Formation of Contract

Question 1

what is a contract?

Answer 1

an agreement which is intended to give rise to a binding legal relationship or to have some other legal effect

Question 2

difference transfer and deliver

Answer 2

transfer- rights, intangible things
deliver- tangible things

Question 3

right means owning the item?

Answer 3

no, you can create a right to something without actually having a right to it yet

Question 4

contract as a promise

Answer 4

Promise expresses morality of human freedom of the expansion of the human will in relations of respect and trust, and contract is built on moral institution of promising.

subjective approach- the view of the promisor at the time of the agreement
1. if we cannot find the subjective approach- objective approach- what would a normal person do in the same circumtances
2. gaps- objective approach

promise= moral invention, create obligations where there were none before
duty to mitigate and penalty clauses

Question 5

contract as consent

Answer 5

consent is objective, is an expression, not a mental act
does not creates only moral obligation, but also legal one

gaps? Default rules= apply unless the party ‘contract around’ them by putting diff terms in the agreement
remaining silent- agree to the default rules

Question 6

life of a contract

Answer 6

formation
consequences
termination

Question 7

requirements of forming a contract

Answer 7

1. offer
2. acceptance
3. intention to be bound
4. consideration (only common law)

Question 8

content of an offer

Answer 8

1. clearly stated terms
2. an intention to be legally bound
3. communication of the offer to the offeree

Question 9

exceptions offer v. invitation to treat

Answer 9

advertisements/ websites offers:
- invit to treat- German/English law
- offer- French law, unless personal qualities matter

goods on dispaly in a shop:
- invit to treat- German/English law
- offer- French law

Question 10

revocation of offer- german law

Answer 10

no, unless he states that he is not bound
exception: when the withdrawal arrives before or at the same tome as the offer

Question 11

revocation of offer- english law

Answer 11

always allowed before acceptance, even if there is a deadline

Question 12

revocation of offer- french law

Answer 12

allowed, but offeror must compensate the damage

Question 13

acceptance

Answer 13

accept the offer unconditionally, if there is a counteroffer, the original offer becomes irrelevant

Question 14

time of conclusion of a contract- german/ french law

Answer 14

Receipt theory= when it gets an answer back

Question 15

time of conclusion- english law

Answer 15

instantaneous communication- Receipt theory
non-instantaneous communication- including email, texts, post, telemessaging- Expedition theory= effective at the moment of posting
should not be applied to a revocation

Question 16

consideration- common law

Answer 16

the benefit each party receives in exchange for what it gives up in the contract

requirements:
- worth bargaining for
- benefit all parties
- be something of value

can be in form of money, promise, service, etc