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Contracts + Crim > Final contracts flashcards > Flashcards

Final contracts flashcards

1
Q
  • Silence as acceptance: offeree intends to accept the offer
A
  • where offerer has given reason to understand silence is valid acceptance
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2
Q

Silence as acceptance: takes the benefits

A
  • with reasonable opportunity to reject
  • with reason to know benefits are offered with the expectation of compensation.
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3
Q

Silence as acceptance: Previous dealings

A
  • typically based on previous dealings, others ok too, it’s reasonable that an offeree should notify the offerer if they do not intend to accept.
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4
Q

Silence as acceptance: Reasonable based on previous dealings case example

A

Wilson: after a history of 7 day return promises, 12 days was enough to expect notifcation if no acceptance.

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5
Q

Acceptance by promise: two requirements

A

unless a contrary intention from offerer

Offeree must make reasonable effort to notify
or;
offerer recieve the acceptance seasonably

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6
Q

Acceptance by performance: notification

A

No notification is needed for acceptance by performance unless offeror requests the notification

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7
Q

Acceptance by performance: notification when you have reason to know offerer has issues learning of preformance

A

If you have reason to know offerer wont learn of an offer with
- reasonable time
- reasonable certainty

Cant accept by preformance

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8
Q

Acceptance: doubt as to the method of acceptance

A

default rule: can accept either by promise or performance when there is doubt.

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9
Q

Notification of acceptance by performance case illustration:

A

Carbolic smoke ball

There, advertisement was an offer given that they said they put money in the bank - so it was not mere puffery.

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10
Q

Acceptance: beginning

A

beginning of a performance is a promise to render complete performance. FOR BILATERAL.

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11
Q

Beginning of a performance: Case illustration

A

Ever-tite roofing

  • Two construction businesses had a writing between them that said “if you pass a credit check, you can accept this offer by beginning performance.”
  • no notifiaction of withdraw from offering business
  • The accepting business starting loading their truck, that was enough to consider performance
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12
Q

Acceptance by performance: option contract

A

When an offer invites acceptance by performance, option contract begins once the performace has begun.

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13
Q

What four condition terminate power of acceptance?

A
  • rejection/counter-offer(when RECEIVED if by mail)
  • lapse of time
  • revocation
  • incapacitation of either party
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14
Q

Terminating power of acceptance: lapse of time

A

Power of acceptance is terminated either by the time specified in the offer or a reasonable amount of time

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15
Q

Terminating power of acceptance: “reasonable”

A

default rule: question is “what time would a reasonable man in offeree’s position think satisfactory to offerer
- based on circumstances existing when offer and attempted acceptance are made
- question of fact for the jury

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16
Q

What is an option contract

A

An offer + another enforceable promise not to revoke

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17
Q

Option contract: stays unless + ex.

A

requirements are met for discharge

ex.
Breach
Completion of performances

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18
Q

Five ways to make option contracts

A
  1. Entering into a contract with consideration for the option contract
  2. Offeree rendering partial performance
  3. A writing signed by the offeror which recites purported consideration and proposes a fair exchange
  4. firm offer (see UCC 2-205)
  5. Detrimental reliance
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19
Q

Power of acceptence: terminated through mail

A

When a potential rejection or counter offer is sent through the mail, an acceptance sent counts only as a counter offer unless the offerer receives the acceptance first.

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20
Q

Offer revocation thru mail

A

Offer revocation is only good when received

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21
Q

Misunderstanding: different meaning by both parties; matching reasons

A

Different meaning by both parties and both or neither party has reason to know the other’s meaning = no K

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22
Q

Mistake: different meaning by both parties; differing reasons

A

Different meaning by both parties and A doesn’t (have reason to) know B’s meaning but B (have reason to) know A meaning

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23
Q

Bargained-for-Exchange: Case Illustration

A

Kirksey

He was not offering the house to induce her into coming onto his land, it seemed that it was more a gratuitous promise

24
Q

Consideration: Default rule

A

Generally, courts do not inquire into the adequacy of consideration

25
Q

Nominal Consideration: Default Rule

A

In most courts, nominal consideration is insufficient for a contract because it is not bargained for.

26
Q

Nominal Consideration: Case Illustration

A

In re green

$1 was considered nominal consideration, it was not what was bargained for.

27
Q

Intent to contract

A

Real nor apparent intent to contract is necessary to contract, but an indication that a promise isn’t meant to make a contract may prevent its’ formation.

28
Q

Consideration: Past deeds, Traditional (Majority) rule

A

Promises in exchange for past deeds shall not be enforcable because there is no consideration.

29
Q

Consideration: Past deeds, Modern (Minority) rule

A

Promises in exchange for past deeds are enforcable as long as the promisee’s past good deed created a material benefit for the promiser.

