Chapters 11 and 12 terms and holdings Flashcards Preview

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Flashcards in Chapters 11 and 12 terms and holdings Deck (62):
1

executory contract

A contract that has not yet been fully performed

2

executed contract

a contract that has been fully performed

3

contract

An agreement that creates a legal relationship and obligations between two or more parties

4

elements of an offer

1. Intent to make an offer on the part of the offerer
2. definite terms
3. Communication to the offeree

5

offerer

the party making the offer

6

offeree

party accepting the offer

7

elements of acceptance

1. Communication to the offerer
2. Acceptance of the terms of the offer

8

bilateral contract

A contract accepted by a return promise. It is an exchange of promises, supported by consideration

9

unilateral contract

A contract in which acceptance in accomplished by performance
ex: offer of a reward is accepted by performing the reward request

10

mirror image rule

A valid acceptance requires that the offeree agree to the specific terms of the offer

11

consideration

A requirement in classical contract formation that consists of an exchange of something of value, although this may in some cases be largely symbolic

12

fraud

a contract induced by intentionally false misrepresentation; such a contract is voidable

13

misrepresentation

A false representation; may be innocent or intentional. A contract based on an innocent misrepresentation is still a voidable by the person to whom the false representation was made

14

rescind

to annul or cancel a contract, putting the parties back in the position they were in before, as if no contract had been made

15

rescission

Aims at destroying the contract and it's obligations, thereby putting the parties back in the positions they occupied prior to making the agreement

16

voidable contract

describes a contract that the innocent party (the other party having contracted wrongfully in certain recognized ways) may avoid by returning the parties to their conditions prior to the agreement.

17

duress

threats of harm made to induce agreement by one party to a contract

18

undue influence

relentless pressure, especially from one in a confidential relationship, to induce a party to agree to a contract

19

mutual mistake of fact

In contract formation, one or both parties believe some essential fact about the transaction to be other than really is; makes the contract voidable

20

lack of contractual capacity

Lack of capacity may be due to lack of legal competence based on status (minor), lack of mental capacity to form contracts, or temporary incapacitation (intoxication)

21

ratify

to approve, as when one suffering a disability approves a contract after the disability has terminated; for example, a minor reaches age of majority and agrees to a contact made when he or she was still a minor.

22

void contract

Contract for an illegal purpose; in some states a person legally insane at time of making contract; some forms of mistake may make a contact void

23

voidable contract

Lack of capacity, duress, misrepresentation, undue influence, mutual mistake

24

unenforceable contract

A contract that conflicts with public policy or a legal requirement (e.g. an oral contract required by the Statute of Frauds to be in writing) may not be enforced

25

statute of frauds

An ancient doctrine requiring that certain contracts be in writing and signed

26

privity of contract

The relationship between two parties to a contract. Originally, this was a bar to a suit brought by a consumer against a manufacturer when the consumer bought through a dealer and not directly from the manufacturer. Modern product liability law does away with this impediment.

27

equitable remedy

A special remedy, such as an injunction or specific performance, not available at common law.

28

reformation

Aims at correcting a contract to reflect the actual intention of the parties

29

specific performance

an equitable remedy that asks the court to order a party to a contract to perform the terms of the contract

30

injunctive relief

sometimes available to order someone not to do something that is prohibited by a contract (to prevent someone from building a carport in a development where deed restrictions require garages and prohibit carports) - prohibiting a type of action

31

quasi-contract

Concept arising from the theory that a "contract" is created on the basis of moral obligation, called unjust enrichment, in which one party receives a benefit to the detriment of another, that begs for restitution; not an actual contract

32

contract implied in law

a contract that can be inferred by the conduct of the parties in the absence of a verbal or express contract

33

unjust enrichment

An equitable principle asserting that one receiving a benefit at another's loss owes restitution to the other

34

restitution

In contract law, usually the amount that returns the plaintiff back to his or her precontact financial position

