Contracts

Front 1

Definition of K

Back 1

Legally enforceable agreement

Front 2

Bilateral K

Back 2

An offer that is open as to the method of acceptance: performance or return promise

Front 3

When not bilateral (2)

Back 3

1. reward, prize, contest
2. offer expressly requires performance for acceptance

Front 4

1. sale of goods - which applicable law?

2. Services K - which applicable law?

Back 4

1. UCC Art. 2

2. Common law

Front 5

Does Article 2 require sale b/w non-merchants?

Back 5

No

Front 6

Which applicable law if K is both for goods and for services?

Exception?

Back 6

Mixed Deal rule - use whichever law for entire K which is appropriate for the more important subject matter

Exception: if K divides payment, then apply UC to sale of goods and comon law to rest

Front 7

Checklist / Method for Formation of K

Back 7

1. look for an agreement
2. determine whether K is legally enforceable
3. get info about
a. offer (initial communication)
b. termination of offer (what happens after a)
c. acceptance (who responds and how)

Front 8

Definition of "Offer"

The Test

Back 8

manifestation of an intent to contract (words or conduct showing commitment)

Test: would a reasonable person in the positiion of the offeree believed that his assent creates a K?

Front 9

Must an offer contain all material terms?

Back 9

No.

Exceptions:
1. Sale of real estate: price and description required (common law)
2. Sale of goods: No price requirement (Art. 2)

Front 10

Does a K with "vague" or "ambiguous" material terms constitute an offer under UCC? under common law?

Back 10

No.

No.

Front 11

A K for sale of goods can state the quantity of goods to be delivered under the K in terms of buyer's ____ or seller's ___ or in terms of ____.

What are the magic words for this?

Back 11

requirements; output; exlusivity

"all," "only," or "solely"

Front 12

limitations to requirements contracts?

Back 12

1. quantity not unreasonably disproportionate limitation on increases and
2. buyer can increase requirements so long as increase is in line with prior demands

Front 13

Is an advertisement an offer?

Back 13

Not generally.

Exceptions:
1. if it is the nature of a reward.
2. if it is specific as to quantity and expressly indicates who can accept it

Front 14

Methods of termination of an offer

Back 14

1. lapse of time
2. words or conduct of offeror - revocation
3. words or conduct of offeree - rejection
4. death of a party prior to acceptance

Front 15

Can an offer be accepted if it has been terminated?

Back 15

No.

Front 16

What type of probably possibly if told (1) when offer received and (2) hen it was responed to?

Back 16

Lapse of time

Front 17

can an offeror revoke or reject an offer?

Back 17

an offeror can REVOKE an offer

Front 18

2 ways in which an offeror can revoke an offer

Back 18

1. unabmiguous STATEMENT by offeror TO OFFEREE of unwillingness or inability to K
2. unambiguous CONDUCT by offeror indicating an unwillingness or inability to k THAT THE OFFEREE IS AWARE OF

Front 19

Is an offer revoked when it is made available to a second party?

Back 19

no.

Front 20

Using the mail, when does revocation of an offer become effective?

Back 20

Once the revocation is received.

Front 21

When can an offer NOT be revoked?

Back 21

1. An option
2. Firm offer
3. detrimental reliance on offer by offeree that is reasonably foreseeable
4. start of perf. pursuant to an offer to enter into a unilateral K (during time reasonable to complete perf.)

Front 22

Requirements for option for an offer

Back 22

1. if offeror has promised to keep offer offer open AND
2. this promise is supported by payment or other consideration

NOT MERELY: written promise to sell to a specific buyer

Front 23

Requirements for a firm offer?

How long?

Back 23

1. offer to buy or sell goods,
2. signed, written promise to keep offer open, and
3. party is a merchant
Required time to keep offer open: 3 months

Front 24

For almost all of K, what is a merchant?

Back 24

a person in business - doesn't matter what type.

Front 25

For part performance of an offer, prohibiting revocation, does any preparation represent performance?

