Second Issue: Formation of a K Flashcards
def of K (2 part)
1) an agreement
2) that is legally enforceable
- first look to agreement, then to see if enforceable
when looking at an agreement watch what type of info n question about
1) the initial communication (offer) and
2) what happens after the initial communication (termination of offer)
3) and who responds and how she responds (acceptance
generally what is an offer?
a MANIFESTATION of commitment
- maniffestation of willingness to K.
what to look for to determine if an offer was made
look for WORDS and CONDUCT showing COMMITMENT by that person.
what is the basic test if there was an offer
w/e a REASONABLE PERSON in the position of the oferee would believe that his or her assent creates a K.
if you see the words “believed or intended” is there an offer?
NO. dont care subjectively, look objectively if reasonable person would think offer
what is the effect of a MISSING price term in SALES K for sale of RE (CL)
PRICE and LAND description REQUIRED in order for a communication to be an offer to sell land
what 2 things need to be in offer to sell land (cl)
1) price and
2) land description
does a sale of RE require price to be included (CL)
YES
for a sale of goods (UCC) does a communication to offer to buy or sell goods need a price term
NO
what is the rule for price term for sale of goods (UCC)
a communication can be an offer to buy or sell goods W/O a price term IF PARTIES SO INTENDED
is a vague or ambiguous MATERIAL term an offer under CL
NO. vague or ambigous MATERIAL terms are not an offer
are vague and ambigious MATERIAL terms an offer under UCC
NO. vague or ambiguous MATERIAL terms not an offer under either UCC or CL
words to look for vague and ambigious terms for material
1) appropriate
2) fair
3) reasonable
- these words cannot create an offer
is a requirements or output contract vague or ambiguous
NO and are valid
what is a requirement K`
BUYERS requirement to buy from seller
what is an output K
SELLER sells to buyer
is a contact for the SALE OF GOODS ok if it states the quantity of goods to be delviered under the K in terms of the buyers requirement or sellers output
YES
words to look for when dealing with requirement/ output K
1) all
2) only
3) exclusively
4) solely
what is the rule for INCREASE requirement K
buyer can increase requirements SO LONG as increase is in the line with prior demands.
- NO UNREASONABLY DISPROPORTIONATE limitation on increase
general rule are advertisement or price quotation offers
NO. Gr advertisement or price quotation is NOT an offer
3 x/c that advertisements or price quotations are NOT offers
1) an ad can be UNILATERAL offer if it is in the nature of REWARD
2) an ad can be an offer if it SPECIFICS QUALITY and EXPRESSLY indicates who can accept (Ex: first come first serve
3) price quote can b an offer if it is sent to an inquiry
4 methods of TERMINATING an offer
1) LAPSE of time: time stated or reasonable time
2) DEATH of a party PRIOR to acceptance
3) WORDS or CONDUCT of offeror: revocation of offer
4) WORDS or CONDUCT of offeree: rejection
what if an offer does not have a time period, how long will it last
for a reasonable time
GR does death or incapacity of either party AFTER offer BUT BEFORE ACCEPTANCE terminate an offer
YES
what is the X/C that death or incapacity of either party after an offer but before acceptance terminates a K
irrevocable offers
how is an offer revoked by statements by offeror
later UNAMBIGUOUS statement by offeror to OFFEREE of unwillingness or inability to K
how is an offer revoked by conduct by offeror
later UNAMBIGUOUS conduct by offeror indicating an unwillingness or inability to K that offeree is AWARE OF
does offeree need to be aware of (have notice) that oferor revoked offer?
YES. oferee needs notice
who is the only part that can REVOKE an offer
offeror
is making multiple offers to different offerees a revocation?
