Barbri Vocab Flashcards
Contract
Legally enforceable agreement.
Quasi Contract
An equitable remedy (restitution action).
P must have conferred a benefit on D.
P reasonably expected to be paid.
D will be unjustly enriched if P is not compensated.
The contract price is not the measure of recovery, it is merely the ceiling if P is in default. Focus on the value of the benefit being conferred.
Bilateral Contract
An offer that is open as to the method of acceptance.
Unilateral Contract
An offer that expressly requires performance as the only possible method of acceptance (i.e. rewards, prizes, contests). Often contains the words offer…only by…
Common Law
Applies to all contracts but the sale of goods, including but not limited to service/employment contracts and real estate.
Article 2 of UCC
Applies to contracts that are primarily sales (not leases) of goods (tangible, moveable, personal property).
Mixed Deal
A deal that is both a sale of goods and a service/real estate contract. Generally, the governing law will be the law that governs the more important part of the contract. To determine that, look at:
- the value of goods vs. the value of service
- how much time is going into the service
- sophistication of service
- does the contract contain typical sales language
The only exception to this rule is if the contract divides payment, then the UCC will apply to the sale of gods and the common law to the rest.
Offer (Definition)
A manifestation of an intention to contract. Generally, words of conduct showing commitment.
Option Contracts
An offer cannot be revoked if the offeror has promised to keep the offer open and the promise is supported by consideration.
Merchant Firm Offer Rule
An offer cannot be revoked for UP TO 3 months if the party is a merchant who promises in a signed writing to keep the offer open and the offer is related to the buying or selling of goods.
Notice does not revoke a merchant firm offer. Consideration is not necessary. It can be less than 3 months.
Mailbox Rule
If the offeree is invited to accept by mail, acceptance is effective when posted.
Three Rules:
- Generally, communications are effective only when received
- Generall, acceptance is effective when sent
- If the rejection is sent first, ignore Rule 2
Consideration
A bargained-for legal detriment.
Look at each promise separately. Ask what the defendant bargained for and what detriment the plaintiff incurred.
Course of Performance
Same People, Same Contract. First choice when determining what ambiguities mean.
Course of Dealing
Same People. Different but Similar Contract. Second choice in settling ambiguities.
Custom and Usage
Different but Similar People, Different but Similar Contract. Third choice is solving ambiguities.
Shipment Contracts
The seller completes its delivery obligation when it gets the goods to a common carrier, makes reasonable arrangements for delivery (i.e. pays), and notifies the buyer. Should say FOB seller city or third destination.
Destination Contracts
The seller does not complete its delivery obligation until the goods arrive where the buyer is. (Should say FOB buyer city)
Parol Evidence
Oral or written agreements made before the final contract was made.
The parol evidence rule states that the final writing supersedes any prior negotiations and agreements.
Integration
A written agreement that the court finds is the final agreement, thus triggering the parol evidence rule.
Partial Integration
A written agreement that the court finds is final but not complete.
Complete Integration
A written agreement that the court finds is final and complete.
Merger Clause
A contract clause that states that the agreement is the complete and final agreement.
Express Warranty
Look for words that promise, describe, or state facts. Often this is done through a sample or model. Make sure to distinguish from opinion or sales talk (puffing).
Implied Warranty of Merchantability
When a person buys ay goods from any merchant, a term is automatically added to the contract by operation of law. The term states that the goods are fit for the ordinary purpose for which the goods are used.
Implied Warranty of Fitness for a Particular Use
The buyer has a particular purpose, he is relying on the seller to select suitable goods, the seller has reason to know of the buyer’s reliance.
Disclaimer
Eliminates implied warranties but express warranties cannot generally be disclaimed. Implied warranties of merchantability and fitness can be disclaimed with terms sucha as “as is” or “with faults” or conspicious language of disclaimer mentioning merchantability.
Limitation of Remedies
These do not eliminate warranties, they simply limit or set recovery for any breach of warranty. The general test is for unconscionability. Also, its prima facie unconscionable to limit recovery for personal injury.
Palpable Mistake
A mistake that the other party to the contract knows or should have known of. The court will grant relief to the mistaken party.
Equal Dignity Rule
When a person needs a written authorization in order to execute a contract for someone else, that authorization must be in writing if the contract to be signed is within the statute of frauds (i.e. the authorization must be of “equal dignity.”)
Performance Conditions
A condition that is a mutually agreed upon promise modifier. It is language in the contract, not merely language in response to an offer, that does not create a new obligation, but merely limits obligations created by other language in the contract.
For example, I contract to buy the painting if the art gallery verifies it is legit. The contract is already in place, this is just a condition of performance. As opposed to, I will only buy the painting if it is legitimate.
Accord
An agreement by the parties to an already existing obligation to accept a different performance in satisfaction of the existing obligation.
Satisfaction
Different performance that what was required by the original contract, but that satisfies the new accord.
Failure to satisfy an accord will leave the person liable for the satisfaction or the original obligation, but not both.
Rescission
Cancellation of the contract at the agreement of both parties.
Modification
An agreement by parties to an existing obligation to accept different agreement in satisfaction of the existing obligation.
Novation
An agreement between both parties to an existing contract to the substitution of a new party. (i.e. same performance, different party).
