Very Specific House being built.

Objective Intent to be bound.

What reasonable man would think not what the specific intent was.

Duty to read, if you want to know what your agreeing to you have a duty to read.

s 21 case

Deal over Drinks

Terms on the Napkin, (a) how serious were talks, (b)how much detail, (c) was it plausible, (d) was it signed

Past dealings, Prior history.

Past dealings between parties made it reasonable for the buyer to believe the seller was serious, and the seller should reasonably have known that.

Past dealings between parties may make it reasonable.

If you had reasonable offers before and manifestation before. (details matter)

 S 21 case

Jet Plane

Would an objective person see it as reasonable

Reasonable person would not have believed that an offer actually existed, therefor no OIB

S 21 case

S 26 case

LA land for sale

Ad a mere request for an offer

letter contains no definite offer

too much liability to be an offer

Ad as an offer: $3,000 off Ranger

would reasonable person view ad as offeror intending to be bound.

Reasonable person would see ad as offer. (language consistent)

Alleged offer must be viewed as a whole. If reasonable person objectivly views it as an offer then subjective(specific) intent does not matter. 

S 45, S 43, S 39, S 25 w/o consideration case

House sale, counter offer, thinking option contract. 

House sold to third party

Was counter offer an Option K?

No was not an option K.

Counter offer negated first offer including the set amount of time. (no set time no option)

S 42 case before S 45 case

Mortgage Payment, Unilateral K revoked at last second.

Offeror tells offeree I revoke at door before offeree can tender payment for the mortgage.

S 45 case

Real estate bonus denied

Does part performance constitute acceptance of the offer?

Yes part performance, tender, or beginning of tender creates an option that cannot be revoked under S 45.

In MO have to have substantial performance. 

UCC Case S 2-204-K formation, S 2-206-Offer and acceptance case.

Deal for steal. Denied last shipment b/c said shipped late.

When is a K formed under UCC?

K was formed during phone conversations even though not all terms definite.

Talk over phone reasonable way to form K.

Other details supplementary terms.

S 71: Bargain for Exchange

Anti S 79: Benefit or Detriment

Anti S 79 Case

Uncle promises $5,000 to nephew if he didnt smoke or drink or gamble till 21.

Was there consideration?

Yes Benefit to uncle cause knows nephew living good life, or detriment to nephew cause he gave up a legal right which is a detriment to him.

S 71 case, S 79

Free concrete for paving of parking lot

Was there consideration?

Yes there was, there was a bargain for exchange test met.

Had reciprical inducement: One induced by getting rid of concrete w/o dispossal fees, other got free concrete.

S 71, S 79 case

8 year old orphan promissory note

Aunt says giving boy money for being a good boy

Was there consideration for payment?

No an executory gift.

No BFE boy did nothing in exchange for gift cant use past consideration of being a good boy

(family makes it look more like a gift) 

S 79 case

Agreed to pay $2,000 U.S. for $500,000 Drachmas($25U.S)

Was there consideration?

Can court decide Adequacy?

Mere inadequacy of consideration does not negate K.

She got what she bargained for.

Court wont fix bad K you entered into.

Mere Peppercorn.

S 77 case, Not consideration Case

Retirement Pensions During Depression

Was it a gift or K?

past consideration/ action is not consideration offer was a gift.

Moral Obligation not consideration.

S77 option to maybe come do training illusory because had option to do or not, and type of work they did not kind that would use training cause basic labor.

1. Promise

2. Promissor must reasonbly expect to induce

3. Detrimental Reliance: Change in Position, you change behavior

4. Injustice: only if K not inforced.

S 90 Case

Sister in law move onto land and then gets kicked off by brother in law after 2 years.

Was there sufficient consideration for promise?

No was a gratuitous promise, Moving was just a condition on the gift not a promise, there was no exchange.

Can't detrimentally rely on a gift, or condition on a gift.

S 90 Case

Mother offers disinherited son land if he moves to where she is, which he reasoanbly relied upon, and when she would not give him the land it was to his detriment.

Made this promise within a family dispute binding, not by K but through S 90 PE. 

S 90 case

Child support, not biological father, puts name on birth certificate.

made an implied promise by putting name on birth certificate and taking father like duties to support the child, reasonably should have expected mother to rely on this promise, Detriment: mother did rely on it by not locating biological father to collect support from him which now puts her at a detriment of no support for child.

Only way to avoid injustice of no support for child in money or father is to enforce the promise.

S 71 (recipircal inducement) case, makes S 90 stronger case.

Pledge for $5,000 Scholarship fund upon death. Gave 1k before death then repudiated the promise.

Cardozo talks a lot about promissory estoppel to enforce theory and make it stronger, and shows that PE could have been used b/c of promise, college's reliance, detriment of not getting it, and the injustice only fixed by enforcing it.

