ENGLISH LEGAL
TERMINOLOGY
Professor Harland L. Miller, III
Visiting Fulbright Scholar
Pravna Fakultete
Univerze v. Maribor
Contract
An agreement between two or more
parties creating obligations that are
enforceable or otherwise recognizable
at law.
(Black’s Law Dictionary)
Requirements for binding
contract
1. Offer
2. Acceptance
3. Consideration
Offer
A promise to do or refrain from doing
some specified thing in the future,
conditioned on an act, forbearance, or
return promise being given in exchange
for the promise or its performance.
(Black’s Law Dictionary)
Offer
A display of willingness to enter into a
contract on specified terms, made in a
way that would lead a reasonable
person to understand that an
acceptance, having been sought, will
result in a binding contract.
Acceptance
An offeree’s assent, either by express act
or by implication from conduct, to the
terms of an offer in a manner authorized
or requested by the offeror, so that a
binding contract is formed.
(Black’s Law Dictionary)
Consideration
Something (such as an act, a
forbearance, or a return promise)
bargained for and received by a
promisor from a promisee.
(Black’s Law Dictionary)
Forebearance
The act of refraining from enforcement of
a right, obligation, or debt.
(Black’s Law Dictionary)
Offeree
a.
b.
c.
d.
A person who makes on offer.
A person who may accept an offer.
Official who judges sporting events.
The subject matter of a contract.
Offeree
b. A person who may accept an offer.
Offeror
a. A person who makes on offer.
b. A person who may accept an offer.
c. A person who places a general.
advertisement in a newspaper.
d. A broker.
Offeror
a. A person who makes on offer.
Acceptance
a. An exception to a general rule of
contract law.
b. A counteroffer that changes the terms
made by an offeror.
c. Surrender of the terms of the offeror.
d. A manifestation of assent by the
offeree to be bound to the terms of the
offeror.
Acceptance
d. A manifestation of assent by the
offeree to be bound to the terms of the
offeror.
Consideration
a. Process of judicial deliberation before
rendering a decision in a contested case.
b. The lengthy recitals of “boilerplate” language
appearing in many contracts.
c. The inducement to enter a contract, and a
necessary element to prove the validity of a
contract.
d. The detrimental reliance of an offeree.
Consideration
c. The inducement to enter a contract, and a
necessary element to prove the validity of a
contract.
Estoppel
a. A street sign used to control traffic
flows.
b. A legal bar that prevents one from
asserting a claim or right that
contradicts a prior act or statement.
c. An ownership interest in land.
d. A failure of consideration in a contract.
Estoppel
b. A legal bar that prevents one from
asserting a claim or right that
contradicts a prior act or statement.
Promissory Estoppel
a. A failure to prosecute a civil or criminal
action.
b. Power to make an offer to the public rather
than a specific individual.
c. Equitable doctrine recognized as a
substitute for consideration in some cases.
d. Ability of an agent to bind a principal in
matters beyond the scope of agency.
Promissory Estoppel
c. Equitable doctrine recognized as a
substitute for consideration in some cases.
Unilateral contract
a. A contract for the sale of only a single
item or service.
b. An unenforceable contract.
c. A contract where there is no “meeting
of the minds.”
d. A contract where only one party makes
a promise or undertakes performance.
Unilateral contract
d. A contract where only one party makes
a promise or undertakes performance.
Caveat Emptor
a. Election made by parties to a letter of
credit to apply the Uniform Customs
and Practice for Documentary Credits.
b. Principle to protect consumers from
unscrupulous sellers.
c. A Latin term for “let the buyer beware.”
d. Implied warranty of fitness for use.
Caveat Emptor
c. A Latin term for “let the buyer beware.”
Option contract
a. A contract that is not binding because performance
is optional.
b. A binding agreement in which the owner agrees to
sell the property to a prospective purchaser, at a
specified price, for a stated period of time.
c. An offer that can be revived after being rejected by
the offeree.
d. In securities law, a purchasing mechanism that is
used only on the New York Stock Exchange.
Option contract
b. A binding agreement in which the owner agrees to
sell the property to a prospective purchaser, at a
specified price, for a stated period of time.
Incapacity
a. The inability to deliver merchandise
promised in a contract.
b. The inability to pay for merchandise
ordered in a contract.
c. A student’s inability to answer this
question.
d. A defense to contract liability, such as
being too young.
Incapacity
d. A defense to contract liability, such as
being too young.
