CONTRACTS – FALL 2002
Professor Neustadter
Restatement
Contract Restatement 1
A contract is a promise or set of promises for the
breach of which the law gives remedy, or the
performance of which the law in some way
recognizes as a duty
Restatement 17 Requirement of a bargain
1. Except as stated in (2), the formation of
contract requires a bargain in which there
is a manifestation of mutual assent to the
exchange and a consideration
2. Whether or not there is a bargain a
contract may be formed under special
rules applicable to formal contracts.
Definiteness in a Restatement 33
contract 1.Even though a manifestation of intention is
intended to be understood as an offer, it cannot be
accepted so as to form a contract unless the term
of contract are reasonable simple
2. The terms of a contract are reasonably certain if
they provide a basis for determining the existence
of a breach and for giving appropriate remedy
3. The fact that one or more terms of a proposed
bargain are left open or uncertain may show that a
manifestation of intention is not intended to be
understood as an offer or an acceptance
Offer There must be intent to enter into a bargain and a
definiteness of terms.
Restatement 24 – An offer is the manifestation of
willingness to enter into a bargain, so made as to
justify another person in understanding that his
assent to that bargain is invited and will conclude
it. To be sufficient as an offer there must be intent
to enter into the bargain and a definiteness of
terms.
Restatement 26 Preliminary Negotiations
A manifestation of willingness to enter into a
bargain is not an offer if the person to whom it is
addressed knows or has reason to know that the
person making it does not intend to conclude a
bargain until he was made a further manifestation
of assent
Advertisements sound like offers, but usually are
just invitations to make a deal (Donovan v. RRL).
Exceptions are when the offer is definite in terms,
UCC
3. § 2-204. Formation in General.
a. (1) A contract for sale of goods
may be made in any manner
sufficient to show agreement,
including conduct by both parties
which recognizes the existence of
such a contract.
b. (2) An agreement sufficient to
constitute a contract for sale may
be found even though the moment
of its making is undetermined.
c. (3) Even though one or more
terms are left open a contract for
sale does not fail for
indefiniteness if the parties have
intended to make a contract and
there is a reasonably certain basis
for giving an appropriate remedy.
§ 2-305. Open Price Term.
a. The parties if they so intend can conclude a
contract for sale even though the price is not
settled. In such a case the price is a reasonable
price at the time for delivery if
1. Nothing is said as to price; or
2. The price is left to be agreed by the parties and
they fail to agree; or
3. The price is to be fixed in terms of some agreed
market or other standard as set or recorded by a
third person or agency and it is not so set or
recorded.
§2-204. Formation in General: A contract for a
sale of goods may be made in any manner
sufficient to show agreement, including conduct
by both parties which recognizes the existence of
such a contract.(3)- even though one or more of
the terms are left open a contract for sale does not
fail for indefiniteness if the parties have intended
to make a contract and there is a reasonably
certain basis for giving an appropriate remedy.
§ 2-205. Firm Offers.
1. An offer by a merchant to buy or sell goods in a
signed writing which by its terms gives assurance
that it will be held open is not revocable, for lack
of consideration, during the time stated or if no
time is stated for a reasonable time, but in no
event may such period of irrevocability exceed
three months; but any such term of assurance on a
form supplied by the offeree must be separately
signed by the offeror.
1a. Merchant 2-104(1)– means a person who
 circ. indicate intention, a specific action is invited
without further communication, and over-
acceptance is unlikely.
Termination of the By Offeror-
offer 1.Revocation prior to acceptance 2. Expressly
revoked, 3. Conduct – if you learn the offer is no
longer available.
Restatement 36 – An offeree’s power of
acceptance may be terminated by:
a. rejection or counter-offeror by the offeree
b. Lapse of time
c. Revocation by the offeror
d. Death or incapacity
Restatement 39 – Counter-offers (2) An offeree’s
power of accpt is terminated by his making of a
counter-offer, unless the offeror has manifested a
contrary intention or unless the counter-offer
manifests a contrary intention of the offeree.
Acceptance Common Law – Must have mirror image.
The unequivocal assent to the terms of the offer.
A bilateral contract requires a return promise
while a unilateral contract requires complete
deals in goods of the kind involved in the
transaction/ or otherwise by his occupation holds
himself out as having knowledge or skill peculiar
to the practices or goods involved in the
transaction (read broadly, anyone in business
might be considered merchant in this definition)/
or to whom such knowledge or skill may be
attributed by his employment of an agent or
broker or other intermediary who by his
occupation holds himself out as having such
knowledge or skill.