NO, merely making multiple offers does not make a revocation
difference b/w revocable offers and irrevocable
revocable= possibility irrevocable= no possibility revoked= actuality
what is the GR about irrevocable offers
GR is that offers can be freely revoked by the offeror
what are the 4 x/c that offer cannot be revoked (is irrevocable)
1) option k:
2) UCC “Firm Offer Rule:
3) Reliance
4) unilateral K
what is an option K
an offer cannot be revoked if the offeror has not only made the offer but also
1) PROMISED to not revoke (or promise to keep open)
AND
2) this promise is supported by payment or OTHER CONSIDERATION
what are the 2 elements needed for an option K
1) PROMISED to not revoke (or promise to keep open)
AND
2) this promise is supported by payment or OTHER CONSIDERATION
does an option K need consideration
YES
when does Firm Offer Rule apply
UCC
what is the UCC Firm Offer Rule
an offer cannot be revoked for up to 3 months if
1) offer to buy or sell goods
2) signed, WRITTEN PROMISE to keep the offer open and
3) party is a merchant
how long can a UCC FIRM OFFER be open
up to 3 months
what are the elements for UCC Firm offer
1) offer to buy or sell goods
2) signed, WRITTEN PROMISE to keep the offer open and
3) party is a merchant
who is a merchant
GENERALLY a person in business
does the UCC Firm offer rule require consideration or payment
NO
does the UCC firm offer rule NEED to state the time period for which it will stay open
NO. Courts will supply a reasonable time frame up to 3 months
does the UCC firm offer rule apply to real estate
NO only fucking goods yo
when can an offer not be revoked due to reliance
1) where reliance that is
2) REASONABLY FORESEEABLE (must be reasonable reliance)
and
3) detrimental
when can an offer for a unilateral K not be revoked
the 1) start of PERFORMANCE pursuant to an offer to enter into a
2) unilateral K makes that offer irrevocable for a reasonable time to complete performance
is mere preparation enough to make a unilateral offer irrevocable
NO. need more than mere preparation
what is the general rule when unilateral K is irrevocable
when START OF PERFORMANCE
what is the default rule to go to determine either start of performance or preparation unilateral K
assume mere preparation
who is the only one who can REJECT an offer
oferee
what are the 3 ways a rejection happens by offeree
1) counter offer
2) conditional acceptance
3) additional terms
does the additional terms of rejection apply to UCC
NO only CL for services
what does a counter offer do
terminates offer AND creates a new offer
- Offeree becomes the offeror
does bargaining terminate an offer
NO. mere bargaining does not terminate an offer
do counter offers terminate option K
NO
can a person later accept a rejected offer
NO its dead
what is the x/c that counter offers do not terminate
option K
1) if promise to keep open
and 2) consideration
when will you know that someone is a bargain and not a counter offerq
if it is QUESTION than just bargain, does not reject offer
conditional acceptance as a rejection
terminates offer
words to look for in conditional acceptance
1) if
2) only if
3) provided
4) so long as
5) but
6) on the condition that
under CL what is a conditional acceptance
REJECTION and counter offer that can be accepted by conduct
under UCC what is a conditional acceptance
rejection BUT not a counteroffer that can be accepted by conduct
under UCC can a conditional acceptance be accepted by conduct as a counter offer
NO
what does the mirror image rule apply to
only CL
what is the mirror image rule
a response to an offer that ADDS new terms is treated like a counter offer rather than acceptance
- acceptance must mirror the offer
under mirror image rule what if the new terms or changed are immaterial
if change is clearly minor dont do mirror image rule
what is it under UCC where additional or different terms not rejection
seasonable expression of acceptance
where there is
1) offer to buy or sell goods and
2) response with ADDITIONAL TERMS raises 2 questions
what are the 2 questions for seasonable acceptance for UCC
1) is there a K
- under UCC a response to an offer that ADD new terms or conditions, but does not make terms a condition, are treated as acceptance
2) is there ADDITIONAL term of a part of K
when will the additional term of K for UCC not become part of K
additional term is not part of K unless
1) BOTH parties are merchants
2) even if both are merchants the additional term is not part of K is the additional term is MATERIAL or if the additional term is objected by the original offeror
what are the 2 elements for when additional term not part of K
1) unless both parties are merchants
2) if additional term is material
what is the general rule that start of performance is acceptance
start of performance constitutes acceptance
- starting to perform is treated as an implied promise to perform
what if the offeree has started performance but the offeror has no reason to notice of the performance
generally do not have to get notice BUT if offeror has no reason to know of notice must give them notice or not acceptance
what is the x/c that start of performance is not acceptance
start of performance is NOT acceptance of UNILATERAL K
what does a unilateral K need for performance for starting
COMPLETION OF PERFORMANCE IS REQUIRED
if an offeree starts performance of a unilateral k but does not finish is that a breach
NO b/c for unilateral K needs to be a completion for acceptance, just starting is not acceptance so no offer and no breach if not finish.
