GENERAL DEFINITION 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
An actual subjective meeting of the minds is not necessary. Rather, courts use an
objective measure, by which each party is bound to the apparent intention that he manifested to
the other(s)
-An offer creates a power of acceptance in the offeree and a corresponding liability on the
part of the offeror. For a communication to be an offer, it must create a reasonable expectation
in the offeree that the offeror is willing to enter into a contract on the basis of the offered
The offeree must reasonably belief that his assent will conclude the bargain
Southworth v. Oliver
Even if there are no express words indicating intent by the parties to be bound, a
contract may still be implied when, based on all the facts and circumstances, a reasonable person
in the position of the plaintiff could have inferred a promise from the defendant’s actions.
1.Promise, Undertaking, or Commitment
-The criteria used to determine whether a communication is an offer include the following:
We look for the terms to be clear and definite. For example, price quotes, which
are generally considered invitations to deal, can be offers if made in response to an inquiry
that contains a quantity term.
-Surrounding Circumstances
It could have been done in jest or bragging but it must be understood in that
sense otherwise it will be an offer because the statement will be interpreted objectively
*meeting of the minds is subjective while outward manifestation is the objective view. If
the outward manifestation leads to the reasonable belief that there it is an offer, then there is an
offer (Sam Green Rule)
-Prior Practice and Relationship of the Parties
Advertisements, Etc.
Advertisements, catalogs, circular letters, and the like containing price quotations are
usually construed as mere invitations for offers.
Courts have treated advertisements as offers if the language of the advertisement can be
construed as containing a promise, the terms are certain and definite, and the offeree(s) is
clearly identified.
Exceptions to the General Rule:
1) Reward- “if you find my dog, I will give you $1000”
2) Specific quantity and specific mode of acceptance
Lefkowitz v. Great Minneapolis Surplus Store, Inc.
An advertisement constitutes a binding offer if it is clear, definite, and explicit, and
leaves nothing open for negotiation.
Leonard v. Pepsico
An advertisement does not constitute an offer unless its terms are sufficiently clear and
leaves nothing open for negotiation and an advertisement intended to be a joke cannot be
sufficiently clear.
*this was clearly done in jest and the reasonable person would not have seen it as an offer
-Industry Custom
The courts will also look to generally accepted custom in the industry in determining
whether the proposal qualifies as an offer.
2. Definite and Certain Terms
The basic inquiry is whether enough of the essential terms have been provided so that a
contract including them would be capable of being enforced.
(i) the identity of the offeree;
(ii) the subject matter; and
(iii) the price to be paid.
-The identity
A statement must sufficiently identify the offeree or a class to which she belongs to
Lefkowitz v. Great Minneapolis Surplus Store, Inc.
The store advertised that they would sell to the first person that came in
-Definiteness of Subject Matter
A court can enforce a promise only if it can tell with reasonable accuracy what the
promise is.
Real Estate Transactions—Land and Price Terms Required An offer involving realty
must identify the land and the price terms.
*if a person only has one house in New York
“I will sell you my house in New York” will be sufficiently definite.
Sale of Goods— Quantity Term Required In a contract for the sale of goods, the
quantity being offered must be certain or capable of being made certain.
“Requirements” and “Output” Contracts are sufficiently certain because the
courts can determine how much the buyer “requires” or how much the seller “can produce”
Missing Term
The fact that one or more terms are left open does not prevent the formation of a contract if it
appears the parties intended to make a contract and there is a reasonably certain basis for
giving a remedy. In such a case, the majority of jurisdictions and Article 2 hold that the court
can supply reasonable terms for those that are missing. [See UCC §§2-204, 2-305]
*the more terms that are missing the more likely it is that parties did not intend to K
Except in contracts for real property, the failure to state the price does not prevent the
formation of a contract if the parties intended to form a contract without the price being settled.
*A court might imply the service provider’s usual price for the services, the normal price
for such services in the area, etc.
Article 2 Gap Filler
Article 2 includes some very specific “gap fillers” for situations where certain terms are
not included in a contract for the sale of goods.
Article 2, the price will be a reasonable price at the time of delivery
1) if the parties have said nothing about the price, 2) they said they would set it in
the future and don’t, 3) it was to be set by another party or some external factor and it wasn’t.
[UCC §2-305(1)] if the terms are Vague it is different because the parties intent cannot be
determined. The contract may be too vague to be enforced.
Price Fixed by Party Under Article 2
The party to whom the contract gives the right to fix the price must act in good faith. If
that party does not fix the price in good faith, the other party may either cancel the contract or fix
a reasonable price herself. [UCC §2-305(3)]
If an agreement does not specify the time in which an act is to be performed, the law implies that
it is to be performed within a reasonable time.
Vagueness Can Be Cured by Part Performance
*Often, an offer will state that some term is to be agreed on at a future date. If the term is a
material term, the offer is too uncertain.
Communication to Offeree
To have the power to accept, the offeree must have knowledge of the offer. Therefore, the
proposal must be communicated to her. There can be no meeting of the minds if there is no
knowledge of the offer.
Preliminary Negotiations: R§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 has made a
further manifestation of assent; lacks offeror’s “fixed purpose”
Agreement to put in writing- this could be binding if the writing follows an oral agreement and
the writing is a formality. If it is meant as a final incorporation then it could mean that there was
no agreement.
Termination of Power of Acceptance
R§36: Methods of Termination of the Power of Acceptance
(1) An offeree’s a power of acceptance may be terminated by
Rejection or counter-offer by the oferee, or
Lapse of time
Revocation by the offeror, or
Death or incapacity of the offeror or oferee
A) Rejection and Counteroffer as rejection
1-Express Rejection An express rejection is a statement by the offeree that she does not intend
to accept the offer. Such a rejection will terminate the offer. [Restatement (Second) of
Contracts §36]
2- Counteroffer as Rejection A counteroffer is an offer made by the offeree to the offeror that
contains the same subject matter as the original offer but differs in its terms. A counteroffer
serves as a rejection of the original offer as well as a new offer. [Restatement (Second) of
Contracts §39]
*this is different under UCC 2-207- it could also just be mere inquiry
Effective When Received
A rejection is effective when received by the offeror.
Rejection of Option
Because an option is a contract to keep an offer open, a rejection of or a counteroffer to
an option does not constitute a termination of the offer. The offeree is still free to accept the
original offer within the option period unless the offeror has detrimentally relied on the
offeree’s rejection. [Restatement (Second) of Contracts §37]
B)-Lapse of Time
Must Accept Within Specified or Reasonable Time The offeree must accept the offer
within the time period specified or, if no time period is specified, within a reasonable time. If she
does not do so, then she will have allowed the offer to terminate.
Look to When Offer Is Received by Offeree If the offer provides that it will expire within a
particular time period, that period commences when the offer is received by the offeree
C- Termination by Offeror—Revocation
A revocation terminates the offeree’s power of acceptance if it is communicated to her before
she accepts.
