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Blaw test 2
notecards ch. 7-11
| Question | Answer |
|---|---|
| a legally enforceable promise or set of promises | contract |
| four requirements for a valid contract | mutual manifestation of assent consideration capacity legality |
| requirement for a valid contract: mutual manifestation of assent | consists of offer and acceptance (agreement) viewed objectively not subjectively |
| requirement for a valid contract: consideration | value given or determinant suffered in exchange for a promise to be enforceable a bargained for exchange; quid pro quo |
| requirement for a valid contract:capacity | rule of law: minors, mentally incompetent persons and highly intoxicated persons may not enter a valid contract ex: minor hires agent, go through probate court |
| requirement for a valid contract: legality | a contract involving illegality is void those who make a deal involving a crime should not expect a court to enforce that "contract" |
| freedom of contract | importance show by our nations finders -contracts clause of the us constitution: "states shall pass no laws impairing the legal obligation of contracts" -dec of indep: "life, liberty and property" are inalienable rights |
| limitations of freedom without freedom to contract | if gov't controls everything, no contracts then we are free to live, work educate whenever we want with contracts |
| two primary defenses to a contract | lack of reality of consent(assent) noncompliance with formalities |
| two primary defenses to a contract: lack of reality of consent(assent) | described: where assent to a contract is not real or voluntary, the contract is voidable (ex: held gun to head, etc) |
| two primary defense to a contract: noncompliance with formalities | formalities: some contracts must be formalized by a writing or witnessed writing to be enforceable (ex: real estate or sale of goods 500$ or more) |
| bilateral contracts | a promise in exchange for a promise -the offer contemplates a promise as acceptance -the duties of the offerer and the offeree to perform arise verbal accpetance |
| unilateral contracts | a promise in exchange for a completed act -offer contemplates acceptance for performance -duty of the offeor to perform arises upon complete performance -offeree has no duty to perform -example: reward for lost dog |
| express contracts | created by the specific words of the parties -verbally agree to 15$ haircut |
| implied parties (in fact) | created by the conduct of the parties -offer to perform, give price after- bound to pay it (doctor copay) |
| implied in law (quasi contract) | created by a court when one party unjustly enriches another party (ex: if build gazeebo on wrong property; have to pay b/c it raises value of house OR tear it down) |
| valid contract | enforceable by all parties |
| void contract | enforceable by none of the parties (ex: drug deal) |
| voidable contract | may be avoided by one or more parties (ex:car salesman rolls back odometer: voidable b/c of fraud of sale) |
| unenforceable contract | the four requirements for a valid contract are met, but the contract is not binding b/c of a statute (ex: statute of frauds or limitations: requires writing, and how long you have to sue (limit=5 yrs) written contract (10 yrs) |
| objective nature | -judge looks at the words and actions not what the parties were thinking -ex: lucy vs zehmer- zehmer contracted to sell his land while drunk but appering sober and secretly joking |
| Rules of construction (interpretation) | -plain meaning of rule -entire writing rule -meaning of words -conflicts of terms -ambiguous terms -surrounding circumstances |
| Rules of construction (interpretation): plain meaning rule | if the words of the contract are clear in their meaning the courts will enforce the contract as written, generally no extrinsic evidence allowed (ex: covenant not to complete signed unknowingly) |
| Rules of construction (interpretation): entire writing rule | the court will do its best to enforce the entire contract when there is a potential conflict in terms ex: a lease requiring the clearing of acres of land 1. 7000 acres in 10 yrs 2. 4000 acres in 3 yrs 3. 700 acres a ear after first three |
| Rules of construction (interpretation): meaning of words | -ordinary words: are given their dictionary definition (ex: structure: what is structure) -legal terms: given their legal definition (ex: fire employee if commit tort, what is tort) -technical terms: are given their technical meaning in the relevant tra |
