Definitions/Key Questions

Would a reasonable person in a similar situation or in the position of the plaintiff think she was being empowered to create a contract via acceptance?

upon RECEIPT (RST 68)

within the stated time if there is one; if no stated time then a reasonable time determined by trade usage, circumstances, etc. IF THERE IS A DELAY IN THE OFFER getting to the offeree, usually the clock will start ticking from the time when the offeree would have normally received the offer.

Any time prior to acceptance.
EXCEPTIONS:
1. Option contract with consideration
2. Offeree relied ON THE EXPRESS OR IMPLIED PROMISE to his detriment if the reliance was foreseeable by the offeror
3. Offeree relied ON THE PROMISE ITSELF and the reliance was foreseeable by the offeror (RST 87(2))
4. Unilateral contract: Can't revoke once the offeree starts performance, preparation doesn't count as performance. (RST 45)
5. For goods: UCC 2-205 says it stays open for a reasonable time not to EXCEED THREE MONTHS if there was no consideration.

1. Death of the offeror(even without notice
2. Death of the offeree (unless it's an irrevocable offer like an option contract with consideration)
3. Offeree's rejection, which can't be undone once he has rejected
4. Offeree's counter-offer
5. Revocation of the offer
6. Expiration of the offer

Any means reasonable under the circumstances UNLESS otherwise indicated by language or circumstances. (UCC 2-206, RST 30).
IF the contract indicates acceptance by promise, there can still be acceptance if the offeree begins to perform AND the offeror knows about it and agrees to that manner of acdeptanct.

NO, unless it's indicated as OK by prior dealings, OR
if the offeror indicates assent may be given by silence or inaction (RST 69)

PER THE OFFER, or if the offer doesn't say then for goods can use any medium reasonable under the circumstances (UCC 2-206(1)(a)) or in non-goods contracts, the same way the offer was communicated or by any medicum "customary in similar transactions at the time and place the offer is received." (RST 65)

Yes, and if you accept but don't notify the offeror within a reasonable period of time it may not be valid and the offeror wouldn't be bound. (RST 54 and 56)

Starting performance is acceptance. No notice is required UNLESS the offeror specifies.
BUT
if the offeree knows that the offeror isn't going to know about the beginning of performance with reasonable promptness and certainty, the offeror's duties will be discharged.
EXCEPTIONS:
1. Offeree excercises reasonable diligence in notifying offeror.
2. Offeror learns of the acceptance in a reasonable time.
3. The offer indicates that notification is not necessary.
RST 54

UCC 2-206(2) Have to notify offeror in a reasonable time or the offer is considered to have lapsed.

Unless specified by the contract, offeree has to use due diligence to notify offeror of acceptance or ensure that the offeror seasonably receives the acceptance. RST 56

By whatever the offer says,
OR
WHEN SENT
Exceptions:
1. Option contract: when it's received by the offeror
2. Sent by improper means or it is improperly dispatched, then upon receipt.
3. If it's improperly dispatched but still arrives when it would have normally, then effective when sent.

Three options:
1. Counter offer
2. Can waive lateness & accept.
3. If it's sent in a reasonable time even after the offer has expired it's valid unless the offeror informs the offeree that it's too late.

Mirror image rule: anything that's not exactly like what was offered then makes it a counter offer. There may be a simultaneous suggestion of alternative terms, but they if the offeree accepts the terms of the contract then they are just suggestions that can become modifications.

2-207
Additioinal terms:
NON-MERCHANT INVOLVED:
If the offeree UNAMBIGUOSLY accepts but states additional terms, they are only considered as proposals.
BETWEEN MERCHANTS:
Additonal terms become part of the contract UNLESS:
1. The offer expressly limits acceptance to the terms of the offer.
2. The additonal terms materially alter the contract.
3. The additonal terms are rejected within a reasonable time.

Upon receipt.
If offeree both accepted and rejected, acceptance would be effective when sent and rejection not until received, so pay attention to that.
CAVEAT: Estoppel may operate to bar the enforcement of a contract where the offeree got the rejection BEFORE the acdetpance and acted in reliance on it.

Courts are divided over it.

If the purchaser is not aware, not valid.

Bargained for exchange, or a legal detriment (something you weren't required to do, or refraining from exercising a legal right)

No, a promise regarding a pre-existing obligation to the other party doesn't constitute a legal detriment.

