FALL 2005 PROF. KAY
I. Types of Contracts
A. Express Contract
1. Formed by language, oral or written.
B. Implied Contract
1. Formed by manifestation of assent by conduct/actions of the parties
2. Not explicitly written or stated.
C. Quasi- Contract
1. Not contracts at all.
2. They are constructed by Ct. to avoid unjust enrichment.
3. Permits a P to bring an action in restitution to recover the amount of the benefit conferred on the D.
1. When a contract is described like this- it has not yet been performed and people haven’t done what they needed to do yet
D. Unilateral Contract
1. Offer request acceptance by performance
2. Once act is completed a contract is formed
E. Bilateral Contract
1. Exchange of a mutual promise.
2. Promise for Promise
3. Today most contracts are considered bilateral and they can be accepted in any reasonable way UNLESS the offeror clearly states that the promise should be accepted by performance or when there is a offer to the public.
F. Validity of Contracts
1. Void Contract -Totally with out a legal effect from the beginning. (ex:contract to commit a crime)
2. Voidable Contract- Where one or both parties may elect to avoid.
(ex: a minor or a mentally ill).
3. Unenforceable Contract-is an agreement that is otherwise valid but that may not be enforceable due to various defenses such as statue of limitation or statue of frauds.
II. WHAT PROMISES ARE ENFORCED?
INTRODUCTION TO CONSIDERATION
a. Indication that something was given or gotten.
b. Something bargained for in the form of a performance, forbearance or a promise.
c. Two general elements: bargained exchange and legal detriment.
d. Hamer v. Sidway- There was consideration for the promise when the nephew gave up things which he had the legal right to do. This case is an example of the detriment- benefit model of consideration.
making this a past consideration- thus not enforceable.
c. Minority View- Webb v. McGowinCt found that the material benefit rendered qualified as consideration. Hard cases make bad law.
d. RT 86-adopts Mill v. Wyman view. It also states that a new promise to pay for benefits received will sometimes be enforceable w/o consideration on grounds of moral obligation and will only be enforce to prevent injustice and will allow D to claim restitution. (ex: If you faint in the side walk and doctor saves you- you are expected to pay him the bill).
a. A moral obligation will be sufficient consideration to support a promise to pay where the promisor has received a material benefit, although there was no original duty of liability resting on the promisor (and it wasn’t requested).