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What is the General Definition of a Contract in the mini review
A contract is a promise or 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.
A contract is a ____________ or ______________

1. for the breach of which _____________ OR

2. for the performance of which ____________________
A. Promise

B. Set of Promises

1. The law gives a remedy

2. The law recognizes a duty
If the law recognizes that you have a duty to perform a promise, do you have a contract

If you the law recognizes that you have a remedy if your friend breaks his promise, do you have a contract?
1. yes

2. yes
How can you know if your promise is legally enforceable so as to have a contract?
1. if the law will give you a remedy if the promise is broken or recognizes that you have a duty to fulfill the promise
Article 2 defines goods as...what
ALL things movable at the time they are identified as goods to be sold under the Contract.
What is a good under Article 2
Anything that is movable at the time the goods to be sold under the contract are identified.

nearly all tangible things can be goods.
What is the key trait of a good?
It is movable...hence nearly all tangible things can and are goods
What does Article 2 NOT apply to?
1. Real estate contracts

2. Services Contracts

3. Construction Contracts

4. Sales of Intangible things
Does Article 2 apply?

1. sale of hamburgers
2. sale of horse
3. sale of car
4. sale of diamond
5. sale of patent
6. sale of "goodwill"
7. sale of health club membership
8. Legal Retainer
9. Sale of Trademark
10. Sale of Organs
1. yes
2. yes
3. yes
4. yes
5. No intangible
6. no intangible
7. no services
8. no services
9. no intangible
10. yes goods (if not against public policy).
Who is a merchant for Article 2 provisions dealing with general business practices?
1. almost anyone in business is deemed a merchant

***For some Article 2 provisions like implied warranty of merchantability a person is only a merchant with respect to goods of the kind being sold in the subject transaction.
For most article 2 provisions, a merchant is what?
a person who regularly deals in goods of the kind sold OR who otherwise by his profession holds himself out as having special knowledge or skills as to the practices or goods involved.
what are some of the article 2 general business practice provisions for which nearly anyone will be deemed a merchant
1. statute of frauds

2. confirmatory memeos,

3. firm offers

4. modification
how are express contracts formed?
by language, oral language or written language
What are the 3 main types of contracts?

What is the primary difference between them
1. Express Contracts
2. Implied Contracts
3. Quasi-Contract (not really a "contract")

B. The manner in which they are formed
a Quasi-Contract is similar to what other type of contract,

why?
1. Implied in Law Contract

2. They are not contracts at all....they are constructed by courts to avoid unjust enrichment by permitting the plaintiff to bring an action in restitution to recover the amount of the benefit conferred on the defendant.
When the court constructs a quasi-contract or implied at law contract what remedy is created for the plaintiff?
the plaintiff may seek restitution to recover the amount of the benefit conferred on the plaintiff.
If a plaintiff gets damages in the form of restitution (as in the case of a quasi-contract or a contract implied at law by the court to avoid unjust enrichment) what is the value of the restitution
the amount of the benefit that the plaintiff conferred on the defedant.
Why would a Court construct a quasi-contract or a contract implied at law
In order to prevent the defendant from being unjustly enriched...to avoid unjust enrichment.
Implied in Fact Contracts are formed by...
manifestations of assent other than oral or written language...i.e. formed by conduct (performance)
How are quasi-contracts and implied in law contracts formed?
A). They're not even contracts at all.

They're formed by judicial construction when the court seeks to avoid unjust enrichment (equity).

permit plaintiff to bring an action in restitution and recover the value/amount of the benefit he conferred on the defendant.
Under the modern view most contracts are..
Bilateral contracts---Exchanges of mutual promises.
What is the "traditional bilateral contract"
A Contract consisting of the exchange of mutual promises

i.e. a promise for a promise; each party is both a promisor and a promisee.
In a bilateral contract each party is both....
A promisor and a promisee because a promise is exchanged for a promise
How is a bilateral contract "accepted"
with an exchange of mutual promises.
What is the distinguishing feature of unilateral contracts
Acceptance is done by performance
The traditional unilateral contract is one in which...
The offeror requests performance (in exchange for his promise) rather than a promise to perform.

There is only one promise exchanged...not a mutual exchange of promises.
In a Unilateral Contract, the offeror-promisor does what?

(there is only one promisor as opposed to two in a bilateral contract)
Promises to pay the promisee-acceptee upon the completion of the requested act by the promisee-acceptee
Explain the differences between a void, voidable and unenforceable contract...

1. A Void Contract is...

2. A voidable contract is

3. an unenforceable contract is..
1. a contract that is totally without any legal effect from the beginning of the contractual relationship (i.e. an agreemetn to commit a crime).

