Objective Theory of Contracts: what would
1. UCC or Common Law? Sale of goods? (real estate not UCC) a reasonable person think the words of the
Would a
2. Offer
agreement meant? (in re: mutual assent)
reasonable
- Mere invitation to deal? (general ad Lonegran).
person in the
- Offeror as master of offer: can add terms before accepted, not after (Lefkowitz)
shoes of the
- Termination before acceptance? (can’t terminate after partial performance)
oferee feel if
 Implied Revocation: buyer hears of death of seller or sold to someone else (Dickinson)
he accepted
 Express Revocation: explicitly revoked before accepted.
the proposal,
 Option Contract: pay $$$ for exclusive option to buy, keep even if negotiating (Humble Oil)
a contact
- Indefinite or unspecific offer? (Varney, Oglebay, Blinn) (formation problem)
would be
 Quantum Meruit: confer benefit on someone else, entitled to market value of benefit.
formed?
3. Acceptance
(in re: offer)
- Mirror-Image if CL? (Minneapolis & St. Louis Railway) § 2-207 if UCC? (DTE Energy, Textile)
 Shrinkwrap/Browsewrap/Battle of the Forms (Hill, Klocek, Specht, Cairo)
Quasi contract: when it would be
- Defined mode? (La Salle)
unjust enrichment not to require a
- Acceptance by performance? (Carlill, Industrial America)
party who received a benefit to pay for
 Starts when expend costs (Ever-Tite Roofing)
it, law/equity requires payment (watch
 Partial performance sometimes (Marchiondo)
out for gratuitous undertaking)
- Acceptance by silence? (Ammons, Beneficial National Bank)
- Modification: fresh consideration at CL; no fresh consideration at UCC (APA, Angel)
Unjust Enrichment:
- Implied assent? (Taco Bell)
1. Benefit conferred on D by P
4. Consideration (mutual benefit) (adequate or sufficient?)
2. Appreciation or knowledge
- Forbearance of legal right? (Hamer) Detriment to promisee? (Langer, Pennsy Supply)
by D of the benefit
- Past consideration for future promise?
3. Acceptance or retention of
 Prevent injustice (Webb)
the benefit by D under
- Illusory promise?
circumstances making it
 One side not bound (Rehm-Zeiher)
inequitable for D to retain the
 Exclusivity revision + good-faith (McMichael, Wood)
benefit w/o paying for it.
- Promissory Estoppel (if no consideration)
 Restatement § 90: a promise that induces detrimental reliance on part of promisee is binding if necessary to avoid
injustice (Ricketts, Langer, Allegheny College)
5. Breach
Implied Assent: by using the
6. Defenses (besides jokes)
idea or term offered in the
- Statute of Frauds: Marriages, Year, Land, Estate/executor, Goods, Sureties/Guaranty
negotiations for your benefit,
 All need to be signed + in writing!! (DF Activities) (Jay-Z Case)
you’re expected to pay the
 Lawful termination as form of performance (PBR)
other party for your use.
 Land sale exception that includes partial performance + misrepresentation
 Evidentiary (avoid he said/she said) + Cautionary concerns (high stakes, know what you’re contacting to)
- Capacity (burden to prove (w/ clear + convincing evidence) on party raising as defense)
 Restatement § 14: Infants (18+ or potentially void)
 Restatement § 15: Mental Illness or defect: unable to understand consequences of contract (Heights Reality) or
unable to act pursuant to contract if other side knows
Executory Contract: mutual
 Restatement § 16: Intoxication: see above + other party needs to know (Ervin)
unfulfilled obligations on both
- Fraud: material misrepresentation (Marina (not material), Arthur Murray Inc.)
sides where parties promise to
- Non-Disclosure: material non-disclosure (Hill) (not the same as asymmetry of info)
fulfill in the future.
- Duress: threat of some kind, no meaningful choice (both options make you worse off)
 Physical (Rubenstein); Economic (Austin Instrument, Alaska Packer’s Association)
When negotiating written
- Unconscionability (Walker-Thomas Furniture, Star Credit, In re Fleet, Ferguson)
contract, isn’t it implied
 Procedural: unequal or gross inequality in bargaining power (take it or leave it)
that you aren’t wanting to
 Substantive: 1-sided, unreasonable terms (shocks the conscience)
be bound by anything but
 Equitable Reformation: revise contract to make it fairer.
the signed written contract?
- Illegality: leave parties as they are, strict non-enforcement (Sinnar, Homani)
- Public Policy: equitable reformation or non-enforcement if made in bad faith (Mashpee Neck Marina, Data Management,
Watts, Kass, A.Z., Baby M Case) (overly broad release waivers or restrictive covenants; forced parenthood)
7. Remedies
- Reliance: put in position they would’ve been in had they never made contract (Sullivan nose job)
- Expectation: put in position had no breach occurred (pretend contract was performed)
- Restitution: breaching party gives back amount they’ve been unjustly enriched
- Specific Performance: court order forcing party to perform (land purchases usually) (Sullivan farmland case)