Contracts
Afilalo
I. Checklist
a. What is the promise?
b. Mutual assent
i. Offer?
ii. Acceptance?
1. Bilateral or Unilateral K?
b. Basis of Obligation?
i. Consideration?
ii. Promissory Estoppel?
iii. Unjust Enrichment?
c. Statute of Frauds?
d. Defenses to enforcement of the promise?
i. Minority
ii. Incapacity
iii. Duress
iv. Undue Influence?
v. Misrepresentation?
vi. Non Disclosure?
vii. Unconscionability?
viii. Public Policy?
e. Justification for Non-Performance?
i. Mutual or Unilateral Mistake?
ii. Changed Circumstance?
1. Impossibility? Impracticability? Frustration of Purpose?
f. Consequences
i. Material Breach or Partial Breach?
ii. Anticipatory Repudiation?
g. Damages?
i. Expectation?
ii. Reliance?
iii. Restitution (Unjust enrichment)?
iv. Specific Performance?
II. Reaching agreement: The Process of K Formation
a. Offer and Acceptance – Bilateral K
i. Not just an intention to be bound, but whether process of agreement- formation has gone far enough to legally amount to a K
ii. Bilateral K – commitments on both sides; an exchange of promises; product of negotiating process known as “offer and acceptance”
iii. Offer – manifestation of willingness to enter a bargain
a. justifies another person in understanding that his assent to that bargain will conclude bargain
1. Certainty and definiteness of terms
2. Communication to offeree
b. creates power of acceptance
iv. Acceptance – manifestation of assent to terms of the offer
a. Must be accepted in accordance with any terms of acceptance set forth in the offer (offeror is master of the offer)
b. If no acceptance terms, may accept in any reasonable manner
c. May be accepted only by person to whom the offer is directed
d. Duration:
1. When acceptance becomes effective
i. Mailbox Rule – effective upon proper dispatch
ii. Accepted under terms of offer (i.e. effective when received)
iii. Acceptance and rejection both sent – whichever was sent first, unless acceptance received first (see b)
2. Ways of terminating power of acceptance
i. Rejection or counter-offer by offeree
ii. Lapse of time (if not specified, then reasonable amount of time)
iii. Offeror Revokes (direct/indirect) – must be communicated
ing for the “bait and switch”- hook them with the ad and have them buy something else when they get there
1. True interpretation of offer or acceptance is not what parties intended or thought it to mean, it is reasonable person in circumstance.
2. Deliberately misleading eliminates revocation right
c. Offer to purchase remains only an offer until accepted by seller on terms contained in original offer by prospective purchaser
1. If seller purports to accept, but modifies terms, this constitutes a counteroffer and a rejection of the original offer – requires own acceptance
2. Mirror image rule – in order for offer to be accepted, must accept offer exactly. Any changes constitute a counteroffer, which is a new offer requiring its own acceptance, and a rejection of the original offer (Normile v. Miller)
