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Always Start by asking whether the fact pattern shows that

Applicable Law
Content of Contract:
8.
Condition: 225(2)
both Offer and Acceptance contains (1) the Same Terms; OR (2)
2 UCC: Sale of Goods
a.
Restatement: Offer determines the content of the contract
a.
Non-occurrence of a condition
Additional or Different Terms
i.
Does not have to be between merchants.
b.
UCC: 2-207: Gap Fillers
i.
Performance of a duty is not due until condition occurs, or
b. Common Law
c.
Parol Evidence Rule (Interpretation Purposes)
non-occurrence is excused.
i.
Restatement
i.
Integration?
ii.
Unless excuse, non-occurrence discharges duty when
If SAME TERMS exist in both
If Additional or Different
1.
Land is always under the Restatement; it is not a sale
1.
Partial: Does not kill the additional term
condition cant occur.
the Offer and the Acceptance,
Terms exist between the
of goods.
2.
Complete: Deletes any prior term to the extent that the additional term
iii.
Not a breach by a party unless he was under duty to
then a contract is created on
Offer and the Acceptance,
c.
CISG
is within the scope of the integration.
make it occur.
the terms of the Offer and the
then a UCC 2-207 issue
Acceptance.
Mutual Assent
ii.
Contradiction?
b.
Preferable to a be a duty than a condition when doubtful.
exists. Go on to the next two
possible scenarios:
Offer: Was there an offer?
Avoidable? Was the contract void?
c.
Implied condition: substantial performance
No UCC 2-207 issue exists.
Acceptance: Was the offer accepted?
a.
Infancy Doctrine: If youre a child and enter into a contract, and you avoid the
d.
Express condition: full performance.
i.
Matching Principle: Did the acceptance match the offer,
contract, you can get your money back.
e.
Duty is Terminated When:
A definite and seasonable
50 WATCH OUT FOR UCC 2-207
b.
15(1): Incapacity? (Mental Illness or Defect)
i.
If contract terminates duty because of event, then it is
A definite and
expression of acceptance was
ii.
Right Person: Did the right person accept the offer, 52
i.
Understand the nature and consequences of transaction?
discharged if event occurs.
seasonable expression
given (i.e. if offeree clearly
iii.
Right Manner: Did the offeree accept in the right manner?
ii.
15(2): Did petitioner lose power to avoid contract?
ii.
Not discharged if, before event, obligor promises to still
of acceptance was NOT
accepted)? If so, then go on to
given (i.e., if offeree
1. Recall that prescriptions made by the offeror have to be
1.
Where the contract is made on fair terms and the other party is
perform duty even if even does not occur and obligee
examine the possible 2 scenarios
didn't clearly accept)
complied with, 60(1). But dont be too quick to read a
without knowledge of the mental illness, the avoidance is exterminated
changes his position in relying in it.
about that acceptance.
prescription regarding the manner of acceptance into the
when the contract has been whole performed.
iii.
Avoiding forfeiture: Court can make exception for justice
offer.
c.
Fraud
9.
Frustration of Purpose, 265
Acceptance IS NOT
Acceptance IS
2. Note that acceptance by silence is only possible under
i.
Fraud in the inducement?
a. Principal Purpose
expressly
expressly
limited circumstances, 69
ii.
Fraud in the Factum?
b. Substantially frustrated by occurrence/non-occurrence of event conditional on
conditional on
assent to different
iv.
Timeliness: Was the acceptance made in a timely manner, d.
Duress
c. Without his fault
assent to
or additional terms
If so, a contract is not
36(1)(d), 48
i.
Physical compulsion prevents contract formation
d. Basic assumption on which contract was made
different or
and does NOT
created by the exchange
additional terms
1.
Termination Examples:
ii.
Duress can make manifestation of assent in contract voidable if induced by
e. Risk allocation
change dickered
of Offer and Acceptance
or changes
a.
Revoked?
threat, threat is improper, and leaves no other reasonable alternative.
10. Temporary Impracticability or Frustration
terms.
under UCC 2-207(1),
dickered terms
b.
Counter-Offer?
e.
Undue Influence
a. Temporary impracticability or frustration does not discharged duty
BUT a contract may still
c.
Rejection?
i.
Elderly person influence by nurse.
to perform.
If so, then a contract is
be created by conduct.
2.
Was offer revoked before it was accepted?
f.
Mistake:
11.
Condition: 225(2)
created under UCC 2If so, acceptance
Ask if the facts fall within
a.
Was the offer accepted before it was revoked?
i.
Unilateral Mistake
a. Non-occurrence of a condition
207(1). But the
operates as a
the following2 scenarios:
additional and different
i.
Mailbox Rule, 63
ii.
Bilateral Mistake: Both parties at the time contract was made are mistaken
iv.
Performance of a duty is not due until condition
counteroffer. Go on to
terms will be
ii.
Full performance in promise/performance
about basic assumption that has a material adverse effect. Party who wants
occurs, or non-occurrence is excused.
the following 2
determined by the
contract.
to void must be adversely affected and did not bear the risk.
v.
Unless excuse, non-occurrence discharges duty
scenarios.
following:
b.
Was offer irrevocable?
7. Breach of contract?
when condition cant occur.
i.
General option Contract, 25
a.
Contract? (ABOVE)
vi.
Not a breach by a party unless he was under
Parties'
Parties
If the other party
1.
Mutual assent + consideration to keep the b.
Enforceable? (ABOVE)
duty to make it occur.
ADDITIONAL TERMS
conduct
Conduct
expressly and
FOR K BETWEEN 2
offer open.
c.
Breached?
b.
Preferable to a be a duty than a condition when
does not
indicates
unequivocally accepts
MERCHANTS:
ii.
Simplified Option Contract, 87(1)(a)
i.
Duty to Perform Discharged? No breach if duty to perform was
doubtful.
indicate
existence of
additional
and
1.
Written, signed contract with exchange
extinguished (discharged)
c.
Implied condition: substantial performance
If the contract is between
existence of
a contract?
different terms, a
mechants, additional
a contract?
on fair terms and within reasonable
1.
Full Performance, 235
d.
Express condition: full performance.
