intent to contract

objective manifestation of intent to be bound

applicability of UCC
contracts for the sale of moveable goods
unilateral contract
promise made in exchange for complete performance
bilateral contract
promise made in exchange for another promise or performance
mutual assent
offer and acceptance
offer
a commitment, containing definite terms, communicated to an identified offerree
acceptance
unequivocal assent to terms of an offer; [CL] committment, communicated the righ
t way, mirroring terms of the offer; [UCC] definite and seaonable expression of
acceptance communicated by any reasonable medum
[CL] acceptance
a committment, communicated the right way by the offeree, to the exact terms of
the offer, effective upon dispatch
[UCC] acceptance
a committment by the offeree, communicated in a reasonable way to the offeror
mailbox rule
an acceptance, post-paid and properly addressed, is effective upon dispatch
rejection
refusal of offer by offeree; effective upon receipt
revocation
withdrawal of offer by offeror; must occur before valid acceptance made; effecti
ve upon receipt
counter offer
[CL] additional or varying terms of the original offer; functions as rejection o
f original offer
option contract
contract formed when consideration is paid to keep offer open for a longer perio
d of time; irrevocable for time specified or a reasonable time if none specified
merchant's firm offer
[UCC] a signed wriitng by a merchant stating the offer; irrevocable for time sta
ted or reasonable time if none stated but in no event longer than 90 days withou
t consideration
offer supported by detrimental reliance
offer irrevocable when there is sufficient reliance to justify application of th
e doctrine of estoppel
consideration
the bargained-for exchange of legal detriment
forbearance to sue
forbearance to do something one is or reasonably believes is legally entitled to
do may be consideration
pre-existing duty rule
a promise to perform (or refrain from performing) something one is already oblig
ated to perform (refrain from performing) is not consideration
illusory promise
promisor may elect to perform or not; not consieration
moral obligation
not consideration unless bargained for
promissory estoppel
reasonable, foreseeable, and detrimental reliance on the promise can substitute
for consideration
capacity to contract
if one party is lacking capacity to contract (an infant, mentally infirm), the c
ontract is voidable by the incapacitated party
duress
coercive force used to threatened to induce consent; personal duress - contract
voidable by coerced party; economic duress - no defense unless other party is ca
use
undue influence
over-persuasive pressure by one party against another
misrepresentation
fraud in the inducement - contract void; fraud regarding subject matter renders
voidable by innocent party
unilateral mistake
mistake by one party regarding material matter - contract voidable by mistaken p
arty if other knew or should have known of mistake
mutual mistake
common mistake by both parties about a material matter of the contract of which
neither party assumed the risk- voidable by either party
unconscionability
unfair advantage taken by one party over another; court may take any reasonable
action to render contract fair
illegality
subject matter of contract illegal prior to contracting - void; purpose of contr
act illegal - voidable by innocent party
statute of frauds
certain contracts must be in writing to be valid
one year provision (SoF)
contracts which cannot be completely performed within one year of formation must
be in writing
full performance exception (SoF - 1yr rule)
any possibility, no matter how unlikely, that performance can be completed withi
n 1 year removes contract from SoF
sale of goods contracts (SoF)
contracts for the sale of goods $500 or more fall within the SoF
special rule for merchants ($500, SoF)
merchant's confirmatory memo not obejcted to within 10 days satisfies SoF
other exceptions (goods $500+, SoF)
(1) specially manufactured goods where manufacturing has begun; (2) tender and a
cceptance of goods; (3) pre-payment
suretyship contracts (SoF)
collateral promises to answer for the debt of another must be in writing
main purpose rule (suretyship, SoF)
promise to answer for the debt of another need not be in writing if promisor mot
ivated by a desire for advantage or benefit
real property contracts (SoF)
contracts for the sale of land or buildings
part performance doctrine (real property, SoF)
possession of the land and partial payment or improvement to it satisifes the So
F
sufficient memo (SoF)
(1) identity of the parties; (2) subject matter; (3) time for performance; (4) p
rice; (5) signed by party against whom it will be enforced
modification requirements
[CL] mutual agreement and consideration
[UCC] good faith sufficient
accord and satisfaction
when good-faith dispute regarding duty, agreement to a substitute performance fo
r the disputed one (accord) and performance of the substitute (satisfaction) dis
charge original debt
parol evidence rule
no evidence of any prior oral or written, or contemporaneous oral negotiations m
ay be entered to vary or contradict the terms of an integrated writing
integrated writing (PE)
final and complete expression of the agreement
exceptions to parol evidence rule
evidence of duress, clarification of ambiguity, mistake, fraud, oral condition p
recedent, illegality, lack of consideration
express condition
present in the writing; must be completely performed
implied condition
implied-in-fact: reasonable expectation of parties
implied-in-law: order of performance when not specified
constructive condition