Methods of Communication
-Through comparable means
- Indirect Communication
The offer may be effectively terminated if the offeree indirectly receives: (i)
correct information, (ii) from a reliable source, (iii) of acts of the offeror that would indicate to a
reasonable person that the offeror no longer wishes to make the offer
*by a reliable third party
Limitations on Offeror’s Power to Revoke
Offers can be revoked at will by the offeror, even if he has promised not to revoke for a
certain period, except under certain situations where the offeror’s power to terminate the offer is
1) Options- An option is a distinct contract in which the offeree gives consideration for a
promise by the offeror not to revoke an outstanding offer.
*Once the option ends the seller may revoke the offer without having to communicate
2)Merchant’s Firm Offer Under Article 2- if an offer between merchants is made and
it is in writing. The offer will remain open even without consideration if the writing specifies the
period. if it does not then the max is 3 months. [UCC §2-205]
Form Supplied by Offeree-If the term assuring that the offer will be held open is on a
form supplied by the offeree, it must be separately signed by the offeror. [UCC §2-205]
Detrimental Reliance [Restatement (Second) of Contracts §87]
When the offeror can reasonably expect that the offeree would rely to her detriment on
the offer, and the offeree does so rely, the offer will be held irrevocable as an option contract for
a reasonable length of time
*A general contractor who takes bids from subcontractors for a final irrevocable bid. The
subcontractor must reasonably expect that the GC may rely on the offer.
Beginning Performance in Response to True Unilateral Contract Offer
An offer for a true unilateral contract becomes irrevocable once performance has
*it freezes the offeror
Offeror refuses performance-If the offeror’s cooperation is necessary for performance, his
withholding of it upon the tender of performance is the equivalent of commencing performance.
[Restatement (Second) of Contracts §45]
Therefore, once the offeree begins performance, the contract is complete and revocation
becomes impossible. But note: Notification of the start of performance may be necessary
D- termination by law – death or incapacity
If either of the parties dies or is adjudicated insane prior to acceptance, the offer is terminated. It
is not necessary that the death or insanity be communicated to the other party.
[Restatement (Second) of Contracts §48]
Who can accept?
-The party or group to whom the offer is directed to.
-If the offer requests performance from an unlimited number of persons, performance by
anyone knowing of the offer will cut off the power of every other person to accept, provided that
the offeror desires only one performance and there is no indication that he is willing to pay more
than once.
Offeree Must Know of Offer- The offeree must know of the offer in order to accept, and this
is true whether the offer is for a bilateral or unilateral contract.
Ex. Cindy offers to pay $1,000 to the person who finds her missing dog. Dee finds a dog
in her yard, reads its tags, and returns the dog to Cindy without knowledge of Cindy’s
offer. Most courts hold that no contract is formed here.
Notice -Generally, the offeree is not required to give the offeror notice that he has begun the
requested performance, but is required to notify the offeror within a reasonable time after
performance has been completed. If a required notice is not given, the offerors duty may be
discharged due to failure of a condition subsequent.
Notice is not required if- 1) the need for notice is waived by the offeror 2) it is obvious to the
offeror that performance was completed making notice unnecessary
-Acceptance of Offer for Bilateral Contract
Generally, Acceptance Must Be Communicated Generally, acceptance of an offer to enter into a
bilateral contract must be communicated to the offeror.
Exception—Waiver in Offer- If an offer provides that acceptance need not be communicated,
then no communication of the acceptance is required.
Example: Alex applies for life insurance on a form that provides that the policy will
become effective immediately upon approval by the insurance company’s home office. The
insurance contract is formed when the home office approves Alex’s application.
Silence as Acceptance- [Restatement (Second) of Contracts §69]
If the offeree silently takes offered benefits, the courts will often find an acceptance.
Offered services 69(b)
When a person confers the benefits of a performance and knew or had reason to know that
payment was expected for the performance and by a word could’ve corrected the mistake
Method of Acceptance
Unless otherwise provided, an offer is construed as inviting acceptance in any reasonable
manner and by any medium reasonable under the circumstances. Any objective manifestation of
the offeree’s counter-promise is usually sufficient.
Acceptance Must Be Unequivocal Traditional contract law insisted on an absolute and
unequivocal acceptance of each and every term of the offer (the “mirror image rule”). At
common law, any different or additional terms in the acceptance make the response a rejection
and counteroffer.
Offers to Buy Goods for Current or Prompt Shipment -As noted above, an offer to buy goods
for current or prompt shipment may be accepted by either a promise to ship or by a shipment of
conforming or nonconforming goods.
The shipment of nonconforming goods is an acceptance creating a bilateral contract
as well as a breach of the contract unless the seller seasonably notifies the buyer that a shipment
of nonconforming goods is offered only as an accommodation.
Battle of the Forms-The UCC does not follow the mirror image rule, and additional or
different terms + timely acceptance do not count as rejection and counteroffer. UNLESS the
acceptance is made conditional on the acceptance of the new terms
The additional or different terms:
Between non-merchants- mean that the parties have a binding K but the new terms are merely a
suggestion and the offeror must agree to them.
Between Merchants- The terms become part of the offer UNLESS
1) the acceptance was made conditional on the exact initial terms
2) the offeror rejects
3) They materially alter the original terms of the offer (e.g., they change a party’s risk
or the remedies available)
The knockout Rule
Under some jurisdictions when the parties disagree on specific terms such as time of
delivery the courts will knock those terms out and replace them with UCC terms
*when there is disagreement about the delivery date, the UCC will state they must
be delivered within a reasonable time
*(jurisdiction) is a material element that would be covered under 207
* U.C.C. 2-207 must not be construed to allow additional terms that are
inconsistent with the original agreement.
Performance to bind a bi-lateral- At common law, the last communication sent to the party
who performed is considered a counteroffer and the performance is considered
acceptance of the counteroffer. In contracts for the sale of goods, Article 2 specifically
provides that conduct by both parties that recognizes the existence of a contract is
sufficient to establish the contract. [UCC §2-207(3)]
The Mailbox Rule- R§63a Acceptance by mail or similar means creates a contract at the
moment of dispatch, provided that the mail is properly addressed and stamped UNLESS
1) The offer states that acceptance is binding at the time of receipt
2) there is an option K
Offeree Sends Rejection, Then Acceptance= whichever is received 1st
Acceptance, then rejection= mailbox rule applies; unless offeree received rejection first and
relied on it
 Offer: when received
 Acceptance: when its sent R§66 Proper dispatch
o Improper dispatch okay if it arrives on time.
 C/Offer: When received
 Rejection/Revocation: when received R§ 68
The bargained for exchange between two parties of valuable consideration.
There must be a
1) bargain between for exchange
2) there must be a detriment to both parties
Bargained for Exchange
Promise must induce the detriment and the detriment must induce the promise
If either of the parties was not bargaining for consideration and just making a gift
then there was no consideration.
Father tells Daughter, “I’ll give you $1,000 if you stop smoking.” Father’s emotional
gratification from influencing his daughter’s health suffices as consideration.
“PAST” OR “MORAL” CONSIDERATION – past or moral consideration is generally not
Daniel Mills v. Seth Wyman
FACTS: D promised P payment for P’s services and hospitality to his sick son after the fact. D
later refused to honor the commitment.
