SV fall LME 2012 1

Counter-offer

from another flowchart.

Identify the Offer

Unclear or indefinite

terms An Ad

No manifestation of intent to be

bound

Sale of goods UCC Chart

A clear and definite promise with manifestation of intent to be bound was communicated

to an offeree

No Contract formed from this offer or acceptance. Find

other facts and start again, or alternatives to Contract formation. Reliance/Restitution

An offer was made.

Was there Acceptance?

Unclear

terms are

substantial

Unclear

terms are not

substantial

Unilateral Contract

Bilateral Contract

?

Acceptance only by complete performance

Acceptance by return promise

Acceptance by performance or

silence, only if that was their custom/was

specified in offer.

Assume bilateral

Was the acceptance confined to the manner specified in the offer?

NO.

YES.

Was the acceptance

timely?

Within a reasonable

amount of time

Was the offer rescinded

before acceptance received?

Mailbox Rule: Acceptance is valid

the moment it is communicated to the offeror, unless

a rejection was received first.

YES. Unilateral: Irrevocable if offeree

begins performance--> an option contract is

then formed for a reasonable amount of

time. R2d 45 NO.

Mirror Image of

Offer? YES.

Acceptance was valid. Was there

Consideration?

Neither.

Benefit to the promisor, detriment to the promisee

Note: The benefit or detriment cannot be: -promise to do something they are already bound to do. -promise to refrain to do something they have no right to do.

NO.

YES.

Bargained for exchange?

K formation bargained for

exchange

Gift; Illusory promise; Past consideration

one thing, for

another Contract formed! alternatives to

consideration Promissory

Restitution or Reliance

see other page

Consideration was valid. Need Statute of

Frauds? (MYLEGS) see page 2

No Need; or Valid writing, that includes:

-Signature (of party to be charged) -Recognition of an agreement

-Key terms.

NO. Part-performance that

unequivocally proves the contract

NO.

YES.

No K Formed, try alternatives

Charitable Subscription?

YES. NO.

NO

counter-offer? Use BoF chart

SV fall LME 2012 2

Consideration was invalid. Was there

Promissory Restitution?

Consideration was valid. Need Statute of

Frauds? (MYLEGS) see page 2

Marriage Year, or more Land sale Executor Goods sale>$500 Surety

Promise for a benefit received?

Was it intended to be a gift?

NO. YES.

Promise disproportionate to the

benefit received?

NO.

YES.

NO.

Does justice require the promise to be

enforced?

YES.

NO.

The promise may be

enforced.

Factors: -unjust

enrichment; -the

promise made;

-the benefit received

END. no

promissory restitution

VALID WRITING(S)? multiple writings may be

combined as one to satisfy the SoF, but only if they are signed

by the promisor and/or the writing that is signed by the

promisor explicitly references their agreement and/or a previous writing by the

promisee.

SV fall LME 2012 3 (not mine)

Reliance Trigger: Consideration failed, BFE failed, or offer revocation issue.

Restitution Trigger: When nothing else works; No K; No Consid;No SoF writing;

Defense to K w/ capasity, fraud, or mistake

R2d 90

Was there a promise?

NO. YES.

Should/did the promisor reasonably expect the

promise to induce action by the promise?

The promisee took action to his detriment.

The action was in reliance of the promise..

can injustice be avoided by enforcement of the

promise?

Promise is binding, and will be enforced by

court..

Charitable subscription?

NO. YES.

NO. YES.

NO. YES.

NO. YES.

NO. YES.

END. No Reliance

Was there unjust enrichment?

NO. YES.

NO. YES.

Was the п an officious intermeddler?

Δ may be forced to pay

damages.

END. No

Restitution.

SV fall LME 2012 4

Counter-offer

from another flowchart.

UCC: Sale of Goods

Trigger: Sale of Goods, AKA the transfer of the title for tangible,

movable thing.

Identify the Offer Offer must be inviting

acceptance

Did the offeror provide the offer would remain

'open' for a certain time? NO.

YES.

Was it revoked before

acceptance?