| Rules of construction (interpretation): conflict of terms | review the entire contract and apply the most consistent with the intent of the parties |
| Rules of construction (interpretation): ambiguous terms | primary rule: interpret against draft party (ex: ins policy or lease) priorities of terms when resolving conflict or ambiguity (handwritten terms have 1st priority, type = 2nd, and pre printed have 3rd) -an ambiguity makes extrinsic evidence admissable |
| Rules of construction (interpretation): surrounding circumstances | -course of performance: the way the parties performed the contract being interpreted -course of dealing: the way the parties performed previous or sim contracts -usage of trade: the way the issue in ? is customarily addressed in the type of bus involved |
| mutual manifestation of assent include: | offer and acceptance standard of objectivity |
| mutual manifestation of assent: offer and acceptance | both offer and acceptance are viewed objectively |
| mutual manifestation of assent: standard of objectivity | look at words spoken or written and conduct and what they would mean to a reasonable person |
| valid offer | a serous specific offer and a specific demand in a contract setting |
| four non-offers | 1. expressions of opinions 2. statements of intention 3. preliminary negotiations 4. certain advertisements and auctions |
| four non-offers: expressions of opinion | -a statement as to a general quality or a prediction -ex:my cars worth 10,000; surgeon; your boy's leg will heal in a few days; contractor's estimate versus bid |
| four non-offers: statements of intention | -a statement of what one may do in the future -ex: i plan on selling my son's car for $1,000; I may; I'm going to; I'm considering, etc |
| four non-offers: preliminary negotiations | -inquiries or general discussions of potential contract terms -ex: are you interested in...; would you take $1000 for your son's car; would you consider 750$ for the car |
| four non-offers: certain advertisements and auctions | -with ads, the danger is multiple acceptances -ads are not offers unless they are: very specific, eliminating multiple acceptance -auctions are not offers unless they are advertised w/o reserve (invite to make bids) opposite of ebay |
| three requirements for valid offer | 1. intention 2. definiteness 3. communication |
| three requirements for valid offer: intention | - a serious and objective intention by the offeror to be bound -offers made in obvious anger, jest, or excitement are not binding |
| three requirements for valid offer: definiteness | -an offer definite enough to ascertain the terms of the contract -including: names, description of goods or services, quantity, price and important delivery terms |
| three requirements for valid offer: communication | -offer must be communication to the offeree -Requires: 1. communication by the offeror 2. receipt by the offeree- did the offeree know about the offer when she accepted? |
| when does offer terminate? by revocation of offeror (exceptions: option contracts (where money is paid to keep the offer open); a merchant's firm offer under the UCC | -revocation is typically possibly any time up to acceptance, even if the offeror said he would keep it open for a certain period of time ex: garage sale offer for lawn mower, seller promises it will be open, offers to ind who leaves, sells while gone: OK |
| when does offer terminate? lapse of time | -stated time: this offer is open for "three days" -reasonable time: if a time is not stated, the offeree has a reasonable time to accept (the amount of time reasonable varies with the situation, commodities like bananas is short time b/c val dec rapidly |
| when does offer terminate? rejection or counteroffer | -any manifestation of rejection or a counteroffer, terminates offer -mirror image rule |
| mirror image rule | -an acceptance which contains new or varying terms is considered a rejection and counteroffer (the acceptance must be a mirror image of offer or it is invalid) ex: A sends offer for car for 3,000 to B, B accepts, but for 6,000 changed terms :invalid |
| when does offer terminate? operation of law | -death or incompetence of either party (death is ultimate incapacity) -intervening illegality (perfromance becomes after the offer but before acceptance);illegal ex: zoning change(illegal to build office) -destruction of the subject matter of the contra |
