ANALYZING A CONTRACTS QUESTION:

I. Is there a Contract?
II. Is there a valid Offer?
a. Offer made in Jest?
b. Is it an opinion instead of a commitment to be bound, or a promise?
c. Is it a statement of future intent?
d. Was it an invitation to bid or begin negotiations? Not an offer all above
e. Was it a Price quote? It is an offer if it is to a specific individual, with a clear quantity and not
reserving the quoter the power to close the deal.
f. Is it an advertisement? Not an offer unless it expresses a commitment to sell to a specific number
of units or items in a specific manner.
g. If no to all above, probably an offer.
III. Is there a valid Acceptance?
a. Did offerree have right to accept?
b. Did she know of offer at time she accepted?
c. Did she accept through performance or by return promise? (unilateral or bilateral)
d. If there is mutual assent, does acceptance vary by adding or changing terms?
i. If Yes, under UCC – Acceptance is effective even though it added/changed terms unless
acceptance is made conditional on parties assent to changes.
ii. If Yes, not common law – mirror image rule makes counter-offer a rejection. Under
modern restatement view though, the changes/additions do not invalidate the acceptance
unless it was made conditional on offerrors terms.
e. Was offer still in effect at time of acceptance?
i. Was it an irrevocable offer up to acceptance (option contract)?
ii. Firm offer under UCC?
iii. Part irrevocable based on part performance or detrimental reliance?
iv. Subcontractor bid?
f. Did offerree make a pre-acceptance rejection or counter-offer?
i. Does not terminate if Offerror indicated that offer still stands
ii. or if offerree says he wishes to consider it further.
g. Did too much time lapse between offer and acceptance?
i. Mailbox rule?
1. Has to be bilateral contract
2. If not sent reasonably, or sent negligently, the acceptance is upon receipt.
3. if offerree sends rejection before offeror’s acceptance, the acceptance prevails if
it arrives before rejection.
4. If offerree sends rejection after offerors acceptance, acceptance prevails.
ii. Reasonable set of time not met (if no express term on time)?
iii. Late acceptance may be a counter offer which original offeror can accept.
h. Did offerree make a pre-acceptance revocation of the offer
i. Did either party die or become incapacitated after the offer but before acceptance?
j. Did a condition for acceptance fail to occur?
k. Did the contract suddenly become illegal?
l. Was it too indefinite of an acceptance?
m. Was there a misunderstanding about a key term?
n. If no to all above, probably an acceptance.
IV. Is there Consideration? Check benefit and detriment elements.
a. Is there bargained-for exchange? If no, no consideration.
i. Is it a gift?
1. Past consideration irrelevant except:
a. Past debt that was discharged by bankruptcy or statute of limitation.
b. Services received that the debtor promised to pay, could be reliance.
2. Are there conditions?
3. Are there sham or nominal considerations?
4. Probably a gift and then it is not a bargain
a. If not, bargain-for not an issue.
5. Reward involved?
6. If yes, probably bargained for.
7. If not, is there an occurrence of a condition that will benefit the promisor? If so,
probably bargained for.
ii. A promise to pay debt? A service previously rendered by P? lets see if there is detriment:
1. If a debt, is there an exchange of concessions between the new debtor and
original creditor?
2. Did the payment say “payment in full”?
3. is there more security to receive the payment?
4. Debtor promise to pay interest?
5. If any of these, there is detriment and therefore consideration
b. Was there adequate consideration?
i. Was value of detriment less than benefit received?
1. If so, the inadequacy will not bar consideration, but could be evidence of fraud,
duress, mistake or unconscionability
ii. Has the promisee promised something he already had to do (pre-existing duty rule)?
1. Under the UCC, a sales of good contract does not need new consideration
2. Under the common law, are there new circumstances that were not anticipated
by the parties at the time of the contract?
a. If so, is the new agreement fair and equitable? If not, no consideration
b. If not, has promisor promised anything different from the original
obligation? If not, no consideration.
c. Did it even need consideration?
i. Promise to pay a past debt that is no longer enforceable bc of statute of limitations or
bankruptcy discharge? Enforceable
ii. Party promised to pay for services already received?
