Chapter 13 Genuine Assent

Mistakes Mistake of law is not excuse Mistake of value –Courts generally don’t care Mistake of fact: –Bilateral Mistakes Both parties mistaken Cannot have a meeting of the minds –I thought I was buying two coin collections but seller thought he was only selling one.

Unilateral Mistake Only one party makes a mistake –Must be material –Courts not interested in unilateral mistakes Why? Two exceptions: –One party knows or should have known the other party is mistaken –Mathematical or book keeping errors

Fraudulent Misrepresentation No mutual assent when fraudulent misrep Test –Misrepresentation of material fact Material? –Must be an intent to deceive Scienter? –The innocent party must rely on misrep Foley v. Parlier pg. 265

Misrepresentations Misrep by law –Don’t generally care Misrep by silence –Just as good as verbal misrep in some situations Misrep by conduct –Similar to misrep by silence

Misrepresentation Innocent Misrep –No meeting of the minds – no contract Negligent Misrep –Same test as fraudulent misrep Except for scienter is replaced by a negligence standard

Undue Influence One party has an undue amount of influence on another –Examples: Attorney Doctor Psychotherapist –Adequate disclosure and consent may be enough to void contract –Who usually contests based upon these grounds?

Duress In the past courts only cared about physical duress –More courts are allowing claims based upon economic duress Test for duress –One party entered into the contract under the threat of immediate harm from the other party

Other Defenses Adhesion contract –One party has superior bargaining power Unconsciousable contracts –Policy requires the contract to be voided