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a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty

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contract

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an agreement that can be enforced in court

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a contract in simple terms

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a party's intention to enter into a legally binding agreement or contract is judged by outward objective facts

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objective theory of contracts

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1. what the party said when entering into the contract 2. how the party acted or appeared (intent may be manifested by conduct as well as by oral or written words) 3. the circumstances surrounding the transaction (are all interpreted by a reasonable person)

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objective facts include:

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1. agreement-- offer and acceptance 2. consideration-- something of value received or promised to convince a person to make a deal 3. contractual capacity-- must be competent parties by law 4. legality-- must be to accomplish a legal goal`

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requirements of a valid contract

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1. voluntary consent -- consent of both parties must be voluntary 2. form -- contract must be in whatever form the law requires

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defenses to the enforceability of a contract

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if the offeree (party to whom the offer is made) can accept simply by promising to perform "a promise for a promise"

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bilateral contract

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if the offer is phrased so that the offeree can accept the offer only by completing the contract performance "a promise for an act"

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unilateral contract

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contracts that require a special form or method of creation (formation) to be enforceable

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formal contract

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simple contracts include all other contracts no special form is required as the contracts are usually based on their substance rather than their form

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informal contract

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in this type of contract, the terms of agreement are fully and explicitly stated in words, oral or written

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express contract

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a contract that is implied from the conduct of the parties -conduct rather than words, creates and defines the terms of the contract

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implied contract

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1. the plaintiff furnished some service or property 2. the plaintiff expected to be paid for that service or property, and the defendant knew or should have known that payment was expected 3. the defendant had a chance to reject the services or property and did not

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requirements for implied contracts

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a contract that has been fully performed on both sides

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executed conduct

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a contract that has not been fully performed by the parties

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executory contract

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has the elements necessary to entitle at least one of the parties to enforce it in court

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valid contract

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a valid contract but one that can be avoided at the option of one or both of the parties

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voidable contract

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a contract that cannot be enforced because of certain legal defenses against it

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unenforceable contract

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no contract at all

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void contract

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an essential element for contract formation -the parties must agree on the terms of the contract and manifest to each other their mutual assent to the same bargain

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agreement

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a promise or commitment to do or refrain from doing some specified action in the future

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offer

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1. the offeror must have a serious intention to become bound by the offer 2. the terms of the offer must be reasonably certain, or definite, so that the parties and the court can ascertain the terms of the contract 3. the offer must be communicated to the offeree

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requirements of the offer

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a statement of an intention to do something a request or invitation to negotiate advertisements with price lists

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what is not an offer:

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binding when: all the parties have agreed on all essential terms and no disputed issues remain to be resolved not binding when: the parties agree on certain major terms but leave other terms open for further negotiation

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preliminary agreement

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1. identification of the parties 2. identification of the object or subject matter of the contract including the work to be performed with specific identification of such items as goods, services, and land 3. the consideration to be paid 4. the time of payment, delivery, or performance

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definiteness of terms, which terms must be expressed in the contract or capable of being reasonably inferred from it:

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revocation, rejection, or by counteroffer

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termination by action of the parties through

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offerors act of withdrawing an offer which can be accomplished by either of the following: 1. express repudiation of the offer 2. performance of acts that are inconsistent with the existence of the offer and are made known to the offeree

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revocation

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1. lapse of time 2. destruction of the specific subject matter of the offer 3. death or incompetence of the offeror or the offeree 4. supervening illegality of the proposed contract

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termination by operation of law:

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a voluntary act by the offeree that shows assent to the terms of an offer

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acceptance

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1. when an offeree takes the benefit of offered services even though he or she had an opportunity to reject them and knew that they were offered with the expectation of compensation 2. when the offeree has had prior dealings with the offeror

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silence may constitute as an acceptance in the following circumstances:

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promise (not performance)

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in a bilateral contract, acceptance is in the form of a

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the acceptance takes effect at the time of the offeree sends the communication via the mode expressly or impliedly authorized by the offeror

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mailbox rule

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electronic contracts that must meet the same basic requirements (agreement, consideration, contractual capacity, and legality) as paper contracts

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e-contracts

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1. acceptance of terms 2. payment 3. return policy 4. disclaimer 5. limitation on remedies 6. privacy policy 7. dispute resolution

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an online offer should include the following provisions:

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this indicates the forum or location in which contract disputes will be resolved

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forum-selection clause

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the value given in return for a promise or in return for a performance

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consideration

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1. a promise to do something that one has no prior legal duty to do 2. the performance of an action that one is otherwise not obligated to undertake 3. the refraining from an action that one has a legal right to undertake (called a forbearance)

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to be legally sufficient consideration must be something of value in the eyes of the law:

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the legal avoidance or setting aside of a contractual obligation

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disaffirmance

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a lender who makes a loan at an interest rate above the lawful maximum commits this

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usury

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release a party from liability in the event of monetary or physical injury no matter who is at fault

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exculpatory clauses

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a statute that stipulates what types of contracts must be in writing

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statute of frauds

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1. contracts involving interests in land 2. contracts that cannot by their terms be performed within one year from the day after the date of formation 3. collateral or secondary contracts such as promises to answer for the debt or duty of another and promises by the administrator or executor of an estate to pay a debt of the estate personally-- that is, out of his or her own pocket 4. promises made in consideration of marriage 5. under the uniform commercial code, contracts for the sale of goods priced at $500 or more

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the following four types of contracts are required to be in writing or evidenced by a written memorandum or electronic record:

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an online acceptance of an online offer

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click-on agreement

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the terms are expressed inside the box in which the goods are packaged -the party who opens the box is told that they agree to the terms by keeping whatever is in the box

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shrink-wrap agreement

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do not require users to assent to the terms before downloading or using certain software -often unenforceable because they do not satisfy the agreement requirement of contract formation

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browse-wrap terms

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defined as an "electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record"

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e-signature

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declares that a signature may not be denied legal effect or enforceability solely because it is in electronic form -an electronic record is considered sent when it is properly directed to the intended recipient in a form readable by the recipient's computer system -electronic record is considered received when it enters the recipient's processing system in a readable form even if no individual is aware of its receipt -if this is enacted without modifications the state law governs

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UETA

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information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable visual form

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record

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if a state has enacted the uniform version of the UETA it s not preempted by the E-SIGN Act -allows the states to enact alternative requirements for the use of electronic records or electronic signatures

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E-SIGN act

Chapter 9 Notes- Formation of Traditional and E-Contracts

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