Contract Law

Parol Evidence Rule

(Alaska Northern v Alyeska) The importance of the distinction between partial and complete integrations is relevant to what evidence is excluded under the parol evidence rule. For both complete and partial integrations, evidence contradicting the writing is excluded under the parol evidence rule. However, for a partial integration, terms that supplement the writing are admissible. To put it mildly, this can be an extremely subtle (and subjective) distinction. The third and final admissibility rule is that under the UCC § 2-202: Parol evidence cannot contradict a writing intended to be the "final expression" of the agreement integrated but may be explained or supplemented by (a) a course of dealing/usage of trade/ course of performance, and by (b) evidence of consistent additional terms unless the writing was also intended to be a complete and exclusive statement of the terms of the agreement

Mirror Image Rule

(Common Law) Mirror image rule means that: Any réponse by an offeree which varies or adds to terms of original offer is a counteroffer. The counteroffer then terminates the original offer. (Minneapolis and St Louis Railway v Columbus Rolling Mill) Second Restatement allows for changing terms in an acceptance SO LONG as acceptance is not conditional on new terms (essentially the new terms are proposals) APPLIES TO SERVICES AND LAND....GOODS FALL UNDER PURVIEW OF UCC S207

Misrepresentation

1) Misrepresentation of a present fact 2) That is material OR fraudulent 3) The misrepresentation must induce assent

Contractual Damage Remedies

1. Expectation damages (benefit of bargain and puts breached in best position from contract) 2. Reliance damages (reimbursed to position had contract not been made) 3. Restitution damages (pay back by breacher of benefits received) Sullivan v. O'Connor

Duty to Pay Rules (3)

1. Perfect tender (buyer doesn't pay unless perfect) 2. Substantial performance (based on departure from promise + allows for suit) 3. Independent Promise (buyer must pay even if promisee doesn't do job!) Jacob and Youngs v Kent

Promissory Estoppel (3 Pieces)

1. Promise induces REASONABLE action or forbearance by promisee 2. Binding if injustice avoided only through enforcement of promise 3. Remedy can be LIMITED Ricketts v Scothorn

Knock Out Doctrine

1. Remove from contract any terms which parties disagree 2. Fill gap with default rules from UCC (Textile Unlimited v A. BMH.

Unconcionable Contract (2 Parts)

1. Structurally unconscionable 2. Procedurally unconscionable Must have BOTH. (UCC S-2) Williams v Walker Thomas Furniture Clifton Jones v Star Credit Corp (structurally unconscionable results can imply procedurally unconscionable results)

Substantial Performance Doctrine

1. Willful breach (defensive, doesn't have to pay) 2. Less than substantial performance (offensive, can sue for damages) Substantial performance can be contracted around by specifically stating importance in contract (onus on buyer/payer) Jacob and Youngs v Kent

Mailbox rule

A common law rule that acceptance takes effect, and thus completes formation of the contract, at the time the offeree sends or delivers the acceptance via the communication mode expressly or impliedly authorized by the offeror. offer, counter offers, acceptance of options, rejections, revocations are all in effect when RECEIVED vs when sent for mailbox rule (about flexibility of actor) mode of acceptance should be at least as fast as mode of offer Adams v Lindsell

quasi-contract (implied-in-law contract)

A contract that occurs when there was no opportunity to bargain, but the bargain would surely have been made had the opportunity been given (ex: doctor giving heart attack resuscitation) "would've/couldn't of rule" (would have done it but couldn't of given situation) Quasi contracts must have 1) benefit conferred, 2) appreciation by promisee and c) acceptance and retention by promisee of benefit under such circumstances it would be inequitable to retain benefit without payment BAILEY V WEST

unilateral contract

A contract that results when an offer can be accepted only by the offeree's performance.

Requirements contract

An agreement in which a buyer agrees to purchase EXCLUSIVELY and the seller agrees to sell all or up to a stated amount of what the buyer needs or requires.

Outputs Contract

An agreement to sell all of one's goods or services to a single person (exclusivity). Wood v Lucy, Lady Duff Gordon

ECONOMIC DURESS

Austin Instrument v Loral 1) wrongful threat 2) cannot procure goods from somewhere else 3) normal breach of contract not adequate remedy

unjust enrichment claim

Bailey v West (not satisfied here) Watts v Watts 1) benefit conferred on defendant 2) defendant must appreciate the benefit 3) inequitable for defendant to claim benefit without payment to plaintiff

overbroad contracts

Can 1) void 2) blue pencils rule (cross out) 3) reasonable alter to make enforceable

Austin Instrument v Loral Corp

DURESS AND UNDUE INFLUENCE Facts. The Defendant, (Defendant), was awarded a Navy contract for the production of radar sets. The Plaintiff, (Plaintiff), was a subcontractor who manufactured precision gear components. When Defendant awarded Plaintiff a second subcontract, on the parts it had bid lowest, Plaintiff raised its prices on all forward and back orders of the gear components, and threatened to stop delivery if its prices were not paid. When Defendant could not find the same parts, ready to deliver, by another manufacturer, it was forced to pay the price increase, in order to meet the terms of its contract. Plaintiff brought suit for charges still due on a second contract and Defendant countered for the difference in prices. At the trial of this matter, Plaintiff was awarded the sum it sought in payment of the contract, and Defendant's complaint against plaintiff was dismissed. Defendant appealed. Consequence: A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his free will. ECONOMIC DURESS requires 1) wrongful threat AND 2) ORDINARY means of breach of contract not adequate AND 3) could not obtain goods from other source

Carlill v Carbolic Smoke Ball Co

Exercising Power of Acceptance "Medical Warrantee" Facts: Defendant ran ad offering $100 to anyone who gets flu after using defendant's smoke ball 2x a week for 3 weeks. They also put $1000 in bond at a bank as proof of the seriousness of the offer. Plaintiff used the ball as directed and got sick, and sued for breach when she was not paid. Consequence: unilateral contracts; advertisements and "puffing"; penalty default as result against defendant

Ever Tite Roofing v Green

Exercising Power of Acceptance "Performance as Acceptance" Facts: Defendant wanted house re roof and hired plaintiff. Agreement would be binding only on acceptance, designated in contract as either signature of officer for Ever Tite OR commencement of work. After receiving the defendant's credit report, plaintiff drove to house to start work after loading trucks....only to find another company had started the work and they no longer had job. Consequence: promissory acceptance by conduct

Laidlaw v. Organ

FRAUD (P) entered into a contract with (D) to buy 111 hogheads of tobacco for $7.5k. The sale took place the day after the War of 1812 ended and the blockade of New Orleans was discontinued. P discovered that morning before the transaction that the blockade had ended so the price of tobacco would increase while the D did not know. Before the transaction, D asked P if there was any news which might increase the price of tobacco. P remained silent. After the sale, D heard the news and took back the tobacco he sold P. P sued D to enforce the contract. CONSEQUENCE: A buyer is not required to share knowledge of any external factors that might affect the value of the goods in an exchange with the seller of those goods as long as there is no imposition of one party on the other. Also, LAW and ETHICS are SEPARATE.

