Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
59 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
Conduct as Manifestation
of Assent Rest. 2d §19 |
Manifestation of assent may be made by written or spoken words, actions or the failure to act
|
Embry
|
|
|
Conduct as Manifestation
of Assent Rest. 2d §19 |
Manifestation of assent may be made by written or spoken words, actions or the failure to act
|
Embry
|
|
|
Conduct as Manifestation
of Assent Rest. 2d §19 |
Manifestation of assent may be made by written or spoken words, actions or the failure to act
|
Embry
|
|
|
Conduct as Manifestation of Assent Rest. 2d §19 |
Manifestation of assent may be made by written or spoken words, actions or the failure to act
|
Embry
|
|
|
Offer Defined Rest. 2d §24 |
An offer is the manifestation of willingness to enter into a bargain, so as to justify another person in understanding that his assent is invited and will conclude the bargain
|
Lucy v. Zehmer
|
|
|
Preliminary Negotiations Rest. 2d §26 |
…not an offer if the person to whom willingness is addressed has reason to know the offeror does not intend to conclude the bargain without further manifestation of assent
|
Nebraska Seed
|
|
|
Indirect Communication of Revocation Rest. 2d §43 |
Power of acceptance is terminated when offeror takes definite action inconsistent with the proposed contract AND offeree acquires information to that effect
|
Dickinson v. Dodds
|
|
|
Purported Acceptance Which Adds Qualifications Rest. 2d §61 |
An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on an assent to the changed or added terms
|
Ardente v. Horan
|
|
|
Time When Acceptance Takes Place Rest. 2d §63 |
Mailbox Rule: an acceptance made in a manner invited by the offer completes manifestation of assent as soon as it's put of of the offeree's possession (but options are upon receipt)
|
Mailbox Rule
|
|
|
Options (Reasonable Offeror Expectation)Rest. 2d §87 |
In an option, if an offeror should reasonably expect his offer to induce substantial action or forbearance by the offeree, and the offer DOES induce that action before acceptance--offeror is bound
|
Peterson v. Pettberg
|
|
|
Acceptance by Performance/Notice to OfferorRest. 2d §54 |
If an offer invites acceptance by performance, no notification is required to make acceptance effective (unless otherwise stated)
|
|
|
|
Option Created by Partial Performance/Tender Rest. 2d §45 |
When an offer invites acceptance by performance--an option is created. The offeror's duty to perform is conditional on completion or tender of the invited performance
|
Peterson v. Pettberg
|
|
|
Offer Invites Either Performance or Promise Rest. 2d §62 |
If an offer invites EITHER performance or a promise, the tender or beginning of performance is an acceptance (and a promise to complete performance)
|
|
|
|
Acceptance by Silence Rest. 2d §69 |
Silence may operate as acceptance when pervious dealings make it reasonable, when offeree takes benefit of services with reasonable opportunity to reject them, or when offeror gives reason
|
Massoit Whip
|
|
|
Doctrine of Reasonable Expectations (Standardized Agreements) Rest. 2d §211 |
When a party manifests assent to a form contract, and has reason to believe the contract is uniform/standardized, he adopts the writing as an integrated agreement with respect to the terms in the form contract--EXCEPT when the other party has reason to believe that the offeree would not assent if he'd known a certain term was in the contract
|
Carnival Cruise
|
|
|
Adequacy of Consideration Rest. 2d §79 |
If consideration is present, there is no additional requirement of gain, advantage or benefit to the promisor OR a loss, detriment to the promisee. Equivalnce/adequacy of values exchanged is irrelevant
|
Hamer v. Sidway
|
|
|
Effect of Unfairness Rest. 2d §364 |
Specific performance/injunction relief will be refused if it would be unfair due to a grossly inadequate exchange, or unfair terms of the contract itself.
|
Newman State Bank v. Hunter
|
|
|
Settlement of Claims Rest. 2d §74 |
Forbearance to assert or the surrender of a claim or defense which proves to be invalid is not consideration unlessthe forbearing or surrendering party believes that the claim or defense may be fairly determined to be valid.
|
Dyer v. National By Products
|
|
|
Bargained For Exchange Rest. 2d §71 |
In the typical bargain, the consideration and the promise bear a reciprocal relation of motive or inducement: the consideration induces the making of the promise and the promise induces the furnishing of the consideration.
