Contracts Flashcards
if the facts involve a transaction in goods– do you apply common law or the UCC?
UCC
only applies to a transaction in goods
without a transaction in goods the common law of contracts governs
what are two examples of topics that are covered by common law?
real estate and services
ESSAY:
because this is a services contract, the common law of contracts governs instead of the UCC
what is a transaction in goods?
a sale of tangible personal property
what is a merchant
one who regularly deals in goods of the kind sold or who otherwise by their profession hold themselves out as having special knowledge or skills as to the practices or goods involved
formation of a contract consists of…
offer
mutual assent
consideration
REMEMBER: ALWAYS STATE absent of any defense to enforcement
bilateral contract
formed by an exchange of promises
unilateral contract
formed by a promise in exchange for performance
what is mutual assent?
whether there was an offer and acceptance of that offer
what is an offer?
when there is intent to enter a contract through a promise or undertaking
terms must be:
definite and certain
communicated to the offeree
giving the offeree actual knowledge
creates a power of acceptance in the person to whom the offer was made
can not be accepted if it wad terminated
termination of the offer by the offeror…
revocation
termination of the offer by the offeree..
rejection
counteroffer
what is a counter offer?
terminates the offer and creates a new offer
REMEMBER: mere bargaining is not a counter offer
conditional acceptance terminates the offer
LOOK FOR: “provided” or “so long as”
mirror image rule
if the acceptance does not contain the exact same terms as the offer, then the new terms are treated like a revocation of the original offer and a counteroffer under common law
under the UCC is a change of terms a counter offer?
NO and can constitute acceptance unless stated otherwise in one of the forms.
EX: when a buyer places an order and the seller’s acceptance form contains different terms or the terms are not addresses in the order at all.
battle of the forms
unless acceptance is expressly made conditional to the additional terms the nonconforming acceptance creates a valid and binding contract
battle of the forms:
if the buyer is a consumer….
then the additional terms are treated as proposals.
battle of the forms
if the buyer is a merchant….
then the additional terms become part of the contract unless the offer expressly limits acceptance to its terms
the offeror objects within a reasonable time
or
the additional terms would materially alter the contract.
battle of the form…
knockout rule
if the terms are different, then the knockout rule applies and omits the offeror’s original provision and the offeree’s differing provision from the resulting contract
can the offeror control the method of acceptance?
yes!
both in common law and UCC
by stating the conditions
if the offer is silent as to the method of acceptance then…..
the offeree can indicate acceptance by starting performance
in a unilateral contract– the offeree must complete performance
when is acceptance by letter valid?
upon dispatch
AKA when placed in the mail
what happens when the offeree changes their mind and after mailing the acceptance letter mails another letter?
What letter controls?
whichever letter is received first is what controls
what is consideration
a bargained for exchange
REMEMBER: the promise must induce the detriment and the detriment must induce the promise
does an act of restraint count as consideration?
Yes, if it gives the offeror a benefit
does a pre-existing contractual or statutory duty count as consideration under common law?
NOT for a new promise
New consideration is always required