1) If something is not at issue, state that it isn’t (raise & resolve) 2) Provide citations/authority for everything 3) Write everything

ng in paragraph form, no
bulleted lists (but can number within paragraph) 4) ​Analyze/define/explain each rule/element​ 5) ​**Cover all bases -- Courts would likely find
[sub-issueA] and therefore X bc Y. However, if they found [sub-issue B], then…​ Remember possibility of ​Illusory promise / conditional gift ///// no ​K​ if
essential terms missing /// ****Explain objective test (vs subjective intent), definition of contract/agreement, promise, mutual assent, offer, ad not offer (&
exceptions) definition of acceptance, definition of counter-offer​ [K=contract, O=offer, C=consideration, A = acceptance, B=bargain, P=promise]

Semester 1
Misrepresentation​ - R2d §159
- Q: Is the misrepresentation fraudulent, material, or both? If neither, then inconsequential [Material → §162(2)
- Q: Difference: Giving value = C leading to K, Relying materially= promissory estoppel aka reasonable reliance
- §162(2) A misrepresentation is material when… [facts]. Facts include [§159] past events & present circumstances, NOT future events
- Assertion (§159 cA) = spoken/written/inferred from conduct. Act known 2 likely prevent 1 from learning fact= assertion fact doesn’t exist §161
- Fraudulent = not only consciously false but also intended to mislead another (Comment A) // “material” defined @ §162(2)
- Syster v Banta​ [dance classes]: K not binding/enforceable if fraud in its execution. A person claiming fraud must establish that the other party:
(1) knowingly made a material, false representation (2) with the intent to deceive and defraud. (3) injured party must have believed and relied
upon the statement in entering into the contract and (4) suffered damages due to reliance on the false statement
- According to Prof Edwards, the misrepresentation can be innocent & material OR not innocent

Contract interpretation
1. Parol evidence​ [is the writing a complete embodiment of the parties’ intentions]
a. Where the Ps to a K express their agreement in writing w/ intent it embody ​final​ expression of bargain, the writing is an “integration.”
b. Any other expressions (written/oral) prior to writing + oral expressions @ same time as writing= inadmissible to vary terms of writing
c. Is it Integrated?​ (1) Is this writing intended as the final expression; (2) is the writing a complete or final expression?
d. Final?​ EX: Ps might only intended writing 2 b preliminary draft. If so, PE rule will not bar introduction of further evidence. Any
relevant evidence is admissible to show that the parties did not intend the writing to be final.
e. Partially Integrated? ​After establishing that the writing was “final,” determine if the integration was “complete” or “partial.” If
complete, the writing may not be contradicted or supplemented; if partial, it cannot be contradicted, but it may be supplemented by
proving up consistent additional terms.(aka PE allowed).
f. ​The UCC presumes all writings are partial integrations unless there is evidence that the parties intended a writing to be the
complete unless there’s evidence that the parties intended a writing to be the complete agreement. (UCC §2-202; p. 392)
g. Cases (Interpretation): ​Frigalament​ (​Chicken case): When parties to a contract subjectively construe an ambiguous term differently,
courts must look to external signs to determine the proper construction. To aid in the interpretation, courts may consider the plain
meaning of the term, the negotiations between the parties, trade usage, & the course of dealing between the parties.
h. Joyner v. Adams-​ When parties attributed diff meanings to K term, there is no “meeting of the minds” neither party’s meaning wins.
i. Nanakuli​- Courts can admit evidence of customary trade usage & course of performance for Ps 2 demonstrate implied K terms
j. TAKEAWAYS FROM INTERPRETATION+PE: Terms (+negated terms) need to be express & explicit
Modified objective approach to interpretation [Corbin]:
1. Whose meaning controls interpretation of K? 2. What was that party's meaning? [rule of construction= did drafting P hav superior knowledge?]
R2d of Contracts follows Corbin/modified objective approach: Under §201(1), if both parties attach same meaning to provision, that meaning will
govern. Thus, mutual understanding of parties controls, even if its different from interpretation that would b given to K by reasonable person.
If parties assert different understandings, test= whether 1 did/shouldve known differently. If neither P had reason 2 know other’s interpretation, no
K.

