performance agreed to in an accord.

The original obligation is suspended until the accord is either satisfied or breached.

The original party is released from their obligations under the contract.

All original parties and the new party must consent

An agreement formed either verbally or through writing (the promises are formed by language).

Yes, it is a set of promises that is legally enforceable by the parties. If the party promising to perform fails to keep the promise (a breach), the law will provide a remedy to the non-breaching party

Yes. Most states say no, but NN says yes.

An agreement that is at least partially based on conduct or actions (Example: A Haircut)

When a party accepts an offer by performing a stipulated act. There is an exchange of an act for a promise. Example:P loses his dog. P places an advertisement in the newspaper that offers a reward for the return of his lost dog. Acceptance of this contract is made by finding the dog and returning it to P. P will then pay the reward in exchange

When a party accepts an offer by promising to do a stipulated act. There is an exchange of promises. Example: P promises to pay X, a pet detective, $100.00 in return for X’s promise to search one week for his missing dog

This is formed when there is no real contract at all, but one party has conferred a benefit on another party. This is utilized as an equitable remedy to avoid “unjustly enriching” the other party. The party obtaining the benefit must pay the other party the value of the benefit conferred (an amount equal to the unjust enrichment). Example: is hired to paint X’s house. Instead of painting X’s house. P mistakenly begins to paint D’s house. D sees P painting his house and, since his house needs repainting, D does not notify P of his mistake. Thus, P has conferred a benefit on D and P reasonably expects to be paid for his efforts. D would realize unjust enrichment if P was not compensated for painting D’s house.This is formed to prevent D from realizing unjust enrichment.

Common law. Generally, you will apply the common law of contracts, unless it is a sale of “goods” situation.

Article 2 of the U.C.C. applies to contracts that primarily concern sales of “goods

Depends on most important part of K. If services most important, then common law. If goods, then Article 2 of the UCC. Do the "but for" test.

The Rules of Ethics

1. Competent parties
2. Meeting of the minds/mutual assent (offer and acceptance)
3. Sufficent consideration 4)Must not be impossible to perform (unless risk of impossibility is assumed)
4. Must not be against public policy

Offeror states a promise that is definite and certain in its terms and that is communicated to the offeree.

1. Lack of Capacity, 2) Against Public Policy, 3) Illegality, 4) Unconscionability, 5 ) Fraud, 6) Durress, 7) Mistake, 8) Statute of Frauds

Whether a reasonable person in the offeree's position would belive their assent creates a K. Bond language and surrounding words and conduct are important. Look at custom of the indicustry, degree of definiiteness, and certainty of terms. Pay attention to past amount of good/services provided when it comes to if it would be considered to be reasonable.

1. Must always state quantity (specific number, service provided, buyers requirment or sellers output, exclusivity)
2. Enough essential terms should be given to make it enforceable

1. Price of property, 2) Description of the land

No.

Adds generally not offers. Unless, to be an offer the advertisment must be:

1. Specific to quantity
2. Specific to who may acccept

Not an offer/K. Look for words like "Fair", Appropriate", or "Good"

1. Lapse of time
2. Revocation (Offeree must know about the revocation. In mail, revo must be received,if accepted, can't be revoked. Typically must be in same way offer was made)
3. Rejection (Clearly rejects or, makes counteroffer) 4)Termination by operation of law (death or incapacity prior to acceptance, destruction of subject mater of K, supervening illegality)

1. Option K. Offerror agrees to keep offer in exchange for consideration
2. Under U.C.C. offeror may make a "firm offer" that stays open for 3 months if in writing, has a signed primise to keep open, and involves a transaction where one party is a merchant
3. Detrimental reliance by offeree that was reasonable foreseeable

Words ot conduct of the offeree that clearly rejects the offer.

Yes, but a mere inquiry about the offer is not.

Acceptance requirees an oferee who has the power to accept, unequivocal terms of acceptance, and communication of the acceptance.

Yes. Ex: I offer $10 to you to start mowing my lawn. You start mowing the lawn

No. Completion of performance by the offeree is required. Ex: I put a sign on telephone pole offering $10 for return of my lost dog.