| when does offer terminate? terms of the offer | -ex: this loan commitment shall be binding upon the bank UNTIL the prime interest rate rises by 1/4 of 1% or more -estimate = opinion -land sale contract- must contain price |
| 3 requirements for acceptance | 1. acceptance by whom 2. terms of acceptance (3) 3. must be communicated |
| 3 requirements for acceptance: acceptance by whom | must be made by he offeree: you can't accept an offer made to another person |
| 3 requirements for acceptance: terms of acceptance (three requirements) | 1. must be unconditional: "I accept if... I accept provided that.." no if and or buts 2. unequivocal: no maybe's "i think we may have a deal" (equivocal) 3. same terms: must be the mirror image of the offer or it's a rejection |
| 3 requirements for acceptance: must be communicated | -silence is not acceptance absent prior agreement -timely acceptance: must accept before offer terminated (acceptance is effective when correctly mailed, even if not received, according to the mailbox rule -offers and revocation must be received to be v |
| mailbox rule | -acceptance is effec when correctly mailed or sent by similar means, even if not rcv’d - has no app in email or internet accept -accept must be sent by rsnable means -may negate rule and specify exactly how accept is to be made when it’s effective |
| acceptance and unilateral contracts | -accept is not verbal -accept is by performance (partial perform. typic. makes the offer irrevocable for a reasonable time to complete perform. -awareness-offeree must know of offer b4 accept by perform. offer must be rcv'd by offeree (private reward) |
| Uniform Commercial Code (UCC) Article 2: (common law) | RILES: Real Estate Insurance Land Employment Services |
| Uniform Commercial Code (UCC) Article 2: Sale | Passage of title from seller to buyer for a price (consideration) -not a lease (no passage of title) -not a gift (no price) |
| Uniform Commercial Code (UCC) Article 2: Definition of goods | things that are tangible and movable -tangible: has physical existence (desk vs. promissory note, patent) -movable: can be carried from place to place (not attached to real estate) -goods vs. serv.: look at the primary purpose of contract |
| Uniform Commercial Code (UCC) Article 2: Merchant (three categories) | 1. a dealer in goods of the type of contracted ex: "sale of appliance", 2. a person who holds himself out as having special knowledge as to goods of the type contracted for (commission) 3. a person who employs a merchant as an agent |
| Uniform Commercial Code (UCC) Article 2: UCC vs. common law | -UCC applies to sale of good & has other prov's governing leases of pers prop, comm paper (Ch15)& mortgages on pers prop (Ch16) -common law applies to employmnt & sales of land, services, or ins -in every K u must distinguish whether comm law/UCC applie |
| variations under the UCC | -art 2 of the UCC alters contracts and duties of parties for sales of goods. For the purpose of this class if there is no stated alteration, assume the common law applies 1. standard of dealing 2. Offer |
| variations under the UCC: standards of dealing | -good faith is implied in every contract -higher standards for merchants: must meet industry standards for fair dealing in trade |
| variations under the UCC: Offer | offer may have open terms inc price; UCC fills in blanks 1.Price: reasonable at time of delivery 2.Payment terms: on delivery 3.Delivery: seller's place of bus 4. Reasonable shipment time 5. Courts enforce K's and fill in missing terms |
| variations under the UCC: Offer(5. Courts enforce K's and fill in missing terms) | 1.the parties and goods are identifiable, (quantity and description of goods) 2. the quantity is specified 3. the court determines the parties intended to make a K |
| Firm offer | if a merchant in a signed writing promises an offer will be kept open, the merchant is bound to hold the offer for the stated time or reasonable time, not greater than 3 months (Missouri Rule: UCC -90 days) |
| UCC acceptance Sales of Goods: Qualifies the mirror image rule | 1. an acceptance is valid despite additional terms 2. additional terms are considered proposals for new additions to the K 3. Exception: an acceptance made conditional on new terms is a reject and counteroffer |
| UCC acceptance Sales of Goods: Between Merchants | -New terms in an accept somtims bcm part of K if 1the change is not material/imp 2no obj to the change is made by the offeror w/i 10 days (btle of the forms-keep sending orders/invoices back, & forth changing everytime, if dont respond-lose-last one wi |
