Contracts Notes
Updated Contracts Notes
Contracts
Concise outline of contract law, including charts....
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CONTRACTS MIDTERM: CONDENSED OUTLINE
General Strategy:
Identify legal issue (typically if K exists)
Go through fact pattern chronologically using categories of analysis below
Speak hypothetically, always argue both possibilities unless you can argue 100% for one side
State general principles
Support conclusions w/cases- analogize and distinguish
| CATEGORY OF ANALYSIS | PRINCIPLES AND CASES |
|---|---|
| Answer after completed analysis of components of K. If Answer is yes, move on to # 2. |
| -An invitation to offeree to accept -Contains all essential terms (3 Ps- parties, product, price) -Ascertained by theorizing its policy consequences (Boots) -Distinguished from an invitation to treat (Johnston- price quote not binding; > Dickinson- promise not binding) -If offer is rejected, it is terminated -Option K- offer can be left open for a “reasonable” period of time -Firm offers- offer open for stipulated amount of time, often written |
| -Not essential to K, but useful to distinguish in terms of discerning offer + acceptance -If counter offer is made, it terminates original offer (Butler) |
| -If acceptance does not occur w/in a reasonable time, offer = null (Manchester Diocesan) -Revocation is valid any time before acceptance -Must be communicated to other party (Larkin) and is not binding until received (Byrne) -If no consideration, then can revoke at any time bc no K (Dickinson) |
| -When both parties agree to be bound to perform or pay DMs -Party making offer controls mode of acceptance (Eliason; Manchester Diocesan) -Must be communicated to other party, cannot be given to agent (Larkin); must be done in manner in which offeror is aware of liabilities -In retail, acceptance = when seller accepts customers’ $ (Boots) -Bilateral Ks- exchange of promises to complete their end of K -Unilateral Ks- offers made to entire world, acceptance = performance (Denton, Lefkowitz) -Cannot add a term after K is made (Lefkowitz; Eliason) -Accepting goods > silence is not acceptance (statutes for consumer protection) but it can be in CL -Battle of the forms > last K w/terms is binding- if you accept goods on terms different than desired, you may be held accountable to those terms (Butler- attempted to change this approach thru looking at all the documents to determine where there is an agreement but has not been adopted) -Written communication w/in a reasonable amount of time =acceptance even if on different terms unless acceptance is conditional on diff terms not being present, if it alters the K or if objection is already expressed (Universal Commercial Code US) -If acceptance beats attempt to revoke, then K is accepted, and vice versa -Postbox rule: offer considered accepted when it is posted (Henthorn) -Exceptions: does not apply to Option K (Howell Securities) and instantaneous technology> acceptance = when it is received (Eastern Power; Electronic Commerce Act) |
| -Something of value given by both parties that induces them to enter into a K -Cts will only enforce a promise supported by full consideration (must be reciprocal – Tobias) -Required for a K bc it is evidentiary basis of K and mechanism of accountability -An issue if parties assert there is no K, if K is vague, if nothing is exchanged, if a party tries to change terms or when party doesn’t perform K -Can be a benefit or a detriment (loss/responsibility- Hamer), but it must be something of social utility (White v. Bluett) -Good consideration: rescission and replacement of K w/new K (Gilbert Steel) (consideration = promise not to sue), performance in an open agency K -Bad consideration: burden that comes w/accepting a gift (Thomas), performance of original K (Stilk, Gilbert Steel; exception- Williams, but not yet adopted); promise made under duress (Harris; Williams), something that creates negative policy implications (Harris), lacks evidentiary basis (White v. Bluett) -A change in a term of the K must be supported by consideration (Gilbert Steel) -Cts can imply consideration based on evidence of parties conduct, operation of K and if it prevents unjust enrichment (Wood) -estoppel can be a remedy when a party attempts to revoke consideration |
| -2 forms of uncertainty: vagueness and “agreeing to agree” -“agreeing to agree” > cts typically wary of enforcing (May) but will if there is a long term relationship or mechanisms for determining a “reasonable” price (Foley) -Ks can imply terms based on parties conduct, nature of industry and external evidence (Hilias) or to support business ease (Empress Towers) but are reluctant to enforce K if parties do not agree -Cts concerned w/ unjust enrichment and degree of unfairness/surprise |
| If yes, then move on to # 3. |
| -Entitled to rescind K if breach was substantial (Bollenback) -Point of DMs is compensatory, not to punish D (except in rare cases of punitive DMs) -DMs should not impede free market -Neither P nor D should be unjustly enriched -Typically remedies are mutually exclusive (Bollenback; Anglia) -Repudiation = violation of K |
| -Starting point for DMs (Wertheim) -Restores parties to position as if K not breached -Forward looking- can include expected profit or psych benefit (can include intangible DMs) -May go further than reliance DMs -Often calculated by difference in what P would have made – what P ended up w/ (applies to warranty, e.g. Hawkins) -Don’t have to prove harm/out-of-pocket expenses -Market value> measure on day of purchase – day of breach -If market value dropped, then look to reliance or restitution |
| -Prevents unjust enrichment by K breaker -Backward looking- transfers benefit back to P -Appropriate remedy for when benefits occurred to D by mistake, under duress or coercion, to preserve life of another or to discharge a duty owed -An appropriate remedy for good faith policies but can only compensate for losses incurred after breach (Bollenback) -Typically the remedy for a rescission (cancelling of K), but may be limited in that the benefit may be gone and cannot be restored (Bollenback) -Can be awarded in cases where there is no financial loss if P has legitimate interest in preventing enrichment of D... |
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