Studicata (and Themis Examples) - Contracts Flashcards
The gateway issue in ___ contracts and sales questions is to determine whether ____ or ____ governs.
The gateway issue in ALL contracts and sales questions is to determine whether the COMMON LAW or ARTICLE 2 OF THE UCC governs.
The _______ governs if a contract deals with services or _____. (hiring someone to mow your lawn)
The COMMON LAW governs if a contract deals with services or REAL ESTATE.
The _____ governs if a contract deals with goods (agreement to buy 100 reams of paper)
The UCC governs if a contract deals with goods.
For mixed contracts (having elements of both services and goods), 2 rules operate to determine whether CL or UCC applies:
Rule 1: Mixed contracts must fall into one category or another (UCC or CL) UNLESS it is a divisible contract; there is a limited exception for divisible contracts which can divide the goods and services portions into separate mini-contracts.
Rule 1: Predominant purpose of the contract or transaction.
A traditional, _____ contract is formed when there is:
- ________ ( ______ +_______)
- ________ and
- ____________
A traditional ENFORCEABLE contract is formed when there is
- Mutual assent (a valid offer and valid acceptance of that offer)
- Consideration; and
- No defenses to formation that would invalidate the otherwise valid contract.
To form a valid offer, the offeror must:
- Manifest an objective willingness to enter into agreement AND
- create a power of acceptance in the offered (ie the offer can say “I accept” and know that he has concluded the deal)
Objective test for OBJECTIVE silliness to enter into an agreement:
The offer is governed by an objective test, which means that outward appearances of words and actions are determinative–not subjective, hidden information (like fingers crossed behind back- irrelevant)
Generally, an offer must be directed to a _____ offered. However, there is a limited exception for ______ offers and _____ offers that promise something to anyone who __________.
Generally, an offer must be directed to a SPECIFIC offeree. However, there is a limited exception for CONTEST offers and REWARD offers that promise something to anyone who ACCOMPLISHES A CERTAIN TASK.
An advertisement is usually considered to be an _______ rather an offer because ______
An advertisement is usually considered to be an INVITATION TO DEAL rather than an offer, because advertisements usually fail to confer a power of acceptance to the other side.
Advertisements that are __________ and leave _________ may constitute offers.
Advertisements that are VERY SPECIFIC and leave NOTHING OPEN TO NEGOTIATION may constitute offers.
_________ MUST be specified in the offer in order for the offer to be valid.
Certain terms
Under ______, all essential terms must be specified in the offer. Generally, this includes 4 terms:
Under COMMON LAW all essential terms must be specified in the offer. Generally this includes: 1. parties 2. subject 3. quantity and 4. price
Under _____, the law is more willing to plug the gaps.
Under the UCC the law is more willing to plug the gaps.
Unlike the common law ________ is not required in the offer under the UCC. Generally, _____ is required under the UCC.
Unlike the common law, PRICE is not required in the offer under the UCC. Generally, only three terms are required under the UCC:
- parties
- subject
- quantities
______ and _____ contracts are valid under the UCC even though they do not specify an exact amount.
REQUIREMENTS and OUTPUT CONTRACTS are valid under the UCC.
Requirement contract
In a requirement contract, the seller agrees to sell as much as the buyer would require.
Output contract
the seller agrees to sell his entire production to the buyer.
If a ____ offer is terminated at _____ time before acceptance, the offer is _____.
If a VALID offer is terminated at ANY time before acceptance, the offer is INVALIDATED. It cannot be accepted or revived unless a new offer is made.
An offer is terminated if any of the following occur at anytime BEFORE acceptance: (7)
- The offeree rejects the offer by express communication to the offeror
- offeree learns that the offeror has taken an action that is absolutely inconsistence with a continuing ability to contract (this is called constructive revocation)
- the offered rejects by express communication
- counteroffer is expressly communicated
- offeror dies or otherwise becomes incapacitated
- A reasonable amount of time passes
- the subject matter of the offer becomes illegal or is destroyed.
The offeror is normally free to revoke at any time prior to acceptance; however, there are four types of offers that are irrevocable:
- option contracts
- firm offers
- offeree has started performing
- detrimental reliance
Option contracts
an agreement where consideration is given in exchange for a promise to keep an offer open. (I promise not to revoke for one week if you pay me 500)
Firm offers
Under the UCC, a merchant (someone who regularly deals in the type of good at issue) can make a FIRM OFFER to buy or sell goods.
A firm offer will either last ______ or for a reasonable time period not to exceed _____.
A firm offer will either last AS LONG AS STATED IN THE OFFER or for a reasonable time not to exceed 90 DAYS.
A firm offer must a) b) c)
A firm offer must be a) n writing b) contain an explicit promise not to revoke, and c) be signed by the merchant.
A unilateral offer to contract cannot be revoked by the offeror if
A unilateral offer to contract cannot be revoked by the offeror IF THE OFFEREE HAS STARTED PERFORMANCE.
A unilateral offer arises from…
A unilateral offer arises from a promise that requests acceptance by an action of the promisee.
A bilateral contract
asks for a return promise
Detrimental Reliance
An offer cannot be revoked if the offeree reasonably and detrimentally relies on the offer in a foreseeable manner.