2a. Signed - includes any symbol executed or
adopted by a party with present intention to
authenticate a writing.
§ 2-206. Offer and Acceptance in Formation of
Contract.
(1) Unless otherwise unambiguously indicated by
the language or circumstances
(a) an offer to make a contract shall be
construed as inviting acceptance in any manner
and by any medium reasonable in the
circumstances;
(b) an order or other offer to buy goods for
prompt or current shipment shall be construed as
inviting acceptance either by a prompt promise to
ship or by the prompt or current shipment of
conforming or non-conforming goods, but such a
shipment of non-conforming goods does not
constitute an acceptance if the seller seasonably
notifies the buyer that the shipment is offered only
as an accommodation to the buyer.
(2) Where the beginning of a requested
performance is a reasonable mode of acceptance
an offeror who is not notified of acceptance within
a reasonable time may treat the offer as having
lapsed before acceptance.
2-207 – Additional Terms in Acceptance or
Confirmation
2-207 – (1) A definite and seasonable expression
of acceptance or a written confirmation which is
sent within a reasonable time operates as in
acceptance even though it states terms additional
 performance. Can be through a verbal promise,
implied by conduct, an act signifying a promise,
and sometimes silence.
Restatement 32
In case of doubt an offer is interpreted as inviting
the offeree to accept either by promising to
perform what the offer requests or by rendering
the performance, as the offeree chooses
Restatement 50 - Acceptance of an offer is a
manifestation of assent to the terms thereof made
by the offeree in a manner invited or required by
the offer.
Restatement 53 – Acceptance by performance;
Manifestation of intention not to accept.
Restatement 54 – Acceptance by performance
Restatement 56 – Acceptance by promise
Must notify offeror using reasonable diligence of
acceptance. Communication is key.
Restatement of 62 – Inviting Performance of
Promise
When given the option of promise or
performance, If you chose to accept by
performance and you start the work, then you are
bound to complete the work
Revocation An offeror may expressly revoke an offer as long
as it is communicated to the offeree prior to a
timely acceptance. It is effective upon receipt.
Indirect Restatement 43 – Indirect Communication of
Revocation revocation. An offeree’s power of accept is
terminated when the offeror takes definite action
inconstant with an intention to enter into the
proposed contract and the offeree acquires reliable
information to that effect.
Mailbox rule Restatement 40
Acceptance is effective upon dispatch. The
minority rule is acceptance is effective upon
receipt.
Termination, rejection, or counteroffer is not
effective until received by offeror.
* If the offeree sends the rejection then the
acceptance  no contract if rejection is 1st.
* If offeree sends accept then rejection  contract
no matter which order received.
to or different from those offered or agreed upon,
unless acceptance is expressly made conditional
on assent to the additional or different terms.
(2) The additional terms are to be construed as
proposal for addition to the contract. Between
merchants such terms become part of the contract
unless:
a. The offer expressly limits acceptance to the
terms of the offer
b. They materially alter it
c. Notification of objection to them has already
been given or is given within a reasonable
time after notice of them is received.
(3) Conduct by both parties which recognizes the
existence of a contract is sufficient to establish a
contract for the sale although the writing of the
parties do not otherwise establish a contract. In
such a case, the terms of the particular contract
consist of those terms on which the writings of the
parties agree, together with any supplementary
terms incorporated under any other provisions of
this act.
SEE CHART
2-309 – (1) The time for shipment or delivery or
any other action under a contract if not provided
in this article or agreed upon shall be a reasonable
time
(2) Where the contract provides for successive
performances but is indefinite in duration it is
valid for a reasonable time but unless otherwise
agreed may be terminated at any time by either
party
(3) Termination of a contract by one party except
on the happening of an agreed event requires that
reasonable notification be received by the other
party and an agreement dispensing with
notification is invalid if operation would be
unconscionable.
The UCC rejects this rule
Intention/Capacity Restatement 12 – Capacity to Contract
Restatement 15 – Mental illness/defect
Restatement 16 – Intoxicated persons
Implied in Fact Restatement 4- How a promise may be made
Contracts A promise may be stated in words either oral or
written, or may be inferred wholly or partly from
conduct.
* If the promises of the parties are inferred from
their acts or conduct, or from words that are not
expressly words of agreement the contract is said
to be implied in fact. Although implied these are
valid contracts – mutual assent is inferred by real.
