Test 2 Cards Flashcards
Chapter 9-18
Contract
- Legally enforced agreement
Offeror
- Party who makes an offer to enter into a contract
Offeree
- Party to whom an offer to enter into a contract is made
Components of a Contract
- Serious agreement
- Consideration
- Contractual Capacity
- Lawful Object
Consideration
- Something of legal value given in exchange for a promise
- Both sides must give consideration to other
Contractual Capacity
- The necessary capacity of parties to enter into the contract
- People who can enter a contract must be sane
- Minors could enter into a contract
Lawful Object
- An element of a contract that is met where the object of a contract is not illegal
- Has lawful purpose
Contract Types
- Bilateral
- Unilateral
Bilateral
- A contract entered into by way of exchange of promises of the parties
- Promise for promise
- As soon as promises are exchanged then the contract is formed
Unilateral
- A contract in which the offeror’s offer can be accepted only by the performance of an act by the offeree
- Promise for performance
- Contract is formed when performance is rendered
Formal Contract
- Contract that has a state seal
Informal Contract
- Contract that has no state seal
Void Contract
- A contract that has no legal effect
Voidable Contract
- One party and only one can escape the contract
Executed
- A contract that has been fully performed on both sides
- Completed contract
- Both sides did everything they had to do
Executory
- A contract that has not been fully performed
- Incomplete contract
Express Contract
- An agreement that is expressed in written or oral words
Implied-In-Fact Contract
- A contract in which an agreement between parties has been inferred from their conduct
- No words used
- Also known as Contract by Conduct
Court of Equity
- Court that granted relief based on fairness
- Fairest possible thing for all parties
- Also called Equity Court
Agreement
- The manifestation by two or more persons of the substance of a contract
What is the difference between a contract and an agreement?
- A contract is legally binding
Offer
- The manifestation of willingness to enter into a bargain
True or False: An offer is effective without communication to the offeree from the offeror
- False, no offer is effective until communicated
Advertisement
- An invitation to make an offer or invitation to negotiate
True or False: If an advertisement says it is an offer, it is considered a valid offer
- False, advertisements are invitations to make an offer even if the add says it is an offer
Auction
- A sale in which a seller of goods offers goods for sale through an auctioneer
Auction with Reserve
- An auction in which the seller retains the right to require the highest bid and withdraw the goods from sale
Auction without Reserve
- An auction in which the seller expressly gives up his or her right to withdraw the goods from sale and must accept the highest bid
- Once bidding starts you are forced to accept the offer
True or False: Unless expressed otherwise, an auction is an auction without reserve
- False, unless expressed otherwise, an auction is an auction with reserve
True or False: The auctioneer is the judge, jury, and executioner
- True
True or False: Sale in an auction is complete when gavel is struck once
- True
True or False: In an auction, between saying “sold” and the gavel striking, it is up to the seller to accept or ignore the offer
- False, it is up to the auctioneer to accept or ignore offer
Rules of Offers
- Can only be one offer on the table
- If offer is terminated, it stays dead
Revocation
- The withdrawal of an offer by an offeror prior to its acceptance by the offeree
- Only offerors can revoke an offer
True or False: Dead offers cannot be revived
- True
Rejection
- Express words or conduct by the offeree that rejects an offer
- Offeree can be the only one to do this
- Terminates the offer
Counteroffer
- A response by an offeree that contains terms and conditions different from or in addition to those of the offer
- Terminates original offer
- Counter-offeree can only accept it
Destruction of Subject Matter
- An offer terminates if the subject matter of the offer is destroyed through no fault of either party prior to the offer’s acceptance
True or False: If the offeror dies or loses their sanity before acceptance, the offer is still valid
- False, if the offeror dies before acceptance offer is not valid because the offer has died with them
True or False: An offeree is the only person who can accept the offer
- True
True or False: There can be more than one offeree
- True
Unequivocal Acceptance
- An offeree’s acceptance of an offer that is clear, unambiguous, and has only one possible meaning
- Absolute acceptance
Mirror Image Rule
- A rule that states that for an acceptance to exist, the offeree must accept the terms as states in the offer
- Acceptance must be mirror image of the offer
- Any variance creates counteroffer
True or False: Silence can be acceptance
- False, silence is never acceptance
Mailbox Rule
- A rule that states that an acceptance is effective when it is dispatched, even if it is lost in transmission
- Tie breaking rule between revocation and acceptance occurring at the same time
True or False: The mailbox rule applies to certain forms of transmission
- False, the mailbox rule applies to every form of transmission including fax, email, text, etc.
