contracts

Question 1

quasi contracts

Answer 1

not a contacts at all; but constructed to avoid unjust enrichment by permitting plantiff to bring an action in restitution to recover amount conferred when defendant had a chance to decline and failed to do so without reasonable excuse
- benefit conferred
- appreciation by defendant
- acceptance and retention would be inequitable without payment

Question 2

consideration

Answer 2

• to constitute consideration, a performance or a return promise must be bargained for
  • a performance or return promise is considered bargained for when the promisor seeks it in exchange for their promise, and the promisee (other party) provides it in return for that promise.

the performance may consist of
- an act
- performance
- return promise
- foreberance

- the performance or return promise may be given to the promisor or to some other person; it may be given by some other person.

Question 3

implied in fact

Answer 3

mutual agreement and manifested intent to promise but the agreement and promise have not been made in words; but are implied from the facts through:
- conduct
- context
- circumstances

Question 4

not consideration

Answer 4

• past consideration
• gifts
• illusionary promises (unenforceable due to indefinetness or lack of mutuality where only one side is bound to perform)

Question 5

remedies

Answer 5

expectance; courts will give you the benefit of your bargain by awarding damages that puts you where you expected to be if contract were fulfilled (island of expectation)

reliance; the courts have interest in being reimbursed for loss cause by the reliance on the contract by awarding you damages that put you in as good as a position as if the contract was never made. (i wish i never met the bastard)

restitution; the interest in having restored to them any benefit that they conferred to other party

Question 6

forseeability (restatement 351)

Answer 6

damages are not recoverable if they are not forseeable as a probable result of the breach at the time contract was made (expectation cases)

FPB: it is determined to be forseeable as probable result of breach in order to recover damages if:
- it is in the ordinary course of events
- special circumstances, it was communicated explicitly

Question 7

promissory estoppel

Answer 7

can serve as a substitute for consideration when it is a promise which the promisor reasonable should expect to induce action of forebearence of a definite and substantial character on the part of the promise and which does induce such action or forebearence is binding if injustice can be avoided once enforcement of the promise

Question 8

anticipatory repudiation

Answer 8

one party repudiates the contract before the time of performance, the other party is not required to wait until the contract performance date to sue if:
- theres an unequivocal declaration of the deal is off
- there no general duty on the victim to mitigate; but they must if want damages (make reasonable attempt to avoid loss without undue risk, burden or humiliation)

Question 9

defensive remedy to anticipatory breach

Answer 9

one parties’ repudiation discharges the other person of their contractual duties

Question 10

uncousionable

Answer 10

if a contract is found to be uncousionable at the time it was made, the court may refuse to enforce contract in its entirety or just the one clause

Restatement 208:
- but gross bargaining party, in combination with one sided terms may constitute unconscionable**

Question 11

expressed contract

Answer 11

formed by language, oral or written

Question 12

nullification of anticipatory repudiation

Answer 12

party may retract unequivocal declaration to end contract and restore contract if non breaching party:
- has not materially changed his position in reliance OR
- indicated to breaching party that their unequivocal declaration was final

Question 13

impractability

Answer 13

parties may get out of contract if performance is deemed to be impractable bc of extreme and unreasonable difficulty; extreme injury, act of God, war or any unforseen shutdown

Question 14

contract

Answer 14

agreement between parties establishing enforceable obligations

Question 15

promise

Answer 15

manifestation of intention to act or refrain from acting in a specified way so as to justify a committment has been made

Question 16

avoidability (as a limitation on expectance damages)

Answer 16

damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation.

Question 17

nominal consideration

Answer 17

mere pretense of a bargain

intent to contract does not count as consideration and therefore is not contract

something substantial must be traded on both sides; even if it is not of equal value

Question 18

objective theory

Answer 18

objective theory

• not what we think we are saying, but what we manifest to what the recepient of the communication would reasonably understand that communication to mean

Question 19

offer

Answer 19

offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude

Question 20

soliticitation of offer

Answer 20

restatement 26 (preliminary negotiations)

• a manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude bargain until he has made a further manifestation of assent
• essentially a solicitation of an offer
  • person advertising, wants the person to bring the offer; giving the advertiser the power of acceptance

FOR IT TO BE AN OFFER IT MUST BE
- must be clear, definite and explicit

Question 21

offerees power of acceptance is terminated by

Answer 21

• rejection or counter offer by offeree’s
  • restatement 42 (pg 26)
    
    • an offerees power of acceptanance is terminated when the offeree recieves from the offeror a manifestation of an intention not to enter into the proposed contract

lapse of time

revocation of offer (can be indirect or direct)
- - restatement 43 indirect communication of revocation
- an offerees power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter the proposed contract and the offeree acquires reliable information to that effect.