Implied contract provisions

- Two types of implied terms: 1) ​Implied in fact​ (terms implied by parties’ statements/behavior) and 2) ​terms implied by law​ (to be in all
contracts?) [Reasoning behind implied-by-fact term: honoring intentions of the parties]
- Sources of implied terms: 1) Statute, 2) Common law precedent, 3) Court decides it’s appropriate within immediate context
- W respect to Ks there may be additional provisions that are not explicitly provided for but that the law imputes to the parties
- Primary one is good faith and fair dealing. (Case: Lady Duff → A promise, exchanged as C, may be implied and enforceable, even
though it is not provided in the explicit terms of the contract. In the current matter, the facts reveal that Wood made a promise to use
reasonable efforts to place endorsements and market Lady Duff-Gordon’s designs. Because Lady Duff-Gordon gave an exclusive
privilege, Wood’s acceptance of the privilege assumed its duties, one of which was to use sufficient reasonable efforts.
- Good faith & fair dealing → ​Fact trigger: hidden motive or animus [Failing to meet a term of a contract is not automatic bad faith]
- GIVE THIS DEFINITION: “honesty in fact and observance of reasonable commercial practices” - UCC
- Honesty in fact = colloquial equivalent of following the golden rule, just means everyday definition of honesty
- “Implied covenant of good faith and fair dealing will be tested on in a way that indicates that there may have been bad faith.
- A promise, exchanged as C, may be implied & enforceable, even though it’s not provided in explicit terms of the K; A promise to use
reasonable efforts may be implied from the entire circumstances of a K. Once implied, that promise may constitute sufficient C to
create a valid and enforceable contract-​Lady Duff
- Course of performance, course of dealings, trade usage.(see also, Parol Evidence).
 - Good Faith and Fair Dealing Every contract within the UCC imposes an obligation of good faith in its performance and enforcement.
[UCC §1-304] ​UCC’s definition of “good faith” = honesty in fact & observance of reasonable commercial standards. UCC §1-201(20)
Breach of this duty = question of fact, but usually involves exercising discretion in way that deprives other P of fruits of the K.

Breach of contract​ (‘default’): Attempt to withdraw from a contract before performance is called anticipatory repudiation and is treated as a breach
Contract formation​ → Ps can form Ks in writing, orally, OR through actions
Executory contract ​= Contract in which there are performances left to be completed, aka incompleted contract

Modification​ [Restatement 89 or UCC 2-209]

- Unless prohibited by original K, Ps can M at any time ​both​ orally AND in writing UNLESS original K says only M w/ 1 or other
- Under UCC, C is ​not​ required for modification, under Restatements, C ​is​ required.

Statute of frauds​ = some types of contracts must be in writing to be enforced → Restatement 110 says which Ks are under SoF
- For UCC, Contracts for sale of goods for $500 or more must have written memorandum of K existence.
- Subsection 2 provides one exception for merchants // Subsection 3 provides 3 other exceptions

DEFENSES​ = stuff that happens ​during​ contract FORMATION

1. Mistake​ [at time of K formation] - R2d §151 = A mistake is a belief that is not in accord with the facts
a. Analysis: 1) Identify the belief 2) Identify the facts not in accord w/ that belief 3) Therefore, we have a mistake
b. Mutual mistake = R2D §153
i. Occurs where (1) AT THE TIME K WAS MADE, (2) both parties made a mistake…(3) as to a basic assumption on which
K was made (4) which had a material effect on the agreed exchange of performances.
1. In determining whether mistake has ​material effect​ on agreed exchange, account is take of any relief by way of
reformation, restitution, or otherwise
2. Basic assumption → Comment b to R2d§152 [basically about foreseeability]. Examples: continued existence of
person necessary to K performance (R2d §262), existence of thing necessary for performance §263, law will not
directly intervene to make performance impracticable §264
3. Material effect → consider using definition @ R2d§162(2)
ii. K made upon mutual mistake = voidable by adversely affected party UNLESS he bore risk of the mistake under §154
2. Misconduct/unconscionability
a. Illegality:​ Can be enforced by either side, Ks which are illegal are unenforceable (sex or murder Ks).
b. Williams v. Walker Thomas Furniture: R ​ ent to own furniture, defaults on last payment, store repossesses everything. ​procedural​=
she signed Ks in blank/she didnt have education + ​substantive​= unreasonable terms, she’d paid most of it before repossessed for
one default payment. ​POLICY:​ Even if a K is untainted it may still be unenforceable on policy grounds §178-179; 189-191.
3. Duress​ [no physical duress tested, only economic duress] = Contract is VOIDABLE (not void) [R2d §176]
A. Duress= Improper pressure in bargaining process.1) threat 2) actual inducement [+ no reasonable altern] 3) result
B. Economic duress exists where (1) the parties have [theoretically] already assented to a K, (2) 1 party threatens to breach K, (3)
other party (one claiming duress) has no reasonable alternative to prevent the other party’s breach. ​A civil action is a reasonable
alternative as long as it is economically feasible​.
C. Duress may be committed by 3rd party or member of contract
D. Odirizzi ​case gave factors courts look for overpersuasion (technically undue influence but can be used for duress too): Discussion
of the transaction at an unusual place or inappropriate time; Consummation of the transaction at an unusual place; Insistent demand
that the business be finished at once; Extreme emphasis on untoward consequence of delay; The use of multiple persuaders by the
dominant side against a single, servient party; Absence of third party advisors to the servient party (no attorneys, witnesses)
E. Statements that there is no time to consult financial advisors or attorneys; ​Undue influence​ [pre-existing personal relationship]=
excessive pressure used 2 persuade party in weakened mental state, such that will of dominant party replaces will of servient party,
agreement may be rescinded as obtained by undue influence.

