CONTRACT NOTES/HYPOS
WEEK 1
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Contract: enforcing the voluntary arrangements of parties
Contract is the law between parties
Restatement: authoritive statement gathered over the last 100 years or so
Restatements are used by judge and then can be seen as laws
Jane enters, asks for a table. Orders tuna, green salad, bottle of champagne
Waiter: Ok
Jane eats entire meal, looks at 150 check, makes scene, walks out
Kim (owner) goes to Joseph to represent her in case against Jane
Client: Jane
Manager: Professor
Waiter: Jeff
Joseph: Kim’s lawyer
Kim: owns restaurant
Jennifer Rudman: Judge
Samantha: Jane’s lawyer
If...then
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Show agreement to exchange promises (bargain), or performance
Was there a manifestation of mutual assent?
Prove the conditions for a contract existed
WEEK 2
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If x (if those things happen) then the consequence is that it is a contract
Is a promise enough to create a contract? No
Promise (S2)/bargain/consideration(S71)/manifestation
To be a contract there has to be consideration
To constitute consideration a performance or return promise has to be bargained for
Eating the food suggests you made and performed the contract
There is a contract when the client orders and waiter serves food, the circumstances
reflect an implied exchange of promises. Money for a meal. In such a manner that the
promise was a bargain for, constituted a consideration.
Waiter would like to sue Jane
To establish there was a contract Jeff’s lawyer has to establish there were implied
promises and consideration
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Its implied (promise) if the service is decent, in exchange for getting decent service, you
will pay a tip
Tips are not part of a bargain, they are gratuities, you don’t promise to make a tip when
you walk in
When in the real world does a situation change from a gratuity to a bargain?
“I am translating this narrative into a legal conclusion that gets my client what they
want”
“knock something out of a logic chain”—there was no promise, there was no
consideration
Find the better rule
If you wait too long, you lose your right to sue
“We are legally bound to a contract not by our unexpressed intentions but by the
reasonable interpretation of our words and actions
Professor: Abstract rules like this are either meaningless or useless
What matters is our objective manifestations, not what we were thinking in our minds
LUCY
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If you don’t write something contrary in the agreement, the default rule is your interest
is assignable (you can sell it to someone else)—you can write in the contract “this
contrast is not assignable”
Law v Equity: If you had a claim for damages for money you would go to an English
court, you would make out a writ, but if money damages were insufficient to solve your
problem (insufficient remedy) you needed to go to a different court (church court) who
out of their religious position could grant you equitable relief. The courts of law and
equity are merged in the U.S. when you seek an injunction (order that somebody not do
something) or mandamus (order to do something) you are seeking an equitable remedy
and the rules are a bit different. You have to show that the monetary remedy is
insufficient. You could go to the court of equity and seek a specific performance
If you went to an equity court: you went to a chancellor, no jury
Equitable issue = you don’t have right to a jury
Were they drunk? We don’t know—issue of fact. Do we care?
Does being drunk create a legal consequence?
We are bound to a contract by a reasonable interpretation of our words and actions—
our manifestation
We are legally bound to a contract not by our unexpressed intentions, but by the
reasonable interpretation of our words an action
PEPSI CO
 Was it seriously a promise?
 Court said it clearly was a joke
BATSAKIS
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Did the trial court err in making an independent judgment on the adecuacy of
consideration?
Court of appeals: it was a mistake to pass on the adequacy of the consideration because
courts don’t remake parties deals
You have the freedom to make a bad deal
Court is not going to go and look back at the consideration
That is the classical view of consideration
A promise is part of a bargaintherefore enforceable
CORRIGAN
 Shelley v Kraemer There was a racially restricted covenant therefore it cannot be
enforced
 Before this in Corrigan, court said: 14th amendment didn’t stop individuals from forming
this contract (not subject to constitutional challenge, just a matter of contract law)
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WEEK 3
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Every case you read starts this way:
Lawyer lays out all of the facts in the complaint (tell the story in a series of numbered
paragraphs)
What lawyers do is they think in legal theories, after they recite facts, they lay out for
the court what those legal theories they think will be
Example: “We claim the facts constitute a breach of contract…” ..”We also think ….this
constitutes fraud”
Issue #1: Did the parties form a contract?