contract is formed of
terms are included in the
time and purported consideration.
2.
Impracticability, 261
e.
Duty is Terminated When:
terms of the
contract unless:
iii.
Irrevocable Offer, 2-205 UCC
a.
Contract
i.
If contract terminates duty because of event,
counteroffer.
If so, then a
(a)
the
offer
expressly
1.
If the statute des not make the offer
b.
Impracticability
then it is discharged if event occurs.
contract by
No
irrevocable then it is irrevocable. Must
c.
Without fault of person trying to get out of duty
ii.
Not discharged if, before event, obligor promises limits acceptance to the
conduct exists
contrac
If the other party
come from a merchant, signed and in
d.
Basic assumption of contract
to still perform duty even if event does not occur terms of the offer; OR
under UCC 2t exists
does not expressly
207(3)
writing. Doesnt have to be reasonable
i.
Market conditions and ability to pay are not basic assumptions
and obligee changes his position in relying in it. (b) the additional terms
materially alter the
and unequivocally
or have consideration.
of contracts.
f.
Avoiding forfeiture: Court can make exception for the
Consequentl
contract; OR
accept, then a
iv.
Fictional Option Contract 45
e.
Risk allocation (language or circumstances)
person who did not literally perform so they can
y, the terms
contract may still be
(c) notification of
1.
Created when the offeree can only
3.
Death or Incapacity of Person Necessary for Performance
avoid forfeiture.
of the
formed by conduct
objection
them
has
accept the contract via performance.
a.
Existence of a particular person necessary
ii.
Performance Due?
contract are
under UCC 2-207(3).
already
been
given
or
is
v.
Reliance-Based Option Contract 87(2)
b.
Impracticable
1.
Does contract address the question about performance
those terms
Go to the following
given within a reasonable
that are
1.
Promissory estoppel. There is reliance
c.
Basic assumption
due?
analysis.
time after notice of them
mirror image
on a promise that was made.
4.
Destruction of Thing Necessary for Performance
2.
Legal Defaults:
is received. UCC 2-207(2)
of one
Consideration: Was there consideration? (quid-pro-quo)
a.
Specific thing is necessary
a. 234(1): When it can be done simultaneously, it should be.
another.
Promissory Estoppel:
b.
Destroyed, deterioration, not exist
b. 234(2): When one performance takes time, whereas another
Conflict and
i.
If you have a promise that would reasonably lead someone to
c.
Impracticable
instantaneous, the performance that takes time is due first.
additional
ADDITIONAL TERMS
rely on that promise, and creates that reliance, then you hold
d.
Basic assumption
Damages Available:
terms are
FOR K NOT BETWEEN
the promisor to the promise in the extent necessary to avoid
5.
Governmental Regulation
a.
Expectation Damages: 352
knocked out
MERCHANTS:
injustice.
a.
Duty discharged if government steps in.
i.
Loss in the value
and replaced
if one or more parties is
by UCC
ii.
87(2)
6.
Frustration of Purpose, 265
ii.
Plus, any other loss, incidental or consequential
not a merchant,
gapfilled, 21.
Offer-based reliance
a.
Principal Purpose
iii.
Less any cost he avoided by not performing
additional terms ARE NOT
207(3)
2.
Promise has not been acceptance.
b.
Substantially frustrated by occurrence/non-occurrence of event
b.
Reliance Damages: 349
included in the contract
iii.
90
c.
Without his fault
i.
When expectation damages cannot be calculated, an alternative wayunless that party's assent
1.
Promise-based reliance
d.
Basic assumption on which contract was made
to measure damages is to calculate damages based on his reliance to inclusion of that terms
2.
A promise has been acceptance.
e.
Risk allocation
interest, including expenditures made in preparation, less any loss
is separetly expressed.
3.
No consideration yet.
7.
Temporary Impracticability or Frustration
that the party in breach can prove with reasonable certainty that the
Reasons for Consideration to Fail
a.
Temporary impracticability or frustration does not discharged duty
injured party would have suffered anyway with the contract.
i.
Gift
to perform. .
c.
Restitution Damages: 373
DIFFERENT/CONFLICTI
ii.
Illusory Promise
b.
i.
Party gets back value of what he gave to someone else.
NG TERMS:
iii.
Past Performance
ii.
Injured party get the larger of the market value of services or extent
Different (conflicting)
1.
Exception: 86 (unjust enrichment.)
to which partys property has increased in value.
terms are knocked out
Enforceable?
1.
Breaching party gets the lower of the two.
Substantial
Injured Party must
and replaced by UCC
Statute of Frauds: Did it have to be in writing?
d.
Foreseeability 351
Performance
perform
Article 2 gap-fillers.
i.
Marriage
i.
Damages are not recoverable for loss that the party in breach did
ii.
One Year
not have reason to foresee as a probably result of the breach.
iii.
Land Contracts
ii.
Loss is foreseeable when:
iv.
Estates
1.
In the ordinary course of events, or
Injured party's duty
Full Performance
v.
Goods $500+
2.
As a result of special circumstances that the party in breach had
to perform is
If No
Material
discharged! Under
vi.
Surety
reason to know.
Breach
by
Injured party's
225(2)
Does it satisfy the writing requirement?
e.
Duty to Mitigate: 350
nonCurable?
If cured in time
performance
Supervening
If it has NOT
i.
Essential Terms
i.
Damages are not recoverable for loss the injured party could have performing
Injury party can
becomes due.
Impracticability
been
If it has
1.
Sufficient that the writing documents and offer from the Has duty to
avoided
withoutbeen
undue risk, burden, or humiliation.
suspend
party
If yes...
discharged,
then from recovery to the extent that he
party to be charged.Breach by nonii. discharged,
Injured party is not precluded
performance 225
Contract?
perform been
performance?
then you can
is nobut unsuccessful efforts to avoid damages.
Injured party's
ii.
Signed by party to be charged.
has there
made reasonable
(1)
Frustration of
discharged?
If not cured in
continue on to
breach.
performance is
Substitutes for writing requirement:
Purpose
time
dismissed.
the next chart.
i.
Part/Full Performance
ii.
Reliance
Conditional and