RULE: Moral obligations alone are insufficient to provide valid consideration for a binding
Debt Barred by a Technical Defense
If payment is no longer required because of the statute of limitations, the past debt can serve as
consideration if the person states that they would be willing to pay now.
Material Benefit Rule
Joe Webb v. N. Floyd and Joseph McGowin
FACTS: P had been permanently injured when he prevented a workplace accident that saved
D’s life. D agreed to pay P every two weeks during the remainder of D’s life. D died, estate tried
to stop make paying payments.
RULE: A moral obligation is a sufficient consideration to support a subsequent promise to
pay where the promisor has received a material benefit, although there was no original duty
on the promisor.
*moral consideration w/ a subsequent promise to pay+ the receipt of a material benefit
will usually suffice.
The Second Restatement follows this rule but adds that the promise is unenforceable to
the extent it is disproportionate to the benefit conferred. [Restatement (Second) of Contracts
Legal Value
Adequacy- courts will not look to adequacy of a bargain unless it is unconscionable.
Legal Detriment and Benefit
Legal detriment will result if the promisee does something he is under no legal
obligation to do or refrains from doing something that he has a legal right to do
Louisa Hamer v. Franklin Sidway
RULE: If forbearance is given by a party in exchange for a promise to perform by another party,
then there is valid consideration thus an enforceable contract.
NOTE: Possible Argument: treat the forbearance as a job, so the nephew should be compensated
for normal wages for the duration of his forbearance.
Legal Benefit - In other words, it is a forbearance or performance of an act by the
promisee which the promisor was not legally entitled to expect or demand
Preexisting Legal Duty Not Consideration- Traditionally the promise to perform, or the
performance of, an existing legal duty is not consideration.
Ex.Smith offers a $10,000 reward for recovery of his kidnapped daughter. Jones, a police
officer assigned to this case, recovers the daughter. Jones’s performance of her official duty is
not sufficient consideration
- if the promisee adds consideration in any way or agrees to accelerate performance, then there is
added consideration and this can be binding.
*A defrauded person who w/o fraud ratifies the K will excuse the preexisting duty rule
Unforeseen Circumstances- Restatement (Second) of Contracts §89
a promise modifying a contract that has not been fully performed on either side is binding
without consideration if the modification is fair and equitable in view of circumstances not
anticipated when the contract was made (e.g., contractor unexpectedly hits bedrock)
-most states hold that if the unforeseen circumstances rise to the level of impracticability, a
modification will be allowed as excuse to the preexisting duty rule
Article 2 . UCC §2-209(2) does not follow this rule. Under Article 2, contract modifications
sought in good faith are binding without consideration. Modifications extorted from the other
party are in bad faith and are unenforceable.
Acme Co. promises to buy from Batcher, Inc. “such ice cream as I may wish to order from
Batcher, Inc.” Acme’s promise is illusory, because it is still free to buy from anyone else it
chooses, or not to buy at all.
Rehm-Zeiher v. F.G. Walker Co.
FACTS: Buyer to a transaction leaves clause in contract which allows him to avoid all
obligation to make purchases if for any unforeseen reason he wishes to avoid delivery.
RULE: Without mutuality of obligation, there is no consideration and the contract is
Promise Conditioned on Satisfaction A promise conditioned on the promisor’s satisfaction is
not illusory because the promisor is constrained by good faith (for contracts involving
personal taste) and a reasonable person standard (for contracts involving mechanical fitness,
utility, or marketability).
Right to Cancel or Withdraw Although reservation of an unqualified right to cancel or
withdraw at any time may be an illusory promise, the consideration is valid if this right is in
any way restricted, e.g., the right to cancel upon 60 days’ notice. Note that Article 2 implies a
requirement of reasonable notice even if it is not specified in the contract. [UCC §2-309(3)]
Exclusivity Agreements—Best Efforts Implied UCC §2-306(2)
Otis F. Wood v. Lucy, Lady Duff-Gordon
FACTS: D employed P to help her do her business, and gave P exclusive right to license out her
name in exchange for 50% of the profits he earned. Right after the contract was signed, D went
out on her own and did her own dealings and did not pay P.
RULE: A promise to exclusively represent the interests of a party constitutes sufficient
consideration because it requires an unstated duty to use reasonable efforts based on that
necessary if the facts indicate that the promisor should be estopped from not performing. A
promise is enforceable if necessary to prevent injustice if:
1) the promisor should reasonably expect action or foreberance
2) it does induce action or foreberance
restatement 90 – this may be enforced as far a justice requires
under the restatement reliance damages will usually be the remedy
Must be evidenced by a writing signed by the party sought to be bound.
(i) reasonably identify the subject matter of the contract, (ii) indicate that a contract has been
made between the parties, and (iii) state with reasonable certainty the essential terms of the
unperformed promises. [Restatement (Second) of Contracts §131]
Electronic record satisfies – the statute of frauds requirement may be satisfied by an email
Agreements Covered
MYLEGS (marriage/year/land/executor/sale of goods/suretyship)
1) Marriage - A promise the consideration for which is marriage must be evidenced by a
writing. This applies to promises that induce marriage by offering something of value (other than
a return promise to marry— “if you marry my son, I will give the two of you a house”).
2) Performance Not Within One Year from Date of Contract- The date runs from the date of
the agreement and not from the date of performance.
Possibility of Completion Within One Year If the contract is possible to complete within one
year, it is not within the one-year prong of the Statute of Frauds, even though actual
performance may extend beyond the one-year period.
Right to terminate within the year- The majority view is that nonperformance is not
performance within one year, and so the contract is still within the Statute of Frauds. The
minority Second Restatement view suggests that because the contract is terminable by either
party within a year, it is outside the Statute.
Performance by One Party Even if a contract cannot be performed within one year, if it has
been fully performed on one side, it can be found enforceable
3) Interest in Land- A promise creating an interest in land must be evidenced by a writing. This
includes not only agreements for the sale of real property, but also other agreements
pertaining to land.
* Part performance that unequivocally indicates that the parties have contracted for the sale
of land takes the contract out of the Statute of Frauds
at least two (i) payment (in whole or in part), (ii) possession, and/or (iii) valuable improvements.
Can only sue for specific performance
4) Executor or Administrator Promises Personally to Pay Estate Debts
5) Goods Priced at $500 or More
Note that a writing is sufficient even though it omits or incorrectly states a term, but the
contract is not enforceable beyond the quantity of goods shown in the writing
 Custom goods- if the goods are made specially for the customer and can’t be sold to
anyone else + the manufacturer has taken a substantial beginning before repudiation.
[UCC §2-201(3)(a)]
Admissions- if there is an admission in court of the K then it is binding. Only binding to
what is admitted. [UCC §2-201(3)(b)]
Payment or Delivery of Goods- If goods are either received and accepted or paid for,
the contract is enforceable. However, the contract is not enforceable beyond the quantity
of goods accepted or paid for
Merchants confirmatory memo- b/w merchants if there is confirmatory memo sent
after an oral agreement the party that receives the memo has 10 days to object before it
becomes binding
6)Promises to Pay Debt of Another (Suretyship Promises)
“Give him the goods, and if he does not pay, I will.” This promise is a collateral promise and
must be evidenced by a writing. But if the promise is, “Give him the goods, and I will pay for
them,” the promise is a primary promise and need not be evidenced by a writing.
