Chapter Nine Flashcards Preview

Law > Chapter Nine > Flashcards

Flashcards in Chapter Nine Deck (116):
1

Promise

An assertion that something either will or will not happen in the future

2

Promisor

A person who makes a promise

3

Promisee

A person to whom a promise is made

4

Contract

An agreement that can be enforced in court; formed by two or more competent parties who agree, for consideration, to perform or to refrain from performing some legal act now or in the future

5

Objective Theory Of Contracts

A theory under which the intent to form a contract will be judged by outward, objective facts (what the party said when entering into the contract, how the party acted or appeared , and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the party's own secret, subjective intentions

6

Offeror

A person who makes an offer

7

Offeree

A person to whom an offer is made

8

Bilateral Contract

A type of contract that arises when a promise is given in exchange for a return promise

9

Unilateral Contract

A contract that results when an offer can be accepted only by the offeree's performance

10

Formal contract

A contract that by law requires a specific form for its validity

11

Informal Contract

A contract that does not require a specific form or fomality to be valid

12

Express Contract

A contract in which the terms of the agreement are stated in words, oral or written

13

Implied contract

A contract formed in whole or in part from the conduct of the parties (as opposed to an express)

14

Executed Contract

a contract that has been completey performed by both parties

15

Executory contract

A contract that has not yet been fully performed

16

Valid Contract

A contract that results when the elements necessary for contract formation

17

Voidable contract

A contract that may be legally avoided (cancelled) at the option of one or both parties

18

unenforceable contract

a valid contract rendered unenforceable by some statute or law

19

void contract

a contract having no legal force or binding effect

20

agreement

a meeting of two or more minds in regard to the terms of a contract; usually broken down into two events- an offer by one party to form a contract and an accpetance of the offer by the person to whom the offer is made

21

Offer

A promise or commitment to perform or retain from performing some specified act in the future

22

Revocation

in contract law, the withdrawl of an offer by the offeror. unless the offer is irrevocable, it can be revoked at any time prior to acceptance without liability

23

Counteroffer

an offeree's response to an offer in which the offeree rejects the orginal offer and at the same time makes a new offer

24

mirror image rule

a common law rule that requires that the terms of the oferee's acceptance adhere exactly to the terms of the offeror's offer for a valid contract to be formed

25

Option contract

a contract under which the offeror cannot revoke the offer for a stipulate time peroid

26

Acceptance

a voluntary act by the offeree that shows assent, or agreement, to the terms of an offer; may consist of words or conduct

27

Mailbox rule

a rule providing that an acceptance of an offer becomes effective on dispatch (on being placed in an offical mailbox), if mail is, expressly or impliedly, an authorized means of communication of acceptance from the offeror

28

e-contract

a contract that is formed electronically

29

Forum-selection clause

a provision in a contract designating the court, jurisdiction, or tirbunal that will decide any disputes arising under the contract

30

click-on-agreement

an agreement that arises when a buyer, engaging in a transaction on a computer, indicates assent to be bound by the terms of an offer by clicking on a button that says, for example "I agree"

31

Shrink-Wrap agreement

an agreement whose terms are expressed in a document located inside a box in which goods (usually software) are packed

32

Browse-wrap term

a term or condition of use that is presented to an internet user at the time certain products such as software, are being downloaded but that need not be agreed to (by clicking "I agree", for example) before the user is able to install or use the product

33

E-signature

As defined by the uniform electronic transactions act, "an electronic sound, symbol, or process attached to or logically associated with a record and execuited or adopted by a person with the intent to sign the record

34

cybernotary

a legally recognized authority that can certify the validity of digital signatures

35

partnering agreement

an agreement between a seller and buyer who frequently do business with each other concerning the terms and conditions that will apply to all subsequently formed electronic contracts

36

Record

According to the uniform electronic transactions act, information that is either inscribed on a tangible medium or stored in an electronic or other medium and is retrievable

37

Consideration

generally, the value given in return for a promise or performance. the consideration, which must be present to make the contract legally binding, must be something of legality suffcient value and bargained for

38

rescission

A remdy whereby a contract is canceled and the parties are returned to the positions they occupied before the contract was made; may be effected through the mutual consent of the parties, by their conduct, or by court decree

39

Promissory estoppel

a doctrine that applies when a promisor makes a clear and definite promise on which the promisee justifiably relies; such a promise is binding if justice will be better served by the enforcement of the promise

40

contractual capacity

the threshold mental capacity required by the law for a party who enters into a contract to be bound by that contract

41

covenant not to compete

a contractual promise of one party to refrain from competing with another party for a certain geographical area

42

unconscionable

a contract or clause that is void on the basis of public policy because on party, as a result of his or her disproportionate bargaining power, is forced to accept terms that are unfairly burdensome and that unfairly benefit the dominating party

43

exculpatory clause

a clause that releases a contractual party from liability in the event of monetary or physical injury, no matter who is at fault

44

defenses to enforceability

1. voluntary consent
2. form

45

Voluntary consent elements

-fraud
-mistake
-duress

46

form elements

statute of frauds

47

statute of frauds real estate or lease

under the common law any transaction dealing with real estate or lease has to be in writing.

48

elements of a legally enforceable contract

-agreement
-consideration
-conrtractual capacity
-legality

49

agreement consists of

-offer
-acceptance

50

types of contract performance

-executed contract
-executory contract

51

executed contract notes

a contract that has been fully performed by both parties

52

executory contract notes

a contract that has not been fully performed by either side

53

contract law

is designed to provide stability and predictability, as well as certainty for both buyers and sellers in the marketplace

54

contract law intent

is determined by what is called the objective theory of contracts, not by the personal or objective intent, or belief of a party.

