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

CONTRACTS OUTLINE
PROFESSOR PLASS
A Contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.
Offer
A promise to do or not to do something in the future, a display of willingness to enter into a contract on specified terms, made in a way that would lead a reasonable person that an acceptance, having been sought, will result in a binding contract.
Acceptance
An agreement either by express or implied acts to a term of an offer so that a binding contract is formed.
Counter-offer
Rejects original offer. A person who gives a new offer different from the original.
Contract of adhesion
One entered into between parties with unequal bargaining power; no choice; “take it or leave it”.
Contract
Promise or set of promises that if breached the law gives a remedy or the performance of which the law recognizes as a duty. Requires:
offer
acceptance
consideration
Express contract
The terms stated by the parties. A contract which expresses the intentions of the parties in words; where there is an actual promise
Implied contract
Where there is no actual promise; when it is manifested by conduct. (through manifestation of assent)
Indefiniteness
The quality of not being sufficiently specific, if too indefinite, they are void.
Void
A contract that is of no legal effect so that there is really no contract in existence at all (no contract has really been formed b/c illegal) –indefinite, illusory, failure of consideration
Voidable
Valid until annulled. Capable of being affirmed or rejected at the option of one of the parties (by fraud, or b/c minor, duress, mistake, coercion, undue influence) (i.e. innocent person may avoid agreement, 1 party has control)
Unenforceable
Valid contract that due to technical defect cannot be enforced (statute of limitations, statute of fraud)
No discretion of whether to follow k b/c law steps in, neither party has control.
Enforceable contract
When a person is entitled to either a money judgment, an injunction, or specific performance due to a breach
Illusory promise-
Merchant
Goods-
 
WHAT CAN BE CONSIDERED MATERIAL TERMS-
GOODS, PRICE, QUANTITY AND DELIVERY TERMS, SUBJECTMATTER, PAYMENT TERMS, QUALITY, DURATION AND WORK TO BE DONE.
CURING INDEFINITENESSà
 
TYPES OF INDEFINITENESS
Chapter 1. The Agreement Process
Intent to Contract
What would a reasonable person be led to believe by words or conduct of other party
Lucy v. Zehmer
The presence of intent and how it’s measured takes the form of actions or outward manifestations and behavior. (objective intent) In general, we are not concerned with what the Δ was thinking but what his actions were. The party’s intention regarding whether a K is to be enforceable will normally be effective. Even if you’re under the influence, you have to have the intent. You judge a person’s intent by what a reasonable person believes them to be. Mutual assent b/c both outwardly agreed to accept.
A court enforces a parties intent, must first find their intent b/4 deciding whether fair or reasonable, if can’t find an intent, than k fails or is unenforceable.
Intent that Legal Consequences follow the Agreementà
Balfour v. Balfour
Gift promises are not triggered by bargaining, or an intention that there should be legal consequences attached to them. Intent to contract involves knowing that the contract could be legally binding. Need to evaluate whether they intended to have legal consequences at time promise was made.
Not everything people say to u evidences contractual intent, someone’s statements may have gratuitous intent (gift promises)
If person doesn’t intend legal consequences, it’s a gift promise. If on bad terms, may be a k.
Gifts is effective upon deliver, not revocable upon receipt.
Clear Statement of intentions necessary for Disclaimerà
Sanchez v. Life Care Centers of America
A disclaimer in an employee handbook must clear and conspicuous so an employee fully understands its contents and stays at-will.
An employer can show contractual intent in an at-will relationship by creating ambiguity in an employee handbook. The handbook can be deemed to offer promises to an employee that must be kept.
At-will creates an illusory promise
The at will doctrine gives employers too much power to act arbitrary, courts don’t like the at will doctrine.
IMPLIED IN FACT (b/c it’s language)
If the meaning of a K is ambiguous or not apparent, it may be necessary to determine the intention of the parties from evidence other than the K itself. In an at-will situation, a contract will be created by an employer who lists reasons for termination in an employee handbook, unless a disclaimer is provided and it is clear and conspicuous.
Intentions Compared w/Bargaining Powerà
KD v. Educational Testing Service
Contracts of adhesion are valid if terms are reasonable and fair. You still have bargaining intent even if no bargain power. No parties are completely equal and contracts of adhesion are enforceable if they are agreed upon, provide reasonable explanation of why charge, and try to aid situation to best ability. (regulated)
Example of adhesion contracts: insurance policies and utility contracts.
MCC-Marble Ceramic
By signing a K a persons actions become physical evidence as to a serious intent to K. If you act irresponsibly in signing a K you are still bound.
HYPO: if after agreeing in a verbal agreement to certain terms of a K, one party switches the terms into another language in which the other party does not understand, the transaction is voidable at the innocent parties choice. It is a fraudulent transaction.
Can also manifest cocntractual intent even if u don’t know what u’r agreeing to,
Exceptions: contracting party doesn’t have a duty to read, fraud or misconduct.
You don’t understand Italian, it says X, and it says Y. If he tell u eitherwise, than its fraud inducement b/c he got u to do it as a representation and fraud in factum b/c he’s switching the language.
Notes:
In K law, you can make a deal and say it is not a deal and there is no legal obligations. Illusory Promise
Always ask, “Do the parties intend this to be binding or do they intend this to be a gift?”
There has to be an intent of legal consequences
The Offer
An offer is the manifestation of willingness to enter into a bargain, which justifies another person in understanding that his assent can conclude the bargain. In other words, an offer is something that creates the power of acceptance.
Offers Distinguished From Expressions of Opinion, Advertisements, Etc.
Collins v. Reynard
Before there is a K, there must be an offer. An implied promise to

