Contracts Flashcards
Advertisements are not offers except:
where the advertisement (1) contains a promise (2) certain and definite terms and (3) offeree is clearly identified
(Lefkowitz coats and carbolic smoke ball inrtsuctions)
Common Law Land contracts must include
price
description of land w particularity
Employment contract must include
duration of employment (otherwise deemed “At-will” and terminable by either party)
UCC contract must include
quantity terms unless a requirement or output K
Offer made to public
can only be revoked by publication through comparable means
indirect revocation
(1) offeree receives correct info (2) from reliable source
OR (3) offeror’s acts indicating revocation
Detrimental Reliance occurs when
(1) offeror reasonably expects offeree would detrimentally rely on the offer and (2) the offeree does rely
UCC Firm Offers
(1) merchant promises
(2) in a signed writing
(3) to keep the offer open for time stated/reasonable time
** enforceable for up to 3 months unless there is consideration, then it’s an option K**
UCC offer to buy goods may be accepted by:
(1) promise to ship
OR
(2) shipment of conforming or nonconforming goods
Offeree’s additional terms not part of K unless
(1) both are merchants
(2) it’s not a material term
** i.e. likely to cause hardship or surprise: disclaimers are always material** industry custom never a material term
(3) AND offeror doesn’t object in reasonable time
Non merchants (if anyone’s not a merchant) - additional different terms
proposals to modify not automatically part of the agreement unless the offeror expressly agrees
Promisory Estoppel
only if there is NO consideration
(1) promise
(2) reasoanbly foreseeable detrimental reliacne
Economic Duress if
(1) party threatens to commit wrongful act that would seriously threaten other person’s proprety or finances
AND
(2) there are no adequate means available to prevent the threatened loss
Undue influence if
undue susceptibility to pressure by one party
AND
excessive pressure by the other party
typically caregiver or confidential relationship etc
Unconsionability if
unfair surprise
AND
opporessive term (tested when K is formed, not in hindsight)
if the only purpose of the k is illegal then
K is voidable by party who
(1) was unaware of the purpose OR
(2) aware but didn’t facilitate the purpose AND doesn’t involve serious moral turpitide
Custom Goods
substantial beginning on custom goods is enough to show that (1) items are made to order (2) these are custom made goods (3) that the seller cannot resell to anybody else
Merchant Confirmatory Memo
Ks between merchants are sufficient under SOF to bind if (1)reaso to know of confirmations contents and (2) they do ot object to in in writing within 10 days of receipt
SOF Adequate writing if
(1) reasoanbly identifies the subject matter of K
(2) indicates a K has been made between parties
AND
(3) states with reasoanble certainty what the essential terms are
UCC Gap Filler: price
if nothing has been said re price and price is left open by parties and they fail to agree
OR
price is to be fixed in terms of some other standard
THEN
reasonable price at time of delivery
UCC Gap Filler: Place
Seller’s place of business OR otherwise seller’s home
UCC Gap Filler: Time
reasonable shipment and payment is due at the time and place at which buyer is to receive the goods
UCC Gap Filler: Assortment
if buyer doesn’t exercise assortmetn option then other party is excused from resulting delay and may (1) proceed reaonably or (2) treat it as a breach
UCC Perfect Tender Rule
if the goods don’t conform, the buyer may (1) reject the shipment or (2) accept shipment and reject in part
can recover for value of the goods as accepted and value as expected
Implied Warranty of Merchantability
merchant - fit for ordinary foreseeable purpose
Buyer accepts the goods if
they indicate goods conform to K
indicate they’ll keep
fail to reject
fail to notify
act inconsistent with seller’s ownership (e.g., tailoring a dress)
Buyer may revoke acceptance under UCC if
the goods have a defect which (1) substantially impairs their value AND was accepted on belief that the defect would be cured and it hasn’t been OR it was accepted bc of the difficulty of discovering the defect/seller assurance that the goods conformed
seller has no right to cure beyond original K time except
if buyer rejects tender of nonconforming goods that the seller thought acceptable, then seller has further time to cure (upon reasonable notification by the buyer)
Personal Service Ks
no specific performance, but can enjoin previous employees from working for competitors
Covenant not to compete
specific performance allowed if the (1) services to be performed are unique ad (2) the covenant is reasoanble
(reasonably necessary to protect legit interests of person benefitted, reasoanble geographic scope and duration, no harm to public)
Prepayment
if buyer made at least part of payment and seller hasn’t delivered, the buyer may replevy goods if (1) seller insolvet within 10 days after receiving first payment OR (2) goods purchased for personal family or household purposes. BUYER TENDER UNPAID PRION TO SELLER
Liquidated Damage Clause
upheld only if (1) damages difficult to estimate at K formation AND (2) amount is reaoanble.
better if graduated clause and not an invariable lump sum
Breach of Employment K
breach by employEE: recover cost of replacing
breach by employER: full K price regardless of when breach occurs
seller cannot bring action for full K under UCC breach unless
(1) the goods cannot be resold at a reasoanble rprice or (2) they were damages or lost when risk had been transferred to the bueyr
Third Party Beneficiary rights
K can be modified or rescined until the beneficiary rights have vested. rights vest when she (1) learns of the K ad (2) relies upon it
Assignments
all K rights may be assigned except it (1) assignment substantially changes obligor’s duty or risk (2) asignment of future rights to arise from future Ks and (3) assignments prohibited by law
Valid Assignment if:
(1) assignor manifested intent to immediately ad completely transfer their rights
(2) right is adequately described
Gift Assignments
easily revoked, the last gratuitous assignee wins the assignment
Assignment with Consideration
the first one wins and beats all previous gift assignments.
Assignment with Consideration: if the second asignee has paid value and taken without notice of the first, then…
(1) subsequent assignee gets first judgement
(2) gets first paymet of claim from obligor
(3) delivery of token chosen
(4) subsequent aswsignee party to a novation releasing and assignor
(5) can proceed against first assignee on estoppel theory
Delegation
transfer of duty
Delegation Transfer Limitations
can delegate all duties except (1) duties involving personal judgement and skill
(2) delegation would change the obligee’s expectation
(3) a special trust
and
(4) contractual restriction
can otherwise delegate WITHOUT CONSENT
Delegation Duties
never off the hook - delegating party always remains liable
Novation
mutual agreement o changne who they accept to do the job, gets you off the hook unlike delegation
Delegations for Consideration
create intended third party beneficiary obligtaions
Misunderstanding/Ambiguous K
neither party aware: no K unless both parties intend same meaning
both aprties aware: no K unless both parties intend same meaning
Oe party aware: binding K basewd on what the ignorant party reasonably believed to be the meaning of the ambiguous terms
Mutual Mistake
if both parties enter into K mistaken about existing facts then K voidable if:
(1) mistake concerns basic assumptionon which K is amde
(2) mistake has material effect on agreed upon exchange
(3) party seeking did not assume risk of mistake
Unilateral Mistake
if one party is mistaken about facts, the mistake won’t prevent formation (assumptino of risk)
if nonmistaken party knew or had reason to know of the mistake, then K is voidable by mistaken part
Mistake by intermediary
the messsage “as transmitted “is operative unless other party knew or should’ve known of the mistake
Material misrepresentation
K voidable by innocent party if they justifiably relied on the misrepresentation AND it was material
Fraud
if party induces another to K by asserting info they know is unture then K is voidable by innocent party if they justifiably relied on it
Material if
(material misrepresentation)
it would induce a reaoanble person to agree or D has reaon to know it would likley convince this particular party
