Midterm Review Flashcards
What is specific performance?
One of the two main types of relief.
Specific performance = the party in breach is ordered to render the promised performance.
This will NOT be granted when there is a complete and adequate remedy at lay (monetary).
Even if there is a clause in a contract for specific performance it does not bind a court to grand the alleged remedy.
Specific performance is not available unless the plaintiff can show that remedy of damages is inadequate and the equites favor specific enforcement.
Specific performance is common with real estate/land because it is generally considered unique.
Monetary Remedies
Party in breach is ordered to pay.
This type of relief is highly preferred.
Normally expectation damages which awards a sum of money to the aggrieved party to compensate for the loss of the economic gain that the party reasonably expected from the contract. “Make the person whole”
Example: Hired painter for 500, he breached so I had to hire another for 550. Expectation damages = 50 (could be additional damages like if I had to pay rent or something while I waited for substitute transaction).
Contract remedy does not seek to compensate for noneconomic consequences.
What is UCC Article 2, what does it apply to, and why is it significant?
Article 2 is standardized law that applies to transaction in (or sales of) goods.
Goods are all things which are movable.
It matters because sometimes we treat the sale of goods (Article 2) differently than other contracts.
What do we do in a situation where the transaction involves both goods and non-goods? Give an example.
For hybrid transactions, we apply the Predominant Purpose Test (what was the primary purpose behind this transaction?).
Examples: Hire a painter to paint living room but also have to buy the paint.
Buy groceries but also have them delivered.
Four factors of the Predominant Purpose Test
- The nature of the contract (what was the contract about?)
- The nature of the business of the supplier of goods and services (what is the seller known for? What is the seller’s basic operation? what does the seller normally do?)
- The reason the parties entered the contract (was the buyer trying to get the good or the service?)
- The amounts paid for the rendition of services and goods.
Who qualifies as a merchant under Article 2 of the UCC?
UCC 2-104(1)
1. Someone who routinely buys/sells these kinds of things or
2. They are (or acts in a way that creates a reasonable impression of being) an expert / having different knowledge or skill about these goods or practices involved in the transaction.
a. This ^ distinguishes a casual or occasional buyer/seller from a professional who is expected to have familiarity with this type of transaction.
b. Clothing retailer is a merchant in regards to clothing, but maybe also as shop fittings, inventory software, etc.
3. You hired somebody who meets 1 or 2 as your agent.
How do we evaluate intent or individual assent?
Objectively. We use the objective test of assent: How would a reasonable person (in the position of the person to whom the statement was made) understand the statement/expressions/actions?
EXCEPTION = we will not allow someone to take advantage of the objective theory if they subjectively “know better” that the offer was a joke, sarcasm, etc.
How does the objective test of assent apply to terms & conditions?
If the offeree, in ignorance of the terms (doesn’t read), but acts justifying another party to infer assent (sign), a contract will be formed.
However… The duty to read the terms is affected by the degree to which the terms presentation would put a reasonable prudent offeree on inquiry notice that they exist. (ex: really tiny print, hidden, hard to read/see would NOT form a contract because a reasonable person would have no idea that they assented).
Components of a contract
Restatement §17: requires (1) manifestation of mutual assent and (2) consideration
Components of mutual assent
Restatement §24 Offer & acceptance
Definition of an offer
§ 24 “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?”
Is there objective intent, and does the statement contain enough certain, definite, and complete terms (§ 33) in order to justify another person in thinking their agreement will conclude and complete a contract.
What kinds of detail can help with/ §33?
Firm language
Price
Quantity
Date/timing
Terms of payment
Limitation language
How do we judge intent to accept?
Restatement §50(1) tells us that intent is again objectively measured and that acceptance must be knowing, voluntary, and deliberate.
What form/method is a valid acceptance?
§30(1) the offeror can require acceptance to be made by any procedural terms they want.
§50(2) acceptance must be in the manner prescribed in the offer and on the terms prescribed in the offer.
If offer is silent regarding procedural terms = §30(2) states that an offer can be accepted by any medium reasonable in the circumstances.
If the offer is unclear/doubt as to whether it is inviting a bilateral or unilateral contract, §32 states that the offeree is free to accept either by promise or performance.
How much can substantive terms in an acceptance vary from the offer?
Mirror Image Rule = for an acceptance to be effective, the offeree must accept the exact same terms of the offer.
Strict application = everything must be the same to the smallest detail (Roth v. Manson)
Most new case law has been more forgiving and allow for intended acceptances to be valid where the differences between the terms are immaterial or minor.
