I.

Breach and Remedies

Types of Relief
1. Expectation Damages
2. Reliance Damages
3. Restitution Damages
4. Specific Performance and Negative Injunctions
Land and Goods
Personal Services
Limitations on Recoverable Damages
1. Foreseeability
2. Certainty
3. Mitigation
4. Emotional Disturbance
Liquidated Damages Clauses
Material Breach (p. 3)
Anticipatory Repudiation and Adequate Assurances
II. Making an Enforceable Agreement
Offer
Objective/Subjective Nature of an Offer
Preliminary Negotiations
Revoking an Offer
Acceptance
Objective/Subjective Nature of Acceptance
Acceptance by Promise vs. Acceptance by Performance
Special Topics
Form Contracts
E-Commerce
III. Scope of Agreement and Interpretation
Misunderstandings and Vagueness
Battle of the Forms
Warranties and Disclaimers
Parol Evidence Rule
Good Faith
IV. Which Promises Should Be Enforced?
Consideration
Adequacy of Consideration
Pre-existing Duty Rule
Conditions and Constructive Conditions
Statute of Frauds
Promissory Estoppel
Introduction to Promissory Estoppel
Elements of Modern Promissory Estoppel
V. Implied Excuses and Defenses
A. Implied Excuses
1. Mistake
2. Impracticability
3. Frustration of Purpose
B. Procedural Defenses
1. Information Problems
a. Misrepresentation
b. Nondisclosure (Restatement § 161)
2. Lack of Meaningful Choice: Duress/Menace
3. Lack of Competence to Contract (Restatement § 12)
a. Infancy (Restatement § 14)
b. Mental Illness or Defect (Restatement §§ 13, 15)
c. Intoxication (Restatement § 16)
d. Undue Influence
A. Substantive Defenses: Illegality and Public Policy (Restatement §§ 178, 179, 197)
B. Unconscionability
U.C.C: Sale of movable goods, Not land or stock.
Merchants: 2-104: deals goods of the kind, holds himself as having knowledge or skill, or someone who has an agent
who fits that description.
Elements of a Contract: 1) Offer 2) Acceptance w/ Consideration
 I. Breach and Remedies
On the K vs. Off the K remedies:
a) ON K: Sue to get relief under the K: expectation, reliance, and specific injunction.
b) Off K: rescind the K, get compensated for damages already incurred: restitution
A) Types of Relief (Unit 1): Expectation, Reliance, and Restitution:
1) Expectation Damages: Non Breacher in as good a position had there been no breach.
a. Measurement - Cost of Completion vs. Diminution in Market Value:
Hawkins v. McGee (Hair Hand) awarded expectation of surgery: diff of perfect hand promised and hand in present condition.
b. Diminution in Market Value: Difference of market value and the value of the object.
c. Cost of Completion: Cost to complete project- Redding pipe would be cost to re-do the whole piping.
○ If cost of completion is less, courts will award that
○ Jacob & Yong v. Kent is rare example where cost of completion is higher than Diminution of value- usually diminution
is higher.
○ If so, several factors:
 Was breach willful or accidental
 Major or Minor breach
 Breach significant or not?
 Is cost of completion grossly proportionate?
 Unfair to get expectation damages?
2) Reliance Damages: Restatement §349

• Puts non-breaching party in as good a position had the contract been never made
○ Right to money spent before the K less losses would have incurred had K been performed
○ Damages must be proven with certainty.
3) Restitution Damages:
• Puts the breacher in position he would be w/o making the contract- taking any benefits the ∆ has unjustly retained.
• Normally appropriate when 1) material breach 2) Party defrauded or don’t think contract should be done regardless.
• 2 Grounds for Restitution:
 If once was valid K
○ Material breach
○ Non breacher prefers calling K off
 If the K was Never valid
○ Misrepresentation, duress, infancy
○ K never should have been enforced
A) Rescission & Restitution:
– Off the contract remedy- Not holding you to the contract.
– If expectation damages are inappropriate or too difficult to calc, can seek rescission restitution
– Bush v. Canfield: (flour purchase): Damages: value at time of delivery & interest for the delay despite the drop in
price of flour.

4) Specific Performance and Negative Injunctions

1. Land and Goods:
a. Default rule in sale of land is specific performance.
i. Loveless v. Diehl – shows default rule in land is SP.
b. Only If good significantly unique or worth sentimental value, court might give specific performance:
i. Cumbest v. Harris- Hand made audio system unique: SP
c. Exceptions to goods:
i. Special or Unique: antique, heirloom
ii.Diff to replace:
iii.No Adequate remedy at law: damages insuff 2 compensate
d. Note: Originates in equity courts: court have discretion and outcome uncertain.
2. Personal Services: Performed by particular person court will not grant them.
a. 3 Problems of Specific Performance:
i. Moral – if don’t comply, court can jail 
ii.Practical : difficult to enforce or judge if are complying
iii.Consent: party won’t consent 2 being jailed if breach & penalty clause
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 b. Negative Injunction: preventing s/o from performance if related 2 K.
i. Lumlee v. Wagner: (singer makes new K after 1st)- court grants Neg.In
ii.Neg Inj: distinguishable from SP as Moral claim is reduced.
iii.Duff v. Russell: (Actress Breach)
1. Court “wrongly” saw 6days work- implied neg. injunc.
2. Against Coase Theorem: better if $ than N. Injunction
B) Limitations on Recoverable Damages

1. Foreseeability: Breacher is liable for foreseeable damages, major limitation on recovery of damages. Recovery if: 1-
generally expected 2- breacher rez 2 kno expense if breached. Foreseeability is objective rule: reasonable @ time of K
• Hadley v. Baxendale: (crankshaft delivered late)
○ π cannot recover for delay and lost revenue
○ Recover for 1) naturally (usual course of things) or 2) or reasonably supposed by both parties at
time they made K 3) special circumstances communicated @ time of K.
• Rest2. §351: Unforseeability & limitations on Damages
○ 1) not rec if no reason to foresee it as result of breach when K was made
○ 2) loss foreseeable if: a) ordinary course of events b) result of special circumstances that breacher
had reason to know
○ 3) Court may limit by only giving loss in reliance and not loss of profits.
1. Certainty: §352 Damages must be proven with certainty, can’t speculate how many ppl watch a movie.

