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Law > Chapter Nine > Flashcards

Chapter Nine Flashcards

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1
Q

Promise

A

An assertion that something either will or will not happen in the future

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2
Q

Promisor

A

A person who makes a promise

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3
Q

Promisee

A

A person to whom a promise is made

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4
Q

Contract

A

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

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5
Q

Objective Theory Of Contracts

A

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

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6
Q

Offeror

A

A person who makes an offer

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7
Q

Offeree

A

A person to whom an offer is made

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8
Q

Bilateral Contract

A

A type of contract that arises when a promise is given in exchange for a return promise

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9
Q

Unilateral Contract

A

A contract that results when an offer can be accepted only by the offeree’s performance

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10
Q

Formal contract

A

A contract that by law requires a specific form for its validity

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11
Q

Informal Contract

A

A contract that does not require a specific form or fomality to be valid

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12
Q

Express Contract

A

A contract in which the terms of the agreement are stated in words, oral or written

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13
Q

Implied contract

A

A contract formed in whole or in part from the conduct of the parties (as opposed to an express)

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14
Q

Executed Contract

A

a contract that has been completey performed by both parties

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15
Q

Executory contract

A

A contract that has not yet been fully performed

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16
Q

Valid Contract

A

A contract that results when the elements necessary for contract formation

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17
Q

Voidable contract

A

A contract that may be legally avoided (cancelled) at the option of one or both parties

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18
Q

unenforceable contract

A

a valid contract rendered unenforceable by some statute or law

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19
Q

void contract

A

a contract having no legal force or binding effect

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20
Q

agreement

A

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

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21
Q

Offer

A

A promise or commitment to perform or retain from performing some specified act in the future

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22
Q

Revocation

A

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

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23
Q

Counteroffer

A

an offeree’s response to an offer in which the offeree rejects the orginal offer and at the same time makes a new offer

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24
Q

mirror image rule

A

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

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25
Q

Option contract

A

a contract under which the offeror cannot revoke the offer for a stipulate time peroid

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26
Q

Acceptance

A

a voluntary act by the offeree that shows assent, or agreement, to the terms of an offer; may consist of words or conduct

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27
Q

Mailbox rule

A

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

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28
Q

e-contract

A

a contract that is formed electronically

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29
Q

Forum-selection clause

A

a provision in a contract designating the court, jurisdiction, or tirbunal that will decide any disputes arising under the contract

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30
Q

click-on-agreement

A

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”

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31
Q

Shrink-Wrap agreement

A

an agreement whose terms are expressed in a document located inside a box in which goods (usually software) are packed

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32
Q

Browse-wrap term

A

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

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33
Q

E-signature

A

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

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34
Q

cybernotary

A

a legally recognized authority that can certify the validity of digital signatures

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35
Q

partnering agreement

A

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

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36
Q

Record

A

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

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37
Q

Consideration

A

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

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38
Q

rescission

A

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

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39
Q

Promissory estoppel

A

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

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40
Q

contractual capacity

A

the threshold mental capacity required by the law for a party who enters into a contract to be bound by that contract

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41
Q

covenant not to compete

A

a contractual promise of one party to refrain from competing with another party for a certain geographical area

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42
Q

unconscionable

A

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

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43
Q

exculpatory clause

A

a clause that releases a contractual party from liability in the event of monetary or physical injury, no matter who is at fault

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44
Q

defenses to enforceability

A
  1. voluntary consent

2. form

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45
Q

Voluntary consent elements

A
  • fraud
  • mistake
  • duress
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46
Q

form elements

A

statute of frauds

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47
Q

statute of frauds real estate or lease

A

under the common law any transaction dealing with real estate or lease has to be in writing.

48
Q

elements of a legally enforceable contract

A
  • agreement
  • consideration
  • conrtractual capacity
  • legality
49
Q

agreement consists of

A
  • offer

- acceptance

50
Q

types of contract performance

A
  • executed contract

- executory contract

51
Q

executed contract notes

A

a contract that has been fully performed by both parties

52
Q

executory contract notes

A

a contract that has not been fully performed by either side

53
Q

contract law

A

is designed to provide stability and predictability, as well as certainty for both buyers and sellers in the marketplace

54
Q

contract law intent

A

is determined by what is called the objective theory of contracts, not by the personal or objective intent, or belief of a party.

