Contracts Final - Case

Rest 3d Restitution § 21: Protection of Another's Property

(1) A person who takes effective action to protect another's property from threatened harm is entitled to restitution from the other as necessary to prevent unjust enrichment, if the circumstances justify the decision to intervene without request. Unrequested intervention is justified only when it is reasonable to assume the owner would wish the action performed. (2) Unjust enrichment under this section is measured by the loss avoided or by reasonable charge for the services provided, whichever is less.

1) § 90: Promise Reasonably Inducing Action or Forbearance

(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.

R § 177 - When Undue Influence Makes a K Voidable

(1) Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare (2) if a party's manifestation of assent is induced by undue influence by the other party, the K is voidable by the victim (3) if a party's manifestation of assent is induced by one who is not a party to the transaction, the K is voidable by the victim unless the other party to the transaction in good faith and without reason to know of the undue influence either gives value or relies materially on the transaction

R § 153 - When Mistake of One Party Makes a K Voidable - (unilateral)

(1) Where a mistake of one party at the time a K was made as to a basic assumption on which he made the K has a material effect on the agreed exchange of performances that is adverse to him, the K is voidable by him if he does not bear the risk of mistake under the rule stated in §154, AND a) (a) the effect of the mistake is such that enforcement of the K would be unconscionable, OR b) (b) the other party had reason to know of this mistake or his fault caused the mistake

R § 2-609(1) - Right to Adequate Assurance of Performance -

(1) a K for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurances of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return

§2-204 Formation of Contract in UCC

(1) a contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract * Realization that parties intending to sell goods move very quickly!! (2) an agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined (3) even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy * For UCC conduct is enough, focuses on intent to be bound

Rest § 15(1) - Mental Illness of Defect -

(1) a person incurs only voidable contractual duties by entering into a transaction if by reason of reason of mental illness or defect (a) he is unable to understand in a reasonable manner the nature and consequence of the transaction, (Traditional Cognitive Test) OR (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

Rest. 3d Restitution § 20: Protection of Another's Life or Health ( NEW RULE)

(1) a person who performs, supplies, or obtains professional services required for the protection of another's life or health is entitled to restitution from the other as necessary to prevent unjust enrichment, if the circumstances justify the decision to intervene without request (2) unjust enrichment under this section is measured by a reasonable charge for the services in question

R § 309 (1) - Defenses Against the Beneficiary

(1) a promise creates no duty to a beneficiary unless a K is formed between the promisor and the promisee; and if a K is voidable or unenforceable at the time of its formations the right of any beneficiary is subject to the infirmity

R § 139 - Enforcement by Virtue of Action in Reliance - (P.E. based 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 the action or forbearance is enforceable notwithstanding the SOF if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice required. (2) in degerming whether injustice can be avoided only be enforcement of the promise, the following circumstances are significant: a) The availability and adequacy of other remedies, particularly cancellation and restitution;

1) R § 168 - Reliance on Assertions of Opinion -

(1) an assertion is one of opinion if it expresses only a belief, without certainty, as to the existence of a fact or expresses only a judgment as to quality, value, authenticity, or similar matters (2) if it is reasonable to do so, the recipient of an assertion of a person's opinion as to facts not disclosed and not otherwise known to the recipient may properly interpret it as an assertion (a) that the facts known to that person are not incompatible with his opinion, OR (b) that he knows facts sufficient to justify him in forming it c) Old lady that bought all the dance lessons

R § 317(1)- Assignment of a Right - if you have a right to receive contractual performance

(1) an assignment of a right is a manifestation of the assignor's intention to transfer it by virtue of which the assignor's right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance

R § 318 - Delegation of Performance of Duty

(1) an obligor can properly delegate the performance of his duty to another unless the delegation is contrary to public policy or the terms of his promise (2) unless otherwise agree, a promise requires performance by a particular person only to the extent that the obligee has a substantial interest in having that person perform or control the acts promised (3) unless the obligee agrees otherwise, neither delegation of performance nor a K to assume the duty made with the obligor by the person delegated discharges any duty or liability of the delegating obligor

§53 Acceptance by performance

(1) an offer can be accepted by the rendering of a performance only if the offer invites such performance

R § 351(1) - Unforeseeability and Related Limitations on Damages -

(1) damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the K was made

R § 311(1) - Variation of a Duty to a Beneficiary

(1) discharge or modification of a duty to an intended beneficiary by conduct of the promisee or by a subsequent agreement between promisor and promisee is ineffective if a term of the promise creating the duty so provides

R § 84 - Promise to Perform a Duty in Spite of Nonoccurrence of a Condition - (Waiver)

(1) except as stated in (2), a promise to perform all or part of a conditional duty under an antecedent K in spite of the nonoccurrence of a condition is binding, whether the promise is made before or after the time for the condition to occur, unless (a) occurrence of the condition was a material part of the agreed exchange for the performance of the duty and the promsiee was under no duty that it occurs; or (b) the uncertainty of the occurrence of the condition was an element of the risk assumed by the promisor

1) R § 350 - Avoidably as a Limitation on Damages -

(1) except as stated in (2), damages are not recoverable for loss that the injured party could have avoided without undue risk, burden, or humiliation (2) the injured party is not precluded from recovery by the rule stated in (1) to the extent that he has made reasonable but unsuccessful efforts to avoid loss

R § 235 - Effect of Performance as Discharge and of Nonperformance as Breach -

(1) full performance of a duty under a K discharges the duty (2) when performance of a duty under a K is due any nonperformance is a breach a) How do we know when a performance is due? express conditions precedent or constructive condition precedent

§79 Adequacy of Consideration -if requirement of consideration is met, then no additional requirement of:

(1) gain, advantage, or benefit to the promisor, or a loss, disadvantage, or detriment to promisee (2) equivalence in values exchanged (3) mutuality of obligation

R § 175 - When Duress by Threat Makes a K Voidable - (economic)

(1) if a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the K is voidable by the victim (need both improper threat AND no reasonable alternative) (2) if a party's manifestation of assent is induced by one who is not a party to the transaction, the K is voidable by the victim unless the other party to the transaction in good faith and without reason to know of the duress either gives value or relies materially on the transaction

R § 164 - When Misrepresentation Makes K Voidable -

(1) if a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation to the other party upon which the recipient is justified in relying, the K is voidable by the recipient. -Has to be reasonable reliance on misrepresentation -Can void for innocent or negligent misrepresentation - Not only for fraudulent misrepresentation

1) R § 227(1)- Standards of Preference with Regard to Conditions -

(1) in resolving doubts as to whether an event is made a condition of an obligor's duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee's risk of forfeiture, unless the event is within the obligee's control or the circumstances indicate that he has assumed the risk

§22 Offer and Acceptance

(1) manifestation of mutual assent ordinarily takes the form of an offer or proposal by one party followed by acceptance by other party (2) manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though moment of formation cannot be determined

R § 225 - Effects of the Nonoccurrence of a Condition -

(1) performance of a duty subject to a condition cannot become due unless the condition occurs or its nonoccurrence is excused (impracticability or disproportionate forfeiters) (2) unless it has been excused, the nonoccurrence of a condition discharges the duty when the condition can no longer occur (3) nonoccurrence of a condition is not a breach by a party unless he is under a duty that the condition occurs

§ 2-104 Merchant

(1) person who deals in goods of the kind or b. otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or c. knowledge or skill may be attributed by his employment of an agent or broker

R § 256 - Nullification of Repudiation or Basis for Repudiation -

(1) the effect of a statement as constituting a repudiation under §250 or the basis for a repudiation under §251 is nullified by a retraction of the statement if notification of the retraction comes to the attention of the injured party before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final

§81 Consideration as motive or inducing cause

(1) the face that what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise (2) the fact that a promise does not of itself induce a performance or return promise does not prevent the performance or return promise from being consideration for the promise

R § 302(1) - Intended and Incidental Beneficiaries -

(1) unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either, a) (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary, OR b) (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance b) (2) an incidental beneficiary is a beneficiary who is not an intended beneficiary

§2-206 Offer and Acceptance in Formation of Contract (Not a definition of an offer, but how you can make acceptance)

(1) unless otherwise unambiguously indicated by the language or circumstances (a) an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances

R § 152 - When a Mistake of Both Parties Makes a K Voidable - (mutual)