eed definite promises in order to K. A definite K has all the critical elements that make it an offer or a promise (price, quantity, parties, subject matter, quantity involved, etc.)
An intent to memorialize is simply an intent to put it in writing.
Test showing DEFINITENESS
Definiteness: clarity of the promise and important details and terms are settled.
o
A court can only carry out the intention of the parties. If a court cannot figure out there intentions then an agreement never existed and is void.
No contract will be found if the terms of the parties’ agreement are unduly indefinite
: if a transaction shows what parties promised each other and if the court can fashion an appropriate remedy. (л requested Δ to quote price for 10 carloads of mason jars): C can steal the power of acceptance of B if A is found to have made an offer. However, time is of the essence because there was no intended offeree. C can steal the acceptances if B did not act in time.
(form letter to sell property – no intended offeree, like ads)
Solicitation of offer is not an offer
Some quotations may rise to offer.
Auctioneer’s ability to reopen bidding. Can reopen bidding even after bid is made at fall of hammer. Look into conspiracy of auctioneer and hammer. (sewing machine)
(Contract with doctor for specific results on nose) (lawyer malpractice)
(Signed a K written in Italian) (LSAT)
(At will employment, disciplinary model of termination and disclaimer caused unintentional promises to employee, who created contractual rightsà outward manifest of k intent, than took it away w/disclaimer)
(Husband & Wife allowance)
(In a drunken state D intended to K with P)
OFFER Made in Jestàobjective theory applies
AGREED ON A MATERIAL TERM, BUT LEFT IT INDEFINITE
PARTIES ARE SILENT TO MATERIAL TERM (MAY LOOK INTO UCC 2-202 CUSTOM, COURSE OF DEALINT, COURSE OF PERFORMANCE)
PARTIES AGREED TO AGREE ON MATERIAL TERM
 
 
IF PARTIES DON’T AGREE TO MATERIAL TERMS (COTTON CLOTH), BUT LATER AGREES TO IT, THAN IT’S OK. any thing that is movable at time of k, including specially manufactured goods, that are for sale . doesn’t include $, price to be paid, investment securities, profits anything in action. May include unborn young of animals and growing crops, and gas and oil. – a person who deals in goods of the kind, but also one who by following particular occupation, has or represents having knowledge or skill concerning the goods. Even a person who doesn’t trade in goods could be considered a merchant if person is a professional user of the goods as opposed to a causal inexperienced seller/buyer. no commitment, promise to do nothing. (wants, or at-will)