Contracts Outline

Use the rules merely as tools in order to decide cases to reach the correct result.

[T]he elaborate formula with its multitude of sub-formulas . . .permit[s] the judge to range as freely as his judgment dictates. . . . [T]he point to be stressed here is that whatever sort of judgment is desired, the formulas which have been evolved and their coteries of attendant phrases provide the most flexible accommodation without in the least impairing their own integrity or that of the judicial process. A science of law could ask little better by way of intellectual machinery for handling these varied and difficult cases. Leon Green, Judge and Jury 311-13 (1930).

UCC or COMMON LAW
1) Scope of UCC
a) 2-102: Transactions of goods
i) does not apply if exchange of goods is made as a security
b) 2-106: includes K’s for future sale of goods.
c) UCC does not apply to Real Estate, Intangibles (IP), Leases, Labor/service K, construction K, Software
2) Bonebrake test: when K involves both service and good. Which aspect is dominant?
a) Ex: Plumber installing water heater: sale of good
b) Ex: Plumber fixing sink and sells a washer: service
3) Tough to determine: electricity, franchise agreements
4) 1-103(a): UCC is to be liberally construed and applied to promote underlying polices and purposes
5) 1-103(b): if UCC is silent, apply the common law

FORMATION OF K
1) Background
a) 3 Elements of a K
i) Assent – manifestation of an intent to be bound)
ii) Legal Basis for Enforcement – (Consideration or reliance)
iii) Adequate Writing (only if it falls within SoF)

Express/Implied K
1) Express K
a) Generally, if there is a promise/agreement, court ought to enforce it, unless there is a good reason otherwise
b) Courts will not enforce uncertain K or others like campaign promises, prom promise
2) Implied K
a) Implied in Fact: K where the agreement by the parties is implied by their conduct
i) Ex: going to restaurant and ordering. There is an implied K that you will pay bill.
b) Implied in Law: K enforced by court to avoid injustice or unjust enrichment (aka quasi-K)
i) Note: There is no unjust enrichment of gifts. Gifts are final, cannot get them back on restitution claim.
3) Case: Marvin v Marvin: express/implied obligations between unmarried cohabitants
a) Various views
i) Some jx will dismiss any case based on unmarried cohabitants due to public policy – Hewitt
ii) Some jx will enforce an express agreement if it is in writing.
iii) Some jx (NY prominently) will enforce an express agreement not in writing but will not allow a claim on an implied contract or in restitution/unjust enrichment for contribution to a household.
iv) Some jx will allow a claim on an implied contract and in restitution only if the claimant can rebut a presumption that the contribution to the household was gratuitous.
v) Some jx (CA) will allow a claim on an implied K and in restitution and presume that the contribution to the household was not gratuitous. Up to D to rebut against this. – Marvin takes this approach
b) Under implied in law view: an unmarried cohabitant is more likely to recover restitution if they contributed specific property to the household, or they paid for the acquisition of durables. The claim is weaker but still fairly good if the claimant performed services, such as working in the D’s business, that are usually exchanged in the marketplace. The claim is weakest if the claimant provided household services, or, worst of all, bore and helped raise children. These services are difficult to value. Marvin opens the door to claims like those in Hewitt where the clai