Contracts & Sales

Front 1

Diff btwn a bilateral and unilateral K?

Back 1

bi - exchange of promise for promise
uni - acceptance by performance, offeror promises to pay upon completion. K forms when act completed.

Front 2

When can there be a unilateral K?

Back 2

Only when full performance.
(1) offeror clearly & unambig indicates completion of performance is only way to accept; and
(2) where there is an offer to the public (reward offer)

Front 3

OFFER

Back 3

manifestation of willingness to enter into a K that create a reasonable expectation in offeree that offeror is willing to contract on basis of the offered terms.

Front 4

To decide whether a communication is an offer, ask:

Back 4

1) expression of a promise, undertaking, or commitment?
2) certainty and definiteness in essential terms?
3) communication of above to the offeree?

Front 5

Goods (Art. 2)

Back 5

all things moveable at the time id'd as goods to be sold under K.

Front 6

Art. 2 does not apply to:

Back 6

sale of real estate services, or intagibles or to a construction K.

Front 7

Merchant

Back 7

one who regularly deals in goods of the kind sold or who otherwise by his profession holds himself out as having special knowledge or skills as to the practices or goods involved

Front 8

3 elements of an enforceable K

Back 8

mutual assent
consideration or substitute
defenses to it's creation

Front 9

Describe an offer:

Back 9

promise, undertaking or commitment
w/ definite and certain terms
communicated to offeree

Front 10

Missing terms don't prevent K formation if:

Back 10

it appears parties intended to make a K and there is a reasonably certain basis for giving remedy. Cts can supply reas. terms for those missing.

Front 11

Offers that cannot be revoked

Back 11

F.O.U.R.
Option
Firm Offer
Detrimental Reliance
part performance of unilateral K

Front 12

When is revocation effective?

Back 12

when recieved or published

sent mail - not til received
An offer cannot be revoked after it has been accepted.

Front 13

Consideration

Back 13

bargained for legal detriment
1) bargained for exchange 2) legally valued element
What did promisor bargain for? What detriment did promisee incur
can be performance, forbearance, promise to perform promise to forbear

Front 14

Past Consideration

Back 14

not valid: promise given in exchange for something already done does not satisfy the bargain
Unless expressly requested and expectation of payment.

Front 15

consideration substitute

Back 15

PE/detrimental reliance
promise made
reasonable detrimental forseeable
enforcement necessary to avoid injustice.
A written promise to satisfy an obligation for which tehre is a legal defense is enforceable w/o consideration if

Front 16

Termination by revocation

Back 16

words/conduct of offerror convey unambiguously unwillingness or inability to K

Front 17

mailbox rule

Back 17

if offeree is invited to accept by mail acceptance is effective when sent/posted if properly stamped addressed

Front 18

UCC - conditional acceptance - offer to sell and response w/ additional terms

Back 18

Response to an offer that adds new terms is generally a seasonable expression of acecptance

Front 19

Mirror image rule

Back 19

CL - acceptance must be unequivocal - any different or additional terms in acecptance make response a rejection and a counteroffer

Front 20

Offer in a real estate transac

Back 20

Id land and price terms
Id land with some particularlity but don't need deed description
cts will not supply missing price term

Front 21

Termination by lapse of time

Back 21

Offer may be terminated if offeror fails to accept w/in time stated or a reasonable time.

Front 22

Merchant firm offer

Back 22

If a merchant
offers to sell goods in a signed writing
writing gives assurances that it will be held open
not revokable for lack of consideration during the time stated.

Front 23

SOF

Back 23

In most instances K's are valid, but SOF req. certain agreements be evidenced in writing, signed by the parties sought to be bound.
MY LEGS

Front 24

SOF covers

Back 24

Marriage
w.in 1 year
land
executor/administrator
goods >500
Surety

Front 25

SOF: When no writing requirement for Sale of Goods >500

Back 25

SWAP
Specially manufactured goods if S made substantial beg M or commited to purchase;
Written confirmation by merchang,
Admission in Court
Performance - if goods received & accepted or paid for (up to that part)

Front 26

Merchant Confirmatory Memo Rule

Back 26

K btwn merch - 1 party w/in reas time after oral agreement sends other party a written confirmation understanding it is sufficient under SOf to bind. also binds recipient unless
reason to know of or doesnt object in writing

Front 27

SOf requires

Back 27

Writing - one or more writings signed by the person sought to be held liable that reflect the material terms
Signature - need not be written, print. letter, only party to be sued

Front 28

Ohio Unconscionability

Back 28

Substantive - unreasonable K terms
Procedural - no voluntary meeting of the minds is possible in light of individualized circs surrounding each party to a K

Front 29

Art. 2 - When does a buyer accept?

