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LAS204 - Contracts > Midterm Review > Flashcards

Midterm Review Flashcards

1
Q

For a contract to be formed, the parties must have (1)

A

mutual assent

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2
Q

An offer made in jest, even accepted by the offeree, is not an (1)

A

enforceable contract

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3
Q

An offer can be accepted only by a person who (1) and (2). If a person does not know about an award but returns the dog anway, this does not constituted valid (3).

A
  1. knows about the offer
  2. intends to accept
  3. acceptance
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4
Q

Definition of a contract

A

Oral or written agreement between two or more persons that is an exchange relationship, involving at least one promise and which is legally enforceable.

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5
Q

Bilateral contract

A

A contract in which both parties make promises

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6
Q

Unilateral contract

A

A contract formed by one party acting in response to a promise made by another party

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7
Q

Express contract

A

A contract in which–either orally or in writing–the terms are stated clearly, definitively and unambiguously

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8
Q

Implied contract

A

A contract manifested either verbally or by action, that does not have expressly stated terms

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9
Q

executed contract

A

a contract in which all obligations have been met

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10
Q

promise

A

an undertaking to act or to refrain from acting in a specified way at some future time

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11
Q

void

A

having no legal effect, as if it never existed–thus, not enforceable

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12
Q

agreement

A

a meeting of the minds

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13
Q

voidable

A

one mor more party may, at its option, invalidate the contract

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14
Q

promissory estoppel

A

theory under which a promise can be enforced, depite lack of consideration, because of reliance on that promise and knowledge of that reliance

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15
Q

objective theory of contracts

A

standard by which it is determined whether there was a meeting of the minds–mutual assent–between parties. Asks whether the ordinary, reasonable, prudent (ORP) person would believe a contract was formed.

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16
Q

offer

A

an indication of willingness to enter into a contract, communicated to the offeree

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17
Q

acceptance

A

manifestation of asset to the terms of an offer, in a way invited or required by the offeror

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18
Q

5 rules of offer and acceptance

A
  1. offer must be communicated to the person/persons to whom it is addressed (must be known by offeree)
  2. offer must indicate a desire to enter into a contract
  3. offer must be directed at some person or group of persons (defined or sometimes undefined)
  4. offer must invite acceptance–offeror can stipulate terms of the acceptance (e.g., reasonable, timely)
  5. offer must create reasonable understanding that upon acceptance, a contract will arise without further approvial or action on the part of the offeror
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19
Q

Is an offer in jest able to be accepted for an enforceable contract?

A

No. The offer does not indicate a desire to enter into a contract, and does not create reasonable understanding that upon acceptance, a contract will arise.

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20
Q

Is an advertisement an offer?

A

No. An advertisement is an offer to “negotiate” because it is aimed generally. If the offeree is more clearly identified and terms are defined, it can become an offer that upon acceptance creates a contract.

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21
Q

Is an auction an offer?

A

No. It is a solicitation for bids. Unless the auction is said to be “without reserve,” the auctioneer may withdraw the item at any time prior to bid-taking. The bidder may also withdraw his bid at any time.

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22
Q

Are negotiations an offer?

A

No. Negotiations are the communication that you “will consider this price.” They are a statement of future intentions, whereas an offer requires present intent.

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23
Q

Are intents to contract in the future offers?

A

No. (e.g., letters of intent, negotiations)–offers must involve present intent to enter into a bargain. Future intent does not imply readiness to be bound.

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24
Q

Is acceptance by silence valid acceptance?

A

At common law, it was invariably not. There are some exceptions, however, such as silence when a service is knowingly being done and the offeree does noting to stop it–will have to pay quantum meruit to avoid unjust enrichment–this becomes a quasi-contract. Exceptions are also subject to subjective determination–such as with book clubs.

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25
Q

Option contract

A

A contract with a promise to keep an offer open for a stated period of time.

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26
Q

Consignment contract

A

an arrangement under which goods are placed for sale, but titled does not transfer to the seller

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27
Q

Mailbox rule

A

Exists in absence of specification as to timing of acceptance. Acceptance in this case happens as soon as the expression of it is out of the offeree’s possession (e.g., when hitting “send” in email). Occurs when dispatched by appropriate means.

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28
Q

letter of intent

A

an agreement in principle. Not a contract–contract will follow.

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29
Q

Quantum meruit

A

“As much as is deserved.” Equitable theory of measurement of damages to avoid unjust enrichment

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30
Q

mirror image rule

A

common law rule that acceptance of an offer must be identical to the offer–the slightest deviation in language constitutes a counter-offer

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31
Q

quasi-contract

A

a contract that did not form but in fairness is upheld by the courts to avoid unjust enrichment

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32
Q

counter-offer

A

An alternative offer made by the offeree that acts to reject the original offer

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33
Q

manifestation of mutual assent

A

appearance that an agreement has been reached–that there is a meeting of the minds

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34
Q

by operation of law

A

an offer may be terminated by events such as death of a party, illegality, passage of time, or destruction of the subject matter

35
Q

consideration

A

something promised or done that has the effect of making an agreement legally enforceable

36
Q

Difference between a contract and a gift

A

Consideration makes a contract enforceable as a contract, rather than unenforceable as a gift. (e.g., “no purchase necessary” in contests avoids a contractual relationship)

37
Q

pre-existing duty

A

a promise to do something one already has a legal obligation to do, or forbear doing something one is not legally entitled to do–neither of which makes for a valid contract

38
Q

illusory

A

consideration that appears to obligate a party but in reality does not

39
Q

sham consideration

A

The Stated consideration did not really occur. The term consideration is used, but it not given.