Issue #2: Assuming that the party formed an agreement, there was a “meeting of the
minds”is it actually enforceable? Is it something the law will enforce or is it merely a
gift or social obligation you cannot sue on
See §17—was it an agreement AND a bargain (not a gift/not gratuity)
Was our agreement enforceable? (2 separate issues)
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Hypo:
Sam offers Jane (neighbor) to buy his whiskey
She accepts and says she will buy Saturday
Texts Sam: I will buy it if it is in the original packaging
Sam: never texts back
Jane knocks on Sam’s door on Saturday and Sam throws door in her face
Jane sues Sam
Sam made offer that is a kind of promise (if you accept my offer we have a deal)
She didn’t accept offer bcus she put conditions in it
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Hypo #2
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Sam and Jane are neighbors
If you come over to watch the game I will share this $75 single malt scotch with you
Jane said, it’s a deal
Jane knocks door, Sam opens door
Jane says I’m here, go Buckeyes
Sam threw door in face
Jane sues Sam
No enforceable contract, had an agreement about a social obligation
1940 Marriage Proposal
Man gets down on one knee
Must ask question will you marry me
Yes I accept your proposal
-HYPOS
2-7 In Jane's response to Sam's offer, she says to Sam, "I accept your offer, but only if it is a $50
deposit and only if it for 98 square yards." Sam doesn't reply. A day later, Jane says, "Ignore
that, I accept." Sam doesn't want to perform. Must he?
Yes, because Jane properly exercise her power of acceptance and formed a contract.
Yes, because a later acceptance overrides an earlier rejection.
No, because the effect of a counteroffer is the same as a rejection; Jane's non-mirror image
purported acceptance was a counteroffer terminating the power of acceptance.
No, because the power of acceptance terminated by lapse of time.
-2-8 Sam to Jane on Monday: "I offer to install 100 sq. yards of carpet at $30 per yard. This offer
will stay open until Friday at 5 pm." On 4 pm on Friday, Sam to Jane: "I revoke my offer to
install." Jane: "No, I accept." Must Sam perform?
Yes, because Jane's power of acceptance stays open until 5 pm on Friday.
No, because his offer and the promise to keep it open is gratuitous and not enforceable.
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Why is an offer revocable before acceptance?
Notice the similarity between the restatement § 24 and definition of a promise
An offer is a promise to enter into a contract if the offeree accepts—remember that naked
promises
An offer is a gratuitous promise
If an offeror goes back on his promise, is there a remedy? No
What could the offeree do? Additional consideration for making the time limit binding
-Owen V. Tunison
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Owen wants to buy the Bradley block from Tunison for $16,000
His legal theory for accomplishing legal theory: there was a contract formed under the
classical rule of offer and acceptance
Tunison doesn’t want to sell
Tunison’s legal theory: There was no contractbcus there was never an offer
Owen to Tunison by letter: “will you sell me the block for $”?
Tunison: It would not be possible for me to sell it unless it was 16,000”
Owen: “Accept your offer for Bradley block Bucksport Terms sixteen thousand cash send
deed to Eastern Trust and Banking Co Bangor Maine Please acknowledge.”
2-9 Was Tunison's reply to Owen an offer capable of being accepted and therefore forming a
contract?
No, because Tunison's statement was more akin to an advertisement or invitation to make a
bargain than a manifestation of willingness to conclude a bargain.
No, because it was an advertisement, and those are not deemed to be offers.
Counterargument: There is a difference with Nebraska Seed, very direct statement to one
person that specified a price (it was direct). See Restatement 26.
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“I intend today to pay you on Tuesday”—Not a promise
If you receive an offer and you are worried if it’s really an offer—You offer consideration
to make it into an option contract in which you have a binding contract that the offer
will stay open –If you have any doubt about whether the consideration will be sufficient
and you’ve made an option contract, §87-1 gives you a path: “If I do it this way, I know
that I will have an option agreement regardless of the sufficiency of the consideration
and regardless whether I even necessarily pay the consideration”
§25 of the Restatement:
§ 87-1:—there might be a lot of different ways you can create an option (oral, sure), if
you want to make sure, put it in writing, get the offeror to sign it, consideration,
reasonable underlining contract
The power of acceptance:
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Restatement §35:
The Offeror is the master of the offer
Restatement § 50:
If you vary your acceptance from the strict terms of what was offered –you’ve made an
counteroffer and flipped the power of acceptance to the other side
Silence as acceptance: what if the offeror makes an offeror and the response is silence?
