Contracts: De & Mbe

Front 1

What is an offer?

Back 1

A manifestation of an intention to contract - words or conduct showing commitment

Front 2

What is the test as to whether there is an offer?

Back 2

DE, CL, UCC - Objective test - whether a reasonable person in position of the offeree would believe his assent creates a K

Front 3

In Delaware, is an ageement to agree enforceable?

Back 3

No.

Front 4

Is this an offer: White t-shirts for $10, first come first serve.

Back 4

Yes, advertisements that state "first come, first serve" constitute an offer

Front 5

Is there still a K if the price term is missing?

Back 5

Common law - no K
UCC - K exists (unless there is a price term and its ambiguous)

Front 6

How can an offeror revoke? (2 ways)

Back 6

1. direct communication
2. action inconsistent w/ continued willingness to deal and offeree finds out

Front 7

When can an offer not be revoked? (4 situations)

Back 7

1. option K supported by consideration
2. Firm Offer Rule - UCC, signed writing by merchant promising to hold the offer open for some period of time
3. Detrimental reliance that offeror could reasonably expect (general K and sub K)
4. Beginning performance in a unilateral K

Front 8

How does an offeree terminate an offer? (3)

Back 8

Common Law
1. rejection
2. counter offer
3. conditional acceptance (mirror image rule)

Front 9

What is the mirror image rule?

Back 9

Rule at common law that acceptance with new terms is treated like a counter offer so a K is not formed (comes into play with leases)

Front 10

Explain Battle of the Forms

Back 10

2-207, UCC
A response to an offer with additional terms is treated as an acceptance unless it states that it is expressly conditional on acceptance of the new terms
If one party is not a merchant - the new terms are merely a proposal
If both parties are merchants - terms get in unless they materially change the offer, offeror objects

Front 11

What are the two rules to consider where there is an acceptance with additional terms?

Back 11

1. common law - mirror image rule
2. UCC - battle of the forms 2207

Front 12

How is an offer terminated by operation of law?

Back 12

1. death of party prior to acceptance
2. destruction of proposed K's subject matter
3. supervening illegality

Front 13

Can you accept by completing performance?

Back 13

Yes, as long is it is was the offer called for and the offer has notice of the performance.

Front 14

What are the requirements of accepting by full performance?

Back 14

1. full performance of what the offer called for (ex. offer $1k to paint my house white -- you can't paint it red and get paid)
2. offeror must have notice (or his performance is excused)

Front 15

Explain the doctrine of part performance in accepting an offer.

Back 15

Must be part of actual performance to make the offer irrevocable. Preparation, no matter how detrimental to offeree, will effect offeror's ability to revoke

Front 16

Will initiation of performance require offeree to finish?

Back 16

For bilateral Ks yes. There is an implied promise to perform.
For unilateral Ks no. Once performance starts the offeror cannot revoke but the offeree can stop at any point

Front 17

What happens when there is conditional acceptance and then conduct indicating a contract?

Back 17

Common Law - treated like an acceptance of a counter offer
UCC - treated like a new K based solely on the conduct

Front 18

What is the mail box rule?

Back 18

Acceptance is effective when its mailed.

Exception - option K acceptance must be received by the deadline

Front 19

Revocation of offer is mailed, acceptance of offer is mailed at the same time. Revocation is received first. Is there a K?

Back 19

Yes, mail box rule says that acceptance happens when it is mailed. Revocation is not effective until it is received.

Front 20

Under the UCC what happens when the buyer sends an invoice to the seller and the seller responds by sends the wrong goods?

Back 20

We treat it as an acceptance and immediate breach.

Front 21

What is the accomodation exception?

Back 21

If the seller sends the wrong goods with an explanation (ex. I'm all out of red widgets) then there is NO K and NO breach.

Front 22

How can you accept an offer to buy goods for prompt/current shipment?

Back 22

UCC - by either promptly promising to ship the goods or prompty shipping the goods

Front 23

What are the elements of consideration?

Back 23

1. Bargain (exchange for promise or act)
2. Legal value (adequacy is irrelevant as long as its not sham consideration)

Front 24

What is the pre-existing legal duty rule?

Back 24

DE & CL - new consideration is required for K modification unless:
1. different consideration is promised,
2. promise to ratify a voidable obligation
3. pre-existing duty is owed to a 3rd person rather than promissory,
4. unforseen difficulty is so severe that it would excuse performance
UCC - no new consideration is required, only that it be done in good faith

Front 25

True/False: Part payment for release is not consideration.

Back 25

True - if the debt was due and undisputed
False if debt was not due or amount due is disputed

Front 26

What is the mutuality requirement?

