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90 Cards in this Set

  • Front
  • Back
Bilateral Contract
1. promise which is accepted by way of a return promise
Unilateral Contract
1. promise that must be accepted by giving the performance specified
2. promise to perform does not constitute an acceptance in such a case
Adams vs. Lindsell
1. acceptance of an offer for a bilateral contract
2. dispatched by an authorized mode of communication
3. effective when posted
1. supported by consideration
2. promise to hold an offer open for a specified length of time
Firm Offer
1. offer is irrevocable because one party has paid for an option, or
2. offer is irrevocable pursuant to UCC Section 2-205 relating to signed offers by merchants
Caldwell vs. Cline
1. offer states it will be open for a certain number of days
2. the first day is considered to be the day the offeree receives the offer
Revocation Effective Upon Receipt by Offeree
1. revocation effective upon receipt by the offeree
2. minority view - revocation becomes effective when sent by the offeror
Unilateral Contract-Revocation of Offer Rule
1. the offeror in a unilateral contract
2. may not revoke the offer
3. for the time stated in the offer or for a reasonable length of time, if;
4. the offeree begins performance
1. manifestation by the offeree
2. that he or she does not intend to accept the offer
1. offer by original offeree
2. regarding same transaction, but
3 containing different terms
Counteroffer as an Implied Rejection
1. counter offer constitutes an implied rejection of the original offer
2. is, in effect, a new offer
Illusory Promise
1. expression resembles promissory terms
2. terms actually impose no obligation
Promissory Estoppel
1. substitute for consideration
2. foreseeable detrimental reliance upon a gratuitous promise
3. necessary in order to avoid injustice
Moral Obligation Rule
1. moral obligation to pay
2. a later promise to do so, or
3. sometimes the mere acknowledgment of the debt, or
4. part payment of the debt
Legal Detriment
1. promise to do something that one is not legally obligated to do, or
2. to refrain from doing something that one is legally privileged to do
Failure of Consideration
1. one of the parties fails to perform
2. or the subject matter of the consideration ceases to exist or becomes worthless
3. valid consideration was present when parties first contracted
1. That which is bargained for and given in exchange for a promise
2. an act, a forbearance to act, or a return promise
Want of Consideration
1. failure to make a contract, because;
2. no consideration present
Elements of Contract
1. offer
2. acceptance
3. consideration
Mutual Assent
1. valid offer
2. valid acceptance
3. acceptance has become effective prior to the termination of the offer
1. manifestation of present contractual intent
2. is comprised of a promise
3. bargains for an act, a forbearance to act, or a return promise
Executed Contract
1. fully performed
2. by all the parties to the contract
1. unequivocal assent
Executory Contract
1. remains to be completed
2. by at least one of the contracting parties
Sufficiency of Consideration
1. generally, courts do not require consideration to be of a benefit to the offeree, or to be of any substantial value
2. however, some courts have held that nominal consideration may not constitute a valid contract
1. making void an offer
Meeting of the Minds
1. contract is not formed until there is a meeting of the minds
2. according to the intention of the parties
Outward Manifestation Theory
1. outward manifestations
2. in accordance with the understanding of the supposed reasonable man
Merit Music vs. Sonneborn
1. a party to a contact in absence of fraud, duress, or material mistake
2. with the capacity to understand a written document
3. will be bound by their signature whether or not they read the document
Rejection Effective when Received
1. rejection effective when received
2. upon receipt by the offeror
Implied in Fact Contract:
1. inferred by the law
2. circumstances make it reasonable to assume that a contract exists
3. even though a contract is never manifested by words
Implied in Law Contract (Quasi Contract)
1. obligation imposed by operation of law
2. no promise was ever manifested by words or ever intended
3. benefits accepted or retained by one party
4. other party expected to be paid and was not a volunteer
Quantum Meruit
1. reasonable value
2. deserved for one's labor
Quantum Valebant
1. reasonable value
2. deserved as payment for goods
Requirement Contract
1. contract to supply
2. all of a certain type of goods or merchandise
3. that a particular party may have a need for
Output Contracts
1. contract to supply
2. all of a certain type of goods or merchandise
3. that a particular party may produce
Option Contract
1. promisor
2. for consideration
3. agrees to make a certain offer irrevocable
Express Contract
1. manifested by words
2. either written or oral
Void Contract
1. cannot be enforced by either party
Voidable Contract
1. a contract that can be disaffirmed
2. by one or more of the parties
3. for reasons related to legal immaturity or mental incapacity
Power of Disaffirmance
1. legally immature or mentally incapacitated person has the power of disaffirmance
2. the contract is valid for all other purposes unless and until it is disaffirmed.