55

The mailbox rule

acceptance takes effect upon dispatch if the mail is an expressly or implied authorized means of communication of acceptance

56

UETA

Email acceptance effective when sent

57

Termination of offers types

termination by revocation
termination by rejection
Counteroffer
termination by expiration
termination by operation of law

58

option contract

is an irrevocable offer

59

termination by revocation

effective when the offeree receives it

60

termination by rejection

if an offeree rejects an offer, the rejection immediately terminates the offer

61

counter offer

is a rejection; it terminates the offer

62

termination by expiration

when an offer specifies a time limit for acceptance, that period if binding

63

termination by expiration if no time limit

the offeree has a reasonable period in which to accept

64

acceptance notes

the offeree must say or do something to accept

65

acceptance in a bilateral contract

the offeree generally must accept by making a promise

66

acceptance in a unilateral contract

the offeree must accept by performing

67

acceptance of ambiguous offer

the offeree may accept by either a promise or performance

68

Mirror image rule

(common law) requires that acceptance can be on precisely the same terms as the offer

69

offer components

1. serious, objective intention by offeror
2. offer must be reasonably certain
3. offer must be communicated

70

offer; serious, objective intention by offeror

-reasonable person standard
-not an opinion
-not a statement of future intent
-not negotiations
-not an agreement to agree

71

offer; offer must be reasonably certain

definiteness

72

contract

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

73

primary source of law for contract law

is state common law (exception for UCC)

74

valid contract

is one in which all of the legal elements of a contract are present. A valid contract is enforceable at law

75

unenforceable contracts

are contracts that were once valid but, because of subsequent illegality, are not enforceable by the courts

76

voidable contract

is legally valid but may be rejected by one of the parties without incurring legal liability

77

voidable contract example

contract with a minor

78

void contract

is a contract whose subject matter is illegal. No contract at all

79

void contract example

a contract to sell illegal drugs

80

Bilateral Contracts

two promises, a promise for a promise. most contracts are bilateral

81

bilateral contracts example

i promise to pay you $25 to mow my law; you promise to mow my lawn

82

bilateral contract promise broken

if promises are broken, there may be responsibility if losses are inccured

83

unilateral contracts

only one promise. accept the offer only by completing the contract performance.

84

unilateral contract example

i promise to pay $25 to anyone who mows my lawn; you go out and mow the lawn.

85

unilateral contract performance completed

once performance has been made, the other party's is obligated to carryout his/her part of the deal- "full performance is, however generally required.

86

unilateral contract revocation

revocation until substantial performance

87

types of contracts list

-bilateral v unilater
-formal v informal
- express v implied-in-fact
-executory v executed

88

bilateral v unilateral

an exchange of mutual promises and acceptance through performance

89

express v implied-in-fact

direct and indirect statements of promises

90

executory v executed

degree of performance

91

bilateral v unilateral case

schwarzock v remote technologies, inc

92

schwarzock v remote technologies, inc

less then 3 months schwarzock is already fired. An offer of employement is an unilaterial contract. Employement contract is not a unilaterial contract. Plantiff didn’t win because when he started working his employement contract replaced his contract offer of employement. Continuing employement is the new consideration.

93

Product liability based on negligence

breach of duty of care

94

breach of duty of care list

-negligent design
-negligent manufacture
-failure to warn

95

negligent design

a product free of unreasonable risks

96

negligent manufacture

failure to inspect, carless assembly ect

97

failure to warn

about the damages of normal use and also foreseeable misuse"- no duty however "to warn about obvious dangers

98

assumptions made regarding strict liability

consumers should be protected from unsafe products; manufacturers and distributors should not escape liability for faulty products. Manufacturers, sellers and lessors are in a better position to bear the costs associated with injuries caused by their products, which they can then pass on to all consumers.

99

product liability modern

those who make, sell, or lease goods can be held liable for physical harm or property damage that those goods cause to a consumer or bystander

100

product liability old days

privity of contract and caveat emptor- buyer beware

101

mistake

a mistake is a belief that is not in accord with the facts

102

types of mistake

1. mutual mistake
2. unilateral

103

mutual mistake

if both parties have the same mistaken belief, the mistake is said to be mutual

104

unilateral mistake

by contrast, if one party has the mistaken belief, the mistake is unilateral

105

existing fact

the doctrines applicable to mistake apply only to a mistaken belief about an existing fact, not an erroneous belief about what will happen in the future

106

express contracts

direct statement by parties of the promises made. May be oral or written. all important terms are expressly state between the parties.

107

implied-in-fact contracts

actions and circumstances infer and define the terms of the contract. may be words, conduct or gestures. these contracts are implied at law

108

intoxication/ mentally imcompetent

-a person with mental illness or defect, who is unable to understand the nature and consequences of a transaction

109

intoxicated contract

when an intoxicated person (who lacks contractual capacity) makes a contract, it is voidable

110

mentally incompetant contract

if a person has been adjudged mentally imcompetent by a court of law and a guardian has been apointed, any contract made is void

111

restitution

a mentally infirm party who seeks to void a contract make restitution

112

Contractual capacity

capacity is the legal ability to enter into a contract

113

contractual capacity voidable contract

a voidable contract may be canceled by the party to the contract who lacks capacity

114

contract capacity in some cases

lack of capacity creates a void contract

115

legality

a contract must be formed for a legal purpose; a contract that requires one or both parties to violate the law is illegal and thus void and legally unenforceable

116

contracts contrary to leagality statute

-usury
-gambling
-licesnsing statutes