Contracts

Front 1

Express contract

Back 1

Parties expressley agree to be bound

Front 2

Implied in fact contracts

Back 2

When the parties agree upon the obligation to be incurred, their intention are inferred from their acts in light of the surronding circumstances

Front 3

2 part test of assent

Back 3

Objective: What a reasonable person would construe the conduct to be assent
Subjective: What P construed the conduct to be assent

Front 4

Rules/Conduct of assent
Restatement 19

Back 4

1. Manifestation of assent can be implied or expressed
2. The party must intend to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents
3. The conduct of a party may manifest assent even though he does not in fact assent

Front 5

offer

Back 5

an expression of present willingness to enter into a baragin

Front 6

Definiteness in terms

Back 6

subjetc matter, price, quanity

Front 7

Invitation

Back 7

When an expression reflects merely intent to baragin

Front 8

Advertisements

Back 8

Most ads are invitation except:
(i)clearly indicates intent
(ii) invited people to do a specific performance w.o further comm
(iii)over acceptance is likely

Front 9

certanity Res. 33

Back 9

offer can only be accepted to form a contract if the terms are reasonable certain (provide bases for determining the existence of a breach and give a remedy)

Front 10

Texaco's 4 factors for discerning an intent to be bound

Back 10

1. Whether the party expressly reserved the right to be bound only when a written agreement is signed
2. Whether there was any partial performance by one party that the party disclaiming the K accepted
3. Whether all essential terms of the alleged K had been agreed upon
4. Whether the complixity or magnitude of the transaction was such that a formal executed writing would normally be expected

Front 11

Revoking an offer

Back 11

- direct communication or
-indirect: if offeree obtains reliable information that the offeror has revoked
-unilateral: offeror can revoke a contract before it is competely performed
-option contract: offeror can never revoke and offeree can revoke except if it is a commercial setting

Front 12

Acceptance

Back 12

- commitment, may not be conditional,may not have vatriations.
- Usually need to communicate to the offeree you accept

Front 13

Mirrior image rule

Back 13

the acceptance has to reflect the terms of the offer if not it is a counter offer or a rejection in general

Front 14

Mailbox rule

Back 14

As soon as it is put in the mail it is an acceptance
(does not apply to option contracts)

Front 15

Bilateral

Back 15

both make promises

Front 16

unilateral

Back 16

The offeror makes a promise and the offeree renders performance as acceptance
-Old rule: must complete performance befor party's are bound
-Modern rule R 45: if offeror begins performace or tender it forms a option K and offeror can't revoke

Front 17

Carbolic Smoke rules

Back 17

1. Where an offer invites an offeree to accept by performace, no notification necessary unless the offer request notification
2. If the offeree excepts by performance has reason to know that offeror has no adequeate means of finding out w/ reasonable promptness and certanity, offeror has no duty except when:
-offeree uses reasonable dilligence to notify
- the offeror learns of the performance within a reasonable time
- offer indictates notification is not required

Front 18

Acceptance by silence or exercise of dominion R 69

Back 18

When an offeree is silent, his silence is acceptance when:
1. Offeree takes the benefit of the baragin.
2. Offeror has stated or given reason to understand assent may manifest by silence
3. Offeree exercises dominion
4. Previous dealings, it is reasonable to notify

Front 19

Restatement 201: whose meaning prevails
Modern Rule of Raffle

Back 19

1. Subject intent is fine if the parties understand the meaning
2. Unilateral Mistake- if 1 party belives their was a possibility of ambiguity= protect naive party
3. Mutual-if both misunderstand= neither party bound by the meaning

Front 20

Knock out rule

Back 20

If an issue is covered one way in the offer and a conclicting way in the acceptanct. Courts can have the conflicting meanings knock each other out of the K. UCC gap filler are used or common law controls

Front 21

Ways to interpret meaning in contracts of goods
UCC 2-208

Back 21

1. Look at the contract
2. See how the parties previously performed in the K
3. See how the parties acted in other K settings
4. Look to industrial trade practices

Front 22

Agreements to agree
R 204

Back 22

Courts will usually supply missing terms if the parties intetionally leave a term to be agreed upon later

Front 23

Illusionary Promises and Requirement K

Back 23

One parties promise is illusionary and left to complete discretion Court says party must act in good faith

Front 24

Contracts of adhesion

Back 24

like box top warranties, non baragained clauses that are favorable to the drafter

Front 25

Additional Terms UCC 2-207

Back 25

1. It is acceptance eventhough it states additional terms, unless acceptance is expressly made conditional on assent to the additional terms
2. Additional terms are proposals. B/W merchants terms are part of K unless:
a.expressly limits accpetance to the terms
b. Materially alter
c. objection to terms has already been given
3. Conduct of parties = K even though writings do not

Front 26

Expectation Damages

Back 26

Put the promisee where he would be had the promsie been performed
- Default measure of damages
Damages= loss in value + incidenetal & consequential loss - cost avoided

Front 27

Reliance

Back 27

Put the promisee where he would be had the promise not been made
- Use if promsiee had a lot of out of pocket expense in reliance of the promise, losing K
Damages =Expenditures made in preparation for performance or in performance - any loss (that the breaching party can prove) that the injured party would have suffered if contract performed

Front 28

Restitution

Back 28

Put the promisor where he would be had the promise not been made
-Use if there is losing contract and to prevent unjust enrichment
Damages= Market value

Front 29

Limits on Damages

Back 29

Foreseeability
-damages arising naturally to the usual course of breach
-Party was put on notice at the time the K was made

Certainty of Harm
-Only get damages that are reasonably certain

Avoidability
-avoid whatever you can to mitigate w/o undue expense

Front 30

Essential Reliance

Back 30

Reliance damages that arise from a promisee's performance of his end of the baragain