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53 Cards in this Set
- Front
- Back
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Roadmap |
Because I have a legal problem to solve, I’m going to ask what law governs. After determining the governing law, I will ask if there was a contract. If there was a contract, I will ask if there were any legal defenses that blocked the enforcement of that contract. Having determined that there are no legal defenses, I will ask what were the terms of that contract. I will then ask if the parties delivered those promises or if there was a breach? If there was a breach, were there any legally enforceable excuses that forgive the breach? If not, what are the damages? Are there any alternative theories? Were there any third parties? |
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What law governs? |
Generally, common law governs all contract disputes unless otherwise governed by a statute. The most efficient way to determine what law governs is to do a scope test. |
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Article 2 Analysis |
Article 2 governs 1 transactions in 2 goods. UCC §2-102. There are two elements and both are necessary. First I will look for a transaction and then I will look for a good. |
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Transaction |
Transaction is not defined but courts typically definite it to mean contract for sale. Contract for sale is defined as present sale or a future sale. §2-106-1. A sale is further defined as a passing of title from the seller to the buyer for a price. §2-106-1. A transaction for sale, in essence, is a transaction where there is an (1) agreement that contemplates the (2) passing of a title from a (3) seller to a buyer for a (4) price. There are four elements and all are necessary. |
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Transaction Analysis |
1. Agreement, i.e., a meeting of the minds at the same place at the same time is/is not present 2. Passing of a title, i.e. the transfer of possession is/ is not present 3. Seller to a buyer is present. 4. Price, i.e., a payable sum of money is present |
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Goods
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Goods are defined as (1) all things, including specially manufactured goods, which are (2) moveable (3) at the time of identification to the contract. There are three elements and all are necessary. §2-105(1). |
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Goods Analysis |
All things, i.e. tangible objects 2. Moveable, i.e. capable of being picked up and transported. 3. Time of identification to the contract, i.e. at the time that one identifies the existing goods as those that the contract refers to. |
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Article II possible conclusions
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1. There are only goods present here so I can conclude that Article 2 applies. 2. There are non-goods in this fact pattern. As such, I will conduct a mixed transaction analysis applying the predominate purpose test to determine whether the predominate purpose of the transaction was a good or a service. If the predominate purpose is a good, the UCC applies, if it is a service, the common law governs. I will now conduct a mixed transaction analysis. |
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Mixed Transaction |
A mixed transaction analysis requires a predominate purpose test, i.e. a totality of the circumstances test, which evaluates 1) the language of the contract 2) the nature of the business of the supplier 3) the intrinsic worth of the materials / cost of goods relative to the cost of service and 4) the gravaman of the complaint / what they are complaining about to determine what law governs. Where the predominate purpose is the non-good, Common Law governs. Where it is a good, Article 2 governs. |
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Was a K formed? Common law. |
A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. The formation of a contract requires 1 mutual assent and 2 consideration. There are two elements and both are necessary. Mutual assent consists of 1 offer and 2 acceptance. There are two elements of mutual assent and both are necessary. Mutual assent is a meeting of the minds. In looking for an offer and acceptance, courts generally use the objective theory of interpretation, analyzing the words, oral or written, and conduct to determine if an offer has been made and accepted from the perspective of a reasonable person in the position of the hearer. In looking for an offer in this dispute, I will first look for an offer, followed by an acceptance, and then consideration. If all three are found, I will conclude that there is a contract. |
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Was a K formed? UCC.