| consideration | value given OR detriment suffered in exchange for a promise, making the promise enforceable |
| quid pro quo | this for that: a bargained-for exchange of consideration on each side is normally necessary for a K to be enforceable |
| four types of sufficient consideration | 1. an act (providing services/payment of $) 2. giving up the exercise of a legal right (giving up "right to sue")(detriment suffered) 3. a change in legal status (giving up right to be w/ spouse) 4. a promise to do any of the 1st 3 |
| sufficiency vs. adequacy | -sufficiency required- enough consideration to make the K enforceable (more than nominal consideration) -adequacy or fairness is not req'd |
| five types of insufficient consideration | 1. an illusory promise 2. a gratuitous promise 3. past/insufficient consideration 4. nominal consideration 5. a promise to perform a pre-existing duty |
| five types of insufficient consideration: 1. an illusory promise (all goods you want/need) | -a promise w/ no substance behind it- subject to the promisor exceptions ex: promise 2 work 4 u, until i want to work somewhere else -reqmnts K's r valid -output K’s r valid - a good faith duty 2 have reqmnts/continue producing is implied under the UCC |
| requirements contracts | promises to buy all the goods you need for a certain period of time |
| output contracts | promises to sell all the goods you CAN produce for a certain period of time |
| five types of insufficient consideration: 2. a gratuitous promise | -a promise to make a gift or moral obligation -ex: old person about to die, says "you're so nice 1000$ for u in the will"/ promise to make a gift= not enforceable -moral obligation=not enforceable |
| five types of insufficient consideration: 3. past consideration | the promised consideration has already been performed prior to the promise to do it -ex: flood in basement, neighbor unknowingly cleans basement, basement owner offers $500 to clean basement, too late- incentive was NEIGHBORLINESS |
| five types of insufficient consideration: 4. nominal consideration | -consideration in name only, typically only recited in a written agreement but not paid -the amount is very small in light of the entire K -ex: 10$ for a 10,000$ car |
| five types of insufficient consideration: 5. promise to perform a pre-existing duty | -if a duty existed prior to the promise to do it, then the promise 2 fulfill that duty is not valid consideration -ex: i have duty not to kill u, "$500 not to kill u" -contract modifications: new promises on both sides often needed |
| two exceptions to pre-existing duty rule | 1. rescission and new contract 2. promise to pay an unliquidated debt |
| two exceptions to pre-existing duty rule: rescission and new contract | -(way to get around it=rescission) -out with the old; in with the new- gets around modification problem to cancel the contract |
| two exceptions to pre-existing duty rule: promise to pay an unliquiduidated debt | -duty to pay 10,000$ for car, but car turns out to be POS, not clear who owes who money -"don't want problems", "if you fix the engine, i'll pay you a bit, and not sue you" |
| four exceptions to the consideration rule | 1.promises to pay debts barred by statue of limitations (how much time you have to sue) 2. reaffirmation agreements in bankruptcy 3.charitable subscriptions:pledges made 2 a charity r often enforceable 4.promissory estoppel |
| four exceptions to the considerations rule: 4. promissory estoppel | 1. a promise is made by the defendant 2. plantiff suffers detriment by reasonable reliance on the promise (uncle is serous, gave siblings same amount) 3. enforcement of the promise is necessary to avoid injustice |
| consideration under the UCC | two changes of common law as to consideration 1. contract modifications- modifications need no new consideration to be binding (sales of goods) 2. firms offers are binding although they are not option contracts |
| capacity of contract: levels of competence: Full competence | -all parties have full legal capacity -result: contract is valid (person w/ incapacity can usually get out of contract) |
| capacity of contract: levels of competence: no competence | -one or more parties have been adjudicated mentally incompetent -result: contract is void-not enforceable by either party (probate court rules necessary to have some1 control your $, and take care of you) |
