Midterm Flashcards
Restatement (Second) of Contracts, Section 1
A contract is a promise or a set of promises for the breach of which the law gives
a remedy, or the performance of which the law in some way recognizes as a duty.
Restatement 90; Promissory Estoppel
(1) A promise which the promisor should reasonably expect to induce action or
forbearance (not do something that you have a legal right to do) on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
(2) A charitable subscription or a marriage settlement is binding under
Subsection (1) without proof that the promise induced action or forbearance.
Restatement 17; Requirement of a Bargain.
… [T]he formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.
Restatement 71; Requirement of Exchange; Types of Exchange.
(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
(3) The performance may consist of:
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal relation.
(4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.
§18. Manifestation of Mutual Assent
Manifestation of mutual assent to an exchange requires that each party either make a promise or begin or render a performance.
§21. Intention to be Legally Bound.
Neither real nor apparent intention that a promise be legally binding is essential to the formation of a contract, but a manifestation of intention that a promise shall not affect legal relations may prevent the formation of a contract.
Restatement §22
The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party or parties.
Restatement §23; Necessity that Manifestations Have Reference to Each Other.
It is essential to a bargain that each party manifest assent with reference to the manifestation of the other.
Restatement §24; Offer Defined.
An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.
Restatement §33; Certainty
(1) Even though a manifestation of intention is intended to be understood as an
offer, it cannot be accepted so as to form a contract unless the terms of the contract
are reasonably certain.
(2) The terms of a contract are reasonably certain if they provide a basis for
determining the existence of a breach and for giving an appropriate remedy.
(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or
as an acceptance.
Offer (elements)
- Language of commitment
- Containing or including terms that are relatively complete
- That is communicated in such a way that the recipient reasonably believes that her acceptance is invited and will conclude the deal
Restatement §43.Indirect Communication Of Revocation
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 effect.
UCC 2-205
- An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable,
- for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months;
- but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.
Restatement § 63
Unless the offer provides otherwise,
(a) an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree’s possession, without regard to whether it ever reaches the offeror; but
(b) an acceptance under an option contract is not operative until received by the offeror
Restatement § 39. Counter-offers
- A counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer.
- An offeree’s power of acceptance is terminated by his making of a counteroffer, unless the offeror has manifested a contrary intention or unless the counteroffer manifests a contrary intention of the offeree.
