Contracts Bar Outline- Law 280.docx - What is a K A What...

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What is a K? A. What Law Applies? Common v. UCC Art. 2 a. UCC Article 2 governs Ks involving the sale of goods. The common law governs all other Ks. i. Goods- 1. Goods are all things movable at the time that they are identified to be sold under the K. 2. Under Article 2 a number of rules depend on whether the seller and/or buyer are merchants a. Merchants are one 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. b. A few article 2 provisions (e.g., the implied warranty of merchantability) require a person to be a merchant with respect to goods of the kind being sold i. For article 2 provisions dealing with general business practices , almost anyone in business can be deemed a merchant B. Types of Ks a. Express- are formed kby language, oral or written b. Implied in Fact- implied K formed by manifestations of assent other than oral or written language, i.e., by conduct c. Quasi-K or implied in law i. Not real K, but constructed by the courts to avoid unjust enrichment. C. Acceptance Required a. Bilateral K- Exchange of Mutual Promises i. A promise for a promise b. Unilateral K-Acceptance by Performance i. The traditional unilateral K is one in which the OR request performance rather than a promise. Give promise to pay upon completion c. Modern View- Most Ks are Bilateral i. Under this view a K that can only be accepted by performance occurs in only two situations 1. (i) when the OR clearly (unambiguously) indicates that completion or performance is the only manner of acceptance 2. (ii) where there is an offer to the public d. As to validity i. Void K- A K that is totally without any legal effect form the beginning- cannot be enforced by either part. ii. Voidable K- A voidable K is one that one or both P may elect to avoid( e.g., by raising a d that makes it voidable) iii. Unenforceable K 1. An unenforceable K is an agreement that is otherwise valid but which may not be enforceable due to a voidable K D. Creation of a K a. In order for a K to be created there must have been a) mutual assent between the parties (O + A), b) consideration exchanged, and (c) there can be no defenses to the creation of the K Mutual Assent- Offer + Acceptance A. In General offer and an acceptance determined using an objective standard i. Did the words or conduct manifest a present intention to enter into a K? ii. Offer-Promise, undertaking, or commitment with definite and certain terms communicated
iii. Acceptance before termination by revocation, rejection, or operation of law. B. The OFFER a. Did the communication create a reasonable expectation that OR intended to be bound i. Was there an expression of a promise, undertaking, or commitment to enter into a K?

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