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contract pt 1 > Formation > Flashcards

Formation Flashcards

1
Q

Puffery

A

statement that no reasonable person may take seriously

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2
Q

Nudum pactum

A

agreement or promise made without consideration and hence unenforceable

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3
Q

Vinculum juris

A

bond of the law, promise/agreement that must be fulfilled

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4
Q

Consideration

A

each party is giving something up, exchange, right to enforce the contract and make the other party give up what they agreed to give up

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5
Q

Requirements to a contract:

A
  1. Agreement / Offer and acceptance
  2. Consideration
  3. Intent to create legal relations
  4. Certainty
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6
Q

what is formation

A

the process through which parties establish a legally binding agreement governed by contract law

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7
Q

Sanctity of contract

A

taking a moral obligation to what you have promised

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8
Q

what is an agent

A

an agent is a third party that negotiates a deal with a principle party on behalf of another principle party

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9
Q

what are Unilaterally dictated terms (UDTs)

A

One party, usually the provider of the service, tell you what the terms of the contract is And we move to accept these terms, or decline

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10
Q

what are Industry standard terms (ISDA, NYPE)

A

Contracts between heavily resourced parties where Terms of the contract are standardised

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11
Q

what is an agreement

A

a meeting of the minds of two or more parties and at which point a contract is formed

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12
Q

what is an offer

A

unequivocal expression of intent by one party to another, proposing to undertake a specific action or refrain from doing so, with the intention of being legally bound if the other party accepts the proposal

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13
Q

what is the criteria for and offer
x2

A
  • willingness to be bound
  • outline of obligations
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14
Q

is advertising and display of goods an offer or invitation to treat

A

advertisements and displays generally constitute invitations to treat rather than offers.

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15
Q

is Request for Tenders an offer or invitation to treat

A

inviting tenders is an invitation to treat, but specific tender requirements may constitute an offer.

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16
Q

is Sale by Auction an offer or invitation to treat

A

Auction advertisements are invitations to treat; bids from participants constitute offers.

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17
Q

what is an invitation to treat

A

an invitation to a party or parties to make an offer

18
Q

what is acceptance

A

unqualified agreement of an offeree to the terms of an offer, as expressed by the offeror.

19
Q

what is the criteria for acceptance

A

Acceptance must be prompt, immediate, unqualified, simple, and unconditional.

20
Q

does silence constitute acceptance

A

Silence generally does not constitute acceptance

21
Q

what is the exception of silence as acceptance

A

Silence may be accepted as indicative of acceptance in certain exceptional circumstances, such as when an offeree indicates that silence implies acceptance.

22
Q

what does a counter offer do

A

terminates the original offer; parties cannot revert to the original offer once a counteroffer is made.

23
Q

what is acceptance by conduct

A

In some cases, acceptance can be implied through the conduct of the offeree.

24
Q

what is the postal rule

A

Acceptance of an offer is valid the moment it is posted, even if it never reaches the offeror.

25
Q

what is the whole world offer idea

A

If an offer is made to the “whole world” or is unilateral, it can be accepted by any person willing to do so, within the defined scope of the offer.

26
Q

when can an offer be revoked

A

before it is accepted, but not after.

27
Q

how must revocation be communicated

A

effectively to the offeree and reach the offeror before acceptance.

28
Q

what is the rule with revocation with unilateral contracts

A

the offeror can withdraw the offer before the offeree begins performance. Once performance has started, the offeror cannot revoke the offer

29
Q

what is the last shot doctrine

A

the final set of terms exchanged before acceptance governs the contract.

30
Q

what can prevent the last shot doctrine

A

Anti-last shot terms pre-empt the application of the last-shot doctrine.

31
Q

how does a battle of the forms arise

A

In situations where parties haven’t jointly negotiated the contract, one party may seek to impose its terms, leading to a “battle of forms.”

32
Q

what is the outcome of the battle of the forms

A

The outcome of a battle of forms may result in various scenarios, including contracts on one party’s terms, a blend of both parties’ terms, or no contract at all.

33
Q

what type of terms may show the parties didnt have intent

A

Nebulous terms may indicate that the parties did not intend to form a contract.

34
Q

what is the holistic/global approach

A

This is when you look at the approach as a whole, you see if a reasonable person on bothsides think a contract has formed

35
Q

Objective theory (look from a third parties view)

A

This is the view of a reasonable person in the shoes of the parties think, there is a subjective point that the parties both acknowledged that the request was intended by both parties.

36
Q

what are the five reasons for the termination of an offer

A
  1. rejection
  2. termination
  3. lapse of time
  4. change of circumstances (rare)
  5. death
37
Q

The least cost avoider principle

A

When accidents can be avoided by either two of the parties, liability is placed on the least cost provider, This being the party who could have prevented the accident at the lowest cost

38
Q

what are process contracts

A

Process contracts are essentially agreements to agree, They are either preliminary to or collateral to a substantive/primary contract

39
Q

process contracts are preliminary to the making of a substantives/primary contract where

A

they shape a selection or recruitment process( tender selection ) , Shaping the requirements, if you meet the requirement s, you will likely be hired

40
Q

process contracts are collateral to the making of a substantives/primary contract where

A

they may shape subsequent matters such as the negotiations concerning price adjustment of the variation of terms

contract pt 1 (8 decks)

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