1. Did the party intend for it to be a gift? If so, not enforceable
2. if not, no consideration needed if in the name of justice.
iii. Has a party reaffirmed to pay a duty that was voidable? Enforceable without
consideration
iv. If not, Is there an irrevocable offer signed that recites consideration and proposes a fair
exchange? It Is irrevocable even without “consideration”
v. If not, Has the party made a written guarantee to pay another? Most courts will enforce
written guarentees
vi. If not, Did the promise foreseeably and reasonably rely? Promiseeary estoppel will be
used to substitute consideration
vii. If not, Is it a charitable contribution? If so, then there is enforcement without
consideration
viii. If no to all above, then it needs consideration
 V. Is there Reliance?
VI. Does this contract need consideration to be binding (Unilateral)?
VII. Assuming there is a Contract, What are the terms?
VIII. Do the terms of acceptance vary from the offer? If not, Mirror Image rule.
a. If they do, perform a Battle of the Forms analysis.
b. Sale of goods? If not, no battle of the forms.
c. Acceptance include different or additional terms? Issues on which acceptance is silent? Those are
the terms.
d. Offeree’s response intended to be an acceptance I.e. is it a basic term that is being changed?
i. If it is, then it is a counter offer
1. Therefore there is no contract based on writing itself
2. For counter offer, does conduct by both parties recognize the existence of a
contract?
a. If yes, there is a K and the terms are those on which the writing
agrees upon, and any relevant gap fillers supplied by the UCC
e. If it is not changing a basic term, did offerree expressly make acceptance conditional on assent to
additional or different terms?
i. If yes, counter offer.
ii. Therefore there is no contract based on writing itself
iii. For counter offer, does conduct by both parties recognize the existence of a contract?
1. If yes, there is a K and the terms are those on which the writing agrees
upon, and any relevant gap fillers supplied by the UCC
2. Gap fillers: price, place/time of delivery or paymentUCC2-305-15.
iv. If no, there is a contract based on writing. Determining the terms:
f. Does acceptance contain a term that differs from either a term in offer or a UCC gap filler?
i. If so, majority of courts knock out rule – conflicting clauses drop out of the contract
ii. UCC gap filler replaces if it is relevant. If it knocked out a gap filler, gap filler comes
back to control.
g. Does acceptance include additional term (not a UCC gap filler, not dealt with)?
i. If no, the terms are those which writing agrees, and different terms are knocked out (in
majority), and gap filled.
h. If additional terms, are both parties merchants (anyone in business deal)?
i. If no – additional term only becomes a proposal, and the offeror has to explicitly agree.
i. If both merchants, did offer expressly limit terms of acceptance to terms of offer?
i. If yes, additional terms not part of offer.
j. If not expressly limited, has the offeror objected to the additional term within a reasonable
time after learning of it?
i. If yes, additional terms are not part of the offer
k. If he did not object in a reasonable time, does the additional term materially change the contract?
i. If yes, not a term of offer
ii. If no, term becomes part of the contract.
 IX. Is a party trying to introduce evidence to supplement or contradict a written contract?
a. EVIDENCE IS BARRED BY THE PAROL EVIDENCE RULE:
b. Is there a written contract?
c. Is there a side writing that was signed simultaneously a written contract?
i. If so It is part of the contract.
d. Was the evidence made before the contract was made?
e. Is it intended to interpret the terms in the writing?
f. Is the evidence intended to prove fraud, illegality, duress, mistake, lack of consideration or other
facts making the contract voidable?
g. Is the evidence trying to prove the existence of a condition?
h. Is it a collateral agreement that is supported by separate consideation?
i. Anything that was yes to above means that the parol evidence rule DOES NOT APPLY
hence it is PROBABLY ADMISSBLE.
j. Did the parties intend for this to be the final expression of their agreement? If not, it is NOT
barred, hence allowed.
k. If so, is the integration partial or total?
i. The judge decides this.
ii. If it is total integration – the evidence of prior oral or written agreements is admissible
to either supplement or contradict the writing (UCC 2-202 also)
iii. If it was partial, if it contradicts a term it is admissible, but if is merely supplemental, it
is admissible as evidence.