Back 25

No. mere preparation is not performance. if doubt, it's probably preparation.

Front 26

counteroffer, conditional acceptance, additional terms (common law only).

These all represent what?

Back 26

Offer rejection.

Front 27

a response to an offer with magic words "if" "provided" so long as" "but" or "on condition that" represents what?

Back 27

a counter offer.

Front 28

What rule name: an acceptance that ads new terms is treated like a counteroffer rather than acceptance.

Back 28

mirror image rule.

Front 29

Treatment of additional terms under UCC, including title.

Reqs.

Provision Chapter

Back 29

New terms are a "seasonable expression of acceptance." Reqs:
1. response to offer adds new terms that are not a condition of acceptance (otherwise counter-offer)
2. both parties are merchants (otherwise proposal)
Chapter: UCC 2-207

Front 30

Exceptions to UCC add'l term treatment in offer acceptance

Language included in proper answer

Back 30

-add'l term...
1. cannot materially change the offer OR
2. not part of K if offeror objects to the change
-Language: "unless there is a material change"

Front 31

Exceptions to termination of an offer by death of a party prior to acceptance

Back 31

1. option
2. part performance of offre to enter into unilateral K

Front 32

admission by D of guilty act in question. Hearsay exemption or exception?

Back 32

exemption.

Front 33

can silence be deemed an admission by a party?

Back 33

Yes, where it is a situation where a reasonable person would have responded to an accusation.

Front 34

a declaration of a present bodily injury. Hearsay?

Back 34

Statements relating to symptoms, such as pain are exceptions to hearsay.

Front 35

when there's a presumption of A unless B, and no evidence offered of not B, who must find in accordance with the presumption? The judge or the jury?

Back 35

The Jury.

Front 36

Is character evidence as proof of conduct admissible in a civil case?

Back 36

No, unless character is directly at issue (defamation)

Front 37

Under common law, is consideration required to modify a K?

Back 37

Not where the parties are modifying merely to correct an error in the original K.

Front 38

Statute of frauds prevents or enforces a K?

Back 38

prevents - it's a defense

Front 39

what is promissory estoppel?

Back 39

a promise that the promisor should reasonably expect to induce actino or forbearance on the part of the promisee, and which does induce such action or forbearance, is binding if injustice can be avoided only by enforcement of the promise

Front 40

when is quasi contract appropriate?

Elements

Back 40

1. P has conferred a benefit upon D
2. P reasonably expected to get paid AND
3. D would be unjustly enriched if P were not compensated

Front 41

Is an advertisement generally an offer?

Back 41

No, it's an invitation seeking an offer, but courts will look to surrounding circs.

Front 42

For sale of goods, is a promise to modify an existing contract enforceable w/out consideration? But what does it require?

Back 42

Yes, no consideration is necessary.

But it requires good faith.

Front 43

Exception to UCC provision permitting add'l terms in a K b/w merchants to become part of the K when acceptance does not mirror the offer

Back 43

if offeror notifies the offeree w/in reasonable time after receiving the acceptance that he objects to the new terms, K formed according to terms of the offer.

Front 44

Who can accept an offer?

Back 44

Only (1) a person who knows about the offer and (2) who is the person to whom it was made.

Front 45

Test for determining if response to offer is a mere inquiry or a counter offer.

Back 45

Wheter a reasonable person would believe that the offer was being rejected.

Front 46

Fact patterns of acceptance (5)

Back 46

1. offeree fully performs (normally geography)
2. offeree partially performs
3. offeree promises to perform - cannot be unilateral K
4. offeror and offeree are in diff. places and there's conflicting comm'cns
5. seller sends the wrong goods

Front 47

Can you always accept an offer by completing performance?

Back 47

Yes, but must give notice to offeror. Usually a geography issue.

Front 48

Extent of performance required for acceptance of bilateral and unilateral offer.