3. disaffirmance occurs by manifestation of unwillingness to continue to be bound by the contract
Condition Subsequent
1. event
2. by agreement of the parties
3. operates to terminate a duty of performance after it has arisen
Exculpatory Clause
1. provision in a contract
2. removes liability
Express Conditions
1. arise out of a stated provision
Contract of Adhesion
1. contract
2. one party has unequal bargaining power
Unconscionable Contract:
1. contract
2. no fair and honest person would make
3. no person in right mind would accept
4. results from "oppression," or;
5. "unfair surprise"
Divisible (or Severable) Contracts
1. a divisible, or severable, contract is a bilateral contract
2. wherein performance is divided into two or more separate units
Implied in Fact Conditions
1. are necessary to the performance of the contract
2. are not expressly stated
1. an act or event (other than a lapse of time)
2. affects a duty to render a promised performance
1. assignment is a transfer of a contractual right
2. a contractual right is called a Chose in Action
3. the assignee "Steps into the Shoes" of the assignor
4. the transfer of a contractual obligation is a separate issue handled under the title of delegation and assumption of duties
Condition Precedent:
1. event
2. must occur before a duty on the part of the defendant will arise
3. express or implied, or;
4. by operation of law under the doctrine of constructive conditions
Condition Concurrent
1. is a type of condition precedent
2. parties are bound to render performance at the same time
Delegation and Assumption of Duties
1. delegation and assumption of duties involves the transfer of a duty of performance
2. the person transferring the duty is the delegator
3. the person who assumes the duty is known as the delegatee.
Constructive Conditions
1. conditions which the law will imply
2. to promote justice
Doctrine of Constructive Conditions
1. fulfillment of a promise
2. in a bilateral contract
3. construed to be a condition of the other party's performance
4. even in the absence of an express provision
Implied Condition of Cooperation
1. condition of cooperation is implied
2. wherever the cooperation of the promisee is necessary
Excuse of Conditions
1. excuse of conditions occurs
2. when one party is reacting to a material default on the part of the other party
Substantial Performance
1. plaintiff who has failed to perform a constructive condition
2. in some minor or immaterial respect
3. may nevertheless recover on the contract
Creditor Beneficiary
1. creditor beneficiary receives the benefits of the contract
2. in satisfaction of an actual or supposed debt or obligation
Waiver of Condition
1. voluntarily relinquish
2. a known right to claim the non-performance
3. by express agreement a through the conduct of a party
Donee Beneficiary
1. donee beneficiary receives the benefit of a contract
2. wherein the promisee expresses an intent to bestow a gift
Intended Beneficiary
1. intended beneficiary is one who was contemplated by the original parties to the contract
2. must be an intended beneficiary to have "Standing to Sue"
Lawrence vs. Fox
1. Landmark case
2. third party beneficiary has the right to enforce the contract
Third Party Beneficiary Contract
1. a contract
2. will confer benefit upon a third person (or entity) other than the promisee
Incidental Beneficiary
1. incidental beneficiary is one who may receive the benefit of the performance of a contract only incidentally, and;
2. does not have standing to sue
Distinguishing Between Donee and Creditor Beneficiary
1. the first restatement of contracts held that the donee's rights vested upon the making of the contracts and the creditor's rights vested when the creditor brought suit or otherwise materially changed position
2. the majority rule today is that the donee and the creditor beneficiaries have vested rights upon learning of the third party beneficiary contract
3. the original parties retain the power to defeat or alter the rights until the beneficiary 1) materially changes position; 2) manifests assent
Rights Against The Promisee
1. donee beneficiary has no rights against the promisee
2. creditor beneficiary can sue on the original obligation which remains unaffected by the third party beneficiary contract
1. promise to answer for the debt, default, or miscarriage of another