HYPOS
2-10 Sam to Jane: "I offer to paint your house in one month and you will pay me $1,000." Jane
stares at Sam for exactly one minute, doesn't say a word, turns around, walks away, and does
nothing else. A month later, what should the legal effect of this be?
An agreement on Jane's part that she wanted Sam to paint the house.
A rejection of Sam's offer, warranting Sam's belief that he could book a different job.
2-11 Sam to Jane: "I offer to paint your house in one month and you will pay me $1,000. If I
don't hear from you by next Tuesday, your silence is consent." Jane to Sam: "I'm okay with
that." Jane says nothing by Tuesday. What should the legal effect be?
An agreement on Jane's part that she wanted Sam to paint the house.
A rejection of Sam's offer, warranting Sam's belief that he could book a different job.
RESTATEMENT §56:
RESTATEMENT §69: only in 3 cases…
Day v Canton
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The only way you can reject the offer is to write it down in purple ink , have it notarized
in Rhode Island, anything else including silence constitutes acceptance—NO, CAN’T
WORK
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If you don’t respond I will assume that you agree to my painting your house for
$1,000…offeree’s silence is meaningless
There are going to be cases in which silence is meaningful (see restatement §69)
Acceptance before revocation—contract, revocation before acceptance—no contract
Most manifestations of offer revocation and rejection are effective upon receipt of party
who was supposed to get them—offer is effective when it is received by the offeree
(explicit—revocation of offer is effective when it is received by the offeree)…
Mailbox Rule (restatement §63):Acceptance is effective when it leaves offeree control
even though offeror never receives it
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WEEK 5
2-12 Sam says to Jane by Fedex on Jan. 2: "I offer to do it for $300." Jane gets the Fed Ex
on Jan 3. Jane immediately responds to Sam by email: "I accept." On Jan. 3, before
seeing the e-mail but after Jane sent it, Sam emails to Jane: "I revoke." Sam finds Jane's
email in his junk folder on Jan. 4. Sam refuses to perform. Does Jane have a good claim
v. Sam?
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Yes, because there was a promise and consideration.
Yes, because Jane accepted the offer before Sam attempted to revoke it.
No, because there was no consideration.
No, because Sam revoked his offer before he was aware that Jane had accepted it.
No, because Jane did not repeat the offer word for word in the purported acceptance
and therefore it could not be considered a mirror image acceptance
VARIANT—
2-12a After getting Sam's offer, on Jan. 3, Jane sends "I accept" by US mail addressed to
Sam. On Jan. 4, she sends Sam a rejection by email, and Sam receives it. Later, he gets
the mailed acceptance. Sam refuses to perform, and Jane sues him. Result?
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Jane wins because there was a promise and consideration.
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Jane wins because her acceptance was effective under the "mailbox rule" when she put it
in the mail.
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Sam wins because Jane followed her acceptance with a rejection; when that happens, the
acceptance is only effective when Sam receives it, and thus constitutes a counteroffer.
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Sam wins because he meant to revoke his offer before Jane accepted it.
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Sam wins because Jane did not repeat the offer word for word in her acceptance and
therefore it was not a mirror image.
The rejection got to me first, from my standpoint she rejected (R2 K 40). You can change
your mind and reject after you’ve accepted, but now you’re at the mercy at whichever
Sam receives first.
**DIDN’T UNDERSTAND DICKENSON VS. DODDS EXAMPLE**
Last shot rule: I hit an offer, you don’t just catch the offer and accent you hit a
counteroffer back at me. The last shot wins. If I make the last counteroffer and you
perform, the classical model assumes you accept. If you didn’t, why did you perform.
2-13 Assume no UCC. Buyer sends a purchase order to Seller for 100 widgets @ $10
each. The fine print includes a warranty. Seller delivers the widgets to Buyer with an
invoice whose fine print says, "no warranty." The widgets don't work. Buyer sues Seller.
Does the contract include a warranty?
You can respond once
Yes, because there were promises and consideration.
Yes, because B's invoice is construed as an offer and S accepted it.
No, because there was no consideration for the warranty.
No, because B's invoice is construed as a counteroffer and S's taking delivery of the
widgets is construed as acceptance of the counteroffer.
Drafters of the UCC— They changed this rule later, didn’t like this rule, it biased the law
in favor of sellers over buyers, merchants over consumers.
