Definitions

Question 0

Restatement Second, Sec 2: A promise is

Answer 0

A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promise in understanding that a commitment has been made

Question 1

Restatement Second, Sec 1: A contract is

Answer 1

A promise or set of promises 1) for the breach of which the law gives a remedy OR 2) the performance of which the law in some way recognizes a duty

Question 2

Restatement Second, Sec 3: An agreement is

Answer 2

An agreement is a manifestation of mutual assent on the part of two or more persons.

Question 3

Restatement Second, Sec 3: A bargain is

Answer 3

A bargain is an agreement to exchange promises or to exchange a promise for performance or to exchange performances

Question 5

Restatement Second, Sec 4: A promise may be made

Answer 5

A promise may be made in words either oral or written OR may be inferred wholly or partly from conduct.

Question 6

Objective Theory of Contracts

Answer 6

1) Would a reasonable person in the position of the offeree understand from the offeror’s words and conduct an intent to be bound? (Objective) 2) Did the offeree in fact believe so? (Subjective) 3) No court would find a contract if neither party thought the other intended to be bound

Question 7

Presumptions when evidence is ambiguous about whether the parties intended to be bound

Answer 7

1) in a “business” context, the court will presume that the parties intended their agreement to be legally enforceable 2) in a social or domestic situation, the presumption will be that legal relations were NOT intended

Question 8

R §24 Offer

Answer 8

R §24 OFFER - the manifestation or willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. (Something that creates a power of acceptance)

Must contain a 1) a PROMISE 2) be definite enough 3) be communicated to the offer

Question 9

R §26 Preliminary Negotiations

Answer 9

R §26 PRELIMINARY NEGOTIATIONS - A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.

Question 10

R §33 Certainty

Answer 10

R §33 CERTAINTY - 1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. 2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. 3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.

Question 11

UCC §2-204 Formation in General

Answer 11

UCC §2-204 FORMATION IN GENERAL - 1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. 2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. 3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is reasonably certain basis for giving an appropriate remedy.

Question 12

Mutual Assent

Answer 12

For a contract to be formed, the parties must reach “mutual assent.” They must both intend to contract, and they must agree on at least the main terms of their deal

Question 13

R2d § 27 Existence of a Contract Where Written Memorial is Contemplated

Answer 13

R2d § 27 Existence of a Contract Where Written Memorial is Contemplated - “Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations.” * Oral contracts, if proven, are perfectly enforceable * Statute of Frauds: Agreements required to be in writing are contracts involving the sale of any interest in real estate

Question 14

Elements of an Offer

Answer 14

1) Because an offer must be manifested, it must be communicated to the person to whom it is addressed 2) The offer must indicate a desire to enter into a contract 3) The offer must be directed at some person or group of persons 4) The offer must invite acceptance. If a mode and time for acceptance are prescribe, they must be followed 5) The offer must create the reasonable understanding that upon acceptance, a contract will arise without any further approval being required from the offeror

Question 15

Consideration

Answer 15

Something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act. • Consideration, or a substitute such as promissory estoppel, is necessary for an agreement to be enforceable.

Question 16

Acceptance

Answer 16

An offeree’s assent, either by express act or by implication from conduct, to the terms of an offer in a manner authorized or requested by the offeror, so that a binding contract is formed. • If an acceptance modifies the terms or adds new ones, it generally operates as a counteroffer.

Question 17

Gravaman

Answer 17

The substantial point or essence of a claim, grievance, or complaint.

Question 18

Specific Performance

Answer 18

The rendering, as nearly as practicable, of a promised performance through a judgment or decree; specif., a court-ordered remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate, as when the sale of real estate or a rare article is involved. • Specific performance is an equitable remedy that lies within the court’s discretion to award whenever the common-law remedy is insufficient, either because damages would be inadequate or because the damages could not possibly be established. — Also termed specific relief.

Question 19

Damages

Answer 19

Money claimed by, or ordered to be paid to, a person as compensation for loss or injury

Question 20

Remedy

Answer 20

The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief. — Also termed civil remedy.

Question 21

Breach of Contract (BoK)

Answer 21

Violation of a contractual obligation by failing to perform one’s own promise, by repudiating it, or by interfering with another party’s performance.

Question 22

Unilateral

Answer 22

Promise for an act - offeror-promisor would promise to pay upon COMPLETION of the requested act by the promisee - once act is complete, then contract is formed

Question 23

Bilateral

Answer 23

Promise for a Promise - each party is BOTH a promisor and promise EX: A promises to sell B for X-amount and B promises to purchase item at the X-amount (Most Ks are Bilateral- each party has a right and a duty)

Question 24

Option Contract

Answer 24

where offer invites offeree to accept by performance, and not promise, the beginning of performance creates option contract if offer only asks for performance and ee starts performing, by starting to perform that creates an Option Contract (offeror can’t revoke during time ee is completing his performance

Question 25

Bilateral Contract

Answer 25

A bilateral contract is a K in which both sides make promises.

Question 26

Unilteral Contract

Answer 26

A unilateral contract is one which involves an exchange of the offeror’s promise for the offeree’s act.

• The offeree doesn’t make a promise, but instead simply acts.