Contracts

Front 1

acceptance (mutual assent)

Back 1

Not effective if he knew at the time of acceptance that the party had no intent to contract at the time the purported offer was made

Front 2

real estate brokerage contracts (mutual assent)

Back 2

a broker is entitled to a commission when the buyer enters into a valid binding contract, irrespective of its being actually performed, unless there is an agreement otherwise

Front 3

consideration - preexisting duty - unforeseen hardship

Back 3

A promise to pay additional compensation to complete work after unforeseen difficulties is enforceable; it is considered a new contract, not a modification. So contract requisites must be satisfied, e.g., Statute of Frauds.

Front 4

accord and satisfaction (consideration)

Back 4

1) good faith tender of an instrument as full satisfaction of an obligation 2)amount was unliquidated or subject to bona fide dispute and 3)claimant obtained payment by the instrument

Front 5

charitable subscriptions (consideration)

Back 5

consideration is required to enforce a charitable pledge or reasonable detrimental reliance. MD follows the 1st Restatement of Contracts in this matter.

Front 6

contract to make a will (consideration)

Back 6

mutual promises to execute wills are sufficient consideration. Even though one has the right to revoke the will, the party to the contract still has the right to damages.

Front 7

Statute of Frauds

Back 7

MD requires writing, signed by the party to be charged in, contracts to marry, agreements not to be performed in 1 year, and agreements to answer for the debts or defaults of another

Front 8

capacity to contract

Back 8

generally 18 years, minor - if for necessaries that the parents do not provide, minor at least 15 - for life insurance and annuities and minor married to majority spouse - if he or she holds property as tenants by the entirety, minor can join with spouse in making notes, deeds or financing arrangements.

Front 9

releases and contracts w/ attorneys as to damages for personal injuries (illegality, fraud, duress)

Back 9

voidable w/ in sixty days - releases from claims for damages in personal injuries, power of attorney to, or contract for employment if signed w/in 5 days of injury

Front 10

construction indemnity agreements (illegality, fraud, duress)

Back 10

agreements relating to construction purporting to indemnify the promisee for his "sole" negligence are void as contrary to public policy; imdemnification of concurrent negligence is not void.

Front 11

exculpatory agreements

Back 11

parties can agree to limit liability for ordinary negligence; a party cannot disclaim liability for, 1) wilful, wanton, reckless or gross misconduct, 2) substantial bargaining disadvantage (must prove some compulsion) or 3)transaction affects the public interest (e.g., highly regulated businesses)

Front 12

elements of promissory estoppel

Back 12

1) a clear and definite promise, 2) causing a detriment 3) that only can be avoided by enforcement of the promise

Front 13

mutual mistake - defense to formation

Back 13

remedies are reformation and where reformation is not permitted, rescission and restitution. Reformation is permitted where there is a written agreement and had same intent w/ respect to all essential terms but not where innocent 3rd parties will be unfairly affected

Front 14

agreements in restraint of trade - defense to formation

Back 14

Illegal if unreasonable. Promise not to compete is unreasonable unless an employment contract or involves the sale of goodwill of a business. The agreement must also be reasonable as to time and area limitations; court may "blue pencil" agreement to make it valid.

Front 15

agreements relating to sexual relations - defense to formation

Back 15

unenforceable if the consideration is sex; the fact that parties are sleeping w/ each other does not make it illegal per se.

Front 16

licensing - protection of public - contract not enforceable

Back 16

a contracting party who "substantially complies" with licensing requirements maybe able to sue under a contract where the statutory purpose for the licensing is satisfied by such compliance

Front 17

mental capacity

Back 17

one who is mentally incompetent at the time of the contract may be bound if she was not judicially declared as such, no bad faith or unfairness resulted and the parties cannot be placed in the position they occupied before the contract

Front 18

intoxicated persons

Back 18

contract entered into by partially intoxicated party may be voided by the court where the advantageous party is responsible for making the other drunk or took unfair advantage

Front 19

duress and coercion - defenses to formation

Back 19

duress is any wrongful act that deprives one of the exercise of free will; a contract is void - the party under duress does not know nature of the transaction or induced by threats of death or bodily harm; contract is voidable - party knows the nature of the transaction; if the compelled party was under a duty to enter the contract, it cannot be avoided on duress grounds.

Front 20

undue influence - defense to formation

Back 20

where one party is under domination of another party or by virtue of the parties relationship a transaction is deemed induced by undue influence and is voidable; typical relations - parent/child, guardian/ward, husband/wife, physician/patient, attorney/client, clergy/parishioner; good faith does not preclude a finding of undue influence

Front 21

statute of frauds - performance not within one year (defense to enforcement)

Back 21

a covenant not to compete for more than one year is subject to SOF, even though the death of the party who agrees not to compete would terminate the contract.

Front 22

commercial loan agreements (defenses to enforcement)

Back 22

commercial loan agreements, including any modifications, transacted by banks, savings and loans, &c, must be in writing

Front 23

unconscionability - contracts of adhesion (defenses to enforcement)

Back 23

clauses of adhesion do not make the them unenforceable per se