-Bilateral (Offer) Contract: Promise in exchange for a promise. Consideration for the
promise is another promise and that’s enough
Unilateral Contract: I promise to pay you $100 if you transfer title to your piece of
property. You have to accept my offer by turning over title by which point my promise
will be effective. Promise for performance.
Problem with Unilateral: In the classical system were all promises enforceable? No. Only
when there is consideration. Coherent but justice problem.
2-14 How is the classical definition of an offer related to the classical definition of a
promise? (Choose all that apply.)
You have responded once. Each option may only be selected once.
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All offers are promises, but not all promises are offers.
An offer is a particular kind of promise, one that commits the promisor to a binding
contract if the promisee accepts the invitation in the offer.
Just as a naked promise is "gratuitous" and not legally enforceable, so too an offer not
supported by separate consideration for keeping the offer open is "gratuitous" and
revocable by the offeror any time before it is accepted.
2-15 Sam says to Jane, "I promise to pay you $1,000 if you promise in return to paint my
house." Before Jane can answer, Sam says, "I hereby renege on that promise." What is
the legal effect of Sam's statement?
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It terminates the power of acceptance by lapse of time.
Sam has breached the contract.
Sam has revoked his offer by reneging on a gratuitous promise.
Sam is morally bankrupt.
Jane still has the power of acceptance because Sam has to give her a reasonable
opportunity to respond.
2-16 Sam says to Jane, "I promise to pay you $1,000 if you promise in return to paint my
house." A few minutes later, Jane emails Sam: "I promise to paint your house if you promise to
pay me $1,000." She clicks "Send." What is the legal effect?
Response recorded
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When Sam receives the email, a contract will have been formed.
There is no effect because Jane's email is not a mirror image of the offer.
Jane formed a contract with Sam when she clicked "Send" and the email left her control.
Jane made a counteroffer that created a power of acceptance in Sam.
Either can be offer, either can be acceptance, problem: this model even if coherent was
insufficient to reflect what happens in the world. Manifestation of offer and acceptance weren’t
always mirror promises.
2-17 It is 1925 in New York. Jane to Sam: "I promise to pay $1,000 if you paint my house." The
$1,000 would include a $400 profit for Sam. Sam begins work, incurring $200 of time and
materials when Jane revokes her offer. What is the legal consequence?
Response recorded
They never formed a contract because Sam never accepted the unilateral offer, and he would
have to rely on another legal theory like unjust enrichment to recoup his $200.
Sam accepted the contract when he began work and his is entitled to his lost profits.
Sam accepted the contract when he promised to do the work.
The power of acceptance lapsed due to Sam's delay in accepting the contract either by return
promise or performance.
100 years ago—If the revocation happened before performance (when completed the
work)no contract (unilateral)
2-18 If the abstract theory of classical offer and acceptance doctrine demanded symmetry
between "contract" and "no contract" as between offers inviting acceptance by return promise
versus by performance, what would be a fair solution in classical doctrine?
You can respond once
Make sure everybody knows the law and that they are at risk if they begin performance under
an offer inviting acceptance by performance.
Impose on offerees the requirement that they give consideration to keep the offers open until
they complete performance.
Leave it to courts' sense of justice whether contracts have been formed.
Break the symmetry between the treatment of acceptance by return promise and acceptance
by performance, thus deeming the contract to have been formed some time before the offeree
completes performance.
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Unilateral—I lost my cat, I will pay X if you find him
Petterson V. Pattberg
Offeree time to finish, offeror locked in = the symmetry is broken from the bilateral
circumstances. It was an option bcus the offeror because constrained even while the offeree is
free to not accept.
R INSERT §45
What does it mean to begin performance?
2-19 Assume R2K §45 is the rule. Pattberg says to Petterson: "You get $780 off the principal of
the loan if you pay me by May 1." On May 2, Petterson walks up Pattberg's street with the
money. Pattberg sees him coming down the street and yells from a window, "The offer is no
good." Petterson yells back, "I accept." Pattberg refuses to answer the door and take the $780.
Petterson sues Pattberg for $780. Result?
Response recorded
Petterson wins because Pattberg's offer did not invite a promissory acceptance, and an option
contract was created when Petterson began the invited performance.
Petterson wins as long as the factfinder determines that his walking up Pattberg's street
constituted either a tendering or beginning of the invited performance.
Pattberg wins because he revoked the offer before Petterson accepted it.
