Contracts

Restatement of Contracts (2) subsection 90 (2)

(2) A charitable subscription or a marriage settlement is binding under Subsection (1) without proof that the promise induced action or forbearance

Restatement of Contracts (2) 36d: Power of acceptance may be terminated by......d

(d) death or incapacity of the offeror or the offeree (emphasize death & incapacity)

White v. Corlies & Tift

- - The plaintiff (White) left an estimate with defendants, Defendants made a change and sent a copy to White for his assent. White agreed to the changes and returned it to the defendants. The following day the defendant's bookkeeper wrote " upon agreement to finish up the offices in two weeks' time, the plaintiff can begin at once. The writer will call you again, probably between 5 and 6 this PM" The plaintiff never replied to the notice and immediately ordered lumber. The next day the defendant's countermanded the offer. To form a binding contract, acceptance by performance must be sufficient to manifest or communicate the acceptance to the offeror.

Rose Bowl Ruling

- "Plaintiff forgets that, logically or not, it is a general rule, that the doctrine of breach by anticipatory repudiation does not apply to contracts which are unilateral in their inception or have become so by complete performance by one party." - Proper measure of damages is the difference between the value of an economy season ticket with the Rose Bowl Option

Restatement of Contracts (2) 39: Counter-offers

- (1) a counter-offer is an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer - (2) an offeree's power of acceptance is terminated by his making of a counteroffer, unless the offeror has manifested a contrary intention or unless the counteroffer manifests a contrary intention of the offeree.

Restatement of Contracts (2) rule 35: Offeree's power of acceptance

- (1) an offer gives to the offeree a continuing power to complete the manifestation of mutual assent by acceptance of the offer - (2) A contract cannot be created by acceptance of an offer after the power of acceptance has been terminated in one of the ways listed in rule 36

Restatement of Contracts 24: 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. - Offer is a promise revocable until accepted

Restatement of Contracts (2) 43: Indirect Communcation of Reovcation

- An offeree's power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect

Dickinson v. Dodds

- Dodds (defendant) drafted a document to sell a piece of property to Dickinson (plaintiff). The offer stated it would be left open until 9AM on June 12. Nothing was offered to keep the deal open. On Thursday June 11, Dickinson was notified by his agent that Dodds changed his mind and intended to sell the property to a third party. Dickinson attempted to find Dobb's and found him at a train station providing him copies of the offer to sell. Dodds had already sold the property to the third party.

Dyer v. National By-Products

- Dyer forebear in good faith from filing a legal claim that actually had no legal merits. The parties settled but NPB attempted to have settlement nullified.

Parole evidence rule

- Evidence may not be used to supplement a written contract. -May preclude a determination that an agreement made prior to or contemporaneously with the writing- but not reflected in it- is part of the contract. - IT is not limited to oral agreements, excludes writing such as letters and emails. - Precludes any proof that the terms of the contract are other than as expressed in the writing.

Feinberg v. Pfeiffer

- Feinberg was an employee of Pfeifer. Pfeifer BOD adopted resolution designed to thank Feinberg. Her salary was increased, and a lifetime pension was given as a gift. Feinberg retired several years later. After the death of Lippman, new ceo eventually attempted to reduce the retirement payment by $100. - Can a promise that induces action and is relied upon be enforced?

Hilton (Dynamic Duo)

- Fight promoters Butch Lewis and Don King, doing business as the Dynamic Duo, Inc., made a contract with Hilton Hotels to stage at the Las Vegas Hilton the final four fights in the Unification Series, titled because it was designed to select a single champion from three world boxing organizations. Hilton claimed that it was understood that Michael Spinks, the IBF champion, would be available for these events, though the contract was silent as to this. Prior to the fight Spinks forfeited his title before the events. Hilton sued Dynamic Duo. - Dynamic Duo did not have a contractual duty to furnish Spinks as a contestant, however, it did have a legal duty not to interfere with Spinks capacity to be a contestant. By interfering with Spink's title, Dynamic Duo interfered with Hilton's ability to receive the fruit of the contact.

Can a contracting party take advantage of the other party's oversight without possibly incurring liability?

- No, a contracting party can not take advantage of the other contracting party's oversight without possibly incurring liability. Judge Posner called this "Sharp dealing" -It is one thing to exploit superior knowledge of the market- for if you cannot you will not be able to recoup the investment you made in obtaining that knowledge, it is another to exploit the oversight by your contract partner concerning his rights under the contract. - No obligation to bail out opposing party that has gotten into trouble.

Under the preexisting duty rule can parties enter into a new agreement in which no additional performance outside of the original agreement is expected?

- No. The preexisting duty rule prevents parties from negotiating a new agreement in which the party does no more than the duty which was originally expected. - If a party renegotiates a deal but adds in new work or duty than the original deal can be amended

Restatement of Contracts (2) 37: Termination of Power acceptance under option contract

- Notwithstanding 38-49, the power of acceptance under an option contract is not terminated by rejection or counter offer or by death or incapacity of the offeror, unless the requirements are met for the discharge of a contractual duty.

Ambiguity

- Open to more than one interpretation - Could lead to a mutual misunderstanding under the Parole evidence rule

Unjust enrichment

- Principle that a person shall not be allowed to enrich himself unjustly at the expense of another. - May trigger a quasi-contract

Restatement of Contracts (2) 40-Time when rejection of counteroffer terminates the power of acceptance:

- Rejection or counteroffer by mail or telegram does not terminate the power of acceptance until received by the offeror but limits the power so that a letter or telegram of acceptance started after the sending of an otherwise effective rejection or counteroffer is only a counteroffer unless the acceptance is received by the offeror before he receives the rejection or counter offer.

Restitution (Unsolicited Benefits)

- Restitution for unsolicited benefits isn't ordered except in unusual situations. Courts've been more willing to award restitution for unsolicited benefits that protect human health or save human life than for unsolicited benefits that preserve property or increase a property's value.

Non- Material

- Substantial performance has been completed - Party must continue performance and treat breach as partial.

Parole evidence admission test

- The agreement must inform be a collateral one - It must not contradict express or implied provisions of the written contract - It must be one that parties would not ordinarily be expected to embody in the writing, or, put another way an inspection of the written contract read in the light of surrounding circumstances, must not indicate that the writing appears 'To contain the engagements of the parties, and to define the object and measure the extent of such engagement.

