CONTRACTS MASTER LISTS

CONTRACTS MASTER LISTS

S CLAIMS

: made a promise and he did not keep it.

S DEFENSES

: I dont have to keep my promise because

A. There is no basis for enforcement, i.e.

1. There is no Consideration because

a. There was no promise or performance (an act other than a promise, a forbearance, the creation, modification or destruction of a legal relation) OR

b. The promise/performance was not sought by the promisor and given in exchange for my promise, i.e. no bargain (Whitten v. Greeley-Shaw).

c. The promise/performance did not benefit me or impose a detriment on (Hamer v. Sidway) OR the promises/performances were not equal in value (Fiege v. Boehm) ( THIS IS NOT A VALID ARGUMENTd. Promisor did not have an honest & reasonable belief that the claim he promised to forebear on was valid (Fiege v. Boehm).

e. Promisees past service cannot be consideration (Feinberg v. Pfeiffer Co.).

f. Gratuitous gifts are not consideration (Kirksey v. Kirksey).

g. Public Policy: Future employment, raises, etc. may be consideration if justice so requires (Central Adjustment Bureau v. Ingram).

h. Illusory promises (a purported promise that actually promises nothing because it leaves the promisor free to perform or not perform) are not consideration (Strong v. Sheffield).

i. Promisor did not act in good faith and fair dealing, which is implied in every contract (opposite of Mattei v. Hopper).

j. The promise was NOT implied (as contends) (Wood v. Lucy, Lady Duff-Gordon).

k. The promise made in exchange was a sham, i.e. peppercorn (79(b)).

2. There was no Reliance/Promissory Estoppel because 90, (Ricketts v. Scothorn)

a. There was no promise OR

b. There was no action/forbearance by OR

c. The action/forbearance was not induced by (i.e. taken in reliance on) the promise, i.e. would have acted anyway (Fienberg v. Pfeiffer Co.) OR

d. The action/forbearance was not reasonably expected by promisor (objective standardreasonable person test) (D&G Stout v. Bacardi) OR

e. It would not be unjust to not enforce the promise

3. I have no Moral Obligation because

a. There was no later promise reaffirming debts discharged by statute of limitations or bankruptcy proceedings ( 82(1) & 83)

b. There was no later promise to perform a voidable promise I made as an infant ( 14)

c. I promised to pay for a material benefit I already received (Mills v. Wyman ( majority rule BE CAREFUL BECAUSE COURT MAY RELY ON Webb v. McGowin ( minority rule that says the promise to pay for a material benefit already received IS enforceable to prevent injustice)

B. I did not assent to be bound because knew, or a reasonable person would have known that I was just kidding (Lucy v. Zehmer)

C. There was no offer, only preliminary negotiations, which do not a contract make ( 26, Owen v. Tunison)

1. Lowest price Im willing to sell at are preliminary negotiations (Harvey v. Facey)

2. Price quotes for goods are merely preliminary negotiations when they do not invite acceptance (Fairmount Glass v. Crunden-Martin)

3. It was a newspaper advertisement, not an offer (Craft v. Elder &

Johnson Co.)

4. The offer in the advertisement was NOT so clear, definite, and explicit, leaving nothing for negotiation, that it constituted an offer (Lefkowitz v. Great Minneapolis Surplus Store), i.e. limited quantity available

5. CANNOT argue that reliance on an offer created an option contract.

D. There was never an acceptance of the offer because

1. The offer invited a performance (unilateral contract) AND notice of acceptance was required by the offer ( 54(1)) but no notice was given

2. The offer invited a promise (bilateral contract) AND notice of acceptance was not waived by the offer ( 56) but no promise or acceptance was made

3. No implied promise was made

4. No type of notice was specified, and acceptance was not communicated by reasonable notice (White v. Corlies and Tift)

5. Reasonable diligence was not used to give notice of acceptance

6. No actual time period for acceptance was required, but the acceptance was not made in a reasonable time period (Ever-Tite Roofing v. Green)

7. The offer invited performance or partial performance as acceptance and there was (partial) performance (Allied Steel v. Ford Motor Co.)