• Chi Colloseum Club v. Demsey, Anglia TV v. Reed

• When no Certainty,  might seek reliance over expectation (diff calc)
• Uncertainty: recoverable certain cases where subjective value>obj (art piece). hard but possible 2 recover
higher subjective value w/ evidence.
1. Mitigation: duty to limit damages, don’t want society to run up their damages.

• Rockingham County v. Luten Bridge Co: continue building after repudiation, Crt: damages prior to
repudiation + profits
• By giving Expectation Damages put non-breacher in same position- giving profit won’t leave them worse
off.
• Shirley Maclaine v. 20th C. Fox: Fox offer 2nd movie expect her 2 mit duty by accepting. Crt: empl must be
comparable or substantially similar to that deprived, emp of diff or inferior kind not reorted to in order to
mitigate damages.
• Jetz Service v. Salinas Properties (washer/dry)
• Lost Volume seller mitigation diff than persons due to having quantity of goods-> could use both breached
goods or other dryer
• Can’t avoid damages breacher causes,
1. Emotional Disturbance: Emotional distress is not recoverable- unless contract is of the sort where emotional distress
does come about.
a. Depends on type of K and foreseeablity of incurring damages
C) Liquidated Damages Clauses
1. Definition:
a) Agreed Remedy where parties stipulate what damages will be if one party breaches
2. How to Ascertain if we use the LDC:
a) Kemble v. Farren: (actor 4 yr K, breach after 1 year)
i. Who benefits from LDC isn’t imp, only imp that disproportionate
ii.Not LDC clause when too broad & extends to breach of any stipulation
iii.Amount of LDC can help determine who much damades should be
b) Wassenaar v. Towne Hotel (breach of emplyee K)
i. No mitigation of an LDC- if makes money, do not decrease LDC amt
3. Benefits of LDC
1. Reduces what parties have to fight over
2. Parties control level of their risk
3. Create more efficient contracts
4. Judicial Economy: litigation cheaper and less uncertainty
5. Consensual agreement
1. Disfavor:
1. In terorrem (threat)- disfavored, values ability 2 breach K
2. Unfairness in bargaining in excessive amounts
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 3. Private law not meant to provide remedies
1. Is LDC reasonable? (Wassenaar Test)
a) Intent is to provide damages or a penalty (punitive)? look at amount
i. Is amount reasonable under the totality of circumstances?
ii.LDC sets a ceiling (can go lower but not higher)
b) Difficulty of Ascertainment:
○ The more difficult to calculate damages, forecast, prove, more likely to enforce the clause
○ No duty to Mitigate LDC (mitigation only to prevent running up damages)
c) Are the Stipulated damages a reasonable forecast of the harm caused by the breach?
* Note: Posner believes that should allow Penalty clauses for Big corporations as well as LDC’s. Should allow sophisticated parties to
have LDC’s if they want them, allowing efficient breach: benefits society.

Breach: Any performance that falls short of that promised.

A) Material Breach
• If MB, contract can be rescinded and non-breacher gets restitution and option of suing off the k.
• Non-breaching party no longer obligated to perform the K.
1. Elements of a Material Breach: Courts look at these factors:

B&B equip v. Bowne (Breached his employment K- issue of MB: K for work or invest $?)
• Issue: does he owe 1/3 of co. b/c of his breach?
• No: service defective, weigh unfairness- more unfair 2 penalize the co., hard 2 determine damages.
• 6 Factors of a Material Breach: (B&B equip v. Bowen)
A) Performance Factors:
1. The extent to which the injured party received benefits
2. The extent to which the breaching party performed his obligations under the K
3. whether the breaching party likely to cure his non-performance & perform the remainder of the K.
-Justice or Equity Factors:
4. Would finding a material breach create unfair forfeiture?
5. Whether damages are sufficient to compensate the non-breacher?
6. Was the breacher acting innocently and in good faith, or was their breach intentional, reckless, or negligent?

B) Perfect Tender Rule (U.C.C) – another way to rescind the K

 If non-conforming goods b4 date: seller has the right to unconditional cure its tender b4 date of contract date of sale.
 If the seller doesn’t meet date- has further reasonable time, assuming the seller thought it would be acceptable to the
buyer (monetary allowance or discount)
○ If seller thought and was reasonable in belief they have right.
After Acceptance:
 Can revoke if the goods substantially do not comply
 Before acceptance right to reject is very broad
C) Partial Breach:
• When a party has substantially performed and possibility of a cure
○ Jacobs & Young v. Kent- Although K for redding pipes and didn’t use redding, , contract not wasted- not central to
the K and not substantially impair its value.

D) Anticipatory Repudiation and Adequate Assurances

1) Anticipatory Repudiation:
Treated like a material breach, recovery for breach b4 it happens
• Hochester v. De La Tour: tells tour guide is not going on trip:
○ Not anticipatory breach b/c not done or failed to do anything
• Harrel v. Sea Colony: (if pay my deposit back, I want out of my condo)
○ D: anticipatory repudiation- breached we will keep ur $
○ Court: not clear and unequivocal repudiation-
2) Adequate Assurances
• If reasonable insecurities you are entitled to adequate assurance
• Assurance can be given with proof that K can be fulfilled
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 • Factors:
○ Reasonable to be worried- not a way to avoid K
○ If assurance not given with reasonable time, can suspend performance
○ Not given assurance in reasonable time can be seen as repudiation of K.
• UCC §2-609: Right to adeq assurance
○ Must be in writing
○ Must be Specific
○ Cannot be made in bad faith
• Lane v. Foster (2 phase cleaning piping project)
○ Lane had trouble completing phase 1 up to stnd, Foster didn’t pay for phase1 until adeq assurance Lane could
complete phase 2
○ Lane didn’t give ad assurance till was paid,
○ Court says: Lane MB by not giving Ad assurance as Foster had reason 2 think they could not complete task.
Foster

II. Making an Enforceable Agreement

Offer and Acceptance relevant in 2 types of disputes:
1) Did K come into existence at all? 2) Which communication constituted an offer?

A) Offer: Restatement 2nd §24: an offer is the manifestation of willingness to enter into a bargain, so made as to justify another person
in understand that his assent to that bargain is invited and will conclude it.

5 Elements of an offer: either expressly or by implication:

1. Communicated
2. Offer must indicate desire to enter into a K- propose terms and manner for effective acceptance
3. Directed at person or group: if make to defined or undefined group, interpret how/who accept
4. Offer must invite acceptance, may or may not indicate how 2 accept: if not court wil decide
5. Upon acceptance, K will arise.