Hammer v. Sidway

- Uncle asked his nephew to forbear from drinking or smoking or cursing and would pay him $5000

Peppercorn

- Used to describe consideration that is of trifling value - A peppercorn as a mere pretense of a bargain does not suffice as consideration - Neither does nominal consideration

Does a party breach the good faith and fair dealing covenant if they fail to properly comply with a promised condition of a contract?

- Yes. A party breaches the covenant of good faith and fair dealing if they fail to properly comply with a promised condition of a contract. A court may force performance of the contract. - "Implicit in all contracts is a covenant of good faith and fair dealing in the course of contract performance" - "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract"

Restitution

- seeks to disgorge a defendant from unjust enrichment rather than make the plaintiff whole for loss - No alternative for recovery - No opportunity for bargain for exchange

Restatement of Contracts (2) 45: Option contract created by part performance or tender

-(1) Where an offer invited an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or beings the invited performance or tenders a beginning of it -(2) The offeror's duty of performance under any option so created is conditional on the completion or tender of the invited performance in accordance with the terms of the offer.

Restatement of Contracts (2) (41): Lapse of time

-(1) an offeree's power of acceptance is terminated at the time specified in the offer, or if no time is specified, at the end of a reasonable time -(2) What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made. -(3) Unless otherwise indicated by the language or the circumstances, and subject to the rule stated in 49, an offer sent by mail is seasonably accepted if an acceptance is mailed at any time before midnight on the day on which the offer is received.

Restatement of Contracts (2) rule 36:

-Methods of termination of the power of acceptance - (a) rejection or counter offer by the offeree - (b)Lapse of time -(c) Revocation by the offeror - (d) death or incapacity of the offeror or the offeree

Douglass v. Pflueger Hawaii

-Pflueger hired douglass as a lot technician in Hawaii. Douglass was 17 years old (less than four months shy of the age of majority) Douglass was given employee handbook which contained polciies and procedures and an arbitration provision. Douglass signed an acknowledgment form, located on page 60 in the Employee handbook. Douglass gets injured on the job by an employee spraying him on the buttocks area with an air hose. Dogulass filed suit.

Can a promise that reasonably induces someone to forbear a legal right be enforced under promissor estopped?

A promise that reasonably induces someone to forebear a legal right will create an enforceable promise if it is the only way to avoid injustice. Promisor is thus Estopped from denying the promise or its enforceability.

Does a satisfaction clause in a real-estate contract that bases one party's promise to perform on satisfaction of a condition render the promise illusory or lacking consideration?

A satisfaction clause in a real-estate contract that bases one party's promise to perform on satisfaction of a condition does not render the promise illusory or lacking consideration. - Party can't arbitrarily claim to be dissatisfied - Must act as a reasonable person - Duty to act in good faith still constitutes consideration

Is a surrogacy contract valid?

A surrogacy contract is invalid if the exchange is for money for the termination of parental rights. The court's decision was based off of public policy using adoption laws. -Mother's consent to surrender her child to adoption is revocable, Whitehead had no such option -NJ law prohibited the use of money in connection with adoptions, were as money was the driving factor into the surrogacy - Unlike adoptions, No research was done into the fitness of the parents prior to surrogacy. -This decision varies state by state (Michigan courts ruled similar to NJ in regards to money, Kentucky courts have placed surrogacy outside the reach of the state's baby selling statue)

Latent Ambiguity

A term that appears clear on its face, but is unclear when trying to interpret its role in a contract.

Alaska Packers' Ass'n v. Domenico

Alaska Packers promised to pay workers $50 plus .02 commission for every fish caught. After arriving in Alaska the workers stopped working and demanded $100. Alaska Packers had already invested $150,000 into a salmon cannery. It was impossible to get alternative workers due to the season the wild fish ran. A superintendent signed an agreement to pay the new bargain. Upon returning home Alaska Packers paid only the original agreed-upon amount.

performance may consist of?

An act other than a promise, a forbearance, or creation, modification, or destruction of a legal relation.

Strong v. Sheffield

D promised to pay her husband's promissory note, which was held by Comp. At the time the case arose the debt was past due. Comp agreed to not put the note into a bank for collection until he wanted his money back. Comp could have collected on the note at any time. Because the return of the money is up to Pl's sole discretion D didn't receive a promise, no consideration.

Simeone v. Simeone

Catherine Walsh a 23 year old unemployed nurse, was engaged to Frederick Simeone, a 39 year old neurosurgeon. On the eve of their wedding, Frederick's lawyer presented Catherine with a prenuptial agreement. The agreement limited Catherine from a total maximum payment of $25,000.00. Without seeking counsel and without explanation Catherine signed the document. The parties were married the next day, separated in 1982, and then began divorce proceedings in 1984. Catherine sought alimony, Frederick resisted due to paying Catherine from 1982 to 1984 satisfying the limit.

Frigaliment Importing Co. V. B.N.S. International Sales Corp.

Frigaliment (plaintiff) offered to buy chicken from B.N.S for .33 a lb. The parties met at a world trade show and were introduced by a third party. The negotiations were conducted through cables primarily in German but used the English term "chicken". The chickens were sold in two sizes 2 ½ - 3lbs and 1 ½ - 2lbs. BNS an American company interpreted chickens to mean any type of chicken within the size range. Frigaliment interpreted the term to mean young chickens (broiler or frying). The price of .35 -.37 cents for broiler chickens and .30 for stewing chickens.

Can a party's general statements made in negotiation create a binding offer?

General statement's made in negotiation do not create a binding offer if they do not indicate a party's intent to be bound by those statements. -Court was hesitant to "gap fill" and find an offer in Owen v. Tunison

Harrington v. Taylor

Harrington saved Taylor's life by stepping in front of an ax, swung by a third party, that was about to cause serious injury by striking him in the head. Harrington injured her arm, and Taylor agreed to pay Harrington for her injury

Cotnam v. Wisdom

Harrison (deceased) was thrown from a car, and suffered serious injury that left him unconscious. Plaintiffs, who were medical professionals, assisted Harrison and performed a surgery to try and save his life. Harrison died without ever gaining conscious. Cotnam (defendant & will executor) refused to pay Wisdom (complainant) for his services.

