美国纽约州律师资格考试复习笔记 合同法.doc

Contracts OutlineKey Issue #1: Applicable Law MBE tests 2 kinds of K law: the common law & Art 2 of UCC. o UCC Art 2: applies to all sale of goods regardless of how small the price and who the people are (can be consumers, merchantsetc). Real estate is not goods, CL applies. Service is not a sale of goods, CL applies. Loans and other credit arrangements not sale of goods, CL applies. In mixed Ks (where sale of goods and non sale of goods are involved), if the sale of goods element is more important, then UCC 2 applies; if K is primarily about services, then apply CL. Exception: If K itself expressly divides payment, the apply UCC to sale of goods part and common law to the rest. NY part of the bar tests 3 bodies of law 1) CL with NY variations 2) Art 2 for sale of goods 3) Art 2A of UCC for leases of goods. o Lease of goods UCC Art 2A: leasing an airplane UCC Art 2A applies Applies to lease of business lease or consumer lease (lease a car from Avis) BUT doesnt apply to leasing a building (real property not goods). Key Issue #2: Contract formation Terminologies defined: o K: a legally enforceable agreement (not every A is a K) (1) Is a K formed offer/acceptance; (2) whether the Agreement is legally enforceable (are there defenses?) Express K: created by parties words either oral or written Implied K: created by parties conduct/属于implied-in-fact;判断标准是客观的，不论双方主观上是否有合意形成o Quasi K: an equitable remedy Protects against unjust enrichment. (likely to be tested on MBE) 属于implied in law P can recover from quasi K the reasonable value of the benefit conferred (not K price) will usually not be as much as K price, but not more than the contract price. o Bilateral K: offer can be accepted in any reasonable way o Unilateral K: offer can only be accepted by performance Note: All Ks are bilateral unless the offer says it can ONLY be accepted by performance. o Void, voidable, and unenforceable contracts A void contract is one without any legal effect from the beginning (e.g., an agreement to commit a crime); A voidable contract is one that a party may elect to avoid or ratify (e.g., a contract by a minor); An unenforceable contract is one otherwise valid but for which some defense exists extraneous to formation (e.g., the S/F)1ST STAGE OF THE AGREEMENT PROCESS: OFFER 公共要约只有行为人知道要约的前提下去完成任务才构成接受两份内容相对一致的交叉要约并不构成合同如果信息在传递中有错误，即按错误的生效，除非另一方知道或有理由知道该错误A) Offer: manifestation of an intention to be bound, created by words or conduct. The basic test is whether a reasonable person in the position of the offeree would believe that his or her assent creates a contract. (valid offer? Look at context & content) Context: ads are usually NOT an offer (look for the mention of newspaper, on storefront) Ads are not offers b/c there is no quantity term and an unlimited # of persons can accept. Narrow exception: when the ad says “1 blue dress just like Monicas, only $1! First come, first served.” An offer b/c it specifies the quantity and who can accept. Content: vague or ambiguous terms, like “reasonable” or “fair” or “appropriate” = NOT an offer S agrees to sell car for reasonable price = NO Offer. Factors to be considered: languages used, surrounding circumstances, prior relationship, industrial custom, degree of definite and certain terms, and method of communication.B) Requirement K: K where quantity be sold is measured by buyers requirements or needs 一个例外/UCC要求也只要求必须要有关于数量的条款/此种合同的数量取决于买家的善意需求/此种合同在assignment时也有特别规定，通常不能assign,因为会影响义务人的履约，但若收转让人保证其要求和转让人基本一致，即可转让。 Look out for words like ALL its requirements, ONLY, SOLELY (commitment to exclusivity = offer to enter into requirements K). Any increase in buyers requirement has to be in line with the buyers prior demands rule of thumb 10%o An excessive increase will be reduced by the court;o Decrease will not be tested because law is uncertain. C) Open price term (missing price term) (common law differs from Art 2) Common Law (e.g., in the instance of selling land): there is NO offer unless the writing both describes the property and states the price. /但若是服务合同，没有价格也可能成立合同 Art 2: there is offer if parties so intend, its still a good offer even though it doesnt state price 可以用某种方式确定 Remember: vague price term is NO offer under both CL & Art 2 2ND STAGE OF AGREEMENT PROCESS: TERMINATION OF OFFER o Effect: an offer cant be accepted if it has been terminated Four ways of termination: 1) Lapse of Time: If offer states the last date of acceptance, cant accept after that date. Even if no deadline is stated, offers dont last forever. Offers lapse after a reasonable time (fact specific finding, rule of thumb 30 days). 