S&HG Contracts

mutual assent

typically an offer and acceptance; reasonable person in promisee's position believes both parties are bound to the agreement

offer

promise from one party to another, which indicates a desire to enter a contract, direction toward a person(s), invitation to accept, and reasonable understanding of a contract arising upon acceptance

objective theory

contains two prongs (reasonable person standard and actual belief in other party) that must be satisfied for an offer to be official

rejection

termination of offer by offeree declining, which offeror can not revive

revocation

termination of offer from offeror removing the power of acceptance from the offeree

lapse

termination of offer from it expiring after a reasonable time

automatic termination

termination of offer from death or incapacity of the offeree or offeror

option contract

offeror gives offeree time to decide whether to accept the offer

irrevocable offer

offeror gives offeree time to decide whether to accept the offer by asking for additional payment; can be made by writing, person in business of selling that particular type of goods, or firm offer with this stipulation; still considered revocable unless consideration, statute/firm offer, or substantial reliance states otherwise

acceptance

makes offer irrevocable and brings agreement into existence with terms of offer

unilateral

seeking acceptance by an act

bilateral

seeking acceptance by a return promise

mailbox rule (dispatch rule)

when there is a delay in communications between parties, acceptance sent by any reasonable means is effective as soon as it is sent (not received); only applies to reovcable offfers

common law mirror-image rule

acceptance must be unconditional expression of assent to the terms of the offer without addition or variation

implied warranty of merchantability

warranty that goods are free from defects is implied in every contract where the seller is a merchant if not disclaimed

silence

cannot constitute an acceptance unless coupled up with behavior that makes it reasonable

rolling contract

deal comes together in stages rather than all at once

clickwrap

type of online transaction involving an active role by the user of a website who agrees to the vendor's end-user license and other standard form terms by clicking "I accept"

browsewrap

type of online transaction involving a website containing a notice that using the website counts as an agreement to be bound by the site's terms of service

scrollwrap

type of online transaction that compels users to scroll through the electronic agreement before being able to signify their assent

sign-in-wrap

type of online transaction that does not require the user to click on a box showing acceptance of the terms of use in order to continue by instead notifying users of the existence

doctrine of mutual misunderstanding

when parties agree to the use of the same term in their contract, but each attaches a materially different meaning to the term

doctrine of mutual mistake

parties may be excused from performing an agreement that was entered into based on a belief shared by both parties that ultimately proved not in accord with the facts

indefiniteness

analyzed by whether parties intended to enter a legal agreement and whether there is a reasonable basis for the court to issue a remedy

consideration

given in exchange for the promise that is bargained for

pre-existing duty rule

contract modification requires new consideration and a promise to do something already legally required is not considered as consideration

material benefit rule

past consideration is not allowed to count unless it is a promise to pay debt barred by a statute of limitations, pay debt discharged in bankruptcy, or perform a previously voidable obligation

express contract

promises are evidenced by words

implied-in-fact contract

promises are evidenced by conduct; contains no real promise or voluntary consent

promissory estoppel

promise that foreseeably induces reliance on the part of the promisee may be enforced despite the absence of consideration

equitable estoppel

defense that exists to prevent a person who misstates certain facts from later asserting the truth of the matter earlier misrepresented against a party that relied to their detriment on the earlier statement

expectation damages

the amount a party benefited from breach of contract

reliance damages

the amount necessary to compensate plaintiff for loss caused by detrimental change in position from relying on promise

statute of frauds

certain agreements must be evidenced by writing and signed by the party against whom enforcement is sought in order to be enforceable

duress

defense for when wrongful physical or economical pressure is applied despite more acceptable standards being available

unconscionable

extremely unfair in terms of contract or bargaining power of parties

parol evidence rule

makes all prior obligations and terms related to the contract discharged and satisfied

integrated agreement

complete and final agreement

plain meaning rule (four corners rule)

party cannot introduce evidence of a word's meaning that does not match the meaning of the word within the issued document

course of performance

resolving ambiguity by seeing how party responded to similar wording throughout one contract

course of dealing

resolving ambiguity by seeing how party responded to similar wording throughout multiple contracts

contract of adhesion

contract made by one party with the power to give an ultimatum to the other party to sign it or not participate

anticipatory repudiation

party declares that they will not perform a material part of the contract allowing other party to be excused from performance due to breach of contract

express condition

language in a contract that excuses performance of other promises within the contract

condition precedent

condition to perform before contract that excuses any performance if not satisfied

condition subsequent

condition to perform after contract that excuses continuing performance if not satisfied

doctrine of frustration of purpose

triggered by post-contract events not anticipated by the contract and do not affect the ability to perform, but instead the mutually understood purpose for the contract performance

remedy

seeks to compensate non-breaching party for the consequences of the breaching party's actions and to put the party in the place it would have been in if there had been performance

specific performace

used to order breaching party to perform act because damages would not adequately make up for the lack of performance

benefit of bargain

difference between promised value and delivered value that is used to calculate damages

damages

certain, foreseeable, and unavoidable loss that is being compensated for

mitigation

denies damages because of avoidability when non-breaching party could obtain substitute performance and minimize loss

cover

difference between contract price and price of substitutes

third party beneficiary contract

contract between two parties that benefits another party without said party being involved; common example is life insurance

incidental beneficiary

beneficiary who was not the intended beneficiary in a third party contract

assignment

contract formation and transfer of rights from one party to another afterward

delegation

transferring contractual responsibility to perform to another person