If no, was there


repudiation?

Was the breaching


party's performance
due?

Repudiation
requirements:
1. Will commit and
not cure a material
breach.
2. Voluntarily unable
to perform without
uncured material
breach.
3. Failure to provide
assurance

Non-Occurrence
of condition

Yes

No

Damages for total


breach, exception
243(3)
No breach, no
repudiation, no
wrong

Yes

If yes, was the


breach by nonperformance
(performance not
rendered exactl)

Material?

Accompanying or
subsequent
repudiation?

Non-Material?

Damages for partial


breach

Is the provision in
prior agreement
discharged by the
WRITTEN
AGREEMENT?

Integration
Requirements:
Damages for
Total
Do prior terms
- Writing?
Breach,
contradict the
-Finalexception
expression (of some
243(3)
writing?
or
all of the agreement)?
- Agreement
If not
curable, is
itBinding? Damages for
becomes
incurable

If No, is it
curable?

total breach,
exceptin 243(3)

If yes, damages
for partial breach
If curable, was it
cured in time?

if no, damages
for total breach
but exception
243(3)

If No

Complete
Integration?
216: Was it
naturally
omitted?
Was it agreed for
separate
consideration?

If complete..

If not
complete...

If Yes

Complete
integration
-Discharged if
"within scope"
of contract

If repudiated...

What if
they had
said there
was an
express
condition?

Partial
integration and
not discharged

Prior term
discharged
Express
condition:

Duty to
Pay?

Contract
imposes
duty to pay
on owner

Was it
discharged
?

Under 225(2)
duty is
discharged if
duty was
conditional
and condition
can no longer
occur

Implied
condition:
Substantial
performanc
e by
breaching
party.

Injured party's duty to


perform is discharged Section
253

You would
then ask if
the
express
condition
can still be
met.

if it can't,
then....

If it can,
then...
Court says
that there are
no express
conditions

Since there was


substantial
performance (+),
the condition
occured and the
duty to pay was
not discharged.