Introduction And Offer

Question 1

What law governs service and real estate contracts?

Answer 1

Common Law

Question 2

What governs transactions for the sale of goods?

Answer 2

Uniform Commercial Code (UCC), Article 2 supplemented by common law.

Question 3

What is the definition of a “good”, per UCC 2-105?

Answer 3

All things movable at the time of identification to the contract for sale.

INCLUDES: Unborn young of animals, growing crops, specially manufactured goods (custom made), and other identified things to be severed from realty (e.g., gas, coal, timber, oil) subject to some limitations.

DOES NOT INCLUDE: Money in which the price is to be paid, investment securities (e.g., stocks), and things in action (e.g., right to sue, trademarks, patents).

Question 4

What is a hybrid contract?

Answer 4

One containing a mixture of services/real estate and goods.

Question 5

1. How do courts determine which law(s) govern hybrid contracts?
2. What three factors are used to make this determination?

Answer 5

1. Courts look into the dominant aspect and apply that governing law to the whole contract.
2. The language of the contract, the nature of business with the supplier, and the value of the goods versus the services.

Question 6

What is a contract?

Answer 6

A promise or set of promises that the law will enforce.
O + A + C = K (Offer + Acceptance + Consideration = Contract)

Question 7

1. What is mutual assent?
2. What standard is used to measure this?

Answer 7

1. Offer + Acceptance. An agreement on the same bargain at the same time. A “meeting of the minds” is an antiquated term.
2. Objective. This is the apparent intention the parties manifest to one another.

Question 8

What is an offer?

Answer 8

The manifestation of a willingness to enter into a bargain that justifies another person to believe that his/her assent to the bargain is invited and, if received, will conclude it. A “yes-able” proposition.

Question 9

1. What are the two types of contracts?
2. What is not a contract but can be constructed by courts to avoid unjust enrichment by allowing a plaintiff to bring an action in restitution to recover the amount of the benefit conferred on the defendant?

Answer 9

1. Express and Implied-In-Fact
2. Quasi-Contract or Implied-In-Law Contract

Question 10

1. What is an express contract?
2. What is an implied-in-fact contract?

Answer 10

1. One that’s oral or written, created by the parties where the terms have been explicitly set out.
2. One where the terms have not been explicitly set out but inferred based on parties’ behavior and surrounding circumstances.

Question 11

What are the elements of an offer?

Answer 11

Communicated, Commitment, and Definite Terms

Question 12

1. What is meant by a communicated offer?
2. When a letter is sent through USPS, is it presumed received?

Answer 12

1. The purported offer has been made known to the offeree. Does not necessarily need to be made known by the offeror directly to the offeree (e.g., when a third party tells the offeree instead).
2. Yes.

Question 13

1. In an offer, what is meant by commitment?
2. What are the two exceptions to this?

Answer 13

1. It’s an outward expression of intent to be bound evaluate from a reasonable person in the offeree’s position (objective standard).
2. Offeree has reason to know of the actual intent of the offeror, or the court takes subjective intent into account if the offeror knows of the limitations of the offeree.

Question 14

What five things are generally not considered offers?

Answer 14

1. Known jokes and jests
2. Statement of opinion
3. Social invitations and engagements
4. Puffery (e.g., “Red Bull gives you wings”)
5. Advertisements

Question 15

1. When is a joke or jest considered an offer?
2. What is the exception to this?

Answer 15

1. When evaluated from a reasonable person in the offeree’s position (objective standard) as an outward manifestation of intent.
2. When the offeree has reason to know of the actual intent.

Question 16

1. In an offer, do generalized comments of opinion or intention have commitment?
2. Are there exceptions?

Answer 16

1. No.
2. Yes; if the person making the statement has superior knowledge (like a lawyer or doctor) and they guarantee an outcome, the commitment element could be met.

Question 17

1. Using the general rule, are advertisements considered offers?
2. What are the two exceptions to this rule?

Answer 17

1. No, they are merely invitations to negotiate.
2. Exception 1: Advertisements that are communicated, have commitment, limit the number of offerees, and have definite terms. Exception 2: Advertisements for rewards if they are communicated, have commitment, and have definite terms (even if made to the public at large, since the number of offerees is limited to those who act on the terms).