Fall 24 Midterm terms Flashcards
(19 cards)
Mutual assent
manifestation of mutual assent to an exchange requires that each party make a promise or begin to render a performance
R24 Offer
an offer is (1) a manifested commitment by an offeror (2) which justifies an offeree’s belief that his assent is invited and would ne conclusive (3) the terms of which are reasonably certain
R26 Preliminary negotiations
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 a bargin until he has made further manifestation of assent
Ads…
typically not offers, but mere invitations to bargain
Except where the advertisement is clear, definite, and explicit in terms and performance required, leaving no room for negotiation
Acceptance
Objective manifestation of intent (not secret intent)
Does exactly what is called for in the offer
Test for acceptance
objectively reasonable interpretation of the words
ie. reasonable man would understand the words to constitute a contract
Unreasonable meaning (acceptance)
if one party asserts an unreasonable meaning is attached to his words or acts (didn’t intent to accept because he was joking), the other party has to know that the promisor didn’t intend to accept
General rule revocation
Offer can be revoked up until it is accepted
Consideration
(1) to constitute consideration, a performance or return promise must be bargained for
(2) a bargain is a performance or return promise sought by a promisor in exchange for his promise and is given by a promisee in exchange for that promise
(3) a performance includes
(a) an act
(b) forbearance; or
(c) creation, modification, or destruction of a legal relation
Benefit/detriment test (minority rule)
if promisee benefits/suffers detriment in performance or return promise–> consideration
Bargain test (maj. rule)
if promisor seeks to induce performance or return promise–> consideration
Not consideration
- mere gratuity
- nominal consideration
- illusory promise: a promise to perform that leaves performance to the promising party’s discretion is not consideration on (ie includes free escape clause for one party
- intent to K is not enough to actually get you one
- moral obligation (min. is consideration where promisee confers material benefit on promisor) (or unless moral ob founded upon prior consideration)
- pre-existing contractual duty: performing or promising to perform an existing legal duty is insufficient consideration without new consideration *ucc allows for sale of goods to be modified w/o consideration
Zukerkorn reviving a debt
(1) voluntary acknowledgment of debt
(2) voluntary partial payment
(3) waiver of S o L to the obligee
Pre-existing contractual duty may be consideration if
(1) if duty not fully performed, modification must be (2) fair and equitable, (3) in view of circumstances not anticipated at the time of K-ing
Output and Requirement Ks
Exclusivity agreements. Buyer agrees to buy all he requires; or seller agrees to sell all he produces to buyer
Promissory estoppel
(1) a promise which
(2) the promisor must reasonably expect to induce reliance
(3) promisee does rely to his detriment
(4) injustice can only be avoided by enforcement
Exepctancy damages
try to put the non-breaching party in the same position they would have been had the K been carried out
Reliance damages
restore non-breaching party to position they would have been in before they entered the K
Restitution damages
try and pull back from breaching party any benefit they received from K
