CONTRACTS

What if the contract is ambiguous as to whether it is a uni-lateral or bi-lateral contract?

"In case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses."

Promissory estoppel elements?

1. Promise 2. Which the promisor should reasonably expect will induce action or forbearance by the promisee 3. The promise does induce such action (detrimental reliance) 4. Injustice can only be avoided by enforcing the promise

Limitations on the Drennan Rule

1. Promissory estoppel is not available if the defendant's bid had expressly stated or clearly implied that it was revocable at any time before acceptance 2. GC has reason to believe that SCs bid was a mistake (i.e. they offer to do it for $10 when other people are offering to do it for $10,000) 3. Promissory estoppel is also sometimes not available if the GC is bid shopping

Factors for the predominate purpose? (ways to determine whether the contract was for a sale of goods or services)

1. The LANGUAGE of the contract 2. The NATURE of the business of the supplier 3. The intrinsic WORTH of the goods v. the services

Dude enters into an agreement with Dude 2, a real estate agent who wrote the agreement, an option to purchase his land, yet the recited consideration was never paid. Was the option contract enforceable?

No because the seller did not benefit from the option contract and therefore there was no bargained for action and therefore no consideration for the option. (Consideration MUST occur under common law)

Bargain

"A bargain is an agreement to exchange promises or to exchange a promise for a performance or to exchange performances."

Restitution

"A person who is unjustly enriched at the expense of another is subject to liability in restitution."

Is a conditional gift enforceable?

"If the promisor merely intends to make a gift to the promisee upon the performance of a condition, the promise is gratuitous and the satisfaction of the condition is not consideration for a contract..."

Examples of exceptions to restitution?

1. Plaintiff didn't intend to be compensated 2. Plaintiff is officious intermeddler 3. Defendant refused

Definition of Contract Formation

"The formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and consideration." (Note: certainty)

Disparity in value between promises? Can that deny specific performance?

"gross disparity in the values exchanged... may be sufficient ground, without more, for denying specific performance." Still, look at MOTIVE though

(Restatement hypo) A applies to B, a distributor of radios manufactured by C. Such franchises are revocable at will. B erroneously informs A that C has accepted the application and will soon award the franchise that A can proceed to employ salesmen and solicit orders, and that A will receive an initial delivery of at least 30 radios. A expends $1150 in preparing to do business, but does not receive the franchise or any radios. What damages can A seek via promissory estoppel?

$1150

Protection of Another's Property (Restitution)

(1) A person who takes effective action to protect the property of another is entitled to restitution from the other as necessary to protect against unjust enrichment, if the circumstances justify intervening without request. (Unrequested intervention is only permitted when it is reasonable to assume that the owner would wish the action was performed)

Formation of a contract for the sale of goods? (Under the UCC)

(1) a contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of a such a contract. (2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined and (3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

Factors to determine if parties intended to be bound? (or was preliminary negotiations)

(1) whether agreement has been made on all material terms (2) whether the terms of such a contract are usually in writing (3) whether the amount involved is large or small (4) whether either party has begun performance before the written agreement was signed

Illusory v. Discretionary promise?

(Discretionary) We will buy, at $1 per ball, all of the baseball we require. (Illusory) We will buy, at $1 per ball, as many baseball as we choose to buy. "We choose to buy" is illusory.

Restitution elements

1. Plaintiff has CONFERRED a benefit on the defendant 2. Defendant has KNOWLEDGE of the benefit and has accepted or retained the benefit conferred 3.Circumstances are such that it would be INEQUITABLE for the defendant to retain the benefit without paying fair value for it.

Terms that are typical material

1. Price, quantity, quality, arbitration, choice of law 2. Disclaimer of standard warranties 3. Seller may cancel if any invoice not paid when due 4. Limited (non-customary, unreasonable) time to complain

How can offer become irrevocable?