Objective/Subjective Nature of an Offer (Unit 12)

• Objective: Would a reasonable person think a K was made?
• Subjective: Did the person actually think there was a k?
• The Embry Test (Embry v. Hargadine) both must be satisfied-
• Formation of K depends on intent of parties expressed outwardly- their unexpressed intent not relevant Lucy v.
Zehmer (Land K in Bar) ∆ telling his wife “joke K” when π didn’t think was joking

Preliminary Negotiations (Unit 13)

• Advertisements not offer unless it is very specific (Leonard v. Pepsi Co)
Lefkowitz v. Minneapolis Surplus-fur coat, Ad was definite/explicit/clear so qual as offer.
Carlill v. Carbollic Smoke Ball:
• Restatement §26: manifestation of willingness not an offer if the person it addresses knows that the person making it
does not intend to conclude a bargain until further manifestations of assent.
○ Emrpo v. Ball-Co- K stating “subject to” further action shows Ball-Co did not intend it as a final offer, rather it
was a prelim negotiation & can’t be held to it.
• Distinguishing an offer from a preliminary proposal, courts may analyze (case by case)
1. The words used in the communication
2. Significant terms: omitting it is less likely to be an offer (ex: specificity of price, comprehensiveness)
3. Relationship of parties
a. Past relationship may cast light on how recipient rez should have understood
4. Common practices or trade usages
Revoking an Offer
• Restatement §36: 4 Methods of termination:
1) Counter offer/Rejection,
2) Lapse of time
3) Revocation by offeror
– An offeree may not bind an offeror by accepting a revoked offer, even if the revocation had not been
communicated to him prior to acceptance
– Dickinson v. Dodds: (D Offer 2 sell house, π accept after sells 2 s/o else)

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 – Offer not binding, can retract any time- selling 2 s/o was retraction
– Once accept- binding K
4) Death or incapacity of offeror (ex: death of offeror, can’t buy house from wife)

If Want to make an offer binding:

1) Make an Option Contract (below)
2) Pay something 2 offeree (make it a K)
3) Full Contract rather than Nudum pactum (bare promise 2 hold, not enforceable)
4) UCC §2-205: Firm Offer (below)

Option Contract
• A promise that meets the requirements for the formation of a contract and limits the promisor the power to revoke an offer.
• A way to acquire the right to make a K if you so choose.
• Buying an option contract is worth something: the payment made is different than a deposit and therefore not refundable.
• If breach an options K:
1. Option holder can get relief (expectation damages)
2. But if option holder decides not to buy the car, the seller does not get damages.

• Test for offer or contract:

1) Can A (one party) acting alone, make a contract if he wants to?
2) Can A’s counterparty take away A’s power to the contract if the party wants to?
If yes to 1 and No to 2 Options K; if yes to 2: Offer
Firm Offer
• UCC §2-205: An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will
be held open is not revocable … during the time stated
• Elements of a Firm Offer:
1) Needs to be an offer 2) By a Merchant 3) To buy or sell goods 4) in a signed writing. 5) Cannot be revoked for a period of
time
• Firm offer is an option, intended to lower transaction costs.

Acceptance:
Issue of mutual assent sometimes turns on whether or not an offeree has accepted. UCC looks if parties intended to make K,
and then looks at terms of agreement.
To be effective, acceptance must be definite and unequivocal & may not impose additional conditions, nor may it add
limitations.

1) Mirror Image Rule: (Acceptance that varies terms)

• Acceptance may not impose additional conditions, nor may it add limitations- any variation disqualifies it as an
acceptance and makes it a counter-offer
• Ardente v. Horan: pays deposit, then says we want furniture 2 be included-> seen as counter offer.
2) - The Mailbox Rule- (Acceptance by Correspondence)
• Acceptance as soon as it has been dispatched or put into the mail (or other means of commun).
• The point of the Mailbox rule is to protect the offeree. Want them to be able to rely on an offer after they have accepted
it- therefore, once put acceptance in the mail it is official.
• Revocation is accepted upon receipt by the offeree.
• If offeror and don’t want mailbox rule to apply: can put specification in the rule.
• It is a default rule- they can avoid it if they so chose.
Acceptance by Promise vs. Acceptance by Performance

• Offeror may specify acceptance by performance §30

• In case of doubt, offeree can choose and accept by performance or promise
• White v. Corlies (π contractor, started work after offer)
 K says “upon agreement” (debatable term) can start work
 Judge adopted “had to tell ∆ prior to starting work
 §30 “offer specify how accepted-> same outcome, but if §62 opposite outcome
 §62: When can be done by performance & start performing: acceptance has taken place and operates a promise
to render complete performance.

Bilateral & unilateral K:

Diff in the mode of acceptance- restatement §32: 2 types of offers not 2 types of K’s

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  Bilateral: acceptance by promise
 Unilateral: acceptance by performance- options K.

Restatement §45:
“When an offer invites an offeree to accept by performance, an option contract is created when the offeree begins
the invited performance 2) offeror’s duty of performance under any option K so created is conditional on completion
or tender of the invited performance.
○ Offeree can cancel the contract but offeror can’t stop the contract.

Acceptance by Silence
Hobbs v. Massosoit Whip co. “defendant duty to act, silence made P assume they had accepted- previous dealings important.

Special Topics: Form Contracts and E-Commerce

Form Contracts
Advantages:
 cheaper, sets company hierarchy (who makes K), efficient,
Disadvantages:
 Enshrines inefficient terms b/c can hard 2 make changes, are not read and issue of consented
Restatement §211: “Generally agreed to unless reason to believe would not do so if he knew of the writing- then not part of
agreement”.
§205: good faith and fair dealing. §206-construed against drafter §208: doctrine of unconscionability

Carnival v. Shute: forum clause fundamentally fair

– Had conceded notice, should have known it was there, no sign of fraud
– Prob w/ Arg: Price arg: not fair- distributional issue,

Invisible (forum selection) v. Visible terms (price- agreed 2):

1. Rakavoff: no consent to invisible terms, don’t know & corp. don’t compete over them- not good
2. Barnett: not imp consent to all terms, says not crazy to think would bind urself to something not 100% aware of
 Focus should be on intent to legally bind, reasonable to consent to s/t not exactly sure what it is
Restatement §211 pt 1, 3: similar to Barnetts logic.

