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66 Cards in this Set
- Front
- Back
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Contract (Definition)
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A promise or set of promises for breach of which the law gives us a remedy. A promise is not always a contract.
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Sources of Contract Law
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Common Law (Judge-Made)
Uniform Commercial Code (UCC) Evolving E-Commerce Contract Laws |
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Common Law
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Varies by state.
Not all contracts covered. Some include: Land, services, building of a home, employment. |
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UCC
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Uniform Commercial Code
-Drafted by ALI and the National Confrence of Commisioners on Uniform State Law -Appeared in 1940s -Article II governs sale of goods -Article II Leases governs lease of goods. |
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Evolving E-Commerce Trade Laws
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Uniform Electronic Transaction Act (Contracts)
Electronic Signatures in Global and National Commerce Act of 2000 (E-Sign) (Federal: Electronic Signatures) Uniform Computer Information Transation Act (UCITA) (Software) |
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Bilateral vs Unilateral Contracts
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Bilateral: A promise for a promise
Unilateral: A promise for performance. |
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Express vs. Implied Contracts
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Express Contract: Parties express intent to enter contract. Oral or Written
Implied in Fact Contract: Inferred by behavior. (Doctor's Visit) Implied in Law Contract: One party benefits from another (House Painting Scenario) |
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Void vs. Voidable Contracts
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Void Contract: No contract because legal requirement is missing. (Paid Assassin)
Voidable Contract: Can be breached by one or more parties (Minor) |
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Unenforceable Contract
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All contractual aspects are met but is faulty because of legal rule. (Not in writing or waiting to long)
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Executory vs. Executed
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Executory: Ongoing until all parties have fully completed responsibilities.
Executed: All parties have completed their performance as described in the contract. |
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Legally Enforceable
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Court can help enforce.
Must have: Agreement (Meeting of the Minds) Consideration (Gift or Contract?) Capacity (Sane, sober, and of age) Genuineness of Assent (Knowingly Agree) Legality of Purpose (Must be legal) |
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Parts of an Agreement
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Offer and Acceptance
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Offer
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Promise to do or to refrain from doing something. An advertisement is not an offer, it is an invitation to an offer.
Need to have: Present intent to enter a contract Reasonable define terms Communication of the offer to the offered party. |
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Duration
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Offeror can revoke the offer prior to acceptance.
If offer is rejected, it goes away. |
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Counter-Offer
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Orginal offer is rejected and oferee lays new offer on the table
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Option Contract
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Paying money to keep an offer on the table.
Creates a separate agreement. A contract within a contract. |
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Acceptance
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Offeree's positive response to the offeror's proposed contract.
Only the offeree can accept. How to accept must be set forth or it is reasonable acceptable. |
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Mailbox Rule
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Acceptance is effective when it is sent, even if it is never received.
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Preexisting Legal Duty Rule
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If you are already obligated to perform something then it is typically not valid consideration. (Police and the Pig)
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Statutes of Fraud
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Designed to prevent fraud.
To be enforceable, some contracts must be in writing. |
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Parole Evidence Rule
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If a contract is reduced to writing with the intent that the written document represents the agreement either party can introduce oral or written evidence to prove or disprove the written agreement.
Exceptions: Document is incomplete Contract is ambiguous Issues of Fraud |
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UCC Merchant's Firm Offer
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Contract will be kept open and irrevocable for up to three months.
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Termination by RejectionMential
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Offeree indicates no.
Rejection by change of terms. (Counter offer) |
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Termination by Counteroffer - UCC
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Non-merchants: Addition of terms in acceptance does not equal counter offer. Acceptance occurs but additional terms are not included in the contract.
Merchants:Acceptance with additional terms equals contract. Unless: Materal, Offer Limited, Objection of new terms. |
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Termination by Offer Expiration
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Time for offer expires.
Every offer expires (lapses) after a reasonable amount of time. |
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Capacity
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Age Capacity: (=+18yo) or minor is voidable at the option of the minor.
Mental Capacity: Mental condition and level of maturity. Intoxication can be excused. |
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Genuineness of Assent
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Meeting of the Minds
Misrepresentation Fraud Duress (physically forced) Undue influence (affected by relationship) |
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Unconscionable
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A contract so unfair that is actually shocks the conscious (Font, one-sided agreement, etc.)
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Contract Performance
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Due: When the event should take place.
