Term
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Definition
| legally enforceable promise |
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Term
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Definition
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Term
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Definition
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Term
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Definition
| what type of contract is the sale and purchase of a house? |
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Term
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Definition
| promise by 1 followed by action of another |
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Term
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Definition
| creation stage of contracts |
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Term
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Definition
| stated intention to enter into contract either in writing or orally |
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Term
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Definition
| formation of contract inferred from conduct |
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Term
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Definition
| what kind of contract creation/formation frequently occurs in sales transactions? |
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Term
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Definition
| situation where person would have formed a contract if he could have contracted even though he didn't (ex car wreck) |
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Term
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Definition
| enforceable by both parties to contract |
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Term
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Definition
| enforceable by neither party to contract |
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Term
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Definition
| able to be voided by only one of the parties but valid until one person wants it void |
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Term
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Definition
| kinds of contracts - formation |
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Term
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Definition
| enforceability kinds of contracts |
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Term
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Definition
| performance types of contracts |
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Term
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Definition
| name for contract before performance in contract occurs |
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Term
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Definition
| name for contract after performance in contract occurs |
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Term
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Definition
| covers contracts concerning all kinds of property |
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Term
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Definition
| covers contracts concerning sales of personal property |
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
| contract law covers all kinds of property and originates from judge made law |
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Definition
| differences between contract law and sales law |
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Term
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Definition
| informal way of settling sales disputes by allowing returns and exchanges |
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Term
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Definition
| Texas bushiness and commerce code |
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Term
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Definition
| what state is the exception in the uniform commercial code? |
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Term
real property
personal property
fixtures |
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Definition
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Term
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Definition
| land and things reasonably permanently attached to land |
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Term
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Definition
| what kind of property is land and fixtures? |
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Term
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Definition
| anything not real property |
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Term
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Definition
| personal property that becomes real property |
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Term
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Definition
| kinds of personal property |
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Term
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Definition
| another name for personal property under sales law |
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
| prepubescent coal , very volatile |
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Term
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Definition
| things commonly thought of as valuable including oil and gas |
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Term
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Definition
| right to seek and develop oil, gas, and minerals |
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Term
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Definition
| money paid to mineral owner to sign lease |
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Term
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Definition
| risk free percentage of oil, gas, and mineral production |
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Term
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Definition
| money paid to mineral owners for privilege of delaying drilling |
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Term
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Definition
| deals with contracts for services and real property |
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Term
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Definition
| deals with contracts for sales of personal property |
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Term
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Definition
| deals in goods (personal property) involved in the contract |
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Term
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Definition
| holds himself out as knowledgeable or skillful about product and therefore receives unequal treatment |
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Term
mutual assent
consideration
capacity of parties
legality of subject matter |
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Definition
| four elements of a contract |
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Term
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Definition
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Term
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Definition
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Term
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Definition
| legally able to enter into contract |
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Term
subjective test
reasonable man test |
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Definition
| what are two tests to determine whether or not meeting of the minds (mutual assent) has occurred |
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Term
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Definition
| would a reasonable person have thought that i wanted to enter into contract in this situation? (helps determine meeting of the minds) |
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Term
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Definition
| problem with determining whether or not mutual assent/meeting of the minds occured by subjectively evaluating the intention of parties (must be intentional meeting of the minds) |
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Term
|
Definition
