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ACC 241 > ACC 241 Test 2 > Flashcards

ACC 241 Test 2 Flashcards

1
Q

Bilateral Contract

A

Promise for a Promise

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2
Q

Unilateral

A

Accept offer by performing

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3
Q

Express

A

In writing or at least expressed orally

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4
Q

Implied-in-fact Elements

A

1) Plaintiff offered goods or services
2) Did they expect to be paid (reasonably)
3) Defendant had opportunity to reject and did not

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5
Q

Valid Contract

A

Has all elements of contract

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6
Q

Voidable Contract

A

for some reason one/both parties can rescind

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7
Q

Void

A

Contract never existed (i.e. illegal) – Difference is in the remedy

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8
Q

Unenforceable contract

A

Has all elements of a contract but there is some defect (i.e. statute of frauds) – still a remedy and/or parties can perform

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9
Q

Quasi Contract

A

Must pay the value the service was worth (not with profit)… think unconscious

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10
Q

Requirements of Offers

A

Serious intent
Terms reasonably certain (meeting of minds)
Communicated to the offeree by the offeror

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11
Q

Types of Termination

A 
Revocation (before accepted)
Options
Detrimental Reliance
Rejection and Counteroffer
By Operation of Law
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12
Q

What is an Option?

A

you give consideration to keep the contract offer open, at end of time you can decide not to do it

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13
Q

When is a contract terminated by operation of law?

A

Death of Offerror
Destruction of subject matter
Illegality
Lapse of time

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14
Q

Weird types of Acceptance

A

Conditional Acceptance (Counteroffer)
Silence
Mailbox Rule

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15
Q

When can silence be counted as an acceptance

A

course of dealing
“if you dont hear from me… assume”
Implied in fact contract

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16
Q

What is the mailbox rule?

A

An acceptance is effective as soon as its placed in the mail

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17
Q

Exceptions

A

Offer requires receipt (in contract)
Wrong address
Offeree rejects first, changes mind then sends acceptance (whatever one arrives first is valid)

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18
Q

Why is a gift promise not valid?

A

No consideration

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19
Q

Once a gift is given, is it revocable?

A

NO.

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20
Q

Difference between adequacy vs. sufficiency in consideration

A

Sufficiency – is there consideration?

Adequacy – is this a fair deal?

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21
Q

Do courts consider sufficiency, adequacy, or both in consideration?

A

Just sufficiency.

Adequacy only when unconsciounable

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22
Q

Things that look like consideration but are not

A

Pre-existing legal duty
Past Consideration
Illusory Promises

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23
Q

Not Consideration – Pre-existing legal duty

A

offering additional consideration for something I’m already under duty to do. Not fair.
EXCEPTION: unforeseen difficulties (hitting granite)

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24
Q

Not Consideration – Past Consideration

A

Performance happened first and then the promise.

i.e. Allen Iverson

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25
Q

Not consideration – Illusory Promises

A

Promising to give sleeves off of vest

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26
Q

Accord and Satisfaction

A

way to compromise/settle debt between parties

Accord – new offer to satisfy debt)
Satisfaction – Payment of the accord

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27
Q

Things needed for Promissory Estoppel

A

Made me a promise
I relied on it
It was reasonable to rely on it
I now have damages because I relied on it

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28
Q

Three parties that have questionable capacity

A

Minors
Mental Incompetence
Intoxication

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29
Q

When can a minor disaffirm?

A

ALWAYS when a minor

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30
Q

What is a minor liable for?

A

Must return subject matter in current condition
Negligence – no liability for damage
Triplet (gross negligence, recklessness, intentional) – they pay for damages

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31
Q

When is a minor liable for damages?

A

Triplet (Gross Negligence, Recklessness, Intentional)
Misrepresentation
Necessaries

32
Q

How can a minor ratify?

A

Expressly
Conduct
Silence

33
Q

Type of contract when entered into with adjudged insane?

A

Void

34
Q

Type of contract when entered into with incapacitied but not adjudged

A

voidable

35
Q

Type of contract with someone who is mentally incapacitated but at the time is sane

A

Contract

36
Q

What is usury?

A

charging greater interest rate than what the law allows

37
Q

What does the court do after an illegal contract has happened (or is happening)?

