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. Promisor is important in contract law because we are usually asking  whether the promisor is legally obligated to keep his promise. For example, if A promises to pay B $500 then A is the promisor and B is the promisee.  Contract law will tell us whether or not a court will make A liable if he does not keep his promise.  Consider the following, A promises to pay B $500 and B says, “Great!  Now I can get that tablet computer I always wanted.”  Is A in legal...

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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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What is insufficient consideration?

Studying US contract law you will probably learn that consideration must be “sufficient. ”  But this does not mean that there must be “enough”  consideration.  Consideration must be “legally” sufficient. The general rule in the US is that courts don’t worry about the amount of consideration.  For example, if David offers to clean Patty’s car for $75 a court probably won’t worry about whether the job is worth more or less money.  As long as no deception was involved it probably won’t matter if Patty should have paid $10 or $100.  Court don’t usually concern themselves with the amount of consideration. But courts will worry about legally sufficient consideration.  For example, past consideration is not legally sufficient consideration. If David gives Patty an apple on Monday as a present and Patty is so happy she says she’ll give David a pear the following day, there is no contract.  Patty does not have to give David a pear on Tuesday.   Patty and David did not agree to give a pear in exchange for an apple. Below is an older video on an example of legally insufficient...

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