Mattei v. Hopper

Hopper submitted an offer that Mattei accepted. The party's agreement was recorded in a real-estate deposit receipt. Mattei was to pay a deposit of $1000, after which he had 120 days to examine the title and pay the rest of the purchase price. The agreement was subject to Mattei "Obtaining leases satisfactory to the purchaser." Hopper informed Mattei that she was unwilling to proceed with the sale before the 120 days expired. - Does a satisfaction clause in a real estate contract make the agreement illusory?

International filter Co. v. Conroe Gin, Ice & Light

IFC (plaintiff) manufactured machinery for water purification. IFC submitted a proposal offering to sell certain equipment to Conroe for $1230.000 and provided that the sales contract must be approved by management. Conroe (defendant) accepted and submitted to International, International endorsed document ith "O.K. /d/s/" and wrote Conroe a letter dated Feb 14th acknowledging the receipt of the document. - Does a party need to be notified of acceptance before to make the contract binding?

Michael v. Lath

In the fall of 1923 the Lath's owned a farm that they were looking to sell. Across the road on land belonging to the Lt. Governor was an icehouse which the prospective buyer Mrs. Mitchell found objectionable. The Laths orally promised to take the icehouse down. Mrs. Mitchell created a written contract to buy the property for $8400. The agreement also contained various other provisions. Mrs. Mitchell spent money turning the property into a summer residence. The defendant's did not fulfill their promise to remove the icehouse, and do not plan on doing so.

A performance or return promise is bargained for if...

It is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise

Speakers of Sport v. ProServ

Ivan Rodriguez, a highly successful MLB catcher signed a one-year, terminable-at-will contract with Speaker of Sports, an agency representing professional athletes. ProServ, another sports agency, lured Rodriguez away with promises to get Rodriguez between $2 and $4 million in endorsements if he signed with them. Rodriguez signed, and ProServ failed to get the endorsements, Ivan then signed with a third agent. Speakers brough suit against ProServ for fraud that induced Ivan to terminate his contract with Speakers.

Market Street Associates v. Frey (Judge Posner)

J.C. Penny entered into a sale and leaseback arrangement with General Electric Pension Trust in order to finance Penney's Growth. Under Paragraph 34, the pension trust agreed to give reasonable consideration to requests by Penney for the financing of additional improvements. It went on to provide, that if the average annual appreciation in the property exceeded 6 percent, a breakdown in the negotiations over the financing of improvements would entitle Penney to buy back the property for less than its market value. Twenty years later, Market Street (Penny's successor) under one of its leases, sought to buy back the property it leased from the pension trust in order to use the property to get financing elsewhere. Market Street sent letters to the Trust requesting financing but failed to mention paragraph 34. Market Street attempted to exercise paragraph 34, but the Trust refused to sell. Market Street sued for specific performance.

Callano v. Oakwood Park Homes

Julia and Frank Callano (plaintiffs) entered into a contract with (Pendergast), The Callano's delivered and planted shrubbery to a house Pendergast was having built. Pendergast died prior to paying, and his estate cancelled the contract to purchase the house. Oakwood (defendant) sold the house to another party. - Does a quasi-contract exist? (no)

Ricketts v. Scothorn

Katie Scothorn quit her job and left her profession as a bookkeeper after her grandfather gave her a promissory note to pay her $2000 on demand and 6% annual interest. At the time of giving the note, it was known the promisor did not wish for his grandchildren to work, and upon receiving the note Scthorn quit. She was not required to by the terms of the note, nor did her grandfather require quitting to receive the gift. - Promissory estoppel

Kirksey v. Kirksey

Kirksey wrote a letter to Antillico stating that he felt bad, that she should make a decision of whether to move, that he would recommend she move, and would provide her with a place to raise her family. A month later Antillico moved her family to Kirksey's land, after disposing of her property. Kirksey provided them with a comfortable house for two years. However, for the third year, he provided them with an uncomfortable house in the woods. After that year, he asked them to leave. Antillico brought suit seeking performance of Kirksey's promise.

Promise

manifestation of intention to act or refrain from acting so made to justify a Promisee in understanding that a commitment has been made.

Wood v. Lucy, Lady D-G Cardozo

Lucy (defendant) granted Wood (plaintiff) the exclusive right to place her endorsement on other's clothing designs. She also granted Wood the exclusive right to market her designs and sell them. In return, Lucy would receive 50 percent of the profits from Wood's efforts with regard to her endorsements and designs. Wood agreed to keep records of all accounts and to take out all patents, copyrights, and trademarks necessary to protect Lucy designs. Lucy later entered into a contract with another company whereby she placed her endorsement on others' clothing designs. Wood filed suit, claiming breach of contract. - Consideration without binding to anything?

Borelli v. Brusseau

Michael Borelli and Hilda Broelli were married in 1980. In 1988, Michael suffered a stroke and thereafter required round-the-clock nursing care. Unhappy at being cared for in a rehabilitation center, Michael agreed to transfer certain real property to Hilda upon his death in exchange for her promise to care for him at home for the duration of his illness. Hilda agreed, and took care of Michael until his death. Under the terms of Michael's will, Hilda received $100,000; the remainder of his estate went to his daughter from his first marriage.

Mills v. Wyman

Mills cares for a dying man, and notifies the dying man's father, Wyman. Wyman wants to reward Mills for his kindness, but then changes his mind

Vokes v. Arthur Murray, inc

Mrs. Vokes (Plaintiff) was a widow of 51 years and without family, wanted to become an accomplished dancer with the hopes of finding new interest in life. Vokes attended a dance party at Davenport's "School of Dancing" where J.P. Davenport (owner) complimented her on her grace and poise and her rosy future as an "excellent dancer". Vokes was sold dance lessons over the next sixteen months totaling over $31,090.45.

Wright v. Newman

Newman (plaintiff) has two children, a son and a daughter. Wright (defendant) is the natural father of Newman's daughter, but is not the natural or adoptive father of Newman's son. However, Wright is listed on the son's birth certificate as the natural father, and the child was given Wright's last name. Wright always knew that he was not the child's natural father, but Newman contends that Wright assumed the responsibilities of a father for 10 years. Newman never attempted to identify her son's natural father and never sought support from him. Wright and Newman split. Wright refused to provide support for the children. Newman filed suit, seeking support for both children.