E-Commerce
– Courts apply obj/subj test for manifestation of assent (specht v. netscape)
– Netscape: objective failed- K law about voluntary obligations, if didn’t click- no obligation
–
– Register v. Verio: ( sells domain names,  using their public info against their terms)
 Manif of Assent: should have known we weren’t agreeing 2 stnds as we kept on doing it
 Court: obj/subj: if repeatedly using the service & knew the rule- Rznble 2 think manifested
 rez person think they were manifesting assent to their terms posted after gaining their info.

III. Scope of Agreement and Interpretation

I. Vague and Ambiguous Terms
Vague Terms:
• Parties disagree about the scope of what they contracted to
• Partially agreed, but not completely ex: (Frigaliment v. BNS Int’l Sales: agree chicken could only have been fryers and
broilers, disagree if incl. stewing).

Interpreting Vague Terms: 5 steps

1. Terms of the K
i. Examine what parties agreed to
2. Course of Negotiations
i. Parties intention at time of making K
3. Course of Performance
i. Parties actions- lower than negotiation because comes after
4. Course of Dealings
i. Prior contracts, see how a term was used in the past
5. Trade Usage
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Ambiguous Terms
• Restatement §201: If parties attach diff meanings to a term, neither is bound by the meaning attached. Unless:
○ a) Person A did not know of any different meaning, and B knew the meaning attached by A.
○ b) A had no reason to know of any different meaning by the other, and the other had reason to know the
meaning attached by the first party.
• Issue is two separate objects (Raffles v. Wichelhaus- 2 diff Peerless boats- no K b/c Ambiguous)
• Cannot enforce both K’s in a useful sense due to no meeting of the minds

A. Embry Test to determine Ambiguity: (Obj/Subj test)

a. Buyer & Seller: (Raffles)
i. Think they each individually made K (2 Peerless boats)
ii.Objectively reasonable person would think he made that K
iii.There are 2 separate K’s and cannot enforce both No K.

Battle of the Forms

When two companies send invoices and receipts back and forth, question is what is the term of the K:

Last Shot Rule

• Originate from mirror image rule of common law: new forms are all counter offers
• Parties acting on the last form- created large incentive 4 sending last form
• UCC 2-207 kills this rule

UCC 2-207: 1) Acceptance with diff terms than the offer is NOT a counter offer unless the acceptance is
expressly conditioned on the acceptance of new terms.
○ By default, such an acceptance is considered an acceptance of the original offer. And the new terms
are treated as proposals to modify the contract.
○ If the Contracts is between Merchants, the new proposed terms are automatically incorporated into
the contract unless 1 of 3 things is true:
1. Offer expressly forbids this (states must be on these terms)
2. New terms materially modify the contract.
3.If the new terms were/are objected to with reasonable amount of time.
○ 2: There is a K if parties’ conduct recognizes one, even if writing didn’t create it.
 Terms are based on writing or filler provision in the UCC

• Step Saver Data v. Wyse Tech (terminals didn’t work, Box Top license prevent liability of ∆ )
○ Disagreement when K is made: 1st phone call or Box Top License?
○ Under Last shot rule: use Box Top but court does not like last shot rule
○ Even if Box Top, new terms not used b/c materially alter K- therefore not included under UCC 2-207

• Union Carbide v. Oscar Mayer (Union sell plastic casings, send outside Chi 4 tax loophole)
○  Argues contract on back of invoice accepting responsibility is valid
○ Court: construed improper indemnity clause
○ Rule: Term inserted by offeree is ineffectual under §2-207 if new offer
 Makes Material Alterations tax clause was material alteration-  not liable 4 tax

Warranties and Disclaimers

Warranty:
• An assertion that something will be true
• Defines scope of parties’ obligation, things that must be true
• (~=Expectation)- helps enforce what parties expect and prevents surprises
Warranties Created:
• Reliance not required: can be enough the seller makes a comment
• Can the language fairly be regarded as part of the conract?

Express and Implied Warranties

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Express Warranty:
UCC §2-313:
a. Express Warranties are made by affirmation of facts, any description of the goods, If a sample or model
shown, express W the whole will conform
b. Expression of Opinion not express warranty- ex: goods are the best
c. CBS v. Ziff-Davis publishing: Warranty by D the financial facts are true- P relied on them being true.
Majority: D made warranty that facts are true and promise 2 pay if aren’t true- CBS relied. Dissent:
Warranty not basis of the bargain, CBS didn’t believe the statements- CBS sandbang
i. Diff of Maj & Dissnt: Dis: only enforce W relied upon, Maj: made a promise- hold you to it
ii.Sandbagging: (CBS not classic case)- when don’t raise issue until deal is over.
d. Union Carbide v. Oscar Mayer: smilar to CBS: under UCC reliance not required for bargain
Implied Warranty:
• UCC §2-315
• 2 Implied Warranties under the UCC:
1) Warrant of merchantability (Only applies to Merchants)
 Passable in trade
 Fit for ordinary uses
 Even kind and Q
 Adequately contained
 In conformance
 If fungible good- fair and average quality
2) Fitness of a particular purpose
 Buyer relying on sellers skill or judgment to furnish suitable goods
 Seller has reason to know Buyers purpose of goods
○ Similar to default rule- will impute certain warranties when not stated
Exceptions to Implied Warranty:
• Fitness of Particular Purpose does not apply BUT Warranty of ability does apply if:
○ Buyer doesn’t rely on sellers skill
○ Seller does not know Buyers purpose, still warranty of merchantability
○ Seller doesn’t know buyer relying on his judgment
• Warranty of Merch not apply but might have Implied warranty of Merch:
○ Seller not merchant
○ Seller sells something with promise it will do s/t outside the scope that it can
• Stepsaver v. Wyse: (∆ Merchant, terminals didn’t work w/ few software programs) D did not know particular purpose
& P did not rely on D’s skill or judgment, =did not fail on fitness 4 particular purpose.
• Caceci’s v. Di Canio Construction: UCC not apply & no express Warranty in K, court finds implied warranty on
homebuilders and implies W for skillful prfmrnce and Quality. Law out 2 fulfill commonsense expectation that Builder
will build reasonable house
Disclaimers:
Exclusion or Modification of Warranties UCC §2-316:
○ Warranties are to protect expectation, disclaimers to prevent thinking there is a warranty is fine, but don’t want unclear
disclaimers.
○ Disclaimers work if make sense, clear and conspicuous,
○ Type of practice over time can modify warranty
○ If buyer checked s/t before purchase- no implied warranty to upset sellers expectation.
○ Schneider v. Miller- “As-IS” Used car has no implied warranty- material fact not hidden

Parol Evidence Rule

Parol Evidence: Evidence beyond the writing of a contract. Ex: discussion b4 the K, previous drafts, prior courses of dealings.

