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I. Rst 1. A contract has to be a promise or set of promises, that the law will enforce or a duty that the law will enforce. a. Mutual assent is required for a contract - Minds have to µmeet¶. RST 18 b. A bargain. Formation of K requires a bargain in which there is a manifestation of mutual assent to the exchange and consideration. Rst 17 i. Implied in fact contract Rst 19 and 22: (1) Mutual assent is derived from the actions of the parties and P must make is reasonably certain that the parties intended to contract for the surrounding circumstances. K can be implied even if the moment of inception cannot be determined ii. Expressed contract: Where the parties express openly and mutual assent is expressed II. The Offer Rst 24 1. Preliminary negotiation Rst 26 ± any communication prior to operative offer (expression of opinion, intent, letter, catalogs) 2. Solicitation - adds are not offers unless ad is clear, specific and leaves nothing open for negotiation. 3. Statement of opinion is not enforced (y¶ll recover) except making warrantee (hairy hand) 3. Written K to follow - the parties did not intend to be bound until a writing was executed III. Acceptance Rst 50, 53,54, UCC 204 1. Effect of acceptance - Once contract has been formed it freezes the terms of the K. to change terms must be a mutual agreement. 2. Manifesting assent: Offeror sets terms of K (has advantage), so court gives advantages to person who didn¶t draft write K to restore the balance. 3. Silence as acceptance Rst 69. If someone makes an offer and it benefits you and you know it is happening and know the other party was expecting you to pay. You say nothing then it is acceptance. 4.Knowledge of offer-Meeting of the minds must happen at the same time. Offeree has to know about offer in order to accept it. 5. Mode of acceptance: i. Bilateral contract - includes of promises on both sides. (e.g. I promise to buy your car and I promise to sell it to you). ii. Unilateral contract-single promise is exchange for an act. (I promise to give you $20 if you wash my car). iii. Option contract (separate consideration) Rst 25. Rst 45 by part performance (You can¶t revoke once someone has started performance. They have a reasonable time to complete performance). UCC 2-205. IV. Termination Rst.36: 1. Revocation by offeror Rst. 42 (must learn from offeror) & Rst.43 (receives reliable information that there was definite action inconsistent with intention to enter into the propose contract. They hear from someone else that the offer is off. This works). Once performance started, offeror can¶t revoke the offer. 2. Lapse of time RST 41 Option-offeree has given offeror an extra payment in return for a promise to keep the offer open and irrevocable for a period of time. The offeror if he accepts option cannot withdraw. But!! Offeree can reject or counteroffer, this does not necessarily terminate the offer. Acceptance Option contract? Rejection(rst40) Effective on Receipt Revocation (rest 42) Effective on Receipt No? ±Then mailbox applies If the acceptance overtakes the If the revocation overtakes the offer, which says acceptance is valid rejection & arrive 1st, then it is it is as if there was no offer( no on dispatch valid/ If the rejection arrives 1st contract)/ if the offer gets first then Yes? ± Then mailbox doesn¶t then the acceptance is seen as a the offeror is bound by the offer until apply and acceptance is counteroffer revocation arrives. effective on receipt 3. Mail box rule: Acceptance is effective upon proper mailing 4. Battle of the Forms: (a) A counteroffer is a rejection and acts as a new offer; (b) Mirror Image Rule - The acceptance has to look exactly like the offer, if there are new terms it is a counteroffer. See. UCC 2-207 Knock out rule -terms of K will be those on which parties agree and gap will be filled by UCC VI. Consideration Rst 71. 1. A. Sufficiency of consideration: must have value in the eyes of the law. Nominal & fictitious consideration, moral obligation & emotion isn¶t sufficient consideration. B. Adequacy - quantity of the amounts exchanged, court doesn¶t consider unless exchange of fungible goods looks so one-sided as to be a gift; it is so unreasonable as to be judged unconscionable. 2. Forbearance ± is sufficient consideration Rst74, 87 3. Illusory promise-promise is not real b\s one party has alternative perform or not Rst.77. not enforce. Exception: 1. a requirement to give notice of termination can be enough of a detriment to constitute valid consideration. 