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definition of offer
an offer is an objective manifestation of a willingness by the offeror to enter an agreement that conveys the power of acceptance to the offeree
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unsolicited merchandise rule
Any unsolicited and voluntarily sent merchandise is an unconditional gift and NOT an offer. Recipient may use or dispose as she sees fit.
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revocation in unilateral contract: general rule
An offeror can revoke an offer to form a unilateral contract at any time up until the offeree completes performance
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If an offer to enter into a contract for services or real estate is _______, _______, and _______then the offeror may not revoke the offer during the stated option period (or a reasonable period of time if not stated). NOTE: doesn't apply to firm offers since subject to the UCC
made in writing, signed by the offeror or his agent, and the writing specifies that the offer is irrevocable,
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A promise to pay a reward for the return of lost or mislaid property is valid only if _____.
the promise is in writing or promisor otherwise caused it to be published.
Oral offers of reward are NOT enforceable
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Past consideration is good consideration if:
- 1. the consideration is expressed in a writing by the promisor or her agent
- 2. the consideration is proved to have been actually given or performed; and
- 3. consideration would be valid consideration but for the time when it was given or performed
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Infants in NY are under 18. May not disaffirm contract solely because party is an infant if ( 5 categories):
- 1. all contracts entered into by a person 18 or older (not infants)
- 2. involves the marital home
- 3. infant performs artistic or athletic services that have been approved by either the NY supreme court or surrogates court
- 4. student loan contracts if 16 or older
- 5.life insurance contracts entered into by those 14.5 or older
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Usurious contracts: general rule:
Consumer and personal loans with an interest rate exceeding 16% are usurious. In most cases, usurious rates are illegal and void.
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Exculpatory clauses and limitation of liability: general rule:
Enforceable against simple or mere negligence claims, but are unenforceable against gross negligence
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Exculpatory clauses and limitation of liability: exceptions:
- 1. provisions in contracts for construction, repair, alteration or maintenance that purport to exempt owner, builder, etc from liability for negligence are against public policy and are void and unenforceable.
- 2. Agreements (including on admissions tickets) purporting to exempt from liability owner or operators of swimming pools, gyms, and places of public amusement or recreation AND such places impose a fee for their use, against public policy
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noncompete provisions in employment agreements: 4 conditions must be met to uphold
- 1. covenant must be reasonable in time and geographic scope
- 2. necessary to protect the employer's legitimate interests
- 3. covenant must not be harmful to the general public; and
- 4. not unreasonably burdensome on the employee
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pay if paid provision: general rule:
Against public policy for a general contractor to insert a provision into a contract with a subcontractor which state that the GC does not have to pay the SC unless the GC first gets paid.
-This operates as forbidden waiver of the right of a subcontractor to enforce a mechanic's lien if not pied
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An irrevocable assignment of rights will not be unenforceable just b/c no consideration IF:
- in writing AND
- signed by the assignor or her agent
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For signature to satisfy the Statue of Frauds, the name used must be:
inserted or adopted with intent to authenticate the writing in question.
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oral contract for the transfer of an interest in real property is enforceable and does not require a writing if buyer:
- i. makes partial or full payment
- ii. substantially improves the property
- iii. takes possession of the property
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In addition to common law M.SOUR, NY requires these 4 agreements to be in writing:
- 1. a subsequent or new promise to pay a debt that was discharged in bankruptcy
- 2. assignment of an insurance policy or a promise to name a beneficiary in an insurance policy
- 3. a contract to pay compensation for services rendered in negotiating real estate or a finders fee
- 4. agreement to change, modify, or discharge a contract or other obligation involving real or personal property
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Unless contract explicitly states time is of the essence, a material breach not be found solely because party fails to perform by that specified date
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Landlord under no obligation or duty to the tenant to re-let or attempt to re-let abandoned premises in order to minimize damanges
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Three options for landlord if tenant abandons:
- 1. Do nothing and collect full rent due
- 2. Accept tenant's surrender, re-enter, and re-let for landlord's own account thus releasing tenant from further liability
- 3. Notify tenant that entering and re-letting premises for the tenant's benefit. Tenant on the hook for any shortfall.
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