Parol Evidence Rule:

Evidence that is contemporaneous with, or predates, a completely integrated written agreement cannot be used to contradict
or supplement that written agreement.

Integrated Agreement: Final expression of an agreement on a particular term. 2 types:

○ Fully/Completely Integrated: Final expression of parties agreement on all terms.
○ Thomas v. Libbey- K does not anything about warranty of quality of the logs- fully integrated written agreement- no
warranty.
○ Partially Integrated: Agreement on some terms, may be supplemented by parol evidence on issues not addressed but K cannot
be contradicted.
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 3 Versions of Parol Evidence
1. Traditional/Conservative: (Thomas v. Libbey)
a. Assume the writing is fully integrated unless indicated otherwise- look 2 K and 4 corners
b. Parol to Interpret: Only if its vague or ambiguous
1. Modern/Liberal Version (Brown v. Oliver- hotel furniture, allows evidence 2 show parties intent)
a. Allows Parol evidence to show if written agreement is fully or partially integrated
i. Assume not fully integrated unless stated otherwise- use evidence 2 see if fully integ or not
ii.If it mentions s/t (ex: price)- Modern will assume its an integrated agreement with respect to that
part of the agreement.
a. Parol to Interpret: Can use evidence whenever to establish the vagueness
b. Diff: Old version thinks all K have merger clause, modern rule: if want merger clause must put it down
1. CA Version: PG&E v. Thomas Drayage and Rigging co.
a. CA willing to use Parol Evidence whenever trying 2 conveys parties’ intent of contract. Liberal rule taken
to logical extreme.  let anything in as long as arguing that you are interpreting the K.
b. PGE: Parole Evidence admissible as long as can interpret the K.
Trident Center v. Connecticut Gen life (wanted lower loan rate, want 2 pay back loan)
Post PG&E, judge says basically can’t keep the judge from looking at parol evidence (may not get 2 jury)

2. Parol Evidence Application and Views?

Legally: Parol Evid is not gone, just new interpretation
Practically: it is gone, can have evidence asked for to examine anything.
Judge Kozinksi: thinks new PGE is BAD: 1) Courts 2 avoid by using terms in ordinary sense 2) Opens up courts to
more litigation and cases longer and more complicated.

Reformation of a writing:
a. When a mistake: Treating the K as if it had written something different
b. Requires Clear and Convincing evidence that the writing does not accurately portray the parties agreement
c. High burden of proof as K best evidence
d. Travelers Ins v. Bailey (policy mistakenly said 5k a month, intent was 5k a year)
i. π shows premium payments don’t match any other policy- similar premium for lower policy

* Difference of Mistake in Integration and a Misunderstanding:

• Integration: same thing in mind but mistake in writing it up
• Ambiguity/Misunderstanding: no shared understanding.

Good Faith and Fair Dealing:

○ Every K imposes a duty of good faith and fair dealing in its performance and its enforcement.
○ Key is Intent- why parties doing what they are? Motivation in making the K.
○ What, why, and how the parties act that fits with the parties’ intentions and understandings in making the K.
Goldberg Corp v. Levy: Intentionally lowered sales to get out of K—
 Although K didn’t deliberately prevent him from doing this, owed % of sales to π , therefore his actions were in bad
faith
 Courts goal: 1) uphold justice (this violated spirit of deal) 2) Enforcing parties oblig/liability
Mutual Life Insr Co v. Tailored woman: (∆ new lease on the 5th floor- didn’t take Fur’s)
 Dissent says: made to prevent payment—bad faith
 Majority: don’t find intent to avoid the lease by not taking furs, if wanted furs should have been in the K. Not bad faith
(Key is willful intent)
Food Fair Stores v. Blumberg: opens new stores nearby- court says no bad faith because just trying 2 run biz

IV. Consideration and Requirements for K Formation

Which Promises Should Be Enforced?
A) Consideration
1. Introduction:
• Restatement §17: I make a promise to get u to make a promise, and u are making a promise to get me 2 make one:
• A promise must be enforced by a consideration 2 be enforceable, 2 req’t:

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 ○ 1: Promisee gained something or had a legal detriment
○ 2: Promise part of a bargain
• Courts Concern for what type of promises to enforce, courts ask if this is the kind of promise they want to enforce
• Traditionally courts determine consideration by benefit/detriment
• Movement: courts find consideration when there is a bargain- intent 2 get promise back

1. Function of Consideration: Enforcing Bargains but not Gifts: 5 reasons

1. Consent Theory:
– Gifts are an offer, don’t want them to be enforceable
1. Justice:
– Enforce deals for fairness, don’t want ppl to be at loss
1. Cautionary:
– low caution in offering gifts, more ~ when making deal.
1. Evidentiary:
– Easier for courts to establish if a deal was made rather than a promise
1. Communicative:
– Examine transaction and intent of bargain, can’t for gift

1. Difference Between Conditioned Gift and a bargain:

a. Bargain: person making promise has intent of getting a promise back, while not the case w/ a gift
b. Conditioned gift: can be conditioned on the use or manner to obtain the gift
Ex: A) If intent on a conditional gift is a manner 2 give the gift (If cross street will give u s/t)= a gift.
B) If intention is to get something or get s/to do something (Go in sun: gift, free T-shirt 2 Kobe) =bargain & K.
2.Adequacy of Consideration
Rest. §79: if consideration, no additional req’t of a) advantage b) equivalence c) mutuality
• Sham Consideration: high disparity in value or nominal consideration and does not satisfy req’t §71.
○ Some courts still uphold sham bargains because they fulfill the 5 req’t of a bargain
Kirksey v. Kirsey(Asks bro’s widow 2 move) issue: intent for bargain or conditioned gift?
• Arg 4 Bargain: not imp how dress a promise, he wanted 2 claim the fed land grant
• Arg 4 gift: Uncle, Emotional ties,
• Court finds conditioned gift
Dyner v. Nat’l by-products: (π lost his leg, thought oral agreement if didn’t file suit employed 4 life)
• P thought in a bargain (life empl), D disagree. Q’n of adequacy of consideration
• P reasonably thought making a bargain,
• Sim 2 Embry Test: rez thought making a K, Rez person would think there was a K
○ Dyer promises won’t sue 4 injury: he thought he was making a bargain. Even if not worth anything (only a workers
Comp claim) bargains are enforceable if pass Subj/Obj Embry test.