2. implied promise is enforceable (she expected D¶d make reasonable efforts to sell her merchandise: Wood v. Lucy) 4. Past consideration ± not enforced because promise was in past But exception Rst. 86 5. Preexisting duty- once a party agrees to do something under a contract, that party cannot change the terms without consideration. (can¶t get more money for the same job). Modification needs consideration and equal bargaining position Rst89 ± but no need consideration if it is done in good faith. UCC 2-209. (a) Past due monetary debts- creditor s promise to accept lesser amount or to give extra time to pay is unenforceable since there is no consideration. i. Promise ii. Defendant had a reason to expect reliance iii. 6. Promissory Estoppel Rst 90 Actual reliance on the promise iv. Enforcement is the only way to avoid injustice (aunt promised to give 1K to nephew and didn¶t but nephew spent his saved money on reliance of the gift) VII. A. REMEDIES. 1. Expectancy measure ±put P in position she would have been had K been performed. Rst 347: Damages =cost was promised ± K value of what received) + other loss (incidental and consequential) ± loss avoided by not performing. 2. Reliance measure-put P in position P was in before promise was made. Calculation - Rst 349: note can¶t be recover for pre-contract expenses. 3. Limitation on recovery: a. Certainty- damage¶d be proved with high degree of certainty. b. Foreseeability Rst.351. Damages must be reasonably supposed by the parties to be a probable result of the breach. Need t in case of natural or probable result of breach of this type of K. For consequential and incidental damages you¶ve to show parties had knowledge of these. (i) Consequential damages: cost lost biased on the breach that go beyond general damages; (II) Incidental damages: damages done to try to avoid the breach. UCC 2-702-2-709 c. Avoidability Rst.350 4 Liquidated damages Rst.356. Damages the parties set at the time of the contract. LD should be reasonable and difficult to proof of loss, not be greater then actual profit from K. Sometimes they fall into penalties, when they look so unfair. 5. Punitive damages Rst 355 If there are elements of fraud, malice, neg, elements of tort mingled with the breach then can give punitive damages 6. Buyer¶s damages ± 2-601, 2-608, 2-712., 2-713 7. Seller¶s damages ± 2-706, 2-708 B. RESTITUTION If someone is unjustly enriched at the expense of another they have to pay restitution. Used: (i) Restitution when no K (implied in law) - imposed upon parties, irrespective trier intent to prevent injustice. Requirements Rst 370 benefit conferred from P to D, D appreciates benefit, D retains benefit under circumstances unfair to allow him to do so without paying. (ii)R for breaching party (ii) R for breach of K Rst 373 (iii) breaching Plaintiff still is allowed to recover for value of work conferred. Measure of restitution Rst371. Amount of benefits is measured by what this service cost in market not results achieved. C. EQUITABLE REMEDIES y 359: Effect of Adequacy of damages o Specific performance is required when monetary values are not adequate. How do you know when this happens? y 360: the more difficult it is to collect the money or determine the amount the more likely performance will occur. VII. A.Parol evidence Rst 213, UUC 2-202, - If the parties have reduced their agreement to a writing no any extrinsic evidence. law presumes that they have included all matters that they have agreed upon and this rule forbids parties from testifying about things outside of the writing. (encourages people to put everything in the writing). Exceptions around the parol evidence. Rst. 214, 216 i. Collateral (additional) matter: an agreement sufficiently distinct from the scope of the writing that it wasn¶t integrated into k and subject matter of collateral k is consistent with the writing. To work it must be: 1. Add. agreement 2. Not contradictory to express or implied terms (can add or supplement) 3. Can¶t be something that would normally be put in writing. ii. Integration (interpretation) (partial: only part of the terms are included; fully: all of the terms are included) 2 Ways a court can determine if there is an integration: -By looking 4 corners of the k ± court cares what is written in k. -By looking at parol evidence to interpret ambiguity or explain terms of the k. 1. If Fully: You can use collateral agreements to get in additional information as long as consistent terms 2. If Partially: then consistent additional terms can enter. RST 216 acts like UCC here. i. Statute of Frauds a. Asking whether a writing is needed to make an agreement enforceable(writing of evidence of the contract works) (policy: prevent faulty memory, lying) b. NOT asking: whether a writing excludes evidence of prior negotiations (Parole Evidence Chapter 5) c. List of types of contracts that have to be in writing: (restatement 110) i. A contract of an executor or administrator to answer for a duty of his decedent (with own money) (the executor- administrator provision) 1. Anything that is