When it is taken out of the statute
Equitable and Promissory Estoppel Estoppel (see III.D., supra) is sometimes applied in cases
where it would be inequitable to allow the Statute of Frauds to defeat a meritorious claim. When
a defendant falsely and intentionally tells a plaintiff that the contract is not within the Statute
Formation Defenses
Factual error of fundamental matter which has material change
Mutual mistake R§152- When both parties entering into a contract are mistaken about existing
facts (not future happenings) relating to the agreement, the contract may be voidable by the
adversely affected party if the mistake concerns
 Basic assumption
 Material effect-mistake changes the value of the item substantially
 Party seeking avoidance did not assume the risk
T.C. Sherwood v. Hiram Walker
FACTS: P attempted to buy a cow from D. Both were under the assumption that the cow was
barren and unfertile. D later found that the cow was a calf and fertile. D refused to sell.
RULE: The party who has given an apparent consent to a contract of sale may refuse to execute
it, if the assent was founded, or contract made, upon the mistake of a material fact, when
the mistake is mutual.
Lenawee County Board of Health v. William and Martha Messerly
FACTS: P bough dwelling from D, only to discover that an illegal septic system had
contaminated the ground. P sought a recession of purchase.
RULE: Buying a property “as is” is in assumption of the risk, which does not allow a mutual
mistake to allow for rescission as a remedy.
Mistake in assumption of price is usually not a defense because parties bare the risk of their
assumption being wrong. BUT if they get an expert opinion on price and the expert was wrong,
they can get it void.
Unilateral Mistake R§ 153
If the nonmistaken party knew or had reason to know of the mistake made by the other party,
the contract is voidable by the mistaken party
Ayer v. Western Union Telegraph Co.
FACTS: P employed D to send telegraph to a third party that made an offer to sell. D sent the
wrong offer. P is seeking recovery of lost profit from D.
RULE: The party who selects the means of communication shall bear the loss caused by the
errors of that respective communication.
R§ 154: When a Party Bears the Risk of a Mistake
A party bears the risk of a mistake when
a) The risk is allocated to him by agreement of the parties, or
b) Aware that he has only limited knowledge with respect to the facts to which the
mistake relates but treats his limited knowledge as sufficient or
c) The risk allocated to him by the court on the ground that is reasonable in the
circumstances to do so.
OneBeacon America Insurance Co. v. Travelers Indemnity Company of Illinois
Rule of Law
A written contract may be reformed if its language does not reflect the true intent of the
parties in making the agreement.
Misrepresentation: R§159 an assertion that is not accord with the facts
R§162 Misrepresentation is Fraudulent or Material
(a) Knows or believes that the assertion is not in accord with the facts
(b) Does not have the confidence that he states or implies in the truth of the assertion, or
(c) Knows that he does not have the basis that he states or implies the assertion.
(1) 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.
Fraudulent Misrepresentation (fraud in inducement)
If a party induces another to enter into a contract by using fraudulent misrepresentation (e.g.,
by asserting information she knows is untrue), the contract is voidable by the innocent party
if she justifiably relied on the fraudulent misrepresentation.
*fraud in inducement = VOIDABLE IF justifiable reliance
Fraud in the Factum- Fraudulent in the formation
If one of the parties was tricked into giving assent to the agreement under circumstances that
prevented her from appreciating the significance of her action, the agreement cannot be enforced
*if there was fraud in the formation- VOID
Material Misrepresentation
(i) it would induce a reasonable person to agree, or
(ii) the maker knows that for some special reason it is likely to induce the particular person to
agree, even if a reasonable person would not.
*if the person justifiably relied on the material misrepresentation, whether fraudulent or not, the
contract is voidable
Laidlaw v. Organ
Where the means of intelligence about extrinsic information is equally accessible to both parties
to a contract, the knowing party does not have a duty to disclose the information to the other
party, but at the same time, the knowing party may not say or do anything to mislead the other
Vokes v. Arthur Murray, Inc. (Dancing pendeja)
A statement of opinion may be actionable as a misrepresentation where the party stating his
opinion possesses superior knowledge of the truth or falsity of the statement.
Contracts induced by duress (e.g., “sign the contract or I’ll break your legs”) or undue influence
are voidable and may be rescinded as long as not affirmed.
Restatement (Second) of Contracts §175]
Physical duress makes the K void
Threat of physical harm as duress will make the K Voidable at the parties option
Economic Duress Generally Not a Defense Generally, taking advantage of another person’s
economic needs is not a defense. However, withholding something someone wants or needs will
constitute economic duress if (i) The party threatens to commit a wrongful act that would
seriously threaten the other contracting party’s property or finances; and (ii) There are no
adequate means available to prevent the threatened loss.
Austin Instrument, Inc. v. Loral Corp.
A contract is voidable on the ground of economic duress when it is established that the party
making the claim was forced to agree to it by means of a wrongful threat precluding the
exercise of his free will.
The concept of unconscionability allows a court to refuse to enforce a provision or an entire
contract (or to modify the contract) to avoid “unfair” terms. there are two types of
unconscionability: substantive unconscionability (i.e., unconscionability based on price alone)
and procedural unconscionability (i.e., unconscionability based on unfair surprise or unequal
bargaining power).
“Unconscionability” is defined as the absence of meaningful choice on the part of one of the
parties to a contract, combined with contractual terms which are unreasonably favorable to
the other party.
Ora Lee Williams vs. Walker-Thomas Furniture Company
RULE: Where the element of unconscionability is present at the time a contract is made, the
contract should not be enforced.
NOTES: Meaningful choice, reasonable opportunity to understand, educational background,
“terms hidden”
Forms of Unconscionability:
1. Substantive
 Price alone- not often recognized as a defense
2. Procedural
 The process and the method in which the contract as entered into
 Usually unequal bargaining power.
 Time pressure
 Unfair surprise (ex. small print terms)
Common Instances of Procedural Unconscionability
 Risk shifting
 Disclaimer of warranty provision
 Add on clauses- see Ora Lee Williams v Walker
Contracts of Adhesion-“Take It or Leave It”
Exculpatory Clauses
such a clause is against public policy in most states.
U.C.C§ 2-302: Unconscionable Contract or Clause
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.
R§79 comment c specifically says consideration need only be sufficient.
Clifton Jones v. Star Credit Corp
RULE: It is possible for a contract to have all the proper elements but if the terms and conditions
are deemed “unconscionable” then the court has the right to revise, in particular, in the sales of
NOTES: Instance when the court looked at adequacy of the consideration. Section 79b of the
Second Restatement provides that there is no requirement of “equivalence in the values
Both parties unaware of ambiguity- if both parties are unaware of the ambiguity of a term then
there is no contract, UNLESS they both mean the same.
-Neither party was aware that there were two ships named Peerless. Their subsequent expression
of the ship each intended indicates that they did not intend the same ship at the time of
contracting. Therefore, there is no contract. Raffles v. Wichelhaus
Both Parties Aware of Ambiguity—No Contract If both parties were aware of the ambiguity at
the time of contracting, there is no contract unless both parties in fact intended the same
One Party Aware of Ambiguity—Contract If one party was aware of the ambiguity and the
other party was not at the time of contracting, a contract will be enforced according to the
intention of the party who was unaware of the ambiguity.
