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40 Cards in this Set
- Front
- Back
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Quasi Contract
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Not a contract' legal jargon created by courts to prevent unjust enrichment of a defendant by allowing the plaintiff to seek restitution of a benefit conferred upon the defendant
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Implied Contract
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one formed by an indication of assent other than specific words; using water and light indicates acceptance of utility services
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Void Contract
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an agreement that had no legal effect and was invalid from the start, such as an agreement to commit murder
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Voidable Contract
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One or both parties may chose to avoid or may ratify; applied to contracts of minors
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Unenforceable contract
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One that cannot be enforced because of the defenses to the contract; ex. statute of limitations
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Executory Contract
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one in which some obligation or duty remains to be done by one or more parties
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Executed Contract
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A contract in which all parties have fully performed their obligations
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Three criteria to create a valid, enforceable contract
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1) existence of MUTUAL ASSENT
2) existence of CONSIDERATION 3) absence of DEFENSES that would prevent enforcement of the contract |
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Criteria for "mutual assent"
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The terms of the offer must be DEFINITE and CERTAIN (identify of offeree and and a definite subject matter). It must also be communicated to the offerree. There must be an offer and acceptance
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What are things that constitute a termination of an offer
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1) Revocation
2) Rejection 3) Lapse of Time 4) Termination of Operation of Law |
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Name the types of limitations on revocation powers
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1. Option
2. UCC Firm Offer 3. Detrimental Reliance 4. Part Performance of a Unilateral Contract |
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What is an OPTION?
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It is an independent contract in which the offeror received separate consideration from the offeree to keep an offer open for a stated period of time.
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What is a UCC FIRM OFFER?
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A firm offer by a merchant to buy or sell goods, represented by a signed writing that promises to hold the offer open for a stated time, cannot be revoked for lack of consideration during that time.
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What is DETRIMENTAL RELIANCE?
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Detrimental reliance prevents revocation of an offer for a reasonable time when the offeror should expect that the offeree would rely on the offer to his or her detriment.
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What is PAST PERFORMANCE OF A UNILATERAL CONTRACT?
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Where a performance has been started but is not complete, it would be unfair to allow the offeror to revoke the offer
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3 Common Law Rules regarding acceptance of a contract
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1. Statements by the offeree that make implicit terms explicit do not prevent acceptance
2. A grumbling acceptance is valid 3. A request for clarification does not necessarily indicate a rejection and counteroffer |
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UCC rules regarding acceptance
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1. Consistent terms - the additional terms proposed in the offerree's acceptance become terms of the resulting contract (do not materially alter the contract)
2. Inconsistent terms - the additional terms proposed materially alter the contract 3. Either party can avoid effects of 2-207 - Either offeror or offeree can respond with clear rejection and counter-offer |
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What is UCC 2-207?
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Unlike common law rules, this says that a proposal of additional terms by the offerree does not constitute a rejection
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How ACCEPTANCE is communicated
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1. Common law
2. UCC and Second Restatement 3. Mailbox rule 4. Acceptance by Unauthorized Method 5 Crossing offers |
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How can someone accept a contract without communication?
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1. Express waiver
2. Silence as acceptance |
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How can you accept a contract with silence?
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1. the offerree had a reasonable opportunity to reject them
2. offerree should have known that the offeror expect to be compensated |
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What is an express waiver?
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An offer, by its terms, may waive any communication of acceptance.
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What is the mailbox rule?
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Acceptance by mail or by a similar medium creates a contract at the moment of posting, properly and stamped
unless 1) the offer stipulates that acceptance is not effective until received 2) An option contract is involved (acceptance under an option contract is effective only upon receipt) |
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How can one accept a contract under common law?
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Whether an acceptance became effective upon dispatch or upon receipt depended upon whether the offeree use an authorized method of communication under common law rules
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How can one accept a contract by unauthorized method?
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If an acceptance is sent by an unauthorized method (or improperly sent by an authorized method), it still may be effective if it is actually received by the offeror while the offer remains open.
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How can one accept a contract through UCC and Second Restatement rules?
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Under UCC, an offer may be accepted by any "medium reasonable in the circumstances." The offeror still may limit acceptance to a particular method but must do so clearly.
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How can one accept a contract through crossing offers?
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If offers containing exactly the same terms cross in the mail, they do not create a contract despite the apparent mutual assent. An offer cannot be accepted until there is knowledge that is has been made
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What are the two requirement for consideration?
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1. There must be a bargained-for exchange between the two parties
2. The bargained-for exchange must provide some benefit to the promise or must provide some detriment to the promisee |
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When is a promise supported by consideration?
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1. The promise gibes up something of value or restricts his liberty in some way (suffers a legal detriment); and
2. The promisor makes the promise as part of a bargaining process; he makes the promise in exchange for the promisee's giving of value or restriction of liberty |
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Types of BARGAINED-FOR EXCHANGES that lack consideration
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1) Gift
2) Past Consideration or Moral Obligation |
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Bargained-for exchanges that may be enforceable
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1) Technical Defense - if the past obligation would be enforceable except that a technical defense stands in the way, many courts will enforce the new promises if it's in writing or has been partially performed
2) Promise to Pay for Past Requested Act - both requested and unrequested acts |
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Preexisting legal duty
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The traditional rule has been that the promise to perform (or the performance of a preexisting legal duty is not sufficient to create a contract
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What are the three exceptions for preexisting legal duty's inability to possess consideration?
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1. New or different consideration - if the promisee gives someting new in return for the promise she now seeks to enforce or agrees t ovary her preexisting duty in some way, there is consideration
2. Honest dispute as to duty - if the scope of the legal duty owed is the subject of honest dispute, then a modifying agreement relating to it will be given effect 3. UCC Exception |
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Types of legal value
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A. Exceptions fo preexisting to legal duty
B. Existing Debts C. Forbearance to Sue |
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What are the components of consideration?
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1. Bargained-For Exchange
2. Legal Value 3. Mutuality of Consideration |
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What are substitutions for consideration?
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1. Promises under seal
2. Promises in writing 3. Promises to pay obligation barred by law 4. Promissory Estoppel |
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Promise Under Seal
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Substitute for Consideration
Common law recognized the seal (a wax impression of notary's mark) as a substitute for consideration |
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Promise In Writing
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Substitute for Consideration
A promise in writing may be enforced despite the absence of consideration in a few states simply because it is in writing, |
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Promise to Pay Obligations Barred by Law
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Substitute for Consideration
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Promissory Estoppel
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Substitute for Consideration
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