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Introduction To The Law Of Contracts > Vocabulary > Flashcards

Vocabulary Flashcards

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1
Q

Choice of Law

A

the determination of which law applies where more than one state is involved in a transaction, where conflicting laws exist within a state, or where federal law may preempt state law

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2
Q

Interstate Transaction

A

a transaction spanning several states. Also known as a multistate transaction

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3
Q

Common Law

A

common law has several meanings. The common law is the body of law and jurisprudential theory that originated and developed in England. Common law, as distinguished from law created by legislative enactment, is derived from custom and usage and from judicial decisions recognizing and enforcing custom and usage

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4
Q

Offer

A

An offer is a manifestation of willingness to enter into a bargain, which justifies another person in understanding that his or her assent to that bargain is invited and will conclude it

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5
Q

Offeror

A

an offeror is the party who extends the offer to the offeree

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6
Q

Offeree

A

the party whom the offeror invites to accept the offer

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7
Q

Offer for a Bilateral Contract

A

the offeror makes a promise to entice the offeree to make a promise (a promise for a promise)

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8
Q

Offer for a Unilateral Contract

A

the offeror makes a promise to entice the offeree to perform (a promise for a performance)

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9
Q

Consideration

A

a contract has two “considerations” – consideration for the promisor’s promise, and consideration for the promisee’s promise or performance. Consideration is the “price” sought by the promisor for his or her promise, and the “price” sought by the promisee for his or her promise or performance

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10
Q

Acceptance

A

the offeree’s manifestation of assent to the terms of the offer

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11
Q

Rescission

A

the abrogation (repeal) of a contract. Rescission usually involves returning the parties to their pre-contract positions

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12
Q

Reformation

A

reformation is a judicial remedy designed to revise a writing to conform to the real agreement or intention of the parties

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13
Q

Promisor

A

the party who makes the promise

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14
Q

Promisee

A

the party to whom a promise is made

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15
Q

No breach – compliance

A

the defendant’s response to the plaintiff’s allegation of breach – “I am complying with the terms of the contract.”

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16
Q

No breach – excuse

A

the defendant responds to the plaintiff’s allegation of breach – “although I am not complying with the terms of the contract, my nonperformance was excused, and therefore I have not breached the contract.”

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17
Q

No breach – justification

A

the defendant responds to the plaintiff’s allegation of breach – “although I am not complying with the terms of the contract, my nonperformance was justified by your breach of this contract, and therefore I have not breached the contract.”

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18
Q

No breach – terminated duty

A

the defendant responds to the plaintiff’s allegation of breach – “although I am not complying with the terms of the contract, my duty to perform the contract has been terminated, and therefore I have not breached the contract.”

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19
Q

Accord

A

an accord is a contract to pay a stated amount to discharge a prior obligation that is either uncertain as to its existence or amount. Satisfaction (performance) of the accord contract is required before the duties under the original contract are terminated.

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20
Q

Satisfaction

A

satisfaction is the performance of the accord contract. Once the accord contract has been performed, the original contractual duties are terminated.

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21
Q

Release

A

a release is the intentional relinquishment of a right

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22
Q

Statute of Limitations

A

a statute of limitations provides for a specified period of time within which a cause of action must be brought

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23
Q

Cause of action

A

the theory upon which relief should be granted. The cause of action should be distinguished from the remedy sought if the cause of action could be maintained. Breach of contract is a cause of action; damages is a remedy for breach of contract.

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24
Q

Remedy

A

the relief sought is a cause of action can be maintained

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25
Q

Expectation interest

A

protecting the nonbreaching party’s expectation interest places the nonbreaching party in the position he or she would have been in had the contract been fully performed by both parties according to the contract.

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26
Q

Damages

A

compensation awarded by a court to a party who has suffered loss or injury to rights or property

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27
Q

Specific performance

A

a remedy whereby a court directs a party to do a specified act

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28
Q

Injunction

A

an order issued by a court directing a party to refrain from a specified act

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29
Q

Reliance interest

A

protecting the nonbreaching party’s reliance interest places the nonbreaching party back to the position he or she was in prior to relying on the breaching party’s promise.

