week 2 Flashcards
1
Q
a legally enforceable agreement
A
contract
2
Q
a contract in which the parties express their intentions, either verbally or in writing; at the time of the agreement
A
express contract
3
Q
one in which the terms of the contract are implied by act or conduct of the parties
A
implied contract
4
Q
a contract created or implied by law to prevent unjust enrichment
-court creates the terms of the contract and requires the party to perform
A
quasi contract
5
Q
a contract which consists of mutual promises to perform future acts
-a promise in exchange for a promise
A
bilateral contract
6
Q
formation of contracts based on promises (2)
A
- bilateral contract
2. unilateral contract
7
Q
a contract is formed when an act is done in consideration for a promise
-1 promise in exchange for a performance
A
unilateral contract
8
Q
contracts classified based on performance (2)
A
- executed contract
2. executory contract
9
Q
a contract in which the terms have already been fulfilled
-fully performed contract
A
executed contract
10
Q
a contract in which the terms have not been completely executed or fulfilled
-performance still due
A
executory contract
11
Q
contracts classified based on validity/enforceability (4)
A
- valid contract
- voidable contract
- void contract
- unenforceable contract
12
Q
a contract which is legally enforceable
- all elements are present
- all enforceable
A
valid contract
13
Q
a contract which would be an enforceable agreement but due to circumstances may be set aside by one of the parties
- cannot be void
- contract may be set aside by a party
- examples; minor, fraud
A
voidable contract
14
Q
an agreement of no legal effect
- no legal effect (void ab initio)
- contract to commit crime
A
void contract
15
Q
an agreement which at the current time is not enforceable by law
- (verbal)
- court will not provide remedy
- stateute of frauds
A
unenforceable contract
16
Q
no legal effect
A
void ab initio
17
Q
contract required to be in writing
A
statute of frauds
18
Q
creation of agreement (4)
A
- formation of contracts
- law of offer and acceptance
- offeror
- offer
19
Q
party who initiates or makes an offer
A
offeror
20
Q
party to whom an offer is made
A
offeree
21
Q
the offer (3)
A
- serious intent
- definite terms
- communication to the offeree
22
Q
objective manifestation
-not joking
A
serious intent
23
Q
material terms: parties, subject matter consideration
A
definite terms
24
Q
offeror/agent to particular offeree
A
communication to the offeree
25
not offers (5)
1 exception
```
advertisements
invitations to deal
price list
bids
estimates
etc
```
1. rewards
26
termination of offer (3)
1. terminated by offeror
- terms stated in offer
- revocation
2. terminated by offeree
- rejection
- counteroffer
3. termination of operation of law
- lapse of reasonable time
- death or insanity
- intervening illegality
27
inability to terminate offer
1. common law
- option contract
- -agreement to keep offer open
- -supported by consideration
28
occurs when the offeree communicates the acceptance to the offeror
ex: letter, email, phone call
acceptance
29
what if the offeror requires acceptance in a special form?
- examples: unilateral offer
- offer requires payment
- offer requires special signature proof of offeree
- Special rule 1
| - -offeror is the master of the offer and acceptance must conform to the terms in the offer
30
what is the offer does not specify the form of acceptance ; who bears the risk when the acceptance is sent by the offeree but never received by offeror?
-special rule 2
| law imposes the "implied mode of acceptance rule"
31
-offer does not contain how acceptance is to occur
-mode of offer becomes the implied mode of acceptance
effective when placed offeree in "mode"
implied mode of acceptance
32
- false statement of material fact
- justifiable reliance
- damages
- contract voidable
- innocent party may recover money damages in addition to rescission of contract
misrepresentation
33
intentional or reckless false statement or concealment of material fact
- deliberate statement/concealment/duty to speak
- justifiable reliance
- damages
- contract voidable
- innocent party recover money damages if applicable
fraud
34
- improper influence that is asserted by one dominant person over another, without the threat of harm
- trusting relationship
- destruction of freewill
- damages
- may recover money
undue influence
35
- removing ones free and obtaining consent by means of a threat
- destroyed by
- physical harm
- economic harm
- threat
- contract voidable
- recover money damages in addition to rescission of contract
duress
36
- bilateral/mutual
- effect of ^
- -rescission (contract defective; never existed)
- unilateral
- -issues of quality, value, or price
- contract is valid and remains in effect
mistake
37
- legal ability to enter into a contract
- law presumes parties are competent
- person raising defense of incompetency has the burden of proving the impotency
contractual capacity
38
general areas that render a person incompetent (3)
1. minority (under 18)
2. under the influence of controlled substance
3. recognized mental illness
39
election to avoid a voidable contract
disaffirmance/ repudiation
40
- approving an act which was executed without authority;
| - electing to be bound by a voidable contract, approving an act which was executed without authority
ratification
41
items required for living at a reasonable standard
| -food, shelter, clothing and medical
necessaries
42
contracts with minors (3)
1. voidable by minor
2. adult is bound
3. effect of disaffirmance
43
- contract is not void
| - minor elects to disaffirm
voidable by minor
44
- minor returns to adult whatever is in the minors possession from contract
- adult must return full amount of money/consideration
effect of disaffirmance
45
- dont include luxury/ necessaries items
| - contracts for luxury items may be disaffirmed by minor
exception to the rule; minor contracts for necessaries
46
- court will create a quasi contract
| - minor is bound in quasi contract
effect of minor "disaffirming" contract for necessaries
47
when can a minor disaffirm a contract?
