Contracts Outline
Contracts Outline
Contracts Outline
Definitions:
Merchant – a person who deals in goods of the kind
OFFER
1. Was there a manifestation of intent to be bound with clear and definite terms (can’t be secretive)?
a) What would a reasonable man have inferred?
b) Intent is gleamed from the actions and words used.
c) Would a reasonable man have relied on the intent?
d) Watch for “immediate acceptance” – implies offer
e) Language MUST CONTAIN clear, definite, and explicit – leaves nothing open for negotiation
f) Does offeror make clear an intention to grant the offeree the power of acceptance?
g) Offeree must be clearly identified
2. Was there really an offer or was it merely a request to another party to begin the bargaining process?
a) Look to language. Does it imply an intent to make an offer?
b) Interest in selling does not imply offer
c) Courts look to actions/intent/interest in receiving an acceptance
d) If it is or should be obvious that other people are being given the power to make an offer, then the initial question is not
an offer. There can only be one offer for each item at a time.
e) Did the ∆ convey the power of acceptance on the π?
COUNTEROFFER
1. Immediately terminates an offer and establishes a new offer
2. Common law - To constitute a counteroffer, any part of the original offer is changed
3. If π is not a merchant, buyer must expressly assent to new or additional terms
OPTION CONTRACTS
1. Creates two distinct obligations
a) To keep available the option to purchase for a fixed period of time
b) To negotiate in good faith for the second contract
2. Must have consideration on both sides for option contract to be established
- Offeree must give consideration that bears some proportionality to the sought-after contract.
- Offeror’s consideration is the period of time that the option contract will be available.
3. The option contract cannot be destroyed for that fixed period UNLESS
a) The offeree rejects the offer and
b) The offeror acts in reliance on the rejection and sells the item elsewhere
4. Any counteroffer after the option contract has been established is viewed as negotiation for the price of the object
5. Any negotiation has to be done in GOOD FAITH bargaining. If the negotiation is not done in good faith – offeree can sue
under the theory that the bargaining was not done in good faith and ask for specific performance or damages.
6. Any offer to form a contract that has the possibility of being impossible creates an option contract whereby the offeror is ONLY
required to perform when the offeree completes performance (real estate agent) – the part-performance by the offeree creates an
option contract.
7. Firm Offer Contract – UCC 2-205
a) Between merchants, in a signed writing by offeror – gives assurance that offer will be held open
b) No Consideration needed during time stated, and if no time stated – reasonable period of time
c) Only a 3 month ceiling. No matter what the writing says.
d) Watch out for writing without an express promise
BID CONTRACTS
1. If there’s a provision in the bid for a method of acceptance of the offer (acceptance is contingent upon the bid being accepted
by a third party) then the revocation of the offer before acceptance by a third party can take place, constitutes a destruction of the
offer.
2. BUT if there is no provision for how the acceptance is to occur, then reliance on the bid to the offeree’s detriment constitutes
acceptance of the offer and as such the offeror is bound to the offer.
Creates an option contract if the general contractor relies on the sub-contractors bid in establishing the general bid for the work.
This option contract has to be accepted within a reasonable time after being awarded the job
CONSIDERATION – bargained for exchange between the parties that is something of legal value
Legal value – the exchange must be of some benefit to the promisor or some detriment to the promisee
These things must be given in exchange for each other
1. Every contract MUST HAVE consideration from both parties
2. Concept of bargaining – both parties must receive and give something
3. Each party is motivated by the consideration of the other party
4. Guarantees to pay for someone else’s goods constitute consideration
5. In a contract for sale of goods, when two parties’ consideration are EXTREMELY disproportionate, the UCC grants power to
the court to either strike down the entire contract as “unconscionable” or modify in such a way as to create a more appropriate
contract. (Jones v. Star Credit – refrigerator)
6. Nominal Consideration vs. Peppercorn theory
Nominal – not allowed
Peppercorn – court finds that any peppercorn of consideration is enough
II.
Quasi Contract = contract implied in fact; Contract established by conduct
1. Necessary for the ∆ to have requested the benefit
2. Elements:
a) ∆ requested a benefit from the π
b) π expected compensation for this benefit
c) ∆ knew or should have known that π expected compensation
d) π performed benefit, ∆ refuses to pay
3. Remedies: The amount parties intended as contract price, or if that is unexpressed the reasonable market value of the π’s work
4. The damages are greater because the work was requested and as such, the court awards the market value of the work done.
