BUA 220 - Ch. 9

when is a contract revocable?

- any time before acceptance - if it is not "irrevocable" as written in contract

What types of contracts generally must be in writing?

- contracts for the sale of land - contracts that cannot be performed within a year of formation - collateral, or secondary contracts - under the UCC, contracts for the sale of goods exceeding $500

when might silence by the offeree constitute as acceptance of the offer

- when an offeree takes the benefit of the offered services, given the opportunity to reject them and knowing that they were offered with the expectation of compensation -when the offeree has had prior dealings with the offeror

According to the E-SIGN Act, if a state enacts the UETA with modifications, when does state law govern?

-if the state procedures are consistent with the E-SIGN Act -if no priority is given to any techonology -if the law was enacted after E-SIGN and refers to it

What type of people are not contractually capable?

-minors -institutionalized peoples -mentally handicapped people (people with guardians) -heavily intoxicated people

How can one revoke a contract by ordinary means?

-oral/written repudiation of the contract -performance of some act(s) that is(are) inconsistent with those in the contract

What are the four requirements of a valid contract?

1. Agreement 2. Consideration. 3. Legality. 4. Contractual capacity.

What are the two major defenses to the enforceability of an otherwise valid contract?

1. form 2. voluntary consent

Generally, what terms must be included in a contract?

1. identification of the parties 2. the identification of the object or subject matter of the contract (including the quantity when necessary), including the work to be performed, with special identification of such goods, land, and services 3. the consideration to be paid 4. time of payment, delivery, or performance

What are the methods by operation of law for the termination of a contract?

1. lapse of time 2. death of offeror or offeree - as long as it is not irrevocable 3. destruction of the subject matter 4. change in legality making contract illegal

What are the three elements for an offer to be effective and binding?

1. offeror must have a serious intention to be bound by the contract 2. the terms of the offer must be reasonably certain so that the parties and court can ascertain the terms of contract 3. the offer must be communicated to the other party

What are the 3 requirements of an implied contract?

1. plaintiff furnished some property or service 2. plaintiff expected to be paid for that property or service and the defendant should have known that payment was expected 3. the defendant had a chance to reject the service or property and did not

What is the first piece to contractual considertaion and what does it consist of?

1. something of legally sufficient value must be given for he promise consists of: - a promise to do something that one has no prior legal duty to do - performance of an action that one is otherwise not obligated to undertake -forbearance

What contracts/documents are exempt from the E-SIGN Act

1. wills 2. foreclosures 3. court papers 4. divorce decrees 5. evictions

What are the sources of contract law?

Common law governs all contracts except when it has been modified or replaced by statutory law, such as the Uniform Commercial Code

According to the E-SIGN Act, if a state enacts the UETA without modifications, what governs online contracts?

State law governs

According to the E-SIGN Act, when does the E-SIGN Act preempt state law?

When modifications to the UETA are inconsistent with the E-SIGN Act.

implied contract

a contract formed through the conduct of the parties

express contract

a contract in which the terms of the agreement are fully and explicitly stated in words, oral or written

informal contract

a contract that does not require a specified form or formality in order to be valid

executed contract

a contract that has been completely performed by both parties

voidable contract

a contract that may be legally avoided at the option of one of the parties

unilateral contract formation

a contract that results when an offer can only be accepted by the offeree's performance - "promise for act"

What is a record in terms of the UETA?

a record is info inscribed in an electronic, tangible medium that is retreivable

e-signature

as defined by the Uniform Electronic Transactions Act, "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record."

counteroffer

changes to the original offer that automatically terminate that offer and substitute new ones

usury

charging of an illegal interest rate

mirror-image rule

common law rule that requires, for a contractual agreement to be valid, that the terms of the offeree's acceptance match exactly the terms of the offeror's offer

void contract

contract having no legal force or binding effect

formal contract

contract that by law requires a specific form, such as being executed under seal, to be valid

executory contract

contract that has not been fully performed

e-contracts

contract that is entered into cyberspace and is evidenced only be electronic impulses

valid contract

contract that results when all four elements necessary for contract formation are present

shrink-wrap agreement

contract whose terms are packaged with a product in the form of a document and use of the product is acceptance

substantive unconscionability occurs when...

contracts are oppressive

exculpatory clause

contractual clause that releases a party from liability in the event of monetary or physical injury, no matter who's fault

mailbox rule

if the contact is being communicated through mail, acceptance is valid when it is mailed by the offeree, not received by the offeror

revocation

in contract law, the withdraw of an offer by an offeree

disaffirmance

legal avoidance of a contactual obligation

agreement

meeting of minds as evidenced by offer and acceptance

rescission

mutually chosen, conduct-forced, or court ordered remedy whereby a contract is cancelled

option contract

promise to hold an offer open for a specific amount of time for a payment -offeree has the right but not the obligation to take the offerer up on that promis within the specified time period

E-SIGN Act

refers specifically to the UETA and states that if a state has enacted a unifrom version of the UETA, then the E-SIGN Act does not preempt the UETA; no contract, record, or signature may be denied legal effect solely because it is an electronic form

forbearance

refraining from an action that one has a legal right to undertake

What does the Uniform Electronic Transactions Act do?

removes barriers to e-commerce by giving e-documents the same binding legal effect as written ones

preexisting duty rule

rule that performance of an act that a party has already contractually agreed to perform cannot be used as consideration for another/modified contract

past-consideration

something given or done in the past that ordinarily cannot be consideration for a present contract

Statute of Frauds

state-specific statute specifying what types of contract must be in writing to be enforceable

browse-wrap terms

terms and conditions of use that are presented to an Internet user at the time certain products, such as software, are being downloaded but that need not be agreed to before being able to install or use the product

procedural unconscionability occurs when...

the contract involves inconspicuos print, unintelligable language, or the lack of an opportunity to read a contract and understand its terms/ask questions about their meaning

privity of contract

the relationship that exists between the promisor and promisee of a contract

objective theory of contracts

theory under which the intent to form a contract will be judged by outward, objective facts as interpreted by a reasonable person, rather than by the party's own secret, subjective intention

What is the second piece to contractual consideration?

there must be a bargained for exchange

third party beneficiary

third party who is not a party of the contract, but receives some sort of benefit through the promise of the contract

intended beneficiary

third party who is the intended beneficiary of a contract and has a right to sue the promisor

delegation

transfer of contractual duties to a third party

assignment

transfer of contractual rights to a third party

bilateral contract formation

type of contract that arises when a promise is given in exchange for a return promise - "promise for a promise"

Do bilateral or unilateral contacts not require formal acceptance? Why?

unilateral contracts don't typically require written/formal acceptance. The performance of the act is considered acceptance.

unenforceable contract

valid contract rendered unenforceable by some law or statute

consideration

value given in return for a promise or performance

What terms are usually included in shrink-wrap agreements?

warranties, remedies, and other issues associated with the project

unconscionable

word for a void contract that is such because one party, as a result of their disproportionate bargaining power, is forced to accept terms that are unfairly burdensome and that unfairly benefit the dominating party