(1) when a mistake of both parties at the time a K was made as to a basic assumption on which the K was made has a material effect on the agreed exchange of performances, the K is voidable by the adversely affected party unless he bears the risk of mistake under §154 (2) in determining whether the mistake has a material effect on the agreed exchange of performances, account is taken of any relief by way of reformation, restitution, or otherwise

§45 Option Contract

(1) when an offer invites 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 begins the invited performance

R § 234 - Order of Performances -

(1) where all or part of the performances to be exchanged under an exchange of promises can be rendered simultaneously, they are to that extent due simultaneously, unless the language or the circumstances indicate the contrary (2) except to the extent stated in (1), where the performance of only one party under an exchange requires a period of time, his performance is due at an earlier time than that of the other party, unless the language or the circumstances indicate the contrary

R § 253 - Effect of a Repudiation as a Breach and on Other Party's Duties -

(1) where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach (2) where performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render performance discharges the other party's remaining duties to render performance

a) § 45 Option K created by Part Performance or Tender-

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

R § 251 - When a Failure to Give Assurance May Be Treated as a Repudiation -

(1) where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under §243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance (2) the obligee may treat as a repudiation the obligor's failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case

R § 201 - Whose Meaning Prevails

(1) where the parties have attached the same meaning to a promise or agreement or a term thereof; it is interpreted in accordance with that meaning (2) when parties have attached different meanings to a promise or agreement or a term thereof; it is interpreted in accordance with the meaning attached by one of them if at the time agreement was made (not after K)(only when agreement was MADE)

§ 87(1) Option Contract

(1)- Offer is binding as option K if it (a) in writing and signed by offeror, recites purported consideration for making of offer, and proposes exchange on fair terms within reasonable time; OR (b)- is made irrevocable by statute

QUALIFIED ACCEPTANCE: THE BATTLE OF THE FORMS §2-207

(1)- a definite and seasonable expression of acceptance or written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, UNLESS acceptance is expressly made conditional on assent to the additional or different terms

1) R § 162(2) - When a Misrepresentation is Fraudulent or Material

(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 -Typically, hard to prove bc need hard core evidence of what they were thinking - Materiality a matter is material if it is one to which a reasonable person would attach importance in determining his choice of action in the transaction in question

§50 Acceptance by Performance

(2) acceptance by performance requires that at least part of what the offer requests be performed or tendered and includes acceptance by a performance which operates as return promise

R § 302(2) - Intended and Incidental Beneficiaries -

(2) an incidental beneficiary is a beneficiary who is not an intended beneficiary

R § 2-609(2) - Right to Adequate Assurance of Performance -

(2) between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards

R § 309(2) - Defenses Against the Beneficiary

(2) if a K ceases to be binding in whole or in part bc of impracticability, public policy, nonoccurrence of a condition, or present or prospective failure of performance, the right of any beneficiary is to that extent discharged or modified

R § 348 - Alternatives to Loss in Value of Performance -

(2) if a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on (a) the diminution in the market price of the property caused by the breach, OR (b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him

R § 311(2) - Variation of a Duty to a Beneficiary

(2) in the absence of such term, the promisor and promisee retain power to discharge or modify the duty by subsequent agreement

R § 351(2)- Unforeseeability and Related Limitations on Damages -

(2) loss may be foreseeable as a probable result of a breach because it follows from the breach (a) in the ordinary course of events, (incidental or direct), or · Direct/incidental= reasonably and naturally flowing from the K (b) as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know (Hadley Rule) · Consequential= limited by foreseeability - what breaching party was aware of at the time K was made

Offer contract conditional completion

(2) offeror's duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer

R § 227(2)- Standards of Preference with Regard to Conditions -

(2) unless the K is of a type under which only one party generally undertakes duties, when it is doubtful whether - a) (a) a duty is imposed on an obligee that an event occurs, or b) (b) the event is made a condition of the obligor's duty, or c) (c) the event is made a condition of the obligor's duty and duty is imposed on the obligee that the event occurs, the first interpretation is preferred if the event is within the obligee's control

R § 201(2)- Whose Meaning Prevails

(2) when parties have attached different meanings to a promise or agreement or a term thereof; it is interpreted in accordance with the meaning attached by one of them if at the time agreement was made (not after K)(only when agreement was MADE)

Rest § 15(2) - Mental Illness of Defect -

(2) where the K is made on fair terms and the other party is without knowledge of the mental illness or defect, the power of avoidance under (1) terminates to the extent that the K 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.

R § 351(3) - Unforeseeability and Related Limitations on Damages -

(3) a court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation

R § 2-609(3) - Right to Adequate Assurance of Performance -

(3) acceptance of any improper delivery or payment does not prejudice the aggrieved party's right to demand adequate assurance of future performance

R § 309(3)- Defenses Against the Beneficiary

(3) except as stated in §1 and §2 and in §311 or as provided by the K, the right of any beneficiary against the promisor is not subject to the promisor's claims or defenses against the promisee or to the promisee's claims or defenses against the beneficiary

R § 227(3) - Standards of Preference with Regard to Conditions -

(3) in case of doubt, an interpretation under which an event is a condition of an obligor's duty is preferred over an interpretation under which the nonoccurrence of the event is a ground for discharge of that duty after it has become a duty to perform

R § 311(3) - Variation of a Duty to a Beneficiary

(3) such power terminates when the beneficiary, before he receives notification of the discharge or modification, materially changes his position in justifiable reliance on the promise or brings suit on it or manifests assent to it at the request of the promisor and promisee - PE has occurred or if beneficiary has already brought suit or beneficiary has manifested assent to obligation

R § 309(4) - Defenses Against the Beneficiary

(4) a beneficiary's right against the promisor is subject to any claim or defense arising from his own conduct or agreement

R § 2-609(4) - Right to Adequate Assurance of Performance -

(4) after a receipt of a justified demand failure to provide within a reasonable time not exceeding 30 days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the K

K implied in Law

(Quasi K) -> Restitution a) Not real K so the general rules of K do not apply to them b) Law implies to obligation to pay based on the injustice c) M.A. to be bound is unnecessary D receiving something in value is required for just compensation (unjust enrichment)

R § 250 - When a Statement or an Act is a Repudiation - A Repudiation is:

(a) a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under §243, or (b) a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach

§63 Time When Acceptance Takes Place

(a) an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offeror, but: (b) an acceptance under an option contract is not operative until received by the offeror

§36 Methods of Termination of Power of Acceptance

(a) rejection or counteroffer by offeree (b) lapse of time (c) revocation by offeror d) death or incapacity of offeror or offeree

R § 201(2)A- Whose Meaning Prevails

(a) that party did not know of any different meaning attached by the other, and the other knew the meaning attached by the first party; OR (i) A knows/reason to know of B meaning + B doesn't know/reason to know of A meaning = B meaning controls

the additional terms are to be construed as proposals for addition to the contract Between MERCHANTS such terms become part of the contract UNLESS:

(a) the offer expressly limits acceptance to the terms of the offer, or (b) they materially alter it, or (c) notification of objection to them has already been given or is given within a reasonable amount of time

a contractual right can be assigned unless:

(a) the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his K, or materially reduce its value to him, OR (b) the assignment is forbidden by statue or is otherwise inoperative on grounds of public policy, OR (c) assignment is validly precluded by K

R § 176 - When a Threat is Improper - (1) A treat is improper if -

(a) what is threated 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 (c) 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 the K with the recipient

§39 Counteroffer

* (1) offer made to offeror relating to same matter as original offer and proposing substituted bargain differing from original is counteroffer

§38 Rejection

* (1) offeree power of acceptance terminated by his rejection of offer UNLESS the offeror manifests a contrary intention * (2) manifestation of intention NOT to accept is rejection UNLESS offeree manifests an intention to take it under further advisement

§41 Lapse of Time

* (1) terminated at time specified in offer, if no specification then at end of reasonable amount of time * (2) what is reasonable amount of time is question of fact, depending on all the circumstances * (3) offer sent by mail is accepted if mailed before midnight on day offer received

ESSENTIAL TERMS for Contract in UCC

* Identity of party * Subject matter of contract * Consideration * Quantity terms * ONLY PRICE CAN BE FILLED

Contract must:

* Manifest an objective willingness to enter into the agreement * Offeror must create power of acceptance in offeree * Offeror must specify all necessary terms to the deal

when writing is intended to be final only with respect to a part of agreement(parol evidence)

, the writing cannot be contradicted, BUT it may be supplemented by extrinsic evidence

If a promise is not supported by consideration (or some substitute)

, then compliance with the statute of frauds will not be sufficient for enforcement.

