1L Contracts Checklist

Allensworth
1. Did a promise exist?
i.
Was the promise illusory?
2. If a promise existed, was it supported by either:
i.
Consideration (a bargained-for exchanged) or
ii.
Promissory estoppel (reliance) Rest.2d 90 or
iii.
Quasi Contract (prevention of unjust enrichment)
3. Was the contract properly formed?
i.
Offer (actual offer? advertisement? Counteroffer? Prior bargaining? Price
quote?
ii.
Acceptance? (communicated clearly, mirror image rule [if there is a
change is terms], Battle of the forms [if dealing with merchants, they they
accept all the terms?] silence may indicate an acceptance if reg business).
a. Unilateral K No notice reqd. Bilateral K notice reqd unless
waived.
iii.
Mutual assent (do parties express an intent to be bound to the same thing.
Focus on objective intent, unless one parties knows of the others
subjective intent).
iv.
Certainty of the key terms in the K.
4. Is the contract written down?
i.
Statute of Frauds? (exceptions: equitable estoppel and promissory
estoppel)
ii.
Parole evidence? Rest. 213 (completely integrated? If so, discharges prior
agreements falling w/in scope.
5. Does another basis exist to render the contract unenforceable?
i.
Duress? (Party forced to modify existing contract)
ii.
Misrepresentation (Was the representation relied upon in bad faith?)
iii.
Infancy (Was a child involved?)
iv.
Incapacity (mental illness, old age)
v.
Unconscionability (unfair in bargaining process)
vi.
Against Public Policy?
vii.
Was notice adequate?
6. Are there any defenses to void the contract?
i.
Did P breach first (materially)?
ii.
Conditions K?
iii.
Divisibility (K divided into subparts?)
iv.
Mistake?
v.
Waiver?
vi.
Impracticable/Impossible?
vii.
Frustration of Purpose?
viii.
Party act in Good Faith?
7. Problems with Performance?
i.
Constructive Conditions of Exchange
ii.
Substantial Performance?
iii.
Material Breach?
8. What are the damages?
i.
Expectation Damages (loss in value + other loss cost avoided other
loss avoided
ii.
Reliance Damages (puts P back in the pre-K position)
iii.
Restitution damages (Recovers money paid)
iv.
Specific Performance?
v.
Nominal damages
9. Are there limitations on damage recovery?
i.
Was there a duty to mitigate?
ii.
Uncertainity in calculating damages

1L Contracts Checklist
Allensworth
iii.
Foreseeability Hadley v. Baxendale) notice of consequential damages
10.Any alternative claims?