113 Cards in this Set
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Contract (3 parts)
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Offer
Agreement
Consideration
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Offer
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Objective manifestation of willingness by the offeror to enter into an agreement that creates the power of acceptance by the offeree
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Offer ( 5 Necessities)
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1. Has to identify the subject matter
2. Has to Identify the parties
3. Must identify the price
4. Must identify the quantity (goods)
5. Can be revoked any time prior to acceptance
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Elements of Offer (3 parts)
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1. Serious intent by the offeror to be bound to an agreement
2. reasonably definite terms
3. communication to the offeree
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Intent
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Offeror must show intent to be bound by the offeree's acceptance
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Acceptance
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Communication to the Offeror reflecting an intent to be bound to the contract, and complies with mirror image rule
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Consideration
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A bargained gain. Each party is giving up something
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UCC
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Uniform Commercial Code, source of contract law
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UCC Article II
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The portion of the UCC having to do with the sale of goods
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Unilateral Contract
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A promise for an act
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Bilateral Contract
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A promise for a promise
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Capacity
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Either Party must have legal ability to enter into contract
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Do Contracts have to be in writing?
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No
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Lucy vs. Zimmer
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Not drunk enough
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Are advertisements offers?
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No
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Can advertisements be offers?
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If they are clear, definite, explicit, and leaves nothing open for negotiation
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Rejection
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Termination of an offer
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Does a counter offer act as a rejection?
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Yes
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Offer termination types (6)
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1. Revocation
2. Rejection
3. Counter Offer
4. Death or Incapacity (except with option contract)
5. Illegality
6. Lapse of Time
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Revocation
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Effective when the offeree receives it
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Detrimental Reliance
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If the offeree had reasonably relied on the offeror's promise to hold an offer open, and had taken action in reliance on the offer, courts may use doctrine of promissory estoppel
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Promissory Estoppel
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1. One party makes a promise, and either knows or should know the other party will reasonably rely on it
2. Promisee justifiably relies on the promise to their detriment
3. Only way to fix injustice, is to enforce the promise
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Who can accept an offer?
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Only the offeree
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Start of performance is acceptance
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True
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Mirror-Image rule
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Terms of the acceptance must mirror the terms of the offer, if not, the attempted acceptance is a counter offer
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Mailbox Rule
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1. Acceptance is valid once sent
2. Revocation is not valid until received
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Void
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Not a contract because either its object is illegal or it has a serious defect
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Voidable
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A contract in which one or both parties has the ability to either withdraw from or enforce the contract
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Communication to the Offeror
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The offeror can dictate the mode of acceptance through express terms and conditioning the offer
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Silence as Acceptance
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1. When it has been used before
2. When the parties agree on silence as consent, either expressly or implicitly
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Adequacy of Consideration
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The court does not weigh whether you made a good bargain
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Illusory Promise
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Not consideration
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Past consideration
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Not Consideration
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Pre-Existing Duty exceptions
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Not Consideration except:
1. Unforeseen Circumstances
2. Additional Work
3.UCC Article II
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Liquidated Debt (2 parts)
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1. No dispute that money is owed
2. No dispute of amount
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Unliquidated Debt
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There is a dispute that money is owed, or amount
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Accord and Satisfaction (3 parts)
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1. Debt is unliquidated
2. Creditor agrees to accept as full payment less than it claims is owed
3. The debtor pays the amount they have agreed on
(Called an Accord Agreement, and once paid, called satisfaction)
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Capacity in Regards to Minors
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1. Voidable by the minor, but not the other party
2. Once 18, if the minor does not take steps to disaffirm the contract, it becomes enforceable
3. Holds even if the minor misrepresents themselves
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Dissaffirming a Contract
(What if you purchase something from a minor?)
