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56 Cards in this Set
- Front
- Back
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What is an offer?
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Expressing an intent to enter into a contract,
with a promise to undertake a definite certain commitment that is communicated to offeree |
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What circumstances support the finding of an offer?
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Language,
prior relationship method of communication (private vs media) industry custom |
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What do land sale contracts require to be valid?
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Identify land and price
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What must be specified in an employment K?
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Duration of employment
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What is a gap filler?
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Think UCC, Sales. Court will supply reasonable price and performance time terms
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How does revocation terminate an offer?
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When received and offeror can revoke at will if no performance or detrimental reliance.
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When is it difficult to revoke an offer?
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When there is an option supported by consideration or
a firm offer under the UCC or in a unilateral K when performance begun. |
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Rejection by an offeree. Talk about it.
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Expressly or by counteroffer.
Rejection is effective when received. |
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An offer can be terminated by other things. And they are?
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Death or insanity of either party.
Destruction of subject matter or Supervening illegality. |
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An acceptance is
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An offeree with the power of acceptance, who responds unequivocally who in turn communicates his acceptance.
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What happens when both parties are merchants and additional terms are proposed in the acceptance?
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They become part of the contract unless they materially alter the agreement or there is an objection.
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What happens if an offeree performs under a bilateral K and then later finds out there was an offer?
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Unless offeree knows of the unilateral offer when he gives performance, then it is not performance.
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Consideration supports a contract. What are the elements of consideration?
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1. Something bargained
2. That has legal value. |
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Gift is not consideration. But what about forbearance or any act by promisee?
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If it benefits the promisor, great. Does not have to be econonmic benefit, can be peace of mind.
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A promise given in exchange for something already done isn't consideration. But
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It is when there is a new promise. .
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What is token consideration?
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something given as consideration that is devoid of value.
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Give some examples of consideration that is mutual.
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Requirements and outputs (all the x you can produce)
Contracts where rt to cancel is restricted Gratuitous surety K's given before $ to debtor. |
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What is mutual mistake?
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A mistake goes to a basic assumption of the K
Having a material adverse effect Adversely affected party did not assume risk of mistake |
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How to analyze the basics of a contract
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Offer
Acceptance Consideration Lack of defenses to formation enforcement |
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Is a contract induced by misrepresentation or fraud void or voidable?
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Voidable.
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Statute of Frauds means that
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Certain agreements must be in writing.
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If those agreements must be in writing, what kind of writing must there be?
Id SubMat Te Rec-con Sig |
Identity of parties
Contract's subject matter Terms and conditions Recital of consideration Signature of party charged. Does not have to be formal, can be many pieces of paper, or fax. |
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When does SOF not apply?
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When part performance removes it from SOF.
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What is the acronym for contracts that are subject to the SOF
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Marriage
Year >1 Land Executory Goods > 500 Suretyship |
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What kind of third party beneficiary has rights in a contract?
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Intended not incidental benes
have contract rights. |
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How do we determine in third party bene has contractual rights as an intended bene?
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Is the inten-bene ID'd in the contract, does he receive performance directly from the promisor or has relationship with promisee which indicates intent to benefit. A donee beneficiary is a person who promisee intends to benefit gratuitously.
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How do we know that someone has vested rights from a third party contract?
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Was beneficiary part of the orig promise?
3PB to receive performance directly? Did third party assent, materially change position or have to sue on the Contract? |
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What are documents that can come into evidence when the parol evidence rule is in play?
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Documents that
Discuss formation defects demonstrate cond precedent to K Show consideration problems prior valid agreement that is incorrectly id'd in the writing |
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What is the parol evidence rule?
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Evidence of prior/contemporaneous negotiations and agreements that contradict or modify contract terms inadmissible if document is complete and final expression of agreement.
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What is a constructive condition in a contract?
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Something read into the contract by law that dictates time and manner of performance without regard to parties' intention.
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Conditions can be excused three ways
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Failure to cooperate
Actual Breach Anticipatory repudiation (can sue, suspend performance or rescind and treat K as discharged) |
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Impossibility is measured by an objective standard of something that occurred post-formation. What does it mean and what does part performance give rise to?
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Death or destruction of subject matter of K and part performance gives rise to quasi-K recovery.
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Accord and satisfaction is an agreement to take partial payment on a debt. Does it suspend one party's duty to perform?
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No, accord means that an agreement suspends the duty and that the performance of the satisfaction side discharges both the original and the current obligations.
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Name five factors for determining materiality of breach
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Amount of benefit received by NonBr
Adequacy of Consideration Extent that breacher performed Hardship to breaching party Willful behavior by breaching party |
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Timeliness is not of the essence unless in the contract. Is it grounds for breach?
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Not unless so stated.
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There are two kinds of compensatory damages. What are they?
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"Standard measure" (cost of sub) and Consequential damages.
Non-breacher may recover both. |
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If consequential damages are speculative, what can non-breacher get as damages?
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Reliance damages (or cost of performance up to this point)
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What are damages for sale of land?
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Difference between sale price and FMV
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Employment contracts are a little different in terms of damages. What happens in case of breach by each?
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If employer breaches, entire term of contract less wages already earned. If breached by employee, it is the cost of replacing them, less wages owed.
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Consideration is not present when there is a
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gift
promise for moral or past consideration pre-existing legal duty (except where new or different consideration promised or where duty owed to 3rd party |
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Promissory estoppel elements are:
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Promise which reasonably expects action to induce forbearance of
a definite and substantial character which induces reliance |
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What is mutual mistake?
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Both parties
mistake regarding basic assumption on which K was made with material adverse affect no one assumed risk of mistake |
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Statute of Frauds
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Agreement must be in writing to be enforced. These are:
Marriage Year Land Executor Goods 5G Surety |
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To meet SOF a writing must show:
I3conSigned |
Identity parties
Contract subject matter Conditions agreement Consideration Sig |
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Intended contractual beneficiary has rights in K. Consider if they are:
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identified in K
are to receive performance directly some relationship to promisee |
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Creditor beneficiary is one who has
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debt owed to him directly by promisee
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Third party acquires contractual rights when:
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Rights vest when
3rd Party assents to promise in manner requested by parties brings suit to enforce promise changes position in reliance on promise |
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Assignment of rights. What can't be assigned?
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Anything that changes duties or risk; future contract rights
anything prohibited by law |
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Parties can stop assignment by entering a clause that says:
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Assignments will be void
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What makes an assignment irrevocable?
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Doing it with consideration
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All duties can be delegated except those:
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Involving personal skill;
special trust output k's |
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Parol Evidence rule bars evidence of
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Contemporaneous or prior negotiations especially where merger clause exists (contract good on its face)
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Parol evidence rule has exceptions. They allow evidence of:
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Formation defects (fraud, duress)
Ambiguous terms consideration problems prior valid agreement incorrectly reflected in current agreement and subsequent modifications |
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Anticipatory repudiation takes place when:
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There are duties to be performed on both sides of k so that both sides can sue, suspend performance, offer to rescind and Ignore and urge performance
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One's duties are impossible under K when
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Death of K party (of duties that cannot be delegated) , incapacity of same, or destruction of subject matter of k
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Is the breach material or minor? Look for:
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Amt of benefit received by non-breacher
Adequacy of Consider paid Extent of part performance Hardship to breaching party Negligent or wilful behavior Likelihood that breaching party will perform balance of K |