8. There was silence ( 69) and

a. I did not take services, therefore impliedly accepting the offer

b. There was no intention to accept NOR knowledge that silence was an acceptable method of acceptance

c. There was no use of the offered property

9. There were no previous dealings where it would be proper to give notice of non-acceptance this time

10. rejected the offer before he attempted to accept it.

E. The offer was terminated ( 36) because

1. Offer expired after a specified time or a reasonable time ( 41)

a. The conversation during which the offer was made ended (Akers v. J.B. Sedberry)

b. The offer for a reward was not notorious (Loring v. City of Boston)

2. The offer was revoked ( 42,43)

a. Before acceptance was sent AND

b. Offeree was notified AND

c. There was no option contract (contract to keep offer open for a length of time) (Toys, Inc. v. F.M. Burlington Co., Dickinson v. Dodds)

3. The offer was expressly rejected ( 38)

4. made a counter-offer, i.e. a presumptive rejection of the original offer (M. & St. L. v. Columbus Rolling Mill)

5. made a counter-offer and the Mirror-Image Rule applies ( purported to accept based on different terms than those in the offer, the acceptance was a counter-offer and therefore a rejection of the original offer) ( 59)

6. The offeror died ( 48) and there was no valid option contract

F. Mailbox Rule applies ( 63)

1. I revoked the offer before the acceptance was sent

2. I sent the acceptance and the offer did not stipulate that acceptance would only be valid upon receipt

3. The rejection arrived before the acceptance and I was justified in relying on the rejection.

4. It was an option contract and the acceptance was never received, therefore not accepted

G. Negotiations failed and therefore no contract

1. There was no contract to negotiate (Channel Home Centers v. Grossman)2. Promisee did not act in reliance on assurances made during preliminary negotiations ( 90, Hoffman v. Red Owl Stores)

H. The contract lacked definiteness because

1. The Court cannot discern the existence of a breach OR

2. a proper remedy ( 33, Varney v. Ditmars, Toys Inc. v. F.M. Burlington Co.)

I. The STATUTE OF FRAUDS applies and the contract was not made with a signed writing

1. The promise was for:

a. Marriage promise to marry someone in exchange for something else, i.e. the consideration is marriage (Romeo & Juliet)

b. Year promises that cant be completed within one year, i.e. potential termination does not equal completion (Coan v. Orsinger)

c. Land BUT if promisor has already conveyed title, then no need for signed writing

d. Executor promises by executor to pay estates debt out-of-pocket

e. Goods $500 only moveable items are goods

f. Suretyship promise to pay another persons debt (Langman v, Alumni Assn)

2. This is not a jurisdiction that accepts the rule that promissory estoppel by the party seeking to enforce the promise may be a defense to a claim that the statute of frauds applies and there is no signed writing (Monarco v. Lo Greco)3. There was a signed writing, but the writing

a. Did not contain the material/essential terms (Lucy v. Zehmer)

b. Was not signed by the parties to be charged

4. The writing was lost and there is no proof that it ever existed

J. The promise was to convey land and did not substantially rely on my promise to do so (Johnson Farms v. McEnroe).

K. I was an infant when I made the promise (Kiefer v. Fred Howe Motors, Inc.)

L. I have a mental defect where and therefore all my contracts are voidable

1. I am unable to understand ( 15(1) Traditional Rule) (Cundick v. Broadbent)

2. I am unable to act reasonably and the other person had notice of this condition ( 15(2) Modern Test) (Ortelere v. Teachers Retirement)

M. The promise violates public policy because it was

1. A promise for the commission of a tort ( 192)

2. A promise in restraint of marriage ( 189)

3. Other (as noted in Black Industries, Inc. v. Bush)a. A contract in which pays to induce a public official to act in a particular manner

b. A contract to do an illegal act

c. A contract that contemplates collusive bidding on a public contract

N. I was under duress when I made the contract because my assent to be bound was ( 175(1))

1. Induced by improper threats that were ( 176(1)) AND

a. a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property, OR

b. a criminal prosecution, OR

c. use of civil process and the threat is made in bad faith, OR

d. a breach of the duty of good faith and fair dealing under the contract with the recipient.

