1. Manor of Acceptance a. What type of offer and what type of acceptance? i. Does it ask for a promise or performance? b. Did the offeree know of the offer? c. Is it an offer or a solicitation of bids? d. Is it a quote? e. Does the offer call for a promise of performance or neither? f. Is there mutual assent prior to a written agreement i. Is there a letter of intent ii. Do the parties intend to be bound by the letter? 2. Silence as acceptance (Rest. §69) a. Does the offeree receive some benefit? b. Is there prior conduct that shows this? c. Does the offeree take dominion? 3. Notice a. Did the contract state a time? i. If not, was it accepted in a reasonable time? b. Did the seller have reasonable notice to know of the acceptance? 4. Warranties a. Was there a promise or fact made by the seller? b. Implied warranty of marketability? c. Was there a floor model? d. Description of the goods’ i. Did seller know what it was to be used for? 5. UCC 2-207 & Battle of the Forms a. Is it a sale of good case? b. Are they both merchants? c. Does the acceptance state different or additional terms? i. If additional do they 1. limits acceptance to the terms of the offer? 2. alter the contract? 3. is there an objection to the terms? ii. Is there an expressly conditional clause? iii. Are they different terms? 1. Are the terms so divergent that there is no contract? 6. Consideration a. Was there a detriment and benefit exchanged? b. Was there a bargain for exchange? i. Was the forbearance a legal right? ii. Was the bargain for past performance? c. Are the promises binding (i.e. not illusory)? i. Does the promisor have the right to change his mind or stop at his discretion? d. Was a requirement contract in good faith? e. Is there a promise of something already done, has to do, forebear from something he cannot do, etc.?
f. Is there a modification? 7. Statute of Frauds a. Is it for the sale of land, good over 500$ or over 1 year? i. Is for an interest in land not crops? 1. Was there performance by the vendor? 2. Was there significant reliance by the vendee? ii. Was it for sale of goods over 500$? 1. Were the goods specially made? 2. Were they accepted? 3. Was there multiple contracts that the parties intended to be over 500? iii. Was the contract for over 1 year? 1. Does it contain a date in contract? 2. Is it unable to be performed in under a year? a. Is there a fixed term? 3. Are there multiple options given? 4. Was the contract discharged? b. Was the contract admitted to in court? c. Was there detrimental reliance? d. Was it a CISG contract? 8. Parol Evidence (common law, UCC, CISG) a. Is the written agreement meant to fully integrated i. Is it total pr partial? 1. If partial what type of term (additional or contradicting)? b. Is there a no oral-modification clause? i. Was it waived by performance? c. UCC – Parol Evidence i. Same as above ii. Is the writing a complete and conclusive statement? 1. If a complete agreement would terms, if certainly agreed upon, be included? iii. Can the terms be supplemented by additional terms? d. Exceptions i. Was the contract made under fraud duress, lack of consideration, etc.? ii. Is there a condition ( performance or event)? iii. Is there a collateral agreement? iv. Is there subsequent agreements?