Hill v. Jones

FRAUD P agreed to purchase house from D. While in the house, P noticed a "ripple" in the floor and asked D if it was from termite damage. D answered that it was from water damage. Termite inspection came back clean. Shortly after the close, P noticed crumbling wood and other signs of termite damage. D knew of prior infestation and termite issues. Inspector claimed he should have been told about previous issues. P sued D to rescind the contract. Consequence: A seller of a property must advise the buyer of material facts within his knowledge pertaining to the value of the property.

Vokes v Murray

FRAUD P was a 51 year old widow who wanted to be a dancer. She began taking lessons at D's dance studio. P was a terrible dancer, but D constantly told her that she was graceful and improving and that additional lessons would make her a beautiful dancer. D used fake designations like "Silver Standard" to entice P to buy more hours of instruction. P bought over 2300 hours of instruction for ~$32k. When P discovered that she was not actually improving and was still a terrible dancer, she sued D. Consequence: When one party has superior knowledge, statements of opinion can be treated as misrepresented statements of fact and give the other party a cause of action.

Oral Lee Williams vs Walker Thomas Furniture

Facts: Defendant sold furniture to be paid in stipulated monthly rent (on credit). Defendant's name was on the title of ALL furniture purchased by customer until full payment was made equal to stated value of outstanding items. In the event of a default on ONE item, defendant could repossess ALL items (cross collateral clause). Plaintiff purchases a stern for $515 and defaults, which defendant uses to then seize all items purchased by plaintiff. Consequence: Unconscionability in contracts.

Bolin Farms vs American Cotton Shippers ("Expensive Cotton")

Facts: Forward contracts on cotton made early in year. Farmers obligated to sell at set price and buyers obligated to buy at that price (with quantity set as well). Contracts negotiated prior to planting. Both parties (farmers and buyers) were experienced and familiar with forward contact procedure. Cotton price went through the roof upon settlement and farmers were forced to sell way below market value. Consequence: Parties are bound, even when they make a bad bargain. This is especially true given the experienced and equal knowledge of both parties.

Jacob and Youngs v Kent ("Reading Pipe")

Facts: Plaintiff built defendant a house for 77k and are suing to recover unpaid balance. Work ceased in June 1914 and defendant began to occupy the house when he complained of defection in March 1915. One of specifications was pipe must be "of Reading manufacturer" and defendant learned it was not. Obedience to order to redo meant great cost to plaintiff as well as the house itself. Omission of Reading pipe was accidental and plaintiff tried to show the pipe used was of same quality as Reading manufacturer. Consequence: Case deals with "Material breach" and "substantial performance." Gets to heart of duty to pay rules.

Sullivan v O'Connor ("Nose Job")

Facts: Plaintiff was professional entertainer and known to defendant. Plaintiff was to undergo 2 operations to shorten nose. Instead, 3 operations required and nose looked way worse. It could not be improved by further surgery. Plaintiff could not prove change in appearance caused her to lose job, and she paid $623 for surgery and hospital expenses. Judge in lower court instructed jury she could get compensated for pain and suffering on 3rd surgery only, expectation damages + restitution. Consequence: Concluded that YES medical procedures can fall under breach of contract although proving so is a high burden. Also explored three types of CONTRACTUAL DAMAGE REMEDIES (expectation, reliance, restitution).

Ricketts v Scothorn ("Foregoing Employment")

Facts: The grandfather of the payee made and delivered to the payee a promissory note. The note was given as a gratuity, to enable the payee to give up her employment. Upon the grandfather's death, the payee sought recovery on the note from the executor, who refused to comply on the basis that essential elements of a valid contract were lacking, for lack of consideration. The trial court awarded judgment to the payee. The case was appealed to the Supreme Court of Nebraska. Consequences: Court used promissory estoppel to enforce the promise by grandfather to granddaughter.

Hammer v Sidway ("Paid Good Decisions")

Facts: Uncle promises his nephew to pay him 5k if he refrains from drinking, smoking, swearing and gambling until age 21. The nephew did none of such things and on 21st birthday, uncle told nephew he'd pay him the money. The uncle then died and estate refused to pay. Consequences: Established that LEGAL detriment was an equivalent to ACTUAL detriment as a manifestation of consideration.

Alaska Packers' Association v. Domenico ("Sailors Salary Increase")

Facts: appellees would sail on a vessel provided by appellant to Pyramid Harbor Alaska for 1900 fishing season. Appellant had a salmon cannery there which they had invested 150k. Appellees agreed to do regular ship's duty, both up and down, discharging and landing; and to do any other work requested by captain or appellants agent. In return, appellees were each paid $50 and 2c for each red salmon they took part in catching. On May 19th in PH, AK, all appellees stopped working and demanded $100 for services instead. Otherwise they'd stop and return to SF. The superintendent had no authority to renegotiate and stated this, but eventually obliged to the appellees demands citing remoteness of location and shortage of season making rehiring workers difficult. Upon return to SF, appellant told appellees they'd be paid according to original deal. Consequence: Pre-existing duty rule.

Centronics v Genicom

GOOD FAITH The contract between the Plaintiff and Defendant provided for arbitration of any dispute about the value of the property transferred, to which the purchase price was pegged and required an escrow deposit of a portion of the price claimed by the seller pending final valuation. Plaintiff sued Defendant for breach of an implied covenant of good faith for refusing to release a portion of the escrow fund claimed to be free from dispute. Defendant moved for summary judgment on the theory that the terms of the parties' agreements required payments out of escrow only upon completion of arbitration thus barring the implication of any duty to authorized distribution before that event. The Superior Court granted summary judgment to the Defendant. The court held that the only way funds can be released is upon final determination of the purchase price, which is in the hands of the arbitrator. Consequence: Under an agreement that appears to invest one party with a degree of discretion in performance sufficient to deprive another party of a substantial proportion of the agreement's value, the parties' intend to be bound by an enforceable contract that raises an implied obligation of good faith to observe the reasonable limits in exercising that discretion.

