FALL 2018 CONTRACTS – PROFESSOR KETTLE – ESSAY CHART STEP 1: FORMATION (Threshold Question: UCC or Restatement?) (OFFER + ACCEPTANCE = MUTUAL ASSENT) (MUTUAL ASSENT + CONSID = K) BiL: offer invites accept. by return prom. R 2nd 30(2) offer invites by perform./ prom. offeree chooses & beginning is a return promise R 2nd 62 UniL: offer can be accept. by perform. if MOO specifies R 2nd 53, beginning perform. is not accept. if offeree notif. offeror of non-accept. R 2nd 53 (2), notif. not necessary unless MOO requests R 2nd 54. IIL/ Quasi K: (1) benefit on D by P (2) apprec. by D of benefit (3) accept. of benefit [Bailey v. West, court found no quasi K where benefit was officiously conferred on West] Output/ Req. K: a term which measures quantity by the output of the seller or the reqs. of the buyer means such actual output or reqs. as may occur in good faith UCC 2-306 [McMichael v. Price, sand case, K was enforceable b/c good faith that McMichael could/would sell was understood at time of K] Offer (intent to be bound, to definite terms, comm. to Acceptance (must be definite and unequivocal) Consideration (benefit or detriment; bargained for offeree) R 2nd 24 Termination: 1. Lapse of time, 2. Revocation, 3. Rejection (includes Counter-Offer) 4. Offeree dies Rejection: by c/o (mere inquiry v. counter); effective when rec’d; option K offeree can reject & accept later before option expires UNLESS offeror detrimentally relies on offeree’s rejection Irrevocable Offers: 1. By merchant UCC 2-205 – Firm Offer: promise to hold open, irrevocability can’t exceed 3 mo. [Lonergan v. Scolnick, buying 40 acres of Joshua Tree. Held: letter from seller not offer b/c buyer had no reason to believe that his acceptance would seal the deal] 2. Option supported by consideration 3. Option inducing reliance: must be in writing, signed by offeror, and a reasonable time R 2nd 87 (1) 4. Detrimental reliance by offeror – req. reasonable expectation & creates option K to avoid injustice R 2nd 87 (2) 5. UniL offer where offeree has begun performance – must get reasonable time to perform, mere prep. doesn’t count R 2nd 45 cmt. (f) [Marchiondo v. Scheck, P is broker and finds buyers for D seller. D revokes offer for sale. Held: broker accepted by performance is entitled to commission] 6. Mailbox Rule – once acceptance sent by mail offer cannot be revoked Revocable when: offeree receives a manifestation of intent not to be bound Advertisements: offer when clear, definite, explicit and leaves nothing up to negotiation [Lefkowitz v. Great Minneapolis Surplus Store, fur coats case] “acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer” R 2nd 5(1); “unless otherwise unambiguously indicated by the language or circumstances an offer to make a K shall be construed as inviting accept. in any manner and by any medium reasonable in the circumstances” UCC 2-206 @ Common Law: Mirror-Image otherwise c/o -any conduct that evidences MOM is accept. -Mailbox Rule – accept. valid when sent; no MBR for opt. k and MBR invalid if offer said no MBR -accept. then reject. – MBR applies unless reject. arrives 1st @ UCC: Add. & diff. terms object. Intent to accept UNLESS accept. expressly conditional on assent on new terms; OR -both parties start to perform -accept. by unauthor. method is still accept. if rec’d by offeror when offer is still open UCC 2-606: Acceptance of Goods (a) after reasonable opport. to inspect goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or (b) fails to make an effective reject., (c) does any act inconsistent w/ seller’s ownership [LaSalle National Bank v. Mel Vega, buyer sent K & said it would be executed when signed by trustee, seller executed & sent back, buyer did not have trustee sign so no K] By shipment…[Corinthian Pharmaceuticals v. Lederle Laboratories, partial shipment of non-conform. is c/o not accept. b/c it explicitly stated it was an accomm.] UCC 2-206 By shipment… FOB/ Destination – seller allocates risk till goods reach buyer, FOB/ Shipment – buyer takes risk upon shipment UCC 2-319 By perform… Accept. by perform. req. part of offer requests perform. & includes accept. by a perform. which operates as a return promise R 2nd 50 (2); where offeror invites accept. by only perform. then option K R 2nd 45 exch.) Adequate: Once req. met, no req. of adequacy R 2nd 79 [Hamer v. Sidway, nephew gets $ for not smoking or drinking, can be forbearance, does not have to be adequate or equitable, must induce promise] Inducement: does not itself have to induce promise R 2nd 81 [Thomas v. Thomas, widow allowed to stay even though agreement was made out of respect for dead brother, $1 payment sufficient consid. regardless of why they made the deal] Nominal: a sham or nominal consideration does not satisfy R 2nd 71, R 2nd 79 cmt. D [In re Edwin Farnham Greene, couple in an affair create a K once they breakup but $1 not sufficient consideration because it is nominal] NO Consideration If… Illusory promise (uncertain terms) Moral