Binding Promise and pacta sunt servanda: consent

Question 1

What is a promise? (two elements)

Answer 1

1. A manifestation of intent to act or refrain from acting in a specified way,
2. so made as to justify a promisee in understanding that a commitment has been made.

Question 2

What are some conditions of a legally enforceable promise (two elements)

Answer 2

1. It imposes a duty or obligation on the promisor to perform the promise
2. gives a corresponding right to the promisee to have the promise performed

Question 3

Can a non-legal promise be enforced?

Answer 3

Yes, it can qualify as a promise but there is no remedy for them

Question 4

What is a legal duty

Answer 4

an obligation to act or to refrain from acting in a certain way

Question 5

Can there be a legal duty owed to no one?

Answer 5

No, if there is no duty then there is no right that can be given to another

Question 6

Define Obligor

Answer 6

A person under duty to act

Question 7

Define Obligee

Answer 7

Person to whom the duty is owed

Question 8

What is a contract as defined in Restatement (Second) of Contracts §§ 1 in the Rules Pamphlet?

Answer 8

1. a promise or set of promises
2. for the breach of which the law gives a remedy,
   or
   2a. the performance of which the law in some recognizes as a duty”

Question 9

what is the difference between a promise and a contract

Answer 9

1. A contract has a legal effect
2. Not all promises are legally binding

Question 10

What is another way to reference a contract

Answer 10

1. legal obligation
2. Compounds (complex) of legal relations

Question 11

How does the Restatement (Second) of Contracts §§ 1 in the Rules Pamphlet - contract defined: categorize actions or determine what actions are important enough to create a legal duty

Answer 11

The restatement does not attempt to list what actions bring legal duty

Question 12

Can non-verbal communication be considered in determining whether or not an act brings legal duty

Answer 12

yes

Question 13

Define Generic Prima Facie

Answer 13

valid until proven otherwise

Question 14

what elements that the plaintiff must show in a generic prima facie case? (there are 3)

Answer 14

(1) The defendant owed plaintiff some legal duty;
(2) The defendant breached that duty;
(3) The breach caused harm to the plaintiff; and
(4) The plaintiff is entitled to a remedy requiring the defendant to compensate the plaintiff for the harm.

Question 15

Do courts or sheriffs regularly enforce obligors to fulfill their duties?

Answer 15

No, in order to be compensated a partie has to prove element 4 or prima facie: The plaintiff is entitled to a remedy requiring the defendant to compensate the plaintiff for the harm.

Question 16

How is harm determined to award damages in breaches of contract in the obligor/obligee relationship

Answer 16

Court must determine the rightful position of the nonbreaching party had the contract been fulfilled

Question 17

What are the two ways courts calculate damages?

Answer 17

1. Expectation Interest (note: person had expectations of a result eg profit etc)
2. Reliance Interest (measure of damages in tort law) compensates for harm/damages caused by breach of the contract

Question 18

What is the remedy for awarding damages under the expectation of interest

Answer 18

to attempt to give plaintiff the value of full contract performance, including lost profit -Takes into account both losses incurred and profits missed.

Question 19

What is the remedy for awarding damages under the reliance of interest

Answer 19

to bring plaintiff back up to zero but makes him no better off than he was before the transaction

Question 20

What types of damages are awarded under expectation of interest

Answer 20

Financial recorvery

Question 21

What types of damages are awarded under reliance of interest

Answer 21

Can compensate for harm suffered via financial and/or non-financial damages

Question 22

What is consideration

Answer 22

Something bargained for (a return promise) given from the promisee which prompts the promisor to commit to the promise

Question 23

Is consideration necessary for a an agreement to be enforceable

Answer 23

Yes

Question 24

What is the definition of a conditional promise?

Answer 24

B ask A for something
A says yes, as long as B meets a condition (eg bring a car back on time etc)
B agrees to the condition

Question 25

What is a voidable contract (two answers)

Answer 25

A contract that can be affirmed or rejected at the option of one of the parties; or

one that is void on the wrongdoers part, but is not void as to the party wronged (unless that party elects to treat it as void)

Question 26

what is the definition of an unenforceable contract? (hint: two answers)

Answer 26

a valid contract that cannot be enforced because of a “technical defect”

or

Question 27

How are formal contracts created?

Answer 27

under some sort of formality (seal, a negotiable instrument, a letter of credit)

Question 28

What is an informal contract and what are some examples of elements of an informal contract?

Answer 28

a) One that isn’t done under a formality per se but may have an element of a binding intent

b) mutual assent, consideration, etc

Question 29

Are most modern contracts formal or informal?

Answer 29

informal

Question 30

What’s an express contract

Answer 30

a contract that has explicit (specific) terms set out

Question 31

What is an implied contract?

Answer 31

An implied-in-fact contract (inferences can be drawn from facts of the contract)

Question 32

What is a unilateral contract

Answer 32

Where only one party makes a promise and agrees to act or perform

Question 33

What is a bilateral contract

Answer 33

When both parties promise a performance to one another

Question 34

Is a quasi-contract a contract?

Answer 34

No, it’s technically a remedy for a plaintiff to recover a benefit owed to them

Question 35

Under the Are most modern contracts unilateral or bilateral?