1. Option Contract (common law, Rest) 2. Part performance under a unilateral contract (the beginning of part performance under uni and trigger the implied option contract, the acts done must be part of the actual performance invited, as opposed to beginning preparations to perform) 3. Merchant firm offers under UCC 4. Pre-acceptance reliance (Rest) (basically, option contract under promissory estoppel) (if it is foreseeable to the offeror that the offeree will take action of a "substantial character" before acceptance, and the offeree does in fact take such action before acceptance, then the offeree will also be deemed to have an irrevocable option to accept the offer within a reasonable time so long as awarding the option contract is necessary to avoid injustice)

Battle of the forms, analysis for the UCC

1. Determine if the contract was for a sale of goods 2. If so, then identify the Offer and Acceptance 3. Did the parties accept? If not, but their conduct indicates a contract then knockout rule and use UCC gap fillers. 4. However, if they do accept but the terms do not match, then assess whether both the parties are merchants or not? A. If NOT both merchants, then additional terms are mere proposals, but the different terms from the OFFER are incorporated into the contract. B. If both merchants, then ADDITIONAL terms are added unless (i) offer expressly limits acceptance to their terms (ii) terms materially alter contract [i.e. hardship or surprise on the other party] or (iii) notification of objection to them has been given in a reasonable time.

Two Possible Default Rules for GC and SCs

1. James Baird rule: SC quotes are revocable before acceptance (therefore, GC can get an option contract, firm offer in writing or buffer zone in order to safeguard) 2. Drennan rule: SC quotes are not revocable until a reasonable time has passed from GC being awarded contract

Terms that are typically NOT material

1. Limited (customary, reasonable) time to complain 2. Limited right to reject for defects (within custom); otherwise limiting remedy in a reasonable manner 3. Credit terms within trade practice (invoices paid late) 4. Exempting seller performance for supervening causes beyond seller's control.

Elements of a contract?

1. Mutual assent (OFFER and ACCEPTANCE) 2. CONSIDERATION . . . note: offer needs certainty > Did the parties contemplate written memorial?

When can an offeree no longer accept an offer?

1. Non occurrence of a condition in the offer 2. Death or incapicitation of the offeror 3. Rejection by offeree 4. Lapse of time 5. Counter-offer by offeree 6. Revocation by the offeror

Requirements for FIRM OFFER?

1. Offer to buy or sell goods during a time period 2. By a "merchant" 3. In a signed writing

How to form an OPTION contract?

1. Offeror promises to hold offer open for a period of time 2. CONSIDERATION from optionee to form the option contract itself

How is an option contract different from a regular contract or offer?

1.) NOMINAL consideration is OK and maybe even if not actually paid (subject to §87 conditions) 2.) Acceptance is effective upon receipt (not dispatch). [Mailbox rule] 3.) Can ONLY terminate the option contract with a new contract

Oral contract for the sale of goods followed by a written confirmation that has additional or different terms. What do you do? (Slight difference from non-oral K)

1.) Treat the oral contract as the offer, and the written confirmation as the acceptance 2.) Then if both parties are not merchants, then BOTH the additional or different terms are not added unless they are assented to (treat the terms as proposals) 3.) If they are both merchants, then the additional terms are added unless the other party objects within a reasonable time, the offer expressly limits acceptance or it materially alters the contract.

How do you prove that it would be inequitable for the defendant to retain the benefit without paying fair value for it?

> The plaintiff MUST EXHAUST all remedies and still remain unpaid (Commerce v. Equity) > The defendant must NOT have given consideration to any other person for the benefit conferred (i.e. this is not met if the defendant has already made payment to a party for the benefit)

A sale of goods?

A "sale" under the UCC consists in the passing of title from the seller to the buyer for a price. "Goods" are "all things which are movable at the time of identification to the contract."

What could the brother in law argue?

The brother in law can say that there was no contract because there was no consideration and no bargained for exchange because the housing was a conditional gift. Her moving was merely conditions to the gift just the workers in Hamer v. Sidway.

Definition of promise?

A manifestation of an intention to act or refrain from acting in a specific way, which would make a promisee justified in understanding that a commitment had been made.

Remedies for promissory estoppel?

A promise binding under promissory is fully enforceable contract and normal remedies for such are usually applicable. However, relief sometimes is limited to restitution, damages or specific relief which is measured by the EXTENT of the promisee's reliance on the promise rather than the terms of the promise.

Illusory promise?

A promise is "illusory" if it makes performance entirely optional with the promisor.

However, what if the offeree changes their mind and sends an acceptance followed by a rejection?

Acceptance is effective unless the rejection gets there first AND offeror relies on that rejection

Counter-offer through acceptance of a contract?