Watts v Watts

ILLEGALITY Facts. (Plaintiff) and (Defendant) began living together in a marriage-like relationship. They held themselves out as husband and wife. Plaintiff assumed Defendant's surname, and so did the two children they had together. Plaintiff was on Defendant's insurance policy. Plaintiff provided childcare and homemaking services. Eventually, she worked part time at his office. After twelve years together, she moved from their home and ended their relationship. Defendant barred her from returning to work. Plaintiff asserts that her contributions increased the business and personal wealth of the couple. She asserts that they had a contract to share equally the property accumulated during their relationship and the Defendant breached it when he refused to share equally with her the wealth accumulated through their joint efforts. Consequence: Public policy does not prevent an unmarried cohabitant from asserting a contract claim against the other party in the cohabitation as long as the claim exists independently of the sexual relationship and is supported by separate consideration. Claims for breach of an express or implied contract do not arise out of an agreement entered into by the parties. Recovery for unjust enrichment is grounded on the moral principal that one who has received a benefit has a duty to make restitution where retaining such a benefit would be unjust. This is often called a quasi contract. An action for unjust enrichment has three parts: (1) a benefit conferred on the defendant by the plaintiff, (2) appreciation or knowledge by the defendant of the benefit, and (3) acceptance of the benefit by the defendant under circumstances making it inequitable for the defendant to retain the benefit.

AZ v. BZ

ILLEGALITY Facts. Husband A.Z. and wife B.Z. were married in 1977. The couple experienced fertility problems, and turned to in vitro fertilization (IVF) sing wife's ova and husband's sperm. The wife conceived and gave birth to twin daughters in 1992. More preembryos were formed than necessary, and two vials of preembryos were frozen for possible future implantation. Prior to the separation of the couple, the wife had one of the remaining vials of preembryos thawed and implanted. No pregnancy resulted. Ultimately they divorced, and one vial containing 4 frozen embryos remained in storage. During the procedure, the clinic required egg and sperm donors to sign consent forms for relevant procedures. Each consent form explained the general nature of the procedure and outlined the freezing process. The forms also require the donor to decide the disposition of the frozen preembryos on certain listed contingencies, including separation. On the initial form filled out by the wife, the decision was to return the embryos to the wife for implant if the couple became separated. Thereafter the couple underwent 6 additional egg retrievals and signed 6 additional consent forms. Each time the husband signed the form, the wife filled out the disposition and other information. Each provide for the embryos to be returned to her on separation. The probate judge concluded that while donors are generally free to agree as to the ultimate disposition of the embryos, the agreement was unenforceable due to a change in circumstances in the 4 years following the last signature, including the birth of the twins, the filing for divorce, and the wife's seeking to thaw the preembryos for implantation. The judge found that the best solution was to balance the wife's interest in procreation against the husband's interest in avoiding procreation, and determined that the husband's interest outweighed the wife's and the permanent injunction should be granted in favor of the husband. Synopsis of Rule of Law. As a matter of public policy, the court will not enforce an agreement that forces an individual to become a parent if such individual later reconsiders his or her decision.

Wallis v Smith

ILLEGALITY Facts. Plaintiff and Defendant were in a consensual sexual relationship. They discussed contraceptive techniques and agreed that Defendant would use birth control pills. They also agreed that their sexual intimacy would only last as long as Defendant continued taking the birth control pills because Plaintiff made it clear he did not want to be a father. Plaintiff relied on Defendant to use birth control and took no precautions himself. Defendant stopped taking the birth control pills but never informed the Plaintiff of her decision. Their relationship continued and Defendant became pregnant and subsequently gave birth to a baby girl. Plaintiff alleges that he suffered and continues to suffer substantial economic injury as a result of his unintended fatherhood because New Mexico requires him to pay child support. He further alleges that he has been injured by Defendant's conduct and requests compensatory and punitive damages from her. The district court determined that public policy p rohibited the relief sought by Plaintiff and dismissed with prejudice. Plaintiff appeals. Consequence: Public policy regarding pregnancy is in the best interest of the child. The Uniform Parentage Act imposes strict liability for child support without regard to which parent bears the greater responsibility for the child's being. No jurisdiction recognizes contraceptive fraud or breach of promise to practice birth control as a ground for changing a natural parent's objection to pay child support. Individuals are entitled to privacy, a person's choice whether or not to use contraceptives fits into this sphere of privacy.

Sinnar v Le Roy

ILLEGALITY Facts. Plaintiff owns and operates a grocery store. He made an application to the Washington state liquor board for a license to sell beer and paid sixty dollars license fee, however the license was denied and the license fee returned. Defendant, a friend of the Plaintiff's, was a business machine operator at Boeing Airplane Company. Defendant testified that he told Plaintiff that he knew someone, Mr. Lewis, who worked for the city and could get him a beer license for four hundred and fifty dollars. Plaintiff gave Mr. Lewis four hundred and fifty dollars but did not receive a beer license. Defendant testified that he told Plaintiff to be careful to whom he gave his money. There was no indication in the record that the money was paid for professional services. Consequence: Defense of illegality can be raised on appeal (by either defendant or court itself, for public policy reasons). The concept underlying the theory of illegality is that the contract is not enforceable on grounds that it is against public policy. Considerations of public policy are paramount to private rights and when conflict between the two exists private interests must yield to the public good.

Data Management v Greene

ILLEGALITY Plaintiff employed Defendants. The parties signed a contract containing a covenant not to compete. Specifically, the covenant states that the employees will not compete with Plaintiff in Alaska for five years after termination. Plaintiff filed suit against the Defendants for breach of the covenant not to compete. Plaintiff sought a preliminary injunction enjoining defendant, which was granted. The court granted summary judgment to defendant, finding that the anti-competition covenant was not severable and was unenforceable. Defendant appeals Consequence: Overbroad contracts are unconscionable. Can do three things: 1) void contract 2) blue pencil rule (cross out) 3) reasonably alter to make it enforceable (chose this one) ALSO--good faith element for correcting overbroad contracts. If non-compete is in good faith from business, step 3 more likely. If no good faith, non compete likely to be voided.

