Contracts II
Exam review
#1 3 disputes
Issues
(1)
Offer-they discussed a possible deal so was essential to talk about this issue, was it an offer? Goal when represent one, still don’t ignore the other side’s position. DON’T” COMMIT. Do a thorough analysis
Tools for analyzing abbot-no offer & give definition of offer.(rule)
Lay legal foundation for what you are saying.
acceptance
have use of email. Should mailbox rule be applied by analogy
reasonable mode of acceptance?
statute of frauds (land K)- strong argument for Abbot
there was a writing in an email from Madelyn to abbot. Must ask the ? if writing signed by the person whom enforcement is sought an the answer is no.
age capacity
16 year old. Lacked the requisite capcity. The right to disaffirm (DISSAFIRMENT)belongs to Madelyn not Abbot. If the minor choses not to the adult is held.
remedies-specific performance
unique good hoping we would recognize that property had already been sold to a 3rd party.
2) Dispute for house possessed by poltriguist.
a. misrepresentation-duty to disclose
b. reputation is real so is there is a duty? When? Duty to disclose when some info that may be basic to other parties willingness to enter into a deal. She wasn’t worried about conc. Just argueing the issue.
3) Unilateral K offer-commercial building flooded contacted clean pro to clean but bz of wipe spread damage & couldn’t get it soon. Would pay 1k if start w/I 2 days. Hired another company to start the job. Clean pro showed up and sent out on his way
a. “I will pay you for an act” once performance begins offer becomes irrevocable. Many students stated was accepted once performance begins. Not true. Acceptance is when job has been completed. But it is irrevocable until performance is completed. §45 not an option K where consideration is given it is simply a k that is irrevocable because of the actions on the performer.Looking for whether the offer was still in existence at the time. Argue bilateral v unilateral
Use the legal language
Saw most of the issues but didn’t talk about them sufficiently.
SOCIAL CONTROL OF FREE K – Chapter 4
Social Control in the Guise of Seeking choice: Choice & Form Ks
ADHESION/FORM CONTRACTS
Shocking the conscience of the court the judge may decline to enforce the offending terms or the entire K. 2 principles at his disposal are the special rules on adhesion K, and the related doctirine of unconscionability.
AdhensionStandardized consist of a lg number of non-negotiated pre-drafted terms put together by 1 party with room for negotiation as to only a few aspects of the deal (price, quantity) Often complicated, unclear, exceptionally favorable to the draftsman and printed in small type.
Courts reluctant to enforce
Form K & the duty to read
What makes the K legitimate? Ideally, traditionally
Mutual assent: 2 competent parties agreeing to some terms.
Understood by both parties
Relatively equal bargaining power
Traditional model
Under normal circumsta
expectations of applicants and intended beneficiaries regarding the terms of insurance K will be honored even though painstaking study of the policy provisios would have negated those expectations.
§ 237
Takes some freedom away from negotiating a K
Usually applied when one party is at a distinct advantage in bargaining.
D. Warranty, Disclaimer, & Remedy Limitations: The UCC Pattern
Implied warranty
Express warranty
Conspicuous disclaimers & conscionable remedy limitations
ABC v. XYZ
Any warranties?
Express 2-313: problem is in proving express warranty bz often statements then there is the writing w/no reference to it. Problems the S will use:
i. Parole Evidence Rule:
Implied 2-314, 2-315
If warranty, effectively excluded
Warranties breached?
Remedies effectively limited?
2-316(4)
2-719
i. Some courts say that if exclusion or limitation fails then exclusion of consequencial damages is out. So, if remedy is out, exclusion of CS is out.
ii. Other courts look at separately
