Customer center

We are a boutique essay service, not a mass production custom writing factory. Let us create a perfect paper for you today!

Example research essay topic: Good Faith Bad Faith - 2,374 words

NOTE: Free essay sample provided on this page should be used for references or sample purposes only. The sample essay is available to anyone, so any direct quoting without mentioning the source will be considered plagiarism by schools, colleges and universities that use plagiarism detection software. To get a completely brand-new, plagiarism-free essay, please use our essay writing service.
One click instant price quote

for Lon L Fuller and Melvin Aron Eisenberg (American Casebook Series) 5 th edition. A K is a promise or a set of promises for the breach of which the law gives a remedy Except as otherwise provided, the formation of a K requires a bargain in which there isa consideration To constitute consideration, a performance of a return promise must be bargained for A promise which the promise should reasonably expect to induce action or forbearance on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires Precludes B from denying in court the truth of statement that B made to A and that A had foreseeable relied upon Consciously prevents the fact finder from determining the real truth about a certain fact, in order to reach a just result Hetchler v. American Life Insurance Co. Any event which a promise (not as an exchange for the happening but as a mere coincidence in time) will perform a promise intended and understood to be gratuitous The condition may or may not be consideration R 72: Exchange of Promise for Performance Except as stated in 73 (Performance of a legal duty) and 74 (Settlement of Claims) any performance which is bargained for is consideration. R 79: Adequacy of Consideration; Mutuality of Obligation If the requirement of consideration is met, there is no additional requirement of: a.

A gain, advantage, or benefit to the promise or a loss, disadvantage, or detriment to the promisee; OR b. Equivalence in the values exchanged; OR R 175: When Duress by threat makes a K voidable If a partys manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the K is voidable by the victim a. What is threatened is a crime or a tort 2. A threat is improper if the resulting exchange is not on fair terms AND a.

the threatened act would harm the recipient and would not significantly benefit the party making the threat, OR c. what is threatened is otherwise a use of power for illegitimate ends implied threat not to make the contract unless his terms are accepted is common and not improper Hard bargaining between experienced adversaries OK If K dictated by general economic forces even if one party takes advantage of the others adversity Where, however, one is induced into making the K by some power exercised by the other for illegitimate ends the xacti on is suspect Water CO wont supply water to developer unless he agrees to way out rates Gross Disparity in the values exchanged may be sufficient ground, without more, for denying specific performance If a K or a term thereof is unconscionable at the time the K is made, a ct may refuse to enforce the K, or may enforce the remainder of the K without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result Gross disparity in the values may corroborate indications of defects in the bargaining process d. WEAKNESS IN THE BARGAINING PROCESS A bargain is not unconscionable merely because parties are unequal in bargaining position nor because the inequality results in an allocation of risks to the weaker party BUT gross inequality of bargaining power, plus terms unreasonably favorable to the stronger party may confirm elements of deception, compulsion, or show the weaker party had OR did not in fact assent or appear to assent UCC 2 - 302. Unconscionable contract or Clause. (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination. 1.

This section is intended to make it possible for the courts to police explicitly against the contracts or clauses which they find to be unconscionable. In the past such policing has been accomplished by adverse construction of language, by manipulation of the rules of offer and acceptance or by determinations that the clause is contrary to public policy or to the dominant purpose of the contract. This section is intended to allow the court to pass directly on the unconscionability of the contract or particular clause therein and to make a conclusion of law as to its unconscionability. The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. Subsection (2) makes it clear that it is proper for the court to hear evidence upon these questions. The principle is one of the prevention of oppression and unfair surprise (Cf.

Campbell Soup Co. v. Wentz, 172 F. 2 d 80, 3 d Cir. 1948) and not of disturbance of allocation of risks because of superior bargaining power. Specific Performance or an injunction will be refused if such relief would be unfair because a. The K was induced by unfair practices, OR c. The exchange is GROSSLY INADEQUATE 1.

Forbearance to assert or the surrender of a claim or defense which proves to be invalid is not consideration UNLESS: a. The claim or defense is in fact doubtful because of uncertainty as to the facts or the law, OR b. The forbearing or surrendering party believes that the claim or defense may be fairly determined to be valid 2. The execution of a written instrument surrendering a claim or defense by one who is under no duty to execute it is consideration if the execution of the written instrument is bargained for even though he is not asserting the claim or defense and believes that no valid claim or defense exists Ex: Executing a quitclaim deed when you are under no duty to do so Claim with doubtful validity Claim clearly invalid Honest Belief Enforceable Enforceable Dishonest Claim; OR honest claim but A wants guarantee that honest guy B wont claim Enforceable 74 (1) Not enforceable 74 (2) Enforceable if in WRITINGORAL = NOT ENFORCEABLEWRITTEN = ENFORCEABLE A promise or apparent promise is not consideration if by its terms the promise or purported promise reserves a choice of alternative performances unless each of the alternative performances would have been consideration if it alone had been bargained for. UCC 2 - 306 (2): Output, Requirements and Exclusive Dealings. (2) A lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale. 2. Under this Article, a contract for output or requirements DOES NOT lack mutuality of obligation since, under this section, the party who will determine quantity is required to operate his plant or conduct his business in good faith and according to commercial standards of fair dealing in the trade so that his output or requirements will approximate a reasonably foreseeable figure.

Reasonable elasticity in the requirements is expressly envisaged by this section and good faith variations from prior requirements are permitted even when the variation may be such as to result in discontinuance. A shut-down by a requirements buyer for lack of orders might be permissible when a shut-down merely to curtail losses would not. The essential test is whether the party is acting in good faith. Similarly, a sudden expansion of the plant by which requirements are to be measured would not be included within the scope of the contract as made but normal expansion undertaken in good faith would be within the scope of this section. One of the factors in an expansion situation would be whether the market price had risen greatly in a case in which the requirements contract contained a fixed price.