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A contract is the total legal obligation that results from the parties’ agreement. UCC §1-201, 12. An agreement is further defined as a bargain of the parties in fact, as found in their language or inferred from other circumstances, including course of performance, course of dealing, or usage of trade. UCC §1-201, 3. A contract for sale of goods may be made in any manner sufficient to show agreement. 2-204, 1. 1-103, b allows further supplementation of the analysis. The formation of a contract requires 1 mutual assent and 2 consideration. There are two elements and both are necessary. Mutual assent consists of 1 offer and 2 acceptance. There are two elements of mutual assent and both are necessary. Mutual assent is a meeting of the minds. In looking for an offer and acceptance, courts generally use the objective theory of interpretation, analyzing the words, oral or written, and conduct to determine if an offer has been made and accepted from the perspective of a reasonable person in the position of the hearer. In looking for an offer in this dispute, I will first look for an offer, followed by an acceptance, and then consideration. If all three are found, I will conclude that there is a contract. |
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Was there an offer? |
An offer is a 1) manifestation of a 2) willingness 3) to enter into a specific bargain, 4) so made as to justify to 5) another that his 6) assent is invited and will 7) conclude the deal now. All seven elements are necessary. |
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Offer analysis
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1. A manifestation, i.e., a tangible showing in words, oral or written, or conduct that is acknowledged, meaning there was a reaction, was/was not present when 2. Willingness, ie. present intent to conclude a deal now was/was not present when. 3. Specific Bargain, i.e., a promotion for a trade or an exchange was/was not present when. 4. So made as to justify, i.e. the offer has been expressed with specific detail so that the court can determine a breach or remedy, was/was not present when. 5. Another, i.e. a targeted another was/was not present when. 6. That his assent is invited, i.e. invited another person to accept it in the present moment was/was not present when. 7. And will conclude the deal, i.e., the offeror has said all that they needed to say was/was not present when. |
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Offer found conclusion
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Having found the offer, I must now determine whether the offer created power of acceptance in the offeree. |
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Power of acceptance |
Was power of acceptance created through actual or constructive receipt when X? R: An offer must create power of acceptance within the offeree. Power of acceptance can be communicated by actual or constructive receipt. |
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Acceptance rule |
An acceptance is 1) manifestation of 2) unequivocal assent 3) by the offeree (4) to the terms 5) in the manner invited or required by the offeror. There are five elements and all are required. |
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Acceptance analysis |
Manifestation, i.e., a tangible showing in words, oral or written, or conduct that is acknowledged is/ is not present when. 2. Unequivocal assent, i.e., emphatically agree to same bargain proposed by the offeror is/ is not present when. 3. By the offeree, i.e., the one assenting is/is not present when 4. To the terms, i.e., unaltered terms is/ is not present when. 5. In the manner invited or required by the offeror, i.e., in a reasonable manner or in a manner specified, is/is not present when. |
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Acceptance found conclusion |
Having found an offer and an acceptance, I must now look for consideration to determine if there was a contract. |
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Consideration |
Consideration is a 1 bargain for a 2 legal detriment. There are two elements, and both are required. A bargain is a return promise or performance induced by the original promise. A legal detriment is the idea that someone does something that they are not legally obligated to do or forebears from something they are legally able to do. In looking for a legal detriment, courts will first analyze whether the promisor has sought a detriment, i.e. a loss or harm, from the offeree. If so, a legal detriment is found. If not, the court will ask if the promisor sought a benefit to himself. |
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Bargain |
A bargain, i.e. a return promise or performance induced by the original promise is/is not present because X sought a promise/performance from Y |
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Legal detriment |
A legal detriment is the idea that someone agrees to do something they weren’t otherwise legally obligated to do or forbearance from doing something they were legally able to do. In looking for a legal detriment, courts will first ask if the promisor sought a detriment, i.e., a loss or harm, to the promisee. If no, they will then ask if the promisor sought a benefit for himself. If no, they will then ask if there was an action taken that the promisee was not required to do or if there was forbearance. |
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Legal detriment analysis |
Here, there was a/ was no detriment to the promisee…so there was consideration/ so I will ask the next question. The promisor did/did not seek a benefit for himself…so there was consideration/ so I will ask the next question. There was/was no action/ forbearance on the part of the promisee, so there was/ was no consideration. |
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Possible consideration conclusions |
