How to Answer
a. Is there a valid contract?
a. Offer
b. Acceptance
c. Consideration
b. If contract, was there a breach?
a. Material or immaterial
b. Was there substantial performance
c. Were there conditions
c. If no contract, are there other theories of recovery?
a. Promissory estoppel
b. UE
c. Past benefit received
d. Are there any defenses available for the breach?
a. Policing doctrines?
b. Substantial performance?
e. Performance + Interpretation Issues?
f. What theories of recovery are merited?
a. Expectancy
b. Reliance
c. Restitution
d. SP
e. Liquidation – good lawyering point, argue this
should have been in there
OFFER – pages 1-2
a. Clear, definite, explicit, leaves nothing open to negotiate
b. Invitation to bargain, something promised in positive
terms in return for something requested?
c. Can this item be given out to 1 person? (Self-limiting)
d. Gives a specific time frame?
e. Revocation? Counter-offer?
f. Separation communication for offer and acceptance?
g. Is there a valid option K supported by consideration?
h. Would a reasonable person believe that the parties
intend to be bound based on this offer?
ACCEPTANCE – page 3
i. Offeror is master of offer – if there is a mode of
acceptance prescribed within offer, offeree must accept in
this way – accepted in reasonable time in good manner?
j. What must offeree do to accept the offer? Do something
(performance in exchange for offer) or a promise to
perform
a. Bilateral or unilateral? B/c offeror is master of
the K, they can require either a return promise
or a return performance as acceptance.
b. If unilateral – “I accept” doesn’t bind, only way
to bind is to begin performance
k. Option K – binding w/o consideration if UCC. If K can be
filled w/i time frame, no need for option contract. Pg. 2
l. Was there mutual assent? Were all conditions to
performance fulfilled – was perfect tender required?
Would a reasonable person think offeree intended to be
bound? CL enforces apparent not necessarily real intent
a. If tender was begun, under Wormser, bound.
b. Offeror is master of offer; acceptance is valid
only if it fits into offeror’s terms.
c. Argue if substantial performance would suffice
m. Preliminary agreement – binding if both parties have (1)
clear understanding of terms of K (2) intention to be
bound. Look at intent, reasonable person, 8 factor test.
a. Too many gaps, lack of binding language?
CONSIDERATION – page 1
a. Consideration is defined as a bargained-for exchange
b. Something is sought by one side and given by the other
(classical sense of consideration)
c. If no consideration in classic, go to PE UE PBR
d. Adequacy – courts will not look into; even if consider is
worthless, K is valid as long as sought out (lamp case)
e. Fuller’s 3 functions of consider (page 1)
f. Invalid theories of consider – mere pretense, gratuitous
promise, conditional gift (tramp hypo); argue that
condition in offer might be conditional, no b-for exchange
g. Past performance as consideration? Look at formality,
performance, reliance, specificity (page 4)
h. Modification – pre-existing duty old rule versus modern
rule + UCC using good faith as consideration
Alternate Recovery Theories (no K, no traditional consider)
Promissory Estoppel (argue if SOF applies) page 3
a. “Even when there is no K or traditional consider, PE may
be invoked therefore supplying remedy for injured party”
b. Promise, definite & substantial action in reliance on
promise, injustice avoided only by enforcing
c. Did injured party reasonably rely and should promisor
have reasonably foreseen their promise would induce
reliance? Shouldn’t expect unreasonable actions.
d. Papinian and Pufendorf policy arguments (page 4)
a. Hoffman Red Owl, Bacardi
e. Reliance damages – can get expectancy or reliance but
not both. Limited depending on reasonableness, mitigate.
a. Can get lost profits. Pre-K position.
Unjust Enrichment (quantum meruit, outside of K but K can
be evidence, pick bigger amount of damages) page 4
a. Party confers benefit on another party & unjust for
recipient to retain benefit w/o paying. Benefit is
something D would reasonably expect to have to pay for
b. Implied in fact vs. implied in law (quasi-contract)
c. Limits: volunteer or officious intermeddler –Bloomgarden
d. Where there is valid K, non-b party can sue under BOK or
abandon K and claim UE & recover restitution (Posner)
e. B party can recover for work done prior to breach if sub.
