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71 Cards in this Set
- Front
- Back
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Restatement |
Is a set of statements reflecting generally agreed upon pronouncements of common law contact rules |
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Contract |
A transaction where one or both parties make a legally enforceable promise |
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Express contact |
A promises stated in words , either in oral or written |
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Goods |
All things that are moveable at the time of the contact |
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Implied contract |
Is a promise the is inferred from a persons conduct or the circumstance of transaction |
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Promise |
Undertaking or commitment to act or refrain from acting a specific way in the future. |
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Beneficiary |
When the promise or commitment will benefit Someone other than the promisee |
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Termination of offer |
Offer may be terminated before the acceptance |
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Revocation |
An offeror may terminate the offer any time prior To the offerees acceptance |
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Termination by death |
If an offeror dies prior to the time that the offer is accepted then the offer is terminated - if acceptance was made before death , contract is still in standing |
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3 non revokable offer circumstances |
-offerees paid to keep offer open for a period of time p - offeror has agreed to keep the offer ope. For some period of time and offeree has relied that promise to her detriment -if offeree has already begun performance under contract |
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Termination by rejection |
An offeree can reject an offer Once reflected can not change mind and accept it |
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Counter offer |
Cancels original offer and proposes new offer |
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mailbox rule |
an acceptance is effective when it is mailed -ex if you sent an acceptance on 1/3 and it was received on 1/10 - the eff date is 1/3 |
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unilateral contract |
at the time the contract is formed one party has already performed her obligation , therefore only one obligation is left - contract cannot be revoked once performance had begun |
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Pre-existing duty |
a duty that a person already is obligated to perform |
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legal capacity |
the legal ability to form a contract |
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Contract with Minors |
- Below age of "majority" (18) - contracts a voidable with minors , only by the minor and within a reasonable time
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mental incapacity |
in order to avoid a contract a person must prove that at the time she entered the contract , she was unable to understand the nature and consequences of her action |
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contract with intoxicated persons |
- a contracted entered in by a person who is intoxicated is voidable by the intoxicated person - person must prove that they were intoxicated bad enough to not know what they are doing and that the other party knew their conditon |
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joint obligation |
- an offer can me made to and accepted by several people -the offeror will be obligated to perform to each offeree |
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Creditor Beneficiary |
If a promisee is conferring a benefit on a third party due to a prior obligation |
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Donee Beneficiary |
if promisee merely intends to confer a gift to third party |
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incidental beneficiary |
a person who is not intended to be a beneficiary and has no rights to enforce contract |
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Vesting of Beneficiary rights |
-once the beneficiary's rights vested , the promisee ad promisor cannot modify or terminate contract without the consent of the beneficiary - when assent occurs(agreement by third party to perform ) -when third party detrimentally relies on the promise made by the principles in the original contract -when stated conditions for vesting have been satisfied by the parties in the original contract |
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assignment of rights |
a transactions where one person transfers her rights under a contract to another person(immediately) |
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Assignor (obligee) |
the person who transfers her rights |
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Assignee |
the person to whom the rights are assigned to |
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statue of Fraud |
refers to the requirement that certain kinds of contracts be memorialized in a writing, signed by the party to be charged, with sufficient content to evidence the contract |
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6 basic agreements covered by statue of fraud |
1.Contracts in consideration of marriage. This provision covers prenuptial agreements. 2.Contracts that cannot be performed within one year. However, contracts of indefinite duration do not fall under the statute of frauds regardless of how long the performance actually takes. 3.Contracts for the transfer of an interest in land. This applies not only to a contract to sell land but also to any other contract in which land or an interest in it is disposed, such as the grant of a mortgage or an easement. 4.Contracts by the executor of a will to pay a debt of the estate with his own money. 5.Contracts for the sale of goods totaling $500 or more. 6.Contracts in which one party becomes a surety (acts as guarantor) for another party's debt or other obligation. |
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Surety |
a promise to pay the debt of another person Example: if Y says to builder "if you build X a house and he does not pay you , I will" |
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Promissory Estoppel |
A promissory estoppel is the legal principle that a promise is enforceable by law when the promisor (person making the promise) makes a promise to the promisee (person being promised) who relies on it to his or her detriment. -A promissory estoppel is intended to stop the promisor from denying that the statements, words or even conduct did not happen |
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certain and definite term |
For the terms to be considered definite, a reasonable person must be capable of readily understanding the terms. In determining whether the terms are definite, courts will review the clarity within four primary elements: 1.the parties 2.the length of time for performance (term or service schedule) 3.the price 4.the subject matter or scope of services |
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Rules in interpretation |
1.Express words and Conduct of party 2.course of performance 3.Course of dealing( how parties interacted before contract) 4. Trade usage |
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implied terms |
Implied contract terms are items that a court will assume are intended to be included in a contract, even though they are not expressly stated |
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Parol evidence rule |
A rule in contract cases that prevents a party to a written contract from presenting extrinsic evidence that discloses an ambiguity and clarifies it or adds to the written terms of the contract that appears to be whole. |
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Condition Precedent |
a condition that must occur before a duty to perform arises |
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Condition concurrent |
a condition that occurs at the same time as performance |