30
Q

Past deeds: Case illustration Majority rule

A

Wyman

Promise in exchange for care of his son while sick was not enforceable

31
Q

Past deeds: Case illustration Minority rule

A

Mcgowin

Since he saved his boss from death, and sustained injuries that made it so he would not be able to work, it would be unjust if he did not get the payments promised to him.

32
Q

Pre-existing Duty Rule:

A

Performance or or promise to perform a pre-existing legal duty does not constitute consideration

33
Q

Pre existing duty rule: one sided modifications

A

Courts will allow one sided modifications in situations where it is fair and equitable in veiw of circumstances not anticipated by the parties

34
Q

Mutuality

A
  • Non-Illusory promises show intention to act or refrain from acting in a way in which shows a commitment has been made
  • Look to case examples
35
Q

Mutuality: Case Illustration; Whiskey

A

Rehm-Zeiher

Contained a clause “If for any unforeseen reason buyer finds they cannot use the full amount of whiskey, seller agrees to release them from the contract. “ and since any reason could include anything, no matter what buyer wasn’t really in a commitment

36
Q

Mirror image rule

A

By common law. acceptance must mirror an offer.

If it does not, it is a counter offer.

37
Q

Certainty: reasonableness

A

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

38
Q

Certainty: missing terms

A

Default rule: Court will try to attach meaning to an agreement if actions of parties can show conclusive intention to form a contract even though terms are missing or not yet agreed upon

39
Q

Default rule for pre-contractual promises

A

Unless something is VERY CLOSE to Red Owl or;
there is a very clear intent to be bound

it is not reasonable to rely on pre-contractual promises

40
Q

Statute of frauds: Enumerated Contract classes

A
  1. Promises by an executor to pay debts of the estate out of their own assets;
  2. contracts to pay debts of another;
  3. Contracts made in consideration of marriage;
  4. Contracts for transfer of interest in land;
  5. Contracts not capable of being performed in full within one year of the date the contract was formed (infinite doesn’t matter and practicality doesn’t matter)
  6. Contracts for sale of goods where price is = or > $500
41
Q

Statute of frauds

A

Certain contracts have to be in writing

42
Q

Default rule

A

Not to be unilateral - Carbolic Smokeball

43
Q

Misunderstanding: Case Illustration

A

Embry

Go on get your men out + circumstances including 1 year contracts

means boss had reason to know but employee did not have reason to know.

And;
Wichelhaus

44
Q

Angel v Murray

A
45
Q

Hill v Gateway Story

A

Hill ordered a computer from a business; The computer had terms and conditions to arbitrate in the box.

Terms and conditions said to return the PC if they don’t agree.

Hill didn’t read them, later sued as part of a class action.

Buisiness said you had to arbitrate and sues back

Hill loses.

46
Q

Same as Hill, but 5 days and plaintiff wins!

A

Kloceck v Gateway

47
Q

Hill v. Kloceck

A

Hill - if a seller specifies that their terms and conditions are a part of the product, keeping product can count as acceptance

Kloceck - not the above, see UCC 207 without merchants

48
Q

Trash man’s city gets bigger, they agree to pay him more, and it’s valid K .

A

Angel

Where both parties agree to a change in the contract, based on circumstances unknown to them at the time

49
Q

Four ways to analyze letters intent

A
  1. It’s nothing. Empro
  2. It’s a binding K now. Court will fill gaps if needed.
  3. Promise is binding because of promissory estoppel. Red Owl
  4. It’s a K to negotiate in good faith. Itek
    * Itek
50
Q

Consideration can be

A

Creation, modifaction, destruction of legal realtions.

51
Q

Consideration; Forbereance or exchange of legal claims that are in dispute

A

Forbearance or exchange of legal claims in dispute are only valid consideration if it is actually disputed as a matter of fact or law
or;
The forbearer belives that the claim may be proven valid through a fair process

A similar performance will constitute consideration if it is different enough to be considered consideration.

52
Q

Exceptions to pre-existing duty rule

A

small changes
settle a dispute
full payment checks - if amount uncertain
Refrain from bankruptcy
Executed gift

53
Q

Statute of Frauds; Restatement, enforceable when

A
  • In writing
  • signed by the party being charged
  • reasonably identifies subject matter of contract
  • sufficient to indicate a contract has been made, or a signed offers from one of the parties
  • states with reasonable certainty the essential terms of the unpreformed promises in the contract
54
Q

Statute of frauds; Restatement, signatures

A

any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of that singer
- only enforceable against those who signed

55
Q

Statute of frauds; Restatement, exception

A

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person
and;
which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise.

56
Q

Statute of frauds; Restatement, as justice requires

A
  • availability of other remedy
  • substantial and definite character of action/ forbearance in relation to the remedy
  • Extent to which action/forbearance corroborates making/terms of the promise
  • reasonableness of action/forbearance
  • foreseeability of action/forbearance

Contracts + Crim (10 decks)

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