| capacity of contract: levels of competence: limited competence | -one or both are minors, highly intoxicated, or mentally incompetent (w/o adjudication) -result: contract is voidable by the person w/ disability |
| disaffirmance | -to negate previous agreement -avoidance of a contract by a person with legal disability (incapacity) |
| disaffirmance: three typical steps | 1.express the intent by words/conduct, not 2 b bound 2 the K while under a disability/within a reasonable time thereafter 2.restoration: rquires return of prop purchased b4 disaffirmance 3restitution: rquires payment 4 any dmage 2 prop prior 2 its retur |
| express ratification | using specific language to manifest agreement to the K after a legal disability is removed |
| implied ratification | failure to disaffirm within a reasonable time after the removal of a disability is an implied ratification (no longer voidable) |
| liability for necessaries: necessaries | -item necessary 4 health & mntence such as food clothing med care shelt etc -incompetent persons r often partially liable 4 necessaries so that they hv more chance of rcving what they need 2 live -flexible standard ex car may b a necessary if need 4 job |
| liability for necessaries: effect of liability | -the person w/ the legal disability may still disaffirm the actual K -the person w/ limited competence is still liable 4 the reasonable value of goods/service in quasi contract- a contract implied in law 2 avoid unjust enrichment |
| minor | -someone who has not reached the age of majority. (adulthood) in MO- 18 -MO - age 18 for most purposes |
| three requirements for disaffirmance for minors | 1express intent not 2b bound w/i req’d time period 2fulfill only the duty of restoration under the majority rule;minority of states also rqrs duty of restitution-paying for any damages 2 an item bought -must b a type of K 4 which disaffirmance is allowe |
| three types of contracts not voidable b/c of minority | 1. marriage 2. joining the military 3. student loans |
| minor's misrepresentation and disaffirmnce | 1what if a minor lies about their age 2most states rquire minor who lies about age 2 either fulfill the K or pay least the reasonable value of goods/services in quasi K |
| minor's liability for necessaries | -if a minor is NOT under care of a parent or guardian (EMANCIPATED) with the ability to pay for the minors needs, the minor must pay the reasonable value of necessaries |
| intoxicated persons | someone so intoxicated at the time of the K that he/she does not understand the nature or substance of the transaction nature: doesn't know it's a K substance:doesn't know the subject matter or consequences |
| intoxicated persons: problem of proof | "how drunk was he?" -lucy vs. zehmer: the fact that zehmer was "high as a georgia pine" and thought it was all a joke was not enough to avoid land contract where he apparently knew what he was doing |
| three requirements for disaffirmance for intoxicated persons | 1.express an intent not to be bound while intoxicated or within reasonable time after becoming sober 2.duty of restoration 3.duty of restitution |
| express ratification (intoxicated persons) | specific language showing intent to go along with the K |
| implied ratification (intoxicated persons) | -occurs where there is a failure to disaffirm w/i a reasonable time after becoming sober |
| intoxicated persons necessaries | -the intoxicated person is liable for the reasonable value of goods or services even if the K is disaffirmed -ex: ordering food while drunk |
| incompetent persons | persons who at the time of the K do not understand the nature/substance of the transaction b/c of a mental condition 1.adjudicated as imcompetent-K is void 2.nonajudicated- K is voidable and may b disaffirmed by the incompetent party |
| lucid intervals | -periods when the person with the incapacity is clear-minded -result where there HAS BEEN NO ADJUDICATION of incompetence: the K is valid |
| three requirements for disaffirmance of incompetent persons | 1. manifestation of intent-while incompetent or within a reasonable time after becoming competent 2. duty of restoration 3. duty of restitution |
| express ratification (incompetent person) | verbal statement showing intent to go along with the K |
| implied ratification | failure to disaffirm w/i reasonable time after mental capacity restored |
| necessaries (incompetent person) | the incompetent person is liable for the reasonable value of necessities even if the K is disaffirmed (ex: food at restaurant) |
| illegal agreements | an agreement whose purpose or performance is illegal |
