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;
87 Cards in this Set
- Front
- Back
|
Name two irrevocable offers
|
-Promissory Estoppel
-Option Contract |
|
|
Promissory Estoppel
|
A detrimental reliance on a promise
|
|
|
Option Contract
|
When one pays consideration to keep an offer open
|
|
|
Who can accept an offer?
|
The identified offeree
|
|
|
The Mailbox Rule
|
Acceptance is effective upon dispatch, and revocation is effective upon receipt
|
|
|
Does silence ordinarily constitute acceptance of an offer?
|
Generally no. But it can, with a gesture, Implied in fact contract, or when the offeree solisites the offer
|
|
|
Define Consideration
|
A bargained for exchange; a benefit and a detriment usually sustained by both party's
|
|
|
Do Courts generally check into the adequacy of consideration?
|
Generally Not
|
|
|
Is past consideration, valid consideration?
|
No!
|
|
|
Define Accord and Satisfaction
|
Accord; An agreement
Satisfaction; Performance of the agreement |
|
|
Liquidated Dept
|
Where the amount is fixed
|
|
|
Unliquidated Dept
|
Amount is in dispute
|
|
|
Minor children enter into what type of contract?
|
Voidable; Unless it is a contract of necessities, which are enforceable contracts against minor children
|
|
|
If a minor misrepresents their age, what is the result?
|
They may dis-affirm the contract, but are liable for damages
|
|
|
Emancipated Minors will enter into what types of contracts?
|
Valid contracts
|
|
|
Are parents liable for the contracts that their minor children enter into?
|
Generally not, but they can be held liable for contracts of necessities
|
|
|
Are parents liable for the torts that their minor children commit
|
Generally not, but they can be held liable in California for intentional misconduct, up to $25,000. If the parents are negligent, they are 100% liable
|
|
|
Intoxicated individuals will enter into what type of contract?
|
Voidable contracts
|
|
|
Mentally incompetent individuals will enter into what type of contract?
|
Judicially decreed incompetent individuals will enter into a void contract, while just a mentally incompetent individual will enter into a voidable contract
|
|
|
Usery Contract
|
Charging above the maximum legal interest rate allowed by statutes.
|
|
|
What remedy do courts use if a contract is found to be usery?
|
Red line Blue Pencil
|
|
|
2 reasons why states create Licensing Statutes
|
- To raise revenue
- Protect the public |
|
|
Adhesion Contract
|
a "Take it or leave it" contract. If there is a vague or ambiguous term in a contract of adhesion, the courts will construe it against the one who wrote the contract.
|
|
|
Impari Delecto
|
Equally at fault; an illegal contract. Courts do not get involved if a contract is equally at fault.
|
|
|
Exceptions to the Imapari Delecto rule
|
-Members of a protected class
-Justifiable ignorance of the law -Withdrawal from the illegal contract -a contract entered into under fraud, duress, or undue influence |
|
|
Unilateral Mistake
|
When one party is mistaken as to a material fact. The non-mistaken party is looked at; if they knew or should have known of the mistake, then the contract is unenforceable, otherwise it is enforceable agreement.
|
|
|
Mutual Mistake
|
-Mutual Mistake of Subject matter; unenforceable
-Mutual mistake of value;enforceable When in doubt if it's a mutual mistake of subject matter or mutual mistake of value, always test subject matter first. |
|
|
What remedies are used by the courts if Undue influence or Duress are found in a contract?
|
-Rescission; Undue a contract
-Restitution: |
|
|
Name the 5 types of contracts that require a writing under the statutes of frauds
|
-Contract that involves an interest in real estate
-1 year rule -Collateral promises -Contracts for the consideration of marriage Contracts for the sale of goods, $5,000 or more |
|
|
Prenuptial Agreement
|
A contract entered into before marriage which discusses the distribution of assets upon death or a divorce
|
|
|
The Parol Evidence Rule
|
Prohibits prior or contemporaneous oral or written evidence that will vary or alter the written of an integrated contract.
|
|
|
What rights are not assignable
|
contracts that are personal in nature cannot be assigned or delegated.If the contract prohibits the assignment or delegation, it cannot be assigned or delegated.
|
|
|
A Creditor Beneficiary
|
A contract created to extinguish a debt owed to a third party
|
|
|
Donee Beneficiary
|
A contract created to make a gift to a third party
|
|
|
Incidental Beneficiary
|
One who benefits from a contract, but they are the unintended beneficiary. They have no rights
|
|
|
Condition Precedent
|
A future event that must occur before a party becomes obligated under contract.
|
|
|
Condition Subsequent
|
A future event that will terminate a parties continued performance under a contract
|
|
|
Condition Concurrent
|
A simultaneous exchange of events. Ex. Purchase of a textbook at the PCC bookstore
|
|
|
Satisfaction
|
If it's made a condition in a contract involveing something that is personal in nature, courts will use a subjective test. If it involves something that is not personal in nature, courts will use an objective test
|
|
|
Novation
|
A substitution of a new party into a contract. All parties must agree, and the party that is substituted out, is no longer liable
|
|
|
Impossibility
|
The contract cannot be completed
|
|
|
Frustration of Purpose
|
Teh contract can be completed, but the underlying purpose of the contract becomes frustrated at the time performance is due
|
|
|
Commercial Impracticability
|
The contract can be completed, but at an extreme financial burden to one party
|
|
|
Compensatory damage
|
Compensation for the loss of bargain. Measure for recovery from:
-Sale of goods; Difference between the contract price and the market price -Contruction Contract; If contract had not begun- Loss of profit(Contract price-labor and materials) Contract is in the middle of construction- Profit+Labor and materials Construction with substantial performance- Contract price-Cost to complete |
|
|
Consequential Damages
|
Foreseeable special damages as a result of a breach of contract
|
|
|
Punitive Damage
|
Designed to punish an individual for malicious conduct.
