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Promise and Contractual Promise

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					                                                         CHAPTER 11 (Consideration)
CONSIDERATION
                                                                NO CONSIDERATION
contract under seal                                             NO legal value
                                                                NO bargained-for-exchange (gift promise/gratuitous promise)

                                                                ONLY NOMINAL(insufficient) consideration ("shock the conscience of the court")
adequacy of consideration NOT questioned (SOME STATES)          SOME STATES




promissory estoppel                                             NO reasonable expectation to induce reliance
                                                                NO actual reliance
                                                                NO justifiable reliance
                                                                NO injustice


                                                                past consideration
                                                                illegal consideration
                                                                ONLY a gift/gratuitous promise
unforeseen difficulties (contract modified)                     pre-existing duty
                                                                illusory promise
legal consideration given                                       option-to-cancel clause -- ONLY ILLUSORY PROMISE
best efforts is sufficient imposition                           best efforts contract -- ONLY ILLUSORY PROMISE
good faith obligation/ objective limitation                     output/requirements contract -- ONLY ILLUSORY PROMISE


                                                                ONLY a moral obligation
enforceable (SOME STATES)


NO satisfaction                                                 accord
public policy ?????
                                                                covenant not to sue ?????
                                                          PRIMA FACIE CASE


                       OFFER                     (Ch10)


    objective theory of contracts
                                                                     NO serious, objective intention
                                                                             ONLY preliminary negotiations
                                                                             ONLY expression of opinion
                                                                             ONLY undue excitement
                                                                             only advertisement
    advertising language sufficiently definite


                                                                     NO definiteness
                                                                             NO identification of the parties
                                                                             NO identification of the subject matter
                                                                             NO identification of the consideration
    implied terms (modern view: Restatement (Second) of Contracts)


                                                                             no market/source to determine price
                                                                             parties/subject matter CANNOT be implied
                                                                             subject matter unique/personal


                                                                     NO communication
                                                                             offer NOT communicated
                                                                             reward NOT communicated


                                                                     TERMINATION of offer
    revocation NOT received                                                  revocation
    NOT communicated by same means
    acceptance before revocation
    irrevocable offer -- option contract                                     option expired
    irrevocable offer -- "firm offer"
    irrevocable offer -- promissory estoppel                                 NO promise made
    (doctrine of detrimental reliance)                                       NO reasonable expectation of reliance, etc.
                                                                             NO actual reliance
                                                                             NO injustice if promise NOT enforced


    rejection NOT received                                                   rejection/counteroffer
    acceptance before rejection


                                                                             lapse of time
    not reasonable time yet                                                  supervening illegality
    acceptance before illegality                                             subject matter destroyed
    acceptance BEFORE destruction
    fault of offeror/offeree                                                 death/incompetency of offeror/offeree
                                                                             personal service option contract ?????




f2a6fe50-7a8d-4979-bd1e-3e51472fb0f0.xls                                                                                   7/27/2011
                                                CHAPTER 10 (Acceptance)
                           ACCEPTANCE
                                                        NO ACCEPTANCE--unilateral contract


promissory estoppel                                     NO ACTUAL ACCEPTANCE
                                                        No promise was made
                                                        No reasonable expectation of reliance
                                                        No actual reliance
                                                        No injustice if promise not enforced


implied-in-fact contract                                No property or services provided to D
                                                        P did not expect to be paid
                                                        No opportunity to reject


implied-in-law contract                                 No benefit to D
                                                        D did not retain benefit
                                                        No injustice if D does not pay


                                                        NO acceptance -- COUNTEROFFER


                                                        NO acceptance--not accepted by offeree/third-party acceptance
                                                        NO acceptance--offeree has no legal power to accept
                                                        NO acceptance--not jointly accepted
                                                        NO acceptance--NOT RECEIVED
mailbox rule (acceptance-upon-dispatch-rule)            NOT properly dispatched (Restatement @66)


acceptance timely sent AND received( @67)


                                                        NO acceptance -- equivocal acceptance (mirror image rule)
ONLY grumbling…
                                                        NO acceptance -- silence is NOT acceptance
duty to speak
offeree indicated silence is acceptable
offeree agreed to continuing deliveries
prior dealings between the parties                      notification ?????
offeree takes benefit provided by the offeror           No opportunity to reject
                                                        No expectation of compensation
offer was solicited


implied authorization -- Restatement @30                NO ACCEPTANCE--NOT authorized mode of communication
                                                        NOT a reasonable means under the circumstances
                                                        NO similar, customary transactions
                                                         CHAPTER 11 (Consideration)
CONSIDERATION
                                                                NO CONSIDERATION
contract under seal                                             NO legal value
                                                                NO bargained-for-exchange (gift promise/gratuitous promise)

