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30 Cards in this Set
- Front
- Back
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How do parties manifest their mutual assent to the same bargain [its easy!]
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(1) Through an OFFER and an ACCEPTANCE
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What is the Objective Theory of contracts?
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(1) What a reasonable person in the position of each of the respective parties would be led to believe by the words or conduct of the other party. (2) This is used in determining whether there is mutual assent.
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Is a contract enforceable if one of the parties mentally agreed to it only in jest? [contract made in subjective jest—lucy v. zehmer]
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(1) Yes (2) The mental assent of the parties is not required for the formation of a contract.
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Where the contract is subject to two equally possible interpretations and the parties contracted with different interpretations in mind (neither knowing of the other’s interpretation, nor having reason to know therereof), is there mutual assent? [Latent ambiguity—raffles v. wichelhaus—the ship peerless case]
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(1) No (2) No contract because there is no meeting of the minds.
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To enforce a particular meaning of a common term used in a contract, must P prove either D’s actual knowledge of a particular meaning or a widespread, universal usage in the particular manner asserted? [Subjective meaning of contract term-p-frigaliment importing Co. v. BNS international sales corp—the meaning of the word “chicken” case]
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(1) Yes (2) What the parties said, not what they meant, is the essence of the contract.
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Is mutual subjective intent required for a contract (“go ahead, get your men out, your alright” case) [expressions of subjective intent objectively interpreted—embry v. hardgadine-mckittrick dry goods co. ]
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(1) No. (2) It is what a reasonable person would believe about the promisors conduct or words that count. (3) Here a reasonable person would believe that the employers words meant an asset to a demand for a year’s employment contract.
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Under the CISG, may a court grant summary judgment based on the printed terms of a contract where both parties representatives offer evidence of a subjective intent not to be bound by those terms? (the EURO-Italian contract case) Subjective intent under the CISG—MCC marble ceramic center, Inc. v. Ceramica Nuova d’Agnostino]
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(1) No (2) The CISG, which governs this case, permits an inquiry into a party’s subjective intent, even fi he did not register such intent by any objectively ascertainable means, so long as the other party to the contract was aware of that intent.
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Where the second party knew or had reason to know the meaning attached by the first party, where does the choice between the parties two different meanings go? Restatement Second section 201
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(1) It goes to the meaning understood by the party who had no reason to know of any different meaning, where the second party knew or had reason to know the meaning attached by the first party.
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If either party knows, or both parties know, the meaning attached by the other, where does the choice between the parties two different meanings go? Restatement Second section 201
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(1) Nowhere! Neither meaning prevails!!
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Is a mutually understood meaning enforceable if it would have a different meaning were an objective interpretation applied? Restatement Second section 201
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(1) Yes.
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A statement generally will not be considered an offer unless it makes clear:
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(1) The subject matter of the proposed bargain (2) The quantity involved (3) The time of performance (4) The price.
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What is the modern trend in determining the definiteness of price?
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(1) The modern trend is to uphold a contract despite what appears to be indefinite terms by supplying the necessary terms.
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When a contract lacks a clause specifying its duration, may the courts supply the missing terms by looking to the intent of the parties? [time of performance provided by the court—Haines v. city of new York] sewer line case
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(1) Yes (2) The courts may supply the missing term if duration may be fairly and reasonably fixed by the surrounding circumstances and the parties intent.
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How should a contract be interpreted as a whole?
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(1) A writing should be interpreted as a whole with particular clauses subordinated to the general intent.
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How should all the circumstances of a contract be considered?
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(1) Words and other conduct are to be interpreted in the light of all the circumstances; and if the primary purpose of the parties can be ascertained, it should be given great weight.
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How should words that have a prevailing meaning be construed ina contract?
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(1) Unless a different intention is manifested, where language has a generally prevailing meaning, it is construed in accordance with that meaning. (2) However, technical terms and words of art are given their technical meaning when used in a transaction within the technical field.
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Are specific or general terms given greater weight?
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(1) Specific terms and exact terms are given greater weight than general language.
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Are negotiated or standardized items given greater weight?
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(1) Separately negotiated or added terms are given greater weight than standardized terms or other terms not separately negotiated.
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Are written or printed provisions given greater weight?
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(1) Where an inconsistency appears between provisions that are printed an d provisions that are written or typed, the written or typed provisions will prevail.
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In choosing among the reasonable meanings of a promise or agreement or a term thereof, are the meanings of the words to be construed for or against the party who supplies the words or from whom the writing otherwise proceeds?
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(1) Against.
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Are interpretations that give s reasonable, lawful, and effective meaning to all the terms or one in which a part remains unreasonable, unlawful , or of no effect preferred?
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(1) One that gives a reasonable, lawful, and effective meaning to all the terms
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When is an agreement interpreted in accordance with business custom?
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(1) If each party Knew or had Reason to know of the custom AND (2) Neither party knew or had reason to know that the meaning attached by the other was inconsistent with the custom.
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May the manifest objectives of the contract override the express terms? [Purposes or objectives of the contract—Spaulding v. Morse] army boy case!
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(1) Yes (2) The intention of the parties governs the interpretation of contract terms (3) The parties did not think of the by been gin the army in the contract to take care of him. The court provided it.
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What is: Course of performance [for interpretation of the agreement]
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(1) A continued course of performance accepted or acquiesced in without objection receives great weight in the interpretation of the agreement
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What is: Course of dealing [for interpretation of the agreement]?
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(1) A course of dealing is a sequence of previous conduct between the parties to an agreement which is fairly to be regarded as established a common basis of understanding for interpreting their expression and other conduct. (2) Unless otherwise agreed, a course of dealing between the parties give meaning to or supplements or qualifies their agreement.
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What is: usage of trade [for interpretation of the agreement]
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(1) A usage of trade is usage regularly observed in a vocation or trade. Unless otherwise agreed, a usage of trade in the vocation in which the parties are engaged gives meaning to or supplements or qualifies their agreement.
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What is: consistency with parties intent [for interpretation of the agreement]
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(1) Wherever reasonable, the respective manifestations of intent by the parties should be interpreted as consistent with each other rand with any relevant course of performance, course of dealing, or trade usage.
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What is the relative weight between Express terms, course of performance, course of dealing and usage of trades?
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(1) Express terms > course of performance > course of dealing >usage of trades
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P’s bid conformed to the way terms are used in the book binding trade; is D bound by these trade terms even though it did not know the trade meaning? [Trade terms—berwick & smith v. salem press inc]
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(1) Yes (2) Where terms have a common meaning in the trade, and a term is ambiguous in the contract the other party is bound by the common meaning thereof one though this party did not know the meaning.
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Would proof that one party did not know, or have reason to know, the trade usage of a term void a contract?
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(1) Yes. No secret hocus pocus.
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