Contracts

Front 1

Quasi K

Back 1

ii. Elements
1. P has conferred a benefit on D, and

2. P reasonably expected to be paid, and

3. D realized unjust enrichment if P not be compensated

Measure of Recovery

1. K price is not the measure of recovery

2. focus on value of benefit conferred

3. K price is a ceiling if P is in Default

Front 2

Considerations for UCC to apply

Back 2

Factors used to Determine whether Article 2 applies

1. type of transaction—sale
2. subject matter of transaction—goods, tangible, personal property (all property other than real estate)
3. Note
a. Dollar amount is irrelevant
b. Don’t need to have merchants involved

Front 3

Common Law Applies

Back 3

1.services K—common law only
2.real estate—common law only

Front 4

Mixed K (goods and real estate/services)

Back 4

Rule: what is the more important part of K, the goods or real estate/services part?

Pg. 3 # 5 car sale and yo yo lessons—UCC applies

# 6 buys a yo yo and 10 lessons from Yo Yo Ma for $40K—common law applies, because the services part is more importate

Front 5

Express Divisions (goods and real estate/services) of Payment in K

Back 5

Rule: If the K divides payment, then apply UCC to sale of goods and common law to the rest

Front 6

Offer

Content Requirements (Generally)

Back 6

(i) an expression of promise, undertaking, or commitment to enter into a contract;

(ii) definite and certain in its terms; (price, amount, who incurs obligation)

and (iii) communicated to the offeree.

Front 7

Offer

Price (UCC v. Common Law)

Back 7

Real Estate: Requires Price

UCC: no absolute price requirement if so intended by the parties

Front 8

Offer

Advertisement Rule

Back 8

Generally: invitation to offer

Exceptions:

reward

offer if it is specific as to quantity and expressly indicates who can accept

Front 9

Termination of Offers

Back 9

Lapse of Time

limit stated in offer

unreasonably long duration of time before acceptance

Front 10

Termination of Offers

Revocation

Back 10

a. Unambiguous statement by offeror to offeree of unwillingness or inability to K

b. OR unambiguous conduct by offeror indicating an unwillingness or inability to K and that the offeree is aware of the revocation

Front 11

Termination of Offers

Revocation (Mail)

Back 11

a. revocation of an offer sent through “the mail” is not effective until received

does NOT require that the receiving party have knowledge of contents upon receipt

An offer CANNOT be revoked after it has been accepted

Front 12

Irrevocable Offers

Option K (Common Law)

Back 12

Promise to Keep an Offer Open

AND there is payment and consideration

Front 13

Irrevocable Offers

Firm Offer Rule (UCC)

Back 13

Cannot be revoked for up to three months

if writing gives a longer period, only for 3 months

NO time period stated in writing; offer irrevocable for a period fixed by court no greater than 3 months (25)

Offer to buy or sell goods,

Signed, written promise to keep offer open,

Must have an explicit statement that the offer will be kept open (pg. 9, 26)

And party is a MERCHANT

Front 14

Irrevocable Offers

Foreseeable Detrimental Reliance

Back 14

General Contractor and Sub Contractor

GC makes bid based on SC’s bid to do work on a certain price;

SC cannot revoke

Front 15

Irrevocable Offers

Start Performance (NOT preparation) based on Unilateral K Offer

Back 15

start performance makes irrevocable (MBE: “only by” in the offer, think unilateral K)

Mere Preparation is NOT PERFORMANCE (MBE: if any doubt between performance and preparation, its preparation; but detrimental reliance might be a coa)

Front 16

Rejection: Termination of Offer

counter offer v. bargain

Back 16

Counteroffer Terminates Original Offer (MBE: will be a stattment)

Bargaining DOES NOT terminate original offer (MBE: will be a question)

Front 17

Rejection: Termination of Offer

conditional acceptance

Back 17

Conditional Acceptances Terminates Offers

MBE: “so long as” “but” “on condition that” “if” “provided that”; these all signal conditional acceptance, and terminate ability to accept original offer—it is a counter offer

Front 18

Rejection: Termination of Offer

Mirror Image Rule (common law only)

Back 18

An acceptance that adds new terms is treated like a counteroffer rather than an acceptance

Front 19

Rejection: Termination of Offer

UCC (additional terms) Article 2-207

Back 19

a. Under the UCC, a response to an offer that adds new terms, is generally treated as acceptance, SO LONG AS
i. Seasonable Expression of Acceptance

1. CANNOT be a conditional acceptance, language of condition will take you to conditional acceptances

ii. Both parties MUST be MERCHANTS (pg. 11, 37)

iii. new term is NOT A MATERIAL CHANGE

Front 20

Rejection: Termination of Offer

Death of a Party Prior To Acceptances

Back 20

Rule: death or incapacity of either party terminates offer.