| voluntary reasonably definite understanding between 2 persons |
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Term
|
Definition
| components of the objective manifestation of meeting of the minds |
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Term
|
Definition
| voluntary, reasonable certain, conditional undertaking component of meeting of the midns/mutual assent |
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Term
|
Definition
| unconditional agreement to the offer component of meeting of the minds |
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Term
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Definition
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Term
mail order catalogs
purchase orders
website announcments
ads unless specific enoguh to be offer |
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Definition
| examples of invitations to offer |
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Term
buyer becomes offeror
seller is offerree |
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Definition
| result of an invitation to offer |
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Term
| lefkowitz v great Minneapolis surplus store |
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Definition
| case used to test advertisements in regard to offers vs invitation to offer |
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Term
| the ad was specific enough (time frame, quantity limit, who) to be offer instead of inviation to offer |
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Definition
| result of lefkowitz v. great Minneapolis surplus store |
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Term
| specificity of advertisements to determine invitation to offer or offer qualification |
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Definition
| subject matter of lefkowitz v. great Minneapolis surplus store |
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Term
|
Definition
| most common termination of offers |
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Term
performance
termination by act of parties (revocation, option, rejection, counter offer, lapse of time_
termination by operation of law (death, ddestruction of subject matter, intervening illegailty) |
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Definition
| methods of termination of offers |
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Term
| offeror can revoke anytime prior to offerree's acceptance |
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Definition
| principle of revocation in regards to terminating an offer |
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Term
|
Definition
| a contract in which offeror agrees not to revoke his offer for a certain time period |
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Term
|
Definition
| method of termination by acts of parties for an offer that automatically terminates the offer |
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Term
| contract terminated after time provided in contract or a reasonable time thereafter |
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Definition
| rule regarding lapse of time in regard to act of parties terminating an offer |
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Term
mutual assent
consideration
capacity of parties
legality of subject matter |
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Definition
| four elements of a contract |
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Term
|
Definition
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Term
death
destruction of subject matter
intervening illegality |
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Definition
| termination of offers by operation of law |
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Term
| silence usually does NOT constitute acceptance unless duty to speak |
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Definition
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Term
| if there is a duty speak and still silence occurs, then silence = acceptance |
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Definition
| when would silence constitute acceptance of an offer |
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Term
| when offeree accepts and not necessarily when offeror knows of acceptance |
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Definition
| general rule for when acceptance takes place |
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Term
| if acceptance by a reasonable medium, then acceptance occurs at time of dispatch by offeree |
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Definition
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Term
| same method as given by offeror |
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Definition
| definition of reasonable medium as referred to in the mailbox rule of acceptance |
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Term
| at time of receipt by offeror |
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Definition
| if acceptance to an offer by offeree is not made through a reasonable medium when does acceptance occur? |
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Term
|
Definition
| case which illustrates the timing of acceptance of an offer |
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Term
| acceptance occurred before offer could be revoked; timing of acceptance |
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Definition
| subject matter of cushing v. thompson |
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Term
| accepting begins at time offeree starts preforming but acceptance doesn't occur until completed performance |
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Definition
| process of acceptance of unilateral contracts |
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Term
| no, cannot revoke from the beginning of accepting and for a reasonable time thereafter |
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Definition
| can an offeror revoke a unilateral contract anytime prior to completion of acceptance? |
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Term
|
Definition
| regarding the consideration element of a contract, which is more important: the amount or the existence? |
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Term
| the consideration is bargained for - the parties presumably felt it was a proper amount, otherwise they wouldn't have agreed to it |
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Definition
| why is existence of consideration as an element of a contract more important than amount? |
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Term
money
property
promises
performance (uniltarl)
nonperformance |
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Definition
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Term
|
Definition
| case that illustrates the detriment/benefit test for promises as a form of consideration |
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Term
| nonperformance (drinking/smoking) as a form of consideration used as a deterimnet/benefit test |
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Definition
| subject matter of hamer v sidway |
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Term
| experimenter/benefit test |
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Definition
| test to determine if promises qualify as form of consideration |
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Term
| no deteriment if performance is required by some preexisting duty (changes to a contract wouldn't have consideration) |
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Definition
| general rule for preexisting obligations |
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Term
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Definition
| example that illustrates the rule of preexisting obligations |
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Term
| modification of contract require new consideration except SALES contracts don't need new considration |
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Definition
| general rule of preexisting obligations for contractual obligations |
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Term
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Definition
| amount of debt is not disputed |
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Term
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Definition
| amount of debt is disputed |
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Term
