MANGMT 3540: EXAM 2
130 Cards in this Set
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Contract
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A legally enforceable promise or set of promises
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Freedom of Contract
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Freedom of Contract: Contract clause of the U.S. Constitution - states shall pass no laws impairing the legal obligation of contract
Ex: Declaration of Independence - original draft had property, no limitation on where we live, work, etc.
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Freedom from Contract
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The ability to avoid certain oppresive contracts, involuntary signining occurred
Ex: Fraud and Durress
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Four Requirements for a Valid Contract
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1. Mutual Manifestation of Assent
2. Consideration
3. Capacity
4. Legality
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Mutual Manifestation of Assent
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Consists of offered acceptance
Viewed Objectively
Courts don't know what you are thinking but what is said
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Consideration
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Defined: Value given to detriment suffered in exchange for a promise, allowing the promise to be enforceable
A bargain
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Capacity
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Rule of Law: Minors, Mentally incompetent persons, and highly intoxicated persons may not enter a valid contract
Ex: Drunk person can not give away possessions
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Legality
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Definition: A contract involving illegality is void
Those who make a deal involving a crime should not expect a court to enforce the "contract"
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Two Primary Defenses to a Contract
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1. Lack of Reality of Consent (Assent)
2. Noncompliance with Formalities
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Lack of Reality of Consent (Assent)
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Described: Where assent to a contract is not real or not voluntary, the contract is voidable
Ex: Fraud and Durress
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Noncompliance with formalities
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Formalities: Some contracts must be formalized by a writing or a witnessed writing to be enforceable
Ex: Must have signed writing for real estate
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Types of Contracts
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1. Bilateral
2. Unilateral
OR
1. Express
2. Implied
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Bilateral Contract
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A promise in exchange for a promise
"I sign - Bid" and "You sign - Acceptance"
Offer contemplates a promise as acceptance
Duties of offeror and offeree arise on verbal acceptance
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Unilateral Contract
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A promise in exchange for a completed act
Offer contemplates acceptance by performance
Duty offeror arises upon completed performance
Offeree has no duty
Ex: Reward for finding a dog
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Express Contract
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Created by the specific words of the parties
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Implied (in fact) Contract
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Created by the conduct of parties
Ex: Haircut, actions imply the contract, getting your hair cut
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Implied in law (Quasi Contract)
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Created by a court when one party unjustly enriches another party
Ex: Hospital - don't agree to pay bill but unconscious, kid mows lawn and you sit there must pay
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Valid Contract
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Enforceable by all parties
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Void Contract
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Enforceable by none of the parties
Ex: Illegal contract
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Voidable Contract
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May be avoided by one or more parties
Ex: If one person can either choose to do it or not do it
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Unenforceable Contract
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The four requirements for a valid contract are met, but the contract is not binding because of statute
Ex: Statue of Frauds or Limitation
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Executed Contract
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All performance is complete
Bought, Delivered, Paid
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Executory Contract
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Part of the performance is lacking
Ex: Mortgage
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Interpretation (when language is not there)
Objective Nature (manifestation of assent
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A judge looks at the words and actions of the parties rather than what they were thinking
Ex: Lucy vs. Zehmer - Zehmer was secretly joking because he thought Lucy had no money but then lost
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Rules of Construction (Interpretation)
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1. Plain Meaning
2. Entire Writing
3. Meaning of Words
4. Conflicts of Terms
5. Ambiguous Terms
6. Surrounding Circumstances
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Rules of Construction
Plain Meaning
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If the words of the contract are clear in their meaning, the courts will enforce the contract as written - generally no extrinsic (outside the contract) evidence allowed
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Rules of Construction
Entire Writing
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The court will do its best to enforce the entire contract when there is a potential conflict of terms.