Consideration That which is bargained for and given in exchange An implied promise can serve as consideration
for a specified return promise. At early stages this when a promise is not exclusively conveyed
was defined as benefit received and detriment 2-306 – Output, Requirements and Exclusive
suffered. Dealings
Restatement 71 - Requirement of Exchange; A. A term which measures the quantity by the
Types of Exchange output of the seller or the requirements
(1) To constitute consideration, a performance or of a buyer means such actual output or
a return promise must be bargained for. requirement as may occur in good
(2) A performance or return promise is bargained faith, expect that no quantity
for if it is sought by the promisor in exchange for unreasonably disproportionate to any
his promise and is given by the promisee in stated estimate or in the absence of a
exchange for that promise. stated estimate to any normal or
(3) The performance may consist of otherwise comparable prior output or
(a) an act other than a promise, or requirements may be tendered or
(b) a forbearance, or demanded
(c) the creation, modification, or B. Lawful agreement by either the seller or
destruction of a legal relation. the buyer for exclusive dealing in the kind
(1) The performance or return promise may of goods concerned imposes unless
be given to the promisor or to some other otherwise agreed an obligation by the seller
person. It may be given by the promisee to use best efforts to supply the goods and
or by some other person. by the buyer to use best efforts to promote
their sale
Restatement 79 (Adequacy of Consideration;
Mutuality of Obligation)
If the requirement of consideration is met, there is
no additional requirement of:
1. A gain, advantage, or benefit to the promisor
or a loss, disadvantage, or detriment to the
promisee; or
2. Equivalence in the values exchanged; or
3. Mutuality of obligation
Bargain Promises Bargains without consideration that are not 2-205 - if it’s a firm offer it is held open without
enforceable. Includes: consideration
1) nominal consideration
2) surrender or forbearance from asserting a legal
claim
3) Illusory promise
4)Promises to do what you are legally obliged to
do.
Promissory Restatement 90 Promise reasonably inducing
Estoppel definite and substantial action:
A promise/ (has someone made a promise) which
the promisor should reasonably expect to induce
action or forbearance on a promisee or person
 (should person who made the promise reasonably
be expected that promise would induce someone
else to act or not act) and which does induce such
action or forbearance/ (Did promise induce action
or forbearance) is binding if injustice can be
avoided only by enforcement of the promise (can
we avoid injustice only by enforcing promise).
Option Contract Restatement 25: An option contract is a promise
which meets the requirements for the formation of
a contract and limits the promisor’s power to
revoke an offer.
Restatement 37 – Termination of Power of
Acceptance Under option contract
Restatement 45 Option contract created by
part performance or tender
2. (1)Where an offer invites an offeree to accept by
rendering a performance and does not invite a
promissory acceptance, an option contract is
created when the offeree tenders or begins the
invited performance or tenders a beginning to it
3. (2)The offeror’s duty of performance under any
option contract so created is conditional on
completion or tender of the invited performance
in accordance with the terms of the offer
Restatement 87 – Option Contract
4. An offer/ which the offeror should reasonably
expect to induce action or forbearance of a
substantial character on the part of the offeree
before acceptance (important because it must
be substantial and that you could reasonably
expect) /and which does induce such action or
forbearance /is binding as an option contract to
the extent necessary to avoid injustice.
Recession, Restatement 89 – Modification of Executory
Modification, Contract: A promise modifying a duty under a
Waiver and contract not fully performed on either side is
Settlement binding;
a) if the modification is fair and equitable in view
of circ not anticipated by the parties when the
contract was made
b) to the extent provided by the statute
c) to the extent that justice requires enforcement
in view of material change of position in reliance
of the promise.
Restatement 74- Settlement of claims
Statute of Frauds Restatement 139 – Enforcement by virtue of
action in reliance
A.A promise which the promisor should
reasonably expect to induce action or forbearance
on the part of the promisee or a third party and
which does induce the action or forbearance is
enforceable notwithstanding the statute of frauds
if injustice can be avoided only by enforcement of
the promise. The remedy granted for breach is to
be limited, as justice requires.
§ 2-205. Firm Offers.
1.An offer by a merchant to buy or sell goods in a
signed writing which by its terms gives assurance
that it will be held open is not revocable, for lack
of consideration, during the time stated or if no
time is stated for a reasonable time, but in no
event may such period of irrevocability exceed
three months; but any such term of assurance on a
form supplied by the offeree must be separately
signed by the offeror.