EXCUSES​ = happens ​after​ contract formation [ALWAYS ASK: Did the parties expressly allocate the risk? If yes, allocation controls, not general
doctrine]
1. Impracticability via Changed circumstances​. Defined @ §261: Objective rule that the thing promised simply cannot be performed at all.
Includes death, destruction or prevention by gov. regulation. Also includes UCC §2-613(p. 454; use for sale of goods).
a. 4 elements: ​(1)​ the occurrence of an event made performance under the contract impracticable ​(2)​ the non-occurrence of the event
was a basic assumption on which the contract was made, ​(3)​ the impracticability resulted without the fault of the party seeking to be
excused from the contract, and ​(4)​ the party has not agreed to perform despite impracticability that would otherwise justify the
nonperformance, i.e. didn’t bear the risk. [Note: Lack of performances are not excused simply because the party fell on hard times.]
b. Waddy v Riggleman→ D of impossibility cant b used 2 avoid K unless P took every action within power 2 perform agreement duties
2. Frustration of Purpose
a. (1) purpose that’s frustrated must be so completely that basis of K that w/out it the transaction doesn’t make sense, (2) frustration
must be substantial; not enough to just suffer a loss, frustration so severe that it’s not fair to be regarded as w/in the risk assumed by
the K. (3) non-occurrence must have been unforeseeable.
b. Mel Frank Tool v. Di-Chem​: DC cannot be excused from the lease b/c MF did not know what chemicals were to be stored in the
facility (city changed chem storage rules). DC could have used space 4 something else
3. Incapacity​ ​[age, mental illness]
 - Triggers: [facts] minor/under 18 yr old enters into K OR mental illness; [question] “was there an enforceable contract”
- Minor capacity doctrine​:
- @age of minority til 18; traditionally minor can disaffirm/avoid K even if theres been full performance & minor cant return to
adult what was in exchange. Fact that minor benefited from service in past not enough 2 deny minor right 2 void K.
- 1. Necessaries rule: K for necessaries that minor enters into will b enforced where minor’s parents unwilling/unable to
provide those necessaries for minor. I.e. Necessaries K = only voidable when parents willing to provide necessaries
- Necessaries = food, clothes, shelter, emergency medical care. If K not necessaries, use ​Dodson​ takeaway
- 2. some courts allow minors 2 enter into enforceable Ks for their own necessaries if parents are not providing them
- Ex: parent on welfare, kid goes to hospital, hospital services = necessaries bc medical emergency, therefore
hospital will argue must be enforced. Court prob make child pay bill
- 3. Employment K → some courts let minors rescind employment Ks, others don’t [note 6] If minor enters into employment
K and seeks to void, depending on jurisdiction minor would have to give up income stemming from K
- Employment K will b enforced where child needs 2 work in order to provide basic necessaries
- Dodson v Shrader​: benefit & depreciation rule: minor can void K due to capacity but most jurisdictions expect minor to pay
for usage, depreciation, and/or willful or negligent damage to article while in minors hands
- Benefit Rule:​ upon recession by minor, full purchase price recovery subject 2 deduction for minor’s usage/benefit derived
- Depreciation Rule:​ Same as benefit rule but for the depreciation or deterioration of the item.
- If minor disaffirms, adult (Plaintiff) can seek restitution for payments previously made, offset by depreciation in value (ex:
ask for car to be returned, plus depreciation value) BUT minor (defendant) can assert infancy/minority capacity defense,
must return any C they received.
- Minor must accept or repudiate entire K, not pick and choose terms
- Mental illness capacity doctrine​ ​§15
- Modern effective test: whether transaction is one which reasonable competent person would have made and whether
incapacitated person had independent counsel
- Evidence showing lack of capacity: must provide expert witness testimony

DAMAGES​ [3 types: expectation, reliance, restitution]

- No need to calculate damages but do need to mention theories of damages if triggered
- Expectationary Damages​: Typically when there’s breach of contract nonbreaching party gets damages to put it in the position it would have
been if the contract had been performed
- Reliance Ds​: Put P back in position she wouldve been in w/ no K. P gets back all expenses incurred in reliance on K
- Restitution​: put D back in position he wouldve been in w/ no K. P gets back all benefits conferred on D. Policy: to prevent unjust enrichment
- Incidental damages [UCC 2-710]​: any commercially reasonable charges/expenses incurred in stopping delivery after buyer has breached. So
this is specific damages seller might be eligible to recover for.
- Also under UCC buyers can also get restitutional damages → § 2-703. Seller's Remedies in General
- buyer’s responsibility is to accept the goods taht conform to contract and pay for the goods they accept. So when you see
“rejects/revokes acceptance” you’re talking about buyer failing to accept goods that conform to the contract
- Buyer’s wrongful refusal to accept goods means they should have accepted bc they met contract specs but buyer chose not to do
so. When that occurs,seller can obv refuse to deliver more goods, can stop delivery by any 3rd party deliverer
- UCC 2-711 through 2-716 tells you what damages buyers are eligible for under UCC
- Remember​: Duty to mitigate damages. Party has to do whatever they can to minimize their damages even if aggrieved.

