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BSLW 251 test 2
| Question | Answer |
|---|---|
| Contract | a legally binding agreement, whereby mutual agreement or assent the parties create enforceable duties or obligations. |
| privity of contract | |
| binding agreement | Legally |
| expressed vs. implied | Expressed=contracts manifested by their words (oral or written). Implied=contracts manifested by the acts and conduct of the parties (i.e., emergency roof repair); cannot arise if an express contract is in force |
| promisor promisee | Promisor promises something to the promisee |
| Bilateral and unilateral contracts. | Bilateral=contracts are promises given in exchange for another, and each party is bound by the obligation. Unilateral=contract is one where the offeror promises to do something or to pay money once an offeree does an act |
| option contract | contracts permit ability to enter into a contract at a later date, while a first-refusal contract gives the first choice to that party. |
| quasi contract | contracts permit ability to enter into a contract at a later date, while a first-refusal contract gives the first choice to that party. |
| divisible contract | |
| Unjust enrichment | |
| statute of frauds | states all contracts that cannot be performed in one year must be in writing. including the sale of real estate even if able to perform in one year |
| caveat emptor | Buyer beware |
| Offer to purchase | must be definite and certain, must have contractual intention. |
| meeting of the minds | requirement of a contract. where an agreement was established. |
| Termination of offer | revocation; counteroffer; rejection; lapse of time; death or mental capacity; act becomes illegal |
| Acceptance | typically happens when signed |
| manner and time of acceptance (i.e., mailbox rule, telephone and electronic communication) | Specified in the offer |
| Contractual capacity | Ability to understand that a contract is being made and to understand its general meaning. |
| minors (underage parties) | A minor may make a contract but it is voidable at the election of the minor. ( special consideration for emancipation ) |
| ratification | May be expressed by any words or conduct manifesting an intent to be bound by the terms of the contact. |
| mentally incompetent | The inability to understand the concept of a contract. |
| Unilateral mistakes, mutual mistakes | Unilateral= made by one of the parties that does not effect the contract when the mistake is unknown to the other party. Mutual= mistake made by both parties, may render the contract voidable by the adversely effected party if the mistake has a material e |
| Fraud | Material misrepresentation or false statement with foreknowledge and wrongful intent. |
| negligent misrepresentation | similar to fraud, however, it is predicated on a “negligently made false statement |
| undue influence | exerted by a dominating party, who receives a benefit as a result, renders the contract voidable. Essential element is the person making the contract does not exercise free will. |
| duress | may be physical or economic, negates free will |
| Consideration | What each party gives up. contract is void, without it |
| gifts | Are not enforcealble due to lack of considerati |
| adequacy | typically not considered by the court. |
| forbearance | becomes the consideration if parties agree not to do something |
| illusory promises | carry no obligations |
| exceptions | Charitable subscriptions (pledges) UCC Promissory Estoppel (detrimental reliance) |
| Third parties | actions by, may satisfy the contract |
| Effect of illegality and exceptions | renders a contract void, unless due to hardship. |
| Unconscionable clauses | unreasonable acts |
| agreements contrary to public policy | may be unenforceable |
| Statutory regulation of contracts | consumer may have the right to rescind the contract |
| Covenants not to compete | legal, unless unreasonable |
| Usurious agreements | loans that ignore state usury laws. |
| Oral contracts, statute of frauds | must be able to be fulfilled within 1 year |
| Parol Evidence Rule | only admissible to show fraud, duress, or mistake |
| Rules of construction and interpretation | courts generally try to determine what was intended |
| Third party beneficiaries | may bring suit to enforce the contract |
| assignments | transfers the contractual right to a third party |
| warranties | when contract is assigned, the assignor gives the assignee an implied warranty that the contract is valid |
| assignment/delegation of duties | allowed, barring "personal services" exception |
| Conditions relating to performance | occurrence, or nonoccurrence must be expressly stated in the contract |
| Breach | failure to act or perform in the manner called for by the contract |
| anticipatory breach | nonperformance made clear ahead of time |
| waiver of breach | if done, waiving party may not bring forth action at a later time |
| reservation of rights | may waive breach, but gives notice that action may be brought forth at a later time |
| Remedies for breach (damages) | 4 types: compensatory; actual; punitive; consequential |
| specific performance | compels the other party to carry out the terms of the contract |
| reformation of contract | will not be done by the courts |
Created by:
houck413
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