*Adverse interpretation -Wordage that can be read or interpreted in different ways

*Waiver  (if minor then could be) -Party continues the performance even after non-occurrence of a condition

*Estoppel (intention not to rely, reliance on that manifestation of intention) -Reliance of a condition

*Prevention (wrongfully hindering or preventing the condition from occurring)  -a party acts in a way that does not allow a condition to occur

*Avoidance of forfeiture -Without the condition a party would forfeit some

*(1) Where all or part of the performances to be exchanged under an exchange of promises can be rendered simultaneously, they are to that extent due simultaneously, unless the language or the circumstances indicate the contrary.

(2)  Except to the extent stated in Subsection (1), where the performance of only one party under such an exchange requires a period of time, his performance is due at an earlier time than that of the other party, unless the language or the circumstances indicate the contrary.

*Four factor test

(1) Whether the breach operated to defeat the bargained-for objective of the parties

(2) Whether the breach caused disproportionate prejudice to the non-breaching party

(3) Whether custom and usage consider such a breach to be material

(4) Whether the allowance of reciprocal nonperformance will result in the accrual of an unreasonable and unfair advantage

*In determining the time after which a party's uncured material failure to render or to offer performance discharges the other party's remaining duties to render performance under the rules stated in §§ 237 and 238, the following circumstances are significant:

(a)  those stated in § 241;

(b)  the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements;

(c)  the extent to which the agreement provides for performance without delay, but a material failure to perform or to offer to perform on a stated day does not of itself discharge the other party's remaining duties unless the circumstances, including the language of the agreement, indicate that performance or an offer to perform by that day is important.

*A repudiation is...

(a)  a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under § 243, or

(b)  a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach.

* (1)  Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.

(2)  Where performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render performance discharges the other party's remaining duties to render performance.

*(1) A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return. 

(2) Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards. 

(3) Acceptance of any improper delivery or payment does not prejudice the aggrieved party's right to demand adequate assurance of future performance. 

(4) After receipt of a justified demand failure to provide within a reasonable time not exceeding thirty days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.

1. Restitution interest- P conferred some value to D and D fails to perform. D may have to pay for the value he received from the P 

2. Reliance Interest- P has in reliance on the promise of D changed his position. May award damages to the P for the purpose of undoing the harm which hid reliance on the D’s promise has caused him.

3. Expectation Interest- may seek to give the promisee the value of the expectancy which the promise created. Could compel for Specific performance

*generally courts look to give the “benefit of the bargain” that P would have realized had the agreement been performed

1. Loss in Value difference between the value to of the injured party of the performance that should have been received and the value to that party of what, if anything, actually was received.

2. Other lossgives rise to incidental and consequential damages

3. Cost avoided if the injured party terminates and claims damages for total breach, the breach may have a beneficial effect on that party by saving it further expenditure that would otherwise have been incurred.

4. Loss avoidedif the injured party terminates and claims damages for total breach, the breach may have a further beneficial effect on that party by allowing it to avoid some loss by salvaging and reallocation some or all of the resources that otherwise it would have to devote to performance of K.

1. Damages be reasonably foreseeable

2. Prohibition of speculative damages

3. Duty to mitigate damages

*English Rule-Where the seller is in breach, many courts have traditionally restricted the P purchaser to restitution of any payments made on the purchase price, unless the D seller has breached in “bad faith”

* American Rule Generally awards expectation damages for any unexcused failure to convey, regardless of the GF or BF of the seller. Amer. rule is gaining adherents.

*(1) Subject to subsection (2) and to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach. 

*(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.

*(1) Under the conditions stated in Section 2-703 on seller's remedies, the seller may resell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach.

*(2) Except as otherwise provided in subsection (3) or unless otherwise agreed resale may be at public or private sale including sale by way of one or more contracts to sell or of identification to an existing contract of the seller. Sale may be as a unit or in parcels and at any time and place and on any terms but every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable. The resale must be reasonably identified as referring to the broken contract, but it is not necessary that the goods be in existence or that any or all of them have been identified to the contract before the breach. 

*(3) Where the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell.

* Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by

(a) the loss in the value to him of the other party's performance caused by its failure or deficiency, plus

(b) any other loss, including incidental or consequential loss, caused by the breach, less 

(c) any cost or other loss that he has avoided by not having to perform.

(1) Except as stated in Subsection (2), damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation.

(2) The injured party is not precluded from recovery by the rule stated in Subsection (1) to the extent that he has made reasonable but unsuccessful efforts to avoid loss.

(1) Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made.

