BARGAIN THEORY -- (need promise, benefit, consideration) 1. prelim negotiations: Invitation to make an offer Longernan v. Solenick 2. OFFER a.

Offer good for reasonable time if not specific time noted b. Rstmt §26: standard is what the reasonable o’or would have understood to be an offer - is “I accept” is sufficient to conclude the deal c. target not specified: doesn’t mean it isn’t an offer d. statements of opinion are not offer e. needs to be clear and complete 3. ACCEPTANCE: meeting of the minds? 4. NOT ACCEPTANCE a. Lapse: Offeror always has right to set time limits: usually 7 days and time normally needed for letter to arrive - if not time set, it is end of reasonable time. b. Revocation: a. Mailbox Rule: Acceptance effect on dispatch, Revocation effect on receipt Henthorne v. Frasier b. Medium of Acceptance: i. offeror may impliedly accept other mediums than one which offer made ii. UCC: offeror invites acceptance by any reasonable means (p.58-9). Offeror must say if medium is not ok. c. When o’or acts in a way that is counter to or inconsistent to the continuation of the offer then it is revoked if o’ee has constructive of actual knowledge of revok. Normaile v. Miller c. Rejected/Counter offer. Normaile v. Miller 5. CONSIDERATION (BARGAIN THEORY?) a. Is it a Sealed Contract/Formal Contract? a. Seal (15 states). Extends statute of limitation b. Not for Sales of Goods b. Informal Contract: need consideration a. .Benefits/Detriments -Implied detriment could be met with benefit to the promisor -Not using legal right to do something is a detriment b. Restatement §79 blew away Hammer. If bargain there is no need for benefit and detriment, but there have been recent cases (p.101) where benefit-detriment used. c. Bargain Benefit must induce detriment which induces the benefit. Benefit and detriment are the same: quid pro quo. c. Must be mutual -- See DuPont v. Clairborn d. Must be simultaneous -- See Plowman 6. DAMAGES a. Expectation

Dany Dare II. Probability of reliance is critical factor D. Grenier 3. Charities See Allegheny. Incomplete bargaining B. Implied from conduct and intent of parties C. . it does induce action 4. Coretta Scott King 1. Commercial 1. c) d) IV. action 4. Prevent injustice C. Damages = Expectation and Quantum meruit Implied in law A. detrimental reliance (legal right) See Grenier v. Damages = Restitution (out of pocket) Moral Consideration A. Made up by court B. Promise 2. Reasonably foreseen reliance. Universal Computers 2. III. promise 2.Restitution A. Doesn’t have to be legal entitlement See Katz v. consider this!! I. United Jewish Appeal. foreseeable that it induces action 3. Promise made after the act B. equitable estoppel in Ricketts) 1. Implied in fact A. Enforcement limited to as justice requires B. Prevent unjust enrichment C. Material benefit to promisor Promise is the consideration Damages = Expectation Promissory Estoppel -. §90!!!!! 1. Family (See also.ALTERNATIVE TO BARGAIN THEORY: If no consideration. injustice only avoided by enforcement of promise 5.

Kmoch 2. reward 1. Shoneys 1. Enforcement limited as justice so requires C. §87 a) reasonable reliance b) reasonable foreseeable c) Substantial character of reliance d) binding to extent to avoid injustice D. promise 2. injustice only avoided by enforcement 5. Offers are fully revocable before acceptance II. Pre-Acceptance Reliance §90 See Drennan 1. foreseeable that it induces action 3. Exceptions A. it must state irrevocability .at most it can be three months 5. Option Contracts §87 See. it induces action 4. Unilateral contracts lost dog. cannot revoke §45 B. If form provided by o’ee. One merchant 3. o’or signs twice (bottom and firm statement) . Firm Offer§2-205 See Mid-South Packers v. Nominal Consideration Berryman v.REVOCATION OF OFFERS I. Red Owl 1. Hoffman v. Once performance begun. Sale of goods only 2. in writing 4.