Kass v Kass

ILLEGALITY While Plaintiff and Defendant were married, they attempted to conceive children through in vitro fertilization over the course of five years. The procedures failed and at the end of five years, the couple was left with five frozen preembryos. Plaintiff and Defendant signed a consent agreement stating that if the two could not agree on the disposition of the preembryos, the preembryos would be donated to the IVF program for research. Three weeks later, in anticipation of a divorce, Plaintiff and Defendant signed an additional agreement stating that the preembryos would be disposed of as described in the consent agreement and that neither of them would seek custody of the preembryos. Three weeks after this agreement was signed, Plaintiff notified the IVF program that she no longer consented to the destruction or release of the frozen pre-embryos. A month after this notification Plaintiff filed for divorce, seeking custody of the pre-embryos for the purpose of undergoing another implantation procedure. Defendant objected to implantation and sought specific performance of the consent agreement. The state intermediate appellate court ordered enforcement of the consent agreement and Plaintiff appealed. (The remainder of the procedural history does not appear in the casebook.) Consequence: An agreement between the two biological donors regarding disposition of their preembryo is presumed valid and binding and should be enforced in the case of a dispute.

Raffles v Wichelhaus

INDEFINITE, INCOMPLETE, DEFERRED TERMS (defendant) entered into a contract to buy 125 bales of cotton from (plaintiff). Under the terms of the contract, the cotton was to arrive from Bombay via the ship Peerless. Raffles delivered the cotton to a ship named Peerless, which departed from Bombay in December. Wichelhaus refused to pay. Wichelhaus argued that the cotton was to be delivered by a different ship also called Peerless, which had departed Bombay in October. Raffles sued for breach of contract. Consequence: If there is a mutual misunderstanding in an essential element of contract, court will attempt to find reasonable interpretation and remedy to contract before voiding.

Hoffman v. Red Owl Stores

INDEFINITE, INCOMPLETE, DEFERRED TERMS Plaintiff owned a bakery but wanted to operate Defendant grocery store franchise. Defendant representative strung him along and gave advice in how to make it happen, promised that it was set to happen and Plaintiff sold his bakery and moved in reliance on the promise. Defendant had made numerous promises but not enough that would establish a contract to establish a store that Plaintiff would run. Consequence: Promises that a party can reasonably expect will be relied upon, are relied upon may be enforced to prevent injustice even if the promise itself would not be sufficiently definite to meet the requirements to form an offer for a binding contract.

Dixon v Wells Fargo

INDEFINITE, INCOMPLETE, DEFERRED TERMS The (Plaintiffs) had a mortgage held by (Defendant). Defendant orally agreed to consider Plaintiffs for a loan modification. In order to proceed with the modification, Defendant advised Plaintiffs to stop making payments on the loan. Defendant then sought to foreclose and Plaintiff sued arguing for promissory estoppel. Consequence: For purposes of promissory estoppel, an action based on reliance is equivalent to a contract action, and the party bringing such an action must prove all the necessary elements of a contract other than consideration--even if the agreement is only to negotiate and not an actual contractual agreement.

Cohen v. Cowles Media

INTENT TO CONTRACT Facts: Plaintiff approached reporters at MN Star Tribune offering damning documents in the upcoming MN Gov race about the Democrat's LTGOV nominee. He offered the documents in exchange for anonymity and no questioning of who his source was. Reporters didn't tell plaintiff anonymity was subject to editor approval but accepted his deal. plaintiff turned over two public court documents damaging against the Dem LTGOV nominee; reporters tracked down the originals and found they'd been signed out only once in years. When they approached the man who signed them out, the man told them he did it for plaintiff. The editors conferred and decided plaintiff was part of this story and published the story with his name. The day the article was released, plaintiff was fired. Consequence: The court found that offer, acceptance, and consideration were all present but ruled that source and reporter aren't thinking in a commercial sense. Therefore, they must be EXPLICIT if this type of arrangement is legally binding and that it's only ethically binding. This is opposite of Second Restatement, which said default of a contract is legal binding. Supreme Court wound wind up REVERSING. Created "This agreement is not legally enforceable" stipulation.

Frigaliment Importing v. B.N.S. International Sales

INTERPRETATION Defendant contracted to sell chicken to Plaintiff. Both contract indicated that Defendant was selling specified amounts of 2 1/2 — 3 lb. chickens and 1 1/2 — 2 lb. chickens. When the fist shipment was sent, Plaintiff found that the heavier chickens were not young chickens suitable for broiling or frying, but older stewing chicken. The parties disagree as to what the term "chicken" in the contract means. To interpret a disputed term in a contract, the court will consider (in order of importance): (1) the language of the contract, (2) the preliminary negotiations, (3) trade usage, (4) legal standard, (5) course of performance, and (6) maxims.

Pacific Gas & Electric v Drayage

INTERPRETATION Defendant entered into a contract with Plaintiff to remove and replace the upper metal cover of Plaintiff's steam turbine. Defendant agreed to indemnify Plaintiff "against all loss, damage, expense and liability resulting from"injury to property, arising out of or in any way connected with the performance of this contract." During the work, the cover fell and injured the rotor of Plaintiff's turbine. Plaintiff initiated this action to recover $25,144.51, the amount it spent on repairs. At trial, Defendant sought to introduce evidence that indicates that the indemnity clause was only meant to cover injury to property of third parties, not Plaintiff. The trial judge refused to admit the extrinsic evidence. Consequence: Extrinsic evidence is admissible to explain the meaning of a written agreement if the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.

Drennan v. Star Paving Co.

IRREVOCABLE OFFERS Plaintiff was a licensed general contractor preparing a bid for a school district. Defendant subcontractor was the lowest bidder for the paving work. Plaintiff used defendant's bid in computing his own bid for a school project. The day after receiving defendant's bid, plaintiff stopped by defendant 's office, whereupon plaintiff was informed that defendant's bid was a mistake. Defendant refused to do the paving work at the price originally given plaintiff. Plaintiff sued defendant to recover damages caused by defendant's refusal to perform the work according to its bid. Consequence: reasonable detrimental reliance can be used to enforce an offer under a theory of promissory estoppel.

