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Flashcards in Page 3 Deck (33):
1

What is a gap filler?

Term the court supplies because it thought parties would've agreed on it if it had been brought to their attention, or it aligns with community standards of fairness and policy

2

Gap fillers are used because it is assumed that what?

Parties must have intended these terms, but just failed to express them

3

What do The courts consider when creating a gap filler?

The intention of the parties, purpose of the contract, good faith/fair dealing, and reasonableness

4

Courts refuse to fill material terms if what?

No objective standard can be found

5

How Can time become an indefiniteness issue?

If there was a duration problem

6

What is the major duration problem that happens to create indefiniteness?

Agreements to agree

7

If the contract is silent about a material term, does that necessarily mean it fails for indefiniteness?

No, the term can be implied from surrounding circumstances like trade/local usages, course of dealing, etc. or filled with a gap filler

8

How do courts deal with agreements to agree?

- CL: denies enforcement of these where further negotiation is contemplated
- modern: courts will supply the missing term if it was intentionally left open

9

Modernly, agreementsto agree have what implied promise in them?

A promise to negotiate in good faith

10

If an Employment contract doesn't state duration, what is it assumed to be?

At will employment

11

What is at will employment?

Employment that lasts as long as an employee is able to perform the work hired for and employer continues in the business

12

How can employment contracts be terminated?

For a good cause or no cause but not for morally wrong cause

13

What is considered morally wrong cause if you terminate an employee?

Termination motivated by bad faith, malice, or retaliation (considered a breach)

14

What are the things must be present in order to make an employee manual enforceable?

- clear language
- handed to employee
- employee reasonably believes it's an offer
- employee accepts by commencing or continuing work afterward

15

What is mutual agreement?

Offer and acceptance

16

Mutual agreement must be manifested by what?

The objective theory of contracts

17

What is the objective theory of contracts?

What a reasonable person would understand the expression to mean

18

What Is the rationale behind the objective theory of contracts?

To protect the parties' reasonable expectation in relying on a promise

19

How does the manifestation of assent occur?

When the party uses an expression that he knows/has reason to know the other would reasonably interpret as an offer or acceptance and the other party does interpret it that way

20

What is the legal effect of an offer?

Creates a power of acceptance in the offeree

21

What Is the legal effect of a rejection?

Terminates the power of acceptance

22

What is the legal effect of a conditional acceptance?

Terminates the power of acceptance, except under the UCC

23

What is The legal effect of a counter offer?

Terminates the offeree's power of acceptance and creates a new power of acceptance in the original offeror

24

What is the legal effect of acceptance?

Concludes the bargain if it is timely and in proper form

25

What is an offer?

Commitment or intention to be bound, containing definite terms, communicated to an identified offeree that invites that party to accept the terms

26

Who is the master of an offer?

The offeror

27

When is an offer effective?

When received and made known to the offeree

28

How does the addressee have the power to conclude a bargain if an offer has been made?

By entering the contract and binding the offeror if he gives assent in an appropriate way

29

Can a written offer be orally revoked?

Yes

30

What is shrinkwrap/click wrap?

Offer to grant a license that you agree to if you unwrap the disc/click the box, and become bound

31

Can silence by the offeree be an acceptance of an offer?

No, even if the offer states that it is

32

What are some ways that ambiguity in an offer can be resolved?

Through course of performance and custom or usage of trade

33

What are the four parts that constitute an offer?

Commitment, communicated, to an identified offeree, containing definite terms