55
Q

The mailbox rule

A

acceptance takes effect upon dispatch if the mail is an expressly or implied authorized means of communication of acceptance

56
Q

UETA

A

Email acceptance effective when sent

57
Q

Termination of offers types

A 
termination by revocation
termination by rejection
Counteroffer
termination by expiration
termination by operation of law
58
Q

option contract

A

is an irrevocable offer

59
Q

termination by revocation

A

effective when the offeree receives it

60
Q

termination by rejection

A

if an offeree rejects an offer, the rejection immediately terminates the offer

61
Q

counter offer

A

is a rejection; it terminates the offer

62
Q

termination by expiration

A

when an offer specifies a time limit for acceptance, that period if binding

63
Q

termination by expiration if no time limit

A

the offeree has a reasonable period in which to accept

64
Q

acceptance notes

A

the offeree must say or do something to accept

65
Q

acceptance in a bilateral contract

A

the offeree generally must accept by making a promise

66
Q

acceptance in a unilateral contract

A

the offeree must accept by performing

67
Q

acceptance of ambiguous offer

A

the offeree may accept by either a promise or performance

68
Q

Mirror image rule

A

(common law) requires that acceptance can be on precisely the same terms as the offer

69
Q

offer components

A
  1. serious, objective intention by offeror
  2. offer must be reasonably certain
  3. offer must be communicated
70
Q

offer; serious, objective intention by offeror

A
  • reasonable person standard
  • not an opinion
  • not a statement of future intent
  • not negotiations
  • not an agreement to agree
71
Q

offer; offer must be reasonably certain

A

definiteness

72
Q

contract

A

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.

73
Q

primary source of law for contract law

A

is state common law (exception for UCC)

74
Q

valid contract

A

is one in which all of the legal elements of a contract are present. A valid contract is enforceable at law

75
Q

unenforceable contracts

A

are contracts that were once valid but, because of subsequent illegality, are not enforceable by the courts

76
Q

voidable contract

A

is legally valid but may be rejected by one of the parties without incurring legal liability

77
Q

voidable contract example

A

contract with a minor

78
Q

void contract

A

is a contract whose subject matter is illegal. No contract at all

79
Q

void contract example

A

a contract to sell illegal drugs

80
Q

Bilateral Contracts

A

two promises, a promise for a promise. most contracts are bilateral

81
Q

bilateral contracts example

A

i promise to pay you $25 to mow my law; you promise to mow my lawn

82
Q

bilateral contract promise broken

A

if promises are broken, there may be responsibility if losses are inccured

83
Q

unilateral contracts

A

only one promise. accept the offer only by completing the contract performance.

84
Q

unilateral contract example

A

i promise to pay $25 to anyone who mows my lawn; you go out and mow the lawn.

85
Q

unilateral contract performance completed

A

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.

86
Q

unilateral contract revocation

A

revocation until substantial performance

87
Q

types of contracts list

A
  • bilateral v unilater
  • formal v informal
  • express v implied-in-fact
  • executory v executed
88
Q

bilateral v unilateral

A

an exchange of mutual promises and acceptance through performance

89
Q

express v implied-in-fact

A

direct and indirect statements of promises

90
Q

executory v executed

A

degree of performance

91
Q

bilateral v unilateral case

A

schwarzock v remote technologies, inc

92
Q

schwarzock v remote technologies, inc

A

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.

93
Q

Product liability based on negligence

A

breach of duty of care

94
Q

breach of duty of care list

A
  • negligent design
  • negligent manufacture
  • failure to warn
95
Q

negligent design

A

a product free of unreasonable risks

96
Q

negligent manufacture

A

failure to inspect, carless assembly ect

97
Q

failure to warn

A

about the damages of normal use and also foreseeable misuse”- no duty however “to warn about obvious dangers

98
Q

assumptions made regarding strict liability

A

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.

99
Q

product liability modern

A

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

100
Q

product liability old days

A

privity of contract and caveat emptor- buyer beware

101
Q

mistake

A

a mistake is a belief that is not in accord with the facts

102
Q

types of mistake

A
  1. mutual mistake

2. unilateral

103
Q

mutual mistake

A

if both parties have the same mistaken belief, the mistake is said to be mutual

104
Q

unilateral mistake

A

by contrast, if one party has the mistaken belief, the mistake is unilateral

105
Q

existing fact

A

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

106
Q

express contracts

A

direct statement by parties of the promises made. May be oral or written. all important terms are expressly state between the parties.

107
Q

implied-in-fact contracts

A

actions and circumstances infer and define the terms of the contract. may be words, conduct or gestures. these contracts are implied at law

108
Q

intoxication/ mentally imcompetent

A

-a person with mental illness or defect, who is unable to understand the nature and consequences of a transaction

109
Q

intoxicated contract

A

when an intoxicated person (who lacks contractual capacity) makes a contract, it is voidable

110
Q

mentally incompetant contract

A

if a person has been adjudged mentally imcompetent by a court of law and a guardian has been apointed, any contract made is void

111
Q

restitution

A

a mentally infirm party who seeks to void a contract make restitution

112
Q

Contractual capacity

A

capacity is the legal ability to enter into a contract

113
Q

contractual capacity voidable contract

A

a voidable contract may be canceled by the party to the contract who lacks capacity

114
Q

contract capacity in some cases

A

lack of capacity creates a void contract

115
Q

legality

A

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

116
Q

contracts contrary to leagality statute

A
  • usury
  • gambling
  • licesnsing statutes

Law (13 decks)

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