6 Basic Contracts Issues
I know this sounds crazy, but contracts is my favorite subject, so I guess I will start with sharing parts of my contracts outlines... since I cant figure out how to link stuff (technologically retarded), I will end parts of my outlines as posts. Hope this is helpful!!
6 Basic Contracts Issues:
1. Did the parties form an agreement?
• The law of offer and acceptance – there can be no true contract unless the words of the parties manifest a mutual objective assent to be bound by the terms of an agreement.
• Ambiguity language or mistake of the parties.
2. If the parties formed an agreement, is their agreement a contract?
• Is their bargain a contract?
• The presence of valuable consideration – bargained for legal detriment on both sides
o Promissory estopple
• Defenses to enforcement – voidable v. void
3. Do the terms of that contract or the subsequent actions of either of the parties confer any rights or impose any duties upon non-traders?
• Do the terms of that contract or the subsequent conduct confer any rights upon any non-parties?
• 3rd party beneficiaries
• Assignees and delegates of duties – subsequent parties of the formation of the contract
4. Have the performance obligations created by the contract matured?
• Conditions – express (created by the terms in the bargain)
• Implied in fact – necessary physical inference from what the parties obviously assumed
• Conditions implied at law – constructive conditions – arise by operation of law
• Every condition modifies a promise – the condition does 1 of 3 things:
o Before – condition precedent
o Simultaneously – condition concurrent
o After – condition subsequent – always express, never implied – will extinguish what up until that time was an obligation of the contract
5. If the contract obligations have matured, has performance been excused?
• Have the obligations been preformed and performed on time?
• Have they been excused? Excusable non-performance:
o 1. Where the performance obligations have become objectively impossible
o 2. Where the performance obligations have become commercially impracticable
o 3. Frustration of Purpose – subsequent to formation of contract circumstances have so dramatically altered that the performance of other party have no value
6. If performance has not been excused, the contract has been breached. What are the remedies?
• If the performance obligations have not been excused and have not been formed, the contract has been breached.
o Present material breach
o Breach by anticipatory repudiation
o Breach by voluntary disablement
• Remedies, damages, restitution and reimbursement
• No adequate remedy at law – sue in equity
o Declaratory judgment
o Specific performance decrees
o Injunctive assistance
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