Pattberg wins because, even if an option contract was created by Petterson's tendering or
beginning the invited performance, Pattberg's obligation was conditional on Petterson's
completion or tender in accordance with the offer, and that did not hap
Peterson will win the fact finder determines performance has begun
Davis V. Jacoby
Bilateral—Davis’ win, if its unilateral, they lose
Did Mr. W manifest to the Davis’ that his offer was to be accepted by a return promise or
performance?
R §32—if you are the offeror and you do not make it clear if offer invites acceptance by return
promise or performance, the offeree gets to choose
2-20 Sy interviews Jo for the job of Sales VP on Feb. 6. Sam says, "Jo, if you start on Feb. 9, you
have the job." Jo says, "Ok!" On Feb. 7, Sy decides to hire Bo instead. As Jo drives into the
parking lot on Feb. 9, Sy calls out, "I revoke the offer." Jo doesn't get the job. In her suit against
Sy (Jo v. Sy), the likely result would be:
Response recorded
Sy wins, because Jo was aware from a credible source before he accepted the job that Spacely
had taken an inconsistent action, thus revoking the offer.
Sy wins, because this is a unilateral offer, and he revoked it before Jo accepted by performing.
Jo wins, because of Sy’s bad faith in hiring two people for the same job.
Jo wins, because an offer of employment by its very nature must be a bilateral contract.
Jo wins, because if there is an ambiguity about whether Sy’s offer called for a return promise or
performance, Jo’s “Ok!” constitutes an acceptance, and there was a contract.
Jo gets benefit of R §32
WEEK 6
3-14 Dave's Rugs gives a receipt that says, "Clean to your satisfaction!" Sue leaves a rug for
cleaning and gets a receipt. She later picks it up and takes it home. She unrolls it and is not
satisfied. On the issue whether David made a promise, who most likely wins?
Sue wins because David had the subjective intention to satisfy her
Sue wins, if the factfinder thinks she reasonably interpreted this as an assurance from David
that she will be satisfied
Sue wins because this is an assurance that the rug will be clean
David wins, because this is merely a prediction that the rugs will be cleaned to the customer’s
satisfaction
David wins, because this can only be reasonably interpreted as a statement of present intention
to satisfy the customer
3-15 In the three cases - $200 for iPad, car for A, and enrollment for equal playing time –
which ones should be deemed to be promises supported by consideration and therefore
enforceable contracts? (Choose all that apply.)
$200 for Ipad
Car for A
Enrollment for equal playing time
-Consideration
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Some promises should just be beyond the scope of legal enforcement
One of the core problems between whether something is a gratuity or a bargain is the :
syntactical problem that they can look alike
Ex: if you promise to pay me $200 I promise to sell my iPad (it is a conditional
promise)—my promise is conditioned by your promise in return to give me $200
vs
Ex: I will give you whiskey if you come over to watch this game with me
Syntactically the same—why is one bargain and one is not?
Restatement §71 Consideration: to constitute consideration a performance or return
promise has to be bargained for (what does it mean to be bargained for—its bargained
for if promisor seeks return promise in exchange for promise and promise is doing the
same thing)
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It looks like they exchanged promises but intuitively it’s not a deal, it’s a social obligation
CASES
 Kirksey V. Kirksey: If you come I will give you a place to raise a family
-It’s not enforceable, it looks like a bargain but it is a gratuity
3-17 Why didn't Sister Antillico's lawyer argue "promissory estoppel" (i.e., she relied
on Brother-in-Law's promise to her detriment and there would be injustice unless the
promise were enforced)?
He forgot
The doctrine of promissory estoppel didn’t exist in 1845.
The doctrine of promissory estoppel wouldn’t apply because she didn’t really rely on the
promise.
The only doctrine available to the court by which to make a promise enforceable was
“consideration.”
3-16 What the hell does the first sentence of the case mean? ("Assumpsit by the
defendant, against the plaintiff in error.")
A) Sister Antillico sued Brother-in-Law for breach of contract, won in the trial court, and
is now responding to Brother-in-Law’s appeal of the result.
B) Brother-in-Law sued Sister Antillico for breach of contract, won in the trial court, and
is responding to the appeal.
C) WTF
D) Sister Antillico was a real pain and Brother-in-Law finally got sick of her complaining
about the perfectly good house and tossed her out.