Offeree chooses.

Yes, as long as the claim is valid or the party who is forebearing in good faith thinks it is.

A subsequent agreement with new consideration (i.e. paying early) to resolve unliquidated debt. If there is breach, the breached party can sue on the original agreement or the modified agreement.

Means the parties form a new contract, and if there is breach the breached party can only sue on the new contract. Usually has to do with changing the parties in a contract, i.e. someone takes over someone elses debt.

"if I feel like it" , the promise is in control of the promisor, so it's not consideration

Not sufficient.

1. Second party induced an expectation
2. First party relied on the expectation AND
3. First party would suffer detriment if the expectation wasn't met.

1. Cannot be performed within a year of the making of the cntract.
2. Promise to answer for the debt or default of another (surety)
3. Agreements made upon consideration of marriage.
4. Sale of land
5. Lease of real property longer than a year.
6. Agreement by purchaser of real property to pay an indebtness secured by a mortgage
7. Sale of goods $500 or more
8. Sale of personal property $5,000 or more
9. Leases of goods $1,000 or more
10. Assignment of contract rights.

The party against whom enforcement is sought.

Any mark or symbol the signer intends to authenticate a writing.
Can be written, printed, stamped, engraved.
Signatures can include initials, imprinted signatures, letterhead, company logos.

A complete integration is an expression of the parties' agreement in its entirety.
A partial integration is an expression of only a portion of the agreement.

It precludes evidence of prior or contemporaneous agreements to contradict or supplement the contract. Basically, nothing gets admitted.
HOWEVER, a consistent additional term will be permitted if it has to do with the course of dealing, course of performance or trade usage. UCC 2-202(1)

Prior written or oral agreements that are contradictory and contemporaneouas oral agreements are not permitted.

Contemporaneous writings; course of dealing, course of performance, or trade usage UCC 2-202, RST 214, 416

1. "four corners"
2. "collateral contract" concept, where all writings are deemed partial integrations.
3. Williston: Majority approach, "reasonable person" approach, says complete integration unless a reasonable person would make a separate agreement on the additonal terms.
4. Corbin: "intention of the parties" approach, allows all relevant evidence on the issue of intent. UCC 2-202

It establishes that the writing is intended to be the complete expression (complete integration) of the agreement between the parties. They will usually be enforced absent proof of fraud, mistake or other defense.

Look in class notes

If a writing appears unambiguous on its face, it must be interpreted solely on the basis of the writing. Most jurisdictions apply this.

"Reasonable person" approach, if the writing is not an integration and is unambiguous, the terms should be interpreted by an objective test: the interpretation of a reasonable person.
IF the writing is not an integration and is amibiguous, subjective intent of the parties is relevant.

"Reasonable expectations of the parties" approach, allows all relevant extrinsic evidence to assist in interpretation, including subjective intent of the parties. This is what UCC and RST use.

Pattern in the performance of a contract. UCC 2-208(1)

Sequence of previous conduct between the parties that establishes a common basis of understanding for interpreting their expressions and conduct. UCC 1-205.

A practice employed with regularity in a place, vocation or trade. 1-205(2)

As a whole.

Depending on the situation, they can be filled with course of performance, course of dealing, trade usage or "gap fillers" provided in the UCC

The meaning that prevails is that of the party who had no reason to know of the meaning attached by the other party, and the other party knew or had reason to know of the meaning attached by the first party. RST 201

A contract is not formed.

Ter terms that a reasonable person would anticipate and agree to. RST 211(3)

NO UCC 2-209(1)

YES, except:
1. "unforeseen difficulties" modificaton
2. if justice requires enforcement of the modification due to a material change of position in reliance on the modified promise. RST 89

look in notes

Promissory Estoppel

Protection for a party who relies to their detriment on the promise made by another, and protects from the injustice even if there is not an enforceable contract.

Intra-family, philanthropic, promises of a gift of land, promises made by a bailee, general contractors relying on sub-contractors bids, contract modifications where one party has materially changed position based on it, preliminary contract negotiations (Hoffman v Red Owl), extensive contract negotiations, indefinite contracts, letters of intent.