| partial payment of liquidated debt is NOT sufficient consideration in contract to release debtor from present obligation 9partial rent) |
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Definition
| general rule for settlement of debts - liquidated |
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Term
| partial payment of unliquidated debt IS sufficient consideration to release debtor in contract from payment of remainder |
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Definition
| general rule for settlement of debts - unliquidated |
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Term
|
Definition
| example of unliquidated fees |
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Term
| moral obligations usually aren't sufficient consideration to support a contract |
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Definition
| general rule of moral obligations |
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Term
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Definition
| if one party changes his position in reasonable reliance on the promise of another an di shred thereby, moral obligation is enough consideration for performance of contract |
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Term
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Definition
| case illustrated promissory estoppel |
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Term
| promissory estoppel and moral obligation being enough consideration for contract |
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Definition
| subject matter of Hoffman vs. red owl stores |
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Term
mentally incapacitated
intoxicated persons
minors *under 18 |
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Definition
| types of limited capacity |
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Term
| many contracts entered into by minors are voidable |
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Definition
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Term
| before performance, so NO likability |
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Definition
| liability of a minor in an executory contract |
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Term
| after performance, sometimes: return of time and no liability |
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Definition
| laibilty of a minor in an executed contract |
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Term
|
Definition
| case illustrating liability of minor and measure of damages |
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Term
| minor who disaffirms recovers ALL consideration if item is NOT NEcessity and no didecutino for use, deperectation, or damge, unless minor was negligent or inetionally damged property |
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Definition
| general rule for measure of damages as expressed in halbman v. lemke |
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Term
| measure of damages and recovery of consideration by minor |
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Definition
| subject matter of halban v. lemke |
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Term
| minor can void the contract but minor's liability is reasonable value of goods used |
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Definition
| if item involved in contract is a necessity, what is the liability of the minor |
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Term
| no liability if item returned; minor recovers all consideration |
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Definition
| if item is not a necessity (a luxury) , what is the liability of a minor? |
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Term
| hank v. mcneill coal corporation |
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Definition
| case illustrating mental incompetence as a missing capacity element to make a valid contract |
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Term
| person is considered competent until he is shown incompetent |
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Definition
| general rule of mental incompetence in regards to capacity |
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Term
adjudicated incompetency
incompetency in fact |
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Definition
| t ways a person can be considered incompetent |
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Term
| is person incapable of understanding at time entered into contract? |
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Definition
| test to show incompetency |
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Term
crimes
wagering
public safety licenses
revenue license |
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Definition
| components of violation of law (legality element of a contract) |
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Term
|
Definition
| illegal excessive interest on borrow money |
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Term
| all interest (illegal and legal) and principle forfeited - entire contract illegal |
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Definition
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Term
| punishment results in 3x illegal interest and attorney fees; if 2x legal rate - apply old rule |
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Definition
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Term
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Definition
| in which rule of usury would the lender still collect legal principle and interst/ |
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Term
| covenants to compete are ok if reasonable business necessity and reasonable as to time, subject matter, and area |
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Definition
| rules regarding covenants not to compete |
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Term
| sale of business because more bargaining position and consideration |
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Definition
| when it comes to covenants not to compete, which are more favorably looked upon by courts, sale of business or employment, and why? |
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Term
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Definition
| wrongdoer attempts to be excused from liability caused by his own negligence or intentional acts |
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Term
| relieving person from or reducing liability for another person's actions |
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Definition
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Term
| contracts which attempt to insulate one part from his own negligence/intentional acts are ILLEGAL usually |
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Definition
| rule for exculpatory clauses |
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Term
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Definition
| contract is so grossly unfair it shocks the conscience of a reasonable person and may be set aside by courts |
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Term
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Definition
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Term
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Definition
| court won't enforce contract where both parties have "unclean"/"dirty" hands |
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Term
fraud
innocent misrepresentation
mistake
duress
undue influence |
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Definition
| factors defeating voluntariness for mutual assent (offer and acceptance) |
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Term
misrepresentation of fact
knowledge of falsity
intent to deceive
reliance
injury |
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Definition
| 5 factors required for fraud |
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Term
misrepresentation of fact
reliance
injury |
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Definition
| factor required for innocent misrepresentation |
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Term
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Definition
| either oral or written untrue facts, but not predictions or opinions unless an expert |
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Term
if duty to speak
1. latent defect
2. fiduciary relationship
3. superior knowledge |
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Definition
