...Date To: From: – Paralegal Student Subject: Mutuality of Consideration Summary of Facts Bernie is selling his 2006 ford Fusion. Vivian makes an offer to purchase the vehicle for $12,000. Bernie and Vivian meet and negotiate a selling price of $12,500. Vivian has requested an additional three weeks to obtain the funds to purchase the vehicle. Bernie agrees to the extension of time but requires a deposit of $1,000. Vivian agrees to the terms. Bernie drafts an agreement which contains the purchase price, the deposit terms and the transaction deadline date. The contract also contains breach clauses for each party. Shall Bernie breach, he shall be required to return the deposit with no other remedy. If Vivian breaches, she forfeits the deposit with no other remedy. Vivian signs the agreement and provides the $1,000 deposit to Bernie. Two weeks later, Vivian is unable to obtain the additional funds to purchase the vehicle and informs Bernie that she is withdrawing from the agreement. Bernie retains the deposit in accordance with the signed agreement. Vivian sues Bernie for the return of the deposit on the grounds that there is no mutuality of consideration and the agreement is void. Issues Presented The issue in this case is whether there is mutuality of consideration. Applicable Law Busman v. Beeren & Barry Invs., LLC, 69 Va. Cir. 375 (Va. Cir. Ct. 2005), in determining if mutuality of consideration exists states: “[m]utuality of contract as now commonly...
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...remedy and only this remedy.” Vivian read and signed the contract and gave Bernie a check for $1000. Two weeks later Vivian is unable to come up with the funds to buy the car. On March 24th, she called Bernie to inform him that she is pulling out of the deal. Bernie lets her know he is keeping her deposit in accordance with their agreement. Vivian is claiming there was no mutuality of the contract and therefore it is void. Issue Presented The issue in this case is under applicable law in Virginia, is whether there was mutuality of consideration in Bernie and Vivian’s transaction. Applicable Law In Gay Nineties, Inc. v. International Dining Club, 21 Va. Cir. 492 (Va. Law & Eq. Ct. 1973),A dining club and a corporation entered into contract to provide goods and services for the members of the dining club in exchange for the corporation to have a membership with the dining club. The corporation filed suit to void the contract. The courts ruled there was mutuality of the contract, as each side provided consideration. “Where performance is offered and accepted by both parties, the necessary mutuality comes into existence even though it did not exist in the beginning. The offer to perform does not...
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...Contract Law (Mutuality of Consideration) November 7, 20013 SUMMARY OF FACTS Bernie is selling his 2006 Ford Fusion. Vivian makes an offer to buy Bernie’s car for $12,000. Bernie and Vivian meet and agree on the selling price of $12,500. Vivian needs more time to come up the money for the car. Bernie agrees to give Vivian time to come up with the money to purchase his car. Bernie requires Vivian to put down a $1,000 deposit and pay the full balance by March 31st. Bernie drafts up an agreement; and in the agreement and it is stated that if the buyer breaches the agreement, the seller may keep the buyer’s deposit, but the shall be limited to this remedy and only this remedy. Likewise, is the seller breaches the agreement, the seller must refund the purchaser’s deposit, but the parties shall be limited to this remedy and only this remedy. Vivian reads and signs the agreement. Later Vivian realizes that she is not going to be able to get the money together by the deadline. She call’s Bernie to tell him that she is pulling out the deal. Bernie says he is going to keep the deposit. Vivian sues for her deposit claiming there was no mutuality of consideration for the agreement and the contract was therefore void. ISSUE Under Virginia law is their mutuality of consideration when the seller could back out of the agreement by giving the purchaser her deposit back. Rule |Sayres v. Wheatland Group |L.L.C. | OVERVIEW: Defendants sought to apply...
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...than March 31st. Vivian reads and signs the agreement and gives Bernie a $1,000.00 check. After two weeks, Vivian realizes she will not be able to come up with the money. On March 24th Vivian contacts Bernie to inform him she’s pulling out the deal .Bernie says ok, but he will not be returning the deposit per the agreement terms. Vivian sues siting there was no mutuality of consideration and the contract was therefore void. Question Presented Is there mutuality of consideration in this case? Rule of Law In the case of Sayres v. Wheatland Group, L.L.C., 79 Va. Cir. 504 (Va. Cir. Ct. 2009) it is stated that mutuality of contract. When there are promises on each side that something shall be done for the benefit of the other side furnishing therefor considerations by each party, although they may relate to different terms of the contract and may be conditioned upon performance by the other party. This means, "Neither party is bound unless both are bound." Thus, "if it appears that one party was never bound on its part to do the acts which form the consideration for the promise of the other, there is a lack of mutuality of obligation and the other party is not bound. “This case also states...