--Contracts of minors R§14: Infant
a contract entered into between an infant and an adult is voidable by the infant but binding on
the adult.
If a minor chooses to disaffirm, she must return anything that she received under the contract
that still remains at the time of disaffirmance. However, there is no obligation to return any part
of the consideration that has been squandered, wasted, or negligently destroyed.
Necessity Exception
Most states hold that a minor can disaffirm a contract but is liable for restitution for the
value of the benefits received
Affirmance upon Majority An infant may affirm, i.e., choose to be bound by his contract, upon
reaching majority. He affirms either expressly or by conduct, e.g., failing to disaffirm the
contract within a reasonable time after reaching majority
Larry Bowling v. Max Sperry
FACTS: P, a minor, purchased car from D, for $140. P paid and took possession of the car and
certificate of title. P after paying noticed it would take $45 to $95 to repair car. P demanded
return of his money and nullification of prior contract.
RULE: Contracts entered into by minors are voidable and can be rescinded.
RULE: When a contract is deemed a necessity, a contract is enforceable until disaffirmance.
--Mental Incapacity-R§15: Mental Illness or Defect
Voidable contractual:
 He is unable to understand in a reasonable manner the nature and consequences of the
transaction, or
 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.
The person, when lucid, can affirm or disaffirm making the K voidable
Intoxicated Persons -One who is so intoxicated that he does not understand the nature and
significance of his promise may be held to have made only a voidable promise if the other
party had reason to know of the intoxication.
R§16: Intoxicated Persons
Voidable contractual duties, other party has reason to know that by reason by intoxication:
 He is unable to understand in a reasonable manner the nature and consequences of the
transaction, or
 He is unable to act in a reasonable manner in relation to the transaction.
Generally, Contract Is Void Illegal consideration or subject matter renders a contract void and
unenforceable. In a close case, a court may sever an illegal clause from the contract rather than
striking down the entire contract.
Plaintiff Unaware of Illegality If the plaintiff contracted without knowledge that the agreement
was illegal and the defendant acted with knowledge of the illegality, the innocent plaintiff may
recover on the contract
When the parties to K intend for the writing to be the final integration of their agreement, any
terms agreed upon before or during that are left out of the writing are inadmissible to contradict
the terms of the writing
The Parole Evidence Rule: prevents a party to a written contract from presenting extrinsic
evidence that discloses an ambiguity and clarifies it or adds to the written terms of the contract
that appears to be whole.
Final expression
If the agreement was intended as a final expression then parol evidence rule will bar introduction
of further evidence. the more complete the agreement appears to be on its face, the more likely
it is that it was intended as an integration.
Complete or partial integration
If complete, the writing may not be contradicted or supplemented;
if partial, it cannot be contradicted, but it may be supplemented by proving up consistent
additional terms. As with the finality component, whether an integration is complete or partial
depends on the intent of the parties. All relevant evidence is admissible for the purpose of
making the determination, even the evidence whose admissibility is challenged
The rationale behind the parol evidence rule is that the parties to an agreement will include all of
their terms in a written contract, so any terms that are not in the written contract were not
intended to be part of the final agreement. Restatement (Second) of Contracts § 213 (1981);
U.C.C. § 2-202
Generally, extrinsic evidence of prior or contemporaneous oral agreements and negotiations are
admissible in evidence to establish (1) that the writing is or is not an integrated agreement; (2)
the meaning of the writing, whether or not it is integrated; (3) a defense to the enforceability of
the writing, such as illegality, fraud, duress, mistake, or lack of consideration; or (4) that a
remedy should be granted or denied to one of the parties. Restatement (Second) Contracts §
Evidence Outside Scope of Rule
Validity Issues
1- A party can attack the validity if the K never came into being in the first place because of
Formation defects- fraud, duress, illegality, mistake, lack of consideration
2- Conditions Precedent- conditions precedent not satisfied therefore no K
Naturally Omitted Terms Restatement (Second) of Contracts, §216
The doctrine allows evidence of terms that would naturally be omitted from the written
agreement. A term would naturally be omitted if: (i) It does not conflict with the written
integration; and (ii) It concerns a subject that similarly situated parties would not ordinarily be
expected to include in the written instrument.
Subsequent Modifications-- Parol evidence can be offered to show subsequent modifications of
a written contract, because the parol evidence rule applies only to prior or contemporaneous
negotiations. In short, the parties may show that they have altered the integrated writing after its
Course of Dealing The parties’ course of dealing may be used to explain a contract. A course of
dealing is a sequence of conduct concerning previous transactions between the parties to a
particular transaction that may be regarded as establishing a common basis of their
understanding. [UCC §1-303(b), (d)]
*Look at prior K’s between the parties
Course of Performance Where a contract involves repeated occasions for performance by either
party and the other party has the opportunity to object to such performance, any course of
performance accepted or acquiesced to is relevant in determining the meaning of the contract.
[UCC §1-303(a), (d)]
Usage of Trade A usage of trade may also be used to explain a contract. A usage of trade is a
practice or method of dealing, regularly observed in a particular business setting so as to justify
an expectation that it will be followed in the transaction in question. [UCC §1-303(c), (d)]
Article 2 also provides that a written contract’s terms may be explained or supplemented by
evidence of course of performance, course of dealing, and usage of trade—regardless of
whether or not the writing appears to be ambiguous. The UCC allows for additional terms that
are not contradictory unless there is a merger clause, or the courts find enough to evidence that
the writing was complete integration
Metro-Goldwyn-Mayer, Inc. v. Scheider
When parties have negotiated the essential terms of a contract, and performance has begun on the
good faith understanding that agreement on unsettled terms will follow, the contract is
enforceable, provided some objective method of determining the missing terms is available.
NOTES: When there’s ambiguity to a term in a contract: R§203(b)
 4 corners
 Prior dealings between the parties
 Contract between with one party with a 3rd party industry
 Industry standard
U.C.C § 2-204 (3): Formation in General
 Even though one or more terms are left open for 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.
Joseph Martin, Jr., Delicatessen, Inc. v. Henry Schumacher
FACTS: D leased a retail location to P for a term of five-years, on a graduated rent scale. Within
the lease agreement was a renewal clause, which allowed for future rent, “to be agreed upon.” P
desired to renew its lease, but D would not agree upon a reasonable rent.
NOTES: Rent could not be calculated.
* You cannot agree to agree in the future. There must be a sufficiently definite method for
determining the future price
Christopher Specht v. Netscape Communications
FACTS: P’s acted upon D’s invitation to download their free software, SmartDownload. P’s
were not required to read the full terms of the contractual agreement, including an arbitration
clause, before they clicked the download button. The terms and conditions were below the
download button. P’s use of SmartDownload transmitted to defendants private information about
plaintiff’s downloading of files from the Internet.
RULE: Terms & conditions as part of online downloads need to be reasonably viewable &
readily available before download. Reasonably prudent person standard.
RULE: Need to be put on notice OF terms & conditions.