2) Offerors Revocation: a) Revocation may be direct or indirect: Direct revocation: a statement by the offeror to the offeree indicating unambiguously that the offeror has changed her mind (any statement indicating this intention will do) Indirect revocation: conduct by offeror unambiguously indicating unwillingness or inability to contract with offeree and the offeree is aware of the conduct. o The mere fact that there are similar offers to other people does not revoke a prior offer. b) Revocation of an offer is only effective if it is received before acceptance o Revocation is effective on the day of receipt. o If offeree accepts before her receipt of my revocation then too late to revoke an A is formed! Mailbox rule only applies to ACCEPTANCE. c) Generally, offeror can revoke at anytime before acceptance, unless the following FOUR situations occur, then the offer cant be revoked: 受要约人如果先拒绝了，如果还在期限内，受要约人仍然可以接受，只要要约人并没有对拒绝产生信赖。o Option: a promise to keep the offer open that is PAID for (consideration): consideration you have bargained away your right to revoke general-contractor 和sub-contractor之间的关系就是等于形成了一个unilateral option contract.o Detrimental reliance that is reasonable & foreseeable (Promissory Estoppel)此种信赖必须是承诺人所能预期， 若承诺人事先表示明确反对，则不构成。 if my reliance is both reasonable and foreseeable. o Part performance of an offer to enter a Unilateral K (By starting performance is acceptance of bilateral K) 只适用单方合同 Ex: if offer states acceptance only by performance, and P starts performing: this is unilateral K, once performance begins, O can no longer revoke!NY Distinction: offer can be revoked until performance is completed. BUT mere preparation for performance is NOT enough to trigger unilateral part performance rule However, preparation can be reasonable, foreseeable reliance that makes the offer irrevocable. o Firm offer rule under Art 2: RULE: a signed, written promise by a merchant promising to keep an offer open for a period of time发出要约者必须是商人！; No consideration is required writing takes place of consideration. A firm offer has a 3 months cap if offer is open for longer than 3 months, it will be scaled back to 3 months. NOTE: if you have an option, you dont need a firm offer. Option is better b/c you are not restricted by duration requirement. If no time is stated, an offer will be open for a reasonable time NOT to exceed 3 months. If there is a written open offer in a non-sale of goods situationo MBE: S can revoke before acceptanceo NY Distinction: if offer is in writing, signed by the offeror and states that offer is irrevocable, then the offer is not revocable during the time stated or for a reasonable time, even if the offer is not supported by consideration (firm offer rule expanded). 3) Offerees Rejection: THREE scenarios Counteroffer: operates as a rejection, but bargaining does not. But if the offeree asks a question, “will you take $49k?” is considered mere bargaining not a rejection. Conditional acceptance: operates as a rejection & termination of an offer if words such as “if,” “provided that,” “so long as,” “on the condition that” are used in acceptance = rejection. It operates the same way as a counteroffer: it terminates the offer and becomes a new offer.即使在商人间亦是如此，如果商人在额外条款边加盖了印章“rubber stamp就是指 accept upon. An acceptance containing an ADDITIONAL or DIFFERENT terms operates as a rejection under Common Law, but not UCC 2. Art 2: no mirror image rule; additional terms dont kill offer But the offerees additional terms rarely get into the K, they only become part of K if: 这些只影响不同的条款是否属于合同，而不影响合同是否成立！此条只适用于商人！o1) both are merchants 2) the offer does not explicitly limits acceptance to the terms of the offer;3) the additional term is not a material change; AND Ex: disclaims all warranties = material change (unless in the industry is not material) Ex: change time of delivery = NOT material change4) offeror does not object within a reasonable time. o Therefore, if either party is a non-merchant, the additional term is merely a proposal that is to be separately accepted or rejected (but the original is not killed). 