                                                                ONLY NOMINAL(insufficient) consideration ("shock the conscience of the court")
adequacy of consideration NOT questioned (SOME STATES)          SOME STATES




promissory estoppel                                             NO reasonable expectation to induce reliance
                                                                NO actual reliance
                                                                NO justifiable reliance
                                                                NO injustice


                                                                NO consideration --past consideration
                                                                NO consideration -- illegal consideration
                                                                NO consideration -- ONLY a gift/gratuitous promise
unforeseen difficulties (contract modified)                     NO consideration -- pre-existing duty
                                                                NO consideration -- illusory promise
legal consideration given                                       option-to-cancel clause -- ONLY ILLUSORY PROMISE
best efforts is sufficient imposition                           best efforts contract -- ONLY ILLUSORY PROMISE
good faith obligation/ objective limitation                     output/requirements contract -- ONLY ILLUSORY PROMISE


                                                                NO consideration -- ONLY a moral obligation
enforceable (SOME STATES)


NO satisfaction                                                 accord
public policy ?????
                                                                covenant not to sue ?????
                                                              CHAPTER 15-16 (Breach)
                                BREACH


                                                                       NO breach -- performance was tendered
                                                                       NO breach -- performance NOT due
                                                                       NO breach -- condition precedent has or has NOT occurred
                                                                       NO breach -- condition subsequent has or has NOT occurred
                                                                       NOT satisfied -- subjective (personal satisfaction) test
performance NOT involving personal taste /comfort (objective test)


rejection NOT in good faith


                                                                       NO breach -- Performance Discharged (by Agreement)
                                                                       mutual rescission
                                                                       substituted contract
                                                                       novation
third party DID NOT agree                                              accord and satisfaction
NO satisfaction
                                                                       NO breach -- Performance Discharged (by Excuse)
                                                                       impossibility of performance (objective impossibility)
                                                                       death/incapacity of promissor
NOT personal service contract                                          destruction of subject matter
NOT prior to performance                                               supervening illegality
illegality is AFTER contract is performed


                                                                       force majeure clause
NOT an impracticability state                                          commercial impracticability
event NOT unforeseeable                                                frustration of purpose
object of contract NOT made worthless
NO knowledge of purpose
event NOT unforeseeable


                                                                       NO breach -- Performance Discharged (by Operation of Law)
                                                                       statute of limitations
                                                                       bankruptcy
NOT a material alteration                                              alteration of contract


                                                                       complete (strict) performance
inferior performance -- material breach                                substantial performance
                                                                       performance NOT due
implied anticipatory breach
                                                               AFFIRMATIVE DEFENSES
                                                                     (Capacity & Illegality)
                                                                               DISAFFIRMANCE--lack of capacity (infancy doctrine)
NOT reasonable time after majority
emancipation
misrepresentation of age (some states)
necessaries of life
ratification                                                                   disaffirm ratification (still a minor)
special contracts

    (insurance, medical care, financial transactions, etc.)
                                                                               DISAFFIRMANCE--lack of capacity (insanity))
mere weakness of intellect
NOT adjudged insane
necessaries of life (quasi contract)
lucid interval
NO knowledge of insanity

                                                                               DISAFFIRMANCE--lack of capacity (intoxication))
NOT incapable (capable) of comprehending nature (majority rule)

intoxication was self-induced                                                  still voidable (most states)
                                                                               forced to become intoxicated (some states)
                                                                               unknowingly became intoxicated (some states)
ratification after sobriety
necessaries of life (quasi contract)
                                                                               DISAFFIRMANCE--illegality

justifiably ignorant of law
fraud, duress, undue influence
withdrawal before performance
less at fault than other party (some states)
                                                                               DISFFIRMANCE--contract constitutes usury
financial institution
exceeds statutory amount
loan is to a business
                                                                               DISAFFIRMANCE--gambling
state statutes
under certain amount
…conducted by religious organization
…racing
                                                                               DISAFFIRMANCE--Sabbath laws
necessaries of life
charitable donations
                                                                               committing a crime
                                                                               licensing statutes
revenue raising NOT regulatory
                                                                               DISAFFIRMANCE--contrary to public policy
                                                                               immoral contract
                                                                               exculpatory clause
willful conduct, intentional torts, recklessness, gross negligence

equal bargaining power
covenant not to compete                                                        unreasonable line of business, geography, duration
                                                                               void as against public policy -- NOT ancillary to a legitimate business
                                                                               transactions
                                                                               DISAFFIRMANCE--unconscionable/adhesion contract
NO unequal bargaining power
NO use of power to oppress
reasonable alternatives available
                                                     CHAPTER 13 (Genuiness of Assent)
(unilateral) mistake                                                NO GENUINENESS OF ASSENT--mistake (mutual)
NOT mistake of a material fact
ONLY a mutual mistake of value


