| Term | Definition |
|---|
| contract | a promise or set of promises the breach of which the law provides a remedy |
| offer | present manifestation of a willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it |
| option contract | a promise which meets the requirement for the formation of a contract and limits the promisor's power to revoke an offer |
| ways to terminate an offer | rejection/counter-offer, lapse of time, revocation by the offeror, or death or incapacity of the offeror or offeree |
| rejection | an offeree's termination of her power of acceptance unless there is a contrary intention of offeror or of offeree to take the offer under further advisment |
| counter-offer | an offer made by an offeree that is related to the original offer but proposes a substituted bargain |
| revocation | termination of the offer by the offeror that is communicated to the offeree through words or actions before the offeree accepts the offer; can be communicated by a reliable third party |
| forms of acceptance | offeror may invite or require acceptance; the offeror is the master of his offer |
| R2 45 | in unilateral contract, an option contract is created when the offeree tenders the beginning of it |
| time of acceptance | when made in a manner and by a medium invited by, an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offeror (except in the case of an option K - mailbox rule) |
| consideration | what is being exchanged through a contract |
| mutual assent | a present willingness to enter into a bargain; meeting of the minds; modern test - objectivity |
| elements of mutual assent | offer and acceptance |
| acceptance | An offeree's assent, either by express act or by implication from conduct, to the terms of an offer in a manner authorized or requested by the offeror, so that a binding contract is formed; can be through words, actions, or even sometimes silence or inaction; objective |
| ways to keep an offer open | option with consideration, R2 45, promissory estoppel, and statutes |
| option contract | a promise which meets the requirements (namely, consideration) for the formation of a contract and limits the promisor's power to revoke and offer |
| Unilateral K | a promise for an act; act is both acceptance and consideration |
| mailbox rule | acceptance is effective upon transmission (i.e. when the letter is put in the mailbox) |
| benefit/detriment test | common law test; promise must be a benefit to the promisor OR a detriment to the promisee |
| bargained for test | modern test; promises/acts are being exchanged for one another; value is not weighed but there must be actual inducement taking place |
| keeping unilateral K open | when performance has been tendered, the offeror must keep keep the offer open for amount of time to reasonably complete the act |
| agency | the fiduciary relationship that arises when one person (principle) manifests assent to another (agent) to allow the agent to act on the principle's behalf |
| actual authority (agency) | Express (words - oral or written) or implied (conduct) manifestations of agency |
| apparent authority (agency) | third party reasonably believes that a principle has manifested agency on a person (even if the agent is unaware of this authority); manifestation can be inferred from title, job description, etc. |
| ratification (agency) | a principle giving an agent their authority to act on the principle's behalf, after the action has taken place |
| PE to keep offer open | an offer which the offeror could reasonably foresee the offeree relying on, and the offeree has SUBSTANTIALLY relied on the offer to their detriment and fairness and justice requires a remedy; typically used for bids in construction law |
| statutes that keep offers open | stock sales in a new corporation, auctions, and UCC firm offer |
| goods | items movable at the time of identification for the sale (except money and typically software, but not crops) |
| firm offer | "gift" by a merchant to keep the offer open without consideration - must be a signed writing by the offeror and will not be held open for more than three months |
| UCC merchant | broad understanding; anyone who has knowledge of business practices (in Ark, farmers are NOT merchants) |
| expectation damages | remedy that puts the damaged party where they would have been had the contract been fulfilled/completed |
| reliance damages | lesser remedy that gives the damaged party what they have put into the contract back |
| mirror-image rule | common law application of terms of the contract: the terms of the offer and acceptance must exactly match or there is no K |
| last-shot approach | the way the common law is applied when the terms do not match; because acceptance can be through conduct, the last form exchanged will define the terms of the contract |
| ways to distinguish between common law application and UCC Art 2 application | UCC applies to sales of goods and common law applies to everything else; determined by: language of the K, nature of the supplier's business, and weighing the intrinstic worth of forces (esp. when goods and services are both present in the K) |
| UCC 2-207 (1) | different or additional terms will still create a K when the first document has the requirements for an offer and the second has the requirements of an acceptance, even if there are small differences (of the non-dickered terms), UNLESS the offree expressly makes his acceptance conditional on assent to differences (ex. clear intent to create a counter-offer, "subject to" not clear enough |
