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43 Cards in this Set
- Front
- Back
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Name of 5 elements in order to have a valid contract.
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1. Offer
2. Acceptance 3. Consideration 4. Legality 5. Capacity |
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What is Bilateral contract?
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A promise for a promise.
-Acceptance takes place upon exchange of promise. |
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What is Unilateral contract?
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A promise for an act.
-Acceptance takes place once the act had been completed. |
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What is Implied in Fact?
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Terms are implied by parties conduct.
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What is Express contract?
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Terms are written or verbal - known to all parties.
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What is Implied in Law?
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No agreement between parties. Court will create a contract to avoid unjust enrichment.
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What is Quantum Meruit?
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"As much as he or she deserves" in an implied in Law.
Someone offers services and they will receive payment as much as he or she deserves. |
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What is Executed contract?
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Contract is fully performed.
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What is Executory contract?
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At least one party's performance is due under the contract.
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What is Valid contract?
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Requires all elements are offer, acceptance, consideration, legality, and capacity enforced by all parties.
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What is Voidable contract?
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At least one party may disaffirm the contract.
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What is Void contract?
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Never existed in the eyes of the law.
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Kellogg's Definition of an Offer
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An offer is a communication from an offerer to an identified offeree that leaves a reasonable expectation in the mind of the offeree that nothing further need to be done but to accept.
-An offer must be certain and definite -A statement of intention is not an offer. -Advertisement are not offers, they are invitations to negotiate. |
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What is Auctions?
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An offer is made when the bidder acknowledges the auctioneer.
-Acceptance takes place when the gavel falls. |
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What is Auctions with Reserve?
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Seller agrees to the purcahse price.
-Acceptance takes place when the seller agrees to the purchase price. |
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Name the 8 ways to terminate an offer.
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1. Revocation - one can revoke an offer as long as it has not been accepted.
2. Rejection - once an offer is rejected, it's terminated. 3. Counter Offer - terminates original offer. 4. Death - offer dies with individual. 5. Incapacity - one becomes incapacitated. 6. Destruction of the Subject Matter 7. Lapse of time - offer terminated after set time. 8. Illegal - if the subject matter becomes illegal, offer terminated. |
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Name and Describe of 3 Irrevocable Offers.
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1. Option contract - pays consideration to keep an offer.
2. Promissory Estoppel - one relies on a promise to their detriment. 3. Merchant's Firm Offer - offer made by a merchant in writiing to stay open for a stated amount of time. If not stated for a reasonable amount of time, not to exceed 3 months. |
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Who can accept an offer?
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Identified offeree may only accept an offer.
Silence will not constitude acceptance, exceptions: 1. Gesture does constitude 2. Implied in fact contract 3. Offeree solicits the offer |
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Mode of acceptance
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Common law - mode has to be the same as the offer.
Modern law - mode has to be the same or faster as the offer. |
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Mailbox Rule
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Acceptance is effective upon dispatch. A revocation takes place when received.
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What is Consideration?
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Bargained for exchange - usually a benefit and detriments.
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What is Adequacy of Consideration?
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Courts do not check into adequacy of the consideration.
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What is Preexisting Duty?
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If one is obligated under contracts to perform an act, an offer of addition consideration is unenforceable. Exception: if unforeseen difficulties.
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What is Past Consideration?
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No consideration.
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Accord and Satisfaction
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Accord is an agreement. Satisfaction is the performance of the agreement.
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Liquidated Debt
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A fixed amount.
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Unliquidated Debt
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Amount is in dispute.
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What is Release?
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Waiver of the right sue.
-Must be a written document -State the consideration paid -Signed by the party waiving the right to sue -Must made in good faith |
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Promises Enforceable without Consideration
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-Promissory estoppel
-Promise to pay a debt where the S/L run -Promise to make charitable contributions |
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What is Minors?
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If enter into a contract - considered voidable.
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Who would have the right to disaffirm the contract?
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The minor may disaffirm the contract up to the age of 18.
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Contracts of Necessaries
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Medical expenses, food, shelter, student loans, etc.
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Parent's Liability
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Parents are not responsible for contract's entered by child.
-Parent's are responsible for necessaries. |
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Regarding Torts
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Parents, in general, are not responsible.
Parents are liable up to $50,000 for intentional torts children commit and up to $65,000 if it involves public property. If parents are negligent - fully liable. |
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If a person is intoxicated...what type of contract?
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Voidable contract
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Mentally Incompetence
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Judicially decreed incompetent - void contract
Mentally incompetent - voidable contract |
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Lucy v. Zehmer
Rule of the Law |
Court will use an objective test to determine capacity.
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Hamer v. Sidway
Facts and Rule of the Law |
Facts: The uncle promised his nephew $5,000 if he refrained from smoking, and gambling and the nephew refrained from those but the uncle past away.
Rule of the Law: Forebearance for the legal right is a consideration. |
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What is Usury contract?
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Individual is charging above the legal lawful interest rate allowed by the state.
Court uses red line/blue pencil - rewrite. |
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What is Gambling?
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Illegal unless recognized by status.
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What is Sabbath Laws?
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They are constitutional. They are recognized as a day of rest, not a day of worship.
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What is Licensing Statutes?
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1. Protection of the public
2. Raise revenue |
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What is "In Pari Delicto"?
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Equally at fault. If parties enter into an illegal contract.
Exceptions: 1. Members of Protected Classes...child labor laws 2. Attempted Withdrawal from an Illegal Agreement 3. Justifiable Ignorance of the Law - protect those who lacks capacity |
