1. Note whether this transaction is governed by UCC or the Restatement. 2. Does the Statute of Frauds apply?

The contract must be in writing if it is in regard to land, if by its nature it takes more than one year to perform, or if it is in regard to goods of greater than $500 value.

Is there a contract?
Was there an Offer? • Were the terms specific? • Did the offer indicate the party’s intent to be bound?


Was there an Acceptance? • Was there acceptance to exact terms of the offer pursuant to mirror image rule? • If not, can UCC 2.207 or the parties’ performance be used to imply a contract? • Was the acceptance made according to offer’s to instructions (note silence can never be acceptance)? • Was the acceptance made within time specified? • Does the mailbox rule apply? Yes Was there Consideration? -bargained for; has legal value No


No contract


Was there justified, detrimental reliance so that §90 Promissory Estoppel applies? Was there benefit conferred?


Yes Are all of the material terms agreed on? No

Yes THERE IS AN ENFORCEABLE CONTRACT • What are Material Terms? • Unilateral or Bilateral? • Was there an outright breach or is it another problem?

No • Yes Were parties far enough in negotiations to implicate a contract to negotiate in Good Faith? Was such a contract explicit? Was an option created by partial performance of acceptance?

victim can recover – GO TO DAMAGES Is there vagueness/ambiguity in contract? Can the Courts fill in vague/ambiguous terms Yes (Note: the court will not fill in material terms) according to: • Writing in the contract • Past performance of the contract • Past dealing in other contracts • Usage/Custom No Can we use Parol Evidence to clarify? -fully integrated(FI) writing? (4crns v Corbin) -merger clause implies full integration -if NOT FI: consistent.Was there Substantial Breach? Yes Was there fraud. then don’t allow terms If courts cannot interpret contract themselves and parol evidence cannot be admitted. duress or unconscionability? Yes Breach is excused No Was there a change in circumstances or failure of a substantial assumption of the contract? Yes No Breach is excused Could there be a waiver? Was the breach excused by implication of past performance? Yes Breach is excused No Breach unexcused. the contract will be void for vagueness. . additional terms? -different terms are not considered -naturally or certainly expected inclusion? -if YES.

always restitution and fairness Was the mistake Scribner’s Error or General Unilateral? S. U2.203 Yes Valid Excuse of performance . Contract enforceable Risk allocation: R154.U.E. court will refuse to enforce it. and only the written document is defective. Also note that risk is allocated depending on fairness. court will also see whether risk has been allocated contract itself.302 Could also argue breach of good faith U1. a meeting of minds occurred and the contract is enforceable on original understood terms. R208. R155 Contract is voidable under R153 Contract is voidable if party does not bear risk of mistake by R154. R 205 Did dealings breach Good Faith? There is an implied warranty of good faith in every contract R205.Was there Mistake? Mutual R152 Unilateral R153 Was the mistake as to a basic assumption? Yes Contract Voidable No G.203. U1. Was there a SURPRISE? If contract term is unconscionable. Did the other party know or have reason to know of the mistake? Yes No If parties have agreed to terms.

§148 Under the UCC. 2.Is MODIFICATION or WAIVER an issue? If covered by UCC.209 If covered by Restatement. modification unenforceable . no consideration is necessary for a waiver if it is in good faith AND it is written Was there consideration given for the modification? No Yes Was the modification sought in good faith due to changed circumstances? No Was the modification based on Waiver? No Yes Yes Modification is enforceable Modification is enforceable Modification is unenforceable Yes Was waiver revoked with sufficient notice? No Waiver is enforceable Waiver properly revoked.

.Remedies Legal Equitable – when remedy at law is inadequate SPECIFIC RELIEF DAMAGES Is there a liquidated Damages Clause in the contract? Yes No Are the liquidated damages a fair estimate of expectation damages? No Yes Injunction Specific Performance Look to Expectation Damages which are the benefit of the bargain. new venture). or • Excessive given circumstances? No Yes Court will enforce liquidated damages Is specific performance of the contract will be awarded ONLY if: • Contract is clear • The remedy at law is inadequate • There is mutuality of performance • Uniqueness makes it impossible to assess damages Expectation Damages awarded Reliance damages awarded intended to put the victim where he would be had the contract never been made.e. • Uncertain (i. intended to put the victim where he would be if the contract had been performed: Are they either: • $0 or negative in amount. These can include: • Lost opportunity • Difference between market value and value as is NOTE: • No punitive damages • No damages for mental distress • Has everyone mitigated/covered? • RESTITUTION always an option .

OR • Benefit knowingly conferred but not under contract? Yes No Is Plaintiff the breacher? Yes Damages will be benefit conferred but limited to contract price No No Restitution damages Damages will be the amount of benefit conferred.Restitution Damages Has there been: • Unjust Enrichment. regardless to whether • Lower price was specified in contract. or • Contract would have resulted in a loss . • Partial Performance.

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