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Contracts I > General Principles > Flashcards

General Principles Flashcards

1
Q

Parties are bound to the ______ intention that he manifests to the other(s).

A

apparent

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2
Q

Elements to a K

A

Mutual Assent
Consideration
Any defenses to creation of the K?

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3
Q

Manifesting Assent Mnemonic

A

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

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4
Q

Types of contracts Mnemonic

A

EII:
Express
Implied-in-Fact
Implied-in-Law

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5
Q

Express Contract

A

An agreement manifested by words - oral or written

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6
Q

Implied-in-fact

A

An agreement manifested by conduct - other than written or oral language

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7
Q

Implied-in-law

A

“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

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8
Q

Goods

A

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

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9
Q

Goods does NOT encompass

A
  • 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
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10
Q

Sale

A

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

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11
Q

Good Faith

A

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.”

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12
Q

Does outward expression supercede inward intent?

A

Yes ; ex: Lucy v. Zehmer - Zehmer shoed by words and actions he intended to contract, although inwardly he was joking

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13
Q

Elements of an offer

A

CCC:
Commitment
Communicate
Certainty

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14
Q

What communications DO NOT constitute an offer?

A
  • 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
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15
Q

When is the offer effective?

A

An offer is not valid until RECEIVED by the offeree or his agent

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16
Q

Duration of an offer

A

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
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17
Q

Communication of Revocation

A

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

18
Q

Offers that MAY NOT be revoked

A
  1. there is an option contract in which the offeree gave consideration for an irrevocable offer for some period of time
  2. 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
  3. offeree relied on his detriment upon the offer itself if the such detrimental reliance was reasonably foreseeable by the offeror.
  4. in case of a unilateral contract, the offeree began performance of the promised act to any extent
  5. 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
19
Q

Effective time of revocation

A

A revocation is effective upon recept by the offeree.

20
Q

Termination of the offer

A

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
21
Q

Advertisements

A

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
22
Q

Auctions

A

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

23
Q

Types of Acceptance

A

Bilateral: exchange of mutual promises; a promise for a promise
Unilateral: acceptance by performance; a promise for an act

24
Q

Silence as Acceptance?

A

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
25
Q

Knowledge of Offer

A
  • must be mutual assent
  • must have knkowledge of the reward/offer in order to be possible to have made an acceptance
  • if starts without knowledge however LEARNS BEFORE FINISHING act and then completes the act, K is formed
  • exceptions - gov’t agencies might still owe reward
26
Q

Motive

A

must have present intent - look at surrounding circumstances - motive for responding doesn’t count
- motive irrelavant as long as it’s done voluntarily

27
Q

Modes of Acceptance

A
  • true contract ALWAYS has a promise
  • at least one promise (unilateral vs. bilateral contracts)
  • where offeror invites acceptance by choice of offeree, then the beginning of the performance acts as a promise to complete the performance
28
Q

Elements/Ways to terminate power of acceptance

A
  • by counteroffer or offeree rejection
  • lapse of time
  • revocation by offeror
  • death/incapacity
29
Q

Revocation by Offeror

A
  • can revoke any time before acceptance
  • offer revoked before money tendered
  • if offeree acquires reliable info that offeror has taken action to revoke offer, then offer revoked
30
Q

Indirect Revocation of Offer

A

an offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that affect

31
Q

Tender

A

if offeree begins the performance, that constitutes acceptance

32
Q

When does acceptance become effective?

A
  1. The offeror may specify when the acceptance will be effective
  2. Absent such specification, an acceptance is effective when sent, if sent by reasonable means
  3. If an acceptance is sent by inappropriate or unreasonable means, the acceptance will be effective upon receipt
  4. With option contracts, an acceptance isn’t operative until received by the offeror
33
Q

Lapse of Time

A

Power of acceptance is terminated at time specific in offer, or by a reasonable time. If not stated, acceptance valid if mailed before midnight on day when offer received.
- when conversations end, offer ends, unless otherwise stated

34
Q

Do proposals and inquiries reject offer?

A

No.

35
Q

Mailbox Rule

A

time of acceptance by offeree is when put in the mail box; once in mail, offer deemed accepted; acceptance effective upon dispatch; rejection upon receipt; purpose is to protect offeree

  • Doesn’t apply to option contracts, firm offers, revocations, offers
  • only applies when mode of acceptance is NOT stated
  • if offeror wants to revoke and already in the mail by offeree, then can not (b/c already accepted) if revoke before offeree puts int he mail, then can (b/c revoke before accepted)
36
Q

Counting Days for Mailbox Rule

A

count from day after receipt and right up to midnight on due date

37
Q

Mirror-Image Rule

A

Counteroffer rule:
acceptance must look exactly like offer, otherwise seen as counteroffer

UCC REJECTS THIS RULE

38
Q

Know that according to UCC, once you have K and one party tries to alter the deal/change terms

A

Know that if Option K, OR cannot revoke, EE can reject and then change his mind later

39
Q

Rejection must be….

A
  • received by the offeror
  • if by mail - what amounts to a receipt (by mail) - person
  • if accepting, when EE puts in mail
40
Q

Do different terms invalidate a contract?

A

No. 2-207(1) states: a form sent within a reasonable time “operates as an acceptance” even tho it states different or additional terms.

Contracts I (21 decks)

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