Law of Contracts Final

beneficiary

1) A person who receives a benefit from a contract. 2) A person who is entitled to the proceeds of a life insurance policy when the insured dies.

assignment

1) A transfer of property, or a right in property, from one person to another. 2) A designation of appointment.

lease

A contract for the possession of real estate in consideration of payment of rent.

injunction

A court order that commands or prohibits some act or course of conduct; form of equitable relief.

creditor beneficiary

A creditor who is the beneficiary of a contract made between the debtor and a third-person.

treble damages

A form of punitive damages or exemplary damages authorized by statute in some circumstances if warranted by the severity of the violation of the seriousness of the wrong.

buyer

A person or entity who makes a purchase.

seller

A person or entity who sells property it owns; a vendor.

donee

A person to whom a gift is made.

assignee

A person to whom a right is assigned.

incidental beneficiary

A person to whom the benefits of a contract between two other people accrue merely as a matter of happenstance. An incidental beneficiary may not sue to enforce such a contract.

assignor

A person who assigns a right.

merchant

A person who regularly trades in a particular type of goods.

legal remedy

A remedy available through legal action.

election of remedy

A requirement in the law that a party to a lawsuit must choose between different types of relief allowed by law on the same set of facts. The adoption of one has the effect of barring use of the others. The two mutually exclusive remedies are compensatory damages and restitution damages.

novation

A substituted contract that dissolves a previous contractual duty and creates a new one.

sale

A transfer of title to property for money or its equivalent from seller to buyer.

tort

A wrong involving a breach of duty and resulting in an injury to the person or property of another.

goods

All personal property or movables, commodities, including futures and fungibles.

reformation

An equitable remedy available to a party to a contract provided there is proof that the contract does not reflect the real agreement. Court rewrites contracts. Common method of avoiding unfairness and is often seen in mistake cases.

privity

An identity of interest between persons, so that the legal interest of one person is measured by the same legal right as the other; continuity of interest; successive relationships to the same rights of property.

permanent injunction

An injunction granted after a final hearing on the merits. Commonly used in contracts areas of covenants not to compete and construction contracts.

preliminary injunction

An injunction granted prior to a full hearing on the merits. Its purpose is to preserve the status quo until the final hearing.

accomodation

An obligation undertaken, without consideration, on behalf of another person.

usage of trade

Any practice or method of dealing having regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question.

nominal damages

Damages awarded to a plaintiff in a very small or merely symbolic amount.

compensatory damages (actual damages)

Damages recoverable in a lawsuit for loss or injury suffered by the plaintiff as a result of the defendant's conduct. Also called actual damages.

punitive (exemplary) damages

Damages that are awarded over and above compensatory damages because of the wanton, reckless, or malicious nature of the wrong done by the plaintiff. Awarded more frequently in tort cases than contract cases. Generally provide treble damages when awarded.

speculative damages

Damages that have yet to occur and whose occurrence is doubtful.

CISG

Governs international sales between merchants.

restitution

In both contract and tort, a remedy that restores the status quo; returns a person who has been wrongfully deprived of something to the position occupied before the wrong occurred. Can be awarded in a breach contract claim or a quasi-contract claim.

consequential damages

Indirect losses; damages that do not result form the wrongful act itself, but from the result of the aftermath of the wrongful act.

Uniform Commercial Code

One of the uniform laws, which has been adopted in much the same form in every state. it governs most aspects of commercial transactions.

ex parte

Refers to an application made to the court by one party without notice to the other party.

equitable relief (equitable remedy)

Relief other than money damages. Given when monetary damages are either inappropriate or inadequate as a remedy for the injured party.

temporary restraining order (TRO)

Relief that the court is empowered to grant, without notice to the opposing party and pending a hearing on the merits, upon a showering that failure to do so will result in "immediate and irreparable injury, loss or damage."

reliance

Remedy to prevent unjust enrichment; quantum meruit. Can be awarded under promissory estoppel.

rescission

The abrogation, annulment, or cancellation of a contract by the act of a party. Rescission may occur by mutual consent of the parties. A form of it called unilateral rescission, which is an involuntary cancellation or termination of the contract due to a breach by one of the parties to the contract, is very common in mistake, fraud, and misrepresentation cases.

delegation

The act of conferring authority upon, or transferring a duty, to another.

quantum meruit

The doctrine of quantum meruit makes a person liable to pay for services or goods that he or she accepts while knowing that the other party expects to be paid, even if there is no express contract, to avoid unjust enrichment.

specific performance

The equitable remedy of compelling performance of a contract. Commonly used when real estate is involved.

lessee

The person receiving the right of possession of real property, or possession and use of personal property, under a lease. A lessee is also known as a tenant.

damages

The sum of money that may be recovered in the courts as financial reparation for an injury or wrong suffered as a result of breach of contract or a tortuous act.

intended beneficiary

Third party who will benefit from contract. Not directly involved in contracting process, but it will affect his or her rights.

donee beneficiary

Third-party beneficiary to a contract. The benefit is in the form of a gift which may be revoked.

firm offers

Under the Uniform Commercial Code, a merchant's written offer to buy or sell goods that will be held open for a period of time without requiring consideration to be valid. "Reasonable" period of time according to U.C.C. is not to exceed three months.

third-party beneficiary contract

a contract made for the benefit of a third person.

mitigation of damages

a doctrine in the law which requires an injured party to avoid or lessen the consequences of the other party's wrongful act.