Consideration
- Something of legal value is given in exchange for a promise
- Both sides must give consideration
True or False: Consideration given to another person does not have to be of equal value
- True
Gift Promise
- A promise that is unenforceable because it lacks consideration
Inter Vivos Gift
- A gift between two living people
Illegal Consideration
- A promise to refrain from doing an illegal act
- Such a promise will not support a contract
Output Contract
- A contract in which a seller agrees to sell all of its production to a single buyer
- Pertains to the seller
Requirements Contract
- A contract in which a buyer contracts to purchase all of its requirements for an item from one seller
- Pertains to buyer
- Buyer purchases from one seller
Promissory Estoppel
- An equitable doctrine that permits enforcement of oral contracts that should have been in writing
- Prevents unjust enrichment
What does estops mean?
- To prevent
Elements of Promissory Estoppel
- Promisor made a promise
- Promisor should have reasonably expected to induce the promisee to reply on the promise
- Promisee actually relied on the promise
- Injustice would be caused if the promise were not enforced
True or False: Modern society defines a minor as “18 and under”
- True
Age of Majority
- The legal age, as set by state law, for a person to have the capacity to enter into a contract
Rules For Minors Regarding Contract
- Could enter into a contract
- Any contract a minor enters into with an adult is voidable
- Minor must understand the contract
True or False: Age doesn’t matter when entering a contract
- False, age matters
Disaffirmance
- The act of a minor to rescind a contract under the infancy doctrine
- Minor escaping from contract
- May be accomplished orally, in writing, or by the minor’s conduct
Ratification
- The act of a person after he or she has reached the age of majority by which he or she accepts a contract entered into when he or she was a minor
- Only an adult can ratify a contract
Necessaries of Life
- Food, clothing, shelter, medical care, and other items considered necessary to the maintenance of life
- Minors must pay the reasonable value of necessaries of life for which they contract
Two types of Mentally Incompetent Persons
- Permanent Mental Incompetence
- Episodic
Permanent Mental Incompetence
- Could enter into a contract but only into one they could understand
Episodic Mental Incompetence
- Could only enter into one when competent
Adjudged Insane
- Declared legally insane by a judge
- Contract with an adjudged insane person is void
True or False: A medical professional can rule legally declare a person to be insane
- False, only a judge rules a person insane
Intoxicated Persons
- A person who is under contractual incapacity because of ingestion of alcohol or drugs to the point of incompetence
True or False: Someone can be lawfully intoxicated and still know what they are doing which means that they cannot escape the contract
- True
True or False: Not using intoxicating medications as prescribed is illegal
- True
Usury Law (Modern)
- A law that sets an upper limit on the interest rate that can be charged on certain types of loans
- Lending money at excessive interest
Ancient Definition of Usury Law
- Lending money at any interest
- Penalty was death to the person that lent money and person that received the money
Excessive Interest
- Federal maximum is 39.99%
True or False: Every state in the United States has a different usury rate
- True, every state has it’s own
Capital Good
- A good that lasts for 5 years or more
Consumer Good
- A good that lasts for less than 5 years
Credit Unions
- Member owned
- Have different laws applied to them
Commercial Banks
- Charge the consumer as much interest as possible in order to give money to the shareholders
Immoral Contracts
- Objective is commission of an act that society considers immoral
Exculpatory Clause
- A contractual provision that relieves one (or both) of the parties to a contract from tort liability for ordinary negligence
Unconscionable Contract
- A contract that courts refuse to enforce in part or at all because it is oppressive or manifestly unfair as to be unjust
- Extremely fundamentally unfair
- Outrageous to the reasonable person
True or False: Legal mistakes of fact are the only mistakes that get any relief by the courts
- True
Unilateral Mistake
- A mistake in which only one party is mistaken about a material fact regarding the subject matter of a contract
Rules of Unilateral Mistake
- Too bad, slim to no chance you’ll get full money back
- If the other party knew or should’ve known, you may be able to get your money back but not in full
Mutual Mistake of Fact
- A mistake made by both parties concerning a material fact that is important to the subject matter of a contract
- Same as Mistake of Fact
True or False: A mutual mistake of fact is where one of the parties involved makes a mistake
- False, both parties must make a mistake for it to be a mutual mistake of fact
Mutual Mistake of Value
- A mistake that occurs if both parties know the object of the contract but are mistaken as to its value
- You do not get money back
Elements of Fraud
- False representation
- Intent to deceive
- Reliance on misrepresentation
- Injury to innocent party
Misrepresentation of Material Fact
- An element of fraud that occurs when a wrongdoer makes a false representation of material to another person
Material Fact
- Serious, significant
Intent to Deceive