Performance, divisible K, good faith. (Kelly v. Hance)
Past Benefit Received (K w/ past benefits as consideration)
a. Binding to extent necessary to prevent injustice (page 4)
b. NOT binding if it would unjustly enrich, disproportionate
to past benefit received, a gift (humanitarian)
c. B/c we have promise + benefit, new equitable doctrine
d. Enforceable depending on reliance detriment to P,
formality of promise, part performance, time between
(fulfills Fuller’s functions of consideration)
e. Moral obligation + promise will tip scales in favor of
PBR, court trying to avoid enforcing all moral obligations
f. JX by JX analysis
Breach of Warranty (page 5 concise enough)
SOF (page 6 FOR DETAILS)
a. Covered – marriage, year or more, land (past performance
can satisfy), executorship, $500+, covering debts (main
purpose rule is an exception)
b. Writing: subject matter, indication of K, essential terms
Valid k – can get out through defenses OR repudiation
because material breach of other party
POLICING DEFENSE – pages 12-18 (P has a defense of…)
Policing Quality of Assent – was there a valid agreement
a. Good Faith: page 12
1. Requirement in every K, cannot be waived
2. Summers: good faith is defined by what it is not
(avoiding spirit of bargain, etc.)
3. Good faith in output Ks and modification
b. Duress: page 12
1. Compulsion or coercion that can be avoided only
by making payment/entering K. Compliance to
avoid a threat.
2. Threat is unlawful and is duress when RST 176
3. Party who makes threat will benefit from
compliance – abuse of power
4. Did party raising defense seek legal remedy?
5. Cannot be duress if threat is something parties
don’t have legal right to (economic loss)
6. Undue influence – special relationship, pressure
7. Old Test: objective, reasonable person
8. New test: whether the person constrained to do
what he otherwise wouldn’t have done (subj.)
c. Fraud pages 12-13
1. Negligent Misrep. – Maker didn’t know it was
false, made in good faith, remedy is recission
(talk about mutual mistake)
2. Fraud Misrep. – Representation made, it was
false, known by maker to be false, induces
reliance of other party, other party relies
i. Damages = difference between what
was purchased and what was promised
3. Fraud Conceal - concealment of material fact,
concealer has knowledge of fact (only consider
causally acquired info), other party cannot
reasonably find out, fact is suppressed or
concealed, other party is misled
i. Damages – same as misrep.
4. Defenses
i. Merger clause – states that all things
discussed are in K, shouldn’t rely on
other negotiations
ii. As is – undercuts reasonable reliance
5. Material Fact = causally acquired vs.
deliberately acquired, had significant influence
on parties decision to K
Policing Content + Quality of Agreement
a. Public Policy pages 13-14
1. Tension btwn freedom to K v. PP consideration
a. Party seeking to avoid enforcement of
K based on PP must convince court that
PP > freedom to K
b. When will PP be employed? Page 14
2. Exculpatory Clause
a. Cannot waive gross negligence,
affirmative duty of common law, good
faith
b. Commonly struck under PP
3. Non-Competes
a. Territory, time, scope of employment
b. Will be struck if inhibits from making a
living and diminishes competition
c. Blue pencil approach vs. invalidation
b. Unconscionability (pages 14-15, look @ definition)
1. Two factors: procedural and substantive
a. Procedure – issue w/ manner bargain was
formed, defective bargaining process
b. Substantive – terms are unfair, oppressive
i. Substance normally needs
procedure to invalidate
2. Resolution – invalidate K, enforce not bad part, limit
application (UCC)
3. Entering this K is a folly – no reasonable person
would enter into it
4. Trying to protect vulnerable party from predators
MODIFICATION (page 15)
c. Common law – pre-existing duty rule required new
consideration to modify.
d. Modern Rule – concerned more with duress, extortion
a. UCC – no consideration required if good faith
b. RST – no consider if voluntary, not fully
performed, fair, unforeseeable
e. Voluntary modifications are the norm to preserve deal.
One-off situations will be considered a waiver.
