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ACC 241 > ACC 241 Test 2 > Flashcards

ACC 241 Test 2 Flashcards

(76 cards)

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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
Not consideration -- Illusory Promises
Promising to give sleeves off of vest
26
Accord and Satisfaction
way to compromise/settle debt between parties Accord -- new offer to satisfy debt) Satisfaction -- Payment of the accord
27
Things needed for Promissory Estoppel
Made me a promise I relied on it It was reasonable to rely on it I now have damages because I relied on it
28
Three parties that have questionable capacity
Minors Mental Incompetence Intoxication
29
When can a minor disaffirm?
ALWAYS when a minor
30
What is a minor liable for?
Must return subject matter in current condition Negligence -- no liability for damage Triplet (gross negligence, recklessness, intentional) -- they pay for damages
31
When is a minor liable for damages?
Triplet (Gross Negligence, Recklessness, Intentional) Misrepresentation Necessaries
32
How can a minor ratify?
Expressly Conduct Silence
33
Type of contract when entered into with adjudged insane?
Void
34
Type of contract when entered into with incapacitied but not adjudged
voidable
35
Type of contract with someone who is mentally incapacitated but at the time is sane
Contract
36
What is usury?
charging greater interest rate than what the law allows
37
What does the court do after an illegal contract has happened (or is happening)?
Leaves you as they found you UNLESS: innocent party duress, fraud, unduly influenced (some relief)
38
What kind of issues come up when unlicensed
Void contract | Valid if is licensed but has to pay fees.
39
What is an exculpatory clause
attempts to get you to waive other parties' liability
40
When do exculpatory clauses not excuse a party from liability?
Triplet (gross negligence, recklessness, intentional) | Business of public interest
41
What requirements are there for a covenant not to compete to be valid?
Reasonable^3 (geography, market, time)
42
What is considered an unconscionable contract?
Parties unequal in bargaining power Dominant party obtains manifestly unfair terms No reasonable alternative
43
Whats the consequence of bilateral mistake of fact?
Either party can cancel the contract?
44
Whats the consequence of unilateral mistake of fact?
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
Do mistakes of value count?
No.
46
Fraud in inducement
tricking you into doing something (classic fraud)
47
Fraud in inception
sign something other than what you think it is
48
Fraud in concealment
taken affirmative steps to cover something up
49
Silence as Misrepresentation
Only in situations 1) harmful to health and safety 2) with fiduciary responsibility General Rule: Buyer must ask for disclosure
50
When is misrepresentation of law fraud?
only when a professional who should know
51
Duress
Wrongful or illegal forcing into contract (economic duress does not count)
52
What is undue influence?
Overcoming someone's natural ability to resist persuasion | NEEDS fiduciary relationship
53
Statue of Frauds Things
``` Marriage Year rule Land Goods Guaranty Statute of limitations/bankruptcy ```
54
What is parol evidence Rule
unless in contract... judge won't allow it in
55
Exceptions to Parol Evidence
Evidence would make contract void/voidable Evidence would explain ambiguous terms in contract Course of dealings (you can establish course)
56
What is an assignment?
Assigning over a contract right
57
Does an assignment need to be in contract?
No. It can be a gift.
58
What types of contracts cannot be assigned?
Personal Service | Contracts that would increase risk (insurance)
59
Notice of Assignment (American vs English)
American -- first person assign has right | English -- first person to give notice
60
What is a delegation?
Delegating a duty
61
When is delegatee liable?
depends on whether there is an assumption clause | person expecting can sue both now
62
Which k's cannot be delegated?
personal service | alter the expectation of the person who is receiving the service (surgeon)
63
Types of third party intended beneficiaries?
Donee -- gift | Creidtor -- debt
64
Who has the right to enforce contract/collect damages for third parties?
Only intended, not incidental
65
When is a condition subsequent/precedent?
Condition happens... do I have to perform? Yes -- Precedent No -- Subsequent
66
Types of Discharge?
``` Agreement Impossibility Commercial Impracticability Frustration of Purpose Force Majeure Statue of Limitations ```
67
Impossiblity: Objective vs Subjective
Objective (It can't be done) -- Performance Excused | Subjective (I can't do it) -- Still Liable
68
Frustration of Purpose
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
What is force majeure?
acts of God, nature, labor strikes, etc.
70
Damages: Complete vs. Substantial
??????
71
What are compensatory damages?
contract price + incidentals (incurred mitigating damages) -- avoided losses
72
What are consequential damages?
In addition to compensatory. Must be foreseeable to breaching party.
73
What are nominal damages?
win on legal merits but no damages to prove
74
What is the mitigation of damages?
must try to reduce damages I have (look for a job)
75
What are Liquidated Damages?
Damages decided in advance (when difficult to assess damages) Cannot be a penalty
76
What torts are associated with contracts?
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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