Acceptance of an Offer
Acceptance is a MANIFESTATION OF A WILLINGESS to enter into the agreement.
Acceptance usually must be ______ to the other party. Silence generally does not manifest willingness unless____________.
Acceptance usually must be communicated to the other party. Silence generally does not manifest willingness unless there is a past history of silence serving as acceptance.
The offeror is the _____________.
Master of the Offer. This means that the offeree MIST accept the offer according to the rules of the offer (whether the offer is bilateral or unilateral)
For bilateral contracts ____________ manifests acceptance.
For bilateral contracts, the START OF PERFORMANCE manifests acceptance.
For unilateral contracts, the start of performance ________________
For unilateral contracts, the start of performance only makes the offer IRREVOCABLE– the offer is ONLY accepted once PERFORMANCE IS COMPLETE.
Acceptance is governed by an objective test, meaning
that the outward appearances of words and actions are determinative— not hidden intentions
The offer must be ___________ to the person trying to accept it—-cannot accept an offer directed _____.
The offer must be SPECIFICALLY DIRECTED to the person trying to accept it– cannot accept an offer directed elsewhere (for open-to-all contests and reward offers, the person must KNOW about the contest or reward offer in order to accept it)
Remember if a valid offer is terminated __________________ acceptance, the offer is invalidated. It CANNOT be ______ unless _____.
Remember if a valid offer is terminated AT ANY TIME BEFORE acceptance, the offer is invalidated. It CANNOT be ACCEPTED OR REVIVED unless A NEW OFFER IS MADE.
Mailbox Rule
An acceptance that is sent by mail, email or fax is valid at the moment of dispatch (not when the letter is received) UNLESS
- the offeree-sender uses the wrong address or has improper postage
- the offeror expressly stipulates that the acceptance is valid upon receipt
- an option contract is involved
- The offeree-sender sends a termination letter BEFORE the acceptance letter OR if the offeree places a counteroffer/rejection letter in the mailbox and a moment later, places an acceptance in the mailbox, whichever letter the offeror receives and opens first controls.
- The offeree detrimentally relies on a termination BEFORE he receives the acceptance letter.
Mailbox Rule continued. If the offeree-sender places an acceptance letter in the mailbox first,
then the acceptance become effective at the moment of dispatch (unless another exception applies)
Counteroffer v Acceptance
A counteroffer operates as both ___ and ___
A counteroffer operates as both a REJECTION THAT TERMINATES THE ORIGINAL OFFER and as FORMATION OF A NEW OFFER.
Counteroffer v Acceptance
Mirror Image Rule - Under the _____ the terms in the ____ must match the terms of the _______
Under the COMMON LAW, the terms in the acceptance must match the terms in the offer EXACTLy. Otherwise, it is not an acceptance- it is a counteroffer.
UCC 2-207 (Battle of the Forms)
Under the UCC, the acceptance does NOT have to mirror the offer. UCC 2-207 determines whether the purported acceptance (containing new terms) will operate as an acceptance or as a counter offer.
UCC 2-207- What does the battle of the forms provision of the UCC state?
- A definite and seasonable expression of acceptance or written confirmation;
- which is sent within a reasonable amount of time
- operates as an ACCEPTANCE even though it states terms additional to or different from those offered or agreed upon
- UNLESS acceptance is expressly made conditional upon assent to the additional or different terms.
If the purported acceptance is valid under 2-207 (Battle of the Forms)- the next issue is…
whether the additional or different terms in the acceptance will govern the contract OR whether UCC gap fillers will be implemented.
Under UCC 2-207 (Battle of the Forms) additional terms WILL GOVERN THE CONTRACT if…
BOTH PARTIES ARE MERCHANTS…unless..
- the initial offer expressly limited acceptance to its terms
- the additional terms materially alter the deal or
- the offeror objects to the additional terms within a reasonable amount of time
UCC 2-207 “The Knockout Rule”
Most courts apply the knockout rule to determine whether the new terms control or whether UCC gap fillers must be implemented. Under the knockout rule, a distinction is made between “different” and “additional” terms.
Different terms= term that was not included in the original offer that conflicts with the terms of the original offer (offeree changes the price from 5k to 4k for example)
Additional term= term that was not included in the original offer that does NOT conflict with the original offer (eg offeree adds a choice of law provision and sends it back to the offeror)
UCC 2-207 “The Knockout Rule” part 2 (different terms)
Under the knockout rule, DIFFERENT TERMS in the original offer and acceptance knock each other out creating a gap in the contract. UCC gap fillers are then used to plug this gap (regardless of whether the parties are merchants). The knockout rule does not apply to ADDITIONAL TERMS added by the offeree. . UCC 2-207 will determine whether the additional terms control or whether UCC gap fillers must be implemented.
Consideration definition
Consideration involves a transfer of LEGAL VALUE in BARGAINED FOR EXCHANGE
Consideration is present if:
- the promise incurs a legal detriment OR the promisor receives a legal benefit AND
a. a legal detriment generally consists of:
i. promising to do something the party has no prior legal duty to do
ii. performing an action that the party is not otherwise obligated to undertake
iii. refraining from or promising to refrain from exercising a legal right which the party is otherwise entitled to exercise.
- The promise induces the detriment and the detriment induces the promise (bargained for exchange)