Contracts w/NY Distinctions

CONTRACTS

topics

-FORMATION
-SOF
-TERMS
-PERFORMANCE
-EXCUSES for NON-PERF
-REMEDIES
-THIRD PARTY PROBLEMS

CONTRACTS

K formation

-terminology
-offer?
-offer termination?
-acceptance?
-consideration.
-defense against formation?

CONTRACTS

k formations

TERMINOLOGY

K:
(LEGALLY ENFORCEABLE AGREEMENT)
-EXPRESS: created by words (oral or written)
-IMPLIED: created by conduct
-BILATERAL K: acceptable in any reasonable manner
-UNILATERAL K: accept by performing

QUASI K DOCTRINE:
(Remedy of last resort, to prevents unj enrich where K law otherwise yields unfair result)

A2 MERCHANTS:
(broadly defined; includes just about every business person)

SIGNED WRITING:
(broadly defined to include letterheads, initials, and stamps)
-ACKNOWLEDGED(in front of a notary)

MODIFICATION: NY: Clause prohibiting oral modification are not enforceable (so you can always modify a contract orally under common law even if you have agreed not to)

K FORMATION

offer?

RULE/
an offer requires there be a manifestation of intent to be bound

ADS
-rule: ads not offers
-exception: specified quantities

INDEFINITENESS/ (term is too indefinite to be enforced)
-open price term: curable by ct reading in reasonable price
-requirements K (a2): quantity may be indefinite but no surprise spikes even if in good faith

REVOCATION

note: offer revocation effective only on receipt

express revocation

implied revocation
-offeror conduct, offeree knowledge

4 EXCEPTIONS:
-OPP: paid promise option
-OFS: offeree's foreseeable rel
-Performance Begun in Uni K
*NY: offer revocable till completion
-A2 M making FO (3 mnth max)

REVOCATION

a. COUNTEROFFERS; CHNGING TERMS
-but not mere bargaining
-A2 M's can vary terms

b. CNDNTL ACCEPT is NOT ACCPT

c. DEATH OF PARTY
-Revocable Offers Terminated
-Irrevocable Offers Not

OFFER

A2 M's MAKING COUNTER

RULE/
varying terms allowed:

1. among merchants
2. non-material term
orig offeror must then obj within a rsnble period of time

material:
(change that is likely to cause hardship, surprise to offeror, i.e., disclaimer, but not something customary in the industry

OFFER ACCEPTANCE

generally language controls

starting performance in a bilateral K; but if you have a unilateral K, then completing performance is required for acceptance
*NY re: Revocation

improper performance is acceptance and breach

scca

mailbox rule

ny bonus

UNSOLICITED MERCHANDISE

Considered a Gift, i.e., unintended recipient may possess and not have to pay in the future

OFFER ACCEPTANCE

mailbox rule

note: burden of lost mail on offeror

accptance effective when mail

-n/a where: recipient's reliance on speedier rejection

-n/a if rejection is sent before an acceptance, race is on

-irrevocable offer exception
(offeree doesn't need its protection)

FORMATION DEFENSES

1. Capacity
2. Duress
3. Misrep/Non Discl re: Material Fact
4. Ambiguity/Misunderstanding
5. Mistake
6. Lack of Consideration
7. Public Policy
8. Unconscionability

DURESS ELEMENTS

-Threat to Break Existing K
-Victim Agrees to Second K to Prevent
-No Reasonable Alternative
(only way to get benefit of 1st deal done is with original party)