LAW 235 FROM MIDTERM TO FINALS NOTES

The subject we are responsible are: minority, mental in rmity and the other topics that
have cover after the midterm. We don’t have to know about the cases, but it will be cool if
we mention the cases names in the question.

October 22-23, 2021

1) WHAT HAPPENS IF YOU ENTER A CONTRACT WITH MINOR?

Most of the jurisdiction tells that the minors are the ones who are younger than age of 18.

What happens if an adult sells the car to minor.

A ( seller ) —— car ——> B (buyer, minor )

<——4,000USD ——

**It is a voidable contract!

Void-> there is no legal meaning at all.

Voidable -> either it is going to void, it may also be valid Contract with a contract can be
valid.

It can become valid with legal guardian (= guardian ad litem )

> It is ok for A to sell the car to the B. But there is a risk that the contract can be voidable.
At the age of 18 the minor may a rms of disa rm the Kx. If the minor disa rms the
contract= the minor may avoid the contract.

It is going to based upon the jurisdiction; the minor may get the money even if the car is
returned the minor can get the money or part of the money.

If the car is no longer can be used the A cannot ask for the damages from the minor.

But if the buyer defaulted about their age, they seller can ask for that.

A contract with a minor is voidable at the option of the minor when the minor comes of
age.

when the minor becomes 18…

There are exceptions:

If the minor makes an agreement with a minor, those cannot be voided by the minor.

1) [basic] necessaries ( = food, medical or legal services, lodging…)

May not be avoided by the minor.

Misrepresentation is always actionable the minor may not avoid the Contracts if s/he has
defrauded the other party.

*The contract between minor can be voidable; for that the one of the party must be a
minor, who is under the age of 18 under the US Law, and when the minor reaches the age
of 18 can either a rm the contract or disa rm the contract. If the contract disa rms the
subject matter will be given back but the minor will not be responsible of the damages.

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 Thus there are some exceptions in that matters:

-if the subject matter is necessity,

-or if the minor make misrepresentation.

*If a legal guardian become a part of the contract on the behalf of the minor, the contract
cannot be avoidable— it will be, if there is no obstacle, will be valid contract between
parties.

*if a legal guardian is invalid in the transaction and appears them on the behalf of the
minor, the contract will not be voidable. But if minor enters into a KX without a legal
guardian, that contract is voidable.

**Minor is responsible for all of his torts. Minority should be used as a shield not for
a sword.

A rmate can be either explicit or implied:

Implied way a rmative-> example given -> If the contract was about sale of a car and
when the minor reaches then don’t return the car back, it is implied.

How much time they do have to disa rm? Reasonable Time.

2) Mental In rmity:

Voidable of the option of the mentally in rm.If somebody is lunatic ( Grammarly comes
from the ‘luna’ / lunacy ) and enter into a Kx, that contract is voidable at the option of the
lunatic or the legal guardian of the lunatic.

There are 2 tests that have been mentioned in the classes:

Cognitive test: can this person understand what s/he is doing ?

Volitional test: can this person understand and control what they are doing ?

ex. manic depressive people know what they are doing but they cannot control
themselves.

*Scholars don’t think either of these tests are helpful. In a case a man was not taking any
baths, he would stink and act in weird ways, dress very poorly and eat from same table
with the dogs. Court says non of these things means that he is mentally in rm. He may be
mentally capable.

*Mentally in rm people can sometimes have lucid moments. In the lucid moments
contract cannot be avoided.

!! If the car is damaged, family of the mentally in rm has to pay for the damages, it
is opposite of the minor rule.

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*In the case of mental in rmity; the one party may be intoxicated, or habitually intoxicated
or a drug user the contract— with the similar way with the minority rule, is avoidable. It is
not necessary whether the intoxication is done voluntarily or not.

3) Drunkard / Drug Users:

If a person is habitually drunk and enter into contract under the e ects of drunkness,
most courts think that these contracts are also going to be voidable at the option of the
drunk/his legal guardian.

Default rule: if there is an gap that parties haven’t agreed yet or o eror hasn’t said any
conditions, these causes will be applied. ( tamamlayıcı hukuk kuralı )

Mailbox rule is a default rule.

4) Statute of Frauds:

This is a concept of that some agreements should be done in written form. In general the
oral agreements are powerful as the written ones. But the statute of frauds which is
formed in UK originally, states that which subject matters should be done written form in
order to be enforceable.

Through the time UK eliminated the matters into to two but under the US law, it still keeps
the numerous circumstances. The 6 elements of ( as be coded MYLEGS) statute of frauds
should be in written form, it is mandatory in order to be enforceable.

M-Marriage ( promise to marry in exchange with…-> this is oral in UK) 


promise to marry in exchange of something. ( an item in value ). I promise to buy
you a house if you marry me! Together with marriage there must be another promise. Here
it is the house. That other promise needs to be written. It could be a diamond ring, house,
electric company stocks etc.

Y- Year: Contracts which continues more than 1 year 


ex. I am famous singer. I am entering into a Kx to perform in Zorlu next year, New
Year’s Eve. This Kx must be written.

L- Land: if the subject matter is sale of land it should be written 


lease, selling etc. those must be in written form.

the type of land does not matter: at, residence, etc.

E-Executive ( kayyum) : somebody appointed by court and this decision must be don in
writing to be enforceable. 

somebody that will take care of estates. Somebody may be appointed by the court
or named by the deceased. This must be in written.

