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44 Cards in this Set
- Front
- Back
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Definition of Contract
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A legally enforceable agreement.
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Pre-Nuptial Agreement
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An agreement made between spouses arranging asset rights, if any, once divorced;made before marriage.
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Post-Nuptial Agreement
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An agreement made between spouses arranging asset rights, if any, once divorced;made after marriage.
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Agreement
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The mutual assent between two parties.
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Obligation
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created by law as one's legal duty.
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Types of contracts
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Expressed
Implied Unilateral Bilateral Executory Executed |
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A. Expressed Contract
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An agreement in which it is manifested in words either oral or written. Both parties should clearly understand whats going on. An exception to this is when there is a misplaced zero. Then an error has occured when one party should clearly know something is incorrect and therefore this written contract is null.
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B. Implied Contract
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An agreement manifested by conduct. In an implied contract, all the terms of the contract must be impliedly reasonable. Prices must be right and consistent with competition.
Example: When you go to the dentist, you do not discuss cost of root canal, but by going and having procedure you are agreeing to pay a reasonably priced charge to you. Ex2: Say plumber comes and does work, charges $$$$, you dont pay but u send a check for half that and explain that it is too much. If plumber cashes chk, he has accepted this agreement by his conduct of accepting chk. |
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C. Unilateral Contract
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When one party promises to do something for the other.
ex: Ill sell you my house if you do blank and pay me 200,000. |
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D. Bilateral Contract
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A contract made where one party promises one thing dependent on the other party's initial promise. ex: "ill scrub ur back if u scrub mine"
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E. Executory Contract
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A contract made where a party hasn't performed what they were supposed to have yet. Ex: mortgages where individual still has a long time to pay or construction contract.
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F. Executed Contract
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Contract performed fully as stipulated in the contract document.
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Four Elements of an Enforceable Contract
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There must be
1. Mutual Assent(in both offer and acceptance) 2. Consideration 3. Capacity 4. Legality |
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The Offer
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A promise to render a stated performance in return for the requested counter performance.
Must include promissory language( will buy...or I hereby undertake the obligation to...or I promise...), most not use equivocal language(I might...or I was thinking of...), terms must be certain(no I will buy SOME corn...) and the promise must be communicated under circumstances in which serious contractual intent is present. |
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valid ways offer can be terminated
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-Expiration of time.("offer expires__")
-Upon a counteroffer or conditional acceptance(I'll buy the car but I need the A/C fixed first.) -Revocation(when seller withdraws or changes deal at any time. -Death or Insanity of any party -Supervening Illegality(contract for cuban cigars when ban on Cuba exists or is instilled) -Destruction of Subject Matter(hurricane comes and destroys boat for sale, buyer does not still have to buy, lol) |
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Option Contract
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When seller keeps offer on the table for a period of time usually exclusively for one buyer only for a price. If buyer follows through, the price for holding dibs is usually debited to purchase cost.
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Acceptance of Offer
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-only done by party to whom offer was made
-must create mirror image of offer(otherwise we are dealing with a counter offer) -Silence by party doesn't constitute acceptance -Acceptance can be presumed by conduct (cashing a check or accepting an air plane ticket or opening bank account) |
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Reality of Consent
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Central Issue-was acceptance of contract offer real and voluntary?
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5 Ways consent can be vitiated:
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Misrepresentation
Fraud Duress Undue Influence Honest Mistake |
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Misrepresentation
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An INNOCENT misrepresentation of fact relied upon causing injury.
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Fraud
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An INTENTIONAL misrepresentation of fact relied upon causing injury.
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Duress
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Gun to the head.....Wrongful threat or act which forces a person into contract...Sign this paper or else!
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Undue Influence
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Unfair advantageous situation in which one party is superior in a fiduciary relationship-one of trust between superior and inferior party. often parent/child, doctor/patient, attorney/client, etc.
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Mistake- two types!
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If mutual-remedy is available, when both parties make mistake.
