Law Outlines Contracts Attack Outline Outlines
Covers the main questions to go through on a contracts exam and the main elements for each question. ...
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Attack Outline
Agreement with Consideration
Elements
Bargain for exchange
Competent parties
For Consideration
Promise for:
Act or forbearance
Questions to Ask:
Is it a gift? If yes, UNENFORCEABLE UNLESS conditional
Is it illusory? If yes, UNENFORCEABLE UNLESS
Exclusive if yes ENFORCEABLE OR
Satisfaction Clause if yes ENFORCEABLE OR
If one or both parties’ discretion is constrained if yes ENFORCEABLE
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
Partial performance to demonstrate implied in fact contract if yes ENFORCEABLE
NOTE: Violation of statute of frauds could lead to enforcement through other theories/remedies if yes ENFORCEABLE
Remedy
Expectancy Damages
D= LOV + (CD + ID) – (CA+LA)
Is the Cost of Performance grossly disproportionate to value upon completion? If, yes- no expectancy BUT
Is that what party really wanted?
Is it a new business?--> NO expectancy but maybe reliance under AwC
Did they mitigate?
BUT did they have another materially similar option?
Is plaintiff lost volume seller?--> Can recover for profit of two sales
Promissory Estoppel
Elements
Promise reasonably expected to induce action or forbearance
Does induce detrimental reliance
Injustice can only be avoided by enforcing promise
Question to Ask:
Was reliance unreasonable? IF YES UNENFORCEABLE
Conditional or Indefinite promise? IF YES UNENFORCEABLE
Gratuitous promise? IF YES UNENFORCEABLE
Remedy
Reliance Damages
(ER +P) + (ID + CD) – (CA + LA)
Would reliance be greater than expectancy?--> Can’t get reliance then so maybe restitution
Is it a losing contract? If so, can’t get reliance, maybe restitution though
Is the reliance on future lost profits?- no reliance BUT
Is the reliance on future foregone lost opportunities?
Unjust Enrichment
Elements:
Benefit to promisor (unjustly enriched)
At the expense of promisee
Questions to Ask:
Was promise gratuitous? (Think Bloomgarden) IF YES UNENFORCEABLE
There was NO benefit— IF YES UNENFORCEABLE
BUT was the defendant the intended beneficiary even though they received no benefit/ would they have had they accepted? (Think Kearns) if yes ENFORCEABLE
Was expectation of payment not communicated or reasonably expected?--> IF YES UNENFORCEABLE
BUT did relationship change (Think Sparks) if yes ENFORCEABLE
Can the benefit not be returned?--> IF YES UNENFORCEABLE
Was the benefit thrust upon you?--> IF YES UNENFORCEABLE
BUT did you admit it was beneficial? if yes ENFORCEABLE
Was the intent to obtain to obtain a business advantage?--> IF YES UNENFORCEABLE
Remedy
Restitution Damages
Quasi- limit is contract price
Quantum- reasonable market value
NOTE: Argue freedom to contract (quasi) versus penalization for breach (quantum)
To get Quantum:
Plaintiff is non-breaching party
There was ONLY partial performance
To make restitution:
Give back what you took
Or its equivalent value either by contract price or the market value price
Moral Obligation
Elements:
Unrequested/ Unbargained benefit
Subsequent promise to pay is made
Promisor must directly benefit
Services were beneficial
Questions to Ask?
Was it a gift? IF YES UNENFORCEABLE
Promisor was not directly benefitted? IF YES UNENFORCEABLE
BUT is there a pre-existing obligation IF YES ENFORCEABLE
Did promisor change their mind? IF YES UNENFORCEABLE
Obligation Arising from Tort
Elements:
Duty arises from agreement
There is also a legal duty
No fraud
Professional duty
NOT just a breach of a term in...
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Covers the main questions to go through on a contracts exam and the main elements for each question. ...
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