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...In the agreement it is stated that if the buyer breaches the agreement, the seller may keep the buyer’s deposit, but the parties shall be limited to this remedy and only this remedy. Likewise, if the seller breaches the agreement, the seller must refund the purchaser’s deposit, but the parties shall be limited to this remedy and only this remedy. Vivian reads and signs the agreement. Later Vivian realizes that she is not going to be able to get the money together by the deadline. She calls Bernie to tell him that she is pulling out of the deal. Bernie says he is going to keep the deposit. Vivian sues for her deposit claiming there was no mutuality of consideration for the agreement and that the contract was therefore void. Issue Under Virginia law is Vivian correct in stating that there was no mutuality of consideration in the agreement between her and Bernie? Applicable law In American Agriculture Chemical Co. v. Kennedy & Crawford, 103 Va., 176, 178 (1904), the contract for the sale of fertilizer stated that the seller: …reserved the right to cancel this contract at any time we may deem proper, but in the event of such cancellation the provisions of this contract shall govern the closing of all business begun thereunder. The Court stated that, as the plaintiff had the right to cancel at any time, the plaintiff never bound himself to the sale. “In the absence of such obligation on the part of the plaintiff, and of such right on the part of the...
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...MEMORANDUM From: N/A To: Reader Date:04/21/2016 Re: Vivian v Bernie: Mutuality of Consideration [Facts] On February 1st, Bernie put his 2006 Ford Fusion up for sale. Vivian contacted Bernie on March 1st interested in purchasing his vehicle. Bernie extended an invitation to Vivian on March 5th for them to meet in order to further discuss negotiations. Vivian met up with Bernie at his place of residence on March 10th, they agreed on a purchase price of $12,500. Vivian informed Bernie that she needed an additional three weeks in order to obtain the funds. Bernie agreed to give Vivian until March 31st to purchase the vehicle under the condition that she put down a $1,000 deposit. Vivian agreed to the contract terms written by Bernie as shown below. Bernie agrees to sell his 2006 Ford Fusion to Vivian for $12,500 and Vivian agrees to purchase the same for such price. The transaction shall take place no later than March 31. In the event that the seller breaches this agreement, the seller must refund the purchaser's deposit, but the parties shall be limited to this remedy and only this remedy. In the event that the buyer breaches this agreement, the seller may keep the buyer's deposit, but the seller shall be limited to this remedy and only this remedy. Two weeks after the contract was signed, Vivian contacts Bernie to inform him that she will not be able to purchase the vehicle. Bernie refuses to refund Vivian’s $1,000 deposit based on the contract they agreed upon...
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...TO: Reader From: Josh Thrasher Date: October 8, 2014 Re: Bernie v Vivian, Mutuality of Consideration under VA law Facts: On February 1, Bernie, who lives in Richmond, VA, put an ad in his local newspaper advertising his 2006 Ford Fusion for sale at the asking price of $13,500. On March 1, Vivian calls and offers to purchase the vehicle for $12,000. Bernie invites Vivian to meet on March 5, to complete the negotiation and transaction. Vivian shows up at Bernie's house on March 10, and after some negotiation, she tells him that she will pay $12,500 for the car but will need three more weeks to raise the money. Bernie agrees to wait, but only if Vivian puts down a $1000 deposit. Vivian agrees and Bernie drafts one page agreement. Bernie wants to keep his options open so he puts the following language into the agreement. Bernie agrees to sale his 2006 Ford Fusion to Vivian for $12,500 and Vivian agrees to purchase the same vehicle for such price. The transaction shall take place no later than March 31. In the event that the seller breaches this agreement, the seller must refund the purchaser's deposit, but the parties shall be limited to this remedy and only this remedy. In the event that the buyer breaches this agreement, the seller may keep the buyer's deposit, but the seller shall be limited to this remedy and only this remedy. Vivian reads and signs the agreement, and gives Bernie a $1000 check. Two weeks later, on March 24, Vivian calls and tells...