Ultimately says was consideration: the fund being used as she wished and named in her memory was the schools consideration. 

S 90(2) Case

Charitable pledge supported by PE

Charitable subsciption: Donative Intent:

BU relied on donative intent beyond what was required for a bailment to their detriment. 

S 90 case 

Cracked head pension.

Was there Detrimental relience?

Yes, DR does not have to be giving up a legal right it just requires a change in position.

Elements of PE are present.

detrimental reliance even though he would have been fired if he didn't accept pension plan: Detrimental Reliance by loss of $10,000 a year in earnings. 

S 90

Homeowners Insurance: did not renew insurance because mortgager said they would if they did not, relied on this and house burned down w/o insurance:

Are PE elements Met?

remanded to jury to address PE elements.

PE Analysis

Elements:

1. promise

2. promisory should reasonably expect promisee to rely

3. Detrimental reliance (change in position)

4. Injustice only if K not enforced.

1. Some benefit

2. Not officiously conferred: Officiousness means forcing the benefit upon someone when it is not justified, could they have negotiated a deal or could they not have?

3. Benefit is know and accepted.

UE case

Hospital detainment case

court concluded man was liable for payment of the hospital bill under a theory of K implied in law. Based on fact that man benefited from his hospitalization for which he should pay.

UE Case

Stucco subcontractor case:

could maintain UE action against an owner if it proved 2 elements to establish that enrichment of the owner was unjust.

1. that the sub had exhaused all remedies against the general contractor and still remained unpaid, and

2. that the owner had not given consideration (in this case payment) to any person for the improvements furnsihed by the sub. No UE because owner had paid the general contractor for the work so was not unjustly enriched by it. 

UE Case

Couple action married but really not married:

Her work for him and housekeeping can work under UE. Could have UE claim as he received benefit from her which he was unjustly enriched, and did not compensate her for it.

1. A promise

2. in recognition of previously received material benefit(has to be something that you are able to value)

3. to the extent necessary to prevent injustice

4. not gratuitous:(would satisfy consideration if you had something to be a K)(BFE or B/D)

5. Unjust Enrichment of the Promissor(the concept of UE but not the claim of UE, so not about proving an UE claim just proving the concept of UE i.e. benefit for which one should pay)

6. Not disproportionate to the value of the benefit received( Remedy is limited to avoid being disproportionate to the beneft) 

S 86 Promissory Restitution case

Taking care of sick Son

not PR because father did not receive a benefit for which he should pay, does not matter that he made an expressed promise to pay

S 86 Promissory Restitution Case

Worker saves boss from death case:

saved life by jumping with log and boss subsequently agreed to pay him for the service rendered, thus it beamce a valid and enforceable equitable K.

Moral Obligation: is sufficient consideration to support an express promise where the promisor has received an actual pecuniary or material benefit for which he subsequently expressly promised to pay. 

Did not save him for gratuitous moral reasons, but saved him to likely save his job. 

S 87(2) Case

Subcontract for pavement of school

did P's reliance make D's offer irrevocable?

yes: P relied on D's offer and it is irrevocable

When P used D's offer in computing his own bid he bound himself to perform in reliance on D's terms.

It was to D's own interest that the contractor be awarded the general K the lower the sub's bid, the lower the geral bid was likely to be and the greater its chance of acceptance and hence the greater the D's chance of getting the sub K. D had reason not only to expect P to rely on its bid, but to want him to. 

1. Offer

2. offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree

3. before acceptance

4. and which does induce such action or forbearance

5. is binding as an option-K 

6. to the extent necessary to avoid injustice

S 25 case- option K

Land sale, with an Option to hold open for 120 days for $10 consideration.

Option K? PE?

No option K-because the $10 was never paid so had no consideration for the option (have to have consideration for the optoin and seperate consideration for the whole K)

No PE- evidence he desires to have support PE does not relate to acts which could reasonably be expected as a result of extending the optoin promise. 

S 90 case, Assurances Case

TCBY franchise, assurances of lease spot on boardwalk.

Have reliance based on assurances during preliminary negotiations. Different rom Berryman b/c in Berryman there was  clear offer and clear terms that are easier to see.

Since Original offer from P they cant rely on their own promise for PE, so they must rely on the assurances from the hotel. 

The Detrimental reliance is clear but is this the type of promise that you can hang your hat on, and reasonably rely?

Reliance becomes discussion

Assurances can possibly be promises for detrimental reliance. Question for the Jury

• S 25: K theory-Berryman
• S 45-K Theory- Partial Performance-Cook
• S 87(2) Generally only between general and subcontractors- Creates option to allow irrevocability before acceptance:-Drennan: offer, reasonably expect action...Substantial character, does induce, binding as option. 
• S 90- not an option K but talks about reliance

PPT case:

K for ship Inspect and repair

UCC or Common Law; to determine what terms are in.

