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178 Cards in this Set

  • Front
  • Back
an agreement to the amount offered for certain services or products.

may be written, verbal, or implied by action
accord and satisfaction
an agreement to accept performance that is different from what is called for in the contract
anticipatory repudiation
if a party indicates before performance is due that it will breach the contract, there is an anticipatory repudiation of the contract
bilateral contract
a promise given in exchange for another promise
the ability (requisite presence of mind) to enter into a binding contract
choice-of-forum clause
the clause in a contract wherein the parties agree in advance in which jurisdiction a dispute arising out of their agreement is to be litigated
choice-of-law provision
a provision that specifies which state's or country's laws will govern
to consummate a transaction
compensatory damages
in an action for breach of contract, the amount neccessary to make up for the economic loss caused by the breach
condition precedent
a condition that must be met before a party's obligations to perform arise under a contract
condition subsequent
in contracts, a provision giving one party the right to divest itself of liability and obligaiton to perform further if the other party fails to meet the condition
conditions concurrent
conditions that are mutually dependent and are to be performed at the same time or simultaneously
consequential damages
compensation for losses that occur as a foreseeable result of a breach of contract. Actual damages represent the damage, loss, or injury that flows directly and immediately from the act of the other party;in contrast, consequential damages refer to damage, loss or injury flowing from some of the consequences or results of such act
a thing of value (money, services, an object, a promise, forbearance, or giving up the right to do something) exchanged in a contract.
a legally enforceable promise or set of promises
a new offer by the initial offeree that rejects and modifies the terms originally proposed by the offeror
covenant not to compete
an agreement, generally part of a contract of employment or a contract to sell a business, in which the covenantor agrees for a specific period of time and within a particular area to refrain from competition with the convenantee.

Also called a noncompete agreement.
in the case of a seller failing to make delivery of goods, cover refers to teh buyer's legal remedy of buying the goods elsewhere and recovering the difference between the cost of the substitute goods and the contract price
creditor beneficiary
thrid party to a contract that the promisee enters into in order to discharge a duty to said third party
detrimental reliance
occurs when an offeree has changed his or her position because of justifiable reliance on an offer
donee beneficiary
third party to a contract to whom paromisee does not owe an obligation
equal dignities rule
under this rule if an agent acts on behalf of another (its principal) in signing an agreement of the type that must under the statue of frauds be in writing, the authority of the agent to act on behalf of the prinicipal must also be in writing
expectation damages
in the case of breach of contract, refers to remuneration that puts a plaintiff into the cash position the plaintiff would have been if the contract had been fulfilled
fraud in the factum
a type of fraud that occurs whena party is persuaded to sign one document thinking that it is another
raud in the inducement
a type of fraud that occurs when a party makes a false statement to persuade the otehr party to enter into an agreement
frustration of purpose
occurs when performance is possible, but changed circumstances have amde the contract useless to one or both parties
general release
an agreement by person engaging in a dangerous activitie to assume all risks and hold the party offering access to said dangerous activity free of all liability
illegal contracts
a contract is illegal if its formation or performance is expressly forbidden by a civil or criminal statute, or if a penalty is imposed for doing the act agreed upon
illusory promise
a promsie that either does not in fact conver any benefit on the promisee or subject the promisor to any detriment
an excuse for nonperformance based on the destruction of something vital to the performance of the contract or another unforseen event that makes performance of the contract impossible
a situation in which performance is possible but is commercially impractical
incidental damages
in an action ofr brach of contract, the lesser and relatively minor damages that a nonbreaching party incurs, such as the charges, expenses and commissions incurred in stopping delivery; the cost of the transportation, care and custody of goods after a breach, the expenses incurred in connection with the return or subsequent disposition of goods that are subject of the contract or other expenses incurred in mitigating damages resulting from the breach
intent to be bound
the oral or written statement regarding intention of parties to enter into a contract
irrevocable offer
arise in two circumstances:
1. when an option contract has been created
2. when an offeree has relied on an offer to its detriment
laesio enormis
a doctrine developed from language in teh Coe of Justinian that provided a remedy for those who sold land at less than half its just price
liquidated damages
the amount of money stipulated in a contract to be paid to non-breaching party should one of the parties breach the agreement
material breach
a failure to perform a significatn obligation under a contract, such as by not performing a service after receiving payment. A material breach discharges the nonbreaching party from its obligations and provides grounds to sue for damages
merger agreement
an agreement between two companies to combine those companies into one
mirror image rule
a common law contract rule that requires acceptance to contain the exact same terms as the offer
a misleading or false representation of the facts intended to deceive another party
mistake of fact
a mistake about an udnerlying fact that may make a contract voidable
mistake of judgment
occurs when the parties make an erroneous assessment about the value of what is bargained for
mistake of fact
a mistake about an underlying fact that may make a contract voidable
mistake of judgment
a mistake of judgment occurs when the parties make an erroneous assessment about the value of what is bargained for
mutual rescission
an agreement by both parties to a contract to terminate the contract
mutuality of obligation
both parties in a bilateral contract are obligated perform their side of the bargain
the method of contract modification by which the origianl contract is canceled and a new one is written with perhaps only one change, such as substitution of a new party
a proposal to enter into a contract