Ex: A lease requiring the clearing of timber:
a. 7,000 acreas in 10 years to be cleared by tenant
b. 4,000 acreas in the first 3 years
c. 700 acreas a year after first three
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Rules of Construction
Meaning of Words
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Ordinary words: apply dictionary definition
Legal terms: apply legal definition
Technical terms: apply technical meaning in the relevant trade or profession
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Rules of Construction
Conflict of Terms
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Review the entire contract and apply the most consistent with the intent of the parties
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Rules of Construction
Ambiguous Terms
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Primary rule: Interpret against the drafting party
Ex: Insurance Policy or Lease
Priorities of terms when resolving conflict or ambiguity:
a. Hand-written terms have first priority
b. Type-written terms have second priority
c. Pre-printed terms have third priority
An ambiguity…
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Rules of Construction
Surrounding Circumstances
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Courses of performance: the way the parties performed the contract being interpreted
Ex: First 3 insured and 4th uninsured then damaged, buyer will win, not specific in contract
Course of dealing: the way the parties performed previous similiar contracts
Ex: Same case, buyer wins bec…
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Mutual Manifestation of Assent
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Offer and Acceptance: Both offer and acceptance are viewed objectively (not what you thought, but what you said and did)
Standard objectivity: Look at words spoken or written and conduct and what they would mean to a reasonable person
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Offer
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A specific offer and a specific demand in a contract setting
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Four "Non-Offers"
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1. Expressions of Opinion
2. Statements of Intention
3. Preliminary Negotiations
4. Certain Advertisements and Auctions
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Expressions of Opinion
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Description: A statement as to general quality or a prediction
Ex: "My car is worth $1,000." or "Your leg will take a few days to heal."
Estimate (Opinion) vs. Bid (Offer)
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Statements of Intention
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Description: A statement of what one may do in the future
Ex: "I plan on selling my car when she goes away."
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Preliminary Negotiations
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Description: Inquiries or general discussions of potential contract terms
Ex: "How much would you need to sell?"
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Certain Advertisements and Auctions
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With Ads, the danger is multiple acceptances.
Ads are not offers unless they are: very specific eliminating multiple acceptances - "first come, first serve" for a mink scarf
Auctions are not offers unless they are: advertised "without reserve" if with reserve, owner can reposses obj…
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Requirements for Valid Offer
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1. Intention
2. Definiteness
3. Communication
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Requirements for Valid Offer
Intention
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A serious and objective intention by the offeror to be bound.
Offers made in obvious anger, jest, or excitement are not binding.
Ex: Selling a car for $5 or offering to
Suppose to win Mercedes and didn't but sued and got money
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Requirements for Valid Offer
Definiteness
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Terms definite enough to: ascertain(to be able to tell) the terms of the contract
Including: Names, Transfers(description), Quantity, Price, Time, Important - Delivery Terms
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Requirements for Valid Offer
Communication
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Offers must be communicated to the offeree
Requires:
1. Commmunication by offeror
2. Receipt by offeree
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When does an offer terminate?
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1. Revocation of offeror
2. By Lapse of Time
3. By rejection of counteroffer
4. By operation of Law
5. By terms of offer
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By revocation of offeror
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Revocation typically possible any time up to acceptance even if the offeror said he would keep it open for a certain period of time
Ex: Keep open for a week but someone offers more
Exceptions: Option contracts(hold open if given money); a merchant's firm offer
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By lapse of time
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Stated Time: this offer is open for 30 days
Reasonable time: depends on goods and method of communication (if not stated)
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By rejection or counteroffer
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Any manifestation of rejection or a counteroffer terminates the offer
Mirror image rule: an acceptance which contains new or varying terms is considered a rejection and counteroffer
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By Operation of Law
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Death or incompetence of either party
Intervening illegality (performance becomes illegal, e.g., a zoning change after offer but before acceptance)
Destruction of the subject matter of the contract
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By terms of Offer
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Ex: Limit exposure by prefacing in contract finance agreements
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Requirements for Valid Acceptance
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1. Acceptance by whom
2. Terms of acceptance
3. Must be communicated
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Requirements for Valid Acceptance
Acceptance by whom
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Must be made by the offeree (class of offeree group of persons who could accept)
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Requirements for Valid Acceptance
Terms of Acceptance
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Must be unconditional, unequivocal, and under the same terms
1. Unconditional: no "if", "provided that"
2. Unequivocal: "sounds good", no maybes
3. Same terms - mirror image rule, a variance in terms rejects the offer becomes a counter offer
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Requirements for Valid Acceptance
Must be communicated
