Quiz 3 Flashcards

Question

Acceptance online - types of shrinkwrap agreements

Answer 1

- clickwrap - browsewraps - hybridwrap

Answer 2

Display the proposed terms on screen and require users to accept them by clicking an “I agree” button (courts say this is binding)

Answer 3

A type of online contract in which websites seek consent by placing a hyperlink on the Web page. Users can gain access to the terms of the agreement through this link, but they are not required to click on it.

Answer 4

combine elements of clickwraps and browsewraps and have three distinguishing features. First, the terms of the agreement are not visible, but rather accessible through a hyperlink. Second, adjacent to the hyperlinked terms is a click-to-consent button, usually labeled “continue” or “place your order” Third, hybridwraps include a notice informing the user that, by clicking the button, the user is agreeing to the terms of the hyperlinked agreement.

Answer 5

If an offer demands acceptance in a particular method or manner, the offeree must follow those requirements. If the offer does not specify a type of acceptance, the offeree may accept in any reasonable manner and method.

Answer 6

An acceptance is generally effective upon dispatch, meaning the moment it is communicated and out of the offeree’s control. Once an email or text has been sent, it is assumed to have been received by the intended recipient—whether or not they are opened or read. (The Mailbox Rule)

Answer 7

Acceptance is generally affective upon dispatch, meaning the moment it is communicated and out of the offeree's control Once an email or text has been sent, it is assumed to have been received by the intended recipient - whether or not they are opened or read (Terminations usually are not effective until received. With email and texts, communications are deemed to be received the moment that they are sent.)

Answer 8

The inducement, price, or promise that causes a person to enter into a contract and forms the basis for the parties’ exchange (If one side gets all the benefit and the other side gets nothing, then an agreement lacks consideration and is not an enforceable contract. Consideration is proof that the parties intended to be bound to their promises.)

Answer 9

- value - bargained-for exchange

Answer 10

Consideration requires legal benefit to the promisor or legal detriment to the promisee. Legal benefit means receiving something of measurable value. That thing can be money, groceries, insurance, a promise not to sue, or anything else of value to the promisee.

Answer 11

When something is sought by the promisor and given by the promisee in exchange for their promises The parties must bargain for the consideration Courts do not analyze the economic terms of an exchange to determine whether consideration was adequate

Answer 12

- act - forbearance - promise to act or forbear

Answer 13

Any action that a party was not legally required to take in the first place

Answer 14

Refraining from doing something that one has a legal right to do - the opposite of an act

Answer 15

A promise to do (or not do) something in the future counts as consideration. When evaluating whether consideration exists, the promise to mow someone’s lawn next week is the equivalent of actually doing the yardwork.

Answer 16

- illusory promise - preexisting duty - past consideration

Answer 17

Not consideration, not committing like a promise, subjective (He said he would buy the bicycle if he liked it, keeping for himself the power to get out of the agreement for any reason at all. He is not committing himself to do anything, and the law considers his promise illusory—that is, not really a promise at all. An illusory promise is not consideration.)

Answer 18

Requirements and Output Contracts under the UCC (Section 2-306 expressly allows output and requirements contracts in the sale of goods) Additional work Modification Unforeseen circumstances Parties agree in advance Promissory Estoppel

Answer 19

If someone provides a service that she is already obligated to do, that act does not count as consideration.

Answer 20

A completed act cannot be the basis for consideration. (valid consideration when the parties agree that it will be in advance)

Answer 21

a theory courts use to enforce promises that are not contracts, it applies when a defendant makes a promise, which the plaintiff reasonably relied on, and enforcing that promise is the only way to avoid injustice

Answer 22

whether it was liquidated or unliquidated

Answer 23

A debt in which there is no dispute about the amount owed If the creditor agrees to take less than the full amount as full payment, her agreement is not binding

Answer 24

Different Performance - If the debtor offers a different performance to settle the liquidated debt, and the creditor agrees to take it as full settlement, the agreement is binding.

Answer 25

Accord and Satisfaction 1. it the parties dispute whether any money is owed or 2. the parties agree that some money is owed but dispute how much. Such a compromise will be enforced if: - The debt is unliquidated, - The parties agree that the creditor will accept as full payment a sum less than she has claimed, and - The debtor pays the amount agreed upon

Answer 26

A completed agreement to settle a debt for less than the sum claimed

Answer 27

The first exception concerns “organizations,” which typically are businesses. The general rule of §3-311 is potentially calamitous to them because a company that receives thousands of checks every day is unlikely to inspect all notations. The second exception allows a way out to most creditors who have inadvertently created an accord and satisfaction. If, within 90 days of cashing a “full payment” check, the creditor offers repayment of the same amount to the debtor, there is no accord and satisfaction.

