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Contracts
St. Thomas University, Florida School of Law
Plass, Stephen A.

Contracts Outline – Plass
 
1.         The Agreement Process
a.         Intent to Contract
i. Offer Made in Jest
 
(1) Outward manifestation of the parties must be consistent with the meaning of the act
 
(2) Lucy v. Zehmer                        Sold the farm to Lucy saying it was only a joke
 
(a) facts that offer persuasive evidence that the execution of the contract was serious business:
(i) appearance of the contract
(ii) under discussion for 40 minutes
(iii) Lucy’s objection to the first draft
(iv) rewriting
(v) signing by Mrs. Zehmer
(vi) discussion of what the sale included
(vii) provision for examination of the title
(viii) completeness of the instrument
(ix) taking possession of it by Lucy
 
(b) Acts of one of the parties have but one reasonable meaning, undisclosed intention is immaterial except when an unreasonable meaning he attaches to his manifestation is known to the other party.
(c) the mental assent of the parties is not requisite for contract formation
(d) if the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party
(e) Outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention
(f) objective theory of contracts states that mutual assent should be determined solely from objective manifestations of assent – what the party does and says (a question of law or fact)
(i) this approach protects the reasonable expectations of the parties
(ii) manifestations should be viewed from the vantage point of a reasonable person in the position of the other party
1) knowledge of a reasonable person, and
2) what this party know or should know
(iii) a question of law
1) A makes an offer to B, A is joking but appears serious, Since B would, as a reasonable person would, believe that A is serious, as a matter of law, A made an offer
(iv) a question of fact
1) A makes an offer to B, B knows that A has joked before, Since B knows this, there may or may not be an offer – a question of fact
 
ii. Intent that legal consequences follow the agreement
 
(1)After intent is established, parties must show consideration for legal consequencesotherwise, no intent
 
(2) Balfour v. Balfour            Husband working abroad pays wife allowance, leaves her, she wants him to continue paying it
 
(a) Not every statement is a legally binding promise, promises may be made as “gift promise” and have no legal obligation – one must look to see of promissory intended legal consequences
(b) Legal consequences can be expressly waived by the parties
(c) common law does not regulate the form of agreement between spouses
(d

and improve appearance] (ii) Dr. fails to achieve a promised result
(iii) Dr. fails to administer a prescribed treatment
(b) the meaning of what was said is a question of fact
(i) use “reasonable person std.” test to determine if what the doctor said was a “statement of opinion” or a promise
(c) It is suggested that agreements b/w doctors and patients be declared unenforceable because of public policy
(i) but doctors maybe frightened into practicing “defensive medicine”
(ii) but outlawing may expose the public to charlatans
(iii) the law has taken a “middle of the road” approach insisting on clear proof
(d) Statements of opinion by the physician with some optimistic coloring of therapeutic value
(e) Doctor-Client relationships, doctors can enter into binding express contract
(f) To distinguish b/w offer & opinion use “reasonable person test”
(g) Has there been an express promise to attain a given result?
(h) Has the professional made an implied promise to exercise due care?
(i) Public policy issue
            However, a doctor can make an express promise if the elements of promise exist