Contracts

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Contract

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A promise or set of promises for the breach of which the law gives remedy or the performance of which the law recognizes as a duty.

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Promise

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A manifestation of intention to act or refrain from acting in a specified way so made as to justify a promisee in understanding that a commitment has been made.

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Return performance

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May consist of an act other than a promise, or a forbearance.

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Consideration

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For a contract to have consideration it has to have a bargained for exchange comprised of a promise for a promise or a promise for a performance.

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Gift promises

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These are not supported by consideration. Promises are always acted on with some reliance, but if no bargain, then the promise is not enforceable.

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Nominality doctrine

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Disparity in value sometimes indicates that the purported consideration was not bargained for but merely a formality or pretense. Such sham does not satisfy the requirement of consideration.

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Adequacy of consideration

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The mere inadequacy of consideration will not void a contract.

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Promissory Estoppel

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In absence of consideration, promises will be enforced based on the extent of reliance. For a promise to be enforceable under promissory estoppel it must satisfy the following: (1) a promise; (2) induced action or forbearance; (3) foreseeability; (4) reliance; and (5) an injustice.

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Induced action

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Prompting one to do or refrain from doing some act.

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Foreseeability

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The anticipation that the act was likely to happen.

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Reliance

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The promisee does something or refrains from doing something in dependence of the promise made.

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Injustice

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The unfairness of the situation can only be avoided by enforcing the promise.

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Expanded bargain theory

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If promisee could have bargained for the promise, then it is more likely to be enforced. If the promisee couldn't have bargained for the promise because soliciting promises would be inappropriate given the social context, then it is less likely to be enforced.

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Promissory estoppel subsection (2)

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A charitable subscription is enforceable without proof that the promise induced action or reliance. The only elements that need to be satisfied are promise and injustice.

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Material benefit rule (aka past consideration)

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In order for past consideration to be enforced, there needs to be (1) a benefit conferred; (2) a subsequent promise; and (3) an injustice.

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Structural Impediment

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A structural impediment exists if circumstances exist that preclude the parties from bargaining at the moment the benefit is conferred.

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Contract implied in fact

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To have a contract implied in fact the actions of the parties should look the same as if it were an express contract.

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Quasi contract

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A quasi contract is one where there is a benefit conferred on the defendant by plaintiff, there is appreciation of the benefit by the defendant; and there is acceptance/retention of the benefit where it would be unfair to retain the benefit without payment. A quasi contract is considered a legal fiction because none of the elements require a promise.