Answer 28

In a non-compete agreement, an employee promises not to work for a competitor for some time after leaving the company. It used to be that these covenants were rare and reserved for top officers, but they have now become commonplace throughout many organizations. In many cases, an employer proposes this agreement after the employee is already on board.

Answer 29

Some promises should not be broken. No one wants to live in a society where donors to charity go back on their word or promises to widows and orphans are ignored. These are commitments whose obligation is moral, not necessarily legal, in nature. Under some circumstances, courts will uphold agreements with “moral consideration.”

Answer 30

The courts examine whether consideration exists, but will seldom inquire if it was enough consideration or a smart financial deal. This is the “peppercorn rule.”

Answer 31

In most states, payment by a check that has a “full payment” notation will create an accord and satisfaction unless the creditor is an organization that has notified the debtor that full payment offers must go to a certain officer.

Answer 32

void and unenforceable

Answer 33

To discourage people from making illegal deals, courts will not ratify them - Courts will not enforce bargains that involve criminal activity

Answer 34

A gambling contract is illegal unless it is a type of wagering specifically authorized by state statute.

Answer 35

Anyone taking out a policy on the life of another must have an insurable interest in that person.

Answer 36

criminal activity, gambling, insurance, and usury

Answer 37

When a licensing requirement is designed to protect the public, any contract made by an unlicensed worker is unenforceable. When a licensing requirement is designed merely to raise revenue, a contract made by an unlicensed person is generally enforceable.

Answer 38

Usury laws prohibit charging excess interest on loans.

Answer 39

A judge may declare a contract void even if it does not violate a statute. Contracts that promote immorality or illegality are unenforceable. One court refused to enforce a contract for the sale of a company because its main business was the manufacture of illegal drug paraphernalia. It reasoned that such a contract would have a negative impact on society. This section examines cases in which a public policy prohibits certain contracts.

Answer 40

Recall that a non-compete agreement is a contract in which one party agrees not to compete with another in a stated type of business. To be valid, an agreement not to compete must be part of a larger agreement. Sale of a business - When a non-compete agreement is ancillary to the sale of a business, it is enforceable if reasonable in time, geographic area, and scope of activity

Answer 41

- They are reasonably necessary for the protection of the employer - They provide a reasonable time limit - They have a reasonable geographic limit - They are not harsh or oppressive to the employee - They are not contrary to public policy

Answer 42

unenforceable when it attempts to exclude an intentional tort or gross negligence unenforceable when the affected activity is in the public interest, such as medical care, public transportation, or some essential service unenforceable when the parties have greatly unequal bargaining power unenforceable unless the clause is clearly written and readily visible Very common in bailment cases

Answer 43

Giving possession and control of personal property to another person

Answer 44

One who creates a bailment by delivering goods to another

Answer 45

A person who rightfully possesses goods belonging to another

Answer 46

one that a court refuses to enforce because of fundamental unfairness (Even if a contract does not violate any specific statute or public policy, it may still be void if it “shocks the conscience” of the court. Historically, a contract was considered unconscionable if it was “such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.”)

Answer 47

One party uses its superior power to force a contract on the weaker party

Answer 48

procedural and substantive unconscionability

Answer 49

A contract with extremely one-sided and unfair terms

Answer 50

With the creation of the Uniform Commercial Code (UCC), the law of unconscionability got a boost. The Code explicitly adopts unconscionability as a reason to reject a contract. Although the Code directly applies only to the sale of goods, its unconscionability section has proven to be influential in other cases as well, and courts today are more receptive than they were 100 years ago to a contract defense of fundamental unfairness.

Answer 51

must also be sure that the contract is legal

Answer 52

A purely speculative contract—whether for gambling or insurance—is likely to be unenforceable

Answer 53

Open price Output contract & Requirements contract (Output and requirements contracts are by definition incomplete, since the exact quantity of the goods is unspecified. The Code requires that, in carrying out such contracts, both parties act in good faith. Neither party may suddenly demand a quantity of goods (or offer a quantity of goods) that is disproportionate to their past dealings or their reasonable estimates.)

Answer 54

When the terms are too lengthy and complicated to print, so the box includes a notice that the more detailed terms are inside, acceptance occurs

Answer 55

Whether acceptance is done in person or by mail, telephone, email, text, or fax

Answer 56

Whether the offeree accepts by promising, by making a down payment, by performing, and so forth

Answer 57

The parties can form a contract only if they have a meeting of the minds which requires that they understand each other and show that they intend to reach an agreement

Answer 58

Clickwrap agreements are generally enforceable, but browsewraps are only enforceable when websites prove that the user knew about the terms. Hybridwraps are enforceable if the notice is conspicuous and near the click-to-consent button.