| when would silence be fraud? |
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Term
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Definition
| physical product defect not discoverable by reasonable visual inspection, which invokes a duty to speak |
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Term
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Definition
| special knowledge not readily discoverable that invokes a duty to speak |
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Term
|
Definition
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Term
|
Definition
| component of fraud in which the innocent party would not have entered into contract but for the fraud |
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Term
|
Definition
| component of fraud in which the innocent part suffered harm as a result of fraud |
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Term
| texas Deceptive Trade Practices Act (written law overriding common law) |
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Definition
| what has been instituted in consumer laws today because it is so difficult to prove fraud? |
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Term
|
Definition
| defrauded into what you signed not why |
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Term
mutual/bilateral (mistake by both)
unilateral (mistake by one) |
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Definition
| two kinds of mistakes that would affect voluntariness of the offer and acceptance of a contract (meeting of the minds) |
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Term
|
Definition
| in a unilateral mistake, is contract performance exc used? |
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Term
|
Definition
| in a mutual mistake, is contract performance excused? |
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Term
| when other part knew or should have know of 1 party's mistake, then it may be treated as a mutual mistake so no contract |
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Definition
| when would a unilateral mistake excuse contract performance? |
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Term
1. threat or far of injury influences contract
2. threat of unwarranted criminal (not civil) lawsuit
3. economic coercion |
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Definition
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Term
|
Definition
| form of duress in which there is no business alternative but to agree to cotnract because no adequate legal rmedy is the threat carried otu |
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Term
| totem marine vs. alyeska pipeline |
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Definition
| case illustrating economic coercion as a form of duress |
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Term
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Definition
| factor affecting voluntarienesss in which one person's will dominates the other person's |
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Term
cults
elderly
mentally or physically ill (but not incapacitated)
marriage - prenuptials |
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Definition
| special circumstances of undue influences |
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Term
|
Definition
| determines which contracts must be in writing |
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Term
sale of land/interest in land - real property
impossible perfroamnce within 1 year
promise to pay debt of another
marriage contracts (some)
sale of personal property (some) |
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Definition
| types of contracts that must be in writing or digital format as laid out by the Texas Uniform Electronic Transactions Act |
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Term
lease period is for <1 year
lease begins 1 year or less from time entered into |
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Definition
| oral leases are just as enforceable as written leases if: |
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Term
|
Definition
| lifetime employment oral contracts are enforceable because NOT impossible to perform in one year |
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Term
| at time contract was made |
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Definition
| when to determine impossibility for a written contract: |
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Term
|
Definition
| two ways to promise to pay another debt |
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Term
|
Definition
| primary liability in cosginature |
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Term
| if consideration for marriage is return promise |
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Definition
| when are oral marriage contracts ok? |
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Term
|
Definition
| if consideration for marriages is something other than return promise, written contract is required |
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Term
unmarried male and female
agree to be married
live together
hold themselves out as husband and wife |
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Definition
| elements necessary for a common law marriage |
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Term
| if goods cost more than $500 (unless merchant0 |
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Definition
| when must sale of goods/personal property be in writing? |
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Term
| protects sanctity of written contracts by disallowing oral evidence outside contract to change the contracts' terms if it is fully written |
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Definition
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|
Term
| excludes evidence which changes contract terms but not evidence which eplains ambiguouty |
|
Definition
| purpose of parol evidence rule |
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Term
| at or before contracts signing |
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Definition
| evidence excluded in the parol evidence rules |
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Term
| contract rights are freely transferable by 1 party to another 3rd party without other original party's consent |
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Definition
| general rule for contract assignment and delegation |
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Term
|
Definition
| transfer of all contract rights to 3rd party |
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Term
|
Definition
| transfer of some rights to 3rd party |
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Term
contracts which prohibit assignment (loans)
personal contract rights (marriage/employment)
prohibited by law (landlord/tenant in tx) |
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Definition
| most contract rights are assignable without other original party's consent, but not all. what are the exceptions? |
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Term
| yes, unless contract assigned had to be in writing, then assignment of that contract must also be in writing |
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Definition
| is oral assignment of contract rights OK? |
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Term
| can't delegate duties to 3rd party and be relieved of contract duties unless other original party agrees |
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Definition
| general rule for delegation of duties |
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Term
| duties that are so personal like employment contracts or duties specially prohibited |
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Definition
| what duties cant be delegated? |
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Term
performance
breach
anticipatory breach
failure of condition
impossiblity
commercial impracticability
parites agreement
oepration of law |
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Definition
| methods of discharge from contracts |
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Term
|
Definition
| most common method of discharge from contractual obligations |
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|
Term
| when contract fully performed, discharged |
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Definition
| general rule of performance as a method of discharge |