1a. Merchant – means a person who deals in
goods of the kind/ or otherwise by his occupation
holds himself out as having knowledge or skill
peculiar to the practices or goods involved in the
transaction (read broadly, anyone in business
might be considered merchant in this definition)/
or to whom such knowledge or skill may be
attributed by his employment of an agent or
broker or other intermediary who by his
occupation holds himself out as having such
knowledge or skill.
2a. Signed - includes any symbol executed or
adopted by a party with present intention to
authenticate a writing.
2-209:Modification, Rescission and Waiver
1) an agreement modifying a contract within this
Article needs no consideration to be binding.
2)A signed agreement which excludes
modification or rescission except by a signed
writing cannot be otherwise modified or
rescinded, but except as between merchants such a
requirement on a form supplied by the merchant
must be separately signed by the other party…
§ 2-201. Formal Requirements; Statute of
Frauds.
2. Except as otherwise provided in this
section a contract for the sale of goods for
the price of $500 or more is not
enforceable by way of action or defense
unless there is some writing sufficient to
indicate that a contract for sale has been
made between the parties (all that is
required is writing giving us some
B.In determining whether injustice can be avoided
only by enforcement of the promise, the following
circumstances are significant
1. The availability and adequacy of other
remedies, particularly cancellation and
restitution
2. The definite and substantial character of
the action or forbearance in relation to the
remedy sought
3. The extent to which the action or
forbearance corroborates evidence of the
making and terms of the promise, or the
making and terms are otherwise established
by clear and convincing evidence
4. The reasonableness of the action or
forbearance
5. The extent to which the action or
forbearance was foreseeable by the
promisor
Restatement 110 – Classes of Contracts Covered
a) contract of an executor or administrator to
answer for a duty of his decedent
b) contract to answer for the duty of another
c) Contract made upon consideration of
marriage (pre-nuptial)
d) Contract for the sale of an interest in land
e) Contract that is not to be performed
within 1 year from the making thereof
evidence that writing is based on some
real transaction. Does not have to be true
representative of what it is about.
Quantity must be there, but not exactly
accurate) and signed by the party against
whom enforcement is sought (letterhead
might be sufficient) or by his authorized
agent or broker. A writing is not
insufficient because it omits or incorrectly
states a term agreed upon but the contract
is not enforceable under this paragraph
beyond the quantity of goods shown in
such writing. (buyer’s purchase order and
seller’s acknowledge form should be read
together for contract to be sufficient)
3. Between merchants (person who has
knowledge or skills pertaining to
practices) if within a reasonable time a
writing in confirmation of the contract
and sufficient against the sender (it is
enforceable under the statute. Asking if
confirmation letter is enough to hold
sender under subsection 1. Must also
look at 2-201 to see if it is sufficient
against the sender) is received and the
party receiving it has reason to know its
contents, it satisfies the requirements of
subsection (1) against such party unless
written notice of objection to its contents
is given within 10 days after it is received.
4. A contract which does not satisfy the
requirements of subsection (1) but which
is valid in other respects is enforceable
i. if the goods are to be specially
manufactured for the buyer and are
not suitable for sale to others in the
ordinary course of the seller's
business and the seller, before
notice of repudiation is received
and under circumstances which
reasonably indicate that the goods
are for the buyer, has made either a
substantial beginning of their
manufacture or commitments for
their procurement; or
ii. if the party against whom
enforcement is sought admits in his
pleading, testimony or otherwise in
court that a contract for sale was
made, but the contract is not
enforceable under this provision
beyond the quantity of goods
admitted; or (will not be on test
though)
iii. with respect to goods for which
payment has been made and
 accepted or which have been
received and accepted (Sec. 2-
606).

Misrepresentation Fraudulent or material misrepresentation is always

& Non-disclosure a defense. Nondisclosure is usually not a defense
unless the parties were in a relationship of trust.
Restatement 159 – a misrepresentation is an
assertion that is not in accord with the facts
Restatement 161 – when non-disclosure is
equivalent to an assertion
Restatement 162 – When a misrepresentation is
fraudulent or material:
1)a misrepresentation is fraudulent if the maker
intends his assertion to induce a party to manifest
his assent and the maker
a)knows or believes that the assertion is not in
accord with the facts, or
b)does not have the confidence that he states or
implied in the truth of the assertion, or
c)knows that he does not have the basis that he
states or implied for the assertion.
2)a misrepresentation is material if it would be
likely to induce a reasonable person to manifest
his assent, or if the maker knows that it would be
likely to induce the recipient to do so.
Restatement 164 – When misrep makes a
contract voidable.