Statute of Frauds
1. enacted in England centuries ago
2. established to guard against fraud and perjury in contract actions
3. require certain contracts to be evidenced by a writing signed by the party to be charged
4. customarily applies to contracts which: a) can't be completed within one year b) answer for the debt of another c) relate to promises of marriage d) involve the sale of real property e) involve the sale of goods of a value in excess of a certain amount (Traditionally, this amount was stated to be $500 prior to the adoption of the Uniform Commercial Code. The amount now varies by statute)
Parol Evidence Rule
1. Parol evidence Rule provides that written agreements
2. intended to be final and complete
3. cannot be changed by prior or contemporaneous agreements
1. a modification is a subsequent agreement
2. it modifies the prior written contract
3. the Parol Evidence issue does not apply to modifications
The Collateral Agreement Doctrine
1. a Collateral Agreement is enforceable if
2. it does not contradict any express provision of the main agreement, and
3. might naturally be made as a separate agreement between the parties
Termination by Accord and Satisfaction
1. an accord is an agreement to compromise a "good faith dispute"
2. satisfaction is the acceptance of the compromise
4. the acceptance terminates the original obligation
Termination By Novation
1. a Novation is a new contact
2. it effects an immediate discharge of a pre-existing contractual duty
3. it includes a new party in the new contract
Termination by Release
1. a release is a complete discharge contractual obligation
2. it is given under seal or by valid agreement supported by consideration
Termination by Mutual Rescission
1. a mutual rescission is an agreement
2. terminates contractual obligations of bilateral executory contracts
3. requires mutual assent and consideration
1. merger occurs when one contract supersedes or incorporates another
Termination by Impossibility of Performance
1. a party will be freed from an obligation to perform
2. when neither from his or her act nor from his or her neglect, and
3. prior to being in default
4. it has become impossible for said party to perform
Termination by Economic or Commercial Impracticability
1. a party to a contract will be freed from an obligation to perform
2. even if performance has not become totally impossible
3. if unanticipated difficulties have made the performance vastly different than that intended
Termination by Frustration of Purpose
1. a party to the contract will be freed from an obligation to perform
2. where the bargained-for performance is still possible
3. but unexpected events which have occurred after the formation of the contract
4. have rendered the benefit to be received as now totally destroyed or materially impaired
Breach of Contract
1. one party to a contract
2. fails to perform
Anticipatory Breach
1. unequivocal repudiation
2. before performance is due
3. promisee may sue immediately or after performance has become due
Material vis-à-vis Minor Breach
1. a material breach ends the transaction and the plaintiff may sue for damages
2. a minor breach creates a cause of action for damages but the contract remains in effect
Prospective Failure of Condition
1. a prospective failure of a condition occurs when an anticipatory breach is present, and
2. will excuse the non-breaching party's performance
Liquidated Damages
1. agreed to in a contract
2. enforced by the courts if deemed reasonable
Compensatory Damages
1. awarded to the non-breaching party
2. to place the non-breaching party into the same position that he or she would have been in had the contract been performed.
Consequential Damages
1. same as compensatory damages
2. such damages require "foreseeability"
Nominal Damages
1. nominal damages are awarded to an aggrieved party who has suffered no damages, but;
2. who has been wronged and is entitled to a judgment for technical breach of contract
Punitive or Exemplary Damages
1. punitive or exemplary damages are granted to punish, and,
2. for malicious or wanton or willful conduct
3. are traditionally not granted in cases related to a breach
Mitigation of Damages
1. mitigation of damages refers to efforts to limit the effect of a breach of contract
2. the law requires the non-breaching party to make reasonable efforts to mitigate damages