answer for the person ii. A contract to answer for the duty of another (the surety provision) 1. To make it clear that you actually meant to cover someone elses debt 2. (go to the grocery store and say send me the bill for the food he buys: contract) 3. (promise to be someone¶s assurity: contract not needed to be in writing) 4. EXCEPTION: the main benefit is to benefit the assurity iii. A contract made upon consideration of marriage (the marriage provision) 1. Many jurisdictions don't allow you to be paid compensation for the promise to get married (you can¶t promise to give someone a gift if they get married unless you put it in writing) iv. A contract for the sale of an interest in land(mortgage/lease/easement) ( the land contract provisions) 1. If it is a real estate transaction 2. The sale of crops growing on land is separate from real estate. It is a sale of goods. v. A contract that is not to be performed with in one year from the making thereof (one year provision) 1. Jurisdictions have different ideas about the flexibility of the date. (includes leases for less than a year) 2. If the contract might naturally terminate within a year (it doesn¶t matter if it actually does or not) a. Employee might die (this in not natural so this is not enough to get around the rule)(unless you contract for life, then most courts say you don¶t need a writing. b. The event has to be contemplated around the contract i. So if you say if you live so long then we will «so it is contemplated. c. Some districts say µat will¶ termination clauses don¶t require a written contract others say it is an unnatural ending to the contract. vi. UCC has different rules about amounts of money 500, 1000 for leases UCC 2-201 1. Not all the essential elements have to be in the writing (only quantity, so it is hard to attack the writing) 2. Signing is really loose, symbol, company heading, 3. There are 4 ways around, specially manufactured by the seller for the buyer and the goods only have value for buyer and performance had already begun, admission to quantity, part performance (goods have been paid or acceptance has been made or down payment on indivisible item like a car), merchant who sends a confirmation of oral agreement and there is no disclaimer in 10 days gives up right to statute of frauds. d. Combining writings (tacking): i. All of the essential elements of the agreement must be there, one must be signed, and they must refer to each other so it appears meant to be together e. Attacking the integrity of the writing: To get out of this, you show that the writing doesn¶t have all the essential elements that were agreed upon i. This rule doesn¶t work under the UCC (only need quantity) f. Modifying the agreements i. Must be in the same form ii. iii. g. Mitigating Doctrines i. If there has been full performance sometimes partial ii. Estoppel (foreseeable reliance, opinions experts that say no writing is nes. There is reliance) 1. Foreseeable detrimental reliance on oral promise. It estoppes people from bring up the statute of frauds. iii. Restitution: one won¶t benefit unjustly from the other. (gets around statute of frauds) Parol evidence a. If the parties have reduced their agreement to a writing. Our law presumes that they have included all matters that they have agreed upon and this rule forbids parties from testifying about things outside of the writing. (encourages people to put everything in the writing) b. Only works for agreements before the writing, not after the writing c. Exceptions around the parol evidence i. Collateral matter: something that is off to the side that would not have been normally put into the writing 1. To work it must be: 1. Collateral agreement 2. Not contradictory to express or implied terms (can add or supplement) 3. Can¶t be something that would normally be put in writing. ii. Integration (partial: only part of the terms are included; fully: all of the terms are included) 1. 2 Ways a court can determine if there is an integration: a. By looking at the face of the contract (4 corners test) b. By looking at parol evidence to determine if there is ambiguity (this seems to defeat a merger clause) 2. If Fully: You can use collateral agreements to get in additional information as long as consistent terms 3. If Partially: then consistent additional terms can enter. a. Inconsistent? 