Term
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Definition
| contracts involving the sale of goods, where goods are all things movable (most tangible things such as cars, horses, hamburgers), but DNA to sale of real estate, services, or intangibles (a patent) or to construction contracts |
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Term
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Definition
| constructed by courts to avoid unjust enrichment by permitting the plaintiff to bring an action in restitution to recover the amount of the benefit conferred on the defendant |
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Term
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Definition
| exchange of mutual promises, a promise for a promise, in which each party is both a promisor and a promisee |
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Term
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Definition
| Offeror requests performance rather than a promise - offeror promises to pay upon the completion of the requested act by the promisee; once the act is completed, a contract is formed (i.e. offer to the public for a reward) |
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Term
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Definition
| this is needed in order for a contract to be formed - ask whether words or conduct manifest a present intention to enter into a contract (includes offer & acceptance)? |
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Term
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Definition
| definite and certain in its terms - creates a power of acceptance in the offeree |
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Term
| Real Estate Offers: Requirements |
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Definition
| must state the land (with some particularity) and price terms |
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Term
| Sale of Goods Offer: Requirements |
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Definition
| the quantity must be certain or capable of being made certain |
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Term
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Definition
| retraction of an offer by the offeror, effective when received (delivered) by the offeree or when published (if by publication) |
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Term
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Definition
| (i) if a merchant (ii) offers to buy or sell goods in a signed writing, and (iii) the writing gives assurances that it will be held open, then the offer is not revocable for lack of consideration during the time stated, or if no time is stated, for a reasonable time (but cannot exceed 3 mo) |
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Term
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Definition
| distinct contract in which the offer gives consideration for a promise by the offeror not to revoke an outstanding offer (can be held open for as long as parties specify) |
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Term
| Limitations on Power to Revoke Offer |
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Definition
1. Options
2. Merchant's Firm Offer
3. Detrimental Reliance
4. Beginning Performance in re: Unilateral Offer
5. Beginning Performance Offer Indiff as to Manner of Acceptance |
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Term
| Ways an offer can terminate |
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Definition
1. Rejection (express, counteroffer)
2. Lapse of Time
3. Operation of Law (death of either party, destruction of subject matter, supervening illegality) |
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Term
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Definition
| At common law, must be absolute and unequivocal acceptance of each and every term of the offer - any additional or different terms make the response a rejection and counteroffer |
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Term
| Additional terms (if non-merchants) |
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Definition
| additional or diff terms are considered mere proposals to modify and do not become part of the K unless offeror expressly agrees |
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Term
| Additional terms (if merchants) |
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Definition
| additional terms will be included unless: (1) materially alter the original terms, (2) expressly limits acceptance to the terms, (3) offeror has already rejected the terms or objects within a reasonable time |
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Term
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Definition
| creates a contract "effective upon dispatch" (applies only to acceptance) UNLESS: (1) offer stipulates acceptance is not effective until received, (2) an option contract is involved, (3) offeree sends a rejection and then sends acceptance - whichever arrives first |
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Term
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Definition
| (1) there must be a bargained for exchange between the parties; and (2) that which is bargained for must be considered of legal value - must constitute a benefit to promisor or detriment to promisee |
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Term
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Definition
| Only one party is bound to perform - not enforceable |
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Term
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Definition
| (1) promisor should reasonably expect to induce action or forbearance; and (2) such action or forbearance is in fact induced |
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Term
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Definition
1. Mutual Mistake as to Existing Facts
2. Unilateral Mistake (where other party knows)
3. Ambiguous Language
4. Misrepresentation
5. Absence of Consideration
6. Illegality
7. Lack of Capacity
8. Statute of Frauds
9. Unconscionability |
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Term
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Definition
(1) writing (2) signed by the party to be bound
Includes: Marriage, Agreements for more than 1 year, Sale of Land, Executor's promise to pay estate debts, Sale of Goods > $500, Suretyship |
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Term
| Merchants Confirmatory Memo Rule |
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Definition
| if one party, within a reasonable time after a oral agreement is made, sends to the other party a written confirmation of the understanding that is sufficient under the SoF to bind the sender it will bind the recipient if (1) he has reason to know of its contents, and (2) does not object to it in writing within 10 days of receipt |
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Term
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Definition
| inconspicuous risk-shifting provisions, contracts of adhesion ("take it or leave it"), exculpatory clauses, limitations on remedies (fails its essential purpose) |
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Term
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Definition
| (1) done for consideration, or (2) taken as security for or payment of a preexisting debt; CANNOT be revoked |
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Term
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Definition
| generally revocable UNLESS (1) obligor has already performed, (2) a tangible claim is delivered, (3) an intangible claim is put in writing, or (4) the assignee can show detrimental reliance on the assignment (estoppel) |
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Term
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Definition
Scenario #1 (Seller is Merchant): Risk of Loss does not pass to Buyer until Buyer takes physical possession
Scenario #2 (Seller is Nonmerchant): Risk of Loss passes to Buyer upon tender of delivery |
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Term