                                                                    NO GENUINENESS OF ASSENT--fraudulent misrepresentation
                                                                                                    (void/voidable)
silence is NOT misrepresentation (generally)
                                                                    nondisclosure would cause bodily harm
                                                                    fiduciary relationship
                                                                    statutes require disclosure
                                                                    nondisclosure constitues failure to act in good faith (Restatement)
misrepresentation of law
                                                                    plaintiff is a professional
NO intention to misrepresent


innocent misrepresentation


partial performance exception                                       NO GENUINENESS OF ASSENT--contract violates statute of frauds
main purpose rule (exception)
customized goods
business NOT considered important to public policy
promissory estoppel
                                                                    NO GENUINENESS OF ASSENT--misrepresentation
innocent misrepresentation
silence is NOT misrepresentation


                                                                    nondisclosure would cause death/bodily injury
                                                                    fiduciary relationship
                                                                    statutes require disclosure
                                                                    constitutes failure to act in good faith (Restatement)


misrepresentation of law                                            plaintiff is a professional


NO intent to misrepresent


D had alternative                                                   NO GENUINESS OF ASSENT--duress
ONLY threat to bring civil suit
                                                                    lawsuit was frivolous
                                                                    lawsuit brought in bad faith



NO fiduciary or confidential relationship                           NO GENUINENESS OF ASSENT--undue influence
dominant party did NOT use influence
                                                        CHAPTER 14 Statute of Frauds

ONLY contract to construct/insure real property                      statute of frauds
ONLY implied (NOT express) easement
part-performance exception
main-purpose (leading object) exception                              main purpose is NOT pecuniary benefit to guarantor
executed NOT executory (one-year rule)
                                                                     guarantor is NOT primary benefactor
promissory estoppel
                                                                     promise did NOT induce forbearance
                                                                     reliance was NOT foreseeable
                                                                     NO injustice by NOT enforcing oral promise

evidence shows contract is void or voidable                          parol evidence rule--NO statements to alter contract
evidence explains ambiguous language
evidence concerns a prior course of dealing
evidence concerns a prior course of performance
evidence concerns a usage of the trade
evidence fills in the gaps in the contract
evidence corrects an obvious clerical error
evidence introduced to prove fraud, misrepresentation
evidence introduced to prove duress, etc.

                                                                     equal dignity rule -- contract must be in writing and is NOT
                                                    CHAPTER 15 (Third-Party Rights)
assignment of rights                                               NO PRIVITY
                                                                   contract involves personal service
                                                                   contract involves future rights
                                                                   contract involves materially altered risks

                                                                   good faith NOT specified by contract



                                                                   contract assigns legal rights
                                                                   against public policy



assigned legal right is breach of contract
                                                                   DEFENSES AGAINST OBLIGEE

CONTRACT PROHIBITION: waiver clause, exclusion clause              failure to notify obligor of assignment



                                                                   assignment NOT in good faith
                                                                   assignment NOT for value
                                                                   assignment NOT w/o notice

                                                                   CONSUMER CONTRACT

                                                                   denial of assignment: anti-assignment clause
                                                                   anti-delegation clause
denial is NOT in good faith                                        delegation -- personal service contract
                                                                   delegation -- performance would materially vary
presumption of validiy PLUS ambiguous language
                                                                   delegation is declaration of duties NOT assumption of duties


                                                                   assignment was revoked
assignment was irrevocable

                                                                   oral assignment

beneficiary (creditor/donee)                                       incidental beneficiary
                                                        CHAPTER 14 Statute of Frauds

ONLY contract to construct/insure real property                         statute of frauds
ONLY implied (NOT express) easement
part-performance exception
main-purpose (leading object) exception                                 main purpose is NOT pecuniary benefit to guarantor
executed NOT executory (one-year rule)
                                                                        guarantor is NOT primary benefactor
promissory estoppel
                                                                        promise did NOT induce forbearance
                                                                        reliance was NOT foreseeable
                                                                        NO injustice by NOT enforcing oral promise

evidence shows contract is void or voidable                             parol evidence rule--NO statements to alter contract
evidence explains ambiguous language
evidence concerns a prior course of dealing
evidence concerns a prior course of performance
evidence concerns a usage of the trade
evidence fills in the gaps in the contract
evidence corrects an obvious clerical error
evidence introduced to prove fraud, misrepresentation
evidence introduced to prove duress, etc.