If an offer is made by mail, mailed acceptance is effective when posted unless:

1. Offer states acceptance should be made another way
2. The offeree accepts, then rejects 2.5) Offeree rejects, then accepts, acceptance arrives first
3. Option deadline given

Yes

A bargained for exchange or legal detriment on both sides of L. Courts don't concern themselves with adequacy of consideration. "Even a peppercorn will do"

Look at each promise separately and determine if they promised to do something, or refrain from doing something,

No.

No. Under Navajo case law there must be a a delivery accounting for transfer of title.

Yes. Unless the debt is due and undiscputed.

A promise where the promissor has not commited himself in any way, and there is co sonsideration because there is no detrminent to the promissor.

Yes. The release of the claim is a substitute for the consideration.

Occurs when the promisor should reasonably expect a promise to induce action or forbearance by the promisee and which does induce such action or forbearance. The promise will be binding in order to avoid injustice. Elements necessary for Promissory Estoppel: a. Promise; b. Reliance that is; c. detrimental and foreseeable; d. Enforcement is necessary to avoid injustice.

Necessary things like food, clothing, medical care, and shelter.

1. Infants: People less than 21 or 18 (Exceptions for student loans)
2. Mentally diabled
3. Intoxicated persons. If other person knows they are intoxicated it is voidable

No. The Navajo Nation Council has not adopted statute fo frauds, so the normal situations where a K has to be in writing do not apply. A handshake deal, or handing over keys in exchange for money without signing a deed is valid.

A contract may be voidable where the terms of the contract are unfair and beneficial to only one party to the extent that the contract is unconscionable. Test unconscionability at the time the contract was entered into. Usually this argument is used as a defense when one party has greater bargaining power that is unfair for negotiations.

Does not apply on Navajo Nation but in juridctions where it has been adopted, it reuires that a K be written if it is for:

1. Payment of debt
2. IN consideration of marriage (pre-nups) 3)Interests in land
3. K that take over a year to perform
4. Sale of goods over $500 unless exceptions apply

In NN handing over keys or a hanshake is a binding transfer.

terms of the contract are unfair and beneficial to only one party to the extent that the contract is unconscionable. Test unconscionability at the time the contract was entered into. Usually this argument is used as a defense when one party has greater bargaining power that is unfair for negotiations.

K invalid of subject matter of K is illegal and illegality existed prior to for mation of K. Id subject matter is legal but the purpose is illegal the K is only enforceable by party who did not know the illegal purpose.

Personal or physical duress is a basis for voiding an agreement, however economic duress does not provide a basis for voiding an agreement.

Fraud in the factum occurs when a person does not know she is signing a contract; the agreement is void. Fraud in the execution occurs when the person is aware there is a contract, but when the contract is committed to writing, the written version is not the same as the agreed upon oral version. Generally, one party trusts the other to faithfully draft the written document and is betrayed. Fraud in inducement occurs when the person is deceived about the material terms of the contract; thus, the agreement is voidable.

No contract exists when both the parties use a term that is open to at least two (2) reasonable interpretations and each party attaches different meaning to the term; and neither party knows or has reason to know the meaning that the other holds, However, this ambiguity must be as to an essential term, or the formation of the contract will not be defeated.

No contract exists if both parties are mistaken about a basic assumption of fact that materially affects the agreed exchange. However, if the mutual mistake concerns the value of the subject matter or the mistake concerns what the subject matter is worth, then the agreement is still legally enforceable. Generally, courts will not allow a party to avoid a contract if the mistake is only made by one party, except if the other party knew or should have known of the mistake or the mistake is discovered before the other party significantly relies on it.

Words have ibe possible or reasonable meaning and is interpreted according to its plain language. Test is imtent of parties within the four corners of the document.

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Evidence of a prior or contemporaneous agreement (written or oral) cannot be used to vary the terms of a written contract and are inadmissible, when the contract is fully integrated, although some courts will allow limited parole evidence if in practice a fully integrated contract is ambiguous. The contract must be in writing, and the Parole Evidence Rule applies only if the evidence that a party is trying to introduce concerns a prior or contemporaneous negotiation or agreement.

Yes. Under anglo common law The law of contracts includes many standard contract provisions that the law assumes that the parties meant if they did not specify a particular term. If the price term is not specified, for example, the court will use the market price, or the standard rate charged by the company providing a service. When the time of performance is not specified, it is assumed to be “reasonable.”

