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44 Cards in this Set

  • Front
  • Back
What is a contract
promise or a set of promises a breach of which, the law recognizes a remedy and duty to perform
Contract vs executed agreement
Contract is executory in nature promise that must be executed. Agreement to house is a contract - the actual sale of house is NOT.
Freedom of Contract
Pure freedom to contract has diminshed in modern times. Legislators have restricted contracts. Example- employment and insurance contracts. Contracts of ADHESION have become common place. Purchase car, cell phone service....
Philosophy of Contract
1.Sovereignty of individual will
2.Sanctity of Promise
3.Private Autonomy
5.Needs of trade
1.Individual responsibility Promisors
2.Law upholds moral values
3.Freedom Private Sec w controls
4.Fairness to Promisees
5.Economic Efficiency
Sources of Contract Law
1.Article 2 of the UCC
2.Restatement of Contracts
3.legislators for a few specific contracts
What is a Formal Contract?
Today it means it a contract in writting signed by party
1.contracts under seal
3.negotiable instruments and letters of credit
What is Informal Contact?
All other contracts - enforceable not because of form but substance
What is an express Contract?
Parties have written it or spoken it - expressed it.
What is an Implied in Fact Contract?
Conduct of one or both parties is necessary to show assent of contract
What is an Implied in Law Contract? "Quasi"
Consent imposed. Unconscious patient treated by doctor in ER.
Thus is not a contract at all, you are avoiding unjust enrichment
When is a contract considered VOID?
When it produces no legal obligation of the promisor
No contract has been created.
When is contract Voidable?
When a party has the power to avoid legal relations created in contract. Under aged signer or party induced to sign by fraudulent means.
When is a contract unenforceable?
Contract has some legal consequences, but may not be enforced in an action for damages or performance in face of legal defense such as Statue of limitations or Fraud
Contract based on Governing Law
non movable objects (real estate service)
Common Law
Contract based in Governing Law
movable objects (tx of goods)
UCC (Uniform Commercial Code)
What is a Merchant?
According to UCC Article 2
You are a Merchant if any of:
1.Deal in goods of that kind
2.Occupation- special skills knowledge in practices
3.Occupation special skills knowledge in goods
4.employs intermediary who has said skills
Object Theory of Contracts
What a reasonable person, standing in the shoes of the addressee, would understand them to mean.
What a reasonable person in the position of the respective parties would be led to believe by the words or conduct of the other party.
Rational Expectation
each contracting party must be able to rely on the other party's apparent intentions - not secret thoughts
Sufficient Manifestation
when a party volitionally engages in conduct (words or acts) that he knows, has reason to know, or should have reasonably known, the other party may interpret as an offer or acceptance
When is there agreements between parties that are not contracts?
The parties did not intend legal consequences.
No call no show to dinner date
Husband promise to wife - quit smoking
Employee handbook
May be considered a contract
Are contracts of adhesion enforceable?
Yes, courts resort to a variety legal doctrines to protect weaker parties, but only when challenged provision is unfair or unreasonable.
What constitutes an offer?
1.Manifestation contractual Intent by the offeror
2.Certainty and definiteness of Terms
Can a (P) bring action using tort law and contract law for a single conduct of (d)?
Yes, but only for malpractice by attorney.
Offer vs Opinion
Can doctor be sued for breach of contract for apparent promise of a particular surgical outcome?
Yes, If he crosses the boundary of opinion to get the case.
Are Advertisements Offers to contract?
General not, unless specific language. 3 available at $2 First come First Serve.
Auction with reserve
Is Auction Notice an offer?
No, at most it is an invitation to the public to make offers
What is Mutual Assent?
essential prerequisite for formation of contract
Auction with Reserve
Is putting goods on the block an Offer?
no, an invitation for offer. Can remove item after bidding begins unless it is "hammered down"
Auction with Reserve
Are bids by buyers offers?
yes, but new bid eliminates previous
accepted by "hammering down"
Until "hammered down", item can be withdrawn
Auction WITHOUT Reserve
Can item be withdrawn even if a bid is made in a reasonable time?
NO, but bid can be withdrawn until hammer has struck.
Under the UCC, can an auctioneer reopen bidding if the hammer is falling in acceptance of prior bid if another bid comes in?
Yes, at his discretion
Is a price quotation an offer?
Usually not. A quote may be elevated to an offer if details are given indicated intent of offer
If a communication is delivered to a party who knows or has reason to know that the person making communication does not intend an offer until further expression is given, Is there an offer?
Statements of Intention, Hopes, Desires
A says I am going to sell my car for $500. B says here is the $500. Is this a Contract?
If a reasonable person would in B's shoes would conclude A stated an intention there would be no offer and therefore no contract.
Estimate - can it be construed as a contract?
Yes, if the estimator claimed to be an expert, the estimate would be a factual representation and an offer
Intent to memorialize agreement
General Rule
1.writing as evidentiary memorial
2.writing as consummation of agreement
1. there is contract without further a due.
2. there is no contract until written agreement complete
Intent to memorialize
Evidentiary considerations
subject matter, quantity, time of performance , and price must be included to be considered a contract modern rule if parties intended to contract indefiniteness can be fixed by court fillinng gap
Juries determine questions of?
Judges and Appellate courts determine questions of?
A unilateral contract is?
one party promise to other - promise for performance. I will give you $500 after you paint my house.
A bilateral contract is?
mutual promises only. I promise to sell you my car and you promise to buy it
A public offering is?
A unilateral contract. I will give you $500 for finding my watch.
If a contract is ambiguous is it bilateral?
Yes. It must say "you can accept only by completing job to be unilateral