In Re Green

It is not enough to shout CONSIDERATION, there must be a bargained for exchange

Lucy v. Zehmer

MANIFESTATION OF MUTUAL ASSENT Facts: In Dec 1952 defendant wrote "we hereby agree to sell plaintiff the Ferguson Farm for $50, title satisfactory." Both Mr and Mrs defendants signed the contract after a long deliberation with plaintiff. defendant contended he was joking and had several drinks with plaintiff and wife; insisted he never had 50k. Consequence: objective listener theorem. Both defendants signed contact. There had been a contract deliberation. There had been little evidence by defendant he was kidding EXCEPT in private exchanges with his wife that plaintiff was not privy too. All support decision via OBJECTIVE LISTENER standard.

Embry v. Hargadine, McKittrick Dry Goods Co.

MANIFESTATION OF MUTUAL ASSENT Facts: Plaintiff's employment contract ended Dec 1903 and he had tried to get a meeting with the company president to extend it. On Dec 23, during peak season, plaintiff met with the company president and tells him unless he gets a new contract then and there he'd quit. The president replied "go ahead you're all right...don't let that worry you." Plaintiff thought contract was made and made no effort to find a new job. He was terminated in March and sued for breach. Consequence: Mutual assent immutable to contracts. EXPRESSED intent is the standard not actual intern. Reasonable person standard for expressed intent. "Meeting of expressed minds"

Sherwood v. Walker

MISTAKE A man purchased a cow that was believed to be "barren" (Unable to reproduce) at a low price from another. Later the cow was shown to be "with calf" (Able to reproduce). This was clarified as a mutual mistake. The seller sued as he had sold the cow as to be slaughtered and used for meat Consequence: RECISSION allowed on a mutual mistake. A mutual mistake of a material fact that gets to the heart/nature of the bargain results in a voided contract for this case. Unilateral vs mutual mistake.

Lenawee County Board of Health v. Messerly

MISTAKE The court allowed an injunction in favor of the BOH, which disallowed human habitation of the property until it was brought into conformance with the sanitation code. Thereafter, the Appellants filed a cross-claim against Appellees, seeking foreclosure based on non-payment and Appellees alternatively prayed for rescission, based on mutual mistake. The trial judge found that Appellees had no cause of action because there had been no fraud or misrepresentation and that the property was purchased "as is", after inspection, and allowed foreclosure and judgment against Appellees. The court of appeals reversed the no cause of action, based on mutual mistake claim and the Appellants appealed. Consequence: While mutual mistake can serve to void a contract, the determination of rescission must be undertaken on a case-by-case basis, taking into consideration the full terms of any agreement.

Apfel v Prudential-Bache Securities, Inc

MIXED MOTIVES AND ADEQUACY OF CONSIDERATION Facts: In 1982 plaintiffs approach defendant with proposal for issuing securities through computer system that allowed for trading of bonds through book entries. Both parties signed confidentiality agreements allowing defendant to review techniques in a 99 page summary. After 1 month the parties entered an agreement whereby defendant could use techniques and plaintiff would get stipulated rate from 82 to 1998. Under contract plaintiff had right to payment even if techniques became public knowledge, standard industry practice, or patents denied. Plaintiffs asserted they kept technique secret and maintained confidence of defendant. From 82 to 85, defendant implemented the contract. However in 1985 after change in personnel, defendant refused further payment. It maintained idea existed in public domain at time of agreement and idea wasn't the plaintiffs to sell. Patenting also proved unsuccessful. Consequence: Novelty isn't what matters in consideration, rather it is the VALUE at the TIME OF CONTRACT that is key to consideration. Defendant clearly showed the idea had value given 1) time used to consider idea 2) the fact they paid for techniques over past 4 years 3) the fact they got a 1-2 year head start on other banks with technology

Clifton Jones v. Star Credit Corp

MIXED MOTIVES AND ADEQUACY OF CONSIDERATION Facts: Plaintiffs on welfare purchase a freezer for 900 bucks as a result of a visit from a salesperson representing Your Shop at Home Service inc. With the addition of credit insurance and tax, total purchase was 1235. Thus far plaintiffs have paid 620 bucks. Defendant claims 820 dollars are still owed citing additional credit charges. The freezer at time of purchase had a retail price of 300 bucks. Consequence: Substantively unconscionable results can imply procedurally unconscionable results. The buyers (lack of) financial and educational resources are weighted in this decision. Further consequence: Could lead manufacturers and sellers to not deal with poor. Courts could be using poverty as a proxy for ignorance.

McMichael v. Price

MUTUALITY OF OBLIGATIONS Facts: Plaintiff, who was beginning a new sand selling business, but had prior experience, entered into a contract to sell sand to the Defendant. Defendant promised to purchase all sand that the Plaintiff could sell, provided it was good quality, at a reduced price from market value. The agreement was to last for a period of ten years. Defendant ceased purchasing sand before the end of the term of ten years. Consequence: Requirements contract. Mutuality is immutable to a contract. Mutuality is present if the promisee is not obliged to take on any action but is merely forborne from making contracts with other parties.

Wood v. Lucy, Lady Duff-Gordon

MUTUALITY OF OBLIGATIONS Facts: Defendant is a creator of fashion and very famous,. She hires wood to monetize her endorsement; he has exclusive right, subject to her approval, to place her endorsements. He could also license to others to market and place her designs on sale. The arrangement was a 50/50 split in profits to last 1 year and renew automatically unless one party gave ninety days notice. Plaintiff alleges Defendant placed endorsements throughout his knowledge and withheld profits. Lower courts found no clear consideration for Plaintiff. Cardozo wrote the opinion and acknowledge the literal words of contract had no consideration, but the writing on its whole had an IMPLIED promise. He cited 1) exclusive dealing 2) terms of money and 3) context.

capacity to contract

Minors do not have (David v Clelland) until 18 years old Minor contracts are VOIDABLE before 18 FOR THE MINOR, but not the other party Mentally incompetent also do not have

Specht v. Netscape

NATURE AND EFFECT OF COUNTER OFFER "No Clickwrap" Plaintiff internet users downloaded two free software programs from defendants' websites to enable internet browsing. One program, a "plug-in," allegedly transmitted private information about the internet users' online activities to defendants without the internet users' knowledge. This conflict is over whether plaintiff is bound to arbitration term in terms of agreement from downloading the plug in or plaintiff can sue defendant for privacy violations in court. Consequence: Offeree requires clear notice of terms in an online download, otherwise no mutual assent (used common law)

Minneapolis and St Louis Railway v. Columbus Rolling Mill

NATURE AND EFFECT OF COUNTEROFFER "Mirror Image Rule" Facts: On December 8, A offered to sell to B 2000 to 5000 tons of iron rails on certain terms specified, adding that if the offer was accepted A would expect to be notified prior to December 20. On December 16 B replied, directing A to enter an order for 1200 tons, "as per your favor of the 8th." On December 18, A declined to fulfil B's order. B filed a case against A for breach of contract. The trial court held that A did not breach any contract between the parties because no contract existed when A rejected B's offer. The case was appealed to the Supreme Court of the United States. Consequence: Mirror Image Rule

Textile Unlimited, Inc. v A...BMH and Company, Inc.