G-Goods which values equals or more than 500 USD

S- Suretyship ( kefalet): this must be in writing.

this person will take over and be responsible for the debts. This must be in written,
as well.

Privity of contract : a contractual relations between the parties

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 in order to initiate an action you have to have a contractual relationship.

Thus it is important to bear in mind the good faith ( iyiniyet)

With the option of the one who has entered to the contract has the right to raise voidable.

*Certain contracts must be a written form. -> statute of frauds. -> knows these elements.

In England there are only two-> land and suretyship.

Attention: as it is known that the oral contracts are powerful as the written ones. But if the
nay agreement within the statute of frauds ( any topic MY LEGS included ) the contract
will be enforceable.

Example: ( and sort of an exception)

A makes an KX for the B’s bene t with the insurance company. If A dies, B has
cause of action with insurance company because he is the bene ciary. Even though there
is no privity of Kx, this is like an exception.

Lapse of time:

General rule: when we don’t know how much time is required, it is reasonable time. ( and
the reasonable time is actually based on the factual matter )

It is going to change from one case to another. Surrounding circumstances are also
important.

5) Duress

There has to be a serious threat and the one has to force the party to sign the contract.

and when a person is under duress that person does not enter into a KX freely.
There is some threat ( either to you or to your family; and it is not need to onlyu physically
it can either be also mentally or economically harm ). So, your intention is not PURE.

Ex. Somebody may direct a gun at you while signing the KX.

voidable at the option of the person under duress. Not automatically void.

**Duress also a defense. If the party under the duress at the time does not perform and
the other party goes to the Court for breach of KX. The party under duress may use as a
defense.

1-Serious threat -> at the beginning body harm ro threat person or to a close family
member ( like putting gun into your head ) -> new threat of economic harm! ( as it is
newly recognized)

2-The reason that a party enters into the KX must be because of this threat ( inducement
to enter into the KX Is because of the threat)

3-The threat must induce the victims manifestation of assent

4-It must be su cient grave to induce the victim’s assets.

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From the same situation there the one who is going to raise a case under the duress,
same situation can be subjected to both criminal and civil law cases. At the end there
might be two di erent cases.

as the duress can a defense and the it is voidable, if the one party believes that the
contract is their favor so they want to keep the contract they cannot initiate a civil law
case. As well as the criminal one.

You may initiate criminal law and civil law case. There might be two cases.

-> the parties due to the breach of contract can be civil case.

!!! You may both initiate the case from civil and criminal case.

Quick reminder on the criminal/civil law!

Burden of proof-> criminal case—> the burden of proof is the highest and it is
beyond the reasonable doubt.

*But under the civil law cases -> clears and convincing evidence
preponderance of the evidence.

The plainti who is putting allegations has to also show under the criminal law.

(İddia edildiği üzere o kişinin o suçu işlediğini ispat etme yükümlülüğüne sahiptir. )

In a civil case burden of proof is lowest. By the weight of evidence is 50-50 under
the preponderance. -> if it goes 51-49 who has the 51 will be successful.

What is duress? What is this threat ? -> if you put someone under lock you and kept
this person until they sign it, it is duress.

It is important to think what does this fact pattern says! It can be a business negotiation!

It is like the the minority and the mental in rmity, these kind of contracts are voidable!! .

Why voidable? They are voidable under the one who is under the duress.

Why it is not void? Because at the end may be the one who didn’t have the intention but
it can be for our

What is the time period? The ‘reasonable time’ is the time period to raise the duress.
The reasonable time is usually 1 year. And the the threat may continue after the parties
enter into a legally binding contract.

If it serious enough. -> the person does not need to hold a gun to your head. The duress
can be enough.

How does it come up as a defense? The person under the duress can disa rm the
contract.

The damages-> restitution-> they are equitable law. Restitution is the given back what
you have given. If the other person takes him to the court and the restitution is the
remedy. After the contract is disa rm the things should be given back

Injunction, restitution, speci c performance.

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 !! Duress covers coercion.
What is the di erence between coercion (: zorlama ) and the duress ?

Restitution: giving back what you have taken. After the KX is disa rmed, you have to
return anything you have taken. This restitution is a type of remedy. It is an equitable
remedy.

Dİ erence of coercion and duress:

Duress includes the coercion (: pressure to do sth) . ( DURESS> coercion )

6) Undue in uence

!! There has to be speci c relationship

!! Improper persuasion of the weaker party by the stronger one.

*Voidable at the option of the person under to bring an action there is time limitation.

*This rule comes from the court of equity.

*Basically as it is known as the contracts are based on the freedom of contract which is
the parties free will. So non of the party should enter into a contract under any pressure.

But the undue in uence in such situations which the one party enter into a contract
without being totally free. ( it can e ect either you or your family or your loved ones)

And if under this contract the contract will be voidable, it is not void or valid. Why it is
voidable ? Because sometimes even though the contract is signed under an in uence,
the contract may bene t the one party at the end so if the one party does not do
something about it I mean the one under the in uence should not raise undue in uence
otherwise the contract will be enforceable.

*There has to be special relationship must exist between parties to a KX.

What are the special relationships? Husband and wife, lawyer-client, doctor-
patient, clergyman-parishioner ( the one who attends to the church), parent-child [ this list
is not numerous it can be longer… it is not nalized yet.]

The trick is in there: the one party must be stronger than the other one. Like in the duress
but there must not be a threat. And there has to be a special relationship.

