FRAMEWORK FOR APPLYING CONTRACT LAW 1. WHICH LAW GOVERNS: COMMON LAW OR STATUTORY?

[Basically, the first question is: Is there a statute that governs this area?] a. Common Law b. UCC aims to find a K and give the benefit of the K. c. CISG 2. WAS A CONTRACT FORMED? (What is a contract?): BARGAIN Principle/Meeting of the minds. a. Was there and offer? i. Common Law Restatements 24 1. Offer (1) Manifestation [Words or Conduct] (2) of a present willingness to enter into a bargain (3) so made to justify to another person (4) that his assent to that bargain is invited and (5) his assent to that bargain will conclude the deal. {Section 24 of the restatements} ii. UCC 2-206 1. Unless otherwise unambiguously indicated by the language or circumstances a. An offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances. b. (1) An order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, (2) but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer. 2. Where the beginning of a requested performance is a reasonable mode of acceptance an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed

before acceptance. b. Was there an acceptance of the offer? i. Common Law Restatements 50 1. Acceptance (1) Manifestation [words or conduct] (2)of assent to the terms thereof (3) made by the offeree (4) in the manner invited or required by the offeror. a. Acceptance can be by oral or written promise or performance b. Acceptance must assent to the terms of the offer c. Acceptance must be made by offeree d. Acceptance must be made by the manner the offeror requires. If offeror doesnt require any specific means of acceptance, then Acceptance must be manifested in a reasonable manner. ii. UCC 2-207 1. A definite and seasonable expression or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. a. This applies to 2. The additional or different terms are to be construed as proposals for addition to the contract. Between merchants, such terms become part of the K unless: a. The offer expressly limits acceptance to the terms of the offer; b. [the additional or different terms] materially alter [the contract]; or c. notification of objection to [the additional or different terms] has already been given or is given within a reasonable time after notice of them is received. 3. Conduct by both parties which recognizes the existence of a

contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any provision of the act. c. Was there consideration? <Isolate the promise that was in dispute, then ask did the offeree give something or refrain from doing something that the offeree had a legal right to hold on to or engage in > - the court will not concern itself with the adequacy of consideration. i. (1) a return promise or performance ii. (2) that is bargained for 1. promise for a promise, or 2. promise for performance 3. IF A CONTRACT WAS FORMED, ARE THERE ANY DEFENSES TO THE ENFORCEMENT OF THE CONTRACT? a. FORMATION DEFENSES (K Cannot Form) (CH 5): i. Statute of Frauds ii. Incapacity iii. Illegality iv. Against Public Policy (Does this Belong?) B. NON-FORMATION DEFENSES (CH 6) i. Coercion 1. Duress 2. Undue Influence 3. Misrepresentation 4. Failure To Disclose 5. Mistake a. Mutual b. Unilateral 6. Unconscionability

4. IF A CONTRACT WAS FORMED, WAS THERE A BREACH OF CONTRACT? (if so, by

which party?) To determine Breach we must know: (Work in Parole Evidence) a. What was Agreed upon? (Ch 7) i. Interpreting Implied Terms (Ch 7) 1. Trade Practices 2. Best Efforts Good Faith and Similar Communal Norms 3. Interpretive Presumptions and Implied Terms ii. Interpreting Express Terms (Ch 7) 1. Parole Evidence Rule and the Exclusion of Evidence 2. The Interpretation of terms in an Integrated Writing 3. The Reasonable Expectation Doctrine and Blanket Assent iii. Court Supplied Terms (Constructive Conditions - Ch 8) iv. Statutory Supplied Terms b. Did the parties give the promised performance? (Ch 8) i. When are Performances Due? ii. When due, were performances given as promised? iii. If given, was the performance a partial or material breach? (Substantial Performance Ch 8) iv. Did either party anticipate its performance with an unequivocal statement that when time for performance is due? (Anticipatory Breach Ch 8) 5. IF BREACH, ARE THERE ANY POST-FORMATION EXCUSES? (CH 9) a. Frustration of Commercial Purpose Reasons for entering into the K no longer exist. Nothing has changed or become more burdensome to my performance, but my reasons for wanting to perform has changed because of some unforeseeable intervening event. Look at Coronation case b. Impossibility (Performance cannot be done by anybody) i. Death of a party (Traditional) ii. Destruction of a central thing (Traditional) iii. Illegality iv. Natural Disaster c. Impracticability it can be done but something has made it so burdensome to perform that I am asking the court not to make me do it

d. Note: Impracticability(wide) and Impossibility (narrow) are on opposite ends of the spectrum.

6. IF BREACH AND NO EXCUSE, WHAT REMEDIES/DAMAGES IS THE AGGRIEVED PARTY ENTITLED TO? (might it depend on whether there was a full or partial breach?) a. Elements/Limitations of Damages: i. Causation and Reasonable Certainty ii. Foreseeability iii. Mitigation b. Compensatory Monetary i. Expectation Damages ii. Reliance (Does this Belong here?) iii. Restitution (Does this belong here?) c. Compensatory Specific Performance (Benefit of the bargain) d. Alternatives i. Out of Pocket Expenses ii. Restitution 7. IF NO CONTRACT, CONSIDER ALTERNATIVE THEORIES: a. RELIANCE Principle: Promissory Estoppel b. RESTITUTION Principle: Unjust Enrichment

Damages Consequential Expectation Compensatory