|
Johnson v. Otterbein
|
|
|
Merely Nominal ConsiderationRest. 2d§71 |
a mere pretense of bargain does not suffice, as where there is a false recital of consideration or where the purported consideration is merely nominal. In such cases there is no consideration and the promise is enforced, if at all, as a promise binding without consideration under
|
Schnell v. Nell
|
|
|
Promise Reasonably Inducing Action Rest. 2d §90 |
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires
|
Star Paving Co. or Feinberg v. Pfeiffer
|
|
|
(Formality) When an offer is binding as an option Rest. 2d §87(1) |
…it is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time
|
Schnell v. Nell (modern day seal)
|
|
|
Pretended Exchange of Consideration Rest.2d 79 (comment d) |
Sham or nominal consideration will not satisfy §71--"Peppercorn Theory" applies only when exchange is bargained for (rather than pretense)
|
Schnell v. Nell
|
|
|
Modification of Contract BindingRest. 2d§89c |
If the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made or to the extent that justice requires enforcement in view of material change of position in reliance on the promise.
|
Brian Construction v. Brighenti
|
|
|
Define Merchant UCC §2•104 |
A person who deals in goods of the kind, or otherwise by his occupation has knowledge or skill particular to the goods involved in the transaction
|
ProCD
|
|
|
Firm Offers UCC §2•205 |
A merchant's offer to buy or sell in signed writing which by its terms assures that it is non revocable--for lack of consideration--during the stated time period (or a reasonable period) in no even exceeding 3 months--must be separately signed by offeror
|
Dodds (if not real estate)
|
|
|
Formation in General UCC §2•204 |
A contract may be made in any manner sufficeint to show agreement (and the moment of completion isn't necessary). Indefiniteness does not make a contract fail if the parties intended to contract AND a rememdy is reasonably applied
|
Gateway
|
|
|
Additional Terms in AcceptanceUCC §2•207 |
A timely acceptance operates as acceptance even though it states additional or different terms, unless the acceptance is made expressly conditional on assent to those terms. Conduct by both parties that recognize the contract may establish a contract despite different terms...the agreed upon terms stay in
|
Step Saver
|
|
|
When merchants Accept with Added Terms UCC §2•207 |
They're added. Except if the original offer expressly limits acceptance to original terms, the terms materially alter the contract, or notification of objection to the terms is reasonably given
|
Step Saver
|
|
|
Open Price Term (not set) UCC §2•305(1) |
If parties intend to be bound, and nothing is said as to price, the price is left to be agreed upon and they fail to agree, or the price is to be fixed to some standard and is not--the price is a reasonable price at delivery
|
Sun Printing
|
|
|
Open Price Term (intend not to be bound) UCC §2•305 (4) |
Where, however, the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is no contract.
|
Sun Printing
|
|
|
Output Contracts/ Exclusive Dealings UCC §2•306 |
If a buyer contracts to purchase sellers output--good faith is required (no unreasonable quantity relative to estimate or comparable prior output may be tendered/demanded)
|
|
|
|
Delivery Unspecified UCC §2•307 |
Default is a single delivery with payment due on delivery--but where the circumstances allow multiple deliveries, payment may be tendered for each lot
|
|
|
|
Place of Delivery UnspecifiedUCC §2•308 |
Unless otherwise agreed, the place for delivery is the seller'splace of business/residence. OR if the parties know where the goods are at the time of sale, the place of delivery is there
|
|
|
|
Absence of Specific Time Provisions UCC §2•309 |
The time for shipment or delivery or any other action under a contract if not provided in this Article or agreed upon shall be a reasonable time.
|
|
|
|
Absence of Time + Successive Performances UCC §2•309(2) |
Where the contract provides for successive performances but is indefinite in duration it is valid for a reasonable time but unless otherwise agreed may be terminated at any time by either party.
|
Sun Printing
|
|
|
Open Time for Payment/Authority to Ship UCC §2•310 |
Payment is due at the time and place at which the buyer is to receive the goods
|
|
|
|
Options & Cooperation Respecting Performance UCC §2•311 |
An agreement for sale which is otherwise sufficiently definite (subsection (3) of Section 2-204) to be a contract is not made invalid by the fact that it leaves particulars of performance to be specified by one of the parties. Any such specification must be made in good faith and within limits set by commercial reasonableness.