2. there was no reasonable alternative other than agreeing to the contract

O. It was a subsequent/modified promise where

1. The original promise was not entirely cancelled (Schwartzreich v. Bauman-Basch) AND

2. There was a pre-existing duty (Alaska Packers Assn v. Domenico) AND

3. There was no new consideration ( 73, Arzani v. People) ( BUT BE CAREFUL, Court may follow modern rule: if new promise because of new circumstances, no new consideration required (Watkins & Sons v. Carrig)

P. My assent to be bound was induced by fraud because

1. The promisor made

a. a fraudulent (intentional false statement) OR

b. a material (if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to assent) misrepresentation (mistaken false statement)

2. to induce my acceptance because ( 162)

a. He knows or believes that the assertion is not in accord with the facts OR

b. He does not have the confidence that he states or implies in the truth of the assertion OR

c. He knows that he does not have the basis that he states or implies for the assertion AND

3. I was justified in relying on the misrepresentation ( 164(1))

4. The maker actively concealed a fact; he did not merely act with bare non-disclosure (Swinton v. Whitinsville Savings Bank)

5. The maker did act with bare non-disclosure, but I am in a state where a unilateral mistake makes a contract void if

a. I did not bear the risk of the mistake

b. The mistake makes enforcement of the contract unconscionable

c. The other party had reason to know about the mistake or it was his fault AND

d. I am in a state that recognizes the modern rule ( 154)

6. The maker only told half-truths that are considered misrepresentations (Kannavos v. Annino)

7. And there was a special relationship that required full disclosure, i.e. attorney-client, etc. ( 161(d))

Q. There was a mutual mistake

1. The mistake was to a fact, not a prediction ( 151, Wood v. Boynton) AND

2. The mistake was made by BOTH PARTIES ( 152) AND

3. The mistake was with respect to a basic assumption AND

4. The mistake has a material effect on the contract (Sherwood v. Walker) AND

5. I did not bear the risk of the mistake, i.e. the contract does not state a party to bear all risks of mistake ( 154, Stees v. Leonard)

R. There was a unilateral mistake

1. I did not bear the risk of the mistake

2. The mistake makes enforcement of the contract unconscionable

3. The other party had reason to know about the mistake or it was his fault AND

4. I am in a state that recognizes the modern rule ( 154)

S. The exculpation clause is unenforceable because

1. Strict Construction it doesnt really say what you think it says ( 206, Galligan v. Arovitch)

2. Adequate Notice I had no reason to know the writing contained contractual terms ( 211, Klar v. H & M Parcel Room)

3. Public Policy enforcement of the contract negatively affects a 3rd party/society as a whole ( 178, OCallaghan v. Waller & Beckwith, Henningsen v. Bloomfield Motors) because

a. There was no competition

b. Unequal bargaining power

c. Amount of free choices

d. Distributive concerns of the contract (e.g. housing more important than paintings)

e. No Special Relationship exists

f. The policy in question is very strong

g. Likelihood that the policy will be furthered by a refusal to enforce

h. Seriousness/Deliberateness of any misconduct connection between misconduct and the term

4. The term is unconscionable ( 208, UCC 2-302(1) & cmt. 1)

5. Other Statutory Limitations/Specific Statutory Prohibition

6. It was an adhesion contract ( THIS IS NOT A VALID ARGUMENTREMEDIES

: I am entitled to because

A. Equitable remedies (anything but damages, e.g. specific performance, injunction, rescission, etc.)

B. Damages ( 364(1))

1. Expectation damages puts in the same position as if the contract had been performed ( 344a)

ALWAYS ENTITLED TO EXPECTATION DAMAGES ( 347, Sullivan v. OConnor)

Loss +Other -Costs -Other Loss

In ValueLoss Avoided

Avoided

What What Other

Costs Costs Other Loss

Promised - Delivered + Loss -Expected - Incurred - Avoided2. Reliance damages puts in the same position as if the contract had never been made ( 344b)

