Term
|
Definition
| an exchange of promises enforceable in court |
|
|
Term
| How is Consensus achieved? |
|
Definition
* through a process of offer and acceptance in which both parties clearly understand the obligations and responsibilities they are assuming
* reached through bargaining |
|
|
Term
| Define invitations to treat |
|
Definition
* pre-contract communications
* eg. advertising or product/service information |
|
|
Term
|
Definition
| a tentative commitment containing essential terms |
|
|
Term
| Does an offer or contract have to be in writing. |
|
Definition
| No, however it is good practice to put a contract in writing. |
|
|
Term
|
Definition
1) When the contract expires at a specific time
2) If specific time not specified, then after a reasonable time (depending on the circumstances)
3) Death, insanity, or bankrupcy of offerer
4) The offer is withdrawn by the offerer (revocation)
5) After counteroffer |
|
|
Term
|
Definition
| When the offer is withdrawn by the offerer. |
|
|
Term
|
Definition
* commitment by the offeree to terms of offer
* it must be complete and unconditional |
|
|
Term
| What is unilateral contract? |
|
Definition
When the nature of the contract itself requires the actual performance of the contract as the method of acceptance.
eg. offering a $100 reward for the return of lost dog |
|
|
Term
| What is the post box rule? |
|
Definition
* acceptance of contract is when you drop the signed contract in the mailbox
* revocation is when the receiver reads the revocation letter
* does not apply to fax |
|
|
Term
| What are three ways in which an offer can be accepted? |
|
Definition
1) Acceptance, general rule
2) Acceptance by performance (unilateral contract)
3) Acceptance, post box rule |
|
|
Term
| What are the 6 qualifications that must be met for the formation of a contract? |
|
Definition
1) Consensus
2) Consideration
3) Capacity
4) Legality
5) Intention
6) Writing |
|
|
Term
| What is promissory estoppel? |
|
Definition
| When a promise has been made and the promissor is estopped or prevented from enforcing the earlier claim. |
|
|
Term
| Who would be considered incapable of negotiating a contract? |
|
Definition
* infants
* insane people
* intoxicated people |
|
|
Term
| Define void and voidable. |
|
Definition
Void - there never was a contract and both parties are from from any obligation under the agreement
Voidable - a voidable contract is valid but due to a problem, one of the parties has the right to escape if he/she chooses to |
|
|
Term
| Are parents responsible for contracts entered into by their children? |
|
Definition
Generally, yes.
Unless they have authorized that contract or they have agreed to be a guarantor or co-debtor. |
|
|
Term
| Are parents responsible for the torts committed by their children? |
|
Definition
No.
But they can be held liable if they were negligent. |
|
|
Term
|
Definition
| the parties must intend to be legally bound by their agreement |
|
|
Term
| Are family arrangements legally binding? Why or why not? |
|
Definition
No.
In domestic or social relationships, there is a presumption that there was no intention to be legally bound.
eg. agreeing to pay a child an allowance |
|
|
Term
| Give examples where a written contract is necessary. |
|
Definition
Statute of Frauds requires evidence in writing in specific situations
Sales of goods act requires writing |
|
|
Term
| When writing is required but is absent, is the contract enforceable? |
|
Definition
|
|
Term
| List the 6 types of remedies. |
|
Definition
1) Damages
2) Liquidated Damages
3) Specific Performance
4) Injunction
5) Accounting
6) Quantum Meruit |
|
|
Term
| What are three types of mistakes. |
|
Definition
1) Shared mistake
2) Misunderstanding
3) One-sided mistake |
|
|
Term
|
Definition
both parties have made the same error
* this may destroy consensus and result in no contract between them
* this error can be fixed (rectified) by a court
eg. the parties agreed to buy and sell a boat at $50,000, but it was mistakingly written as $5000 |
|
|
Term
|
Definition
when parties disagree, court will apply reasonable interpretation
eg. purchase of a ship named Peerless. It turned out there were two ships with the same name. And each party was thinking about a different ship. |
|
|
Term
|
Definition
only one party is in error
* usually has no effects on the contract
* eg. you thought you were signing a mortgage, but you were actually signing a guarantee |
|
|
Term
|
Definition
provisions that favour one side, usually exempting that side from liability for failure to perform some aspect of the contract
eg. sign in parking lot limiting liability of the company for goods stolen or damage to the vehicle |
|
|
Term
|
Definition
* false and misleading statements that induce a person to enter into a contract
* this includes half-truths |
|
|
Term
| Define innocent misrepresentation. What is the remedy for it? |
|
Definition
* when a person misleads another without knowing
* remedy is recission |
|
|
Term
|
Definition
court attempting to restore the parties to their original position
eg. the seller misrepresented the year of the car you bought; so the contract could be rescinded; you return the car and you would get your money back including any repair/maintenance expenses |
|
|
Term
Define fraudulent misrepresentation.