1. Having found/not found a bargain and a legal detriment between both parties, I can now conclude that there was/ was no consideration. 2. Having found offer, acceptance, and consideration, I can now conclude that there was a contract. Now I must determine whether there are any defenses that prevent the enforcement of the contract. |
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Defenses Rule |
Having found a contract, I must now analyze whether there are any defenses preventing the enforcement of a contract. There are 13 defenses, of which X are applicable. X is most applicable, so I will analyze this one first. I will then analyze X and Y |
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Statute of Frauds |
The statute of frauds requires a writing signed by the party whom the contract is to be enforced against. The writing must reasonably identify the subject matter of the contract, sufficiently indicate that a contract has been made between the parties, and state, with reasonable certainty, the essential terms and conditions of the unperformed promises in the contract. |
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Statute of frauds categories |
There are five categories of contracts which fall under the Statute of Frauds and must be in writing. 1, contracts made in the interest of marriage, 2, contracts that cannot be completed in a year, 3, contracts in the interest of land, 4, promises of an executor to personally pay estate debts, and 5, promises to pay the debts of another (suretyship). An additional category is required by the UCC for contracts involving the sale of goods priced at $500 or more §2-201 (define goods. UCC 2-105, 1. Exceptions include partial performance/goods accepted/payment and contracts between merchants where written confirmation does not require a signature and is established once received, 10 days, & reasonably should have understood. UCC § 2-201, 2. |
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Illegality |
Illegality, void – Courts will not enforce a contract if performance of the contract is illegal at the time of performance. |
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Violation of public policy |
Void. - Courts will not enforce a contract or other terms of an agreement if it violates a statute or if enforcement of the contract weakens public policy interests. |
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Age incapacity |
Voidable. – A person under the legal age of adulthood can affirm or dissafirm any contract they make before they reach adulthood. The contract cannot be enforced against them; however, it can be enforced by them. The exceptions to this are: married, necessities (food, clothing, shelter), misrepresentation, military, tortious damage, emancipated minor, ratification, or where statute may permit parent to contract. Doesn’t require restitution aside from giving back what you have. |
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Mental incapacity |
Voidable. – There are two types of mental incapacity: cognitive and volitional. A person lacks capacity because of mental illness or defect if either, (1) he is unable to understand in a reasonable manner the nature and consequences of the transaction, or (2) he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition. Exceptions include: Enforcement of necessities to recover the reasonable value. For 1, the contract is voidable even where the terms are fair and the other party has no reason to know of the impairment. For 2, the contract will be not be enforced if they can show that (1) the other person knew of the mental condition and (2) the transaction is not one which a reasonably competent person might have made. A party lacks capacity based on intoxication if the other party has reason to know that, by reason of intoxication, the party is unable to reasonably understand the nature and consequences of the transaction or is unable to reasonably act in relation to the transaction |
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Mutual Mistake of Fact |
Voidable – A contract is voidable under a mutual mistake of fact if (1) Both parties are mistaken, (2) there is a mistake, (3) at the time a contract was made as to a (4) basic assumption on which the contract was made has a (5) material effect on the agreed exchange of performances. The contract is voidable unless the adversely affected party bore the risk of the mistake. |
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Unilateral Mistake of Fact |
Voidable – A contract is voidable under a unilateral mistake of fact if: (1) One party is mistaken, (2) there is a mistake, (3) at the time a contract was made as to a (4) basic assumption on which he made the contract that has a (5) material effect on the agreed exchange of performances. The contract is voidable if enforcement would be unconscionable OR the other party knew/had reason to know of the mistake, or cause the mistaken; unless the adversely affected party bore the risk of the mistake. |
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Material Misrepresentation |
A misrepresentation, i.e. an assertion that is not in accord with the facts, 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. |
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Fraudulent Misrepresentation |
Fraudulent misrepresentation. A misrepresentation, i.e. an assertion that is not in accord with the facts, is fraudulent if there is a (1) misrepresentation (2) intended to induce and did induce a misrepresentation (3) and the person making it (4) knows or believes that the assertion is not in accord with the facts, or does not have the confidence that he states or implies in the truth of the assertion, or knows that he does not have the basis that he states or implies for the assertion. |
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Duress |
