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a rule providing that an acceptance of an offer becomes effective on dispatch (on being placed in an official mailbox), if mail is, expressly or impliedly, an authorized means of communication of acceptance to the offeror
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a doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies. Such a promise is binding if justice will be better served by the enforcement of the promise
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bargain canbe created under improper pressure
Example : threats, physical |
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-the words and conduct of the parties indicate that they intended an agreement
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certain critera must be met in order to crystalize aggreement .
a formal contract in writing is required to consummable an enforcable contract.
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an equitable remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he/she would have been in had the breach not occurred
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| discharges all of the duites required in the performance of both parties |
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no longer perform on the promise
results in total or partial breatch rise of claim for damages |
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a contract to reserve the rights of something
1) option is enforceable if it is made irrevocable by statue
2) option is in writing
3) does not iduce an action or forbearance
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| offeror utters words of promise that make performance optional |
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given exchange for a promise
Any performance which is bargained for is a consideration
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agreement with all important terms explicitly stated; some are oral and some are written
may be expressed or implied
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does not require a contract
Ex) sale of a bicycle |
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one party makes a promise that the other party can accept only by doing something(requires an action)
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implied contract but is not
a form of restituition to remedy
a possible remedy for an injured plaintiff in a case with no valid contract, where the plaintiff can show benefit to the defendant, reasonable expectation of payment, and unjust enrichment |
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intention to act
Enforceable agreement
- upon parties
- upon subject matter
- legal consideration
- mutalit of agreeement
- mutality of obligation
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- an agreement or bargain
- promise or set of promises
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these are not considered offers
invitation by consumer to make an offer |
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- Marrige
- Year
- Land
- Executor
- Goods over $500
- Secondary , Collateral
performance with in one year , signature can be placed anywere |
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offer agrees with the same subject matter in the bargain but proposes a subsiture inthe term of the offer form the one offer by the offeror
considerded a rejection of original offer |
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| prommisor is acting under pre exsisiting duty , not considered |
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| contract whose terms have been completely fulfilled. |
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where one or more parties have not yet performed their duties as stipulated in the contract document. An ongoing lease agreement.
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| a contract formed in whole or in part from the conduct of the parties (as opposed to an express contract) |
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- a fictional contract imposed on the parties by a court in which the indorser disclaims any contract liability on the instrument.
- the notion "without recourse" is commonly used to create a qualified indorsemen
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| a valid contract rendered unenforceable by some statute or law |
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| a contract that may be legally avoided at the option of one or both of the parties |
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| generally, the value given in return for a promise; involves two elements-- the giving of something of legally sufficient value and a bargained-for exchange |
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| the act of refraining form an action that one has a legal right to undertake |
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| a debt for which the amount has been ascertained, fixed, agreed on, settled, or exactly determined |
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| a common law rule that requires that the terms of the offeree's acceptance adhere exactly to the terms of the offeror's offer for a valid contract to be formed |
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| an act that takes place before the contract is made and that ordinarily, by itself, cannot be consideration for a later promiser to pay for the act |
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| a remedy whereby a contract is canceled and the parties and returened to the positions they occupied before the contract was made |
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in contract law, the withdrawal of an offer by an offereo
*unless the offer is irrevocable, it can be revoked at any time prior to acceptance without liability
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| one that neither party can enforce, usually because the purpose is illegal or one of the parties had no legal authority |
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| what you must show to prove promissory estoppel |
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Definition
1) the defendant made a promise knowing that the plaintiff would likely rely on it
2) the plaintiff did rely on the promise
3) the only way to avoid injustice is to enforce the promise |
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1) invitation to bargain is not an offer
2) an advertisement is generally not an offer
3) a letter of intent may or may not be an offer, depending on the writers intent |
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1) revocation
2) rejection
3) counter offer
4) expiration
5) destruction |
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| the offeree must say or do something to accept. in a bilateral he must accept, in a unilateral he must perform to accept |
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1)illusory promise-->conditional
2) past consideration
3) promise of a gift
4) preexisting du |
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| means that there must be bargaining that leads to an exchange between the parties |
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is the legal ability to enter into a contract
minors lack capacity
voidable contract occurs by the party who lacks capacity |
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a contract that a court refuses to enforce because of fundamental unfairness
2 factors
1) oppression
2) surprise |
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| meaning that one party used its superior power to force a contract on the weaker party |