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condition subsequent |
a condition that cuts off a pre-existing duty |
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Partial Breach of Contract |
Sometimes a party will fail to uphold a portion of the contract, but most of the contract can still be fulfilled. -Most of the time, a partial breach will be remedied by a payment, or a credit, to the party who was wronged. |
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Material Breach of Contract |
occurs when a party fails to fulfill a duty under the contract, and that duty is significant enough that it causes the rest of the contract to fail. - this does not terminate the contract |
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Total breach |
a breach of contract that is so substantial that it gives rise to the right to cancel the contract and sue for damages |
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Anticipatory Breach (AKA anticipatory repudiation) |
An anticipatory breach occurs when a party demonstrates its intention to break a contract. However, vocal or written confirmation is not required, and failure to perform an obligation in a timely matter can result in a breach. By declaring an anticipatory breach, the counter party may begin legal action immediately rather than waiting until a contract's terms are actually broken. |
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Demand for assurance |
A written request for reasonable assurance regarding a party's intention to perform - has the right to request this when he has reasonable grounds for insecurity regarding the another party's performance |
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Expectation damages |
are damages recoverable from a breach of contract by the non-breaching party . An award of expectation damages protects the injured party's interest in realizing the value of the expectancy that was created by the promise of the other party. |
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Consequential damages |
are damages you can prove occurred because of the failure of one party to meet a contractual obligation. They go beyond the contract itself and into the actions garnished from the failure to fulfill. |
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Direct Damages |
the difference between the value of the performance received and the value of the performance promised as measured by contract or market value. |
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Duty to Mitigate |
The duty of someone who was wronged to make reasonable efforts to limit the resulting harm. A duty to mitigate can apply to the victim of a tort or a breach of contract. |
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Reliance damages |
is the measure of compensation given to a person who suffered an economic harm for acting in reliance on a party who failed to fulfill their obligation. |
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Specific performance |
is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to awarding damages |
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Injunction
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An injunction is an equitable remedy in the form of a court order that compels a party to do or refrain from specific acts. A party that fails to comply with an injunction faces criminal or civil penalties, including possible monetary sanctions and even imprisonment.
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Liquidated damages |
also referred to as liquidated and ascertained damages) are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (e.g., late performance) |
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Duress
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refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person
- Contract is voidable if entered into during Duress |
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undue influence
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is an equitable doctrine that involves one person taking advantage of a position ofpower over another person. This inequity in power between the parties can vitiate one party's consent as they are unable to freely exercise their independent will.
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Mistake |
is an erroneous belief, at contracting, that certain facts are true. -It can be argued as a defense, and if raised successfully can lead to the agreement in question being found void |
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Unilateral mistakes |
is where only one party to a contract is mistaken as to the terms or subject-matter contained in a contract. |
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mutual mistake |
occurs when the parties to a contract are both mistaken about the same material fact within their contract. They are at cross-purposes. There is a meeting of the minds, but the parties are mistaken. Hence the contract is voidable. |
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Misrepresentation |
A statement about something that is not in line with the facts. |
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Fraudulent Misrepresentation: |
A false statement that is known to be false or is made recklessly – without knowing or caring whether it is true or false – and that is intended to induce a party to detrimentally rely on it. |
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Scienter |
is a legal term that refers to intent or knowledge of wrongdoing. -This means that an offending party has knowledge of the "wrongness" of an act or event prior to committing it. |
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Unconscionability |
is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience. |
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Substantive Unconscionability |
unconscionability of a contract that arises from the terms of the contract and esp. from terms that are found to be one-sided, unjust, or overly harsh compar |
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Procedural Unconscionability |
unconscionability in the conditions of contract formation. Procedural unconscionability results from inequalities between the parties as to age, intelligence, and relative bargaining power. It disclose that both parties did not freely consent to all terms proposed. The doctrine of unconscionability permits a court to refuse to enforce a contract when it feels that the contract is unfair.
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Impossibility |
is an excuse for the nonperformance of duties under a contract, based on a change in circumstances (or the discovery of preexisting circumstances), the nonoccurrence of which was an underlying assumption of the contract, that makes performance of the contract literally impossible. |
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Impracticability |
excuses performance of a duty, where that duty has become unfeasibly difficult or expensive for the party who was to perform |
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Frustration of purpose |
is a defense to enforcement of the contract. -Frustration of purpose occurs when an unforeseen event undermines a party's principle purpose for entering into a contract, and both parties knew of this principle purpose at the time the contract was made. - whereas frustration of purpose concerns the reason a party entered into the contract. |
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Mutual rescission |
is a discharge of both parties from the obligations of a contract by a new agreement made after the execution of the original contract but prior to its performance. |
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executory contract |
is a contract made by two parties in which the terms are set to be fulfilled at a later date. The contract stipulates that both sides still have duties to perform before it becomes fully executed. The contract is often in place between a debtor or borrower and another party. |
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Accord |
an agreement |
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Satisfaction |
The payment of a debt or fulfillment of an obligation or claim |
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In pari delicto |
Latin for "in equal faults |