Service predominantly=common law= D's language is in.

UCC is for goods and this was for services

PPT:

1.The language of the K

2. the nature of the business of the supplier

3. the intrinsic worth of the materials

Predominate Purpose Test

When used?

Elements?

To determine if it is UCC or CL

When there is a mixture of goods and services

3 factor Test

1. The language of the K

2.The nature of the business of the supplier

3. the intrinsic worth of the materials

When does the UCC apply?

How do you know?

State restatements from UCC.

UCC applies for the sale of goods- S 2-102

Know by using PPT test if mixed or if it is a moveable good.

Formation in General S 2-204

Offer and Acceptance S 2-206

Fill Gaps with Common Law S 1-103

What is required for UCC formation and restatement sections that tell us those requirements:

What are the differences between this and Common Law

UCC- Sale of goods: S 2-102

Formation in General: S 2-204

Offer and Acceptance: S 2-206

Fill gaps with common law:  S 1-103

UCC- more loosy goosy

Common law- much more stringent. 

UCC: Battle of the Forms: S 2-207

Coolwhip container maker

Was the indemnification clause in the K?

Court determined it was not

Because purchase order expressed any other terms do not apply unless expressly agreed to, and they did not expressly agree to the additional terms. 

When merchants send forms back and forth. When the forms do battle: (what terms are in and what terms are out)

1. Acceptance after exchange of documents. /forms with additional/different terms. (classic battle)

2. When we have oral acceptance with a subsequent written memorandum confirming agreement with additional/different terms. 

3. No formal agreement was ever reached via documents but conduct of parties indicates otherwise.

What is the purpose of S 2-207?

And why do we have it?

Purpose: to specify the terms of the K. (whats in and whats out)

Why: because the forms often conflict so there has to be a remedy for the battle of the forms.

What are different Terms

What are additional Terms

Additional: New: adds something new to the document

Different: Conflicting: changes the scope of terms or conditions in previous documents.

1. apply S 2-207(2) anyway: different terms almost never included.

2. offerors terms control: different terms clearly never included

3. Knock out rule: different terms cancel eachother out. UCC gap filler fills term in if one available.

UCC Vocabulary, and restatement

Course of Dealing? 

Course of performance?

Trade Usage?

Merchant?

Between Merchants?

Course of Dealing: S 1-303: Any past relationship when contracted in past, prior behavior under prior K's

Course of Performance: S 2-208: How parties acted under K in dispute

Trade Usage: S 1-303: Normal industry standards, normal for your geographic region

Merchant: S 2-104: Someone who deals in goods, or has substantial knowledge or skill in those goods.

Between Merchants: S 2-104: two merchants doing a K.

Agreement to agree case and S 33 case

Lease w/ renewal option but no rent amount set.

Can the court enforce an option w/o specific terms?

No certainty unclear S 33- court wont make up an amount.

Because material and essential elements such as amount of rent must be established with reasonable certainty to asscertain breach.

No Agreement to agree

S 27 case:

D notified P orally that P had been awarded the K. The P was informed that a written K prepared by D would be received shortly. D sent a letter of intent to P which indicated that a written K would be prepared and that P could D could cancel letter of intent if the parties faild to agree on a fully executed subK agreement. At meeting with P's subs D announced that P would be the general contractor for the project. Immediately following meeting D told P that that his involvement was terminated. 

Court says it was ambigious, maybe wanted to be bound maybe didnt. 

No duty to be bound to the ultimate deal, but are obligated to try to complete it (when talking about agreeing to negotiate in good faith)

1: is this something that's often in writing?

2. How many details? the more details the more likely an intent to be bound

3. How much money? more money it costs the more expectations that terms must be worked out.

4. Do they talk about formal K being done at completion of preliminary negotiations?

5. If intended to not perform until all terms are worked out then may show that there is no OIB till the actual K is ready. 

Existence of K where written memorial is contemplated:

Manifestations of assent that are in themselves sufficient to conclude a K will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial therof; but the circumstances may show that the agreements are preliminary negotiations. 

Remember to look at notes a. b. and c. if this comes up on test. 

S 27 case: note C.

P hired to make improvements, letter of intent sent, K to come later. then D backed out.

Was letter of intent enforceable K?

Letter was ambigious as to manifestation to be bound.

Included detailed terms and wanted to start work in 5 days (sufficient time to draw up K?) but cancellation clause might have showed they were not bound untill formal agreement. 

Note c. Factors court will consider when determining if parties intended to reduce the agreement to writing. 

Requirement that certain types of K's be memoralized in writing with a sufficient signature.

A defense to K enforcement.

1. is this K the type that falls within the SOF?