Court treats the remedy as if there had actually been a contract and breach had occurred.
MORAL OBLIGATION
Promise for benefit already received
§86 of the Restatement
1. A promise made in recognition of a benefit already received is binding to the extent necessary to prevent injustice
2. A promise is NOT binding under section 1 if
a) The promisee conferred benefit as a gift or for other reasons the promisor has not been unjustly enriched
b) Or to the extent that its value is disproportionate to the benefit
2. Lack of Capacity:
Infancy (Under 18 years of age)
1. Contracts entered into by minors are voidable unless the item is considered a “necessary” - a good or service that is
reasonably necessary for the proper and suitable maintenance of the infant in view of his social position and situation in
life, the customs of his social circle, and his fortune
2. Once that infant comes of legal age, any indication of assent to the contract will be considered a “ratification” of the
contract – which in essence makes the contact binding, unavoidable by defense of infancy. Silence does not amount to
ratification. An infant is required to disaffirm within a reasonable period of coming of age.
3. Infants are only required to return that consideration that they still possess.
4. If the contract is found to be null and void, the π may be able to proceed on a theory of quasi-contract, or unjust
enrichment
Intoxication:
1. May lack capacity if completely intoxicated and other party has reason to know of the intoxication
Mental Incapacity
1. Avoid contract duties by reasons of mental illness or defect if:
a. Unable to understand consequences of transaction
b. Unable to act in reasonable manner in relation to transaction and other party knows this
2. If contract is made on fair terms and other party unaware of mental defects the power of avoidance
a. Terminates to the extent that contract has been performed in whole or in part or the circumstances have changed
that avoidance would be unjust. A court may grant relief as justice requires
3. Lack of Consent:
Duress and Undue Influence – Morally offensive pressure or artifice exerted by one party against the other
1. Voidable by burdened party if induced by severe duress or coercion
1. Court looks to all circumstances to determine whether or not there was any undue influence or unconscionable
persuasion
2. Court focuses on whether:
a. The threats were lawful
b. There were reasonable alternatives
c. The parties was deprived of his free will
3. Duress can be purely economic
a. Court looks to whether there was a pre-existing contractual relationship
b. Duressor causing duress by threatening to breach contract unless the deal is sweetened
i. Must be:
1. Threat to breach
2. No option to non-breaching party
ii. Economic duress does not equal taking small economic advantage like charging high price for
water during hurricane
4. Undue Influence – falls short of actual duress, but it is unfair persuasion, high pressure, works on mental, moral, or
emotional weakness to such an extent that it approaches the boundaries of coercion. Limited to situations where there
is a relationship of trust.
Fraud and Duty to Disclose
1. Parties will never be precisely balanced in knowledge or power
2. Misrepresentation – assertion not in accord with the facts; half truth; failure to disclose a material fact; not telling the
whole truth about a material facts
3. DUTY TO DISCLOSE MATERIAL FACTS where:
a. Where it’s necessary to prevent a previous statement from being a misrepresentation or fraudulent
b. Where it will correct a mistake of the other party as to a basic assumption on which that party is making the
contract.
c. When it would correct a mistake of the other party as to the contents or effect of a writing in a contract
d. Where the other person is entitled to know the fact because of a relationship of trust and confidence.
4. A fact is material if it is one to which a reasonable buyer would attach importance in determining his choice of action
in the transaction in question
5. Promissory Fraud – promissors who at the time of promising don’t intend to perform their promise. Courts impose
punitive damages.
How do we infer initial lack of intent to perform?
1. lack of changed circumstance between time of promise & time of breach
2. pattern of repeated breaching over time
3. impossibility of performing at time of promise
4. internal documents indicating no intent to perform
DEFENSES TO ENFORCEMENT
Even if a court finds that a contract was properly formed, they will still consider two other defenses to enforcement.
1. Unconscionability = Absence of meaningful choice on the part of the breaching party, and terms which are unreasonably
favorable to the other party (absent choice, unequal bargaining power).
1. No Meaningfulness of the choice if gross inequality of bargaining power
2. If breaching party had little bargaining power, they had no real choice, and if they sign a contract with little or no
knowledge of its terms – the breaching party had not consented to the bargain.