Back 29

1) after reas opp to inspect - indicates to seller that they conform or will keep if fail to conform
2) fails to reject w/in reas time after tender or delivery of goods or fails to seasonably notifty of rejection OR
3) does any act inconsistent w/ seller's ownership

Front 30

Implied warranty of merchantiability

Back 30

implied in every K for sale by a merchant who deals in goods of kind.
"Fit for ordinary purposes for which such goods are used"
Sellers knowledge of defect is not relevant, implied warranties based on SL

Front 31

Divisible K

Back 31

3 tests must be concurrently satisfied:
1) performance of each party divived into 2 or more parts
2) number of parts due from each party is the same
3) perfomrance of each party by 1 party is agreed on as the equivalent of the corresponding part.

Front 32

Perfect tender rule

Back 32

(art. 2) If the goods or their delivery fail to conform to K in any way, buyer may reject all or accept any commercial units and jrect the rest.
doesn't follow substnatial performance doc,
B's right to reject is cut off by acceptance

Front 33

Buyer make revoke acceptance if:

Back 33

Goods have defect that substantially impairs value and:
1) accepts on reas belief defect would be cured and it has not been; or
2) accepted because of diff discovering defect or seller assurances goods conformed
Must occur w/in reas time after buy discovers (or should have) defects and before any substantial changes in goods

Front 34

Minor Breach

Back 34

Obligee gains substantial benefit or bargain despite obligor's defective performance
does not relieve aggrieved party of duty to perform
Gives right to damages (set off) for minor breach

Front 35

Compensatory Damages

Back 35

Goal: to put nonbreaching party where she would have been had the promise been performed (so far as $ can)

Front 36

Breach

Back 36

Promisor is under an aboslute duty to perform and this absolute duty of performance ahs not been discharged, thent his failure to perform in accordance with K terms amounts to a breach.

Front 37

Determining materiality of breach

Back 37

Cts look at:
amount of benefit received
adequacy of compensation
extent of part performance
hardship
neg/willful behavior
likelihood breaching party will peform remainder

Front 38

material breach

Back 38

obligee doesn't get substantial benefit of bargain

nonbreaching party may: treat K at end (counterperform discharged) or immediate right to all remedies for breach of entire K, including damages.

Front 39

satisfaction

Back 39

performance of the accord agreement
Discharge original K and accord agree

Front 40

Minor breach and anticipatory repudiation

Back 40

nonbreaching party may treat as material breach
May sue immediately for total damages, permantely discharged from dutyy
aggrieved party cant continue on or it's a failure to mitigate damages.

Front 41

warranty against infringemetn

Back 41

a merchant seller who reg deals in goods of kind auto warrants that goods are free from patent tm and other similiar claims

Front 42

warrant of title

Back 42

any seller of goods warrants that the title
transfered is good
transfer is rightful
no liens or encumbrances against title of which buyer is unaware at time of K

Front 43

Implied warranty of fitness for a particular purpose

Back 43

seller (merch or not) in a K for sale of goods
has reason to know the partic purposes for which the goods are to be used and that the buyer is relying on the selelrs skill & judgement to select suitable goods and
buyer in fact relies on sellers skill or judgement

Front 44

express warranties

Back 44

any affirmation of fact or promise made by seller to buyer
description of goods, sample or model creates and express warranty if
part of basis of bargain, came at time buyer could have relied on it.
Distinguish: statement of value or opinion

Front 45

Accord

Back 45

agreement - 1 party agrees to accept diff performance
support by consid - if less than orig or diff or to 3rd party
accord alone doesn't discharge prior K, suspends the right to enforce it in accordance w/ terms

Front 46

Parol Evi Rule

Back 46

Supplementing, explaining, or contradicting terms. When parties to K express agreemend in writing w/ intent that it embody the full and final expression of their bargain (integration) any other expression, prior to or oral contemparionus is inadmissible

Front 47

Who lacks capacity?

Back 47

Infant - under 18
Mental incompetents
Intoxicated person - if other party has reason to know