Flashcards in Ch. 11 Agreement in Traditional and E-contracts Deck (29)
the parities must agree on the terms of the contract and manifest to each other their mutual assent (agreement) to the same bargain. doesn't necessarily have to be in writing,
How is an agreement evidenced?
by an offer and an acceptance
objective theory of contracts
a partys words and conduct are held to mean whatever a reasonable person in the offeree's position would think
a promise or commitment to do or refrain from doing some specified action in the future
the one who makes an offer
the one who receives the offer
What are the three elements for an offer to be effective?
(1) the offeror must have a serious intention to become bound by the offer (2) the terms of the offer must be reasonably certain, or definite, so that the parties and the court can ascertain the terms of the contract (3) the offer must be communicated to the offeree
What is serious intent determined by?
determined by what a reasonable person in the offerees position would conclude that the offerors words and actions meant, these are the objective intentions
a reasonable person will realize that the offeror is serious about their offer and are not attempting to make an agreement in obvious anger, jest, or undue excitement
What are examples of expressions that are not offers?
expressions of opinions, statements of future intent, preliminary negotiations, advertisements, auctions, auctions with and without reserve, agreements to agree(can be considered an enforceable agreement if the intent to be bound is clear).
What four terms must a contract include, either explicitly stated or capable of being reasonably inferred from it?
(1) identification of parties (2) identification of the object or subject matter of the contract (also the quantity, when appropriate), including the work to be performed, with specific identification of such items as goods, services and land. (3) the consideration to be paid (4) time of payment, delivery, or performance
In what three ways can a contract be terminated?
revocation, rejection, or counteroffer
the offerors act of withdrawing (revoking) an offer. this can only take place if the offeror communicates the revocation before the offeree has accepted. the revocation becomes effective when the offeree actually receives it.
created when an offeror promises to hold an offer open for a specified period of time in return for a payment (consideration) given by the offeree. it takes away the offerors power to revoke the offer for that specified period of time
a rejection of the original offer and the simultaneous making of a new offer
mirror image rule
requires the offerees acceptance to match the offerors offer exactly. if it is not a mirror image acceptance then the contract immediately terminates that offer and substitutes the counteroffer
What three events, if occurred, can terminate a contract by operation of law?
(1) lapse of time (2) destruction of the specific subject matter of the offer (3) death or incompetence (4) supervening illegality of the proposed contract
a voluntary act by the offer that shows assent to the terms of an offer
this is the mirror image rule. if the offer is not accepted to the terms stated then this can be considered a counteroffer
silence as acceptance
(1) may be an acceptance when the offer benefits the offeree and they do not reject the services (2) when the offeree has had prior dealings with the offeror
communication of acceptance
in a bilateral contract comm of acceptance is necessary because the acceptance is in the form of a promise (not performance) and the contract is formed when the promise is made
mode and timeliness of acceptance
in bilateral contracts acceptance must be timely. acceptance is considered timely when if it is made before the offer is terminated
authorized means of acceptance
an offeror can explicitly state how they want the acceptance to be sent, if the offeree does not respond in that manner then it is not considered effective until the offeror receives it.
when an offeror specifies how the acceptance should be made and then the contract is not formed unless the offeree uses that specified mode of acceptance. the acceptance is effective the moment the the specified mode is employed
limitation on remedies
a provision specifying the remedies available to the buyer if the foods are found to be defective or of the contract is otherwise breached
provisions relating to the dispute settlement such as an arbitration clause
forum selection clause
indicates the forum or location in which contract disputes will be resolved
the parties specify that any dispute arising out of the contract will be settled in accordance with the law of a particular jurisdiction