PERFORMANCE PROBS: pages 16-18 – dispute as to what
performance entails, look to these to determine entailing
Parol Evidence Rule (pages 16-17) – when can parties bring
in extrinsic evidence to prove/disprove a term that is not w/i
completed agreement btwn parties
f. Serves as a filter AND a bar of prior oral agree
g. Exceptions (EE can be brought in when)
a. Collateral: collateral, not contradictory to written
K, not expected to be in K
i. Argue why should, shouldn’t come in
ii. Defense: full integration clause
b. Ambiguous: EE admitted to clarify written
words is susceptible to 1+ reasonable meaning
i. Williston (strict) v. Corbin (liberal)
ii. Strict – K needs to be facially
incomplete for PE to be brought in.
Stronger PER rule, harsh.
iii. Weak – EE relevant to prove meaning
of K, bring all EE in to decide ambigous
c. Establish defense of fraud, duress, condition:
parol evidence can come into court to prove
Interpretation pages 17-18 – what did parties actually intend
a. Post PER – admissible evidence used to determine
meaning of a K or fill gaps
b. Past Performance
a. Express Terms (parties intentions)
b. Course of performance – conduct during K
i. Waiving conditions
c. Course of dealing – conduct during past Ks
d. Trade usage (custom) – regular practice in trade
Gap Filling page 17 – K is silent as to the issue at hand, so
court must interpret how parties would have intended to fill
a. Look to intent and purpose of the K to fill gaps
b. Will void for indefiniteness, but rare
c. Will fill in duration, duties within scope, not price
REPUDIATION (pages. 21-22)
a. Party may rescind & stop performing w/o being liable for
BOK if other party has materially breached
a. Material breach – RST 275 pg. 21
b. Do not want to pre-emptively breach unless sure other
party has materially breached
a. If other party materially breaches, you can
justifiably repudiate
b. If they only non-materially breach, you get sued
c. UCC – Rights of Buyers and Sellers to Repudiate in event
of imperfect tender (pg. 21)
d. Anticipatory Repudiation: page 21 - can wait until time of
performance to sue or sue right away. Because breach is
material, you can safely repudiate.
a. Can ask for assurance
b. Practical lawyering - Should keep performing
while waiting for assurance
c. Can resort to any remedy for breach
d. Allowed for reasons of efficiency and fairness
CESSATION pages 23-25 – K terminated, no relationship
PAROL EVIDENCE ALLOWED FOR ALL
a. Mutual Mistake (page 23)
a. Mutual mistake about material fact of K
b. Unallocated risk
i. Look to K and parol evidence***
c. @ Time of contracting
b. Impossibility (page 23-24)
a. After time of K, implied condition thing will
remain – existence of thing is essential for K
b. Obligation must be (1) impossible (2) condition
was unforeseen (3) unallocated risk
i. Not impossible if other ways to perform
c. Impracticability (pages 24-25)
a. Performance unfeasibly difficult, excessively
expensive or commercially impracticable (UCC)
b. AFTER formation of K
c. Baradaran Test:
i. Was performance impracticable
ii. Unforeseen event related to basic
assumption of the K
iii. Probability ex ante – probability of
event happening nil – unforeseeable
d. Frustration of Purpose (page 25)
a. Parties obligation to fulfill K is pointless
b. Main foundation/purpose of K is frustrated
c. Near total loss
d. Frustrating event unforeseeable
e. Risk not allocated
e. Risk Allocation (Posner)
a. Who is in better position to guard against risk at
a lower cost? Who can best protect themselves?
b. Who is the superior insurer?
c. Party bears risk when allocated to him by K, or
he uses his knowledge as sufficient as to the
facts the mistake relates to
Remedies (there is a K, it was materially breach)
a. If not seeking SP, damages will be $ compensation. Start
with expectancy & if too speculative go to reliance.
Expectancy Damages (page 6-8)
a. Goal: compensate injured party so that in position would
been in if K had been fully performed
a. Get $ equivalent of what was expected under K
b. Cost of completion vs. change in market value
a. Fuller: recover cost of completion, preserve
intention of parties (Groves)
b. Posner: MV, do not waste. Disproportionate.
c. Consider forfeiture and point of K
c. Covering, substitute job after breach, lost volume seller,
new business rule, lost profits, substantial performance
a. Seller breaches – buyer recover difference btwn
K and MV of substitute  covering
b. Buyer breaches – seller recovers difference btwn
K and resale value
d. Limits: Cannot get $ you would have had to pay if K
performed, new business, speculative, if grossly
disproportionate (looks like punitive, Peevy), if you didn’t
mitigate, any $ saved from the breach
e. Lost profits – were damages foreseeable at time of K
(encourages disclosure to avoid penalty default) and can
they be proven with sufficient certainty?
