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A. Aaall classes > Mutual assent > Flashcards

Mutual assent Flashcards

1
Q

what is mutual assent

A

offer + acceptance

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2
Q

What is an offer

A

(1) A communication from the offeror that creates a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms.

(2) The terms must be definite and certain.

For a communication to constitute an offer it must contain a (3) promise, undertaking, or commitment to enter into a K. The offeree must be reasonably identified, and the subject matter must be reasonably definite.

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3
Q

What terms are required in a real estate K

A

land description and price

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4
Q

What terms are required for sale of goods

A

quantity term

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5
Q

What is a requirement contract

A

Buyer promises to buy from a certain seller all the goods the buyer requires and seller agrees to sell that amount to the buyer

seller agrees to sell all that the buyer requires

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6
Q

In a requirements contract what are the obligations of a buyer and a seller?

A

buyer - has to buy everything from the seller

seller - has to furnish buyer with everything buyer requires BUT can also sell elsewhere

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7
Q

What is a output contract

A

Seller promises to sell to a certain buyer all the goods the seller produces and buyer agrees to buy that amount from the seller

buyer agrees purchase all of seller’s output

HINT: seller and output have the same number of letters (6)

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8
Q

In an output contract what are the obligations of a buyer and a seller?

A

buyer - buyer promises to buy all of seller’s output but can buy from elsewhere too (as long as buyer has bought all of seller’s output)

seller - seller can only sell to buyer (since buyer has promised to buy all the output)

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9
Q

What terms are required in a service k

A

nature of the work

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10
Q

Types of terminations

A
  1. By offeror
    1. Revocation
      1. direct/express
      2. indirect/implied
  2. By offeree
    1. Lapse of time
    2. Re**j**ection
      1. express rejection
      2. counteroffer
  3. By law
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11
Q

*termination*

When the offeree makes their acceptance conditional, then it is:

A

a rejection!

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12
Q

a rejection is effective when

A

received by offeror

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13
Q

a revocation is effective when

A

when received by offeree

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14
Q

How is an offer indirectly revoked

A

when reliable 3rd party indicates to offeree that offeror is no longer willing or able to contract

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15
Q

a revocation by publication is effective

A

WHEN it is published

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16
Q

Does MBR apply to revocation

A

NO! effective when received

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17
Q

Offers that cannot be revoked (by offeror)

AKA: Irrevocable offers

A
  1. Option K
  2. Merchants firm offer
  3. Detrimental Reliance
  4. Beginning performance under unilateral k
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18
Q

When is an option K created

A

created when offeror promises to keep the offer open for a certain period of time PLUS consideration by offeree

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19
Q

Does a counteroffer kill an option K

A

A counteroffer will still not kill the original option contract because the option is being held open for a certain period

20
Q

What is a merchant’s firm offer

A
  1. merchant promise (signed + in writing ) to keep an offer open
  2. during a period of time and
  3. if no time stated then a reasonable time BUT the reasonable time may not exceed 3 months (if period is 3 mo. then no consideration needed); applies only to sale of goods
21
Q

Who needs to be a merchant in the merchant’s firm offer

A

only the offeror must be a merchant

22
Q

Is consideration needed for a merchant’s firm offer

A

NO.

A merchant’s firm offer is enforceable even if no consideration has been paid by the offeree to keep the offer open

23
Q

What is detrimental reliance

A

When offeror could reasonably expect that offeree would reasonably rely to their detriment on the offer and offeree does so rely … then offer becomes irrevocable … will be held as a option K for a reasonable length of time

24
Q

When can a unilteral K be revoked

A

Before beginning performance

25
Q

list (3)

How can K be terminated by operation of law

A
  1. Death or insanity of either party unless option K
    1. note: death or insanity need not be communicated
  2. Destruction of proposed K’s subject matter -OR-
  3. Supervening illegality
26
Q

What is acceptance

A

Acceptance is a timely manifestation of assent to the terms of the offer

27
Q

How does acceptance work for bilateral k?

A
  1. promise to perform -OR-
  2. beginning performance
28
Q

list (2)

Article 2 invites acceptance through

A
  1. promise to ship -OR- promise to perform
  2. current or prompt shipment of conforming OR nonconforming goods beginning performance
29
Q

Under, CL acceptance must

A

mirror the terms of the offer

30
Q

Under CL, any different or additional terms

A

are considered a rejection and counteroffer

31
Q

Under unilateral K, acceptance occurs when

A

performance is completed

32
Q

Does silence constitute acceptance

A

No unless it is

  1. implied silence or
  2. agreed upon silence
33
Q

Under UCC, when seller sends nonconforming goods, this constitutes

A

substitution

34
Q

Under UCC, when seller sends nonconforming goods with a note explaining why and sends the nonconforming goods as a substitute, then

A

the goods are merely an accommodation

35
Q

When seller sends nonconforming goods with note (iow: accommodation), and buyer does not accept, is the seller in breach?

A

No because seller sent nonconforming goods as a substitute

36
Q

breach vs accommodation when shipping nonconforming goods

A

breach - seller discovers they dont have the specified goods and sends nonconforming goods as an accommodation

accommodation - seller notifies buyer that he lacks the specified goods, notifies buyer that he will be shipping nonconforming goods as an accommodation

37
Q

When seller sends nonconforming goods with note, is buyer required to accept?

A

No is not required to accept and buyer can reject

38
Q

List (3)

Additional terms added to K btwn merchants unless:

A
  1. Material alteration: they materially alter the og terms (something that changes a party’s risk or the remedies available)
    • Most common is adding a clause disclaiming a warranty
  2. Limit: offer expressly limits acceptance to the terms of the offer
    1. “accepting the terms of the K as is” means that add’l terms cannot come in
  3. Objected: offeror has already objected to that particular term (or he objects within a reasonable time)
39
Q

If any party to the contract is not a merchant, the additional or different terms:

A

are considered to be mere proposals to modify the contract.

40
Q

Under MBR, acceptance is effective when

A

mailed

41
Q

list (4)

MBR does not apply to acceptance when

(iow: no contract formed)

A
  1. Offer says acceptance is effective upon receipt
  2. Option K
  3. Offeree sends a rejection then acceptance → whichever arrives first
  4. Offeree sends acceptance then rejection → acceptance effective unless rejection gets there first and offeror detrimentally relied
42
Q

Offeree sends a rejection then acceptance, which one is effective

A

whichever arrives first

43
Q

Offeree sends acceptance then rejection, which wins

A

acceptance wins unless rejection arrives first and offeror detrimentally relied

44
Q

Offeror sends offer → revokes → accepts → receive revocation

A

contract created

MBR applies, revocation effective only upon receipt

45
Q

Offeror sends offer → revokes → receive revocation → send acceptance

A

no K

revocation terminates power of acceptance

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