Back 26

If only one party is bound to perform, the promise is illusory and not enforceable.
A promise to choose one of several alternatives for performance is illusory unless every one involves a legal detriment to the promisor

Front 27

What is promissory estoppel? (4 elements)

Back 27

1. a promise
2. reasonable and foreseeable reliance
3. detriment
4. enforcement of promise is necessary to avoid injustice

Front 28

What is another name for promissory estoppel?

Back 28

detrimental reliance

Front 29

True/False. In DE, a K made under seal is enforceable without other consideration.

Back 29

True. In DE the seal is somehow a substitute for consideration

Front 30

Can a new promise be consideration?

Back 30

Yes, if the obligation is unenforceable (ex. SOL), the new promise is enforceable if in writing.

Front 31

How is a new promise enforceable consideration?

Back 31

If the obligation was not enforceable and the new promise is in writing, it acts as a substitute for consideration.

Front 32

What is "absense of mutal assent"?

Back 32

A defense to the formation of a K.

Front 33

What are the 6 types of cases where D can argue a lack of mutual assent?

Back 33

1. mutual mistake
2. unilateral mistake
3. mistake by intermediary
4. latent ambiguity mistake
5. misrepresentation
6. nondisclosure

Front 34

What are two defenses to enforcement?

Back 34

1. statute of frauds
2. unconscionability

Front 35

What are 3 defenes to formation?

Back 35

1. absence of mutual assent
2. absence of consideration
3. public policy/illegality

Front 36

What are the 3 general types of defenses to contracts?

Back 36

1. formation
2. lack of capacity
3. enforcement

Front 37

What are the 3 elements of mutual mistake?

Back 37

1. mistake concerns a basic assumption on which the K was made
2. mistake has a material adverse effect on the agreed-upon exchange
3. the adversely affected party did not assume the risk of the mistake

Front 38

What is a latent ambiguity mistake?

Back 38

when there was a misunderstanding because
1. parties use a material term that was open to 2 reasonable interpretations
2. each party attaches a different meaning
3. neither party knows or has reason to know the term is open to 2 interpretations

Front 39

In DE, for about how long can an employee covenant not to compete be?

Back 39

Normally about 1 year, the trend has become that 2 years is too long

Front 40

In DE, can a doctor be enjoined not to compete?

Back 40

No, but you can specify liquidated damages under the K for violation.

Front 41

Explain employment Ks in DE.

Back 41

Presumed at will employment if no term of years is provided.
To rebut, employee must show
1. she suffered intentional discrimination b/c of race
2. evidence of disparate treatment of her and similarly situated persons, and
3. employee intentional discrimination resulted in adverse employment action

Front 42

In DE, what are the elements of undue influence?

Back 42

1. person subject to influence
2. person with opportunity to influence
3. results indicate undue influence

If parties are in a confidential or fiduciary relationship, equity rsises a presumption against the validity of a transaction

Front 43

True/False: Duress requires more than taking economic advantage of another.

Back 43

Usually true.

Front 44

When must a contract be in writing?

Back 44

MY LEGS
Marriage
Year - can't perform K in a year
Land
Executors - promises to pay estate out of own funds
Goods - of more than $500
Surety - guranteeing to answer for debt of another if he doesn't pay

Front 45

When does a K for goods not have to be in writing?

Back 45

1. less than $500
2. more than $500 but,
goods are specially manufactured
written confirmation of an oral agreement between merchants
admission in pleeding or court that K for goods existed, or
partial payment/delivery made and accepted

Front 46

True/False: A lifetime contract can be performed within a year.

Back 46

True

Front 47

How do you satify the SOF? (3 general ways)

Back 47

1. performance
2. writing
3. judicial admission

Front 48

How do you satisfy the SOF with performance?

Back 48

Common Law - only full performance satisfies (not part)
UCC - part performance satisfies the SOF only to the extent of the part performance (i.e. extent of delivered goods)
For real estate - full payment or possession w/ part payment or possession w/ substantial improvement works

Front 49

Under common law, what is needed in writing to satisfy the SOF?

Back 49

All material terms; the who (parties) and the what (bargained for)
1. identity of the parties
2. identification of the K's subject matter
3. terms and conditions
4. recital of consideration, and
5. signature of the party to be charged

Front 50

Under the UCC, waht is needed in writing to satify the SOF?

Back 50

1. indicate its a K for sale of goods
2. indicate the quantity
3. be signed by party denying a K exists

(price is irrelevant under UCC)

If for a lease, it must describe the length and cost

Front 51

What is the equal dignity doctrine?

Back 51

If you are authorized to enter into an agreement subject to the SOF, then your authority must be in written documentation

Front 52

When must K modification be in writing?

Back 52

When modification puts K into SOF territory or when modification keeps K in SOF territory
If K calls for modification to be in writing: CL - ignore the langue and apply standard rules, UCC - follow the K unless waived