Duress
a. In contract law, the equivalent of the tort known as
“intentional infliction of emotional distress.”
b. A defense sometimes raised in a breach of contract
action, usually claiming that a contract is invalid
because the breaching party did not sign the
contract voluntarily.
c. The lawful use of economic leverage to force
another party to sign a contract.
d. In corporation law, the forced sale of stock to an
insider.
Duress
b. A defense sometimes raised in a breach of contract
action, usually claiming that a contract is invalid
because the breaching party did not sign the
contract voluntarily.
Statute of Frauds
a. Codification of the equitable doctrine of
quantum meruit.
b. The statute providing for criminal sanctions
for fraud in international business
transactions.
c. The statute providing civil remedies for tort
of fraud.
d. The statute providing that certain agreement
are so important that they must be in writing
and signed to avoid fraud.
Statute of Frauds
d. The statute providing that certain agreement
are so important that they must be in writing
and signed to avoid fraud.
Unconscionability
a. Contract negotiations usually made
when a person is drunk or
unconscious.
b. Doctrine that allows courts to protect
the weaker party in a contract.
c. Unjust enrichment.
d. A confession of judgment, such as the
admission of debt by a debtor.
Unconscionability
b. Doctrine that allows courts to protect
the weaker party in a contract.
Third-Party Beneficiary
a. A person who is not a party to the contract,
but who benefits by it some way.
b. A person who is a party to the contract and
who can claim “privity of contract.”
c. A necessary party who must always be
joined in a civil action for breach of contract.
d. A term to describe the general interest in
seeing that contractual obligations are
observed.
Third-Party Beneficiary
a. A person who is not a party to the contract,
but who benefits by it some way.
Breach of contract
a. Excused failure to fulfill a promise.
b. The failure, without any legal excuse,
to perform part or all of a contract.
c. Party’s unreasonable fear that the
other party will not be able to fulfill a
promise in the future.
d. The oral agreement of the parties to
modify the terms of a written contract.
Breach of contract
b. The failure, without any legal excuse,
to perform part or all of a contract.
Detrimental reliance
a. Political or social union of contracting
parties.
b. Repudiation of a contract obligation.
c. Relief from forfeiture of property held
as security under a surety contract.
d. Reliance that may result in promissory
estoppel.
Detrimental reliance
d. Reliance that may result in promissory
estoppel.
Material breach
a. A torn fabric.
b. The failure of a “material” witness to
testify at trial.
c. A minor violation of a contract that the
parties can ignore it they so choose.
d. A substantial and significant violation
of a contract.
Material breach
d. A substantial and significant violation
of a contract.
Rescind
a. To transmit a document to another party a second
time.
b. To undo or to repudiate a contract, so the parties
are effectively restored to the positions that they had
before they entered into the contract.
c. The intentional failure to incorporate all of the
material terms from a business negotiation in the
final contract.
d. The intentional omission of uncertain terms from a
contract.
Rescind
b. To undo or to repudiate a contract, so the parties
are effectively restored to the positions that they had
before they entered into the contract.
Uniform Commercial Code
a. The application of the French Civil Code to
commercial transactions made between the U.S.
and France.
b. Pricing mechanism to determine the retail
commercial value of army uniforms.
c. Mass media regulation which fixes advertising costs
on American television.
d. A proposed code that has now been adopted by
most of the state legislatures in the hope of creating
a common commercial law in the U.S..
Uniform Commercial Code
d. A proposed code that has now been adopted by
most of the state legislatures in the hope of creating
a common commercial law in the U.S..
Warranty
a. Any direct or indirect statement that may be made
by a seller of a product to the ultimate purchaser.
b. A promise, either express or implied, that a product
will have certain properties, qualities, or
characteristics.
c. Contractual promises made by an agent to a
principal.
d. A document, issued only by a court, allowing the
police to search the property of any person who fails
to honor any contractual promise made to another
person.
Warranty
b. A promise, either express or implied, that a product
will have certain properties, qualities, or
characteristics.
Meeting of the Minds
a. An annual convention of very intelligent trial
lawyers
b. An annual national convention of even more
intelligent law professors.
c. An annual convention sponsored by the
Nobel-prize winning Campaign to Ban Land
Mines led by Jody Williams.
d. A concept often discussed in contract
classes to describe an agreement between
two parties.
Meeting of the Minds
d. A concept often discussed in contract
classes to describe an agreement between
two parties.
