deck_2929217 Flashcards
contract formed by language, oral or written
express contract
contract formed by conduct
implied-in-fact contract
not a contract, remedy to recover benefit unjustly conferred
implied-in-law contract
one promise given in exchange for performance; contract not formed until performed
unilateral contract
promise exchanged for promise; contract formed as soon as promises are exchanged
bilateral contract
duties yet to be performed under contract
executory contract
all duties have been performed under contract
executed contract
law that governs contracts involving real estate, insurance, services, and employment
common law
law that governs contracts for sale of goods
UCC
elements of a contract
1) offer and acceptance2) exchange of consideration3) lack of defenses
what is an offer?
express (oral or written) or implied (conduct)creates reasonable expectationintent, certainty, communication
what is definition of intent?
sufficient evidence for a reasonable person to assume offer was serious
what is definition of certainty?
UCC (quantity) and RISE (all terms)includes the following:1) identity of offeree and subject matter2) price to be paid3) time of performance4) quantity involved5) nature of work
communication of offer
no knowledge, no acceptance
termination of offer
offer must be accepted before it’s terminated by act of either party or by operation of law- revoke- reject- when
revocation
can be done by offeror anytime before acceptance through:- direct/indirect communication- publication- when communication receivedUNLESS:- offeree “buys” time- unilateral contract- certain written offers from merchants under UCC sales
rejection
once rejected, CANNOT be acceptedeffective when received or there’s been a lapse of reasonable time
counteroffer
rejection and an offer, but not a mere inquiry
termination by operation of law
by death or incompetency, by destruction of subject matter, by illegality
who may accept the offer?
only the person to whom the offer was made may accept
method of acceptance
any manner reasonable. unless specified
mirror image rule
requires an acceptance to mirror the offer to be effective
mailbox rule
acceptance generally effective when DISPATCHED if properly addressed; irrelevant if properly addressed acceptance is lost or delayedexception: opt-out of rule by stating acceptances must be RECEIVED (before termination) to be effective
consideration
something must be given in exchange for a promise for it to be enforceable- something of legal value- bargained for exchange
legal value
- detriment to promisee OR- benefit to promisorno monetary value required, need not flow to other party, fairness not usually required so long as it’s not unconscionable and it is arm’s length
pre-existing legal duties
promise to perform existing duty is not sufficient consideration
modification to agreement
UCC - good faith (no need to pay)RISE - give consideration/pay
gift (consideration)
no exchange, unenforceable
past or moral consideration
if already given or performed before promise was made, no consideration
detrimental reliance / promissory estoppel
when promise is detrimentally relied on by another party, can be enforced without consideration
defenses
makes contract unenforceable
fraud
MAIDS- misrepresentation of material fact- actual reliance (reasonable)- induce victim to rely- damages (liable to everyone who suffered loss, rescind contract or sue for money damages)- scienter (intent to deceive/reckless disregard for truth)
fraud in execution
party is deceived into signing something, contract becomes void
fraud in inducement
terms are materially misrepresented, contract becomes voidable
innocent misrepresentation
all elements of fraud except scienter, no punitive damages
duress
arises when party’s free will to contract is overcome by unlawful use of threat/harm, contract becomes voidcontract becomes voidable when threat is economic/social (embarrass)
undue influence
abuse of position or trust or confidence; not arm’s length, so fairness is required
mutual mistake
both parties make a mistake- no existence of subject matter, contract void (stolen/destroyed)
unilateral mistake
NOT a defense UNLESS other party knew or should have known of the mistake
illegality
contract generally void, unenforceable