may be verbal, written or implied by action
a person to whom an offer is made
a person making an offer
an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice for one party to the contract
option contract
a contract in which the offeror promises to hold an offer open for a certain amount of time
output contract
a contract under which a buyer promises to buy all the products that the seller produces
parol evidence rule
if there is a written contract that the parties intended would encompass their entire agreement, oral evidence of prior or contemporaneous statements will not be permitted to vary or alter the terms of the contract
power of attorney
a written instrument that authorizes a person, called an attorney-in-fact (who need nto be a lawyer), to sign documents or perform certain specific acts on behalf of another person
precontractual liability
the claism by the disappointed party if contract negotiations fail before a contract has been finalized
privity of contract
the relationship which exists between the parties to a contract
in contract law, the person to whom the promise was made
in contract law, the person who made the promise
promissory estoppel
a promsie that the promisor should reasonably expect to induce action or forbearance on the part of the promisor or a third person and that does induce such action or forbearance can create liability for reliance damages if injustice can be avoided only by providing some relief when promise is broken
promissory fraud
a type of fraud that occurs when one party induces another to enter into a contract by promising to do something without having the intention to carry out the promise
quantum meruit
a basis for equitable relief bya court when there was no contract between the parties, but one party has received a benefit for which it has not paid
reliance damages
the awards made to a plaintiff for any expenditures made in reliance on a contract that was subsequently breached
requirements contract
a contract under which the buyer agrees to buy all of a specified commodity the buyer needs fromt he seller and the seller agrees to provide that amount
an award made to a plaintiff of a benefit improperly attained by the defendent
to annul an offer by recission
sovereign acts doctrine
the gov't cannot be held liable for breach of contract due to legislative or executive acts of general application
specific performance
a court order to a breaching party to complete the contract as promised
statute of frauds
a statute that requires that certain contracts, such as contracts conveying an interest in real property, must be in a signed writing to be enforceable in court
the extent to which the supposedly agreed on terms of the bargain are hidden in a densely printed form drafted by the party seeking to enforce the disputed terms
a corporation that is the subject of a tender offer
third-party beneficiary
one who does not give consideration for a promise yet has legal rights to enforce the contract.

a person is a third-party beneficiary with legal rights whent he contracting parties intend to benefit that person
a contract term that is oppressive or fundamentally unfair
undue influence
sufficient influence and power over another as to make genuine assent impossible
unilateral contract
a promise given in exchange for an act

an offer can be accepted only by performing the act
unjust enrichment
the unfair appropriation of the benefits of negotiation of contracts for the party's own use
usury statues
state statues that set legal caps on what interest rates lenders may charge
unenforcable at the option of one party
adverse possession
ownership of property that is not occupied by its owner for a certain period of time may be transferred to those who have been unlawfully occupying it and openly exercising rights of ownership. Such a transfer is usually not reflected in the official land records.

Also called squatter's rights.
after-acquired title
If, at the date of execution of a grant deed, the grantor does not have titlee to the real property referred to in the grant deed but subsequently acquires it, such after-acquired title is deemed automatically transferred to the grantee
area plan
a planning document that usually encompasses just just a portion of the city's geographic area
the transfer by a tenant of all or a portion of rented properties
an individual who is benefited by a trust or a will
bona fide prospective purchaser (BEPP)
a buyer who must do the following:
1. conduct a diligent investigation of the proprety and report any contamination to the appropriate government authority
2. exercise appropriate care concerning the contamination to stop future or continuing release of contaminants;
3. cooperate with any authorized group, including the federal government, to conduct a cleanup of the property
4. obey any land-use restrictions on the property
contaminated sites that are eligible for cleaning and reclaiming with assistance from the Superfund
caveat emptor
let the buyer beware

this maxim summarizes the rule that a purchaser must examine, judge, and test for himself or herself. It does not apply where strict liability, warranty, or other consumer protection laws protect consumer-buyers
commercial lease
a contract that conveys an interest in real property from the landlord to the tenant and governs the respective rights and obligations of the parties during the lease term
community property
the property acquired during marriage with assets earned by either spouse during a marriage
a method of relief from the strict terms of a zoning ordinace that provides for other uses of real property that are not permitted as a matter of right, but for which a use permit must be obtained
constructive notice
notice attributed by the existence of a properly recorded deed
an instrument transferring an interest in real estate, such as a deed or a lease
a written document transferring an interest in real estate that is recorded at a public office where title documents are filed
deed of trust
a document evidencing a loan to buy real property secured by a lien on the real property