If oral agreement that falls within statute

, then look for written evidence under §131!

§35 Offeree Power of Acceptance

- (directed at offeree not just invitation to all) (1) an offer gives to the offeree continuing power to complete the manifestation of mutual assent by acceptance of offer (2) contract cannot be created by acceptance of the offer after power of acceptance has been terminated

R § 159 - Misrepresentation defined

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

§ 214 Parol Evidence

- Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish · (a) that the writing is or is not an integrated agreement · (b) that the integrated agreement, if any, is completely or partially integrated

RULE- For Restitution Action -> subcontractor must

- Exhaust all remedies against general contractor and still remain unpaid, AND - Prove owner's receipt of benefit conferred without paying consideration to anyone

Two Approaches to Determining Integration

- Four corners approach - Restatement approach

Exceptions to Drennan Rule

- If general contractor had reason to know that there had been a mistake by a subcontractor ·-If the D had expressly stated or clearly implied that it was revocable at any time before acceptance - Inequitable conduct by the general contractor (bid shopping)

Excuses to Express Condition

- Interpretation - Waiver - Estoppel -Forfeiture - prevention

Two Types of Mistake

- Mutual -Unilateral

Different ways to keep an offer open: COmmon law

- Option Contract - Unilateral contral - Statue - Drennan rule

Exceptation to General rule to damages in construction context

- Substantial performance (immaterial breach)— measure of damages be the difference in value of the work if full performance had been given and the value of the work with the performance actually provided (i) This doesn't apply to Am Stand bc it was not an immaterial breach. There was $90,000 worth of work not done so it was a material breach!

Exception in loss in value

- Substantial performance -> diminution in value - a) Incidental breach and gross disproportion > measure is diminution in value resulting bc of non-performance rather than cost of performance

Four Corners Approach

- complete or partial integration by looking within the four corners of the writing itself!

Objective Theory Approach

- determining the intentions of a party from the perspective of a reasonable person's interpretation of the party's words and actions i. common meaning / understanding of words ii. good and used

§2-105 (1) - GOODS

- goods are usually defined as "moveable property" a. "goods mean all things which are moveable at the time of identification to the contract for sale"

Reciprocal Inducement

- promise by promisor induces a forbearance AND forbearance induces the promise a. Forbearance can be giving up a legal right you may have

Rest § 132 - Several Writings

- the memorandum may consist of several writings if one of the writing is signed and the writings in the circumstances clearly indicate that they relate to the same transaction

Keeping offer open Drennan Rule

- §87(2) detrimental reliance

1) R § 161 - Non-Disclosure is Equivalent to an Assertion - (duty to speak rule)

-A person's non-disclosure of a fact known to him is equivalent to an assertion that the fact does not exist in the following cases only: (a) where he knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation or from being fraudulent or material -Silence is equivalent to fraudulent misrepresentation (b) where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the K and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing (c) where he knows that disclosure of the fact would correct a mistake of the other party as to the contents or effect of a writing, evidencing or embodying an agreement in whole or in part (d) where the other person is entitled to know the fact because of a relation of trust and confidence between them

Keeping offer open Option K

-Clear and definite terms ·-Consideration- - Com law- nominal consideration is ok, must be paid -§ 87(1)- nominal consideration doesn't have to be paid

Rule for expectation damages in employment context

-Court found that she did owe net expense damages bc damages are awarded by the expectations of the parties NOT the subjective parties. a) Injured party still must mitigate damages · can't go out and hire the most expensive teacher and get damages awarded

R § 241 - Circumstances Significant in Determining Whether a Failure is Material - (Doctrine of Substantial Performance)

-In determining whether a failure to render or offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing

Categories of Damages

-Non-compensatory damages - Compensatory damages

Elements of K Implied in Law

-P has conferred a benefit on the D; -The D has knowledge of the benefit; -The D has accepted or retained the benefit conferred; - Circumstances are such that it would be unjust for the D to retain the benefit without paying fair value for it

Under § 20

-Volunteer/Bystander/Hero is not going to be able to recover -Professional services-types of services that someone might provide in their line of work -Limited to people who have the training and know how

Non basic Assumptions impracticability

-marker conditions, continuing financial capability of parties to carry out the K e) Performance is discharged, unless the language or the circumstances indicate the contrary

Different ways to keep an offer open UCC

-§2-205 Firm Offer Rule

UCC § 2-210 - Delegation of Performance

1) A party may perform his duty through a delegate unless otherwise agreed or unless the other party has a substantial interest in having his original promisor perform or control the acts required by the K. No delegation of performance relieves the party delegating of any duty to perform or any liability for breach.

A) Contracts Covered by the Statute of Frauds: § 110

1) K for the sale of goods for the price of $500 or more (UCC §2-201) 2) K that cannot be performed within less than 1 year (the 1-year provision) 3) K involving transfers of interests in real estate (the land K provision) 4) K to answer for the debt or duty of another (the suretyship provision) 5) K by an executor or administrator to pay for the debts of the estate from her own assets (the executor-administrator provision) 6) K made upon consideration of marriage (the marriage provision)

3 Basic Interests law might seek to protect in fashioning remedies for breach of K:

1) Prevention of gain by the defaulting promisor at the expense of the promisee a) Prevention of unjust enrichment b) Restitution interest 2) May award damages to the P for the purpose of undoing the harm which his reliance on the Ds promise caused him a) Reliance interest 3) Object is to put P in as good a position as he would have occupied had the D performed his promise a) Expectation interest

Rest § 131 - General Requisites of a Memorandum (all 4 requirements!!!)

1) Unless additional requirements are prescribed by the particular statute, a K under the SOF is enforceable if it is evidence by any writing, signed by or on behalf of the party to be charged, which (a) reasonable identifies the subject matter of the K, (b) is sufficient to indicate that a K with respect thereto has been made between the parties or offered by the signer to the other party, AND (c) states with reasonable certainty the essential terms of the unperformed promises in the K

You can only use economic duress if

1) wrong or improper threat—the breach of K here - threats to commit crime or tort §176 2) no reasonable alternative - the bankruptcy here -the alternative is possibility of legal action -alternative sources of goods, services, or funds 3) threat induces assent §175 says threat must substantially contribute to the manifestation of assent

Waiver in Market Value Damges

1. A condition in real estate K is waived when the buyer clearly, unequivocally and decisively shows his/her intentional relinquishment of the benefit of that condition 2. After a breach of K for the sale of a property, the sales price obtained from a willing buyer for the sales of the real property represents the substantive evidence of the property's fair market value where the subsequent sale is made just under a year after the breach!!!!

Two Ways seller won't have to pay full price back to minor:

1. Benefit rule (minority) - Dodson Rule 2. Traditional Rule *majority*

Court rejects impracticability on 2 grounds

1. Can't use excuse if non-occurrence if your fault 2. Issue with assuming the risk—K assigned the risk to enXco the possibility that government approval might not be granted. If foreseeable, manageable, or could've been avoided - this will not be the basis for impracticability to excuse the non-occurrence of a condition!

Questions to ask in expressed conditons

1. Has there been a breach? 2. Did the event actually occur? 3.Is there an excuse for the non-occurrence?

Claim of Damages for Total Breach may have four elements bc the breach may affect an injured party in 4 ways!

1. Loss in Value 2. Other Loss 3. Cost Avoided 4. Loss Avoided

in partial breach damages only

1. Loss in value 2. Other loss matter

Bilateral Contract making

1. Offeror makes an offer 2. Offeree has power of acceptance 3. Offeror can withdraw( Revocation) 4. Offeree can make counteroffer of decline

3 approaches to determine whether the beneficiary is "appropriate to effectuate the intention of the parties"

1. There must be dual intent of both the promisor and the promisee to confer a benefit on the 3rd party 2. Only the promisee need intend to confer a benefit on the 3rd party 3.the promisee alone may have the intent to confer a benefit on the 3rd party, but the promisor must either know or have reason to know of the promisee's intent

Elements of a Claim for Undue Influence: (Odorizzi Approach) -Case likes this better than §177

1.Undue susceptibility to pressure consisting of some sort of weakness or incapacity of the mind due to such factors as age, physical condition 2. Combined with an application of excessive pressure or strength by a dominate subject against the person with such weakened or lessened capacity of mind and will.