what are the rules for deals at 1) distance 2) delay and 3) different
the offeror and oferee are at different places and there are delays in communication
1) communications OTHER THAN ACCEPTANCE are effective only WHEN RECEIVED
2) acceptance is GENERALLY EFFECTIVE when MAILED
3) if a rejection is mailed before acceptance is mailed, then neither is effective until recieved
4) you CANNOT use the mailbox rule for option K deadline
can you use the mail box rule for option K deadline
NO
what is the general rule for communication OTHER THAN acceptance
communication OTHER THAN ACCEPTANCE are effective only when RECEIVED
what is the mail box rule
acceptance is generally effective when MAILED
what if a person sends a rejection and acceptance both in mail?
neither are effective until received. Which ever received first rules
what if a seller of goods sends the WRONG GOODS what does that mean
general rule: acceptance AND breach
what is the x/c where seller of goods sends WRONG goods
ACCOMMODATION (explanation): counteroffer and no breach
- accommodation must be sent BEFORE the buyer received goods
generally an offer can be accepted only by (2)
1) a person a KNOWS about the offer at the time she accepts
2) to whom the person it was made to, offers cannot be assigned
does a person have to KNOW about the offer at the time to accept it
YES
can offers be assigned
generally NO
x/c that offers cannot be assigned
OPTIONS can be assigned UNLESS the option otherwise provides
can a person accept a reward if they did not know of the offer
NO
what is the effect of acceptance
when an offer has been accepted, it is no longer possible for offeror to revoke or for offeree to reject.
- the caterpillar has become a butterfly LOL
when are contracts not legally enforceable (11)
1) LACK OF CONSIDERATION or consideration substitute
2) LACK OF CAPACITY
3) SOF
4) existing laws that prohibit the performance of agreement
5) public policy
6) MISREPRESENTATIONS
7) nondisclosure
8) DURESS
9) UNCONSCIONABLY
10) ambiguity in words of agreement and
11) mistakes at the time of the agreement as to the MATERIAL facts affecting the agreement
when will consideration hardly ever be problem (2)
1) commercial transaction
2) sale of goods
steps for consideration problem
1) identify the promise breaker
2) ask w/e that person asked for something in return for her promise
3) look at person trying to enforce promise and ask what requested legal detriment that person sustained
basic steps for consideration problem
1) bargained for promise breaker
2) legal determint by P
2 things need for consideration
1) BARGAINED FOR:
2) LEGAL DETRIMENT
what does bargained for mean in consideration
asked for by the promisor in EXCHANGE for her promise
- people doing stuff BECAUSE they were asked to do it
what is a legal detriment
refraining from doing something you have a legal right to do or doing doing you do not have a legal right to do
can a promise be consideration
YES
- promise can be consideration as another promise
what is the x/c that promise cannot be consideration
ILLUSORY PROMISE
what is an illusory promise
someone reserves the right to terminate the agreement at anytime w/o notice
- ALMOST NEVER RIGHT ANSWER
what if there is need of notice to terminate an agreement, does that make it illusory consideration
NO
- need advance notice, for bargained for and legal detriment
does there need to be adequacy for consideration
no
- amount of consideration is irrelevant
what is the general rule for past consideration
PAST CONSIDERATION is NOT consideration b/c not bargained for something you have already done
x/c that past consideration is not consideration
EXPRESSLY requested by promisor AND expectation of payment by promisee
is there a difference in law b/c CL and UCC for k modification as consideration
yes
pre-existing contractual or statutory duty rule for CL (k modification)
doing what you are already LEGALLY obligated to do is NOT NEW consideration for a new promise to pay you more to do merely that.
