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CONTRACTS: FORMATION
Contract Categories Formation o Offer o Acceptance o Consideration Defenses Performance & Breach Remedies Questions to consider Has a contract been formed? o Offer A communication that creates a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the offered terms Does not require words Follows objective intent o Acceptance o Consideration What are the terms? o What was promised? Are there problems with a party’s performance of the contract? Are there any good excuses for breaking the promise? If there are no good excuses, what can be done to make up for the broken promise? Common Law v. UCC Common law o governs contractual transactions with real estate, services, insurance, intangible assets and employment. o Land Sale – Required Terms Specific Price Description of the land Does not need to be exact address, just needs to be descriptive enough for a court to identify the property o Services – Required Terms Description of the type of work being agreed to Courts will imply reasonable terms if non-essential terms (i.e.: time and price) are not in the offer UCC o governs contractual transaction with goods and tangible objects (such as a purchase of a car).
o Goods are all things moveable at the time they are identified as the items to be sold under the contract o Required Terms Quantity must be specified Termination of Offers Termination by the Offeror o Revocation Can happen any time before the offer is accepted o Direct Revocation Offeror basically says, “I revoke” o Indirect Revocation A reliable third party indicates to the offeree that the offeror is not longer or isn’t able to contract with them Termination by the Offeror Termination by operation of law 4 Irrevocable Offers (formation part 2) 1. Option Contract o Offeror agrees to keep the offer open for a certain amount of time in exchange for consideration 2. Merchant’s Firm Offer o Applies to contracts for the sale of goods 3. 4. CONTRACTS: DEFENSES Statute of Frauds If a contract falls within the statue of frauds, it’s not enforceable unless that contract is evidenced by a writing signed by the party sought to be bound 6 types of contracts: MY LEGS ***** Most heavily tested on the bar o 1. M arriage Prenups o 2. Y ear ***** Contracts that cannot be performed within a year o 3. L and ***** Contracts for an interest in land o 4. E xecutor o 5. G oods ***** Sale of goods for $500 or more
803 exceptions
Excited utterance –
Statement related to a startling event Made under the stress of excitement of the event o In a state of continuous excitement Example o Ernie witnesses an accident and tells the officer, can the officer testify to Ernie’s statement in court? Yes, because Ernie told him right after he saw the accident and it was so Can overlap w/ Present sense impression
Present sense impression
Statemen made while the declarant was perceiving it OR immediately after it happens o Logic: declarant doesn’t have time to make something up Don’t need to show that the person is excited We just care about the short passage of time Can overlap w/ excited utterance
Present Mental, Emotional, or Physical Condition
Statements of intent to do a future act o i.e.: I am going to do ____. Emotional conditions o i.e.: “I’m so sad” Physical condition o i.e.: My arm hurts. NOT “My arm was hurting last week” because this is past
Statement for Purpose of Medical Diagnosis or Treatment
Elements o Statement that describes past or present conditions o Present, past, and cause of physical condition Can also include another person’s condition o i.e.: My child arm is hurting, she fell off her bike o Pertinent to getting medical care Logic: Motive to be honest is to get medical treatment Business Records Exceptions Applies to all records Elements o Must be a record kept in the course of a regular activity o Making record must be regular practice o Must be made at or near time of event or condition, and
o Information must be within personal knowledge of employees o Must be authenticated Live testimony Written certification May still be excluded if the opponent proves that the source or method has lack of trustworthiness o burden is on the opponent to show that the record is off
Public Records
Allowed o Records showing activities of office or agency o Matters observances pursuant to legal duty o Findings of fact or opinion from authorized investigation i.e.: OSHA report of its standard accident investigation that concludes the company violated several regulations and that in OSH’s opinion, the violations were most likely the cause of the acident Police records NOT admissible against criminal case o Observances by law enforcement do not qualify for exception when offered in a criminal case Public record will be kept out if can be proven to be not trustworthy
Recorded Recollection
Only when a live witness can’t remember the facts o i.e.: nervous on the stand so lawyer can refresh the witness’s memory o show them the document to jog their memory and then the witness can testify from their memory. The jury doesn’t get to see the document. Doesn’t matte who the author of the document If person still can’t remember after seeing the document, under certain circumstances, lawyer can read the document and offer it as evidence, but can be found as hearsay Elements o Previously known to the witness but not witness is unable to remember o Must try and fail to refres the witness’s memory The witness can’t read the testimony from the document out loud o The record must be made or adopted by the withness o The reord must have been made while freh in the witness’s mind o Witness must vouch for the record and say it was accurate when it was made Document will be read into evidence, won’t be given to the jury. The document is a substitute to in court testimony o Adverse party must adverse party must choose to offer it into evidence for the jury to get the actual doc.
