Term
| Objective theory of assent |
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Definition
| for a contract to be formed, the parties must reach mutual assent. They must both intend to contract and there must be a meeting of the minds based on objective manifestations of assent and not a party's secret, subjective intent. (Embry - mutual assent met even though employer thought otherwise) |
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Term
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Definition
OFFER DEFINED - An offer is the manifestation of willingness to enter into a bargain, so made as to justify
another person in understanding that his assent to that bargain is invited and will conclude it. |
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Term
1. §26.
2. Advertisements |
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Definition
1. PRELIMINARY NEGOTIATIONS - A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.
2. a. Advertising by display, sign, handbill, newspaper, catalogues, price lists, radio, or TV are not ordinarily intended to be understood as offers to sell
i. A rewards case, such as that seen in Carlill v. Carbolic Smoke Ball, may be treated differently. The ad may rise to the level of being an offer if the P was reasonably induced to act based upon statements of reward made by the company.
b. A quotation of price is an invitation of an offer, not
the making of one. |
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Term
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Definition
CERTAINTY - Even though a manifestation of intention is intended to be understood as an offer, it
cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.They are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. Terms are reasonably certain even though it empowers one or both parties to make a selection of terms in the course of performance. |
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Term
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Definition
| Formation in General. - Even if one or more terms are left open, a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy. |
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Term
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Definition
| 4. Revocation may be made via explicit explanation (R 42) or acting in any manner that is inconsistent with the fact that the offer’s still on the table so long as the offeree has knowledge of it (R 43). |
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Term
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Definition
OPTION CONTRACT CREATED BY PART PERFORMANCE - Where an offer invites an offeree to accept by rendering a performance and does not invite
a promissory acceptance, an option contract is created when the offeree tenders or begins the invited
performance |
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Term
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Definition
| Option Contract - a promise which meets the requirements for the formation of a K and limits the promisor’s power to revoke an offer |
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Term
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Definition
| Firm Offers - an offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated (not to exceed 3 months) |
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Term
| R 30 - Form of Acceptance - |
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Definition
| Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances (R 30) |
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Term
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Definition
| PURPORTED ACCEPTANCE WHICH ADDS QUALIFICATIONS - A reply to an offer which purports to accept it but is conditional on the offeror's assent to additional or different terms is not an acceptance but is a counter-offer. |
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Term
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Definition
| An acceptance which requests additional or different terms is not invalidated unless it is made to depend on an assent to those terms |
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Term
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Definition
| Battle of the Forms - A definite and timely acceptance which includes additional terms still qualifies as an acceptance so as to form a K unless that acceptance is expressly conditional on the offeror’s acceptance of the additional terms (proviso clause). |
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Term
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Definition
| Mailbox Rule - an acceptance is valid upon dispatch by the offeree except in the case of an options contract, in which acceptance is valid upon receipt by the offeror |
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Term
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Definition
| Mailbox Rule cont. - an acceptance sent by mail or otherwise from a distance is not operative when dispatched unless it is properly addressed and other precautions are taken to insure its safe transmission |
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Term
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Definition
| Acceptance by performance - A unilateral K may be created by performance |
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Term
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Definition
ACCEPTANCE BY PERFORMANCE; NECESSITY OF NOTIFICATION TO OFFEROR - Notification of acceptance is not required in a unilateral contract UNLESS the offer requests it. Also, if the offeree who accepts by performance has reason to know that the offeror had no means of learning of the performance with reasonable promptness and certainty, the contractual duty of the offeror is discharged.Unless:
-the offeree exercises reasonable diligence to notify the offeror of acceptance; or -the offeror learns of the performance within a reasonable time; or -the offer indicates the notification of acceptance is not required |
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Term
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Definition
| Acceptance by silence occurs: 1) When the offeree benefits from the services after having time to reject them and has reason to know that the offeror expected compensation 2) When the offeror informs offeree that silence will mean acceptance and the offeree intends (subjective) to accept 3) Prior dealings,the offeree should notify the offeror if he does not intend to accept. |
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Term
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Definition
| those that can have more than one meaning |
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Term
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Definition
| those whose meaning can be broadened or narrowed |
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Term
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Definition
| WHOSE MEANING PREVAILS - if one party knew what the other party meant even though a different term was put down, the term that’s used is the one of the clueless party; however, if neither party had any idea that the other party meant something different, the K fails for lack of mutual assent. |
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Term
| R & UCC - Rules in Aid of interpretation |
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Definition
| Vague/ambiguous terms are interpreted in light of the circumstances, course of dealings, course of performance, and usage of trade |
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Term
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Definition
| Open price term - the parties can conclude a contract even though the price is not settled. In such a case the price is a reasonable price at time of delivery. When a price left to be fixed otherwise than by agreement fails to be fixed through the fault of one party, the other may treat the contract as cancelled or fix a reasonable price. |
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Term
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Definition
| Absence of specified place for delivery - unless otherwise agreed, the place for delivery of goods is the seller’s place of business or if he has none his residence |
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Term
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Definition
| leaves complete discretion to perform or not in the hands of the purported promisor |
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Term
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Definition
| Requirements contracts - A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith |
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Term
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Definition
| Exclusive dealings Ks - the parties are bound to use reasonable diligence as well as good faith in their performance of the K |
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Term
| 211- standardized agreements |
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Definition
Customers are not expected to know the terms or even understand them, but the draftsmen are subject to the overriding obligation of good faith.
