Contracts Outline
1. Agreement—have the parties made a promise to each other?
a. Offer
b. Acceptance
c. Imperfect acceptance
2. Enforceability – will the court enforce the agreement?
a. Consideration
b. Option K
c. K Modifications
d. Moral Obligations
e. Promissory Estoppel
3. Defenses – make an argument that even though there was a promise and it was enforceable, for some reason it should be voided
a. SOF
b. Misrepresentation
i. Material
ii. Fraudulent
c. Duress/Undue Influence
d. Illegality/Public Policy
e. Unconscionability
f. Mistake
i. Mutual
ii. unilateral
4. K Interpretation
a. Parol Evidence
b. Extrinsic Evidence
c. Implied Terms
5. Performance
a. Express Conditions
b. Implied Conditions
c. Excusing Conditions
d. Modifications/Waiver
e. Unanticipated events
f. Anticipatory Repudiation
g. Material Breach
6. Remedies
a. Specific Performance
b. Agreed Remedies
c. $ Damages
d. Limits on $ Damages
i. Foreseeability
ii. Certainty mitigation
Overview
Sources of Modern Contract Law
(1) The U.C.C.
a. Article 2 is legal realism: the law is a tool to serve societal and economic interest and, therefore, legal rules should be crated to conform with people’s expectations of how the law ought to work and is not a science. Decidedly pragmatic.
b. The purposes of the U.C.C. are to simplify, clarify, and modernize the law governing commercial transactions, to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties, and to make uniform the law among jurisdictions.
c. The U.C.C. governs transactions for the sale of goods. Real estate and employment contracts are not goods! Article 2 most important.
i. Goods are movable 2-105. P.162 Supp
ii. Moveable at the time the K was made
iii. Go to p. 163 for complete definition
d. P. 158 in Supp book!
(2) Common Law
a. Cases
i. K law is a matter of state, not federal law
b. The Restatements
i. Shows the difference between the positivist and legal realist perspectives. Written by the American Law Institute in an attempt to restate indivudla state laws into larger guideline
ii. Positivist: The law is regarded as a science; a closed system of rules which could be consistently applied to resolve any fact situation.
iii. Legal Realism: Allows for a greater degree of indeterminacy in the law in order to assure a just or fair result. See above
c. Real estate, Service Contracts
Contract Policy should promote:
Equity/Fairness
Consistency
Predictability
Freedom of Contract
Efficiency
INTRODUCTION:
Promise is a commitment as to the happening or non happening of some future event.
Enforcement is an award of damages of some other order by a court
Contract produces a legal relationship between the actors.
Freedom of contract is the policy that says parties are free to bargain about the terms of their deal, but once the deal is struck, you cannot change your mind.
Hill v. Gateway 2000 (25)
Adhesion Contract
Courts generally do not render K void because of unfair bargaining power, adhesion, or standard form K
Pay now, terms later contract (rolling contract)
Arbitration is an alternative dispute resolution instead o
agreement does not rest on whether it is written
Zehmer said K was a joke.
Ct says there must be clear evidence to support the K was a joke, and having it written down goes against it being a joke.
Objective approach to whether the K was a joke.
If intoxicated, cannot be liable for entering a K. Ct. says Zehmer was not intoxicated.
Ct. says there was a deal.
HOW DO WE KNOW WHEN THERE IS A DEAL OR A JOKE?
Objective Reasonable Prudent Person in the circumstances standard
Advantages/Disadvantages to RPP v. Subjective standard:
Difficult to prove subjective (what someone thought)
Someone may lie
Objective is more predictable
Take Away: There is an offer when the offeror acts in a manner that it would be fair for the offeree to interpret the offer as legitimate, without consideration of the offeror’s “true or hidden intent”
B. When is there an Offer?
RST 24 p.4 Supp
Offer Defined
Offer is showing willingness to enter into bargain making another person justified in believing his assent to the offer is invited and will conclude it.
Last step before acceptance is the offer.
Leonard v. Pepsico (51)
Pepsi argues there is no deal because the offer was made in jest.
RPP standard says no deal.
An “offer” is
Concrete terms where someone can take it, leave it, or accept it
Manifestation of willingness to enter into a deal
Is an Ad an offer?
If all you have to do is say Yes, then there is an offer.
Generally, ads are preliminary negotiations, and we want companies to be able to control whether or not they enter into Ks.
Lonergan v. Scolnick (67)
Π is interested in ∆ land, sends form letter describing land
4/8 – Buyer letter to ∆ about questions, escrow