An offeree's REPLY that PURPORTS to accept an offer but makes acceptance CONDITIONAL on the offeror's assent to terms NOT contained in the original offer is a counter-offer rather than an acceptance.

Why wasn't promissory estoppel applicable in the previous example involving SC and GC?

Because there was other things that GC could of done to protect themselves and the court does not think it was fair to make only one party bound

Primary distinction between promises supported by promissory estoppel and those supported by consideration?

Consideration is bargained for while promissory estoppel is not note: courts will first look to see if there was consideration and if not then see if promissory estoppel is applicable

How to tell between a conditional gift and contract?

Disparity in value / Gross inadequacy between the promises However, also look at the MOTIVE to see if the promise INDUCED action or another promise.

What happens if the concession stand you are buying is part the sale of goods, i.e. the supplies, and part for the sale of is the goodwill of the company's name? Do you apply UCC or common law?

Do the predominate purpose test and determine whether whether the TANGIBLE assets or the INTANGIBLE assets are more valuable

When does the alteration of a term cause hardship or surprise?

Hardship: when the party who alters the term is given NOTICE that the other party will incur substantial loss if the term is altered Surprise: evidence shows that a reasonable merchant would not have consented to the additional term

What are supplementary terms under the UCC?

Implied terms Aka, terms that are deemed part of the parties' agreement by virtue of the "course of performance," "course of dealing," and "usage of trade." i.e. Implied warranties of merchantability and fitness Damage provisions Contractual "gap-filler" provisions

What if a real estate firm offers a unilateral contract that says if there employees sell X amount of houses theyll get a bonus at the end of the year, and one of there agents who does so leaves afterward completing the challenge and before the end of the year. Now the firm does not want to pay her and they argue that she never expressly agreed to the contract in the first place?

In a unilateral contract, an offeree's performance is thus considered to be both the acceptance of, and the consideration for, the offeror's promise to pay.

What if a CEO who works "at-will" makes a promise to stay and work for the company and collect a pension if certain things are met, but the promise is illusory because the company can fire him at anytime and he could quit at any time? After firing him, can the company deny him the pension since he made an illusory promise?

In some jurisdictions, the promisor who made the illusory promise can turn the promise into a unilateral contract and accept it through performance. (Marshall Durbin Food Corp) (Iffy, do not if this right). In Marshall, the company reaped the benefits of his employment and his consideration for the contract was his performance.

How does a contract via shrinkwrap terms?

It involves a standard form of additional terms and conditions for the sale of goods that is usually included in the packaging of the merchant's product. Acceptance: acceptance to the terms is implied if the user keeps the items; however, they have the option to reject them by returning the product within a reasonable time. (Majority view) Minority view for acceptance: the customer is the offeror and the merchant is the offeree and the terms are additional terms that require express assent.

HYPO. So KING HARRY contracts with a GC to build him a private road. GC then hires SC to surface the road. KING HARRY pays GC, but then goes bankrupt and never pays SC. SC then sues KING HARRY for unjust enrichment. Result?

NO unjust enrichment because KING HARRY had already given his consideration for the SC's work by paying the GC the contract price.

Previous Example. Should offer be made irrevocable under the doctrine of promissory estoppel?

NO, while Kmoch (Dude 2) acted in reliance on the option by expending time and effort to find other investors those were not actions that Berryman (Dude) would have reasonably expected him to take

SC sends letter to a number of GCs offering to provide all there needed litholeum for a given public building project that they heard about. Letter says it will remain open for prompt acceptance after GC is awarded. SC though significantly underestimates the amount of litho that would be needed. SC realizes mistakes and sends telegram to all GCs saying offer is revoked. Before receiving telegram though GC has submitted bid using SC's offer. GC wins bid and then accepts SCs offer two days after receiving notice about SCs mistake and revocation. Was there a K?

No because GC was not binded to accept SCs bid if they were awarded the contract. The fact that they relied on that information when they sent their bid does not mean acceptance and therefore no contract

GC prepares bid for school job. SC submits bid for paving work at $7000. GC submits own bid, using SC's offered price. GC wins contract. GC goes to SCs to accept bid but right before SC says they were mistaken an revoke and can only do it for $15,000. GC finds someone will do it for 10,000 and the 3000 difference comes out of GCs pocket. Was the offer revocable? (DRENNAN RULE)

No because when reasonable reliance on the offer by the offeree results in a foreseeable negative change in the offeree's position, the offer is presumed to be irrevocable.