NOTES: NO MUTUAL ASSENT – Terms & conditions weren’t available until after
Cairo, Inc. v. Crossmedia Services, Inc.
Rule of Law
A party’s repeated and automated use of a website, the content on which is offered to users
subject to stated terms of use, imputes knowledge to the party of the terms of use.
This follows from the general contractual rule that if a benefit is offered subject to stated terms,
and a party accepts the benefit with knowledge of the terms, the party accepts the terms as well
as the benefit.
Varney v. Ditmars
Yes. The term “fair share” is too vague and uncertain to permit enforcement of the agreement
between Ditmars and Varney. For a contract to be valid, the agreement made must be definite
and explicit enough to permit the full intent of the parties to be ascertained with a
reasonable degree of certainty.
U.C.C. 2-305 Open Price Term
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 of delivery if
(a) Nothing is said as to the price
(b) The price is left to be agreed by the parties and they fail to agree; or
(c) 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
Oglebay Norton Company v. Armco, Inc.
FACTS: D encountered an inability to pay the shipping prices as they were set by P. In P filed a
Declaratory Judgment action, requesting a rate be set for the price of steel. D filed counterclaim
seeking the contract be voided due to a failure of the rate pricing mechanism.
RULE: When a contract’s operating mechanisms break down, the court will look to the intent of
the parties to determine whether an agreement will continue or end.
RULE: An open price term can be filled by a court, which has the authority to review
evidence and establish a “reasonable price”, when the parties clearly intended to be bound by a
R§33: Certainty
(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 terms of the contract are reasonably certain.
(2) The terms of a contract are reasonably certain if they provide a basis for determining the
existence of a breach and for giving an 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 as an acceptance.
Empro Manufacturing Co, Inc. v. Ball-Co Manufacturing, Inc.
FACTS: Both parties exchanged letters of intent, regarding the sale of D’s assets to P, both also
acknowledging that security for P’s note would need to be agreed upon. The parties failed to
agree upon security. The terms were too general.
RULE: Mutual letters of intent do not bind the parties to an agreement when integral terms are
undecided. Parties must be allowed to negotiate w/o being bound.
*cannot agree to agree
Delivery Terms and Risk of Loss
Merchant v Non Merchant seller
In such a case, if the seller is a merchant, risk of loss passes to the buyer only when she takes
physical possession of the goods. If the seller is not a merchant, risk of loss passes to the buyer
upon tender of delivery. [See UCC §2-509(3)]
--Nonmerchant Seller sells goods to Buyer and the parties agree that the goods will be
picked up by Buyer at noon on Monday. Seller has the goods ready for Buyer at that time, but
Buyer does not arrive. The goods are destroyed at 1:30 p.m. that day. Risk of loss falls on Buyer
because Seller tendered delivery at noon when he had the goods ready for pickup by Buyer
Shipment K- the risk passes to the buyer when the goods are delivered to the carrier. The
UCC presumes that all K’s are shipment K’s if they do not specify. [UCC §2-509(1)(a)]
Destination Contracts -If the contract requires the seller to deliver the goods at a particular
destination, the risk of loss passes to the buyer when the goods are tendered to the buyer at the
destination. [UCC §2-509(1)(b)]
Defective Goods If the buyer has a right to reject the goods, the risk of loss does not pass to
the buyer until the defects are cured or she accepts the goods in spite of their defects. [UCC
F.A.S. stands for “free alongside.” The term is generally used only when goods are to be shipped
by boat. The risk of loss passes to the buyer once the goods are delivered to the dock.
Warranty of Title Any seller of goods warrants that the title transferred is good, that the transfer
is rightful, and that there are no liens or encumbrances against the title of which the buyer is
unaware at the time of contracting. [UCC §2-312]
Implied in every contract for sale by a merchant who deals in goods of the kind sold, there is a
warranty that the goods are merchantable. The serving of food or drink for consumption on the
premises is a sale of goods subject to the warranty of merchantability. [UCC §2-314(1)]
PERFORMANCE AT COMMON LAW A party’s basic duty at common law is to
substantially perform all that is called for in the contract.
PERFORMANCE UNDER ARTICLE 2 Article 2 generally requires a perfect tender—the
delivery and condition of the goods must be exactly as promised in the contract. Note the
UCC 2-601- requires perfect tender of the goods
UCC 2-508- will allow for the seller to cure if the seller notifies seasonably
Obligation of Good Faith In performance or enforcement of a contractual duty, Article 2
requires all parties to act in good faith, which is defined as “honesty in fact and the observance of
reasonable commercial standards of fair dealing.” [UCC §1-201(2)] This obligation cannot be
waived by the parties.
Material Breach R2d 241 If the obligee does not receive the substantial benefit of her
bargain as a result of failure to perform or defective performance, the breach is considered
material. If the breach is material, the consequences are more severe. The nonbreaching party (i)
may treat the contract as at an end, i.e., any duty of counterperformance owed by her will be
discharged, and (ii) will have an immediate right to all remedies for breach of the entire contract,
including total damages.
Minor Breach A breach of contract is minor if the obligee gains the substantial benefit of her
bargain despite the obligor’s defective performance. Examples would be insignificant delays in
completing performance or small deficiencies in the quality or quantity of performance when
precision is not critical. The effect of a minor (immaterial) breach is to provide a remedy for the
immaterial breach to the aggrieved party. The aggrieved party is not relieved of her duty of
performance under the contract.
R2d 374 – Allows for restitution damages to the breaching party if they have partially
CONDITIONS A contract may provide that a party does not have a duty to perform unless
some condition is fulfilled. In such a case, the party’s failure to perform will normally be
justified if the condition was not fulfilled.
Nonfulfillment of a condition normally will excuse a duty to perform that was subject to the
Condition Precedent A condition precedent is one that must occur before an absolute duty of
immediate performance arises in the other party.
For there to be duty to perform the condition must first be met
Condition Subsequent A condition subsequent is one the occurrence of which cuts off an
already existing absolute duty of performance.
Express Conditions The term “express condition” normally refers to an explicit contractual
provision. It is an express statement in the contract providing that either (i) a party does not have
a duty to perform unless some event occurs or fails to occur; or (ii) if some event occurs or fails
to occur, the obligation of a party to perform one or more of his duties under the contract is
suspended or terminated. Conditions of satisfaction are common express conditions.
When Purpose of Condition Is to Benefit One Party When it is clear that the purpose of a
condition is to protect or benefit only one of the parties, the other party’s duty will not be subject
to the condition.
Implied Conditions Sometimes it is implied that the duty to render performance under a
contract is conditional upon the occurrence of some event or state of the world, even though the
contract does not explicitly so state. In that case, there is said to be an “implied” or
“constructive” condition that the relevant event or state of the world must occur before the
performance of one or both parties comes due
-substantial performance is usually sufficient for implied conditions
when once K takes more time to complete than the other the longer will be a condition precedent
to the shorter unless specified otherwise in the K
-A offer to paint the house of B for $200, the painting will be an implied condition precedent to
the $200
Excused condition
The party that is protected by the condition cannot hinder the completion of the condition
Anticipatory Repudiation Anticipatory repudiation occurs if a promisor, prior to the time set
for performance of his promise, indicates that he will not perform when the time comes.