- An element of fraud that occurs when a person makes a misrepresentation of a material fact with knowledge that the representation is false or makes it without sufficient knowledge of the truth
Scienter
- Knowledge that a representation is false or that it was made without sufficient knowledge of the truth
Reliance
- An element of fraud that occurs when the innocent party whom a misrepresentation of a material fact has been made justifiably relies on the misrepresentation and acts on it
Injury
- Person who is injured could escape criminal charges
Fraud in the Inception
- Fraud that occurs if a person is deceived as to the nature of his or her act and does not know what he or she is signing
Fraud in the Inducement
- Fraud that occurs when the party knows what he or she is signing but has been fraudulently induced to enter into the contract
- Party know what they are signing but person offering contract had no intention to live up to act or performance
Fraud by Concealment
-Fraud that occurs when one party takes specific action to conceal a material fact from another party
Rule of Fraud of Concealment
- One does not have duty to disclose but if you take active measure to hide important information or if you lie about information then it is fraud
Duress
- A situation in which one party threatens to do a wrongful act unless the other party enters into a contract
Two Types of Duress
- Physical/Psychological
- Economic
Physical/Psychological Duress
- Any threat against person and or immediate family
Economic Duress
- Someone who threatens another’s economic status
- Person making threat must be able to carry out threat
Undue Influence
- A situation in which one person takes advantage of another person’s mental, emotional, or physical weakness and unduly persuades that person to enter into a contract or make a will
- One person controlling the other and gives the other party no chance at free will; they could have good or bad intent
- Parties involved are called dominant/servient
True or False: A contract that is entered into duress or undue influence is void
- False, A contract that is entered into duress or undue influence is a voidable contract
Statute of Frauds for Common Contracts
- Established in 1677
- First law to say that certain contracts must be in writing or they are not valid and that a basic contract will have both parties sign
Note
- Where the terms of agreement are set forth but only signed by one party
- Contract could only be enforced by person who signed it
Writing Requirements Established by the Statute of Frauds for Common Contracts
- Any contract involving real property must be in writing
- Terms of contract must be more than 1 year if by own terms
- Promising to pay debt of another must be in writing
- Any contract that pertains to marriage at all
- Contracts for sale of goods $500 or more must be in writing
- Contracts for lease of goods (NOT real property) $1,000 or more must be in writing
- Promise to write a will
- Promise of an executor (or personal representative) to pay debts of deceased from persons own pocket
One Year Rule
- A rule that states that an executory contract that cannot be performed by its own terms within one year of its formation must be in writing
Section 2-201(1) of the Uniform Commercial Code
- A section of the Uniform Commercial Code that states that sales contracts for the sale of goods costing $500 or more must be in writing
Good
- Moveable, tangible, personal property
Section 2A-201(1) of the Uniform Commercial Code
- A section of the Uniform Commercial Code that states that lease contracts involving payments of $1000 or more must be in writing
Mixed Contract
- Rule is whatever is majority basis determines which contract it is
True or False: An illiterate person could not sign or enter into any contract
- False; Illiterate people could sign contract with any kind of mark
True or False: A signature does not have to be in ink
- True; there is 0 requirement for a signature to be in ink
Rules for Signatures
- Someone who is physically incapable of writing could have someone assist them in writing but the person who helps them cannot touch the writing instrument; person must be the only one holding the writing instrument
- Law allows use of mechanical aid
Parol Evidence
- Any oral or written words outside the four corners of a written contract
Parol Evidence Rule
- A rule that states if a written contract is complete and final statement of the parties agreement, any prior or contemporaneous oral or written statements that alter, contradict, or are in addition to the terms of the written contract are inadmissible in court regarding a dispute over the contract
- Basically says if there is a written contract; no oral evidence can contradict it (writing always triumph oral)
True or False: The older name for the parol evidence rule is the “four corners rule”
- True
Exceptions to the Parol Evidence Rule
- Duress
- Typographical error
- Fraud in Inception or Execution
Assignment of Right
- The transfer of contractual rights by an obligee to another party
Assignor
- A party who transfers their contractual rights
Assignee
- A party to whom a right has been transferred to
Rules to Assignment of Right
- Anyone entitled to benefit could assign to someone else
- No permission is needed from both parties requires
Duties that Cannot Be Delegated
- Personal service contracts calling for the exercise of personal skills, discretion, or expertise
- Contracts whose performance would materially vary if the obligor’s duties were delegated
Delegation of Duties