alt and throw out (b) Say §2-207 doesn’t apply ∴offeror’s terms gover (c) Knock Out Rule (seller’s form was offer) See Diacom . 3. Mirror Image Rule . (3) Indemnification clause: material alteration b/c not paying up for your faults See Dale Horning e) Different (non-material) Terms (1) 3 Ways to treat additional terms (1 + 2 most common) (a) Treat as additional. Almost like a first form rule 2. Common Law . choice of law or forum. find as mat. Performance/silence are not assent.favors the seller See Poel (rubber seller) 1. II. Look for Offer .Last shot rule a) Each new form is a counter offer b) Acceptance only if mirror image c) Taking of goods = acceptance of invoice terms B. UCC §2-207 . Terms are in unless a) one is not a merchant b) offer expressly limited the terms c) there has been a notification of objection d) material alteration (1) Measure by surprise and hardship (2) Material alterations: Warranty limitations. apply §2-207.Common law definition Find Acceptance A.BATTLE OF THE FORMS I. Hercules 1.favors the buyer/o’or See Brown v.

if writing not integrated 2. Parole evidence allowed to establish 1. argue ambiguous document B. Williston’s Rule a) Merger clause? (1) Yes. Can’t challenge or contradict written k B. Subject must be distinct V.Presume total integration. lack of consideration III. meaning of the writing (vagueness = partial integration 4. whether writing complete (collateral agreements) 3. if fully integrated disallows prior and contemporaneous oral but C. COMMON LAW: Restatement 214 A. Assumes partial integration B. allows contemporaneous written IV. UCC §2-202 A. but allow for intro of evidence of collateral agreements (b) No -. mistake. Contract must be A. Collateral Agreement Rule A. but other terms are excluded. illegality. duress. .PAROL EVIDENCE RULE I. To get Parol evidence in: A. document is complete in what terms are included.Allow Parole evidence II. written B. does writing look complete on it’s face (4 corners rule)? (a) Yes -. Assumes partial integration B. invalidating causes a) fraud. then it’s complete (2) No. fully integrated 1.

. use of civil process w/bad faith 4. π not have opportunity to talk with counsel Misrepresentation See Syester v Banta A.DEFENSES Unconscionability gets you out bad clause Other defenses get you out of k I. Unfair Surprise C. §208 B. Jones B. psychological dominance 2. Will push courts to look beyond merger clause Unconscionability -. Improper threats (§176) 1. criminal prosecution 3. V. Warrantiesare implied §2-314. Look for: See Odurizzi 1. §161 : affirmative duty to disclose See Hill v. use of power for illegitimate ends Undue Influence A. III. can be done innocently. hearer suffers a loss Non-Disclosure A. breach of duty of good faith See Totem Marine v. negligently. believed by hearer D. §2-315 C. hearer acts E. Unfair terms and 1. confidential relationship B. Material FACT B. 2 types: 1. benefit to the accused 4. knowingly C. IV.scalpel A. §2-203. crime or tort 2. Alyeska B. Material fact D. harms π w/o benefit to ∆ 2. suseptability 2. Causes (at least in part) π to act E. prior unfair dealings 3. Duress -. opportunity 3.§175 A. Oppression II.

Materiality . independant See Reading pipe case 2. III. if not. BREACH. Wording off the k 3. Promise See Jones (no permit for landscaping) 5. Condition 1. breach is partial 1. willful/negligent behavior of breacher 6. how reasonable were the parties expectations 2. II. breach is total. To Get out of a Condition 1. Waiver See US Fidelity 3. hardship on breacher in terminating k 5. a little of both B. Spindler 6. Cts prefer to keep it alive B.CONDITIONS CHART What was promised? What was done? Condition or a promise? A. Look at the facts. JUSTICE AND EQUITY to determine if clauses are 1. dependent 3.6 months) 4. injured party’s compensation so far 3. Anticipatory Breach See Sackett v. Excuse 2.if material. Materiality 7. how far along in performance 4. Substantial Performance See Inman (claim. Forfeiture See JNA Realty (prevent eviction) Breach A. extent injured party will obtain material benefits 2. IV. will breacher perform rest of k .I.

CONTRACT IMPLIED IN FACT . §90 .I. MORAL CONSIDERATION C. IV. CONTRACT IMPLIED IN LAW Quantum Meruit (Court will decide worth of k) A. IMPLIED IN FACT Reliance Damages (out of pocket and loss of opportunities) A. DAMAGES Expectation Damages (pay as if k had taken place) A. II. Can also request specific performance here! Restitution Damages (out of pocket) A. CONTRACT IMPLIED IN LAW B. III.PROMISSORY ESTOPPEL B. BARGAIN B.

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