Governing Law and Valid Contract Flashcards
When does Common Law govern?
Common law governs contracts where the subject matter is services (or real estate).
When does the UCC apply?
The UCC applies where the subject matter is goods.
What are “goods” (under the UCC)?
Goods are movable, tangible property.
Who is a merchant (under the UCC)?
A merchant is one who deals in goods of the kind or otherwise by their occupation has some special skill of knowledge about these goods.
Are there merchants under Common Law?
No, merchants only exist under the UCC.
Under the UCC, are merchants generally held to a higher standard?
Yes
Under the UCC, who are non-merchants?
Anyone who is not a merchant.
What is the predominance test when determining whether a contract is for goods or services?
What was it mostly? What did you expect from the contract?
What does a valid contract consist of?
A valid contract consists of an offer, acceptance, consideration, and lack of formation defenses.
What is an offer?
An offer is a manifestation of present contractual intent, communicated to an identified offeree, containing definite and certain terms.
How is present contractual intent judged?
Objectively, not subjectively
What is the best question to ask when determining whether there was present contractual intent?
Would a reasonable person under the circumstances believe that the offeror is willing to be bound by the offer?
Advertisements, catalogues, and quotes are generally not offers but are:
Invitations to receive offers.
What exceptions apply to advertisements as offers?
1) When a person solicits a price and receives a response that would normally not be an offer [catalog, advertisement, etc], or 2) when the item contains all material terms of the offer and identifies the offeree - usually by “first-come first-served”.
Are statements that contain the lowest price a person would sell of the highest price a person would pay offers to sell or buy, respectively, at the stated price?
No
Is there an exception to an offer being communicated to an identified offeree?
Yes, public offers
Within a public offer, when is the offeree identified?
Identification of the offeree and acceptance occur at the same time.
Within a public offer, identification of the offeree and acceptance occur at the same time after:
1) Someone knows of the offer; 2) is motivated by it; and 3) accepts the offer by performing the requested act.
For an offer involving services to contain definite and certain terms, what is required under common law (Q-TIPS)?
1) Quantity; 2) Time for performance; 3) Interested parties; 4) Price; and 5) Subject matter.
For an offer involving real estate to contain definite and certain terms, what is required under common law?
A description of the real property adequate to identify the land and price.
For an offer involving the sale of goods to contain definite and certain terms, what is required under the UCC?
Subject matter and quantity.
As long as there is contractual intent by both parties, will a contract for goods under the UCC fail if one or more items are left open?
No
Under the UCC, what terms may be left open?
Price, time and place of delivery, time of payment.
What is a requirement contract?
An agreement by one party to supply all that is required by the other party.
What is an output contract?
An agreement by one party to buy all that the other party produces (outputs).
What issue do requirement and output contracts always raise?
Definite and certain terms with regard to quantity.
When dealing with requirement and output contracts, how is the issue of definite and certain terms with regard to quantity overcome?
The UCC will insert the amounts that occur in good faith.
What is the general rule of revocability with regard to offers?
The general rule is that all offers are freely revocable.
What are the four irrevocable offers?
1) Option contract; 2) Merchant’s firm offer; 3) Detrimental reliance; and 4) Unilateral contracts once performance has begun.
What is an option contract?
An offer supported by consideration.
If no time is specified, how long must an option remain open and irrevocable?
For a reasonable time
What is a merchant’s firm offer?
A writing signed by a merchant which gives assurance that an offer will remain open for a stated time.
If no time is stated, how long does a merchant’s firm offer remain irrevocable?
For a reasonable time not to exceed 3 months.
Under a merchant’s firm offer, after 3 months, is the offer terminated?
No, it simply becomes revocable.
What is detrimental reliance?
When the offeree relies on an offer and that reliance is detrimental, reasonable, foreseeable and substantial.
How long must an offer remain irrevocable under detrimental reliance?
For a reasonable time.
What is a unilateral contract?
Promise for performance
When does a unilateral contract become irrevocable?
Once performance has begun
Once performance has begun, how long must the offeree be given to complete performance before the offer can be revoked?
A reasonable time.
Under a unilateral contract, is preparation for performance considered performance?
No
What is a revocation?
If the offeror communicates to the offeree that the offeror no longer wishes to be bound by the offer, the offer is revoked.
When does an indirect revocation occur?
When an offeree 1) receives correct information; 2) from a reliable source; 3) that the offeror no longer wishes to be bound by the offer, then; 4) the offer is revoked.
Are offers to third parties sufficient for indirect revocation?
No
Are rumors sufficient for indirect revocation?
No
Must an offer be revoked by the same means in which it was communicated?
No, there is no requirement (other than a public offer) that a revocation be communicated in the same or similar fashion as the offer, or any specific fashion at all.
How must a public offer be revoked?
Notification to the public by the same or better means in which the offer was communicated.
When are revocations effective?
Upon receipt
What is a rejection?
If the offeree communicates to the offeror that the offeree is not interested in the offer, then the offer is terminated.
Is a counter-offer a rejection?
Yes
Under both the UCC and common law, is a conditional acceptance always a rejection and counter-offer?
Yes, always
Can an option contract be revoked?
No, even if the offeree communicates a rejection to an option contract, the offer is not terminated and must remain open for the time specified by the option.
