Term
| What are the two elements of consideration? |
|
Definition
| (!) Bargained-for exchange (2) of things having legal value. |
|
|
Term
| What are the two elements of a bargained-for exchange? |
|
Definition
| (1) Under the agreement each party makes a promise, performs an act, or forbears from performing an act, and (2) at least part of each party's manifested motive in entering into the agreement is to induce the other party's promise, act, or forbearance. |
|
|
Term
| What is the past-consideration rule? |
|
Definition
| If a promise is given solely in recognition of a past act, past forbearance, or past promise by the promisee, there is no consideration for the promise. |
|
|
Term
| A promise that is not given in exchange for consideration is called what? |
|
Definition
|
|
Term
| True or false: In general, consideration is not necessary under the U.C.C. for a promise to be legally binding. |
|
Definition
|
|
Term
| True or false: The performance must be given to the promisor to constitute consideration for the promise. |
|
Definition
| False. It can be given to a third party. |
|
|
Term
| In deciding whether an agreement is a bargain, courts use what theory of contracts? |
|
Definition
| Objective theory of contract. |
|
|
Term
| What is the "past consideration" rule? |
|
Definition
| If a promise is given solely in recognition of a past act, past forbearance, or past promise by the promisee, there is no consideration for the promise. |
|
|
Term
| True or false: A promise to pay a contract debt, made before or after the expiration of the applicable statute of limitations on the debt, is binding in the amount promised (but not exceeding the amount of the debt plus interest) and starts a new statute of limitations, only if the promise is supported by consideration. |
|
Definition
| False. Under the "moral obligation" doctrine, consideration is not necessary to make the promise binding. |
|
|
Term
| A promise to pay a preexisting contract debt will be inferred in what three situations? |
|
Definition
| (1) A signed, written voluntary acknowledgement to the creditor, admitting the present existence of the debt; (2) part payment of the debt; or (3) a signed, written statement to the creditor that the statute of limitations will not be pleaded as a defense. |
|
|
Term
| True or false: A promise to pay a preexisting contract debt, to restart the statute of limitations, must generally be in writing, whether the promise is express or implied. |
|
Definition
True. The only exception is an implied promise based on part payment of the debt.
|
|
|
Term
| True or false: For a signed, written voluntary acknowledgement of a debt to restart the statute of limitations, the acknowledgement must be made to the creditor rather than a third party. |
|
Definition
|
|
Term
| True or false: For a signed, written statement that the statute of limitations will not be pleaded as a defense to restart the statute of limitations, the statement must be made to the creditor rather than a third party. |
|
Definition
|
|
Term
| True or false: Promissory restitution is a majority rule. |
|
Definition
| False. It is a minority rule. |
|
|
Term
| What are the elements of a promissory-restitution claim? |
|
Definition
| (1) A promise made in recognition of a benefit previously received by the promisor from the promisee; (2) the promisee did not confer the benefit as a gift; (3) the promisor breached or repudiation; and (4) enforcement is necessary to prevent injustice. |
|
|
Term
| With respect to a claim for promissory restitution, when deciding whether injustice would occur if the promise is not enforced, the court will consider what factors? |
|
Definition
| (1) The definite and substantial character of the benefit received; (2) the formality of the promise; (3) part performance of the promise; (4) reliance on the promise; (5) unfair pressure by the promisee to obtain the promise; and (6) the detriment incurred by the promisee in providing the benefit. |
|
|
Term
| True or false: An implied-in-fact promise that is bargained for is not consideration. |
|
Definition
|
|
Term
| Unless the agreement provides otherwise, an agreement by a buyer and seller for the buyer to be the exclusive dealer of the seller's goods imposes what implied promises upon the seller and buyer? |
|
Definition
| Upon the seller an implied promise to use best efforts to supply the goods to the buyer, and upon the buyer an implied promise to use best efforts to promote their sale. |
|
|
Term
| Can a party breach an illusory promise? |
|
Definition
|
|
Term
| Is a promise given in exchange for an illusory promise supported by consideration? |
|
Definition
|
|
Term
| What is an illusory promise? |
|
Definition
| A communication that on its face appears to be a promise, but is not because there is no commitment. |
|
|
Term
| The requirement that both parties must be bound to have a bilateral contract is called what? |
|
Definition
| The requirement that there be "mutuality of obligation." |
|
|
Term
| A power to terminate an agreement makes the agreement illusory when what? |
|
Definition
| The power to terminate is unrestricted (i.e., the party has the power to terminate or cancel the contract for any reason at any time). |
|
|
Term
| Under the U.C.C., in the absence of a provision dispensing with notification, a power to terminate or cancel a contract requires how much notice of terminatin or cancelation? |
|
Definition
|
|
Term
| True or false: The power to terminate or cancel an agreement is not unrestricted if it is limited in any way, such as requiring notice to the other party or requiring a certain amount of notice and the party with the power to terminate could possibly be liable to perform prior to giving notice, or is exercisable only under certain circumstances. |
|
Definition
|
|
Term
| What is a requirements contract? |
|
Definition
| A sale-of-goods contract under which a buyer promises to buy exclusively from the seller all of a particular type of goods required by the buyer during the contract period, and in exchange the seller promises to supply the goods. |
|
|
Term
| What is an output contract? |
|
Definition
| A sale-of-goods contract under which the seller promises to supply the buyer all of the goods the seller produces of a particular type during the contract period, and in exchange the buyer promises to buy all of the goods. |
|
|
Term
| Is a requirements contract illusory? |
|
Definition
|
|
Term
| Is an output contract illusory? |
|
Definition
|
|
Term
| If an agreement to sell goods to a buyer is illusory because the buyer is not committed to buy any goods, the agreement is called what? |
|
Definition
|
|
Term
| What is the position of courts with respect to whether a promissory-estoppel claim can be asserted for the breach of a promise of at-will employment when the employer refuses to hire the employee? |
|
Definition
| Courts are split. Some courts say reliance on a promise of at-will employment is unjustified. |
|
|
Term
| What is the effect of a disguised offer? |
|
Definition
| The seller will be obligated to provide any goods ordered by the buyer prior to the termination of the power of acceptance (such as by revocation), but is entitled to refuse to provide any goods prior to the buyer ordering them (i.e., the seller can revoke the disguised offer). |
|
|
Term
| True or false: A promise supported solely by past consideration cannot be binding under the doctrine of promissory estoppel. |
|
Definition
|
|
Term
| True or false: A promisor who makes a promise that is supported solely by past consideration cannot be liable in quasi-contract to the promisee. |
|
Definition
|
|
