Contracts Flashcards
a communication will not be considered to be definite and certain enough to be an offer if it is for the sale of goods and is missing…
a quantity term
a revocation is generally effective when…
received
an acceptance is generally effective when…
dispatched
an ordinary option K requires that the offeree gives consideration, whereas a merchant’s firm offer…
does not
an offer for a bilateral K can be accepted by
a promise or the beginning of performance
CL mirror image rule
requires an absolute and unequivocal acceptance of each and every term of the offer
a vague term in a K can be cured by…
part performance
an offer for a bilateral K can be accepted by
a promise to perform or the beginning of performance
an ad, catalog, or circular letter, listing the price at which a seller is willing to sell a product, would typically be construed as
an invitation for an offer
nonfulfillment of a condition will excuse a duty to perform that was…
subject to the condition
constructive condition
condition implied by a court even though it is not explicitly stated in the K
repudiation must be…
unequivocal
prospective failure to perform involves
mere doubts… allows the innocent party to suspend performance until she receives adequate assurances
elements for frustration
i) some supervening act or event leading to the frustration
ii) at the time of entering into the K, the parties did not reasonably foresee the act or event occurring
iii) the purpose of the K has been completely or almost completely destroyed by this act or event
iv) the purpose of the K was realized by both parties at the time of making the K
frustration will exist if
the purpose of the K has become valueless by virtue of some supervening event not the fault of the party seeking discharge
once an offeree of a unilateral K has fully performed, the K can be rescinded, but only if the rescission promise is supported by
i) an offer of new consideration by the nonperforming party
ii) elements of promissory estoppel OR
iii) manifestation of an intent by the offeree to make a gift of the obligation owed to her
if an accord agreement is breached by the debtor, the creditor may…
sue either on the original K or for breach of the accord agreement
when should the nonbreaching party treat an otherwise minor breach as a material breach
when the breach is coupled with an anticipatory repudiation
in an installment K situation, the K can be cancelled by the buyer if…
there is a nonconformity in a shipment that substantially impairs the value of the K and cannot be cured
specific performance is not available as a remedy for a breach of K to…
provide services
either a nonbreaching buyer or nonbreaching seller may recover incidental damages, but only a buyer may recover…
consequential damages
in a suit for restitution, the measure of recovery is…
the value of the benefit conferred
warranty of title
unless properly disclaimed, included in evert K for the sale of goods
- seller of goods warrants that the title transferred is good, rightful, and there are no liens or encumbrances against the title of which the buyer is unaware at the time of the K
in a K between merchants for the sale of goods, what is the result when the acceptance does not match the terms of the offer
additional terms that do not materially alter the original terms of the offer will be included in the K, but different terms may be knocked out of the K
in a shipment K, when goods are destroyed en route from the seller to the buyer, the risk of loss is borne by
the buyer because the risk of loss passed to the buyer when the goods were delivered to the carrier
mutual mistake can be a defense to the formation of a K if…
the mistake concerns a basic assumption on which the K is made
the SOF requires…
one or more writings that reflect the material terms of the K, signed by the person sought to be held liable
when 2 merchants enter into an oral K for the sale of goods and one party sends to the other a signed, written confirmation of the agreement it…
binds both the sender and recipient, provided the recipient had reason to know of its contents and did not object in writing within 10 days of reciept
a K entered into between an infant and an adult is…
voidable by the infant but binding on the adult
promissory estoppel
allows a promise, unenforceable due to a lack of consideration, to be enforced if necessary to prevent injustice
the rights of a 3rd party ben vest when he…
- manifests assent to the promise
- brings suit to enforce the promise OR
- materially changes position in justifiable reliance on the promise
an intended ben must be…
identifiable at the time performance is due
if the promisor fails to perform under a K, a donee 3rd party ben whose rights have vested can sue…
the promisor
effective assignment
adequate description of the right being assigned and present words of assignment
under Art. 2, if the buyer has a right to reject the goods, risk of loss does not pass to the buyer until…
the defects are cured or the buyer accepts the goods despite the defects
if the seller is a merchant, the risk of loss does not pass to buyer until…
buyer takes physical possession of the goods
regarding a sale of goods K, if the price is left open to be agreed upon later and the parties fail to agree, the price is…
a reasonable price at the time of delivery
an implied warranty of merchantability may be disclaimed either by…
specific disclaimer mentioning merchantability or by general language such as “as is”
implied warranty of merchantability
- fungible goods will be of fair average quality within the description
- warranty that the goods will be of even kind, quality, and quantity within each unit and among all units involved
- warranty that the goods will pass without objection in the trade under the K description
under a shipment K, the risk of loss passes from the seller to the buyer when the goods are…
delivered to the trucking company for transport
FOB K
specifies a location after FOB and the risk passes on delivery to the specified location
destination K
requires the seller to deliver the goods at a particular destination, and the risk of loss passes to the buyer when the goods are tendered to the buyer at the destination