3. Contract Modification & Pre-existing Duty Rule

Contract Modification
• Policy: Prevent modifying contracts when terms are the same, to prevent opportunistic behavior
as parties can become vulnerable during a contract.
Stilk v. Myrick (2 seamen deserted, crew promised $)
• π can’t recover as No new K: terms haven’t changed- P not entitled to re-negotiate
• Sailor assumed all risks of being on the boat,
Alaska Packers Assn v. Domenico: (fisher wanted more $ 4 bad fish nets)
• Sign new K with administrator, New K not upheld: seen as Modification & no change terms- no K.
○ Fish Net quality importance: if found bad:
 Material Breach 4 not good faith- if MB could create new K rather than suppl
 Vagueness issue: Net Q inside the scope of the K?
 Ambiguity: the type of nets used.
• Modification cases consistent b/c consideration similar
Renegotiation: Finding a new Contract:
• When K performance hits burdensome condition not anticipated, new contract is NOT w/o
consideration.
• Difference: previous cases 1. not considered unexpected burden 2. Pay is reasonable/fair
○ New rule enforces more K’s.

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 ○ Imp: honest and fair dealing, requires justified reason for more money.
• Rest. §89- modification of executory K: Consid & Unforseen Circ. Modified duty is binding
• UCC 2-209: Mod’d K needs no consideration, but must be in good faith
• When K must be performed under burdensome conditions not anticipated, and agrees in view of
this a reasonable pay- new contract is not w/o consideration
○ Rule enforces more contracts
Brian Construction & Devlpmnt v. Bringhenti: (unexpected burden of removing rubble)
• 1st K did not include removing rubble, 2nd did: got ∆ a new agreement
• ∆ able to sue on 2nd contract.
Restatement §89: similar to Brian, requires consideration and unforeseen circumstances
UCC: Does not require consideration but requires good faith.
Standards of the 2 are different but outcome likely similar.
Ex: In Stilk v. Myrick
Under Restatement: desertion can be anticipated, sailor still loose
UCC: Sailors win if acting in good faith:

B) Conditions
• An operative fact after the acceptance and prior to discharge. A fact upon which the rights and duties of the parties depend.
• Harshness of Condition affects liklihood court will find it as condition or promise- ambig construe as less harsh promise.

a) 3 types: Express, Implied, and Constructive Conditions:

c) Express Condition:
• Parties intended to do so and included it in the contract.
c) Implied:
• Intended it to be and it can be inferred from conduct other than words.
c) Constructive Condition:
• Court determine they would have intended it to operate as such if they had thought about it at all, or because the court
believes that by reason of the mores of the time justices requires that it should so operate.
• Condition implied by law or constructive condition
** The three are similar- IMP that condition need not be express.

a) Condition is different than a Promise:

• Promise s/t you say you will do, Condition something that if it happens the parties obligation changes- if not taken,
discharge party 1’s duty to act.
• In Practice difference can be blurry,
• Imp difference: The burden of proof on the promisee to show condition precedent was met.
○ Condition Precedent: Occrn of condtn precedes duty of 1 of the parties (need fire b4 insurance pays).
○ Condition Subsequent: subsequent to the duty of 1 of the parties, a duty is imposed on the other party
a) The Effect of a Condition
• When there is a condition or promissory condition, K is contingent on that condition being met. Internationo-Rotterdam v.
River Brand Rice Mills (Condition: not obligated 2 give rice b4 shipping info)
○ Non occurrence entitled appellee to rescind or to treat its obligation as discharged.

c) Events of a Condition
• Event uncertain to occur may be: 1 condition 2 Promise 3 Promissory condition
• Conditions can be harsh, courts less likely to find s/t a condition
○ If ambiguous, construe as a promise b/c less harsh.
Howard v. Fed Crop Insr (Tobacco ruined by rain- Condition precedent: tobacco not ruined and inspected)
• If condition precedent not ruining plant: π can’t recover. If it is a condition: ∆ Material Breach
• Court finding, 1) Doesn’t like 2 harsh condition 2) K’s always skewed against ins company (wording)
Exceptions to Consideration:
Waiver, Estoppel, & Excuse

1. Waiver
○ A party w/ the benefit of the condition chooses to proceed despite not having that benefit
1. Estoppel
• Waiver and Estoppel go together: First have a waiver, then go with Estoppel
• Party w/ benefit of the condition does s/t that makes other party believe will proceed w/ the K anyway and the
other party relies on it.

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 • Ex: B says its ok that A did not fully meet the K. A relies on B’s statement. B can’t now retract their statement
and ask for it the condition.
Clark v. West: ($6 if write and don’t drink) π saying it is was a condition.
• Unlike other cases where ∆ saying it is a condition- here ∆ avoid b/c main cond’t in writing not drinking
• ∆ trying to make it like re-negotiation- Court: K abt writing, not drinking is a stipulation
1. Excuse
• Court thinks it would be unfair to enforce a condition
JNA Realty Corp. V. Cross Bay Chelsea: (Rest. Relied on 20 year lease) court grants excuse due to large loss 2
restaurant
Constructive Conditions:
• Cases are old- they pre-date the material breach doctrine
• Construe obligation to do s/t as a condition: (give money condition in sale of car)
• Doctrine is less important- still common law
• But Material breach and adequate assurances has mostly covered this.

C. Statute of Frauds
• Law that requires certain kinds of contracts to be written in order to be enforceable.
• The goal of statute of Frauds is to prevent over enforcement of promises, in particular preventing ppl from making
fraudulent claims on K.
• Key function of writing is for evidence.
• 2 Types of K covered by SOF: Those w/ less evidence, those that are big.