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A minor voiding a voidable contract
(Other party has no recourse if minor damages or destroys the consideration)
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Intoxication and contracts
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Voidable by intoxicated party if:
1.Unable to understand the nature of the transaction or the consequences of the transaction
AND
2. The other party knows or should have known
OR
If the party has been adjudicated as a habitual drunkard
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Adjudicated (Legally) Mentally Incompetant and contracts
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Contract is void
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Non-Adjudicated Mental Incompetancy and Contracts
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Voidable, if the party is unable to understand the nature of the contract & the other party has reason to know
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Three I's of incapacity
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1. Infancy
2. Insanity
3. Intoxication
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Usury
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giving a loan at an interest rate exceeding the legal maximum
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Unconscionable agreements
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heavily one-sided agreements
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2 types of unconscionable agreements
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1. Procedural
2. Substantive
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Procedural Unconsionability
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Conditions that Impair one party's understanding of a contract, as well as the integration of terms into a contract
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Adhesion Contract
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Take-it or Leave-it contract.
( Legal but raises red flags for procedural unconscionability)
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Substantive Unconsionability
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When an agreement is heavily lop-sided
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Exculpatory Clause
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Releases one party from all liability
(Not enforceable if the party is a business serving the public interest)
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Misrepresentation
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An untruthful statement of material fact.
Either intentional or accidental, makes a contract voidable
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Mistake
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Erroneous conclusion of fact, came to on on your own, and not based on what the other party said
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Unilateral Mistake
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A mistake made by one party.
Not usually permitted for rescission unless:
1. The other party knew or had reason to know about the mistake made
2. Mistake was caused by clerical error, that was accidental, and did not result from gross negligence
3. Mistake was so serious that…
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Mutual Mistake
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Both parties has a mistaken beleif of the subject
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3 parts of a Mutual Mistake
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1. Both parties are mistaken about a basic assumption on the subject matter of the contract
2. The assumption has a material effect on the agreement
3.Was not a risk that was assumed by either party in making the aggreement
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Innocent Misrepresentation
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A false statement made that was believed to be true
Permits rescindance, but not suit for damages
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Caveat Emptor
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Buyer Beware
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Non-disclosure
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May or may not be misrepresentation
Classic View: Caveat Emptor
Modern View: If the seller had knowledge of material fact and withheld it, he is at fault
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3 parts of Fraudulent Misrepresentation
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1. A false statement about a past or existing fact that is material to the contract
2. Intent to deceive
3. Justifiable reliance on the false statement by the innocent party to the agreement
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Actions against misrepresentation
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Fraudulent: Rescind contract or keep contract and sue for damages
Innocent: Rescind Contract
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Duress
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When one party induces another party to enter a contract through a wrongful act or threat
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Statute of Frauds
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M.S.O.U.R. Contracts must be in writing
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M.S.O.U.R.
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1. Marriage
2. Suretyship
3. One year (Service contracts that cannot be performed in one year from date of contract, not start of service)
4. U.C.C. (Sale of goods over $500)
5. Real property (transfer in interest for over one year
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Parole Evidence Rule
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Evidence of prior negotiations or contemporaneous agreements
Generally not admissable in court
The purpose is to keep out evidence that contradicts the contract
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Merger Clause
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An attempt to signal to judges that the written contract is intended to be the final and complete statement of their agreement
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Partial Integration
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Includes some, but not all or the terms in the agreement
Parol evidence is allowed if it supplements the contract, but not if it contradicts the contract
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Complete Integration
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Includes all of the terms in an agreement
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Obligor/Obligee
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Has a contractual obligation to do/recieve something
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Assignment
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Occurs when one party transfers their right to receive something under the contract to a third party
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Prohibited Assignments
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1. Where it is illegal
2. Anti-Assignment Clause
3. When it increases the risks or duties of the obligor
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Delegation
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Occurs when one party transfers their duty to perform to a third party
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Prohibited Delegations
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1. Duties personal in nature
2. Duties for which the delegatee's performance will vary significantly from the delegator's
3. Duties in contracts that forbid delegations
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Expectation (Compensatory) Damages
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Damages designed to put the plaintiff in the dollar position he would have been in had the contract not been fully performed
Ex: Sally's two jobs