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Hammer v Sidway :If you don’t smoke drink, swear, gamble until you’re 21, I will give
you $,5000
-Old William, holding Young Will in trust
-Who is Hamer? Young will assigned Libbie H., assigned to Hamer
-Who is Sidway? Executor of old William’s estate
-If it’s not a deal it’s a gratuity (it’s a gift and unenforceable)
-Doctrinal Issue: should it look at the form or the substance of the detriment transaction? Not
allowing someone to play cards cannot be a determinant. Young Will: I have the right to drink—
it is a detriment to me if I give it up. Courts should not be looking at the form of the transaction
not the substance. This case should have come out like Kirksey—a conditional promise that was
a gratuity.
3-18 In Hamer, the New York Court of Appeals enforced Old William's promise, finding that
there was "consideration" for the promise, because:
Response recorded
The facts indicated that Old William and Young William had negotiated a bargain at arms'length and in good faith.
The Court wanted to emphasize that the courts should not be reticent to intervene in family
circumstances if there was a promise that ought to be enforced.
The Court didn’t address the “bargain” aspect of consideration at all, reversing instead the
lower court's determination that what Young Will was supposed to do could never be a
detriment.
The Court made it clear that it didn't matter whether the benefit to the promisor or the
detriment to the promise had actually been bargained for.
A promise made in family circumstances is just as serious as one made in a commercial setting.
3-19 Assume you were Franklin Sidway back in the 1880s and presented with the narrative
supplied by Professor Lipshaw about the circumstances of the alleged promise from Old Will
to Young Will. Would you agree to pay Hamer the $5,000 out of the estate?
Yes
No
Lawyers: we made a mistake, Will assigned to Libbie, before the bankruptcy. Sidway: this kid’s a
slimeball
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3-20 If the NY Court of Appeals in Hamer in 1896 called Old William's promise a contract, how
could the same court in 1919 hold that a $3,000 promissory note to Charley "for value
received" was not an enforceable contract?
Despite the recitation of consideration in a printed blank form, the note was the voluntary and
unenforceable promise of an executory gift.
There was nothing in the facts suggesting a bargain between the aunt, on one hand, and a
creditor on the other.
The note was not given as consideration for a debt that the aunt owed.
This was nothing more than a bounty given to an eight-year-old boy for being "good.
3-24 George runs an inner-city furniture store. Under his form "rent-to-own" contract,
customers agree to pay an average of $2,500 for a $900 flat screen television. Using the
algorithm of R2K §71, is there consideration?
Response recorded
Yes
No
3-25 Immediately after signing the rent-to-own contract with George, Jane wants to rescind
it. Should the "rent-to-own" transaction be held to constitute an enforceable contract?
Response recorded
Yes
No
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Hayes
3-27 Assume that Mainelli's promise of a pension to Hayes, if it is enforceable, would bind
Plantations Steel. Should a court deem the promise to be binding as an enforceable contract?
You can respond once
Restatement
Yes
No
-Phytelligence
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An agreement to agree is not a bargain
-Example:
Al says to Buster I promise to buy your skis for $100 unless I change my mind
Al delivers Skis
Buster says, I don’t want your skis
Al says I’m going to sue you
Buster: good luck we never had a deal
No mutuality, Al’s response, his level of commitment does not match Buster’s. Al is not making
a commitment.
Restatement § 2:
There is no commitment here. This statement is not a promise therefore
Buster’s lawyer could argue:
 There was no consideration
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3-29 In the Harris v. Blockbuster opinion, why did the court not discuss the unconscionability
issue?
Because the court's determination that contract represented an illusory bargain was sufficient
to defeat Harris's motion.
Because the issue of unconscionability would require a trial on the merits.
Because unconscionability was not recognized at the time as a defense to enforceability in the
State of Texas.
Because this was tried in a federal court and there is no federal law of unconscionability.
-BARKER
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Was there a clear and definite promise of employment? Yes
Court says: if you show up for workI’ll employ you that day
Did Barker rely? Yes
Did he win? No—injustice can only be avoided by enforcement of promise
Court says: no, we decide this is not a circumstance we apply this alternative theory, we
think the law of contracts is perfectly good
Even if you relied on the promise, the third element of injustice we don’t see it
dismissed (we won’t extend promissory estoppel that far)
COHEN (opposite results)
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Was there a clear and definite promise to Cohen? Yes
Did the reporters intend to induce reliance and did reliance occur to the promissee’s
detriment? Yes
Does the court think there would be injustice if the promise was not enforced? Yes
(The contract model is not sufficient in a commercial situation)
4-7 The primary reason that the outcomes vis-a-vis promissory estoppel differed as between
Barker and Cohen was:
Barker was decided earlier than Cohen.