Does the modification for a sale of goods contract need consideration?

No consideration needed for modifications to a contract for a sale of goods, but the benefitted party still needs to offer more in order to safeguard around extortion. But good faith requirement to address the extorted modification (UCC §1-103), and the benefitted party to the modified contract would still need to offer more and have the other party agree in order to avoid extortion.

Can employees who after being fired were offered pension, say that there past work is valid consideration?

No past consideration cannot be considered consideration because it did not induce the promise.

You agree with taxi cab driver to drive you to LAX for 50 bucks, and he agrees. On the way, he drives through ghetto neighborhood and says he'll only finish the drive if you give him another 50 and you agree. However, when you get to LAX are you required to give him the 50 bucks?

No, because A pre-existing duty cannot serve as consideration.

How to interpret if there was an offer or acceptance?

OBJECTIVE: an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.

What is a material altered term under the UCC?

One that causes hardship or surprise for the other party

What happens if you enter into a lease and the landlord gives an option to extend the lease afterwards and that you agree to agree on a future price and you can't agree on a price?

Open Price Term UCC §2-305 "Open price term" will not prevent enforcement of a contract if the parties intended to be bound. - If the parties later to fail to agree on price, the court may enforce a "reasonable price." - If one party has the power to fix the price, she must do so in "good faith." If parties intended not to be bound unless the price be fixed or agreed and it's not, then there is no contract and court won't fix a "reasonable" price.

Instead of firing one of their executives, a company wants him to voluntarily retire, so they offer him a pension. After negotiations, the executive decides to retire; however, after a few years the company stops paying the pension and they claim that there was no contract because the executives only other option besides retiring was to be fired. What is the result?

PROMISSORY ESTOPPEL. Because the executive VOLUNTARILY retired he can claim there was a contract through promissory estoppel. In turn, the company's promise to pay him a pension so he could retire induced him to retire; therefore, he had a claim for promissory estoppel.

Mutual Assent

Parties must evidence intention to be bound by terms of the agreement (through writing, orally, or conduct)

Hypo. Guy acts crazy, his wife is like no honey don't kill yourself, but he is like nah b*tch I'm going to do it! Then she calls the emergency and then come and take him to the hospital and give him treatment until he is not suicidal anymore. Before treatment though they want him to sign a release form, but he was like nah b*tch!, and then he signed under duress because they scared him (i guess he was the little b*tch). Anyways he gets the bill and is then like f*ck im not paying this shit! Is he liable for the bill?

Results Contract? Court says he lacked capacity to create a valid contract Promissory Estoppel? He can claim no promise was made Unjust enrichment? They say that there is unjust enrichment and that he can't reject their services because he had no capacity to reject services (Damn, so dude got stuck with the bill)

How can you get Rowlf more money on the Muppet Show without violating the pre-existing doctrine?

Rowlf can take on new duties, such as play piano, or extend it another year to add more money.

A woman's husband dies. She is left with three kids, and her brother-in-law tells her to leave her home and travel a long distance because he was going to give her a place to stay. In turn, she moves her family to where her brother in law lives. After a couple years, the brother in law moves her into an uncomfortable place and then kicks her out. What are her options? Did she have contract with the brother in law that he would provide her housing?

She can claim that a contract was formed through promissory estoppel.

Daughter spends her own money and builds a house on the land of her parents after they promised to give her the land eventually. The dad even helps the daughter get permits and helps her build the house. After the house is finished, though, their is family friction and the parents no longer are willing to give their daughter the land. What are the daughter's options? Was there a promise??

She claim there was a contract through promissory estoppel. Here, there was not an express promise because there was missing terms; however, there must have been an IMPLIED promise because the dad helped the daughter get a permit, had agreed on the location of where the house would go on the land, and on top of that he helped build a large portion of the house. From this conduct an implied promise was inferred.

Poppy Cola is like yo can I get a lease in your really cool shopping center. Then the Marriot Dude is like Ya man, for sure. Then Poppy Cola is like dope but I need confirmation man I have a renewal option at my other place, then Marriot Dude is like ya man, were like 95% there and only need a signature, so you should probably pack your shit up. Then the two went into lease negotiations, but Marriot dude was a dick and after a bit was like peace we out! Poppy had to find a new place, but was unable to for a couple months, so Poppy sued under promissory estoppel. Was he entitled to relief upon promissory estoppel?