If ​C missing​, parties may have formed ​agreement​, not K. And if there is agreement w/o contract, we may be looking at ​promissory estoppel​ or
promissory restitution​. [Pure restitution is if there wasn’t offer or acceptance but there was benefit offered by one party and the other party
didn’t pay for that benefit. So then Q = is it fair for recipient to keep the benefit without paying for it.

3 theories of recovery each lead to 3 theories of damages (§344)

1. Bargained for Exchange (bfE) → expectation damages
a. Cause of action: breach of K
b. Goal of expec. Damag. = to put (not restore) non-breaching party in position she’d’ve been in if K fully performed
c. Ex: A buys bike from B for 100, A gives B the $ but he doesn’t give bike, she now gets 100 back BUT if it takes her 110 to get bike
from new source, she gets 110 expectation damages from B even tho K price w/ B was 100. If A gets bike for LESS $ from other
source, B still owes 100 for expec damag. Can only gain not lose from market fluctuation.
i. What if she wants B’s bike? That’s specific performance, which is equitable remedy, not damages. Rarely available bc law
generally treats damages/money as adequate remedy (also can’t physically force somoene)
1. When are damages NOT adequate? Land contracts or emotional value
d. Expectation damages look forward in time to put P in position she’d have been in if K had been performed
2. Promissory estoppel → reliance damages
a. If material element of K cannot be satisfied (particularly C), then expectation damages not available. PE invented where there’s no C
under BfE. Rather than looking forward (expectation damages), PE/reliance = backward looking, puts you back in position you were
in before you relied on K
b. Reliance damages reimburse P for out of pocket expenses incurred in reliance on promise. Harm > value of K
c. Ex: in reliance on getting bicycle, B bought a helmet
3. Restitution → restitutionary damages [also an equitable remedy]
 a. Triggered when BFE & PE not available. How/why? No Expectation Damages (bc no C) & no reliance damages (bc no promise)
Can be used for recision of K or a defense
b. Restitutionary damages used to disgorge unjust enrichment & restore party who has conferred benefit to other party
c. Fact trigger: one of parties has $ that they don’t deserve
i. Ex: D contracts w/ A to build her house. D stops halfway but she never paid him. A gets the $ it would take to complete K.
But A also unjustly enriched so D may get market value of his labor.
- A pays B for half of K, B doesn’t complete its work. What can A recover from B [for this breach of contract]? Restitutionary
interests Ex: Now A enters into K w/ C but C charges 20k more. A can recover (1) payments A made to B that B didn’t
earn (2) additional cost (20k) A incurred from having to pay C if A can show it’s not duplicate payment

A & B have lived in adjoining condos for years. Also own vacation houses, in which they lived every summer. Sometimes they visit each other’s
condos & summer houses. Jan 2, 2012: they entered into written agreement = A to swap her beach house for B’s house in mountains. Closing
was on Mar 1, 2012: A & B exchanged deeds + check payable to A for $140,000, the difference in cost of the two houses. A went to inspect
mountain property on May 1, discovered the deed bore inaccurate description of property’s boundaries: most of the land shown on deed
actually belongs to neighbor, although deed is correct as to the house. A complained to B about discrepancy, B claimed he didn’t know about
problem beforehand as his family always marked the boundaries by the fences on the land.
(1) A has asked for your advice. If A sues B for breach of contract, what defenses, if any, can B raise? (2) What remedy should A seek?
1. Answer to pt 1: mutual mistake
2. Step 1: Define Mistake §151
3. Step 2: Mini IRAC: Identify what the mistaken belief is and the facts that are not in accord w/ it.
4. Step 3: Go to §153 Unilateral mistake & elementize: ​(1) ​Both parties mistaken (​2)​ Mistake has to exist @ time K made, not later. If mistake
was after K formation, not mistake. ​(3)​ Was the mistake about a basic assumption? Define basic assumption: a basic assumption goes to the
heart of the K. Goes to the reason why someone is making the K. It’s the heart of what was bargained for. ​(4)​ Did mistake have material
effect? If mistake doesn’t make difference as to value of K, not material. So Q is how much of a difference did this mistake make? “Here, if the
land that was supposed to be included in the K was only a small portion more that was worth very little, then not material. But we don’t have
those facts. We don’t know how much more land they were supposed to get relative to what they got. [Then apply missing fact in each
direction: If X, then … If Y then…] ​(5)​ Voidable vs void? Explain difference ​(6)​ Who bore the risk? → §154 [Look for this in facts. IF no facts,
still discuss. Ex: Buyer knew nothing about the land, didn’t survey, didnt request research = bore the risk. When fair to say other party bore
risk? §154c if one party has more knowledge than other regarding subject matter contracted for. Ex: A was land surveyor. Here, §154(b)
applies most bc A failed to do any research or see the land before signing.
5. Step 4: Term “claimed” used = potentially issue of misrepresentation → Define Misrepresentation §159: an assertion (not necessarily
statement) that is not in accord w/ the facts
6. Step 5: unconscionability?
7. Step 6: contract interpretation?
8. Step 7: what is considered a changed circumstance? Impracticability (impossibility), frustration of purposes, modification
9. Step 8: Remedies: There are 4 types of remedies: recision, expectation damages, reliance damages, restitution damages. (1) Restitution: Has
A or B conferred a benefit to the other? What could A get? Specific performance (expectation damages?) Asking B to convey the land up to
the fence? B can’t do that. Ordinarily specific damages = remedy for land, but doesn’t apply here bc B can’t. A would have to find equivalent
house to be put in the same position so maybe get damages for amount of money to buy equivalent house w/ amount of land listed in deed.
Could B get restitutionary damages? A could get restitution damages (getting her beach house back) bc she conferred benefit to B.