• death or incapacity of the offeror or offeree’s
  • restatement 48 death or incapacity of offeror or offeree
    
    • an offerees power of acceptance is terminated when the offeree or offeror dies or is deprived of legal capacity to enter into the proposed contract

Question 22

revocation of general offer

Answer 22

when an offer is made by advertisement in a newspaper to other general notification to the public or to a number of persons whose identity is unknown to the offeror, the offerors power of acceptance is terminated when a notice of termination is given publicity by advertisement or other general notification equal to that given to the offer and no better means of notification is reasonably available

basically
- if you make publication of offer, but choose to revoke you must do so in the same manner you made offer

Question 23

determining an offer

Answer 23

RLID

reasonable person think you are offering a contract

language of commitment

identification of offeree

definite terms of contract
- clear, definite, explicit

Question 24

form of acceptance invited

Answer 24

• offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance
• unless otherwise indicated by the language or the circumstances an offer invites acceptance in any manner and by any medium reasonable in the circumstances

offers like these require notice when accepted

” i want to hear you tell me, you love me”

Question 25

acceptance

Answer 25

acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer

Question 26

acceptance by performance; notice not required

Answer 26

**restatement 54 (acceptance by performance; necesity of notification to offeror)** - when offer invites an offeree to accept by rendering a performance, **no notification is necessary to make such an acceptance effective unless the offer request such a notification (carbolic smoke case)**

Question 27

option contracts created by part performance

Answer 27

where an offer invites an offeroree to accept by rendering a performance an option contract is created when the offferee begins performance - climbing the pole example

Question 28

termination of power of acceptance under option contract

Answer 28

**restatement 37 (termination of power of acceptance under option contract)** - power of acceptance under an option-contract is not terminated by rejection or counter-offer, by revocation, or by death or incapacity of the offeror, unless the requirements are met for the discharge of a contractual duty - **acceptance must get there before expiration of offer, even if rejection is sent** - unequivocal language that it wont happen, is an implied waiver to release the remainder of the few days (COULD BE A COUNTERARGUMENT)

Question 29

default rule for when acceptances takes effect

Answer 29

**restatement 63 (time when acceptance takes effect) default** - unless the offer provides otherwise - an acceptance is made in a manner and by medium invited by an offer is operative and completes the manifestation of mutual assent as **soon as put out of offerees possession** without regard to whether it ever reaches the offeror; but (MAILBOX RULE) exception to this rule: - **exception to general rule is mailbox** - option contract is the exception to mailbox rule; in a hypothetical when you paid for an option contract to be open for a period of time; you mail your acceptance but it does not arrive until after the deadline is not valid, as it must be received!

Question 30

restatement 59

Answer 30

reply to an offer that purports to accept but is conditional on the assent to different terms from those already offered is not an acceptance

Question 31

statute of frauds UCC

Answer 31

The Statute of Frauds requires that contracts for the sale of goods priced at $500 or more be in writing to be enforceable unless an exception applies. A written contract must be signed by the party against whom enforcement is sought and include relevent terms, specifically the quantity. elements include: - Indicates a contract has been made between the parties, - Is signed by the party against whom enforcement is sought (or their authorized agent), - Shows the quantity EXCEPTIONS INCLUDES: A contract may still be enforceable even without a formal written agreement under certain circumstances: Specially manufactured goods: - goods are to be specially manufactured for the buyer are not suitable for sale to others before notice of repudiation is received and under circumstances which reasonable indicate hat the goods are for buyer Admission in court: if the party against whom enforceable is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but only for the quantity of goods admitted. Goods already paid for or accepted: If the goods have already been paid for or accepted by the buyer, the contract is enforceable.

Question 32

between merchants statute of frauds

Answer 32

Between merchants If a merchant sends a written confirmation of the contract to another merchant, and the receiving party does not object within 10 days, the contract is enforceable against the receiving party even if they didn't sign it. as long as signed by the plaintiff

Question 33

statute of frauds land

Answer 33

The Statute of Frauds requires that contracts for land must be in Writing signed by the party to be charged + Identify the property for real estate (some description of the property) + Price + Location EXCEPTION: part performance doctrine: - if conduct is unequivocally referable to a buyers conduct then that provides the corroboration needed to get specific performance; has to be more than down payment If the offeree has begun completing the contract (performance) then the offeror can no longer reject the offer. - The act must be performed by the party alleging the contract exists. - The act must be clearly related to the contract. - The act must be a sufficient act of part performance.

Question 34

broad statute of frauds definition

Answer 34

unless additional requirements are prescribed by the particular statute a contract within the **statute of frauds is enforceable** if it is evidenced by any writing signed by or on behalf of the **party to be charged which** - reasonably identifies the subject matter of the contract - if sufficient to indicate that a contract with respect thereto has been made between the parties or offered by the signer to the other party; and - states with reasonable certainty the essential terms of the unperformed promises in the contract

Question 35

option contract is irrevocable if

Answer 35

unilateral - part performance bilateral - nominal consideration

Question 36

peerless rule

Answer 36

if parties attach materially different meanings to their mainfesestations and neither party knows or has reason to know of the other meansing there is no assent (no contract) if one party understands meaning attached by the other, the contract is operative under that understanding

Question 37

acceptance which request change

Answer 37

an acceptance which request change or addition to terms of offer is not invalidated unless acceptance is made to depend on assent to the changed terms