Commercial Law

Front 1

in order to be legally operative the person who offers the contract must say _____________ and the contract offeree must say _______________

Back 1

- he must say what he will do anf for what
- what the other party says is what they will do in exchange
it must be expressly stated who is doing what for what

Front 2

are the terms of contracts always enforcable?

Back 2

no

Front 3

can onerous or stringent clauses, not made aware of to the offeree be enforced?

Back 3

they may not be

Front 4

what is a forum selected clause?

Back 4

the contract can say where the court action will take place, if any

Front 5

what is a "puff"?

Back 5

mere sales talk
eg:world's best coffee

Front 6

in the act of a misrepresentation, the plaintiff must establish that the representation became a term of the ___________ __________ between the two parties

Back 6

contractual relationship

Front 7

what are the fivve requirements for fraudlent mistrepresentation

Back 7

1. representation of FACT made by salesperson
2. representation is untrue, inaccurate, or misleading
3. Fault: the salesperson know that the rep was false or was reckless to the truth
4. the misrep must have caused the purchaser to entre the contract
5. damage

Front 8

does the fact that the purchaser/offeree could have investigated but did not have an effect on bringing a fraud misrep claim>

Back 8

no, the purchaser may still bring a fraud claim

Front 9

what are the remedies to fraudulent misrep?

Back 9

damages
rescission

Front 10

what is recission?

Back 10

cancellation of a contract and the return of parties as they were previous to the contract

Front 11

what are the 6 requirements for negligent misrepresentation?

Back 11

1. representation of FACT made by salesperson
2. representation untrue, inaccurate, or misleading
3. fault: the salesperson did not take reasonable care in making the statement or in the reserach leading up to the statement
4. misrep must have caused the purchaser to enter the contract
5. Duty owed by salesperson to purchaser. "you can trust me" of the salesperson and reasonable reliance of the purchaser
6. damage

Front 12

if you can prove a negligent misrep then you are entitled to _____________

Back 12

damages

Front 13

what happens in the case of an innocent misrep?

Back 13

equitable recission: only if you can return what has been bought in the condition it was purchased in and you must return it promptly

Front 14

are there any options of damages available for innocent misrep?

Back 14

NO

Front 15

Does contributory negligence disentitle anyone from recission?

Back 15

no

Front 16

an ________ ___________ or doctrine of ________ may disentitle one from recieving recission.

Back 16

unreasonable delay
or doctrine of laches

Front 17

which act protects consumers?

Back 17

consumer protection act of 2002

Front 18

in the consumer protection act, how is the consumer described?

Back 18

broadly

Front 19

what are the 4 categories of Mistake?

Back 19

1. misunderstanding/mistake in terms
2. mistake in integration
3. mistake in obligation
4. mistake in fundamental assumption

Front 20

what does misunderstanding/mistake in terms mean?

Back 20

each partythinks something different about a fuundamental term in the contract

eg raffle v wichelhaus

Front 21

if some essential element of the contract could have two different meanings when viewed objectively, then there ________________.

Back 21

is no contract

Front 22

if the misunderstanding is merely subjective then what happens to the contract?

Back 22

it still exsists on the reasonable interpretation of the terms

Front 23

what does mistake in integration mean?

Back 23

eg shift the decimal point from $1000 to $10 000

Front 24

what is the remedy for mistake of integration?

Back 24

rectification which means that the court will correct the contract and then enforce the correct meaning

Front 25

what is an example of mistake of performance? and what is the remedy?

Back 25

you pay your visa bill twice
restitution: here is would be a refund

Front 26

what is unjust enrichment?

Back 26

an enrichment to one side and coresponding deprivation in the other with no legal reason for the enrichment

Front 27

describe mistake in fundamental assumption

Back 27

mistake must be implicitly shared between the parties and it must be fundamental to the existence of the contract.

Front 28

what does implicitly shared mean?

Back 28

if only one party makes the mistake then that party is shit out of luck

Front 29

what is fundamental mistake?

Back 29

when the contract is to buy something you alrady own
when the thing purchsed is already destroyed before the contract

Front 30

what is the function of contract law?

Back 30

facilitates exchange and separates the moral from the legal

Front 31

what are special contracts?

Back 31

judges rule over these parts of contracts because there are highly specialized laws created for these contracts
Eg: sale of good act or consumer protection act

Front 32

what are the 3 technical aspects of contract formation?