B. In the Matter of Brady v. Lizardi: Candi Brady = well-known entertainer in tv industry; Irving “Swifty” Lizardi is a ‘personal manager’ in
entertainment profession. Jan 16, 2010: they signed a K whereby Brady agreed to employ Lizardi as her agent for 3 yrs. In exchange 4 his
expert services, Lizardi would receive 15% of B’s gross income. The K was a standard form used & approved by the conference of personal
managers in the entertainment industry. In addition to standard features, the K contained a rider giving L the option to extend the agreement
for 4 more years provided that B’s income exceeds $350k. This figure was later raised to $500k by a superseding agreement signed on Feb
19, 2011. When B signed the 1st of these agreements she was 15 yrs old and thus was legally an infant.
Brady wants to know how she can get out of the agreement. What advice do you give her?
1. Minority defense §14 [age of consent = 18]
2. Minor must initiate the request for the contract to be voided, bc rule originally designed to prevent sharp dealing by adults
3. She can DISAFFIRM the K, this would void the K [can do this bc minors are not in the capacity to fully understand]
a. The K is voidable but NOT automatically void -- must say this
4. She can also RESCIND
a. Rule 1: Upon rescission, recovery of purchase price can be reduced from usage if it changed value of good
b. Rule 2: Benefit the minor got from use of good can reduce recovery of purchase price [but this is not K for goods]
5. What happens if she disaffirms? → Restitution= alternative way of getting promise enforced even if K can’t be upheld. Here restitution = what
the minor has to restore to the adult. Majority rule is benefit rule but this is not a K for goods
i. She could potentially be owed the 15% she paid minus depreciation. If L’s efforts really helped her, maybe L can keep
6. What about the next 3 years of contract?
a. Necessaries rule: A K for necessaries that minor enters into will b enforced where parents unwilling/unable 2 provide those
necessaries for the minor, i.e. K for necessaries only voidable if parents willing to provide those necessaries
b. Necessaries = food, shelter, emergency med care, etc. Here, could argue $350k far surpasses covering necessaries(§12 com F)

Unconscionability [in our class both procedural and substantive unconscionability required, though not necessarily to same degree]
 1. Procedural unconscionability: lack of ​meaningful choice​ by one party OR defect in bargaining process
2. Substantive unconscionability: re: fairness of ​terms​ in resulting bargain, clause or entire K = unduly unfair & one-sided
a. Ex: excessive price, unfair limitation of buyer’s remedies
3. UCC § 2-302 and R2d§208 -- court can hold K unenforceable, selectively enforce portions, or limit application of unconscionable clause