| five types of illegal agreements: | 1.violation of usury laws 2.gambling laws 3.blue laws(sabbath laws) 4.K's by unlicensed professionals 5.K's to perform illegal acts |
| five types of illegal agreements: violation of usury laws | -usury laws: laws which set a maximum interest rate on loans/credit -typically cannot collect interest -some states-cant collect on entire K -ex: car searching, find car w/ usurious interest rate, makes no payments & brings up usurious defense & wins c |
| five types of illegal agreements: gambling laws | missouri: Sec. 434.010: a gambling K is void, but the loser has a short time to sue to ercover losses: 3 month statute of limitations |
| five types of illegal agreements: blue laws (sabbath laws) | -blue laws (sabbath laws)- certain K's prohibited on Sundays -history -K's for food and medicine were usually exceptions -now very few K's illegal on sunday (state by state) |
| five types of illegal agreements: K's by unlicensed professionals | -ex: a quack practicing medicine -for licensed professions from surgery to cutting hair, a license is necessary |
| five types of illegal agreements: contacts to perform illegal acts | -K's to sell or transport contraband, such as drugs -hiring a hit man to dispose of anyone -K's for sexual services |
| K's against public policy: exculpatory contracts | -atmpt 2 escape liability(culpability)of party at fault -employers gnrlly may not exempt themselves from liability 2 employees. -more likely 2 be agnst pblc policy if exculpatory clause is placed in K by person w/ much > bargain power |
| K's against public policy: three types of agreements in restraint of trade | 1.price fixing schemes are against public policy 2.market divisions are against public policy- using Miss River "you stay west, i stay east" 3. covenants not 2 compete r enforceable only if: xyz (in other notecard) |
| K's against public policy: three types of agreements in restraint of trade 3. covenant not 2 compete are enforceable only if | -covnant is mde inconnction w/ sale of bus or inconnction w/ K of job descript -protects legit bus intrestof employer/prson buyng bus -time & geo r restricts spcf’d inof the cvenant not 2 compete r reasonable: not 2 lng or 2 broad in terrtorial cverage |
| K's against public policy: three types of agreements in restraint of trade (examples) | employee familiar w/ customer and operations- cant work in same field w/ diff company for certain amt of time |
| K's against public policy: discriminatroy K's | -racial, religious or sexual discrimination in K's: unconstitutional -race-related restrictive covenants |
| K's against public policy: Torts | -K's involving commision of a tort are against public policy -ex: hiring someone to defame a canidate |
| Results of illegality or Violations of Public Policy General Rule | -the contract is void -none of the parties may enforce the K, even the injured party -Theory In Parli Delicto- "in equal fault"- both parties involved in illegal activities knowingly |
| Results of illegality or Violations of Public Policy Exception | -protected classes, such as minors or employees may typically enforce illegal contracts -ex: covered employer has to pay min wage, if company hires minor to do smthing & dont pay, still liable to pay |
| Formalities(statute of frauds) | -a defense to enforceability of an otherwise valid K -an oral agreement which should be in writing in classified as unenforceable |
| statute of frauds | a statute which requires certain types of K's to be in writing to be enforceable |
| Statute of Frauds 1677 | allowed interested parties to testify, but also required important K's to be in writing |
| History of Statute of Frauds | -fraud corrected by statute of frauds was the fraud of perjury not fraud in deceiving another person into entering a K -interested parties could not testify at early common law, so K'ing parties would hire a false witness to tell their side of the story |
| Terminology: "Inside/ Within the Statute of Frauds Defined" | means that a K must be in writing for enforceability it is said to be "inside or within the statue of frauds" |
| Terminology: "Outside the statute of Frauds" | if an oral K is enforceable, the K is said to be outside the Statute of Frauds |
| Sale of Interest in Land: Entire Interest | if ownership of land may be divided into various parts, the entire interest is all the parts possible |
