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35 Cards in this Set
- Front
- Back
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Basic Elements of a Contract
4 |
1. Offer
2. Acceptance 3. Meeting of Minds 4. Consideration |
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Mutual Assent,
two questions asked |
A showing of Mutual Assent is necessary for an enforceable contract.
1. Has there been an OFFER to contract? and 2. An ACCEPTANCE of that offer? |
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Are Social Agreements binding offers?
i.e; Tony is a Bridge player, every year he holds tournament. invites and needs X amount of players. Bob doesn't show. No X, Tournament canceled. Tony sues for costs. Does Bob have to pay? |
No. Social Agreements are not binding offers.
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Three Categories of Contracts:
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1. Express
2. Implied in Fact 3. Implied in Law |
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Implied Contract
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Contract where the parties acted as if they had assumed that a contract did exist.
An agreement which is found to exist based on the circumstances when to deny a contract would be unfair and/or result in unjust enrichment to one of the parties. i.e; one party agrees to paint the house of another party with some ambiguities to the terms, and while the party is performing the painting, the other party does no object. Clear contract is IMPLIED as valid otherwise the homeowner would be unjustly enriched. |
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Express Contract
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Assent to the terms of the contract is actually expressed in the form of an offer and acceptance.
A contractual agreement where all the essential terms are stated clearly and are explicit as opposed to their meaning being implied through interpretation of the terms. |
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Implied in Law
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A quasi-contract is a fictional contract created by courts for equitable, not contractual, purposes. A quasi-contract is not an actual contract, but is a legal substitute formed to impose equity between two parties.
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Equitable Estoppel
(estopel in pais) |
Protects one party from being harmed by another party's voluntary conduct.
Voluntary conduct may be an action silence, acquiescence, or concealment of material fact. Rationale is to prevent injustice due to inconsistency or fraud. i.e; olga married frank in mexico. for 30 years they thought they were married. had divorce in U.S., turns out it was void, but olga got the house and boat and alimony because They both assumed they were married, frank can't suddenly find out it was void and use it as a defense. |
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Adhesion Contract
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A contract that contains terms which consumers generally cannot negotiate. "Take it or leave it", Unequal Bargaining Power
Kortum-Managhan v Herbergers - Credit card bill stuffer used as a change in agreement, continued use of CC was acceptance of offer. Appellate court ruled this not sufficient notice, bill stuffer is a joke. No one reads that junk. |
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Acceptance of an Offer
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Manifestation of assent to the terms thereof made by the offer in a manner invited or required by the offer.
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Acceptance by Performance
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Requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.
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Acceptance by Promise
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Requires that the offer complete every act essential to the making of the promise.
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Unilateral Contract
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Promise is exchanged for an Act/Performance. Full performance must be met for the contract to be made.
i.e; "I promise to give you $20 if you wash my car." The Offeree accepts the offer by performing an act which indicates their agreement with the bargain. |
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Bilateral Contract
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Two promises are exchanged for one another.
"I promise to buy your car; I promise to sell it to you." |
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Gap Filler
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When parties to an agreement fail to make provisions for a particular matter.
Remedy to a breach in contract. Based on two conditions: 1. Court or law will supply terms when the parties have left gaps to their agreement. AND 2. That the court or law will police the bargain and will impose guideposts for fairness in situations that creates difficulties. |
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Mirror Image Rule
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The acceptance has to match the offer in every detail.
If there terms of the acceptance differ from the offer at all, it constitutes a counter offer. |
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Counter Offer
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A rejection of the original offer, plus a new offer, which vests the original offeror with the power to create a contract by accepting the counter offer.
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Mail Box Rule
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Mail is an appropriate form of communicating acceptance. As soon as the person puts it out of his her hand into US Post, acceptance has been made. No matter what the offeror tries to do before they receive the mail. If you can prove when you mailed it, that is when it is accepted by the offer. Unless the offeror specifies that it "has to be in my hand, or when we receive it."
