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St. Louis University School of Law
FitzGibbon, Susan A.

·         There are 4 stages of Kx Litigation:
o   1) Kx formation issue stage (P has burden of proof by preponderance of evidence)
o   2) Does D have enforceability defenses? (P has burden to disprove defense)
o   3) Terms of Kx, Performance? Breach?
o   4) Remedies
Enforceability Defenses
·         Forgives for breach of Kx
·         It makes it an unenforceable Kx, not the same as no Kx at all
·         If Kx w/enforceability defense, the defense may later be removed.
o   Ex. Bankruptcy, then later gratuitously revive the Kx, it is now enforceable
Statue of Frauds
·         Pretty much all statute of frauds list certain types of Kx’s that are enforceable if in sufficient writing and signed by the party you are suing.
·         UCC 2-201Requirements (Only Statute of Frauds Responsible For):
o   $500 threshold
o   Requires a sufficient “writing”
§ That is “signed” (see 1-201(43) for def.)
§ By the person against whom enforcement is sought (see 1-201(37))
§ Requires a quantity within the writing (Kx is only enforceable up to the amount in writing)
§ Otherwise, the writing need only “afford a basis” for believing a Kx was formed (see §2-201 comment 1)
·         Q: Is a signed offer sufficient to enforce a Kx under the SOF against the offeror?
o   split authority
o   **Notes contradict themselves, need to come back and confirm
·         UCC § 2-201(2):
o   Only applies between 2 merchants
o   If 1 merchant within reasonable time sends signed, written confirmation to other party, and there is no adverse response within 10 days it is effective against other party as signed writing.
o   What constitutes a written confirmation?
§ Look to 2-207 for guidance as to how accurate letter needs to be to constitute a “written confirmation.”
§ Must be sent within reasonable time
o   What constitutes an objection to its contents?
§ ***If the other party merely sends back an objection to the terms stated within the “written confirmation” it is not an adequate objection (because it is in actuality an admittance to the existence of a Kx, and that is all the “written confirmation” is intended to prove).
§ Crespi believes objection letter needs to arrive back within 10 days, but that may be too technical and go against the nature of the UCC.
·         UCC § 2-201(3):
·         Lists exceptions to the SOF (when exceptions are satisfied, so is the SOF):
o   1) Goods that are specially manufactured for the buyer and are not suitable for sale to others (**provides good evidentiary material of existence of Kx**).
§ Ex. Buyer entered oral Kx for both specially manufactured goods and normal goods. Divisibility doctrine would apply and create separate Kx’s for the normal and special goods. Only the specially made goods would be enforceable under 2-201(3), otherwise you run the risk of the seller committing fraud by claiming that the oral Kx included a lot more normal goods than it actually did.
o   2) Party which you are trying to enforce Kx upon admits to the existence of the Kx in question under oath, the Kx is then enforceable up to the quantity he admits to.
o   3) If money has changed hands or the goods changed hands the SOF is satisfied (only need, do not need both)
o   ***There is no general partial performance exception to the SOF***
·         Estoppel Issues:
o   Breach of oral Kx, you relied but no written Kx, anyway to estop SOF defense?
o   Early cases required a false statement concerning SOF.
o   Now estoppel is much broader.
o   Monarco v. Lo Greco is a big case concerning estoppel in regards to SOF
o   Rst § 139(1):
§ Basically same principles as §90, here they will estop SOF based on reliance
o   Rst § 139(2):
§ Lists significant circumstances in determining whether injustice can be avoided only be enforcement of the promise.
·         ***(a)-(e) p. 52-53
o   Does it matter if the underlying Kx was “classical,” or instead reliance-based?
§ Courts are split; sometimes only allow reliance to be brought up once.
§ If a court allows reliance to be brought up more than once, it doesn’t help case to do so.
o   Does it make any difference whether the applicable SOF is the “common law” SOF, or instead is UCC § 2-201?
§ How does UCC §2-201 feel about reliance (or use of estoppel)?
·         Because 2-201 doesn’t mention estoppel can you simply rely on 1-103(b) and go to common law which sometimes allows estoppel?
o   Some think the exceptions in §2-201(3) are an exclusive list and if you don’t fit one of those e

ney, P’s suit is barred by SOL, D gratuitously relieves the obligation, then there is a fresh SOL.
Lack of Capacity
The Minority Defense:
o   Most cases cut off the age at 18
o   There is a reasonable amount of time after turning 18 to re-evaluate Kx’s you entered as a minor.
o   Adults have the ability to ratify Kx’s they enter as minors.
o   Exception to Minority Defense:
o   Kx’s for necessities are typically not covered by defense (Necessity Exception)
o   What if minor looks/acts 22 and says he is 22? Can he still bring defense?
o   ***Seems like the minor would still be able to bring defense, because the lie could be looked at by the court as the lack of judgment the defense is intended to protect.
o   ***Party opposing the minority defense can get restitution of the benefits conferred by the minor under a quasi-Kx’ual claim.
Mental Infirmity:
o   One way defense, only person w/ mental problem can raise defense.
o   More difficult for courts to apply than Minority Defense, because it is much more subjective.
o   Modern courts apply a volition test, look at your powers of self-control not merely ability to understand what you are doing.
§ Rst § 15 P.15 requires that other party had to have reason to know of lack of self-control to succeed in volition test.
o   Variable Cognitive Abilities:
o   What happens when someone goes from having capacity to not having capacity?
o   Most courts would probably allow the defense if you can prove incapacity at the time.
o   Voluntary Intoxication:
o   Most courts will allow a voluntary intoxication defense, BUT they will be very strict in applying it, some courts will not allow at all.
§ Some courts will settle the issue by saying there was lack of mutual assent because D was so drunk P should have known he was not serious.