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RESTATEMENT BASICS Contract defined 1 Definition of promise 2 How made 4 Requires bargain 17 MANIFESTATION OF ASSENT Effect of misunderstanding 20 21 Intention

tention to be legally bound (not necessary) 22 offer and acceptance (mode of assent) MAKING OFFERS 24 offer defined 26- preliminary negotiations 32 invitation of promise or performance 33- certainty DURATION OF ACCEPTANCE 36- Methods of terminating acceptance 38 rejection 39 counter offers 43 indirect communication of revocation 45 option K ACCEPTANCE 50 acceptance defined 58 comply w terms of offer 59 if adds qualification 63- when acceptance takes effect 69 acceptance by silence CONSIDERATION: 71 types of exchanges 73,- legal duty is not consideration 74, - settlement of claims 77,- illusory promises 79- mutuality of obligation just need consideration 81 doesnt have to induce action to be consideration KS WITHOUT CONSIDERATION 86 - restitution 87 - option K 89 - executory 90 - estoppel 110 classes of Ks statute of frauds MISTAKE: 152- when it makes a K voidable 154 when a party bears risk 157, - effect of relief

MISREPRESENTATION 161, - non disclosure euqla to assertion 162, - fraudulent misrepresentation/material misrepresentation 163 when is K not formed b/c misrepresentation = no meeting of minds 164 when it makes a K voidable 168 an assertion of opinion 169 when reliance on an assertion of opinion is unjustified DURESS: 174 Duress by physical compulsion 175- when it makes a K voidable 176- When threat is improper 177,- Undue influence PUBLIC POLICY 178 When a term is unenforceable due to PP 191 Custody promises not enforceable THE SCOPE OF CONTRACT OBLIGATIONS 201 whose meaning prevails? 202 Rules for interpretation (ABIGUITY) 203 - standards of preference in interpreting a K 204 Supplying an omitted essential term if they want a K, court will help 205 duty of good faith/fair dealing 206 K interpreted against the draftsman 208 unconscionable terms court may take action (void K, void term, limit application) INTEGRATION 209 - integration 210 complete and partial integration PAROLE EVIDENCE 213 Parole evidence rule 214 evidence of prior or contemporaneous agreements 215 contraiction of integrated terms 216 consistent additional terms SCOPE OF TERM 222 usage of trade 223 course of dealing CONDITIONS 224 condition defined (unless non occurrence excused = WAIVER) 225 effects of non occurrence of a condition 226 how an event may become a condition PERFORMANCE BREACH 237 effect of other partys failure to perform 241- How to determine materiality of a failure 242 circumstances in determining when duties are discharged REPUDIATION 250 when is an act a repudiation? 251 when failure to give assurance is a repudiation IMPRACTICABILITY

261- Discharge by supervening impracticability 263- destruction of failure to come into existence of a thing 265- discharge by frustration REMEDIES 344- purposes 347- measuring damages (Expectation) 349 Reliance damages 350 Avoidability as limitation on damages 351 - foreseeability 352 uncertainty 355 Punitive damages 356 Liquidated damages SPECIFIC PERFORMANCE/INJUNCTION 359 Adequacy of damages 360 Factors of adequacy of damages 367 personal service contracts UCC: UCC 2-201 Statute of Frauds UCC 2-202 Parol evidence (DIFF FROM COMMON LAW) UCC 2-203 - seals UCC 2-204 K formation can omit terms if can still determine remedy (DIFF FROM COMMON LAW) UCC 2-205 Firm offer (option K held open) (DIFF FROM COMMON LAW) UCC 2-206 Offer and Acceptance (DIFF FROM COMMON LAW) UCC 2-207 Battle of the forms UCC 2-208 course of performance or practical construction UCC 2-209 modification, rescission, and waiver (DIFF FROM COMMON LAW) UCC 2-302 unconscionable K or clause UCC 2-305 Open price term UCC 2-610 - Repudiation UCC 2-611 retraction of anticipatory repudiation UCC 2-703 Sellers remedies UCC 2-710 sellers incidental damages UCC 2-711 Buyers remedies UCC 2-715 Buyers incidental and consequential damages UCC 2-716 Buyers right to specific performance UCC 2-718 - Liquidation UCC 2-719 contractual modification

UCC EXPLANATION: UCC 2-201 Statute of Frauds

A K must be in writing if: for goods > $500. Just need a memo, which is sufficient to indicate a K has been made and is signed by party against whom enforcement is sought. (even if it contains a mistake or omission) some writing sufficient to indicate that a contract for sale has been made between the parites and signed by the party against whom enforcement is sought. Exempted if: Specially manufactured goods: not suitable for resale to others and seller has made substantial beginning of their manufacture or commitments for their procurement Estoppel: if a party admits in court documents that a K for sale was made (but not enforceable beyond quantity of goods admitted) Goods accepted or paid for: goods for which payment has been made and accepted or which have been received and accepted. UCC 2-202 Parol evidence (DIFF FROM COMMON LAW) Essentially same as common law except can interp using 1) course of dealing (past agreements) 2) or use of trade or course of performance or by evidence of consistent additional terms (unless total integration) UCC 2-203 - seals UCC 2-204 K formation can omit terms if can still determine remedy (DIFF FROM COMMON LAW) 1) Any manner sufficient to show agreement including conduct by both parties. 2) Even if moment of making is uncertain. 3) Even though some terms are left open, K will not fail for indefiniteness if parties have intended to make a K and there is a reasonably certain basis for giving appropriate remedy. UCC 2-205 Firm offer (option K held open) Merchant (DIFF FROM COMMON LAW) An offer in a signed writing which assures it will be held open is not revocable during time stated or during reasonable time (if no time written) -Cant exceed three months Must be separately signed by offeror UCC 2-206 Offer and Acceptance (DIFF FROM COMMON LAW) Offer invites acceptance in any manner Shipment of nonconforming goods is not acceptance if seller notifies buyer that shipment is only an accommodation 2) an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed.