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...that the seller breaches this agreement, the seller must refund the purchaser's deposit, but the parties shall be limited to this remedy and only this remedy. In the event that the buyer breaches this agreement, the seller may keep the buyer's deposit, but the seller shall be limited to this remedy and only this remedy.” Vivian reads and agrees by signing the contract. She then gives Bernie a check for $1,000. Shortly after this agreement, she realizes she will not be able to come up with the remaining amount of money and calls Bernie on March 24th to cancel her part of the contract. Bernie says “Okay but I’m keeping the $1,000 deposit as part of our contract agreement.” Vivian sues for her $1,000 back claiming there was no mutuality of consideration of the contract and therefore is void. ISSUE The issue is, whether under...
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...seller breaches this agreement, the seller must refund the purchaser's deposit, but the parties shall be limited to this remedy and only this remedy. * In the event that the buyer breaches this agreement, the seller may keep the buyer's deposit, but the seller shall be limited to this remedy and only this remedy. Vivian reads and signs the agreement and gives Bernie a check for $1,000. However, two weeks later, Vivian realizes that she's not going to come up with the $12,500 to pay for the car. So, on March 24, she calls Bernie to tell him that she's pulling out of the deal. Bernie says, "Fine, but I'm keeping the deposit in accordance with our agreement." Vivian sues for her $1,000 deposit back, claiming that there was no mutuality of consideration for the agreement and that the contract was...
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...be getting her deposit back per the term of the contract. In an attempt to get her deposit back Vivian sues Bernie claiming that her sole pep up of receiving the deposit back if Bernie had been the one to br individually the contract was not sufficient under the mutuality rule and at that placefore the contract is voi d. The purpose of this memo is to clarify through Virginia type legal philosophy if this contract lacked mutual con rampration referable to Vivian having no remediate if Bernie had demonstrate someone else to purchase the vehicle for a higher(prenominal) price. In the case of Busman v. Beeren & Barry Invs. Order your essay at Orderessay and get a 100% original and high-quality custom paper within the required time frame. , LLC a contract was found to have lacked mutuality because the contracts limitation clause negates whatever touch on against the trustee should he elect not to perform the foreclosure bargain agreement. (Busman v. Beeren & Barry Invs., LLC, 69 Va. Cir. 375, 378 (Va. Cir. Ct. 2005) Mutuality of consideration is verbalize to have been reached when there are promises on eac h side that something shall be through for t! he benefit of the other side furnishing therefor [sic] considerations by each...
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...contract? Legal Elements of a Contract The essential elements necessary to form a binding contract are usually described as: • An Offer • An Acceptance in strict compliance with the terms of the offer • Legal Purpose/Objective • Mutuality of Obligation – also known as the “meeting of the minds” • Consideration • Competent Parties Offer An offer is defined as the manifestation of the willingness to enter into a bargain so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it. Acceptance Acceptance of an offer can occur in several ways: Acceptance of an offer is a manifestation of assent to the terms There of made by the offer in a manner invited or required by the offer. An acceptance must not change the terms of an offer. If it does, the offer is rejected. A material change in a proposed contract constitutes a counteroffer, which must be accepted by the other party. Legal Purpose The objective of the contract must be for a legal purpose. For example, a contract for illegal distribution of drugs is not a binding contract because the purpose for which it exists is not legal. Mutuality of Obligation This element is also known as the meeting of the minds. Mutuality of obligation refers to the parties mutual understanding and assent to the expression of their agreement. The parties must agree to the same thing, in the same sense, at the same time. The determination of a meeting of their minds,...
