Genuine Assent. Recognize when genuine assent is not present. Identify the two key elements in...
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Transcript of Genuine Assent. Recognize when genuine assent is not present. Identify the two key elements in...
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CHAPTER 7Genuine Assent
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Objective:
Recognize when genuine assent is not present.
Identify the two key elements in undue influence.
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Genuine Assent and Duress
Genuine Assent: a true and complete agreement. It is an agreement to enter into a contract that is evidenced by words or conduct between the parties.
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Genuine Assent and Duress
Voidable: Occurs when an injured party cancels the contractual obligation
Rescission: When the injured party tries to get back what has already been put into the contract.
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Genuine Assent and Duress
RATIFICATION: DURESS:
Conduct of all parties that confirm they intent to be bound by the contract.
Occurs only when on party uses an improper threat or act to obtain an expression of a contract.
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Genuine Assent and Duress
Undue Influence: When one party to the contract is in a position of trust and wrongfully dominated the other party.
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Types of Contractual Mistakes
Unilateral Mistakes: Occurs when only one party holds an incorrect belief about the facts or law related to the contract.
Mutual Mistake: (bilateral mistake): Occurs when both parties have an incorrect belief about an important fact (voidable), or the applicable law (not voidable)
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Types of Contractual Mistakes
Material Facts: facts that influence the parties’ decisions about the contract.
Void: When something is without legal effect.
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Misrepresentation
Innocent misrepresentation: Occurs when a party, during the negotiations, makes a statement that turns out to be untrue.
Fraudulent misrepresentation: Occurs when a party knowingly makes a statement that in untrue.
Active Concealment: A substitute for a false statement of fact.
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Silence
There are three important situations where disclosure is required.
1. When a statement about a material fact omits important information.
2. When a true statement is made false by subsequent events.
3. When one party knows the other party has made a basic mistaken assumption.
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Materiality
There are three ways an untrue statement can be determined to be material:
1. If an untrue statement would cause a reasonable person to contract.
2. If the defendant knew the plaintiff would rely on the statement.
3. If the defendant knew the statement was false.
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Materiality
Reasonable Reliance: Even though the statement is material. There is no misrepresentation unless the victim reasonably relied on it.
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Fraud and Remedies for Fraud
Fraud exits: when a person deliberately lies or conceals a material fact. To establish fraud, there must be proof of injury.
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Remedies for Fraud
1. Rescission: Voiding of the contract by the injured party. Normally, when you rescind, anything you received must be returned.
2. Damages: The defrauded party may seek damages for the loss created by the fraud.
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Damages
Punitive Damages: A form of punishment. These damages are awarded above the amount of the defrauded party’s original damages to act as punishment to the party who committed fraud.