A

Leaves you as they found you

UNLESS: innocent party
duress, fraud, unduly influenced (some relief)

38
Q

What kind of issues come up when unlicensed

A

Void contract

Valid if is licensed but has to pay fees.

39
Q

What is an exculpatory clause

A

attempts to get you to waive other parties’ liability

40
Q

When do exculpatory clauses not excuse a party from liability?

A

Triplet (gross negligence, recklessness, intentional)

Business of public interest

41
Q

What requirements are there for a covenant not to compete to be valid?

A

Reasonable^3 (geography, market, time)

42
Q

What is considered an unconscionable contract?

A

Parties unequal in bargaining power
Dominant party obtains manifestly unfair terms
No reasonable alternative

43
Q

Whats the consequence of bilateral mistake of fact?

A

Either party can cancel the contract?

44
Q

Whats the consequence of unilateral mistake of fact?

A

Valid unless:

non-mistaken party knows mistake has been made by other party
clerical error (not out of gross negligence)
mistake makes contract unconscionable

45
Q

Do mistakes of value count?

A

No.

46
Q

Fraud in inducement

A

tricking you into doing something (classic fraud)

47
Q

Fraud in inception

A

sign something other than what you think it is

48
Q

Fraud in concealment

A

taken affirmative steps to cover something up

49
Q

Silence as Misrepresentation

A

Only in situations

1) harmful to health and safety
2) with fiduciary responsibility

General Rule: Buyer must ask for disclosure

50
Q

When is misrepresentation of law fraud?

A

only when a professional who should know

51
Q

Duress

A

Wrongful or illegal forcing into contract (economic duress does not count)

52
Q

What is undue influence?

A

Overcoming someone’s natural ability to resist persuasion

NEEDS fiduciary relationship

53
Q

Statue of Frauds Things

A 
Marriage
Year rule
Land
Goods
Guaranty
Statute of limitations/bankruptcy
54
Q

What is parol evidence Rule

A

unless in contract… judge won’t allow it in

55
Q

Exceptions to Parol Evidence

A

Evidence would make contract void/voidable
Evidence would explain ambiguous terms in contract
Course of dealings (you can establish course)

56
Q

What is an assignment?

A

Assigning over a contract right

57
Q

Does an assignment need to be in contract?

A

No. It can be a gift.

58
Q

What types of contracts cannot be assigned?

A

Personal Service

Contracts that would increase risk (insurance)

59
Q

Notice of Assignment (American vs English)

A

American – first person assign has right

English – first person to give notice

60
Q

What is a delegation?

A

Delegating a duty

61
Q

When is delegatee liable?

A

depends on whether there is an assumption clause

person expecting can sue both now

62
Q

Which k’s cannot be delegated?

A

personal service

alter the expectation of the person who is receiving the service (surgeon)

63
Q

Types of third party intended beneficiaries?

A

Donee – gift

Creidtor – debt

64
Q

Who has the right to enforce contract/collect damages for third parties?

A

Only intended, not incidental

65
Q

When is a condition subsequent/precedent?

A

Condition happens… do I have to perform?

Yes – Precedent
No – Subsequent

66
Q

Types of Discharge?

A 
Agreement
Impossibility
Commercial Impracticability
Frustration of Purpose
Force Majeure
Statue of Limitations
67
Q

Impossiblity: Objective vs Subjective

A

Objective (It can’t be done) – Performance Excused

Subjective (I can’t do it) – Still Liable

68
Q

Frustration of Purpose

A

both could still perform, but the reason I wanted the contract in the first place doesn’t exist. Must know the reason at the time of contract

69
Q

What is force majeure?

A

acts of God, nature, labor strikes, etc.

70
Q

Damages: Complete vs. Substantial

A

??????

71
Q

What are compensatory damages?

A

contract price + incidentals (incurred mitigating damages) – avoided losses

72
Q

What are consequential damages?

A

In addition to compensatory. Must be foreseeable to breaching party.

73
Q

What are nominal damages?

A

win on legal merits but no damages to prove

74
Q

What is the mitigation of damages?

A

must try to reduce damages I have (look for a job)

75
Q

What are Liquidated Damages?

A

Damages decided in advance (when difficult to assess damages)
Cannot be a penalty

76
Q

What torts are associated with contracts?

A

1) Intentional Interference with contractual relations

2) Breach of Implied Covenant of Good faith and fair dealing

ACC 241 (4 decks)

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