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Silence is not acceptance absent prior agreement
Timely acceptance:
a. Acceptance is effective when correctly mailed (or sent by similiar means) - even if never received, according to mailbox rule, can change in offer (or receipt)
b. Remember: offers and revocations must be received …
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Acceptance and Unilateral Contracts
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Silence is not acceptance absent prior agreement
Timely acceptance:
a. Acceptance is effective when correctly mailed (or sent by similiar means) - even if never received, according to mailbox rule, can change in offer (or receipt)
b. Remember: offers and revocations must be received …
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What does common law go for
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Land, Insurance, Services, and Employment
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UCC - Article II
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Applies to everyone and has special rules for merchants
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Introduction to Uniform Commerical Code
Sale
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Passage of title from Seller to Buyer for a price (consideration)
1. Not lease (no passage of Title)
2. Not a gift (no price)
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Introduction to Uniform Commerical Code
Definition of Goods
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Things tangeable and movable
1. Tangeable: has physical existence (desk vs. promissory note and patent)
2. Goods vs. Services: look at the primary purpose of the contract
3. Movable: can be carried from place to place
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Introduction to Uniform Commerical Code
Merchant
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A dealer in goods of the type contracted for
A person who holds himself out as having special knowledge as to goods of the type contracted for
A person who employs a merchant as an agent
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Variation in UCC - Otherwise Contract Law Applies
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Standards of dealing
- Good faith implied in every contract
- Higher standards for merchants: reasonable commercial standards for fair dealing in trade
Offer:
- Offer may have open terms including price; UCC fills in the blanks
1. Price: reasonable at time of delivery
2. Payment t…
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Firm Offer Rule
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If a merchant in a signed writing promises an offer will be kept open, the merchant is bout to hold open for stated rule or reasonable time, not greater than 3 months (Missouri Rule) - Some states say 90 days
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UCC Acceptance - Sale of Goods
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Qualifies the Mirror Image Rule
1. An acceptance is valid despite new terms
2. Exception: Acceptance made conditional on new terms is a rejection and counteroffer - if, provided, on the condition then NOT ACCEPTANCE
3. Additional terms considered proposals for new addition to contract
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Second Requirement for a valid Contract
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Quid Pro Quo - this for that: A bargained-for exchange of consideration on each side is normally necessary for a contract to be enforceable
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Consideration
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Volume given or detriment suffered in exchange for a promise, making the promise enforceable
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Four Types of Sufficient Consideration
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1. An act, also payment of money
2. Giving up the exercise of a legal right (detriment suffered)
3. A change in legal status
4. A promise to do any of the first three
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Types of Sufficiency and Adequacy
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Sufficiency Required - Enough consideration to make the contract enforceable (as long as it is more than nominal consideration, it is sufficient)
Adequacy or fairness is not required. (for a valid contract)
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Four Types of Insufficient Consideration
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1. An Illusory Promise is Insufficient Consideration
2. A Gratuitous Promise is Insufficient Consideration
3. Past Consideration is Insufficient Consideration
4. A Promise to Perform a Pre-Existing Duty is Insufficient Consideration
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An Illusory Promise is Insufficient Consideration
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A promise with no substance behind it - subject to the right of the promisor, if everything can be taken away
1. Requirements contracts are valid: promises to buy all the goods you need for a certain period of time (Ex: To buy all wood you need from a company)
2. Output contracts are …
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A Gratuitous Promise is Insufficient Consideration
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1. Defined: A promise to make a gift or a moral obligation
2. Ex: pomise to give all land in will or a promise to pay surgeon if no bill then moral obligation
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Past Consideration is Insufficient Consideration
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1. The promised consideration has already been performed prior to promise to do it
2. Ex: If you don't know it then it is a promise
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Pre-Existing Duty Rule
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I already have a duty to do what I promised
If a duty existed prior to the promise to do it, then the promise to fulfill that duty is not valid consideration
Ex: Policeman offers storekeeper money to arrest burgulars
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Exceptions to Pre-Existing Duty Rule
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1. Recission and new contract - out with old; in with new - gets around modification problem, must re-sign both sides
2. Promise to pay an unliqudated debt
3. Compositions with creditors - "work outs", agreement with creditors to pay less than owed
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Exceptions to Consideration Rule
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1. Promises to pay debts barred by statute of limitations
2. Reaffirmation agreements in bankruptcy (to agree again)
3. Charitable Subscriptions (any promise to make a gift to charity)
4. Promissory Estoppel
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Promissory Estoppel
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1. A promise is made by the defendant
2. Plaintiff suffers detriment by reasonable reliance on the promise
3. Enforcement of the Promise is necessary to avoid injustice
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Consideration under the U.C.C.