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30
Q

Restitution interest

A

protecting the nonbreaching party’s restitution interest places the breaching party back to the position he or she was in prior to receiving the benefit conferred upon him or her by the nonbreaching party.

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31
Q

Third-party beneficiary

A

a party who will be benefitted by the performance of a contract. A third-party beneficiary may be a done, creditor, or incidental beneficiary. An incidental beneficiary has no enforceable rights under the contract

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32
Q

Assignment

A

the transfer of a contractual right

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33
Q

Delegation

A

the empowering of another by the obligor to perform the obligor’s contractual duty

34
Q

Federal preemption

A

the doctrine derived from the Supremacy Clause of the United States Constitution whereby any federal law takes precedence over any conflicting state law (This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding).

35
Q

Forum state

A

the state in which the case is filed (the state hearing the case).

36
Q

Party autonomy rule

A

the court deference to the parties’ own choice of applicable law

37
Q

Restatements of the Law

A

the attempt by the ALI to codify the common law of the various states into black letter law with commentary and examples. At times the Restatements go beyond the common law and present what ALI’s view of what the law should be.

38
Q

Hybrid transactions

A

contracts that are for both the sale of goods and the sale of services.

39
Q

Predominant factor test

A

the test used to resolve whether a hybrid transaction should be treated under Article 2 of the UCC (as a sale of goods) or under the common law (as a sale of service).

40
Q

Reasonable person

A

a hypothetical (not one of the contracting parties), rational person who can objectively interpret a set of facts.

41
Q

Reasonable person’s standard

A

an objective rather than a subjective standard. The inquiry is how a reasonable person, having observed the transaction, perceived the transaction. The inquiry is not whether the parties mentally viewed the transaction in a common fashion. For example, if the parties dispute whether an offer was made, the legal conclusion will be that an offer was made if a reasonable person would conclude from the disputants’ manifestations that an offer was made. The reasonable person’s standard is used in modern contract law.

42
Q

Objective standard

A

the reasonable person’s standard. It is based on manifestations that could be reasonably interpreted by hypothetical third persons watching the transaction.

43
Q

Subjective standard

A

refers to a party’s thinking or mental state rather than manifestations. The subjective standard is commonly referred to as the meeting of the minds.

44
Q

Meeting of the minds

A

an outdated phrase that refers to the subjective theory of contract law.

45
Q

Reliance

A

may be a cause of action (the basis of a claim), a remedy (the relief sought) for a breach of contract or a reliance cause of action, or a tool to circumvent an obstacle to a breach of contract cause of action (e.g., reliance may circumvent a lack of consideration, a lack of an express option contract, and a lack of a writing required by the Statute of Frauds. Reliance are based on the aggrieved party reasonably relying on the promisor).
Four elements of reliance as an alternative to consideration are the following: 1. A promise by the promisor; 2. That the promisor should reasonably expect the promisee to induce action or forbearance on the part of the promisee; 3. That the promise does induce such action or forbearance; 4. That injustice can be avoided only by enforcement of the promise.

46
Q

Reliance cause of action

A

uses reliance as the basis of the plaintiff’s complaint (or claim).

47
Q

Restitution cause of action

A

uses unjust enrichment as the basis of the plaintiff’s complaint (or claim).

48
Q

Preliminary negotiation

A

includes all discussions of the parties that occur prior to the offer.

49
Q

Auction with reserve

A

the auctioneer may withdraw the property at any time until he or she announces the completion of the sale. The potential bidders are the offerors

50
Q

Auction without reserve

A

the auctioneer is the offeror and the bidders are the offerees.

51
Q

Promise

A

a manifestation of intention to act or refrain from acting in a specified way, which justifies a promisee’s understanding that the promisor has made a commitment. A promise is an unequivocal assurance that something will or will not be done. (Restatements (Second) Section 24)

52
Q

Illusory promise

A

a statement that is less than a commitment to do or refrain from doing something. Therefore, an illusory promise is a misnomer, because it is not a promise.

53
Q

Indefinite promise

A

a statement that appears to be a promise, but omits terms essential to enable the courts to determine an appropriate remedy in the event the “promise” is breached.

54
Q

Gap fillers

A

those contract terms supplied by Article 2 of the UCC (sale of goods) that supplement the express terms of the contracting parties.