SEMESTER 2
1. What jurisdiction are we in?​ UCC or common law?
Test 1; Predominant Purpose Test, includes Coakley Factors:
a.) The language of the K b) The nature of the business provider c)Intrinsic value of the goods
Test 2: Gravamen of Complaint Test: ​Asks whether complaint is mainly about the goods or the services rendered?
2. Is there a ​K​? → [Define ​K​] ​§1​ - promise/promises [​§2/4​] breach of which law gives remedy [Why imprtnt? Bc ​Ks​ help solve disputes like this w legalremedy
3. Courts use ​objective test​ to determine whether parties intend to be legally bound. [​§21​] (Rather than subjective intent)
a. Why O-Test?​ would b difficult 2 enforce ​Ks​ if didnt use obj. standards 2 interpret (Holmes, The Theory of Legal Interpretation)
b. Essence of OBJ test: looking for OUTWARD “manifestations of intention to be bound”
c. Dont need explicit bargain process​:“Under traditional model of ​K ​formation, parties engage in give/take of bargaining through process of ​O&A.​
Imprtant 2 recognize.. ​K​ can b formed even when parties ≠engage in bargaining process.” [​casebook overview of Mutual Assent​]
d. Duty to read​ - Unless intentionally misled by other party, not having read/understood ​K​ terms = own fault. Still bound. (​Skrbina v. Fleming)
i. “Absent fraud, duress, or MUTUAL [not unilateral] mistake… [duty to read + signed = bound]” - ​ Eurice Bros
e. Obj Test of ​O&A= ​ not what party thought/intended, but what reasnble person in parties’ position wouldve interprtd.” ​ [​Eurice Bros​] ​2
PRONGS:
i. 1) you sign it, you’re bound by it (clearest manifestation of intent to be bound) [​Ray v. Eurice Bros​]
ii. 2) ​R2d§18​ [​Process​ of Mutual assent] → rephrase w/ own words → explain​ §22​ [mode of assent = ​O​ + ​A​]
4. First sub-issue: Is there an offer? ​(​Definition: ​§24 - ​manifestation of willingness to enter into bargain, so made as to justify assent invited…)
a. Again, we use obj test, whether reasonable person would have thought O ​ ​ made. Factors we can consider:
b. Factor 1: ​Seriousness​- ​Leonard v. Pepsico​ - Court held no reason. person think buying soda → jet plane reward
c. Factor 2: ​Directness​: specific offeree v public [​§26 b​] Ex: Ad ​≠​O​ unless calls 4 action w/o further manifestation of assent
d. Factor 3: ​language used​ -- level of detail, completeness, commitment [No=​Lonergan​, Yes=​Eurice, lots of specs​]
i. Quake​: Phrase “authorizes work”, “​K​ awarded”, work begin date = near future, cancellation clause
ii. Sarteriale​: use of word “​O​”, no disclaiming of intent to be bound, spec. terms included, enrollment req
e. Factor 4: ​Apparent capacity​ of offeror to follow through on promise [​Leonard v Pepsico​] [​Walker v Keith​?]
f. Factor 5: Nature of Parties’ Relationship [Ex: family → love ​≠ ​consideration]
g. Factor 6: Characterization (surrounding circumstances -- ​RJReynolds
h. X party would argue no ​O​ bc….. Y party would argue yes O ​ ​ bc…. Court likely to find….
i. Preliminary negotiations​ ​aren’t ​Os​ ​ (neither are “invitations to ​Os​ ” → ​§26 comment d (p.27)​)
i. Evidence that it’s PN, not O: “All surrounding circumstances” [​Sarteriale​] / Language used . [​Lonergan​]
j. Advertisements usually aren’t ​Os​ ​ - ​Restatement (Second) §26
i. Exception 1: ​Bait & Switch​ - I​ zadi ​; ​Exception 2: Unilateral ​O​ [ex: Rewards program / ​RJReynolds​]​ - - ​R2d §26
5. Interpreting the offer​ [part of objective test]
a. The objective theory of contractual intent​: one is ordinarily bound or not bound, not by her “secret intent”, but by the reasonable interpretation
of her words and actions (Holmes on Contracts) [​Eurice Bros, notes​]
i. If ​K​ clear/unambiguous, court determines parties’ intent solely from the “ordinary & natural “meaning of language in ​K.​ ” - ​Dohrmann
b. Contradictory terms in binding ​O​ - ​O​ must be viewed as a whole, w/ contradictory parts resolved by court to determine “true” meaning (​Izadi​)
6. Second sub-issue: Was there Acceptance?
a. X party would argue no acceptance bc….. Y party would argue yes acceptance bc…. Court likely to find….
b. Power of Acceptance​: ​O​ has effect of creating in party to which ​O​ is addressed (the “offeree”) a “power of acceptance.” [​§29]
c. Form of acceptance invited ​[​§30]​ //// ​Mailbox rule​: sometimes acceptance = binding when dispatched [not if ​O​ specifies otherwise though]
d. Pureness of acceptance​ “acceptance must be unequivocal and unqualified in order for a ​K​ to be formed.” (​Normile​)-->​MIRROR IMAGE RULE
e. Unilateral ​K​ acceptance​ - 3 jurisdictions: ​100% complete​- ​traditional/common law ​ii. ​Substantial:​ ​Cook v Coldwell ​iii. ​Begun: ​“​R2d §45
7. Lack of acceptance
a. O​ expiration​ - can be implicit or explicit [R2d §35 / ​Normile v Miller]
b. Power of revocation​: Offeror= master of their ​O​ [​§29, comment A​] can revoke ​O​ any time b4 accepted (unless option ​K)​
c. Counteroffer​ - If party purports to accept but changes material terms (ex: price/deadline) = rejection of original ​O​ - ​Normile v Miller
