DevOps en software-installatie zijn belangrijke onderdelen van moderne softwareontwikkeling en IT-beheer. Laten we deze onderwerpen wat dieper bekijken.
Wat is DevOps?
DevOps (Development and Operations) is een methode en cultuur die samenwerking tussen ontwikkelaars en IT-operationele teams bevordert om software sneller, efficiënter en betrouwbaarder te leveren. Het integreert processen, tools en praktijken die teams in staat stellen om:
1. Sneller te ontwikkelen en implementeren: Door middel van continue integratie (CI) en continue levering (CD).
2. Hoge kwaliteit te waarborgen: Met behulp van geautomatiseerd testen en monitoring.
3. Samenwerking te verbeteren: Door het afbreken van silo’s tussen ontwikkelings- en operationele teams.
4. Feedbackcycli te versnellen: Om problemen snel te detecteren en op te lossen.
Belangrijke tools in DevOps zijn bijvoorbeeld:
• Git voor versiebeheer
• Jenkins of GitLab CI/CD voor automatisering
• Docker en Kubernetes voor containerisatie en orkestratie
• Ansible, Puppet, of Terraform voor configuratiebeheer
Wat houdt software-installatie in?
Software-installatie verwijst naar het proces van het implementeren en configureren van een softwaretoepassing op een computer of server. Het kan handmatig of geautomatiseerd worden gedaan, afhankelijk van de schaal en vereisten.
Handmatige installatie
• Downloaden: Het verkrijgen van de software van een bron, zoals een officiële website of repository.
• Installeren: Het uitvoeren van installatieprogramma’s, zoals .exe op Windows of pakketmanagers zoals apt of yum op Linux.
• Configureren: Het instellen van parameters om de software naar wens te laten werken.
Geautomatiseerde installatie
• Gebruik maken van scripts, zoals Bash, Python, of tools zoals Ansible om meerdere systemen snel en consistent te configureren.
• Containerisatie: Met tools zoals Docker kan software worden verpakt in containers met alle afhankelijkheden, zodat ze overal draaien waar Docker beschikbaar is.
• Orkestratie: Kubernetes wordt vaak gebruikt om containers op schaal te beheren.
Overlap tussen DevOps en software-installatie
DevOps-methodologieën maken vaak gebruik van geautomatiseerde software-installatie. Bijvoorbeeld:
• Het installeren en configureren van applicaties in containers via CI/CD-pipelines.
• Het automatisch schalen en updaten van applicaties met orkestratietools.
• Het implementeren van software met Infrastructure as Code (IaC), waarmee servers en omgevingen geconfigureerd kunnen worden als herhaalbare scripts.
Heb je specifieke vragen of wil je voorbeelden van hoe je deze processen uitvoert?
APA Citation Basics
When using APA format, follow the author-date method of in-text citation. This means that the author's last name and the year of publication for the source should appear in the text, like, for example, (Jones, 1998). One complete reference for each source should appear in the reference list at the end of the paper.
If you are referring to an idea from another work but NOT directly quoting the material, or making reference to an entire book, article or other work, you only have to make reference to the author and year of publication and not the page number in your in-text reference.
On the other hand, if you are directly quoting or borrowing from another work, you should include the page number at the end of the parenthetical citation. Use the abbreviation “p.” (for one page) or “pp.” (for multiple pages) before listing the page number(s). Use an en dash for page ranges. For example, you might write (Jones, 1998, p. 199) or (Jones, 1998, pp. 199–201). This information is reiterated below.
Regardless of how they are referenced, all sources that are cited in the text must appear in the reference list at the end of the paper.
De root server, TLD server, en authoritative server zijn essentiële componenten van het Domain Name System (DNS). Ze werken samen om domeinnamen zoals www.example.com te vertalen naar IP-adressen die door computers worden gebruikt. Hier volgt een gedetailleerde uitleg van hun rollen:
1. Root Server
De root servers vormen het beginpunt van elke DNS-oplossing. Ze zijn de bovenste laag in de DNS-hiërarchie en bevatten informatie over welke Top-Level Domain (TLD) servers verantwoordelijk zijn voor specifieke domeinen.
• Functie:
Wanneer je een domein invoert, zoals www.example.com, en je apparaat het bijbehorende IP-adres niet weet, stuurt het een verzoek naar een root server. De root server verwijst je naar de juiste TLD server (bijvoorbeeld voor .com, .org, of .nl).
• Kenmerken:
• Er zijn 13 hoofdgroepen van root servers wereldwijd, beheerd door verschillende organisaties (zoals ICANN en Verisign).
• Deze servers zijn niet fysiek beperkt tot 13 locaties. Dankzij Anycast worden ze wereldwijd op honderden locaties gedupliceerd voor snelheid en betrouwbaarheid.
• Belangrijkheid:
Root servers slaan zelf geen IP-adressen van domeinen op. Ze zorgen alleen voor het doorverwijzen naar de juiste TLD servers.
2. TLD Server
De TLD servers beheren informatie over specifieke Top-Level Domains, zoals .com, .org, .net, of landenspecifieke TLD’s zoals .nl (Nederland).
• Functie:
Wanneer de root server je doorverwijst, stuurt je apparaat een verzoek naar de juiste TLD server. Voor www.example.com zou dat bijvoorbeeld de .com TLD server zijn. Deze server geeft vervolgens informatie over de authoritative server die de specifieke domeinnaam beheert.
• Kenmerken:
• Elke TLD heeft zijn eigen reeks servers, vaak beheerd door registries zoals Verisign voor .com en SIDN voor .nl.
• TLD servers bevatten geen gedetailleerde records, maar alleen verwijzingen naar authoritative servers.
3. Authoritative Server
De authoritative servers zijn de laatste en meest specifieke stap in het DNS-proces. Ze bevatten de exacte gegevens over een domeinnaam, inclusief het bijbehorende IP-adres.
• Functie:
Zodra je apparaat de authoritative server heeft bereikt, vraagt het deze server om het IP-adres van de gevraagde domeinnaam (www.example.com). De authoritative server geeft dit IP-adres terug aan je apparaat.
• Kenmerken:
• Elke domeinnaam wordt beheerd door een specifieke authoritative server, vaak eigendom van een hostingprovider of het bedrijf dat de domeinnaam heeft geregistreerd.
• Deze servers bevatten resource records (RR’s), zoals:
• A-records: Voor IPv4-adressen.
• AAAA-records: Voor IPv6-adressen.
• MX-records: Voor e-mailservers.
• CNAME-records: Voor aliassen van domeinen.
• Belangrijkheid:
De authoritative server is de bron van waarheid voor een domein. Alle andere DNS-servers (bijvoorbeeld caching resolvers) vertrouwen op de gegevens van deze server.
Samenvatting van de samenwerking
1. Root Server: Geeft informatie over welke TLD server verantwoordelijk is voor de gevraagde domeinextensie.
2. TLD Server: Verwijst naar de juiste authoritative server voor het specifieke domein.
3. Authoritative Server: Geeft het daadwerkelijke IP-adres van het gevraagde domein terug.
Wil je meer details over bijvoorbeeld caching of hoe deze servers samenwerken om snelheid te garanderen? 😊
De tweede stap in het proces is verbinding maken met de server. Hier wordt het IP-adres dat je hebt verkregen via de DNS-resolutie gebruikt om daadwerkelijk contact te maken met de webserver die de website host. Hier is hoe dit verloopt:
Met het verkregen IP-adres weet je computer naar welke specifieke server het verzoek moet worden gestuurd. Dit gebeurt via het Transport Control Protocol (TCP).
Je computer maakt een socket aan, wat een combinatie is van: het verkregen IP-adres en de poort waarop de server bereikbaar is (meestal poort 80 voor HTTP of poort 443 voor HTTPS).