55
Q

Consideration for the promisor’s promise

A

the “price” sought by the promisor for his or her promise.

56
Q

Consideration for the promisee’s promise or performance

A

the “price” sought by the promisee for his or her performance or promise.

57
Q

Sham consideration

A

feigned or pretended consideration

58
Q

Condition

A

a contingency

59
Q

Quantum meruit

A

a Latin phrase meaning “for what it is worth” - a common count (standard allegation) in an action of assumpsit (“promise”) for work and labor. It is based on an implied assumpsit or promise on the part of the defendant to pay the plaintiff as much as it is reasonably deserved for his or her labor.

60
Q

Quantum valebant

A

a common count (standard allegation) in an action of assumpsit for goods sold and delivered. It is based on an implied assumpsit or promise on the part of the defendant to pay the plaintiff as much as the goods sold by the plaintiff and delivered to the defendant were reasonably worth

61
Q

Equitable estoppel

A

the party challenging the lack of consideration for his or her promise is precluded from doing so because his or her promise induced the other party to rely to his or her detriment

62
Q

Judicial construct

A

a figment of the court’s imagination

63
Q

Lapse

A

the termination of the offer through the offeree’s failure to accept it within the time specified in the offer, or if no time is specified, within a reasonable time

64
Q

Revocation

A

the offeror’s manifestation to withdraw the offer

65
Q

Rejection

A

the offeree’s nonacceptance of the offer.

66
Q

Counteroffer

A

an offer made by the offeree to the offeror that deals with the subject matter of the original offer but with some variation of the terms

67
Q

Option contract

A

a contract that negates the promisor’s power to revoke the offer. An option contract has the same requirements as the main contract – promisor’s promise, consideration for the promisor’s promise, promisee’s promise or performance, and consideration for the promisee’s promise or performance

68
Q

Mirror Image

A

the offeree must accept the offer without changing it.

69
Q

Last shot doctrine

A

A common law doctrine that provides where the acceptance of an express offer is implied from the offeree’s performance (e.g., acceptance of the shipment and paying), the offeree, by performance, has accepted the offeror’s terms.

70
Q

Bargained-for terms

A

the bargained-for terms in a preprinted form are those terms that are supplied by the party on the form and have not been preprinted.

71
Q

Boilerplate terms

A

the fixed terms in a preprinted form and are not bargained-for. Boilerplate terms may be either substantive terms (warranty, disclaimer, credit, arbitration, risk of loss, choice of law, and choice of forum) or procedural terms (“only my terms shall apply” and “this is not an acceptance unless you agree to all of our terms”)

72
Q

Definite expression of acceptance

A

when the offeree responds to the the offeror’s preprinted form with his or her own preprinted form, the offeree manifests a definite expression of acceptance when the offeree’s form accepts the offeror’s “bargained-for” terms.

73
Q

Purchase order

A

the buyer’s offer form

74
Q

acknowledgment form

A

the seller’s acceptance form

75
Q

Seasonable expression of acceptance

A

when preprinted forms are exchanged, a seasonable expression of acceptance refers to the fact that the second form must have been sent within a reasonable time after receiving the first form.

76
Q

additional term

A

when two forms are exchanged, an additional term is a substantive boilerplate term that appears in the second form but not in the first form

77
Q

different term

A

when two forms are exchanged, a different term is a substantive boilerplate term that appears in both forms - but one is not the mirror image of the other.

78
Q

Merchant

A

as used in Article 2 of the UCC is defined in section 2-104 and its comment 2 and may either be a merchant who has specialized knowledge as to the goods, specialized knowledge as to the business practices, or specialized knowledge as to both goods & business practices. The business practices are those practices discussed in a specific code section. Therefore, a party may have specific knowledge as to some business practices, but not others - or may have specialized knowledge as to the goods but not as to specialized business practices and therefore may be a merchant for one Code section but not for another.

79
Q

Between merchants

A

both parties to the transaction (buyer and seller) are chargeable with the knowledge or the skill required to be a merchant for a particular Code section.

80
Q

Posting (mailbox) rule

A

the rule of determining when an acceptance sent from a distance is effective. Under the posting (mailbox) rule, acceptance is effective when sent.

Introduction To The Law Of Contracts (1 decks)

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