UCC 2-207 Battle of the forms (Consumers and merchants but no last show with consumers) 1. A definite and seasonable expression of acceptance 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 agreed upon, b. unless acceptance is expressly made conditional on assent to the additional or different terms (a.k.a. counter-offer). 2. The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: a. The offer expressly limits acceptance to the terms of the offer; b. They materially alter it; c. Notification of objection to them has already been given or is given within a reasonable time after notice of the term 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 4. The court will provide missing terms 5. The court will use Knock out rule to eliminate conflicting terms, will use gap-fillers instead. 6. A document memorializing an oral agreement is a confirmation a. Terms can be added in confirmation if NOT material a. And receiving party does not object b. Terms in confirmation that are different from those in oral agreement will probably not become part of agreement UCC 2-208 course of performance or practical construction The meaning of the agreement will be found using meaning of previous agreements Importance in determining meaning: Express terms, course of performance, course of dealing, usage of trade (least important) UCC 2-209 modification, rescission, and waiver (DIFF FROM COMMON LAW) 1)A modification needs no consideration to be binding 2) Only reqs made in good faith and for legitimate commercial reason 3)Must still satisfy S.O.F. 4) If modification/recission does not satisfy 2, 3 can still be a waiver 5) a party making a waiver may retract by giving party adequate notice as long as this would still be fair in view of a material change in reliance on the waiver.

UCC 2-302 unconscionable K or clause 1) court may amdend K, void K, or void clause if unconscionable 2) parties will be allowed to show that commercial setting, purpose and effect make clause/K not unconscionable UCC 2-305 Open price term If they intend, parties can have a K with no price settled. Price is reasonable at time of delivery if: * nothing is said regarding price * price is left to be agree by the parties and they fail to agree * price is to be fixed in terms of some agreed market or other standard which is never set Must be fixed in good faith -If price fails to be fixed through fault of one party, the other may treat the K as cancelled or otherwise fix a reasonable price. -If the parties only intend to be bound if a price is fixed and one is not, then no K formed. UCC 2-610 Repudiation If one party repudiates the other may: -Await performance for a commercially reasonable time -Resort to a remedy for breach even though he has notified other party that he would wait for performance and otherwise encouraged them to retract their repudiation - suspend his own performance or proceed UCC 2-611 retraction of anticipatory repudiation -Until next performance is due, repudiator may retract unless aggrieved party has cancelled or materially altered his position or otherwise indicated that he believed the repudiation to be final -May retract in any way that sufficient to inform other party that has retracted -Reinstates repudiating partys rights under K with reasonable allowances for delay UCC 2-703 Sellers remedies If breach, seller may: -Withhold delivery of goods - stop delivery by any bailee - resell and recover damages (2-706) -recover damages for non-acceptance -cancel UCC 2-710 sellers incidental damages Include: any commercially reasonable charges, expenses, or commissions incurred in stopping delivery, care and custody, cost of return and resale. UCC 2-711 Buyers remedies When seller fails to make delivery or repudiates or rightfully rejects, may a. cover and have damages to all goods whether or not identified in the K

b. recover damages for non-delivery as provided in 2-713 2. Where seller fails to repudiate: a. if the goods have been identified recover them as provided in this article 3. on rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and expenses reasonably incurred in their inspection receipt, transportation, custody and may hold goods and sell them as aggrieved seller. UCC 2-715 Buyers incidental and consequential damages Incidental damages resulting from breach include reasonable expenses incurred in transportation, inspection ,care, etc Consequential damages: any loss from general or particular requirements and needs of which the seller at the time of contracting has reason to know and which could not reasonably be prevented by cover or otherwise AND injury to person or property resulting from breach UCC 2-716 Buyers right to specific performance (?) Specific performance when goods are unique What we already know from common law about the right to specific performance. UCC 2-718 - Liquidation Liquidated damages like in common law and treat material breach like in common law.. 2) Where seller justifiably withholds delivery of goods because of the buyers breach, Buyer is entitled to restitution of any amount to whch the sum of his payment exceeds: a. amount to which seller is entitled by virtue of terms liquidating the sellers damage b. in the absence of such terms, 20% of the value of the total performance for which buy is obligated under the K OR $500, whichever is smaller UCC 2-719 contractual modification The agreement may provide for remedies in addition to or substitution for those provided above and may limit or alter damages May resort to a remedy as provided is optional unless experessly agreed to be exclusive Where circumstances cause an exclusive or limited remedy to fail in its essential purpose, remedy may be taken from this act Consequential damages may be limited or excluded unless this is unconscionable Damage to individuals in the case of consumer goods cannot be limited. Limitation of damages in injury where loss is not commercial is not.