TCP zorgt voor een betrouwbare verbinding tussen je computer en de server door middel van een drie-weg-handshake:
Je computer stuurt een SYN-pakket (synchronisatie) naar de server om te laten weten dat het een verbinding wil starten. De server ontvangt het SYN-pakket en stuurt een SYN-ACK-pakket (synchronisatie-acknowledgement) terug om te bevestigen dat het klaar is om te communiceren. Je computer stuurt een ACK-pakket (acknowledgement) terug naar de server om de verbinding te voltooien.
Nu is de TCP-verbinding tot stand gebracht en kan data veilig heen en weer worden gestuurd.
Als de website HTTPS gebruikt (wat tegenwoordig de standaard is), wordt na de TCP-handshake een TLS/SSL-handshake uitgevoerd om een beveiligde verbinding op te zetten. Je computer en de server wisselen certificaten en encryptiesleutels uit. Ze stellen samen een sessiesleutel in die wordt gebruikt om alle verdere communicatie te versleutelen. Dit maakt de verbinding veilig tegen afluisteren of manipulatie.
Zodra de verbinding (TCP en eventueel TLS/SSL) tot stand is gebracht, kan je computer beginnen met het verzenden van een HTTP-verzoek naar de server om de inhoud van de website op te vragen.
Deze stap zorgt ervoor dat er een stabiele en eventueel versleutelde lijn wordt opgezet tussen jouw apparaat en de webserver, zodat je gegevens betrouwbaar kunnen worden uitgewisseld.
1973. 1973. 1973. 1973. 1973.
Picasso 20th Spanish 1973.
Victarion Greyjoy's Iron Victory has rammed one of the longships of the Shield Islands. Victarion kills Ser Talbert Serry of Southshield, although the reaver's hand is wounded during the battle. The ironborn's massive fleet is soon victorious in their taking of the Shields which sit at the mouth of the Mander north of the city of Oldtown.
It is Victarion's command that won the battle, but it will be King Euron they cheer for engineering their bold attack. Back in his cabin, as the dusky woman Euron gave him tends his wounds, Victarion recalls Aeron's words that he would find a way to remove Euron from the Seastone Chair. He remembers how he had helped capture Lord Baelor Blacktyde, who had refused to acknowledge Euron after the kingsmoot on Old Wyk and paid for it with his life. Asha, however, had escaped the Iron Islands along with those loyal to her.
Landing at Lord Hewett's Town on Oakenshield, the Lord Captain meets the Reader and the Drumm. Both are worried that Euron's little conquest will bring ruin down upon them, as surely Highgarden will respond.
At the feast, Victarion notes that Euron has shamed Lord Humfrey Hewett and his wife and daughters. The recently crowned king then raises Harras Harlaw, Andrik the Unsmiling, Maron Volmark, and Nute the Barber to Lords of the Four Shields, effectively stealing away the lieutenants of his adversaries.
Euron declares that they will sail the next day with provisions plundered from the Shield Islands; selling the slaves they had just taken in the Free Cities on their way to find the dragons he had promised. But many of the captains object, stating that they should attack Oldtown or the Arbor, and Euron stalks from the hall. Soon, one of Euron's bastard sons tells the iron captain that the king wishes to see him.
In his room, Euron tells his brother that the Reader was correct that the whole fleet could never reach Slaver's Bay together. He believes that the Iron Fleet alone could, however, and promises his brother the Seastone Chair as reward if he sails to Slaver's Bay and returns with Daenerys.
Euron means to marry her and ascend to the Iron Throne. With Lord Blacktyde's words that Euron was maddest of them all on his mind, Victarion agrees to go, thinking to himself, "You stole my wife and despoiled her, so I'll have yours."
Cersei and Taena share the queen's litter en route to the Great Sept of Baelor. The lady from Myr is telling Cersei about all the men who are always around Margaery, and how she was present for the bedding at Renly's wedding.
Although Taena is not sure if Margaery is still a maiden, she affirms that Renly was aroused. She also lets on that besides all the knights and bards, Pycelle is a frequent visitor of the young queen, and her brother Loras visits perhaps more than any other.
They also discuss the new High Septon, a man who was once a "sparrow" and not a member of the Most Devout. This is not only surprising, but also of concern to Cersei, and she considers that she may have to poison this new leader of the Seven, if he becomes unruly.
Reaching the top of Visenya's Hill, the queen's litter can continue no further as the streets are packed with "sparrows". Continuing on foot, Cersei considers Pycelle's objection to her choice of Osfryd Kettleblack to replace Addam Marbrand as the commander of the City Watch.
She takes note of all the bones and skulls piled up around the statue of Baelor, and is told that they are the remains of septons and septas who were killed by the war, because they received no protection from the Throne.
At the doors to the Great Sept, armed men block the Kingsguards' entry since they bear weapons. Cersei must enter alone, and as she does she wonders about these anointed knights answering the call to defend the Faith.
Inside the Sept, she is appalled to find Septon Raynard in roughspun robes scrubbing the floors, and learns that Septon Torbert has been imprisoned for being obese when so many are starving. She berates the new High Septon, this "sparrow" wearing frayed robes and standing before her barefoot.
He tells her that the Faith has sold the crown her father gave his predecessor, as well as all the valuables in their vaults, in order to help feed the poor. Cersei recalls Qyburn's report that the "sparrows" broke down the doors of the Sept before the final vote with axes in their hands and their leader on their shoulders.
She now understands how this man was elected High Septon. Speaking in private, the priest reprimands her for beheading Ned Stark on the steps of the Great Sept, and reveals that he hasn't come to the Red Keep to bless King Tommen because he is still praying for guidance from the Seven to affirm that the boy is the rightful king.
The Queen Regent begins to seethe with anger, but concedes to his concerns that the holy men and women on the roads need protection from rape and murder: Cersei agrees to have Tommen rearm the Faith, something King Maegor forbade almost 300 years ago. She promises to restore the Faith Militant, for which the High Septon will acknowledge Tommen as king and forgive the Crown's debt to the Faith.
Back in her litter, Cersei tells Taena of her triumph: with one stroke she has gotten the Faith to bless Tommen, reduced the Throne's debt by almost a million dragons, and cleared the city of "sparrows" by restoring the Warrior's Sons and the Poor Fellows.
Yet she doesn't realize the repercussions of what she has set in motion. On the way back to the Red Keep, Cersei's litter encounters Margaery's entourage returning from a horse ride and picnic.
Margaery tells Cersei that she should share some of the burden of ruling the realm. But Cersei laughs at her, especially when the young queen tells her she is always well protected by her brother Loras when she goes riding.
Contracts are legally enforceable promises. Factors: specificity of the statement, context of statement, nature of defect, parties’ knowledge and sophistication, language employed by seller.
Before submitting the question to a jury, the trial court should ascertain if the defendant’s words could have been possibly understood as an offer of contract. Hawkins v. McGee, 1929.
UCC 2-313: …An opinion or commendation made by the seller is not the same thing as an affirmation of fact or promise…. Factors to consider: the specificity of the statement, context in which the statement was made, nature of defect, parties’ relative knowledge, language employed by seller, written or oral.
Breach (nonperformance): failure to honor promise of performance when that performance is due.
Four elements to establish that breach occurred: 1. Determine the existence and content of contractual undertaking. 2. Establish date that promised performance fell due; Breach by failure to perform or improper performance cannot be brought before performance is due. 3. Decide if the performance complied with the promise; Any shortfall from promise is a breach. 4. If breach did occur, decide of severity and on victim’s rights in reacting.
Total and material breach: Breach is serious and fundamental enough to allow the victim to withhold return performance, terminate the contract, and sue for damages that resulted from breach. Non-material breach: Victim must perform contract; confined to damages compensating shortfall in performance.
Remedies based on compensatory measures: incidental damages and consequential damages. The primary purpose of the remedy is to give promisee the “benefit of the bargain” by protecting expectation interests.