| UCC 2-207 | attempts to reflect business practices for different forms or a form with other info than verbal agreement; does not accept last-shot |
| UCC 2-207 (2) | once K is formed, this section determines whose terms win with Ks with additional or different terms |
| UCC K with additional terms - non-merchant | the first form is governing and added terms become proposals to be accepted by the offeror in words (conduct not sufficient) |
| UCC K with additional terms - merchant | Additional terms become part of the K UNLESS (1) offer expressly limits acceptance to its terms, (2) additional terms materially alter the offer (ex. no warranties terms; surprised/hardship test), or (3) notification of objection has been given or is given within a reasonable time |
| UCC K with different terms | there is a K, but 2-207 does not address. Court interpret in three ways: (1) terms become proposals (accepted by words not conduct) which makes this a first-shot approach, (2) apply additional terms application (likely to be found as a material change), or (3) knock-out rule - different terms knock each other out and neither become part of the K and court fills in the differences by intentions |
| material terms | subject matter, price, payment terms, quantity, quality, duration, description of the work, etc |
| indefinite terms (agreements to agree) | (1) common law: no K, (2) courts fill in the gaps based on intent and other common business factors (always for UCC art 2), or (3) court finds that the parties have a K to keep bargaining in good faith |
| UETA - Uniform Electronic Transactions Act | a K may not be denied legal effect solely bc it is an electronic record, requires that the parties agree to electronic transaction, deals with signatures and automation |
| shrink-wrap terms/terms in the box | split courts; two approaches - traditional: buyer makes offer and supplier accepts by shipment, and the shrink-wrap terms are governed by 2-207 -OR- supplier is the offeror and the purchaser accepts by keeping product and using it |
| click-wrap | terms of use are presented to the user and the user must click an assent to the terms before continuing; "I Agree" button; flaws: terms are drafted in favor of the seller and users often do not read them |
| browse-wrap | terms are available on the site but not presented to the user, and no active assent is required; often found unenforceable by the courts because of hidden or difficult to locate/recognize links to terms |
| promissory estoppel | alternative legal theory to bind a promise; requires: (1) a promise (2) that the promisor can reasonably foresee the promisee relying on (3) a actual reliance by the promisee (to their detriment), and (4) the enforcement of which allows fairness and justice to prevail |
| remedy for promissory estoppel | flexible; courts can award varied remedies to provide the best fit for fairness and justice |
| writing | reduced to tangible form |
| signature | adopted or written with present intention to be one's /s/ |
| things that are not offers | predictions, opinions, advertisements, catalogs, estimates, statements of future intentions, and inquiries |
| policy for definite and certain terms | required for mutual assent and enables courts to determine remedy |
| K now or later? | courts consider factors of an oral agreement to determine if the parties intended to make the agreement binding immediately or upon formal writing. Factors and how courts tend to respond: if agreement is usually in writing (if so - later), few or many details (few - now, many - later), small or large amount of $ (small - now, large - later), express agreement on all terms (if so - now), if any party has taken action (if so - now) |
| Ks pertaining to marriage and the family | the state has a special interest in protecting the family, so Ks may have different standards; examples: Ks between married couples may be unenforceable because they conflict with martial harmony, restraints on marriage were void at common law and now only enforceable within reason, breaking engagements can be considered a BOK, pre-nup or ante-nuptial agreements are now accepted by statute, courts will interfere to protect children during divorce settlements, and now co-habitation may be protected by statute |
| charitable subscriptions | generally promises to make gifts are not enforceable; a pledge is promise to make a gift supported by giving possession right now with intention of transferring title later; consideration can be created by matching pledges; R2-90(2) allows for PE without actual reliance but few courts accept it |
| elements of restitution | (1) benefit conferred (2) justice and fairness requires compensation, although a promise is absent |
| restitution remedy | value of the benefit conferred; constructive trust - court acts as if there is a trust when one party unlawfully holds and gains off another's property |
| benefit conferred | enrichment; cannot be a gift - generally actions must be taken with dollar signs in the eyes; can be goods, services, and relief (i.e. from pain) |
| officious intermeddler | assertion of authority in an annoying and domineering way: courts typically do not offer remedy when one voluntarily confers something that is not necessary. |
| promissory restitution | (1) benefit conferred (2) party who benefit was conferred upon make a promise to pay for that benefit (3) justice and fairness |
| Ks without consideration | A new promise to pay a pre-existing debt, promise to pay a debt that has been discharged (statute of limitations or bankruptcy), promise to act on a promise that is voidable (ex. made by a minor), promise to uphold a K that is unenforceable due to the statute of frauds, or a promise to pay for material benefits (prom. resti.) |
