Contracts Final Flashcards
contract (RST (2nd))
a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty
contracts are governed by
common law because there is no single, unified law of contracts
what makes an agreement into a contract
a reciprocal agreement in which each party gives up something to get something else from the other
essential elements to a contract
- a mutual exchange relationship
- agreement between 2 or mroe parties
- at least 1 promise
- either:
-satisfy the formal requirements of law and not be contrary to equity; or
-not satisfy the requirements of law by being required by equity
theroretical approaches to contract law
classicalism (laissez-faire approach): rigid; limited discretion of judge; little attention to fairness
legal realism (neoclassical): realistic study of law in action; unerlies most contract opinions today
all contract are promises,
but not all promises are contracts
to have a contract you need
offer, acceptance, and consideration
specific performance
court ordering the defendant to perform what they promised
expectation damages
give the victim of the breach the benefit of the bargain by compensating them for the economic gain that they lost as a result of the breach of contract
article 1 of the UCC
sets out the general provisions that apply to all transactions covered by UCC, including sale of goods
article 2 of the UCC
transaction of the sale of goods
goods
all things (specially manufcatured goods) which are movable at the time of the contract for sale
transaction
act of conducting any business between 2 or more persons
real estate or services deal with
common law
what happens when a provision is inconsistent with a principle of common law?
Article 2 prevails
intangible property
can qualify as goods (example: a movie on a DVD)
Pain Center- even though a website can be copied on a tangible goods (ex. hard drive), what is weighing the transaction is software, which is not considered a good. So, Article 2 does not apply. We use common law
hybrid transaction/ mixed contract
contract involving both a sale of goods and service
-predominant test is used to decide whether we apply Article 2 or not
predominant test (do not need to satisfy all)
-language of the contract
-nature of the business of supplier
-reason the parties entered contract
-respective amounts charged for goods
example:
buying a painting in an art show- goods or service? (skill=service)
-sold in mass= good
-specific for one= service
merchants
a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction
2 types of merchants
-general (broad): a person in the business
-particular (narrow): sells goods of that kind
for a contract to be formed,
-parties must intend to enter a contract and the terms of the contract are those on which they have mutually agreed
when a court seeks to ascertain the intent of the parties
it does NOT focus on what each party may have thought or believe he was agreeing to but on the perception conveyed by words or actions
an agreement requires communication
the intent to enter a contract must be signaled by each of the parties through words or actions that are observed and given meaning
modern contract law
an agreement made in one form, between parties capable of contracting, for a legal object or purpose, and upon sufficient consideration. It must be an agreement or mutual bargain, voluntary, and without force of fraud; and therefore it includes an assent given bona fide. The notion of assent includes a physical and moral power of assenting, and the deliberate and free use of the power
