Chapters 11 and 12 terms and holdings

Question 1

executory contract

Answer 1

A contract that has not yet been fully performed

Question 2

executed contract

Answer 2

a contract that has been fully performed

Question 3

contract

Answer 3

An agreement that creates a legal relationship and obligations between two or more parties

Question 4

elements of an offer

Answer 4

1. Intent to make an offer on the part of the offerer
2. definite terms
3. Communication to the offeree

Question 5

offerer

Answer 5

the party making the offer

Question 6

offeree

Answer 6

party accepting the offer

Question 7

elements of acceptance

Answer 7

1. Communication to the offerer

2. Acceptance of the terms of the offer

Question 8

bilateral contract

Answer 8

A contract accepted by a return promise. It is an exchange of promises, supported by consideration

Question 9

unilateral contract

Answer 9

A contract in which acceptance in accomplished by performance
ex: offer of a reward is accepted by performing the reward request

Question 10

mirror image rule

Answer 10

A valid acceptance requires that the offeree agree to the specific terms of the offer

Question 11

consideration

Answer 11

A requirement in classical contract formation that consists of an exchange of something of value, although this may in some cases be largely symbolic

Question 12

fraud

Answer 12

a contract induced by intentionally false misrepresentation; such a contract is voidable

Question 13

misrepresentation

Answer 13

A false representation; may be innocent or intentional. A contract based on an innocent misrepresentation is still a voidable by the person to whom the false representation was made

Question 14

rescind

Answer 14

to annul or cancel a contract, putting the parties back in the position they were in before, as if no contract had been made

Question 15

rescission

Answer 15

Aims at destroying the contract and it’s obligations, thereby putting the parties back in the positions they occupied prior to making the agreement

Question 16

voidable contract

Answer 16

describes a contract that the innocent party (the other party having contracted wrongfully in certain recognized ways) may avoid by returning the parties to their conditions prior to the agreement.

Question 17

duress

Answer 17

threats of harm made to induce agreement by one party to a contract

Question 18

undue influence

Answer 18

relentless pressure, especially from one in a confidential relationship, to induce a party to agree to a contract

Question 19

mutual mistake of fact

Answer 19

In contract formation, one or both parties believe some essential fact about the transaction to be other than really is; makes the contract voidable

Question 20

lack of contractual capacity

Answer 20

Lack of capacity may be due to lack of legal competence based on status (minor), lack of mental capacity to form contracts, or temporary incapacitation (intoxication)

Question 21

ratify

Answer 21

to approve, as when one suffering a disability approves a contract after the disability has terminated; for example, a minor reaches age of majority and agrees to a contact made when he or she was still a minor.

Question 22

void contract

Answer 22

Contract for an illegal purpose; in some states a person legally insane at time of making contract; some forms of mistake may make a contact void

Question 23

voidable contract

Answer 23

Lack of capacity, duress, misrepresentation, undue influence, mutual mistake

Question 24

unenforceable contract

Answer 24

A contract that conflicts with public policy or a legal requirement (e.g. an oral contract required by the Statute of Frauds to be in writing) may not be enforced

Question 25

statute of frauds

Answer 25

An ancient doctrine requiring that certain contracts be in writing and signed

Question 26

privity of contract

Answer 26

The relationship between two parties to a contract. Originally, this was a bar to a suit brought by a consumer against a manufacturer when the consumer bought through a dealer and not directly from the manufacturer. Modern product liability law does away with this impediment.

Question 27

equitable remedy

Answer 27

A special remedy, such as an injunction or specific performance, not available at common law.

Question 28

reformation

Answer 28

Aims at correcting a contract to reflect the actual intention of the parties

Question 29

specific performance

Answer 29

an equitable remedy that asks the court to order a party to a contract to perform the terms of the contract

Question 30

injunctive relief

Answer 30

sometimes available to order someone not to do something that is prohibited by a contract (to prevent someone from building a carport in a development where deed restrictions require garages and prohibit carports) - prohibiting a type of action

Question 31

quasi-contract

Answer 31

Concept arising from the theory that a “contract” is created on the basis of moral obligation, called unjust enrichment, in which one party receives a benefit to the detriment of another, that begs for restitution; not an actual contract

Question 32

contract implied in law

Answer 32

a contract that can be inferred by the conduct of the parties in the absence of a verbal or express contract

Question 33

unjust enrichment

Answer 33

An equitable principle asserting that one receiving a benefit at another’s loss owes restitution to the other

Question 34

restitution

Answer 34

In contract law, usually the amount that returns the plaintiff back to his or her precontact financial position

