GENUINENESS OF ASSENT 4310-4315 Show
����� A party who demonstrates that he or she did not genuinely assent to the terms of a contract may avoid the contract. Genuine assent may be lacking due to mistake, fraudulent misrepresentation, undue influence, or duress. ����� As was true with contracts entered into by persons lacking contractual capacity, contracts lacking genuine assent are voidable, not void. MISTAKE 4314 ����� Mistake: The parties entered into a contract with different understandings of one or more material fact(s) relating to the subject matter of the contract. ����� Unilateral Mistake: A mistake made by one of the contracting parties. Generally, a unilateral mistake will not excuse performance of the contract unless: (1)�� the other party to the contract knew or should have known of the mistake; or (2)�� the mistake is one of mathematics only. ����� Mutual Mistake of Fact: A mistake on the part of both contracting parties as to some material fact. In this case, either party may rescind. ����� Mutual Mistake of Value: If, however, the mutual mistake concerns the future market value or some quality of the object of the contract, the contract can normally be enforced by either party. FRAUDULENT MISREPRESENTATION 4310 ����� When an innocent party consents to a contract with fraudulent terms, he or she may usually avoid the contract, because he or she did not genuinely assent to the fraudulent terms. ����� Elements of Fraudulent Misrepresentation: (1)�� A misrepresentation of material fact was made, (2)�� with the intent to deceive, (3)�� on which the innocent party justifiably relied (4)�� resulting in injury to the innocent party. ����� Most courts do not require proof of an injury to the innocent party if the only remedy sought by the innocent party is rescission of the contract -- that is, returning the parties to their pre-contractual positions. ����� However, in order to recover damages, it is universally held that the innocent party must prove injury as a result of the misrepresentation. TYPES OF MISREPRESENTATIONS ����� Predictions and Expressions of Opinion: Generally, these will not give rise to an actionable misrepresentation, unless the person making the statement has a particular expertise and knows or has reason to know that the listener intends to rely on the statement. ����� Misrepresentation by Conduct: The conduct of a party -�particularly a party�s concealment of some material fact from the other party -- will support a claim of misrepresentation. ����� Misrepresentation of Law: Generally, this will not support a misrepresentation claim, unless the speaker is a member of a profession that is commonly known to require greater knowledge of the law than possessed by the average citizen. ����� Misrepresentation by Silence: Generally, neither party to a contract has a duty to come forward and volunteer facts unless the other party asks. However, the common law recognizes exceptions where a duty to speak exists, for example, where there exists a serious defect or serious risk of injury. In addition, some statutes create duties to speak not otherwise present under common law. INTENT AND RELIANCE ����� Scienter: A defendant acts with the intent to deceive if he: (1)�� knows a statement to be false, (2)�� makes a statement he reasonably believes to false, (3)�� makes a statement recklessly, without regard to its truthfulness or falsity, or (4)�� implies that a statement is made on the basis of information that he does not possess or on some other basis on which it is not, in fact, based. ����� Reliance: The plaintiff must have acted based on (although not necessarily solely based on) the defendant�s misrep�resentation. Moreover, in some jurisdictions, the plaintiff�s reliance on the misrepresentation must be reasonable. OTHER MISREPRESENTATIONS ����� Innocent Misrepresentation: A statement made by a person, believing it to be true, that actually misrepresents some material fact. >���� An innocent misrepresentation results, in essence, in a mutual mistake of fact. Therefore, the only remedy to an injured party is generally rescission of the contract. ����� Negligent Misrepresentation: An untrue statement made by a person believing it to be true who failed to exercise reasonable care in determining its truthfulness and/or failed to use the skill and competence required by her business or profession. UNDUE INFLUENCE AND DURESS 4313 >���� Undue Influence arises from relationships in which one party can influence another party to the point of overcoming the influenced party�s free will. ����� The essential feature of undue influence is that the party being influenced does not, in reality, enter into the contract of his or her own free will. >���� Duress: Forcing a party to enter into a contract because of the fear created by threats. While a party forced to enter into a contract under duress may choose to perform the contract, duress is grounds for cancellation, or rescission. ADHESION CONTRACTS ����� Adhesion Contract: A contract written exclusively by one party (the �dominant� party, usually the seller or creditor) and presented to the other party (the �adhering� party, usually the buyer or borrower) on a �take-it-or-leave-it� basis, such that the adhering party has no opportunity to negotiate the terms of the contract. ����� To avoid enforcement of a contract based on adhesion, the adhering party must show that: (1)� the parties had substantially unequal bargaining positions and (2)�� enforcement against the adhering party would be manifestly unfair or oppressive. When parties to both sides of a contract are mistaken as to the same material fact either party can rescind the contract?When both parties to a contract are mistaken as to the same material fact, the contract cannot be rescinded by either party. To commit fraudulent misrepresentation, one party must intend to mislead another.
Under what circumstances will a court refuse to rescind a contract based on the defense of a mistake?If only one of the parties is mistaken, that party will not be entitled to rescind, unless (1) the non-mistaken party had reason to know of the mistake and it was his fault which caused the mistake, or (2) the effect of the mistake is such that enforcement of the contract would be “unconscionable.” See, Larsen v.
Which of the following is true of a contract when there is a mutual mistake of a material fact by both parties of the contract?One party entered into the contract as a result of sales talk, or "puffery." Which of the following is true when there is a mutual mistake in a contract? When both parties to a contract are mistaken about either a current or a past material fact, either party can rescind the contract.
When both parties to a contract are mistaken as to the same material fact the contract can be rescinded on the basis of?A mistake of fact cannot be unilateral. When both parties to a contract are mistaken about the same material fact, the contract cannot be rescinded. Words or terms in contracts that are subject to more than one reasonable interpretation can lead to bilateral mistakes. A mistake of value warrants contract rescission.
|
Under which of the following circumstances will a court find nondisclosure in a contract as having the same legal affect as an actual false assertion?
zusammenhängende Posts
Urheberrechte © © 2024 IlerngutCOM Inc.
