Assess 1 Flashcards
Contract
A promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.
Promise
A manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.
Implied-in-Fact contract
Manifesting an Intention by Action
Implied-in-Fact contract - 2 Elements
1) Mutual Agreement ~and~
2) Intent to Promise
Quasi-Contract
(Unjust Enrichment) {Implied - in - Law}
- NO Promise but proceed as if there was one
Quasi-Contract - 3 Elements
1) Benefit conferred on the Defendant by the Plaintiff ~and~
2) Appreciation by the defendant of such a benefit ~and~
3) Acceptance and Retention by the defendant
Forward contracts -
1) Promise to sell in the future
2) Does not have to be written; can be oral
Ex: The cotton farmers Futures Contract
If you do something without being asked then …?
it’s voluntary / a gift
and
no compensation is due
Must First decide if ____ ?
Second decide if it _____ ?
1) there is a PROMISE !
a. No Promise than No Contract
b. What is the Promise ??
2) is ENFORCABLE
a. by consideration ?
EXAM TIPS FOR CONSIDERATION/QUID PRO Quo ESSAY
a. ALWAYS SAY WHY … THERE IS_____ . BECAUSE…
- or-
b. THERE WAS NOT ____ BECAUSE…
c.. Is there past or current _________?
d. Or was it a _____ promise?
e,. Was there a benefit/detriment.
f. Promise and return promise?
a. CONSIDERATION
b. DETRIMENT
IF THERE IS A PLAUSIBLE ARGUMENT TO THE CONTRARY SAY IT!
c. consideration
d. gratuitous
e. yes / no - what was it?
f. what in exchange for what
A Promise to give a Gift ….is it consideration?
NO, it’s Not Enough b/c it’s gratuitous
Can you bargain for a pension after you are done working?
NO, Can’t bargain for something (like a service) in the past / Has to be at start of work
Nominal consideration … does the court determine value?
The court does NOT generally get into determining value of consideration.
Promissory Estoppel is because (a) and why is it used (b)?
a) Promise to do something in the future when there is no exchange or bargain
b) to stop an injustice
Promissory Estoppel - 4 Elements
1) actual Reliance on the promise that induced action
2) The reliance was Foreseeable to the breaching party (promisor)
3) That it was clearly left the promisee worse off,
~and~
4) That Injustice can only be avoided by enforcement.
[is binding if injustice can be avoided by enforcement of the promise]
[damages are limited]
Can you have a Non-Competition Agreement ?
Not AFTER he was already working b/c no consideration
BUT if condition of employment, a raise, duties, title, etc then there was consideration
Can you give Up a VALID Legal Claim or Legal Right as Consideration
RULE: Does the person giving up the claim have a Good Faith Belief and Some reasonable basis for the validity of the claim?
Then it’s giving up a legal claim and OK
Is a “Pre-Existing Duty” consideration ?
RULE: The performance or the promise to perform a pre-existing duty does not constitute consideration
3 Elements required to enforce modification of Services contract not fully performed by either side
1) Not fully performed on either side ~and~ 2) Modification is fair and equitable ~and~ 3) The modification is prompted by circumstances that parties did NOT anticipate when they made the contract
Illusory Promise
if one party commits BUT the other party has the ability to reduce their consideration to ZERO, then there is no consideration by that party
– If parties can breech or are restricted , then it’s not illusory
Reviving a Stale Claim / Reviving a Pre-existing Duty or Obligation
- if there was a pre-existing legal obligation and
- it ceased b/c of the statute of limitations,
- then if there is a new promise to pay (all or part),
- it will be binding **
A consideration is ,….
… a bargained for exchange or Quid Pro Quo
