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Attack Outline I. Agreement with Consideration a. Elements i. Bargain for exchange ii. Competent parties iii. For Consideration
1. Promise for: a. Act or forbearance b. Questions to Ask: i. Is it a gift? If yes, UNENFORCEABLE UNLESS conditional ii. Is it illusory? If yes, UNENFORCEABLE UNLESS
1. Exclusive ? if yes ENFORCEABLE OR
2. Satisfaction Clause ? if yes ENFORCEABLE OR
3. If one or both parties' discretion is constrained
? if yes ENFORCEABLE iii. Is it an agreement that needs to be in writing? Would it violate the Statute of Frauds? If so, and not in writing UNENFORCEABLE UNLESS
1. Partial performance to demonstrate implied in fact contract ? if yes ENFORCEABLE
2. NOTE: Violation of statute of frauds could lead to enforcement through other theories/remedies? if yes ENFORCEABLE c. Remedy i. Expectancy Damages
1. D= LOV + (CD + ID) - (CA+LA) a. Is the Cost of Performance grossly disproportionate to value upon completion? If, yes- no expectancy BUT i. Is that what party really wanted?
b. Is it a new business?--> NO expectancy but maybe reliance under AwC c. Did they mitigate?
i. BUT did they have another materially similar option?
d. Is plaintiff lost volume seller?--> Can recover for profit of two sales II. Promissory Estoppel a. Elements i. Promise reasonably expected to induce action or forbearance ii. Does induce detrimental reliance iii. Injustice can only be avoided by enforcing promise b. Question to Ask:
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