If unilateral; by one party only hurting themselves, no remedy availiable. Exception to unilateral mistake is when the mistake is so large the other party should have taken notice and been aware of. (misplaced zeros) |
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if consent is compromised...
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Injured party must elect to void contract. Done through remedy of Rescission.
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Remedy of Rescission
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A return to "Status Quo Ante", or the return of the way things were before the contract started. Usually a return of goods and money. The rescission must be seasonable(within a reasonable amount of time-this is a jury question)
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Remedies
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What is sued for in court when contract broken or injust. What is awarded in winnings.
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Redfish lodge p.83 in target packet
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Buyers sued sellers for rescission as fraud clearly occured misstating the revenue, acreage, condition, and zoning of a business property. Court decided that Buyers were part responsible as they didnt inspect, visit property, request documents and in doing so they werent exercising reasonable care. Even when fraud was found existent, this case shows u must still do your homework.
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A. Mutual Assent
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The offer, acceptance of offer, and consent of both parties must be legitimate and mutual. see more on those topics..
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B. Consideration
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The bargained for exchange.
Whether or not an exchange is a gift promise or standard bargained for promise. see uncle and nephew gift story. |
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C. Capacity
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Both parties must be clear of:
Infancy Insanity Intoxication in other words u must be old enough, sane enough, and sober enough. |
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D. Legality
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blank
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Nephew and Uncle's Gift Promise
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Uncle tells nephew on his 25th Bday he will pay him $25,000. This was written. This is not an enforceable contract as it is a gift promise.
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Now if uncle says to nephew stop smoking by 25...
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nephew can sue uncle if he doesnt pay as this is a bargained for exchange. one act for another. these ARE enforceable.
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Now if Uncle says to nephew--stop smoking pot.....
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Uncle doesnt have to pay as there is no legal right of an individual to smoke pot to begin with as it is an illegal act.
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1. Infancy
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An infant is anyone under the age of 18. (a minor)
Contracts are voidable at his/her election and returns can be made regardless of condition of what infant posessed. However an infant is liable for necessaries assigned to him and only for the reasonable value of those items. |
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2. Insanity
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sanity-ability to understand the nature and consequences of one's action.
in contract law we care if you are thinking clearly("lucidly") and if you are capable of understanding what and the consequences of what you are agreeing to. unlike criminal law where a debate of knowing not only that but right vs wrong. Even if you suffer from a disorder, if you are proven lucid on the day of contract at that moment you agreed, it is a legally binding contract. |
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Necessaries to an infant
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1. substinent items-food, clothing, shelter
2. Health-related items 3. Educational items 4. Basic comforts. Crts have declared this as volatile depending on one's stature in life. again, infant is only liable for reasonable value of these furnishings and adults often charge premiums to kids and this protects them. |
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The "nonage of minors"
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FL law allows infant to file petition for legal rights of that of an adult. This is done for child athletes and starts.
conditions: must be 16+, once crt agrees, infant is now liable as adult for both civil and criminal proceedings, still cant drink or smoke. but can drive a boat and vote, etc. unless a particular statute prohibits. |
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Affirmance(Ratification)
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when infant upon turning age of majority(18) or thereafter continues a contract. can simply do by continuing to pay a bill.
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Disaffirmance(Avoidance)
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when infant before turning age of majority(18) or within a reasonable time thereafter cancels a contract. can do so easily, but must return his consideration if he has it.
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3. Intoxication
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inablity to understand the nature and consequences of one's actions due to influence of drugs or alchohol.
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Misrepresentation of Age in a Contract
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most courts allow an infant to disaffirm(or break contract before 18) but infant must return consideration and account for any depreciation.
"if you're old enough to lie you're old enough to pay the consequences for it" |
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Adjudicated Insanity
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when you are found by court, not doctors initially, to be insane. This is usually done to send someone to get help or when crime is committed to send them to crazy house not jail.
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