Where a 1) party’s assent to a bargain was 2) induced by 3) an improper threat (i.e. physical or nonphysical) of sufficient gravity, 4) and that person has no other reasonable alternative but to assent, the contract is voidable by the victim. All elements are necessary. Improper Threats: Physical, Economic, Threatened with a crime or tort. Criminal prosecution,Use of civil process, Made in bad faith, Breach of duty of good faith and fair dealing. |
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Undue Influence |
A contract entered because of undue persuasion “over-persuasion” of one party by the other is voidable by the victim if one party uses his dominant psychological position or position of trust and confidence to induce the subservient party to consent to an agreement to which he would otherwise have not consented |
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Unconscionable |
A contract is unconscionable if no reasonable person would make or accept the agreement: unfair advantage, clauses one side, innocent failure to understand transaction, lack of meaningful choice regarding terms/gross inequality of bargaining power). |
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Failure to Disclose |
One party may have a duty to disclose information if that person is in a fiduciary relationship with the other party. A duty to disclose may be enforced if the party has already given partial information and the resulting “half-truth” would be misleading; the person has important information that is unavailable to the other party; the person knows that the other party is operating under a mistake; the party is in a position of trust; or the information is “material” to the contract – more controversial. |
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What are the terms? |
When interpreting a contract, one must look at the contract’s terms from the perspective of the objective person. There are four types of terms (1) express, (2) implied, (3) statutorily supplied, and (4) court supplied. |
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Expressed terms |
Expressed terms are those articulated by parties, either orally or written. When examining the terms, I will first determine whether there is a written agreement. If there are written terms, I must conduct a degree of integration analysis to determine whether that writing was a full or partial integration. |
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Oral terms |
these are the oral terms/ there were none. triggers PER |
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PER Common Law |
The PER provides that evidence of prior or contemporaneous oral terms, or prior written terms, may not be used to contradict or supplement a fully integrated contract, but it may be used to supplement partially integrated contracts. In both fully and partially integrated contracts, a contract can be supplemented if there is an ambiguity in order to explain the ambiguity. |
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PER UCC Rule |
No evidence may be used to contradict a full or partially integrated contract, but may be explained or supplemented by course of dealing, course of performance, or usage of trade, and you may always supplement a partial integration with consistent dickered terms. UCC 2-202. |
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Ambiguities |
A K is not enforced if Parties use a material term that is open to at least two reasonable interpretations, AND Each party attaches a different meaning to the term, AND Neither party knows or has reason to know the term is open to at least two reasonable interpretations. If 1 party knows, there is a k under the terms of the innocent party. |
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Plain meaning rule |
Formalinterpretation assumes that words have determinate meanings independent ofparticular contexts the terms |
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Adhesion contracts |
Theseare typically printed forms presented to an individual by a representative ofthe other party in circumstances in which actual negotiation is not possible orexpected; “take it or leave it” document familiar in mass marketing. |
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Implied terms Common Law |
Terms can be implied by internal circumstances, including course of performance UCC 1-303 a, course of dealing UCC 1-303 b, and usage of trade UCC 1-303 c and custom. |
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Implied terms UCC |
Terms can be implied by course of performance UCC 1-303 a, course of dealing UCC 1-303 b, and usage of trade UCC 1-303 c. |
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Court supplied terms Common Law |
If parties have failed to articulate every part of their agreement, courts can fill in the gaps with terms supplied in good faith and best efforts, fair dealing, and presumptions. |
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Court supplied terms UCC |
If parties have failed to articulate every part of their agreement, courts can fill in the gaps with terms supplied in 1 good faith and fair dealing, and 2 best efforts. 2-306, 2. 1-103 b allows courts to supplement contracts in this manner. |
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Statutorily Supplied UCC only |
A statutory supplied term is a term that comes from the UCC. If you don't contract around the UCC terms, you will be subject to these gap fillers. Ex: price,where to deliver, time for delivery, lots, payment due at the time of delivery,implied merchants of warrantability |
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Did the parties breach the contract? |
1. Whendue, were performances given as promised?2. Ifgiven, was performance partial or material breach? |
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Material breach |
Material breach is anything less than“substantial performance.” |
