Term
| What is a contract generally? |
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Definition
| A contract is a promise or set of promises, for which the law gives remedy if breached, or the performance of which the law recognizes as a duty |
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Term
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Definition
| formed by language, oral or written |
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Term
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Definition
| formed by manifestations of assent other than oral or written language such as conduct (sitting in a barber’s chair, or sitting down in a restaurant). |
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Term
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Definition
| Not a literal contract Created by the courts to avoid unjust enrichment by allowing restitution against an amount benefited by the Defendant |
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Term
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Definition
| A mutual exchange of promises, each party is a promisor and promisee |
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Term
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Definition
| A contract where offeror requests performance instead of promise, like a reward contract. Only acceptable by full performance. |
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Term
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Definition
1. A manifestation of intent to be bound
2. the signal that acceptance will conclude the deal |
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Term
| "Creation of contract" analysis steps. |
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Definition
1. Was there mutual assent?
2. Was there some consideration (or exception?
3. Are there any defenses? |
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Term
| Rule for multiple offerees in advertisements |
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Definition
| In general, the ad is seen as an invitation to offer, not an offer. |
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Term
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Definition
| Generally, reward offers are seen as unilateral contracts because they generally offer a bounty for full performance |
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Term
| Manifestation of Mutual Assent |
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Definition
| "the same bargain at the same time" or a "meeting of the minds." Subjective intent doesn't matter. |
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Term
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Definition
| a manifestation of assent to the terms of an offer. The offeree exercises the power given to him by the offeror to create a contract. |
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Term
| Three steps to determine an offer |
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Definition
1. Was there a manifestation of intent to enter a contract?(Promise, undertaking, commitment)
2. Was there certainty and definiteness in the terms?
3. Was there communication of the offeree |
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Term
| How to determine intent to enter into a contract (making an offer) |
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Definition
Fact based:
1. Language used (I promise v. I'm asking for)
2. Surrounding circumstances
3. Prior relationship of the parties
4. Industry custom |
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Term
| Requirements for an offer to be determined "Definite and certain" (2) |
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Definition
1. The identity of the offeree
2. Definiteness of the subject matter |
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Term
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Definition
| An offer is a promise, which is in it terms, is conditional upon an act, forbearance, or return promise. |
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Term
| The result of missing terms on the formation of a contract. |
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Definition
| Doesn’t prevent the formation of a contract if it appears that the parties intended to make a contract. It is presumed that the parties’ intent was to include a reasonable term if it was missing. |
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Term
| Vague terms in the formation of a contract, |
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Definition
| Vague terms are generally won't be enforceable. (EX: Divide profits on a liberal basis) However, there are three ways to resolve an ambiguity |
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Term
Ways to cure a vague term in a contract
(2) |
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Definition
1. Partial performance clarifies terms
2. Can be cured by acceptance if the offer contains multiple choices (pick any motorcycle for $1000, offeree picks one |
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Term
| Communication requirement of an offer |
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Definition
| In order for a communication to be a contract, it must justify another person's understanding that his assent is invited to complete the bargain |
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Term
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Definition
The offeror can specify specific times, however, if no time is specify then the standard is that the offer lasts a "reasonable time"
The time limit generally begins to start when the offer is received. |
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Term
| Things that create an indirect revocation |
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Definition
1. An offeree learning of the termination of of a contract from a third party
2. The offeror has taken definite action inconsistent with the intention to enter the proposed contract. (Ex selling the thing to someone else) that the offeree knows about |
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Term
| Limitations of offeror's power to revoke |
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Definition
Offers can be revoked even if the offeror promised not to revoke for a certain period unless...
1. There is an option contract
2. Detrimental reliance
3. Partial performance |
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Term
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Definition
| A manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer. |
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Term
| When is a promise binding by reason of reliance? (3) |
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Definition
1. The promisor should reasonably expect his promise to induce the action or forbearance of the promisee or a third person.
2. The promise does induce the action or forbearance
3. Injustice can be avoided only by enforcement of the promise. |
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Term
| Mailbox rule of acceptance |
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Definition
| Once the acceptance is mailed, its effective, even if the offeror has mailed a revocation that has not been received. |
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Term
| Detrimental Reliance (Restatement 87) |
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Definition
| When the offeror could (1) reasonably expect that the offeree would rely to his detriment on the offer, and (2) the offer does rely to his detriment, the offer will be irrevocable as an option contract for a reasonable length of time. The offeree would be entitled to recover at least the money spent in relying. |
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Term
| Acceptance of unilateral contracts |
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Definition
| Complete performance is the only way to accept a unilateral contract, but the offeree must give notice of the completion within a reasonable time. |
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Term
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Definition
| If offeree silently takes offered benefits, the courts will often find acceptance. This is especially true if they have a past history of silent acceptances. In that case, they must notify that she does not accept. |
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Term
| Exceptions to the past consideration rule |
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Definition
1. Promise to pay a debt barred by the Statute of Limitations is binding
2. A promise to pay a debt discharged by bankruptcy is binding |
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Term
| Past or Moral Consideration rule |
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Definition
| As a general rule, a promise given in exchange for something already given or already performed will not satisfy the bargain requirement. |
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Term
| Past "moral" consideration exception |
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Definition
Some jurisdictions will enforce a promise based on past moral consideration if
1. The promisee conferred the benefit of on the promisor and not on a third party
2. The benefit is material. |
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Term
| What is Promissory Estoppel? |
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Definition
| A person who reasonably relies to her detriment on a gratuitous promise may be able to enforce the promise. |
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Term
| Elements of Promissory Estoppel (4) |
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Definition
1. Promise
2. Foreseeable reliance
3. Actual Reliance
4. Injustice without enforcement |
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Term
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Definition
| Some legal benefit or detriment required for the existence of a contract. Just about anything can be consideration, A promise, act, or forbearance. |
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Term
| Valid defenses to the formation of a contract |
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Definition
1. No mutual assent,
2. Lack of consideration
3. Public policy considerations that deny contractual status |
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Term
| Things that constitute a lack of mutual assent |
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Definition
1. Mistake by both parties unless the adversely affected party assumed the risk of mistake.
2. Latent ambiguities
3. Misrepresentation |
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Term
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Definition
1. Where neither party is aware of the ambiguity, there is no contract
(A means house 1, B means house 2)
2. If both parties aware of the ambiguity, there is no contract
3. If one party knows of the ambiguity, the contract will be enforced in favor of the unknowing party. |
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Term
| Mistake by both parties (Elements 3) |
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Definition
1. Mistake to as to a basic assumption
(Both parties think a rock is a diamond)
2. The mistake has a material effect on the agreed upon exchange
(the rock is worth 1/10th the value of the diamond)
3. The party seeking avoidance did not assume the risk |
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Term
| Misrepresentation makes a contract voidable/rescindable by the innocent party when |
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Definition
1. Fraud by inducement was justifiably relied on. (Ex a guitar salesman lies and says the guitar belonged to Slash)
2. Non-fraudulent misrepresentation to a material fact that was justifiably relied on
(seller actually believed Slash played the guitar) |
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