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Contracts > Vocabulary, Applicable Law & K Formation - Offer > Flashcards

Vocabulary, Applicable Law & K Formation - Offer Flashcards

1
Q

Elements of a K

A
  1. Offer
  2. Acceptence
  3. Consideration
  4. Requirement that no defenses exist
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2
Q

Unilateral contract

A

results from an offer that expressly requires performance as the only possible method of acceptance.

Unilateral: promise for performance. Bilateral: promise for promise.

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3
Q

Bilateral contract

A

results from all other all other offers. [Usually offer is silent as to the method of acceptance and so…]

Bilateral contract unless (1) reward, prize, contest (2) offer expressly requires performance for acceptance.

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4
Q

Quasi contract

A

equitable remedy

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5
Q

COMMON LAW

A

Majority Rule is all you got to know

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6
Q

ARTICLES 1 AND 2 OF THE UCC

A

Under Article 1, common law contracts applies to sales of goods “unless displaced by particular provisions” of Article 2. Article 2 applies to contracts that are primarily for sales of goods.

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7
Q

The factors that determine whether Article 2
applies are thus:

A

(i) type of transaction – sale and
(ii) subject matter of transaction – goods, i.e., tangible, personal property.

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8
Q

Services contract are governed by…

A

Common law

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9
Q

MIXED DEALS

A

General rule – all or nothing/more important part

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10
Q

Under Conviser’s agreement with Epstein to buy Epstein’s car, Epstein is also obligated to provide Conviser with two lessons in parallel parking a 1973 Cadillac. Does Article 2 apply if there is a disagreement about the parking
lessons?

A

Yes - Art. 2 can apply to both sale of goods and service depending on what the important part is - here its sale of car

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11
Q

When will we split a mixed deal and apply UCC and Common law seperately?

A

if contract expressly divides payment

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12
Q

Definition of a K

A

A contract is an agreement that is legally enforceable.

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13
Q

In creating a K, a court will ask 3 questions:

A
  1. Was there mutual assent
  2. was there consideration
  3. are there any defenses
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14
Q

Manifestation of commitment

A

An offer is one person’s (the offeror) manifestation of willingness to contract.

Look for words or conduct showing commitment by that person.

The basic test is whether a reasonable person in the position of the offeree would believe that his or her assent creates a contract.

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15
Q

What to look for in an offer

A
  1. Promise, undertaking or commitment
  2. certainty and definiteness
  3. communication
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16
Q

Promise, undertaking or commitment

A
  • There must be an intent to enter the contract
  • look at:
    • language
    • surrounding circumstances
    • and prior practice and relationship of the parties
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17
Q

Methods of Communcation of an Offer:

A
  1. Use of Broadcast Media
  2. Advertisements
18
Q

Use of Broadcast Media

A

The broader the communicatiom the more likely it is a solicitation for an offer

19
Q

Advertsiements

A

Ads containing price quotations are an invitation for an offer

20
Q

Definate Certain Terms of a K requires

A
  1. Identification of the offeree
  2. Definateness of Subject matter
21
Q

Definateness of the subject matter depends on the type of K: What are the types of Ks?

A
  1. Real Estate Transacation
  2. Sales of Goods
  3. Employment and other services
22
Q

Definateness required in a real estate transcation

A

A K involving land must identify land and price terms.

Land must be identified with particularity but a deed description is not required.

Most courts will not supply a missing term for realty.

23
Q

Definateness required in a Sale of Goods K

A

The quantity must be certain

24
Q

Definateness required in a Sale of Goods “Requirements” and “Output” K

A

It is assumed the parties will act in good faith so there is not a requirement for quantity.

BUT there may not be any tender or demand for a quantity unreasonably disprapportionate to

  1. any stated estimate, or
  2. any normal or otherwise comparable prior output or requirements
25
Q

Definateness required in Exmployment and other services Ks

A

If duration is not specified then it is construed as creating a K terminable aat the will of either party.

For other services, the nature of the work to be performed must be included in the offer.

26
Q

Missing Terms

A

The fact one or more terms are left open does not prevent formation if it appears the parties intended to make a K and there is a reasonably certain basis for giving a remedy. Court can supply those terms that are missing in these instances.

Missing terms of price (except for contracts for real property) and for time will imply a reasonable prise at time of delivery and a performance within a reasonable time.

27
Q

Vague Terms

A

A term that is too vague cannot be enforced, unlike a missing term (example: agreement to split fares on a liberal basis).

Uncertainty can be cured by part or full performance

28
Q

Terms to be Agreed Upon Later

A

If a term is left open to be agreed upon at later date is material, the offer is too uncertain

29
Q

Communication to the Offeree

A

Offeree must have knowledge of the offer and thus it must be communicated

30
Q

Termination of an Offer

A

An offer cannot be accepted after it has been terminated. An offer may be terminated by an act of either party or by operation of law

An offer that has been terminated is dead

31
Q

Termination by Offeror - Revocation

A

A revocation is effective when recieved (written communication is received when it is delivered to a place of business through which the contract was made or another location authorized to receive that communication)

A revocation may be done by direct communication to the offeree.

An offer made by publication can be directly revoked only through comparable means,

An offer may also be revoked indirectly if he recieves:

  1. correct information
  2. from a reliable source
  3. of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer
32
Q

Limitations on Offeror’s Power to Revoke:

A
  1. Options
  2. Merchant’s Firm Offer Under Article 2
  3. Detrimental Reliance
  4. Beginning performance in response to true unilateral contract offer
  5. Beginning performance in which offer is indifferent as to manner of acceptence
33
Q

Options

A

consideration must be given

34
Q

Merchants Firm Offer Under Article 2

A
  1. if a merchant
  2. offers to buy or sell goods in a signed writing; and
  3. the writing gives assurances that it will be held open:

it is not recovable for lack of consideration during the time stated

  • if no time is stated, for a reasonable time it will be held open - generall 3 months

3 month limitation only applies to offers not supported by consideration

35
Q

Detrimental Reliance

A

When the offeror could reasonably expect that the offeree would rely to her detriment on the offer, and the offeree so does rely, the offer will be held irrevocable as an option contract for a reasonable length of time

36
Q

Beginning performance in response to true unilateral contract offer

A
  • irrevocable once performance has begun
    • substantial preperations to perform does not make this irrevocable, but may constitute detrimental reliance
  • offeror must give offeree a reasonable time to perform
  • offeree is not bound to complete performance
  • no acceptence until performance is complete
37
Q

Beginning performance in which offer is indifferent as to manner of acceptence

A
  • may formed upon the start of performance
  • once offeree begins performance, the contract is complete and revocation becomes impossible
  • notification of the start of perfmormance may be necessary
38
Q

Methods of Termination by Offeree

A
  1. Rejection
  2. Lapse of Time
39
Q

Rejection

A
  • Express rejection
  • counteroffer
    • mere inquiry does not terminate the offer though
  • rejection is effective when recieved
40
Q

Rejection of an option

A
  • a rejection of or counteroffer does not terminate the offer
  • the offeree is still free to accept the original offer within the option perior unless the offeror has detrimentally relied on the offerees rejection
41
Q

Lapse of Time

A

failure to accept within specified time is terminated

if no time is specified, must respond in a reasonable time (generally a month)

42
Q

Termination by Operation of Law

A
  1. death or insantity of either party
    • exception: option supported by consideration
    • death or insanity does not need to be communicated to either party
  2. destruction of the proposed contracts subject matter
  3. supervening illegality

Contracts (8 decks)

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