NATURE AND EFFECT OF COUNTEROFFER "Yarn Battle of Forms" Facts: The Plaintiff, (Plaintiff) and the Defendant (Defendant), had a business relationship, whereby Plaintiff would buy goods from Defendant via purchase order and Defendant would respond with an invoice which, coincidentally, contained additional terms, including an arbitration clause. Defendant's form expressly said no contract unless additional terms agreed to by plaintiff. Consequence: "Battle of the Forms."

Klocek v. Gateway

NATURE AND EFFECT OF COUNTEROFFER Facts: In Hill v. Gateway, Plaintiffs bought a Gateway 2000 computer system from the Defendant, Gateway (Defendant). When the Plaintiffs became aware of the computer's shortcomings, they brought suit in Federal Court under RICO. Defendant appealed on the basis that an arbitration clause was contained in Plaintiffs' computer box and that they had accepted this agreement when they kept the computer for more than thirty days. In that case, the Court held that the Plaintiffs assented to the arbitration agreement because they knew that additional terms were in their box and, as such, arbitration was the forum for their grievance. The District Court in this case attempts to overturn the decision in Hill v. Gateway. However, it should be noted that the case was dismissed on appeal, due to lack of subject matter jurisdiction. Hill v. Gateway is still controlling regarding arbitration clauses. Consequence: REJECTED Hill v Gateway. UCC 2-207 does NOT apply since Hill + plaintiff are NOT merchants.

Hill v. Gateway 2000

NATURE AND EFFECT OF COUNTEROFFER Facts: The Plaintiff customers ordered a computer from the suppliers. The computer arrives with a list of terms said to govern, including an arbitration clause, unless returned within 30 days. The customers complained but only after the 30-day period . they filed an action against the suppliers. The suppliers sought enforcement of the arbitration agreement contained in the materials they shipped to the customers. The trial court denied their motion, hence, the appeal. Consequence: Used ProCD rule that terms are binding if plaintiff has time to read terms and return product. Vendor can ask for performance as part of acceptance to offer, and buyer can accept via conduct.

John Leonard v. Pepsico, Inc.

OFFERS CREATE POWER OF ACCEPTANCE Facts: While living in Seattle, plaintiff saw an ad for defendant that showed "Pepsi points," gained from drinking Pepsi, being traded in for stuff. The ad focused on the PepsiPoint catalog as means to buy stuff with Pepsi points. The ad ended with a jet being labeled "7 million Pepsi points." Pepsi points can be purchased for 10c; plaintiff purchased 7 million for 700k. He went to the Pepsipoint catalog to order the jet, but seeing it was not listed, sent in an order and proof of Pepsipoints demanding the jet anyway. He was rejected. The Harrier jet was a 23 million dollar military plane. Second Restatement says ads are typically NOT contracts. Consequence: Under objective standard, we care about what a reasonable person would do. Court found no reasonable person would find this as a legitimate offer for a Harrier Jet by Pepsi. Court also rejected "reward as offer;" the reward requires a clear means of acceptance and this commercial did not meet that threshold.

Lefkowitz v. Great Minneapolis Surplus Store

OFFERS CREATE POWER OF ACCEPTANCE On April 6 1956 the defendant (surplus) posted an ad in newspaper: "Sat 9am sharp 3 coats worth to $100 first come first serve $1 each." plaintiff showed up and was first in line, only to be told the ad applied only to women. The next week Surplus posted an ad saying: "1 black Lapin worth 139.5...$1 first come first served Saturday." plaintiff again showed up and was told again about the house rule for woman only, to be denied. He sued for breach. Consequence: Ads are not offers unless CLEAR, DEFINITE, EXPLICIT, and leaves NOTHING open to NEGOTIATION. Court found the ad for the Lapin satisfied this definition of an offer. Also concurred an offer cannot be changed after acceptance regarding the house rule. OFFER vs. INVITATION

Model Written Obligations Act

Only legal in PA if signer says they want to be legally responsible for a promise, consideration is not necessary

Langer v Superior Steel ("Repudiated Pension")

PROMISE PLUS CONSIDERATION Facts: Plaintiff received letter from defendant promising 100/month as long as he lives, is loyal to company, and not employed by competitor to stop working. Plaintiff quits and after 4 years of payments, he is notified they will stop. Defense submitted Kirksey as a defense citation. Consequences: Williston's Benefit Test. Both consideration and promissory estoppel satisfied here. Benefit derived by superior steel (he stops working and won't work for competitor).

Kirksey v. Kirksey

PROMISE PLUS CONSIDERATION Facts: Plaintiff was wife of defendant's brother and is a widow with kids. She lived on public land under lease and was comfortable, and would have attempted to secure land. In OCT 1840, the defendant wrote to invite her and kids to move and live with him. Plaintiff abandoned her possessions and house and move to defendant's to live comfortably. After 2 years he booted her and required her to leave. Consequence: Reliance alone is not enough to constitute consideration, must be a bargain for relationship. No BENEFIT derived by promisor in this case, so nothing bargained for. It's a gift! Case was decided BEFORE Ricketts (promissory estoppel not invented yet). Unlike Ricketts, 1) promisor was alive 2) promise was indefinite and 3) plaintiff was a squatter (not as much reliance sacrifice)

Allegheny College v. National Chautauqua County Bank ("Donation")

PROMISSORY ESTOPPEL Facts: Plaintiff is college is doing a fundraising drive in June 1921 and an appeal is made to Mary Yates Johnston of Jamestown NY. Mary J pledges 5k to plaintiff 30 days after her death and shall be added to the endowment or expended in accordance on reverse side of letter. On the reverse side it said gift shall by known as MYJ memorial fund and used to educate students preparing for the ministry, Also said pledge valid on condition that provisions of will are met first. 1k was paid in Dec 1923 while she was still alive; the college set the money aside for students preparing to study ministry. In July 1924 MYJ notified school she repudiated promise. Consequences: Case focused on both consideration and promissory estoppel. Cardozo did NOT use promissory estoppel in this case; thought there was no definitive reliance on the part of plaintiff. He found consideration due to naming of fund; an "implied promise" to promote the name was a benefit to Mrs Jonhston.

