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Black Letter Law
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Black Letter Law
Deck 1
Study
1
Question
Intention to not be legally bound
Answer
Although neither party need manifest an intention that their bargain is legally binding for it to be a contract, there is no contract if either party at the time the bargain was formed expressly or impliedly manifested an intention that the bargain is not legally binding.
2
Question
Breach of contract claim
Answer
The elements of a breach of contract claim are: 1) the formation of a contract, and 2) a breach of the contract.
3
Question
Promissory estoppel claim
Answer
The elements of a promissory estoppel claim are: 1) a promise, 2) the promisor should reasonably have expected the promisee to detrimentally rely on the promise, 3) the promisee in fact detrimentally relied on the promise in the manner that should have been expected, 4) a breach of the promise, and 5) injustice can be avoided only by enforcing the promise.
4
Question
Quasi contract claim
Answer
The elements of a quasi contract claim are: 1) the defendant has been enriched by the plaintiff, 2) it would be unjust for the defendant to not pay the plaintiff for the benefit received.
5
Question
Quasi contract claim based on service provided
Answer
It is unjust to not pay for a service that has been provided when: 1) the actions of the person providing the benefit were not officious, and 2) a reasonable person in the position of the recipient would believe the benefit was provided with an expectation of compensation.
6
Question
Actions of the person providing the benefit
Answer
Actions must not be officious and must be provided with an expectation of compensation.
7
Question
Elements of contract formation
Answer
Requires an offer, acceptance, and consideration.
8
Question
Guardianship and capacity to form a contract
Answer
A person under guardianship due to mental illness does not have legal capacity to form a contract.
9
Question
Elements of an offer
Answer
Offeror's manifestation of willingness, justified understanding of assent by offeree, reasonable certainty of offer's terms.
10
Question
Preliminary negotiations
Answer
Communication is not an offer if a reasonable person would believe that the person making the communication does not intend to conclude a bargain until further manifestation of assent.
11
Question
Advertisements as offers
Answer
Advertisements are usually considered solicitations for an offer, not offers themselves.
12
Question
Price quotations
Answer
Whether a price quotation is an offer depends on the circumstances.
13
Question
Auctions
Answer
Specific rules apply to contracts formed through auctions.
14
Question
Is a price quotation considered an offer?
Answer
Whether a price quotation is an offer depends on the circumstances.
15
Question
Auctions and reserve
Answer
Unless the seller manifests an intention that the auction is without reserve, the auction is with reserve, and the buyer is the offeror, and the seller is the offeree.
16
Question
Written document to follow
Answer
When negotiations show that the parties discussed or contemplated that they would express their bargain in a written document but they fail to do so, there is no agreement if either party manifested an intention that the bargain would not be final unless and until reduced to a written document, but there is an agreement if the parties manifested an intent that the written document would simply memorialize the deal.
17
Question
Unsigned Signature Line for Party Proposing Written Contract
Answer
If there is a signature line for the party presenting a proposed written contract and the document is unsigned, the document is typically considered a solicitation for an offer.
18
Question
Gap-filling implied terms
Answer
When the parties have entered into a bargain that omits an essential term, the court will supply a term as directed by a statute such as the UCC or in the absence of a statutory directive, a term that is reasonable in the circumstances.
19
Question
Acceptance
Answer
Acceptance of an offer typically requires a manifestation of assent by an offeree to the terms of the offer made.
20
Question
Acceptance of an offer typically requires
Answer
1. A manifestation of assent. 2. By an offeree. 3. To the terms of the offer. 4. Made in a manner invited or required by the offer. 5. While the offeree still has the power of acceptance.
21
Question
Manifesting assent to unknown offer
Answer
As a general rule, an offeree can only manifest assent if she knows of the offer. But it is possible to manifest assent to an offer for a bilateral contract without knowledge of it. Except for an offer of a government reward, an offeree cannot accept an offer for a unilateral contract unless the offeree actually knows of the offer prior to completing the act or acts necessary to accept.
22
Question
Cross offers
Answer
When parties make cross offers, there is no contract unless one accepts the other's offer upon delivery.
23
Question
Duty to read rule
Answer
A party's failure to read the terms of a written offer does not prevent the offeree's manifestation of assent from being effective unless the offeree does not know and has no reason to know either that the document is a proposed contract or its essential terms.
24
Question
Grumbling acceptance
Answer
An offeree's expression of dissatisfaction with an offer does not prevent the offeree's manifestation of assent from being effective.
25
Question
Silence and inaction as acceptance
Answer
When an offeree fails to reply to an offer, silence and inaction can be considered as acceptance.
26
Question
Effective
Answer
Producing a decided, decisive, or desired effect.
27
Question
Appended
Answer
To add as a supplement or accessory.
28
Question
Black Letter Law
Answer
Basic principles of law that are accepted by the legal community and have been around for a long time.
29
Question
Silence and Inaction as Acceptance
Answer
When an offeree fails to reply to an offer, the offeree's silence and inaction is not construed as a manifestation of assent to an offer, unless certain conditions are met.
30
Question
Exercise of Dominion as Acceptance
Answer
Where an offeree does any act inconsistent with the offeror's ownership of offered property and the terms of the offer are not manifestly unreasonable, the offeree will be found to have manifested assent and will therefore be bound to the offer's terms.
Deck 2
Study
1
Question
Misrepresentation doctrine
Answer
A party has the power of avoidance when: 1) the other party or a third party makes a misrepresentation to the party, 2) the misrepresentation is either fraudulent or material, 3) the misrepresentation induces the party's assent to the contract, 4) the party is justified in relying on the representation, and 5) if the misrepresentation was made by a third party, the other party at the time of contract formation knew or had reason to know of the misrepresentation.