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Punitive Damages
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Designed to punish the defendant and deter him and others from engaing in similar behavior
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Nominal damages
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typically 1 to 5 dollars, designed to signify fault, when no actual damage occured
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Reliance Damages
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Money spent on Reliance of a contract
(Promissory Estoppel Cases)
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Seizure
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When an officer, by means of physical force or show of authority, intentionally terminates or restrains a person's freedom of movement
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Terry Stop
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Can stop an individual when the officer has a reasonable suspicion based on articulable facts to believe the individual is or was involved in criminal behavior
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Mens Rea
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Guilty Mind
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Actus Rea
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Guilty Act
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Robbery
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Forceful and unlawful taking of personal property. (Violence)
If force or fear is absent, the crime theft
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Burglary
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Unlawfully entering of a building with intent to commit a felony
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Larceny
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The secretive and wrongful taking and carrying away of the personal property of another with the intent to permanently deprive the rightful owner of it's use or possesion
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Arson
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The intentional burning of another's dwelling
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Defenses to Crimes (8 IMIIDENJ)
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1. Infancy
2. Mistake of Fact
3. Intoxication
4. Insanity
5. Duress
6. Entrapment
7. Necessity
8. Justifiable Use of force
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Mistake of fact
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An attempt to prove the defendant made an honest and reasonable mistake that negates the guilty mind element of a crime
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Mistake of law
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not a legitimate defense
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6th amendment Rights
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1. Speedy/Public Trial
2. Trial by impartial jury
3. to be informed of accusations against you
4. right to confront witnesses
5. To have witnesses on your side
6. Right to counsel
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Search
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Occurs when government conduct violates a reasonable person's expectation of privacy
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Unlawful Search Exceptions Acronym
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E.S.C.A.P.E.
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E.S.C.A.P.E.
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1. Exigent Circumstances
2. Search Incident to a lawful arrest
3. Consent
4. Automobile
5. Plain View
6. Evidence obtained in an administrative search
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Arrest
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Must have probable cause or arrest warrant
The beginning of criminal proceedings
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Indictment
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A written accusation against the defendant
If a grand jury determines that evidence is adequate to bring defendant to trial
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Extortion
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Making threats for the purpose of obtaining money or property
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Bench Trial
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If defendant waives the right to a trial by jury, the judge acts as the sole fact finder
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Strict Liability Offense
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Offenses that do not require state of mind
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Search Warrant Necessities
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1. Issued By a neutral and detatched magistrate
2. Based on Probable Cause
3. describe the place and property with particularity
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Probable cause
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Liklihood that the suspect commited a crime or is planning to commit a crime
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M'Naghten
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Defendant does not know right from wrong
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Irresistable Impulse
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Due to mental illness, defendant was unable to control his actions or conform his conduct to the law
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Model Penal Code
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Combo of M'Naghten and Irresistible Impulse
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Durham Rule
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Defendant's conduct was a product of a mental illness
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Exclusionary Rule
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Illegally obtained evidence is inadmissible at trial
(not grand jury proceedings)
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Exclusionary Rule Necessities (2)
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1. Standing: Violation has to have been of the defendants rights, not someone else's
2. Evidence obtained in violation of 4th 5th or 6th amendments
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Exclusionary Rule Exceptions (4 KIIG)
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1. Knock & Announce (not really)
2. Inevitable Discovery
3. Independent Source
4. Good Faith (ignorance of the law is no excuse, except for cops)
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Specific Intent Crimes
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FIAT
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FIAT
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1. First Degree Murder
2. Inchoate Crimes
3. Assault
4. Theft
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Inchoate Crimes
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Unripe Crimes, crime has not yet happened
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Order of Inchoate Crimes
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1. Solicitation
2. Conspiracy
3. Attempt
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Conspiracy
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Agreement between 2 or more people to commit a crime
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Attempt
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When a person Takes a Substantial Step Towards committing the crime
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Solicitation
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inducing, urging, or commanding another to commit a felony, with the actual desire that the person commit the crime
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Involuntary Manslaughter
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Homocide committed with criminal negligence
(Aware of justifiable risk)
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BLS 342: EXAM 1