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23 Cards in this Set
- Front
- Back
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What are the key differences between modern contract law and classical contract law?
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There is a tension between formalism and objective adherence to the contract as mandated by classical contract law standards--with low emphasis on morality and social policy--and the social policy and moral concerns of modern contract law which will take other factors that may or may not be in the written contract itself into consideration [bargaining power, etc].
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Restatement Second §17
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The formulation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and consideration. This is the most classical way to formulate a contract but it's by no means the only way.
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meeting of the minds/mutual assent
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Meeting of the minds is a means through which mutual assent is qualified; mutual assent, ideally, is then manifested in a contract. In some situations, the manifestation of mutual assent does not mean there was a meeting of the minds, which is necessary in order for a contract to exist.
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Ray v. William G. Eurice & Bros
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The law is clear, absent fraud, duress or mutual mistake that one having the capacity to understand a written document who reads and signs it, or, without reading it or having it read to him, signs it, is bound by his signature in law
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Restatement §20
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A manifestation of mutual assent by the parties to an informal contract is essential to its formation and the acts by which such assent is manifested, must be done with the intent to do those acts, but neither mental assent to the promises in the contract nor real or apparent intent that the promises shall be legally binding, is essential.
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last shot rule
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the last form sent prevails; problem is that it encourages more form sending; only for common law and the use of services
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mirror image rule
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unequivocal and absolute acceptance requirement states that an offer must be accepted exactly without modifications. The offeror is the master of his own offer. An attempt to accept the offer on different terms instead creates a counter-offer, and this constitutes a rejection of the original offer.
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UCC 2-207
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an acceptance that does not match the terms of the offer is nonetheless effective as long as the material terms are agreed upon.
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mailbox rule
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an exception to the general rule of contract law in common law countries that acceptance takes place when communicated. The posting rule states, by contrast, that acceptance takes effect when a letter is posted; revocation takes place when communicated
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consideration
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anything of value in the common sense, promised to another when making a contract; benefit/detriment test; no past consideration; must not be nominal or merely stated though most courts will not look into it; courts try to allow free reign to private individuals
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Invitation to treat
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an expression of willingness to negotiate but not a binding offer; display of goods; the advertisement of a price or an auction; and an invitation for tenders (or competitive bids).
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firm offer
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allows merchants to make offers to buy or sell irrevocable for up to three months provided that the offer be put down in writing or otherwise authenticated; option contract without consideration
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UCC firm offer
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it is an offer to buy or sell goods; it is made by a merchant; it is a signed writing; in no event will the period of irrevocability be longer than three months; if the offeree submits a form on which the offeror is supposed to set out the offer, then the irrevocability condition must be separately signed by the offeror
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Invitation to treat
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an expression of willingness to negotiate but not a binding offer; display of goods; the advertisement of a price or an auction; and an invitation for tenders (or competitive bids).
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firm offer
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allows merchants to make offers to buy or sell irrevocable for up to three months provided that the offer be put down in writing or otherwise authenticated; option contract without consideration
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UCC firm offer
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it is an offer to buy or sell goods; it is made by a merchant; it is a signed writing; in no event will the period of irrevocability be longer than three months; if the offeree submits a form on which the offeror is supposed to set out the offer, then the irrevocability condition must be separately signed by the offeror
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parol evidence rule
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the legal application of a rule of substantive law in contract cases that prevents a party to a written contract from contradicting (or sometimes adding to) the terms of the contract by seeking the admission of evidence "extrinsic" (outside) to the contract; ny evidence contradicting the writing is excluded under the parol evidence rule.
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partial integration
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If it contains some, but not all, of the terms as to which the parties have agreed then it is a partial integration.
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complete integration
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f the writing were to contain all of the terms as to which the parties agreed
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merger clause
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declares it to be the complete and final agreement between the parties.
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extrinsic evidence can be admitted when it...
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To aid in the interpretation of existing terms; To show that in light of all the circumstances surrounding the making of the contract, the contract is actually ambiguous, thus necessitating the use of extrinsic evidence to determine its actual meaning; To resolve an ambiguity in the contract; To show that an unambiguous term in the contract is in fact a mistaken transcription of a prior valid agreement. Such a claim must be established by clear and convincing evidence, and not merely by the preponderance of the evidence; To correct mistakes; To show wrongful conduct such as misrepresentation, fraud, duress, unconscionability (276 N.E.2d 144, 147), or illegal purpose on the part of one or both parties; To show that consideration has not actually been paid; To identify the parties, especially if the parties have changed names; To imply or incorporate a term of the contract; To make changes in the contract after the original final contract has been agreed to. That is, oral statements can be admitted unless they are barred by a clause in the written contract.
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contract of adhesion
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contract between two parties that does not allow for negotiation
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contract of adhesion
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contract between two parties that does not allow for negotiation
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