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St. Thomas University, Florida School of Law
Sullivan, Todd P.

FALL 2013
Chapter 1 The Agreement Process
1.    Intent to K
a.     Lucy v Zehmer
                                                 i.      Issue- In determining whether a party has made a valid offer, how does the ct determine whether the party had intent to K?
a.     Held- In determining intent, words & actions are interpreted according to REASONABLE PERSON standard
                                              ii.      Rule- ct looks to the objective, outward manifestation of intent to form a K
a.     Does reasonable person conclude words/actions form a K?
b.     Balfour v Balfour
                                                 i.      Issue
1.     Must both parties intend that an agreement be legally binding in order to be an enforceable K?
a.     Held- Yes.
2.     Under what circumstances will a ct decline to enforce an agreement btwn spouses?
a.     Held- Ct will NOT enforce agreements btwn spouses that involve daily life
c.      Texaco, Inc v Pennzoil, Co.
                                                 i.      Issue
1.     Is parties’ intent to be bound by an unexecuted K a question of fact for the fact finder or a question of law for the judge?
a.     Held- Question of fact for the fact finder
2.     To what extent must the terms of a K be ascertainable in order for a K to be enforceable?
a.     Held- to a reasonable degree of certainty.
2.    The Offer: objective manifestation of intent
a.     Offers distinguished from Expressions of Opinion, Adverisements, etc.
                                                 i.      Hawkins v McGee
1.     Issue- How are damages calculated in a case of breach of K?
a.     Held- Expectancy damages sufficient to put P in the position he would have been if the K would have been performed
                                                                                                                         i.      Difference btwn actual position & position he would have been in had the K been performed
                                              ii.      Sullivan v. O’Connor
1.    Issue
a.     Are pain, suffering, & mental distress compensable damages for breach of K under either expectancy or reliance damages?
                                                                                                                         i.      Held-Yes
b.     Can a promise of a specified result from a doctor to a patient be enforced?
                                                                                                                         i.      Held- Yes
                                           iii.      Leonard v. Pepsico, Inc.
1.    Issue
a.     When is summary judgment proper in K formation?
                                                                                                                         i.      Held- When words/actions that allegedly formed a K are so clear that reasonable ppl could not differ over their meaning
b.    What standard is applied in determining whether some communication is an offer?
                                                                                                                         i.      Held- Objective reasonable person standard
c.      Is an ad an offer?
                                                                                                                         i.      Held- No
                                                                                                                      ii.      General Rule- an ad does not constitute an offer
b.    Bids & Auction Sales
                                                 i.      Hoffman v. Horton
1.     Issue- At an auction for the sale of real property, may the auctioneer reopen bidding where the submission of a higher bid is made “prior to or simultaneously with” the fall of an auctioneer’s fist in acceptance of a lower bid?
a.     Held- YES
b.     Rule- Auctioneer holds discretion to reopen bidding on the property
c.      Offers Distinguished from preliminary negoti

ent to be sufficiently definite & specific regarding all material terms
1.     Held- Yes.
                                              ii.      Rule- To constitute an enforceable K for the transfer of real property, an agreement must be sufficiently definite and specific regarding all material terms, & may not be merely an agreement to agree on these terms in the future.
d.     BMC Industries, Inc. v. Barth Industries, Inc.
                                                 i.      Issue- Is a K that includes delivery of both goods & services considered a K for the sale of goods, subject to Article 2 of the UCC, where an evaluation of factors including the language of the K, manner of billing, allocation of costs, & the nature of the final product delivered indicates that goods make up the “predominant factor” of the K?
1.     Held- Yes. Hybrid Ks (goods & services); predominant factor test to determine if hybrid K should be treated as goods (article 2) or services.
                                              ii.      Rule- A K that includes delivery of goods & services is deemed a K for the sale of goods, subject to article 2, where goods constitute the “predominant factor” of the K as determined by an evaluation of factors including language of the k, manner of billing, allocation of costs, & nature of the final product delivered.
e.     Southwest Engineering Co. v. Martin Tractor Co, Inc.
                                                 i.      Issue- If parties intend to make an agreement but fail to agree upon one or more terms as to which there is a reasonable basis to otherwise determine, is the agreement valid?