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What are the 2 elements of promissory estoppel under the SOF?
promise made that:
1) a writing will be produced or
2) a writing exists
What is the difference between a contract implied in fact and a contract implied in law?
Contract implied in fact- contract based upon parties' conduct and surrounding circumstances (unspoken agreement)

Contract implied in law- legal fiction providing remedy where party gave benefit and other party may be unjustly enriched
What are the 2 tests for acceptance of a unilateral contract?
1) begin performance
2) substantial performance
If an offer states place, time, or manner of acceptance, does it have to be complied with to form a valid contract?
What is a counter-offer?
an offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer
When a subcontractor makes a mistake in submitting a bid to a general contractor, can the subcontractor's bid be enforceable?
In a commercial context, who is burdened with proving acceptance?

Seller must prove it reasonably invited buyer's acceptance by making clear in terms and conditions:

1) by accepting product, buyer also accepted terms

2) buyer could reject by returning
What is an illusory promise?
a promise or apparent promise that by its terms allows the promisor a choice of alternative performances

(not valid unless each alternative is consideration or one alternative is consideration and the other alternatives will likely be eliminated before promisor makes choice)
Does performance of a legal duty constitute consideration?
What is the difference between a unilateral and bilateral contract?
A unilateral contract requires performance for acceptance, whereas a bilateral contract requires a promise for acceptance.

(if doubt whether bilateral or unilateral, offeree gets to choose)
When can an offer be accepted by silence?
1) when an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation

2) when the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer

3) when because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept
What is the difference between an ordinary and a general offer?
ordinary- offer made to specific person or group of people

general-  offer made to multitude
When can an ad be considered an offer?
when the ad is clear, definite, and unequivical, leaving nothing open to negotiation (contains clear description of terms:  subject matter, date, price, words of limitation as to quantity)
How can a general offer be revoked?
by a notice of termination that is given publicity by ad or other general notification equal to that given to the offer and no better means of notification is reasonably available
What is the difference between an option contract under common law and a firm offer under the UCC?
firm offer deals exclusively with merchants, option contract does not

option contract-  an offer in writing and signed by the offeror, that recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time

firm offer-  an offer in a signed writing, made by a merchant to buy or sell goods, which by its terms gives assurances that it will be held open.  It is not revocable for lack of consideration, during time stated, or if no time stated for a reasonable time, but in no event may such period exceed 3 months.
According to the UCC, who is a merchant?
a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or otehr intermediary who by his occupation holds himself out as having such knowledge or skill.
What are the 9 policy considerations?
1) economic efficiency
2) reasonable expectations, certainty
3) evidence
4) individual liberty
5) individual responsibility
6) sanctity of a promise
7) judicial administration and role of courts
8) paternalism, consumer protection
9) reliance
What are the 4 elements of promissory estoppel (to be used when there is no consideration)?
1) D made promise
2) D should have reasonably expected P to rely
3) P relied
4) Injustice (to P) can only be avoided by enforcing the contract
What are the 6 behavior defenses?
1) economic duress
2) undue influence
3) unconscionability
4) fraud, misrepresentation
5) mistake
6) public policy and illegality
What are the 3 status defenses?
1) intoxication
2) infancy
3) mental incapacity
What are the 2 tests for consideration?
classical- detriment to promisee and/or benefit to promisor (tests based on variations)

modern-  bargained for exchange (mutual inducement)
What are the 5 essential terms for a valid contract?
1) price
2) quantity
3) subject matter
4) identification of offeree
5) time frame for performance

(price is most important term under common law)

(UCC more lenient, but quantity essential)
What are the 2 types of contractual intent?
subjective- party's actual intent (mental assent)

objective- what a reasonable person in position of parties would have intended
What are the presumed remedies for each type of claim?
breach of contract- expectation damages

buyer in real estate- specific performance

promissory estoppel- reliance damages

unjust enrichment- restitution
What is restitution?
giving back to the harmed party the value of the benefit they conferred on the other party

(can be measured by reasonable value of the benefit or by P's detriment)
What are expectation damages?
damages that put the injured party in the position they would have been in had the contract been successfully performed
What are reliance damages?
damages that compensate for the harm a party suffered in reliance upon a promise (often includes opportunity costs and out-of-pocket costs)
What is an offer?
a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it
What are the 5 ways that an ordinary offer can terminate?
1) lapse after a reasonable time
2) revocation
3) death of the offeror
4) rejection
5) counter-offer
Under common law, what is the rule for agreements to agree?  (2 parts)
parties will not be bound if:

1) an essential term is indefinite (except price), and

2) contract does not indicate with reasonable certainty when and how valuation must occur
What are the 2 tests (UCC and common law) for agreements to negotiate in good faith?
parties are only required by law to act in good faith in the performance and execution of an existing contract

standard of good faith:

