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Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO
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CONT.LAW
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1993-12-26
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A contract is an agreement that is enforceable by law. Modern
business could not exist without such contracts. Most business
transactions involve commitments to furnish goods, services, or
real property; these commitments are usually in the form of
contracts.
Use of the contract in business affairs ensures, to some
extent, the performance of an agreement, for a party that
breaks a contract may be sued in court for the damages caused
by the breach. Sometimes, however, a party that breaks a
contract may be persuaded to make an out-of-court settlement,
thus saving the expense of legal proceedings.
A contract arises when an offer to make a contract is accepted.
An offer contains a promise (for example, "I will pay $1,000")
and a request for something in return (a person's car). The
acceptance consists of an assent by the party to whom the offer
is made, showing that the person agrees to the terms offered.
The offer may be terminated in a number of ways. For example,
the party making the offer may cancel it (a revocation), or the
party to whom the offer is made may reject it. When the party
to whom the offer is made responds with a different offer,
called a counteroffer, the original offer is terminated. Then
the counteroffer may be accepted by the party making the
original offer.
REQUIREMENTS OF A VALID CONTRACT
For a contract to be valid, both parties must give their
assent. They must act in such a way that the other people
involved believe that their intention is to make a contract.
Thus a person who is clearly not sincere in saying that he or
she accepts an offer usually is not held to a contract by the
courts. On the other hand, a person who secretly has no
intention of making a contract but who acts in a manner that
leads people to believe he or she had, may be held to a
contract. Legally, it is the external appearance that
determines whether one is held to a contract.
Consideration
A contract results from a bargain. This implies that each party
to the contract gives up something, or promises to, in exchange
for something given up or promised by the other party. This is
called consideration. In the example given above, the
consideration on one side is the promise to pay $1,000, and on
the other, the promise to deliver a car. With rare exceptions,
a promise by one party, without some form of consideration
being extended by the other party, does not result in a
contract or other enforceable obligation, regardless of the
sincerity of the promise.
Although each party must extend consideration to the other in
order to form a contract, the value of the consideration need
not be equal. Determining how good a bargain is becomes the
responsibility of the parties involved. Otherwise, the courts
would be in the impossible position of having to appraise the
relative value of millions of promises made every year.
Competence
For a contract to be enforceable it must be between competent
parties. A contract with a person who has been adjudicated
insane is likely to be declared void. A contract involving a
minor--in most states of the United States a minor is now a
person under 18- -may be enforced or voided by the minor,
unless the contract is for necessities such as food, lodging,
or medical services, in which case he or she may be held
responsible for the reasonable value of what was purchased.
Persons suffering from a disability such as intoxication from
drugs or liquor, or insane persons not adjudicated insane,
usually may void a contract if the other party knows or should
have known of the disability and if the consideration received
is returnable.
Legality
The last requirement of a valid contract is that its provisions
be legal. If a purported contract requires an illegal act, the
result is a void contract. Parties to an illegal contract have
no standing in court. If one party receives money or property
under an illegal contract, the other may not sue to recover
what he was paid under the agreement. Not only are contracts
requiring criminal acts illegal, so are those requiring
commission of a TORT (a breach of civil law such as
misrepresentation or trespass) or those in breach of public
policy. Although public policy is difficult to define, it
includes some serious breaches of conventional morality or
ethics. It is commonly assumed that an enforceable contract
must be in writing. This is usually untrue.
Most oral contracts are enforceable, but written contracts are
easier to prove. Some types of contracts must be in writing,
for example, contracts for the purchase or sale of any interest
in real property, contracts to pay debts of others, and
contracts that require more than a year to perform. Contracts
for the sale of personal property, that is, movable property,
as distinguished from land, at a price above a specified sum
set by law must be in writing unless payment or delivery has
been made or unless the goods were specially manufactured.
Although only a few types of contract must be in writing, the
terms of a written contract ordinarily may not be contradicted
in court by oral testimony.
REMEDIES FOR BREACH OF CONTRACT
In the event of a breach of contract, the injured party usually
sues for money damages (the award of a sum of money designed to
compensate for losses stemming from the breach). Damages are
measured by what may reasonably be foreseen as financial
losses; unforeseeable losses may not be collected. If an award
of money is not compensatory because something about the
promised performance was unique, the party who breaks a
contract may be ordered by the court to perform as agreed. This
is called specific performance. For example, real estate is
always considered unique. Therefore, when a party has
contracted to sell real estate but changes his or her mind, the
court may grant specific performance and order that the deed
for the real estate be delivered to the agreed buyer. Most
contracts are formed with an implicit understanding that
neither party need perform unless the other has completed his
or her promised performance. An exception to this understanding
occurs when a party has performed most of his or her obligation
and the part not performed is relatively immaterial. The
doctrine of substantial performance provides that in such a
case, the opposite party must perform, although he or she may
secure money damages to the extent that he or she was damaged
by lack of complete performance.