| promissory restitution remedy | value of the promise; but the value of the promise cannot be disproportionate to the value of the benefit |
| Acceptance of partial payment in promissory restiution | can show the party who conveyed the benefit expected payment (not a good samaritan act) |
| additional info on Prom. Resti. | Ark. has no case law; common law policy - moral obligation; modern policy - fair and just to hold the promisor to his promise for a benefit has been conferred; most courts require that the benefit be conferred on the promisor (promisor cannot promise to pay for a benefit conferred on someone else); exceptions: benefits that are pure gifts and promise is not proportionate to the benefit |
| Statute of Frauds | requires some Ks to be in writing and signed by the party to be charged; Ks that are not written and/or signed by the party to be charged are completely unenforceable; found in every jurisdiction and covered by the UCC for sales of good |
| statute of frauds - policy | doctrine was created to prevent fraud and perjury; evidentiary, cautionary, and channeling (guides court's ruling) functions; disliked by many courts because it can prevent the enforcement of honest agreements so they are often lenient with their interpretation |
| Statute of Frauds | requires writing for contracts: (1) Ks by executor/administrator to pay estate's obligations (2) suretyship, concerning marriage (4) interest in land (5) leases (over a year); Ks over one year |
| Statute of Frauds - land | covers all types of land interest (fee simple absolute, options to buy, mineral interests, easements, morages, things attached to the land, etc but NOT crops or services on land); policy: typically a substantial sale |
| Statute of Frauds - one year provision | runs from time of agreement to completion of the K; interpreted broadly - if K could be completed in one year; does not include Ks for a certain # of years over one year; K made and then started the next day - first partial day is not counted when measuring one year |
| Arkansas Statute of Frauds | also includes promises to pay debts discharged by bankruptcy and promises to pay for debt accrued in one's minority |
| questions for SoF | (1) is this K under the statute of frauds? (2) If so, is there a sufficient writing? (3) If not, is there a way around the SoF? |
| general SoF writing requirements | (1) identify the parties (2) identify the subject matter (3) include all essential (material) terms and conditions; can be on more than one document |
| general SoF multiple writings | ways to connect writings: (1) physically, (2) signed document expressly incorporates unsigned document(s), (3) signed document has an express reference to the unsigned document(s), and (4) (some courts but NOT Ark will allow) documents that reference each other generally as long as breacher assented to them |
| ways around general SoF | (1) part performance (2) promissory estoppel |
| general SoF - part performance | often only allowed with equitable remedies; how much performance is necessary? (1) full performance by both sides is sufficient, (2) sometimes full performance by one party makes the K binding (particularly with land if the seller performs full; not usually by the buyer bc the buyer could get $ back through restitution), (3) partial performance - more performance = more likely to be binding, (particularly with land, buyer - so valuable and substantial - possession (consistent with agreement) + partial payment or improvements). |
| clear and convincing evidence | burden of proof that the plaintiff carries when proving the existence of the oral K and the part performance. |
| general SoF - PE | gives relief to a party who made an oral K that is under the statute of frauds and relied on the promise to her detriment; First Restatement: only (1) when one party misrepresents that the SoF is satisfied or (2) one party promises a writing but never gives it. Second Restatement: not favored by some courts bc it allows evidence that SoF is meant to bar; courts are split: (1) adopt PE for SoF (Ark), (2) only allow circumstances from R1, no PE for SoF |
| general SoF - part performance vs. PE | Part performance can enforce the entire K but typically only with equitable remedies with a clear and convincing burden of proof; PE - only what justice and fairness requires, but can be money damages, can have lower burden of proof |
| UCC Statute of Frauds | Requirements: (1) signed writing (2) for Ks over $500 |
| UCC SoF exceptions | (1) between merchants, (2) specially manufactured goods, (3) admits in court (enforceable for quantity admitted), (4) part performance (enforceable to extent delivered and accepted; legal and equitable remedies) |
| UCC SoF writing requirements | (1) quantity, (2) signed, and (3) sufficient to show intent to K |
| UCC SoF - merchant exception | - Ks normally under the UCC statute of frauds can still be enforceable without being signed by the party to be charged when: (1) both parties are merchants, (2) one party sends a writing (sufficient against the sender – quantity, signed, and in confirmation of oral K) (3) within a reasonable amount of time from oral K, (4) the other party receives it, and (5) objects within 10 days. Can create a battle of the forms |
| UCC SoF vs. general SoF | whichever predominates or both for the exam |
| consideration in an option K | some modern courts allow for fake or nominal if in writing |
Combine with other sets
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