under CL do K modifications require new consideration
YES
3 x/c for CL that K modificiation requires new consideration
1) addition to or change in performance
- any change is a detriment so consideration
2) third-party promise to pay
3) SOMETHING UNEXPECTED THAT HAPPENED AFTER K
does UCC have the pre-existing K rule where k modification requires new consideration
NO
what is the UCC rule for when pre-existing K, what is required
GOOD FAITH is the test for changes to an existing sale of goods K
- new consideration is not required to modify a sale of goods K
what is the key to determine if part payment as consideration for release
w/e debt is
1) DUE and
2) UNDISPUTED
what if debt is DUE and UNDSIPUTED can part payment be consideration and release
NO
- if due and undisputed than part payment is not consideration for release
- If you owe someone NOW then there is no detriment to you for paying less
what if payment is not due yet or is disputed can part payment be consideration to release remaining debt
YES
- paying early is a detriment
(wont see on bar)
generally what are consideration substitutes
a promise is legally enforceable even though there is no consideration if there is a consideration substitute
what are the 3 consideration substitutes
1) a WRITTEN promise to satisfy an obligation for which there is a legal defense is enforceable W/O consideration
2) promissory estoppel (detrimental reliance)
3) seals
can a promise to satisfy an obligation for which there is a legal defense enforceable without consideration
YES.
Ex: D owes c 1k, legal action to collect debt is barred by SOF but D WRITES written “I know I owe you 1k, but I will pay you 500)
elements for promissory estoppel (detrimental reliance)
1) promise
2) that is reasonably relied upon
3) detrimental
4) reasonably foreseeable and
5) enforcement is necessary to avoid injustice
who lacks capacity to K
1) infants- under 18
2) mental incompetents: lacks ABILITY to understand agreement or
3) intoxicated person: IF OTHER PARTY HAS REASON TO KNOW
who is the only person who can enforce a K if party lacked capacity
THE P
- if the P is the one who lacked capacity then can enforce
- If D LACKED capacity than not enforceable K
what is the consequences of incapacity
1) right to dis affirm by person w/o capacity
- if D then incapacity is a defense
- if P then has a right to enforce
who is incapacity only important to for a party
ONLY D
what is implied affirmation (ratification) if person was incapacity
implied affirmation by retaining benefits AFTER gaining capacity then acceptance by ratification
- ex: k when 17 but turned 18 then k valid
what is a quasi-k liabilites for necessaries
a person who does not have capacity is legally obligated to pay for things that are necessary, such as food, clothing, medical care, shelter, BUT THAT LIABILITY is based on quasi-K not K law
is an incapacitated party liable for K enforcement for necessities
NO K LIABILITY even for necessaries, lack capacity
- but under quasi-k would be unfair so use that. but not K law
how to judges construe SOF
very very narrowly because they do not like it
acrnyom for things that fall within SOF
MYLEGS
1) Marriage
2) Year: service K not capable of being performed w/i 1 year from time period of the K
3) Land sales (interest)
4) Executoryships
5) goods OVER $500
6) Suretyship
what does “within” the SOF mean
covered by SOF
what is suretyship generally
promises to ANSWER FOR the debts of another
- Look for a GUARANTEE
- answer for is not merely a promise to pay someone else’s debts, but only a promise to pay another’s debts IF THAT person does not pay
should you choose the MC answer that says “promises to ANSWER FOR the debts of another for suretyship
NO, almost never pick
x/c for suretyship
MAIN PURPOSE X/C
what is the MAIN PURPOSE x/c for suretyshup
if the main purpose is for the obligation allegedly guranteeed WAS TO BENEFIT THE GURANTOR then not even that gurantee is w/i SOF
what is the requirement for 1 year of service K for SOF
service K that is NOT CAPABLE of being performed w/i 1 year FROM THE TIME OF THE contract (more than 1 year) must be in writing
what time you do look to see if a service K can be capable of being complete for the 1 year SOF period
FROM THE TIME OF THE K
is a specific time period is more than a year for service K does it need to be in writing for SOF
YES
Ex: employment K for 3 years
does termination clause in personal service K matter for a specific time period of more than 1 year?
NO still must be in writing, b/c not capable of being completed w/i 1 year
for personal service contracts not being capable of being completed w/i 1 year (SOF applies) what if the specific time is MORE than 1 year FROM DATE OF K
then must be in writing to satisfy the SOF
for a service K what if the task says NOTHING about time, does SOF apply
NO
- capable of being performed w/i 1 year so NO SOF.
for a service K that is for LIFE does it need to be in writing for SOF
NO
-life K never for SOF
what is the x/c for transfer of real estate that DOES NOT need to be in writing
LEASES OF YEAR OR LESS do NOT need to be in writing
is there ANY legal requirement for writing of a lease for 1 year or less than 1 year>
NO.
