contracts. what is a contract? an agreement that is enforceable by law must have an offer and...
TRANSCRIPT
Contracts
What is a Contract?
An agreement that is enforceable by law Must have an offer and acceptance on
mutually satisfactory terms Intent is more important than the language
used
Unilateral Contract
Only one person is obligated to perform. The offer calls for the party to act. Example??
Bilateral Contract
Both parties receive something in return for the contract
Both parties are obligated to perform an act. Example?
Who May Enter Into Contract?
Persons who have capacity Have the ability to understand their actions
and the effects of those actions
Those Who Lack Capacity
Minors Intoxicated People Insane People
These individuals may disaffirm most of their contracts
Disaffirm
Set aside, void, nullify Most minors do not disaffirm because they do
not know they can and most purchases are fair
You Cannot Disaffirm
If you lied about your age If a minor and an adult enter into a contract,
only the minor can disaffirm as long as they are still the age of a minor
ELEMENTS OF A CONTRACT
Offer Acceptance Genuine Agreement
Capacity Consideration Legality
Offer
Offeror The person who makes the offer
Offeree The person who the offer is made to
An offer must
Have contractual intent Be Serious, Have no humor, anger, or opinion
Have all terms complete and definite State price, subject matter, and quantity
Communicated to the offeree If you did not know about the offer, they are not
obligated for it.
Is this an offer?
This is not an offer because it does not state exactly who they will sell this Jeep Wrangler to. Instead it is an invitation to start preliminary negotiations
Is this a contractual offer?
John asked Sara the movies Friday night. No, social agreements are not contractual
offers. You can not sue someone for breaking a date unless money has been spent in preparation for the date.
How is an Offer Ended???
Revoking an Offer
Saying No (Must be said) Can happen before you receive the offer This can be done be the offeror anytime
before the offer is accepted
Making a Counter Offer
Change the terms being discussed The first offer is no long available
Time
Time has expired that was stated in the offer Subject matter destroyed Death or Insanity of either the offeror or
offeree will terminate the contract A reasonable length of time has expired
since the offer was extended Based on the product
Option
The offeree gives something of value to keep the offer open for an extended period of time
Firm Offer
Both parties state in writing how long the offer is to stay open Max of 3 months
No money exchanges hands This applies to merchants (individuals who
regularly deal in the goods being bought and sold)
Acceptance
Acceptance is…
When the offeree agrees to the offer or has performed according to the offer
3 Criteria of Acceptance
Made in a reasonable manner by the offeree In Person Phone Mail/Email/Text Message Fax
Mirror Image Rule Serious intention by matching the offer
Communicated to the offeror
When does Acceptance Take Effect?
When sent by the same means used for the offer, or by faster means
If the offer says “received by this date” or “must be sent by this means” then that takes precedent.
Acceptance Can Make A Contract
Valid
Both Sides Agree Enforceable Contract by law
Void (Invalid)
Both sides do not agree on the same terms Not Enforceable
Voidable
One party does not agree to all the terms Minor’s contracts Contracts involving fraud
Unenforceable Contract
Time limits have expired No action can be taken
Genuine Agreement
All parties are serious
Assignment
Get with a partner Which ever first name comes first in the
alphabet is the offeror (seller) The other is the offeree (buyer) Together, create a role-play showing how a
basic contract is created for the purchase of either a used car, used Ipod, or used cell phone.
Be prepared to share your contract with the class.
What is Consideration?
Consideration is
The promise or action given in exchange for the promise or action of another
Forms of Consideration
Unilateral One person gives
something
Bilateral Both parties give
something Also called mutual
consideration
6 KINDS OF CONSIDERATION
1. A return promise
2. An act other than a promise
3. Forebearance (agree not to do something)
4. A change of legal relations
5. Money
6. Other Property
Why is Consideration Required?
Force Performance Feeling of Worth
Are Gifts Consideration?
A gift is a transfer of property without mutual consideration.
The gift cannot be recovered by the donor
Promissory Estoppel
Even when consideration is not present, promises may be enforced if The other party relied on the promise Others would suffer economically Example: Telethon Pledges
What is Sufficient Consideration?