The Navajo Nation has adopted four (4) of the nine (9) U.C.C. articles (Article 1 Article 2 Article 3 and Article 9). See N.N.C. § 1-101. i. Article 1 is a general article that defines terms utilized in the U.C.C., ii. Article 2 governs the sale of personal property (“goods”), iii. Article 3 deals with negotiable instruments, which includes drafts, business and personal checks, certificates of deposits and promissory notes, iv. Article 9 governs the creation and enforcement of security interests. A security interest is an interest of a creditor in certain property (“collateral”) owned by a debtor.

Yes, through the 4 of the 9 articles of the U.C.C. the Navajo Nation has adopted.

Yes, During the performance of an executory contract, “course of performance” is essentially the understandings of performance that develop by the parties' conduct without objection by the two (2) parties

Yes, Terms of a contract may be found by looking to the past dealings of the contracting parties

Yes, Terms of a contract may be found by looking at the custom and/or usage. This may be a habitual or customary practice which is widespread, and prevails throughout an area or industry; furthermore, usage may be a course of conduct based on a series of actual occurrences.

Pg/ 17. 1:17:18

Whether the covenant is valid or not is determined by the reasonable business need for protection, reasonableness of geographical limitation and reasonableness of time limitation.

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Condition met or excused

Express conditions are those conditions which are created by the language of the contract. Look for phrases such as “if,” “so long as,” “on the condition that,” and “until.” Constructive conditions are conditions created by operation of law and depend on the order of performance Example: If nothing is said about the time of payment, the work must occur before payment. Thus, in a service contract, such as going into the hair salon, you pay the hairstylist after completion of the haircut/service. The work is a constructive condition precedent to the payment performance.

No. Conditional acceptance is a rejection. Mirro image rule. Acceptanc emust mirror offer that was made.

Yes, the parties have agreed to a contract in which the performance is conditional. (not the acceptance being conditional)

If a promiser has an absolute duty to perform, the promiser “breaches” the contract if the duty to perform has not been discharged.

A “material” breach is a breach that actually matters, taken in context. To determine whether a breach is material or minor, look at factors such as: a. The amount of benefit received by the non-breaching party; b. The extent of part performance under the contract; 20 c. Whether the breaching party was negligent or willful in breaching the contract; d. Whether adequate damages can be paid to compensate the non-breaching party; and e. The likelihood that the breaching party will perform the balance of the contract after the breach occurred.

1. Excuse by Failure of Condition. If a party’s duty to perform is conditional and the condition fails, then the party’s duty to perform is excused.
2. Duties under the contract may be discharged by cancellation of the original agreement. 3)Discharge by Release. Duties under a contract may be discharged by a release and/or covenant not to sue. This release must be in writing and supported by new consideration or promissory estoppel.

Navajo Tribe of Indians v. Jones

1. Determine that breach was material not minor (lack of substantial compliamce) throigh analysis of the acts

Lack of perfect tender. If the items they comtracted to buy are not the items, then they are not required to pay.

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Cancellation is the cancellation of a K before any performance begins. Recission occurs after some performance has started, but the parties agrees to rescinf the K which cancels the K. There is no breach for non-performance at that point.

. Generally, an accord (agreement) occurs when the parties to an existing contract agree that they will do something different than originally contracted for, which will extinguish or satisfy the prior existing obligation. The accord suspends the legal enforcement of the prior existing obligation. Satisfaction indicates the accord’s execution or performance. The classic situation for accord and satisfaction is when one party is not pleased with the performance of a contract or there is otherwise some dispute regarding the amount owed, and one party offers the other party something less than the full original contract price. If the other party accepts the partial payment, for example by cashing a check, this is treated as a compromise of the dispute, basically a binding settlement agreement and discharges the obligation to pay the remainder of the money.

a novation is an agreement between the parties to a contract that a new party shall be substituted for one of the original parties. When a novation occurs, the original party that was replaced is excused from performance under the contract. All parties must agree to a novation for it to be valid.

Under common law, performance of a contract is not excused after the death of a party, unless the contract was for the performance of a specialized service by the person who died. If the contract was for the performance of a service that could be performed by anyone, then it is likely that the contract performance will not be excused. The contracts are obligations of the estate, though, and will not pass down to the heirs if there are insufficient assets in the estate to satisfy them.

Yes/ Not foreseeable

Depends on who carreid the risk of loss.

In this case, an unforeseen event occurs after formation of the contract that does not affect the ability of the parties to perform but does eliminate the purpose for the performance.