Pre Existing Duty Rule

Promise to do something you are already legally obligated to do is not valid consideration and cannot be used to modify a contract Alaska Packers Association v Domenico

Webb v Floyd and McGowin "Rescuers Recompense"

QUASI CONTRACT AND MORAL OBLIGATION Facts: Plaintiff worked for a lumber company and was clearing a mill floor by throwing very heavy blocks to the ground below, in a usual way. As he went to drop a block he saw it would have hit defendant in the head below and likely killed him, so he jumped out of the building with the block to prevent it from hitting defendant. In the process, plaintiff severely injured himself and defendant in return promised plaintiff $15 every two weeks for plaintiff's entire life. defendant's estate stopped paying the money exactly 1 month after defendant's death. Consequence: Moral obligation is sufficient consideration when promisor received a material benefit. Material benefit + promise + moral obligation = consideration!

Mills v Wyman ("Moral Obligation")

QUASI CONTRACT AND MORAL OBLIGATION Facts: Defendant's son was 25 and had long abandoned family. He returned from an overseas voyage and had been sick, and was also very poor. plaintiff cared for defendant's son; defendant wrote to plaintiff promising to cover expenses for his son's care. Court acknowledges no consideration in defendant's promise. Consequence: Moral obligation is only SOMETIMES consideration, only if it was a legal obligation in past (e.g. a debtor says they will pay back debt even though statute of limitations on debt is over).

Bailey v West ("Bascom's Folly")

QUASI CONTRACT AND MORAL OBLIGATION Facts: In April 1962 defendant goes to Belmont to buy race horses. He buys Bascom's Folly (BF) and has it shipped to Suffolk downs in Boston. Trainer saw horse was lame and defendant ordered it returned. The seller refused delivery and van driver asked defendant's trainer for further instruction; defendant's trainer told the driver to do what he wanted but defendant would not pay to have the horse held at a farm. The driver brought BF to plaintiff's farm where he remained for four years until it was sold; plaintiff sent bills to both defendant and the Belmont owner (Dr Strauss) for feed and board at regular intervals. Defendant said he immediately returned the bill and told plaintiff that BF was not his, and that defendant didn't send BF to the farm. Consequence: Unjust enrichment claim. An implied contract arises from facts, not legal duty or obligation. Implied in fact contracts and quasi-contracts. Neither an implied in fact or quasi contract existed here.

Sharp's Reliance Approach

Reliance is required by the plaintiff induced by defendant in order to employ objective law

Procedural Unconscionability

Requires OPPRESSION AND SURPRISE (Ferguson v Countrywide Credit)

Know Thy Customer

S211 of Second Restatement if other party has reason to believe the party manifesting mutual assent wouldn't do so if aware of term, the term is not part of agreement

Acceptance by Performance, Second Restatement

S62: when you have a promise v performance confection for acceptance, the beginning of performance is acceptance S45: offer accepted by performance only creates an OPTION to perform a job

Alaska Northern v Alyeska Pipeline

SCOPE OF OBLIGATION David Reed (Reed), a shareholder of Plaintiff, initiated discussions with Defendant regarding the purchase of surplus parts. A letter of intent was prepared by Reed, in which Plaintiff proposed to purchase Defendant's entire inventory of Caterpillar parts. The place for purchase price was left blank. Defendant responded with its own letter, also leaving the purchase price blank, but added that the sale was subject to the final approval of the owner committee. The price was subsequently decided upon. The owner's committee rejected the agreement. Plaintiff contends that it was said that the owner's committee's approval was necessary for the price term only, and not the entire contract. Plaintiff filed a complaint alleging that there was a contract between Plaintiff and Defendant, which Defendant breached. Defendant moved for summary judgment and the superior court granted summary judgment in favor of Defendant on the punitive damages count. The court initially denied Defendant's Motion for Summary Judgment, however, the court reviewed the case and announced that it would reverse its earlier holding and grant Defendant's motion. The court applied the parol evidence rule to the letter and therefore no extrinsic evidence could be presented to the jury. Consequence: Parol evidence rule

UCC 2-207 (battle of the forms)

SS1: UCC rejects Common Law's Mirror image rule. A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those originally offered or agreed upon, UNLESS acceptance is expressly made conditional on assent to the additional or different terms. (DICKERED TERMS MUST STILL MATCH) SS2 (ONLY FOR MERCHANTS): Additional terms are proposals for addition to contract, and become binding unless under a few conditions: a) the offer expressly limits acceptance to terms of ORIGINAL offer b) they materially alter the offer c) notification of objection to new terms given within "reasonable time" SS3: Parties whose conduct acts like they're in a contract are in one even if the writings between parties don't otherwise establish a contract...and the terms of the contract are the overlap of agreement together with supplementary terms incorporated under any other provisions this act. (Textile Unlimited v A. BMH.)

duty to disclose

Sec 161 of Second Restatement correct a mistake by other party casually acquired vs deliberately acquired information (law should only require contractors to disclose casually acquire information)--> value discovery effort provides benefits to society

Double Sided Default Rule

Second Restatement: offer's power of acceptance is terminated from making a counter offer UNLESS offeror has manifest a contrary intention OR unless the counter offer manifests a contrary intention of the offer Creates "double sided" default rule that can be altered by offeror or offeree

Reason to Know

Section 15 of Restatement: Contract voidable if 1) person is unable to act in a reasonable manner in relation to transaction AND 2) other party has reason to know of condition BUT becomes UNVOIDABLE if circumstances change such that voiding contract would make result unjust

Adams v Lindsell

Silence as Acceptance "Misdirected Missive" Facts: This case deals with a wool contract between two parties over mail. Seller sends an offer via mail with a deadline to buyer but sends to wrong address and it arrives late. Buyer accepts the offer and returns the letter, but his acceptance also arrives late because of the seller's mistake. By the time the seller receives the acceptance, he has already sold the wool to another party and the buyer sues for breach. Consequence: Mailbox rule (although imperfect, since this case had added element of seller causing the issue by using wrong initial address)

Ammons v Wilson

Silence as Acceptance Facts: Plaintiff is a grocer. Over course of 6-8 months before the dispute, he'd filled orders with a salesman Tweet who then filled orders with defendant, which were always filled and delivered within a week. On this instance, plaintiff ordered shortening at 7c a pound, but didn't hear back for 12 days. In this time, shortening had risen to 9c a pound, and defendant refused to fill the order. Consequence: Silence as acceptance is acceptable, up to JURY to decide if it applies in this instance.

