9/25/13 Flashcards
What is a contract?
A voluntary agreement between 2 or more parties where those parties agree to perform a particular act or service (or agree to refrain from doing s.th). The agreement is supported by consideration, making it enforceable by law.
What happens if one of the parties breaches the contract (fails to perform)?
The non-breaching party can seek damages or remedy where money damages will not suffice
Which types of formation can a contract take?
Unilateral or bilateral K
What is a unilateral K?
An invitation by the offeror to the offeree to perform a particular act or refrain from doing s.th; no formal acceptance, rather the full completion of the act that constitutes acceptance and full execution of the contract
What is a bilateral K?
Both parties exchange mutuality of promises (detrimental reliance)
Which form do contracts take?
Can be either written or oral, but if there’s a breach, you have the burden of proof
How can a contract be formed?
Express K or Implied K
What is an express K?
By means of language (oral or writing), must be contained in words
What is an implied in fact K?
Contract will arise as a result of the conduct or actions of the parties or may be custom or practise in a given business/industry/trade
What is an implied in law K?
Legal fiction (court is going to impose financial quasi-contract to protect injured party)
What must be proven for an implied in law K?
1) plaintiff: performed service or conferred some benefit upon defendant
2) plaintiff: performed that service with the expectation of being paid/compensated
What would allowing the defendant to walk away without justly compensating the plaintiff amount to in an implied in law K?
Unjust enrichment
What are the 5 key elements necessary for a contract?
1) valid offer
2) valid acceptance
3) legal capacity (legally competent)
4) proper consideration
5) Satisfy some lawful purpose
What is a valid offer?
Proposal by offeror to offeree to perform a particular act
What must the offeror demonstrate in a valid offer?
Some serious intent that he/she will be bound on acceptance by the offeree
What has to be clearly identified in a valid offer?
Parties to the contract
What has to be specified in a valid offer?
Consideration being exchanged by the parties; time; manner of performance
What must a valid offer be done?
Directly communicated to the offeree or his/her designated agent
When can you revoke an offer?
1) prior to acceptance by the offeree
2) where there is a time frame set for accpetance
3) where there is death or destruction of subject matter
4) where there is death or incompetence of one of the parties (particularly offeror)
5) counter-offer by the offeree
When does a revocation become effective?
When it is received by the offeree
How does the offeree accept an offer?
1) must accept very mirror-image terms of offer
2) communicate acceptance to offeror
When does acceptance become effective?
Upon dispatch; if offeree uses a method of acceptance other than specified by offeror: upon receipt