Incidental Damages: Can be recovered by buyer; expenses related to dealing with the goods.
Consequential Damages: Compensation for harm to buyer as a consequence of not having seller’s promised performance; seller is liable for buyer’s consequential losses resulting from the buyer’s general or particular needs that the seller had reason to know of a the time of contracting; The loss must be proved with reasonable certainty, except concerning personal injury or property other than the goods sold, where buyer must show that the losses were proximately caused by a breach of warranty.
Expectation Damages: Designed to place breach victim in the position they would have been in if the contract had been performed; meant to compensate for loss, not to punish breach; breach victim must prove that breach deprived them of economic gain that would have resulted if no breach.
Reliance Damages: Remedy based on affirmation of the contract. The aim is to refund expenses wasted or other losses incurred by the breach victim in reliance on the contract; restoring victim to status quo ante.
Essential reliance damages: Also called “direct reliance damages”; expenses paid in reliance that went to seller. Incidental reliance damages: Also called “consequential reliance damages”; expenses not paid to seller but that were paid in reliance of the contract.
Remedies based on fairness: restitution damages and damages based on disgorgement.
Restitution Damages: The aim is to return the value of any benefit conferred on the breacher under the breached contract back to the breach victim; focused on the extent of the breacher’s enrichment at breach victim’s expense.
Damages Based on Disgorgement: Occurs when promisor gained a benefit from breaching the contract; restores promisor to the state that they would have been in if the breach had not occurred.
Remedies based on specific relief: specific performance and injunctive relief. Called equitable remedies.
Stipulated Remedies: Damages that the parties agree upon in advance must be paid if one party breaches. Remedy has to be a reasonable estimation of harm; not punitive.
Punitive Damages: Not available in pure breach of contract cases but may be available if the breach is willful and accompanied by tortious action.
Consideration: Any action, forbearance, or promise as an inducement for a promise made that involves a legal detriment or a change in the legal position of the promisee constitutes sufficient consideration.
Conferment of a benefit or suffering of a detriment (loss/restriction of legal interest) as an inducement for a promise made. Hamer v. Sidway.
Forbearance from suit on a claim of doubtful validity is sufficient consideration for a promise if there is a sincere belief in the consideration of the claim. Dyer v. National By-Products, Inc (quoting Williston on Contracts).
Requirement of Exchange: For valid consideration, there has to be an exchange, can’t be a past exchange. A benefit conferred before a promise is made can hardly be said to have been given in “exchange” for the promise. Feinberg v. Pfeiffer Co.
A moral obligation does not suffice as consideration. A deliberate promise made with no return promise or performance is not legally enforceable. Mills v. Wyman.
Requirement of Bargain: A bargain is an agreement, a manifestation of mutual assent, to exchange promises performances or promise for performance. Restatement 2d 33. Contracts are voluntary exchange relationships with reciprocal promises or performances. Gifts and gratuitous promises are not enforceable by law. Kirksey v. Kirksey.
Employee Agreements: Consideration exists to support a noncompete agreement when, in exchange for the assent of an at-will employee to a proffered noncompetition agreement, the employer continues an at-will employment relationship that could legally be terminated without cause. Land Lake Employment Group v. Columber.
Employee Handbooks: Terms, if viewed as terms of employment agreement, cannot be unilaterally modified to reduce the employee’s rights. Pine River State Bank v. Mettille.
Rewards: A reward is a promise for performance (giving of the reward) in exchange for a performance. A reward should be given to someone who performs the service called upon when the acceptor is aware of the reward but not otherwise. The acceptor could complete one part of the services, learn of the reward, complete the service in reliance of the reward, and then be entitled to the reward.
A person who, without notice or knowledge of the offer of a reward, performs the act for which the reward is offered, is not entitled to the award. Broadnax v. Ledbetter.
Rewards are general offers. There is a presumption in general offers that only the first person who performs the acts called for in the offer can accept it.
Promises as Consideration: A promise that is bargained for is consideration if the promised performance would be consideration.
Promises as Consideration with Unilateral Contracts: Promise on one side only. No mutuality is required.
Promises as Consideration with Bilateral Contracts: Promises on both sides. Where a promise is exchanged for a promise, there must be mutuality in obligation.
A request followed by performance will create consideration. Mutual promises at the time are not essential unless the promisee understood that the promisor was not bound, except on condition that the other party entered an immediate and reciprocal obligation to do the thing requested. Strong v. Sheffield.
The promisor’s duty to exercise his judgement in good faith is consideration. Mattei v. Hopper.
Illusory Promises: Words of promise which by their terms make performance entirely optional with the “promisor” do not constitute a promise.
If a termination clause gives a party the power to terminate at will, at any time, for any reason, the promise is illusory. If the clause restricts the right of termination in some way, not illusory.
Termination Clauses and UCC 2-309(2): Requires “reasonable notification” for termination, except on the happening of an agreed event.
Conditional Promises: A promise that will become due only if a particular event, called a condition, occurs. A promise creates a duty; a condition postpones that duty.
Express Conditions: One that’s clearly stated. Ex. You pay $1,000 to an insurance company in exchange for the company’s promise to pay out $100,000 if your house has serious fire damage. Implied Conditions: Courts can impose a condition by implication, even if the contract does not provide any. Ex. constructive condition of exchange—one party’s duty to perform is not triggered until the other party has performed.
Implied Promises: Promises can be inferred from conduct or from the circumstances of the transaction when considering exclusive deals. The question of what is reasonable or not is a question of fact, a question for the jury. The terms of a contract do not need to be contained in a document or spoken. Could include terms that are posted or otherwise a conspicuous part of the contract at the time it is entered into. Wood v. Lady Duff.
Implied Promises and UCC 2-306(2): A lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale.
General Obligation of Good Faith: Implied in every contract as a matter of law.
Restatement (2d) Contracts s. 205: Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.
UCC 1-304: Every contract or duty within the UCC imposes an obligation of good faith in its performance and enforcement.
Restatement (2d) Contracts s.90, Promissory Estoppel: (1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. (2) A charitable subscription or a marriage settlement is binding under subsection (1) without proof that the promise induced action or forbearance.
Requirements for Promissory Estoppel to Apply: (1) Actual Inducement--The promise must have, in fact, induced the promisee’s action or forbearance. (2) Justification--The promisee’s response must have been a justifiable reaction to the promise. (3) Avoiding Injustice--The promisee must have suffered some actual harm by relying on the promise, not merely not receiving the promised benefit. Promisee is not necessarily entitled to full relief.
Where promissory estoppel is often found: family promises, promises to convey land, promises coupled with gratuitous bailments, charitable subscriptions.
A gratuitous (and thus unenforceable) promise is nevertheless transformed into a binding and enforceable contract if the promisee reasonably and detrimentally relies on the promise. Feinberg v. Pfeiffer Co.
Restitution as an Alternative Basis for Recovery: Liability in restitution derives from the receipt of a benefit whose retention without payment would result in the unjust enrichment of the defendant at the expense of the claimant.
Quasi-Contract: Also called “constructive contract” or a “contract implied by law.” With regular contracts, the contract defines the duty; with quasi-contracts, the duty defines the contract.
Where there is no agreement on which the court may enforce a contract between the parties, as where physicians render services to persons who are unable to contract due to their condition, the court may use the legal fiction of a quasi-contract to require payment for those services. Cotnam v. Wisdom.
Quasi-Contract Liability: (1) Some type of enrichment was conferred on the receiver. (2) The receiver’s retention of that enrichment is equitable or unjust. (3) There is not another path to remedy.
A quasi-contract based on unjust enrichment can be implied by law only when there is no other remedy available. Cellano v. Oakwood Park Homes Corp.
Subcontractors, after performing and not receiving payment, have no contractual right to payment or right to restitution from owner, but every state has a Mechanics Liens Law that which allows laborers, suppliers, contractors, and others that make improvement on real property to assert a lien on the property to secure payment.
