Term
| Is an advertisement an offer? If not, what is it? |
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Definition
| No. They are invitations for offers. |
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Term
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Definition
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Term
| When is an advertisement an offer? |
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Definition
1. Definite intention to make an offer
2. Specific as to terms
3. Must leave nothing important open to negotiation
4. Must account for over acceptance problem.
"First come, first served" or "Limited supply" indicate offer. |
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Term
| What are the sad things that can happen to an offer? |
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Definition
1. Lapse due to time
2. Rejection by offeree
3. Revocation by offeror
4. Death/Incapacity of offeror |
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Term
| When does an offer lapse? |
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Definition
| When the offer indicates it lapses or after a reasonable time. |
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Term
| What factors should be considered in determining whether an offer has bee indirectly revoked? |
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Definition
1. Reliability of the source
2. Method of delivery of indirect revocation. |
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Term
| Summarize the merchant's firm offer rule. |
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Definition
An offer by a MERCHANT in a signed writing that gives assurance it will be held open is no revocable, for lack of consideration, during the time the offer states. If no time that the offer will be held open is stated, it will be held open for a reasonable time. In NO EVENT will the period irrevocability be held open for longer than three months.
Elements are:
1. Offer
2. By merchant
3. Signed by offeror
4. For the sale of a good
5. For the time stated or a reasonable time, but NEVER more than 3 months |
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Term
| What is a "merchant" under the UCC? |
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Definition
| A merchant is a person who deals in goods of the kind or holds herself out as having specialized knowledge. |
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Term
| Who are contractual ambiguities generally construed against? |
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Definition
| The drafter of the contract. |
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Term
State whether the "acceptances" below are valid acceptances or rejections and a counteroffer.
1. I will buy your car for $3,500 provided all four tires are included.
2. I will buy your car for $3,500 provided I can pay by check.
3. I'll buy your car for $3,500. Will you take a check? |
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Definition
1. Valid. Tires are customarily included in the sale of cars.
2. Invalid. Rejection/Counteroffer.
3. Valid. Simply a request for additional terms. |
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Term
| According to the Restatement, when there is doubt whether an offer can be accepted by promise or performance, what is the default? |
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Definition
| Whatever is reasonable under the circumstances. |
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Term
| Under the UCC, unless stated otherwise, what method of acceptance can be used to accept an offer? |
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Definition
| Under the UCC, either promise OR performance is a valid acceptance, unless unambiguously stated otherwise. |
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Term
| When can silence be an acceptance? |
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Definition
1. Custom and enjoyment of the benefit of the offered services --Ex: haircut, restaurant
2. Reliance on terms of the offer
3. Prior course of dealing |
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Term
| A real estate broker enters into a contract with a family wishing to sell their home. The real estate broker would be paid upon selling the family's home. Before the house is sold, but after the real estate broker has showed the house to several potential buyers, the family fires the real estate broker. Can the broker sue for breach of contract? Why? |
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Definition
| Yes. The steps taken by the broker are likely to be considered to have conferred a benefit upon the family, creates an option contract with the family to allow the broker to finish her work. |
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Term
| Assuming partial performance began on a unilateral contract, how long does that offer stay open? |
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Definition
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Term
| If a mailed acceptance is addressed improperly but is received by the offeror before revocation, is a contract formed? |
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Definition
| Yes. The offer is still open if it has not been revoked. |
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Term
| What are the dickered terms? |
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Definition
-Price
-Quantity
-Delivery |
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Term
| Under the UCC and between two merchants, how are additional terms contained within an acceptance handled? |
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Definition
The terms become part of the contract unless:
1. The offer being accepted expressly limited the offer to those terms contained in the original offer
2. They materially alter it
3. Notification of objection to the additional terms has already been given or is given within a reasonable time after notice of the additional terms is received. |
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Term
| Name all the exceptions to the general rule that courts will not inquire into the adequacy of consideration. |
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Definition
1. Like for like
2. Past consideration
3. Release of totally invalid claim
4. Illusory promise |
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Term
| What are the elements of the material benefit exception? |
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Definition
1. Life saving benefit
2. Promise must be from victim to life saver directly
3. Must be injustice by not enforcing
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Term
| What is the Pre-Existing Legal Duty Rule? |
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Definition
| If you're already under a contractual obligation to do something, and you don't want to do it, there has to be consideration to change it from what you're already legally obligated to do. |
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Term
| Will the courts inquire into the value of consideration in PELDR cases? |
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Definition
| Yes, to determine that it is not nominal or a token consideration. |
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Term
| What are the elements required for a voluntary modification of a contract? |
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Definition
1. Must be voluntary -- no hold up game
2. Contract cannot be fully performed on EITHER side
3. Based upon unanticipated circumstances NOT REASONABLY ANTICIPATED at start of contract by either party.
4. Modification must be fair and equitable. |
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Term
| What are the elements of promissory estoppel? |
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Definition
1. Promise
2. Which promisor reasonably expects will induce reliance
3. Actual, reasonable reliance by promisee
4. In which injustice should be remedied
5. By enforcing at least a limited remedy |
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Term
| What are the elements of duress? |
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Definition
1. Assent induced by improper threat by other party
2. Leaves victim no reasonable alternative |
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