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| meaning that the weaker party did not fully understand the consequences of its agreement |
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a minor may disaffirm a contract. he will no longer be bound by the agreement
also the minor has the option of filing suit to rescind the contract |
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a person with mental illness or defect, who is unable to understand the nature and consequences of a transaction
-creates a voidable contract |
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| when he makes a contract it is voidable |
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| to rescind a contract based on misrepresentation |
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Definition
1) there was a false statement of fact
2) statement was fraudulent or materia
3) the injured person justifiably relied on the statement |
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nondisclosure of a fact is misrepresentation only when disclosure is necessary
1) to correct a previous assertion
2) to correct a mistaken understanding about a writing
3) to correct a basic mistaken assumption
4) in a relationship of trust |
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| agreements must be in writing |
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Definition
1) any interest in land
2) cannot be performed within one year
3) to pay the debt of another
4) made by an executor of an estate
5) consideration of marriage
6) sale of goods over $500 |
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| aggreement for interest in land |
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Definition
must be in writing
exceptions:
1) full performance by the seller
2) part performance by the buyer |
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| promise to pay debt of another |
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Definition
| collateral promise thus must be in writing |
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| what writing must contain |
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1) contract must be signed by defendant
2) name of each party
3) subject matter of the agreement
4) all essential terms and promises |
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| if a person accepts the benefit of an unauthorized transaction or fails to repudiate it |
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| is the deception of another person for the purpose of obtaining money or property |
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| is an act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms |
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| the offeree must say or do something to accept. in a bilateral he must accept, in a unilateral he must perform to accept |
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| when the law permits one party to terminate the agreement |
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| wrongful or unlawful act or threat that overcomes the free will of a party |
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duration of offer
-revocation |
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Definition
offer may be terminated at any time before it is accepted, subject to the following exceptions
-option contract - binds offeror to keep an offer open for a specified time
-firm offer - a merchant's irrevocable offer to sell or buy goods in a signed writing ensures that the offer will not be terminated for up to three months
-statutory irrevocability - offer made irrevocable by statute
-irrevocable offer of unilateral contract - a unilateral offer may not be revoked for a reasonable time after performance is begun
-promissory estoppel - noncontractual promise that binds the promisor because she should reasonably expect that the promise will induce the promisee (offeree) to take action in reliance on it |
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communication of acceptance
general rule |
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| acceptance effective upon dispatch unless the offer specifically provides otherwise or the offeree uses an unauthorized means of communication |
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| unfair" influence - two people who have some sort of relationship (parent/child, spouse/spouse, attorney/client) enter a contract. The contract is disadvantageous to the submissive party, and advantageous to the dominant party, and is therefore voidable by a court of law. |
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Unlawful pressure brought to bear on the accused, causing him or her to perform an act that she would not have performed otherwise. A defendant claiming duress must prove that
(1) she or another was threatened with serious bodily harm or death,
(2) the harm threatened was greater than the harm caused by her crime,
(3) the threat was immediate and inescapable, and
(4) she was put into the situation giving rise to the threat through no fault of her own. |
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legal ability to enter into a contract
Minors have particular rights and obligations established by the court when it comes to contracts. Once a person reaches age 18, they are considered a legal adult in every state in the nation. In adittion to minors, other persons are able to aviod contracts. Mentally implaired and intoxicated people, convicts, and aliens lack the capicity to enter into a contract. |
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| when a child's parent or legal guardian gies up the legal right to exercise control over the child. Normally, a minor who leaves home to support himself or herself is considered emancipated. |
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| a lender who makes a loan at an interest rate above the maximum has committed usury |
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| contract drafted by the dominant party and then presented to the adhering party on a "take it or leave it" basis |
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| A secondary promise that is ancillary to a principal transaction or primary contractual relationship, such a sa promise made by one person to pay the debts of another if the latter fails to perform. Normally must be in writing to be enforceable. |
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Definition
1. Unilateral--Generally, the mistaken party is bound by the contract UNLESS a) the other party knows or should have known of the mistake or b) the mistake is an inadvertent mathematical error-such as an error in addition or subtraction-committed without gross negligence.
2. Bilateral--When both parties are mistaken about the same material fact, such as identity, either party can avoid the contract. If the mistake concerns value or quality, either party can enforce the contract. |
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| Five types of contract discharge (diagram) |
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Definition
1. By agreement
2. By performance
3. By breach
4. By operation of law
5. By failure of a condition |
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Definition
1. Compensatory damages
2. Consequential damages
3. Punitive damages
4. Nominal damages
5. Liquidated damages |
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| Compensatory damages, breach and remedies |
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Definition
Damages that compensate the nonbreaching party for injuries actually sustained and proven to have arisen directly from the loss of the bargain resulting from the breach of contract.