X. Is a party trying to interpret a term?
XI. Are there any provisions that guarantee performance or payment?
XII. Can the contract be enforced?
a. Impossibility
b. Impracticability
c. Frustration of Purpose
XIII. Does the statute of frauds apply?
a. DOES IT NEED TO BE IN WRITING TO MAKE IT ENFORCEABLE
b. Suretyship and executor, administrator provision:
i. Promise to pay debt to a living or dead?
ii. If so, is represented person directly liable? If not, no writing needed
iii. If so, is a creditor the one owed? Then it must be in writing
c. Marriage:
i. Is there a contract for a mutual promise to marry? If so, it must be in writing
d. Land:
i. Transfer or buy interest in land?
ii. Did the vendee detrimentally rely on it? If so it must be in writing.
e. Sale of goods:
i. Price of $5000 or more?
ii. Was it NOT a service contract (for the most part?)if so, no need for SOF
iii. Were the goods specially manufactured, so that it will be hard to-resell? If so, no need for
SOF
iv. If not, has the D admitted that a contract for sale existed? If so, no need for SOF
v. If not, Did the D pay for the goods, or already receive them? Then it needs to be in
writing
f. Year or more ALL OF THE ABOVE ARE SUBJECT TO THIS:
i. Will it be impossible to fully perform the contract within one year from the day it was
entered into?
1. Could a party possibly die or become disabled?
2. Did one have a right to terminate the contract before the end of the year?
 ii. Has one side fully performed their side of the contract? If so, there is no need for it to
be in writing, a side did it in less than a year.
XIV. Is it a voidable (party has the option to cancel the contract) contract because of:
a. Capacity – a minor, intoxicated or mentally handicapped person
b. Duress or undue influence
c. Misrepresentation, nondisclosure
d. Unconscionability, Adhesion contract, Public Policy
e. Mistake or illegality
XV. Are there conditions that the contract is subject to?
XVI. If so, Have they been satisfied substantially or excused?
XVII. Assuming the contract is now enforceable, Has there been a breach? Anticipatory
Repudiation?
a. Breach of shipping contract?
i. Did the goods not conform to the contract? If not, buyer pays.
ii. Are there installments?
1. If so, does the nonconformity impair the value of the installments? If not, buyer
has to accept it
2. IF so, has seller said he would cure the defect? If so, then buyer has to accept
3. If not, does the nonconformity substantially impair the value of the contract? If
so, he may reject the installment and cancel the K.
iii. Is the defect substantial? Are there course of dealing, performance or trade usage
issues? If not, buyer probably has to accept.
iv. If so, has buyer accepted the goods?
1. if so, did buyer accept thinking it the defect would be cured, or feel that the
sellers assurances were ok? If so, he can revoke in a timely manner (unless
seller cures defect). If not, no revocation
2. if not, buyer can reject the shipment, accept it, or accept some units and reject
the rest.
a. Has the sellers performance time expired?
b. If not seller can cure it
c. If so, did seller have the grounds to believe that non-conforming tender
could be acceptable? If so, seller gets more time
d. If not, there is no right cure the contract, and buyer can cancel.
XVIII. Has the contract been discharged? If so neither party is entitled to damages.
XIX. Did the breaching party commit a total/material breach?
XX. Has the party committed a partial breach?
XXI. Are there remedies available to the plaintiff?
a. Expectation
b. Reliance damages
c. Restitution
XXII. Equitable (sale of land or unique good)? Specific performance.
XXIII. Did the plaintiff have a duty to mitigate?
XXIV. Where there incidental or consequential damages? DAMAGES in the FUTURE