Physical duress

= K void, not voidable

§17 Requirement of a Bargain

= formation of a contract requires a "bargain in which there is a manifestation of mutual assent to the exchange and a consideration"

Other Loss

= loss to the P caused by D breach other than and in addition to the loss in value of the promised performance to the P (applies to total OR partial breach) a) incidental damages additional costs incurred after a breach in a reasonable attempt to avoid loss, even if the attempt is unsuccessful b) consequential damages injury to a person or property caused by the breach · they are not direct damages! · A deal with collateral K or things that reply upon the K

§2 Promise

= manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made

§26 Preliminary Negotiations

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

§24 Offer

= 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

Total Breach

= material AND no correction of breach within reasonable time

Promise

= obligation

promisee

= obligee

Promisor

= obligor

Contract

= offer + acceptance + consideration

Merger Clause (four corners approach)

= states writing is intended to be final and complete - Conclusive on the question of integration! Merger clause tells you its complete integration because it's within the 4 corners of written agreement

Extrinsic

= written or oral evidence outside the K

Assignment of Contractual Right example

A and B enter into K in which A promises to pay B $100 in exchange for B's promise to paint A's house. A is the promisor/obligator of the duty to pay B the $100. (A is obligated to pay B). B assigns his right to receive payment for this work to C. (can assign right to receive performance). B is the assignor and C is the assignee. Once B paints A's house, A is contractually obligated to pay C the $100. - If A doesn't pay C, C can sue A to enforce right to receive payment. - B cannot sue A to enforce right. (B no longer owns that right) (i) An assignment of a contractual right extinguishes the right in the assignor and transfers that right to the assignee.

Drennan Rule

A bid can be constituted as an offer in the construction context under PE. --§87(2)

R § 224 - Condition Defined -

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

R § 129 - Action in Reliance; Specific Performance -

A contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with SOF if it is established that the party seeking enforcement, in reasonable reliance on the K and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement.

Traditional Rule (majority)

A minor can disaffirm or avoid K, even if there has been full performance and the minor cannot return to the adult what was received in exchange

R § 151 - Mistake

A mistake is a belief that is not in accord with the facts

R § 154 - Where a Party Bears the Risk of Mistake -

A party bears the risk of mistake when (a) the risk is allocated to him by agreement of the parties, or (b) he is aware, at the time the K is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or (c) the risk is allocated to him by the court on the ground that it is unreasonable in the circumstances to do so (we don't really do c)

Rest. § 16 - Intoxicated Persons -

A person incurs only voidable contractual duties by entering into a transaction if the other party has reason to know that by reason of intoxication (a) he is unable to understand in a reasonable manner the nature and consequences of the transactions, OR (b) he is unable to act in a reasonable manner in relation to the transaction

Restitution in the Absence of a Promise OLD rule-> § 116

A person who has supplied things or services to another, although acting without the other's knowledge or consent, is entitled to restitution therefor from the other if: (a) he acted unofficiously and with intent to charge therefor, and (b) the things or services were necessary to prevent the other from suffering serious bodily harm or pain, and (c) the person supplying them had no reason to know that the other would not consent to receiving them, if mentally competent, and (d) it was impossible for the other to give consent, or because of extreme youth or mental impairment, the other's consent would have been immaterial.

Restatment 3d Restitution §1

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

Promissory Estoppel

A promise coupled with detrimental reliance on the promise! a) Doctrine based on RELIANCE b) With P.E., part performance is not required for reliance

Nominal Consideration RULE-

A purported option K without consideration is merely a continuing offer, which may be revoked at any time before acceptance.

i. Counteroffer in UCC when acceptance is made expressly conditional!

A. Expressly conditional acceptances will not be implied b. §39 Counteroffer- relating to same matter as original offer and proposing a substituted bargain differing from that proposed by the original offer * POA is terminated by his making of a counteroffer c. §59 Conditional Acceptance- offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not acceptance but is a counteroffer

Offer and Acceptance in UNILATERAL Contracts

A.) Offeror to commit herself to some performance if and only if the other party first accepts by actually rendering performance i. Offeree's rendering of the requested performance as serving both as the consideration for the offeror's promise and as his acceptance of the offer ii. Once offeree has completed performance as requested, the offeror's commitment is binding! iii. Offeror can revoke before acceptance by the offeree§42 Offeree is never bound to

R § 160 - When Action is Equivalent to an Assertion - (concealment)

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

Goal of damages

Aim is to put P in as good a position as she would have occupied had the K been fully performed on both sides

Unjust enrichment rule

Although there are 4 elements for bringing an action under a quasi-K, the main thing to look for is unjust enrichment, which focuses on a benefit already conferred on the defendant. It's not about compensating a party for loss. It's about making sure that the party is not overcompensated

Economic Duress Rule

An available or alternative remedy may not be adequate where the delay involved in pursuing the remedy would cause immediate and irreparable loss to one's economic business or interest.

R § 226 - How an Event May Be Made a Condition -

An event may be made a condition either by agreement of the parties or by a term supplied by the court

Step three of SOF analysis

Are there other factors in the case, such as performance or reliance by P, which might invoke an exception to the statutory bar?

Immaterial is still

BREACH!

Avoiding enforcement Rest. § 14 - Infants

Based on assumption that someone under the age of minority is not capable or competent to enter into a K.

Recission

Both injured party and wrong doer return anything they got and return to how life way before the K

Bargain for Exchange

Consideration requires that a contractual promise be the product of a bargain, bargain meaning negotiation not necessarily equal things

a) R § 201 - Whose Meaning Prevails Rule

Court enforces the meaning in accordance with the innocent acting party!

Bilateral Contract

Each party promises to do something for the offer

Partial Breach

Either an immaterial or a material breach (§241) can represent a partial breach.

R § 133 - Memo Not Made as Such

Except in the case of a writing evidencing a K upon consideration of marriage, the Statute may be satisfied by a signed writing not made as a memo of a K -Doesn't have to be a memorandum

3rd party beneficary

Find evidence in K itself—4 corners, and look at totality of the circumstances

Firm offer Rule

Firm offer is irrevocable for time stated in offer, or a reasonable period of time, but not to exceed 3 months (comment 3- §2-205) - not to exceed 3 months when offer both states & doesn't state time period - if the period of time is longer than 3 months, §2-205 doesn't apply. Therefore, you need consideration.

Frustration looks a lot like impracticability

For frustration, look at what is being asserted by the paying party. Frustration is narrower than impracticability

Paying Party =

Frustration

look for what promise they are trying to get enforced

Has to be promise that was intended to benefit them

Just saying "subject to terms"

IS NOT ENOUGH!

Novation

If B expressly releases A from liability on the original promise in consideration of C's assumption of A's duty.

Complete Integration - see § 210 § 213

If a writing is intended by the parties to be a final and complete expression of the parties' agreement, it is a complete integration of the terms of the parties' agreement. Parol (extrinsic) oral or written evidence is inadmissible to either add additional terms or to contradict or vary existing terms in the writing

Partial Integration - see § 210 § 213

If a writing is intended by the parties to be a final but not a complete expression of the parties' agreement, it is a partial integration of the terms of the parties' agreement. Parol oral or written evidence is admissible to add additional terms, but is inadmissible to contradict or vary existing terms in the writing

Rest § 174 - When Duress by Physical Compulsion Prevents Formulation of a K

If conduct appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.

Parties can agree on meaning of words, even if that's not what a reasonable person would think

If parties want to sell 500 frogs and they mean agreed frogs meant diamond rings, then K for diamond rings not real frogs! ~Humpty Dumpty view

Integration - see § 209

If parties' written agreement is intended to be a final and complete expression of their entire agreement, then that writing is considered an integration of the terms within their agreement and displaces any earlier oral or written agreements or proposals

R § 262 - Death or Incapacity of Person Necessary for Performance (Impossibility) -

If the existence of a particular person is necessary for the performance of a duty, his death or such incapacity as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the K was made.

R § 263 - Destruction, Deterioration, or Failure to Come into Existence of Thing Necessary for Performance - (Impossibility)

If the existence of a specific thing is necessary for the performance of a duty, its failure to come into existence, destruction, or such deterioration as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the K was made.

R § 240 - Part Performance as Agree Equivalents -

If the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts each pair are properly regarded as agreed equivalents, a party's performance of his part of such a pair has the same effect on the other's duty to render performance of the agreed equivalent as it would have if only that pair of performances had been promised.