- A transfer of contractual duties by an obligor to another party for performance
- You can object to this
- Requires consent by both parties; cannot be forced upon someone
Delegator
- Transfers their duty
Delegatee
- Now has the duty that was transferred to them
Covenant
- An unconditional promise to perform; must be met
- Absolute contract; you have to do what you signed up for
- Equivalent to strict liability
Condition
- A qualification of a promise that becomes a covenant if met
Types of Conditions
- Precedent
- Subsequent
- Concurrent
Condition Precedent
- A condition that requires the occurrence of an event before a party is obligated to perform a duty under a contract
- Where something must happen before parties are obligated to perform
Condition Subsequent
- A condition whose occurrence or nonoccurrence of a specific even automatically excuses the performance of an existing contractual duty to perform
- When something happens after the contract is formed that revokes the contract
Concurrent Condition
- A condition that exists when the parties to a contract must render performance simultaneously; each party’s absolute duty to perform is conditioned on the other party’s absolute duty to perform
Discharge of Performance
- Both parties perform
Discharge by Agreement
- Both parties agree to discharge duties
Discharge by Impossibility
- The death or capacity of the promisor prior to the performance of a personal service contract
- The destruction of the subject matter of a contract prior to performance
- A supervening illegality that make performance of the contract illegal
Force Majeure Clause
- A clause in a contract in which the parties specify certain events that will excuse nonperformance
Four Categories of Performance and Breach
- Complete performance
- Substantial performance
- Inferior performance
- Anticipatory breach
Complete Performance
- A situation in which a party to a contract renders performance exactly as required by the contract
Substantial Performance
- Performance by a contracting party that deviates only slightly from complete performance
- One of the parties did not completely do what was agreed upon but they did a vast majority of it
- Party must have done more than half of the work
Formula for Substantial Performance
- Full contract price - Reasonable amount necessary to complete work/job
- Party must have done more than half of the work
Material Breach
- A breach that occurs when a party renders inferior performance of his or her contractual duties
- Anything less than 50% of work
Inferior Performance
- A situation in which a party fails to perform express or implied contractual obligations and impairs or destroys the essence of a contract
True or False: Only the innocent party can rescind a contract that is breached yet both parties are entitled to benefit of the bargain
- True
Anticipatory Breach
- A breach that occurs when one contracting party informs the other that he or she will not perform his or her contractual duties when done
- Basically when one contracting party informs the other party that they will not perform
Monetary Damages
- An award of money
- Preferred remedy when someone breaches a contract
Compensatory Damages
- An award of money intended to compensate a nonbreaching party for loss of the bargain
Nominal Damages
- Foreseeable damages that arise from circumstances outside a contract
- Reasonable foreseeable damages
Punitive Damages
- Reasonable amount of money to punish party to prevent breaching party
- This action is disfavored in contract lawsuits
Mitigation of Damages
- Nonbreaching party’s legal duty to avoid or reduce damages caused by a breach of contract
True or False: All parties have a duty to try and mitigate the damages
- True
Liquidated Damages
- Damages that parties to a contract agree in advance should be paid if the contract is breached
Rescission
- An action to rescind a contract
- Basically means that it is an action to undo a contract; nonbreaching party can rescind
Restitution
- The return of goods or property received from the other party to rescind a contract
- Means the return of goods or property received from the other party to rescind a contract
Write of Attatchment
- An order of the court that enables a government officer to seize property of breaching party and sell it at auction to satisfy a judgement
- Basically means that there is an court order that sends the sheriff or other government officer to seize property (also means seizing bank accounts) and sell to pay off debt
Writ of Garnishment
- Order that wages, bank accounts, or other property of the breaching party held by third persons be paid to non breaching party to satisfy judgement
- Takes percentage of your wages
Equitable Remedy
- A remedy that is available if there has been a breach of contract that cannot be adequately compensated through a legal remedy or to prevent unjust enrichment
- These are known as non-monetary remedies
Specific Performance
- A court orders the breaching party to perform the acts promised in the contract
- When judge orders someone to do exactly what they promised in a contract
Unique
- Not like any other; one and only one of a kind
- Does not mean rare
- Does not mean valuable
- If there are too, it is not unique
True or False: You will have a definite case if you apply specific performance to any contract involving real property
- True
True or False: You might have a case if you apply specific performance to any contract involving the sale of unique personal property
- True
When can you never get specific performance?