Is surrogacy baby selling?

No it is the sale of parental rights

Will a contract be enforced if a condition precedent isn't satisfied?

No, a contract will not be enforced if a condition precedent isn't satisfied.

Does a company's puffing during a sales pitch that lures a client away constitute a promise and an inducement of fraud?

No. A companies extravagant adjectives during a sales pitch that is intended for a reasonable person to understand to be aspirational rather than enforceable does not constitute a promise or an inducement of fraud

May a creditor's promise to forbear from collecting a debt constitute valuable consideration for a third party's promise to answer for the debt, when the terms of the promise allow the creditor to collect the debt at anytime?

No. A creditor's promise to forbear from collecting a debt cannot constitute valuable consideration for a third party's promise to answer for the debt, when the creditor is able to collect on the debt at any time. Willingly choosing to not collect is not forbearance.t

Does a Non-Material breach justify the repudiation of a contract?

No. A non-material breach is not serious enough to justify repudiation of an entire contract.

Is a contracting party required to take steps that would knowingly fail to satisfy a condition precedent?

No. A party is not required to take steps that would knowingly fail

Does a promise made on a moral obligation but without legal consideration become enforceable?

No. A promise made based on a moral obligation but without legal consideration does not constitute an enforceable contract unless there is a legal obligation.

Does a promise made on moral obligation but without legal consideration enforceable?

No. A promise made on a moral obligation without legal consideration does not constitute an enforceable contract

Whether a promise to provide free land to a person, that is fulfilled for a period of time, and then revoked is sufficient consideration and enforceable?

No. A promise to provide free land is gratuitous and thus unenforceable. (Promissory estoppel was not established at this time (Kirksey v. Kirksey) and could arguably fall under this contract enforcement) key takeaway is consideration must be real and bargained for exchanged.

Can a quasi-contract based on unjust enrichment be implied by law when there is a remedy available to the injured party in an action against another party?

No. A quasi-contract based on unjust enrichment can be implied by law only when there is no other remedy available.

Must the seller inform a buyer of a defect before selling a house?

No. A seller does not need to dosclose a defect before selling a house toa buyer due to the rule of nonliabulity for bare nondisclosure. An arms length deal does not create a duty to either party. The complainant was free to inquire and attempt to discover the issue, and the defendant took no mean to prevent the complainant from doing so.

Does a voluntary act constitute sufficient consideration to support a contract?

No. A voluntary act does not constitute sufficient consideration to support a contract.

Where an offer states a method of acceptance, must that method be executed prio to accepting a contract?

No. An offeree may accept an offer through other methods if the stated method is not exclusive. Here Ford's acceptance of allowing Allied to be installed on the second batch of machines, Allied's willingness to begin installing the machinery is enough to preclude Allied from denying the existence of a contract.

Is a buyer bound to communicate the information to a seller?

No. Bare nondisclosure rule

Can written or oral evidence being introduced into trial that contradicts and is not included in a final agreement?

No. Evidence that is not included in the final agreement cannot be introduced into a trial to change a contract based due to the parole evidence rule.

If a contracting party intends for their contract to become binding immediately upon acceptance does the offeree need to notify the offeror of the acceptance to make a contract binding?

No. If contracting parties intended for their contract to become binding immediately upon acceptance. Then the offeree does not need to notify the offeror of the acceptance to make the contract binding

Does the pre-existing duty rule prevent enforcement by the debtor of the creditor's forgiveness agreement?

No. Payment on or after the due date of a money debt. In agreeing to pay a judgement the debtor has only fulfilled an obligation he/she was already obligated to fulfill. Foakes v. Beer

Does a father paying his son $1000 for a book worth $1 constitute consideration?

No. The book is merely a peppercorn in this transaction.

Can an offer be accepted without notifying the other party, but by purchasing standard materials to work on a project?

No. To form a binding contract, acceptance does not need to be brought to the attention of the other party but must be done in a method that indicates to the other party that the offer has been accepted. In this case, just purchasing the lumber is not sufficient enough of an act to communicate to the other party an acceptance of a contract.

Does a personal performance of a personal duty created by the contract of marriage constitute new consideration?

No. a personal performance is not new consideration if that personal duty is already owed by an existing marriage agreement.

Loring v. City of Boston

On May 27th, 1837 the city of Boston (defendant) advertised $1000 reward for anyone that caught and convicted a person setting fire to a building. The reward was in response to a number of fires that had recently been set in the city. The ad ran in the papers for a week. In January of 1841, Loring (plaintiff) apprehended and convicted a man of starting a fire. Loring sued the city seeking the $1000 reward. (offer expire after a reasonable time)

Owen v. Tunison

On October 23, 1929, W.H. Owen (plaintiff) wrote a letter to R.G. Tunison (defendant) asking if he was willing to sell a lot he owned spanning one block of Main Street in Bucksport, Maine, referred to as the "Bradley block." Tunison responded by letter from Cannes, France on November 12, stating that it would not be possible to sell the Bradley block unless he received $16,000 in cash, due to improvements he had made to the properties. Owen immediately sent another letter to Tunison stating his acceptance of the offer to sell the Bradley block for $16,000. However, Tunison promptly responded that he did not want to sell the Bradley block.

Ortelere v. Teacher's Retirment Bd.

Ortelere worked as a teacher and was on leave for mental illness. Her husband quit his job. Ortelere obtained a loan from a retirement system she had paid into for 40 years, and made an irrevocable decision to take maximum retirement benefits of $450 a month during her lifetime that expired upon her death. Two months later she died of cerebral arteriosclerosis, leaving her husband with no benefits.

What constitutes consideration?