40
Q

accord and satisfaction

A

agreement by parties to give and accept payent different from what was stated in the original contract

41
Q

condition precedent

A

an event that must occur before a contemplated contract is complete

42
Q

liquidated debt

A

a debt, the amount of which is not in dispute

43
Q

not doing something one is legally entitled to do

A

forbearance

44
Q

bargained for exchange (bargain)

A

each party gets something to which it was not entitled before the contract, and each party gives up something

45
Q

gift

A

executed transfer of property, without consideration, and for which the receiver of the propety is not required to do anything in return

46
Q

identification clause

A

clause in a contract that can identify parties and addresses, dates and the type of contract

47
Q

recital clause

A

clause in a contract that sets out offer and acceptance and may include background and the reason for the contract. Not part of the contract.

48
Q

body of the contract

A

part of the contract that sets out terms and conditions, obligations and responsibilities of the parties

49
Q

parol evidence rule

A

applies to oral or written negotiations done before completion of the integrated contract which are not admissable as evidence because they contradict or change the integrated contract

50
Q

boilerplate

A

standard language that can be included in any contract because it is not adapted to the specific parties or circumstances

51
Q

legalese

A

formal, archaic language use in contracts to impress clients

52
Q

scrivener’s error

A

a typographical error or a drafting defect

53
Q

self-proving document (clause)

A

a document for which the signatures have been verified and sworn to before a notary public. Can be admitted as evidence without the need to call those who signed the document/clause

54
Q

merger clause

A

clause that states that the contract is complete and final

55
Q

incorporated by reference

A

reference to an outside document not part of the contract but which parties wish to make part of the contract by referencing it

56
Q

invalid assent is (1) that (2). It can be (3) or (4).

A
  1. wrongful conduct
  2. invalidate assent
  3. non-intentional
  4. intentional
57
Q

misrepresentation

A

a false statement made without intent to deceive upon which a party justifiably relies to his or her detriment

58
Q

fraud

A

a false statement made with the intent to deceive and upon which a party justificably relies to his or her detriment

59
Q

fraud in the inducement

A

fraud that relates to the party’s motivation for entering the contract

60
Q

fraud in the execution

A

fraud that relates to the nature of the actual contract/ agreement

61
Q

silence as fraud

A

having a duty to disclose but knowingly concealing the truth

62
Q

puffing

A

opinion; “sales talk”

63
Q

mutual mistake

A

all parties are mistaken as to a basic assumption of the contract

64
Q

unilateral mistake

A

only one of the parties is mistaken as to a basic assumption of the contract

65
Q

undue influence

A

where one party has a strong influence over the other party and abuses their position of dominance to the disadvantage of the other party.

66
Q

unconscionable contract

A

A contract that is so unfair or so unreasonable that it “shocks” the conscious.

67
Q

Duress

A

A wrongful threat or act that overcomes the free will of the other party.

68
Q

intent to deceive

A

Knowingly. Knowledge that a statement is false and is offered to induce another party into an agreement.

69
Q

justifiable reliance

A

The reliance upon the other party’s assertion is reasonable, and to the detriment of the person so relying.

70
Q

basic assumption of fact

A

A fact that is an essential term of the contract.

71
Q

fiduciary relationship

A

One party is obligated to act in the best interest of another party.

72
Q

bargaining power

A

the ability to negotiate; the ability to influence

73
Q

scienter

A

having a guilty mind, knowledge of the falsity

74
Q

Severable (Severability Clause)

A

Clause that states that if a part of a contract is unenforceable the courts may severe, edit out, the unenforceable clause and enforce the remainder of the agreement.

75
Q

Cognovits (Confession of judgment clauses)

A

It is a clause that permits the immediate entry of judgment without notice or opportunity to present a defense.

76
Q

Exculpatory clause

A

an attempt by a party to excuse themselves from liability for their own tortious acts

77
Q

indemnification clause

A

When one party agrees to compensate the other party for any losses they may incur that arise from the contract.

78
Q

contrary to public policy

A

Something that is not good for society

79
Q

insurable interest

A

One must have a legitimate financial interest in a person to insure their life.

80
Q

arms length transaction

A

the parties are operating under equal status and have equal negotiating power.

81
Q

moral turpitude

A

To act contrary to the duties which a man owes to their fellow man or to society in general. It is conduct that is contrary to justice, honesty, modesty, or good morals.

82
Q

covenant not to compete

A

provision under which party agrees to refrain from engaging in specified business activities

83
Q

The 10 areas that wil probably relate to hypothetical scenarios

A
  1. fraud in the inducement
  2. the Parol Evidence Rule
  3. Offers made in jest
  4. illusory consideration
  5. Promissory Estoppel
  6. Intent to contract
  7. offer and acceptance
  8. mutual mistake
  9. contract v. gift
  10. misrepresentation

LAS204 - Contracts (23 decks)

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