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Contract Modifications
Need no new consideration to be binding.
Firm Offer
Duty to keep offer open
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Capacity to Contract: Levels of Competence
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1. Full Competence
2. No Competence
3. Limited Competence
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Full Competence
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All parties have full legal capactiy.
Result: Contract is enforceable
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No Competence
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One or more parties both have been adjudged(adjudicated) mentally incompetent
Result: Contract is void - not enforceable by either party (as if it never were)
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Limited Competence
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One or both are miniors, highly intoxicated, or mentally incompetent (without adjuidication)
Result: Contract is voidable by the person with the disability
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Disaffirmance
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Avoidance of a contract by a person with a legal disability (incapacity)
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Typical steps to disaffirmance
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1. Expressing the intent, by words or conduct, not to be bound to the contract - while under a disability or within a reasonable time thereafter
2. Restoration: Requires return of property purchased before disaffirmance
3. Restitution: Requires payment for any damages to property pr…
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Types of Ratification
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1. Express
2. Implied
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Express Ratification
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Using specific language to manifest agreement to the contract after a legal disability removed
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Implied Ratification
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Failure to disaffirm within a reasonable time after the removal of a disability is an implied ratification (no longer voidable)
Ex: Minor bought motorcycle and drove for 6 months (turned 18) --> then tried to return it and he couldn't
Minor took parachute lessons (turned 18) --> kep…
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Necessaries
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1. Items necessary for health and maintenance, such as: food, clothing, and medical care
2. Incompetent persons are often partially liable for necessaries so that they have more chance of receiving what they need to live
3. Flexible standard: ex., car may be if needed for job
Eff…
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Minors
Definition of Minor
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1. Someone who has no reached age of majority(adulthood)
2. Missouri - age 18 for most purposes
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Minors
Three Requirements for Disaffirmance
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1. Express the intent not to be bound within the required time period.
2. Fulfill only the duty of restoration under the majority rule (the rule in most states). - over 1/2 the states
3. Must be a type of contract for which disaffirmance is allowed - three types of contracts are not…
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Minors
Minor's misrepresentation and disaffirmance
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1. What if a minor lies about age?
2. All states require the minor who lies about age to pay at least the reasonable value of goods or services.
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Minors
Requirement for minor's liability for necessaries
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A minor must NOT be under care of a parent or guardian with the ability to pay for the minor's needs (can disaffirm for liable of reasonable value)
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Intoxicated Persons
Defined
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Someone so intoxicated at the time of the contract that he/she does not understand the nature or substance of the transaction.
1. Nature: Doesn't know it's a contract
2. Substance: Doesn't know subject matter or consequences
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Intoxicated Persons
Problem of Proof
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Lucy vs. Zehmer: fact that Zehmer was "high as a Georgia pine" not enough to avoid land contract where he apparently knew what he was doing. (Must have evidence not just I don't remember)
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ntoxicated Persons
Three Requirements for Disaffirmance
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1. Manifest an intent not to be bound while intoxicated or within reasonable time after becoming sober
2. Duties of Restoration and
3. Restitution (pay for damages)
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Intoxicated Persons
Express or Implied Ratification
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1. Express: Specific language showing intent to go along with contract
2. Failure to disaffirm within a reasonable time after becoming sober = implied ratification
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Intoxicated Persons
Necessaries
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The intoxicated person is liable for the reasonable value of goods or services even if the contract is disaffirmed.