1. If it is an implied inconsistency or court use the other rule 2. Contradict or negate a term. UCC: absence of reasonable harmony. UCC 2-202 Only bars evidence that would contradict matters reduced down to a writing by the parties and intended by the parties as the written expression of their agreement. RST 216 acts like UCC here. 4. No integration (terms are only be negotiated, not actual contract) parol evidence can be used. iii. Claim avoidance: evidence that can come from the avoidance doctorines can be let in (fraud, duress, etc) d. Integration/Merger Clauses (everything is included in the document)(gets over collateral matter) i. If it is debated among the parties over a long period of time then it is likely it will work BUT if it is boiler plate courts generally won¶t uphold it. They can look at parol evidence to decide if fully integrated. Avoidance (not normally used) a. Mistake (misapprehension at the time of the contract) (NOT I did something I regret) i. Mutual Mistake RST 152 1. Must show: 1. The mistake goes to the basic assumption on which the contract was made. 2. It has a material effect on the agreed upon exchange of performance (the court looks for other ways of relief besides avoidance) 3. The mistake is not one for which the party bears the risk. 2. Both parties made a mistake, the party will be allowed to resend the agreement to the place before the contract (restitution) 3. Voidable (not necessarily void, depends on what the parties want) 4. Misunderstanding to the basis of the contract shows there was no meeting of the minds. (no mutual assent) 5. Example: no one thought the cow was pregnant (sell for meat value is different than sale of cow with calf) not part of the risk 6. The risk of the real value of the rock (which was a diamond) was part of the risk that was included? a. Argue about who should bear the risk since it meets the other two aspects ii. Unilateral Mistake 1. One party is mistaken, less likely to receive relief because courts want to encourage carefullness 2. Must show: (3 tests listed above PLUS) 4. The performance would be unduly burdensome, this must be extreme it must really do the person in not just a loss. 5. The other party has not relied (so if construction has already begun and the other bidders are gone, this won¶t work) 3. When the court will give relief a. Mistaken construction bid because they compute bids under a lot of pressure and a time crunch. b. If a party acts too quickly to take advantage of a mistaken bid. c. When the other side causes the mistake by not giving the same amount of info or time. 4. When the courts wont give relief: (when a party made a wrong assessment of the risk) 5. Recession is not mandatory the contract is voidable not void. 6. The contract can also be reformed if there was a clerical mistake or agreement is not accurately reflected b. Warrantees i. Of title (conveying good title at the time of the sale) or Of quality: 1. Express (when the seller does something that affects the buyers decision to purchase goods, doesn¶t have to be in writing or intended by the seller) a. Sets out a model, makes an affirmation of fact, makes a promise (doesn¶t work I¶ll fix it) 2. Implied (created by the legislator in order fulfill the buyers expectation in buying the product a. Merchantability (goods will fulfill their ordinary purpose/function) b. Fitness for a particular purpose (when seller knows that the person wants it for a particular purpose and says that it will work for that purpose, you must research the reasonable standard) c. Anticipatory Repudiation i. Unequivocal manifestation of the parties intention not to perform. Clear statement ii. What happens? 1. It allows the other party to suspend their own performance or preparations for their own perform. 2. Or allows for immediate cause of action of breach a. They must mitigate damages, sometimes the action happens immediately when the party can find someone else to fill the role quickly since they have relied on the repudiation or if there has already been performance and it won¶t hurt the party sometimes the court requires them to wait. d. Fraud/Misrepresentation RST 162 i. Fraud in the factum: rare and goes to the very heart of signing the contract. The person signed because they believed it would have no legal effect and will be treated like there was never a contract. ii. Fraud in the inducement: More common, which is seen as fraudulent misrepresentation, or inducing a party, which makes the contract voidable 1. 1. Misrepresentation that goes the material terms of the contract 2. Fraudulent or material 3. Which the injured party relied 4. The reliance was justified (this could mean that they were guliable and others were more expert to know the truth) i. You can¶t overcome this by saying it is only partial statement or literal truth 2. Conduct can be fraud, there doesn¶t have to be a statement (spray painting and engine) 3. Silent fraud: you don¶t have to tell what you know unless it is dangerous 4. Promises of the future and opinions (opinions, of someone with special knowledge, statements when they know it is not the likely outcome«example a lawyer says it is likely the case will end up like«) a. Misrepresentation of their true thoughts, or if they never were planning on fulfilling