Terms & Definitions Flashcards
A PROMISE is a ___________ of _________ to act or ___________ from acting in a _________way.
Manifestation of the intention to act or refrain from acting in a specified way
The __________ is justified in _______ that a commitment has been made.
The promisee is justified in believing that a commitment has been made.
PROMISOR
A promisor is a person manifesting the intention
PROMISEE
A promisee is a person to whom the manifestation is directed
Constructed Promise (implied in law)
Quasi-Contracts
A promise constructed by the court to avoid inequity. This is sometimes referred to as a “fictional promise”
How is a promise is enforceable?
Enforceability
Consideration, Promissory Estoppel, or Restitution
Conditional Promise
- The condition does not benefit the promisor
- Enables the promisee to receive a gift
- The promisee’s action which is based on the promise is conditional
- The promisee’s reliance on the promise is not a consideration.
Express Promise
A contractual promise that is clear and made in words
Implied Promise (implied in fact)
A contractual promise that exists despite the lack of spoken or written words stating the promise.
Consideration
Either bargained for exchange or benefit/detriment
Exceptions to Consideration
- Promissory Estoppel
- Modifications to an existing sales contract
- Promise to perform a moral obligation
Restitution
- Prevents unjust enrichment
- Whenever a defendant has been enriched at the plaintiff’s expense and
- It is unjust for the defendant not to pay for the enrichment.
Fairness & Equity
- Quasi-Contract Doctrine of Unjust Enrichment
- Rests on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another, and
Past Consideration
Not Enforceable
When the promisor pays for something they have already received. There is no bargain for exchange so there is no consideration.
Pre-existing duty rules
- Doing or promising something that was already required to be done or promised
- The recipient of that action or promise gets nothing that already should occur
Tasini Standards for Restitution
(1) that the defendant benefitted;
(2) at the plaintiff’s expense; and
(3) that equity and good conscience require restitution.
(4) Did the plaintiff have an expectation of compensation?
(5) Did the defendant have an opportunity to reject the benefit?
Quantum Meruit
Latin for “as much as he deserves”
Quantum valebat or valebant
Latin for “as much as it is worth”
Sec. 90 Promissory Estoppel Requirement
Binding if INJUSTICE can be avoided only by enforcement of the promise and limited as justice requires
- A clear and distinct promise
- Induced the recipient to rely on it
- Recipient is compelled to act because of that reliance.
- The reliance was foreseeable by the promisor at the time of the promise
Illusory promises can be enforceable with promissory estoppel
When does the Sec. 89 (a) Pre-Existing Duty Rule not apply?
The legal duty rule does not apply if the parties mutually agree to change the terms of the contract.
Bargain for Exchange
This is one of two was that consideration occurs
Benefit Detriment
This is one of two ways consideration occurs
Quasi-Contract
fairness and equity are the foundation of a quasi-contract