|
|
|
Nominal Damage
|
When there's a breach but no actual damage sustained; can be as little as $1
|
|
|
Non breaching party always has a duty to...
|
Mitigate
|
|
|
2 types of contracts where we usually find the liquidated damage clause in...
|
-Construction contracts
-New Businesses Contracts |
|
|
Name and describe the equitable remedies
|
-Rescission;Undue a contract
-Restitution; To give back the consideration exchanged -Reformation;Court will rewrite a contract -Implied by law; There is no contract, but the court will create one to avoid unjust enrichment -Specific Performance; Court will require a party to fulfill a contract |
|
|
What are the sale of goods according to article 2 of the U.C.C?
|
(A movable, tangible item)
|
|
|
Who is a merchant according to article 2?
|
A merchant is someone who regularly deals with the goods in contract, or who has special knowledge or skill.
|
|
|
When does risk of loss pass form the seller to the buyer in a shipment contract?
|
When it's the hands of the carrier
|
|
|
When does risk of loss pass form the seller to the buyer in a destination contract
|
When the goods reach the destination specified in the contract
|
|
|
FOB Shipment contract
|
Risk of loss passes from the seller to the buyer when the goods are in the hands of the carrier
|
|
|
FAS( Free along side)
|
Risk of loss passes from the seller to the buyer when the goods are along side the carrier
|
|
|
CIF (Cost, Insurance, and Freight)
|
Risk of loss passes from the seller to the buyer when the goods are in the hands of the carrier
|
|
|
Delivery X ship
|
Risk of loss passes from the seller to the buyer when the goods have been properly unloaded from the carrier
|
|
|
Warehouse Contract; there is no movement of the goods
|
Risk of loss passes from the seller to the buyer when a warehouse receipt is generated
|
|
|
Sale or Return
|
Risk of loss passes from the seller to the buyer when the buyer is in pocession of the goods, until the goods have been properly returned to the seller
|
|
|
Sale on approval
|
Risk of loss passes from the seller to the buyer when the goods have been approved by the buyer
|
|
|
Bulk Transfers
|
When the majority of assets or equipment are being transferred form one company to another. Covered in article 6.
|
|
|
Identify the 4 warranty's provided under the U.C.C
|
-Warranty of title
-Express Warranty -Implied Warranty -Implied Warranty of Merchantability |
|
|
Express Warranty
|
When the manufacture or seller makes a factual statement as to the description or quality of a product
|
|
|
Implied Warranty of Merchantability
|
Goes along with all products sold under the uniform commercial code, that the product is fit for ordinary use, and foreseeable misuse
|
|
|
Implied Warranty fit for particular purpose
|
When the buyer relies on the sellers expertise and knowledge when they purchase an item
|
|
|
Warranty of title
|
w
|
|
|
Warranty of Mercantablility
|
sd
|
|
|
Strict liability
|
When a product is found to be defective, put into the stream of commerce with the defect
|
|
|
Name 2 common areas where we find defects
|
-Manufacturing Defect
-Defective Design -Inadequate Warning |
|
|
Defenses in a product liability action
|
-Comparative Negligence
-Assumption of the risk -Commonly known dangers -Product misuse -Statute of limitations |
|
|
Lucy V. Zemmer
|
Rule of Law: Courts will use objective test to determine capacity
Facts: |
|
|
Hammer V. Sigway
|
Rule of Law: Forbearance of a legal right, is consideration
Facts: |
|
|
Kings Coronation Cases
|
Rule of Law:
Facts: |
|
|
Hadley V Bexandale
|
Rule of Law: Loss of profits were not foreseeable; in order to collect for consequential damages, the damages must be foreseeable
Facts: |
|
|
Jones V. Star Credit Corporation
|
Rule of Law: A contract may be found unconscionable(unfair, shocking the consciouns of the court) and courts have the ability to reform it.
Facts: Involved the sale of a freezer that was worth only $300, but the Jones had paid $600. It was a door to door sale, and the Jones were uneducated and on welfare. The courts ruled that no further payment needed to be made |
|
|
Webster V. Blue Ship Tea Room
|
Rule of Law:One cannot pursue a breach of Implied Warranty of Merchantability action, if a natural substance of food causes injury
Facts: A customer |
|
|
Market Share Liability
|
All of the manufacturers are held liable according to their market share of a defective product
|
|
|
Raffles V Wichelhaus
|
Rules
|
|
|
Sherwood V Walker
|
Rule of Law:
Facts: Co w that was |
|
|
Elements necessary to form to have a valid contract
|
-Offer
-Acceptance -Consideration -Legality -Capacity |
|
|
5 Ways to terminate an offer
|
-Rejection
-Revocation -Incapacity -Death of one of the involved party's -Counter Offer |
|
|
Executed Contract
|
Contract that been fully performed on both sides
|
|
|
Executory Contract
|
Contract that has not been fully performed by the parties
|
|
|
Kellogs Definition of an Offer
|
A communication from an oferror to an identified offeree, that leaves a resaonable expectation in the mind of the offeree, that nothing further need to be done but to accept
|
|
|
Unilateral Contract
|
"Promise for an act". Formation of a contract happens the moment the contract is performed.
|
|
|
Bilateral Contract
|
"Promise for a Promise". The contract comes into existence at the moment the promises are exchanged. No performance need to take place.
|