- When a contract involved labor or personal services
- Involuntary servitude
Reformation
- A court rewrites a contract to express the parties true intentions; remedy used to correct clerical errors
- Means court rewrites contract
Injunction
- A court prohibits a party from doing a certain act; available in contract action only in limited circumstances
- Basically it means an order to not do something
Internet
- A collection of millions of computers that provide a network of electronic connections between the computers
- Any electronic collection of computers
World Wide Web
- An electronic connection of millions of computers that support a standard set of rules for the exchange of information
- HTTP helps exchange information in the world wide web
Electronic Mail Contract
- A contract entered into by the parties using e-mail
- The mailbox rule still applies to this where the acceptance is upon dispatch and revocation upon receipt
Types of Electronic Mail Contracts
- Exchange of Emails (traditional)
- Clickwrap Contract
Exchange of Emails Contract
- Someone delivers the offer and then the other accepts it
Clickwrap Contract
- Click checkbox “I accept” after reading terms and conditions
- Hit send
True or False: There can be a counteroffer against clickwrap
- False; no such thing as a counteroffer against clickwrap
License
- A contract that transfers limited rights in intellectual property and informational rights
Licensor
- The party who grants a license
Licensee
- The party to whom a license is granted
True or False: You do not but the computer software, you buy the license to use the software
- True
ECPA
- Electronic Communications Privacy Act
- A federal statute that makes it a crime to intercept an electronic communication at the point of transmission when stored by a router or server receipt by intended recipient
- It basically makes it a federal crime to intercept electronic communications at any point along the chain of transmission (anything en-route or anything in storage)
True or False: You must have prior permission before you read someones email
- True, having prior permission makes it legal
Cybersquatting
- When a party registers a domain name of another party’s trademarked name or famous person’s name
ACPA
- Anticybersquatting Consumer Protection Act
- Federal statute that makes cybersquatting illegal
UCC
- Uniform Commercial Code
- A model acts that includes comprehensive laws that cover most aspects of commercial transaction
What is the main purpose of the UCC?
- To make it easier to enter into contracts (easier than traditional methods)
Article 2 (UCC-2)
- An article of the UCC that governs sale of goods
Sale
- The passing of goods from a seller to a buyer for a price
True or False: A copyright is not considered to be a good
- True
True or False: Every state follows Article 2 set by the UCC
- False; every state except for Louisiana
True or False: Money is a good
- False
Merchant
- A person who deals in the goods of the kind involved in a transaction and by his or her occupation holds himself or herself out as having knowledge or skill peculiar to the goods involved in the transaction
- Basically means someone whose predominant income is from sale of goods, or they are professional
Casual Seller
- A hobbyist, not a merchant
Article 2A (UCC-2A)
- Governs leases of goods
- Leasing or renting of goods
Lease
- A transfer of the right to the possession and use of named goods for a set of terms in return for certain circumstances
- $1,000 or more it has to be in writing
- Renting good for specified period of time
Lessor
- A person who transfers the right of possession and use of goods under a lease of goods
Lessee
- A person who acquires the right to possession and use of goods under a lease of goods
Gap Filling Rule
- A rule that says an open term can be “read into” a contract
Open Price Term
- Reasonable price chosen by courts
- If price not set in contract:
• Parties must attempt to agree to price
• If and only if parties cannot agree, judge sets the price
• Judge price cannot be challenged; judge will try and do half of what was asked
Open Payment Term
- Basically means that if you say nothing, payment is due when time and place that good is received
Open Delivery Term
- If a seller doesn’t specify place of delivery it happens at seller’s place of business or residential place
Open Time Term
- If it doesn’t have time specification the judge will adhere a reasonable amount of time into the contract
Open Assortment Term
- Buyer is given option of choosing goods
- Buyer must make a selection with good faith
Custom Goods
- You do not need for it to be in writing
- Specifically Made Manufactured Goods