Term
| What are the six ways an offer can be terminated? |
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Definition
1)Offeror revokes the offer by express communication to the offeree.
2)Constructive Revocation--The offeree learns that the offeror has taken an action that is absolutely inconsistent with a continuing ability to contract.
3)Offeree rejects the offer.
4)Offeree makes a counteroffer.
5)The offeror dies.
6)A reasonable amount of time passes. |
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Term
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Definition
1) Must be in writing;
2) Contain an explicit promise not to revoke;
3) Be signed by the offeror (who must also be a merchant) |
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Term
| How long does a firm offer last? |
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Definition
| Either as long as stated in the offer or, if not amount of time is given, for a reasonable amount of time not to exceed 90 days. |
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Term
| What are the common situations in which silence will constitute acceptance of an offer? |
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Definition
1) Unilateral reward offers or contests
2) Unilateral offers in which the parties are geographically close (such that the offeror will see that performance has occurred)
3) A past history between the parties of silence serving as acceptance (such that the offeree should reasonably notify the offeror if she does not accept)
4) The offeror says that acceptance must come via silence, and the offeree intends to accept the offer by silence |
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Term
| The new term in the purported acceptance may control under § 2-207(2), but only if all of the following are true: |
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Definition
-Both parties are merchants;
-The new term does not materially alter the deal;
-The initial offer did not expressly limit acceptance to its terms; and
-The offeror does not object within a reasonable time to the new term. |
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Term
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Definition
| 1) Promissor makes a promise that they know or should know would reasonably be expected to induce reliance; 2) The promisee relies on the promise to his detriment; and 3) Injustice can be avoided only by enforcement of the promise. |
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Term
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Definition
The plaintiff confers a measurable benefit on the defendant;
The plaintiff reasonably expected to get paid; and
It would be unfair to let the defendant keep the benefit without paying (look for an opportunity to decline or a good reason why there was no opportunity to decline). |
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Term
| What are the 7 defenses to contract formation? |
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Definition
1)Misunderstanding
2)Incapacity
3)Mistake
4)Fraud/Misrepresentation/Nondisclosure
5)Duress
6)Illegality
7)Unconscionability |
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Term
| Contract formation defense of Misunderstanding |
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Definition
The parties use a material term that is open to two or more reasonable interpretations;
Each side attaches a different meaning to the term; and
Neither party knows, or should know, of the confusion. |
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Term
| Contract formation defense of Mutual Mistake |
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Definition
There is a mistake of fact, existing at the time that the deal is made;
The mistake relates to a basic assumption of the contract and has a material impact on the deal; and
The impacted party did not assume the risk of mistake. |
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Term
| Contract formation defense of Unilateral Mistake |
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Definition
- All elements of mutual mistake; and either,
- The mistake would make the contract unconscionable; or
- The other side knew of, had reason to know of, or caused the mistake. |
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Term
| Contract formation defense of Misrepresentation |
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Definition
A misrepresentation of a present fact (not opinion);
That is material or fraudulent (intentional); and
That is made under circumstances in which it is justifiable to rely on the representation. |
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Term
| The Statute of Frauds applies to which kinds of contracts? |
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Definition
A contract made in consideration of marriage (like a prenup).
A contract promising to guarantee the debt of another--Sureityship.
A contract that by its terms cannot be performed within one year from its making.
Goods contracts for a price of $500 or more
A contract for the sale of an interest in real property. |
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Term
| Part performance of a real estate contract |
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Definition
Requires 2 of the following 3:
1) Possession
2) Parial or full payment
3) Improvements to the land |
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Term
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Definition
1) Check whether the parties have already dealt with the risk problem in the contract. If so, their agreement will control.
2) If not, ask whether either party has breached (typically another part of the contract). If so, that breaching party bears the risk of loss even if the breach is unrelated to the loss.
3) If there is no breach, and the goods are being shipped, then ask what type of delivery contract it was:
- If it was a shipment contract, then the risk of loss during delivery rests with the buyer.
- If it was a destination contract, then the risk of loss during delivery rests with the seller.
5) In all other cases, ask whether the seller is a merchant.
- If so, the risk of loss stays with the seller until the buyer receives the goods.
- If not, the risk of loss moves to the buyer when the seller tenders the goods. |
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Term
| Options a nonbreaching party has when the other commits an anticipatory breach |
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Definition
- Treat the repudiation as a breach and sue immediately for damages.
- If you have completed the entire performance and are only waiting for payment, you cannot sue early.
- Ignore the repudiation, demand performance, and see what happens. |
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Term
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Definition
o The buyer is insolvent at the time of receipt of the goods;
o The seller must demand the return of goods within 10 days of receipt (or within a reasonable time if the buyer misrepresented his solvency to the seller); and
o The buyer still has the goods. |
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Term
| A third party beneficiary's rights vest when... |
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Definition
o The beneficiary detrimentally relies on the rights;
o The beneficiary assents to the contract/the rights; or
o The beneficiary files a lawsuit to enforce the contract. |
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