Restatement (3d) s.21(1): Restitution for services provided to protect health or property is available only when “circumstances justify the decision to intervene without request.”
Restitution Between Spouses: Restitution claims between spouses typically fail because the services of each are presumed to be gratuitous gifts. A lot of jurisdictions extend this “gift presumption” to other family relationships.
In Arizona, restitution is available to a former spouse on a quasi-contract theory to prevent unjust enrichment if the facts demonstrate an agreement between the spouses and an effort by one spouse that inured solely to the other spouse's benefit by the time of dissolution. Pyeatte v. Pyeatte.
Restitution Between Cohabitants: If there was a relationship that included a sexual relationship between the cohabitants, restitution claims fail on public policy grounds. Restitution has been granted when the sexual relationship is completely separate from the benefits bestowed.
Mutual Assent: There must be a reasonable manifestation of mutual assent between the parties.
Restatement (2d) s. 17(1): The formation of a contract requires a bargain for which there is a manifestation of mutual assent.
UCC 2-204, Formation in General: (1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract, (2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined. (3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.
Manifestation of Assent: Whether or not there was a manifestation of mutual assent is judged by a reasonable standard.
Someone’s assent in making a contract is measured by an objective standard. “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention.” Lucy v. Zehmer.
Factors to consider when analyzing whether there is a manifestation of mutual assent: Inquiry/Constructive Notice, Capacity, and Disparity of Value.
Inquiry and Constructive Notice: The offeree has to be "put on notice" for terms. There is a duty to read and understand the terms that you are assenting to.
Capacity: The actor must, at the time of assent, possess the capacity to understand the nature and consequences of the instrument to be execute.
Disparity of Value: A great disparity between the offered amount and the actual value of the thing is an indication of unreasonableness.
Intention to be Legally Bound: Neither the real nor apparent intention that a promise be legally binding is essential to the formation of a contract, but a manifestation of intention that a promise shall not affect legal relations may prevent the formation of a contract.
Reasonable Notice and Arbitration: Assent is measured by an objective standard that accounts for what the offeree said, wrote, or did, and the transactional context in which the offeree verbalized or acted. Clarity and conspicuousness of arbitration terms are important in securing informed assent. Specht v. Netscape Communications Corp.
Restatement (2d) s. 20, Effect of Misunderstanding: (1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations AND (a) neither party knows or has reason to know the meaning attached by the other; or (b) each party knows, or each party has reason to know the meaning attached by the other. (2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties IF (a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or (b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.
Mistakes: A contract may be rescinded based on mistake of fact if the party seeking rescission made a mistake regarding a basic assumption in the contract, the mistake had a material adverse effect on the agreed-upon exchange, the party did not bear the risk of mistake, and enforcement of the contract would be unconscionable on account of the mistake.
Unilateral Mistake" A contract may be rescinded on the basis of a unilateral mistake if: (1) the mistake was so fundamental in character that there was no meeting of the minds, (2) there was no gross negligence on the part of the party seeking rescission, (3) no intervening rights have accrued, (4) the parties may still be placed in status quo, and (5) the party seeking rescission did not induce the mistake through negligence.
Mutual Mistake: Under contract law, a contract may be rescinded based on the doctrine of mutual mistake if there is a mistake of fact held mutually by the parties that materially affects the agreed-upon exchange.
Elements of an Offer: (1) An offer must be communicated to the person to whom it's addressed. (2) The offer must indicate a desire to enter into a contract. (3) The offer must be directed to a person or a group of persons. (4) The offer must invite acceptance. (5) The offer must create a reasonable understanding that upon acceptance a contract will arise without any further approval being required from the offeror.
When a contract is made, in which the personality of the contracting party is or may be of importance, no other person can interpose and adopt the contract. Boulton v. Jones.
General statements made in negotiation do not create a binding offer if they do not indicate a party’s intent to be bound by those statements. Owen v. Tunison.
Where a party quotes prices and invites acceptance by another party, a binding offer has been made that cannot be revoked once accepted.
Fairmont Glassworks v. Crunden-Martin Woodenware.
Option Contract Definition: The right to make an offer irrevocable for a certain period of time.
Ways an Option Contract is Created: (1) a promise to hold the offer open that is supported by consideration, (2) a "firm offer" under Article 2 of the UCC, must be in writing, (3) an offer to enter into a unilateral contract where the offeree has initiated performance, (4) reliance by the offeree.
A promise to keep an offer open that is not supported by consideration is nudum pactum (not binding). At any moment before complete acceptance by the offeree, the offeror is not legally bound to him. Under common law, an option is only binding if there is consideration to support it. Dickinson v. Dodds.
A firm offer must be an offer from a merchant. The offer will be held open for the time specified by the firm or three months, whatever is sooner.
Beginning performance in response to an unambiguous offer to enter into a unilateral contract creates a unilateral option contract exercisable by the offeree. Restatement 2d 45.
When an offer invites acceptance by promise or performance at the offeree’s discretion, i.e., is an “indifferent” or “ambiguous” offer, Restatement 2d § 62 provides that the beginning (or tender) of performance constitutes a valid acceptance, and constitutes an enforceable contractual promise to complete the performance.
Reasonable reliance resulting in a foreseeable prejudicial change in position affords a compelling basis for implying a subsidiary promise not to revoke an offer for a bilateral contract. Drennan v. Star Paving Co.
In general, advertisements are not offers. They are invitations by the seller to the buyer to make an offer for purchase. An advertisement constitutes a binding offer if it is clear, definite, and explicit, and leaves nothing open for negotiation. Lefkowitz v. Great Minn Surplus Store.
Acceptance Defined: Acceptance is a voluntary act of the offeree whereby he exercises the power conferred upon him by the offer, and thereby creates the set of legal relations called a contract.
If contracting parties intended for their contract to become binding immediately upon acceptance, then the offeree does not need to notify the offeror of the acceptance to make the contract binding.
International Filter Co. v. Conroe Gin, Ice & Light Co.
To form a binding contract, acceptance by performance must be sufficient to manifest or communicate the acceptance to the offeror. White v. Corlies.
If the person making the offer expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance. Carlill v. Carbolic Smoke Ball Co.
A contract may be created by acceptance of the offer within a time frame specified by the offer or, if no time is specified, within a reasonable time. Ever-Tite Roofing Corp. v. Green.
UCC 2-206, What Constitutes Acceptance of Goods: Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods, the buyer signifies to the seller that the goods are conforming, or that the goods are non-conforming, but the buyer will accept it anyway, (b) the buyer does not make an effective rejection, but the acceptance does not occur until the buyer has had a reasonable opportunity to inspect the goods, (c) does any act inconsistent with the seller's ownership regarding the goods.
Under UCC § 2–206(2), where the beginning of a requested performance is a proper manner of acceptance, the seller must notify the buyer that it is beginning to perform. If it does not, the offeror “may treat the offer as having lapsed before acceptance.”
Where the notification is properly made, the shipment of nonconforming goods is treated as a counteroffer, and the buyer may accept or reject the counteroffer under normal contract rules.
Corinthian Pharmaceutical Systems, Inc. v. Lederle Laboratories.
The Mirror Image Rule: A common-law contracts principle that treats an offeree’s acceptance as a counteroffer, rather than an acceptance, if the acceptance does not exactly mirror the terms of the offer.
The acceptance of an offer must be absolute, unequivocal, and unconditional, and it may not introduce additional terms or conditions. In order to form a contract, the offer and acceptance must express assent to the same thing. A valid acceptance must be unequivocally expressive of an intent to create thereby, without more, a contract. Wucherpfenning v. Dooley.
A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assents to the modification suggested. The other party, having once rejected the offer, cannot afterwards revive it by tendering an acceptance of it. Minneapolis & St. Louis Railway Co. v. Columbus Rolling-Mill Co.