(Remedy: quasi-contract, You get: reasonable value)
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Incompetent Persons
Defined
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Persons who at time of contract do not know the nature or substances of a transaction because of a mental condition
1. Adjudicated - Contract is void
2. Non-adjudicated - Contract is voidable and may be disaffirmed
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Incompetent Persons
Lucid Intervals
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1. Periods when the person with the incapacity is clear minded (must prove they there were lucid)
2. Result: contract is valid
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Incompetent Persons
Requirements for Disaffirmance
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1. Manifestation of intent - while incompetent or within a reasonable time after becoming competent
2. Duty of Restoration
3. Duty of Restitution
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Incompetent Persons
Express or Implied Ratification
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1. Express - verbal statement showing intent to go along with the contract
2. Implied - failure to disaffirm within reasonable time after mental capacity is restored
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Incompetent Persons
Necessaries
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The incompetent person is liable for the reasonable value of necessities even if the contract is disaffirmed
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Illegal Agreements
Defined
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An agreement whose purpose or performance is illegal
(VOID - illegal agreement because both sides are at fault)
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Types of Illegal Agreement
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1. Violation of Usury laws
2. Gambling Laws
3. Blue Laws (Sabbath Laws)
4. Contracts by unlicensed professionals
5. Contracts to perform illegal acts
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Types of Illegal Agreement
Violation of Usury laws
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a. Typically cannot collect interest (illegal part of the contract)
b. Some states: can't collect on entire contract
c. Ex: Guy bought car with usury contract, got to keep car and pay nothing
(Maximum interest rate on a transaction and exceeding that)
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Types of Illegal Agreement
Gambling laws
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Missouri: Sec. 434.010: a gambling contract is void, but the loser may sue to recover loses; 3 month statue of limitations
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Types of Illegal Agreement
Blue laws (Sabbath laws)
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Certain contracts prohibited on Sundays
a. History - Use to not write checks on Sunday for certain things
b. Food and medicine were usually excepted
c. Now very few contracts are illegal on Sundays
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Types of Illegal Agreement
Contracts by unlicensed professionals
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a. I.e., a quack
b. From surgery to cutting hair, a license is necessary.
(To get money must be licensed)
(Ex. Funeral home director, real estate, insurance)
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Types of Illegal Agreement
Contracts to perform illegal acts
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a. Prohibition of contracts for sexual services defeated "palimony" suits
b. COntracts to purchase or transport contraband, such as drugs
c. Hiring a hit man to dispose of your anything
Ex: Marvin vs. Marvin - Live-in mistress, opens up not to prostitution but for value for a women a…
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Contracts Against Public Policy
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1. Exculpatory Contracts
2. Agreements in restraint of trade
3. Torts
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Contracts Against Public Policy
Exculpatory Contracts
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Attempt to excape liability (culpability) of the party at fault
1. Employers typically can't use with employees - would be void
2. Professionals typically can't use with clients or patients (promote carelessness)
3. More likely to be against public policy if the exculpatory clause is p…
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Contracts Against Public Policy
Agreements in Restraint of Trade
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1. Price fixing schemes
2. Market divisions
3. Covenants nto to compete are enforceable if:
a. If in connection with the sale of a business or an employment contract and not too broad.
b. Ex: Dentist buys rights to practice and the old can't compete within certain radius for 3 years (…
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Contracts Against Public Policy
Torts
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Contracts involving commission of a tort are against public policy
Ex: most torts are also illegal, some not illegal, freedom of speech --> hiring someone to defame a candidate
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Results of Illegality or Violations of Public Policy
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A. General Rule: contract is void
1. Neither may enforce the contract, even the injured party.
2. Theory: In Pari Delicto - "In equal falut"
B. Exception
1. Protected classes, such as minors or employees
2. Ex: Minor hired to change targets by driving his dirt bike, can't do until 16…
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Statue of Frauds
Formalities
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1. A defense to enforceability of an otherwise valid contract
2. An oral agreement which should be in writing is classified as unenforceable
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Statue of Frauds
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A statute which requires certain types of contracts to be in writing to be enforceable
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Statue of Frauds
History and Origins
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1. The fraud corrected by the statute of frauds was the fraud of purgery not fraud in deceiving another person into entering a contract.