3. Restitution damages restores to any benefit conferred to ( 344c)

C. If I cannot prove damages to a reasonable certainty, I am entitled to

1. Nominal damages ($1 or 6 cents)just proves is right

2. Reliance damages ( 349) (less common) OR

3. Liquidated Damages

D. Liquidation damages, i.e. those damages specified in the contract (e.g. late fees) because

1. I cannot sue for actual damages if liquidation damages are stipulated

2. This benefits the parties by avoiding litigation

: cannot get THAT remedy because

A. cant have equitable remedies because

1. Damages are adequate ( 359, 360)

2. The exchange is inadequate or unfair ( 364(1)(c), McKinnon v. Benedict, Tuckwiller v. Tuckwiller)

B. cant have expectation damages because there are limitations

1. could have avoided ( 350) some of the damages she claims by

a. Ceasing performance (Rockingham v. Luten Bridge Co.)

b. Agreeing to substitute, comparable arrangements (Parker v. Twentieth Century Fox, Gandall v. Pontigny, Howard v. Daly)

2. s performance was incomplete or defective ( 348(2)), therefore, the measurement of loss in value should only be determined by:

a. Loss in value to entitled to UNLESS he cannot prove this with reasonable certainty (frequent) then, entitled to choice of loss in market value or cost to remedy/complete

b. Loss in market value automatically gets if cost to remedy/complete is grossly disproportionate to the probable loss in value to (Jacob & Young v. Kent, Peevyhouse v. Garland Coal)

c. Cost to remedy/complete can get as s choice as long as not grossly disproportionate to the probable loss in value to (Groves v. John Wunder Co.)

3. The damages resulting from the breach were unforeseeable at the time the contract was made ( 351, Hadley v. Baxendale)a. Damages would not ordinarily flow from a breach of this type

b. Damages were from special circumstances unknown to

4. cannot prove amount of damages with reasonable certainty ( 352)a. Fact of loss must prove that he actually has damages ( 348(2), Collatz v. Fox Wisconsin Amusement Corp.) BUT damages can be awarded if can prove with reasonable certainty that he had some specific chance of winningb. Extent of loss must also prove the extent of the loss, how much with reasonable certainty (Fera v. Village Plaza, Inc.)

C. cannot have liquidated damages because they are

1. Unreasonably large ( 356(1), Dave Gustafson v. State) and constitute a penalty

a. The actual/anticipated damages are much smaller than the liquidated damages

b. It is not too difficult to prove the actual/anticipated damages

2. Unconscionably small narrower test than for unreasonably large (Henningsen v. Bloomfield Motors)

3. Liquidation damages should be unenforceable for public policy because they generally defeat their own purpose

RESTITUTION

: I am entitled to restitution because

A. has been unjustly enriched by me

B. A contract was implied by law and reasonable compensation for services rendered is required (Cotnam v. Wisdom)

C. I can get restitution, not for the whole contract, but for the reasonable value of the services rendered/conferred onto even though the statute of frauds applies and there is no signed writing ( 375)

D. The was an infant when he made the contract he later voided and/or the contract was for necessaries (even if they are unavailable) of an emancipated infant

: is not entitled to restitution because

A. is an Officious Intermeddler who confers benefit on people specifically to try to get the other person to pay

B. was a Volunteer who conferred benefits with no expectation of compensation. Cannot later expect the recipient of a gift to pay for it.

C. has other remedies and it would not be unjust for me to keep the benefit if can recover from someone else (Callano v. Oakwood Park Homes Corp.)

D. I was an infant when I made the contract and the subject matter, not necessaries, is unavailable (Kiefer v. Fred Howe Motors, Inc.)

E. There was no implied contract since is not a professional (opposite Cotnam v. Wisdom)

F. The performance (help) was not extremely expensive or burdensome to .

RESCISSION

: I can rescind because

A. I was an infant when I made the contract

B. I was mentally deficient when I made the contract

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