blaw test 2
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Created by:
kristmarie17 on November 20, 2011
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67 terms
Terms | Definitions |
|---|---|
 Contract | a legally enforceable promises or set of promises |
| Unilateral | a contract formed by an offer or a promise on one side for an act to be done on the other, and a doing of the act by the other by way of acceptance of the offer or promise |
| Express Contracts | the parties have directly stated the terms of their contract orally or in writing at the time the contract was formed |
| Quasi contract | the doctrine by which courts imply, as a matter of law, a promise to pay the reasonable values of goods or services when the party receiving such goods or services has knowingly done so under circumstances that make it unfair to retain them without paying for them |
| Auction | sellers at auctions are generally treated as making an invitation to offer; those who bid on offered goods are making offers that the owner of the goods may accept or reject; acceptance occurs when the auctioneer strikes off to the highest bidder; the auctioneer may withdraw the goods at any time before acceptance |
| Mirror Image Rule | traditional contract law rule is that acceptance must be the mirror image of the offer. attempts by offerees to change the terms of the offer or to add new terms to it are treated as counteroffers because they impliedly indicate an intent by the offeree to reject the offer instead of being bound by its terms. under the mirror image rule no rejection is implied if an offeree merely asks about the terms of the offer without indicating its rejection or accepts the offer's terms while complaining about them |
| Preexisting Duties | The legal value component of our consideration definition requires that promisess do, or promise to do, something in exchange for a promisor's promise that they had no prior legal duty to do. Thus as a general rule, performing or agreeing to perform a preexisting duty is not considetaion. In contractual duties, these cases generally occur when the parties to an existing contract agree to modify that contract. The general common law rule on contract modifications holds that an agreement to modify an existing contract requires some new consideration to be binding. |
| Consent | an agreement obtained by force, trickery, unfair persuasion, or error is not the product of consent. A person who made an agreement under these circumstances will be able to avoid it because the consent was not real. One of the major justifications for enforcing a contract is that the parties voluntarily consented to be bound by it. A person must have the ability to consent before he can be legally bound by the agreement. The ability to give consent must involve more than the mere physical ability to say yes or shake hands. The person's maturity and mental ability must be such that it is fair to presume he is capable or representing his own interests effectively |
| Undue Influence | unfair persuasion. involves wrongful pressure exerted on a person during the bargaining process, however in undue influence the pressure is exerted through persuasion rather than through coercion |
| Parol Evidence | where a written contract exists, evidence about promises or statements made prior to or during the execution of writing that are not contained in the written contract |
| Statue of Frauds | a statute that provides that no lawsuit may be brought to enforce certain classes of contracts unless there is a written note or memorandum signed by the party against whom enforcement is sought or by his agent |
| Conditions | in a contract, a future, uncertain event that creates or distinguishes a duty of performance |
| Legal Damages | the usual remedy is an award of money damages that will compensate the injured party for his losses. An injured party's ability to recover damages in a contract action is limited by three principles: 1) a party can recover damages only for those losses that he can prove with reasonable certainty; 2) a breaching party is responsible for paying only those losses that were foreseeable to him at the time of contracting; 3) plaintiffs injured by a breach of contract have the duty to mitigate damages |
| Discharge | release from liability |
| Specific Performance | a contract remedy whereby the defendant is ordered to perform according to the terms of his contract |
| Statue of Limitations | a statute that requires that certain classes of lawsuits must be brought within defined limits of time after the right to begin them accrued or the right to bring the lawsuit is lost |
| Privity | the existence of a direct contractual relationship between two parties |
| Incidental Beneficiary | a third party who is unable to establish that the contract was made with the intent to benefit her is called an incidental beneficiary. They acquire no rights under a contract. |
| Restraining Injunction | court order from judge that limits one of the parties involved restricting their actions for specific time |
| Law Merchant | the customs of merchants, or lex mercatorio, that grew out of the necessity and convenience of business, and that, although different from the general rules of the common law, was engrafted into it and became a part of it |
| Unenforceable | one that meets the basic legal requirements for a contract but may not be enforceable because of some other legal rule |
| Implied Contracts | created when the surrounding facts and circumstances indicate an agreement has been reached |
| Promissory Estoppel | an equitable doctrine that protects those who foreseeably and reasonably rely on the promises of others by enforcing such promises when enforcement is necessary to avoid injustice, even though one or more of the elements normally required for an enforceable agreement is absent |
| Bids | to make an offer at an auction or at a judicial sale |
| Silence | silence contract law generally requires some objective indication that an offeree intends to contract, the general rule is that an offeree's silence, without more, is not an acceptance. An offeror cannot impose on the offeree a duty to respond to the offer. |
| Accord and Satisfaction | the settlement of an unliquidated debt. When an accord and satisfaction has occurred, the creditor cannot maintain an action to recover the remainder of the debt that he alleges is due |
| Charitable Subscription | promises to make gifts for charitable or educational purposes are often enforced, despite the absence of consideration, when the institution or organization to which the promise was made has acted in reliance on the promised gift |
| Misrepresentation | the assertion of a fact that is not in accord with the truth |
| Contract of Adhesion | a contract in which a stronger party is able to dictate terms to a weaker party, leaving the weaker party no practical choice but to adhere to the terms |
| Assignment | a transfer of property or some right or interest |
