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27 Cards in this Set
- Front
- Back
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What is a contract?
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An agreement entered into for adequate consideration to do or refrain from doing a particular thing
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OFFER
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proposal made for the purpose of obtaining an acceptance to create a contract.
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OFFEROR
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person making offer
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OFFEREE
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- person being offered something
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What are the six elements of a contract?
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1. Offer
2. Acceptance/Agreement - willingness to enter into a contract. 3. Consideration - what is given in exchange. 4. Capacity - essentially the same as agreement; ability to enter into legally. 5. Genuine assent - acceptance; agreement to fulfill obligations. 6. Proper form - that the contract is legal. |
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Which are used most often in day-to-day contract law?
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1. >Offer
2. >Acceptance/Agreement - willingness to enter into a contract. 3. >Consideration - what is given in exchange. |
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BILATERAL K
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: promise (offer) for promise (acceptance) -- works both ways - you sell me this, I give you that.
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UNILATERAL K
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: promise (offer) for performance (acceptance)
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Which type of contract indicates that one party promises to do something in exchange for something?
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Unilateral K
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RESCISSION:
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An existing contract is terminated before performance.
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REFORMATION:
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An existing contract is revised/changed to match the TRUE intention of the parties.
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BREACH:
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Failure to perform a promise.
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What are the five responses to an alleged breach of contract?
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1. >No breach, but compliance:
2. >No breach, but excuse: 3. >No breach, justification: 4. >No breach, terminated duty: 5. >Breach |
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What are the five remedies for breach?
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Expectation interest
Reliance interest Restitution interest Specific performance Injunction |
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Expectation interest
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Puts the parties in the position they would have been in had the contract been performed; can be profit.
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Reliance interest
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Puts the party in the position the party was in prior to the breach; can be material, labor, etc. previously expensed.
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Restitution interest
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Gives the party the benefit of service/labor; if a job was half-finished, for example, they would have to finish it.
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Specific performance
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Requires a party to perform as the contract states.
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Injunction
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Used to stop someone from doing something.
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What are the three most common awards in contract disputes?
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Expectation, Reliance, and Specific Performance
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Federal preemption
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this is applicable to both federal law AND state law, they both deal with the same thing, but federal law supercedes.
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Party autonomy rule:
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parties get to pick which state will rule their contract
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What are the 2 exceptions to the party autonomy rule?
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1. The chosen state has no substantial relationship to the parties or the transaction.
2. The result obtained from the applicability of the law of the chosen state would be contrary to the forum state's public policy. |
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Liquidated damages:
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what the breaching party will have to pay.
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If the parties have not concluded which state will govern in the event of a dispute, the choice of law rule specified by the:
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forum state
determines which state's law will govern. |
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What are at least 4 choices of law a forum state will consider to determine which state will govern?
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The law of the place where the contract was made, The law of the place where the last act necessary to form the contract occurs, The place of acceptance, The place of performance of the contract, The law of the place where the negotiations occurred, Domicile, residence, nationality, place of incorporation, and place of business
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If choice of law comes down to statutory vs. common law rule, which one takes precedence?
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Statutory
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