Quiz 11 Content (Test 2) Flashcards
(41 cards)
1
Q
what are the 3 essentials to an offer?
A
objective intent
certain & definite
communication to offeree
2
Q
objective intent
A
- offeror must manifest an objective intent to be bound by a K
- objective theory of K’s: “would a reasonable offeree be justified in assuming from the offeror’s conduct that they chose to make a binding promise”
3
Q
certain & definite (offer)
A
- the key elements (subject matter, price, quantity, terms of payment, duration) must be present in K
- serves as evidence of consent, gives courts a basis for dealing with breach
- ads are not an offer
4
Q
communication to the offeree (offer)
A
- if someone puts up a lost poster w/ a reward and you find missing dog but don’t see poster, you don’t get reward money, because wasn’t communicated to them
- not you accepting the offer; just a good samaritan
5
Q
validity of an offer
A
- offeror is the master of their offer
- can take back your offer: until accepted OR terminated by action of parties/by law
6
Q
when is revocation by offeror effective?
A
- when received by offeree (not valid until done so)
- offeree needs to receive notice that the offer is revoked!
7
Q
what are the 5 exceptions to terminating an offer?
A
- option K’s
- firm offers under the code
- statutory irrevocability
- irrevocable offers of unilateral K’s
- promissory estoppel
8
Q
option K
A
- offeror is bound to hold offer open for a specified period of time b/c offeree provides consideration
- ex: B tells A “if I give you $1k now to hold the car, can you keep the offer open?” if A agrees, must do it for the X amount of days
9
Q
firm offers under the code
A
a merchant is bound to keep an offer open to buy/sell goods open for a stated period of time if the offer is made in writing
10
Q
statutory irrevocability
A
ex: in VA when bidding a state project if you receive a bid for completing a project for a certain amount of money, can’t take it back
11
Q
irrevocable offers of unilateral K’s
A
offeror can’t revoke their offer once the offeree has STARTED TO PERFORM
12
Q
promissory estoppel
A
- used to prevent an offeror from revoking an offer prior to acceptance when the offeree was induced by the offer, encouraged by offeror to rely on it to their detriment
- equitable remedy (can’t force them to follow through with offer, but offeree is entitled to their reliance damages)
13
Q
when is the rejection by offeree effective?
A
- when received by offeror
- can be silent
- is no rejection until offeror SEES it
14
Q
when is a counter offer effective?
A
- when received by offeror
- offeree has not accepted the offer unequivocally (exactly as it was made to you, can’t change terms)
15
Q
operation of law
A
- lapse of time (specified in offer, if not, “reasonable period of time”)
- death/incompetency of either party (no longer entitled to accept)
- destruction of subject matter of offer
- subsequent illegality of the type of K proposed by the offer
16
Q
mirror image rule
A
- requires any acceptance to be an unconditional assent to the terms of the offer
- not accepted until it’s unequivocally accepted
- silence is not acceptance, unless otherwise specified
17
Q
mailbox rule
A
- an offer is considered accepted at the time that the acceptance is communicated
- received (“has notice,” seen it)
- acceptance is valid the minute it’s sent, doesn’t matter when offeror sees it
- exception: if offeror specifies method of communication and offeree doesn’t follow it (unauthorized method)
18
Q
what are the 5 mutual assents created by law?
A
- multiple promisors
- provide sector employment termination
- sales of service/service agreement
- sales of real property
- sales of goods
19
Q
multiple promisors
A
- ex: lease w/ roomies
- Default law → promise to accept/liability for the whole promise jointly & severally
- Alternatives → separate Ks for each tenant
20
Q
private sector employment termination
A
- Default law → “at-will employment,” can fire you w/ no notice for no reason, works both ways so you can also quit w/ no reason/notice
- Alternatives → employment K [years (X year contract, will get paid until then no matter what), agreed upon reasons for terminate, agreed to terms upon termination (required notice/paid severance)]
21
Q
sales of service/service agreement
A
- Default law → service provider promises to perform in a reasonable fashion the authorized service; in exchange the customer promises to the service provider’s customary charges for the authorized services
- Alternatives → reasonable fashion (express warranty), hourly rate, bidded agreement
22
Q
sales of real property
A
- Default law → seller commercial and residential real property promises only good title (they own it & can sell it), there are statutory exceptions
- Alternatives → express warranty
23
Q
sales of goods
A
- Default law → old goods caveat emptor (“let the buyer beware”)
- Alternatives → express warranty
- exceptions under UCC (only for merchants):
implied warranty of merchantability = merchant’s promise that a good will be fit for its purpose for the general life of that good, can sue under Magnuson Moss Warranty Act (Fed law, fed court, get attorney fees paid, in customer’s jurisdiction) if it breaks/expires before end of general life
24
Q
consideration
A
- what makes a promise binding, the exchange of something of value given by each party, the “give,” “this for that”
- you have to do something NEW (have to give up something/do something)
- value is not the amount, but if you gave up a LEGAL BENEFIT/DETRIMENT
25
legal benefit
promisee/or obtain something of value that previously you had no legal right to obtain
26
legal detriment
(not harm), something that promisee/or was previously under no legal obligation to do/refrain from doing
27
agreements lacking consideration that are UNENFORCEABLE (invalid)
- preexisting duty
- past consideration
- gratuitous promise
- illusory promise
28
preexisting duty (UNenforceable)
- when parties to a valid K agree to modify/alter the K before it's completed, w/o adding new/additional consideration, it would fail
- exception: modifications under UCC require no consideration b/c UCC K's require good faith
29
past consideration (UNenforceable)
- legal benefit/detriment has already occurred by one party before another acts
- NOT a VALID K
- ex: neighbor cuts lawn, owner says that was nice I'll pay$100, owner never pays, neighbor sues, owner didn't owe $ b/c it was after
30
gratuitous promise (UNenforceable)
a gift, not a 2 way exchange
31
illusory promise (UNenforceable)
- when the offeror leaves the backdoor open, can't prove IF's b/c ambiguous, can't base K off it
32
agreements lacking consideration, but are ENFORCEABLE
- unforeseen difficulties
- promissory estoppel
- K's implied in fact
- K's implied in law
33
unforeseen difficulties (ENFORCEABLE)
- exception to the preexisting duty rule, must prove where:
1) K must perform under burdensome conditions
2) these conditions were not anticipated/contemplated by the parties at the time the K was made
3) promisee agrees to pay what is reasonable in light of the change conditions
- has to be an "act of god" (natural disasters where they don't normally happen)
34
promissory estoppel (ENFORCEABLE)
you relied on it to your own detriment and they knew it, can make them pay you for your reliance
35
K's implied in fact (ENFORCEABLE)
obligations arising from a mutual agreement expressed not through words but implied through actions
36
K's implied in law (ENFORCEABLE)
prevents unjust enrichment, so law will create Quasi K
37
what are the 2 groups lacking capacity?
- children
- mental disability
38
ratification
- when a person enters into a K under 18, and after turning 18, accepts the K by making a payment/acting on the K, makes K valid ("ratified")
39
adjudicated
not legally bound for anything, decided by the judge, can no longer make K's, so all K's are void
40
non-adjudicated
voidable, MIGHT be able to get out of K
41
what are the 5 elements of a K?
1) offer
2) acceptance
3) consideration
4) legality
5) capacity