Restatement §110: Classes of Contracts covered (first 3 more imp):

1. Sale of an interest in land
i. Any K which land is disposed of, transfer of an interest in land, lease (short term lease exempt)
2. Goods worth more than $500
i. UCC article 2 §2.201- does not have 1 year provision
1. If K both service and goods: look to predominant purpose test
3. A K not to be performed within 1 year of its making.
i. Includes K’s where performance will not be completed w/in a year of K’ing.
ii.Goal is ensure longer-term K’s are recorded:
1. Can’t remember
2. Expectation that longer-term K’s are of greater econ value
4. K’s to answer for the Debt or Obligation of Another
i. Covers suretyship K’s: surety is a person who promises creditor to pay for another’s debt- surety is oblige to pay
it.
5. Contracts of an executor to Answer for the Duty of Their Decedents
6. Contracts upon Consideration of Marriage
i. Not the promise of marriage which is usually oral
ii.Prenuptial contracts motivated by the impending marriage
Boone v. Coe (π long move on ∆ promise: if build a barn and can stay/manage it)
•  claim there was a K even though would fall under statute of frauds
• Court: No reliance damages b/c defeats purpose of S.O.F.
• * Complete Opposite: Rest. 2nd §129: Can uphold Specific Perf 4 land even if no writing IF so party so changed his
position that injustice cannot be avoided

Riley v. Capital (5 year oral agreement-  says no k due to SOF)

• P arg: Parital performance: evidentiary suppor 4 K. Court: reliance damages for already occurred transactions.
Bonne and Riley Inconsistent: Riley reliance despite SOF, Boone: No damages b/c SOF.

UCC 2-201: Statute of Fraud Requirements

1. Need written K for sale $500 or more. If incorrectly state s/t still
enforceable, but not enforceable beyond quantity of goods shown in the
writing
2. Merchants fulfill (1) if send a confirmation in reasonable time (low
stndrd 4 EZ transaction)
3. K not written is still good if:
a. Specially Manufactured goods if made substantial
beginning or commitment 4 it
b. If a party admits a K for sale was made, but only till the

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 quantity he admitsto.
** Boone would come out diff under UCC **

Restatement § 131
• A writing satisfied statute of frauds if:
• Signed by party charged
• Rez identifies K’s subject matter
• Indicates either
Schwedes v. Romain (K for sale of Land)
• Letter for offer, Verbal acceptance of K but then ∆ sells 2 s/o else
• Statute of Fraud: for sale of Land, BUT letter not a Contract- offer.

D. Promissory Estoppel- enforcing promise

** Only use Modern view of promissory Estoppel (Sword), can use 1 line about all courts not using it
I. Intro:
1. Makes a Promise Enforceable b/c promisee detrimentally relied on it.
2. Promisorry Estoppel from defense 2 no consideration to Current use: “Sword” it’s own cause of
action: enforce b/c relied on it.
3. Difference of Promissory Estoppel and Consideration:
A) Consideration= what K’s to enforce. B) Promissory Estoppel: what Promises to enforce
 Goodman v. Dicker: (Radio Store promise Franchise- spent $) Estoppel as substitute for
acceptance.
Restatement §90: A Promise which promisor should rez have relied on is enforceable

1. Elements of Promissory Estoppel

a. Promise
b. Promissee acts
c. Acts are reasonable, definite and substantial
d. Those acts are in reliance on the promise
Common Variation:
a. Acts intended/reasonably expected by promisor
b. Enforcement necessary to prevent injustice
Establishing the Elements of Promissory Estoppel
1) Promise (Spooner v. Reserve Life ins co. )
• Bonus plan not paid, K said pay can be withheld
• P sue to recover payments
• Action in reliance on an illusory promise cannot be upheld
• Genuine promise did not exist since
• P here accepted the indefinite terms, not be construed as an enforceable contract
2) Reasonable Reliance: (Alden v. Vernon Presley)(π relied on ∆ ’s gift, D died and P claim of PE to recover)
• For Promissory Estoppel, must P have reasonably and justifiably relied on the promise
• D’s lawyer informed her she would not be paid prior to the court ruling and she did not notify
the court did not reasonably rely on it.
3) Injustice of Non-enforcement (Cohen v. Cowles Media)
• Relied on their promise to not publish his name
• P recovers b/c injustice done to him- relied on them and lost his job

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 V. Implied Excuses & Defenses
Implied Excuses, Procedural Defenses, Substantive Defenses, Unconscionability

Implied Excuses
• Excuse performance of valid contractual obligations
• Allow rescission and restitution
• “Risk Outside of the Contract”
○ Generally, change in price is not enough.
II. Three Implied Excuses: 1) Mistake 2) Impracticability 3) Frustration of Purpose

1. Mistake
– Mistake is an erroneous belief as to facts existing at the time of contracting.
– In certain circumstances, allows a party to void a contract.
a) Bilateral and Unilateral Mistakes
1. Bilateral / Mutual
To rescind contract due to bilateral mistake, a party must establish that:
– Both parties were mistaken when contract was made
– Mistake goes to basic assumption underlying the contract
– The mistake materially affects the exchange
– Said party does not bear the risk of a mistake
– [Mistake is not its fault]

1. Unilateral Mistake
To rescind contract due to unilateral mistake, a party must establish that:
– It was mistaken when contract was made
– Mistake goes to basic assumption underlying the contract
– The mistake materially affects the exchange
– Said party does not bear the risk of a mistake
– Mistaken party not reckless or grossly negligent

In addition, a party must establish one of the following:

1. Enforcing the contract with the mistake would be unconscionable
2. Including rescission’s effects on the non-mistaken party
3. The non-mistaken party had reason to know of the mistake
4. The mistake was the non-mistaken party’s fault
5. [Non-mistaken party has not relied]

b) When a Party Bears the Risk

• When the contract assigns her that risk
– For example, selling subject to a known risk
• Conscious ignorance
– She knows that her knowledge of the facts to which the mistake relates is imperfect, but relies on it
anyway
• The court determines that it is reasonable to allocate the risk to that party
– When one party has more expertise; catch-all
– Example: Lenawee (p1065)
• Sale of apartment building
• Turns out the septic system is bad
• Property is condemned
• Buyers sue for rescission, alleging mistake
Tyra v. Cheney (Construction contract, Accidentally 25% too low)
• SC starts performance, then discovers mistake
• SC disavows the contract, alleges unilateral mistake and sues for rescission and restitution
2. Impracticability
I. Intro:
• Extension of “Impossibility”- imposs: not practicable. Impracticable: done @ excessive cost.
• Something unexpected happens that makes it very difficult to perform the contract
• Impracticability vs. Mistake
– Mistake is when parties are wrong about facts before contract is made
– Impracticability is about facts/events that take place after the contract is made

