Lantagne Contracts: Fall 2016
a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes the duty.
Contract Law Policy
Structuring human relations so that people can predict the consequences/results of their actions
Encourages the entering of into contracts.
Provides predictable consequences for entering into contracts.
Nearly all contracts are enforced
Freedom of Contract
Assumption of free will
Respect of autonomy
Promoted when contracts are enforced, even when they seem unfair
Just, equitable, protection, etc.
Can sometimes conflict with Predictability and Freedom of Contract
Facilitating of contractual exchange
Contract rules promote efficiency
UCC vs. Common Law
UCC governs transactions in “goods”, which are moveable things, no matter how large.
Exists to streamline transactions
Still very similar to common law
Structured under the assumption that goods are the greatest source of income, this assumption is no longer as valid
Common Law governs contracts regarding services and non-moveable things.
In cases where there is overlap between both things, look at what is primary and incidental
Primary example: Software
Incidental example: Service maintenance of software.
Formation in general under UCC
If parties are acting like there is a contract, there is a contract.
Acceptance with different terms under UCC:
Adding terms to acceptance different from those of the offer doesn’t convert acceptance to a rejection and counteroffer in the way it does in common law.
Without requirement of offeror’s assent, a contract is still formed.
How many of a specific item
Time for performance* (not always)
Mutual assent of parties
Offer must be sufficiently certain (cite), merely stating the lowest price something would/ could be sold is not an offer (Harvey)
Reasonable certainty – Restatement (second) of contracts
Offer cannot be accepted unless terms are reasonably certain
Terms are reasonably certain if they provide a basis for determining the existence of a breach and giving appropriate remedy
If terms are open or uncertain, is typically a sign that the communications between the parties weren’t actually intended to be contractually binding offers and/or acceptances.
UCC rules on certainty
Uncertain contracts may still be enforced if…
UCC looks to whether parties intended to make a contract and there’s a reasonably certain basis to determine what K is supposed to be about.
Whether there is an appropriate basis for giving a remedy
If no price, UCC dictates a reasonab
ere is nominal consideration
Like kind exchanges (same object for same object)
Moral obligation situations
Insufficiency of ability to own the consideration/ not subject to ownership
(Such as selling the rights to a math problem/ facts on multiplication tables)
Past considerations may be treated as valid considerations if:
It is necessary to prevent injustice
Past considerations are not binding if
The promisee conferred the benefit as a gift or for other reasons the promisor has not been unjustly enriched; or
To the extent that its value is disproportionate to the benefit.
Proportion of benefit is determined by
The definite and substantial character of the received
Formality in the making of the promise
Part performance of the promise
Reliance on the promise
Want of Consideration = no consideration was given, so a contract was never formed
Failure of consideration = breach of contract (so a contract was formed at some point and broken)
Place for performance* (not always)
E.g. a specific house