3. Reasonableness = terms of contract considered in light of circumstances existing when contract was made
4. Test = whether terms are against mores and business practices at time/place
5. UCC §2-302 where a court finds that terms to an agreement are unconscionable (3 choices)
a. Refuse enforcement of entire agreement harshest, court’s don’t prefer
b. Enforce only those terms that are not unconscionable
c. Modify unconscionable terms to make them conscionable
Contracts of Adhesion
Take it or leave it contracts – usually not judicially enforced
1. Standard form
2. Prepared by one party and submitted to another party on the take it or leave it basis
3. Bargaining power of two parties unbalanced
4. No true negotiation
E-Sign: Electronic Signatures in Global and National Commerce Act Signed into law by President Clinton
(6/30/2000) gives legal and uniform status to legal signatures
PERFORMANCE
Scope and Content of Obligation
Parol Evidence Rule – evidence can be admitted into trial to prove the existence of an oral or implied agreement to the written
agreement if:
a) The agreement must be a collateral one in form (can’t be contracted for)
b) Must not contradict express or implied provisions in the written contract
c) Must be something that parties are not normally expected to embody in the writing – can’t be so clearly connected with
the principal transaction as to be part and parcel of it.
Parol evidence may be admitted into testimony even if there’s an integrated contract, in order to explain or supplement the written
contract by showing the following:
a) Prior performance, prior dealings, custom of the trade AND
b) Even if there’s a provision explicitly stating that the contract is integrated, evidence may be admitted if the oral
evidence is consistent with the integrated written terms.
Evidence that can’t be contradicted by terms in the writing intended by the parties to be a final expression of their agreement
(“integrated”)
Interpretation
1. The intent of the parties is relevant in determining an interpretation of the words within the contract.
2. Rational interpretation requires at least a preliminary consideration of all credible evidence offered to prove the intention of the
parties
3. Extrinsic evidence is admissible to determine the interpretation of words within the contract, but is NOT admissible to add to,
detract from, or vary the terms of a written contract – Can ONLY explain the terms within, cannot add or subtract from contract.
4. Hierarchy of interpretation: (Restatement §202)
1. Plain meaning of term at issue
2. Look at rest of document
3. Look at history of drafting of document (legislative history)
o Whoever speaks last, has the ability to change the legislative history and how interpretation will take place
4. Course of Performance – what are we actually doing?
5. Course of dealing – what have we done in the past?
6. Trade usage – what have other people done? Common interpretations.
7. Gap filling procedures
5. Court asks:
1. Is there ambiguity? Are terms open to a reasonable set of definitions?
o If yes…then second question
2. How much ambiguity? Is the meaning sought by party, within a permitted range of ambiguity? Is the meaning sought
by party consistent with document including all clauses?
7. Modification
General obligation of good faith in modifying contracts:
o Did ∆ attempt to modify the contract while being consistent with reasonable commercial standards?
o Did ∆ seek modification by an honest desire to compensate for commercial needs that were necessary?
Coercive conduct is evidence of a breach of good faith in modification
Questions to ask yourself:
o 1) Was the market change situation one that would lead most merchants to seek modification?
o 2) Was that market change a valid motivation for seeking modification?
o 3) Was the modification reasonable in light of current dealings in the trade?
8. Other times when a duty of good faith is implied
In a commercial contract that has a clause granting a party the right to terminate a contract for whatever reason, a duty of
good faith arises. A party cannot terminate the contract through deceptive, unfair methods, or bad faith conduct. Examples
of bad faith are when the termination is a retaliatory method, discrimination, etc.
9. Employee Contracts
No implied covenant of good faith in termination of at-will employees, a business owner has the right to hire and fire as
he pleases unless it goes against public policy. (Hillsland v. Federal Land Bank Association – CEO swooped in and
convinced people who were in financial trouble to sell their land to his kids)
Warranties
Express Warranties UCC §2-313
Representations are NOT PROMISES but are representations of EXISTING FACTS
Don’t necessarily have to use the word “warrant” or “guarantee” or have specific intention to create warranty.