What is the remedy for it? |
|
Definition
when a person knowingly misleads
* remedy can be damages and/or recission |
|
|
Term
| Define negligent misrepresentation |
|
Definition
| when the wrongdoer should have been more careful |
|
|
Term
|
Definition
when the free will to bargain is lost because they were coerced using threat of violence, imprisonment, scandal, damage to property, financial pressure
* this makes a contract voidable |
|
|
Term
|
Definition
* loss of free will
* influence from doctors, lawyers, guardians with their wards, |
|
|
Term
|
Definition
| when vulnerable people are taken advantage of |
|
|
Term
| 4 ways to end contractual obligations |
|
Definition
1) Performance - performance has been completed
2) Breach - breach of condition
3) Frustration - performance is made impossible by outside event
4) Agreement - can modify or end obligation by a new agreement |
|
|
Term
| Define performance tendered |
|
Definition
| a willing party is prevented by the other from performing |
|
|
Term
| Define warranties. What happens when they are breached? |
|
Definition
minor terms of contract
* when breached, performance is still required but damages are available |
|
|
Term
| What is repudiation? What can the victim of repudiation do? |
|
Definition
anticipatory breach; when it is clear that one party has no intention of performing
* the victim can treat the contract as discarded or go through with his part of the obligation and then if there is failure, sue for breach |
|
|
Term
| What is bilateral discharge? |
|
Definition
| when there is consideration to support an agreement to discharge an old agreement while both parties still have obligations under the original agreement |
|
|
Term
| What is unilateral discharge? |
|
Definition
* discharge cannot be one-sided
* parties must agree on some additional consideration |
|
|
Term
| What are conditions precedent? |
|
Definition
| conditions which must be met before the obligations of the contract must be fulfilled |
|
|
Term
| What are conditions subsequent? |
|
Definition
| event or condition that ends the obligation to fulfill the contract after they are in process |
|
|
Term
| What are 3 remedies for breach of contract? |
|
Definition
1) recission - return to original position
2) rectification - correct wording
3) provided in contract - self-help; liquidated damages (pre-agreed payments for breach), deposits and down payments |
|
|
Term
| Difference in remedies when condition vs warranty is breached? |
|
Definition
Breach of condition - recission and damages
Breach of warranty - damages only |
|
|
Term
|
Definition
| * court tries to put victim in breach in the position they would have been in if the contract had been properly performed |
|
|
Term
| What are limitations on damages? |
|
Definition
* remoteness - limit damages to what would likely be the result of the breach
* mitigation - victim must make can effort to keep their losses as low as possible |
|
|
Term
| List 4 equitable remedies |
|
Definition
1) specific performance
2) injunction
3) accounting
4) quantum meruit |
|
|
Term
|
Definition
| court orders breaching party to disclose and pay profits |
|
|
Term
|
Definition
| court orders payment for part performance |
|
|
Term
| what is specific performance |
|
Definition
| an order to go through with the deal |
|
|
Term
|
Definition
| an order to stop breaching the agreement |
|
|