*Improper persuasion of the weaker party by the stronger one.

It is again, voidable, by the one who has these criteria.

It is quite possible when an old-young people relations: like the grandfather and the one
who has been taking care of. It is not like the duress, undue in uence the case initiated
after the signing it because it is not like the duress, because the duress may continue.

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 !Example: the pregnant one out of wedlock, and she was a weak and the one who has
been taking care convince her to give her baby. And she raise a case under undue
in uence and she proofed with the evidences that she was weak.

*the one who initiate the undue the in uence has to improve the two criteria.

Case example: Methodist Mission Home v. B, 452 S.N 2nd 539 ( 1970)-> if you want to
read then read it.

There are two types of contracts

*Output contracts

These are the basically in example in a farm you are rising cherries. Output
contracts says that I want to buy all the cherries.Everything is will be provided will be
given. All of the production.

Üretim yapılmazsa ne yapılacak ? Sonra da damages ile alakalı bir şey olacak.

*Requirements contracts.

Everything merchant needs will be provided to the everything.

anlaşılan ürünlerin hepsinin verilmesi o kadarının verilmesi.

**Both in undue in uence and the dress the time limitation starts when the threat is gone .

7) Parol Evidence Rule

!! Exceptions: promissory estoppel, fraud, misrepresentation, duress, undue

in uence.

!! Exceptions: prior oral agreements -> It is possible for the courts to sometimes for
go the this rule to prove the unconscibility or duress.
!! In case of one party claims that there were not consideration, so the court may
allow to the prior oral negotiations.

-Ambigiouty there is something means it can be understood in all the ways.

-Gap means a gap and the Court usually ll it with the oral negotiations .
something that should be written down is not written.

*It is the rule about the substantive law; not the procedural law. 

if you do not object the judges will not do anything ( re’sen hareket etmez)

If you remember Erie Doctrine, because of the diversity jurisdiction-> case will
automatically will be heard in the federal district court and the parol evidence will be used
as the substantive rule as the Erie doctrine goes.

-The parties are from di erent states and the amount dispute is more then 75k.

*Under the Erie Doctrine substantive evidence Parol Evidence will be used. It is not
procedural law it is the substantive rule.

Any oral prior negotiations between the parties may not be considered as an evidence in
the courts to prove or disprove a matter regarding the contract.

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 ex: I am buying a car and we put everything but we just decided on the tires orally.
Court says it the decision we made orally prior to the negotiations cannot be used
as evidence to disprove or prove the things and it cannot be enforced.

There are some exceptions in here, as usual, to parol evidence rule-> fraud.

! Prior oral negotiations will be excluded.

prior oral negotiations between the parties will be excluded to prove or disprove

a certain element of an existing Kx.

If you go to the contract and one of the parties initiate an oral evidence; the court
will exclude it.

As summary, the parol evidence rule states that the parties should put the prior
negotiations into writing but and the prior oral negotiations cannot be raised as evidence
to prove or disprove something.

If you are going to buy car from a car dealer, if there is a confusion, it is not clear which
care they talking about, prior negotiation can be used. -> nor clear subject matter.

Four corners of the document;

that is what the court basically saying is that you are bound by the what is written inside
the four corners of the document. The parties has decided that every part of the contract.

Totally Integrated -> if the contract is totally integrated you cannot raise oral evidence.
You have to read the Kx. You look at at the four corners of the document.

Partially integrated -> in order to prove the misrepresentation, undue in uence or the
duress or maybe under unconsciousness you can raise the oral evidence. If there is
something is missing you can use it.

Not Integrated -> it may much easier for the court to make evidences. There are some
gaps in the agreement. You can tell some of the important parts are missing.

It may not be clear what type of rise will be delivered. If you have prior oral negotiations
and one party has mentioned what type of it.

Some contracts can tell that states ‘this is the entire agreement, and no other document
can be entitled…’ so this will exclude the other oral negations under the parol evidence
rule.

If you think the other party defraud the party. Under the us tradition the verbal or oral
statements and the documents are important. And the people are tend to think you are
NOT lying.

8) Unconscionability UCC 2-302

**Duress and undue in uence make the contract unconsciousness.

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 Duress

Undue In uence

Unfair surprise

one party somehow, there is something pop up but the parties does not aware of
it. ( ex. One party sneak a clause to the contract.)

one party is using the advantage of his side and bene t. For this matters if you are
not talking about the

ex. The parties negotiate orally. And they write it down and one of the party sneaks a
provision that has not been told and the does not fair for the other party.

Limiting the warranty

usually, ex. Warranty for this good maybe 3 years. Maybe in the contract you may
limit the warranty. You may written down as the 2 years.

Unequal bargaining power -> one party is much more educated and the other party takes
advantage of it.

What will happen to the unconscionable contact, if the court nds out the court tries to
the contract to uphold the contract due to the freedom of contract and the court feel like
they dont need to intervene.

The court says, the unconscionable provision is taken out and the rest of the KX is held
OR parties may modify that provision/s.

The case that the party of the contract will be voided or may go to the modi cation.

This is about the one speci c contract ?

9)Statute of limitation ( zamanaşımı ) it is voidable too!

10) Misrepresentation

*Misrepresentation and the fraud are the basically the same thing.

One party must give a fact that is not true that make the other party to enter into the
contact based on that fact.