| Implied Warranty of Merchantability |
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Definition
| implied in every contract for the sale of goods by a merchant who deals in the kinds of goods sold; goods are warranted to at least be fit for the ordinary purposes for which such goods are to be used |
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Term
| Implied warranty of fitness for a particular purpose |
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Definition
| implied in any contract where for the sale of goods whenever any seller has reason to know of the particular purpose for which the goods are to be used and that the buyer is relying on the seller's skill and judgment to select suitable goods; and the buyer in fact relied on the seller's skill and judgment. |
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Term
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Definition
| occurs when a promisor, prior to time of performance, indicates that he will not perform when the time comes (excuses the breach) - words or conduct must be unequivocal |
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Term
| When is specific performance available? |
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Definition
1. Land sale contracts
2. Rare/Unique Goods |
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Term
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Definition
| sufficient damages for her to buy a substitute performance aka "benefit of the bargain" damages |
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Term
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Definition
| designed to put the plaintiff in the position she would have been in had the contract never been formed |
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Term
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Definition
| special damages that reflect losses over and above standard expectation damages - can only be recovered if: (i) at time contract was made a reasonable person would have foreseen the damages as a probable result of breach, (ii) damages can't be avoided through reasonable efforts, and (iii) damages can be proved with reasonable certainty |
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Term
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Definition
| expenses reasonably incurred by the buyer in inspection, receipt, transportation, care and custody of goods rightfully rejected or incident to seller's breach, or by the seller in storing, shipping, returning in respect to buyer's breach |
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Term
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Definition
| parties to a K can stipulate what damages are to be paid in event of breach if (1) damages are difficult to estimate at time of K, and (2) amount agreed upon is a reasonable forecast |
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Term
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Definition
| focused on preventing unjust enrichment when one has conferred a benefit on another without gratuitous intent (= value of the benefit conferred) |
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Term
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Definition
Non-merchants = additional/different terms not part of K
Merchants = additional/different terms part of K unless limits acceptance to those terms, additional/diff terms are material, or initial doc rejects additional/diff terms |
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Term
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Definition
| past consideration generally invalid as new consideration |
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Term
| Mixed Contracts - what law governs? |
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Definition
| Determine the predominant purpose of the K. Factors for determining purpose include: language of K, nature of business of supplier, and intrinsic worth of materials. If services, use Common Law. If goods, use UCC Article 2. |
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Term
| Employment Contract Remedies |
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Definition
Employer breach = full contract price
Employee breach = cost to replace EE |
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Term
| Construction K Remedies (breach by owner) |
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Definition
| Breach by owner: (1) before construction = builder's prospective profits, (2) during construction = K price minus cost of completion, (3) after completion = full K price + interest |
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Term
| Construction K Remedies (breach by builder) |
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Definition
| Breach by builder: (1) before or during construction = cost of completion + compensation for delay, (2) late completion = value of lost use |
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Term
| Sale of Goods (Buyers Damages) |
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Definition
(1) Cover (diff between K price & cost to replace)
(2) Diff between K price and market price
(3) Warranty damages (if accepted nonconforming goods)
(4) Consequential damages (if seller knew of buyer's needs) |
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Term
| Sale of Goods (Seller's Damages) |
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Definition
(1) Diff between K price and resale price
(2) Diff between K price and market price
(3) Lost profits (if lost volume seller) |
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Term
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Definition
| difference between K price and Fair Market Value of land |
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Term
| Requirements for Specific Performance |
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Definition
(1) Valid K
(2) Satisfaction of P's conditions/performance
(3) Inadequate remedy at law
(4) Feasibility |
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Term
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Definition
| Prior (oral or written) or contemporaneous oral expressions are inadmissible to vary, modify, or contradict an integrated agreement to be the complete and final expression of the parties' agreement |
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Term
| Exceptions to Parole Evidence Rule |
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Definition
(1) evidence concerning validity of K (formation defects, conditions precedent)
(2) evidence used to interpret uncertain, ambiguous terms
(3) evidence showing true consideration paid
(4) evidence in action for reformation |
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Term
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Definition
CL: additional consideration needed; written K can be modified orally even if contrary provision
UCC: No consideration needed so long as in GF; must be in writing if, as modified, K is for $500 or more; gives effect to provisions prohibiting oral modifications |
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Term
| Discharge of Duty (4 ways) |
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Definition
(1) Impossibility
(2) Impracticability
(3) Frustration of Purpose
(4) Parties Discharge (modification, rescission, novation, accord & satisfaction) |
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Term
| What does it mean to "breach"? |
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Definition
CL: material breach vs. minor breach = must be material breach, but with minor breach still have right to damages
UCC: Perfect Tender Rule - if goods/delivery fail to conform to K in any way, buyer may reject all, accept all, or accept any commercial units and reject rest |
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Term
| Duties that cannot be delegated |
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Definition
| involving personal skill/judgment, involving special trust in delegator (doctor, lawyer), restricted by K, performance of which materially alters expectation |
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