Performance or return promise must be bargained for

Dalton v. Educational Testing Services

Plaintiff (Dalton) took the SAT which was administered by defendant (Educational Testing Service (ETS)). Dalton scored a low score and so he retook the SAT in November later that year. Dalton scored 410 points higher which triggered a review by ETS. Prior to taking the test Dalton signed a statement agreeing to abide by the conditions set in. ETS reviewed Dalton's exam and determined the handwriting was completed by someone else. The conditions provided Dalton with five options: 1) The opportunity to provide additional information, 2) confirmation of the score by taking a free retest, 3) Authorization for ETS to cancel the score by taking a free retest, 4) third-party review by any institution receiving the test score, and 5) arbitration. Dalton chose to submit additional information providing a doctor's note, a document examiner saying the writing was from the same person, statements from 2 students, and a statement from the ETS proctor who remembered he was there. ETS continued to question the results.

Restitution as a remedy for the minor's counterparty

Restitution for Persons: The new rule Section 33 RS of Restitution and Unjust enrichment "A person who renders performance under an agreement that is unenforceable by reason of the other party's legal incapacity has a claim in restitution against the recipient as necessary to prevent unjust enrichment" Some jurisdictions use voidable contracts as a means of discouraging adults from doing business with minors. Will intentionally fail to protect them from the risks.

Rose Bowl University of South Carolina

The University of Southern California advertised "economy" season tickets to football games, promising that if the team went to the Rose Bowl each holder of season tickets would be given the option to buy a Rose Bowl Ticket. When the Trojans were accepted to the Rose Bowl the University wrote to economy ticket holders stating for reasons beyond their control they could not guarantee a ticket.

Restatement of Contracts (2) 14: Minors

Unless a statue provides otherwise, a natural person has the capacity to incur only voidable contractual duties until the beginning of the day before the person's eighteenth birthday.

Ventura v. Titan Sports

Ventura was a a wrestler and heel commentator. Ventura's agent Barry Bloom inquired about royalties for any videotape sales in which Ventura appeared. Titan responded by saying only "feature" performers were given royalties. Ventura than agreed to waive royalties. Ventura later found out other performers who were not feature wrestlers received royalties. Ventura brought action for fraud, misappropriation of publicity rights, and unjust enrichment. A jury awarded Ventura $800,000. Titan appealed.

Can a contract be voided if by mental illness a person is unable to understand in a reasonable manner in relation to the transaction and the other party has a reason to know?

Yes. A contract can be voided if a person is mentally ill and is unable to understand in a reasonable manner in relation to a transaction and the other party has reason to know of the incapacity.

When a physician renders aid, can the court enforce a contract where no actual agreement existed due to the inability of an injured individual to bargain.

Yes. A court may enforce a contract between parties, where a physician renders services to a person who is unconscious and unable to contract. (quasi-contract).

If a term is ambiguous, and both parties assume two different interpretations of the term, can the court look to external factors to interpret a term?

Yes. A court may look to external factors such as: negotiations, trade use, regulation, economics to interpret an ambiguous term in a contract.

Whether a promise of $200 retirement pay per month that was given to the plaintiff as a retirement gift from the defendant created an enforceable promise if the complainant relied on the gift to make a detrimental reliance (retirement) on the promise

Yes. A gratuitous (normally unenforceable) promise is transformed into a binding and enforceable agreement if the Promisee is reasonably induced and detrimentally relies on the promise.

If a party has no duty to disclose facts within his knowledge or to answer inquiries, but the party chooses to do so is disclosure required?

Yes. A party that has no duty to disclose facts within their knowledge or to answer inquiries, but the party chooses to disclose that knowledge the party must disclose the whole truth. Parties dealing on a contractual basis at arms length on equal footing with no inequities or inherently unfair practices courts will generally "leave the parties where they find themselves" As a general rule, misrepresentations made by a party to the contract are actionable when they relate to material misrepresentations of fact. Here Davenport had superior knowledge of how bad Vokes was, failed to disclose, told Vokes she was doing well and put her on "faster tracks" leaving the impression she was improving at an above average rate. Puffery went beyond unsavory and intruded well into the area of undue influence, the suggestion of falsehood, the suppression of truth, and the free exercise of rational judgement.

Can a party who learns from the other party of their intent to breach a contract seek other contracts without forfeiting a right to performance, and are they free to bring action prior to performance being do?

Yes. A party that is informed that the opposing party will breach is free to enter into other contracts without losing the expectations of the original contract, and the party is able to bring suit prior to the performance becoming due. Breach broke implied covenant of good faith and fair dealing, court also stated it was more efficient for a party to mitigate any damages from an expected breach

Can a promise be implied from the circumstances surrounding the contract?

Yes. A promise can be implied from the circumstances surrounding the contract. Here the agreement to keep records, take out and maintain patents, copyrights, and trademarks necessary, as well as, incentive to earn money only when deals are made can be implied to form a contract.

Does a promise made by one party to two-other parties, that already have an agreement (in this case to marry) binding if it induces them into not rescinding or modify that current agreement which has yet to be fulfilled?

Yes. A promise made by one party to two other parties that already have an agreement, can be enforced if it induces those parties to not modify or rescind their contract Early promissory estoppel case

Can the common law rule of minors being only able to enter into voidable contracts be ruled invalid by state statue?

Yes. A state statue can invalidate the common law rule of minors being allowed to enter into only voidable contracts. Illustrates the tensions

Is an advertisement a binding offer if it clear, definite, and explicit leaving nothing open for negotiation?

Yes. An advertisement is a binding offer if it clear, definite, and explicit and leaves nothing open for negotiation

Does an offer expire after a reasonable time has passed?

Yes. An offer expires after a reasonable time. In Loring, the reward was posted several years prior after a series of arsons to try and scare potential arsonists off. Over the years the number of arsons decreased, and the court ruled that the offer expired because reliance was unreasonable to extend 4 years later.

Does forbearing from filing a legal claim in good faith where the complaint would have no legal merits constitute consideration for a settlement?

Yes. Forbearance from filing a legal claim in good faith where no legal merits existed constitutes consideration for a settlement.

Can fraud set aside an existing contract to allow for a remedy for unjust enrichment?

Yes. Fraud can set aside a contract and allow for a complaint to receive a remedy for compensation of services provided.

Can an agreement be modified that a higher price will be paid for a preexisting duty if there is a voluntary agreement to modify the terms?

Yes. If a modification is voluntarily agreed upon a party waives their right to enforce a performance

If a seller makes a representation that is fraudulent, knowingly incomplete, or a misrepresentation a basis for a buyer to rescind a contract?

