Chapter Nine Flashcards
Promise
An assertion that something either will or will not happen in the future
Promisor
A person who makes a promise
Promisee
A person to whom a promise is made
Contract
An agreement that can be enforced in court; formed by two or more competent parties who agree, for consideration, to perform or to refrain from performing some legal act now or in the future
Objective Theory Of Contracts
A theory under which the intent to form a contract will be judged by outward, objective facts (what the party said when entering into the contract, how the party acted or appeared , and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the party’s own secret, subjective intentions
Offeror
A person who makes an offer
Offeree
A person to whom an offer is made
Bilateral Contract
A type of contract that arises when a promise is given in exchange for a return promise
Unilateral Contract
A contract that results when an offer can be accepted only by the offeree’s performance
Formal contract
A contract that by law requires a specific form for its validity
Informal Contract
A contract that does not require a specific form or fomality to be valid
Express Contract
A contract in which the terms of the agreement are stated in words, oral or written
Implied contract
A contract formed in whole or in part from the conduct of the parties (as opposed to an express)
Executed Contract
a contract that has been completey performed by both parties
Executory contract
A contract that has not yet been fully performed
Valid Contract
A contract that results when the elements necessary for contract formation
Voidable contract
A contract that may be legally avoided (cancelled) at the option of one or both parties
unenforceable contract
a valid contract rendered unenforceable by some statute or law
void contract
a contract having no legal force or binding effect
agreement
a meeting of two or more minds in regard to the terms of a contract; usually broken down into two events- an offer by one party to form a contract and an accpetance of the offer by the person to whom the offer is made
Offer
A promise or commitment to perform or retain from performing some specified act in the future
Revocation
in contract law, the withdrawl of an offer by the offeror. unless the offer is irrevocable, it can be revoked at any time prior to acceptance without liability
Counteroffer
an offeree’s response to an offer in which the offeree rejects the orginal offer and at the same time makes a new offer
mirror image rule
a common law rule that requires that the terms of the oferee’s acceptance adhere exactly to the terms of the offeror’s offer for a valid contract to be formed
Option contract
a contract under which the offeror cannot revoke the offer for a stipulate time peroid
Acceptance
a voluntary act by the offeree that shows assent, or agreement, to the terms of an offer; may consist of words or conduct
Mailbox rule
a rule providing that an acceptance of an offer becomes effective on dispatch (on being placed in an offical mailbox), if mail is, expressly or impliedly, an authorized means of communication of acceptance from the offeror
e-contract
a contract that is formed electronically
Forum-selection clause
a provision in a contract designating the court, jurisdiction, or tirbunal that will decide any disputes arising under the contract
click-on-agreement
an agreement that arises when a buyer, engaging in a transaction on a computer, indicates assent to be bound by the terms of an offer by clicking on a button that says, for example “I agree”
Shrink-Wrap agreement
an agreement whose terms are expressed in a document located inside a box in which goods (usually software) are packed
Browse-wrap term
a term or condition of use that is presented to an internet user at the time certain products such as software, are being downloaded but that need not be agreed to (by clicking “I agree”, for example) before the user is able to install or use the product
E-signature
As defined by the uniform electronic transactions act, “an electronic sound, symbol, or process attached to or logically associated with a record and execuited or adopted by a person with the intent to sign the record
cybernotary
a legally recognized authority that can certify the validity of digital signatures
partnering agreement
an agreement between a seller and buyer who frequently do business with each other concerning the terms and conditions that will apply to all subsequently formed electronic contracts
Record
According to the uniform electronic transactions act, information that is either inscribed on a tangible medium or stored in an electronic or other medium and is retrievable
Consideration
generally, the value given in return for a promise or performance. the consideration, which must be present to make the contract legally binding, must be something of legality suffcient value and bargained for
rescission
A remdy whereby a contract is canceled and the parties are returned to the positions they occupied before the contract was made; may be effected through the mutual consent of the parties, by their conduct, or by court decree
Promissory estoppel
a doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding if justice will be better served by the enforcement of the promise
contractual capacity
the threshold mental capacity required by the law for a party who enters into a contract to be bound by that contract
covenant not to compete
a contractual promise of one party to refrain from competing with another party for a certain geographical area
unconscionable
a contract or clause that is void on the basis of public policy because on party, as a result of his or her disproportionate bargaining power, is forced to accept terms that are unfairly burdensome and that unfairly benefit the dominating party
exculpatory clause
a clause that releases a contractual party from liability in the event of monetary or physical injury, no matter who is at fault
defenses to enforceability
- voluntary consent
2. form
Voluntary consent elements
- fraud
- mistake
- duress
form elements
statute of frauds
statute of frauds real estate or lease
under the common law any transaction dealing with real estate or lease has to be in writing.
elements of a legally enforceable contract
- agreement
- consideration
- conrtractual capacity
- legality
agreement consists of
- offer
- acceptance
types of contract performance
- executed contract
- executory contract
executed contract notes
a contract that has been fully performed by both parties
executory contract notes
a contract that has not been fully performed by either side
contract law
is designed to provide stability and predictability, as well as certainty for both buyers and sellers in the marketplace
contract law intent
is determined by what is called the objective theory of contracts, not by the personal or objective intent, or belief of a party.