a mortgage
development loans
loans used for the acquisition, subdivision, improvement, and sale of residential properties
dual agency
in a real estate transaction, a broker acts for both the buyer and the seller
early termination clauses
an out clause or provision tha twould allow the lessor or lessee to cancel the lease without completing the full term or paying the complete value of the lease
a claim against real property
environmental assessment (EA)
a document that identifies any significant impact of a development on the environment
environmental impact statement (EIS)
a required document for any proposal for legislation or other major governmental action that may significantly affect the quality of the environment
the value of real property that exceeds the liens against it
the system by which a neutral stakeholder allows parties to a real property transaction to fulfill the various conditions of the closing of the transaction without the physical difficulties fo passing instruments and funds between parties
escrow agent
a meutral stakeholder who facilitates the transfer of real property between intersted parties
exculsive listing
a listing that grants the real estate broker the right to sell the property; any sale of the property during the term of the listing will entitle the broker to a commission
fair lending laws
laws that prohibit discrimination in lending practices
fee simple
title to property that grants owner full right of disposition during his of her lifetime that may be passed on to owner's heirs and assigns forever
the legal process by which a morgagee may put up a piece of property for sale in the public arena to raise cash in order to pay off a debt owed by the mortgager to the mortgagee
full-service lease
a lease that requires the lessor to maintain the property that a company is occupying, which means, in turn, that the tenant's responsibilites may be lmited to seeing that the services provided are adequate
gap financing
financing that a developer obtains to pay off a construction loan when it becomes due before the permanent financing is available.

also called interim financing
general plan
a long-range planning document that addresses the physical development and redevelopment of a city
good faith subsequent purchaser
a person who acquries real property for fair value without being aware of a disputed claim to the property
grant deed
a deed that contains implied warranties that the grantor has not previously conveyed the same property or any interest in it to another person that the title is marketable
a person to whom real property is conveyed
a person conveying real property
ground lease
a lease for land on which a building will be built
implied warranty of habitability
a warranty made by a commercial seller of houses in which the seller warrants that the house is in reasonalbe working order and is of reasonably sound construction
interim financing
financing that a developer obtains to pay off a construction loan when it becomes due before the permanent financing is available

also called gap financing
inverse condemnation
the taking of private real property for a public use; requires payment of just compensation
joint tenancy
a specialized form of co-ownership involving real property owned in equal shares by two or more persons who have a right of survivorship if one joint tenant dies
a teanant or one to whom an interest in real property is conveyed
a landlord or one who conveys an interest in real property
letter of inent
an instrument entered into by the parites to a real estate or other transaction for trhe purpose of setting forth the general terms and conditions of a purchase and sale agreement until a formla legal commitment can be made through the execution ofa formal acquisition agreement
marketable title
title to property that is fee simple and is fre of leins or encumbrances
a loan to buy real property secured by a lien on the real property

also called a deed of trust
net listing
a real estate listing in which the broker receives any sales proceeds in excess of the net listing amount specified by the seller
the legally required relationship between a condition to a land-use approval and the impacts of the development being approved
nonconforming use
an exisiting land use that was lawful but that does not comply with a later-enacted zoning ordinance
open listing
a real estate listing in which the broker receives a commission only if he or she procures a ready, willing, and able buyer
operating lease
typicallya a short-term lease that does not appear on the balance sheet
option contract
a contract in which the offeror promises to hold an offer open for a certain amount of time
out clause
a provision that would allow the lessor or lessee to cancel the lease without completeing the full term or paying the complete value of the lease
percentage rent clause
a clause frequently contained in retail leases that requires the tenant to pay, in addition to a base montly rent, a percentage of its gross sales to the landlord
permanent loan
usually a long-term loan used to acquire property that is repqid over five, ten, or sometimes up to twenty years
planned unit development (PUD)
the land use regulations for a given piece of property that reflect the proposed development plans for that property. PUD allows for mixture of uses for property not possible under traditional zoning regulations
a one-time charge to a borrower buying real property (in addition to interest) computed by a lender by multiplying the amount funded by a fixed percentage
police power
the general power granted state and city governments to protect the health, safety, welfare, or morals of its residents
prepayment penalty
a clause whereby a lender imposes a penalty if the loan is paid off early
prime rate
the lowest rate of interest publicly offered by maor lending institutions to their most creditworthy customers. Better practices dictates using the lterms "base rate" or "reference rate" because sometimes lenders offer a loan below prime
pure notice statutes
under these statutes, a person who has notice that someone else has already bought the real property cannot validate his or her deed by recording it first
quitclaim deed
a deed that contains no warranties; the grantor conveys only any right, title, and interest held by the grantor, if any, at the time of execution
race-notice statutes
these statues protect on a good faith subsequent purchaser who recorded its deed before the prior purchaser recorded its deed
race statutes
under these statutes, recording is a race - the rule is "first in time is first in right". The firs tto record a deed has superior rights, regardless of whether he or she knew that someone else had already bought or claimed an interest in the real property
real estate investment trust (REIT)
a tax-advantaged pool of real property
recordable form
the requirements established by the state regarding how title to real estate is filed and recorded.