f. Efficient Breach? Not a defense
Reliance Damages (pages 8-9)
g. Plaintiff recover all $ lost in reliance on K, pre-K position
a. Awarded their out-of-pocket expenses incurred
in furtherance of and reliance on the K
h. JX split on pre-K expenses – recovery allowed if
expenditure is reasonable (Anglia), no recovery b/c not
reasonable to rely on K that hasn’t been signed (Demp.)
i. Lost profits – can get if resulted from opportunity forgone
in reliance on promise that was breached (Bacardi)
j. Recovered in lieu of expectancy when too speculative
k. Limits: reliance must be reasonable, foreseeable (breacher
should have known these damages would naturally
occur), mitigation
a. Cannot get reliance if it would return more than
expectancy – this is a losing K. Armstrong
Rubber – must prove if venture would have been
profitable w/ evidence.
l. Essential reliance (losses performing K and opportunity
costs) v. incidental (other $, travel)
Restitution Damages (page 10)
m. Goal: requires D to repay the P $ value of benefit
conferred to D – if you can prove unearned benefit 
restitution and UE
n. Measure: value of benefited imparted on D or increase
MV as a result of value received – whichever is bigger
o. Not limited to K price – may sue under K or outside K in
quantum meruit, use K price to determine MV price
p. Losing K – if you weren’t going to make $ on K can still
prove that other person got a benefit
q. Substantial performance – materially breaching party can
recover if they have conferred benefit.
Liquidated Damages (pages 9-10)
r. RST: reasonable forecast of just compensation, difficult to
measure
s. How to draft good LD clause factors to avoid penalty
Specific Performance (pages 10, 12)
t. No other adequate remedy of law exists.
u. K item is unique, land is always SP, proper circumstances
v. Must be a valid K with valid consideration
w. Defenses to SP (page 12)

CONDITIONS (pages 18-21) “If ___, then ____”

A precursor to the duty to perform, one party conditions their
duty to perform under the K on a certain occurrence.
View through lens of risk allocation
a. Express – parties explicitly agree that duty is conditional
upon happening of some event (page 18)
a. Always use consistent language (Latin phrase),
look to at intent of parties and underlying purp.
b. Damages: discharge of duty, no BOK
i. Bad faith exception
c. Satisfaction clauses (page 19)
i. Subjective – up to tastes of party
ii. Objective – reasonable person test
1. Exception – inducement
d. ***Must expressly K for perfect tender
b. Implied – happening of an event is made a condition of a
duty because court determines it (page 19)
a. Order of performance
i. Damages – BOK, but to oblige other to
perform you must perform
b. Quality of performance (Grun Roofing)
i. Look at essence of K for intent
ii. Sub performance
c. Promissory condition – party promises to perform
condition that will bring about other’s obligation
a. Bilateral K (insurance premiums)
d. Damages – consequential damages only available in
BOK, meaning broken promise. Failing to meet a
condition simply discharges duty to perform.
e. Substantial performance - depends on materiality of
breach. If party has sub performed, then no material
breach. If no sub perform, then material breach.
a. ***Argue when sub performance isn’t enough –
not enough in Roof b/c material breach, enough
in Reading b/c didn’t violate essence of the K
b. Sub perform may satisfy condition if there would
be a forfeiture + perfect tender isn’t needed
c. Sub performance + damages stemming from
failure to fully meet condition may be sufficient
d. Factors: purpose served by perfect tender, excuse
for deviation, cruelty of enforcing (forfeiture)
f. Implied Promise - inherent promise to do something (Du)
g. Avoidance of Conditions (page 20)
a. Impossibility – condition became impossible to
meet, unforeseeable, outside parties’ control
i. If impossible b/c of bad faith or breach
of implied promise  damages
b. Waivers – party relinquishes known legal right.
Conditions are “waived,” promises “modified”
i. Unilateral act by one party
ii. Can be implied through conduct (course
of performance, dealings, car hypo)
c. Severability – consider intent of parties in lang.
of K, manner of K being performed,
circumstances of performance
i. Can mitigate harshness of conditions