2
Question
Duress doctrine
Answer
A party (the victim) has the power of avoidance when: 1) the other party or a third party makes an improper threat to the victim, 2) the threat induces the victim to manifest assent to the contract or the contract modification, 3) the threat leaves the victim with no reasonable alternative but to manifest assent, and 4) if the threat was made by a third party, the other party at the time of contract formation or modification knew or had reason to know of the threat.
3
Question
Undue influence doctrine
Answer
A party (the victim) has the power of avoidance when: 1) the victim was justified in assuming that the person exercising the persuasion would not act in a manner inconsistent with the victim's welfare, i.e., a so-called confidential relationship, or the victim was under the domination of the person exercising the persuasion.
4
Question
1. Unfair Persuasion
Answer
Factors constituting unfair persuasion: 1. The party exerting unfair persuasion did so in a manner inconsistent with the victim's welfare, confidential relationship, or the victim being under the domination of the persuading party. 2. The other party or third party exerted unfair persuasion upon the victim. 3. The victim's manifestation of assent was induced by unfair persuasion. 4. If the unfair persuasion was from a third party, the other party at the time of contract formation knew or had reason to know of the unfair persuasion.
5
Question
2. Contract between Fiduciary and Beneficiary
Answer
A beneficiary has the power to void a contract with the fiduciary unless the fiduciary can prove that: 1. The contract's terms are fair to the beneficiary. 2. The beneficiary agreed to the contract with a full understanding of her legal rights and with knowledge of all relevant facts known or should have been known by the fiduciary.
6
Question
3. Door to Door Sales
Answer
A person has the power of avoidance in door-to-door sales when: 1. The purchase of goods or services is for personal, family, or household purposes. 2. The contract is made at the buyer's home for a price of $25 or more, or at a place other than the seller's regular place of business for a price of $130 or more.
7
Question
4. Public Policy Doctrine
Answer
According to the public policy doctrine, an agreement is void or a contract term unenforceable on grounds of public policy if legislation expressly provides that it is void or unenforceable, or if public policy is clearly violated.
8
Question
Public Policy Doctrine
Answer
An agreement is void or a contract term unenforceable on grounds of public policy if: 1) legislation expressly provides that it is void or unenforceable, or 2) public policy clearly outweighs the interest in enforcing the agreement.
9
Question
Restitution when Agreement is Against Public Policy
Answer
Restitution is unavailable to a party who has entered into an agreement that is void as being against public policy, unless: 1) the party will suffer a forfeiture that is disproportionate to the public policy contravened, 2) he was excusably ignorant of the facts or of legislation of a minor character, 3) the other party was more in the wrong, or 4) he did not engage in serious misconduct and he withdrew from the transaction before the improper purpose was achieved.
10
Question
Unconscionability
Answer
For a party to prove that a contract or one of its terms is unconscionable, the party must prove both: 1) procedurally unconscionability and 2) substantively unconscionability, though a sliding scale is used where more of one can compensate for less of the other.
11
Question
Effect of Finding of Unconscionability
Answer
If a party proves that a contract or term was unconscionable, the court may: 1) refuse to enforce the contract, 2) enforce the contract without the unconscionable term, or 3) limit the application of the unconscionable term to avoid an unconscionable result.
12
Question
What action may the court take if a contract is unconscionable?
Answer
The court may refuse to enforce the contract, enforce the contract without the unconscionable term, or limit the application of the unconscionable term to avoid an unconscionable result.
13
Question
What is the general rule of contract liability?
Answer
Contract liability is generally strict, meaning a promisor is usually liable for breach of contract even if performance was impossible, more difficult than expected, or if the other party's performance became virtually worthless to the promisor.
14
Question
What is a force majeure clause?
Answer
A force majeure clause allows parties to agree that a party's failure to perform as promised will be excused upon the occurrence or nonoccurrence of a particular event, and these clauses are as enforceable as any other contract provision.
15
Question
When is a party's duty to perform discharged or never arises due to impracticability of performance?
Answer
A party's duty to perform is discharged or never arises if existing impracticability occurs after the contract's formation, was unknown to the parties at the time of formation, and the occurrence of the event makes the party's performance of the duty impossible or impracticable, was not due to the party's fault, and the nonoccurrence of the event was a basic assumption on which the contract was made.
16
Question
duty
Answer
a moral or legal obligation
17
Question
impossible
Answer
not able to occur, exist, or be done
18
Question
impracticable
Answer
not capable of being put into practice
19
Question
occurrence
Answer
the action, fact, or instance of happening
20
Question
fault
Answer
responsibility for an undesirable outcome or situation
21
Question
non-occurrence
Answer
the absence of an event or happening
22
Question
basic assumption
Answer
a fundamental proposition that serves as a foundation for a system of belief
23
Question
contract
Answer
a legally binding agreement between two or more parties
24
Question
discharge
Answer
to perform, complete, or release from obligations
25
Question
doctrine
Answer
a set of principles, beliefs, or teachings
26
Question
impracticability of performance
Answer
the state of being impractical or unfeasible to perform
27
Question
frustration of purpose
Answer
the prevention or hindrance of fulfilling the purpose of a contract
28
Question
restitution
Answer
the restoration of something lost or stolen to its proper owner
29
Question
benefit
Answer
an advantage or profit gained from something
30
Question
substantial
Answer
considerable in importance, value, degree, amount, or extent