*neither party can enforce a void contract

2. A contract that one or both parties may elect to avoid(void) (i.e. by raising a defense that makes it voidable such as infancy or mental illness)

3. An agreement that is otherwise valid BUT which may not be enforceable due to a defense extraneous to the contract formation, such as a statute of limitations or statute of frauds defense.
What is the key thing to remember about the difference between void contracts and voidable contracts?
1. void contracts cannot ever be enforced

BUT

2. voidable contract may be enforced if an aggrieved party elects to do so.
When a suit is brought in which one party seeks to either;

1. enforce a contract

OR

2. obtain damages for breach

What is the first thing the court must decide?
1. Whether or not there was in fact a contract at all.
In order to determine if there is a contract, a court will ask what three basic questions?
1. was there mutual assent

2. Was there consideration or some substitute for consideration

3. ARe there any defenses to the creation of the contract.
Contract formation is a major topic. For any contract question on the exam you must be sure FIRST that...
there really is an enforceable contract

**
remember to chekc carefully for offer, acceptance (mutual assent) and consideration and then any defenses like statute of frauds problems
There is mutual assent IF;

What standard is used to determine if there is mutual assent
On party has accepted the other's offer.

Whether there is mutual assent (whether the offer was accepted) will be determined by an objective standard; did words or conduct manifest a present intention to enter a contract
How can you determine if there is mutual assent to contract?
by using an objective standard and asking; did words or conduct manifest a present intention to enter into a contract.

*I.e. looking at the facts objectively

Was there an objective manifestation of present intent to contract.
If an offeree subjectively manifests intent to accept the offer in his own mind, is there mutual assent?
A). No. There is only mutual assent if there is an objective manifestation of a present intention to contract.

It has to be objectively clear that the parties presently intend to contract.
An offer creates both a _________________________ in the offerree and a __________________ on the part of the offeror
1. power of acceptance

2. corresponding duty/liability
For a communication to be an offer it must do what
create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms.
In deciding whether a communication creates a reasonable expectation in the offeree that the offeror is willing to contract...so as to constitute a valid offer, you should ask what three questions?
1. Was there an expression of a promise, undertakeing, or commitment to enter into a contract

2. Was there certainty and definiteness in the essential terms

AND

3. Was that expression of a promise and the certainty of terms communicated to the offeree
A communication by the offeror to the offeree will create a reasonable expectation in the offeree that the offeror is willing to enter into a contract if:
The Offeror

1. communicates to the offeree

2. an expression (oral or written) of a promise, undertaking or commitment to enter into a contract

AND

3. the essential terms of the would be offer are certain and definite.

Thus, there would be a valid offer
If ther offeror expresses a communication to the offeree that generates in him a reasonable expectation that the offeror intends to contract with him, there is a....
Offer
If an offeror communicates to the offeree an expressed promise or committement to enter into a contract and the terms of that would be contract are certain and definite, what does the offeree have?
A reasonable expectation that the offeror is willing to enter a contract on the basis of the offered terms and therefore there is a valid offer
If an offeree has a reasonable expectation that the offeror wants to contract there is a valid offer. An offer creates What in the offeree? What about the offeror?
1. in the offeree an offer creats a power of acceptance

2. in the offeror a valid offer creates a corresponding liability or duty to the offeree
For a communication or expression to be an offer it must contain...what?
A promise, undertaking, or commitment on the part of the offeror to enter into a contract.

There must be intent to enter into a contract.
An Expression will not be an offer if it does NOT contain ______________ and is merely an invitation to ________________
1. a promise, undertaking or commitment...exhibiting the intent to contract

2. begin preliminary negotiations
How can you tell the difference between a promise that is necessary for a valid offer and a mere invitation to begin preliminary negotiations?
A). The Expression that is the promise is supported by the intent to contract whereas preliminary negotiations don't have that.
Is it necessary that an offeror use words like "I Offer" or "I Promise" for his expression to objectively manifest an intent to contract?
A). No. it is useful but not necessary
Phrases like "I quote," "I'm asking for X" or "I would consider selling for X" tend to be construed as...
A). invitations to deal; negotiate and not offers
What four things can you look at to determine if a communication by an offeror contains a promise, undertaking or commitment necessary for there to be an offer?
1. the language used by the offeror

2. The Circumstances surrounding the language used by the offeror (was it made in jest, drunk)

3. Any Prior Practice or Relationships between the parties

And

4. The Method of Communication that the offeror used.
In determining whether or not an offer exists or there are merely preliminary negotiations, the courts will look to..
1. the language used by the parties

2. the Circumstances surrounding the language used

3. The prior relationships or practices of the parties involved

AND

4. The Method of Communication
If a statement is made in jest, anger, or by way of bragging and the statement is reasonably understood in this context, will the a Court consider this in determining if there is an offer?
A). Yes The circumstances surrounding language will be considered by courts in determing whether an offer exists. In those contexts...offers made in jext, etc. have no legal effec
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