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definition of offer
an offer is an objective manifestation of a willingness by the offeror to enter an agreement that conveys the power of acceptance to the offeree
unsolicited merchandise rule
Any unsolicited and voluntarily sent merchandise is an unconditional gift and NOT an offer. Recipient may use or dispose as she sees fit.
revocation in unilateral contract: general rule
An offeror can revoke an offer to form a unilateral contract at any time up until the offeree completes performance
If an offer to enter into a contract for services or real estate is _______, _______, and _______then the offeror may not revoke the offer during the stated option period (or a reasonable period of time if not stated). NOTE: doesn't apply to firm offers since subject to the UCC
made in writing, signed by the offeror or his agent, and the writing specifies that the offer is irrevocable,
A promise to pay a reward for the return of lost or mislaid property is valid only if _____.
the promise is in writing or promisor otherwise caused it to be published.
Oral offers of reward are NOT enforceable
Past consideration is good consideration if:
- 1. the consideration is expressed in a writing by the promisor or her agent
- 2. the consideration is proved to have been actually given or performed; and
- 3. consideration would be valid consideration but for the time when it was given or performed
Infants in NY are under 18. May not disaffirm contract solely because party is an infant if ( 5 categories):
- 1. all contracts entered into by a person 18 or older (not infants)
- 2. involves the marital home
- 3. infant performs artistic or athletic services that have been approved by either the NY supreme court or surrogates court
- 4. student loan contracts if 16 or older
- 5.life insurance contracts entered into by those 14.5 or older
Usurious contracts: general rule:
Consumer and personal loans with an interest rate exceeding 16% are usurious. In most cases, usurious rates are illegal and void.
Exculpatory clauses and limitation of liability: general rule:
Enforceable against simple or mere negligence claims, but are unenforceable against gross negligence
Exculpatory clauses and limitation of liability: exceptions:
- 1. provisions in contracts for construction, repair, alteration or maintenance that purport to exempt owner, builder, etc from liability for negligence are against public policy and are void and unenforceable.
- 2. Agreements (including on admissions tickets) purporting to exempt from liability owner or operators of swimming pools, gyms, and places of public amusement or recreation AND such places impose a fee for their use, against public policy
noncompete provisions in employment agreements: 4 conditions must be met to uphold
- 1. covenant must be reasonable in time and geographic scope
- 2. necessary to protect the employer's legitimate interests
- 3. covenant must not be harmful to the general public; and
- 4. not unreasonably burdensome on the employee
pay if paid provision: general rule:
Against public policy for a general contractor to insert a provision into a contract with a subcontractor which state that the GC does not have to pay the SC unless the GC first gets paid.
-This operates as forbidden waiver of the right of a subcontractor to enforce a mechanic's lien if not pied
An irrevocable assignment of rights will not be unenforceable just b/c no consideration IF:
- in writing AND
- signed by the assignor or her agent
For signature to satisfy the Statue of Frauds, the name used must be:
inserted or adopted with intent to authenticate the writing in question.
oral contract for the transfer of an interest in real property is enforceable and does not require a writing if buyer:
- i. makes partial or full payment
- ii. substantially improves the property
- iii. takes possession of the property
In addition to common law M.SOUR, NY requires these 4 agreements to be in writing:
- 1. a subsequent or new promise to pay a debt that was discharged in bankruptcy
- 2. assignment of an insurance policy or a promise to name a beneficiary in an insurance policy
- 3. a contract to pay compensation for services rendered in negotiating real estate or a finders fee
- 4. agreement to change, modify, or discharge a contract or other obligation involving real or personal property
Unless contract explicitly states time is of the essence, a material breach not be found solely because party fails to perform by that specified date
Landlord under no obligation or duty to the tenant to re-let or attempt to re-let abandoned premises in order to minimize damanges
Three options for landlord if tenant abandons:
- 1. Do nothing and collect full rent due
- 2. Accept tenant's surrender, re-enter, and re-let for landlord's own account thus releasing tenant from further liability
- 3. Notify tenant that entering and re-letting premises for the tenant's benefit. Tenant on the hook for any shortfall.