Reasonable variation of an extreme sort is exemplified in Southwest Natural Gas Co. v. Oklahoma Portland Cement Co. , 102 F. 2 d 630 (C. C. A. 10, 1939). This Article takes no position as to whether a requirements contract is a provable claim in bankruptcy. 3.

If an estimate of output or requirements is included in the agreement, no quantity unreasonably disproportionate to it may be tendered or demanded. Any minimum or maximum set by the agreement shows a clear limit on the intended elasticity. In similar fashion, the agreed estimate is to be regarded as a center around which the parties intend the variation to occur. 5. Subsection (2), on exclusive dealing, makes explicit the commercial rule embodied in this Act under which the parties to such contracts are held to have impliedly, even when not expressly, bound themselves to use reasonable diligence as well as good faith in their performance of the contract. Under such contracts the exclusive agent is required, although no express commitment has been made, to use reasonable effort and due diligence in the expansion of the market or the promotion of the product, as the case may be. The principal is expected under such a contract to refrain from supplying any other dealer or agent within the exclusive territory.

An exclusive dealing agreement brings into play all of the good faith aspects of the output and requirement problems of subsection (1). It also raises questions of insecurity and right to adequate assurance under this Article. UCC 2 - 306 (1): Output, Requirements and Exclusive Dealings. (1) A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate or in the absence of a stated estimate to any normal or otherwise comparable prior output or requirements may be tendered or demanded. Performance of a legal duty owed to a promise which is neither doubtful nor the subject of honest dispute is not consideration; BUT a similar performance is consideration if it differs from what was required by the duty in a way which reflects more than a pretense of a bargain R 89: Modification of Executory K p 118 A promise modifying a duty under a K not fully performed on either side is binding a. if the modification is fair and equitable in vie of circumstances not anticipated by the parties when the K was made; OR b. to the extent provided b statute; OR c.

to the extent that justice requires enforcement in view of material change of position in reliance on the promise R 89: Modification of Executory K (again) UCC 2 - 209 (1): Modification, Rescission and Waiver. (1) An agreement modifying a contract within this Article needs no consideration to be binding 1. This section seeks to protect and make effective all necessary and desirable modifications of sales contracts without regard to the technicalities which at present hamper such adjustments. 2. Subsection (1) provides that an agreement modifying a sales contract needs no consideration to be binding. However, modifications made thereunder must meet the test of good faith imposed by this Act. The effective use of bad faith to escape performance on the original contract terms is barred, and the extortion of a "modification" without legitimate commercial reason is ineffective as a violation of the duty of good faith. Nor can a mere technical consideration support a modification made in bad faith.

The test of "good faith" between merchants or as against merchants includes "observance of reasonable commercial standards of fair dealing in the trade" (Section 2 - 103), and may in some situations require an objectively demonstrable reason for seeking a modification. But such matters as a market shift which makes performance come to involve a loss may provide such a reason even though there is no such unforeseen difficulty as would make out a legal excuse from performance under Sections 2 - 615 and 2 - 616. Central London Property trust v. High Trees R 84: Promise to perform a duty in spite of non occurrence of a condition 1. Except as stated in subsection (2), a promise to perform all or part of a conditional duty under an antecedent K in spite of the non occurrence of the condition is binding, whether the promise is made before or after the time for the condition to occur, unless: a. occurrence of the condition was a material part of the agreed exchange for the performance of the duty and the promisee as under no duty that it occur; OR b.

uncertainty of the occurrence of the condition was an element of the risk assumed by the promise 2. If such a promise is made before the time for the occurrence of the condition has expired and the condition is within the control of the promisee or a beneficiary, the promise can make his duty again subject to the condition by notifying the promisee or beneficiary of his intention to do so if: a. the notification is received while there is still a reasonable time to cause the condition to occur under the antecedent terms or an extension given by the promise; AND b. reinstatement of the requirement of the condition is not unjust because of a material change of position by the promisee or beneficiary; AND c. the promise is not binding apart from the rule stated in subsection (1) UCC 1 - 107: Waiver or Renunciation of Claim or Right After Breach. Any claim or right arising out of an alleged breach can be discharged in whole or...


Free research essays on topics related to: f 2, bad faith, specific performance, bargaining power, good faith

Research essay sample on Good Faith Bad Faith

Writing service prices per page

  • $18.85 - in 14 days
  • $19.95 - in 3 days
  • $23.95 - within 48 hours
  • $26.95 - within 24 hours
  • $29.95 - within 12 hours
  • $34.95 - within 6 hours
  • $39.95 - within 3 hours
  • Calculate total price

Our guarantee

  • 100% money back guarantee
  • plagiarism-free authentic works
  • completely confidential service
  • timely revisions until completely satisfied
  • 24/7 customer support
  • payments protected by PayPal

Secure payment

With EssayChief you get

  • Strict plagiarism detection regulations
  • 300+ words per page
  • Times New Roman font 12 pts, double-spaced
  • FREE abstract, outline, bibliography
  • Money back guarantee for missed deadline
  • Round-the-clock customer support
  • Complete anonymity of all our clients
  • Custom essays
  • Writing service

EssayChief can handle your

  • essays, term papers
  • book and movie reports
  • Power Point presentations
  • annotated bibliographies
  • theses, dissertations
  • exam preparations
  • editing and proofreading of your texts
  • academic ghostwriting of any kind

Free essay samples

Browse essays by topic:

Stay with EssayChief! We offer 10% discount to all our return customers. Once you place your order you will receive an email with the password. You can use this password for unlimited period and you can share it with your friends!

Academic ghostwriting

About us

© 2002-2024 EssayChief.com