Chapters 11 and 12 terms and holdings Flashcards Preview

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

executory contract

A contract that has not yet been fully performed


executed contract

a contract that has been fully performed



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


elements of an offer

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



the party making the offer



party accepting the offer


elements of acceptance

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


bilateral contract

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


unilateral contract

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


mirror image rule

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



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



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



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



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



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


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.



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


undue influence

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


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


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)



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.


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


voidable contract

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


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


statute of frauds

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


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.


equitable remedy

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



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


specific performance

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


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



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


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


unjust enrichment

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



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


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



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


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


tenancy by the entirety

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


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.



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



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



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


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


fee simple absolute

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


life estate

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


tenancy by the entirety

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


Joint tenancy

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


tenancy in common

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



Formal ownership of property; has many nuances of meaning


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.



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



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



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


Eminent domain

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


planning and zoning

conformity, for the growth and use of property


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


Rose vs Elias

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


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


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


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.


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


cestui que trust