In one case, somebody relied on the promise and, in the other case, the person did not.
In each case, somebody relied on a promise to his detriment, but the courts differed on the
question whether non-enforcement of the promise would result in an injustice.
Cohen involved a First Amendment issue; Barker did not.
4-6 The reason that Mr. Barker lost his case against CTC when he got fired was:
There was an issue of fact whether he relied on the CTC president's promise and he failed to
meet the burden of proof.
The court found as a matter of law that CTC never made a promise of continued employment
until CTC's insolvency to Mr. Barker.
Even accepting as true Mr. Barker's factual allegations about the promise of continued
employment until insolvency and that Mr. Barker relied on the promise, the complaint failed to
state a claim either for breach of contract or promissory estoppel.
The court found as a matter of law that Mr. Barker never relied on the promise.
4-7 The primary reason that the outcomes vis-a-vis promissory estoppel differed as between
Barker and Cohen was:
Barker was decided earlier than Cohen.
In one case, somebody relied on the promise and, in the other case, the person did not.
In each case, somebody relied on a promise to his detriment, but the courts differed on the
question whether non-enforcement of the promise would result in an injustice.
Cohen involved a First Amendment issue; Barker did not.
4-8 Jane to Sam: "I offer to sell my iPad if you promise to pay me $100; offer open until 5:00
Friday." Sam misses a day of work getting the money from his mom. At 4:45 on Friday, he is
about to promise when Jane revokes the offer. Classical theory result?
Sam's power of acceptance ended when Jane revoked the offer.
Jane had given Sam an option, meaning that she was legally bound to keep her offer open until
5:00 Friday.
Sam relied on the existence of Jane's offer to his detriment, and it would be unjust not to
permit him to accept as long as it was before 5:00 Friday.
Sam and Jane formed an agreement, but it was unenforceable because there was no
consideration.
4-9 If Sam knew he needed time to arrange payment for the iPad before 5:00 Friday, what
should he have done in terms of classical offer and acceptance doctrine?
Been more grateful to Jane.
Been quicker about getting the $100.
Accepted the offer by return promise immediately and taken the risk that he would breach the
contract by not having the money.
Limited Jane's power to revoke by using the "safe harbor" in R2K §87(1) to create an option
contract per R2K §25 - in writing with a nominal consideration ($1) for the option to purchase
the iPad for $100 by 5:00 Friday.
4-10 Given the stipulated facts, why did Baird fail to state a claim against Gimbel under Judge
Hand's exposition of classical offer and acceptance?
Gimbel's offer proposed a bilateral contract that would have been formed only by Baird's
promising the subcontract to Gimbel's; hence Gimbel's timely revocation of its offer
terminating Baird's power of acceptance.
Gimbel's offer proposed a unilateral contract that Baird never accepted by completing the
required performance.
Baird's option contract with Gimbel's failed to state even a nominal consideration.
Baird waited too long to accept Gimbel's offer and so its power of acceptance terminated by
lapse of time.
-Unit 5
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When you have a benefit bestowed on you by someone, no contract.
Someone says: I know we never talked to each other, never had a contract, but I did you
a big favor and I think it’s unfair and unjust I not be compensated for that
We’re going to have to distinguish between a contract expressed or implied in fact, and
a contract that is implied in law (Quasi contract, restitution)
5-1 In the "boys with snow shovels" + "thumbs up" hypothetical, what is the correct
characterization of the theory under which the boys would be attempting to recover $25?
Express contract
Implied in fact contract
Implied in law contract.
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Show shovel = do you want me to shovel your driveway
Thumbs up = Yes, I accept your offer
Implied in fact there is a contract
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If the wave was ambiguous—restitution is a good claim here
-5-2 In the "boys with snow shovels" + "thumbs up" hypothetical, the $25 price would be:
An implied in fact term in an implied in fact contract.
An implied in law term in an implied in law contract.
What makes it implied in law:
-5-3 In the "Mario plowed the snow" hypothetical, what is the correct characterization of the
theory under which Mario would be attempting to recover $25?
