Contracts Outline Fall 2007

BARBRI Contracts OutlineSaturday, November 10, 20071:03 PM

7 Questions of Contracts:

1.

Is there an agreement or promise?a.

Considerationb.

Promissory Estoppel2.

Is there any reason that this agreement or promise should not be enforced?3.

What are the terms of the contract?4.

Was the contract performed?5.

Excuses for Non-Performance - Is there any excuse for non-performance?6.

How do courts enforce agreements OR what are the consequences when someone first makes an agreementbut then doesn't do what was agreed to do?7.

When do people who did not make the contract have either rights or duties under the contract?Three Places of Contract Law

Article 2 of Uniform Commercial Code (UCC)

–

Legislatively Passed

If sale of "goods" =>

Goods

- tangible property that is NOT real estate, see/touch/move the objectMoveable at the time of contractNo MoneyIncludes unborn young of animals and growing crops

Things “severed from realty”

Other Contacts = Common Law/Case Law (not statutory)

Restatements and Cases

- must examine these provisions

Case law is always controlling

-

Restatement is secondary

- "never 'controlled' by the Restatement,"talk about Restatement being "

relevant to

"VocabularyCorrect use of vocabulary phrases is easiest way to create confidence in blue book and answer sheet

Seven Groups of Terms

(difference between…)

-Agreement - ContractBilateral - UnilateralCondition - DutyDelegation - NovationExpectation Interest - Reliance InterestImpossibility - Frustration of PurposeParole Evidence - Statute of FraudsRule for Exam Taking

o

If you have to make up a fact

–

do not follow the issue

o

“IF”

o

“No reasonable person could think…” –

“potentially” –

don’t do it

Special Assumpsit

–

Ds breach of an expressed contract

I)

Contract Formation

1)

Functions of Consideration

a.

Evidentiary - proof b.

Cautionary

–

mental statec.

Channeling

–

judicial enforcement

2)

Formation of Contract through Consideration Doctrine

a.

Consideration

i.

Statute of Frauds (if necessary)b.

Mutual Objective Manifestation of Intent to be Bound

(can be implied/expressed)c.

Certainty/Definiteness - Essential Terms

i.

Subject (& Quantity)ii.

Priceiii.

Time of Performance

A)

Consideration

1)

Define

:

Bargained for detriment/exchange - each party must give up a legal right andmust bargain for it

a.

Restatement 71

–

Requirements of Exchange, Types of Exchange

i.

Defines considerationb.

Issues with Consideration:i.

Amountii.

Forbearanceiii.

Past Considerationiv.

Bargained Forv.

Past Considerationc.

Can be an

act, requested promise, forbearance

d.

Restatement 81- Inducing Reliance

i.

Explain

(a)

Consideration must induce reliance

ii.

Earle v. Angel -

payment after death is sufficient (aunt paid for nephew to attend funeral)

iii.

Hammer v. Sidway

–

giving up legal right (uncle

–

restrict lawful actions)

iv.

Diamond Jim

–

fishing, wasn’t “bargained for” but was accepted

v.

Klick Lewis

–

shooting golf

2)

Amount

of Consideration/Nominal

a.

Adequacy is irrelevant

UNLESS

about two different sums of moneyb.

Investment

–

can be consideration (selling the land)c.

Ptaskis

–

inadequate but bargained for, contract acted upon by both parties

d.

Fisher v. Union Trust

–

love and affection is not enough, must bargain (deed for $1, but father didnot pay the mortgage, dollar was not bargained for)

e.

Schnell v. Nell

–

f.

Embola v. Tupula - Goldmine Plot of Land

–

investment in the land, even though inadequate,acceptable, probable loss of money was not a loan (50 for 10,000)

3)

Consideration as Gift - Generous

a.

Consideration must be bargained for cannot be gratuitousb.

Congregation Kadimah

-congregation gets money as a gift promise but two sides were notbargained for c.

Hammer v. Sidway

–

uncle requesting to give money for not drinking or gambling, giving up a legalright

4)

Forbearance

as Consideration

:

a.

Forbearance Rule [Duncan v. Black]

i.

Must be done in good faith - must uphold part of bargain, ANDii.

Claim of forbearance must have some foundationb.

Restatement 74 (pg. 222) -

REMEMBER THE "OR" "GOOD FAITH"

i.

Forbearance is NOT consideration UNLESS(a)

Uncertainty, OR(b)

Good faithii.

Exception

–

Written Tool

5)

Past Consideration

a.

Restatement 86 - Past Consideration (previously conferred) -

IMPLY A PROMISE

i.

A promise made in recognition of a benefit previously received by the promisor from thepromisee is binding to the extent necessary to prevent injusticeii.

A promise is not binding under subsection 1:(a)

If the promisee conferred the benefit as a gift or for other reasons the promisorhas not been unjustly enriched; OR(b)

To the extent that its value is disproportionate to the benefit.

6)

Bargained For Offer and Acceptance

:

a.

Whitten

–

“don’t call me,” not

bargained for even though both sides were giving up

b.