I. Once counter​O​ made, original ​O=​ void & cant b accepted - ​Normile ​2. ​Counteroffer not effective until communicated ​- ​Normile
d. Outright rejection of offer​ - right of refusal?
8. 3rd sub-issue: Was there Consideration? ​****DO BOTH TESTS FOR THIS ON FINAL NO MATTER WHAT****​ ​R2d §71
a. What is consideration: ​something given in exchange for the promise that shows the value of the exchange in promises
b. Test1: Bargained-for-exchange (most popular)​: ​R2d §71​.
i. (1) performance or return promise… (2) that was bargained for.
ii. Condition​ for how one GETS a benefit ​≠​ ​C​ (ex: having to travel to office to pick up check)
iii. [no such thing as past ​C]​ - ​Plowman​ [​C​ need not be explicitly bargained over] - ​Pennsy v AA
c. Test2: “Benefit/Detriment” test:​ ​either​ b​ enefit to promisor ​or​ ​detriment to promisee. ​Hammer v. Sidway
 i. Hammer​: “A valuable C ​ ​ in the sense of the law may consist either in some right, interest, profit or benefit accruing to the one party,
or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.”
9. [ALT. THEORY OF RECOVERY 1] Promissory estoppel (aka detrimental reliance)?​ [likely if no contract] ​R2d §90 [FOUR PART TEST]
Alternative theory of recovery if bargain for exchange fails. Was originally designed to substitute/provide recovery if ​consideration​ fails. But
many courts let plaintiffs use promissory estoppel if bargain for exchange theory fails in any way (no offer/no acceptance/no consideration)
a. ISSUE: IS THE PROMISE ENFORCEABLE [NOT CONTRACT]
b. Requirement 1: Is there a clear & unambiguous promise (restatements §2) [remember: in some jurisdictions offer = promise, others not. Do both]
c. Requirement 2: Is there actual reliance on the promise (change in position ​induced by t​ he promise) ​(H ​ arvey v. Dow​)
d. Requirement 3: Was the reliance reasonable & foreseeable by promisor
e. Requirement 4: Can injustice ​only​ b avoided by enforcing promise (detriment on top of losing promise--can b tiny. If promisee better off, no
P.E.).
f. Cases: ​Aceves, Katz v Danny Dare
10. [ALT THEORY OF RECOVERY 2] Pure restitution​ a.k.a. restitution a.k.a. Contract implied in law a.k.a. Unjust enrichment [​cases only​]
a. “an action for recovery based upon unjust enrichment is grounded on the moral principle that one who has received a benefit has a duty to make
restitution where retaining such a benefit would be unjust” - ​Watts v Watts
b. “contract implied in law=obligation imposed by law w/o regard 2 either partys expressions of assent...” aka it’s a legal fiction ​- Pelo
c. Fact that triggers this: ​benefit occurred​ and ​no promise​ present (to compensate for the benefit) -- no need for consent or advance knowledge
d. Requirement 1​: Benefit conferred by the plaintiff to the defendant ​[Watts & Pelo & David]
e. Requirement 2​: Understanding or knowledge [“appreciation”] by the defendant/recipient of the benefit ​[Watts & Pelo & David]
f. Requirement 3​: Retention of benefit (opposite ex:you find dog, take to vet, bring to owner but PSYCH the person didn’t want that dog) [​W/P/D​]
g. Requirement 4​: Benefit wasnt conferred officiously (domineering in trivial matters)=need good reason 4 not acting under bargain theory [​P​/​D​]
h. Requirement 5​ considered in ​Pelo​ but not called requirement = benefit was not conferred gratuitously (original intent = be compensated) [​P/D​]
11. [ALT THEORY OF RECOVERY 3] Promissory restitution​ [​R2d §86​]
a. Fact that triggers this: promise made ​after​ benefit received
b. ISSUE: IS THE ​PROMISE​ ENFORCEABLE [NOT CONTRACT]
c. Relationship between PR and bargain for exchange theory: it’s an alternate theory of recovery ​as an exception to the rule against past
consideration​ (problem is it doesn’t put us back in bargain theory but it allows for SOME recovery)
d. Webb v Mcallen rule (​R2d §86​): when does justice require enforcing a promise made after the benefit/consideration has been received?
i. Element 1: There must be a material benefit // Element 2: Moral obligation to pay
ii. Element 3: Subsequent promise by recipient to compensate the person for rendering such benefit is enforceable
12. UCC jurisdiction
a. “If I ask you about sale of goods, consideration is ​presumed​ [via $ 4 goods] but have to say if 2.204 and/or 2.206 were satisfied (possibly 2.201)”
b. Exceptions to needing proof of contract in writing: (1) D testifies under oath (2) between merchants? (3) goods custom-made, can’t be re-sold
c. 2-204​: Formation in general. ​2-105​: definition of goods. ​2-206​: ​O​ & ​A:​ Steps for analyzing whether there is a contract under the UCC:
d. **​ If it’s greater than $500, look at 2-201 (statute of frauds)
e. If it fails 2-201, no contract. If 2-201 doesn’t apply or it passes 2-201, keep going to mutual assent.
f. 3. Analyze for mutual assent. Start with UCC 2-204 and 2-206 (offer and acceptance) and apply it to the facts, supplementing with definitions
from 1-20, including 1-201(3) and (12). NOTE that from 1-103(b) we get idea that common law holds unless otherwise stated by common law.
g. UCC is only bargained-for-exchange