Minors, mental impairment, duress, undue influence, unilateral or mutual mistake (at the time the contract is made) and one that is not a mistake of judgement,

No, UCC 2-615, as long as the breaching party did not cause or assume the risk, and as long as the non-occurence of the event was a basic assumption on which the contract was made. RST 261

They are not if they didn't cause or assume the risk that triggered the impossiblity/impractacability, and as long as the non-occurance of an event was a basic assumption upon which the contract was made. RST 261.

His duties are discharged as long as he was not at fault, and the non-occurance of such event was a basic assumption on which the contract was made. RST 265

Judicially imposed conditons imposed in the interest of justice.

Do this out of my notes.

1) cancel
2) wait for the party to perform
3) sue

1. making a statement that he will breach the contract
2. engaging in voluntary affirmative action which renders him unable to perform the duty
3. failing to provide assurance when it's been asked for with good reason
RST 250, UCC 2-609

1. Bring action
2. Discharge remaining duties.
RST 253

No

Merger clause

Judge

1. Whether the parties intended an integration.
2. If they intended an integration, is it complete or partial.

It can't come in.

Consistent terms can come in.

Williston says use the objective reasonable man approach, Corbin says look at the actual intentions using prior negotiations, etc.

That eventually contracts will mean nothing.

No.

Partial

Yes

No, code is silent on ambiguity

2-202

Williston would say contemporaneous written can come in, but contemporaneous oral would be subject to parol evidence rule.
Corbin would say superseding agreements are the key, and so if contemporaneous means simultaneous it should be admitted. WILLISTON"S VIEW PREVAILED.

Specifically negate it in the agreement.

Make the parties initial it.

No, depends on the jurisdiction. Some say it is, some say it's not and those jurisdictions would allow in extrinsic evidence might be able to come in to explain or supplement the writing.

It's not stable or definite.

Who is the master of understanding?

Course of performance it top
Course of dealing comes next'
Usage of trade is last.

A condition is an event, not certain to occur, which must occur, unless its performance is excused before performance under a contract becomes due. RST 224
CAVEAT: the passage of time doesn't count, because its certain to occur

The duty to which the condition is attached will not be triggered, and the duty is suspended and eventually discharged. The buyer can waive the conditon.

Strict compliance.

A condition implied in law that a court says exists even if there is nothing in the language of the contract.

Substantial performance.

Excuse of non-occurence of a duty.

Yes, if it's before the time of the conditon unless there was reliance on it and then estoppel precludes retraction.

No, it becomes an election and can't be retracted even in the absence of reliance.

Because if you can show you were ready, willing and able to pay, then the other party has to perform or be in breach which means you have fulfilled your part of the constructive condition and you can place the other party in default. UCC 2-507, 2-511

No

Sue off the contract for restitution.

Sue on the contract for material breach. RST 241

Prevent forfeiture, which the law abhors.

What the intentions of the parties are, if there was a single consideration or consideration for each part, was performance divided into parts, if parties said entire performance was required.
RST 241: have to have corresponding pairs of performance and agreed equivalents

No

No, otherwise you possibly have unjust enrichment.

1. See if there is uncured breach. If so, proceed.
2. Then ask if there was an exchange of promises? If yes, proceed.
3. Was the perormance in question due at an earlier time than that of the aggrieved party? if so, proceed.
4. Was it a material breach?
IF NO: Aggrieved party must continue performance and treat it like a partial breach, which gives a right to damages but NOT to suspend or terminate.
IF YES: Aggrieved party can treat it as partial breach (continues performance) or as total breach (stops performance). BUT if circumstances are such that the aggrieved party can give the breaching party a chance to cure, he has to do that (time frames are in RST 242).

2-508

The court may not agree, and then the aggrieved party would then be in material breach and could be sued. i.e. stopping work on construction projects is perilous

UCC 2-610 an overt communication that or an action that renders performance impossible or demonstrates clear intention not to continue with performance. Performance doesn't have to be made literally impossible.

UCC 2-610 says
1. await performance or
2. resort to any remedy for breach AND
3. Suspend own performance.

YES

yes, 2-611 says it can be retracted if the other party hasn't cancelled or materially changed his position or otherwise indicated he considers the repudiation final.

No, you have to have reasonable grounds for insecurity.

2-609

1. Erroneous belief must be to facts as they existed at the time the contract was made
2. mistake must be MUTUAL
3. There has to be a material effect on the agreed exchange of performances.
4. Has to be on a basic assumption on which the contract was made.