the promise 5. Remedies: voidable, reformation, expectancy (you can¶t ask for rescission plus lost profits) 6. UCC 2-721: recession can still get all remedies like expectancy too e. Duress 1. Contract signed at a time when a person does not have freewill (encompasses undo influence) 2. Voidable can be reformed 3. How much coercion, you have to just prove the court that there was, courts require different amounts a. Economic duress: because of my economic difficulties the other side forced me into signing the contract. It must be extreme. f. Undo Influence 1. They had free will but they were tricked by someone they trusted (Less than Duress) 2. Someone who is a position of trust. (misbehavior by a fiduciary) 3. Contracts negotiated under inappropriate circumstance (insisting on haste, multiple people pressuring one person, when people are in a distressed state of mind) (over persuasion, could be a situation where someone was harassed while they were in the hospital) g. Illegality 1. Void for public policy 2. Criminal contracts (contract for murder), Agreements that you won¶t support your children or spouse during marriage or contracts that require marriage, gambling contracts except some casinos, failure to get a licenses for regulations such as law licenses (void for public policy) 3. If it is illegal it is VOID not voidable and the guilty party, are stripped of their legal rights 4. Covenants not to compete, sale of business (courts will generally uphold those) employee to employer not to compete with their employer for a time afterwards (courts will police it more because they have a lot less control) They must meet: 1. Person to be enjoined has particular abilities that will hurt the other side or have trade secrets 2. Spatial limitation must be reasonable 3. The time period must be reasonable 5. Policy: the policy factors change with time along with the court decisions (ex: people who live together as spouses is not being up held now by many courts but this will probably have to change) h. Incapacity i. 1. Contracts with parties who lack capacity are voidable, not void a. Minors, have no capacity to contract the courts want to protect minor and make outcome predicable (minor is the only one who can void the contract) i. Except for the necessities of life: food, clothes 1. You can¶t surrender your status as a minor (married, emancipated, in business) ii. They may disaffirm any other types of contracts (if they do then they must give back the goods) b. They can disaffirm even if they destroy the item(like if they buy a car and wreck it is can be disaffirmed) c. Statutes that allow for contracts i. Joining the military, opening bank accounts d. Estoppel for minors? i. If the infant lies about their age in writing some courts say minor can¶t use minor status 2. A person lacking mental capacity a. If you have a lower capacity and it is obvious then you courts will normally say that people can¶t contract, courts play it by ear for fairness, normally if someone is held as incompetent the court will void the contract. If they haven¶t there are questions they will ask: i. How necessary is the contract? How fair is the contract? Did the other side know of the incompetence? How great is the hardship to society in allowing the affirmance? b. Drunkenness: generally not an excuse unless you are so drunk that you are near blind, and then they must immediately disaffirm, question to ask is if they waited too long, also would the other party know if they wouldn¶t have entered into the contract if they weren¶t drunk, Unconscionability: too unfair to uphold i. UCC 2-302 and 2-108 the court can limit or strike the unconscionable part or it can resend the whole contract ii. Most courts say there has to be a hearing before the court can decide this iii. Judges make these decisions because they were afraid that juries would be too sympathetic iv. More likely to happen for individual v. Standard (normally) 1. Must have both procedural and substance unconscionability a. Procedural (unfairness in the bargaining process) (ex: trickily switch papers to sign) b. Substance (there is something in the contract itself that is extremely unfair) i. It is difficult to determine when the courts will use this (extreme repo. Of furniture) ii. 2-108 only requires procedural and forbids uncon. And allows attorney¶s fees iii. Sometimes they require notification for termination clauses c. Policy: courts want to give companies right and allow negotiations but when companies take too much these policies can be there and will cost them more. Liaberia situation where the company took too much and smeared its name and had to pay more. Lawyers are the fabric of business so they should be careful about what they set up despite pressure to maximize profits. d. Credit cards: Obama policy