Performing Party =

Impracticability

R § 271 - Impracticability as Excuse for Nonoccurrence of a Condition -

Impracticability excuses the nonoccurrence of a condition if the occurrence of the condition is not a material part of the agree exchange and forfeiture would otherwise result

R § 242 - Circumstances Significant in Determining When Remaining Duties Are Discharged -

In determining the time after which a party's uncured material failure to render or to offer performance discharges the other party's remaining duties to render performance under the rules states in §237 and §238, the following circumstances are significant: a) (a) those stated in §241 b) (b) the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements c) (c) the extent to which the agreement provides for performance without delay, but a material failure to perform or to offer to perform on a stated day does not of itself discharge the other party's remaining duties unless the circumstances, including the language of the agreement, indicate that performance or an offer to perform by that day is important

Step one of SOF analysis

Is the K at issue one of the types to which the SOF applies so that a signed memo will be required for its enforcement? a) That is, oral K for then which SOF requires written evidence of its existence if NO, SOF doesn't apply if YES, move to 2

Promissory Esoppel used as a substitute for the principles of the classical doctrines of Ks if one of them is missing

It is focused on fairness and justice. It can be used as a substitute for consideration or mutual assent or to keep an offer open

R § 344 - Purposes of Remedies -

Judicial remedies under the rules stated in this R 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 K been performed (b) his reliance interest is his interest in being reimbursed for loss caused by reliance on the K by being put in as good a position as he would have been in had the K not been made, or (c) his restitution interest is his interest in having restored to him any benefit that he has conferred on the other party

A justification for non-performance!!!!

Justification not a defense.

Promissory estoppel makes you

Legally responsible for promise because someone detrimented. -not enforced on contractual basis

Excusse of a condition to avoid forfeiture: Material part

Material when it relates to the substance/essence of the particular provision (com b)

Restatement approach to determine integration merger clause

Merger clause is not conclusive on the issue of integration

Bilateral

Most contracts are

if contract formed under §2-207(1)

NEVER analyze §2-207(3)

Substantial performance is

NOT like express conditions! Those are enforceable ASF

Nominal Consideration in Option Ks Rule

Nominal consideration can support option K

Nominal Consideration in Option Ks § 87 (1)(a)

Nominal consideration is ok and does not have to be paid

Nominal Consideration in Option Ks Majority Opintion

Nominal consideration is ok but has to be paid

When Determinging misrepresentation or fraud a

Objective standard is used

Mutual Assent

Offer+Acceptance

express condition

Often express terms of the K will state that performance is not due unless and until some specified event has taken place

Who has the burden to prove damages

Plaintiff

When does reliance count as consideration(promissory estoppel)

Promise has to induce the forbearance

if you have consideration, you don't need

Promissory estoppel; the detriment is not bargained for, but there is injury. (under consideration, the detriment is bargained for)

Additional terms

Proposals for addition to the contract

A) Express Conditions

Requires clear, unambiguous language (if, unless, until)

Process for Analyzing a Breach of an Obligation of Performance

Step 1 Determine whether the breach is material a) Materially Is normally a question of fact to be considered under the factors of §241 b) Immaterial can never become total Step 2 Determine whether the breach has become total a) §242 governs whether a reasonable time for cure of a material breach has passed thus turning a material breach into a total breach

R § 347 - Measure of Damages in General -

Subject to the limitations in §350-53, the injured party has a right to damages based on his expectation interest as measured by: (a) the loss in the value to him of the other party's performance caused by its failure or deficiency; plus (b) any other loss, including incidental or consequential loss, caused by the breach, less (c) any cost or other loss that he has avoided by not having to perform d) expectation of damages = (a) + (b) - (c) e) expectation of damages = loss in value + other loss - cost avoided - loss avoided

Express conditions & Substantial performance

Substantial performance is not applicable here

§42 Revocation

Terminated when offeree receives from offeror manifestation of intention not to enter into proposed contract

Benefit rule (minority)

The minor's recovery of full purchase price is subject to reduction based on the minors use of the merchandise When the minor hasn't been overreached, no undue influence, K is fair/reasonable, & minor paid purchase price, & taken & used merchandise

Impossibility merged with Impracticability

The restatement defines impossibility to include not only strict impossibility but impracticability bc of extreme and unreasonable difficulty, expense, injury, and loss involved.

R § 134 - Signature -

The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer 1) Signature is a broad concept, many ways to satisfy

Duties v Right

Think of assignment as transfer of property title. Delegation is different. You can delegate a duty of performance, but it does not act like an assignment. You are still obligated under the K if the person you delegated it to does not perform! Exception to that is novation.

R § 229 - Excuse of a Condition to Avoid Forfeiture -

To the extent that the nonoccurrence of a condition would cause disproportionate forfeiture, a court may excuse the nonoccurrence of that condition unless its occurrence was a material part of the agreed exchange

language of acceptance must clearly show offeror is

UNWILLING to proceed with transaction to be considered expressly made conditional

Rest. § 14 - Infants

Unless a statute provides otherwise, a natural person has the capacity to incur only voidable contractual duties until the beginning of the day before the person's 18th birthday

R § 328 - Interpretation of Words of Assignment -

Unless the language or circumstances indicate the contrary, as in an assignment for security, an assignment of "the K" or of "all my rights under the K" or an assignment in similar general terms is an assignment of the assignor's rights and a delegation of his unperformed duties under the K.

When is promissory estoppel used to keep an offer open?

When there is reliance. It is reliance-based doctrine.

R § 245 - Effect of a Breach by Nonperformance as Excusing the Nonoccurrence of a Condition -

Where a party's breach by nonperformance contributes materially to the nonoccurrence of a condition of one of his duties, the nonoccurrence is excused.

Dodson Rule

Where the minor has not been overreached in any way, and there has been no undue influence, and the K is fair and reasonable, and the minor has actually paid money on the purchase price, and taken and used the article purchased that the minor ought not to be permitted to recover the amount actually paid without allowing the vendor of the goods reasonable compensation for the use of depreciation, and willful or negligent damage to the article purchased, while in his hands. (i) This rule is designed to protect both the minor and the businessman who acted in good faith

R § 261 - Discharge by Supervening Impracticability -

Where, after a K is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the K was made, his duty to render than performance is discharged, unless the language or the circumstances indicate the contrary.

R § 261 - Discharge by Supervening Impracticability -

Where, after a K is made, a party's performance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the K was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary

R § 265 - Discharge by Supervening Frustration

Where, after a K is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the K was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.

Bid is

a commitment and it meets the definition of an offer under §24.

Estoppel excuse to expressed conditions

a party acts as if they're not going to compel to the condition, and the other party relies on that

A 3rd party beneficiary always sues a contractual promisor under a K to enforce

a promise made by that promisor to the contractual promisee for the 3rd party's benefit

R § 162(1) - When a Misrepresentation is Fraudulent or Material

a) (1) a misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker a) (a) Knows or believes that the assertion is not in accord with the facts, or · Need evidence, not just strong belief they knew they were lying! Very hard! b) (b) Does not have the confidence that he states or implies in the truth of the assertion, or (c) Knows that he does not have the basis that he states or implies for the assertion

R § 201(3)- Whose Meaning Prevails

a) (3) except as stated in (1) or (2), neither party is bound by the meaning attached by the other, even though the result may be a failure of mutual assent b) R § 20 says the same thing

Hadley Test for loss or anticipated profit (loss of expected monetary gain -(recoverable if breach of K)

a) 1 if the loss is within the contemplation of the parties at the time the K was made b) 2 if the loss flows directly or proximately from the breach - if loss can be said to be caused by the breach, AND c) 3if the loss is capable of reasonable accurate measurement or estimate

Delegation of Contractual Duty example

a) A (obligor) owes B (obligee) $100. A enters into agreement with C to provide services to C in exchange for C's promise to pay B the $100 that A owes B. A wants C to perform obligation that A owes B. A has then delegated that contractual duty of A to pay B to C. b) C assumes the duty that A owes to B with separate enforcement. Delegation of a contractual duty does not extinguish the obligation to perform that duty in the original obligor A. A continues to be liable for B for performance of the obligation. C is liable to A on the delegation (the promise to assume A's liability to B). a) Creates sperate K to take on duty from previous K. b) If C doesn't do promise, A can sue C for breach. · Doesn't do anything for A's liability to B on the original obligation! c) C is also liable to B bc B is a 3rd party beneficiary. The only way A ceases to be liable to B (absent performance of the duty) is if a novation occurs.

Order of Performances Examples

a) A says he will pay B $100 if B paints house. B will paint then A is obligated to pay B. b) A says he will give B $100 to paint house. A will give $100 then B must paint. c) Selling a car typically happens simultaneously. A pays $100 for car and B gives car right there.