1. In breached contracts for the sale of goods, the usual measure of compensatory damages is the difference between the contract price and the market price.
2. In breached contracts for the sale of land, the measure of damages is ordinarily the same as in contracts for the sale of goods.
3. In breached construction contracts, the measure of damages depends on which party breaches and at what stage of construction the breach occurs |
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| Damages resulting from special circumstances beyond the contract itself; the damages flow only from the consequences of a breach. For a party to recover consequential damages, the damages must be the foreseeable result of a breach of contract, and the breaching party must have known at the time the contract was formed that special circumstances existed that would cause the nonbreaching party to incur additional loss on breach of the contract. Also called special damages. |
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A remedy whereby a contract is canceled and the parties are restored to the original positions that they occupied before the transaction. Available when fraud, a mistake, duress, or failure of consideration is present. The rescinding party must give prompt notice of the rescission to the breaching party.
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| An equitable remedy calling for the performance of the act promised in the contract. Available only in special situations--such as those involving contracts for the sale of unique goods or land--and when monetary damages would be an inadequate remedy. Not available as a remedy in breached contracts for personal services. |
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| An equitable remedy allowing a contract to be "reformed" to reflect the parties' true intentions. Available when an agreement is imperfectly expressed in writing. |
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| When a breach of contract occurs, the injured party is held to a duty to mitgate, or reduce, the damages that he or she suffers. |
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| A legal remedy, usually an award of money, that provides sufficient compensation to the plaintiff, thereby making equitable relief, such as specific performance, unavailable. |
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| is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance. If the party does not fulfill his contractual promise, or has given information to the other party that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, he is said to breach the contract. |
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| means that degree of performance of a contract which, while not equal to full and complete performance, is so nearly equivalent that it would be unreasonable to deny the contractor the payment agreed upon in the contract, subject, of course, to the owner's right to recover whatever damages he has suffered by reason of the contractor's failure to render full and complete performance. |
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| A court order that orders a party to do or refrain from doing a certain act (or acts) as opposed to a money judgment |
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irrevocable, written, and signed offer regarding the sale or purchase of specified goods or services at specified prices and valid for a specified period. If no closing or expiration date is specified, the offer is normally considered to be open for 30 days after its presenation.Also called confirmed offer.
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Doing an act you not legally obligated to do or not doing an act that one has a legal right to do.
A change in position by one to whom a promise has been made, or an assumption of duties or liabilities not previously imposed on the person, due to the person's reliance on the actions of the one who makes the promise. |
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force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when the following elements are proven:
- A promise was made
- Relying on the promise was reasonable or foreseeable
- There was actual and reasonable reliance on the promise
- The reliance was detrimental
- Injustice can only be prevented by enforcing the promise
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| a contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it. |
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| : a party's offer of a performance already required under an existing contract is insufficient consideration for modification of the contract |
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| ex .When a Distributor places a Purchase Order against a Manufacturer, he has certain expectations on when he will receive the items ordered. |
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| manifestation of intention |
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| t means the external expression of intention as distinguished from undisclosed intention. A promisor manifests an intention if he believes or has reason to believe that the promisee will infer that intention from his words or conduct. |
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both parties make a promise; a promise made in exchange for another promise |
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| Court-ordered action that directs parties to do or not to do something; |
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| objective theory of contract |
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legal concept that a binding agreement exists between two (or more)parites if a reasonable person would judge (from the outward and objective acts of the parties and the associated circumstances) that an offer has been made and accepted. It dispenses with the subjective notion of intention (meeting of the minds') of the parties advocated under the older (early 19th century)subjective theory of the contract as being too hazy.
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| by this you still accept the offer |
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| what rule is put forth when there are unforseen difficulties |
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| this is an exception to the preexsisitng duty rule |
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| a contract which one party forfeits the right to pusue a legal claim against the other party |
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| legal avoidance or setting aside of a contractual obligation |
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| person is no longer a minor |
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| this fulfills basic needs |
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| release a party from liability in the event of monetary or physical injury no matter who is at fault |
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| what constitutes a writing for a contract |
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| order confirmation, invoice,sales slip,check ,fax , or email -or such items in combination |
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| no actual damage or finicial loss results from the a breach of contract and only a technical injury is involved .often $1 |
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| nonbreaching party may be willing to accept a defective performance of the contract |
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| actual damages, which compensate a plaintiff for the losses suffered due to the harm caused by the defendant |
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| When a contract is rescinded, both parties must make restitution to each other by returning the goods, property, or funds previously conveyed. |
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