General Flashcards
Bilateral contract
Promise for promise contract
Contract
Promise or set of promises for the breach of which the law gives a remedy, or recognizes as a duty
What is a promise
A manifestation of intention to act or refrain from acting so made as to justify another in understanding that a commitment has been made
Unilateral contract
Promise for performance contract
What are components of a bargain contract
Manifestation of mutual assent, consdideration
What terminates the offeree’s power of acceptance
Death/incapacity
Revocation of offer
Rejection
Counter offer
Lapse of time
What are the reasons one’s objective manifestations of assent would not be considered willingness to be bound?
Duress,
Fraud,
Mutual mistake
Writ of mandamus
Superior court orders lower court to take some action, no plain, speedy, and adequate remedy at law
Unconcionability requires what two showings
Procedural unconcionability
Substantive unconcionability
Procedural unconcionability standard
Gross difference in bargaining power such that the weaker party has no real chance to bargain as to its terms - absence of meaningful choice to terms of the contract
Adhesion contract
Standardized contract form offered to consumer on a take it or leave it basis without a realistic opportunity to bargain
Consumer
Someone who enters into a transaction for personal, family, or household purposes
Example of type of adhesion contract a court may be likely to enforce
Plain and clear notification of the terms, understanding consent, and terms are within the reasonable expectations of the weaker party
Substantive unconcionability
Contracts with oppressive terms, unjustifiably unfair to the weaker party
RST section 208 unconcionable contract or term
If a contract or term is unconcionable at the time a contract is made: court may refuse to enforce entire contract, court may strike unconcionable term and enforce rest of contract, court may limit the application of the unconcionable term to avoid an unconcionable result
How can a promise be made
Words, written or spoken or conduct which constitute a promise under the circumstances
Manifestation of intention
Conduct a reasonable party would understand as an intention to enter into an agreement
Does a manifestation of intention have to include the intention to be legally bound
Section 21: no real or apparent intention that a promise be legally binding is required to form a contract, but stated intention not to give a promise legal weight can undermine the formation of a contract
What was the rule from Ray v Eurice Bros?
One having the capacity to read and understand a document who signs his name will be bound by his signature (absent fraud, mutual mistake, or duress)
What is the only subjective intent required for formation of a contract
The intention to do the words or say the acts which manifest an intention to act or refrain from acting
Mutual mistake
Both parties to a contract have an erroneous belief about a contract they’ve entered into
Section 17 requirement of a bargain
With exceptions formation of a contract requires a bargain: manifestation of mutual assent to exchange and consideration
What are the 4 things a plaintiff must prove
A contract was formed, what are its essential terms, a term was breached, damages
What is a agreement
Manifestation of mutual assent on part of 2 or more persons