Basic Assumption of impracticability

a) After a K is made b) Supervening Event c) Performance has been made impracticable (extreme and unreasonable difficulty) d) Nonoccurrence was a basic assumption - Components for B4E are basic assumption

UCC § 2-205 Firm Offer: (statute!) - (only one merchant required here) (no requirement of consideration)

a) An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months; but any such term of assurance on a form supplied by the offeree must be separately signed by the offeror.

(how to attack on exam) it is agreed that this transaction is conditioned on _______"

a) Conditions b) Excuse c) Repudiation d) Damages

R § 352 - Uncertainty as a Limitation on Damages

a) Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty

Characteristics of Over persuasion

a) Discussion of the transaction at an unusual or inappropriate time b) Consummation of the transaction in an unusual place c) Insistent demand that the business be finished at once d) Extreme emphasis on untoward consequences of delay e) Use of multiple persuaders by the dominant side against a single servient party f) Absence of a third-party advisers to the servient party g) Statements that there is no time to consult financial advisors or attorneys

Delegation of Performance of Duty

a) Doesn't transfer the liability! b) You still on the hook with respect to the K c) Unless there's a novation!

R § 237 - Effect of Other Party's Duties of a Failure to Render Performance -

a) Except as stated in §240, it is a condition of each party's remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time.

Distinguishing between express condition and a promise is VERY important!

a) Express condition -> strict performance b) Promise -> generally only requires substantial performance

Aspects of the Foreseeability Standard

a) Foreseeability is dependent upon the D's knowledge at the time the K is formed. The focus is on the knowledge of the breaching party, since the breaching party is the one liable for foreseeable consequential damages b) Only the type of loss must be foreseeable, not the manner in which the loss will occur C.The loss must be foreseeable as a "probable" result of the breach—which means that the loss must be more than merely would've been "possible"

Has there been a breach? (expressed conditions Qs.)

a) Is there an express condition? -Yes strict performance is required -We know based on an obligation that is stated in the K (if and only if/until)

Impossibility, Impracticability, & Frustration -> supervening event that:

a) Makes performance more burdensome (impracticability), OR b) Not meaningful to perform (frustration)

Elements of Mutual Mistake

a) Mistake of Both Parties = at the time a K was made b) Basic Assumption = governing assumption of the K (subject matter of the K) c) Material Effect = value (monetary) affected. K is bc of the mistake more desirable to the party that would get the windfall and is less desirable to the adversely affected party d) Adversely Affected = party wants to get out of K e) Bears the Risk = looking at language of K to see if party beared the risk · When both parties innocently make a mistake, courts are left to decide which blameless party assume the loss. Courts are hesitant to just rescind the K.

Restitution

a) Mutual Assent to be bound is unnecessary b) Formula= Benefit to defendant + retention of benefits would be unjust to another c) Express K= written/oral (M.A. expressed) d) Implied= conduct in fact

Non compensatory damages

a) Nominal damages R § 346(2) b) Punitive damages

Exceptions (situations where parol evidence rule doesn't apply)

a) Parol evidence rule does not apply to evidence offered to explain the meaning of the agreement (see § 214(c)) a) Usually no interpretation evidence through parol b) Parol evidence rule does not apply to agreements made after the execution of the writing c) Parol evidence rule does not apply to evidence offered to show the agreement is invalid for any reason, such as fraud, duress, mistake, lack of consideration (§214(d))

Elements of Promissory Estoppel

a) Promise §2/§4 b) The promisor should reasonably expect to induce action or forbearance on the part of the promisee (reliance must be reasonable) c) That does induce such action or forbearance (has to be action or forbearance) d) Where an injustice will result if the promise is not enforced

Promises in the Commercial Context(Katz v Danny Dare, INc)

a) RULE- Look for detrimental reliance. · Test of reliance is not whether Promisee gave up something to which he was legally entitled, but rather where Promisor made a promise to him on which he acted to his detriment. · A change in position will often be sufficient enough to invoke PE

Compensatory Damages

a) Restitution Interest b) Reliance Interest c) Expectation Interest

Both of the doctrines require the disadvantaged party to show

a) Substantial reduction of the value of the K (performance is made impracticable; a party's principal purpose is substantially frustrated) b) bc of an event the non-occurrence of which was a basic assumption of the K c) without the party's fault AND d) the other party seeking relief does not bear the risk of the occurrence of the even either under the language of the K or the surrounding circumstances

Damages - General Rule -

a) The general rule on damages is the non-breaching party is entitled to recover from the breaching party the full cost of obtaining the performance not received from the breaching party a) This is often referred to ass the cost of cure (cost to cure the breach) or the cost required to obtain the substitute performance necessitated by the breach

R § 228 - Satisfaction of the Obligor as a Condition -

a) When it is condition of obligor's duty that he be satisfied with respect to obligee's performance or with respect to something else, and it is practicable to determine whether reasonable person in position of obligor would be satisfied, an interpretation is preferred where the condition occurs if such a reasonable person in position of obligor would be satisfied

Market Value (exception to general rule)

a) Where the K provision breached was merely incidental to the main or principal purpose of those contracting, AND b) Where the economic benefit/value of performance of the breached provision is grossly disproportionate to the cost of its performance, THEN c) The measure of damages is the diminution in value resulting bc of the non-performance rather than the cost of performance

Nullification of Repudiation or Basis for Repudiation

a) if non-breaching party changes their position in reliance -like a seller contracting with someone else! -Doesn't matter if breaching party is made aware of change in reliance b) Tell the other party that you accept repudiation as final

Standard Rule rule to damages in construction context

a) if total breach then no substantial performance! Damages are the cost of completion.

Rule For Market Value

a) only the party that benefits from an express condition can waive it! a) A provision in real estate K that makes the K contingent upon the buyer's obtaining financing is a condition. The buyer can elect to waive the contingency and proceed with the K since they are the ones benefiting. The court here said that buyer's actions were inconsistent with such a termination bc they had the loan date extended twice for them.

Difference in Bi and Uni contracts

a. Performance is the subject of the negotiation in Unilateral b. Unilateral also is one sided c. Unilateral focus on what offeror is seeking

§2-207(3) applies anytime a contract has not be formed under sec (1)

a. Terms are only those expressly agreed to and other terms will be knocked out b. Applies to merchants and non-merchants

Mirror image rule

acceptance has to be exactly the same as offer

Cost Avoided

additional expenditure that is saved is cost avoided (ONLY applies to total breach) a) The breach may have saved injured party from having to further expend resources or if the D paid the P some amount already

§2-207 (2) only applies to

additional terms / different terms apply "knockout rule" -Only applies if the response to an offer is found to be an acceptance

Parol Evidence bars

admission of items not built in K already

Statue of Frauds is

affirmative defense against breacch of contract

Mistake applies when the K is based on

an erroneous belief at the time of contracting that certain facts are true. The basis is that the manifestation of assent is not genuine bc it was induced by error.

Waiver excuse to expressed conditions

an intentional relinquishment of a known right a) ONLY the party who benefits from the provision can waive the express condition b) Condition can be waived by words or conduct c) Can only be done if the non-occurrence of condition is not material d) Reliance on the waiver can be enforced even if its material and there is consideration provided for the waiver

§30 Form of Acceptance Invited (1)

an offer may invite or require acceptance to be made by an affirmative answer in words, OR by performing or refraining from performing a specified act * Mere preparation to perform IS NOT acceptance !!!!

Restitution=

another cause of equitable action a) Not a breach of K action. Restitution is not a K. b) Names for Restitution unjust enrichment, quantum merit, implied in law K, quasi K

§1-201(39) = signed includes

any symbol executed or adopted by a party

Mailbox rule offers

are accepted upon receipt

Donative Promises or Executory Gifts

are not enforceable under contract law! i. Put it in will or give it to them right away ii. Different from Hamer because nephew gave up legal right and little boy did absolutely nothing

§ 132 Can be several different writings

as long relating to same transaction

Contractual rights can be

assigned -> rights may NOT be delegated

Assignment =

assignor's Intention to transfer the right to receive performance

Mistake must be made

at the time parties enter into K

Novation cant

be implied or inferred from conduct or circumstances

Mistake has to occur

before or at the time the parties enter into the K. Cannot be after. If it's after, it's changed circumstance.

