Revised Contract Comprehensive Essay Outline a. What law are we using? i. UCC sale of goods over $500 ii.

. Common Law all other transactions iii. CISG when one or more parties is not from the U.S. 1. Unless parties have in their contract to agree or not agree to another set of laws b. K formation Was there a K? i. Mutual Assent were the material terms agreed upon & do circumstances suggest that agreement was serious? 1. Unilateral or Bilateral offer? a. Unilateral i. Performance = acceptance & consideration ii. Obligation formed when promise completely performs b. Bilateral i. Offer = both parties do something in the future & if either party fails do complete promise, then they can sue to have K enforced. 2. Offer a. Define: A manifestation of willingness to enter into a bargain b. Was offer revoked prior to acceptance? i. Can only revoke prior to acceptance c. Is there an option K? i. Define: separate offer to hold a K open for a specified period of time 1. UCC Firm offer a. Consideration is not needed to make an offer irrevocable for the time stated, or for a reasonable period if no expiry date is specified, if: i. Offer to buy or sell goods made by a merchant ii. Offer is a signed writing iii. Offer gives assurance to offeree that offer will be held open & If assurance is on a form supplied by the offeree, the offeror must sign the assurance separately.

b. Firm offers are irrevocable for a maximum of 3 months. An offer can be irrevocable for longer than 3 months if supported by consideration. 2. CL time period?? ii. UCC only need to find offer & acceptance, consideration can be same as for original K iii. CL - Must analyze separate offer, acceptance, consideration iv. Does PE apply? v. Was it a Unilateral K? vi. If yes to any of 3 above, then offer not revocable d. If not revoked & no option K, then move on to acceptance. 3. Acceptance a. Define: Must be unequivocal & unqualified b. Can be i. Accepted 1. Once offer made by offeror power of acceptance falls to offeree 2. UCC: must accept within 10 days 3. Death: Power of acceptance terminated upon death ii. Rejected 1. Must be clear & must be communicated to the offeror iii. Counter offer 1. Qualified acceptance = counter offer 2. Counteroffer reject original offer and take it off the table. c. Was there a Battle of the Forms? i. Define: Battle of the forms occurs when there are two manifestations of a K, either written or oral that differs. Must determine what parties intended contract to be. One muse be in writing. Usually: buyers standard purchase order & sellers standard invoice ii. Common Law 1. Mirror image rule a. If acknowledgement differs from original K, then it is a counteroffer & there is no K 2. Last shot rule

a. After counteroffer, if parties perform without further communication = implied acceptance of the counteroffer, whether or not Buyer read Sellers terms. b. Contract created on Sellers terms because Seller was the last shot. iii. UCC 2-207 1. If an acceptance with additional/different terms, and those terms were NOT expressly assented to: a. Different terms are knocked out 2. If both parties are merchants, additional terms become part of the contract unless: a. Offer was expressly limited to offers terms; or b. Terms materially alter the contract; or c. Notice of objection to the terms is given iv. Review UCC 2-207 flow chart ii. Consideration 1. Define: A bargained for exchange & a promise that induces a detriment & the detriment induces the promise a. Bargained for: The Promisor makes the promise with the intention and desire for the detriment. b. Not bargained for: Promisor makes promise without caring about detriment. 2. Ex of detriment = giving up a legal right iii. If no Offer Acceptance or Consideration must analyze to see if we can enforce K under: 1. Promissory Estoppel a. Promise b. Promisor had reason to expect reliance on the promise c. Promise must have induced reasonable reliance d. Injustice can be avoided only by enforcement of the promise 2. Promissory Restitution = recovery/enforcement of a promise = material benefit rule a. Define: If a person receives a material benefit from another, a subsequent promise to pay for the benefit is enforceable to the extent necessary to prevent injustice i. Retaining benefit without payment must be unjust 1. Subsequent promise alone not enough ii. Not enforceable if benefit conferred as a gift, but presume it is NOT a gift b. Exceptions

i. Debt barred by statute of limitations ii. Debt discharged by bankruptcy iii. Debt is voidable (fraud, mistake, minority) 3. Unjust Enrichment a. Definition: Recipient enriched at the expense of the claimant, and this enrichment is unjust. b. Elements: i. 1) (Measurable) Benefit conferred on recipient ii. 2) Recipient had knowledge of the benefit 3) Acceptance/retention of benefit was unjust 1. Not gratuitous a. Claimant intended to charge for it b. Reasonable expectation of payment c. Under theory of unjust enrichment, the court implies a contract in law, in order to give the remedy of restitution iv. Was there an agreement to agree? 1. Parties have reached agreement on a number of issues but left other open? a. Not binding agreement at all b. Binding agreement and execution of final document just a formality c. Only an agreement to negotiate remaining terms in good faith 2. All depends on intent of the parties! a. Can be binding if they intend to be bound. 3. UCC a. An open price term will not prevent enforcement of a contract for sale, if the parties intended to be bound by their agreement b. there is no such thing as an agreement to agree under the UCC. If the parties have not intended to form a contract, then there is no contract or the parties may merely have intended an agreement to agree. 4. CL a. Whether a contract is formed in cases of an agreement to agree depends on whether the parties intended to be bound when they agreed in principle or only after further negotiations prove successful. v. Arguments from both sides about K formation

