Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
65 Cards in this Set
- Front
- Back
|
Types of Contracts |
Bilateral Unilateral Gift Promise/ donative contract |
|
|
Bilateral contract |
a promise to do something is exchanged for a promise |
|
|
Unilateral Contract |
a promise to do something in exchange for an act. k arises when the act is done |
|
|
Gift Promise / Donative Contract |
in this contract there is no consideration |
|
|
Promissory Estoppel |
when a promisor makes a reasonable promise, such that the person who hears the promise reasonably relies on that promise and acts to their detriment, then the promise must be kept open if it is the only way to avoid injustice |
|
|
Mailbox Rule |
an offer or revocation is effective when received acceptance is effective when sent |
|
|
3 Parts of a contract |
offer, acceptance, and consideration |
|
|
The Offer |
it is an option. it must have reasonably definitive terms. must be communicated to the offeree. must have an intent to be bound / is an invitation to negotiate. there is always a set period of time during which the offer is open. |
|
|
An Option |
an opportunity to do something that a person must keep open for you, for a price |
|
|
How to stop an offer |
Revocation must happen before acceptance or subsequent illegality |
|
|
Subsequent illegality |
When the offer is asking someone to do something illegal it invalidates the contract |
|
|
The Acceptance |
Must happen within the time frame of the offer. Must be according to the terms of the offer. Contractual Capacity |
|
|
Contractual Capacity |
does the person have the mental capacity to enter a contract? non compis mentis (no longer of sound mind) intoxication |
|
|
Minors & contracts |
Minors enter Voidable contracts except for food, clothing and shelter. |
|
|
Consideration |
something of value in exchange for the thing in the contract. (often Money) |
|
|
Statute of Fraud |
contracts concerning real-estate and wills must be in writing |
|
|
Conduct which affects Contracts |
Novation Mistakes Fraud Misrepresentation |
|
|
Novation |
The right to negotiate a new contract if both parties agree |
|
|
Mistakes & Contracts |
generally, a unilateral mistake does not affect the contract, unless the non-mistaken party knows about the mistake, or if the mistake is mathematical in nature and of such a size that a reasonable person would recognize the error. |
|
|
Fraud Misrepresentation |
misrepresentation of a fact that is materially wrong ( a statement of fact that is inaccurate which forms the basis of the contract. fraud by word ( a lie) Fraud by silence (dont tell something you are supposed to tell) Fraud by marketing materials this is fraud in the inducement |
|
|
Terms of a contract |
Parole evidence rule Course of performance Usage of Trade |
|
|
Parole Evidence Rule |
when an agreement is reduced to a full and comprehensive writing, signed by the parties, then evidence of prior (or contemporaneous) oral or written agreements are not used to interpret the contract. |
|
|
Course of Performance |
in a contract with multiple performances done and accepted by the party that can object but does not, then that performance constitutes the terms of the agreement. |
|
|
Usage of Trade |
when a term and its meaning is so universally accepted in a trade that it does violence to the word to change its meaning, then that is what the term means |
|
|
Discharge of contract obligations |
By performance commercial impracticability Repudiation |
|
|
Discharge of K obligations by Performance |
all part of the contract have been completed and delivered on |
|
|
Discharge of K by commercial impracticability |
the occurrence of an event, the non occurrence of which was the basis of the bargain, which makes performance economically not feasible |
|
|
Discharge of K by Repudiation |
a clear and unequivocal statement or action indicating that the other party either can not or will not preform on the contract. this is an immediate cause of action as it may constitute a breach |
|
|
Breach of Contract |
can be a major or minor breach, results in damages |
|
|
Major Breach |
the non breaching party does not get substantially what he or she bargained for. Substantial non performance You may have immediate cause of action |
|
|
Minor Breach |
The non breaching party gets most of what they wanted. Non breaching party must preform on their end of the contract but may hold back the % of performance that is needed to remedy the loss |
|
|
Kinds of Damages and Remedies |
Compensatory / General Consequential Damages Liquidated Damages Reliance Damages Specific Performance |
|
|
Duty to mitigate damages |
Non breaching party must make a reasonable effort not to suffer damages |
|
|
Compensatory / General Damages |
in this case, the breaching party must put the non breaching party in the position they would be in if there had been no breach |
|
|
Consequential Damages |
Damages which follow naturally and probably from the original breach, generally where the breaching party is aware of the law. the breaching party must pay the damages |
|
|
Liquidated Damages |
a $ amount specified in a K and signed by the parties determining monetary damages in the case of a breach |
|
|
Reliance Damages |
Compensate the relying party for any reasonable damages created by relying on the original promise (promissory Estoppel) |
|
|
Specific Performance (remedies) |
occurs when the court requires the breaching party to do what the original contract required |