-> The defendant must have the intention to defraud the plainti

-> A fact that is not true about a material fact of the Contract is stated by the defendant,

-> This untrue statement induce the plainti to enter into the KX,

-> The plainti relies on the untrue statement and

-> Plainti must su ers from the damages. 




[ a fraudulent statement of fact made by defendant, made with intention to deceive the

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 plainti , plainti must have relied on this statement, and induced into entering into the kx
and plainti must have su ered damages]

There are two di erent misrepresentation:

A- misrepresentation in the factum -> void ( essense of the KX is surprising)

B- misrepresentation in the inducement -> voidable ( few facets are surprising )

> An attorney may le the case with contractual misrepresentation or the tortuous
misrepresentation. But why ?

It is usually about the statute of limitation. And the amount of damages is

important, in the contractual damages are is so law. But in the torts the damages can go
up so up like millions of dollars. So the attorneys chose to sue through the tortuous
misrepresentation. [ Because of the statute od the limitations and amount of the
damages]

In torts there is punitive (: are more awarded) damages but in the KX’tual one the
amount of the damage are so limited. Furthermore the statute of limitation is longer in the
torts.

*the contractual misrepresentation= fraudulent misrepresentation

*tortious misrepresentation

!! Attorneys are tend to chose to sue through tort rather tan contractual because of the
amount of damages and statute of limitation.

If there was not this fraudulent statement, Plainti would NEVER enter to this KX. Plainti
must ? damages.

The elements of the misrepresentation

-> to enter into the agreement the defendant must lie. The only reason of the
plainti to enter into contract is the lie.

Ex: a person has a piece of land with house on it. Plainti leases the house to the
defendant. The Defendant also includes in lease documents a provision that says half of
minerals rights will also be leased ( Mineral rights normally owned by owner under the US
law. Under the US law, what are above, below and the mineral rights are belong to the
owner of the land. )

Defendant sell to the 3rd part. They ( the third party) don’t know this sale was acqunel by
misrepresentation. If bene cial for owners they can keep it.

If in the inducement -> voidable at the option of who su ers.

If in the factum -> void from the beginning.

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 You gave some one a document saying you will not have any legal consequences and
that person signs -> in the factum = VOID.

Normally silence does not amount to misrepresentation. If a murder has taken place in a
house and the the house is sold to the someone without mentioning it and if the seller
knows about this fact, and does not mention that fact; and the selling is done by this
conditions there is misrepresentation.

This is also valid on the times when the house is built before the earthquake, or damaged
by the ood or the damages in the walls are tried to hit by painting and those are not
mentioned; there is misrepresentation.

And there is another thing that must be consider again about the language:

İf the purchaser asks that ‘is there something wrong with this house?’ And the seller
keeps his silence it can be considered as the misrepresentation. But if the purchaser
speci cally asked like ‘ if the house is damaged by the ood’ and the the seller knows but
keeps the silence or just basically says ‘I don’t know’ it can lead you to the
misrepresentation.

The one party misleads the other party: ask them to sign it and there will not be legal
remedies -> it is misrepresentation in the inducement.-> voidable of the one who su ers
from it.

Silenece does not constitute to the contract.

in the US it is common that some houses are more way more cheaper. It must alert
the party that there is something wrong goes.

the walls are being paint, or the the house is oated.-> if the one who try to sell it
lie is the misrepresentation. Or sometimes one people died in this house.

the buyer may ask whether there is something wrong.

sometimes the lawyers misrepresent if the client is old.

!! But the sience may constitute to the misrepresentation: when the person has clear
knowledge about it. It changes case by case. Silence about general information when it is
asked to the person with knowledge.

Misrepresention if the defendant has the intention to lie to you it does not matter you are
not basically relying on the fact

You sign something without knowing the truth. Something is totally di erent what you are
signing and not knowing what it is actually is.

take it or leave it contracts - contracts of adhesion there might be a clause on the

contract… the clause or the contract can be void.

In the factum -> you sing the check but the check is not what you think. It was
something else.

In the inducement -> a few facts are di erent than they were said. It is voidable.

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 Example : A person has a piece of land with house on it. Plainti leases the house to the
defendant. Df also includes into the lease agreement a provision that says half of the
mineral rights will also be leased ( minerals rights normally owned by the owner).

Example: you game sb a document saying that you will not have any legal consequences
and that person signs-> in the factum.

!! İn misrepresentation in factum: you sing a check but you dont know it ,s a check or not.
You think it is something else. If the defendant has an intention to lie to you, you did not
have to know about It. You basically relied on the defendant.

Something totally di erent that has been presented to you. That is why It void.

In the inducement: a saw facts are di erent than they were said. It is voidable.ö

11) Mistake
An erroneous belief about an existing material fact at the time when the parties entered
into the KX. -> there must be some type of damages.

There are two types of mistake:

There is mutual ( bilateral ) and unilateral mistake.

Unilateral mistake: when one party mistaken about the facts about the contract. The
mistake is going to make the contract voidable. Only one part is mistaken the contract
will stays it is voidable by the one who su ers.

*The kx stays.Not voidable. Hard to void.

Mutual mistake: both parties are mistaken. Voidable by the option of the part who su ers.

How can a mistake can happen?

A has di erent three cars. A says I want to sell my car for 5,000 USD by mentioning the
yellow car but B only knows the green one which is the most expensive. So he says
yes.This is unilateral mistake. -> it may not be voidable all the time

*Most of the times Courts do not allow avoiding in unilateral. But it is mostly accepted for
mutual.

