BUSA 2106 EXAM 2 TERMS CONTRACTS Perry Binder J D Sources of Contracts Common law v statutes 6 Elements of an express contract contracts at law equity offer offeror the one making the offer offeree the one receiving the offer acceptance done by the offeree Give 50 dollars to wash my car contract Counteroffer When offeree changes the original offer Contracts supported by consideration both sides must give up and receive semi equal value Ex Pepsi case 7 million dollars for government contracts past consideration bad consideration no contract if the offer is made after the act giving a swimmer who saved your life a word of giving 50 after he saved you promissory estoppel you made a promise I relied on it ex commitment to go to prom but went to Braves game detrimental reliance giving a gift to someone they cannot sue you for it back claim it back Capacity unenforceable void no legal effect and no one can enforce it voidable one side can choose to enforce it unenforceable up to a judge to decide whether it is enforceable or Minor voidable in the option of the minor 3 exceptions in state of GA 1 Student loans 2 Business contracts 3 Contracts of necessity food clothing and shelter 2pts if oral contract has all 6 elements it is an expressed contract Intoxication Voidable by the intoxicated person once sobered up Insanity Lack of capacity 2 Components 1 Contacts written to someone w o capacity voidable at their option if no prior 2 court ruled that they lacked capacity If prior court did rule find to lack capacity any future contract whether good or bad will be void Undue influence not force when a person in a position of trust plays on that trust to get what they want ex Prompting grandma with cake to get money on her will Duress Threating you or a third party with physical violence are voidable legality intent usury statures gambling no mutual mistake if contract has mutual mistake no contract If have to go to court Breach of Express Contract existence of valid contract all of the above items breach plaintiff notified defendant of breach plaintiff performed all conditions precedent to filing action damages Express contract can be oral or written 2 points on exam Implied contract another thing in equity means we are missing some important element of expressed contract in fact conduct based on conduct of defendant we are going to imply acceptance in law unjust enrichment quasi contract where you were to be unjustly enriched if we provided you with services and you did not pay for it ex paying hospital bills after a concussion saying you did not accept it About consumer contracts Unconscionable contract one sided consumer contract where you have no ability to negotiate ex credit card and bank contracts in state of GA can not get out of unconscionable contract contract of adhesion Boilerplate clauses standard clauses that go at the end of the contract negotiable examples below 1 default did not pay and acceleration whole amount is due now 2 choice of law critical in days of Internet contracts put close to top in bold and in red so in court you can get the judges side elevated most important terms in the beginning of the contract 3 forum selection 4 attorney s fee 5 severability savings Judge cut out or sever the bad part of the contract and save the rest benefits both sides 6 modification If other side did not initial a contract they can not modify the contact have to be signed by both parties merger all prior contract drafts and oral conversations have all merged into the final contract Some Boilerplate Clauses 1 In the event any payment due hereunder is not paid when due your account will be deemed in default In such event the entire balance shall be immediately due and payable upon demand of the holder 2 This agreement is governed by the laws of the State of Washington U S A 3 You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in King County Washington U S A in all disputes arising out of or relating to the use of the MSN Sites Services 4 In the unlikely event of litigation and appeals the prevailing party can recover all reasonable attorneys fees and costs 5 If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including but not limited to the warranty disclaimers and liability limitations set forth above then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect 6 Unless otherwise specified herein this agreement constitutes the entire agreement between the user and Microsoft with respect to the MSN Sites Services and it supersedes all prior or contemporaneous communications and proposals whether electronic oral or written between the user and Microsoft with respect to the MSN Sites Services This agreement may only be modified if done so in writing and signed by both parties OTHER BOILERPLATE CLAUSES Assignment with and without recourse assignment with recourse bank letting you assign obligation to someone else that someone else is liable and you remain liable as well assignment without recourse once the obligation is transferred original person has no recourse Covenant not to compete non compete show 3 things Old law in GA If it has a type of work b within geographic region c within a period of time 2 years CANNOT COMPETE WITH BUSINESS IF FIRED QUIT LAID OFF RETIRED ETC Courts are allowed to blue pencil non competes now savoring law will be more enforceable judge can fix or adjust the law not applicable to entry level careers Damages Compensatory actual damages Consequential lost profits As a consequence of your actions we lost profits ex if women took hook and put it in fish to get publicity and sue ex Lady who put finger in Wendys Punitive civil punishing damages Liquidated written into a contract must be reasonable and not a penalty otherwise the court will toss it out Nominal Token damages we find liability but we aren t awarding damages ex Pain and suffering damages Anticipatory repudiation cause of action complaint complaint usually filed in breach of contract Based on good information and belief we have good intentions that he is going to breach Statute of Frauds Which type of contracts need to be in writing a Real Estate contracts b contacts which can not be performed within 1 year ex 5yr lease c sale of goods not services over 500