Back 48

bilateral: start of performance (treated as an implied promise)

unilateral: full performance

Front 49

Rule for effectiviness of communications concerning (1) acceptance and (2) revocation

Back 49

1. acceptance: when sent if
a. made in a manner and by means invited AND
b. offeree has not already sent a rejection
2. revocation: effective when received

Front 50

when offeree sends a rejection and then an acceptance, which communication controls?

Back 50

whichever gets there first.

Front 51

Options and repurcussions where seller sends the "wrong" goods

Back 51

1. sends the wrong goods and nothing else --> acceptance & breach
2. accomodation (inclusion of explanation) --> no breach, buyer can reject (seller gets goods back)

Front 52

Definition of consideration

Back 52

bargained-for legal detriment

Front 53

Methodology for consideration questions

Back 53

1. identify promisor (D)
2. ask promisor bargained for
3. identify promisee (P)
4. ask what detriment she incurred

Front 54

forms of consideration

Back 54

1. performance (doing something not legally obligated to do)
2. forbearance (not doing something legally entitled to do)
3. promise to perform
4. promise to forbear

Front 55

Does past consideration count as consideration? Exceptions?

Back 55

No.

Exception: where action is expressly requested and there is the expectation of payment

Front 56

pre-existing contractual duty under common law

Back 56

Rule: promise to perform or performance of existing legal duty will not be sufficient consideration
-Exception1: New or different consideration promised (ex: accelarating perf.); includes modification of existing K
-Exception2: promise to perform a voidable obligation needs no consid.
Exception3: unforseen difficulty so severe as to excuse performance
Exception4: pre-existing duty owed to 3rd party

Front 57

is partial payment for for debt that is due and undisputed consideration for a release from the debt? What about for debt not yet due?

Back 57

No.

For debt not yet due, partial payment prior to due date can be satisfaction for the debt. Debt difference becomes no longer enforceable.

Front 58

Is a written promise to satisfy an obligation for which there is a legal defense enforceable w/out consideration?

Back 58

Yes!

Example: where SOL bars specific debt collection, and debtor promises to pay part of that debt, there is no consideration for the new promise. So the party owed money can enforce the promise for the debor to pay the new amount!

Front 59

Persons who lack capacity

Back 59

1. Under age 18
2. mental incompetents - lack ability to understand agmt
3. intoxicated persons, if other party has reason to know

Front 60

Consequences of incapacity (3)

Back 60

1. person without capacity has right to disaffirm at any time
2. There is an implied affirmation by retaining benefits after gaining capacity
3. There's still liability for necessities

Front 61

What is the effect of the Statute of Frauds?

Back 61

They make it harder to claim falsely that there is a K through false or fraudulent claims by requiring "special" proof that K exists. When a Contract is within the SOF, special proof in performance or in writing of the K is required.

Front 62

Kinds of K's covered by statute of frauds

Back 62

1. Promise in consideration of marriage.
2. Promise by executor or administrator to answer for for debt of decedent
3. Another promises to creditors to "answer for" [guarantee] the debts of another
4. Service K not capable of being performed w/in a year from tiem of K
5. Transfer of interest in real estate of a term of more than a year
6. sale of goods for $500 or more
7. leases of goods w/the payment totaling $1000 or more

Front 63

Methodology for Statute of Frauds (2)

Back 63

1. Does the K fall w/in the SoF?
2. If so, is the SoF satisfied?

Front 64

SoF required: ________ of marriage.

Back 64

Promise in consideration

Front 65

SoF required: _____ by executor or administrator to _________.

Back 65

promise

pay answer for debt of decedent

Front 66

SoF required: Another _______ to creditors to ________.

Back 66

promises

answer for [guarantee] the debts of another

guarantee = promise to pay if someone else does not.

Front 67

SoF required: Service K ________.

Back 67

not capable of being performed within a year FROM TIME OF K.

Any more than one year --> SoF applies.

John Tesh

Front 68

SoF required for: _____ in real estate ____.

Back 68

transfer of interest (not any real estate deal)

for a period more than 1 year

Front 69

SoF required for: sale of goods for $_____.

