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Contracts - governing law
Contracts for services governed by common law of contracts
Offer, Acceptance, Consideration, and no defenses
Manifested willingness to enter into a bargain. Terms must be certain and definite, and the offer needs to be reasonably understood by the offeree to give the power to assent to and conclude the bargain.
Aceeptance is the offeree's assent to enter into the contract.
Must follow the mirror image rule.
Acceptance may be by words or conduct. Only those persons addressed by the offerer may accept
Mirror Image rule
And exceptance must mirror the terms of the offer exactly, or else they act as a rejection/counteroffer
Extrinsic Evidence (Berg Rule)
Extrinsive evidence is admissible to show the entire circumstances under which the contract was made to help in ascertaining the partie's intent.
An express condition is an overtly articulated and agreed upon condition that is part of a contract
Must be litterally complied with.
A promise is not the level of a condition, and intent controls. When ambiguous, the law favors finding a promise rather than a condition
An event that must occur before a promisee has a right to performance by the promisor
Requires all the elements of a K (offer, acceptance, consideration). It replaces the orginal obligations with modified obligations.
Preexisting Legal Duty Rule
An agreement to perform one's obligations under the original contract is not new consideration and will not support a modification
Occurs when when a party to a contract expressly or impliedly repudiates the K at or prior to the time of performace.
- Occurs with:
- (1) Positive statement by the promisor to the promisee that the promisor will commit a material breach
- (2) A voluntary affirmative act that renders promisor unable or apparently unable to perform without a material breach
Dicharges inured parties dutes and gives rise to a claim of damages for total breach
Repudiates before performance is due.
May be retracted until time of performace is due or until time relied on.
Nonperformance of a contractual duty when performance is due. Nonperformance includes defective performance and the absence of performance.
- Two types:
- (1) material
- (2) minor
occurs when the substantial benefit of the bargain is not recieved by the injured party.
Remedy: May suspend his own performance and/or sue for damages
Recieves substantial benefit of the bragain, but there was defective performance
Remedy: May sue for damages, but not suspend performance
Impossibility, Impracticability, or frustration of purpose
Way to discharge performance.
Impossibility - performance cannot be done. Must be objectively impossible, cause by unforseen event that was unavoidable and could not have been guarded in K.
Impracticability - performace become extremely, unduely, or unreasonably difficult, expensive, or burdensome.
Frustration of Purpose - central purpose of K has been under-minded
Entitled to recover amount of money that would place her in the same position she would have been had the K been performed (benefit of the bargain, expectation damages)
- Direct damages
- Foreseeable consequential damages
- incidental damages
- Expecations damages must be
- reasonably certain
- and unavoidable
Duty to Mitigate
Must make reasonable efforts to minimize or avoid damages resulting from another party's breach; avoidable damages are not recoverable
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