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13-1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin.

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Presentation on theme: "13-1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin."— Presentation transcript:

1 13-1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin

2 13-2 3 Introduction to Contracts The Agreement: Offer The Agreement: Acceptance Consideration Reality of Consent Contracts P A R T

3 13-3 3 Capacity to Contract Illegality Writing Rights of Third Parties Performance and Remedies Contracts P A R T

4 13-4 Reality of Consent PA E TR HC 13 Necessity never made a good bargain. Benjamin Franklin, 1735

5 13-5 Learning Objectives Explain five doctrines that permit people to avoid their contracts because of the absence of real consent and identify elements: –Misrepresentation –Fraud –Mistake –Duress, and –Undue influence

6 13-6 Contracts induced by mistake, fraud, misrepresentation, duress, or undue influence are generally considered to be voidable –Person claiming non-consent has power to rescind (cancel) the contract –Person claiming non-consent must not act in a manner to ratify (affirm) the contract Effect of The Five Doctrines

7 13-7 A misrepresentation is a false statement and may be negligent (innocent) or fraudulent (made with knowledge of falsity and intent to deceive) –Either way, injured party may void (rescind) the contract A person who commits fraud may be liable in tort for damages, including punitive damages Misrepresentation or Fraud?

8 13-8 Innocent or fraudulent misrepresentation: –Defendant made an untrue assertion of fact Includes active concealment or non- disclosure –Fact asserted was material or was fraudulent Fact is material if likely to play significant role in inducing reasonable person to enter the contract –Complaining party entered the contract because of reliance on the assertion Elements

9 13-9 Reliance of complainant was reasonable –Reliance means that person entered the contract because of belief in the assertion Fifth element for fraud: –Injury Elements (cont.)

10 13-10

11 13-11 A mistake is a belief about a fact that is not in accord with the truth –Mistake must relate to facts as they exist at the time the contract is created –Mistake not due to other party’s statements Mutual mistakes may be remedied by reformation Mistake in Contracts

12 13-12 A unilateral mistake will not render a contract unenforceable unless unequal bargaining position existed –Sumerel v. Goodyear Tire & Rubber Company in which plaintiffs attempted to exploit defendants’ mathematical or clerical error and failedSumerel v. Goodyear Tire & Rubber Company Mistake in Contracts

13 13-13 Duress is wrongful threat or act that coerces a person to enter or modify contract –Physical, emotional, or economic harm Given duress, victim must have no reasonable choice but to enter the contract –Cabot Corp. v AVX Corp. Duress

14 13-14 Undue influence involves wrongful pressure exerted on a person during the bargaining process Unlike duress, pressure is exerted through persuasion rather than coercion Key is the weakness of the person “persuaded” Undue Influence

15 13-15

16 13-16 Thought Question Your landlord tells you that you will be evicted from your apartment or your rent must increase by $50 per month because your neighbors complain about your dog. If you agree to the increase, would the contract be void or voidable under the theory of duress?

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