*If unilateral, the other party thinks that the mistaken party cannot think clearly, then it is
possible for him/her to avoid the KX.

KX by e-mail ( if unilateral) even though a party is mistaken. If he has already placed it in

his mailbox there is a KX between parties.

*Mistake cannot be bad business judgment. If a businessman makes a bad business

judgment, it won’t be a mistake.

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 Bad business judgment is not enough to avoid.

If there is scrivener’s error (: error in writing ) -> avoidable.

Bidding ( açık arttırma ): omission of 25k for expenses. You think it is 100k but it is 25k for
expenses. It is a material business judgment. It won’t be mistake.

under a material mistake, sometimes they can write 10k instead of 100k or vice
versa. That might be corrected if it is clear that there is a mistake on the writing.

*If the person bares the risk, he cannot avoid the KX.

A person can bare risks according to the nature of the KX.

Ex. You are buying a piece of land. Seller shows you the borders. An independent person
comes up with a survey, you rely on that info of yout expert and buy the land. It turns out
that expert is mistaken too. You cannot avoid by mistake bc you did not rely on the
representation of the seller. Ypu relied on the your own independent expert.

ex. A cow is sold, it turns out it was pregnant so it had to be more expensive -> it is
mistake.

12) THERE ARE SITUATIONS THAT BOTH PARTIES WILL BE EXCUSED FROM
PERFORMANCE:

1) Force majeure = an act of God = mücbir sebep -> impossibility

It makes both parties does not need to act.

earthquake, ood,.. and governmental restrictions/ government mandate… that

makes it impossible to act under the terms of the contract ( ex. You sign a contract with a
wine company but the government banns the sell of the alcoholic beverages. The
performance is )

Panama Canal -> [ Recently ] One ship lended vertical and did not led the other ships to
get through. Obviously is going to delay the performance.

9/11 accident-> and the lease contracts at the twin towers.

*Basically under the force majeure the performance of the terms of the Kx. The situation
makes the both parties to perform impossible should happen after the contractual
relation is built.

*IN ALL THESE CASES ONE PARTY WILL BE EXCUSED TO PAY THE DAMAGES

2) Impracticability

He may be able to perform but there are other things to hold him to perform, it is
impractible for him to perform. ( Highly detrimental to perform )

*The performance can be done but it may e ect the party badly, so it is not OK for the
party to perform.

ex. If he performs he’ll be bankrupted

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ex. Some kind of sickness.

3) Frustation of the purpose(=Coronation cases )

The reason of the they enter into contract is gone for some reason.the subject matter is
no longer there. The reason is disappeared.

ex. People leased apartments looking at a show of coronation. They changed the road of
the show. Their reason for the lease is no longer there because of the coronation show is
relocated.

Ex. You sell exotic animals. 2 years later government prohibits this. You may be excused
from paying the lease of yout pet shop.

*There won’t be any damages paid by the excuses party..

If the writing is vert tine, it must alert you direct to unconscionability ( UCC 2-302)

1-lock of bargaining power

2-Education of parties to the KX.

3-Did the plainti have a meaningful choice?

4-Did each party reasonably understand the terms of the Contract.

5-If there is ne point hidden

6-If the terms of the Kx is too one-sided or unfair.

In misrepresentation there is a deceitful fact of says something untrue. If one party does
not give the other party to have right to choice or let them negotiate we can go and use
the unconscionability. Therefore it will NOT be enforceable.

Covenant not to compete

-Geographical area -100 miles

-Time -> it should not be too long.

1-there has to be lack of bargaining power

2-education levels of the parties to the KX ( highly educated party may

manipulate)

3-did the Plainti have a meaningful choice ? ( almost like a take it or leave it
KXs. Courts do not want to interfere ) 

4-Did each party reasonably understand the terms of the KX?

5-If lthere is ne point hidden in the KX ( tiny tiny letters)

6- If the terms of the KX are too one-sided/unfair.

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 13) Unconscionability

Unconscionability is usually seen in the consumer agreements. If you are a good lawyer
you should respect the other party.

1) In case of inconspicuous writing: the Court may nd it unconscionable that provision

or the whole contract. ( inconspicuous: tiny tiny writings ).

You usually see it in the boiler plate language

if you go to the bank or go to the lease contracts ( usually the regular and and pre-
prepared contracts that are been sold in the stationeries, you see the same contract every
time you go)

*Maybe sometimes there can be incomprehensible language : if an average person

cannot understand from the langue. It does not matter whether the the clause is being
explained or the time is given for the one to understand the language. The Court may nd
it unconscionable. ( eline belgeyi tutuşturuyor, bunu bunu şuna bak diyor ama
anlaşılmayan bir dil var çok legal terimler var ya da eski kelimeler var. Mahkeme bunu
unconscionability olarak değerlendirebilir)

2) Adhesion contract= take it or leave: When it is impossible to make the agreement

with someone else ( like you can take loans any bank but there should be one service or
subject matter that there is only one provider. And the court may nd unconscionability.

if the buyer may not nd the same producer doom another seller then it might be
found unconscionable. But other contracts which fall under this situation because of the
fact that the buyer may not nd unconscionability. The courts usually dont nd them
unconscionable.

3) Exculpatory clauses

Basically, it is a provision that ec-xclupated one fo tthe parties from any wrong doings.

*Exculpatory language may be found unconscionable if the writing is inconspicuous.