(2) Loss may be foreseeable as a probable result of a breach because it follows from the breach

(a) in the ordinary course of events, or

(b) as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know.

(3) A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation.

1. If the loss is within the contemplation of the parties at the time the K was made

2. If the loss flows directly or proximately from the breach- i.e. the loss can be said to have been caused by the breach AND

3. If the loss is capable of reasonably accurate measurement or estimate

(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, 

•(a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and 

•(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. 

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act. 

(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

- Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by

(a) the loss in the value to him of the other party's performance caused by its failure or deficiency, plus

(b) any other loss, including incidental or consequential loss, caused by the breach, less

(c) any cost or other loss that he has avoided by not having to perform.

(1) Except as stated in Subsection (2), damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation.

(2) The injured party is not precluded from recovery by the rule stated in Subsection (1) to the extent that he has made reasonable but unsuccessful efforts to avoid loss.

- Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by

(a) the loss in the value to him of the other party's performance caused by its failure or deficiency, plus

(b) any other loss, including incidental or consequential loss, caused by the breach, less (c) any cost or other loss that he has avoided by not having to perform.

(1) After a breach within the preceding section the buyer may "cover" by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller. 

(2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2-715), but less expenses saved in consequence of the seller's breach. 

(3) Failure of the buyer to effect cover within this section does not bar him from any other remedy.

(1) Subject to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this Article (Section 2-715), but less expenses saved in consequence of the seller's breach. 

(2) Market price is to be determined as of the place for tender or , in cases of rejection after arrival or revocation of acceptance, as of the place of arrival

(1) Where the buyer has accepted goods and given notification (subsection (3) of Section 2-607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable. 

(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. 

(3) In a proper case any incidental and consequential damages under the next section may also be recovered.

(1) Specific performance may be decreed where the goods are unique or in other proper circumstances. 

(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just. 

(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to affect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.

(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. 

(2) Consequential damages resulting from the seller's breach include 

•(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and 

•(b) injury to person or property proximately resulting from any breach of warranty.

(1) Under the conditions stated in Section 2-703 on seller's remedies, the seller may resell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach. 

(2) Except as otherwise provided in in subsection (3) or unless otherwise agreed resale may be at public or private sale including sale by way of one or more contracts to sell or of identification to an existing contract of the seller. Sale may be as a unit or in parcels and at any time and place and on any terms but every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable. The resale must be reasonably identified as referring to the broken contract, but it is not necessary that the goods bein existence or that any or all of them have been identified to the contract before the breach. 

(3) Where the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell. 

(4) Where the resale is at public sale 

•(a) only identified goods can be sold except where there is a recognized market for a public sale of futures in goods of the kind; and

•(b) it must be made at a usual place or market for public sale if one is reasonably available and except in the case of goods which are perishable or threaten to decline in value speedily the seller must give the buyer reasonable notice of the time and place of the resale; and

•(c) if the goods are not to be within the view of those attending the sale the notification of sale must state the place where the goods are located and provide for their reasonable inspection by prospective bidders; and

(1) Subject to subsection (2) and to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach. 

(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.

(1) When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section, the price 

•(a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and 

•(b) of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.

(2) Where the seller sues for the price he must hold for the buyer any goods which have been identified to the contract and are still in his control except that if resale becomes possible he may resell them at any time prior to the collection of the judgment. The net proceeds of any such resale must be credited to the buyer and payment of the judgment entitles him to any goods not resold

(3) After the buyer has wrongfully rejected or revoked acceptance of the goods or has failed to make a payment due or has repudiated (Section 2-610), a seller who is held not entitled to the price under this section shall nevertheless be awarded damages for non-acceptance under the preceding section.

(1) Subject to the rule stated in Subsection (2), on a breach by non-performance that gives rise to a claim for damages for total breach or on repudiation, the injured party is entitled to restitution for any benefit that he has conferred on the other party by way of part performance or reliance.

(2) The injured party has no right to restitution if he has performed all of his duties under the contract and no performance by the other party remains due other than payment of a definite sum of money for that peformance

(1) Subject to the rule stated in Subsection (2), if a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party's breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach.

(2) To the extent that, under the manifested assent of the parties, a party's performance is to be retained in the case of breach, that party is not entitled to restitution if the value of the performance as liquidated damages is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss.

(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

(2) Where the seller justifiably withholds delivery of goods because of the buyer's breach, the buyer is entitled to restitution of any amount by which the sum of his payments exceeds

•(a) the amount to which the seller is entitled by virtue of terms liquidating the seller's damages in accordance with subsection (1), or 

•(b) in the absence of such terms, twenty per cent of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller. 