obligation EXCEPTION where there is a material benefit [Webb v. McGowin, man saved from block of lumber = material benefit] [Mills v. Wyman, no enforceable promise where moral obligation is not material benefit] Past consideration EXCEPTION binding to extent necessary to prevent injustice but not binding if conferred as gift or value is disprop. R 2nd 86 Pre-existing duty EXCEPTION where agreement modif. needs no consid. UCC 2-209(1); where perform. of legal duty can be new consid. if it is different R 2nd 73 [Levine v. Blumenthal, agreement to reduce rent is unenforc. b/c duty to pay rent is PEED so no consid.] Promissory Estoppel: substitute for consideration. R 2nd 90, 139: Detrimental reliance on promise, foreseeable/reasonable, remedy is limited as justice requires [Rickets v. Scothorn, grandfather’s promise enforced because granddaughter unjustly relied on it] 1 STEP 2: PERFORMANCE (is K Void: a K that cannot be enforced; is K Voidable: either party can avoid valid K; is K Unenforceable: valid but one party refuses to carry out its terms) A. Contract Terms: Interpretation & Construction Certainty: - Even though a manifestation of intention is intended to be understood as an offer, it can’t be accept. so as to form a K unless the terms of the K are reasonably certain R 2nd 33 [Varney v. Ditmars, employer offered to give employee a “fair share of profits” the court found that the terms were so indefinite it was pure conjecture] Indefiniteness: - R 2nd 33 (2) term of K reasonably certain if they provide basis for determining the existence of a breach and for giving approp. remedy (3) missing terms may show lack of intent to K [MGM v. Scheider, actor in TV series, Held: missing term of start date of film could be determined by customs of industry] Price Gaps: -@ UCC 2-305 K can be concluded even if price is unsettled, price is reasonable price at time of delivery but MUST include quantity OPEN PRICE TERM -@ CL: R 2nd 204 when parties to a bargain defined to be a K have not agreed to a term which is essential to their rights and duties, a term which is reasonable under the circumstances is supplied by court [Oglebay v. Armco, after finding intent to K regardless of the failure of the pricing system held that the terms were to be filled and the K enforced] Interpretation (prior dealings/ industry customs): UCC 2-202: terms of K can’t be contradicted by outside evidence but can be supplemented and explained LOOK TO PAROL EVIDENCE RULE 2nd R 206: In choosing among meanings, the meaning is chosen which operates against the drafter of the document A. Contract Terms: Modification CL R 2nd 89: modif. of K not fully performed is binding if modif. fair and equitable, and circumstances not anticipated at time of K UCC 2-209: an agreement modifying K doesn’t need consid. to be binding [Angel v. Murray, garbage delivery case, court allowed modification b/c it met reqs. in R 2nd 89] C. Discharge of Duty: Performance: @ CL Substantial perform. is enough; factors to decide if @ CL Last Shot Rule: if perform. happens after exchange of substantial perform. is ok (1) how much of K benefit did innocent party receive, (2) to what extent will damages make up for imperf. perform., (3) extent to which breach was wrongful or in bad faith @ UCC “Perfect Tender Rule” UCC 2-601 is required. UNLESS (a) goods do not conform but time of perform. not expired UCC 2-508, OR (b) if it is an installment K messages, parties believed K existed, whoever sent last form prevails Impracticability, and Frustration of Purpose Changed Circumstances: Impossibility, @ UCC Knockout Rule: UCC 2-207 If Additional one party is not merchant then terms are a proposal If Additional both merchants then terms become part of K unless: materially alter, offer expressly limits to terms, or offeror rejects w/in reason. time If Diff. one party is not merchant terms adopted If Diff. both merchants then “Knockout Rule” Parol Evidence Rule: Evidence not allowed where the K is fully integ. If not, then evidence of the agreement outside of writing can be allowed in ONLY to supplement not to contradict. UCC 2-202 UCC 2-615: unless a greater obligation is assumed, no breach if by the occurrence of a contingency the non-occurrence of which was a basic assumption on which K was made @ CL FOP – R 2nd 265: (1) a purpose without which the K makes little sense, (2) substantial (more than profit loss), (3) non-occurrence of frustrating event is a basic assumption on which K was made @ CL Impracticability – R 2nd 266: (1) performance is impracticable or (2) frustrated without fault of party by event that non-occurrence of which is basic assumption on which K was made Accord & Satisfaction: (1) good faith dispute over amount, (2) in writing, signed by parties, (3) states that it is an “Accord & Satisfaction” D. Excuse of Condition: B. Third Parties: Anticipatory Repudiation: UCC 2-610 (1) info about Assignment of Rights @ UCC 2-210: Must not increase the burden on the other party