*For ultra hazardous activities the court may uphold the exculpatory language.

Ex: there is contract that sates the skydiving management or the cruise ship operator will
not be responsible for the any damages or injuries etc.., they may try to get away from the
negligence, in case of any accident. It is extremely dangerous. If you are willing to get an
agreement and then get injured there is a problem. You cannot get away.

-> Either whole agreement is unenforceable and or the at least the one provision. In some
cases the court can nd either the whole contract or the stated clause.

14) Modi cation:

The change in one or more provision of the contract. If you change the terms you might
new consideration. !! consideration is needed!!!

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 The ship crew example: NYC-LONDON ship. It was their contractual duty, they could not
ask for more money for what they have to do.

The reason the modicaiton should be unforeseeable at the time the parties entered into
contract. But the reason can only be the freedom of contract.

Among lay people ( the parties does not merchants ) new consideration would be
required ro modify the KX:

if the KX falls under the UCC, if it between merchants, and if it is about the sell of
goos-> consideration is not needed

Remember the distinction between the option contract or the merchant’s rm o er. In
merchant rm o er consideration is not needed on the other hand in option contract it is
needed.

15) Novation

If the parties substitute all contract to another contract. In novation you are changing a
new one. You are substituting an old KX for a new one.The new Kx extinguishes the rights
and obligations of the parties under the old KX.

In modi cation is changing some of the terms under a contract. Modi cation you change
the terms of the contract. Basically there is an existed contract. The old one will not be
valid you are entering a new contract. The old one will not be enforaceble, all of the
obligations and responsibilities will extinguished.

Why novation? : Novation is usually about a re-scheduling the loans. You are using this
novation. Or you have borrowed some money from your friend and you are re-scheduling
the loans.

16) Anticipatory Repudiation [ UCC 2-609 + UCC 2-610 ]

There must bilateral and executory contract. So non of the parties should performed yet.

The word repudiation means breaching.

One party leans form a reliable source (or himself can nd out) that the one party shall
not perform. If there is a breach of contract you cannot sit and accumulate damages. You
have to do something to mitigate the damages.

When you nd out that the other party is not going to perform you ask for the reasonable
assurances ( are you going to be able to perform ? You basically ask that are you be able
to perform and show you the evidences. )

How to ask a reasonable assurance?

1) Demanding a written assurances.

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Attention! You cannot demand from the court maybe you may request but you should
‘beg’ the language should be like that

2) Between merchants-> what is generally used in that eld.

what is the reasonable approaches? There has to be a commercial standards in

that custom

And ask for the contractual damages. He may either stop the performance or continues.

Ex: Half tons of oranges from Alanya due date is 3 months later. - And there is 2 months
later there was a frost, and you understand that they cannot be perform. And if you sit
and wait the damages will be less. That is the reason by there is anticipatory reputation.
And if you sit and wait you as the non breaching party there will be less damages that is
accumulated.

——————————————

§ 2-610. Anticipatory Repudiation.


*for a commercially reasonable time, he may wait for the performance. Resorts any
reminds for breach even he has noti ed ( even though he waited for a reasonable time /
breaching party will be the one who learned the other cannot perform) one party hears
from reliable source that the other party will not perform

He has options about what to do after hearing from a reliable source:

*-> he may wait for reasonable time

*-> he may ask for a contractual remedy for breach of KX. Even if he said he is going to
wait for a commercially reasonable time.

*-> he may stop what he is doing or he may fo what he is supposed to be doing.

When either party repudiates the contractwith respect to a performance not yet due the
loss of which will substantially impair the value of the contract to the other, the aggrieved
party may

• (a) for a commercially reasonable time await performance by the repudiating party;
or

• (b) resort to any remedy for breach (Section 2-703 or Section 2-711), even though
he has noti ed the repudiating party that he would await the latter's performance
and has urged retraction; and

• (c) in either case suspend his own performance or proceed in accordance with the
provisions of this Article on the  seller's  right to identify  goods  to

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 the  contract  notwithstanding breach or to salvage un nished goods
(Section 2-704).

§ 2-609. Right to Adequate Assurance of Performance.

*He may demand written assurances. Even then he may stop what he is doing.
*Between merchants, it depends on the commercial standards.
There may be partial performances by the party who may notable to perform. Even so,
that is not going to a ect other party to ask for adequate assurances or remedies.

(1) A contract for saleimposes an obligation on each party that the other's expectation of
receiving due performance will not be impaired. When reasonable grounds for insecurity
arise with respect to the performance of either party the other may in writing demand
adequate assurance of due performance and until he receives such assurance may if
commercially reasonable suspend any performance for which he has not already received
the agreed return.

(2) Between merchantsthe reasonableness of grounds for insecurity and the adequacy of

any assurance o ered shall be determined according to commercial standards.

(3)Acceptance of any improper delivery or payment does not prejudice the aggrieved
party's right to demand adequate assurance of future performance.

(4) After  receipt  of a justi ed demand failure to provide within a reasonable time not
exceeding thirty days such assurance of due performance as is adequate under the
circumstances of the particular case is a repudiation of the contract.

*After 30 days if there is no information that one party will be able to perform, this is
considered reputation and other party can ask for damages.

You may nd out yourself.

The other party may show that a reliable source can show that

**You found out and you sit and wait, everyday the amount of damages will accumulate. If
you sit and wait, amount of damages will be higher.

——————————————

17) Assignment v. Delegation

Delegation: it is about transferring the duties, you have to ask permission the other party
for transfer.