vi. Conclusion c. Does K comply with the SOF? i. Contracts that must be in writing: 1. UCC a. K for sale of goods over $500 2. CL RT a. 1) Contracts that cannot be performed in one year i. Possibility of performance in one year ii. Possibility of termination in one year iii. Lifetime contracts: Death can occur at any time b. 2) Contracts involving real estate Transfer of interest not just Buy (RT 125) c. 3) Contracts to answer for debt of another (surety or guaranty) d. Administratrix???? 3. CISG a. No writing required = No SOF b. Contract can be proved by witnesses ii. Writing requires 1. UCC a. evidences a contract for the sale of goods; i. Minimal requirement ii. Not all material terms needed, i.e., price can be omitted iii. Material terms dont need to be accurately stated b. signed by the party to be charged (Any symbol meant to authenticate a writing) c. specifies a quantity d. Writing sufficient for 2-201(1) may not be clear enough to show terms of contract! 2. CL a. One writing i. Signed by or on behalf of party to be charged (against whom enforcement is sought) 1. Any symbol made with intention to authenticate a document ii. Identifies parties to contract

iii. Identifies subject matter/nature of exchange iv. Sets out all essential terms b. OR several writings i. One writing must be signed ii. Circumstances must indicate relate to same transaction iii. Depending on Jx, some courts may require that the writings expressly refer to one and other iii. If yes, then can enforce K move on to interpretation iv. If non compliance with SOF: 1. Exceptions if meets one of these, doesnt need to satisfy SOF & can enforce a. UCC i. Merchant confirmation exception 1. Oral K enforceable if party receives written confirmation and fails to object in 10 days 2. Oral K enforceable against Recipient even though she did not sign any writing. b. Common Law i. Partial performance exception in land contracts 1. To enforce oral land K must show: a. Party has possession of the property, AND b. Party made substantial/valuable improvements to the property ii. Equitable Estoppel Exception 1. Reliance on misrepresentation that SOF has been met 2. dont worry about it, the K is already in writing iii. Promissory Estoppel Exception 1. Reliance on promise to put the agreement in writing a. I promise to put this agreement in writing and Ill send it tomorrow 2. RT 139(1): Must show all elements of PE (Same as RT 90) 3. RT 139(2): specific injustice factors (Same considerations in RT 90) 4. RT 139(2)(c): whether actions corroborate promise was made, or promise is otherwise established by clear and convincing evidence 2. Other options for K enforcement: a. Promissory Estoppel

b. Promissory Restitution c. Unjust enrichment d. If K formed & enforceable, what does K mean? i. Rules of Interpretation 1. Vague & Ambiguous terms a. Vague: Term is obscure or stated too generally b. Ambiguous: Term is capable of more than one meaning 2. Indefinite terms: Subjective Theory a. Definition: if inconsistencies, if no agreement, no contract 3. Indefinite Terms: Objective Theory a. Definition: Words and conduct interpreted in accordance with reasonable person standard. Subjective intent of parties totally irrelevant. 4. RT: Modified Objective Approach a. subjective intent If both parties have same meaning, we use it. b. objective intent If each party has different meaning i. If one knew, or shouldve known the others meaning she will be bound by the others meaning ii. If neither one knew, nor shouldve known the others meaning, there is no K b/c no mutual assent (Rare) 5. RT Rules of Interpretation a. Plain meaning of words used b. Evidence of Context i. Conduct during negotiation ii. Course of Performance: Conduct during performance of contract after it was formed iii. Course of Dealing: Conduct in prior comparable transactions with same party iv. Trade Usage: Customs and usages of the relevant market ii. Can we use parol evidence to interpret K? 1. UCC/CL use parol evidence rule 2. CISG a. No parol evidence rule. Court can give due consideration to all relevant circumstances, practices and conduct.

3. Is the writing integrated? a. Two approaches i. Four corners approach 1. Only looks at 4 corners of document to determine whether it is integrated ii. Contextual approach 1. Considers all evidence in order to determine if the writing was integrated 2. More likely to find that writing is not integrated 4. Completely or partially integrated? 5. Purpose? a. If completely integrated parol evidence: i. cannot be used to supplement ii. cannot be used to contradict iii. sometimes can be used to explain terms b. If partially integrated, parol evidence: i. Can be used to supplement ii. Cannot be used to contradict iii. sometimes can be used to explain terms 6. Explain? a. Four corners i. Is term ambiguous on its face? 1. Yes parol evidence can interpret, not contradict 2. No parol evidence excluded b. Contextual i. First eliminate contradictory evidence & evidence that has no value ii. Is term reasonably susceptible to proffered interpretation? 1. Yes use parol evidence to interpret meaning 2. No exclude parol evidence 3. If term contradicts agreement exclude evidence 7. Exceptions a. General exceptions

Evidence of negotiations after written agreement Evidence showing there was no agreement or agreement invalid (i.e. Fraud) Evidence of collateral agreement Evidence offered to interpret language in the writing 1. But court might have to find the term ambiguous b. UCC/CL: exception for course of performance, course of dealing & trade usage i. Terms can be explained or supplemented by this kind of evidence even if writing is completely integrated ii. Express terms cannot be contradicted iii. Course of performance: Actions of the parties in carrying out the contract at issue 1. After K formed, what happened? iv. Course of dealing: Conduct between the parties prior to the contract at issue 1. During negotiations, what happened? v. Trade usage: Practice that is regular enough as to expect that it will be observed with respect to the contract at issue

i. ii. iii. iv.