Chapter 12: Agreement Flashcards
What are the two parts of an Agreement?
Offer and Acceptance
What are the three elements for and offer to be effective?
- Offeror must have serious intention to be bound. (using objective theory of contracts)
- Terms must be reasonably certain
- It must be communicated to the Offeree.
What is the serious and objective intent test?
a test which excludes offers made inobvious anger, jest, or undue excitement.
Situations where intent may lack:
Statements of opinion, of future intent, preliminary negotiations, invitations to bid, advertisements, and live online auctions.
What are the 4 terms of offer definiteness?
- Identification of the parties
- the Object or Subject Matter
- the Consideration to be paid
- Details: Time, payment, delivery, and performance.
How can the offer be terminated?
By action of the party, or an operation of law.
Termination by action of the party:
Revocation by offeror, rejection of the offer by the offeree, or a counteroffer.
Termination by operation of law:
Lapse of time, Destruction of the subject matter, Death, or Supervening Illegality of the proposed contract.
Acceptance must ___
Be a voluntary act
by the offeree that
shows assent
To the terms of an offer.
(and unequivocal acceptance)
Unequivocal acceptance:
you accept the offer as it is - with no changes or modifications. (aka. the Mirror Image Rule)
True or False: Both a Bilateral Contract and a Unilateral Contract requires communications
False: Only a Bilateral Contract requires communications. Performance by the Offeree is the form of acceptance.
The Mailbox Rule:
acceptance becomes effective on dispatch providing that the Offeree accepts via the mode expressly or impliedly authorized by the offer.
Exceptions to the Mailbox Rule:
- If it was not properly dispatched by the Offeree
- If the offeror specifies that the acceptance will not be effective until it is received.
- If acceptance is sent after rejection, whichever is received first is given effect.
When is a substitute method of acceptance OK?
Effective if the substitute serves the same purpose (ex. FedEx versus UPS)
What are the minimum requirements or general minimal Provisions in E-Contracts?
- Acceptance (Click Box)
- Method of Payment
- Seller’s Refund and Return Policies
- Disclaimers of Liability
- Limitation on remedies
- Privacy Policy
- Dispute Settlement Provisions
True/False: You must read all the terms and conditions in the online agreement?
False: However, the law assumes that you have read all the terms and conditions and may enforce those regardless of whether you have actually read the terms and conditions.
What is included in the Dispute Settlement Provisions?
the Choice of Law clause and the Forum-Selection Clause. Also, whether it could be subject to arbitration.
Shrink-Wrap Terms
Where the Contract terms are inside the box, and you accept by keeping the item.
A contract between the manufacturer and buyer rather than the seller and buyer.
Browse-Wrap Terms
where the downloader doesn’t have to actually accept to the terms before use.
In this case, there is no offer or acceptance. However, it can be argued that it is binding if the terms are readily available.
Partnering Agreements:
where two companies who regularly do business with each other agree to terms applicable to future transactions.
E-SIGN
the federal statute which recognizes the validity of electronic contracts, records, and signatures.
(a fallback for where a state statute does not exist)
UETA
uniform electronic transaction act
a uniform law which recognizes the validity of electronic contracts, records, and signatures. However, both parties must consent to the use of electronic signatures. Also, not applicable where a formal contract exists (must be in writing on paper)
E-Mailbox Rules
Similar to the normal “Mailbox Rule”
when the document is sent and leaves the control of the sender and is properly directed to the recipient, then it is accepted.