Assignment: is about transferring the rights, no permission is needed for the transfer.

18) Damages

Important point here on the translation part:

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 Damages= hasar zarar değildir
zarar= injury
İf your property is damaged= this is hasar
But damages by alone it is tazminat?

When people enter into a KX, their expectation is intention to perform and other party to
perform.

Nevertheless, sometimes a breach happens for a reasons out of the control of the parties.
= force major, impracticability, frustration of purpose.

Otherwise you have to keep you promise. -> pacta sund servanda, right ?

When there is a breach, what will be the remedy for the non-breaching party ?

There are types of remedies :

*legal remedy

*equitable remedy ( started in England)

Rule : When there is no legal remedy, you resort to an equitable remedy.

If there is a legal remedy, you have to use it.

Equitable remedies are the case by case remedies.

Equitable remedy: speci c performance: when there is a unique item ( ex. Land, antique
vase, Picasso Painting) there may not be any remedy of law so that person msytt give
back the item according to performance.

*Injunction ( yürütmeyi durdurma ): court says stop what you are doing -, I am forbidden
you to fo it at this time.

ex. A singer makes another KX with another. Court cannot oder her to perform for the rst
KX for human rights. Court can use the remedy for injunction. Court cannot order her two
perform bu in order to keep justice Court decide injunction. Otherwise you become a
slave if Court orders you to perform ( involuntary servitude)

Restitution

If one of the parties has taken something he must give it back in order to prevent unjust
enrichment.

ex. A builds a pool for B. B refuses to pay. Even if the pool is halfway done, there is still a
bene t for B ( half-done pool) . Is restitution possible ?

NO, it is no possible.

ex. Some down payment has been given. Of other party breaches the KX, he has to
return the payment.

*What has been given to breaching party must be given back by the breaching party.

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Legal remedy: What type of interest can one party have?

Expectation interest

Reliance interest

Restitution interest

Expectation interest: (Müspet zarar) If other party had never breach the KX, what was
your expectation, where would you have been if he had not breached. 

*If the contract had been performed what would have the expectation of the non
breaching party.

ex. The pool has never been built, expectation was 10k USD pro t of the
house, builder breached the KX. You can only ask for 10k pro t as the non-
breached party.

Reliance interest : Where’d you had been if you have never signed an agreement with this
person.Places non-breaching party to the position he was before the KX. 

*where should have the non breaching party would have been if they were not entered
into a contract.

ex. The builder dug a hole to build a pool and spent 50k USD. And then breached.
Owner expected 10k. That 50k is the reliance interest. By digging a hole there is some
type of bene t but here it is not feasible be you dont want to keep a whole. Or the builder
hug the hole to burry a friend— just kidding, keep on going you got this! Put a smile on
and pour one more cup of co ee it will AALLL worth it.

You’ll either loose reliance or expectation He cannot have them all.

There is no restitution interest.

If the hole is with more than 50k, there may be restitution interest bu in the case there
most probably worn be any restitution because it is not feasable.

Restitution: If a bene t has been conferred, that bene t has to be somehow given back to
the breaching party in order to prevent unjust enrichment.

* it must be returned to non breaching party in exchange for promise, what has been
taken it should be given back to the non-breaching party.

( sebepsiz enginleşmeyi engellemek için restitution )

Example:

A (landowner) ——— 100k USD ———-> B ( builder)

A <———-———-———-garage ———B

To build a garage they enter in to an agreement. Agreement says it is going to be

done for 100,000 USD.

The builder did not spend any money for that:

Does the builder have any reliance interest?: there is no reliance.
He has not started to build the garage, there is no restitution interest here .

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 What is the interest that we have here, expectation interest. What is the expected
interest here ? 100k. Because at the end of the contract the builder expected to
have 100k from the landowners.

What if the builder before the breach if the contract, and if the builder dug a hole
and if he spends 15k USD to lay the foundations.

Does he have any expectation interest. The expectation interest is still 100k. The
type of interest here is the reliance interest.
Because he pay for the hole for digging the whole .
If you confirm a benefit to breaching party there is restitution. Thus the whole and
the foundations are the benefits for the landowner.

There are restitution, expectation and reliance interests. And the non-breaching
party should have select one of them. They can not go and ask for all of the
interests!

Types of damages :

*Compensatory, incidental, consequential, liquidated, nominal, punitive ( directly paid to

non-binding party)

Compensatory:

Are the actual damages.

You basically compensate his loss. The money the non breaching party would have made
what he would make it in the new employment.

Duty to mitigate: you have to do sth to listen your losses and damages

(money that breaching party promises) -( money in new job)= compensatory damages

Example: one person goes and buy a furniture from a furniture store. He hoes and asks
he does not receive the furniture that he had asked for. He must have return the money
and the transportation fees. What If he cannot nd the same furniture from somewhere
else? What if he nd it for extra 500 hundred dollars more, he can ask for that extra
payment he pay for. He cause the furniture frim will be asked for the compensatory
damages.

ex. ( from the same example above) Let’s say that he had ordered a bedroom set. He had
no bed to sleep that night. And the set is di erent what he had been sent is wrong. And
you go and lease furnitures. The lease payment will be incidental damages.

Incidential: how much money he would lose while looking for a new job. Money that this
employee extents while looking for a new job.

