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Condensed PMBR - Outline of CD's (All MBE Topics)

Condensed PMBR - Outline of CD's (All MBE Topics)



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Published by: api-3803061 on Oct 17, 2008
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I.ContractsA.Did the parties form an agreement?
1.Objective theory of K formation: Viewing the actions of the partiesas a reasonable person, was a K formed? Public policy tends to presume that a contract was formed.
2.Was an offer made?
a.Objective (reasonable) present intent to form present K.1.State of mind: Hysterical, angry, etc. party may nothave objective present intent.2.Preliminary negotiations: Discussion of possiblefuture business. Usually doesn’t contain extremelyspecific terms. b.Content1.Essential terms of the proposal.a.Parties b.Subject mattec.Time for performanced.Price2.Offer totally silent on a term may be indefinite.a.Common law interprets silence to impose areasonable term deduced from prior courseof performance of the parties, or if none thengeneral customs of the marketplace. b.UCC between merchants: Merchants canagree to designate a term to be defined anddetermined in the future. Court will implyreasonable term if dispute occurs re: thatterm.c.Communication of intent and content to offeree.1.Offeror must intend to communicate with specifiedofferee.
a.Offer still outstanding at time of acceptance?1.Offeror can explicitly limit life of the offer andmeans of acceptance in the offer.2.Lapse of time: Offer lives for a reasonable time.Consider perishability, volatility of price.3.Acceptance arriving after offer expires is acounteroffer.4.Death or destruction of subject matter terminatesoffer.5.Death, insanity, or legal incapacity of either party.6.Illegality of proposed subject matter, prior toacceptance (revocation by law).1
7.Rejection of offer by offeree.8.Revocation by offeror prior to acceptance, even if offeror promises not to, unless:a.Offeree purchased option (a K) b.Estoppell: Offeror promises to keep offeopen a week, and offeree relies to hisdetriment on that promise.c.UCC: Merchant’s firm signed written offer,even of offeree is not a merchant, for up to90 days. b.Was the acceptance effective?1.Present, unconditional, unequivocal ascent to eachand every term of the offer.a.Common law mirror image rule: Acceptancemust not tamper with any of the terms of theoffer. If it does, acceptance is a counteroffer,and original offer is destroyed. Offer notdestroyed if:i.Offeror manifests willingness tokeep offer alive (revival of offer);ii.Offeree merely proposes that offeroexplore different terms (but clearlynot rejecting offer); or iii.Acceptance contains terms whichwere not in the express offer butwhich are implied by law. b.UCC: If both parties are merchants,acceptance forms a contract even if theacceptance contains different terms (unlessoffer was "take it or leave it" or acceptancewas explicit rejection with counteroffer),and:i.Different terms consistent with offer  become part of K, unless offeror rejects new terms.ii.Different terms inconsistent withoffer become part of K only if offeror ascents.iii.Inconsistency: Materially shifteconomic position, materiallyreallocate risk, or impair remediesotherwise available.c.Grumbling acceptance is a valid acceptance.2.Contract formed when acceptance is dispatched viacommercially reasonable manner, by at least asreliable as method used by offeror (otherwise K 2
formed upon receipt by offeror). Even if offeror does not know acceptance has been dispatched.c.Unilateral 1.Public policy tries to interpret all K’s as bilateral.2.Once offeree begins efficient substantialcompliance, offeror can no longer revoke offer.3.Acceptance can only be by total and complete performance of designated act. Until that point,offeree is not obliged to finish, and offeror is notliable if offeree does not finish.
4.Ambiguity, Mistake
a.Ambiguity1.When an essential term reasonably has either latent(hidden) or patent (obvious) ambiguity to both parties, no K is formed.2.When an essential term reasonably has latentambiguity to one party and patent ambiguity toanother, the interests of the innocent party is protected, and the term is defined by the innocent party’s definition. b.Mistake: Terms do not convey intention of one or both othe parties.1.Mutual mistake about essence of K gives either  party the right to rescind the K.2.Unilateral mistake of miscalculation leading tounwanted bargain, or TP intermediary who screwsthings (the message) up: No remedy if other party’sexpectation was commercially reasonable; canrescind K if other party knew it was too good to betrue.3.No relief if party has made error in business judgment (SOL)
5.Parol evidence rule
a.Written K exists, and litigation has ensued. One partywants to bring evidence of a term or understanding which isnot found within the four corners of the document. b.Writing must be integrated: Both parties must haveintended the writing to be the full and final expression of the terms of the agreement.c.Is the evidence which the party seeks to bring related to any promise, representation or understanding between the parties which was arrived at prior to or contemporaneouswith the formation of the integrated writing?d.The parol evidence cannot be used to vary or add to theterms of the integrated writing. It can explain an ambiguityor explain a term.3

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