Term
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Definition
| Promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty |
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Term
| $17 Requirement of a bargain |
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Definition
(1): Except as stated in (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.
(2): Whether or not there is a bargain a contract may be formed under special rules applicable to formal contracts or under the rules stated §82-94 |
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Term
| $20 Effect of Misunderstanding |
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Definition
1): No manifestation of mutual assent (no contract) to an exchange if parties attach materially different meanings to their manifestation and
o (a): neither part knows or has reason to know the meaning attached by the other or
o (b): each party knows or each party has reason to know the meaning attached by the other (both know other’s meaning or has reason to know)
• (2): The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if:
o (a): that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party or
o (b): that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first (same as (a) but has reason to know – ex: Ray v. Eurice).
• Favors more ignorant party because it gives an incentive for the party to share any knowledge or meanings that they have |
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Term
| §21: Intention to be legally bound: |
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Definition
| Neither real nor apparent intention that a promise be legally binding is essential to the formation of a contract, but a manifestation of intent that a promise shall not affect legal relations may prevent the formation of a contract |
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Term
| §22: Mode of Assent: Offer and Acceptance |
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Definition
(1) The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party of parties
(2) A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined |
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Term
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Definition
| 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
| §26: Preliminary Negotiations: |
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Definition
| A manifestation of willingness to enter 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 intent to conclude a bargain until he has made a further manifestation of assent. |
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Term
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Definition
| 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 terms of contract are reasonably certain |
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Term
| §36: Methods of termination of the power of acceptance |
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Definition
1) An offeree’s power of acceptance may be terminated by:
• Rejection or counter offer (power of acceptance terminated when you make a counteroffer)
• Lapse of time
• Revocation (revocation if sold to someone else)
• Death or incapacity
(2) terminated by non-occurrence of any condition of acceptance under terms of the offer |
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Term
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Definition
(1) An offeree’s power of acceptance is terminated by his rejection of the offer, unless the offeror has manifested a contrary intention
(2) A manifestation of intention not to accept an offer is a rejection unless the offeree manifests an intention to take it under further advisement. |
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Term
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Definition
| (2): Power of acceptance is terminated by making of a counteroffer, unless offeror has manifested a contrary intention or unless counteroffer manifests a contrary intention of the offeree (unless counteroffer indicates original offer is still open) |
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Term
| §43: Indirect Communication of Revocation: |
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Definition
| power of acceptance terminated when offeror takes definitive action inconsistent with an intention to enter into the proposed contract and offeree acquires reliable information to that effect – (ex: sells to someone else and other party knew that- their offer is revoked). |
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Term
| §50: Acceptance of Offer Defined, Acceptance by Performance, Acceptance by Promise |
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Definition
(1) Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.
(2) Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as a return promise.
(3) Acceptance by a promise requires that the offeree complete every act essential to the making of the promise |
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Term
| §58: Necessity of Acceptance Complying with terms of offer: |
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Definition
| Acceptance must comply with requirements of the offer as to the promise to be made or the performance to be rendered |
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Term
| §59: Purported Acceptance Which Adds Qualifications: |
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Definition
| : A reply to an offer which purports to accept it but is conditional on the offeror’s assent to terms additional to or different from those offered is not an acceptance but a counter offer. |
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Term
| §60: Acceptance of offer which states, place, time or manner of acceptance: |
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Definition
| If an offer prescribes the place, time or manner of acceptance its terms in this respect must be complied with in order to create a contract. If an offer merely suggests a permitted place, time or manner of acceptance, another method of acceptance is not precluded. |
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Term
| §63: Time when acceptance takes place: |
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Definition
Unless the offer provides otherwise
(a) an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree’s possession, without regard to whether it ever reaches the offeror; but
(b) an acceptance under an option contract is not operative until received by the offeror |
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Term
| §69: Acceptance by silence of exercise of dominion: |
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Definition
(1) Where an offerree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:
(a) where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation
(b) where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer.
(c) Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept
(2) An offeree who does any act inconsistent with the offeror’s ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable. But if the act is wrongful as against the offeror it is an acceptance only if ratified by him. |
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Term
| §32: Invitation of or Promise of Performance |
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Definition
| In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses. If doubtful between unilateral and bilateral (promise or performance), the offeree can choose. If the offeree chooses performance, he does not get the benefit of §45. He could have been locked in by a promise but chose not to be. If he has an option to lock in, but chooses the more free way, the offeror should get that freedom too. |
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Term
| §45: Option contract created by part performance or tender |
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Definition
tender (applies only when there is no doubt that performance is the only way to fulfill the contract).
(1): 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 or tenders a beginning of it. Offeror’s promise becomes irrevocable when offeree begins to perform, Offeree can still get out if he stops performing.
(2): The offeror’s duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer |
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Term
| §27: Existence of contract where written memorial is contemplated |
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Definition
| Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations. |
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Term
| Option Contracts re: restatatement |
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Definition
an offer made in a signed writing is binding as an option contract if it proposes an exchange on fair terms within a reasonable time and recited a purported consideration for its making
Restatement (Second): an option contract is a contract in itself, power of acceptance under an option contract is not terminated by rejection or counter offer, by revocation or by death or incapacity of the offeror. To discharge an option, parties would have to make another binding agreement or establish other grounds for termination- how do this fit in with the time provision in Normile? |
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Term
| §71: Requirement of Exchange; Types of Exchange (Consideration) |
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Definition
(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise
(3) The performance of a promise may consist of
a. An act other than a promise or
b. A forbearance or
c. The created, modification, or destruction of a legal relation
(4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person. |
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Term
| §79: Adequacy of consideration; mutuality of obligation |
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Definition
If the requirement of consideration is met, there is no additional requirement of
(a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promise; or
(b) Equivalence in the values exchanged; or
(c) “mutuality of obligation”
* benefit/detriment is not required |
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Term
| §81: Consideration as Motive or Inducing Cause |
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Definition
(1) The fact that what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise.
(2) The fact that a promise does not of itself induce a performance or return promise does not prevent the performance or return promise from being consideration for the promise *don't inquire into motive- doesn't matter why she is asking him to do something |
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Term
| §87: Option Contract – another way a contract can be made |
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Definition
(1) An offer is binding as an option contract if it
a. Is in writing and signed by the offeror, recites a purported consideration (not actual) for the making of the offer, and proposes an exchange on fair terms within a reasonable time or
b. Is made irrevocable by statute
(2) An offer which the offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree before acceptance and which does induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice. Standard that says if offeror thinks they will rely and they do rely, binding to extent to avoid injustice.
**Irrevocable by statute = UCC §2-205 “Firm Offer.” |
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Term
| §63(b): Time when acceptance takes effect |
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Definition
| (b): an acceptance under an option contract is not operative until received by the offeror. |
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Term
| § 59: Qualified Acceptance: |
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Definition
| A definite and seasonable expression of acceptance is operative despite the statement of additional or different terms if the acceptance is not made to depend on assent to the additional or different terms. The additional or different terms are then to be construed as proposals for modification of the contract. Such proposals may sometimes be accepted by the silence of the original offeror. |
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Term
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Definition
(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promise or a third person and which does induce such action or forbearance is binding if injustice can be avoided only be enforcement of the promise. The remedy granted for breach may be limited as justice requires.
(2) A charitable subscription or a marriage settlement is binding under (1) without proof that the promise induced action or forbearance. |
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