-
Contracts Outline
- 1. Applicable Law
- 2. Formation
- 3. Consideration
- 4. Defenses to Formation
- 5. Terms of the K
- 6. Performance
- 7. Discharge of Duties
- 8. Breach
- 9. Damages and Remedies
- 10. Third Parties
-
1. Applicable Law
- UCC: sale of goods
- Common law: services, real estate, everything else
- Mixed: whichever part of K more important, unless K divides payment, then UCC to goods, and CL to everything else
-
2. Formation
- Offer: intent to be bound, clear and definite terms, communicated to identified offeree
- Termination of Offer
- - death, rejection, illegality, lapse of time
- - revocation: except FOUR: Firm offer, Option K, Unilateral K with part performance, Reliance to detriment
- Acceptance
- - CL mirror image
- - UCC
- -- merchants: new terms become part of K unless: material alteration, objection, offer expressly limits acceptance on terms
- -- non-merchant: new terms proposal that do not become part of K unless accepted
- -- shipment of non-conforming goods: acceptance and breach of K, unless offered as accommodation
- Mailbox rule: acceptance effective upon dispatch, everything else upon receipt, unless rejection sent first and then acceptance, then first to arrive
-
3. Consideration
- Adequacy of consideration: irrelevant
- Illusory promises: where only 1 party bound to perform
- Past consideration: not valid
- Pre-existing duty: not valid, unless change in performance, severe unforeseen difficulty so as to excuse performance, 3P promise to pay
- Modification: CL new consideration needed - UCC no new consideration if in good faith
- Promissory Estoppel: no consideration if promise with detrimental reliance and necessary to avoid injustice
-
4. Defenses to Formation
- MISFUI
- Mistake: mutual mistake, unilateral mistake if other party has reason to know
- Incapacity: minor, mentally incompetent, intoxication
- Statute of Frauds: MYLEGS
- - Marriage, service k more than a Year, Land, Executor promise to pay, Goods $500, Surety
- - Writing requirement: CL all material terms, signature - UCC quantity of goods, signature, except Merchant Confirmatory Memo (quantity, 10 days to object)
- - Performance exeption: full performance of service K, part performance of sale of goods as to part performed, real estate K if two of payment, possession, improvements
- Fraud/duress
- Unconcionability: so unfair as a result of disparity of bargaining power, Procedural unfair surprise or Substantive unreasonably oppressive term
- Illegality
-
5. Terms of K
- Interpretation of terms: course of performance, course of dealing, custom and usage
- Ambiguous terms: no K if each party attaches different meaning to term and neither party know term open to two different interpretations
- Parole Evidence Rule: prior or contemporaneous terms are not admissible to vary terms of integrated writing
- Modification: CL additional consideration, UCC not needed if in good faith. Must satisfy SoF
- UCC Default Terms: delivery obligations, risk of loss, warranties, no disclaimers
-
6. Performance
- Excuse of conditions: wrongful prevention, anticipatory repudiation, waiver, estoppel
- CL Performance: substantially perform all duties
- UCC
- - Perfect tender rule: B can reject, retain and sue, or keep some, reject some and sue
- - Cure: S can cure if time for performance is not past
- - Installment K: separate lots separately accepted
- - Acceptance: can't reject after acceptance or retention after opportunity to inspect
- - Revocation of Acceptance: if non-conformity substantially impairs goods, B could not have previously discovered defect or reasonably relied on S assurance of satisfaction, and B revokes in reasonable time
-
7. Discharge of Duties
- Impossibility: unforeseen event makes impossible
- Impracticability: extreme and unreasonable difficulty and expense that was unanticipated
- Frustration of Purpose: reasonably unforeseen supervening event that destroys purpose of K
- Mutual Rescission
- Accord and Satisfaction: parties agreed to different performance
- Novation
-
8. Breach
- Damages can be recovered for material or minor breach
- Only material breach excuses performance
- Divisible Ks treated on per unit basis
-
9. Damages and Remedies
- Legal Damages: expectation, consequential, reliance, incidental, liquidated
- Restitution/Unjust Enrichment
- Equitable Remedies: specific performance, reformation, reclamation, entrustment
- Damages for sale of goods: either K price or different between K price and FMV
-
10. Third Parties
- TPB: must be identified in K, can enforce if rights vested, D defend as against P
- Assignment
- Delegation of Duties
|
|