The Mirror Image Rule and Implied Terms: The court may decide that what seemed to be an additional or different term in the acceptance was really an implied term in the offer. Language appearing to vary the terms of the offer did not really do so.
The Mirror Image Rule and Suggestive or Precatory Language: A mere inquiry regarding the possibility of different terms, a request for a better offer, or a comment upon the terms of the offer, is ordinarily not a counteroffer.
Necessity of Notification of Acceptance to Offeror: Except where otherwise stated in Restatements or where the offer manifests a contrary intention, it is essential to an acceptance by promise either that the offeree exercise reasonable diligence to notify the offeror of acceptance or that the offeror receive the acceptance seasonably.
necessity of Notification of Acceptance for a Unilateral Contract: “Ordinarily there is no occasion to notify the offeror of the acceptance of such an offer, for the doing of the act is a sufficient acceptance, and the promisor knows that he is bound when he sees that action has been taken on the faith of his offer, but if the act is of such a kind that knowledge of it will not quickly come to the promisor, the promise is bound to give him notice of his acceptance within a reasonable time after doing that which constitutes the acceptance.” Bishop v. Eaton, MA 1894.
Mailbox Rule: Acceptance occurs on proper dispatch unless there is a contrary indication in the offer. In the absence of a prescribed method of acceptance set forth in the offer, acceptance takes effect as soon as it is put out of the offeree’s possession, provided that the acceptance is made in a manner and via a medium that is expressly or impliedly authorized by the offer.
An acceptance of an offer is operative and completes the contract as soon as it is put out of the offeree’s possession, regardless of whether or not it reaches the offeror, as long as the acceptance was made in a manner and by a medium invited by the offer. U.S. Life Insurance Company v. Wilson.
Mailbox Rule and Option Contracts: Acceptance of an option contract is effective only when it is received by the offeror, not upon proper dispatch. Restatement 2d 63(b).
Silence as Acceptance: Silence does not constitute an acceptance, even the offeror cannot change this. Exceptions--the offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation, the offerror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer, because of previous dealings, it is reasonable that the offeree should notify the offeror if he does not intend to accept.
Established relationship, sending the good imposed a duty on the defendant to act about them. Silence, coupled with the retention of the good for an unreasonable amount of time, can communicate acceptance. Hobbs v. Massasoit Whip Co.
Where there was longstanding relationship that production began upon receipt of the order, court ruled that acceptance existed in the absence of rejection. American Bronze Corp. v. Streamway Products.
Unsolicited Merchandise: The recipient who lays the merchandise on a shelf and does not use it incurs no liability.
The Last-Shot Rule: Some performance has taken place, following an exchange of messages showing that the parties believed they had reached a contract; the terms proposed by the parties were never an exact match. Disputes typically focus on what terms control the agreement. The terms of the last message sent controls. The last message in the series is a counteroffer, and performance constitutes consent to those terms.
UCC 2-207: (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. Between merchants such terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received. (3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.
"Definiteness" Required for an Acceptance under UCC 2-207: Cannot be a definite or seasonable offer of acceptance if: (1) it’s clearly a counteroffer, (2) contains too many differing terms (a material alteration), (3) states that the acceptance is expressly conditional on the assent to the terms and conditions of the form.
Analysis of Written Confirmations: (1) An oral or informal contract is formed, (2) After, one or both parties send written confirmations, (3) One or more confirmations contain additional or different terms than what was agreed upon orally or informally, (4) Any different or additional terms in the confirmation must be treated as proposals the same as proposals in an acceptance (2-207(2) analysis).
2-207(3), Contract Formation by Conduct: IF the conduct by both parties is sufficient to establish a contract for sale, AND the writings of the party do not otherwise establish a contract, THEN the terms on which the writings agree control, all other terms drop out and are replaced by Article 2 gap fillers.
2-207(2), In general, the additional terms are part of the contract unless one of three exceptions applies: (1) the offer expressly forbids the alteration of the offer. 2-207(2)(a), (2) the new term materially alters the agreement. 2-207(2)(b), (3) the merchant objects to the new terms included in the other merchant’s written form. If any of these exceptions apply, the offeror’s terms control.
Handling different terms, 3 main treatments: (1) Majority view/the Knock Out rule: The non matching terms in the offer and acceptance drop out and are replaced with gap filler terms from the UCC. (2) “Leading” Minority view: The non matching terms in the offer and acceptance drop out, and the offeror’s terms control. (3) The California view/the materiality analysis: Treats different terms as additional terms. They are considered part of the contract unless they materially alter the offer.
Restatement (2d) s. 38, Rejection: (1) An offeree’s power of acceptance is terminated by his rejection of the offer, unless the offeror has manifested a contrary intention. (2) A manifestation of intention not to accept an offer is a rejection unless the offeree manifests an intention to take it under further advisement.
Lapse of an Offer: An offer lapses after the time period stated. If there is no time period stated, the offer lapses after a reasonable amount of time has passed. For goods that fluctuate in price, the reasonable amount of time is typically shorter.
Ordinarily, an offer made by one to another in a face-to-face conversation is deemed to continue only to the close of their conversation and cannot be accepted thereafter. (quoting Caldwell v. E.F. Spears, Ky.1919). Typically, it includes any type of instantaneous conversation. Unless a contraindication was manifested by the offeror. Akers v. J.V. Sedberry, Inc.
The purpose of the offer was to excite the vigilance of the public and to alarm offenders. After nearly three years, it must be presumed that most of the community forgot about the offer, and no one can reasonably assume that the offer was still top-of-mind in the public. Therefore, a reasonable time period had passed, and the offer had lapsed. Loring v. City of Boston.
Revocation of an offer: An offer is freely revocable at any time prior to acceptance.
When an irrevocable option contract supported by consideration exists, the offeror must keep the option open for the time period specified in the contract, and a counteroffer or other negotiations made by the offeree within this time frame will not terminate the offeree’s power to accept the option. Humble Oil & Refining Co. v. Westside Investment Corp.
Communication of Revocation: An offeree's power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract.
Indirect Communication of Revocation: An offeree's power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect.
Death of the Offeror: Generally, the death or incapacity of the offeror terminates the offer. There is an exception for option contracts, where death or incapacity of the offeror does not terminate the offeree’s power of acceptance.
Categories when Precontractual Liability Applies: (1) Duty to negotiate in good faith, like from a letter of intent; (2) If during the course of negotiations one party has conferred a benefit on the other, the recipient may be required to restore the benefit or its value; (3) Misrepresentation; (4) Reliance on specific promises; (5) Agreement to negotiate in good faith.
Restitution in the context of precontractual liability: If during the course of negotiations one party has conferred a benefit on the other, the recipient may be required to restore the benefit or its value. A party cannot recover on a theory of restitution if the services rendered to the other party were entirely voluntary and were designed to and had the effect of protection of the complaining party’s own interest, even if the services incidentally benefited the other party.
Reliance in the context of precontractual liability: A negotiating party may not misrepresent its intention to come to terms with impunity, and liability for misrepresentation includes reliance losses. Situations in which a party has a motive for making such a misrepresentation are rare. Where the promisor opportunistically has strung along the promisee, the imposition of liability despite the preliminary stage of the negotiations produces the most equitable result. The promisee’s recovery should be limited to their reliance expenditures.
Promissory estoppel in the context of precontractual liability: There’s no common law duty to negotiate in good faith, but there can exist an agreement between the parties to do so. The party that breaches the agreement to negotiate in good faith can be liable for the breach. Normally, promissory estoppel is used when a contract would have existed except that there was no consideration. This is an alternate use of the doctrine. Promissory estoppel does not require that the promise giving rise to the cause of action be so comprehensive as to meet the requirements of an offer.
