General Principles Flashcards
Parties are bound to the ______ intention that he manifests to the other(s).
apparent
Elements to a K
Mutual Assent
Consideration
Any defenses to creation of the K?
Manifesting Assent Mnemonic
OPP:
Acceptance by OFFER: manifestation of assent to terms thereof made by the offeree in a manner invited or required by the offer
Acceptance by PERFORMANCE: requires at least part of what the offer requests to be performed or tendered AND includes acceptance by a performance which operates as a return promise
Acceptance by PROMISE: requires that the offeree complete every act essential to the making of the promise
Types of contracts Mnemonic
EII:
Express
Implied-in-Fact
Implied-in-Law
Express Contract
An agreement manifested by words - oral or written
Implied-in-fact
An agreement manifested by conduct - other than written or oral language
Implied-in-law
“quasi-contract”: not a contract at all but an obligation imposed by a court despite the absence of a promise in order to avoid an injustice;
Constructed by courts to avoid unjust enrihment - permit the PL to bring action in restitution to recover the amount of the benefit conferred by the D
Goods
any tangible thing that his moveable:
ex: growing crops or timber, unborn young of animals and other identified things attached to land, regardless of who severs them from the land provided that they can be removed w/o causing material harm to the land; currency exchanged as a commodity; minerals or the like or a structure or its materials to be removed from realty that are to be SEVERED BY THE SELLER
Goods does NOT encompass
- intangible rights such as intellectual property
- investment securities
- money which si the medium of payment for goods
- minerals or the like or a structure or its materials to be removed from realty that are to be severed by the buyer
Sale
transfer of title for a price.
If the primary function of the contract is to provide a service, the UCC doesn’t apply, even if an incidental sale of goods occurs
Good Faith
Every contract for the sale of goods imposes an obligation of good faith dealing on all parties in its performance and enforcement;
- “Honesty in fact in the conduct or transaction concerned.”
Merchants are subject to an additional good faith standard which requires “honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.”
Does outward expression supercede inward intent?
Yes ; ex: Lucy v. Zehmer - Zehmer shoed by words and actions he intended to contract, although inwardly he was joking
Elements of an offer
CCC:
Commitment
Communicate
Certainty
What communications DO NOT constitute an offer?
- opinions about future results, including professional opinions
- statements of intention
- invitations to submit a bid
- price estimates
- ads, catalogs, and mass mailings
- auctions with reserve
When is the offer effective?
An offer is not valid until RECEIVED by the offeree or his agent
Duration of an offer
If the offer has a stated time within which the acceptance m ust be made, any attempted acceptance after the expiration of that time will fail and will merely constitute a counter-offer by the offeree.
- If no specific time is stated within which the offeree must accept, it’s assumed that the offeror intended to keep the offer open for a reasonable period of time
- generally, the time for accepting an offer begins to run from the time it is received by the offeree. If there’s a delay in delivery of the offer of which the offeree is aware, th eusual inference is that the time runs from the date on which the offeree would have received the offer under ordinary circumstances
Communication of Revocation
An offer may be revoked by any words that communicate to the offeree that the offeror no longer intends to be bound. An offer is also revoked by action that is inconsistent with the intent to be bound once the offeree learns of such inconsistent action
Offers that MAY NOT be revoked
- there is an option contract in which the offeree gave consideration for an irrevocable offer for some period of time
- the offeree relied on his detriment upon an implied or express promise by the offeror not to revoke if such detrimental reliance was foreseeable by the offeror
- offeree relied on his detriment upon the offer itself if the such detrimental reliance was reasonably foreseeable by the offeror.
- in case of a unilateral contract, the offeree began performance of the promised act to any extent
- in goods contracts, a merchant indicates in signed writing that an offer to buy or sell goods will be held open for a stated time or a reasonable time if no time is specified, not to exceed three months, if no consideration if given
Effective time of revocation
A revocation is effective upon recept by the offeree.
Termination of the offer
An offeree’s power to accept an offer is terminated by:
- death or insanity of the offeror or offeree
- death or destruction of a person or thing essential to performance
- the offeree’s rejection of the offer, which can’t be reinstated by the offeree’s subsequent attempted acceptance
- the offeree’s counter-offer, which impliedly manifests a rejection of the offer
- revocation of the offer
- experiation of the offer
Advertisements
not generally offers to sell, offers to begin negotiations UNLESS:
- specific terms: if it contains a particular number then it probably is specific enough to be an offer
- words of commitment: these suggest an offer
Auctions
not usually an offer but rather a solicitation of offers.
Unless sale is said to be w/o reserve the auctioneer may withdraw the goods from the sale even after the bidding has started
Types of Acceptance
Bilateral: exchange of mutual promises; a promise for a promise
Unilateral: acceptance by performance; a promise for an act
Silence as Acceptance?
Silence is NOT acceptance unless:
- offeree uses services having opportunity to reject and knowing that compensation was required
- where offeror has made it clear that silence is acceptance
- b/c of previous dealings, offeree should notify
