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34 Cards in this Set

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  • Back
What do you look at to see if the offeror created a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms
"(1) Was there mutual assent; (2) Was there consideration or some substitute for consideration, such as promissory estoppel; (3) are there and defenses against creation of the contract"
When are advertisements treated as offers
Only if (1) they can be construed as making a promise; (2) their terms are definite and certain; (3) and the offeree is clearly identified
Who can accept an offer
Only parties to which the offer has been addressed
What is the mirror image rule
Acceptance must be identical to the offer
When is a contract formed under the UCC in terms of acceptance
"Depends upon the status of the parties: (1) If one of the parties in not a merchant, terms of the offer control; (2) if both parties are merchants, additional terms become part of the contract unless they (i) materially alter the contract, (ii) the offer expressly limits acceptance to the terms of the offer, (iii) the offeror objects to the terms within a reasonable time; (3) If the offer and acceptance contain conflicting terms, a court may treat the conflicting terms like additional terms or use the ""knockout rule"" which replaces conflicting terms with UCC gap fillers"
When are offers generally effective
When received
When are rejections generally effective
When received
When are revocations generally effective
When received
"Under the mailbox rule, when is an acceptance generally effective"
When sent
What happens when an offeree sends a rejection and then an acceptance
"The mailbox rule does not apply, and the first communication to be received is effective"
What happens when an offeree sends an acceptance and then a rejection
The mailbox rule generally applies unless the offeror receives the rejection first and changes her position in reliance on it
When is an offer not revocable
(1) consideration was paid to keep the offer open; (2) It was a merchants firm offer under the UCC not to exceed 3 months (sig reqt is liberal); (3) The offeror could reasonably expect that the offeree would rely to his detriment on the offer (the offer is irrevocable for a reasonable period of time); or (4) The offer was an offer for unilateral contract in which performance has begun (the offeree has a reasonable time in which to perform)
What are the requirements for consideration
(1) a bargained for exchange between the parties (2) of something of legal value (there must be a benefit to the promisor or a detriment to the promisee)
When will a contract modification be valid under CL and one of the parties had a pre-existing legal duty
(1) new or different consideration is given; (2) the promise ratifies a voidable obligation; (3) the promise is made to a third party; (4) there is an honest dispute as to whether a duty is owed
When will a contract modification be valid under the UCC and one of the parties had a pre-existing legal duty
"good faith modifications do not need to be supported by consideration to be enforeceable, so the pre-existing duty rule does not apply."
When is a contract voidable as unconscionable
Where its clauses are extremely one-sided or unfair when made
What are the requirements for the SOF
Essential terms of the contract must be memorialized in a signed writing - MYLEGS (Marriage; Contract not able to be performed within 1 year; Land transfers; Executor; Guaranty; Sale of goods >= 500)
What are exceptions to thje SOF writing requirement
"For land - possession plus valuable improvements, etc; For sale of goods - specially manufactured goods, one merchant sent another a confirmation with the terms, a party admits to the agreement in court or a pleading, part payment or acceptance has been made (makes K enforceable to that extent)"
When does impossibility discharge a contract
"Objective standard & impossibility must arise after the K was entered into - i.e. (death or incapacity, law rendering K illegal, subsequent destruction of the K's subject matter or means of performance if the promisor was nto at fault and it is truly impossible to fulfill the terms of the K at any price)"
When does frustration of purpose discharge a K
(1) a supervening event (ii) that was not reasonably forseeable at the time of entering into the K (iii) which completely or almost completely destroys the purpose of the K and (iv) the purpose was understood by both parties
"How are accord and satisfaction, modification, and substitute consideration closely related"
They each discharge contractual duties through an agreement to change the performance due. Consideration is required in every case except for modification of a K for the sale of goods if the modification was made in good faith
When may an accord consist of an agreement for less than one of the parties thinks is due under the K
When there is a bone fide dispute as to the performance due
How does the effect of a substituted K differ from an accord and satisfaction
an accord does not discharge the original K until satisfaction; a substituted K discharges the original K immediately
What does the UCC perfect tender rule say
goods delivered must completely conform to the K or the seller is in breach
What are the exceptions to the perfect tender rule
"(1) If the seller notifies the buyer that he cannot send conforming goods and is sending other goods as an accomodation, he does not breach the K but instead makes a counter offer; (2) If the time for performance has not arrived, the seller may cure the breach by sending conforming goods before the time for performance arrives; (3) Also, the seller may cure any defects within a reasonable time if the K is an installment K or if the seller reasonably expected the buyer to accept the nonconforming goods."
Can a K specify who bears the risk of loss
When do expectation damages award
They give a party the benefit of the bargain
What are consequential damages
Any damages that are a reasonably foreseeable result of breach
When can specific performance be awarded
"Can be awarded in equity if the K is for something rare or unique, but it cannot be granted to force someone to perform under a personal services K, although the breaching party can be enjoined from performing services for someone else during the term of the K"
When do the rights of a 3rd parties rights vest
When the 3rd party (1) assents to the K; (2) brings suit to enforce the K; (3) or mentally changes position in justifiable reliance on the contract
What is an implied warranty of merchantability
A warranty made only by merchants who deal in goods of the kind sold that the goods will be fit for ordinary purposes
What is an implied warranty of fitness
Arises when the seller picks goods suitable for the buyer's particular need
How can you disclaim implied warranties
Conspicuously inform the customer
Who bears the risk of loss once goods have passed from the seller to the common carrier
"The buyer, unless the K specifies otherwise"