1. Was there a legally valid contract (or enforceable promise) formed? a. Offer and Acceptance
i. Offer
1. Intention to be bound
2. Definiteness of Terms (i.e. lack of indefiniteness)
3. Reasonable Person Standard (Objective Test): Would a reasonable person construe the offer as an offer? 4. Termination of Offers
a. In General
b. Lapse of Time
c. Death or Incapacitation
d. Revocation
ii. Acceptance
1. In General
2. Intention to be bound
3. Timeliness: The Mailbox Rule
4. Silence as Acceptance
5. The “Battle of the Forms”
a. Mirror Image Rule
b. Last Shot Rule
c. UCC 2-207
d. Statute of Frauds
b. Consideration
i. Formality
1. Functions
ii. Bargained-For Exchange
1. Forms
2. Caveats
3. Policy Considerations
iii. Benefit
1. Past Consideration
2. Performance with Expectation of Being Paid
3. Moral Obligation
4. Promisor Never Makes Promise?
iv. Defective Consideration
1. Restatement vs. UCC
2. Adequacy of Consideration
3. Unconscionability
4. Contract Revisions and the Legal Duty Rule
a. Good Faith Requirement
b. Contract Rescission
5. Mutuality of Obligation: “Illusory” Promises and Related Fairness Issues a. Illusory Promises
b. Binding Other Party to Performance
c. “Reasonable” or “Best Efforts” Contracts: Implied Promises d. Subjective Conditions to be Satisfied Prior to Contract Formation i. Good Faith Requirement
ii. Limitations
6. Freedom of Contract and Public Policy
a. Derivation
b. Traditional Contract Principles vs. Other Societal Principles c. Substitutes for Consideration
i. Reliance/Promissory Estoppel
1. Differences with Consideration
2. Promises Attached to Another Purely Gratuitous Promise
3. “Justice” Requirements
2. What type of contract?
a. Unilateral vs. Bilateral
b. UCC vs. Common Law: Goods vs. Services
c. Promissory Estoppel Contract
d. Equitable Estoppel Contract
e. Past Benefit Contract
f. Option Contract
3. Contract Interpretation: What does a contract say?
a. “Four Corners” Approach Ordinary Meaning vs. Context b. The Parol Evidence Rule
i. Williston Approach vs. Corbin Approach
ii. Integrated vs. Partially Integrated Agreement
iii. Ambiguity/Inconsistent Terms
iv. Scope of Agreement
c. Allocating Risks in Instances of Mutual and Unilateral Mistakes d. Assent to Standardized Forms: True Assent? How does this affect contract interpretation? e. “Best Efforts” or “Reasonable Efforts” Contracts
4. Policing the Bargain: Can some or all of the contract be voided? a. Duress
b. Unconscionability
i. Procedural and Substantive Unconscionability
c. Misrepresentation
d. Non-Disclosure
e. Statute of Frauds
f. Illusory Promises
g. Indefiniteness
h. Illegality of Contract Purpose
i. Mistake
5. Performance and Breach: What constitutes performance, and what constitutes breach? Was there a breach? a. Conditions and the Duty to Perform
i. Express Conditions
ii. Conditions vs. Promises
iii. Constructive (Implied) Conditions and the Order of Performance b. Justifications for Non-Performance
i. Impossibility/Impracticability (Implied Excuse)
ii. Frustration of Purpose (Implied Excuse)
iii. U.C.C. Provisions
c. Unjustified Non-Performance
i. Substantial Performance
ii. Perfect Tender Rule
6. Damages and Remedies for Breach of Contract
a. Expectation Measure of Damages
i. Rationales and Limitations
ii. Limitations on Recovery of Expectation Damages
1. Uncertain Damages
2. Avoidable Damages
3. Consequential Damages
b. Restitution Damages
c. Contractual Provision/Liquidated Damages
d. Specific Performance
7. Freedom of Contract
8. UCC vs. Common Law/Restatement