- NO LEGAL requirement for lease that is ONLY 1 year OR LESS than 1 year
is a right answer “P claims D agreed to LEASE redacre for 1 year” is this w/i SOF
NOOOOO
- will always be fucking wrong
can the SOF be satisfied by performance
YES.
what is the x/c for when there is no writing for SOF for transfer of REAL ESTATE
PART PERFORMANCE
what is the part performance x/c for SOF
part performance satisifies the SOF in transfers of real estate. REQUIRES 2 of #
1) improvements to the land,
2) payment, and
3) possession
what 2 of 3 things MUST be met for part performance x/c for SOF for real estate
1) improvements to the land,
2) payment, and
3) possession
what is the x/c for service K for SOF for FULL PERFORMANCE
FULL PERFORMANCE by either party satisifies the SOF
does PART PERFORMANCE of SERVICE K satisfy the SOF
NO. NO NO
- part performance of service K’s does not matter, does not satisify the SOF
x/c for part performance of service K that does not satisify SOF
P agrees to work for D for 3 years. P works for 13 months and then D fires her w/o cause. P sues for breach of K. D asserts SOF defense
1) has SOF been satisfied by P’s working 13 months (part performance) NO CANNOT RECOVER UNDER K LAW
2) can P recover under quasi-K law: YES, anytime k law produces an unfair result go to equity
since part performance does not for personal service K what can person do
sue in quasi- K. Anytime K law produces unfair result, go to equity
do leases for ONE YEAR or less NEED to be in writing
NO
what is the general rule for PART PERFORMANCE K for sale of goods (over 500)
part performance of a K 4 sale of goods statifies the SOF BUT
- only up to the EXTENT OF THE PART PERFORMANCE
what to look for when part performance for sale of goods that are ORDINARY (over 500) not writing
only to the extent of part performance
- look to see if question is about DELIVERED goods or UNDELIVERED goods
Is there a SOF defense for part performance of sale of goods is the goods ARE DELIVERED
NO. b/c objective proof of part performance.
Is there a SOF defense for part performance of sale of goods is the goods ARE NOT DELIVERED
YES. no objective proof, not indicate to deliver anymore
what is SELLERS part performance x/c for SOF for SPECIALLY MANUFACTURED GOODS
if the K is for sale of goods that are to be SPECIALLY MANUFACTURED, then SOF is satisfied as soon as seller makes SUBSTANTIAL BEGINNING
what are the 2 part performance rules for sale of goods (not in writing over 500) `
1) sellers performance- ORDINARY goods
(a) if delivered than SOF defense
(b) if NOT delivered NO SOF defense
2) sellers part perf.- SPECIALLY MANUFACTURED GOODS
rule for sellers part perf. for sale of goods that are SPECIALLY MANUFACTURED
SOF is satisfied as soon as seller makes SUBSTANTIAL BEGINNING
- this means that S has done enough work that it is clear what she is working on is specially made (custom made or made to order)
does every writing work to satisfy the SOF
NO
are there x/c for not need writing for SOF
yes all the performance x/c
what needs to be in writing to be ok for SOF for anything OTHER THAN ART 2
- look at contents of writing OR WRITINGS ALL MATERIAL test
what is the material test for writing of SOF
anything OTHER THAN UCC 2 NEED ALL MATERIAL TERMS
1) who and
2) what
who do you look at for the writing of SOF
there is NO SOF defense if the writing was signed by DEFENDANT (person asserting SOF defense)
who needs to sign for SOF to be satisfied
DEFENDANT
- in order for writing to matter has to be SIGNED BY D
what does the writing need to be for UCC
the writing must simply indicate that
1) there is a K for the sale of goods
2) AND CONTAIN THE QUANTITY TERM (how many)
- DOES NOT need the time delivered, court will apply “reasonable time”
what does the UCC writing requirement need
writing indicating a sale of goods and
2) CONTAIN THE QUANTITY TERM (how many)
- generally writing must be signed by D with limited
x/c for transaction b/w 2 merchants where there is a delay in responding
-DOES NOT NEED THE TIME specified, courts will fill gap with reasonable time
what is the merchant to merchant delay in responding x/c
when
1) 1 merch. receives a
2) SIGNED writing from another Merch. asserting a K to buy or sell a stated quantity of goods
3) the recipent’s failure to timely respond that there is no K provides objective evidence that satisfies the SOF
simplied the merchant to merchant delay response x/c for writing
1) sale of goods
2) both parties merchants
3) writing but only signed by P to buy or sell and states quantity of goods,