For anticipatory repudiation to apply both parties must have unperformed duties. And the
contract must be bilateral.
If the non-breaching party has fulfilled all of its duties, then it must wait for the due date of
performance from the repudiating party in order to sue. Before this the repudiating party can
change its mind and the repudiation must be unequivocal. [UCC §2-611]
§ 2-609. Right to Adequate Assurance of Performance.
§ 251. When a Failure to Give Assurance May Be Treated as a Repudiation
1-Full performance
2-Conditions Precedent
3-Condition Subsequent
4-Discharge by Tender of Performance- Good faith tender of performance made in
accordance with contractual terms will also discharge contractual duties. Note that to tender
performance the party must offer to perform and possess the present ability to perform; a mere
promise of performance will not suffice.
Impossibility/ Impracticability/ Frustration
This will be allowed when the parties made a basic assumption about the nonoccurrence of the
event that occurred. This event must not have been present before the formation of the K and
neither of the parties must have assumed the risk of the occurrence of the event
5-Discharge by Illegality - If the subject matter of the contract has become illegal due to a
subsequently enacted law or other governmental act, performance will be discharged
6- Impossibility – impossibility of performance will be measured objectively(no one can
perform under the circumstances). The impossibility must occur after the K has become
binding otherwise it is an issue regarding formation. The impossibility will excuse both parties
from performing whatever remaining they must perform.
7- Impracticability
1- it has become extreme and unreasonable expense
2- the nonoccurrence of the event was a basic assumption between the parties
A slight or even significant change in price will not be considered impossibility since this is what
a fixed price is supposed to protect against
Thus, the fact that something is more expensive— even much more expensive—is not
impracticability. [Restatement (Second) of Contracts §261]
Contracts for the Sale of Goods Article 2 generally follows the above rules for impossibility
and impracticability. If performance has become impossible or commercially impracticable, the
seller will be discharged to the extent of the impossibility or impracticability. [U.C.C. §2-615]
8- Frustration
frustration of purpose to discharge a duty would be allowed when a supervening event, that
was not foreseeable at the time of the making of the agreement, completely or almost
completely, destroyed the purpose of the K and the purpose of the K was known by both
parties at the time of the making.
Discharge by Rescission
Mutual rescission
the parties can enter into an express agreement to rescind if both of them had executory
Unilateral Rescission Unilateral rescission results when one of the parties to the contract desires
to rescind it but the other party desires that the contract be performed according to its terms. For
unilateral rescission to be granted, the party desiring rescission must have adequate legal
grounds. Most common among these are mistake, misrepresentation, duress, and failure of
Modification of Contract If a contract is subsequently modified by the parties, this will serve to
discharge those terms of the original contract that are the subject of the modification. It
will not serve to discharge the entire contract. To have such a partial discharge, the following
requirements must usually be met.
Mutual Assent The modifying agreement must have been mutually assented to.
*reformation is a sort of uni latertal modification if it can be show that the parties intent was not
show in the K
Consideration specially if one of the parties benefits from the modification and the other does
Contracts for the Sale of Goods No consideration is needed for the modification of a contract
for the sale of goods under Article 2, as long as the modification is sought in good faith.
[U.C.C. §2-209(1)]
Discharge by Accord and Satisfaction A contract may be discharged by an accord and
Accord- An accord is an agreement in which one party to an existing contract agrees to accept,
in lieu of the performance that she is supposed to receive from the other party to the existing
contract, some other, different performance
Douthwright v. Northeast Corridor Foundations
An accord and satisfaction is only enforceable if the tender of payment occurs in the context of a
good faith dispute about the amount of an unpaid debt.
Specific Performance- The legal remedy (damages) generally is inadequate when the subject
matter of the contract is rare or unique.
Available for Land and Rare or Unique Goods Specific performance is always available for land
sale contracts because all land is considered to be unique. It is also available for goods that are
rare or unique at the time performance is due (e.g., rare paintings, gasoline in short supply
because of oil embargoes, etc.).
Reformation is the remedy whereby the writing setting forth the agreement between the parties
is changed so that it conforms to the original intent of the parties.
Mistake To reform a contract because of mistake, there must be: (i) an agreement between the
parties, (ii) an agreement to put the agreement in writing, and (iii) a variance between the
original agreement and the writing.
Damages can be recovered only to the extent they can be proved with reasonable certainty and
could not be avoided with reasonable effort.
Specific Performance
Specific performance is can be the remedy when the legal remedy (monetary damages) is not
appropriate. This is usually the case when the subject matter of the K is rare or unique.
Available for Land and Rare or Unique Goods
NOT Available for Service Contracts
Injunction as Alternate Remedy In contrast, a court may enjoin a breaching
employee from working for a competitor throughout the duration of the contract if the
services contracted for are rare or unique. Negative injunction.
Compensatory Damages
Restatement §344 Purposes of Contract Remedies
Expectation Damages In most cases, the plaintiff’s standard measure of damages will be based
on an “expectation” measure, i.e., sufficient damages for her to buy a substitute performance.
This is also known as “benefit of the bargain” damages. Measured objectively what the
reasonable person would have believed they would get from the bargain.
- being put in as good a position as he would have been in had the contract been performed
- can include consequential and incidental damages
Variable/ Direct costs which are different than fixed costs. Variable and direct costs are cost
that the non-breaching party now no longer has to pay
Reliance Damages
Put the plaintiff in the position she would have been in had the contract never been formed.
Consequential (as a result of breach; reasonably foreseeable, ascertainable and unavoidable)
Consequential damages such as lost profits are recoverable only if the loss could not be
reasonably be prevented by cover
Consequential Damages As noted above, a seller is liable for consequential damages arising
from his breach if: (i) he had reason to know of the buyer’s general or particular
requirements, and (ii) the subsequent loss resulting from those needs could not reasonably be
prevented by cover. Particular needs must be made known to the seller, but general
requirements usually need not be. [UCC §2-715(2)]
General consequential damages are those that the breaching party must be informed off in
order to be held liable for the breach.
Incidentals (inspection, preparation costs)
Restitution Interest: his interest in having restored to him any benefit that he has conferred
on the other party
Restitution is based on preventing unjust enrichment when one has conferred a benefit on
another without gratuitous intent. Restitution can provide a remedy not only when a contract
exists and has been breached, but also when a contract is unenforceable, and in some cases when
no contractual relationship exists at all between the parties.
When a contract is unenforceable or no contract between the parties exists, an action to recover
restitutionary damages often is referred to as an action for an implied in law contract, an action
in quasi-contract
Quasi-Contract Remedy Restitution may also be available in a quasi-contract action when
there is no contractual relationship between the parties if:
(i) The plaintiff has conferred a benefit on the defendant by rendering services or expending
(ii) The plaintiff conferred the benefit with the reasonable expectation of being compensated
for its value;
(iii) The defendant knew or had reason to know of the plaintiff’s expectation; and
(iv) The defendant would be unjustly enriched if he were allowed to retain the benefit without
compensating the plaintiff.