|
|
|
|
Seals UCC §2•203 |
Seals are inoperative in contracts for sale of goods
|
Seals are inoperative in contracts for sale of goods
|
|
|
Modification, Recission, and Waiver UCC §2•209 |
Abolished Pre-Existing Duty Rule: An agreement modifying a contract within this Article needs no consideration to be binding
|
|
|
|
The Last Shot Rule |
In common law--when an acceptance varies any term of the offer, it is a counter offer/rejection of the offer--but if the offeror proceeds to perform on that counteroffer, he would accept the counter offer's terms. Whoever submits the last set of terms before performance controls "last shot"
|
|
|
|
The Knockout Rule |
When terms admitted under U.C.C. §2•207 conflict with one another, the terms will cancel (or knock) each other out, to be replaced with a Gap Filler
|
|
|
|
Define Integrated AgreementRest.2d §209 |
An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement.
|
|
|
|
Effect of Integrated Agreements on Prior Agreements Rest.2d §213 |
A completely integrated agreement discharges all prior agreements within its scope.A partially integrated agreement discharges all prior agreements inconsistent with its express terms.
|
|
|
|
Use of Evidence of Prior Negotiations Rest.2d §214 |
Agreements prior to the integration are admissible to clarify ambiguities or determine whether an integration is complete or partial
|
|
|
|
Parol Evidence Rule Generally |
When parties intend to memorialize their agreement in a final document, and assent to the terms within that document, terms agreed to in prior negotiations not treated in that written contract will only be supplemented if they are consistent with the existing terms, and the document was not intended to be complete
|
|
|
|
U.C.C. §2•314 Implied Warranty of Merchantability |
Goods to be merchantable must be at least such as are fit for the ordinary purposes for which such goods are used, and are of fair average quality within the description
|
|
|
|
U.C.C. §2•315 Implied Warranty of 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 that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods
|
|
|
|
U.C.C. §2•312 Implied Warranty of Title |
There is in a contract for sale a warranty by the seller that the title conveyed shall be good, and its transfer rightful, and the goods shall be delivered free from any security interest
|
|
|
|
U.C.C. §2•313 Express Warranty |
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 bargainb.) Any description of the goods which is made part of the basis of the bargainc.) Any sample or model which is made part of the basis of the bargain
|
|
|
|
U.C.C. §2•316 Disclaimers of Merchantability |
To exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous
|
|
|
|
U.C.C. §2•316 Disclaimers of Fitness for Particular Purpose |
May be generally disclaimed, to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous
|
|
|
|
U.C.C. §2•316 Disclaimers of Express Warranty |
Any words or conduct that negate an express warranty will be construed to avoid any confrontation where possible. In all other cases, subject to the Parol Evidence rule, negation of express warranties are inoperative
|
|
|
|
Rest.2d §201 Whose Meaning Prevails |
In a conflict of meanings to a term, Party A's terms control if (1) that party did not know or have reason to know of any different meaning attached by Party B, and Party B knew or had reason to know of the meaning attached by Party A
|
|
|
|
U.C.C. §1•205 Reasonable Time; Seasonableness |
Reasonable depends on the nature, purpose, and circumstances of the action. Seasonable action occurs within the agreed upon time, or if no agreed upon time, then a reasonable time
|
|
|
|
U.C.C. §2•306 Output/Requirement Contracts |
Quantity means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate or in the absence of a stated estimate to any normal or otherwise comparable prior output or requirements may be tendered or demanded.Imposes an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale.
|
|
|
|
U.C.C. §1•203 Lease Distinguished from Security Interest |
Whether a transaction in the form of a lease creates a lease or security interest is determined by the facts of each case.
|
|
|
|
U.C.C. §1•201(19) Good Faith Defined |
“Good faith,” except as otherwise provided in Article 5, means honesty in fact and the observance of reasonable commercial standards of fair dealing.
|
|
|
|
U.C.C. §1•102(3) Purposes; Rules of Construction |
The obligations of good faith, diligence, reasonableness and care prescribed by this Act may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable
|
|