Question 35

promissory estoppel

Answer 35

An equitable principle that enforces a promise in the absence of a completed contract. When a person makes a promise to another to induce that other to act to his detriment and that other does so act in reliance on the promise, the court may prevent (estop) the first person from denying or negating the promise

Question 36

condominium

Answer 36

A form of ownership in real property where owners typically share ownership in common areas, such as the land, sidewalks, swimming pool, and so on, but have individual rights in a building, as if each owner owned an apartment or townhouse

Question 37

due process clause

Answer 37

The fifth amendment and the fourteenth amendment to the U.S. Constitution, which guarantee that to all under established rules that do not violate fundamental principles of fairness. The process that is due before government may deprive a person of life, liberty, and property

Question 38

tenancy by the entirety

Answer 38

A form of co-ownership with a right of survivor-ship that can be held only by husband and wife.

Question 39

restrictive covenants

Answer 39

Mandates concerning what may or may not be done with, to, or on real property; take many forms, including minimum square footage for a house, lawn, and yard maintenance, ability to rent the property, and signage. Racially restrictive covenants and other discriminatory practices have long been held unconstitutional.

Question 40

easement

Answer 40

A right of use in another’s property, for example, when someone has a right-of-way to cross another’s land

Question 41

lease

Answer 41

An agreement by an owner of property (the lessor), with a renter (a tenant or lessee) whereby the lessee pays for the right of possession and use but does not acquire title

Question 42

deed

Answer 42

A document that describes a piece of real property and its transfer of title to a new owner

Question 43

chain of title

Answer 43

The history of the transfer of title to real property; comprised of a series of grantor-to-grantee transfers leading to a showing of who is the present holder of title

Question 44

fee simple absolute

Answer 44

An estate in land having the maximum rights, that is, without future interests

Question 45

life estate

Answer 45

An estate, especially in land, that lasts until someone dies.

Question 46

tenancy by the entirety

Answer 46

A form of co-ownership with a right of survivor ship that can be held only by husband and wife

Question 47

Joint tenancy

Answer 47

A form of co-ownership that includes a right of survirorship

Question 48

tenancy in common

Answer 48

A form of co-ownership that does not have a right to survivorship and that permits unequal shares.

Question 49

title

Answer 49

Formal ownership of property; has many nuances of meaning

Question 50

adverse possession

Answer 50

A means of acquiring title by occupying and using land for a certain length of time even though the occupier does not have title. The period at common law was twenty years, but this period has been shortened in most states by statute.

Question 51

will

Answer 51

A document through which a person directs how his or her property will be distributed after the person’s death

Question 52

trust

Answer 52

A device whereby title to property in transferred to one person, the trustee, for benefit of another, the beneficiary.

Question 53

Flexibility

Answer 53

For someone with minor children or others who cannot properly take care of their affairs, a trust can be established that provides temporarily for financial needs while preserving assets for later distribution. In short, the trust can be tailored to very special programs that would be very awkward to handle in a will

Question 54

Eminent domain

Answer 54

The power of the government to take private property for a public use, for which just compensation is required by the Constitution

Question 55

planning and zoning

Answer 55

conformity, for the growth and use of property

Question 56

Lucy v. Zehmer

Answer 56

Issue: does a contract for 50,000 for the property binding on the back of a reciept?
Holding: The complainants are entitled to have specific performance of the contact sued on. YES it is a contract

Question 57

Rose vs Elias

Answer 57

Holding : the lower court concluded that the words “love and affection” in the circumstances presented suggest adultery, and thus illegal consideration

Question 58

Hanks vs McNeil Coal Corporation

Answer 58

Issue : The legal test of Hanks’ insanity is whether “he was incapable of understanding and appreciating the extent and effect of business transactions in which he engaged”
Holding : There is no evidence of delusions or hallucinations in connection with this transaction or with his transaction of much of his other business at that time; there is no basis for holding voidable his sale here involved on the ground of his insanity

Question 59

Stambovsky vs ackley

Answer 59

issue : Plaintiff promptly commenced this action seeking rescission on the contract of sale
Holding : Supreme court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction

Question 60

white v cooke

Answer 60

issue : White filed suit for specific performance of the real-estate contract without the burden of an easement
Holding : We find that the chancellor did not abuse his discretion in denying specific and dismissing the case.

Question 61

Hoffman vs Red owl stores

Answer 61

Issue : Whether the promise necessary to sustain a cause of action for promissory estoppel must embrace all essential details of a proposed transaction between promisor and promisee so as to be the equivalent of an offer that would result in a binding contract between the parties if the promisee were to accept the same
Holding : We conclude that injustice would result here if plaintiffs were not granted some relief because of the failure of defendants

Question 62

cestui que trust

Answer 62

beneficiary