Benefit/Detriment Test

benefit to promisor for contract OR detriment to promisee is sufficient for consideration

Contractual right to receive performance cannot be delegated

can only be assigned

Something that is material

cannot be waived without consideration, and then you are basically dealing with modification

if offer is firm, but doesn't have time period,

cannot exceed 3 months

option contract offeror

cannot revoke when offeree tenders or begins performance so long as offeree completes performance in timely manner

Materially alter=

comment 4, surprise or hardship if incorporated without express awareness: clause negating standard warranties for a particular purpose, clause requiring guarantee of 90%-100% deliveries in case such as contract by cannery, clause reserving to the seller the power to cancel upon the buyer's failure to meet any invoice when due, clause saying complaints must be made in a time materially shorter than custom Comment 5- clauses involving no element of unreasonable surprise and are to be incorporated in the contract unless notice of objection is seasonably given,

Foreseeable

communicating it to the party or reason to know

express condition precedent

condition expressed in a K as matter of law

§2-207 (3)

conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract.

Different terms

conflicting terms

Foreseeability limitation only applies to

consequential damages

Option contracts requires serpearte

consideration for option to be kept open

Old promises do not

constitute new consideration because it has already happened and that would be PAST consideration

substantial performance excuses the

constructive condition precedent

Option Contract

contract to hold an offer to make a contract open for a fixed period of time

Loss in Value

cost of completion OR cost of cure

Default remedy in K law is

damages

Frustration

defense requires proof that an unforeseen event altered "a basic assumption to which the K was made" a) requires that its thwart purpose of making a K to the degree that "one party's performance becomes virtually worthless to the other"

Contractual duties can be

delegated -> duty may NOT be assigned

Forfeiture excuse to expressed conditions

denial of compensation that results when the obligee loses its right to the agreed exchange after it has relied substantially, as by preparation or performance on the expectation of that exchange §229 comm b

Damages for land sale-

difference between K price and the market value of property at the time of breach a) See above for the exception! b) For real estate you usually seek specific performance instead of damages. You CANNOT get both. Its either specific performance OR damages.

Doctrine of Substantial Performance

difference between a material breach and an immaterial breach

Once turning 18, the minor must act within a reasonable period of time to

disaffirm the K or she will be deemed to have affirmed the transaction

Getting past statue of frauds

doesnt mean P automatically wins, still have to prove all elements

Promise creates

duty of performance and right to receive that performance

UCC Exception to common law mirror image rule

even if add/diff terms, contract can be formed

Basic Assumption in Impracticability Defense key

extent to which it was contemplated by the party, if were talking about goods, a party can get a substitute. In an impracticability defense, court is going to ask if you could obtain elsewhere.

Having a contract in writing is not a requirement, but should be because of the potenetial for NOT

fraud

3rd party rights may arise

from the making of the original K

R § 132 - Several Writings has

gained sufficient support over the years

§79 Adequacy of Consideration comment e

gross inadequacy of consideration may be relevant to application of other issues such as fraud, mistake, lack of capacity, duress, or undue influence * "where the amount of consideration is so grossly inadequate as to shock the conscious of the court, the contract will fail." (Swaney) -Both grossly inadequate AND circumstances of unfairness Courts usually never inquire into adequacy of consideration

A 3rd party beneficiary, even though not a party to the K,

has standing to enforce contractual promises made for the 3rd party's benefit

Condition is not an obligation

if condition happens then performance is obligated

The minor cannot take advantage of the minority doctrine

if she has misrepresented her age, but seller has the responsibility to determine the age of the buyer.

R § 264 - Prevention by Governmental Regulation or Order - (Impossibility/Frustration)

if the performance of duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the non-occurrence of which was a basic assumption on which the K was made.

Substantial performance =

immaterial a) Value is NOT dollar $ of performance! It's the diminution in value

Prevention excuse to expressed conditions

implied obligation of good faith in practice. If one party prevents the occurrence of an event, then non-occurrence is excused, but still must have good faith. - if a person has the notice, but just decides not to deliver, that sounds like bad faith!

R § 261 - Discharge by Supervening Impracticability- Comment D

impracticability means more than impracticability. A mere change in the degree of difficulty or expense due to such causes as increased wages, prices of raw materials or costs of construction, unless well beyond the normal range, does not amount to impracticability since it is this sort of risk that a fixed price K is intended to cover

§32 Invitation of Promise or Performance

in case of doubt an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance

Exceptions when Substantial Performance Damages

in cases of substantial performance, the measure of damages for breach of K is not the usual measure (the cost of replacement of the defective performance) bc such cost is grossly and unfairly out of proportion to the good to be obtained. (replacement of pipes would've been thousandzz)

Loss Avoided

injured party may avoid loss by salvaging or reallocating some or all resources (ONLY applies to total breach)

Interpretation excuse to expressed conditions

interpret it as a promise instead of an expressed condition

Step Two of SOF analysis

is SOF satisfied? There is some written statement (memo or note) of its terms signed by the D (party to be charged) that is sufficient to meet the SOF requirements? IF NO, move to 3 if YES, SOF satisfied!

Repudiation will be treated like a total breach unless

is a justification for repudiation.

§50 Acceptance

is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer

§1 Contract

is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty

Restatement approach to determine integration extrinsic evidence

is admissible on the intent question, admissible to answer if intent of writing was complete or partial agreement

Mailbox rule rejection

is effective upon reciept by offeror

Between non-merchants (at least one) additional term

is part of contract if the offeree expressly assents to additional terms

In case of doubt, an interpretation under which an event is a condition of an obligor's duty

is preferred over an interpretation under which the non-occurrence of the event is a ground for discharge of that duty after it has become a duty to perform

Mailbox Rule acceptance

is valid when postmarked/dispatched

economic distress =

is voidable, not void

Repudiation will be treated

like a total breach - If it is not justified the injured party is entitled to total damages.

Immaterial v. Material

line between important and trivial doesn't appear in formula - depends on circumstances

Loss in Value

loss by depriving that party, at least in some extent, of the performance expected under the K (applies to total OR partial breach) a) If partial breach loss in value = what you should've received - what you received b) If total breach loss in value = value of what should've been received

general measure of damages

loss in value + other loss - cost avoided - loss avoided

Repudiation

manifestation of intention that you aren't going to perform or can't perform a) When you have insecurity about ability of party to perform! b) Must be expressly stated (definite and unequivocal !!!!) c) More than a proposed change in terms * Not a remedy taken lightly*

§2 Promise

manifestation of intention to act or refrain from acting in a specified way so made as to justify a promisee in understanding that a commitment has been made

§24 Offer

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

No substantial performance =

material - Value is $

§4 How a Promise is Made

may be stated in words either oral or written and may be inferred wholly or partly from conduct

Extrinsic evidence—(outside the K itself)

may be used to determine which party had reason to know of the meaning of the other

Bargain for exchange test comment b bargained for

mere pretense of bargain does not suffice, as where there is a false recital of consideration or where the purported consideration is merely nominal * Gift v. actual promise like not drinking and getting $100

Something can be waived if it is

minor

Unilateral (Mistake R§153)—

misunderstanding by only one party

Mutual Mistake(R§152)—

misunderstanding is mutually shared

Materiality is a fact issue which

must be determined by the trier of fact

Option contracts still require

mutual assent and consideration

a. §22 Offer and Acceptance-

mutual assent usually offer or proposal followed by acceptance of other party * Mutual assent may be made even though neither offer nor acceptance can be identified, or moment of formation cannot be determined

when the parties mutually agreed to integrate a final version of their entire agreement in writing(parol evidence)

neither party can contradict OR supplement written agreement with extrinsic evidence

General rule to damages in construction context

non-breaching party is entitled to recover from the breaching party the full cost of obtaining the performance not received from breaching party. The cost to cure!

Improper conduct is

not an element of mistake and does not have to be shown

Advertisements are generally

not offers

Duties can't be assigned

obligations of performance cannot be assigned -> can only be delegated

§26 Preliminary Negotiations is manifestation

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

§ 87 (1)(b)-

offer may be made irrevocable by statute

§ 87(2) Option Contract

offer which offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree before acceptance and which does induce such action or forbearance is binding as an option K to the extent necessary to avoid injustice. (Drennan Rule)

§43 Indirect Communication of Revocation

offeree's power of acceptance terminated when offeror takes definite action not intending to enter into contract and offeree acquires reliable information to that effect

parol Evidence

oral or verbal evidence outside of the 4 corners of the K (word of mouth)

Interpretation

parties may disagree about meaning attached to certain words, comes into play when parties didn't discuss the meaning

Estoppel

party is going to be estopped to deny the existence of something

Consideration

promise induced the detriment AND detriment induced the promise

Promises within the Family( Harvey v Dow)

promissory conduct by the parents was enough to use as evidence of a promise · PE is a substitute for consideration in this unbargained for reliance. PE was established by the definiteness around the reliance

Acceptances under an option contract are not operative until

received by the offeror! §63(b)

Impossibility

requires showing of literal impossibility—couldn't be performed at all (->)Objective = no one could do it! (X) Subjective = I couldn't do it

A party cannot escape a disadvantageous or regrettable K

resulting from poor judgment or an incorrect prediction of future events.

