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Contracts
University of Toledo School of Law
Davis, Benjamin G.

CLASSICAL CONTRACTS

A)     Background
1)       RST § 1 – Contract – A contract is the set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.
(a)     RST § 2 Promise, Promisor, Promisee, Beneficiary
(1) A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.
(2) The person manifesting the intention is the promisor.
(3) The person to whom the manifestation is addressed is the promisee.
(4) Where performance will benefit a person other than the promisee, that person is a beneficiary.
(b)    RST § 4 How a Promise May be Made – A promise may be stated in words either oral or written, or may be inferred wholly or partly from conduct.
2)       RST § 3 Agreement Defined; Bargain Defined – An agreement is a manifestation of mutual assent on the part of two or more persons. A bargain is an agreement to exchange promises or to exchange a promise for a performance or to exchange performances.
(a)     RST §18 Manifestation of Mutual Assent – “Manifestation of mutual assent to exchange requires that each party either makes a promise or begin or render a performance.”
3)       UCC § 1-103 Supplementary General Principles of Law Applicable: Unless displaced by the particular provisions of this act, the principles of law and equity, including the law merchant and the law relative to the capacity to contract, principal or agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.
4)       UCC § 2-204: Formation in General
(1) A contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

B)      Theory
1)       FLERCRF
(a)     Formalism – the “black letter law”, law as it is stated, without regard to how it affects society
(b)    Legal Realism – how is society affected by the decision and what social forces affect the decision making?
(c)     Economics – attempt to create efficiency within legal and social realms (costs vs. benefits of decisions)
(d)    Relational – relationships are important to economic efficiency and should be considered in judicial matters.
(e)     Critical Legal – skeptical of current legal system. Views system as used by current government leaders as a tool.
(f)      Critical Race – concerned with racism in the judicial system
(g)    Critical Feminist – concerned with patriarchal society.
2)       Lawerying Background – C,N,D,A
(a)     Counselor – advice about options, telling clients what the law is
(b)    Negotiator – serve as go between for client
(c)     Drafter – writing legal documents for client
(d)    Advocate – arguing case for client

C)      Questions to ask in analysis – What law applies, is there intent to be bound, is there an offer, is there acceptance, is there consideration, and is this a statute of frauds case?

D)      Is it goods? If Yes, use UCC. If no, use common law
1)       Predominant Purposes Test (Princess Cruises, Inc. v. General Electric Co.)
(a)     Majority of the contract
(b)    Nature of the business
(c)     Intrinsic worth of the materials
(d)    Gravamen of the harm
2)       UCC § 2-205 – Definitions: Transferability; “Goods”; “Future” Goods; “Lot”; “Commercial Unit”
(1) “Goods” means all things (including specially manufactured goods) which are moveable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action. “Goods” also includes

ble person in the position of the parties would have thought it (the promise/agreement) meant.
(c)     RST § 17 Requirement of a Bargain – “(1) Except as stated in Subsection (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration. (2) Whether or not there is a bargain a contract may be formed under special rules applicable to formal contracts or under the rules stated in §§ 82-94.
(d)    RST § 20 Effect of Misunderstanding
(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and
(a) neither party knows or has reason to know the meaning attached by the other; or
(b) each party knows or each party has reason to know the meaning attached by the other.
(2) The manifestations of he parties are operative in accordance with the meaning attached to them by one of the parties if
(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or
(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.
(e)     RST § 22 Mode of Assent: Offer and Acceptance – (1) The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party or parties. (2) A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined.