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A contract is a promise or a set of promises for the breach of which the law gives a remedy.
What distinguishes the obligations in contract from those in a statute?
The obligations set forth in a statute are imposed while those set forth by contract are assumed.
What four (4) questions must be answered when dealing with contracts?
The four (4) questions that must be answered when dealing with contracts are:
1. Did the parties undertake legally enforceable duties to one another?
2. What is the scope of the duty or duties?
3. Has there been a breach of the duty?
4. What remedies are available for the breach of the duty?
What are the four (4) ways parties can undertake legally enforceable duties?
The four (4) ways parties can undertake legally enforceable duties are:
1. Entering into an agreement
2. Making a promise under seal
3. Inviting reliance
4. Undertaking some act that creates for one or both parties a legal obligation
Are contracts formed by implication or by express language?
Contracts may be formed by either express language or implication because all that is necessary is some manifestation of intention to act or refrain from acting in a specified way, so as to justify the recipient of the promise in understanding that a commitment has been made.
What are the four (4) Recurring Contracts Questions?
- The four (4) Recurring Contracts Questions are:
- 1. Which promises will be enforced?
- 2. When enforceable, what is the scope and content of the enforceable promissory obligation.
- 3. How will these promises be enforced?
- 4. Which of the foregoing answers can the parties contract around?
Is contract law state or federal law?
Contract law is state law and as such is not uniform.
Where is Contract law descended from?
Contract law is descended from English common law, which was guided by the competing Chancery Courts and laws of antiquity.
Define Implied In-Fact Contract.
An Implied In-Fact Contract is a contract that arises out of facts (acts of the parties and context, i.e. custom and or circumstances) from which intent and mutual assent may be inferred.
A Quasi-Contract is a contract formed by a voluntary act, in which the actor impliedly assumes a duty, and the promise imputed to said actor to fulfill the obligation.
What are the Elements of Quasi-Contract?
- The Elements of Quasi-Contract are:
- 1. A Benefit conferred upon Defendant by the Plaintiff
- 2. Appreciation by Defendant of such Benefit
- 3. Acceptance & Retention of such Benefit by the Defendant such that it would be inequitable to retain the benefit without payment of the value thereof
With respect to the conferred Benefit in a Quasi-Contract, if the benefit was a gift will the party that received it have to pay for it?
- With respect to the Benefit conferred in a Quasi-Contract, if the Beneficiary did not ask for it he will likely not have to pay for it unless:
- 1. He had a reasonable chance to refuse it and failed to do so, or
- 2. The benefactor had a reasonable excuse for not affording the Beneficiary to refuse the gift
- 3. The Beneficiary has a duty at law to repay for the service provided
Respecting the meeting of the minds necessary to form a contract, is an unexpressed intention material?
The courts have said that it is the expressed intention of the parties and not that secret one that determines the meeting of the minds that is essential to the formation of a contract.
Outside of a party's expressed intentions under what circumstances will a manifestation be said to be indicative of the party's intent?
Outside of a party's expressed statement of his intentions a manifestation will be said to be indicative of the acting party's intent if a reasonable man would expect some specified action or the lack thereof based upon that perceived outward manifestation (word and/or action).
In the eyes of the law are a person's actions and their intentions separate?
No, The law imputes to a person an intention corresponding to the reasonable meaning to of his words or actions.
Is the knowledge that a promiser did not intend to make a promise material to the formation of the contract?
Yes. If from a promise, manifestation of intent, or from the circumstances existing at the time, the person to whom the promise or manifestation is addressed knows or had reason to know that the person making it does not intend it as an expression of assent he has not made an offer.
Is a contract restricted to what the parties said or does it go further?
Even where words are used a contract includes not only what the parties said but what is obviously to be implied from what they said. The same goes for their actions.
With respect to Manifestation & Assent in what does the Reasonable Person Standard ask?
With respect to manifestation and assent in correspondence the reasonable person standard asks would a reasonable think that they could create a contract by responding to a person in the affirmative.
What two (2) conditions must be met before a person can give assent?
- Before a person can give assent:
- 1. The offer must have been communicated
- 2. Th person seeking to give assent must be the actual or a reasonable addressee of the offer
When is it more likely that the courts will find that an offer has been made?
The courts are more likely to find that an offer has made when the "overture period" (would you be open to a deal, etc.) has passed.
What are two reasons why ads are not customarily offers?
- Two reasons that ads are not customarily offers are because:
- 1. They create a multiple acceptance problem
- 2. Important terms are usually left out
What are four reasons why social obligations do not hold up in court?
- Four (4) reasons social obligations don't hold up in court are:
- 1. Normally we don't think of them as legal issues
- 2. Courts don't want to get into family debates as it is likely to exacerbate the issue
- 3. Judicial resources are scarce
- 4. Damages are usually speculative
What is the test of whether a binding obligation may originate in ads to the general public?
The test of whether a binding obligation may originate in ads to the general public is whether the facts show that some performance was promised in positive terms in return for something requested.
Define Bait Advertising.
Bait Advertising is when an advertisement is used as a means of obtaining leads instead of a bonafide device to make or solicit offers.
How are advertisements generally construed by the courts.
Advertisements are understood to be mere requests to consider, examine, and negotiate, and no one can reasonably regard them as otherwise unless the circumstances are exceptional and the words used are very plain and clear.
When can an add become an offer?
An ad can become offer if and only if the advertisement is clear, definite, explicit, and leaves nothing ope for negotiation.
Why are "Prove Me Wrong" advertisements enforce sometimes.
"Prove Me Wrong" advertisements are enforced sometimes because they solicit an action as opposed to negotiation or some reciprocal promise.
What are the two requirements for the act that creates in the offeree the power of acceptance?
- The act that creates in the offeree the power of acceptance must:
- 1. Be an expression of will and intention
- 2. Lead the offeree to reasonably conclude that a power to create a contract is conferred
Who gets to decide what counts as acceptance of the offer?
The offeror gets to decide what counts as acceptance of the offer.
What are the two modes of acceptance of an offer?
The two modes of acceptance of an offer are By Performance and By Return of Promise.
With respect to advertisements as offers what is the O.R.P. Test?
With respect to advertisements as offers the O.R.P. Test is what would the Ordinary Reasonable Person understood the advertisement to mean?
With respect to allowing the exception that allows an advertisement to be an offer, how is definite defined?
With respect to allowing the exception that allows an advertisement to be an offer definite is defined as conclusively establishing the parameters of the arrangement by using specifics and other devices of limitation.
What are the four (4) considerations used by the courts to evaluate whether or not an offer was made?
- The four (4) considerations used by the courts to evaluate whether or not an offer was made are:
- 1. Language - What was said? (If there are no words of privity, undertaking, or intention acts or construed to be an overture to negotiations unless there are strong countervailing circumstances)
- 2. Determination of Parties - If a definite party is named there is probably an offer, if a group or class is addressed probably not an offer (depending upon the likelihood of creating a multiple acceptance problem)
- 3. Definiteness of the Proposal - The more clearly outlined the parameters by specifics and limitations the more reasonable it is to treat it as a commitment