Beneficial National Bank v. Payton

Silence as Acceptance "Unilateral Credit Card Change" Facts: Defendant buys a sat system in 1995 on credit using a card. Card agreement reads that by using account, you agree to conditions in agreement. Also said terms regarding both existing balances, future purchases, and agreement could be changed. notice added an arbitration clause to contract for conflict, and gave 30 day period to reject. Defendant never objected and two years later, he sues on a dispute...with the bank countersuing that the case must be resolved in arbitration. Defendant's Arguments/Consequence (as all are rejected) 1) Change of term applies to existing terms and cannot add new terms (rejected) 2) His silence doesn't constitute acceptance (rejected) 3) even if arbitration clause was acceptable, cannot apply to disputes on retroactive purchase (rejected)

Hadley v. Baxendale

The claimants, Mr Hadley and another, were millers and mealmen and worked together in a partnership as proprietors of the City Steam-Mills in Gloucester. They cleaned grain, ground it into meal and processed it into flour, sharps, and bran. A crankshaft of a steam engine at the mill had broken and Hadley arranged to have a new one made by W. Joyce & Co. in Greenwich. Before the new crankshaft could be made, W. Joyce & Co. required that the broken crankshaft be sent to them in order to ensure that the new crankshaft would fit together properly with the other parts of the steam engine. Hadley contracted with defendants Baxendale and Ors, who were operating together as common carriers under the name Pickford & Co., to deliver the crankshaft to engineers for repair by a certain date at a cost of £2 sterling and 4 shillings. Baxendale failed to deliver on the date in question, causing Hadley to lose business. Hadley sued for the profits he lost due to Baxendale's late delivery, and the jury awarded Hadley damages of £25. Baxendale appealed, contending that he did not know that Hadley would suffer any particular damage by reason of the late delivery. The question raised by the appeal in this case was whether a defendant in a breach of contract case could be held liable for damages that the defendant was not aware would be incurred from a breach of the contract. The Court of Exchequer, led by Baron Sir Edward Hall Alderson, declined to allow Hadley to recover lost profits, in this case, holding that Baxendale could only be held liable for losses that were generally foreseeable, or if Hadley had mentioned his special circumstances in advance. The mere fact that a party is sending something to be repaired does not indicate that the party would lose profits if it is not delivered on time.

Three options to remedy unconscionable contracts

UCC S2-302 1) refuse to enforce 2) enforce remainder of contract without unconscionable clause 3) limit application of unconscionable clause to avoid unconscionable result

Uniform Computer Information Transactions Act

UCITA Mutual assent via computer transaction IF: a) authenticates term with intent to adopt or accept it OR b) downloader intentionally engages in conduct such that other party can infer acceptance to term(s) (only two states--VA and Maryland--have accepted UCITA)

Ferguson v. Countrywide Credit

UNCONSCIONABILITY Facts. Plaintiff filed suit in District Court, alleging sexual harassment, retaliation and hostile work environment, under Title VII of the Civil Rights Act of 1964. Defendant countered by filing a Petition to remove the action to Arbitration, based on an arbitration that was signed upon Plaintiff's employment with its firm. The District Court denied the Petition to Compel Arbitration, ruling that the agreement was unconscionable. Defendant appealed Consequence: Unconscionable contracts. Procedural unconscionable requires OPPRESSION and SURPRISE.

Fleet v United States Consumer Council

UNCONSCIONABILITY The Plaintiffs, Fleet and others (Plaintiffs), turned to the Defendants, the United States Consumer Council, Inc. (Defendants), for help with their financial troubles. Defendants made claims that it could help people get out of debt, while it charged sometimes $195.00 to $260.00, just to refer Plaintiffs to an attorney that they could have reached for free by calling the bar association. Plaintiffs brought this action to have their agreement with the Defendant rendered unconscionable. Consequence: Unconscionability (procedural and structural). Should take into account: whether services can be obtained cheaper, education/expertise of customer, value of service,

Williston's Benefit Test

Will the occurrence of a promise's condition benefit the promisor? If so, suggest INDUCEMENT and therefor satisfies consideration. Langer v Superior Steel

implied-in-fact contract

a contract in which agreement between parties has been inferred from their conduct. Same legal effect as express contracts. MUST HAVE 1) mutual agreement and 2) both parties intent to promise example: ordering at restaurant CONTRACT MADE THROUGH ACTION Bailey v West

Silence = acceptance (Second Restatement S69) [3 instances]

a) offered takes benefit of offer w/ reasonable chance to reject and expectation of compensation is clear b) offeror states silence/inaction = acceptance AND offer intends for silence/inaction = acceptance c)established practice of silence = acceptance (Ammons v Wilson, but court punts decision to jury)

mutuality

both parties are bound or neither are

penalty defaults

designed to give at least 1 party in a contract the incentive to contract around a default rule. purposefully set at something the intended party wouldn't want

immutable vs default rules

immutable rules cannot be changed, default rules can be contracted around

Nominal Consideration

payment of an egregiously small or large sum to attempt to suffice consideration in a bargained for exchange Contemporary approach rejects nominal consideration, and the Second Restatement calls for fAIR VALUE

penalty default rules: price vs quantity (UCC)

price: market/reasonable price quantity: zero quantity quantity has a penalty default to encourage production/clarity of information

promissory fraud

promise is made that is never intended to be kept can be awarded PUNITIVE damages

basis of immutability

protect parties in contract (parentalism) protect parties outside contract (externalism)

objective listener

reasonable meaning of actions and words are what matter when judging intent of a contract Lucy v Zehmer

Mutual Assent

requires 1) an offer and 2) acceptance of that offer a "meeting of the minds" Embry v Hargadine

Statute of Frauds

requires certain contracts to be in writing, and designed to prevent fraud or breach of contract applies to payment of debts, marriage, sale of land, and actions outside the scope of 1 year failure to comply with statute of frauds is VOIDABLE at OPTION of party being sued

UCC 2-204

vendor as master of offer may invite acceptance by conduct; and a buyer may accept offer by performing such conduct (Hill v Gateway)