Yes. If a seller makes a representation that is fraudulent, knowingly incomplete, or a misrepresentation, a buyer may rescind a contract. Because the seller provided the information the seller is responsible for the misrepresentation. Had the seller not provided the information they would have been protected by the bare nondisclosure rule.

Does a mutual mistake allow for evidence to be introduced modifying an existing contract despite the parole evidence rule?

Yes. Mutual mistake allows for evidence to be introduced that may show an agreement between the parties that is not included in the written or final agreement.

Does saving someone's life conferring a material benefit or undertaking of a detriment by a promisee create sufficient consideration to enforce a promise to pay on the benefit.

Yes. When a Promisee confers upon a promisor a benefit that is material and substantial, and is conveyed upon the person of the promisor, sufficient consideration is met to enforce a contract between the parties.

Lucy v. Zehmer

Zehmer (defendant) was drinking in a bar with Lucy (defendant). Lucy offered to buy a farm owned by Zehmer. Zehmer wrote a contract out after bargaining for forty minutes. Zehmer and his wife (believing it was a joke) signed a renegotiated contract to sell. Lucy attempted to offer $5 to close the deal. At this point Zehmer told Lucy it was a joke offer. -Does a party's internal mindset matter, when they are outwardly expressing the intention to enter into a bargained contract? (no)

Raffles v. Wichelhaus

The plaintiff (Raffles) was to sell to the defendants (Wichelhaus) 125 bales of Surat cotton, to arrive from a ship Peerless from Bombay in October. The cotton was delivered from a ship Peerless in December. The defendants refused delivery.

Should a party be made entitled to be made whole to their expectation of a contract if an opposing party breaches?

Yes. A Party should be made whole to their expectation of a contract if an opposing party breaches. Pain and suffering is expected with any operation and should not be considered in such a scenario as it was part of the consideration.

Restatement of Contracts (2) 159: Misrepresentation defined

A misrepresentation is an assertion that is not in accord with the facts

Is a prenuptial agreement enforceable if it is unreasonable?

A prenuptial agreement is enforceable without deciding if the contract was reasonable so long as a full and fair financial disclosure of the financial positions of the parties is completed. The disclosure does not need to be exact so long as it is "full and fair" The contract is not conducted at arms length, but is a relationship of mutual confidence and trust

Can an offer be accepted within a reasonable time frame if no time is specified through performance?

Yes. A contract can be accepted by performance within a reasonable time frame if no time is specified. Notice of the remand must be done prior to acceptance of the contract through performance.

•RS(2) § 224:

"A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due" (emphasis added) Comment e: although "terminology is not followed" by RS(2) §244, explains precedent vs subsequent

V. Corbin contract definition

"An act whereby one person confers upon another the power to create contractual relations between them. It must be an act that leads the offeree reasonably to believe that a power to create a contract is conferred upon him. It is on this ground that we must exclude invitations to deal or acts of mere preliminary negotation, and acts evidently done in jest or without intent to create legal relations. All these are acts that do not lead others reasonably to believe that they are empowered to 'close the contract."

Anticipatory Repudiation

"In order to constitute a repudiation, a party's language must be sufficiently positive to be reasonably interpreted to mean that the party will not or cannot perform." " An announcement of a an intention not to perform" need not be in words.

Covenant of "Good Faith and fair dealing"

"Neither party shall do anything which shall have the effect of destroying or injuring the right of the other party to receive the fruits of the contract"

Restatement of Contracts (2) 162: when a misrepresentation is fraudulent or material

(1) A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) Knows or believes that the assertion is not in accord with the facts or (b) does not have the confidence that he states or implies in the truth of the assertion © knows that he does not have the basis that he states or implies for the assertion (2) A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so.

Restatement of Contracts (2) 15: Mental Illness or Defect

(1) A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect (a) he is unable to understand in a reasonable manner the nature and consequences of the transaction (b) he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition. (2) Where the contract is made on fair terms and the other party is without knowledge of the mental illness or defect, the power of avoidance under Subsection 1 terminates to the extent that the contract has been so performed in whole or in part or the circumstances have so changed that avoidance would be unjust. In such a case a court may grant relief as justice requires.

Restatement of Contracts (2) rule 90

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Restatement of contracts (2) 176: When a threat was improper

(1) A threat is improper if (a) what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property (b) what is threatened is a criminal prosecution © what is threatened is the use of civil process and the threat is made in bad faith, or (d) the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient (2) A threat is improper if the resulting exchange is not on fair terms, and (a) the threatened act would harm the recipient and would not significantly benefit the party making the threat (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat © what is threatened is otherwise a use of power for illegitimate ends.

Restatement of Contracts 50(1): Invited or required by the offer

(1) Acceptance of an offer is manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer . (2) Acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes the acceptance by a performance which operates as a return promise. (3) Acceptance by a promise requires that the offeree who learns of an offer after he has rendered part of the performance requested by the offer may accept by completing the requested performance.

Restatement of Contracts (2) 38 Rejection

(1) An offeree's power of acceptance is terminated by his rejection of the offer unless the offeror has manifested a contrary intention. (2) A manifestation of intention not to accept an offer is a rejection unless the offeree manifests an intention to take it under further advisement.

Restatement of Contracts (2):

(1) Full performance of a duty under a contract discharges the duty. (2) "When performance of a duty under a contact is due any non-performance is a breach" (emphasis added), true, but not all breaches are the same

Restatement of Contracts (2) 225: Effects of the Nono-Occurrence of a condition

(1) Performance of a duty subject to a condition cannot become due unless the condition occurs or its non-occurrence is excused. (2) Unless it has been excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur. (3) Non-occurrence of a condition is not a breach by a party unless he is under a duty that the condition occur.