II. Elements of Impracticability

To rescind contract due to impracticability, a party must establish that:
1. It is impracticable for anyone to perform that party’s obligations under the contract
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 2. A basic assumption underlying the contract was violated
• This includes the destruction or death of a particular thing or person required by the contract
CNA v. Phoenix (∆ K for 2 films, K to not deprive studio of $, then dies of O.D.)
• Studios sue RP’s estate for breach of contract
• Rule: death dissolve the K, impossible 2 perfrm
Transatlantic (p1094) (Nationalization of Suez Canal, Ship Longer Route)
 TA sues, alleging impracticability and seeking restitution damages
 Issue: 1. Unexpected event 2. Risk Allocation 3. Commercial Impracticability
 Rule: Assumed the risk, not legally impossible.
UCC §2-615: Excuse by Failure of presupposed Condition:
•If performance as agreed has been made impracticable by the occurrence of a contingency, delay in
delivery or non-delivery is not a breach.
Under this- IF US sued for TA delaty, TA not at fault
3. Frustration of Purpose
• Something unexpected happens that makes fulfilling the contract pointless.
• Frustration of Purpose vs. Mistake vs. Impracticability
– Unlike mistake, frustration of purpose focuses on events after the contract was made
– Unlike impracticability, it’s not more difficult to perform the contract—it’s just pointless
II. Elements of Frustration of Purpose
To rescind contract due to frustration of purpose, a party must establish that:
1. Its principal (overwhelming) purpose for making the contract is substantially frustrated
2. Both parties understood said purpose
3. A basic assumption underlying the contract was violated
4. It is not at fault
5. It does not bear the risk of frustration of purpose
Krell v. Henry (K 4 apt. 2 see king’s parade- Parade cancelled)
– does not need to pay rent b/c 1) parade foundation of K 2) Performation of K prevented 3) could not
have reasonably foreseen. Since all 3 met, parties discharged from performance
Restatement 2nd §265
• When after a K the parties principal purpose is frustrated w/o his fault, the remaining duties to render performance
are discharged.

B) Procedural Defenses
Problem with the process the K was formed- can rescind K and get restitution
3 Defenses:
1. Information Problems
a. Misrepresentation
b. Non Disclosure
2. Lack of Meaningful Choice: Duress/Menace
3. Lack of Competence to Contract
a. Infancy
b. Mental illness or defect
c. Intoxication
d. Undue Influence
1. Information Problems
a) Misrepresentation
• 1) False representation of a material fact that induces consent
• Mental state of person making the misrepresentation immaterial
• Misrep is Only off-contract remedy: rescision and restitution (compared 2 express Warranty is on K)
Halpert v. Rosenthal (house w/ termites) seller misrepresents material fact- K rescinded

a) Non Disclosure:
1. Fact non-disclosed, 2. Known by one not the other 3. Violate basic assumption (material), 4. Violation of good faith
and fair dealing to not disclose this fact.
○ Issue of voluntary acceptance of K
○ If you know car is unsafe & don’t tell other party: non-disclosure
○ If sell antique for less than its worth: Not Non-Disc: not in bad faith, not unexpected outcome
1. Lack of Meaningful Choice: Duress
§175 No K when K ~: Sign this K or “else”: where the “or else” is illegal
○ Ex: or else is: §176: Violent, Tort, Violation of K, Bad faith behavior
Austin Instrmnt v. Loral Corp. (2 K’s for Radar parts) Austin gives “or else” threat to breach 1st K
-> illegal- there was Duress, Loral can get rescission & restitution b/c no choice but to act

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 Hypo: under financial pressure, is it duress 2 to sell car under value? No, “or-else” not illegal or bad
faith
Hypo2: Under finan pressure, steve says I won’t pay u for last K unless sell me ur boat: Duress b/c
illegal breach

1. Lack of Competence to Contract:

Restatement §12: Capacity to K
○ Can’t be bound if no legal capacity to incur voidable contractual duties.
1. Infancy
2. Mental Illness or Defect
3. Intoxication
a. (all three go against “voluntary” aspect of contracting.
4. Undue Influence:
a. Unfair persuasion when justified in assuming persuader will not act against that persons welfare.
b. Coercive persuasion which overcomes the will w/o convincing judgement
c. 2 Aspects:
i. Suseptibility of Victim
ii.Excesses of Persuader
d. Elements of Persuasion unde influence:
1. Discussion of the transaction at an unusual or inappropriate time
2. Consummation of the transaction in an unusual place
3. Waiver signed in the hospital
4. Insistent demand that the business by finished at once
5. Extreme emphasis on dire consequences of delay
6. Use of multiple persuaders by dominant side against single servient party
7. Absence of third party advisers
8. Statements that no time to consult financial advisers or attorneys
Odorizzi v. Bloomfield School District (Teacher gay arrested, wanted job back) Unde
influence: not all factors, but significant amount: hurried, bad place-at his home,

Substantive Defenses:
• Certain K illegal and not enforceable, therefore don’t allow restitution
• Started w/ illegality, now extends to 1) restrait of trade, 2) Voting certain way 3) K’s involve bribes
Unenforceable Contracts:
1. Legislation says so
2. Interest in enforcement of K is Clearly outweighed by countervailing public policy
Hypo: K to deliver goods, get ticket for delivery location-illegal, K enf? Yes, public policy interest is Not clearly
outweighed
Hypo2: Statute requiring Insr to cover water damage, I have insurance w/o water damage: Not enfrorced b/c
outweighs public policy interest
Unconscionability:
• Both Procedural and Substantive aspects- rare in practice
○ Procedural: Deficiensies in contracting process, Substantive: obj actual terms
○ IMP: subs unconscionability MUST be present for Unconscionability while proc need not be
• Does the contract, or a particular term
○ Shock the conscience? Departure from Common sense
○ Appear too one-sided to entitle a party to relief in a court of conscience? (inequitable distribution)
○ Such as no man in his senses and not under delusion would make, and as no honest and fair man would accept?
(Cost/Benefit analysis)
• Remedies for Unconscionability:
○ Void the Contract
○ Strike offending term
○ Reform the offending term
• Catch all doctrine, fills gaps for procedural or substantive defense
○ Similar to Promissory Estoppel (enforce promise)
• Williams v. Walker Thomas Furniture (Woman can’t afford stereo, store knew-had high repayment)
○ Possible defenses: infancy, drunk, duress “or/else”, undue infleunce (place, time, insistent demand, etc.) No
○ Misrepresentation, Non Disclosure, Public Policy No
○ Unconscionability: Unequal barg power, didn’t know K terms, Inequitable distribution yes
○ Court grants unconscionability
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• Who Does this doctrine Help? Is it a good think?
○ Yes: protects voluntariness
○ No: limits freedom to K, impose limits on freedom to K

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