Enforceability of precontractual promises: If such an agreement otherwise meets the requisites of a contract, it is an enforceable contract. (1) did both parties manifest an intention to be bound by the agreement? (mutual assent—objective theory of contract) (2) were the terms of the agreement sufficiently definite to be enforced? (3) was there consideration? If an agreement to negotiate in good faith had sufficient specificity to make it an enforceable contract, the parties intended to be bound by it, and it is supported by consideration, it is enforceable.
Definiteness: No contract comes into being if a material aspect of the agreement is left indefinite by the parties and the uncertainty cannot be resolved by the process of interpretation or construction
For an apparent contract to fail for indefiniteness (1) there must be an incurable uncertainty about what the parties agreed to, so their intent to enter into a contract is in doubt, or the court cannot establish a basis for enforcing what was agreed. (2) the uncertainty must relate to a material aspect of the relationship.
For indefinite nonmaterial terms: must be settled by the court if relevant to the dispute but does not preclude contract formation.
Material Terms: (1) the subject matter of the contract; (2) the quantity to be purchased; (3) the price; (4) the time of performance; (5) the place of performance; and (6) payment terms.
Unclear terms: Vague and Ambiguous
Vague terms: A term is vague if it is stated so obscurely or in such general language that one cannot reasonably determine what it means.
Ambiguity: A term is ambiguous if it is capable of more than one meaning.
Contextual Approach: If extrinsic evidence is available to cast light on the meaning, most courts are willing to take the evidence into account in determining what the parties intended. Expressions that at first appear incomplete may not appear so after resorting to usage or the addition of a term supplied by law.
Part performance removes the uncertainty and establishes “that a contract enforceable as a bargain has been formed.” Restatement 2d 34(2).
Omitted Terms: Failure to Reach an Agreement.
For omitted terms, if the terms were omitted because the parties failed to reach agreement on the term: no contract actually came into being.
Adherence to an “Off-the-Shelf” Term: For omitted terms, if the terms were omitted because they intended adhere to an “off-the-shelf” market or legal standard that they did not bother to articulate contract came into being because they already “agreed” on what to do—rely on the “off-the-shelf” standard
Unresolved Terms: Unresolved terms and “agreements to agree”: The term has not yet been settled by the parties; left to be resolved by agreement at some later time. If the unresolved term is a material term, no contract formed; the relationship is described as an “agreement to agree.”
Agreement to settle an open term by an objective standard: A contract can validly provide for the final determination of a term at some later date as long as the contract sets out a standard that will allow the term to be settled without the need for further negotiation and agreement.
Agreement to allow one of the party’s discretion to decide an open term: No issue; the parties have committed to this method of settling the term and will not have to try to reach an agreement on it in the future.
Treatment of an unresolved price term: (1) the price term will be “a reasonable price at the time for delivery.” UCC 2-305. (2) the parties agree to use an “escalator clause,” i.e., the price will be fixed according to a formula tied in some way to the market.
Resolving indefinite price terms: Where the parties intended to be bound by the contract, the court can determined a reasonable rate.
“Contract Spectrum” : A spectrum from “ideal” transactional type to “ideal” relational type.
“Ideal” Transactional Type: discrete, simple, immediate, one-shot, impersonal exchanges.
“Ideal” Relational Type: discrete, exchanges are complex, extended repeated, and often quite personal.
Finding definiteness: Looking for intent to be bound. It is not necessary that the option agreement contains all the terms of the contract as long as it contains a practicable, objective method of determining the essential terms. When appropriate, a properly proven usage of trade, course of dealing, or course of performance can be used to “cure” an indefinite contract.
The Statute of Frauds is a legal principle requiring certain types of contracts to be in writing and signed by the party against whom enforcement is sought to be enforceable. This prevents fraudulent claims and provides evidence of the agreement. Failure to comply with the Statute of Frauds renders a contract unenforceable.
Classes of contracts that fall under the statute of frauds: (1) Marriage contracts, (2) Contracts that can’t be performed within 1 year, (3) Land contracts, (4) Executor-administrator contracts, (5) Sale of goods contracts $500+, (6) Suretyship.
Marriage Contracts: Agreements made in consideration of marriage, where one party's promise to marry serves as consideration for the other party's promise. Note that simple mutual promises to marry without additional conditions do not fall within the statute of frauds.
One-Year Provision: Contracts that cannot be fully performed within one year from the date of formation. The impossibility of performance within a year must be evident at the time of contract formation.
Lifetime Agreements: You can die tomorrow, so the rest of your life could be less than a year. Therefore, lifetime agreements fall within the one-year provision.
Informal Extensions of Employment: Parties can bind themselves to a term in the written agreement by making an “oral renewal of the agreement, at least if the renewal is for a period no longer than a year. The parties to an employment contract cannot extend it orally for a period more than a year.
Termination Clauses: A contract with a termination clause is not within the Statute of Frauds if one of the parties can terminate the contract within one year of its making.
Land Contracts: Agreements involving the transfer of any interest in land, including leases and mortgages. Restatement 127 defines interest as “any right, privilege, power or immunity, or combination thereof.”
Examples of land contracts that fall under the statute of frauds: contract to transfer a right of way, mortgages, leases and subleases.
Exceptions to the Land Provision: Short-term leases (typically less than one year), often have statutory exceptions; sometimes but not usually limited to residential leases; a lender selling a mortgage to another.
Executor-Administrator Contracts: Promises by an executor or administrator of a deceased person's estate to personally answer for a debt or duty of the deceased.
Goods: Contracts for the sale of goods valued at $500 or more.
Exceptions to the “Goods” provision: Specially manufactured goods not suitable for sale to others in the seller's normal course of business; admission of the contract's existence in court by the party against whom enforcement is sought; payment having been made and accepted, or goods received and accepted.
Suretyship Contracts" Agreements where a person (the surety or guarantor) promises to answer for the debt or obligation of another person.
Exceptions to the Suretyship provision: The main purpose rule, a third-party takes on a debtors obligation to the obligee, a third-party directly enters a contract with the obligee to pay for a benefit that the oblige will give to the recipient.
The Main Purpose Rule: Provides an exception if the surety's primary motivation is to further their own economic advantage.
Satisfying the Statute of Frauds: To satisfy the Statute of Frauds, a writing must do four things with reasonable certainty: (1) Who, must identify the parties to the contract; (2) Whether, must show that those parties made a contract; (3) What, must set forth the nature of the contract, including some indication of what the parties contracted about. (4) What (part 2): must state the essential terms of the contract
Issues with form of writing concerning the statute of frauds
As long as the proffered evidence shows that the parties made a contract and provides sufficient detail, it counts.
Multiple documents taken together may constitute a signed writing sufficient to fulfill the statute of frauds if all documents refer to the same subject matter or transaction and at least one is signed by the party to be charged with the contractual obligations.
Despite the wording of Yoon's pronouncement, it quickly became clear within South Korea that his drastic move was in response to a series of political events that have destabilised his leadership. A South Korean woman, who wished to remain anonymous for fear of speaking out, said she felt Yoon was “attempting to restrict everyone's freedom and right to express their concerns and judgement towards the government". "I am so scared that South Korea will turn into another North Korea," she added. Another Seoul resident, Kim Mi-rim, told the BBC she had hurriedly packed an emergency kit, fearing the situation could escalate. She recalled that previous instances of martial law involved arrests and imprisonment. The BBC also spoke to journalists in Seoul who were coordinating closely, sharing advice on staying safe while it seemed that martial law might remain in effect, bringing all media and publishing activities under strict government control.
South Korea's President Yoon Suk Yeol lifted the martial law order after a chaotic night which saw MPs block the surprise move. Less than two hours after his martial law declaration, MPs had defied the president, gathering at the National Assembly and voting to block his move. Some broke through barricades or climbed fences to get inside the building; there were scuffles between police and protesters outside. Demonstrators who had gathered outside parliament to protest the sudden introduction of military rule are now celebrating its equally sudden reversal. Analysis: Yoon is mired in controversy and has been a lame duck president since a general election in April this year, writes Jake Kwon in Seoul.