2. In early common law, interested parties could not testify at early common law, so contracting parties would hire a false witness to tell their sid…
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Statue of Frauds
Terminology
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1. If a contract must be in writing for enforceability, it is said to be inside or within the statute of frauds.
2. If an oral contract is enforceable, the contract is said to be outside the statute of frauds.
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Types of Contracts Which Must be in Writing
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1. Sale of Interest in Land
2. Performance Beyone one Year
3. Collateral Promises
4. Pomises Made in COnsideration of Marriage
5. Sale of Goods Priced at $500 or more
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Statute of Frauds
Sale of Interst in Land
Entire Interest
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If ownership of land may be divided into various parts, the entire interest is all of the parts possible
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Statute of Frauds
Sale of Interst in Land
Easements
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1. The right to use a portion of land without owning it
2. Examples: Roadway and utility (most common) easements
(To get in and out of land)
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Statute of Frauds
Sale of Interst in Land
Profits
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1. The right to come onto the land and remove something from it
2. Examples: Mineral rights and timber rights
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Statute of Frauds
Sale of Interst in Land
Mortagages
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1. A lien on land - a lien is an interst which allows a sale of property to collect a debt (help secure the collection of debt)
2. A mortgage gives the right to foreclose on land if an obligation is breached.
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Statute of Frauds
Sale of Interst in Land
Life Estate (Life Tenancy)
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1. The right to exclusive possession of land for a term based upon someone's lifespan.
2. Example: Right to have land yourself not with landlord, can be on anyone's life
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Statute of Frauds
Sale of Interst in Land
Leases
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Some leases must also be in writing to be enforced as agreed
(Anything other than month to month)
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Statute of Frauds
Performance Beyone one Year
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A. Defined
If performance of a contract MUST take more than one year, the contract must be in writing to be enforceable
B. Possibility of Performance
1. The mere possibility of performance within one year, however takes the contract outside the statute so an oral agreement is enforce…
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Statute of Frauds
Collateral Promises
Defined
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1. A promise of guarantee made to a creditor to pay another's debt only if the other does not pay
2. There must be at least three parties involved and at least two promises
a. Example:
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Statute of Frauds
Collateral Promises
Three Situations where the statue of frauds does not apply
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1. A promise to be jointly liable - on the same bases as the debtor
Ex: A child and parent hire a layer to represent child, both sign payment, parent signs to be equally responsible (only 1 promise)
2. A promise to be primarily liable - liable instead of the debtor
Ex: Parent says ju…
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Statute of Frauds
Promises Made in Consideration of Marriage
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A. Promise of Dowry
1. A promise made to prospective husband to pay money or property upon the marriage of a daughter
2. Dowries were traditional under early common law, perhaps because the marriage relieved the duty of the father to support the daugher for life
B. Prenuptial agreeme…
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Statute of Frauds
Sale of Goods Priced at $500 or more
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A. Sale of Goods Review:
1. Article 2 of the UCC
2. Goods: Things tangible and moveable
3. Applies to everyone, but has special rules for merchants
B. When Writing Required for Sale of Goods
1. When goods priced at $500 or more
2. Not necessarily when goods valued at $500 or more
…
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Writing
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A. What is required?
At common law (contracts for land or services), the writing must be sufficient to show the essential elements of the contract.
B. What if no writing?
Contract is considered unenforceable
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Exceptions to teh Statute of Frauds
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A. Performance
Complete performance by one party removes the contract from the statute of frauds
B. Admissions of terms
When the defendant admits there is a contract, the contract is enforceable to the extent of the admission. (Admit agreement of 8 computers, enforced up to 8 not the 1…
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Parol Evidence Rule
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A. Definition
Evidence of prior or contemporaneous (at the same time) oral statements or agreements is inadmissable to alter the terms of a written contract
B. Prior Written Agreements
1. Prior written agreements are also inadmissable to alter the contract
2. Example: Can't override…
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UCC Variations - Sale of Goods
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A. Statute of Frauds
1. Need only sufficient writing to show a contract because other terms are filled in.
a. Quantity and description often enough as to terms.
b. Signature or other authentication of writing suffices
2. Between merchants - one signature is enough if no objection by…
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MANGMT 3540: EXAM 1