Back 69

$500 or more.

Front 70

What kind of problem? Told:
1. told time of the K
2. told specified performance time
3. and there's more than 1 year b/w T1 and T2

Back 70

John Tesh! SoF.

Front 71

Where debt being guaranteed by 3rd party is a debt incurred to benefit the guarantor, w/in SoF?

Back 71

No, b/c promise to repay is more credibile.

Ex: P is painting H's house, using paint P buys from S on credit. P fails to pay S, so H promises S that if S continues to provide paint to P, H will pay IF P FAILS TO PAY.

Front 72

P claims that O agreed to employ her for a year, starting next month. K w/in SoF?

Back 72

yes - John Tesh modified.

Front 73

If statute of frauds is satisfied, is there a statute of frauds defense?

Back 73

No.

Front 74

How to satisfy SoF with a performance and service K?

Back 74

1. put it in writing
2. FULL performance by either party (part performance doesn't do it!)

Front 75

How to satisfy SoF with a sale of goods K?

Back 75

1. put it in writing
2. part performance, but satisfies only for those goods that have been delivered; no SoF defense for the goods that have not been delivered

Exception: for custom manufactured goods, SoF satisifed as soon as seller makes a substantial beginning (done enough work that it is clear that she is working on the order)

Front 76

How to satisfy SoF for performance and transfers of interests in real estate?

Back 76

1. put it in writing
2. "part performance" by buyer of real estate by showing 2 of 3 : (1) full or part payment, (2) possession and/or (3) improvements.

Note: full payment alone by buer does not satisfy SoF!

Front 77

Requirements for a writing to satisfy the SoF under common law

Back 77

1. looking at contents of writing or WRITINGS, all material terms test [who and what] AND
2. who signed the writings - signed by the person charged (D)

Front 78

Requirements for a writing to satisfy the SoF under UCC

Back 78

1. contents of writings and who signed the writing
2. quantity included

Acceptable "I agree to buy 17 dolls. s/.Richard Conviser"

Exception: Writing needn't be signed by defendant where:
1. both parties merchants AND
2. person who receives a signed writing w/a quantityt term that claims there is a K fails to respond within 10 days of receipt.

Front 79

When does authorization for someone to enter into a K for someone else need to be in writing?

Back 79

If the K to be signed is w/in the SoF. (i.e. the authorization must be of "equal dignity")

Front 80

How to address contract modifications, in light of SoF?

Back 80

1. look at the deal with alleged change
2. determine whether the deal with the alleged change would be w/in the SoF

If Y --> the alleged modification agreement must be in writing (subject to SoF)

Front 81

If an agreement in writing requires all modifications be in writing, is this a valid requirement?

Back 81

For common law (service), K provisions requiring all modification be in writing are not effective

Under the UCC (sale of goods), such provisions are effective unless waived.

Front 82

1. If subject matter is illegal -->

2. If subject matter legal but purpose illegal -->

Back 82

1. K is void

2. K is enforceable only by the person who did not know if the illegal purpose

Front 83

Where false assertion of fact or concealment of fact that ___, the honest party can ____.

Back 83

induces the K

rescind the K

Front 84

Misunderstanding or ambiguity in words

Reqs
Result

Back 84

Where
1. parties use a material term that is open to at least two reasonable interpretation
2. each party attaches a different menaing to the term AND
3. neither party knows or has reason to konw the term is open to at least 2 reasonable interpretations
--> no K

Front 85

For mutual mistake of material fact what result under what reqs?

Back 85

No K if
1. both parties mistaken
2. BASIC assumption of fact (parties reach erroneous conclusion on its own)
3. MATERIALLY affects the agreed exchange
4. not a risk that either party bears

Front 86

Can a bad value give rise to a mutual mistake of material fact?

Back 86

No.

Front 87

Exceptions to rule, barring K duties for a unilateral mistake

Back 87

1. "palpable" mistakes - where other party to K knows or should have known of the mistake
2. mistakes discovered b/f significant reliance by the other party