Since Pop's was not seeking for enforcement of the lease or speculative profits, but simply OUT OF POCKET EXPENSES incurred because of their detrimental reliance, the court holds that their complaint should not have been summarily dismissed. The court in this case overruled an earlier case that required a "clear and definite promise" for a promissory estoppel action. Since the contract itself was not involved and Pop's was only requesting damages resulting from its detrimental reliance on promises made, despite the ultimate failure of the contract negotiations, the court followed Rest. §90's approach.

What does a contract for the sale of goods over 500 dollars need?

Statute of Frauds Contract must be in writing to be enforceable if amount in involved is over $500 (UCC) However, there are exceptions like in Jannusch, where the parties mutual conduct indicates an agreement even though there is no writing.

How are the terms established for an online contract via browsewrap?

Such an agreement is where website terms and conditions are posted at the bottom or top of a webpage which does not require for the user to give express mutual assent; however, an implied mutual assent is inferred from using the website. Note: The link to the terms needs to be prominently displayed on the website so as to give the user adequate notice of the terms and conditions.

Hypo. You're on the Zanerobe website, and you buy a pair of their new pants that are on sale. You try them on, but they do not fit right so you try and return them. However, at the bottom of the page, which you did not scroll down to look at it, had a disclaimer saying that the sale items were not eligible for returns. What is the result?

Terms and conditions of an online contract are not enforceable if the user did not have ACTUAL notice of the terms and conditions, and a REASONABLE user would not have seen the terms and conditions.

What if an offeree accepts an offer within the time limit given without knowledge that the offeror has sold the land in the offer to someone else?

The contract is then enforceable because the offeror did not effectively revoke their offer.

What if the one store Pop, was a 1000 store mega company with 1 billion in revenue a year. Do you think the same result would occur for enforcing promissory estoppel?

The lost would be less for a mega company and they are also more inclined to have the resources to weather the breaking a promise. It is therefore not technically a detrimental reliance.

What happens if an offeree accepts a counter-offer within the time limit of the original offer but before he submits his acceptance, he learns that the offeror has sold the land in the offer to someone else?

The offeree loses their power of acceptance and can no longer accept the offer because the offer has been revoked.

Consideration?

The promises of one party must INDUCE (or at least appear to induce) the promises or actions of the other, i.e. the parties' promises must be bargained for

Exception to restitution?

There is no liability in restitution for an unrequested benefit voluntarily conferred

When are revocations and rejections effective?

They are effective upon receipt

What constitutes "bargained for"?

This occurs when a promise or performance (consideration) is provided from each side in exchange for a return promise or performance provided by the other side.

Difference between additional v. different terms?

Three approaches (1) treat them the same (2) treat them as not the same, therefore different terms are not added when both are merchants (3) or KNOCK out the different terms, and apply the UCC gap fillers might be wrong on the exact wording, but this is the general concept of the three approaches i think

Point of promissory estoppel?

To act as an alternative means to form a contract, either because they lack consideration to form a traditional contract or because of some other deficiency or missing contractual element.

What happens if parties to an otherwise enforceable contract cannot agree on a term?

UCC §2-204(3): Gap fillers apply where the parties to an otherwise enforceable contract have not agreed about a term (or have just made "agreement to agree"): Ø Price of Goods (§2-305) Ø Quantity (Output contracts) (§2-306) Ø Mode, place and time of delivery (§§2-307, 08, 09) Time and place for payment (§2-310)

What if many terms are missing from a contract for the sale of goods? can the contract be enforceable?

Under the UCC, a contract that is primarily for the sale of goods is enforceable where, although many terms are missing, ESSENTIAL terms, including PRICE and the IDENTIFICATION of goods to be sold, have been agreed upon.

Protection of Another's Property (Restitution), Remedy?

Unjust enrichment... measured by the loss avoided or what a reasonable charge would be, whichever is less

When are acceptances effective?

Upon dispath

How to determine which is the OFFER and which is the ACCEPTANCE when applying the UCC?

When a party shows a WILLINGNESS to enter into a Bargain that JUSTIFIES another person in understanding that there Assent to the bargain is INVITED and will CONCLUDE it.