interpreted from relative performance of the parties; need only be sustantially
performed
satisfaction of contracting party
must rest on good-faith evaluation
satisfaction of 3rd party
must be good-faith and neutral; evidence of bad faith is admissable to excuse th
e condition
wrongful prevention
interference with event or failure to act when required; excuses condition
waiver and estoppel
waiver of condition by party entitled to it is permissible; may be withdrawn or
midified unless other party reasonably, foreseeably, and detrimentally relied on
waiver
relief from forfeiture
courts may excuse failure of express condition if would induce disproportionate
forfeiture
anticipatory repudiation
postive statement to the promisee before performance is due, that the promisor w
ill not or cannot substantially perform
voluntary disablement
anticipatory breach by actions rather than words
substantial performance
incomplete performance so nearly equivalent that it would be unfair to deny the
performer the agreed-upon return performance; subject to promisee's right to rec
over for value of performance left undone
divisibility
each party's performance capable of division into 2 or more segments and each ha
s the same number of performances
impossibility
supervening unforeseen event of which neither party accepted the risk renders pe
rformance objectively impossible; excuses performance
impracticability
supervening unforeseen event of which neiher party accepted the risk renders per
formance as writtn impossible for these particular parties; if temporary, duties
suspended until event is over
frustration
supervening unforeseen event defeats the underlying purpose of at least still pa
rtially executory contract; excuses performance
anticipatory breach and options
breach by anticipatory repudiation; non-breaching party who has not completely p
erformed may sue for breach immediately or wait for time of performance due
minor breach
defect in non-material aspect of performance
material breach
breach of material aspect of performance; discharges duty of performance by non-
breaching party
liquidated damages
damage amounts expressly agreed to in contract
requirements for valid liquidated damage clause
(1) amount of actual damage for breach would be difficult to determine; (2) amou
nt agreed to is reasonable; (3) intent is to provide for damages, not penalty
effect of liquidated damages clause
is recovery if clause is valid
damage calculation: employment contracts
[employer breach] salary for rest of term + incidental - mitigation; [employee b
each] cost of obtaining substitute performance
damage calculation: sale of goods
[seller] (1) resale; (2) market price; (3) lost profit
[buyer] (1) cover; (2) market price; (3) breach of warranty recovery
damage calculation: sale of realty
(1) restitution; (2) contract - market price
damage calculation: construction
[contractor] expectation + consequential + incidental- mitigation
[buyer] cost to complete + consequentail + incidental - mitigation
consequential damages
foreseeable damages resulting from breach
reliance
awarded as recovery to return non-breaching party to position before contract
restitution
recovery awarded for benefit conferred to other parrty
quasi-contract
equitable remedy whereby non-breaching party is awarded value of benefit conferr
ed
measure of recovery
value of benefit conferred
specific performance
equitable remedy used when breach of performance and monetary damages insufficie
nt
reformation
equiatable remedy used to alter contract writing to conform to actual agreement
recission
equitable remedy to remove parties' obligations to each other
intended TP beneficiary
named in contract (expressly or by reference) to whom performance directly runs,
having a relationship with the promisee which supports the benefit
incidental TP beneficiary
not named in the contract, indirectly benefitting; no rights under contract
creditor beneficiary
pre-existing obligation owed by promisee which contract is being used to satisy
all or part of
donee beneficiary
performance is a gift; no rights against promisee
vesting
rights become TPB's when learn of promise and take some action indicating assent
to it
vesting effect
TPB can enforce rights against promisor as exist at time of vesting
elements of assignment
(1) description of rights and (2) words of present transfer
effect of assignment
terminates rights of assignor and transfers to assignee
limitations on assignment
may not assign if: prohbited by law or if assignment materially: increases other
party's risk, changes other party's duty, impairs other party's chance of obtai
ning return performance
revocability of assignment
assignment revocable until vested
elements of delegation
(1) identity of delegate, (2) consideration
effect of delegation
if consideration, delegate is primarily responsible for performance of delegated
duty; delegator is surety in any event
limitations on delegation
may not delegate if: (1) prohibited by law; (2) prohibited by contract clause; (
3) personal duties unless obligee consents
bona fide purchaser for value
if a party pays fair value for property and without any notice of defects in tit
le, the property is rightfully theirs.
expectation damages
designed to put the non-breaching party in the position it would have been in if
the contract had been performed.
expectation damage calculation
standard remedy + incidental damages + consequential damages - mitigation
breach
a failure to perform or poor performance of a matured duty
lost volume recovery rule
if there is (1) large inventory and (2) large demand for the product, the seller
may recover the profit lost on a breached sale