                                                                        equal dignity rule -- contract must be in writing and is NOT



                                                        CHAPTER 15 (Third-Party Rights)
assignment of rights                                                 NO privity
                                                                     contract involves personal service
                                                                     contract involves future rights
                                                                     contract involves materially altered risks
                                                                     contract assigns legal rights

assigned legal right is breach of contract
                                                                        failure to notify obligor of assignment
                                                                        anti-assignment clause
                                                                        anti-delegation clause
                                                                        delegation -- personal service contract
                                                                        delegation -- performance would materially vary

                                                                        delegation is declaration of duties NOT assumption of duties


(donee/creditor) beneficiary                                            incidental beneficiary

                                                                   REMEDIES
compensatory damages                                                  NO mitigation of damages
consequential damages                                                 NO reason to know of special damages
                                                                      damages NOT foreseeable
rescission & restitution                                              NO material breach, fraud, mistake, duress, or …
                                                                      plaintiff has NOT made restitution
                                                                      goods/property has been consumed
cash equivalent
                                                                        inadequate notice of rescission

quasi-contractual recovery                                              NO unjust enrichment
                                                                        NO irreparable injury
injunction/specific performance                                         legal remedy IS adequate
                                                                        goods NOT unique
                                                                        NO irreparable injury
liquidated damages                                                      tantamount to (excessive) penalty damages
                                                                        actual damages NOT difficult to determine
punitive damages                                                        generally NOT recoverable in contracts cases
reformation
nominal
                                                        CHAPTER 14 Statute of Frauds

ONLY contract to construct/insure real property                       statute of frauds
ONLY implied (NOT express) easement
part-performance exception (land)
main-purpose (leading object) exception (guaranty)                    main purpose is NOT pecuniary benefit to guarantor
executed NOT executory (one-year rule)
                                                                      guarantor is NOT primary benefactor
promissory estoppel
                                                                      promise did NOT induce forbearance
                                                                      reliance was NOT foreseeable
                                                                      NO injustice by NOT enforcing oral promise

evidence shows contract is void or voidable                           parol evidence rule--NO statements to alter contract
evidence explains ambiguous language
evidence concerns a prior course of dealing
evidence concerns a prior course of performance
evidence concerns a usage of the trade
evidence fills in the gaps in the contract
evidence corrects an obvious clerical error
evidence introduced to prove fraud, misrepresentation
evidence introduced to prove duress, etc.

                                                                      equal dignity rule -- contract must be in writing and is NOT


                                                        CHAPTER 15 (Third-Party Rights)
assignment of rights                                               NO privity
                                                                   contract involves personal service
                                                                   contract involves future rights
                                                                   contract involves materially altered risks
                                                                   contract assigns legal rights

assigned legal right is breach of contract
                                                                      failure to notify obligor of assignment
                                                                      anti-assignment clause
                                                                      anti-delegation clause
                                                                      delegation -- personal service contract
                                                                      delegation -- performance would materially vary
                                                                      delegation is declaration of duties NOT assumption of duties

(donee/creditor) beneficiary                                          incidental beneficiary

                                                                   REMEDIES
compensatory damages                                                  NO mitigation of damages
consequential damages                                                 NO reason to know of special damages
                                                                      damages NOT foreseeable
rescission & restitution                                              NO material breach, fraud, mistake, duress, or …
                                                                      plaintiff has NOT made restitution
                                                                      goods/property has been consumed
cash equivalent
                                                                      inadequate notice of rescission

quasi-contractual recovery                                            NO unjust enrichment
                                                                      NO irreparable injury
injunction/specific performance                                       legal remedy IS adequate
                                                                      goods NOT unique
                                                                      NO irreparable injury
liquidated damages                                                    tantamount to (excessive) penalty damages
                                                                      actual damages NOT difficult to determine
punitive damages                                                      generally NOT recoverable in contracts cases
reformation
nominal




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