Terry - Contracts Outline - Types of Contracts Types of Ks...

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Types of Contracts Types of Ks as to Formation 1. Express – formed by language , oral or written 2. Implied – formed by manifestations of assent, usually in the form of conduct other than oral or written 3. Quasi-Contract – not actually Ks; constructed by courts to avoid unjust enrichment through remedy of restitution. Types of Ks as to Acceptance Classical 1. Bilateral – promise for promise only; exchange of mutual promise 2. Unilateral – promise for performance; acceptance by performance revocable by offeror at any time prior to completion of performance Modern – most Ks are bilateral 1. Bilateral – acceptance by Promise or Start of Performance (R2d 32) 2. Unilateral – limited to two circumstances a. where offeror indicates acceptance only by completion of performance b. offers to the public (i.e., rewards) Test: Bilateral vs. Unilateral 1. Bilateral – each party has a right and a duty 2. Unilateral – one party only has a right and the other has only a duty Types of Ks as to Validity 1. Void – without any legal effect from the beginning (K for illegal acts) 2. Voidable – one or both parties may elect to avoid (K of minors) 3. Unenforceable – valid, but not enforceable due to various defenses (like statute of limitations or frauds) Step 1: What Law Applies? Common Law or UCC COMMON LAW: governs everything but those covered by UCC. Common applies to everything, including goods, unless the UCC conflicts, then UCC prevails regarding goods. UCC: governs the exchange of goods (movable objects) between merchants (someone who deals in goods or by his occupation holds himself out as having knowledge or skills peculiar to goods involved). If conflict between UCC and common law, then UCC prevails! Step 2: Was a contract validly formed? ELEMENTS 1. Mutual Assent (offer and acceptance)? 2. Consideration, or some substitute? 3. Defenses to formation? 1
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MUTUAL ASSENT – OFFER AND ACCEPTANCE I) Generally: “a meeting of the minds.” No actual meeting is required; but an objective measure of intent to be bound. An OFFER and ACCEPTANCE are forms of assent. Offer and acceptance + intent to be bound Can be express or implied-in-fact (not expressed by is bargained for exchange) exmp ordering food off menu – never say “I will pay you” but implied by circumstances A) Objective Measure of Intent 1) External manifestations of intent to be bound (a) Reasonable person std – what would reas person in same position believe (b) Not necessarily expressed: can be by gesture, silence (c) Easier to determine than pure will theory (d) May make ppl conform to more reas behavior B) R2d 20 1) A & B have same meaning K w/ that meaning (subjective)
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  • Fall '05
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