The mailbox rule
acceptance takes effect upon dispatch if the mail is an expressly or implied authorized means of communication of acceptance
UETA
Email acceptance effective when sent
Termination of offers types
termination by revocation termination by rejection Counteroffer termination by expiration termination by operation of law
option contract
is an irrevocable offer
termination by revocation
effective when the offeree receives it
termination by rejection
if an offeree rejects an offer, the rejection immediately terminates the offer
counter offer
is a rejection; it terminates the offer
termination by expiration
when an offer specifies a time limit for acceptance, that period if binding
termination by expiration if no time limit
the offeree has a reasonable period in which to accept
acceptance notes
the offeree must say or do something to accept
acceptance in a bilateral contract
the offeree generally must accept by making a promise
acceptance in a unilateral contract
the offeree must accept by performing
acceptance of ambiguous offer
the offeree may accept by either a promise or performance
Mirror image rule
(common law) requires that acceptance can be on precisely the same terms as the offer
offer components
- serious, objective intention by offeror
- offer must be reasonably certain
- offer must be communicated
offer; serious, objective intention by offeror
- reasonable person standard
- not an opinion
- not a statement of future intent
- not negotiations
- not an agreement to agree
offer; offer must be reasonably certain
definiteness
contract
is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty.
primary source of law for contract law
is state common law (exception for UCC)
valid contract
is one in which all of the legal elements of a contract are present. A valid contract is enforceable at law
unenforceable contracts
are contracts that were once valid but, because of subsequent illegality, are not enforceable by the courts
voidable contract
is legally valid but may be rejected by one of the parties without incurring legal liability
voidable contract example
contract with a minor
void contract
is a contract whose subject matter is illegal. No contract at all
void contract example
a contract to sell illegal drugs
Bilateral Contracts
two promises, a promise for a promise. most contracts are bilateral
bilateral contracts example
i promise to pay you $25 to mow my law; you promise to mow my lawn
bilateral contract promise broken
if promises are broken, there may be responsibility if losses are inccured
unilateral contracts
only one promise. accept the offer only by completing the contract performance.
unilateral contract example
i promise to pay $25 to anyone who mows my lawn; you go out and mow the lawn.
unilateral contract performance completed
once performance has been made, the other party’s is obligated to carryout his/her part of the deal- “full performance is, however generally required.
unilateral contract revocation
revocation until substantial performance
types of contracts list
- bilateral v unilater
- formal v informal
- express v implied-in-fact
- executory v executed
bilateral v unilateral
an exchange of mutual promises and acceptance through performance
express v implied-in-fact
direct and indirect statements of promises
executory v executed
degree of performance
bilateral v unilateral case
schwarzock v remote technologies, inc
schwarzock v remote technologies, inc
less then 3 months schwarzock is already fired. An offer of employement is an unilaterial contract. Employement contract is not a unilaterial contract. Plantiff didn’t win because when he started working his employement contract replaced his contract offer of employement. Continuing employement is the new consideration.
Product liability based on negligence
breach of duty of care
breach of duty of care list
- negligent design
- negligent manufacture
- failure to warn
negligent design
a product free of unreasonable risks
negligent manufacture
failure to inspect, carless assembly ect
failure to warn
about the damages of normal use and also foreseeable misuse”- no duty however “to warn about obvious dangers
assumptions made regarding strict liability
consumers should be protected from unsafe products; manufacturers and distributors should not escape liability for faulty products. Manufacturers, sellers and lessors are in a better position to bear the costs associated with injuries caused by their products, which they can then pass on to all consumers.
product liability modern
those who make, sell, or lease goods can be held liable for physical harm or property damage that those goods cause to a consumer or bystander
product liability old days
privity of contract and caveat emptor- buyer beware
mistake
a mistake is a belief that is not in accord with the facts
types of mistake
- mutual mistake
2. unilateral
mutual mistake
if both parties have the same mistaken belief, the mistake is said to be mutual
unilateral mistake
by contrast, if one party has the mistaken belief, the mistake is unilateral
existing fact
the doctrines applicable to mistake apply only to a mistaken belief about an existing fact, not an erroneous belief about what will happen in the future
express contracts
direct statement by parties of the promises made. May be oral or written. all important terms are expressly state between the parties.
implied-in-fact contracts
actions and circumstances infer and define the terms of the contract. may be words, conduct or gestures. these contracts are implied at law
intoxication/ mentally imcompetent
-a person with mental illness or defect, who is unable to understand the nature and consequences of a transaction
intoxicated contract
when an intoxicated person (who lacks contractual capacity) makes a contract, it is voidable
mentally incompetant contract
if a person has been adjudged mentally imcompetent by a court of law and a guardian has been apointed, any contract made is void
restitution
a mentally infirm party who seeks to void a contract make restitution
Contractual capacity
capacity is the legal ability to enter into a contract
contractual capacity voidable contract
a voidable contract may be canceled by the party to the contract who lacks capacity
contract capacity in some cases
lack of capacity creates a void contract
legality
a contract must be formed for a legal purpose; a contract that requires one or both parties to violate the law is illegal and thus void and legally unenforceable
contracts contrary to leagality statute
- usury
- gambling
- licesnsing statutes