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...An illusory promise is a statement which appears to form a legal contract; however, it is vague, and lacks mutuality, providing an option for the person making a promise to have no actual obligation to perform as stated. For example, if someone says "I will make you a pie tomorrow”, this is an illusory promise, because the subject of the pledge is not being asked for anything in return and the baker is receiving no consideration for the promised activity. Because there is no consideration, there is no contract and neither party can enforce the deal (Beatty Sameulson). Mr. Brodsky signed an option contract with Mr. Culbertson, and deposited a check of $5000, representing “earnest money”, to be held by the bank for the period of 60 days. Mr. Brodsky intended to purchase the real estate property from Mr. Culbertson, if the results of an engineering study and property inspection satisfied the requirements of his intended purpose for the property. The contract required the title company to hold the “earnest money” check in escrow until the expiration of the 60 day feasibility period. If Mr. Brodsky determined the property was unacceptable within this time frame, he could terminate the agreement, at his sole election, and demand the return of the earnest money with no further obligation of either party. An option contract is a “right, which operates as a continuing offer, given in exchange for consideration—something of value—to purchase or lease property at an agreed price and terms within a...
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...promise make the performance of the promise optional or completely within the discretion, pleasure, and control, of the person that made the promise. When this happens, it is believed that there has been nothing promised. Lack of mutuality is a ground for a statement and or promise to be considered illusory promise. If an agreement grants only one party consideration of any kind, the agreement is not considered to be a binding legal contract. For instance, for my colleague to promise to pay my school fees for as long as I want to go to school is not a binding legal agreement; rather it is an illusory promise because, the subject of the promise is not such that asks for anything in return and my colleague does not receive any consideration for the promised payment, and did not form a contract. The Agreement Culberton had a real estate to sell and Brodsky was interested in the estate. They both had an option contract and Brodsky later decided to buy the property, but the offer was turned down by Culbertson. From every indication, it appears that though Culberton and Brodsky did have a written agreement for the sale of land; their agreement contained no consideration. Although they had provision in their forms to write in their independent consideration amount for the buyer’s right to terminate the earnest money contract for whatever reason within the said thirty days, they did not put in any amount but zero...
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...event that it meets its circumstances . For a consent to be legitimate it must fulfill the seven components. * offer: An agreement exist where an offer has been acknowledged and good consideration is provided.At law, offer may be depicted as the sign by one individual to another of his ability to go into an agreement with him on specific terms. * Acceptance: In the event that an offer has not been pull back or rejected it might be accepted . Acceptance of offer creats understanding. Rule of acceptance: * Only the offeree may accept the offer. * Acceptance must be final and unqualified. * Acceptance must be communicated to the offeror , unless one of the exceptions applies. * Intension: It is a term used to describe weather the court ought to assume that gatherings to an assention wish it to be enforceable at law. By the utilization of target test the court must translate the parties' intension. * Consideration: Coonsideration is the term utilized as a part of agreement for the association with contracts. it is guarantee make by one parties to another parties during contract. It can be money , objects , facilities etc. There are two types of aggrements: * Deeds ( which don’t require consideration) * Simple contract which require consideration. * Mutuality: Mutuality of agreement alludes to the proportional comprehension or understanding between parties. This is a fundamental fixing in the formation of a legitimately enforceable contract. * Capacity...
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...deCapo I have found that there is in fact a legal binding contract between Claire Dawn as the Offeror and Leonardo deCapo as the Offeree (Spagnola,nd). On February 13, 2008 Claire Dawn presented a written offer to sell her 1965 Corvette Stingray to Leonardo deCapo for $25,995.00 plus the cost of the title transfer. The Mutuality of Obligation, or the requirement of both parties to be bound by the terms of the agreement (U.S.Legal,nd), is clearly stated through the offer to exchange the car for the desired amount of payment. When Mr. deCapo makes the payment in full and pays the cost required to transfer the title he will gain possession of the vehicle. There is Sufficiency of Consideration. Both parties are offering something of value, and all of the necessary components are present to make this a legal binding agreement (Clearpoint,nd.). The Parties are clearly distinguished, Claire Dawn and Leonardo deCapo, there is a mandatory value ascribe by the parties to the exchange involved in this contract ($25,995.00 in exchange for the 1965 Corvette), the subject matter is clear and present ( the vehicle/the payment). There Is Adequate Consideration – This is a fair and reasonable offer as the value of the car is consistent with the asking price. The exultancy of the asking price to the value of the car deems this contract valid (Business Dictionary,nd). There Is A Certainty Of Terms – The terms of the exchange are made clear through a firm offer to sell the vehicle...
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