The actual value of the consideration is unimportant as long as the contracting parties have voluntarily agreed
It CANNOT be something you are legally required to do
Nominal Consideration
A token amount identified in a written contract when parties cannot or do not wish to state the amount publicly
LEGALITY
TYPES OF ILLEGAL CONTRACTS
Agreements to: Commit crimes or torts Obstruct legal procedures Injure Public Service Collect money without a required license Usury
Lending money at a higher rate of interest than the state’s maximum rate
Illegal gambling or lotteries Affect marriage negatively
Illegal Contracts Can Be
Void There is no contract and
neither party is bound
Voidable Contract Only the party who has
been victimized in some way may cancel or disaffirm the contract
Most Common Cause of Illegal Contracts
Fraud False representation or concealment of a
significant fact.
What are the Rights of a Defrauded Party?
Contracts entered into as a result of fraud are voidable
Anything that has been received must be returned
You Cannot use Duress to create a contract?
Compelling another person through threat of force or act of violence or illegal imprisonment
What Is Undue Influence?
Undue influence compelling another person to
enter an unfavorable contract This most likely occurs in a
relationship of trust, authority, or confidence
What Happens if You Make A Mistake and Enter Into A Contract
Unilateral Mistake
One of the parties has an erroneous idea about facts of the contract this does not generally affect validity
Bilateral or Mutual Mistake
Both parties are wrong about important facts Either party may disaffirm
When Can a Minor Disaffirm a Contract?
Generally, a minor may disaffirm while still a minor or within a reasonable time of reaching majority
Exceptions for Minors
transfer of real property a contract made with court approval a contract to enter armed forces insurance contracts (in some states)
What Form Does a Contract Need to Be?
Contracts May be
Expressed Spoken or Written
Implied from conduct Paying for a Trax ticket and then getting on the
train without saying a word
Quasi Contracts Parties are bound even though a contract does
not exist Example: A doctor who gave you medical attention at the
scene of an accident may collect a fee for his service even though you did not agree to his help.
Formal Written Contract that must be in a special form
Example: Checks
Simple A receipt
Executed Already Done
Executory One that has not been fully performed
Advantages to a Written Contract
More reliable as proof of agreement Protects against the innocent failure of
memory There is usually greater care and thought in
preparation
Required Elements to a Written Contract
Current Date Offer’s Name(s) Offeree’s Name(s) The Offer The Acceptance
The Consideration Date to be completed
by Signature of both
parties
The Statute of Frauds
The statute of frauds states that certain contracts must be in writing to be enforceable in court a simple memorandum is sufficient if it states quantity and is
properly signed if a contract isn’t signed, the agreement is not enforceable in
court
What Contracts are Subject to the Statute of Frauds?
Buy and sell goods for a price of $500 or more
Contract that cannot be performed within one year
Sale of any real property Contract to pay the debt of another person Contract when the consideration is marriage
Assigning, Delegating, and Discharging
What is an Assignment? Assignment
transfer of contractual rights Bank sells your loan to another institution
The party who makes the assignment is the assignor
The party who receives the contract is the assignee
Delegation of Duties Transferring routine contractual duties
Example: Building Contractors The person who delegates the contract duties
remains legally obligated and responsible
How Are Contracts Usually Discharged? Discharge of contract
both parties perform as promised Substantial performance
the contract is basically performed; however, there are minor modifications or failures to fulfill all parts of the contract
How Are Contracts Usually Discharged? Diminished value rule
if the contract is not fully performed, the buyer is entitled to the value missing
Breach of contract if the contract is not performed, the injured party can cancel
and perhaps sue
How Are Contracts Usually Discharged?
Anticipatory breach if a party notifies the other ahead of time that the
contract will not be performed, the injured party may immediately sue
Cancellation of contract if there is a breach, the terms of the contract are
terminated (cancelled)
Agreement to end the contract by both parties
Impossibility of Performance The consideration is no longer available
Operation of the Law
Your Assignment
Find a contract you, a family member, or friend have entered into
Make a copy of the contract Highlight the important elements of the
contract. (offer, acceptance, consideration, etc)
Bring it to class next time we meet.