Liquidated Damages: a fair and reasonable attempt to allocate risk and damages/fix just
compensation for anticipated loss caused by breach of K (at the time K was executed & not when
Duty to mitigate damage (seek cover)
the buyer must make a reasonable contract for substitute goods in good faith and without
unreasonable delay. [UCC §2-712]
Must communicate special circumstances (peculiar circumstances, particular needs) if they
are to be considered in determining the foreseeability of damages
a. If special circumstances where wholly unknown to the party breaking the contract,
he, at the most, could only be supposed to have had in his contemplation the amount
of injury which would arise generally, and in the great multitude of cases not
affected by any such special circumstances, from such a breach of contract
b. Had the special circumstance been known parties might have specially provided for
the breach of contract by special terms as to the damages in that case (could have
tacitly agreed to be liable; cannot consider consequential-downstream effects from
∆’s failure to perform)
c. Hadley Rule R§351: Damages are not recoverable for loss that the party in breach
did not have reason to foresee as a probable result of the breach when the contract
was made
d. Loss may be foreseeable as a probable result of a breach because it follows from the
breach in the (a)ordinary course of events or (b) as a result of special circumstances,
beyond the ordinary course of events, that the party in breach had reason to know
Most courts today think it is enough that ∆ foresaw or had reason to foresee losses at issue
Third Party rights
Which Third-Party Beneficiaries Can Sue?
a. Intended Beneficiaries Can Sue Only intended third-party beneficiaries have contract rights.
As the term “intended third-party beneficiary” suggests, whether a person is an intended
beneficiary depends on the intent of the parties.
Example: Rich agrees to pay Erwin $1,000 to paint Paula’s house, and Erwin agrees.
Paula is an intended third-party beneficiary and has contract law rights even though she is not a
party to the contract.
Incidental Third-Party Beneficiaries Have No Contract Rights
Creditor Beneficiary If the promisee’s purpose in extracting the promise was to discharge an
obligation owed to the third party, the third party is a creditor beneficiary.
Donee Beneficiary If the promisee’s purpose in extracting the promise was to confer a gift on
the third party, the third party is a donee beneficiary
When Do the Rights of the Beneficiary Vest?
The general rule for both creditor and donee beneficiaries is that their rights vest when the
(i) Manifests assent to the promise in a manner invited or requested by the parties;
(ii) Brings suit to enforce the promise; or
(iii) Materially changes position in justifiable reliance on the promise.
[Restatement (Second) of Contracts §311]
General Rule Generally, all contractual rights may be assigned. However, several exceptions
to this rule exist.
1-Assigned Rights Would Substantially Change Obligor’s Duty If an assignment of rights
would substantially change the obligor’s duty, the assignment will be barred.
2-Rights Assigned Would Substantially Alter Obligor’s Risk When the obligor’s risk would
be substantially altered by any attempted assignment, the assignment will fail.
3-Assignment of Future Rights The assignment of a right expected to arise
Assignment of “the Contract” Absent circumstances suggesting otherwise, a clause prohibiting
the assignment of “the contract” will be construed as barring only the delegation of the
assignor’s duties. [Restatement (Second) of Contracts §322; UCC §2-210(4)]
Assignment of Rights Under the Contract A clause prohibiting the assignment of contractual
rights generally does not bar assignment, but merely gives the obligor the right to sue for breach
if an assignment is made. [Restatement (Second) of Contracts §322] In other words, the
assignor has the power but not the right to assign.
What Duties May Be Delegated?
1) General Rule As a general rule, all contractual duties may be delegated to a third person
Duties Involving Personal Judgment and Skill If the duties involve personal judgment and
skill, they may not be delegated.
R§318 Delegation of Performance of Duty
Default: Obligor can delegate the performance of his duties UNLESS substantial interest in
having that person perform or control the acts promised (unique e.g., wedding photographer) or
against public policy or terms of promise. Neither delegation of performance nor a contract to
assume the duty made with the obligor by the person delegated discharges any duty or liability of
the delegating obligor
R§302: Intended and Incidental Beneficiaries
Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an
intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to
effectuate the intention of the parties and either
 The performance of the promise will satisfy an obligation of the promise to pay money to
the beneficiary; or
 The circumstances indicate that the promise intends to give the beneficiary the benefit of
the promised performance
R§304: An intended beneficiary acquires a right under the contract; may enforce promisor’s duty
R§315: An incidental beneficiary (≠ an intended beneficiary) doesn’t acquire right against
R§280 Novation: A novation is a substituted contract that includes as a party one who was
neither the obligor nor the obligee of the original duty. Must be written. (e.g., lease  sublet;
step into your shoes; obligor released; all parties have to sign, if not you’re still on the hook)
difference between novation and the other third-party situations discussed above. Novation
substitutes a new party for an original party to the contract. It requires the assent of all parties
and completely releases the original party. The consent of the remaining party may be express or
by implication of the acceptance of performance by the new party with knowledge that a
novation is intended.
NY Real Estate Transactions Rule: The price and payment terms are essential material
elements of K; price/rent terms can be in explicit expression, methodology (formula, index, third
party) or FMR/ “reasonable” if left unsettled unenforceable due to SOF
Promissory Estoppel in New York:
(a) promise must be clear and unambiguous,
(b) reliance must be foreseeable to the promisor
(c) reasonable to the promisee; detrimental reliance and
(d) the resulting injury must be unconscionable
New York General Obligation Rule: Past consideration allowable/gives rise to K
obligation, if you:
put “past benefit” down in writing
where consideration for the promise is past and executed and
proved to have been given or performed and
would have been valid consideration but for the time when it was given or performed
1. Shrinkwrap: Terms inside box of software binds consumers who use the software
after an opportunity to inspect item (reasonable time or time stated, i.e. 30 days) and
read the terms. Accept by keeping product or reject by returning the product.
e. Rich Hill v. Gateway 2000 (1997): 2-204 MOO determines conduct that constitutes
Rejects use of UCC 2-207 because only 1 form involved. Majority approach of courts
f. William Kloce v. Gateway (2000): Use UCC 2-204, 2-207 (BOF) even with only 1
written form; no specific and unequivocal assent given to new terms
2. Browsewrap: Terms of use, often found via a link on a website’s main page, that
purport to bind a user solely by virtue of his or her continued use of the website
g. Rule: When a benefit is offered and subject to stated conditions, and the offeree make
a decision to take the benefit with knowledge of the terms of the offer, the taking
constitutes acceptance of the terms, which accordingly become binding on the offeree.
Cairo, Inc. v. Crossmedia Services, Inc. (repeated use of website after notification of
terms imputes knowledge and acceptance of terms)
3. Clickwrap: Electronic agreements to terms by clicking on a radio button or
checking a box as a condition of using a device or piece of software
h. Requires affirmative action on the part of the user to manifest assent (click)
i. Courts generally hold that a click is enough to signify agreement to an electronic
j. Although individual’s opportunity to protect herself against one-sided standard forms is
arguably greater when contracting by computer than through written forms almost no
one reads the terms of the clickwrap license before assenting to the program
k. Netscape: Smart Download to get Netscape Communicator lacked click-wrap
presentation of license terms; viewable after download at the bottom; did not give
users proper notice of terms
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