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20 Cards in this Set

  • Front
  • Back

Offer

A party makes an offer if she demonstrates a willingness to enter into a bargain under reasonably certain and definite terms without the needs to further assent on her part.

Acceptance

Acceptance of an offer is a manifestation of assent by the offeree to the offeror's terms. An offer to create


* Bilateral


* Unilateral.

Consideration

Consists of two elements: 1) a bargained-for exchange and 2) that which is exchanged must be of legal value. In a bargained-for exchange, the promise induces the detriment and the detriment induces the promise. A detriment is a waiver of a legal right.

Governing Law

The Uniform Commercial Code (UCC) governs all transactions for the sale of goods. Goods are defined as a moveable object. The common law governs contracts for anything other than goods.

Overall Conclusion for K formation

Given the facts of there being an offer, acceptance, and consideration. Therefore, there is/not a contract.

Good Faith and Fair Dealing

In every contract there is an implied duty of good faith and fair dealing. At a minimum, good faith means honesty in fact. The reasonable person standard for good faith is employed when a contract involves commercial quality, operative fitness, or mechanical utility which other knowledgeable person can judge.

S.O.F. (Common Law)

1. Is the contract within the statute?


MYLEGS




2. If yes, does the writing satisfy the requirements, of the statute- is there a "sufficient memorandum"? A sufficient memorandum is any writing, signed by the party to be charged, which (a) reasonably identifies the subject matter of the contract, (b) is sufficient to indicate that a contract has been made between the parties or offered by the signor to the other party, and (c) states with reasonably certainty the essential terms of the underperformed promises in the K.




3. If the writing is not sufficient but is within the statute, is the contract enforceable because of an exception to the statute? There is a promissory estoppel exception, in which a promise which the promisor should reasonably expect to induce action or forbearance is enforceable not withstanding the SOF if injustice can be avoided only by enforcement of the promise. Circumstances to be considered include: a) the availability of other remedies, b) the definite and substantial character of the action taken in relation to the remedy, c) the extent to which the action corroborates terms of the promise, d) the reasonableness of the action, and e) whether the action was foreseeable by the promisor.

S.O.F. (UCC)

1. Is the contract within the statute?


MYLEGS




2. If yes, does the writing satisfy the requirements of the statute? A sufficient memorandum is any writing, signed by the party to be charged, which (a) contains writing between the parties, (b) signed by the party to be charged, and (c) states a quantity.




3. If the writing is not sufficient but is within the statute, is the contract enforceable because of an exception to the statute? There are five exceptions: a) Part-Performance, b) Special Goods, c) Admissions, d) Merchant Confirmation, and e) Promissory estoppel

Merchant Firm Offer (UCC)

Under the UCC, an offer by a merchant to buy or sell goods in a singed writing which gives assurance that it will be held open is not revocable, even absent consideration, during the time stated but not for a period longer than three months. The offer may be irrevocable for longer than three months if renewed or supported by consideration. This is known as merchants firm offer rule. A merchant is a person who deals in goods of the kind or otherwise by her occupation holds herself out as having knowledge or skill peculiar to the goods involved in the transaction.

Battle of the Forms

A definite and seasonable expression of acceptance operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the terms are to be construed as proposals for addition to the contract. Between merchants, such additional or different terms become part of the contract unless:


a. the offer expressly limits acceptance to the offer terms;


b. they materially alter it; or


c. notification of objection has already been given or is given within a reasonable time after notice of them is received.




A merchant is a party who deals in goods of the kind or otherwise by their occupation holds themselves out as having knowledge or skill peculiar to the goods involved in the transaction. A term materially alters a contract if the other party would be surprised or would incur a hardship, or if the party's risk profile changes due to the inclusion of the new term.

Promissory Estoppel

A promisee may enforce a promise under the doctrine of promissory estoppel if the following elements are met: 1) there is a promise, 2) the promisor should have reasonably expected that the promisee would detrimentally rely on the promise, 3) there was actual reliance by the promisee, and 4) injustice can be avoided only by enforcement of the promise and enforcement may be limited as justice requires.

Restitution

An implied promise may be enforceable under a theory of restitution if the following elements are met: 1) the P has conferred a benefit on the D, 2) the P conferred a benefit with the reasonable expectation of being compensated for its value, 3) the D has knowledge of the benefit, and 4) the D would be unjustly enriched if allowed to retain the benefit without compensating the P.

Express Warranties by Affirmation

a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.




b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description




c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample of model.

Implied Warranty of Merchantability

1)Warranty that the goods shall be merchantible is implied




2) Goods to be merchantable must


a) Pass without objection in the trade




3) Unless excluded or modified other implied.


* To exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantablity in case of a writing must be conspicuous.

Implied Warranty Fitness For Particular Purpose

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and the buyer is relying.

Exclusion or Modification of Warranties

1. Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other, but subject to the provisions of this Article on parol or extrinsic evidence negation or limitation is inoperative to the extent that such construction is unreasonable.




2. Subject so subsection 3) to exclude or modify the implied warranties of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness and exclusion must be by a writing and conspicuous.

Parol Evidence (Classic Rule)

To determine whether parol evidence rule bars the admissibility of oral evidence, we must first determine the level to which the contract is integrated. A writing may have no integration, partial integration, or complete integration, depending on the extent to which the writing is a final expression of the parties' agreement. If the writing is not at all intended to be a final expression of the parties' agreement, then there is no integration. If the parties' intent is that the document is a final expression of only part of their agreement and the writing does not have all of the details, then there is a partial integration. If the parties' intent is that the document is a complete and exclusive statement of the terms of the agreement, then there is total integration. In a classic jurisdiction, before considering extrinsic evidence, the judge must find ambiguous language within the four corners of the K without resorting to outside evidence. The presence of a merger clause would be dispositive.




Given the type of integration, what evidence can be admitted and for what purpose? If the writing is completely integrated, then extrinsic evidence may be admitted only to explain the K. Extrinsic evidence may not be admitted to contradict or supplement the contract.




Assuming the parol evidence rule does bar admissibility of the conversation, are there any exceptions? The Parol evidence rule does not bar evidence of fraud to void a contract.

Parol Evidence (Modern Rule)

To determine whether the parol evidence rule bars admissibility of oral evidence, we must first determine the level to which the contract is integrated. A writing may have no integration, partial integration, or complete integration, depending on the extent to which the writing is a final expression of the parties' agreement. The judge can consider extrinsic evidence to determine the intent of the parties as to integration, even if there is no ambiguity on the face of the writing. To determine the parties' intent, the judge would consider all of the relevant information and evidence, such as the circumstances surrounding the execution of the contract, contract language, the parties' conduct, and the presence of a merger clause (but the presence of a merger clause is not dispositive)




Given the type of integration, what evidence can be admitted and for what purpose? If the writing is partially integrated, then extrinsic evidence may be admitted to supplement the contract with consistent, additional terms or explain the contract, but not to contradict the writing.

Option Contract

An option contract is a promise that limits the promisor's power to revoke an offer. An offer is binding as an option contract if it is in writing and signed by the offeror and supported by consideration in exchange for keeping the offer open for a specified time.

Parol Evidence: Level of Integration

No integration: Contradict Terms/ YES, Consistent Additional Terms/ YES


Interpret Ambiguity/ YES




Partial Integration: Contradict Terms/ NO


Consistent Additional Terms/ YES


Interpret Ambiguity/ YES




Total Integration: Contradict Terms/ NO


Consistent Additional Terms/ NO


Interpret Ambiguity/ YES