- at any time during minority
| - a reasonable time after reaching the age of majority
48
when can a minor ratify a contract?
only upon reaching majority
49
how can a minor disaffirm a contract?
make an oral or written statement during minority or a reasonable time after reaching majority
- If contract is executory at time of majority, minor refuses to make any performance after reaching majority is disaffirmance
- minor must return consideration
50
how can a minor ratify a contract?
-make an oral or written statement upon reaching majority or a reasonable time after reaching majority -if contracted is executed prior to majority; silence of the minor ratifies the contract
51
how to contract with minors?
what are other options
```
DONT
---
having an adult sign the agreement
-a party promising
-a guarantor
```
52
what is minor misrepresents age?
- misrepresentation is a tort ; not a contract
| - recover from the minor for the damages on a tort theory instead of contract theory
53
intoxicated persons (3)
-same rules apply for minors
1. voluntary intoxication
2. involuntary intoxication
3. party dealing with the intoxicated person is aware of the intoxication and that the person is unable to understand their conduct
54
person cannot disaffirm
voluntary intoxication
55
person can disaffirm ;
| -someone slips a person drugs without knowledge
involuntary intoxication
56
incompetent persons (2)
1. adjudicated incompetent
| 2. not adjudicated incompetent
57
- determination by court after hearing
| - order of court proves incompetency
adjudicated incompetent
58
expert testimony to prove lacked capacity
not adjudicated incompetent
59
2 ways to determine incompacity
1. danger to self or others
| 2. guardianship
60
mental health procedures
adjudication by court
-commitment/out patient
-treatment
danger to self or others
61
- guardian of the person
- of the estate
- pleanary guardianship
- durable power of attorney
guardianship
62
an agreement made and executed in satisfaction of the rights one has from a previous contract
accord and satisfaction
63
the bargained for exchange in a contract
| -legal value to both parties
consideration
64
a person giving up the right to perform an act that they were legally entitled to do
forbearance
65
an equitable doctrine that prevents the primisor from revoking the promise when the promisee justifiably acts in reliance upon the promise to his/her detriment
promissory estoppel
66
a law that restricts the period of time within which an action may be brought to court
statute of limitations
67
elements of consideration (2)
| -each party will have benefit/detriment
1. legal value
- money, property, etc.
2. bargained for exchanged
- legal detriment
- gives up a legal right
- inducement to act/forbear
68
gives up a legal right
legal detriment
69
- courts do not weigh consideration to determine if each party receives equal value
- if consideration is present, adequacy is not questioned
adequacy of consideration
70
exception to adequacy of consideration rule (5)
- 1.00
- nominal consideration
- sham consideration
- peppercorn consideration
- stated consideration
- unconscionable contracts
71
- settlement of disputed amounts
| - consideration is present
accord & satisfaction
72
substitute for consideration (1)
-promissory estoppel
73
justifiable reliance on statement
| -change in legal position
promissory estoppel
74
promissory estoppel debts (2)
-statute of limitation
-statement in writing; enforceable
-bankruptcy
-
75
those contracts which must be in special form or produced in a certain way, such as under seal
formal contract
76
a contract other than a formal contract, whether written, oral or implied
simple contract
77
the party appointed by the principal to enter into a contract with a third party on behalf of the principal
agent
78
a change to an original offer that in effect, rejects that offer and becomes a new offer
counteroffer
79
when both parties are mistaken concerning the identity or even the existence of the subject matter of the contract
mutual mistake
80
a proposal to make a contract
offer
81
refusal to accept
rejection
82
to set aside or cancel a contract
rescission
83
cancellation of an instrument by the maker or drawer; rescinding an offer
revocation
84
when one party is mistaken concerning the quality, value or price of the subject matter of the contract or the terms of the contract
unilateral mistake
85
an order of court or a recess rendered after a judicial hearing
adjudication
86
election to avoid a voidable contract
disaffirmance
87
those persons under legal age; standard is 18
minor
88
elements of a contract (5)
1. mutual agreement
2. competency
3. consideration
4. lawful purpose
5. formal requirements
