Contents

1. Overview of Contracts 4

1.1 Contract defined 4

1.2 Risk allocation 5

FORMATION 6

2. Consideration 6

2.1 Consideration defined 6

2.2 Gift or gratuitous promises 7

2.3 Adequacy of consideration 8

2.4 Promisee unaware 8

2.5 Past consideration 8

2.6 Material benefit rule (Exception to past consideration) 9

2.7 Other motives not bargained for 9

2.8 Pre-existing duty rule 9

2.9 Settlement of claims 10

3. Promissory Estoppel 11

3.1 Promissory Estoppel defined 11

3.2 Amount of damage 11

3.3 Applications 12

4. Offer and acceptance 12

4.1 Mutual assent defined 12

4.2 Offer defined: FORK: invitation to negotiation 13

4.3 Validity of particular kinds of offers 14

4.4 Expiry of offer 15

4.4.1 Rejection 15

4.4.2 Counteroffer 15

4.4.3 Lapse of time 16

4.4.4 Revocation of offers 16

4.4.5 Death or Incapacity 18

4.5 Acceptance 19

4.5.1 Method of acceptance 19

4.5.2 Mailbox rule 21

4.5.3 Silence or Dominion 22

4.5.4 Additional and Different terms 22

4.6 Indefinite terms FORK 25

4.7 Internet: terms on box FORK 26

5. Output, requirement and exclusive contract 27

DEFENSES TO FORMATION 27

6. Unconscionability 27

7. Statute of Frauds 29

7.1 Suretyship 29

7.2 Marriage 29

7.3 Land Contract 30

7.4 One-year 30

7.5 UCC >$500 32

7.6 Memorandum 32

7.7 Exceptions and solutions 33

7.8 Oral modification 34

8. Immorality 34

9. Mutual mistake 34

10. Misrepresentation 35

INTERPRETATION 36

11. Parol Evidence – term identification 36

12. Interpretation 37

PERFORMANCE AND DISCHARGE 38

13. Substantial performance 38

14. Modification 39

15. Impossibility/ Impractibility/ Frustration 39

DAMAGES 40

16. Damages 40

17. Specific performance 41

18. Limitations on compensation 42

19. Miscellaneous 43

19.1 Sovereignty Debt and Unconscionability 43

19.2 Exit consents 44

19.3 Contract terms 46

19.4 Fiduciary duty 46

19.5 Boilerplate 46

Overview of Contracts

Contract defined

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

2. Sorting function: contract is about the coercive power of the state, which is used only on some occasions

   1. Selling exams: not enforceable, exam is the property of the school, violates honor code, unenforceable because of illegality

   2. Cutting off finger in exchange for tickets: no contract, power of state has restrictions, illegal

   3. Kidney exchanges: allowed as contract (exception to the rule above)

      1. Why is it legal?

         1. Safe life

         2. Prevent black market

      2. Damages for breach of kidney exchange (there is an incentive to back out if operation not done simultaneously): monetary damages probably not enough:

         1. That equates putting a price for kidney, purchase of kidney

         2. Difficult to enforce, esp. for poor people

      3. Possible other solution:

         1. social pressure (newspaper)

         2. a donor-patient pair makes a donation to someone waiting for a cadaver kidney, in return for the patient in the pair receiving high priority for a compatible cadaver kidney when one becomes available

3. Gap filling function: set default rules

   1. How many onions in the turkey burger? Decided by industry standard, or by what a reasonable person may expect.

   2. Custom: in the industry it’s normal to contract around consequential damages. Relevant fact?

   3. Default rule v. industry standard

4. Three kinds of contract (Bailey v. West):

   1. Express contract

   2. Implied in fact contract: an implied contract can be formed where it is clear that both parties consented to perform albeit without saying anything. It can be shown by a course of dealing or a general custom or pattern of commercial activity. There must be mutual intent by both parties in order to form a contract “implied in fact.” Both parties must be clear on with whom they are contracting with.

   3. Implied in law contract:

      1. A quasi contract is not a contract

      2. A quasi contract can recover if:

         1. a benefit is conferred by the P

         2. the benefit is appreciated and accepted by the D

         3. the retention of the benefit would unjustly enrich the defendant.

      3. not formed where performance rendered by one person is not requested by the other.

      4. Last clear chance: If D has the last clear chance to refuse P’s work, but does not refuse, there may be a quasi-contract. Rationale: the recipient of benefit, D is in the best position to prevent the mistake or error that led to the conferral of the benefit.

      5. Restitution view: replicate the result of the bargain that would have occurred absent the transaction cost (lack of information)

5. In exam, don’t spend too much time to decide if there is a contract, because usually there is.

6. Which law to apply: predominant purpose test

   1. UCC if the predominant purpose is to sell goods (not lease, not service, not intangible rights or real property)

      1. §1-103(b) general principles of common law apply to sales of goods unless displaced by the provisions of UCC

   2. Common law if the predominant purpose of the contract is to sell services.

7. Unenforceable contract: contracts that have some legal consequences, but they are not enforceable in an action for damages or specific performance, due to a defense (e.g. Statute of Frauds; Statute of Limitations)

8. Void contracts: no contract has been formed

9. Voidable contracts: one or more parties have the power to either ratify the contract or void the contract. “voidable by sb”

10. Executor contract: if either one party hasn’t performed fully, it’s an executor contract.

Risk allocation

1. “If a man bind himself by a positive, express contract to do an act in itself possible, he must perform his engagement unless prevented by the act of God, the law, or the other party to the contract”…no difficulty short of absolute impossibility shall prevent him from performing. (Stees)

2. Spearin doctrine: If the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible of the consequences of defects in the plans and specifications. FORK in fact

   1. Design specifications: indicate in precise detail the manner in...

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