Allied v. Ford

- Ford motors entered into a purchase agreement with Allied (defendant). The agreement required that Allied perform installation work. In July an amendment was submitted by Ford to indemnify Ford from being liable to injury. The amendment was part of an additional set of orders. The agreement stated the amendment was not binding until accepted on an acknowledgment copy. Allied began the additional work, an Allied employee was injured After the injury Allied agreed to the amendment. The worker sued, Ford sought indemnification, Allied rejected stating the provision was not in effect at the time of the injury. - When an offer states a method of acceptance, must that method be executed prior to accepting the contract (no)

Lefkowitz v. Great Minneapolis Surplus store

- GM publishes a newspaper advertisement claiming "first come first serve". PLaintiff was the first person to present himself to the store, and offer to buy the items. Store refused to sell stating a "house rule" for women only - Advertisement becomes a binding offer if it clear, definite, and explicit leaving nothing open for negotiation

Ever-Tite Roofing v. Green

- Green (defendant) executed and signed a written offer to Ever-Tite roofing corp. The offer did not specify a time frame for acceptance. The offer allowed for acceptance through writing or through performance. The contract required a credit check on Green which was not unusual and created a delay before begin performance. The credit check was completed, and Ever-Tite loaded tricks with materials and sent the trucks to Green's property. Upon arriving another contractor was working on the property at which time Ever-Tite was notified another contractor was hired. (Offer can be accepted within a reasonable time)

Quasi Contracts

- Intention of the parties is entirely disregarded - Received a benefit, was enriched, retention of the benefit without payment would be unjust - Fraud can trigger it - Provides remedy were non exist

Advertisements

- Invitations for dealing - Preliminary negotiations

Restatement of Contracts 344: Purpose of Remedies

- Judicial remedies under the rules stated in this Restatement serve to protect one or more of the following interests of a promisee: - (a) his "expectation interest," which is his interest in having the benefit of his bargain by being put in as good a position as he would have been in had the contract been performed, - (b) his "reliance interest," which is his interest in being reimbursed for loss caused by reliance on the contract by being put in as good a position as he would have been in had the contract not been made, or - (c) his "restitution interest," which is his interest in having restored to him any benefit that he has conferred on the other party

Parole evidence rule exceptions

- Mutual mistake (Bollinger) -Fraud

Restatement of Contracts (2): Condition confined

A condition is an event, not certain to occur, which must occur, unless its nonoccurrence is excused, before performance under a contract becomes due.

Restatement of Contracts (2) 160: When an action is equivalent to an assertion

Action intended or known to be likely to prevent another from learning a fact is equivalent to an assertion that the fact does not exist

Junk v. Aon

Aon (defendant) recruited Junk (Plaintiff) to join its offices in New York. According to Junk, an Aon vice president promised Junk that he would work exclusively on a revolutionary new software program that Aon was about to roll out. When Junk expressed concern regarding the delay in development the vice president stated he had people working on it, and that the product would be done in three months. Junk accepted the job offer and moved to New York, but there was no product to work on. Junk sued on the basis of fraud. Junk sued on the basis of promissory fraud stating that:Aon had not started development at the time the vice president spoke to Junk, nor had the company spent any funds for the research or development for the project.

De Cicco v. Schwarzreich

Blanche Schweizer was engaged to be married. Blanche's father agrees to pay Blanche $2500 every year of her and her fiancé's life. The first payment was made on the couples wedding day. No additional payments were made. The couple assigned their rights to De Cicco who sued the defendant to enforce the contract.

Boulton v. Jones

Boulton was the manager of a leather "pipe hose" business, bought out the owner, Brocklehurst. On the same day a customer named Jones, who had a running account with Brocklehurst (old owner) sent an order for merchandise. Boulton received the order and supplied the goods without notifying Jones of the change of ownership. Jones refused to pay, Boulton sued to enforce the price.

Laidlow v. Organ

Buyer (Organ) learned that the war of 1812 had ended and that a blockade was about to be lifted. Organ purchased a large amount of tobacco from Laidlow with this information. Laidlow later attempted to have the transaction rescinded due to fraud

Necessaries as an exception to RS14 Minors

Courts have traditionally ruled that minors can enter into contracts that deemed to be necessary. (ex. Board, clothing, food, medical aid, teaching, etc.)

Cohen v. Cowles Media Company

Dan Cohen, aide to Republican candidate for governor, gave documents to two Minneapolis newspapers about misdemeanors that Marlene Johnson, Democratic candidate, had committed prior - reporters promised Cohen confidentiality but their editors published Cohen's name, Cohen was fired - Promissory estoppel

Hochester v De La Tour (1853)

De La Tour (defendant) offered to pay Hochester (plaintiff) to accompany him on a trip to Europe. Hochester was a courier who's service De La tour contracted beginning on June 1, 1852. On May 11, 1852 De La Tour informed Hochester that he changed his mind and did not require any services breaching the contract. Hochester brought suit to recover damages in anticipation of the future breach. Hochester also sought additional employment and was able to obtain work on July 4th, a month after his expectations of the original contract.

Luttinger v. Rosen

Luttinger (plaintiffs) contracted to purchase for $85,000.00 premises in the city of Stamford owned by the defendants and paid a deposit of $8500. The contract was "subject to and conditional upon the buyers obtaining first mortgage financing on said premises from a bank or other lending institution in an amount of $45,000.00 for a term of not less than (20) years and an interest rate of 8 ½%. Plaintiffs agreed to use due diligence. Parties further agreed that if the plaintiffs were unsuccessful in obtaining financing as provided in the contract, and notified the seller in a specified time, all sums paid would be returned. The plaintiffs used a lawyer who knew only one bank dealt with those types of loans. The bank would only approve the mortgage at 8.75%. The Luttingers provided notice, and the Rosens offered to fund the interest rate difference and refused to return the down payment.

Bollinger v. Central PA Quarry Stripping and Construction Co.

Mahlon Bollinger and his wife Vinetta Bollinger filed an action in equity against the Central PA Quarry Stripping company asking that a contract entered into between them be reformed so as to include a paragraph alleged to have been omitted by mutual mistake and that the agreement as reformed be enforced. The agreement was believed by the Bollinger's to contain a provision which required Central to strip off the topsoil, then put the construction waste on the bare ground and then recover it with the topsoil. The Bollinger's admitted they did not read the contract, but assumed the provision was in the contract. Central upon initially working on the property, acted in accordance with the provision by stripping the top soil, placing the waste, and then recovering with the topsoil. During the course of the work Central stopped following the procedure stating there was no such provision in the written contract.

Hawkins v. McGee

McGee (defendant), performed a procedure on Hawkins (Plaintiff) to remove scar tissue from Hawkin's hand and replace it with a skin graft from Hawkins's chest. McGee offered to make Hawkins hand 100%. Three operations later and Hawkins hand was in worse shape due to thick hair growing from the skin that was used from his chest.

