Category: Contract law

When does silence = acceptance of an offer?

Although our general rule is that acceptance requires some sort of overt manifestation that the offeree accepted an offer, sometimes silence is enough  to accept an offer. Remember, the elements of a contract are offer, acceptance, and consideration.  So how can an offeree accept an offer through silence? As discussed in the video above, if the offeree knows the terms of the offer, has an opportunity to reject the offer, but instead remains silent and accept the benefit of the offer, a court is likely to conclude that the offeree accepted the offer. The Restatement (Second) of Contracts Section...

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What is the difference between a promisor and promisee?

A promisor is someone who makes a promise to a promisee. Contract law teaches us whether the promisor is legally obligated to keep his promise. For example, if Mr. A promises to pay Mr. B $500 then A is the promisor and B is the promisee.  Contract law informs us whether Mr. A is liable if he breaks his promise. Consider the following example:  Mr. A promises to pay Mr. B $500 and Mr. B says, “Great!  Now I can get that tablet computer I always wanted.”  Is A in legal trouble if he decides not to pay?  Contract...

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What is the difference between a “claim” and an “issue”?

A claim and an issue are very different. Claims Think of a claim as an assertion that is one is legally entitled to relief from a court.  Let’s say David promises to give Patty his bicycle on Tuesday.  Patty says, “Thanks for the present!” But on Tuesday David refuses to give her his bicycle. Patty decides to sue David.  She will claim that David harmed her by refusing to turn over the bicycle and that the court should help her.  She might claim that she had a contract with David and that David breached the contract. Issues Issues are legal questions that a court must answer before deciding a case. In Patty’s case against David the legal question might be, “Is a defendant required to give a bicycle to a plaintiff if he promised her the bicycle but both parties considered the bicycle to be a present and the plaintiff promised nothing in return?” To decide whether Patty should prevail on her claim the court would need to answer the issue of whether the promise to give a present is legally enforceable.  Put another way, the issue might be phrased as, “Was the promise to give a bicycle a contract between David and Patty that the court must enforce?” Of course, a claim can raise one issue or multiple issues.  The court will identify those issues that are relevant to the case and determine...

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What is the difference between an implied warranty of merchantability and an implied warranty of fitness for a particular purpose?

Implied Warranty of Merchantability The implied warranty of merchantability means that a merchant is liable if he provides a consumer with a product has a defect which prevents the consumer from using the product for its normal purpose.  Even if the merchant did not expressly promise that the product would be suitable for normal use, the law imposes this promise.   For example, let’s say Davida buys some lipstick but the lipstick burns her lips because of a chemical contained in the product.  We all know that lipstick is supposed to be applied to a person’s lips – – that is its normal use.  If the lipstick has a chemical that burns people’s lips then the lipstick is not fit for normal use and the merchant breached the implied warranty of merchantability. The Uniform Commercial Code codifies the implied warranty of merchantability at UCC 2-314. Implied Warranty of Fitness for a Particular Purpose The implied warranty of fitness for a particular purpose protects consumers who buy a product from a merchant for a special purpose and the merchant knows (or should know) that the buyer is relying on the merchant’s special knowledge or judgment to furnish a product that is suitable for that purpose. For example, let’s say a merchant sells fishing rods.  He knows that a customer needs a fishing rod for deep sea fishing.  The  consumer is...

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