Standard: Completion terms are also in contract. Excused: Unforeseen events happen. |
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Remedies to Breach of Contract
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Law: Put the parties in the position that would have been had the contract been completed
Compensatory Damages (Money) Incidental Damages (Transportation) Liquidated Damages (Damages built in contract) |
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Remedies to Breach of Contract: Equity
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Specific Performance: Do what they were told to do.
Injunction Relief: Court says to do or not do something |
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Requirements of Credit Contracts
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How much is being financed
Rate of Interest Duration of agreement Penalties for late payments or non payment Statutory Requirements |
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State Usury Laws
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Usury: Charging an interest rate higher than the maximum permitted by law.
Subject matter will dictate how high. If this is violated, void the contract. |
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Sub-prime Lending Market
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Creditor charges a high rate of interest and debtors pledge collateral.
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ECOA
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Equal Credit Opportunity Act
Designed to eliminate gender discrimination. Overseen by the FTC |
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TILA
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Truth in Lending Act
Treat borrowers fairly and disclose credit terms. 4 Things must be present: -Limited to comsumer/lender transaction -Debtor is a natural person -Creditor must be in the business of lending money -The loan itself must be subject to a finance charge of some sort. |
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Fair Credit Billing Act
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Debtor can challenge transactions on statements.
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Fair Credit Reporting Act
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The consumer must know who has received their credit report.
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Consumer Leasing Act
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Same information as a loan must be disclosed.
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Collateral
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Debtor pledges something (car, house,etc.)
Security Agreement: Document that allows lender to repossess. |
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Credit Collection Rights
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Creditors must act reasonably and in good faith.
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Fair debt collections practices act
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Cant use violence, must call between 8am-9pm, cannot call employer unless it is for location.
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Straight Bankruptcy or Liquidation Petition
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Individuals or Businesses can file
Voluntary or Involuntary One liquidation begins, petition becomes Order of Releif Bankruptcy trustee figures out who the creditors are an what assets they have. Liquidates them, and who gets what first. |
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Business Reorganization
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Voluntary of Involuntary
Individuals or businesses, mostly businesses. Get protection once under court. Payment Plan, Keeps asset, |
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Wage Earner Petition
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Only Individuals
Voluntary Courts Help Steady stream of income Limited amount of debt |
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Creditor Priority
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Secured Creditors
Priority Creditors General Creditors |
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Non-Discharegable Debt
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Government
Student Loans Child Support Alimony/Spousal Support |
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Agency Law
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The relationship between two parties. One party acts on the behalf of the other. Consensus Relationship.
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Power of Attorney
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Specific Power of Attorney: Limited in scope, specific purpose, period of time.
General Power of Attorney: Not as limited, alot more power. |
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Master/Servant Relationship Factors to Consider
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Level of Supervision
Level of Control The Nature of the Servants Work Regularity of hours and pay Length of employment |
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2 Parts of Agency Law
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Creation of Agency Relationship
Relationships between principles, agents, and 3rd parties. |
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Express Authority
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Express contract that specifies the limitations of an agents authority.
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Implied Authority
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The obvious authorities not in writing.
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Apparent Authority
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No express or implied authority. How principle holds itself out to third party.
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Rights and Responsibilities of the Agent to the Principle
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Duty of Loyalty
Duty of Obedience Duty of Care |
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Rights and Responsibilities of the Principle to the Agent
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Duty to Compensate
Right to expect agent to perform as required Act in good faith |
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Disclosed Principle
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3rd party knows agent is working for principle and knows who it is.
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Partially Disclosed Principle
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3rd party know agent is working for principle but doesn't know who it is.
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Undisclosed Principle
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Third party has no idea principal.
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Contract Employee
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Signed contract that governs relationship between employer
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At Will Employee
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Work at the discretion of the employer with no contract.
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What causes employment lawsuits?
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More Causes of action/protection for injured employees
Volitile Economy Decreased Loyalty to companies |
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Basis of Employee Lawsuits
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Discrimination
Wrongful Termination Sexual Harassment Wage and Hours Problems Job Safety Unemployment Claims Workers Comp Claims |
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FLSA
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Fair Labor Standards Act
Minimum Wage Child Labor Penalties: Civil Penalty (Fine) Civil Lawsuit Criminal Sanctions (6mos of jail) Equal Pay Act Fair pay |
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OSHA
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Occupational Safety and Health Administration
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Employer Coverage of Workers Comp
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Purchase Private Insurance Plans
Contribute to State Managed Fund Pay Out Benefits as they come |