Duress A contract is voidable if it is induced by wrongful

threats. Undue influence is unfair persuasion of a
party who is under the domination of the person
exercising the persuasion or who by virtue of the
relation b/t them is justified in assuming that that
person would not act in a manner inconsistent with
his welfare.
a. § 175 When Duress by Threat
Makes a Contract Voidable
i. If a party's manifestation
of assent is induced by an improper threat by
the other party that leaves the victim no
reasonable alternative, the contract is
voidable by the victim.
ii. If a party's manifestation
of assent is induced by one who is not a party
to the transaction, the contract is voidable by
the victim unless the other party to the
transaction in good faith and without reason
to know of the duress either gives value or
relies materially on the transaction.
§ 176 When a Threat Is Improper
A threat is improper if
1. what is
threatened is a crime or a tort, or the
threat itself would be a crime or a tort if
it resulted in obtaining property,
 2. what is
threatened is a criminal prosecution,
3. what is
threatened is the use of civil process and
the threat is made in bad faith, or
4. the threat is a
breach of the duty of good faith and fair
dealing under a contract with the
recipient.
A threat is improper if the resulting exchange is
not on fair terms, and
5. the threatened act
would harm the recipient and would not
significantly benefit the party making the
threat,
6. the effectiveness
of the threat in inducing the manifestation
of assent is significantly increased by prior
unfair dealing by the party making the
threat, or
7. what is
threatened is otherwise a use of power for
illegitimate ends.
§ 177 When Undue Influence Makes a
Contract Voidable
1.Undue influence is unfair persuasion of a
party who is under the domination of the
person exercising the persuasion or who by
virtue of the relation between them is
justified in assuming that that person will not
act in a manner inconsistent with his welfare.
2. If a party's manifestation of assent is
induced by undue influence by the other
party, the contract is voidable by the
victim.
3. If a party's manifestation of assent is
induced by one who is not a party to the
transaction, the contract is voidable by the
victim unless the other party to the
transaction in good faith and without
reason to know of the undue influence
either gives value or relies materially on
the transaction.

Mistake Restatement 154 – When a party bears the risk of

a mistake
1.A party bears the risk of mistake when:
a. The risk is allocated by him by agreement
of the parties or;
b. He is
aware at the time the contract is made, that
he has only limited knowledge with
respect to the facts to which the mistake
related but treats his limited knowledge as
sufficient.
c. The risk
 is allocated to him by the court on the
ground that it is reasonable in the
circumstances to do so
Mutual Mistake When partied made a contract under a shared
mistake concerning a basic assumption of fact on
which the contract was made. Adversely affected
party is usually entitled to rescind unless he bore
the risk
Restatement 152 – When mistake by both parties
make a contract voidable
a. Where a mistake of both parties at
the time a contract was made as to a basic
assumption on which the contract was made
had a material effect on the agreed exchange
of performances, the contract is voidable by
the adversely affected party unless he bears
the risk of the mistake under the rule stated in
154
b. In determining whether the
mistake has a material effect on the agreed
exchange of prefaces, account is taken of any
relief by way of reformation, restitution, or
otherwise
Unilateral Mistake When the mistake was made by one party –
rescission is allowed by mistaken party if the
other party knew, or had reason to know of the
mistake.
Restatement 153 – When mistake of one party
makes a contract voidable
c. Where a mistake of one party at
the time a contract was made as to a basic
assumption on which he made the contract
has a material effect on the agreed exchange
of performance that is adverse to him, the
contract is voidable by him if he does not
bear the risk of the mistake under the rule in
154 and;
i. The effect of the mistake
is such that enforcement of the
contract would be unconscionable
ii. The other party had
reason to know of the mistake or his
fault caused the mistake

Unconscionable Usually involves an unfair surprise. Modern rule
in adhesion contract is to hold parties only to
those provisions which are not unduly surprising.
Unconscionability must exist at the time the
contract is made. This includes:
Exculpatory clauses:
 for intentional wrongs
 Liability for negligence
Disclaimers and limitations of warranty liability
§ 2-302. Unconscionable contract or Clause.
1. If the court as a matter of law finds the contract
or any clause of the contract to have been
unconscionable at the time it was made the court
may refuse to enforce the contract, or it may
enforce the remainder of the contract without the
unconscionable clause, or it may so limit the
application of any unconscionable clause as to
avoid any unconscionable result.
2. When it is claimed or appears to the court that
the contract or any clause thereof may be
unconscionable the parties shall be afforded a
reasonable opportunity to present evidence as to
its commercial setting, purpose and effect to aid
the court in making the determination.