UCC- 1) honesty in fact (non-merchants), honesty in fact and the observance of reasonable commercial standards (merchants), or 2) honesty in fact and reasonableness (all parties)

common law- subjective good faith
What are the 2 tests (UCC and common law) for exclusive dealing arrangements?
common law- duty of reasonable efforts

UCC-  duty to use best efforts (some courts find this to be higher burden than common law)
What are the 4 elements for unjust enrichment without promise?
1) P conferred benefit on D, and
2) D had knowledge of benefit, and
3) D accepted or retained benefity, and
4) Inequitable for D to retain benefit
What are the 2 additional requirements for unjust enrichment when P has a contract with another for payment?
1) P must show P exhausted all remedies against party with whom P has a contract, and
2) D has not given consideration to anyone for benefit received
What are the 2 tests for unjust enrichment and medical emergency?
standard-  If P provides a benefit to D without D's knowledge or consent, P will be entitled to restitution if:

1) P acted unofficiously and with intent to charge, and
2) The benefit was necessary to prevent D from suffering serious bodily harm, and
3) P had no reason to know that D would not consent if competent, and
4) It was impossible for D to consent or due to youth or mental impairment, consent would be immaterial.

modified-  A person who performs, supplies or obtains professional services requested for the protection of another's life or health is entitled to restitution from the other as necessary to prevent unjust enrichment, if the circumstances justify the decision to intervene without request.
What are the 3 elements of promissory restitution?
1) promise
2) made by promisor in recognition of a benefit previously received by promisor
3) promise will be binding to prevent injustice
What are the 3 exceptions to promissory restitution?
1) benefit was conferred as gift, or
2) promisor not unjustly enriched, or
3) value of promise is disproportionate to benefity
What are the 8 questions asked in considering a formal contract contemplated?
1) Is agreement type usually in writing?
2) Does agreement contain many or few details?
3) Does agreement involve large or small amount of money?
4) Does agreement require a writing for full expression of promises and do negotiations indicate a formal written contract is necessary?
5) How far in negotiations were parties when abandoned?
6) What was the reason for abandoning the negotiations?
7) What was the extent of assurances given by the party who now disclaims a contract?
8) What was the degree of reliance by the other party on the anticipated contract? 

(did the parties intend to be presently bound or did they intend to not be bound until the final document was created and signed)
What are the 5 ways that the UCC is different than the common law?
1) modifications don't need consideration to be binding
2) firm offer instead of option offer
3) allows open price term (reasonable price)
4) SOF differences
5) implied duty of good faith differences
What is the UCC rule as to contract terms?
a contract for sale does not fail for indefiniteness if a term is missing as long as the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy
What is the mirror rule of acceptance?
An acceptance must mirror the terms of the offer or it will be construed as a counter-offer.  If the offer calls for acceptance by performance alone, acceptance will occur upon completion of performance.
What is the mailbox rule?
If acceptance by mail is either expressly authorized or reasonable, acceptance is effective upon dispatch, regardless of whether the acceptance ever reaches the offeror.  This is true even if an offeree mails a rejection after an acceptance and the rejection reaches the offeror before the acceptance.  If acceptance by mail is neither authorized by the offer nor reasonable, acceptance is effective upon receipt.
What is an option offer  (option contract) at common law?
Option offers limit the offeror's power to revoke.  In order to create a common law option, the offeror must put the offer in a writing, which must be signed by the offeror and state the offer will be held open for a definite period of time.  There must also exist consideration separate from the underlying contract.  This consideration can be nominal.
What is a firm offer at UCC?
an offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurances that it will be held open is not revocable, for lack of consideration, durign the time stated or if no time is stated for a reasonable time, but in no event may the period of irrevocability exceed 3 months
What is mutual assent?
an objective manifestation of assent

(used to assess contracts that don't breakdown neatly into offer and acceptance)
What is the rule for unjust enrichment and an emergency involving property?
A person who takes effective action to protect another's property from threatened harm is entitled to restitution from the other as necessary to prevent unjust enrichment, if the circumstances justify the decision to intervene without request. Unrequested intervention is justified only when it is reasonable to assume the owner would wish the action performed.
What is the difference between objective and subjective satisfaction under conditional satisfaction clauses?
objective- facts involving commercial value of quality, or fitness

subjective- taste, fancy, or judgment, requires honest satisfaction in the exercise of discretion
What are the 10 defenses to a contract?
1) SOF
2) intoxication
3) infancy
4) mental capacity
5) duress
6) undue influence
7) misrepresentation
8) unconscionability
9) public policy and illegality
10) mistake
What 2 policies favor the SOF?
1) evidentiary- prevent fraud and perjury or stale claims
2) regulatory- indirect means of regulating commercial activity and consumer protection
What is the public policy behind breach of contract?
reasonable expectation
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