What is the general rule regarding offers and auctions?
auctioneer is inviting offers and bids are the offers UNLESS auction is w/o reserve
An offer can be revoked in what 4 ways?
lapse of time
death or incapacity of either party
revocation by OFR
rejection by OFE
When is an OFR free to revoke an offer?
at any time for any reason prior to acceptance if effectively communicated
What is the Functional Equivalents Rule?
If offer made by ad or other general notification then power of acceptance terminated when notice of revocation communicated in the same or equivalent manner and no better means of notification is reasonably available
What are the 2 ways to prevent revocation of an offer?
What are the 3 elements for an enforceable option K?
subsidiary promise to keep offer open
valid mechanism for securing enforcement
What is required for an option K to be valid in NC?
express promise or agreement to remain open for specified period of time + consideration
What are the requirements for a firm offer?
expressly states by its terms that it will be held open
doesn't require consideration
What is an offer to enter a unilateral K seeking in return?
Under a unilateral K when does the OFR become bound?
when OFE completes performance
modern rule - once OFE begins performance, an option K is created and OFR may not revoke
What is the OFR looking for in a bilateral K?
What are the 2 general requirements to constitute effective acceptance?
mirror image rule - mirror the terms of the offer
must be communicated to OFR
What is the result of an acceptance containing any changes, additions, or subtractions from the terms in the offer?
constitutes a counteroffer thereby rejecting the offer and making a new one
When can OFE silence constitute acceptance?
(1) OFE takes benefit knowing OFR intention
(2) OFE has given OFR reason to believe silence = acceptance
(3) previous dealings or other circumstances reasonable that OFE should notify OFR if doesn't intend to accept
Under the UCC additional terms become part of the K b/t merchants unless what?
(1) offer expressly limits acceptance to the terms of the offer
(2) OFR objects w/in reasonable time
(3) materially alters the K
How are additional and different terms treated in consumer X under the UCC?
as mere proposals for addition to the K
How does the UCC treat different terms b/t merchants?
majority - employs the knockout rule
minority - mere proposals for alteration that OFR is free to accept or reject
What are the different forms consideration can take?
return promise to do something
return promise to refrain from doing something
actual doing of some act
refraining from doing some act
What are the 2 basic elements of consideration?
(1) legal detriment
(2) bargained-for exchange
How does NC view a seal?
substitute for consideration
presumptive proof of consideration that can be rebutted by C&C
not defense to claim of lack of consideration in equitable action
UCC sales K - no effect, doesn't substitute for consideration
What is meant by insufficient consideration?
promise not supported by consideration or legally insufficient
What is failure of consideration?
hasn't performed in accordance with his promise
What is an illusory promise?
promise to perform that leaves performance to the discretion of the promising party
doesn't constitute consideration
Does a condition on a gratuitous promise satisfy the consideration requirement?
4 requirements for promissory estoppel?
injustice w/o enforcement
What are the requirements for enforceability under SoF?
writing signed by the party against whom enforcement is sought
What are the six categories of agreement governed by SoF
land sale K
sale of goods > $500
What types of agreements does the NC SoF cover?
sales of goods > $500
leases in excess of 3 years
transfers of real property
What other types of agreements, other than those covered by NC SoF, require a writing to be enforceable?
restrictions on employment
reaffirmation of debt after SoL or bankruptcy
commercial loan commitment > $50K
payment of excessive interest rates
SH voting trusts
sale of business opportunity
guarantees from health care providers
assignment of EE wages
Writing isn't required in NC for what kinds of K?
trust in land
employing real estate brokers
consideration of marriage
can't be performed w/in 1 year
What must be included in the writing to satisfy the SoF?
identity of parties
nature and subject matter of the K
essential terms of the unperformed promises in the agreement
What is the merchant's confirmation exception to the UCC SoF?
signed written confirmation sent by one party to the other will defeat a claim by receiving party as well as by the sending party unless certain conditions are met
What are the exceptions to the UCC SoF?
specially manufactured goods
admission in court or other similar proceeding
What are the PER exceptions?
