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An offer requires a present intent to contract, with certain definite terms, and communicated to an identifiable offeree.
An acceptance is an unequivocal assent to the terms of the offer made by one with the power of acceptance. Acceptance is effective upon dispatch. Unless specified in the offer, acceptance can be shown through any reasonable manner.
Merchant's Firm Offer
Under the UCC, an offer by a merchant which specifies that the offer will be kept open is binding if it is in writing. Additionally, between merchants no additional consideration is required.
Revocation is a termination of the offer by the offeror. It is effective upon receipt or upon knowledge by the offeree of such revocation. Where the offeree acquires knowledge of acts by the offeror which would extinguish expectation that the offer remained open, there will be effective revocation.
Defenses to Formation
- Statute of Frauds (MY LEGS)
Statute of Frauds
The statute of frauds requires that there be one or more writings signed by the person sought to be held liable on the contract that reflect the material terms of the contract. The writing must contain the identity of the party sought to be charged, identification of the contract's subject matter, terms and conditions of the agreement, consideration and the signature of the partu to be charged. Under the UCC, the quantity, signature of the party to be charged and proof of a writing is sufficient to indicate that a contract was formed is required.
Parol Evidence Rule
Evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or vary contractual terms is inadmissible if the written K is intended as a complete and final expression of the parties.
Additional Terms (UCC)
Under the UCC, the addition of an additional term does not affect acceptance. If the contract is to be between merchants, the additional term will become part of the K unless they materially alter the K, the offeror objects, or the offer is limited to its terms.
Under common law, any modification to a contract requires additional consideration. Under the UCC, no consideration is required for modification so long as the modifiation is made in good faith. The modification may need to meet the statute of frauds.
When conditions make it impossible for any person to perform the contract, the duty to perform is discharged.
Under the common law, impracticability excuses performance when an unforeseeable circumstance makes it extremely difficult or expensive to render performance. Under the UCC, foreseeability is not required, but it must be shown that the nonoccurrenceof the circumstances was a basic assumption upon whcih the contract was made. However, a mere change in price is not grounds for impracticability.
Vesting Of Third Party Rights
A 3rd party's rights only vest wehn the beneficiary: 1) manifests assent to the promise in a manner invited or requested by the parties, 2) brings suit to enforce the promise, or 3) materially changes position in justifiable reliance on the promise.
Satisfaction Of The Statute Of Frauds (Performance - Real Estate)
Part performance satisifes the statute of frauds in transfers of real estate. Part performance requires any two of the following: 1) improvements to the land, 2) payment and 3) possession
Satisfaction Of The Statute Of Frauds (Performance of Services Ks)
Full performance by either party satisfies the statute of frauds.
Part Performance of a services contract does not satisfy the statute of frauds.
Satisfaction Of The Statute Of Frauds (Performance of a Goods K)
Part performance of a goods K by the seller satisfies the statute of frauds only to the extent of the part performance.
If the goods are delievered, then there is no SoF defense for the buyer. However, the seller can assert a SoF defense if the buyer attempts to force the seller to provide additional goods.
Satisfaction Of The Statute Of Frauds (Seller's Performance on Specially Made Goods)
If the K is for the sale of goods that are to be specially manufactured, then the SoF is satisfied as soon as teh seller makes a "substantial beginning." This means that the seller has done enough work that it is clear that what he is working on is a specially manufactured good.
A contract will not be enforced if a statement of fact is made by one of the contracting parties before a K is formed, that statement induces the contract and the fact is false.
The goal of damages is to put the nonbreaching party in the same place they would have been had the breach not occurred. This includes:
- Expectation Damages
- Reliance Damages
- Consequential Damages
- Incidental Damages - In Ks for the Sale of Goods.
Where the breaching party must provide the nonbreaching party with sufficient money for her to buy substitute performance
Where the nonbreaching party can recover for damages based on a reliance measure rather than on an expectation to perform. These put the nonbreaching party in the position they would have been in had the contract never been formed.
The nonbreaching party may recover damages for the losses resulting from the breach that any reasonable person would have foreseen would occur from a breach at the time of the entry into the K.
This only applies to a buyer.
The Pl may recover expenses reasonably incurred by the buyer in inspection, resipt, transportation, care and custody of goods rightfully rejected and other expenses reasonably incident to the seller's breach.
The parties to a K may stipulate what damages are to be paid in the event of a breach. These damages must be in an amount that is reasonable in view of the actual or anticipated harm caused by the breach.
Accord And Satisfaction
If the new agreement is performed, then the original obligation is excused. If the new agreement is not performed, then the nonbreaching party can sue on either the original agreement or on the accord.
This is when both parties to a contract agree to the substitution of a new party, where the new party will take over the performance obligations of one of the original parties.
Adequate Written Assurances
If reasonable grounds for insecurity arise regarding the other party’s performancethen you may in writing demand adequate assurance of due performance. Until you receive this, you may suspend your own performance. If none is given within areasonable amount of time (not over 30 days), you may treat the contract asrepudiated.
Excuse Of Nonperformance
- Wrongful prevention
- Voluntary disablement
- Anticipatory repudiation
Discharge Of Duties
- Frustration of purpose
- Accord and Satisfaction
Merchant vs Non-merchant
A number of UCC rules depend on whether the seller and buyer are merchants. The code defines "merchant" as one who regularly deals in goods of the kind sold or who otherwise by his profession holds himself out as having special knowledge or skills to the practices or goods involved.
Promissory estoppel sometimes applies in situations where it would be unfair, such as when the defendant's conduct induces a plaintiff to change his position in reliance on an oral agreement. The promisor must reasonably expect to induce the promisee to detrimentally rely on the promise.
Fraud in the Inducement - Non-Disclosure of Principal
Where the agent has fraudulently concealed the identity of the principal, the contract will not be specifically enforceable and the third party has the right to receission. The majority of courts hold that there must have been an affirmative misrepresentation by the agent for this exception to apply.