is changing the way credit cards must work because they used to be able to raise rates if you defaulted against any credit card company, they had a lot of things they could do without ever giving notice. j. Impossible i. Impossible to perform or commercially impracticable ii. Mistake is used for something before if it happened after the contract is signed they use impossible iii. Relief is generally given as rescission and restitution 1. Sometimes it is considered as an implied part of the contract(fact that the music hall would continue to stand was part of the contract of using the music hall) iv. Courts tend to play it by ear when using this because of the random situations v. Kinds of factors used for risk of loss: 1. If someone is at fault (did one party cause the difficulty, reckless action) 2. A clause that covers acts of God will say who will bear risk. Sometimes the lack of adding the clause when it is foreseeable will determine who is liable to bear risk. 3. Insurance: who is supposed to be insured to cover the risk vi. Frustration of purpose 1. When the reason for the contract no longer exists (person was leasing the room to watch the coronation, but the king got sick so he couldn¶t see it) a. The contract can still be performed. But it would be the doing of a useless thing. b. Both are involved in the special purpose (the guy paid more and the other guy charged more) 2. What happens with the construction of a building a. By usage of trade the contractor is liable and if a building burns down they have to cover the cost and rebuild until the property is handed over. (policy: to encourage them to get insurance) 3. Existing building a. You get half way done with the painting of the room and it burns the courts will give a quisi contract and what you put into it you will get back out of it. vii. UCC 2-613 casualty to identified goods (you know whose they are). If the goods are destroyed before they are given then seller is excused and contract is over. 1. If only their quality is diminished then the buyer has the option to buy or not viii. UCC 2-615 Commercial ability of presupposed condition. If it is not possible to preform they must give notice. If it is only partially destroyed the seller can allocate in a reasonable fashion. The buyer can take it or cancel. 1. rise in prices, sellers suppliers are now charging a lot higher. 2. Incredible difficulties can be included but normally price changes are foreseeable and entering into fixed price contracts includes this risk. a. When the parties hadn¶t contemplated the way the market worked and the variable pricing was giving windfalls. The court readjusted the values. This is the extreme example of when they will change it. k. The court will try to cut out only part of a contract if that is possible, rather than destroy the whole contract. Facebook/Test tips *Don¶t write too many facts *Don¶t spend too much time on the obvious, straightforward things *What is most important? - Zwadalvas: focus on consideration: gaining intellect v. restoring reputation (is this real value); was there mutual assent? Not clear of job; remedy:, expectation: no concrete answer because they weren¶t looking to make money, restitution: zuckerberg got idea. Did the idea really come from them? - Parker: offer/acceptance consideration(equity stake) - Edwardo: offer and acceptance; statute of frauds problem because there was no writing; new contract: Misrepresentation because he thought the lawyers were his. Why no parol evidence? Integration clause probably; restitution: voided, motified POLICY: *sanctity of a promise (moral obligation to carry out what you promised) * Private autonomy (people can regulate their own affairs) They can make their own deals the government doesn¶t want to make contracts for people *Reliance (people rely on promises to their detriment so courts uphold promises) *Needs of trade (efficient system to facilitate the trade of commodities, imposes terms because people don¶t want to spend the time to negotiate everything) *Predictability (you can predict the outcome, parol evidence is so there is no confusion about the terms, litigation is easier, mutal assent so you can garentee the outcome) * avoidance: for fairness, and efficiency (impossibility)- contracts haven¶t changed that much but they have changed some Avoidance: Mistake: Unilateral Mistake: Bilateral Mistake: Misunderstanding: Statute of Frauds: Mutual Assent: a. Outward appearances matter to intent not the secret unexpressed intentions i. Policy: because it is easier to know expressed intentions and people could always claim differently b. Mutual assent is required for a contract ii. Minds have to µmeet¶ c. A bargain iii. Rst 17: A formation of a K requires a bargain in which there is a manifestation of mutual assent to the exchange