Legal Chap 8 & 9

mutual mistake (bilateral mistake)

when there is a mutual mistake as to a material fact inducing a contract, rescission is appropriate. a party disadvantaged by a mutual mistake can void the contract; a party who makes a unilateral mistake suffers the burden of that mistake.

voidable contracts

Fraud Misrepresentation Duress Undue Influence Mistake Mutual Mistake Unilateral Mistake

怎么算offer?

Intent Definiteness Termination of Offer

expressed contract

Many contracts arise from interactions in which parties actually discuss the promised terms of their agreement.

executory contract

The relationship is still ongoing because the parties have not yet performed their promises

actual authority

expressed in writing

mirror image rule

for an acceptance to create a binding contract, standard contract law requires that the acceptance must mirror" the offer, that is , must match it exactly.

fraud

fraud involves an intentional misstatement of a material fact that induces one to rely justifiably to his or her injury.

unenforceable contract

if a nonperforming party has a justifiable reason for noncompliance with a promise, the result is an unenforceable contract.

covenant not to compete 竞业禁止协议

important in protecting er from having the ee they train leave them and compete against them

misrepresentation

misrepresentation is simply a misstatement without intent to mislead.

offeror/ offeree

person making the offer/ the person to whom the offer is made

quasi-contract

quasi-contracts are a judicial remedy to prevent one party from receiving unjust enrichment. note that the remedy of quasi-contract generally applies only when no actual contract exists to cover the dispute.

minors

不受约束 Under age 18 除了，Exceptions for 'necessaries of life' Voidable/disaffirm

frolic and detour

不在工作范围内的错，不算er的锅

rescission

取消，废除

parol evidence rule

- parties to a complete and final written contract cannot introduce oral evidence in court that changes the intended meaning of the written terms - only applies to evidence of oral agreements made at the time of / prior to the written contract. after不apply Oral modification after contract is written may occur.

Acceptance

Bilateral- 2 Promises Unilateral- Performance Mirror Image Rule Silence ≠ Acceptance Deposited Acceptance, or Mailbox Rule

adhesion contract

a contract between two parties, where the terms and conditions of the contract are set by one of the parties, and the other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position.

firm offer

a firm offer exists when a merchant offering goods promises in writing that the offer will not be revoked for a period not to exceed 3 mos.

voidable contract

a voidable contract is an agreement when at least one party has the right to withdraw from the promise made without incurring any legal liability.

respondeat superior

agent在工作范围内犯的错，算employer的锅

ratification

agent没有权利, principle批准，亲自来。

accord and satisfaction 和解和清偿

an agreement and the payment of XX to resolve a dispute over the amount owed is an accord and satisfaction

doctrine of promissory estoppel 不得反悔原则

an important exception to the rule requiring consideration to support a promise is the doctrine of promissory estoppel this doctrine arises when a promisee justifiably relies on a promisor's promise to his or her economic injury. often is used to prevent a party who has made a unilateral offer from withdrawing the offer after the requested work has begun.

implied-in-fact contracts

arise from the conduct of the parties rather than from words.

implied authority

arises from the position Alex holds as evening manager and by the history of the express authority situations.

unilateral mistake

arises when only one of the parties to a contract is wrong about a material fact.

enforceable contract

courts uphold the validity of such promises

option

in contracts that are not between merchants selling goods, a promise to keep an offer open for a certain time period must be supported by the offee's consideration. Such agreement to not revoke an offer is called an option. 比如看房子，交定金研究一下，这算个consideration.

release

release usually occur before a contracting party fails to perform.

apparent authority

把Alex解雇了,alex去找terry以公司名义买东西, terry不知道,也算liability, 因为是apparent authority

what is consideration in bi/unb contract?

1. in a bilateral contract, the binding promises are the consideration. 2. in a unilateral contract, the consideration of one party is a promise; the consideration of the other party is performance of an act.

important points about consideration

1. need not to be money 2. must be bargained for (prior consideration is no consideration.) 3. agreement not to sue (when reasonable grounds for a lawsuit exist, an agreement not to sue is consideration to support a promise) 4. preexisting obligation does not support consideration. except sale of goods contract.

five essential elements of forming a valid contract

1. offer 2. acceptance 3. consideration 4. capacity 5. lawful purpose

bilateral contract

A bilateral contract is an agreement containing mutual promises. involve a promise-for-promise exchange. two promises, two rights, and two duties.

contract

A contract involves a promise or commitment (or exchanges of promises or commitments) to do or not to do something.

unilateral contract

A unilateral contract is an agreement with only one promise, and only one party is committed to perform. exist when a promise is made to motivate an action. one promise, one right, and one duty.

executed contract

The relationship is complete because the parties have performed their promises

trading partnership

a partner in a trading partnership, that is , one engaged in the business of buying and selling commodities, has the implied authority to borrow money in the usual course of business and to pledge the credit of the firm

discharged

a party to a contract is discharged when that party is relieved from all further responsibility of performance.

tort 侵权

a tort is a breach of a duty that causes injury to a person or their property

void contract

a void contract is one that appears to be an agreement but lacks an essential requirement for validity and enforceability. eg. apparent agreement that has an illegal purpose.

capacity

capacity refers to a person's ability to be bound by a contract.

duress 强迫

duress means force or threat of force. the force may be physical, or economic

counteroffer

if the acceptance changes the terms of the offer or adds new terms, it is not really an acceptance; it is a counteroffer.

nontrading partnership

such as an accounting firm, has no implied power to borrow money. such authority must be actual before the firm will be bound.

consideration 报酬

the receipt of a legal benefit or the suffering of a legal detriment. the legal mechanism for evaluating the existence of incentive for a person's promise or it is not binding courts will not enforce contractual promises unless they supported by consideration

undue influence 过度的，不正当的

undue influence occurs when one is taken advantage of unfairly through a contract by a party who misuses a position of relationship or legal confidence. often arise when persons weakened by age or illness are persuaded to enter into a disadvantageous contract

waiver

waiver generally occur after a contracting party fails to perform.

valid contract

when an agreement is enforceable because all the essential requirements are present, courts refer to a valid contract.

implied-in-law contracts

when one party is unjustly enriched at the expense of another, the law may imply a duty on the first party to pay the second even though there is no contract between the two parties. The doctrine that requires this result is based on an implied-in-law contract.

the test of materiality is

whether the parties would have contracted had they been aware of the mistake. 如果提前知道这个错误不会有contract, 就很重大

offer

an offer contains a specific promise and a specific demand