35

promissory estoppel

An equitable principle that enforces a promise in the absence of a completed contract. When a person makes a promise to another to induce that other to act to his detriment and that other does so act in reliance on the promise, the court may prevent (estop) the first person from denying or negating the promise

36

condominium

A form of ownership in real property where owners typically share ownership in common areas, such as the land, sidewalks, swimming pool, and so on, but have individual rights in a building, as if each owner owned an apartment or townhouse

37

due process clause

The fifth amendment and the fourteenth amendment to the U.S. Constitution, which guarantee that to all under established rules that do not violate fundamental principles of fairness. The process that is due before government may deprive a person of life, liberty, and property

38

tenancy by the entirety

A form of co-ownership with a right of survivor-ship that can be held only by husband and wife.

39

restrictive covenants

Mandates concerning what may or may not be done with, to, or on real property; take many forms, including minimum square footage for a house, lawn, and yard maintenance, ability to rent the property, and signage. Racially restrictive covenants and other discriminatory practices have long been held unconstitutional.

40

easement

A right of use in another's property, for example, when someone has a right-of-way to cross another's land

41

lease

An agreement by an owner of property (the lessor), with a renter (a tenant or lessee) whereby the lessee pays for the right of possession and use but does not acquire title

42

deed

A document that describes a piece of real property and its transfer of title to a new owner

43

chain of title

The history of the transfer of title to real property; comprised of a series of grantor-to-grantee transfers leading to a showing of who is the present holder of title

44

fee simple absolute

An estate in land having the maximum rights, that is, without future interests

45

life estate

An estate, especially in land, that lasts until someone dies.

46

tenancy by the entirety

A form of co-ownership with a right of survivor ship that can be held only by husband and wife

47

Joint tenancy

A form of co-ownership that includes a right of survirorship

48

tenancy in common

A form of co-ownership that does not have a right to survivorship and that permits unequal shares.

49

title

Formal ownership of property; has many nuances of meaning

50

adverse possession

A means of acquiring title by occupying and using land for a certain length of time even though the occupier does not have title. The period at common law was twenty years, but this period has been shortened in most states by statute.

51

will

A document through which a person directs how his or her property will be distributed after the person's death

52

trust

A device whereby title to property in transferred to one person, the trustee, for benefit of another, the beneficiary.

53

Flexibility

For someone with minor children or others who cannot properly take care of their affairs, a trust can be established that provides temporarily for financial needs while preserving assets for later distribution. In short, the trust can be tailored to very special programs that would be very awkward to handle in a will

54

Eminent domain

The power of the government to take private property for a public use, for which just compensation is required by the Constitution

55

planning and zoning

conformity, for the growth and use of property

56

Lucy v. Zehmer

Issue: does a contract for 50,000 for the property binding on the back of a reciept?
Holding: The complainants are entitled to have specific performance of the contact sued on. YES it is a contract

57

Rose vs Elias

Holding : the lower court concluded that the words "love and affection" in the circumstances presented suggest adultery, and thus illegal consideration

58

Hanks vs McNeil Coal Corporation

Issue : The legal test of Hanks' insanity is whether "he was incapable of understanding and appreciating the extent and effect of business transactions in which he engaged"
Holding : There is no evidence of delusions or hallucinations in connection with this transaction or with his transaction of much of his other business at that time; there is no basis for holding voidable his sale here involved on the ground of his insanity

59

Stambovsky vs ackley

issue : Plaintiff promptly commenced this action seeking rescission on the contract of sale
Holding : Supreme court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction

60

white v cooke

issue : White filed suit for specific performance of the real-estate contract without the burden of an easement
Holding : We find that the chancellor did not abuse his discretion in denying specific and dismissing the case.

61

Hoffman vs Red owl stores

Issue : Whether the promise necessary to sustain a cause of action for promissory estoppel must embrace all essential details of a proposed transaction between promisor and promisee so as to be the equivalent of an offer that would result in a binding contract between the parties if the promisee were to accept the same
Holding : We conclude that injustice would result here if plaintiffs were not granted some relief because of the failure of defendants

62

cestui que trust

beneficiary