4) and D does not respond, satisfies SOF
reason to allow the merchant to merchant delay in response x/c
a business person would have responded and denied it
what is the ESTOPPEL for SOF
1) oral agreement to sell and
2) orally agree to put it in writing, estoppel from D asserting SOF defense
- only essay
what is the equal dignity doctrine
Rules of law require that person have WRITTEN AUTHORIZATION to enter into K for someone else that the authorization must be in writing ONLY if the K to be signed is w/i SOF
- the authorization must be of “equal dignity” with the K
when is WRITTEN PROOF OF AUTHORIZATION to enter into a K for someone else needed
that authorization MUST BE IN WRITING ONLY IF the K is to be signed is w/i SOF
when is the only time that the authorization to enter into K for someone NEED TO BE IN WRITING
ONLY IF THE K is to be signed falls w/i SOF
when is WRITTEN proof of a K MODIFICATION need to be in writing
1) deal with alleged changed
2) if the deal with the alleged deal needs to be w/i SOF than MODIFICATION needs to be in writing
- if the modification falls w/i the SOF, then the modification MUST be in writing
- Look at the terms of the whole change. If the modification required to k put the whole K in the SOF then needs to be in writing
if a modification agreement does not fall w/i the SOF does the modification need to be in writing
NO
Ex: decreased 3 year lease to 1 year lease. No need to be in writing
what if the K provision REQUIRES that written modification must happen under CL?
under CL: K provision requiring that all modifications be in writing ARE NOT EFFECTIVE
- ignore the K langugage
under CL if a K provision requires that ALL modifications be in writing is that effective?
NO. Only if the modification falls w/i SOF then it must be in writing under CL
under the UCC are K provisions requiring WRITTEN MODIFICATIONS effective
YES, unless waived
what is the difference b/w CL and UCC for provisions says K modifications need to be in writing
1) CL: not effective
2) UCC effective unless waived
if a K has an illegal SUBJECT MATTER will it be enforceable
NO
- if the SUBJECT MATTER is illegal the agreement is not enforceable
what if a K has an illegal purpose, will it be enforced
if the SUBJECT MATTER is legal than the agreement is enforceable if the P did not have REASON TO KNOW of the D’s illegal purpose
what are the 2 reasons courts wont enforce a K b/c against Public policy
1) exculpatory K: that exempts intentional or reckless conduct from liability or
2) covenant not to compete: w/o a reasonable need or a reasonable time and place limit
what needs to happen for a covenant not to compete to be enforceable
a reasonable need or a reasonable time and place limit
MISREPRESENTATION test to not enforce an agreement
1) statement of FACT BEFORE A K
2) only by 1 of the contracting parties or her agent
3) that is FALSE
4) that is FRAUDULENT or MATERIAL and
5) INDUCES the K
is wrongdoing required for misrepresentations
NO
- honesty/ innocent NOT RELEVANT
when must the statement of fact exist for misrepresentation
BEFORE THE K
does a person need to rely upon the fact for misrepresentation
YES
generally does a person making a K have a duty to disclose what she knows
no
what is the x/c that person making a K does not have a duty to disclsoe what they know
1) fiduciary-like relationship
2) concealment: pained over something so someone couldnt see it
difference b/w sale of goods no duty to disclose and RE duty to disclose
1) goods: NO DUTY TO DISCLOSE
2) RE: must disclose LATENT MATERIAL DEFECTS
2 different types duress
1) physical
2) economical
elements for economic duress
1) bad guy: improper threat which is usually THREAT TO BREACH EXISTING K
AND
2) “vulnerable guy”: NO REASONABLE ALTERNATIVE
undue influence
1) special relationship b/w parties and
2) improper persuasion of the weaker party
do courts generally recognize unconscionability
NO
what are the elements for unconscionability
1) PROCEDURAL unconscionability:
2) SUSBSTANTIve unconscionability:
3) tested at time of the AGREEMENT was made
4) by the court
what are the 2 types unconscionability that must be present
1) PROCEDURAL unconscionability:
2) SUSBSTANTIve unconscionability:
what is PROCEDURAL unconscionability:
the agreement process
what is SUSBSTANTIve unconscionability
the harshness of the terms
what time do the courts look at for unconscionability
AT THE TIME OF CONTRACTING
do courts look at unconscionability any time
NO only at the time of K
elements for ambiguity to not enforce K