Exceptions

1) Option

2) Part Performance of Offer to enter into Unilateral K

Front 21

Acceptance of An Offer

Who Can Accept

Back 21

A person MUST KNOW ABOUT OFFER at the time she accepts

Offers CANNOT BE ASSIGNED; may only be accepted by the person to whom it was made

Options Exception (43): options can be assigned

Front 22

Acceptance of An Offer

Full Performance As Acceptance

Back 22

Full performance is always acceptance

however, failure to notify about performance results in contractual duty being discharged

(MBE: watch for facts that place the offeror in one location (CA), and performance in a different location(TX))

Front 23

Acceptance of An Offer

Part Performance Where Acceptance is NOT Specified

Back 23

If offer does not specify how to accept, starting to perform is acceptance

ii. If offer REQUIRES PERFORMANCE for acceptance, PERFORMANCE MEANS COMPLETION OF PERFORMANCE, not just starting performance (so acceptance is not valid)

Front 24

Acceptance of An Offer

Performance Required for Acceptance

Back 24

Different Obligations b/n Offer and Acceptance

a. start performance creates an obligation on offeror to keep offer open, offer irrevocable

b. but only full completion constitutes acceptance by the offeree

Front 25

Acceptance of An Offer

Offer accepted by promise to perform

Back 25

Promise to perform by the offeree creates a binding K

Front 26

Acceptance of An Offer

offer + cash

Back 26

An Offer is Accepted When the Offeree Cashes a Check that comes with Offer

Front 27

Acceptance of an Offer

Mailbox Rule

Back 27

Acceptance: effective when sent IF

1) made in a manner and means by means invited

2) AND the offeree has not already sent a rejection

If rejection and acceptance are sent, whichever arrives first is binding

If acceptance, then rejection, mailbox rule (if rejection arrives first, no mailbox if offeree relies on rejection)

If rejection, than acceptance, whichever arrives first

Front 28

Acceptance of an Offer

Rejection OF Option K

Back 28

Rejection of an option does not terminate the offer;

the offeree free to accept the offer within the option period UNLESS the offeror has detrimentally relied on the offeree's rejection.

Front 29

Termination by Operation of Law

Back 29

a. Death or insanity of either party (unless the offer is of a kind the offeror could not terminate, e.g., an option supported by consideration). Death or insanity need not be communicated to the other party;

b. Destruction of the proposed contract's subject matter; or

c. Supervening illegality.

Front 30

Acceptance of an Offer

UCC Wrong Goods

Back 30

The seller of goods sends the “wrong” goods is Acceptance AND breach (51)

Front 31

Acceptance of an Offer

UCC Wrong Goods with Explanation

Back 31

Accommodation (Explanation) Exception (52):

if wrong goods sent with an explanation, there is NO K, and NO BREACH, but merely a counter offer

Front 32

Consideration

Back 32

1. a bargained for legal detriment

2. It is always person specific;

c. Adequacy of Consideration is NOT relevant

Front 33

Consideration

Back 33

3. Forms of Consideration
a.Performance: doing something not legally bound to do

b.Forbearance: not doing something legally entitled to do

1. i.e. a promise to forbear suit on a claim that the promisor honestly and reasonably believes to be valid (even if claim turns out to be invalid)

c.Promise to Perform

d.Promise to Forbear

Front 34

Consideration

Moral Consideration/Exception

Back 34

4.Moral consideration is insufficient

a.Exception
i. where there is a preexisting obligation that is barred by a technical defense (i.e. SOL prevents ability to bring an action), moral consideration will be effective based on the
1. prior obligation
2. and new promise in writing

Front 35

Consideration

Past Consideration

Back 35

i. Things that happen BEFORE a promise CANNOT BE consideration for that promise (not bargained for)

Front 36

Consideration

Preexisting Contractual or Statutory Duty Rule (Common Law only)

Back 36

i. Doing what you are already legally obligated to do is not consideration for a promise to pay you more to do merely that.

Front 37

Modifications of K

Common Law

Back 37

Requires Additional consideration

Front 38

Modifications of K in acceptance

UCC

Back 38

Modification does NOT require additional Consideration

Rule:

1.Do not need consideration for modifying sale of goods K’s

2.good faith is test for changes in existing sale of goods (pg. 19, 63)

ii.2. Modification Under the U.C.C.

1.Under the U.C.C., consideration is not necessary to a good faith written modification of a contract.

Front 39

Modifications of K in acceptance

UCC

Back 39

New Terms will be included UNLESS

1. (i) the additional terms materially alter the contract,

2. (ii) the offer expressly limits acceptance to the terms of the offer,

3. or (iii) the offeror objects within a reasonable time (10 days)

iv. Rejection of Additional Terms does NOT terminate the K

Front 40

Part Payment As Consideration for Release

Back 40

If Debt Due AND Undisputed

then part payment is NOT consideration for the release and creditor may still collect the rest

Front 41

Part Payment As Consideration for Release

Back 41

Not Yet Due OR Disputed

Early payment IS consideration for release