Promissory Liability
–Â Â Â Â Â Â Â Â K Proper (autonomy based)
o      express – formed by language (oral or written)
o      implied – formed by manifestations of assent (conduct)
–Â Â Â Â Â Â Â Â Promissory Estoppel (reliance)
o      different ways promissory estoppel is used:
1.     substitute for consideration
2.     permitting recovery for detrimental reliance on a gratuitous promise
3.     as a basis for holding an offer open despite the ofrr’s attempt to revoke
4.     as a basis for enforcing an oral agrmt w/in SoF despite the lack of a memo signed by D
–Â Â Â Â Â Â Â Â Restitution (unjust enrichment)
o      nonpromissory restitution – recoverable if material benefit conveyed (e.g., p’ee is professional & intends to be compensated for actions) (Credit Bureau v. Pelo)
o      promissory restitution – recoverable if material benefit conveyed & promise made afterwards to compensate p’ee for rendering it
§        binding to extent necessary to prevent injustice
§        benefit can’t be intended as gratuitous gift & p’or has not been unjustly enriched
§        not binding if value disproportionate to benefit
§        infers that prior to conveyance, p’or would have made same promise, in which case there would’ve been sufficient consideration
o      quasi-K (K implied in law)
§        not really a K, constructed by courts to avoid unjust enrichment
§        applies only in restitution cases
§        is an obligation by law w/o regard to either party’s expressions of assent
§        if quasi-K found to be enforceable, unnecessary to consider K issues
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K formation (autonomy based)
–Â Â Â Â Â Â Â Â Offer & Acceptance
o      Was there an offer?
§        manifestation of willingness to enter into a K, gives ofre power to accept & bind ofrr (R2d §24)
·       ads generally held not to be offers but in interest of public policy courts don’t want adverstisers to intentionally mislead, lead others to believe an offer exists (Izadi v. Machado Ford)
·       no offer if A knows/has reason to know B making promise does not intend it as expression of his fixed purpose until further assent as been expressed (Lonergan v. Scolnick) (R2d §26)
§        was there expression of promise or commitment to enter K?
·       consider language, context, prior practice/relationship of parties
·       are essential terms provided/objectively implied/consistent with expressed intent?
§        objective interpretations, by reasonable person’s expectations
·       ambiguities to be construed against drafter of K
§        was there certainty & definiteness in essential terms? (implied here’s an offer & these are its terms?) (R2d §33)
§        was offer communicated to ofre?
able person would have noted (Ray v. Eurice Bros.)
§        where offer can be accepted by performance, to begin performance is acceptance & implied promise to complete performance (R2d §62) (Cook v. Coldwell Banker)
§        silence can be acceptance if reasonable (e.g. prior dealings), ofre benefits from services or ofre otherwise intends to accept offer (R2d §69)
§        for option Ks, acceptance must reach ofrr to be operative (R2d §63)
§        no K if parties attach different meanings to manifestations of mutual assent
·       unless 1 party knows/has reason to know of different meaning attached by other party (R2d §20)
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o      Was there consideration (and absence of defenses)?
§        Benefit/Detriment Test
·       did p’or enjoy a benefit in connection w/ promise
Or
·       did p’ee give up a legal right in connection w/ promise (Hamer v. Sidway)
§        Bargain Theory
·       p’or seek performance or return promise in exchange for his promise
And
p’ee gives performance or return promise in exchange for the promise (Baehr v. Penn-O-Tex)
