Please enable JavaScript.
Coggle requires JavaScript to display documents.
Contracts, Requires a writing signed by the parties
only material terms
…
Contracts
Step 3: Interpretation
Temm 151-53
- K's construed as whole
- Preference to written/typed provisions
- Ordinary meaning
- Construed against drafter if ambiguous
Warranties (fill gaps)
-
Implied warranty of fitness for particular purpose = product fits what buyer wants (salesman who picks for buyer)
-
Parol evidence rule
Whether meaning of document can be determined by negotiations of parties prior to written k
-
-
Step 2: Formation
Temm 149-50
Does a k exist?
Offer
Acceptance
Consideration
- "Bargained for"
- Promise induces detriment/detriment induces promise
- Forbearance by promisee if gives promisor benefit
- Detriment/benefit must have legal value
- Cannot be preexisting contractual/statutory duty; must be new
- UCC - not required to modify sale of goods k (good faith instead)
Can be substituted by promissory estoppel if:
- Promise;
- Reliance that is reasonable, detrimental, foreseeable; and
- Enforcement necessary to avoid injustice
-
- Common law/UCC - offeror can control by stating conditions
- If offer silent as to method, offeree may accept by starting performance (must complete if unilateral)
- By letter - valid on dispatch (when places in mail); if offeree changes mind and sends later acceptance, earliest controls (mailbox rule)
- Must be CDE (clear, definite, explicit)
- Offeree has power of acceptance
- Cannot be accepted if terminated
- Termination by:
- offeror - revocation
- offeree - rejection or counteroffer
COUNTEROFFER
- Terminates offer/creates new offer
- NOT mere bargaining
- But conditional acceptance terminates offer ("so long as" or "provided")
- "Mirror-image rule" = if acceptance does not have exact same terms as offer, treats new terms as revocation of original offer (common law)
- UCC - change of terms not counteroffer/may constitute acceptance
Bilateralpromise promise
Unilateralpromise performance
-
Step 4: Performance
Temm 153
Duty to perform discharged by:
- performance,
- tender of performance,
- and completed condition subsequent
OR if performance:
- illegal
- impossible
- impractical
- frustrated
- rescinded
Conditions
-
-
-
-
-
-
Failure to fulfill a condition not necessarily breach, but may relieve other party of performance
-
Third Parties
Temm 155
Assignment
Transfer of right to receive performance under a k
- Owner must manifest intention to make present transfer of right
- Partial = valid
- Assignee can enforce against obligor
- NOT assignable if:
- substantially changes k's risks/duties
- for future rights to arise under future k's
- illegal
Delegation
3rd party agrees to satisfy performance of obligation owed by one of a k's parties
- Does not relieve delegator from obligations
- Delegator remains liable for k's performance UNLESS novation (obligee agrees to release delegator in return for liability of delegatee
- NOT delegable:
- personal performance k's - recipient relies on qualities of party to perform
- if k prohibits
Beneficiaries
-
Intended = promisor's performance meant to benefit; can enforce k against breaching promisor but no rights against promisee
Breach
Temm 154
Failure to perform when under duty to perform
-
Minor = non-breaching party must perform, but entitled to damages
UCC - if goods do not conform to k, buyer may reject, accept, or except only certain ones
Requires a writing signed by the parties
- only material terms
- if UCC, alternatively must state k for sale of goods and contain quantity of goods
-
Mistakes
- both parties/ material fact = voidable by adversely affected party
- one party/ does not prevent enforcement, but if non-mistaken party knew or had reason to know, voidable by mistaken party
-
Mutual assent