Week 2 - Test 1 Flashcards
The first step to a contract–agreement–is a “(1)” or the “(2)”.
- meeting of the minds
2. manifestation of mutual assent
used to determine whether parties had “meeting of the minds, looks to what a reasonable person would believe, based on circumstances
objective standard
an indication of current willingness to enter into a contract, communicated by the person making the offer
offer
party making the offer
offeror
party receiving an offer
offeree
To indicate a current willingness to enter into a contract, an offer must be sufficiently (1) in its terms.
definite
4 things in a contract that must be definite
- subject
- consideration (price)
- parties
- time
(1) does not govern contracts, because it is a contract between (2).
- Common law
2. merchants
defined by the UCC as any person who regularly deals in the kind of goods covered by the contract or who, by occupation, hold himself out as having knowledge or skills peculiar to dealings with the goods in question
merchant
also called “gap-filling” provisions; under the UCC a contract may form despite failure to specify certain terms
open terms
Once (1), the contract forms, after which a lawsuit may follow a refusal to honor the contract.
- an offer is accepted
The most common way that an offer ceases to exist. An offer that is not, in itself, a contract, can be revoked at any time before acceptance.
revokation
an offer, supported by consideration, may not be revoked at will
option
UCC Rule; no consideration required to hold offer open between merchants
firm offer
If the offer proposes a unilateral contract, the ability to revoke is limited, once the offeree has begun (1)
- substantial performance
a seller agrees to sell to the highest bidder and cannot revoke the offer to sell, even if bids are disappointingly low
auction without reserve
offeree terminates offer
rejection
offeree respond to offer with an offer–may terminate original offer, depending on circumstances
counteroffer
3 ways a contract can be terminated by law
- illegality
- passage of time
- death/insanity
events, including deat, insanity, destruction of subject matter, and illegality, may terminate an offer
operation of law
compliance or agreement by one party with the terms and of anothers’ offer so that a contract forms
acceptance
Acceptance can be implied based on (1), (2) or (3)
- behavior
- partial performance
- past dealings
common law rule; acceptance occurs when dispatched by appropriate means
mailbox rule
acceptance must be identical to offer (changes = counteroffers)
mirror image rule
UCC Rule; overrides mirror image rule when merchants use forms
battle-of-the-forms rule
Offer + counteroffer + acceptance
negotiation
Manifestation of assent is the “(1)” of agreement. It is a (2), as if both parties know what the other is thinking. An implied contract is different in this regard because it deals with only (3) deciding whether (4).
- outward sign
- meeting of the minds
- one party
- the other made an offer
A contract begins with an agreement, which requires (1) based in (2) and (3). Each party must intend to (4) and must do so on (5) terms.
- mutual assent
- offer
- acceptance
- enter the contract
- mutually acceptable
A court will always try to (1) a contract–this is (2) driven!
- enforce
2. economically
Conclusion of Raffles v. Wickenhouse (Oct./Dec. ship example)
No mutual assent, not meeting of the minds = not contract. Parties were not thinking the same thing.
Conclusion of Akin-Gump (resume with $200k placement fee tersm, sent to wrong place, unsolicited, etc.)
No meeting of minds = no contract
(1) of words or actions between parties is all courts have to decide on whether an agreement existed. Each party must act in a way as to (2).
- Manifestation
2. lead the other party to reasponably believe an agreement has been reached
The objective standard of courts in determining a contract agreement is the (1) and whether he would say mutual assent existed. Under this, the courts enforce (2)–not necessarily (3)–intent.
- Ordinary, Reasonable, Prudent person (ORP)
- apparent
- real
The conclusion of Leonard v. Pepsico (re: advertised Harrier jet)
offer made in jest; not reasonable
As soon as (1) is reached, there is a contract–even if no formal contract has yet been drawn. The two criteria for this are (2) and (3).
- mutual assent
- intent to enter into a bargain
- definiteness of terms
Conclusion of Tool & Dye example (letter of intent = contract?)
- Definiteness of terms, no statement that a contract would be drawn up later –> nothing further coulrt make it a contract, so it was a contract
An offer is a manifestation of a (1) to enter into an agreement–a (2)–made in such a manner so as to give reason for another person to understand that (3) to the agreemnent is (4) and, if given, will (5) the agreement.
- current willingness
- bargain
- approval
- invited
- conclude
5 rules of an offer
- must be communicated to the person/persons to whom it is addressed (cannot take effect unless known by offeree–reward example)
- must indicate a desire to enter into a contract
- must be directed at some person or group of persons (defined or undefined)(ads are not offers!)
- must invite acceptance. Offeror can stipulate terms of acceptance (reaosnable, timely)
- must create reasonable understanding that upon acceptance, a contract will arise without further approval or action on the part of the offeror
An add is NOT an (1)–it is an (2). This can change if the (3) is identified and if there are more (4).
- offer
- offer to negotiate
- offeree
- definite terms
4 things that look like offers but may not be
- offer made in jest
- auctions (solicitations for bids)(exceptions, though!)
- negotiations
- price quotes (how much would you take?)
An auction is not an (1)–it is a (2); UNLESS it is said to be “(3),” the auctioneed may withdraw the item at any time prior to (4). (5) can also be withdrawn.
- offer
- solicitation for bids
- without reserve
- bid-taking
- Bids
Negotiations are not (1)–they are (2). Offers, by contrast, must be (3).
- offers
- statements of future intentions
- present intent
Parties must agree on which four major and essential terms to a contract?
- parties to the contract
- subject matter of the contract
- time for performance
- price (including quantity)
Once rejected (including by (1)), an offer cannot be reinstated by the (2). An offer is also cancelled by (3)–a contract must be in place (4) to be valid by, e.g., “estate”
- counteroffer
- offeree
- death of the offeror
- before death
Acceptance is the offeree’s (1) to the terms of the offer made in a manner (2) or (3) by the offeror. The (4) standard applies here, too!
- manifesation of assent
- invited
- required
- objective standard (ORP person)
An offer may be accepted only by a person in whom the (1) intended to create the (2). The offeror is the (3) of their offer and can prescribe the (4)
- offeror
- power of acceptance
- master
- method of acceptance
By common law, (1) is not possible, with a few exceptions.
- acceptance by silence
Exception to “acceptance by silence” being invalid–silence when a service is (1). Person will be owed (2)–the amount it cost the person to do the service. Prevents (3). This is a (4), because it is not based on, for example, history, so it is not an implied contract.
- knowingly performed
- quantum meruit
- unjust enrichment
- quasi-contract
Creating exceptions to the “acceptance by silence” rule is a (1) determination! One example is the cake class one, which held up because the person (2) while having an (3).
- subjective
- accepted the offer
- opportunity to reject it
By the (1), acceptance must match the offer–the slightest deviation is a (2)! One thing that comes to mind is (3) because the computer is the agent in these transactions.
- mirror image rule
- counteroffer
- E-commerce
By the (1), in the absence of (2), acceptance occurs as soon as it is (3). For an email this would be as soon as the person (4).
- mailbox rule
- specification
- out of the offeree’s possession
- hits send
