Contracts Flashcards
CL and UCC application
- CL: SIR - services (personal, professional, contractual), intangibles (software, trademark, patents, copyrights, etc), real estate - UCC: goods -all things movable at time of execution of contract
CL and UCC - Distinctions
- UCC more flexible - UCC silent - apply CL - CL gaps filled by UCC by analogy (default provisions) - EXCEPT for quantity
UCC - Standard of duty for contractual parties (gral rule and merchant’s rule)
- Gral Rule: reasonableness + good faith - Merchants rule: honesty in fact + reasonable standard of fair dealing in the trade
“Mixed Contracts” - tests
1) Predominant Purposes: as in intention behind contract 2) Gravamen Test (less applied): Depending on what portion of the contract caused injuries
Merchant party - gral / who, standard of conduct
- One who deals with goods of that type regularly and that holds himself to be an expert with special knowledge and skill
- Subject to higher standards of duty: honesty in fact + reasonable standard of fair dealing in the trade
Type of contracts: Classifications (4)
1) Express/Implied: creation
2) Unilateral/Bilateral: acceptance
3) Executory/Wholly Executory: level of performance
4) Divisible
Express Contract - Gral
- Oral or written
- “Bargained for”
Implied contracts - Gral
- Because of action w/out explicit consent
- Enforceable when receipt/inspection/acceptance of goods without objection
- 2 types: In fact and In-law
Implied In fact contracts
Parties circumstantially show mutual intention
- i.e. accept doctor’s treatment even when disagreeing on the fee
Implied In Law contracts
- As quasi-contract - equitable remedy to unjust enrichment by D
- i.e.: plumber fix leaking pipe w/out owners knowledge
Bilateral Contract
- Acceptance of party to promisor offer is returned with promise to accept.
- Both parties mutually promisee/promisor
- hence breach of obligation is independently enforceable even w/o own performance (although court might create constructive condition of performance)
Unilateral Contract
- Acceptance of offer is in the form of an action (performance) - i.e. reward
- When language is vague is usually indicative of unilateral
- Enforceable only when party has complied with own obligation
Executory Contract
- Not yet full performance of duty
Wholly Executory Contract
Only promise exists but no performance yet
Divisible Contract
Capable of separation in multiple parts - each enforceable on its own
- Allow for independent interpretation to avoid total forfeiture