S 110: Types of K's covered: Land K provision, and One year provision

If yes need writing

2. If yes to 1 is there a sufficient memorandum?

S 131 General requisites of Memo,

S 132 Several Writings: Linking Documents

3. If yes to 1 but no to 2, does an exception to SOF apply?

S 129 Land K exception

S 130 exception to one year

S 139 Promissory Estoppel Exeception to SOF

S 110 case: S 130 K not to be performed within a year case: S 132 linking documents case:

Employment K for 2 yr w/ pay increase: had several different writtings. 

Does unsigned office memo establish length of employment?

Does not violate SOF when several writings establish intent.

Because one document was signed the length of employment does not have to be in that document.

Several writings may be read together w/ same subject material as long as there is convincing connection, and clearly indicated that they relate to same subject material. 

S 129 part performance exception to SOF land K case:

Pharmacy lease: sold to 3rd party but D refuses that agreed to renew lease. 

Within SOF because more than 1 year and interest in land.

Did they have signed document? No

Do they have part performance exception S 129? no because only looking for damages. 

SOF applies because no signature. No S 129 exception for part performance b/c P only seeking damages.

S 129 only enforceable with specific performance not monetory damages. 

S 139 Promissory Estoppel exception to SOF

Job offer to joing P oral offer then revoked.

Can promissory estoppel be used to enforce an oral K within the SOF?

Yes, only if it is to prevent injustice. and all elements of S 139 are met. 

She gave up job, moved, P should have known she would rely, and injustice only avoided by giving damages. 

S 90 is a stand alone claim S 139 is not- it only applies as an exception to SOF requirements. 

What elements must be met for a writing to be sufficient under restatement SOF?

And Restatement that tells us requirements.

and restatements that help explain.

S 131

1. a writing

2. signed by weaseling party

3. reasonably ID's subject matter

4. sufficient to indicate K between the parties

5. States with reasonable certainty essential terms of the unperformed K.

S 132- Linking Documents

S 133- memorandum not made as such

S 134- Signature

S 136 time of memorandum

What is the purpose of S 139?

What are the different ways courts have enforced S 139?

Purpose: so that promises can be enforceable even when it is within the statute of frauds and prevent injustice.

Always exception (KS)

Never exception (MO)

Only an exception if it is a promise that a writing has been created or a promise that a writing will be created. 

Several Writings

A  may consist of several writings if one is signed and the writings in the circumstances clearly indicate that they relate to the same transaction.

Memorandum not made as such:

Statute may be satisfied by a signed writing not made as a memorandum of a K. 

Signature:

Signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer. 

Time of memorandum:

Memorandum sufficient to satisfy the SOF may be made or signed at any time before or after the formation of the K. 

Action in Reliance; Specific Performance

A K for the transfer of an interest in land may be specifically enforced notwithstanding faiulre to compley w/ SOF if it is established that the party seeking enforcement, in reasonable reliance on the K and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement. 

(i.e usually makes improvement to land and landlord leaves it there)

K not to be performed within a year:

1) where any promise in a K cannot be fully performed within a year from the time the K is made, all promises in the K are within the SOF until one party to the K completes his performance.

2) when one party has completed his performance, the one year provision of the Statute does not prevent enforcement of the promises of other parties. 

S 2-201 UCC SOF case

Tobacco Barns 4 Sale, P pays $5,000 of the $20,000 for the barns in a check. D takes check but does not cash it and sends it back a few days later saying not selling.

Did check satisfy the SOF? No it was not signed by the weasling party.

Is there an Exception? Yes acceptance of goods. took it out of SOF S 2-201: Acceptance cause he held himself out to be owner that he had accepted. which is partial performance by taking possession. 

Held himself out as the owner, hired people to do work. 

Specially manufactured

Admit in court

Partial performance: acceptance of goods or acceptance of payment: (limited to what was excepted: thats the only part that falls outside SOF w/ this exception)

Between merchants: Confirmation

PER Case

Rotten Logs Case

Is the warranty collateral? PER, Integrated? Fully or Partially?

Court uses Four Corners approach, it is written down so they intended it, not collateral because warrenty within same scope of the written deal.

Reasoning: Classic approach: Four corners: Best Buy example. the extra extended warrenty.

Modern (restatement) Approach to PER case

Earth moving Sub Contractor

Prior and subsequent oral agreements? Fraud?

Document says 25,000 sq feet, but work is a lot more.

Signs K anyways, says forced to, subsequent oral agreement that will be paid for amount of actual work.

Signed K had a no oral Modification clause

S 209: integrated Agreements

S 210: Completely and partially integrated agreements (how to decide)

S 213 Applying PER on prior agreements

S 214: Exceptions to Parol evidence rule

S 215: Contradictions to integrated terms not allowed by PER

S 216: Consistent additional terms allowed for partially integrated writing

S 217: Oral requirement of a condtion not barred by PER