What are the S obligations under the UCC in carrier and non-carrier cases?
carrier - put the goods in the possession of a carrier and make appropriate arrangements for shipment to B
non-carrier - obligation to tender delivery
What is S obligation in a destination K?
tender goods at particular destination
What are B obligations under UCC?
B tender of payment condition to S duty to tender & complete delivery
right to inspect goods
When does RoL shift to B in carrier cases?
when S has delivered goods to carrier, made appropriate K for shipment, and seasonably notified B
When does RoL shift to B in non-carrier cases?
S/M - B takes possession
S/nonM - S tenders the goods
What is the preexisting duty rule?
POR can't provide consideration where that consideration is a duty the POR is already obligated to perform
What is the effect of breach on RoL if S breaches by making NC tender?
remains on S until cure or acceptance
What is the effect of breach on RoL if B rightfully revokes acceptance?
B may treat RoL as having been on the S from the beginning (deficiency of insurance coverage)
What is the effect of breach on RoL if B breaches before the RoL passes to the B?
S may treat the RoL as resting on the B for a commercially reasonable time (deficiency of insurance coverage)
Is consideration required to support a modification of K?
UCC - no
non-UCC - yes
What is the effect of a K modification in NC?
production of a new agreement which must contain all essential elements of a K
What are the possible excuses to performance of K?
frustration of purpose
accord and satisfaction
What is a promissory condition?
performance conditioned on occurrence of the promised performance by the other party
What is a pure condition?
K performance conditioned on occurence of events beyond control of either party
Where a party's performance under the K is subject to an express condition, what does the failure of that condition do?
discharges the party's obligation to perform
When will a conditioned be excused?
BF conduct by beneficiary of condition
If there is a material breach, what does that do to the obligations and rights of the aggreived party?
free to walk away from his own obligations
sue the breaching party for damages
What is the result if the party has rendered substantial performance of the condition regarding obligations/rights of aggreived party?
doesn't discharge performance obligations
To what kind of K does the doctrine of substantial performance apply?
K for services
What is the perfect tender rule under UCC?
every K term is treated as an express condition that must be enforced exactly...any deviation constitutes a breach
What are the B options if S fails to make perfect tender under UCC?
accept the goods
reject the goods
accept part and reject part
must pay for what he accepts and seek damages for S imperfect tender
What are the defenses to breach of K?
What are the remedies available for breach of K?
mental anguish (NC)
What are expectation damages?
put the aggrieved party where he would be if the other party had fully and properly performed the K
What are reliance damages?
amount expended by party to perform the K
What are restitutionary damages?
value of the benefits conferred on breaching party by aggrieved party during the course of conduct are recoverable
What are negative injunctions?
orders prohibiting breaching party from taking particular action
What are the considerations in NC for validity of CNC?
reasonableness of geographic scope
nec to protect legitimate interests
doesn't interfere with public interest
What is the 3 prong test for determining whether caluse in particular K is a valid liquidation clause?
reasonable in relation to anticipated harm
reasonable in relation to losses that actually occurred
In NC, when can mental anguish be recovered in breach of K action?
K not concerned with trade or commerce
benefits not pecuniary
related to dignity, mental concern, or solitude or sensibilities
When do an intended beneficiaries right vest under the K?
brings suit on the matter
changes her position in justifiable reliance
manifests assent at request of either party
under express term of the K provide for such vesting
When is a right not assignable?
would materially alter the risks to or obligations of the other party to the K
What does NC require for novation?
previous valid agreement
agreement of all parties
extinguishment of old K
validity of new K
- parties' intent governs
What are the exceptions to general rule that all obligations can be delegated?
performance is personal
K prohibits it (fully enforceable)
What is required to make an effective assignment?
(1) manifest an intention to make a present transfer
(2) w/o further action by owner or obligor
Does a delegation relieve the delegator from his obligations under the K?
What are the liabilities of delegatee?
liable to delegator and obligee for nonperformance
What is an assignment>?
transfer of a right to receive a performance under a K
What is a delegation?
3P agrees to satisfy a performance obligation owed by one of the parties to K