| Sale of Interest in Land: Easements | -the permanent right to use a portion of land w/o owning it -ex: roadway and utilities easements (lets them cross ur land/install on ur land) |
| Sale of Interest in Land: Profits | -the right to come onto the land and remove something from it (drill oil) -ex: mineral rights and timber rights |
| Sale of Interest in Land: Mortgages | -a lien on land- an interest which allows a sale of property to collect debt -gives right to foreclose on land if an obligation is breached |
| Sale of Interest in Land: Life Estate | -the right to exclusive possession of land for a term based upon someone's lifespan -ex: divorce: husband wanted to give wife life estate based on his life |
| Performance beyond one year | -if performance of a K must take more than one year from the date it is made, the K must be in writing to be enforceable |
| Performance beyond one year: Possibility of Performance | the mere poss of performance w/i 1 yr, however unlikely, takes the K outside statute so an oral agrmnt is enforceable -ex:agree to work for MU for 2 yrs unless win lotto=possible (oral agrmnt outside statute) |
| Performance beyond one year: one year is calculated from the MAKING of the K | -the measurement of the one year under this rule starts the day the K is made, not when performance begins -ex: today, sign contract to work 2012-2013 academic year, march-march-may inside statute b/c more than one year |
| Collateral Promises | -a promise of guarantee made 2 creditor 2 pay anothers debt only if other doesnt pay -must be at least 3 parties involved & at least 2 promises -ex:parents pay landlord if tenant doesn't pay |
| Collateral Promises: 3 situations where the statute of frauds does not apply | 1.promise to be jointly liable (one promise 2.promise 2 b primarily liable (liable instead of debtor) 3. main purpose rule: if primary purpose of guarantee is 4 pers benefit, oral K is enforceable (exception to rule) |
| Promises made in consideration of marriage: promise of dowry | -a familys promise made 2 prospective husband 2 pay $ or prop upon his marriage to their daughter -dowries were traditional under early common law, but are common only in a few countries today |
| Promises made in consideration of marriage: prenuptial agreement | -promises made prior to marriage specifying how property will be divided in the event of divorce (must be in writing and other requirements) |
| Sales of goods at 500$ or more: sale of goods review | 1. article 2 of UCC 2. goods: things tangible and moveable 3. applies to everyone, but has special rules for merchants |
| Sales of goods at 500$ or more: when writing required for sale of goods | 1. when goods are priced at 500 or more 2.not necessarily when valued at 500 or more 3.ex: K to buy 1000 bike for 400, no writing K to sell bike for 1000, in writing |
| writing | -at common law(Ks for land or services) writing must be sufficient 2 show essential terms of K -K must be signed by party being sued (initials enough) -no writing=K not enforceable |
| exceptions to statutes of Frauds: performance | -complete performance by one party removes the K from the statute of frauds |
| exceptions to statutes of Frauds: admissions of terms | -when the D admits there is a K, the K is enforceable to the extent of the admission |
| Parol Evidence Rule | -evidence of prior or contemporaneous oral statements or agreements is inadmissible as evidence to alter the terms of written K (when K's words are clear, court will enforce terms and extrinsic (outside) evidence is inadmissable |
| Parol Evidence Rule: prior written agreements | -are also inadmissible to alter the K -ex: prospective employee- come to deal, sign, but minor difference- prior discussion doesn't matter b/c he signed |
| Parol Evidence Rule: three exceptions | -extrinsic evidence is admissible to: 1.prove lack of reality of consent (fraud duress) 2.clear up an ambiguity 3.clarify incomplete K's (may not have price stated, but discussed) |
| Parol Evidence Rule: one caution | the parol evidence rule does not apply to modifications b/c they come after the K is made |
| UCC variations- Sale of Goods | 1.need only sufficent writing 2 show a K, other terms r filled in by court -quant and descrip of goods r often enough as 2 terms in written agrmnt -sig suffices 2.b/t merchants 1 sig is enough if no objection by other merchnt w/i 10 days |
| The UCC parol Evidence Rule | -applies only if parties intended document to be all inclusive -almost every standard ford -most retail consumer items |
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