there will be NO K if
1) parties use a MATERIAL term that is open TO AT LEAST 2 REASONABLE INTERPRETATIONS and
2) each part attaches a different meaning to the term and
3) neither party knows or has reasons to know th term is open to at least 2 reasonable interpretations
what if 1 party knows that there are 2 reasonable interpretations for ambiguity
then K of the terms of the person that understood them
generally do mutual, material mistake of fact matter
no
what is difference b/w misrepresetnation and mistake of fact
misrep: seeking relief b/c what the OTHER PARTY said was incorrect
- generally relief
mistake: relief b/c what HE DETERMINED ON HIS OWN was wrong
- generally no relief
what is the general rule for mistake of law
each party bears OWN RISK OF MISTAKE
when is the only time mutual material mistake of law will work
1) only if BOTH parties are mistaken (not just uncertain) about EXISTING facts
2) even then, no relief for mistake if the person seeking relief bears the risk of mistake
when will UNILATERAL mistake be allowed to not enforce K
1) 1 person made mistake and
2) other knows of mistake
under the mailbox rule when is acceptance
acceptance becomes effective when the LETTER IS PROPERLY addressed and put into the mail.
- does not apply if address is wrong
does the mail box rule apply to option K deadlines
no. acceptance of an option is effective ONLY when received by the offeror
what is the test for UCC modification of K
new consideration not needed, only need GOOD FAITH
under the UCC is consideration needed for modification of a K
NO only need GOOD FAITH
what is a merchant’s confirmatory memo
K b/w merchants , if 1 party w.i a REASONABLE TIME after an oral agreement is made, sends the other party a written confirmation of the agreement that is sufficient under the SOF to bind the sender, it will also bind the recipient IF
1) he has reason to know of the confirmations contents and
2) does not object to it w/i 10 days of receipt.
Sender must: set out terms of agreement and be signed by sender to bind him and the recipient
what is a merchant’s confirmatory memo
K b/w merchants if 1 party
1) w/i a REASONABLE TIME after an oral agreement is made, sends to the other party a written confirmation of the agreement
2) that is sufficient under the SOF to the bind the seller (signed by party etc), it will also bind the receipt IF
3) he has reason to know of the confirmations contents and
4) does not object to it w/i 10 days of receipt.
Sender must: set out terms of agreement and be signed by sender to bind him and the recipient
what is an offer
an expression of willingness to enter into a bargain, made with definite terms so that the other party could reasonably believe that he could conclude the bargain by accepting
what is acceptance
an assent to the terms of the offer
- acceptance must be unequivocal and communicated to offeror
what to always do in K question
UCC or CL
- state which applies and why
K formation
1) lay out offer and def
2) lay out accept and def
3) lay out consideration and def
what is perfect tender and what does it apply to
UCC
1) the goods and their delivery must conform to the contract in every way
ucc terms needed for valid K
1) just quantity term
DOES NOT need the time to be delivered
- courts will supplement with UCC Gap fillers “reasonable time”
UCC does delivery time need to be included
NO.
- only needs quantity term
- courts will supplement with UCC Gap fillers the “reasonable time” for delivery
GR: for shipping non-conforming goods
Gr: shipping non-nonconforming goods is both a breach and acceptance, b/c violates perfect tender
x/c: accommodation
x/c for shipping non-conforming goods
Accommodation letter (seasonably notify buyer of accommodation) ]
- THEN COUNTER-OFFER
- B is free to accept or reject goods
what is an accommodation shipment mean
it is a counter offer, B free to accept or reject
are option K terminated by a rejection
NO.
- option K cannot be terminated before time ends, even if rejection during the time.
x/c: but if seller relied upon rejection, cannot recover later
does an option K survive death of offeror
YES.
- GR: offer ends upon either party dies before acceptance
x/c: option K survives death, accepted anytime during option K
requirement K def:
B promises to buy from certain S all goods it requires and S agrees to sell that amount to buyer
Do counter offers terminate option K’s?
NO
Does bargaining terminate offer?
NO
How to know a bargain from rejection?
QUESTIONS ARE ALWAYS BARGAINING
