Contracts Flashcards
Can advertisements be considered an offer?
Typically no, they invite offers
EXCEPT when there is a promise of certain/definite terms that clearly identifies the offeree
Are the essential terms of an offer certain & definite?
ID offeree
Requested act
What terms of a real estate K offer are required?
Land description & price
What terms of an employment or other services K offer are required?
Duration, unless an @ will empee
Nature of services if an other service
What terms of an offer for a sale of goods are required?
Quantity
Unless
Requirements/output K
What if an offer is missing terms?
Price: usual price for that provider OR normal price for that area
Time: w/n a reasonable time
Missing terms in an offer do not prevent a K from being formed if the parties intended to make K & there is a reasonably certain basis for providing a remedy
How can an offeror indirectly revoke the offer?
Offeree receives correct info
From a reliable source
Of offeror’s act indicating to a reasonable person that they no longer wish to make an offer
When does an offer revocation become effective?
Receipt
When can an offer not be revoked?
Option K: Promise to keep open + consideration
UCC Firm Offer: Merchant’s written promise to keep open
Detrimental / foreseeable reliance
Beginning performance in an unilateral K
How may an offeree handle an offer?
Accept
Allow an offer to lapse
Expressly reject
Counteroffer
When does a rejection become effective?
Upon receipt
What if terms of acceptance don’t match offer?
Common law says this is a new offer bc new terms = rejection
UCC allows a change of terms as part of acceptance unless expressly conditional on additional or different terms
When else does an offer terminate?
Death, unless it is one that cannot be terminated
Destruction of proposed K’s subject matter
Supervening illegality
How does one accept an offer for an unilateral K?
Completing performance
How does one accept an offer for a bilateral K?
Beginning performance OR accepting
When is an acceptance effective?
Mailbox rule: upon dispatch
Exceptions to mailbox rule
Offer stipulates effective upon receipt
Option K acceptance is effective upon receipt
If o/ee first rejects then accepts, whichever arrives first is effective
Consideration
Bargained-for exchange b/w the parties
Promise must induce the detriment and detriment must induce the promise
Consideration legal detriment
Does something not legally obligated to do
Refrains from doing something has a legal right to do
Consideration legal benefit
Forbearance / performance the promisor is not legally entitled to demand or expect
Exceptions to rule that fulfilling a pre-existing legal (K or statutory) duty is not consideration for a NEW promise
New / different consideration is promised
Promise to perform a voidable obligation
Duty owed to a third person
Honest dispute about PED
Unforeseen circumstances when a K not fully performed & there is a promise to modify
Modification K for sale of goods
Existing debts
When promissory estoppel is necessary to avoid injustice
Promisor should have expected promisee to change position in reliance on promise
Promisee did change position
Change in position to promisee’s detriment
How do we know what K says?
Hierarchy
Express Terms
Course of performance under existing K
Course of dealing ptys conduct under prior K
Trade usage: industry norms pty are aware of
How does an express warranty arise?
By affirmation of fact, promise, description, model,
or sample
Who expressly warrants goods?
Any seller
Disclaimer of an express warranty
Very difficult to disclaim
Implied Warranty of Title
title is good, transfer rightful, no liens or encumbrances
arises by sale of goods
by any seller
Disclaim by specific language or circumstances
showing seller does not claim title
Warranty of Merchantability
Goods are fit for ordinary purposes
Arise by sale of goods of the kind regularly sold by the
merchant
Only merchant may make
How to disclaim implied warranty of merchantability?
A disclaimer specifically mentioning merchantability
Written disclaimer must be conspicuous
“as is”
Examination or refusal to examine
Course of dealing / course of performance / trade usage or custom
Warranty of Fitness for Particular Purpose
fit for buyer’s particular purpose
Arises by sale of goods where seller has reason to know of particular purpose
and of buyer’s reliance on seller to choose suitable
goods
Any seller may warrant
Disclaim by: Written disclaimer must be conspicuous
“as is”
Examination or refusal to examine
Course of dealing / course of performance / trade usage or custom