Implied in fact contract
Implied in law contract
It would be unfair if you had that benefit and you didn’t have to pay me for it, you would be
unjustly enriched.
Terminology: called implied in law bcus we’re going to presume as a matter of law that if they
had thought about it they would have signed a contract. It is a legal theory in equity. Mario is
seeking restitution. I have been unjustly enriched thus I ought to pay him for.
Notes on restitution
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Doctor performs emergency medical services to person in motorcycle accident 
noncontractual restitution. There is no contract implied in fact bcus you’re unconscious.
Non contractual restitution.
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I helped call 911 for someone who was injured. Am I entitled to restitution? No he was
being a good Samaritan (gratuitous intermeddlers, self-promoter or volunteers don’t get
compensated)
Bloomgarden V Coyer
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Non-contractual restitution case
2 theories:
1. Implied in fact contract (2 teens with shovel, hand signs to each other)
o A real contract
2. Implied in law contract ( I gave them all a benefit, it would be unjust for them
not to compensate me
No fact found by fact finder that: Bloomgarden interpreted whatever what Coyer and
Guy did, as a promise to pay (no implied in fact contract—no hand signs)
Is there a promise?
Is accepting the introduction a manifestation of intention?
Restitution: is not to figure out if there was a contract
Was there a set of circumstances in which justice requires this group pay Bloomgarden
bcus otherwise they are unjustly enriched? There’s been a benefit received, no contract
Is he a self-promotor or a gratuitous intermeddler?
In this case:
o Court says basis on which a jury could rationally find there was a societal
basis on which it was agreed he would be paid
o Restitution is not justified here
5-4 Assume you are a friend of Bloomgarden. He flies back to DC and has dinner with you. He
tells you about the deal, the question in the cab, and that he expects that these guys will pay
him a finder's fee. What do you say to him? (Choose any that apply.)
“Don’t worry. You will always be able to collect on a theory of implied in law contract.”
“I don’t think the circumstances are going to warrant an implied in fact contract or quasicontract.”
“If you expect a fee, you at least need a verbal confirmation from them, and you probably
ought to get it in writing.”
5-5 Amy is replacing a window and asks Bart, her next-door neighbor, to come over and help
her. It ends up taking an hour. Later, Bart sends Amy an invoice for $50 for the hour he spent.
In your view, the result should be:
Restitution to Bart
No restitution to Bart
5-6 Amy is replacing a window and asks Bart, her next-door neighbor, to help her. It takes an
hour. Bart is a professional carpenter. There is no talk of payment. Later, Bart sends an invoice
for $50 for the hour. In your view, the result should be:
Restitution to Bart
No restitution to Bart
No real answer but Bart being a Carpenter should obviously be the person to bring up a fee
5-7 Clark has a vacation house in a small town. While he's away, there's a water leak. The
alarm system calls the police. Darlene, Clark's lawn person, is nearby. She goes in with the
cops, fixes the leak, cleans, and then sends Clark a $200 invoice. Result?
Restitution to Darlene
No restitution to Darlene
5-8 Clark has a vacation house in a small town. While he's away, there's a water leak. The
alarm system calls the police. Ed, a doctor who lives next door, goes in with the cops, fixes
the leak, cleans, and then sends Clark a $200 invoice. Result?
Restitution to Ed
No restitution to Ed
Joe falls 30 feet, Sam dies trying to rescue him. Joe is saved, no injuries. Sam breaks his back.
Joe says to Sam, “I am so grateful to you, I will support you for the rest of your life”. Later Joe
dies, executor is unwilling to pay. Joe did get a benefit in terms of being saved. None of the
contract theories work. This is a promise made out of sheer gratitude. Nothing Bargain-y about
it. No reliance. If there’s a theory of recovery: its not P.E. and no implied in fact contract.
If anything, it going to be promissory restitution.
You made a promise, you ought to be bound to that promise, its just the right thing to do
Restatement §86: Hayes vs Plantation or moral promise that creates an implied in fact contract
5-9 Hayes retired and moved to Tuscany. Mainelli then discovered Hayes had installed a
firewall that prevented a terrible data loss. Mainelli, in gratitude, promised Hayes a lifetime
annuity. When DiMartino later refuses to pay, what is Hayes's theory?
Implied in fact contract, citing R2K §86
Non-promissory restitution, citing R2K §86
Promissory restitution, citing R2K §86
Promissory restitution vs restation (promissory = there was a promise)