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Flashcards in Assess 1 Deck (22)
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1
Q

Contract

A

A promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

2
Q

Promise

A

A manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.

3
Q

Implied-in-Fact contract

A

Manifesting an Intention by Action

4
Q

Implied-in-Fact contract - 2 Elements

A

1) Mutual Agreement ~and~

2) Intent to Promise

5
Q

Quasi-Contract

(Unjust Enrichment) {Implied - in - Law}

A
  • NO Promise but proceed as if there was one
6
Q

Quasi-Contract - 3 Elements

A

1) Benefit conferred on the Defendant by the Plaintiff ~and~
2) Appreciation by the defendant of such a benefit ~and~
3) Acceptance and Retention by the defendant

7
Q

Forward contracts -

A

1) Promise to sell in the future
2) Does not have to be written; can be oral

Ex: The cotton farmers Futures Contract

8
Q

If you do something without being asked then …?

A

it’s voluntary / a gift
and
no compensation is due

9
Q

Must First decide if ____ ?

Second decide if it _____ ?

A

1) there is a PROMISE !
a. No Promise than No Contract
b. What is the Promise ??

2) is ENFORCABLE
a. by consideration ?

10
Q

EXAM TIPS FOR CONSIDERATION/QUID PRO Quo ESSAY

a. ALWAYS SAY WHY … THERE IS_____ . BECAUSE…
- or-
b. THERE WAS NOT ____ BECAUSE…

c.. Is there past or current _________?
d. Or was it a _____ promise?
e,. Was there a benefit/detriment.
f. Promise and return promise?

A

a. CONSIDERATION
b. DETRIMENT

IF THERE IS A PLAUSIBLE ARGUMENT TO THE CONTRARY SAY IT!

c. consideration
d. gratuitous
e. yes / no - what was it?
f. what in exchange for what

11
Q

A Promise to give a Gift ….is it consideration?

A

NO, it’s Not Enough b/c it’s gratuitous

12
Q

Can you bargain for a pension after you are done working?

A

NO, Can’t bargain for something (like a service) in the past / Has to be at start of work

13
Q

Nominal consideration … does the court determine value?

A

The court does NOT generally get into determining value of consideration.

14
Q

Promissory Estoppel is because (a) and why is it used (b)?

A

a) Promise to do something in the future when there is no exchange or bargain
b) to stop an injustice

15
Q

Promissory Estoppel - 4 Elements

A

1) actual Reliance on the promise that induced action
2) The reliance was Foreseeable to the breaching party (promisor)
3) That it was clearly left the promisee worse off,
~and~
4) That Injustice can only be avoided by enforcement.

[is binding if injustice can be avoided by enforcement of the promise]
[damages are limited]

16
Q

Can you have a Non-Competition Agreement ?

A

Not AFTER he was already working b/c no consideration

BUT if condition of employment, a raise, duties, title, etc then there was consideration

17
Q

Can you give Up a VALID Legal Claim or Legal Right as Consideration

A

RULE: Does the person giving up the claim have a Good Faith Belief and Some reasonable basis for the validity of the claim?
Then it’s giving up a legal claim and OK

18
Q

Is a “Pre-Existing Duty” consideration ?

A

RULE: The performance or the promise to perform a pre-existing duty does not constitute consideration

19
Q

3 Elements required to enforce modification of Services contract not fully performed by either side

A
1) Not fully performed on either side 
~and~
2) Modification is fair and equitable 
~and~
3) The modification is prompted by circumstances that parties did NOT anticipate when they made the contract
20
Q

Illusory Promise

A

if one party commits BUT the other party has the ability to reduce their consideration to ZERO, then there is no consideration by that party
– If parties can breech or are restricted , then it’s not illusory

21
Q

Reviving a Stale Claim / Reviving a Pre-existing Duty or Obligation

A
  • if there was a pre-existing legal obligation and
  • it ceased b/c of the statute of limitations,
  • then if there is a new promise to pay (all or part),
    • it will be binding **
22
Q

A consideration is ,….

A

… a bargained for exchange or Quid Pro Quo