Contracts Checklist

Mutual Assent(objective under the circumstances) Consideration (bargained for exchange) Benefit/detriment Gratuitous promise Settlement of legal claim (not less than owed regardless) Preexisting duty rule o 89 - modification under circumstances unforeseen (excavation case) Illusory promise Satisfaction clause (objective/subjective) Noncompetition (geographic/time/activity) Requirement/output/exclusive dealing (best effort, good faith, reasonable) Void K if missing Reliance Promissory Estoppel(definite promise/actual reliance/reasonable reliance) Hoffman (substantial actions taken under a promise to extend offer) Quasi-Contract Quasi K (unjust enrichment, surgeon providing services) Offer: Offer (manifesting assent to enter into a bargain/definiteness/communication) Price quote (not offer, unless quantity) Advertisement (can be offer if definite) Termination(revocation - direct/indirect, counter offer, lapse, death/mental incapacity) Acceptance (acquiesce with terms/manifest agreement) Promise/performance Mailbox rule Unknown terms (K comes into being after offeree does not return) UCC 2-206 - Any manner reasonable (shipment counts as acceptance) Irrevocable offers Firm offer(signed writing/merchant/assurance held open/3 months max or reasonable time - no consideration necessary) Option K 87(1) (signed writing with consideration and time period or irrevocable by statute) Option K 87(2) (induces reasonable act/forbearance of substantial character, avoid injustice) Option K 45 (offeree tenders performance under unilateral K) Battle of the forms K of Adhesion Boiler Plate provision Services (Mirror image Rule CL Rule) UCC Gap-Fillers UCC Rule Goods (2-207)((1)expressly conditional? (2)between merchants? (3) recognize existence of K?) Precontractual Liability - Contractual negotiations (intent to be bound, definiteness, consideration) Statute of Frauds must be written Suretyship (guar prom), < year K, land, goods, executor of estate, marriage (prenup), broker, will Elements subject matter, parties, essential terms, signature D, assent to terms by D Unenforceable/Voidable Contracts Incapacity Infancy Mental infirmity (cognitive - voidable per say, volitional voidable if other party should know)(other party innocent, avoid injustice) Intoxication(other party has reason to know, volitional/cognitive) Defenses Duress(improper threat, no reasonable alternative) - avoid or adjust terms o PED Rule second K voidable (Alaska packers), unless circ. unforeseen, rescinded by both parties and new K is agreed. Unfairness(unconscionable K = present evidence to show) o Undue influence(dependency and trust, improper abuse) Misrepresentation(affirmative or nondisclosure) avoid/claim damages Unconscionability(procedural/substantive) - avoid/enforce without term/limit term Violation of Public Policy/Illegal void Interpretation Definiteness reasonable efforts/good faith = good o Standard = definite by time of perf/prom Indefiniteness(no K if incurable uncertainty about material aspect) o Gap fillers (UCC 2-204) add/diff immaterial Uncertainty (material misunderstanding means no K if equally innocent or guilty )(if one party either has no reason to know or does not know another meaning attached by the other, and the other knows or has reason to know of the meaning attached by the first, the first's interpretation will be operative Breach Breach

Consideration? if so, one party not perf./undo prom.? Condition precedent (forfeiture/unjust impoverishment?) Material breach (central to K)? Implied promises can be breached (lucy lady duff) No consideration = no breach = promissory estoppel remedy = reliance/restitution o Past considreatio o Conditional gift prom = revocable if conditions not met (party making gift = not bound) o False Statement o Moral obligation (exc moral duty was legal) o Illusory prom Substantial performance (essential purpose) o Cost of performance v. Diminution in value Innocent or wilful? o Wilful = cost to remedy, even if substantial perf.; o Innocent/trivial = diminution in value if cost of remedy = expensive Doctrine of Constructive Condition o If perf rendered at same time = due o If not possible = longer perf first o Breach both party show tender perf After breach duty to mitigate

Contracts Checklist
Remedies for Breach Damages

Expectation o Formula A = loss in value cost avoided + other loss loss avoided o Formula B = lost profits + cost of reliance value rec. + other loss loss avoided o Specific performance (legal remedy inadequate/no difficulty administrating/K fair) UCC Spec per - 2-716 (unique goods or proper circumstances/if buyer cannot cover) o Injunction (Coase theory/market allocation, efficiency) UCC Seller o Services must avoid damages by stopping perf = normal expectation damages o Goods = greater K price resell price (seller must sell to subst. buyer) UCC Buyer o Goods damages = greater price of subst K price o 1-106 v. 2-713 (expectancy damages vs. diff in mrkt price - good faith issue) o 2-713 Market Rate(mrkt price-K price at time D knew of breach) sub. rate > k price = no recovery based on mkt rate. Reliance(put the promisee in the position he would have been in had K never occurred) o Formula = cost of reliance value rec + other loss- loss avoided Restitution(value added to D's property by P's performance) o Cost avoided reas value of K, if Ked with another o Net enrichment = increase in value of Ds property or interests from benefit o 110 no rest for 3rd parties (Callano)

Limitation to Damages Avoidability - Mitigation(duty to make reasonable effort) o Not allowed to recover if could have avoided o 2-704(not as clear, seller can exercise reas. commercial judgment and finish and sell or sell scrap goods) Substantial performance(essential purpose of K) o Cost of performance v. Diminution in value(policy against unfair forfeiture) Foreseeability = if ord course events OR reason to know o Hadley v. Baxendale (General damages v. Special damages, consequential/incidental) Certainty = quantifiable damages Liquidated damages(penalty? Reas. in light of anticipated or actual losses/difficult to determine?)