Kannavos v. Annino

Plaintiff (Kannavos) purchased a multi-family building with eight apartments. The defendant (Annino) prior to the sale converted the building without obtaining a building permit, and in knowing violation of the city zoning ordinance. The house was in a "Residence A" district where multi-family houses were prohibited. Anninos placed newspaper ads advertising the multi-family home, and the income that could be earned. Kannavos read the ad and contacted the broker. Kannavos was given income and expense figures provided by Annino. Kannavos then contracted to purchase the property securing a mortgage. Annino knew that Kannavos was purchasing the property to rent the apartments and knew he would not buy it if he had known of the building violation. Shortly after the purchase the city took action against Kannavos for the multi-family building violation.

Contract

Promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognized as a duty

Restatement of Contracts (2) 77

Promise with alternative choices are not consideration unless: (1) Both alternatives would be consideration on their own. (2) The alternative that would not be consideration has a "substantially possibility" of being eliminated

Promissory fraud

Promise without intent to perform or representation known to be false at time of contract formation

May an offer, that was stated to be left open, be revoked by the offeror without directly informing the offeree prior to the time it would expire?

Promises to keep an offer open can be revoked without a direct statement if the offeree becomes aware through another source. An offer to be left open will only be binding if there is consideration (ex partial payment)

Does a complainant who takes on a detriment as a result of a reliance of a promise prevent a promisor of an otherwise unenforceable gratuitous promise from revoking the promise?

Promissory estoppel prevents a promisor from revoking an unenforceable gratuitous promise if the promise reasonably induced an action, and injustice can only be avoided by the enforcement of the promise. The remedy granted for breach may be limited as justice requires.

Rodi v. S. New. Sch of Law

Student attending an unaccredited law school relied upon the Dean's statement in 1997 that the school was likely to receive American Bar Association accreditation before the student was graduated, In deciding whether to transfer (The school failed to achieve ABA accreditation, the student upon graduation was unable to sit for the New Jersey bar examination) at the time the dean made the statements expressing optimism about accreditation, he was aware of serious criticisms of the school by ABA committee. - Held for School, lawschool provided disclaimer.

Byrd v. Lamar

Student brought an action against the administrators of his university, claiming that when the student transferred to the university, the dean had promised him that music courses listed in the school catalogue would be offered. The student provided proof that at the time of the dean's promise, the dean knew the school had neither qualified instructors nor the necessary equipment for the courses. Promissory fraud was held in favor of the student

Material

Substantial performance has not been completed

Consideration

The legal conclusion that a promise is enforceable

Swinton v. Whtinsville

The complainant (Swinton) purchased a house from defendant (Whitinsville Sav. Bank) that was a single-family dwelling occupied by him and his family. The defendant was aware of the infestation and neglected to say anything at the time of sale. The complainant was unable to readily observe the condition upon time of purchase. Swinton was forced to pay a significant sum to fix the repairs, and for termite control. (Bare Nondisclosure rule)

Watkins & Son v. Carrig

The complainant (Watkins & Son) agreed to excavate a cellar for the defendant for a stated price. Upon commencing work solid rock was encountered, and the plaintiff's manager notified the defendant. A meeting took place between them and it was orally agreed to that the plaintiff should remove the rock at a stipulated unit price about nine times greater than the original unit price. The rock made up about 2/3's of the space to be excavated. The original agreement stated that all material is to be removed and there was no reservation for unexpected conditions.

Does a party's internal mindset matter, when they are outwardly expressing the intention to enter into a bargained contract?

The objective, outward expression of a party's intent to be bound in an agreement, as opposed to that party's subjective mental assent to the agreement, is all that matters when determining the existence of a valid and enforceable contract

Does the enforcement of promissory estoppel violate a promisor's first amendment right if it prevents the promisor from fully reporting the news.

The first amendment does not prohibit a plaintiff from recovering damages for promises that trigger promissory estoppel (to put another way violation of a generally applicable law).

Walker & Co. V. Harrison

Walker & Co (plaintiff) agreed to rent a sign to Harrison (defendant). The term of the lease was (36) months, and the rental to be paid by lessee shall be $248.50 per month for the term of the lease. The lessor was to maintain the sign at its expense. At the expiration of the agreement the title of the sign would go to the lessee. The sign was completed and the first billing of $148.50. Shortly after the sign was placed, someone hit it with a tomato, rust was visible, and little cobwebs were on the corners. Harrison contacted Walker and Co. With no response to the maintenance. Harrison finally sent Walker a telegraph that threatened to stop paying. Harrison followed through with the threat. Walker sued for the entire balance due under the contract.

How to reconcile the Web & Harrington cases?

Web was not at fault, was performing his duty, and saved the person's life with no third party option for relief. Harrington could have sued the third party who swung the axe for relief and her act was voluntary not induced by any action.

Webb v. McGowan

Webb saved McGowan's life while employed at the lumber company. Webb crippled himself in the process of saving McGowan's life. Later McGowin agreed to pay $15 every two weeks to sustain him for the rest of his life. McGowan died and his Estate failed to pay Webb. - Material benefit create consideration?

In the Matter of Baby M

William Stern and Mary Beth Whitehead entered into a written agreement that, in exchange for $10,000.00 Whitehead would be inseminated with Stern's sperm. Whitehead would surrogate the child, and then terminate her parental rights after birth. Upon giving birth Whitehead refused to hand over the child permanently. Stern sought a court order granting him custody of the child and sought to specific enforcement of the contract.

Can a contract in which the personality of the contracting party may be of importance, as a contract with a man to write a book, be nullified if that person is no longer part of the contract?

Yes a contract can be nullified if the personality of the contracting party is of importance, and is no longer part of the performance of the contract.

Does a mutual misunderstanding invalidate a contract?

Yes a mutual misunderstanding may allow for the parole evidence rule to show what a defendant and plaintiff meant. In Raffles the lack of a consensus lead to the courts ruling no binding contract

Does forbearing from a legal right constitute consideration?

Yes, a party's agreement to take on a detriment (forbearance of a legal right) constitutes adequate consideration