Considewation and Fowmation Flashcards
Questions to ask for considewation?
1) Who is the promisee who wants to enforce a promise?
2) What is the promise they want to enforce?
3) Did the promisee give something?
4) If so, was it a “bargained-for exchange? That is, did the promisee give them something in exchange for the promise they want to enforce and did the promisor agree to take that something in exchange for that promise?
What is the pre-existing duty rule?
where a party does what is already legally obligated to do, there is no consideration as there is no detriment.
When is a contract illusory?
A contract is illusory when a party retains the ultimate power to unilaterally change the terms of a contract. (Flemma v. Halliburton Energy Services)
When is there no consideration in a contract?
1) When there is a pre-existing legal duty to do what a party is promising to do in a contract.
2) When the contract is illusory.
3) When the party’s performance is not contemplated by the other party as a part of the deal.
What is mutual inducement?
The contract was initiated by the interest of both parties interest in getting the performance or item from the other party.
What is the universal reasonable person test?
Considering the Relevant Evidence: Just the words being interpreted
What is the socially situated reasonable person test?
Considering the relevant evidence: plus the circumstances surrounding the communication.
Example: the embry case.
What is the socially Identifying reasonable person test?
Consider the relevant evidence; Words surrounding the circumstances plus the social identity of the person hearing the words.
Example: Steelworkers case
What are the elements of a misunderstanding?
1) Parties attach materially different meanings
2) Each understanding is reasonable; and
3) Neither party knows or has reason to know the other’s meaning or both parties know or have reason to know meaning.
What is the definition of an offer?
the definition of an offer is the willingness to enter a bargain, so made to justify [a reasonable person in the position of the other party ] in understanding that their assent to that bargain is invited and will include it.
What is the reasonable person test under the offer requirement?
When a court takes in the surrounding circumstances to see if a reasonable person would believe there is an offer present given the context. (J.W. Southworth v. Joseph C. Oliver)
Factors include: Was the offer made to a specific person or indefinite group? What words were used in the communications? Were there detailed terms? Were there past conversations regarding this transaction?
What is an acceptance?
Acceptance is the offeree’s manifestation of willingness to enter into the exchange that the offeror offered. There can be no acceptance unless there is first an offer.
What is the mirror image rule?
the idea that the offeree has to agree to the exact same terms proposed in the offer; that is what it means to “agree” or to accept an offer.
What is the purpose of the mirror image rule?
The purpose of the mirror image rule is to prevent an offeree from enforcing a contract that the offeror never intended to make.
What is a bilateral contract?
A contract that is made up of promises from both parties.