Category: Contract law

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 consideration: Get a Civ Pro Quiz Ebook! 101 Civ Pro Questions and Explanations...

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When may an offeror revoke a unilateral contract?

As a reminder, a unilateral contract is where an offeree accepts through performance.  A common example that professors like to use is: A says to B, “If you walk across the Brooklyn Bridge, I’ll pay you $100.”  To get paid, B must cross the bridge.  Promising to cross the bridge is not enough. Our traditional rule is that A can revoke this offer until B completes performance.  So if B starts walking across the bridge, A can say, “I take back my offer!”  Now B does not get paid even if she crosses the bridge because A revoked the offer. The modern rule is different – – unilateral contracts cannot be revoked once performance begins. That is, if B starts performing, A cannot revoke the offer.  In the above example, if B is crossing the bridge,  A cannot revoke the offer. Below is an older video which discusses terminating offers. Around the 3:50 mark the video  discusses revoking unilateral...

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How does the U.C.C. modify the common law mirror image rule (part I)?

The common law mirror image rule tells us that to form a contract the terms of the acceptance should match the terms of the offer.  This rule intuitively makes sense: if A offers to sell B a blue car for $1,000 and B says he accepts the offer for one red bicycle for $250 the parties did not reach an agreement.  B isn’t “accepting” the offer, he is completely changing the offer. But the drafters of the Uniform Commercial Code (UCC) were concerned that when two business people enter into a transaction sometimes the offers and acceptances don’t match up 100% but a court should not allow either party to walk away from the deal – – the UCC favors forming a contract.  Also, the UCC was concerned with circumstances where parties form a contract by conduct, and the party who sent the last form was always able to dictate the terms of the contract. UCC 2-207 provides: (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. (2) The additional terms are to be construed as proposals for addition to the contract. contract. Between merchants such terms become part...

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