Was it revoked before

acceptance?

NO.

YES.

YES.

No Offer & Acceptance. Try new facts

or move to alternatives

Was it revoked within the time

the offeror said it would be open?

NO.

YES.

Was the offer accepted by any

reasonable means?

With material changes

By Performance e.g. accepting

delivery

With non-material changes (&no

objection w/in 10 days)

NO.

Consideration?

Valid Offer & Acceptance.

Benifit/Detriment + Bargained for?

NO. YES.

Contract Formed! Modification after

contract formation? No consideration

necessary

Over $500? or any other

MYLEG?

NO YES.

Valid writing, that includes: -Signature (of party to be charged) -Recognition of an agreement

-Key terms. INC. #

NO YES.

SV fall LME 2012 5

Defenses

Unconscionability Trigger: Inequality in bargaining process +Grossly

unfair to one side. NEED BOTH procedural +Substantive

Mistake Trigger: Incorrect assumption (not fraud)

Misrepresentation Trigger: False statement/Omission/Concealment

Undue Influence Trigger: unfair domination, or a relationship of trust. Duress

Trigger: A threat.

R2d 208 UCC

§2-302

Procedural Unconscionability

Substantive Unconscionability

Lack of Choice: -boilerplate form

-difficult to understand

Unequal Bargaining Power:

-Age; Literacy; Lack of sophistication

-Lack of legal council -Weak bargaining

position

YES. NO. NO.

Factors: -overly harsh, or one sided; -"shocks the conscience"

YES.

Unconscionable contract/term=

NOT ENFORCED

NO. NOT unconscionable

R2d 152-154

Mistake of fact during K formation

Unilateral only 1 party mistaken,

or only 1 party was affected by mistake.

Bilateral both parties were

mistaken.

or

or

Extreme Unfairness?

Mistake made in good faith?

Grave Injustice if court does not act?

YES. NO.

NO.

NO.

YES.

YES.

Relief! No Relief!

Error was made as to a basic assumption on

which the K was made?

NO.

NO.

NO.

YES.

YES.

YES.

Had a material effect on the exchange of

performance? more like barren cow than valuable jewel.

Adversely affected party did not bear the

risk of mistake. did not sign a contract,

"as is".

Relief!

R2d 19-160

An Omission

to disclose

An Action to Conceal A False

Assertion

Was there a relation of

trust between parties?

NO. YES.

Δ knew previous statement made

was wrong

Δ knew telling would correct a mistake as

to a basic assumption of the K

Δ knew telling would correct a mistake as to a the content or effects of writing.

NO.

NO.

NO.

YES.

YES.

YES.

Did the action

prevent the other party

from learning a

fact

NO.

YES.

Did the assertion substantially

contribute to the assent?

YES. NO.

Intended to induce assent, while knowing

falsity, or maybe falsity

YES. NO.

Was the misrepresentation justifiably relied

upon?

YES. NO.

Contract is Voidable!

Note: if NO and no arrow after... no misrep.

Physical Threat

Void K

Non-Physical Threat

R2d 174-176

One Party makes a threat.

The threat was improper

Threat leaves victim with no reasonable

alternative

NO YES

YES

YES NO

NO Voidable Contract!

Economic Duress

One party must unscrupulously take

advantage of another's economic necessities.

like totem marine

“Undue susceptibility may consist of total weakness of mind which leaves a person entirely without understanding. Or which destroys the capacity of a person to make a contract even though he is not totally incapacitated.”

A lessened capacity of the object to make a free contract

Application of excessive strength by a dominant subject against a

servient object

NO YES

NO YES

Factors: a. Discussion of the transaction at an unusual place or inappropriate time b. Consummation of the transaction at an unusual place c. Insistent demand that the business be finished at once d. Extreme emphasis on untoward consequences of delay e. The use of multiple persuaders by the dominant side against a single party f. The absence of third party advisers to the servient party g. Statement that there is no time to consult financial advisors or attorneys.

Voidable Contract!

SV fall LME 2012 6(not mine) PICJUR