如果是非商人，也不影响合同的成立，只是不包括不同的条款o If the original offer contains an objection to any additional or inconsistent terms, and the offerees response proposes new terms and states that the response is a counteroffer subject to express acceptance by the original offeror, no contract arises until performance begins. The terms will include what they agree in writing and those supplemented by UCC.4) Termination by operation of law: Death/insanity of either party before acceptance: Death terminates offer even if the other party doesnt know of the death. Exception: 适用于所有不可撤销的要约 Supervening illegality Destruction of the proposed contracts subject matter3RD OF THE AGREEMENT PROCESS: ACCEPTANCE1) Who can accept? Generally, an offer can be accepted by (i) a person who knows about the offer; and (ii) who is the person to whom it was made. Offers cannot be assigned, options can be assigned unless the option says no. 2) Offer can (but usually does not) control the manner of acceptance. 如果是一个offer for immediate shipment,既可以promise to ship 来接受，也可以ship conforming or nonconforming 的货物来接受。 One can usually accept by offer of bilateral K where nothing is said about how to accept by promising (promising to perform), performing or starting to performNY Distinction: absent an indication to the contrary, acceptance by the same means of communication that the offer was communicated. But, modern trend is to follow the MBE rule. language controls. In unilateral K, can accept only by complete performance. partial performance makes the offer irrevocable, but note the NY distinction)3) Start of performance as acceptance (in bilateral K) Unilateral K need complete performance as acceptance. 4) Improper performance as acceptance: Common law: Improper performance is acceptance plus a breach of K Art 2: same as CL Accommodation exception:If S lets B know why it is sending the wrong goods, then there is NO acceptance and thus NO breach. -视为counter-offer5) Silence as acceptance: offerees inaction or silence = NOT acceptancebut note silence can be acceptance due to course of dealing -如果合同双方过去的交易显示受要约方通常以沉默的方式接受要约，则沉默构成接受 Offeror cant single-handedly turn the offerees silence into acceptance b/c there is too much chance that the offeree will accept against his will. NY Distinction: unsolicited merchandise in mail is treated as a gift and the receiver is not obligated to pay.6) Timing: when is an acceptance effective? Mailbox rule Key facts: 1) people are at different places 2) there are conflicting communications You need to figure out which communication controls:必须是正确投递了以后才算！ acceptance is effective when MAILED (protects the offeree from offerors revocation). It doesnt matter whether the letter is ever received! Burden of loss is on the offeror. Four exceptions to Mailbox Rule if offer provides otherwise: offer trumps mailbox rule (default) Irrevocable offer: if there is an options K, the acceptance must be received before the option expires. Acceptance, then rejection: under mailbox rule unless the rejection reaches offeror first, and the offeror relies on the rejection, then the mailbox rule applies, thus acceptance would be effective. Rejection, then acceptance (mailbox rule doesnt apply) o if rejection is sent first, then acceptance is also only effective when it is received. Its a RACE whichever gets there first is effective. =DEFENSES AGAINST FORMATION (SOME FLAW IN THE AGREEMENT PROCESS) most frequently tested: 1) lack of consideration; 2) lack of capacity & 3) mutual mistake1) Ds lack of capacity to contract -撤销合同的权利属于行为能力不足的一方o 3 categories: Infant under 18 (minors); New York distinction: by statute, infants cannot void contracts in the following situations: o 14.5-year-old or older who contracts for life insurance;o educational loans for those 16 or older;o realty contracts related to marital home; and o contracts involving artistic or athletic services. intoxication (drug or alcohol) if other party has reason to know; and mentally incompetent lacks ability to understand agreemento An incapacitated D has the right to disaffirm (avoid, get out of) the K Ps incapacity is irrelevant Actual facts