bilateral contract
promise given in exchange for another promise
unilateral contract
promise given in exchange for an action or refraining from acting
detriment
means any act which occasioned the offer the slightest trouble or inconvenience and which the offer was not otherwise obliged to perform or refrain from performing
benefit
anything of slight or trifling value tot the oferror
mutuality
consideration must support both parties' obligations in order for the obligation to be contractual
illusory promises
imposes no contractual obligation on promisor and therefore there would be no binding contract
creditor
person who is owed by money
debtor
person who owes money
1-206
other personal intangible property
8-319
securities (exception-wisconsin doesn't require a writing for contracts involving securities)
9-203
security agreements
2A-201
leases of goods
regulatory license
measure designed to protect the public from unqualified practitioners
revenue license
doesn't seek to protect against incompetent or unqualified practitioners but serves simply to raise money
wager
parties stipulate that one shall win and the other lose depending on the outcome of an event in which their only interest is the possibility of such gain or loss
usury statute
law establishing a maximum rate of permissible interest for which a lender and borrower of money may contract
restraint of trade
any contract or agreement that eliminates or tends to eliminate competition or otherwise obstructs trade or commerce
covenant not to compete
agreement to refrain from entering into a competing trade, profession or business
exculpatory clause
excuses one party from liability for her own tortious conduct
procedural unconscionability
involves scruitiny for the presence of bargaining naughtiness; the manner in which the contract was formed is unconscionable
substantive unconscionability
the courts examine the actual terms of a contract for oppressive or grossly unfair provisions; a term or condition of the contract is unconscionable
adhesion contract
standard form contract prepared by one party, generally involves the preparer offering the other party the contract on a take it or leave it basis
disaffirmance
releases the minor from any liability on the contract
expectation interest
their interest in having the benefit of their bar gain by vein put in a position as good as the one they would have been in had the contract been performed
reliance interest
their interest in being reimbursed for loss caused by reliance on the contract by being put in a position as good as the one they would have been in had the contract not been made
restitution interest
their interest in having resorted to them any benefit that they had conferred on the other party
loss of value
difference between the value of the promised performance of the breaching party and the value of the actual performance
incidental damages
damages that arise directly out of the breach, such as costs incurred to acquire the non delivered performance from some other source
consequential damages
damages not arising directly out of a breach but arising as a foreseeable result of the breach
reliance damages
place the injured party in a position as good as the one she would have been in had the contract not been made
nominal damages
a small sum fixed without regard to the amount of loss
out of pocket rule
general damages equal to the difference between the value of what she has received and the value of what she has given for it
benefit of the bargain rule
general damages that are equal to the difference between the value of what she has received and the value of the fraudulent party's performance as represented
liquidated damages provision
the parties agree in advance to the damages to be paid in event of a breach
mitigation of damages
the injured party may not recover damages for loss that he could have avoided with reasonable effort and without undue risk, burden, or humiliation
reformation
process whereby the court rewrites or corrects a written contract to make it conform to the true agreement of the parties
specific performance
equitable remedy that compels the defaulting party to perform her contractual obligations
restitution
the act of returning to the aggrieved party the consideration, or its value, that he gave to the other party
sales talk
exaggerations reasonably to be expected of a seller as to the degree of quality of his product, the truth or falsity of which cannot be precisely determined
negligent misrepresentation
without knowledge of the falsity of the representation but made without due care
innocent misrepresentation
without knowledge of the falsity of the representation but made with due care
mutual mistake as to material issue
both parties mistaken - belief about a material fact not in accord with the truth
unconscionable
oppressive to the mistaken party, or results in an undue hardship to the mistaken party
duress
wrongful coercion that induces a person to enter into or modify a contract
undue influence
unfair persuasion exerted by one person upon another during the bargaining process where the relationship between the parties is either one of trust and confidence
third party creditor beneficiary
was one of the parties intending to discharge an obligation owed to the third party
third party donee beneficiary
was one of the parties intending to confer a gift on the third party
express
using words
implied-in-fact
a condition that can be implied from the circumstances or the parties' conduct
implied-in-law
constructive conditions
total performance (perfection)
when is perfection the appropriate standard
2-601 perfect tender rule
perfection is the standard for seller's performance under a sale of goods contract
doctrine of substantial performance
issue when does less than 100% performance not constitute a material breach which would discharge the non-defaulting party
time of performance
generally, performance by the stated time or within a reasonable time thereafter is acceptable
privity of contract
only those persons who are parties to a contract can have rights/obligations under it
vested
become binding
tier 1 (the dealer)
a person who deals in goods of the kind
tier 2 (the professional)
a person who by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved
tier 3 (the merchant by agency)
a person to whom the knowledge or skill referred to above is attributed by his employment of any person who by his occupation holds himself as having such knowledge or skill
merchant
a person who deals in good of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of any agent or broker or other intermediary who by his occupation holds himself as having such knowledge or skill
sale or return
regarded as a completed sale subject to the return policy
sale on approval
buyer is treated as a bailee until buyer accepts the goods