You are act supposed to make his spendings luxuriously high. Transportation a new suit
etc. will be incidental damages. ( like you got red for no reason, the expenses you make

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 while searching for a new job will be incidental damages-> The all of the expenses made
while have been searching a new job it will be incidental damage)

Any money that is spent by the non breaching party will be incidental to the breaching
party.

ex. Sale of goods agreement: buyer leaves the goods and arranges might be
perished and destroyed. Seller has to maybe hire cold storage to save the goods. The
amount of cold storage will be incidental damages bc buyer breached it.

Consequential : because of the breaching parties, there may be other damages that are
not really because of the breach.

ex. A Plummer comes to your house but does not do it properly and your house
oated. Everything is destroyed= consequential damage. As a result of breach there are
other things that are attached to the damage.

Damages incurred by the non-breaching party, without an action of the breaching party,
bc of the breach.

Plummer owes money for anything that is a result—not for the breach— he has not
breached!!

Consequential damages myst be foreseeable ( how we would see the oat ?)

Liquidated: states uphold how much money that non breaching party will be able to have.
It is written when they draft it they put it. If there are excessive, court will not pay
attention. It has to be fair.

*Is a type of provision in the KX and they both agreed upon for a certain amount of
money. Liquidated damages clause … It is a provision in the contract. If it is too much
and if it does not does not regulate.

Important : 1 million dollar agreement the 500k liquidated damages clause can be so
high. Maybe up to 100k.

If its agreement for 1000 USD and liquidated damages will be 50k USD it is going to be
fair.

Parties put a liquidated damages clause while they draft a KX.

* amount of damages will be alcove to the non-breaching party.

Nominal : just to show that there is some type of wrongdoing= in name only.

There is not anything that could be calculated. It might be 5 USD.

Punitive : basically to punish

It might happen in misrepresentation / tort cases but Court don’t have it.

Highly uncommon.

Punitive damages are the type of damages to punish the other party. And it is so rare for
the breach of contract sues. They can be used for the mispresrenstaiton cases. Punitive
damages set an example to make higher damages.

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 Equitable remedies:

Speci c performance

Injunction / covenant not to compete ( stop what you are doing )

Restitution -> must be given back to original owner.

If the geographic are is too wide Court usually do not accept the covenant not to
compete.

Home owner: A builder: B ( Agreement: to build a fence on 2000 USD)

B built the fence

However A basically does not want to pay. Normally amount fence is 2500USD in
that area.

The restitution amount is “you have to give what you have taken” A can only take
2000USD not 2500 USD. Only what was bene ted can be given back.

What if he has never built the fence? If he was never built it but agreement was on
2000USD and market price was 2500 USD. Could there be a restitution interest?

No because no bene t was given. But how are we going to calculate the damages ?

Builder expects 2000USD. Expectation interest is 2000USD. There is no reliance interests

because the builder still did not build the fence. It is just expectation interest.

di erence between 2500 and 200 cannot be asked either. There is only expectation
damages

A——house —-> B ( repudiated/ breached the KX)

<—120k USD—B ( B, pays the partial for 30k ) B changes his mind after payment. A
built the house, B does not want to pay.

A—110k———>C ( C: new buyer)

Di erence between 120k-110k = 10 k.

B Had already paid: 30k. 30k-10k=20k => 20k will be restitution interest of A to B.

If A would have sold the house to 140K USD to C, only 30k would have been taken back
to B.

* to get an equitable remedy, there must be no remedy of law.

* Equitabşe rmedies cannot be asked together. You have to chose

* It is decision of lays to choose wither tort case ot brach of contract case to initiate.
Especially if there is misrepresentation it is possible to do that.

Compensatory damages ( actualy damages)

Actual losses of non-breaching party.

Ex. Direct necessary losses will be covered because of breach of the KX. A-B enter into
KX. A wants to buy furnitures from B (company). Furniture is delivered, A nd out they
delivered the wrong furnitures -> delivery fees + transportation.

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They day that they dint have the earn set. They have to this money back and the
compensate the transportation.

If they have the same set they must give it and pay for transportation fees.

Consequential Damages ( special damages )

There must be special circumstance and seller must be aware of them. Plummer example
: he had to foresee that his failures would be a result of such ood.

ex. On the day he buys the TV set, he sells his old TV set. He wants to watch the World
Cup that evening—the day that the delivery is promised. To watch the game he rented a
tv set. The rental fee will be consequential damage. -> seller must be aware he sold the tv
to watch it. There is no direct damages.

Breaching party knew the circumstances -> this must be proven. By the non-breaching
party.

Example:

S———seller sells 600,000 of nails——-> buyer

The seller does not deliver 600,000 nails. And agreement ask for 6,000USD.
And it end up by delivered 400,000. Now the buyer receive less 200,000 nails that
have been agreed upon.

Same kind of nails in the market price 5 cent/each.

There is breach of contract.

At the beginning of the contract, there the nail was 1 cent /each.

[600,000-400,000] * [0.05-0.01] = 200,000*0.04 = 8000

-> Expectation interest but compensatory damage. He had the duty to mitigate. If
the nails are less than 1 cent, 0.5 cent. What can he do.
İt will consequential damages.
Incidental = söpleşmennş ihlalinden doğan ama yan birtakım şeylerinden doğan
damages -tır.
You get into an agreement from a farmer by mersin, turkey and it will be delivered
to Germany. Some reason, the buyer did not take the delivery in Munich. And ithe
oranges must be at the special cooling systems. This is the incidental damage.

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