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|
Term
performance is substantial
difference between total performance and substantial performance is reasonably slight
no material breach |
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Definition
| definition of substantial performance |
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Term
|
Definition
| case illustrating substantial performance and recovery |
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Term
| swimming pool case which indicates substantial performance |
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Definition
| subject matter of lane vs. Gregory |
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Term
| full contract price less damages resulting from incompletion |
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Definition
| recover of consideration if substantial performance |
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Term
| 0 plus value to innocent party from partial work |
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Definition
| recover of consideration if material breach in contract |
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|
Term
done in workmanlike manner
free of material defect
ordinary quality unless better warranty made |
|
Definition
| general rule for quality of performance to discharge contract |
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Term
| if contract performance by a certain time, have a reasonable time thereafter unless "time is of the essence" stated in contract (then no reasonable time excuse |
|
Definition
| general rule of agreed time for performance discharge method |
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Term
| seller to deliver conformation goods and buyer accepts gooods/pays for them but contract can alter those duties and if contract is unclear, see UCC |
|
Definition
| general rule for performance of sales contract |
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Term
|
Definition
| seller's duty in performance of a sales contract |
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|
Term
| at a reasonable time, at seller's business address or seller's residence address if no business address |
|
Definition
| when and where of seller's duty of tender of delivery |
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Term
|
Definition
| seller performs by tendering at shipment point |
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Term
|
Definition
| seller performs by tendering at destination point |
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|
Term
| buyer pays for transportation |
|
Definition
| who pays in shipment contract |
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|
Term
| seller pays for transportation |
|
Definition
| who pays in destination contract |
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|
Term
| seller performs only if goods and delivery are exactly like contract |
|
Definition
|
|
Term
|
Definition
| case illustrating the perfect tender rule and its exception |
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|
Term
| substitute means of delivery as an exception to the perfect tender rule of performance for sales contracts |
|
Definition
| subject matter of the peerless case |
|
|
Term
cure
installment contract
substitute means of delivery |
|
Definition
| exceptions to the perfect tender rule for condition of goods in performance of sales contract |
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Term
|
Definition
| seller can cure discrepancy in condition of goods/delivery in sales contract if time for performance has not expired |
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|
Term
| if 1 installment is unacceptable, buyer can't reject others which are acceptable unless they are all inseparably related |
|
Definition
| installment contract rule for condition of goods in a sales contract |
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Term
| substituting the method of delivery is OK if commercially reasonable and if deliver before performance date still occurs |
|
Definition
| substitute means of deliver as an exception to the perfect tender rule |
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|
Term
| accept goods and pay for them |
|
Definition
| buyers duty to perform in a sales contract |
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|
Term
|
Definition
| 3 areas of buyers duty in performance for a sales contract |
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|
Term
| conditional acceptance and right to revoke acceptance |
|
Definition
| cash on deliver problem with sales contracts |
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|
Term
by actions
by words
by inaction/silence if duty to speak |
|
Definition
| methods of buyer accepting goods in a sales contract |
|
|
Term
| due on receipt of goods unless contrary in agreement |
|
Definition
| when is payment due for goods in a sales contract? |
|
|
Term
| value received before contract was breached (swimming pool case0 |
|
Definition
| material breach by on party tot he contract relieves other innocent party from contract except for: |
|
|
Term
|
Definition
| before contract performance date, notice of intended breach and termination by innocent party |
|
|
Term
| if reasonable man would have believed guilty party was going to breach, innocent party is not responsible if guilty party changes his mind |
|
Definition
| general rule of anticipatory breach |
|
|
Term
| happening or non happening of an event which affects a contract |
|
Definition
| failure of condition discharge method |
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|
Term
condition subsequent
condition concurrent |
|
Definition
| types of conditions in failure of condition |
|
|
Term
| unless condition occurs, no contract in first place |
|
Definition
|
|
Term
|
Definition
| after k if condition occurs discharge from contract |
|
|
Term
| unless conditions occur simultaneously, no contract |
|
Definition
|
|
Term
objective (NOBODY could perform)
subjective (I couldn't perform) |
|
Definition
| types of impossibility methods of discharge |
|
|
Term
|
Definition
| objective impossibility results in |
|
|
Term
| may temporarily postpone performance in objective impossibility |
|
Definition
|
|
Term
|
Definition
| subjective impossibility results is: |
|
|
Term
| objective impossibility if death/disability/incapacity |
|
Definition
| in personal service contracts, what are the rules if the person is irreplaceable? |
|
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Term
|
Definition
| destruction of subject matter without fault of either party discharges both parties from contract |
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|
Term
| discharge if ONLY supply source--> objective impossibility |
|
Definition
| result of destruction of supply source |
|
|
Term
|
Definition
| law passed which prevents performance = objective impossibility |
|
|
Term
| commercial impracticability |
|
Definition
| not true impossibility but because of unforeseen change in circumstances, benefit of performance is outweighed by costs |
|
|
Term
| unforeseen circumstances leading to commercial impracticability and discharge of contract |
|
Definition
| subject matter of northern corp. vs chugach electric |
|
|
Term
| north corp vs chugach electric |
|
Definition
| case illustrating commercial impracticability |
|
|
Term
price isn't alone isn't enough
extraordinary situations |
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Definition
| unforeseen circumstances requirement |
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Term
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Definition
| both parties agree to call off contract |
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Term
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Definition
| release of original party to contract and replacement with another new person |
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Term
bankruptcy
statue of limitations
alteration |
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Definition
| discharge method - operation of law |
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Term
| 4 years to sue on breach of contract or never can |
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Definition
| general rule in Texas statute of limitations |
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Term
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Definition
| alteration - if guilty party changes contract, "in pari delicto" not enforeceable by him |
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