Requirements generally include legibility and notarization
recording statutes
statues that establish an orderly process by which claims to interest in real property can be recorded as part of the public record and resolved
regulatory taking
the taking by the government of private real property for a public use; requries payment of just compensation
right of first negotiation
gives the holder the right to negotiate the purchase of the property before the seller enters negotiations with another party
right of first refusal
a contract tha tprovides the holder with the right to purchase property on the same terms and conditions offered by or to a third party
rights of redemption
gives the mortgagor and certain other categories of interested person the right to redeem or get back foreclosed property within a statutorily imited period
sale and leaseback
a simultaneous two-step transaction, whereby an institutional lender purchases real property from a company, and the property is leased back to the company for its use
separate property
property that belongs soleely to the spouse who acquired it before marriage or received it by a gift or inheritance
specific plan
a planning document in addition to a general plan that usually encompasses just a portion of a city's geographic area; typicall more detailed than the general plan
a division of land into separate parcesl for development purposes
an act by a tenant of renting out all or a portion of the property the tenat has rented from a landlord
synthetic lease
a lease that is treated as a conventional operating lease for accounting purposes (so does not appear on the lessee's balance sheet) but is treated as if the lessee had purchased the property and obtained a loan from the seller for tax purposes
take-out commitment
an agreement by a lender to replace the construction loan with a permanent loan, usually ater certian conditions, such as the timely completion of the project, have been met
tax-deferred exchange
a transfer of real property for an alternative piece of real proprety meeting certain requirements
tenancy by the entirety
a special typoe of co-ownership of real property between husband and wife; like joint tenancy, it includes a right of ownership
tenants in common
the individuals who own individed interests in a parcel of real property
triple net lease
a type of industrial lease that requires the tenant to pay all taxes, insurance, and maintenance expenses
1. a combination of competitors who act together to fix prices, thereby stifling competition
2. a manner of holding property that is controlled by a trustee for the benefit of a beneficiary
the legal representative of a bankrupt debtor's estate
usury laws
state statutes that set legal caps on what interest rates lenders may charge
variable-interest loan
a loan in which the rate of itnerest is often set at a fixed numer of percentage points over a sepcified standard or base rate (often the prime rate)
a method of releif from the strict terms of a zoning ordiance that allows a landowner to construct a structure or carry on an activity not otherwise permitted under zoning regulations
vested right
the right of a developer to develop property sometimes, but not always, obtained when a building permit is issued, substantial work is done, and substantial liabilities are incurred in reliance of that permit
view easement
an interest in property owned by another by which an easement holder is guaranteed that a landowner will not obstruct the holder's view by making changes to said property
warranty deed
a warranty deed is similar to a grant deed. In addition to the implied warranties contained ina grant deed, the grantor of a warranty deed also expressly warrants the title to and the quiet possession of the property to grantee
wraparound financing
the transaction in which a new lender lends the owner of mortgaged real property additional funds and agrees to take over the servicing of the first loan. In exchanged, the owner executes a deed of trust or mortgage and an all-inclusive note, covering the comibned amount of the first and new loans
the division of a city into districts and the application of specific land use regulations in each district
bona fide occupational qualification (BFOQ)
a requirement that an employer places on certain jobs that actually requires that the person in that job has a certain gender, religion or national origin
disaparate impact
the systematic exclusion of a protected class of workers from employment through testing and other selective procedure
disparate treatment
intentional discrimination against a person by employer by denying the person employment ora benefit or privilege of employment because of race, religion, sex, national origin, age, or disability
fetal-protection policy
a company policy that barsa woman from certain jobs unless her inability to bear children is medically documented
hostile environment harassment
the creation of a hostile working envirobnment, such as continually subjecting an employee to ridicule and racial slurs, or unwanted sexual advance
quid pro quo harassment
(this for that)
specific job-related adverse action, such as denial of a promotion, in retaliation for a worker's refusal to respond toa supervisor's sexual advance