Once the minor reaches age of majority,

she has the power to affirm or ratify the K, in which event the minor is bound.

§2-2073) is reserved for when communications

show no contract but both parties engage in actions that would recognize a contract

R § 132 A sufficient connection between the papers is established

simply by a reference in them to the same subject matter or transaction

Consideration is:

something given in exchange for a promise or in reliance upon the promise

§4 How Promise is Made

stated in words, either oral or written, or may be inferred wholly or partially from conduct

Examples of ways PE can be invoked

substitute for consideration, permitting recovery for detrimental reliance on a gratuitous promise, basis for enforcing oral agreement within SOF despite a lack of memo signed by D, basis for holding an offer despite offeror's attempt to revoke

In partial breach Non-breaching party is entitled (but not required) to

suspend (but not cancel) its own performance for a material breach until such time as correction or cure of the breach is forthcoming

frustration and impracticability defenses both require proof

that an unforeseen event altered "a basic assumption to which the K was made" (comment a)

Option contract parties are agreeing

that offer has period to revoke/not revoke

SOF is satisfied that means

that the K is enforceable.

Substantial performance damages requires

that the measure of damages be the difference in value of the work if full performance had been given and the value of the work with the performance actually provided!

Consideration ensures

that the promise enforced as a contract is not accidental, casual, or gratuitous, but has been uttered intentionally, as a result of some deliberation, manifested by reciprocal bargaining or negotiation

In option contracts there is a certain period of option

that will be irrevocable when stated in K OR for a reasonable amount of time

If K falls under SOF, but does not satisfy the 3 elements

the K is not enforceable

Unforeseeability and Related Limitations on Damages Rule

the amount which would have been received if the K had been kept is the measure of damages if the K is broke, UNLESS special circumstances are clearly communicated

When nonoccurrence of condition is excused

the conditional duty becomes an unconditional one, and the promisor's failure to perform amounts to a breach

Detrimental reliance

the greater the injury, the greater the detriment, the more likely to enforce promise

Substantial Performance (immaterial breach) Damages

the measure of damages for breach is not the usual measure because such cost is grossly and unfairly out of proportion to the good to be obtained. Instead, justice requires that the measure of damages be the difference in value of the work if full performance had been given and the value of the work with the performance actually provided

For Minors K is voidable, meaning the K may be potentially enforceable unless

the minor uses this defense. - K is voidable, not void! a) Remedy is recession of the K.

Damages General Rule

the non-breaching party is entitled to recover from the breaching party the full cost of obtaining the performance not received from the breaching party.

In partial breach If breach is immaterial

the non-breaching party is not entitled to suspend its own performance under the K.

Once a breach becomes total

the non-breaching party's performance obligations under the K are considered discharged (§242)

Comment b—Character of Reliance Protected:

the principle of this section is flexible. The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice. Satisfaction of the latter requirement may depend on the reasonableness of the promisee's reliance, on its definite and substantial character in relation to the remedy sought, and, on formality with which the promise is made... a) Whether it was reasonable for the P to rely at all? b) Whether the manner and degree of her reliance was reasonable?

In promissory estoppel The action has to be induced by

the promise for there has to be sufficient consideration.

if offer states time period,

then irrevocable for 3 months

If there is some ambiguity as to whether there is a condition

then we will assume that it is NOT!

§ 132 Some Jurisdictions—insist that

there be a reference of varying degrees of specificity in the signed writing to that unsigned, and if there is no such reference, they refuse to permit consideration of the latter in deterring whether the memo satisfies the statute.

Express condition will not be found if

there is another reasonable interpretation

Meaning attaches when whatever party knows or has reason to know of the meaning of the other party,

they will be bound by that party's meaning

Consideration has

to be a new exchange

In a total breach Non-breaching party has a right

to cancel the K AND immediately sue for damages for total breach (all actual damages to that point and any future damages that would reasonably flow from the breach)

Elements of Firm Offer under §2-205

to constitute a firm offer under §2-205 the communication must be: - An offer - §24 & is not §26 - Made by a merchant - §2-104(1) -In signed writing - §1-201(39) & comment 2 §2-205 -Giving assurances it will be held open

No resort to evidence outside the writing may be consulted( Four corners approach )

to determine the parties' intent as to whether the writing is the final and complete expression of their agreement

Parol Evidence Only operates

to exclude evidence, NOT define what is admissible

Promisor has the duty (obligation)

to perform the promise - can delegate

Undue susceptibility

to pressure consisting of some sort of weakness or incapacity of the mind due to such factors as age, physical condition (such as exhaustion, emotional anguish, or a combination of such factors). Such weakness or susceptibility does not have to be long lasting or wholly incapacitating.

Promisee has the right

to receive the promised performance - can assign

Happening of that event is an express condition

to the duty of performance

Misrepresentation is

tort action for damages, OR Recission

Immaterial

trivial and insignificant - Defect was insignificant in its relation to the project

If both parties engage in conduct that would make a reasonable person believe they were in a contract and that a reasonable contract exists,

under (3) a contract would actually exist

UCC §2-210 - Assignment of Rights -

unless otherwise agreed, all rights of either seller or buyer can be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden or risk imposed on him by his K, or impair materially his chance of obtaining return performance. A right to damages for breach of the whole K or a right arising out of the

UCC §1-103 = common law applied

unless specific question is under UCC Art 2

constructive condition precedent

using a rule to read the condition into the K as a matter of law

If contracts is written

we do not care or analyze statue of frauds

Cognitive test

were they in such a state of insanity at the time as to render him incapable of transacting the business? -Are they unable to understand the nature of the transaction or its consequences?

Predominant Purpose Test-

when a contract is seemingly mixed between goods and services ask: i. is this contract mainly for services? (building a house) ii. or is contract mainly for goods? (supplying someone with brick to build a house)

Nonoccurrence of express condition can be excused

when express condition has failed to occur, the conditional duty never arises, and the promisor is justified in nonperformance

Forfeiture

when the denial of compensation that results when obligee loses its rights to the agreed exchange after it has relied substantially, as by preparation or performance on the expectation of that exchange

. Jurisdictions are split on substantial performance which says that offer may not be revoked w

when the offeree has completed substantial performance of the act requested

§79 minor exception

where the amount of consideration was so grossly inadequate as to shock the conscious of the court, the contract will fail

Nowritten contracts statue of frauds

wont be enforces unless there is certain evidence to prove the existence of the contract

if remedy available in restitution

you don't need SOF

Every time you see a non-written contracts

you should be thinking of statue of frauds

Restatement approach to determine integration

§ 214 not conclusive on only the writings

Keeping offer open unilateral K

§45- beginning or tendering a beginning of performance

Keeping offer Open Statue

§87(1)(b)- statute §2-205

Have to show consequential damages loss was

· Foreseeable · Evidence stablishes reasonable certainty by preponderance of the evidence · Jury question of whether special circumstances had been communicated to make the consequential damages foreseeable

Elements for COA in Quasi K:

· P has conferred a benefit to the D · D has knowledge of the benefit · D has accepted or retained the benefit conferred · Circumstances are such that it would be inequitable for the D to retain the benefit without paying fair value for it

Did the event actually occur? (expressed conditions Qs.)

· Yes: if the event occurred, then the party's whose performance is conditional must perform · No:if there is a non-occurrence of the condition, it potentially relieves that party's obligation to perform

Is there an excuse for the non-occurrence?(expressed conditions Qs.)

· Yes:their obligation is relieved · No:they still have to perform

R § 201(2)B- Whose Meaning Prevails

·(b) that party had no reason to know of any different meaning attached by the other, and the other had reason to know the meaning attached by the first party A doesn't know/reason to know

K implied in Fact

—No restitution bc actual conduct a) Parties do not express agreement in words, but it is apparent from a reasonable interpretation of their conduct, viewed in context, that they intended to make a K thru conduct and circumstances · If there is K in Fact, you can still argue that there is injustice