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Contracts I Outline

Contracts I Outline

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Published by James Brodie

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Published by: James Brodie on Mar 30, 2011
Copyright:Attribution Non-commercial


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Contracts Outline
Testing Strategy
5 basic terms
-1. Express K- 1 word definition… verbal2. Implied K- based at least in part on conduct3. Quasi K- equitable remedyA. equitable tells you that it isn’t K law.B. Since it is an equitable remedy, it is about doing what is fair. Any timethat something seems unfair if K law is applied, you need a paragraphon quasi-K relief… ex: promissory estoppel.4. Bilateral and Unilateral - bilateral is a K that results from an offer that isopen as to how it can be accepted. Unilateral is the kind of K that results froman offer that requires performance for acceptance.5. Executory- when a K is described as executory, it has not yet been performed.
Approach to examining a K:
1. Is there a deal?
A. To identify Offer and Acceptance Look For:i. Manifestation of mutual assent through words or conductii. Evidence that shows that the person was committed to deal.iii. What was in mind and heart is usually irrelevant- no looking for anintention of commitment, but rather an actual manifestation.iv. Look at fact pattern for the party’s communication- somethingwrong with the words needs to be picked up on.1. missing terms?2. incomplete communication?a. There is no longer a requirement that acommunication contain all of the material terms inorder to be an offer.3. ambiguous terms?a. faib. reasonablec. appropriated. in common law- the price needs to be in clear termsto have manifestation of commitment.e. in UCC- I can offer to sell a car w/o a price.4. context?a. What is the setting?i. Bargaining history?1. if there is a history that precedes thenegotiation, it adds to argument thatthis is a manifestation of commitment.ii. Advertisements?
1. General Rule- an advertisement isNOT an offer, but an invitation tomake an offer. There are exceptions,they focus on whether theadvertisement is specific about howmany of the advertised items areavailable, and specific on who canaccept it.
2. Is there revocation of the offer?
A. Lapse of Time?i. Lapse of time is the easiest way to terminate an offer ii. Watch for situation where nothing is said how long you have toaccept.1. even if there is no express time limit, the courts will imposea reasonable time limit.B. When was the Offer Made?i. How long of a gap b/w offer and acceptance?1. if too long… it may be terminatedC. If the offeror dies, the offer dies with them.D. Revoked?i. How does it happen?1. Through words or conduct of the offeror.2. the trick will always be in communicationa. Revocation is a 2-player game. Offeree must beaware.ii. When does it happen?1. Revocation must come before acceptance.iii. When CAN’T you revoke?1. when both promise not to revoke and give someconsideration for that promise2. UCC firm-offer rule- promise not to revoke offer.3. Reliance- offer has been relied on.a. Start of performance pursuant to an offer to enteinto a unilateral K. Once there has been a start of performance, it is irrevocable.3.
Is there rejection of the offer?
(not likely to see direct rejection)A. Counter Offer i. Kills deal 100%. (common law and UCC)B. Conditional Acceptancei. I accept: if, but, provided… kills offer. (common law and UCC)C. Additional Termsi. I accept, AND… (common law, but
UCC)1. Common law has mirror image rule. The acceptance mustbe exactly the same as the offer 
2. UCC § 2-207 is different.a. Sale of goods, communications don’t have toexactly match up.b. If something is added to a K for sale of goods it isnot a deal breaker…
seasonable expression of acceptance
.c. What do you do with the new term? Is it part of thedeal?i. If either person is not a merchant, then therule is that the new term is just a proposaland not a part of the deal unless it is agreedto.ii. If the parties are merchants the new term is apart of the deal unless one of them objects toit, or it is a material change.
4. Consideration
A. Historical documents had to be under a sealB. Consideration is all about manifestation of mutual assentC. Promises are part of consideration.i. Promise can be consideration for another promise.D. As a general rule, courts do not decide on the reasonableness of theamount of consideration.E. 4 Step Approach to Discuss Consideration-1. Figure out the promise in question2. Make sure you know who the promisor is and who thepromisee is.3. What was the person who made the promise asking for inexchange?a. Either a return performance, a return promise toperform, or a forbearancei. Ex: Hamer v. Sidway- no drinking or gambling until 21.4. Was this thing that was bargained for, a detriment to thepromisor, or a benefit to the promisee?a. Benefit/Detriment Theoryb. Only 3 situations where issue of detriment needs tobe discussed in answering the Q:i. 1
Situation- involving past consideration.Past consideration is not sufficient, musthave a new benefit or detriment. Stuff thatpreviously happened cannot beconsideration to promise.1. Ex: parent promised to pay for son’smedical care after the kid died…then dad decides not to pay.

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