Back 32

1. offer and acceptance
2. consideration
3. intention to created legal relations

Front 33

how does Corbin define offer?

Back 33

an offer is an expression by one party of their assent to certain definitive terms, which looks forward to acceptance by another to the exact same terms

Front 34

who is the offeror?
who is the offeree?

Back 34

offeror = making offer
offeree = the one to whom the offer is made

Front 35

what are some requirements for an offer?

Back 35

inclusive terms
outward directed expression
sufficiently certain
objective
time requirements
willingness to be bound

Front 36

"I will sell you my house" is this an offer?

Back 36

no because it is not complete! you must say:

" I will sell you my house for $XXXXXX.xx"

Front 37

" I will give you $XXXXXX.xx" is this an acceptance to an offer?

Back 37

no because it is not complete! you must say:

" I will give you $XXXXX.xx for your house"

Front 38

what is outward directed expression?

Back 38

the offer is in a form of communication leading the offeree to beleive it was directed to them

Front 39

what is sufficiently certain?

Back 39

the contract must state that the terms are definitive - very clear and set

Front 40

contracts to agree or to negotiate - are these enforcable?

Back 40

no, they are not sufficiently certain enough to be enforced legally

Front 41

what is the objective standard?

Back 41

whether or not there has been offer and acceptance is judged objectively

Front 42

what are the time requirements?

Back 42

the offer has to be made before the acceptance (obviously)

two identical offers sent by different parties to one another do not make a contract byt rather are cross-offers both awaiting acceptance

Front 43

what is willingness to be bound?

Back 43

to count as an offer the statemet must show a willingness to be bound by that offer

Front 44

the common law makes a distinction between and which is accepted, would form a ___________, and a mere invitation to ________.

Back 44

contract
treat

Front 45

what is an invitation to treat?

Back 45

its a statement that is designed to elicit an offer from the party to whom it is addressed

Front 46

the display of merchandise is considered what

Back 46

an invitation to treat NOT AN OFFER

Front 47

what are the two types of contracts?

Back 47

bilateral
unilateral

Front 48

what is a bilateral promise

Back 48

promises are exchanged for promises

Front 49

what is a unilateral contract

Back 49

promise is exchanged for an act

Front 50

are both types of contracts enforceable?

Back 50

yes

Front 51

give an example of a unilateral contract case

Back 51

carlill v carbolic smoke ball
the smoke ball promised to cure influenza and other colds within two weeks of use of three times per day or you would get a $100 reward. In the add they said the money was already in the bank prepared to pay out to people.

Front 52

is it legally permissable to make an offer to the entire world?

Back 52

yes

Front 53

before an offer can be legally binding what must happen?

Back 53

the offer must be accepted by the offeree

Front 54

what are the four requirements for acceptance of an offer?

Back 54

1. clear an unconditional acceptance
2. communicated to offeror in compliance with terms stated in offer
3. made with knowledge of offer (motive is irrelevant)
4. made in response to an offer ie. not just a cross-offer

Front 55

acceptance of an offer is not just _____________________

Back 55

mere acceptance of the offer like " sounds good to me"

Front 56

Livingstone v Evans:
E: I will sell my land to you for $1800
L: Send lowest cash price. will give $1600 cash
E: Cannot reduce price
L: I accept

is there a binding contract here?

Back 56

NO
- the statement to pay 1600 was not in the original offer
- there was a counter offer of 1600

Front 57

communicated usually means brought ______________________

Back 57

brought to the notice of the offeror

Front 58

can the offeror insist acceptance be in a certain form?

Back 58

yes or else the contract is not enforcable

Front 59

when can an offer be revoked?

Back 59

anytime before it is accepted

Front 60

in revoking the offer once already accepted, must the original offeror be the one to revoke the original offer?

Back 60

no it can be by proxy to the offereee

Front 61

what is the main thing that the consumer protection act protects us from?

Back 61

protects from liability for unrequested goods and services
but allows book of the month clubs!

Front 62

in bilateral contract: X promises to cut Y's grass on Friday in return for a promise that Y will pay $20

Xdoes not cut the grass and Y sues...Can Y win?

Back 62

YES

Front 63

is past consideration a valid consideration?

Back 63

no