controls: If L is 17, but she says she is 18 doesnt matter, actual age controlso An incapacitated D can impliedly affirm a K by retaining the benefit of the K WITHOUT complaint after she gains capacity: Ex: If L retains the Harley without complaint after she turns 18 S can enforce the K against her b/c she implied reaffirmed the K. 3 requirements: 1) D must have lacked capacity at the time of A2) D later gains capacity 3) D retains the benefit of K w/o complaint o An incapacitated party is liable for necessaries (food, shelter, clothing or medical care) but only on a quasi-K basis 2) Duress/coercion: o Cant threaten physical harm or economic harm (economic duress) so as to get the other party enter into K against her free will: when someone threatens to breach an existing K unless he gets a better deal the other guy only agrees to a new A b/c he desperately wants to get the first deal done and no alternative source of supply o taking advantage of fortuitous 偶然发生的circumstance is NOT duress. Ex: selling umbrella for $10 when it rains rather than $3 when its sunny out and buying umbrella for $10 is not economic duress. 3) Misrepresentation:o If material misrepresentation about the material facts induced the A, A would not be legally enforceable even if the misrep was honest and innocent. 4) Mistake of fact in existence at time of A: o mutual mistake of material existing fact: There will be no contract if: Both parties mistaken, The mistake concerns a basic assumption of fact on which the contract was made, and Materiality affects the agreed exchange. NY Distinction: the contract is void in case of mutual mistake. Note: when the parties know that their assumption is doubtful (so-called conscious ignorance), mutual mistake is not a defense. K to buy house, both were unaware that the house was destroyed by fire 2 days ago no K, excused by mutual mistake. If both believe painting is by a certain someone, though it is not stated in the agreement, if that were a mistake, the A would NOT be enforceable. Mistake on the market value of thing is NOT considered material. o unilateral mistake of material existing fact : The mere fact that one party is laboring under a mistaken belief is NOT a fatal flaw unless the other party is unaware of your mistaken belief 5) Lack of consideration or a substitute for it (essence is bargain)如果是独家销售合同，法院默认销售方承诺尽最大的努力去推销产品， 这构成有效的对价！对第三人之前有同样的承诺并不妨碍其成为对价NY Distinction: the existence of a written agreement eliminates the need for consideration! (e.g., no consideration is needed if modification is in writing and signed by the party to be charged, or by his agent.)o Definition: bargained for legal detriment Illusory虚假 promise is not sufficient if only one party is bound to perform, the promise is illusory and will not be enforced./如果规定随时可以撤销合同，则也属于虚假承诺；但任何对撤销的限制都能挽救它，比如reasonable notice/an agreement to buy only what is desired or choose to order is not a consideration =should be require Ex: B promises to buy Ss house. S promises to sell unless she changes her mind. Theres no consideration for Bs promise to buy. o Past consideration: is NO consideration at all!例外：过去的债务！见下面 You cant bargain for something that has already been done. NY Distinction: past consideration is binding if:o the promise is in writing,o the past consideration is expressly stated,o the consideration can be proven, and o the writing is signed by the promisor.o Promise to pay debt barred by S/L (enforceable if in writing)必须写下来 In this case and THIS CASE ONLY, the writing serves as a substitute for consideration in both NY and MBE. -moral obligationo Adequacy of consideration is irrelevant o Pre-existing duty rule applies to K modification You need new consideration to modify K (applies only to parties to the original K); exceptions: The promise is to ratify a voidable obligation; Unforeseen difficulty so severe as to excuse performance; The pre-existing duty is owed to a third party rather than the promisor; There is an honest dispute as to the duty. If no consideration, but Os promise to A is in writing? MBE: no consideration NY: existence of writing eliminates the need for consideration. Under Art 2: UCC 2 does not have a pre-existing legal duty rule. Good faith is the test for changes in an existing sale of goods contract