Lonergan v Scolnick​ = land sale, form letter= ​preliminary negotiation ​// ​Izadi v Machado​ = ​bait/switch exception to ad​≠o​ ffer​, subjectiv desire not to be bound irrelevant.
Normile v Miller​ = tried to accept house purchase offer after revoked (comm via 3rd party OK), ​offer’s details ​△ in acceptance = counter-offer/rejection
Cook v Coldwell Banker​ = commission bonus, ​unilateral ​K,​ can’t change terms of offer once performance began // ​Sarteriale v RJ Reynolds​ = camel bucks, ​unilateral
K,​ c-notes = offer bc induced performance, rewards = exception to ad rule // ​Walker v Keith​ = option in lease ​K​ unenforceable​ bc rent not fixed w/ sufficient certainty //
Quake v American Airlines​ = Orally notified ​K​ awarded, ​is letter of intent enforceable​? -> extent of terms + magic words = yes // ​Hamer v Sidway​ = Uncle unilateral ​K
w/ nephew, provided specific demand in exchange for specific $$ on specific date. Satisfies ​C​ w/ ​benefit/detr. test
Pennsy Supply v. American Ash​ [​C​ present even w/o ​B​ 4 specific terms. ​AA’s ​P​ 2 provide AggRite=reciprocal inducement 4Pennsy incurring detriment(take AggRite)
Dougherty v. Salt​ [​consideration​ lacking when aunt wrote note promising $3k to nephew for being good. Writing “for value received” doesn’t help
Dohrmann v. Swaney​ -​K​ will be invalidated for gross inadequacy of ​consideration​ if the provided consideration is ​illusory​ [changing sons’ middle names]
Plowman v. Indian Refining Co​. - ​can’t enforce promise w/o ​consideration​. [old employees promised 2 be kept on payroll when laid off. Unenforceable.
Marshall Durbin Food Corp. v. Baker​ - Baker continuing to work @ company when he could’ve left = ​consideration​ (foregoing job elsewhere = detriment)
Jannusch v. Naffziger ​Concession trucks. If ​predominant purpose​ of ​A​=sale of goods, ​UCCArt2​ applies. Also ​oral ​K​ ​enough if D admits in court there was ​K
E.C.Styberg v Eaton​ [​UCC​] Eaton emailed committing 2 13k custom parts. Styberg wanted more, never issued P.O. Essential terms ​≠​agreed to ​≠​K
Princess Cruises v. General Electric Co​. ​UCC​ doesnt apply 2 ​K​ primarily 4 services, so GE modifying terms in its acceptance= new offer
Brown Machine v. Hercules​ [​UCC​] if offer expressly limits acceptance to terms of offer, additional terms in acceptance don’t become part of ​K
DeFontes v. Dell, Inc.​ [​UCC​ electronics] purchaser bound by additional terms in ​shrinkwrap​ agreement ONLY if clear they can reject by returning goods
Hines v. Overstock. com​ [​UCC​] ​Browsewrap​ agreement at bottom of page was not enough notice for woman to be bound to terms [restocking fee]
Harvey v. Dow​ [​promissory estoppel​] Parents implied land will go2 kids. Helped kid build home on it. No SPECIFIC ​P​ ​but​ was ​implied​ from conduct (helping build ​⌂​)
King v. Trustees of Boston University​ [​promissory estoppel​] promise to give property to charity [Dr. King did] + reliance on that promise [BU did] = binding
Katz v. Danny Dare​ [​promissory estoppel​] Dare intended Katz to rely on promise of pension + injustice could only be avoided by enforcing promise
Aceves v. U.S. Bank, N.A​. [​promissory estoppel​] A wanted 2 switch type of bankruptcy 2 keep ​⌂​. U persuaded A not 2 switch, ​P’​ d to negotiate alternative. She relied
on this & stopped bankruptcy proceeding. U offered unrealistically bad offer (double her previous mortgage). This = prom. estopp.
James Baird Co. v. Gimbel Bros​: ​Promissory estoppel​ inapplicable bc Gimbel’s ​O​ 2 supply linoleum ​≠​ a promise upon Baird's use of Gimbel's quoted prices in its bid
Drennan v. Star Paving Co. [no acceptance]
Credit Bureau Enterprises, Inc. v. Pelo​ [​restitution​]: Man req to pay hospital bill despite not agreeing to services or to pay for them [medical services = special]
Commerce Partnership v. Equity​ [​restitution​]: Subcontractor may recover payment frm owner if owner didnt pay general contractor. But that didn’t happen here.
Watts v. Watts​ [​restitution​] - unmarried cohabitants
Webb v. McGowin​ [​promissory​ ​restitution​] - Man saved another man’s life & got permanently injured. D promised to pay weekly til end of P’s life. D died/estate
stopped payments. Court held that there was initially moral obligation, then became enforceable once promise was made. Estate had to pay.