When a revocation is communicated by the offeree under an option contract, and the offeror relies on that revocation to change positions with regard to the contract, does the offeror have any recourse?
Yes, the offeror may raise estoppel under detrimental reliance as a defense to enforcement if the offeror changed positions.
When is a rejection effective?
Upon receipt
Within the operation of law, after how much time will an offer lapse?
After a reasonable time
Within the operation of law, how is a reasonable time determined to terminate an offer?
1) Market conditions; 2) Nature of the subject matter, and/or; 3) Trade custom and usage.
After face-to-face negotiations (or other substantially instantaneous forms of communication), unless there are words to the contrary, when will an offer terminate under operation of law?
When the parties have left each other’s presence.
Will death or incapacity terminate an offer by operation of law?
Yes
When will death terminate an offer?
At the time of death
When will incapacity terminate an offer?
At the time the other party learns of the incapacity.
Can an irrevocable offer be terminated by death or incapacity?
No
Will destruction of subject matter terminate an offer under operation of law?
Yes
Will supervening illegality terminate an offer under operation of law?
Yes
What is an acceptance?
An acceptance is an unequivocal assent to the terms of an offer.
Under the common law, an acceptance must be a _______ of the offer:
Mirror-image
Under the common law, any additional, different or missing term in an acceptance would result in a:
Rejection and counter-offer
What is the Last Shot Rule?
The last expression before performance controls.
Under the Last Shot Rule, when do the courts find an “implied” acceptance by performance?
1) When parties exchange rejections and counter-offers and 2) one party does not return a rejection and counter offer but performs.
Under the UCC, is an acceptance with additional or different terms still a valid acceptance?
Yes
Under the UCC, what is a conditional acceptance?
A rejection and counter-offer. A conditional acceptance, under UCC or common law, is always a rejection and counter-offer.
What is a bilateral contract?
A return promise to perform
What is a unilateral contract?
Promise for performance
If ambiguous as to whether a contract is unilateral or bilateral, what do most courts prefer to consider it?
Bilateral
Under UCC 2-206, what three ways can an acceptance occur?
1) Promise to ship; 2) shipment of conforming goods; 3) shipment of non-conforming goods.
Without a letter of accommodation, what is the shipment of non-conforming goods considered?
Acceptance and breach
With a letter of accommodation stating that the shipment is offered only as an accommodation too the buyer, what is the shipment of non-conforming goods considered?
Counter-offer
Can a promise to ship later be converted to a counter-offer via shipment of non-conforming goods with a letter of accommodation?
No, once a promise to ship has been issued it is a valid acceptance and any shipment of non-conforming goods - with or without a letter of accommodation - is a breach.
What manner is required for acceptance?
The manner required by the offer.
If no manner of acceptance is required by an offer, how might the offer be accepted?
In any reasonable manner
What constitutes a reasonable manner of acceptance?
Usually a means as fast or faster than that in which the offer was sent (or) the same manner in which the offer was sent (is always considered reasonable).
Under UCC 2-206, what is considered a reasonable manner of acceptance?
Any manner and by any medium reasonable under the circumstances.
What is the general rule regarding silence as acceptance?
The general rule is that silence is not acceptance and the offeror is not master over this area of the offer.
What are the three exceptions to silence as acceptance?
1) Implied in fact contracts where the conduct of the offeree manifests assent to he offer; 2) When the offeree takes the benefit of goods or services that are given with the expectation of payment, and; 3) Certain past dealings among parties.
Do crossing offers that contain identical information form a contract?
No
What are the two reasons that crossing offers with identical information do not form a contract?
1) There is no mutual assent; 2) the offeree must be aware of the offer to accept it.
What is the mailbox rule?
When parties are not dealing face to face (or other substantially instantaneous form of communication), then an acceptance is effective upon dispatch.
What constitutes “dispatch” under the mailbox rule?
When the acceptance is put out of the possession of the offeree.
What three things are required for a successful dispatch under the mailbox rule?
1) Proper address 2) proper postage 3) correct manner.
Can an offeror contract out of the mailbox rule and make acceptance effective upon receipt instead of dispatch?
Yes
What happens if an acceptance is not sent in the manner required by the offer under the mailbox rule?
There is no acceptance, no matter how slight the deviation. An example would be acceptance sent by UPS 2-day when UPS one-day was required by the offer.
What happens if an acceptance is sent in an “unauthorized” manner under the mailbox rule?
Acceptance is effective upon receipt.
What is the difference between acceptance in the manner required by the offer and an “unauthorized’ manner of acceptance under the mailbox rule?
If a manner is required by the offer and is not followed, no matter how slight, there is no acceptance.
If no manner is specified by the offer, and the acceptance is sent in a manner slower (for example) than the offer was sent, this would be unauthorized and result in a valid acceptance but only upon receipt.
Does the mailbox rule apply to option contracts?
No, acceptance of an option contract is only valid upon receipt.
What is a post-acceptance rejection?
When an acceptance is sent first, then a rejection.
In a post-acceptance rejection, even if the rejection is received first, does the mailbox rule apply and constitute the formation of a contract?
Yes, since the acceptance was effective upon dispatch, the contract was formed upon dispatch. The rejection is irrelevant.