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43 Cards in this Set
- Front
- Back
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mailbox rule
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acceptance: effective on dispatch
revocation: effective on receipt |
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exception to mailbox rule
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reliance
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Common Law Last Shot Rule (consequence of mirror image rule)
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-each nonconforming response is itself a rejection and a counter offer
-contract is on terms of the party who sends last counteroffer which is accepted by the other party |
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Last Shot Rule Exceptions
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1) diff term irrelevant to the dispute
2) implied term (by law, course of dealing) 3) term unfavorable to offeree - if offeree makes concession can still be enforced: no harm to offeror and offeree has agreed |
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Battle of Forms- O and A differ greatly
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no contract- no obj intent to form a contract
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Battle of Forms- term in O, not in A
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yes contract, O's term makes it in: silence and acceptance on part of A
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Battle of Forms- term in A, not in O
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Does materially alter?
- yes: results in surprise or hardship - no: something that happens regularly or slight variation on something that commonly happens - arbitration clauses: could cause hardship - disclaimer of consequential damages: industry standard/no |
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Battle of Forms- diff terms in both A and O- 1st approach: in comment 3, additional = different
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if diff term in A is material/surprising then wont make it in, if not, then could make it in (note 3)
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Battle of Forms- diff terms in both A and O- 2nd approach: additional does not = different
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2-207(2) applies; No way for diff term to make it in because of the literal statutory language
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Battle of Forms- diff terms in both A and O- 3rd approach: knockout
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both terms knocked out and gap-fillers used: either course/usage of trade, or UCC gap-fillers
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Battle of the forms- effective "my way or the highway" clause in A
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- can have contract by performance/conduct 2-207(3)
-as long as "sit tight", wont "lose" the battle of the forms |
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Battle of the Forms- "my way or the highway" clause in O, also A contains diff terms
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- 2-207(2a): only applies if make contract by O and A. nonconformity in A --> contract not formed
- if parties perform (contract by conduct) -contract formed but (a) prevents O terms from coming in -terms are blocked and made on buyers terms |
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Option Contract
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- offeree has option to perform
- only minds offeror and not offeree - offeror bound for term of the option contract until offeree has had reasonable time to complete the terms of the contract |
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tender
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-offer of performance
- manifested present ability to perform |
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definiteness
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what can be left out?
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Statute of Frauds- general outline
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1) is the oral agreement w/in the S of F? (the kind that has to be in writing)
if no: enforceable if yes: 2) is the agreement evidenced by writing? if yes: enforceable if no: -is there an exception? yes: enforceable no: not enforceable |
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what kind of oral agreements have to be in writing
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-contract to answer for duty to another
-contract for sale of land - not possible for contract to be completed in 1 yr - sale of goods $500 or more |
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what must a writing contain to satisfy statute of frauds
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-identify subj matter
-suff. to indicate contract has been made -states essential terms (terms you bargain over, what you need to perform --> doesnt have to be actual agreement) -signed |
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statute of frauds exceptions: can't use the defense
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-section 90/promissory estoppel
-goods specially manufactured -party against whom enforcement is sought admits the contract was made -goods have been received and accepted |
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parol evidence rule- situations where can always admit parol evidence
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1) collateral matters- something that wouldnt naturally be in the contact
2) ambiguity- apply Williston (look for outside evidence to help w/interpretation only if writing is itself/on its face ambiguous) or Corbin (can bring in outside evidence to determine if the writing is ambiguous) views 3) mistake, fraud, undue influence, unconscionability, capacity, impossibility, etc -can also always get in course of performance, dealing, usage of trade 4) scrivener's error |
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The Parol Evidence Rule
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Once the parties have reduced their agreement to a writing that they intend to contain the final and complete statement of their agreement, neither party may introduce evidence that contradicts or supplements the terms of that agreement
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type of integration presumed by the UCC Parol Evidence Rule
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partial integration = writing is final expression of terms it contains but could contain other terms
-to decide type of integration: INTENT (williston v corbin) |
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Merger Clauses or Integration Clauses
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states that there are no other terms besides the one in the writing --> complete integration, no parol evidence admissible
- modern trend: not always seen as conclusive evidence that parties meant to be fully integrated. but will be given substantial weight when found in carefully negotiated agreement between sophisticated parties. |
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Parol Evidence Collateral Matters Exception Test
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comment 3: "if the additional term are such that, if agreed upon, they *would certainly* have been included in the document"- fairly low standard to negate "would certainly"
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Williston View- parol evidence
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-4 corners of document
- look only at written conract (except for per exceptions) -obj: reasonable parties |
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Corbin View- parol evidence
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-can admit almost anything. pragmatist.
-subj: look to actual parties intent |
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Tribune Type 1 Agreement
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-fully binding prelim. agreement: agree to all points that require negotiation
-enforceable in the case of a breach |
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Tribune Type 2 Contract
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-agree on major terms, but leave other terms open for future negotiations
- creates contractual duty of good faith negotiations - a simple agreement to agree in unenforceable |
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unconscionability measuring moment
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unconscious at time contract was made
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def. of unconscious
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absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party (procedural and substantive)
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illegality test
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if parties had known a part would be deemed illegal, would they still have gone through w/ the contract if the illegal part was struck? if so, could sever
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damages and foreseeability
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-all damages must be foreseeable
-test: if parties were told what the breach would be, would the damages (not event that causes breach) would have been forseeable? -must prove damages w/ reasonable certainty |
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liquidated damages
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-reasonable attempt to estimate damages
-reasonably foreseeable at time written |
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legal duty/pre-existing duty rule
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modification must be supported by additional consideration in order to be enforceable
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buyers remedies against seller- buyer has accepted goods
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-recovers diff of value of goods delivered and value if had been as contracted + incidental and consequential damages
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"cover"
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diff between contract price and price of replacement goods which must be reasonable, made in good faith, and made without unreasonable delay
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"market"
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diff between contract price and market price as of the time the buyer learns of the breach and at the place of tender
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restitution for contracts
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for non contracts or if nonbreaching party chooses
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breached-against party's ability to recover reliance damages
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limited to extent the breaching party can prove loss the breached-against party would have conferred
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order of sellers preference of how would want remedies
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2-709 (1)
2-708 (2) 2-708 (1) 2-706 |
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2 ways of restitution
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-reasonable value of benefit conferred
-what reasonable person would have spent |
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reliance damages- finding cap
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-to the extent the breaching party can establish the breached-against party’s potential loss, the breaching party may reduce the damages it pays
-expectation can be a cap |
