CHECKLIST

DEFENSES:
MISREPRESENTATION
1) False statement
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2) Statement fraudulent OR material

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3) Actual Reliance
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4) Justifiable Reliance
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NON DISCLOSURE
did the party fail to disclose a known fact?
did the party have a duty to disclose the fact?
was the disclosure necessary to prevent a
previous assertion from being a
misrepresentation [a false statement]?
was the fact fraudulently withheld for
purpose of inducing action?
- If yes, then equivalent to fraudulent
misrepresentation
what was the basic assumption parties were
under upon which the K was made?

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 was there a mistake in the contents of the
writing?
Was there some relation of trust and
confidence between the parties?
Was the fact material?
Did the party actually rely on it?
was the reliance justifiable?

CONCEALMENT
did the party make an active effort to conceal the
fact?
was the fact material?
did the other party actually rely on it?
was the reliance justifiable?
MISTAKE
was there a mistake of present fact?
was there a basic assumption?
was there a material effect?
was there any assumption of risk?
UNILATERAL MISTAKE
was there a mistake of present fact?
was there a basic assumption?
was there a material effect?
was there any assumption of risk?
did the non-mistaken party know of mistake? OR
caused the mistake? OR

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 was it unconscionable to enforce the contract?
DURESS
was there a wrongful act?
was there an indication of a deprivation of free will?
UNDUE INFLUENCE
was there an undue susceptibility to pressure by
the party?
to what capacity?
was there a confidential relationship?
was there any unfair persuasion?

ECONOMIC DURESS
was there an improper threat?
(a) was the actual threat criminal or tortious?
(b) was the civil process in bad faith?
(c) was there criminal prosecution?
(d) was there a breach of good faith under an
existing contract?
were there any unfair terms and abuse of
power?
did you find one of the four above
PLUS unfair terms?
was the partys assent induced to form contract?
was there a lack of a reasonable alternative?
ILLEGALITY
was the contract against public policy?

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 was it void?
was it voidable?
INCAPACITY
was the party a minority?
did they have the mental capacity?
was the party incapable of acting reasonably?
was there a sign of intoxication?
UNCONSCIONABILITY
was there procedural unconscionability?
was there oppression or surprise?
was there formation?
was there substantive unconscionability?
were there the terms unconscionable?
STATUTE OF FRAUDS
Does it fall within SOF which means does it need to
be written down?
M
Y
L
E
G
S
does it meet the writing requirements?
Contract for land
Sale of Goods $500 -- $X.XX
Signature of parties Pawes

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