and consideration d. Implied in fact contract iv. Mutual assent is derived from the actions of the parties. v. The plaintiff must make is reasonably certain that the parties intended to contract for the surrounding circumstances. vi. Contract can be implied even if the moment of inception cannot be determined vii. Rst 19 and 22 e. Expressed contract viii. Where the parties express openly and mutual assent is expressed f. What if there is a contract where the contract says that it is not enforceable by law? ix. Some contracts the court won¶t allow this provision. For example employment where there is unequal bargaining power The Offer: Preliminary negotiations: Statement of opinion or intent: Solicitations: Written contract to follow: Acceptance: Effect of Acceptance: Manifesting Assent: Silence as Acceptance: Knowledge of Offer Motive Mode of Acceptance Termination of Acceptance: Revocation by offeror: (option contract) Lapse of time: Termination by death or Incapacity of the offeror or offeree Termination by rejection The ³mail box rule Termination by counteroffer and the ³battle of the forms´ Common law Original battle of the forms The knock out rule Indefiniteness Consideration: that which is exchanged Sufficiency: a benefit or detriment (normal you have both) Adequacy of consideration Forbaearance as consideration Illusory Promise Past consideration Preexisitng Duty rule Promissory estoppel Need for consideration Remedies Damages Reliance Limits on Recovery Certainty Foreseeability Avoidability Damages by Agreement Punitive Damages Damages under the UCC Restitution When there is no contract: Quasi-Contract For breach of contract Breaching Plaintiff Equitable remedies Statute of Frauds Parol Evidence Ruel Exceptions to the rule Avoidance Mistake Misunderstanding Mutual Mistake Unilateral Mistake Reformation Fraud Duress and undo influence Illegality Incapacity Unconscionability Impossibility - We use the UCC in sale of goods - Won¶t be ambiguous on accident (you have to figure it out) Is the following correct? Yes, Whether the contract is unilateral bilateral contract determined by the parties intention, intention can be inferred by the language of parties, (other ways) if it is not clear it is bilateral contract In the bilateral contract situation the offeree can choose to accept by performance or by promise if there is not a clearly stated way of acceptance - If an offeree does not express acceptance of the offer RST 53,54, UCC 204 - A unilateral contract is formed only with the performance is completed BUT if the offeror invites acceptance by rendering performance the first steps toward completion create an option to complete RST 45 Remedies: - Consequential damages: expenses or other losses beyond general damages that the plaintiff would never have incurred but for the breach. - Incidental: damages incurred in ascertaining if there is a breach or trying to prevent the breach. RST 90 (promissory estoppel) - You need a promise, defendant had a reason to expect reliance, plaintiff did rely and that the reliance was induced by the promise, and enforcement is the only way to prevent injustice. (can be used to substitute for offer, acceptance, or consideration) The remedy can be limited as justice requires Restitution: - If there is no contract then expectancy and reliance are not available. Restitution is there to make the parties right if you can¶t grant the others. RST 370 (two different ways) You only have to show unjust enrichment. You have to show that there is a benefit . Parol evidence and interpretation - An agreement that fits into collateral agreement exception need its own consideration? NO - Does parol evidence exclude evidence when showing fraud (avoidance doctrines allow things in past parol evidence) o Especially fraud. - Undo influence (RST 175-177)Duress o Duress includes the unlawful confinement of another person, their property, their family  It has extra elements duress captures undo influence - Undo influence  Occurs whenever there results the kind of influence of supremacy of one mind over another, by which that other is prevented from acting accourding to their own wish or judgment. The will is overborn  They are induced to do or forebear from doing something that they would or wouldn¶t do if they were left to do their own thing.  Duress is just more UISG: what it does and what law governs the contract 2 ways: 1. Ripe fruit: sail boats unlimited, shows all the divergent branches, why they chose the one they did and then picked the final fruit and why there is a final right answer 2. Pac man: there is lots of stuff on the board and you work through the board in an organized fast fashion before the time is gone. Doesn¶t matter how you get there, just show all the issues that are covered and all the doctrines that apply. o