or allow them to receive less than he would have for his bargain @ CL R 2nd 317 (2): a K right may be assigned unless it (a) materially changes burden on other party, (b) statute forbids, (c) assignment is validly precluded BUT under R 2nd 322 K prohibition limits rights NOT power Delegation of Duties @ CL R 2nd 318: An obligor can properly delegate his duty unless the oblige has a substantial interest in having that person perform the K potential breach must be from reliable source, (2) duty to inquire, (3) duty to cover Duty to mitigate triggered Can file suit OR wait for non-performance Retraction of Repudiation: when no reliance Actual Material Breach Duty is discharged but material breach to core of K; party can treat as (a) partial breach or (b) total breach. Can terminate performance and collect for entire K. Immaterial Breach Remedy for promise broken is merely damages but must continue to perform; breaching party can get restitution. Condition Precedent: Never Occurred No Duty Novation An agreement between two parties in a K for a third party to step into replace one of the parties. All must sign. 2 Waiver/ Estoppel: if party waives other party’s conditional duty, original party may retract waiver UNLESS other party relied on the waiver of the duty STEP 3: REMEDIES Damages for Breach 1. 2. 3. Expectation: R 2nd 344 (a). Having the benefit of the bargain, being put in as good as a position as if the contract had been performed. Reliance: R 2nd 344 (b). Reimbursed for loss caused by reliance, put in as good a position as he would have been had the contract not been made Restitution: R 2nd 344 (c). Having restored to one any benefit one conferred on the other party. The goal of this remedy is to undo the unjust enrichment of the breaching party Disgorgement: repayment for ill-gotten gains imposed on wrongdoers by court USE Restitution for K that terminates due to FOP and for Rescission @ UCC Buyer’s Remedies: UCC 2-711 When seller’s time for perform. arises seller may: (1) (2) (3) do nothing – breach by seller make nonconforming tender – breach by seller make conforming tender – perform. by seller Seller’s Failure to Tender – Buyer can get… Damages: recover market price minus K price Cover: purchase similar goods elsewhere and recover replacement price minus K price. See UCC 2-712. Specific Perform. See UCC 2-716. Replevin: buyer can get identified undelivered goods from seller if similar goods available in marketplace. See UCC 2-716. ONLY IF (a) seller becomes insolvent w/in 10 days of receiving payment from buyer OR; (b) goods were partially paid for by buyer only for family or personal purposes Limitations to Damages - - Rescission, Reformation and Release Mitigation: duty to not make position worse; See R 2nd 350 Foreseeability: can recover (1) all damages reasonably foreseeable at time of K; (2) special conditions communicated to all parties; See R 2nd 351 Hadley Rule: Loss of profits not recoverable where violating party did not have ability to foresee the loss at the time the K was made; See UCC 2-715(2)(a) OR See R 2nd 351 (1) Certainty: must be able to prove damages with reasonable certainty; See R 2nd 352 Specific Performance (See UCC 2-716, R 2nd 357) is appropriate when the contract refers to something that is unique and other damages or remedied would not succeed in restoring the non-breaching party Elements for Specific Perform.: (1) difficulty of proving damages w/ reasonable certainty, (2) difficulty of procuring a suitable substitute perform. by means of money awarded as damages, and (3) likelihood that damages will be collected *** Usually NOT awarded for service K b/c forcing someone to perform a service may be against labor laws, constitutional rights etc. *** Injunctive Relief: getting a court order saying that something must occur or restrain the occurrence of something. @ UCC Seller’s Remedies: UCC 2-703 a. b. c. d. Right to price upon accept. Right to reclaim goods Wrongful rejection: if buyer wrongfully rejects seller has alternative remedies (1) collect damages (2) resell goods (3) recover the price (4) incidental damages IN ADDITION to other three Loss volume seller: seller can recover for lost profits if seller has a large capacity to sell goods and seller would have made sale if buyer hadn’t breached (K price minus seller’s costs); See UCC 2-708(2) 3 Rescission: the undoing of K and restoring the parties to their pre-K positions. See UCC 2-209. Reformation: seeks to restore the efficacy of a writing that improperly reflects the agreement. See R 2nd 155. *** Rescission & reformation are usually a result of a mutual mistake regarding a material fact of the K*** Release: writing that manifests intent to discharge other person of duty. @ CL: release must generally be supported by consideration to discharge duty @ UCC: a claim of right can be discharged in whole or part w/o consideration by waiver or renunciation that is signed and delivered by aggrieved party. See UCC 1-306.