|
|
Food Related Injury (Common Law) |
if the source of the injury is foreign, then the provider is negligent if the source of the injury is natural then the provider is not negligent |
|
|
Food Related Injury (statute) |
the warranty theory this is basically the reasonable expectations test. if you can reasonably expect to find the source of the injury where it was found, then the provider is not negligent |
|
|
the warranty theory |
this is basically the reasonable expectations test. if you can reasonably expect to find the source of the injury where it was found, then the provider is not negligent |
|
|
Alcohol related injury (common law) |
it is the consumption of alcohol, not its sale or provision which is the proximate cause of injury *this is based of the abel bodied man theory **the exceptions to the common law are minors and known intoxicants |
|
|
Alcohol related injury (Dram shop law / statutory law) |
This law prohibits the sale of alcohol to minors, known intoxicants, clearly or obviously intoxicated people. most states have some sort of dram shop law |
|
|
Bailments |
The transfer of title in which the baillee gets legal possession and control, but the bailor maintains ownership of the title. |
|
|
Duty of the baillee |
Must return the bailed object to the bailor at the end of the bailment in the same or similar conditions. |
|
|
Conversion (of bailed objects) |
when the bailee fails to return the object, it has been converted. the bailee is liable to the bailor for the full market value of the bailed object minus depreciation |
|
|
constructive bailments |
Involuntary bailments The bailee is responsible for returning the item to the owner of the best legal title |
|
|
Duty of care for bailments (carefulness quotient) |
Personal instances for the benefit of the bailor; bailee must exercise slight care for the benefit of the bailee; bailee must exercise more than reasonable care Business instances For mutual benefit; bailee must exercise reasonable care. |
|
|
The reasonable expectations test for bailed objects |
the bailee is responsible for anything you could reasonable expect to find within the bailed object for example: a wallet in a coat pocket |
|
|
Bailment Example: coat check |
an unattended coat check room is not a bailment unless you pay for coat check or it is an attended coat check room. the establishment would be smart to post a sign removing them of all responsibilities |
|
|
Bailment Example: Cars |
Parking lots are not bailments, rather temporary leases, unless there is a transfer of keys |
|
|
property of hotel guests; Valuables |
Expensive jewelry, valuable securities, large sums of cash
|
|
|
Hotel guests property, common law |
The innkeeper is absolutely responsible for lost or stolen property exceptions include; an act of god an act of public enemy contributory negligence by the owner of the item |
|
|
Statute limiting liability (sll) for the innkeeper |
the innkeeper must provide a safe for valuables and post a notice of the SLL stating the duty of the guest to hand over valuables and the statutory limit of the hotels liability. in some states liability is limited to the statute unless the item was lost due to the hotels negligence, in other states the limit is still set even iff the hotel was negligent. |
|
|
Equitable estoppel, and waiving the SLL |
the SLL can be waived if both parties are in agreement. this can be done in 2 ways implicit waiver: verbally waived, there can be no trickery Explicit waived: done with a signed document. |
|
|
Explicit Waiver for SLL |
a signed document waiving the limit of liability for a guests valuables |
|
|
3 kinds of Warranties |
Express Implied Warranty of Title |
|
|
Express Warranties |
any statement of fact attaching to your product or service that is relied on and becomes part of the basis for the bargin |
|
|
Implied Warranties |
a merchant warrants that the product or service provided is of fair or average quality in the trade, is appropriate for its intended use, and meets all labeling stipulations. This warranty applies to merchants within that business. this warranty can be waived if it is written that the warranty is limited. |
|
|
Warranty of title |
a seller warrants the buyer that the title is clear and that its transfer is lawful. the seller can only transfer a title that he or she owns |
|
|
3 kinds of business organizations |
Sole Proprietorship Partnership Corporation |
|
|
The corporate veil |
an imaginary divide between shareholders and investors that protects shareholders. makes it so that shareholders are not liable for anything but investors are. |
|
|
Sole Proprietorship |
Identity: The owner Liability: falls to the owner and the company as one individual Taxes: only ordinary income taxes are paid Dissolution: the owner just stops the company. |
|
|
Partnership |
Partners share in profits and losses identity: The partners Liability: both partners are jointly liable. if one partner can not pay his full share, then the other partner is liable for the difference. Taxes: Ordinary income taxes Dissolution: Both parties must agree to stop working. the goods are divided among the partners. |
|
|
Corporation |
Created by the state Identity: the corporation is viewed as one identity Liability: extends through the corporation. (stops at corporate veil) Taxes: corporate taxes are paid by the company. shareholders pay taxes on dividends. Dissolution: the board of directors and the shareholders must approve a dissolution. |
