A. Do we have a valid K? a. Promissory Estoppel b. SOF i. Does it fall w/in SOF? (1 year provision) 1. If Yes, does it comply? a. Does not comply (memorandum) no enforceable K. b. Does comply go to what are terms of K? 2. No and does not need to be in writing go to terms of K? c. Is the K void or voidable? i. Age ii. Mental Capacity iii. Undue Influence iv. Duress v. Fraud vi. Mistake vii. Misrepresentation viii. Non-Disclosure ix. Unconscionable x. Duty to Read d. If K not void or voidable go to (g) e. If K void end of story. f. If voidable, has K been ratified or voided? i. If voided end of story. ii. If ratified go to (g) g. What are terms of K? i. Parol Evidence ii. Interpretation h. Is there a condition precedent before the formation of the K? i. Yes has the CP occurred? 1. No no K. 2. Yes go to Step 1. B. Determining if you have to continue (or start) promised performance a. Step 1: is your promise w/in K subject to an express condition (can be implied in fact)? i. If yes and the condition has NOT occurred (or been met or complied with by the other party), do not have to perform and can stop performance. 1. No issue of “materiality” or “substantial performance” b/c K over. 2. Note: was there a waiver of condition or has the condition been excused? Is K divisible? Possible quasi-contractual recovery? Quantum Meruit? Relief from Forfeiture? Condition of Satisfaction? ii. If yes and the condition has occurred (been met or complied with by the other party) your promise is due and you must perform or be in breach.
iii. If no, then go to Step 2. b. Step 2: is your promise to perform an independent promise (no constructive conditions)? Promise not conditioned on anything absolute duty o 1st to perform. o Concurrent Conditions i. If yes, then you must perform or continue performance. 1. You may have an action for damages if the other party is in breach. ii. If no, you have a constructive condition, your promise is a dependent promise, and must go to Step 3. c. Step 3: was there a substantial performance of a constructive condition or an otherwise non-material breach? Factors of Materiality i. If yes, then you have a non-material breach and must perform as promised or continue performance. 1. Can sue the breaching party (a partial breach). ii. If no, then you have a material breach and you do not have to start performing and can suspend performance already started and go to Step 4. 1. Note: was there a waiver of condition or has the condition been excused? d. Step 4: Has the material breach been cured or not lasted beyond a Rx time? i. If yes, then not a total breach ending the K. You must still begin to perform or continue to perform. (Continued performance may be up to innocent party). ii. If no, then material breach is now a total breach and you can stop performance or do not have to start and can sue for total breach. 1. Note: was there a waiver of condition or has the condition been excused? Is K divisible? Possible quasi-contractual recovery? Quantum Meruit? Relief from Forfeiture? Condition of Satisfaction?