Policing the Bargaining Process: Three policy concerns regarding the bargaining process: status of the parties, behavior of the parties during the bargaining process, substance of the bargain.
Capacity: Main classes of people that lack the capacity to enter into a contract: minors and the mentally ill.
The Infancy Doctrine: A contract entered into by a minor is voidable. A contract entered into by a minor may be disaffirmed by them during minority or within a reasonable time after reaching the age of majority.
Ratification: Generally there are three ways that a former minor/new adult can ratify the contract. (1) Express ratification—an express affirmation of desire to continue the contract. (2) Implied-in-Fact ratification—The contract made during minority can be affirmed by the party’s conduct after reaching the age of majority. (3) Ratification by silence and inaction—a minor is given a reasonable time to disaffirm the contract after reaching the age of majority, and if the contract is not disaffirmed within that reasonable time, ratification will be implied.
An exception for necessities: A minor may not avoid a contract for goods or services necessary for his health and sustenance.
Restitution for Minors: Restatement 2d Rule--Upon disaffirming a contract, a minor can get restitution of all payments already made to a seller, but the goods must be returned. Restatement 3d rule--“a person who renders performance under an agreement that is unenforceable by reason of the other party’s legal incapacity has a claim in restitution against the recipient as necessary to prevent unjust enrichment.”
Restitution for the adult party is available when the minor: (1) Buys something with cash, (2) Contracts for a necessity, (3) The minor misrepresented their age.
Mentally Infirm: Contractual capacity of the mentally ill, Restatement 2d rule--“A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect (b) he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition.”
Unfairness: When a contract resulted from duress, fraud, or mistake, the ordinary remedy is to allow the victim to rescind or avoid (void) the contract. The contract will be voidable, not void.
Duress: impressible pressure exerted by one party over another either during pre-contractual bargaining or during the attempted renegotiation of an existing agreement.
Duress & Modifications: Restatement (2d) 73--Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration. UCC 2-209--Contract modifications need not be supported by consideration. Only applies to merchants.
UCC 2-209, Comment 2: modifications made thereunder must meet the test of good faith imposed by this Act and the extortion of “modification” without legitimate commercial reason is ineffective as a violation of the duty of good faith.
Pre-Existing Duty Rule: When a party merely does what he has already obligated himself to do, he cannot demand an additional compensation therefore, and although, by taking advantage of the necessities of his adversary, he obtains a promise for more, the law will regard it as nudum pactum. Ligenfelder v. Brewing Co.
Substituted Agreement: An existing contract is terminated by consent of both parties and a new one executed in its place and stead. Schwartzreich.
Restatement (2d) 89: Modification of Executory Contract. A promise modifying a duty under a contract not fully performed on either side is binding (a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or (b) to the extent provided by statute; or (c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.
Business Compulsion: Duress in business transactions. Demonstrated by proof that “immediate possession of needful goods is threatened,” i.e., that one party has threatened to breach the agreement by withholding goods unless the other party agrees to some further demand AND the threatened party could not obtain the goods from another source AND the remedy through a breach of contract action would be inadequate. The party must “contact all the manufacturers that the party believes is capable.”
Undue Influence: Described as “whatever destroys free agency and constrains the person whose act is under review to do what which is contrary to his own untrammeled desire. Neill. A person may void obligations procured by undue influence.
Four factors of undue influence: (1) an unnatural disposition made; (2) by a person susceptible to undue influence to the advantage of someone; (3) with an opportunity to exercise undue influence; and (4) who in fact has used that opportunity to procure the contested disposition through improper means.
Confidential relations: Can give rise to a finding of undue influence. exist whenever the relative position of the parties is such that one has power and means to take advantage of or exert undue influence over the other. Young v. Kaye.
Fraudulent misrepresentation: An assertion made with knowledge that it is false and with the intention of inducing the other party’s agreement.
Concealment: Deliberate conduct to hide a fact.
Nondisclosure: The failure to reveal a fact, regardless of whether there is an intention to conceal that fact.
Nondisclosure is only fraudulent if the circumstances impose a duty on the party to disclose information.
When does duty to disclose arise? Where the party knows that disclosure of that fact is necessary to correct a previous assertion; where it is needed to clarify a partial or ambiguous assertion; where there is a fiduciary or confidential relationship between the two parties; where the party knows that disclosure is necessary to correct the other party’s mistake as to a basic assumption of the contract; nondisclosure would violate the duty of good faith and fair dealing; where one party took affirmative action to conceal a fact.
Requirements of Fraud: Materiality—the misrepresentation must be a material one; Justifiable reliance—some degree of diligence on the part of the victim; how much depends on the victim’s capacities, the nature of the transaction, and the plausibility of the representation; misrepresentation of fact—not opinion, this is a traditional rule.
Promissory Fraud (Fraudulent Inducement): Inducing another person’s reliance on a promise that the promisor has no intention of fulfilling, and which is sometimes considered a type of fraudulent inducement. The promisor, at the time of making certain representations, lacked any intention to perform them. Junk v. Aon Corp.
Puffing: An opinion or judgment that is not made as a representation of fact. It is generally an expression, or an exaggeration made by a salesperson or found in an advertisement that concerns the quality of goods offered for sale. Puffing is not generally considered to be a legally binding promise.
UCC 2-609: Right to Adequate Assurance of Performance: (a) A contract for sale imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired.
Limits on the Bargain and Performance: Unfairness and Unconscionability.
Arm’s-length transaction: A transaction or an agreement involving parties who are equally involved in negotiating the terms of the deal and neither party has an obligation to protect the interests of the other party.
Unfairness: “Necessitous men are not, truly speaking, free men.” Vernon v. Bethell.
Equitable Relief: A judicial remedy granted in the interest of attaining a result that, under the circumstances, will be more just than what the law otherwise would provide. Examples of equitable relief include injunctions, orders of specific performance, and reformation of contracts.
(One of) the only times where the adequacy of consideration will be looked into by the court.
Restatement 1d Contracts 367: Specific enforcement of a contract may be refused if (a) the consideration for it is grossly inadequate or its terms are otherwise unfair, or (b) its enforcement will cause unreasonable or disproportionate hardship or loss to the defendant or to third persons, or (c) it was induced by some sharp practice, misrepresentation, or mistake.
Although a contract is harsh, oppressive, and unconscionable, it may nevertheless be enforceable at law; but, in the discretion of the court, equitable remedies will not be enforced against one who suffers from such harshness and oppression. Corbin.
Such prior services and the past relations of the parties may properly be consideration in connection with the fairness of the contract and adequacy of the consideration. Tuckwiller v. Tuckwiller.
Unfairness and Consideration: Courts don’t inquire into the “relative value of the consideration in a contract between businessmen at arm’s length.” Why not? (1) Administrative simplicity is a virtue—courts can’t be required to prescribe prices. (2) The test of enforceability should be certain, not containing vague terms like “fair” or “reasonable” as tests of validity. (3) Freedom of contract.
It is not the function of the court to interfere by determining the validity of a contract between ordinary businessmen on the basis of its beliefs as to the adequacy of the consideration. Black Industries v. Bush.
Unconscionability: A determination that a contractual term was so procedurally and substantively unfair and offensive that the harmed party should be relieved from its consequences; an equitable defense to a claim of breach of contract, regardless of whether the plaintiff seeks legal or equitable relief; applies to all types of contracts. Present at common law and in the UCC.
UCC 2-302, Unconscionable Contract or Clause: (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause therefore may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial settings, purpose, and effect to aid the court in making the determination.
Where the element of unconscionability is present at the time a contract is made, the contract should not be enforced. William v. Walker-Thomas Furniture.