1) Affirmation of fact made by seller which relates to the goods that is part of the bargain
2) Description of goods creates express warranty
3) A sample or model that creates in the buyer the impression that the actual product will be substantially similar
4) Not necessary for specific words to be used
Exceptions §2-316: Implied warranties can be contracted around by words: “as is”, etc
o If buyer has examined goods or the sample goods and finds no defect
o If buyer refuses examination where a simple examination would have revealed defects
o Course of dealing (§2-316c)
Third party beneficiaries of warranties (implied or expressed) - can sue for injury if the warranty was breached
Avoidance of Forfeiture
If one party’s performance is going to take a long time to perform, the act that takes time should be done before the other party
must perform.
Substantial Performance
1. Jacobs Young v. Kent (Redding Pipe Case) – Where substantial performance is found, and it would be economically wasteful to
require a meeting of the exact performance requirements – the court awards damages as the value difference between that which
was done, and that which should have been done – not value of replacement.
a) If court determines defect to be trivial or inappreciable, then the remedy is difference in value.
2. O.W. Grun Roofing case (different color shingles) - Material breach which goes to the essence of the contract defeats
promissors claim despite part performance, but a minor breach that does not go to the heart of the contract will allow a promissor
to recover despite breach
Divisible Contracts
1 Look to terms of the contract to see if it lends itself to be easily divisible – if so, then the contract is in essence able to be divided
into more than one separate document and treated as such in a case.
2. In employer/employee contracts – the contracts are always day to day divisible documents, such that an employer is required to
pay up the last day of employment because he has been enriched by the work of the employee.
Supervening Impracticability
1. Event after contract formation which is not the fault of the person claiming impracticability, that makes performance
impracticable, the non-occurrence of which was a basic assumption of the contract.
2. Example: Fire burns down a building set for a performance (Taylor v. Caldwell)
Frustration of Purpose
1. Frustration of purpose is when something happens that is not reasonably foreseeable and it totally or substantially
destroys the entire purpose of the contract, which must be a purpose that both parties know is the only reason the contract
was made.
2. Three Part Test:
a. What was the purpose of the contract?
b. Was the purpose prevented/destroyed by no fault of either party?
c. Was the event that prevented the purpose contemplated at the outset?
Damages
Types of Damages
1. Compensatory Damages - way to put the non breaching party where they would have been absent breach
a. Expectation damages – place both parties where they would be had the no breach occured
i. damages sufficient for you to purchase substitute performance
b. Reliance Damages – place non-breaching party where they would have been had contract not been formed
i. if π can’t prove expectation damages with certainty, they will be entitled to reliance damages. Placing π
in the position he would have been in had the contract never been formed.
ii. Used in PROMISSORY ESTOPPEL
iii. Generally not available unless expectation damages are too speculative
c. Consequential damages – damages for any further losses resulting from the breach. Must be
i. Reasonably foreseeable at the time of contracting by the average like businessperson
OR
ii. Both parties were aware of special circumstances that existed at the time of contracting which would
involve a substantial amount of risk and resulting damage if the contract were breached.
2. Punitive Damages – policy decision, awarded for extremely offensive conduct (tortious) in non-commercial contracts.
Should be more than what a ∆ could normally factor into its costs, but not enough to drive the ∆ bankrupt. Wealth can be
considered.
3. Nominal Damages – awarded where breach is shown, but no actual loss is proven.
4. Liquidated Damages – included in the contract in case breach occurs. Π can sue for these damages.
a. Enforced only if:
i. Not excessive amount in relation to reasonably foreseeable losses at the time of contracting (Can’t be a
penalty provision)
ii. Result Can’t shock the conscience of the court (equity)
5. Legal Fees – American rule – pay to play, pay your own legal fees
Restitution Damages – attempt to place breaching party where they would have been had the contract not been formed
Non-breaching party can cancel performance and sue for any benefit that he may have conferred on the breaching party
that would be inequitable to allow the breaching party to retain without compensation.
A π can choose to sue for either expectation damages or restitution damages, whichever one is larger
Can only seek restitution when ∆ breaches after your part-performance
Duty to Mitigate Damages – even non-breaching party has a duty to mitigate damages
If π does not make an attempt to mitigate, the damage award may be reduced by the amount that might have been avoided
Employee Contracts
1. If Employer breaches – normally owes full amount of contract price
2. If EmployEE breaches – can only claim damages based on the work done to date.
Equitable Remedies
Specific Performance – where no adequate remedy at law, courts will either give specific performance or injunctive relief
1. Goods, unique products
2. Generally courts do not grant specific performance unless:
a. Easy to administer
b. No harm to society
c. Balance of hardship tips in π’s favor