-
Define CONTRACT
An agreement between two people or more to do or not to do a certain thing, which if breached, the law will give recovery.
Requires a valid offer, valid acceptance and consideration.
- Additional requirements:
- 1. Parties having legal capacity to contract
- 2. Mutual consent
- 3. Lawful objective
- 4. Sufficient Consideration
-
Define CONSIDERATION
Any act or forbearance that is a benefit to the promisor or a detriment to the promise that is bargained for in exchange.
- Elements:
- 1. Legal Detriment
- 2. Bargain for Exchange
-
Define LEGAL DETRIMENT
Doing that which you are not obligated to do or refrain from doing that which you are entitled to do.
-
Define BARGAIN FOR EXCHANGE
The promise must induce the detriment and the detriment must induce the promise.
Promisee must know of the promise and act in reliance on the promise.
-
Define GRATUITOUS PROMISE
A promise to make a gift in sometime in the future and is not in exchange for anything
-
Defined CONSIDERATION
- Any act or forbearance tha tis a benefit to the promisor or detriment to the promisee that is bargain for in exchange. It must arise in the context for a bargin for exchange.
- POLICY: Courts do not want to enforce gratuitous promises.
-
Define LEGAL DETRIMENT
Doing that which you are not obligated to do or refraining form doing that which you are legally entitled to do.
-
Define BARGAIN FOR EXCHANGE
- The detriment must induce the promise and the promise must induce the detriment.
- If the promise is bargained for, there is no further requirement of benefit to the promisor or a detriment to the promisee.
-
Defined PRE-EXISTING DUTY RULE
- Merely doing or promising to do that which one is already legally obligated to do is no cosideration. Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration.
- EXCEPTIONS: New promise to pay a past debt, Agreement to accept a smaller sum un non-liquidated damages, Contract Modification
-
MORAL OBLIGATION
- Generally does not support consideration.
- A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice.
- A promise is not binding under (above) if the promisee conferred the benefit as a gift or for other reasons the promisor has not been unjustly enriched; or to the extent that its value is disproportionate to the benefit.
-
Define ILLUSORY PROMISE
A promise conditioned upon the whim of the promisor, leaving the election of whether or not to perform solely to the promisor's whim.
-
Define PROMISSORY ESTOPPEL
- Where a promise foreseeably relies on a proimse and changes their position to their detriment as well as injustice can only be avoided by enforcement of the contract.
- ELEMENTS: forseeability, reliance and injustice.
- Can only recover reliance damages and not expectatio damages.
-
Define OFFICIOUS INTERMEDDLER
One who acts intrusively in conferring a benefit cannot get restitution form the recipient.
-
Define QUASI-CONTRACT
- An obligation created by law for the sake of justice.
- ELEMENTS: D enriched or received a benefit, the rentention of such benefit without remuneration would be unjust, and at the time of rendering the benefit P expected payment form D.
-
OBJECTIVE THEORY OF CONTRACTS
- legal concept that a binding agreement exists between two (or more) parties if a reasonable person would judge from the outward and objective acts of the parties and the associated circumstances that an offer has been made and accepted.
- ELEMENTS: agreement exist, object/outward acts of the parties and associated circumstances.
-
Defined OFFER
- A manifestation of willingness to enter in a bargain, which created in the offeree the power of acceptance.
- ELEMENTS: Outward manifestation, intent (PKI), Definite and Certain in Terms (QTIPS), Communicated to Offeree
- Quotes and Advertisement are presumed to be invitations to negotiate
-
Define FIRM OFFER
- an offer bya merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable for lack of consideration during that time.
- if no time is stated then reasonable time
- cannot exceed 3 months
-
Define ACCEPTANCE
- A manifestation of willingness to be bound the terms of the offer made in a manner invited or required by the offer.
- Bilateral contracts - preparation v. beginning performance
- Silence - along not acceptance except for previous relationship/dealings and offeree making use of consideration
- Reasonable time to accept
- certainty of terms: certain if can provide basis for breach and remedy
- Notice can be dispensed of
-
"MIRROR IMAGE RULE"
- an acceptance which contains additional or different terms or which in any way varies form the terms the original offer operates as a rejection and counter offer.
- an offeree's power of acceptance is terminated in the making of a counter-offer, unless the offeror has manifested a contrary intention or unles the counter-offer manifest a contrary intention of the offeree.
- EXCEPTION: UCC 2-207
-
UCC 2-207 "BATTLE OF THE FORMS"
- Additional or different terms are treated as proposals for addiitonas to the contract
- Between MERCHANTS the terms become part of the contract unless: (1) the offer expressly limits acceptance, (2) the terms materially alters the contract, or (3) notification of objection to additional terms is given in a reasonable time.
- DIFFERENT TERMS: Majority states discrepant terms fall out and are replaced by suitable UCC gap-fillers.; Minority/CA states different terms are treated the same as additional terms (above).
-
Define "MAILBOX RULE"
- Acceptance is effective upon dispatch. Acceptance is deemed to be fully communicated when the offeree has placed the acceptance into the course of transmission to the offeror.
- Offeror assumes the risk
- Only applies if mail is the manner or medium invited by offer
- EXCEPTION: Option contracts only effective when received
- REJECTION/REVOCATION: Majority rule states effective upon receipt.; Minority/CA states effective upon dispatch.
-
Define REVOCATION
- An offer may be withdrawn at any time prior to acceptance.
- ELEMENTS: Must be communicated to offeree, prior to acceptance.
- Express Revocation: giving actual notice to the offeree
- Implied or Indirect Revocation - next card
-
IMPLIED OR INDIRECT REVOCATION
- When the offeror takes action in consistent with keeping the offer open and the offeree received reliable information of the fact
- ELEMENTS: actions inconsistent, reliable notice to the fact
-
Define OPTION CONTRACT
- A promise not the withdraw or revoke an offer for a stated period of time.
- To be enforceable: (1) Consideration, (2) Merchant Firm Offer, (3) Detrimental Reliance, (4) created in Unilateral contract one performance has begun
|
|