Briefing cases
A case brief is essentially a document you
write for your own use. Takes notes on
the facts, issues, arguments and
holdings of the cases and organize
them in a manner which will be useful to
you.
Typical Outline
I. Name, court and date
II. Issues the court will decide
III. Relevant facts
IV. Lower court procedure and holding
V. Appellant’s argument
VI. Appellee’s argument
VII.Holding in the case and reasoning
State v. Bryant
Vermont Supreme Court (2008)
Issue: Whether the warrantless aerial
scrutiny of defendant’s yard, for the
purpose of detecting criminal activity by
the occupant of the property, violated
privacy rights secured by the Vermont
Constitution?
Relevant Facts
The local forest official suspected that defendant was
responsible for marijuana plants that were reportedly
growing in the National Forest (not on defendant’s
property) because he found defendant’s insistence
on privacy to be “paranoid.” The forest official
suggested to the State Police that a Marijuana
Eradication Team (MERT) flight over defendant’s
property might be a good idea. MERT is an anti-drug
program, and MERT flights are executed by the
Vermont State Police in cooperation with the Army
National Guard.
Relevant facts (continued)
On August 7, 2003, the state trooper and
an Army National Guard pilot flew in a
National Guard helicopter to the
Goshen area. Having previously
located the site on a map, the trooper
directed the pilot to defendant’s
property, where two plots of marijuana
were observed growing about 100 feet
from the house.
Trial court procedure
At a suppression hearing the court denied
defendant’s motion, holding that
defendant had no reasonable
expectation of privacy from the sky.
Trial Court Decision (cont.)
The trial court reasoned that, while
helicopter flights over one’s property in
rural Vermont might be infrequent, a
reasonable person would still assume
that such flights will happen. The court
concluded that the police surveillance
was not so intrusive as to violate the
Vermont Constitution.
Vermont Supreme Court held
The aerial surveillance in this case was a
warrantless search forbidden by the Vermont
Constitution. The warrant authorizing the
subsequent search of defendant’s premises
for marijuana plants was obtained solely on
the basis of the aerial observations. The
evidence seized upon executing the warrant
should therefore have been excluded from
defendant’s trial. Since the error was clearly
prejudicial, his conviction must be overturned.
Dissenting opinion
What does Justice Dooley argue?
Sentence editing
It is clear and obvious that an offer to sell
the oil was made by the Egyptian
Company.
Revised
The Egyptian company offered to sell the
oil.
Original
The buyer for the French company
rejected the offer made by the offeror
due to the fact that he thought it was
unfair to him.
Revised
The buyer for the French company
rejected the offer because he thought it
was unfair.
Original
It is important to note that at the time the
contract was signed the offeree was not
under duress.
Revised
When the contract was signed the offeree
was not under duress.
Original
In this instance it should be noted that the
arbitration award from an earlier sale
was in favor of the German automobile
manufacturer.
Revised
The arbitration award from an earlier sale
was in favor of the German automobile
manufacturer.
Original
The court should consider the fact that
under the statutory law of the state, in
order to satisfy the statute of frauds a
contract must be written and signed by
the party against who the agreement
will be enforced.
Revised
Under the statutory law of the state, in
order to satisfy the statute of frauds a
contract must be written and signed by
the party against who the agreement
will be enforced.
Original
It should be obvious to anyone that the
contract is binding after it has been
accepted and signed by the offeree.
Revised
A contract is binding after it has been
accepted and signed by the offeree.
Original
It is important to note that in some
instances the equitable doctrine of
promissory estoppel could be
recognized as a substitute for
consideration under American contract
law.
Revised
Sometimes the equitable doctrine of
promissory estoppel could be
recognized as a substitute for
consideration under American contract
law.
Original
Although Joseph did not have any
authority to enter into the contract
negotiations with the French design
firm.
Revised
Joseph was unauthorized to enter into the
contract negotiations with the French
design firm.
Original
It was obvious, however, that the attorney
from Mexico could ratify it because of
the fact that Joseph was acting as her
agent.
Revised
However, that the attorney from Mexico
could ratify it because Joseph was
acting as her agent.
Original
It should be understood by anyone that a
contract couldn’t be binding unless the
offeree has manifested acceptance of
the terms of the offer.
Revised
A contract cannot be binding unless it is
accepted by the offeree.
Class on April 29, 2008
Both sections meet with Prof Janja Hojnik.
After that, both sections will meet with
Prof. Miller at 10:15- 12:00 on
Tuesdays.