The Two Types of Unconscionability: For a contract to be limited based on unconscionability, both procedural and substantive unconscionability must be present.
Procedural Unconscionability: A contract can be challenged based on significant procedural deficiencies concerning its formation such as substantial inequality in bargaining power or unfair surprise in the terms of the contract.
Inequality in bargaining power: contracts of adhesion (cannot change the terms); not always unconscionable but sometimes are; must be more than just a contract of adhesion.
Unfair surprise: material terms were effectively hidden or disguised in a contract drafted by the party with superior bargaining power or more sophistication. Campbell Soup Co. v. Wentz.
Usuary laws: laws outlawing exorbitant interest rates; significantly weakened or abolished in several states; SCOTUS ruled that banks based in states with no usuary laws do not have to follow them even in states with the laws.
It is not necessary that fraud was committed during negotiations to find procedural unconscionability.
Mere disparity in bargaining power is not enough.
Substantive Unconscionability: A contract can be challenged because its substantive terms are fundamentally unfair at the time that the contract was entered into.
Oppressive contract terms so inordinately one-sided that one party has been deprived of all or substantially all of the benefits or left without an effective remedy in the event of the other party’s breach.
Addressing the Unconscionable, Courts can: (a) rescind the entire contract; (b) delete the unconscionable portion and enforce the remainder of the contract; (c) modify the terms to make them not unconscionable.
Challenges to Arbitration Agreements: Under Section 2 of the Federal Arbitration Act, arbitration clauses may be challenged on grounds of unconscionability.
South Korea has woken up to the aftermath of a turbulent night in politics - and we're still expecting a lot to happen today as the country figures out what will happen next. Let's take a look at where things stand: In a late-night TV address, South Korean President Yoon Suk Yeol declared martial law in the democratic nation, arguing that the move was needed to protect the country from North Korean elements and "anti-state forces" Less than two hours later, with 190 of its 300 members present, South Korea's parliament voted down the measure and ruled the martial law order invalid Soon after, President Yoon reversed course and the martial law was lifted Large demonstrations took place overnight outside the parliament, with many South Koreans expressing relief that the martial law announcement was taken back Earlier this morning, Yoon's staff offered to resign en masse - although the president himself is yet to make a public appearance US Secretary of State Antony Blinken said the United States, a key strategic and defence partner for South Korea, continues to expect "political disagreements to be resolved peacefully and in accordance with the rule of law"
Rarely do you get to speak to a member of parliament at 02:00 in the morning, and even more rarely do you get to speak to them when they’ve just – in effect – broken in to grounds of parliament. But that is what happened earlier on the BBC World Service's Newshour programme. Hong Keewon is a national assembly member for the main opposition Democratic Party. He told the BBC’s Tim Franks he had been asleep when the president made his late-night declaration of martial law. Hong’s wife woke him up to break the news. Hong said he could not believe it at first. Then, he raced to the parliament. When he got there, police were blocking the entrance. So he told protestors who he was, and they gave him a leg up to climb over the wall. Inside the chamber of parliament, he said everyone was united. Even members of the president’s own party can’t believe what’s going on, he said. “Democracy is strong here,” Hong insisted, adding: The military needs to listen to us, to the constitution, and not to the president.
The secretary general of South Korea's National Assembly has vowed to hold members of the military "legally responsible" for any "physical damage and illegal acts" which were carried out during President Yoon's short-lived declaration of martial law. "Starting today, the Ministry of National Defense, police, etc. are completely prohibited from entering the National Assembly," Kim Min-ki said in a speech on Wednesday, according to the South Korean broadcaster MBC. Min-ki said he would soon "disclose all CCTV footage" which captured any "illegal acts by martial law troops" who had entered the National Assembly following President Yoon's order. He added that approximately 230 armed troops had entered the National Assembly grounds at least 24 times via helicopters in the short period before lawmakers voted to lift martial law.
Rule:
Federal Rules of Civil Procedure Rule 12(b)(6) allows dismissal for failure to state a claim upon which relief can be granted. This dismissal is for failure to satisfy Rule 8(a)(2), “short and plain statement showing that the pleader is entitled to relief.” As established by Conley, a pleader does not need to provide factual detail for the claim. In Conley and Leatherman, the courts establish that despite the lack of requirement to set out a claim in detail, the claim does need to provide fair notice of the claim and the grounds upon which it rests. The court in Iqbal establishes that a pleader can plead intent only generally under Rule 9(b), but this is not a reason to ignore the requirement of Rule 8(a)(2). In the pleading process, a pleader must provide sufficient factual allegations, that will be presumed to be true, to state a claim that is plausible on its face. The court in Iqbal follows a three-step process to analyze a pleader’s claim is sufficient under Rule 8(a)(2). The three steps are (1) identifying the right of action and its elements; (2) identifying allegations that are conclusory and setting them aside so the nonconclusory allegations remaining can be given the presumption of truth; (3) and then assessing whether the presumed true allegations support the right of action directly or by inference.
Application:
The first step of the three-part analysis from Iqbal is determining the right of action and its elements. In the present case, the right of action is _______ and the elements of _________ are ________.
The second of the three steps is separating conclusory allegations and giving the remaining allegations the presumption of truth. Iqbal gives further explanation of what this means. Allegations that are unadorned accusations, mere labels and formulaic recitations, and naked assertions devoid of facts are all insufficient. Iqbal. [apply]. [conclude].
The third and final step of the analysis is comparing the remaining allegations to the right of action and its elements, and assessing whether they move the claim from conceivable to plausible. Even when the judge is skeptical of the party’s ability to find evidence for an allegation, the allegation can still be given the presumption of truth and the party will have the chance to find evidence in discovery. Iqbal. When assessing a claim, the judge will use judicial experience and common sense to consider whether there are more common alternative explanations. Iqbal. Even if the allegations of a complaint match the elements of a right of action, more likely explanations make them insufficient. [apply]. [conclude].
No sé que voy a escribir solo estoy escribiendo esto por que alchile me va bastante mal en las demás pruebas y solo quiero escribir lo que yo quiero escribir de ese modo voy a escribir más rápido y no escribiendo las mamadas estupidas que escriben otro que ralentizan mi escritura pero como sea odio a todos me voy a comer un pan adios
Tyurirurimyotte winiwini yuwarinicche nawemohi tyurirurimyohe winiwini yuwani yuweni yuwenu na nanihenu fihananneni fihananneni nienoweni noehinyuherahe nawenoni shumeri hihana fiha nyueni fihana mifa nienoweni fihana mifa nienowena nyoehinuherahe nawenoni nyumeri fihana mifa nyueni hey! hey! hey! hey! hey! hey!
Tyurirurimyohe wiruwini yuwarinishe nahemohi tyurirurimyohe wiruwini yuwari yuweri fiyumenoshechu tyurirurimyohe wiruwini yuwarinishe nahemohi tyuriruracche wiruwini yuweni fihananneni fihananneni nienoweni nyoehiniherahe nawenoni shumeri hihana fiha fihana mifa nyuenoweni fihana mifa nyuenowena nyoehiniherahe nawenoni nyuenu mya weni marei mirekyarahire juri yu mirekerason kire hyari yoriherahe nyurahera nunnyura unera yuraferaso fihana mifa nyuenoweni fihana mifa nyuenowena nyoehiniherahe nawenoni nyumeri hihana fiha nieno fihana mifa nyuenoweni fihana mifa nyuenowena nyoehiniherahe nawenoni yuweni
Moranife teyuruni merikeraninshu (matunushushu) rattinsha uyuruni (ranityurare tyurare) meremerenu rattinu tyurirutuyu kireritura kirikirini merankerashe yuweniruwenirune wanoyurarishueru tiretirenu narinushu wanoyurarishururu miremirenu furimukuyu raretyurare tyutte mieruni uneratune medekyuera kyuera kerarunife