| Third Party Beneficiary | a person who is not a party to a contract but who has the right to enforce it because the parties to the contract made the contract with the intent to benefit him |
| Substantial Performance | somewhat lower standard of performance that is applied to duties that are difficult to perform without some deviation from perfection if performance of those duties is not an express condition |
| Remedies | the appropriate form of legal relief by which a remedial right may be enforced |
| Equitable Remedies | remedies that had their origins in courts of equity rather than in courts of law |
| Liquidated Damages | the stipulation by the parties to a contract of the sum of money to be recovered by the aggrieved party in the event of a breach of the contract by the other party |
| Donee Beneficiary | If the promisee's primary purpose in contracting is to make a gift of the agreed-on performance to a third party, that third party is classified as a donee beneficiary |
| Bilateral Contract | a contract in which the promise of one of the parties forms the consideration for the promise of the other |
| Voidable | capable of being made void |
| Executed | when applied to written instruments, synonymous with the word signed more frequently, it means everything has been done to complete the transaction; that is, the instrument has been, signed, sealed, and delivered |
| Offer | a proposal by one person to another that is intended to create legal relations on acceptance by the person to whom it is made |
| Termination of Offer | by attempting to accept an offer that has terminated, the offeree has indicated a present intent to contract on the terms of the original offer though he lacks the power to bind the offeror to a contract due to the original offer's termination |
| Consideration | in contract law, a basic requirement for an enforceable agreement under traditional contract principles, defined in this text as legal value, bargained for and given in exchange for an act or promise |
| Past Consideration | an act or other benefit given in the past that was not given in exchange for the promise in question. |
| Mistake | In contract law, a mistake is a belief about a fact that is not in accord with the truth. |
| Capacity | the ability to incur legal obligations and acquire legal rights |
| Unconscionability | in contract law, a contract that is grossly unfair or one-sided; one that "shocks the conscience of the court" |
| Delegation | In contract law, a transaction whereby a person who owes a legal duty to perform under a contract appoints someone else to carry out his performance |
| Strict Performance | a standard of performance that requires virtually perfect compliance with the contract terms |
| Good Faith Performance | The Uniform Commercial Code specifically imposes a duty of good faith in every contract within the scope of any of the articles of the Code. This obligation to carry out a contract in good faith is usually called the implied covenant of good faith and fair dealing. |
| Specific Performance | a contract remedy whereby the defendant is ordered to perform according to the terms of his contract |
| Anticipatory Repudiation | a type of breach of contract that occurs when the promisor indicates before the time of his performance that he is unwilling or unable to carry out the contract |
| Specially Manufactured Goods | An oral contract within the UCC statute of frauds can be enforced without a writing in some situations involving the sale of specially manufactured goods. The seller must have made a substantial beginning in manufacturing the goods for the buyer, or must have made commitments for their procurement, before receiving notice that the buyer was repudiating the sale |
| Intended Beneficiary | classified as either creditor or donee beneficiaries; Where the parties to a contract intended to benefit a third party, courts will give effect to their intent and permit the third party to enforce the contract. For a person to have the right to enforce a contract, she must be able to establish that the contract was made with the intent to benefit her |
| Mandatory Injunction | court order ordering somebody to do something |
| Valid | effective; operative; not void; subsisting; sufficient in law |
| UCC | The Uniform Commercial Code was created by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. All of the states have adopted it except Louisiana , which has adopted only part of the Code. The purpose was to establish a uniform set of rules to govern commercial transactions. In addition to promoting uniformity, the drafter sought to create a body of rules that would realistically and fairly solve the common problems occurring in everyday commercial transactions. Finally, the drafters tried to formulate rules that would promote fair dealing and higher standards in the marketplace |
| Executory | not yet executed; not fully performed, completed, fulfilled or carried out |
| Advertisement | advertisements for the sale of goods at specified prices are not considered to be offers. They are treated as being invitations to offer or negotiate |
| Acceptance | the actual or implied receipt and retention of that which is tendered or offered |
| Pledge | a pawn; a bailment of personal property as security for some debt or engagement, remediable on certain terms, and with an implied power of sale on default |
| Fraud | misrepresentation made with knowledge of its falsity and intent to deceive |
| Duress | overpowering the will of a person by force or fear |
| Usury | the taking of more than the law allows on a loan or for forbearance of debt |
| Illegality | an agreement is illegal either because the legislature has declared that particular type of contract to be unenforceable or void because the agreement violates a public policy that has been developed by courts or that has been manifested in constitutions, statutes, administrative regulations, or other sources of law |
| Injunction | an equitable remedy whereby the defendant is ordered to perform certain acts or to desist from certain acts |
| Excuses | In most situations involved conditional duties the promisor does have the duty to perform unless and until the condition occurs. One ground for excusing a condition is that the occurrence of the condition has been prevented or hindered by the party who is benefited by the condition. Other grounds for excuse of a condition include waiver and estoppel. A condition may also be excused when performance of the act that constitutes the condition becomes impossible |
| Modification | The Code from the UCC provides that an agreement to modify a contract for the sale of goods needs no consideration to be binding. If the original agreement requires any modification to be in writing, an oral modification is unenforceable. Delegation- In contract law, a transaction whereby a person who owes a legal duty to perform under a contract appoints someone else to carry out his performance |
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