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Silence as Acceptance
or Exercise of Dominion 1.abcd 2. |
1. Where an offer fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:
a. Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation. b. Where the offeror has stated or given the offer reason to understand that assent may be manifested by silence or inaction and the offer in remaining silent and inactive intends to accept the offer. c. Where because of previous dealings or otherwise, it is reasonable that the offer should notify the offeror if he does not intend to accept. 2. An offeree who does any act inconsistent with the offeror's ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable. But if the act is wrongful as against the offeror it is an acceptance only if ratified by him. |
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Knowledge of Offer
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To Collect a reward for something, you must have knowledge that there was a reward.
Detective solves murder case. Perp is arrested. Next day Detective finds out that there was a $10k reward. He can not collect because he had no knowledge which means there was no acceptance of the contract to collect the reward for the performance. |
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Boilerplate
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Slang for provisions in a contract, form or legal pleading which are apparently routine and often preprinted. The term comes from an old method of printing. Today "boilerplate" is commonly stored in computer memory to be retrieved and copied when needed. A layperson should beware that the party supplying the boilerplate form usually has developed supposedly "standard" terms (some of which may not apply to every situation) to favor and/or protect the provider.
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Methods of Termination of the Power of Acceptance:
1.abcd 2. |
1. An offeree's power of acceptance may be terminated by
a. rejection or counter-offer by the offer, or b. lapse of time, or c. revocation by the offeror, or d. death or incapacity of the offeror or offer 2. In addition, an offeree's power of acceptance is terminated by the nonoccurrence of any condition of acceptance under the terms of the offer. |
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Master of Acceptance is..
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OFFEROR
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Dickinson v. Dodds
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Rule: To constitute a contract, two minds must be as one, at the same moment of time, that there was an offer continuing up to the time of the acceptance. If there was no continuing offer, than there was no contract.
Dickinson knew Dodds had already sold the property. This knowledge is the same as Dodds saying "I withdraw the offer." Since Dickinson knew, he could not accept the offer. No contract. |
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Does lapse of time terminate an offer?
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Yes. If no time specified, than use Reasonable time. Service must be done within a reasonable time after the offer is made.
Rule in: Loring v. City of Boston (arson reward) |
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UCC 2-204
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If the parties intended to enter into a contract, a contract exists.
1. contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. 2. An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. 3. Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. |
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UCC 2-205
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Firm offers:
i. A signed offer by a merchant to either buy or sell goods at a fixed price, keeping the offer open for a fixed period of time. ii. Time limit of offer: 3 Months |
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UCC 2-206
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ACCOMMODATION TO THE BUYER
3 Modes in which acceptance of an offer is possible. 2-206 (1) - Unless otherwise unambiguously indicated by the languor or circumstances (a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable under the circumstances. (3 modes): 2-206(b) 1. prompt promise to ship; or 2. prompt or current shipment of conforming or non-conforming goods; or 3. beginning of requested performance, if it is "reasonable" under the circumstances.(either where the seller is out of stock of the item and has to replace inventory or where s/he needs to manufacture items for the buyer) Example: Accommodation to the Buyer- If seller sends X9 widgets and says to the buyer, “I know you ordered X7 but we now have the new and improved X9. I am sending them to you because I know you like the newest and best stuff,” Then a contract has not been formed. This is a counter offer and the buyer can decide whether to accept or not. |
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UCC 2-207
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Battle of the Forms
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Common Carrier Law, what does it deal with.
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Railroads, airlines, busses, anything that takes people and sometimes goods.
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Indefiniteness
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The parties may not give verbal expression to such vitally important matters as price, place, and time of delivery, time of payment, amount of goods, and yet they may actually have agreed upon them. This may be shown by their antecedent expression, their past action and custom, and other circumstances.
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UCC Requires courts to look to the following matters as aids for:
CONSTRUCTION OF THE CONTRACT 3 |
1.Usage of trade.
2.Course of dealing. 3. Course of performance. |
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Usage of Trade
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Custom within any given industry
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Course of Dealing
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The parties' conduct in past contracts with one another.
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Course of Performance
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What the parties do while performing this one contract.
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