How can you modify a contract with a pre-existing duty? (poop)

When after the agreement something happens that MATERIALLY changes the assumptions under which the agreement was made. i.e. When poop falls on Kermit's car before the agreed to car wash

What is an OPTION contract?

When an offeror's power to revoke an offer is restricted for an agreed-upon period of time

Offer?

an offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

Protection of offeree in a unilateral contract?

Where an offer invites an offeree to accept by rendering performance, an option contract is created when the offeree begins performance.

What happens if a seller accepts the promise for the sale of goods by shipping the goods without any other kind of notice, and it takes a month to get to the buyer?

Where the beginning of a requested performance is a reasonable mode of acceptance, an offeror who is not notified of acceptance within a reasonable time may treat offer as if it had lapsed before acceptance.

However, what if the offeree changes their mind? And sends a rejection followed by an acceptance

Whichever letter gets to the offeror first is effective

As the executive's attorney could you argue that there was a contract without promissory estoppel?

Yes because there was consideration. The company promised to give the pension because they wanted the executive to retire, and the executive retired because the company offered him a pension. (Aka bargained for exchange)

Do the terms in an offer need CERTAINTY?

Yes, (1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. (2) the terms of a contract/offer are reasonably certain if they provide a basis for DETERMINING THE EXISTENCE OF A BREACH and for giving an appropriate REMEDY.

Previous Example. If revocable, was offer timely and effectively revoked?

Yes, because by learning about the land being sold to someone else that constitutes effective revocation (Normille)

You are Rowlf's agent. He is under contract with the Muppet show for three more years. He calls you and asks you to renegotiate his deal for more money now that he is a big star. Problem?

You cannot modify the salary because Rowlf already a pre-existing duty to the show, therefore if they offered more money it would not be enforeceable because there would be no consideration

What if a person puts an ad in a newspaper soliciting offers? Can that be construed as an offer?

a manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.

What if a party puts an ad in a newspaper that misrepresents whether or not an offer has been made?

a misrepresentation is not a cause of a party's making a contract unless he relied on the misrepresentation in manifesting his assent.

What is a merchant?

a person who deals in goods of the kind involved in the transaction or who otherwise by occupation holds himself out as having knowledge or skill in regard to the practices or goods involved in the transaction.

Acceptance?

an offeree assents to the terms of an offer and communicates that assent to the offeror

Detrimental reliance?

action by one party resulting in loss that is based on the actions or promises of another.

How does mutual assent usually form?

an Offer by one party followed by an Acceptance by the other.

FIRM OFFER? (ucc)

an offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if not time stated then for a reasonable time, but in not event such period of irrevocability exceed three months; BUT any such term of assurance on a form SUPPLIED BY the OFFEREE must be SEPARATELY SIGNED by the offeror.

What if you say yes to an agreement to buy a concession stand, but that you'll sign a contract later. Then you take over the stand for season but after you realize the business is not that good, you say there was no contract because the UCC says the contract for a sale of goods over 500 needs to be in writing.

if you say "yes I agree, let's sign a contract later" and you do acts consistent with intention to an agreement or admit in court that a contract existed, then the contract can be enforceable Ø Intent can form a contract and make it enforceable.

What if parties contemplate the formation of a formal, written contract after making an agreement?

manifestations of assent that are sufficient to form a contract will not be unenforceable by the fact that the parties also manifest an intention to prepare and adopt a written memorial for it; but the circumstances may show that the parties intended for the agreement to be a preliminary negotiations.

How does a party accept an offer for a sale of goods? (UCC)

§ (1) Unless otherwise unambiguously indicated by the language or circumstances Ø (a) an offer to make a contract is construed as inviting acceptance in any manner that and by any medium reasonable in the circumstances. Ø (b) an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance by either a PROMPT PROMISE or PROMPT SHIPMENT [of the goods.]

Restitution example: Doctor is summoned to take care of someone lying unconscious. Doctor performs the emergency surgery. He then reasonably and customary charges for the services rendered is $1000, which victim refuses to pay.

○ There is no mutual assent here, but it was impossible for the person to give assent and it was to prevent seriously bodily harm or pain. ○ You can reasonably assume that the person would have wanted to be saved by the doctor if they were conscious. ○ Therefore the doctor is entitled to payment. § If not, the patient would have been unjustly enriched. The remedy for unjust enrichment would be restitution.