The standard measure of damages in a contract dispute is the expectancy of the parties, “the parties are entitled to the benefit of their bargain.” plaintiff bears the burden of actually proving damages as a question of fact.

Damages which are given in order to punish the defendant for breach. Punitive damages are not typically given in contract cases, unless the contract being breached is for insurance, and then the breach of contract is treated as a tort.

Token damage awarded where a breach is shown, but the Plaintiff has not shown an actual loss.

Damages that the parties agree to in the event of a breach, at the outset of the contract. Liquidated damages are only enforceable if they are a reasonable estimate of actual damages and cannot be used as a penalty clause

Equitable remedy, which is granted if the legal remedy of damages is inadequate. remedy is allowed only when the subject matter of the contract is rare or unique. Real estate is “unique” by definition, so a contract involving real property is always enforceable by specific performance unless the parties agree otherwise.

Instead of placing the nonbreaching party in the position he would have been in if the contract had never been breached, it places the non-breaching party in the position he would have been in if there had never been a contract. Restitution is also often used as an alternative remedy because it is sometimes much easier to calculate than expectancy.

The non-breaching party has a duty in most jurisdictions to mitigate the damages, which means the non-breaching party must take affirmative action to minimize the damages and cannot sit by and allow the damages to increase in amount.

When identifying third-party beneficiary problems, look for two parties that are contracting with the intent of benefitting a third party. The third party is not a party to the contract, but is generally able to enforce the contract others made for his/her benefit. If the third-party beneficiary knows of the contract or has agreed to the contract, his/her rights as a beneficiary of the contract have vested and the contract cannot be cancelled or modified without his/her consent unless the contract provides otherwise. Before vesting, the promisee and promisor are able to change or rescind the beneficiary’s rights under the contract.

No. See Interestingly, restitution is also the most common English translation of the word nalyeeh, but it may not be appropriate in this context. Note: Nalyeeh is a paying of restitution to the injured party. See In re: Estate of Benally v. Navajo Nation, 5 Nav. R. 209, 212 (WR Dist. Ct. 1986).

A beneficiary with contractual rights. Often identified in K, receives performance directly, ir has a relationship with promisee that indicated intent to benefit.

No. To identify looks to see if they were not identifed in K, don't receive performance directly, and don't have rlationship with promisee.

An “assignment” is a contract under which the parties later transfer rights, property, or interest under that contract to a third party. Generally, consideration is not required for an assignment to be valid.

1. Assignor: Party to K who later transfer rights, property or interest to a third party
2. Assignee: The party that was not a part of the original contract and obtains the right to enforce the contract because of the assignment.
3. Obligor: The remaining party to the K

ava jo Case Law. An Assignor may not shift his liability to the Assignee, however, this does not mean the Assignor must personally perform all the duties and obligations of the contract. He may delegate the performance of his obligations to another where that party is capable of performing the obligations. General Electric Credit Co. v. Vandever,

Prohibition. If the language of the contract prohibits assignments, a later assignment of the contract may be a breach by the Assignor, but the Assignee may still enforce the contract for his/her performance under the contract as long as the Assignee does not know of the prohibition of assignments. b. Invalidation. If the language of the contract invalidates assignments, a later assignment of the contract would be a breach by the Assignor and would create no rights in the Assignee. The assignment is void, as the language of invalidation takes away the right to assign and the power to assign. c. Common Law. Under the common law, an assignment may not substantially change the duties of the Obligor.

After a valid assignment, the Assignee can sue the Obligor for performance under the contract. Furthermore, the Assignee can sue the Assignor for wrongfully revoking an irrevocable assignment situation. Yet, the Assignor is not liable to the Assignee if the Obligor cannot perform.

Delegation is when a party to a contract (Delegator) transfers his/her duties or burdens under the contract to a third party (Delegatee) who was not a party to the original contract. Compare a delegation to an assignment: An assignment is the transfer by a contracting party of his rights or benefits under the contract to an outside party; it is not a transfer of duties or burdens. Furthermore, in a delegation the Delegator remains liable under the contract, unlike the Assignor in the case of an assignment

Consideration is not required for a delegation. However, the party that is delegated the duties and burdens under the contract (Delegatee) has no legal obligation unless consideration is given.

When there is language that prohibits delegation or assignments, special skills are required under the contract, or the party to perform under the contract has a special reputation/status.

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