This promotes the market and expectancy. |
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Term
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Definition
| CL rule that states that, whomever sent the last form will be able to control the terms of the contract |
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Term
| UCC 2-207(2) K based on writings b/w non-merchants |
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Definition
| Battle of the Forms - additional terms are mere proposals |
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Term
| UCC 2-207(3) K based on conduct |
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Definition
| Battle of the Forms - When writings don't establish a K , but conduct does:1) Terms on which the parties disagree are knocked out 2) and the gaps are filled with supplementary terms provided by UCC. (the minority rule is to treat different terms the same as additional terms.) |
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Term
| UCC 2-207(2) K based on writings b/w merchants |
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Definition
| Battle of the Forms - the additional terms are binding unless: 1) The offeror has reimposed the Mirror Image Rule 2) Notice of objection has already been given or is given within a reasonable time after notification, or 3) The terms materially alter the K (they work undue hardship or surprise) |
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Term
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Definition
| Later Arriving Terms - A rejection after an opportunity to inspect may be effective unless the buyer manifests acceptance in the manner invited by the offeror The majority view is that later arriving terms are part of the contract - based on public policy and market welfare. The scholarly view is that 2-207 should apply. |
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Term
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Definition
| Parties to an agreement cannot introduce evidence of prior or contemporaneous agreements in order to repudiate or alter the terms of a completely integrated written contract. |
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Term
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Definition
| Integrated agreement: intended to be a final writing of agreement, and at least one of the terms is agreed to |
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Term
| §210: Partially integrated |
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Definition
| that which isn’t a completely integrated writing. |
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Term
| §210: Completely integrated |
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Definition
| a writing that purports to include all the terms of the agreement. |
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Term
| Consistent additional terms |
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Definition
| those that in the circumstances might naturally be omitted from the writing. Test under the UCC: Is this term such a big deal that, had it been agreed on, it certainly would have been included in the writing |
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Term
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Definition
| a. Partial: some terms – but not all – have been put down i. Consistent additional terms: in (inconsistent: out) ii. Contradictory terms: out iii. Course of performance, course of dealing, usage of trade: in b. Complete:i. Consistent additional terms: out ii. Contradictory terms: out iii. Course of performance, course of dealing, usage of trade: out (in for UCC) |
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Term
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Definition
| the Statute of Frauds - contracts that must be put in writing to be valid: a. Sale of goods for $500 or more b. Land c. Contracts that, on their face, cannot be completed in one year2. Exceptions in which the K’s may not need to be in writing: a. Restatement/CL i. Part performance ii. Action and reliance b. UCC (2-201) i. Part performance ii. Specially manufactured goods not suitable for sale to others iii. Admission under oath that an oral contract was in fact made iv. Merchant confirmation memo: if between merchants a writing in confirmation of the K is received within a reasonable time and is sufficient against the sender, it satisfies the requirements of a writing 1. Objection to this memo must be given via writing within 10 days of receipt |
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Term
| Statute of Frauds: 3. Requirements of the writing itself |
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Definition
a. Restatement
i. The document must be in writing and must evidence the fact that a K was entered into
ii. The document must be signed by the party against whom enforcement is sought
iii. All essential terms must be listed
b. UCC (2-201)– Same except only the quantity term must be present |
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Term
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Definition
| an act, forbearance, or the promise thereof done or given by one party in return for the act or promise of another |
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Term
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Definition
| i. Bargain Theory of Consideration: to constitute consideration, a performance or a return promise must be bargained for (there must be mutual inducement) |
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Term
| 1. Preexisting duty rule defined: |
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Definition
| A K modification has to be supported by new or additional consideration for it to be enforceable and cannot simply be a continuation of a preexisting duty |
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Term
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Definition
MODIFICATION OF EXECUTORY CONTRACT - A promise modifying a duty under a contract not fully performed is binding
1) if the modification is fair in view of circumstances not anticipated when the contract was made; or
2) to the extent that justice requires enforcement in view of material change of
position in reliance on the promise. |
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Term
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Definition
| K modifications need no consideration to be binding but must comply with 2-201 |
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Term
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Definition
| Adequacy of Consideration - courts generally do not inquire into the adequacy of the consideration because consideration “value” is a subjective judgment |
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Term
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Definition
| Nominal Consideration - Disparity in value indicates nominal consideration, which only supports option Ks. |
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Term
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Definition
Material Benefit Rule/Promissory Restitution - A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent it is necessary to prevent injustice(check §71 first).
2. A promise is not binding under subsection (1)
a) if the promisee conferred the benefit as a gift
b) if the promisor has not been unjustly enriched; or
c) if its value is disproportionate to the benefit |
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Term
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Definition
ENFORCEMENT BY VIRTUE OF ACTION IN RELIANCE - A promise which the promisor should reasonably expect to induce action or forbearance
on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement
of the promise. The remedy granted for breach is to be limited as justice requires. |
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Term
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Definition
| Promissory Estoppel - (1)A promise which (2) the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and (3) which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. |
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Term
| Promissory Estoppel: remedies |
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Definition
1. PE as a substitute for consideration
a. Expectancy damages
2. PE as a separate recourse
a. Reliance expenses |
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Term
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Definition
A promise is a manifestation of intention to act or refrain from acting in a specified way,
so made as to (reasonably) justify a promisee in understanding that a commitment has been made. |
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