(3) The buyer's right to restitution under subsection (2) is subject to offset to the extent that the seller establishes 

•(a) a right to recover damages under the provisions of this Article other than subsection (1), and 

•(b) the amount or value of any benefits received by the buyer directly or indirectly by reason of the contract 

(4) Where a seller has received payment in goods their reasonable value or the proceeds of their resale shall be treated as payments for the purposes of subsection (2); but if the seller has notice of the buyer's breach before reselling goods received in part performance, his resale is subject to the conditions laid down in this Article on resale by an aggrieved seller (Section 2-706).

(1) Subject to the rule stated in Subsection (2), if a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party's breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach.

(2) To the extent that, under the manifested assent of the parties, a party's performance is to be retained in the case of breach, that party is not entitled to restitution if the value of the performance as liquidated damages is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss.

If a sum of money is awarded to protect a party's restitution interest, it may as justice requires be measured by either

(a) the reasonable value to the other party of what he received in terms of what it would have cost him to obtain it from a person in the claimant's position, or

(b) The extent to which the other party's property has been increased in value or his other interests advanced.

In determining whether the remedy in damages would be adequate, the following circumstances are significant:

(a) the difficulty of proving damages with reasonable certainty,

(b) the difficulty of procuring a suitable substitute performance by means of money awarded as damages, and

(c) the likelihood that an award of damages could not be collected.

(1) Specific performance or an injunction will be refused if such relief would be unfair because

(a) the contract was induced by mistake or by unfair practices,

(b) the relief would cause unreasonable hardship or loss to the party in breach or to third persons, OR

(c) the exchange is grossly inadequate or the terms of the contract are otherwise unfair.

(2) Specific performance or an injunction will be granted in spite of a term of the agreement if denial of such relief would be unfair because it would cause unreasonable hardship or loss to the party seeking relief or to third persons.

(1) Specific performance may be decreed where the goods are unique or in other proper circumstances.

(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.

(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to affect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.

(1) When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section, the price

•(a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and

•(b) of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.

(2) Where the seller sues for the price he must hold for the buyer any goods which have been identified to the contract and are still in his control except that if resale becomes possible he may resell them at any time prior to the collection of the judgment. The net proceeds of any such resale must be credited to the buyer and payment of the judgment entitles him to any goods not resold.

(3) After the buyer has wrongfully rejected or revoked acceptance of the goods or has failed to make a payment due or has repudiated (Section 2-610), a seller who is held not entitled to the price under this section shall nevertheless be awarded damages for non-acceptance under the preceding section.

(1) A promise to render personal service will not be specifically enforced.

(2) A promise to render personal service exclusively for one employer will not be enforced by an injunction against serving another if its probable result will be to compel a performance involving personal relations the enforced continuance of which is undesirable or will be to leave the employee without other reasonable means of making a living.

1. Did the parties intend to provide for damages or for a penalty?

2. Is the injury caused by the breach one that is difficult or incapable of accurate estimation at the time of the K?

3. Are the stipulated damages a reasonable forecast of the harm caused by the breach?

1. A provision for liquidated damages will be enforceable if the amount fixed is reasonable in light of the “anticipated or actual loss” and 

2. The difficulties of proof of loss

(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

(2) Where the seller justifiably withholds delivery of goods because of the buyer's breach, the buyer is entitled to restitution of any amount by which the sum of his payments exceeds

•(a) the amount to which the seller is entitled by virtue of terms liquidating the seller's damages in accordance with subsection (1), or

•(b) in the absence of such terms, twenty per cent of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller.

(3) The buyer's right to restitution under subsection (2) is subject to offset to the extent that the seller establishes

•(a) a right to recover damages under the provisions of this Article other than subsection (1), and

•(b) the amount or value of any benefits received by the buyer directly or indirectly by reason of the contract.

(4) Where a seller has received payment in goods their reasonable value or the proceeds of their resale shall be treated as payments for the purposes of subsection (2); but if the seller has notice of the buyer's breach before reselling goods received in part performance, his resale is subject to the conditions laid down in this Article on resale by an aggrieved seller (Section 2-706).

(1)  A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect

(a)  he is unable to understand in a reasonable manner the nature and consequences of the transaction, or

(b)  he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition.

(2)  Where the contract is made on fair terms and the other party is without knowledge of the mental illness or defect, the power of avoidance under Subsection (1) terminates to the extent that the contract has been so performed in whole or in part or the circumstances have so changed that avoidance would be unjust. In such a case a court may grant relief as justice requires.

A person incurs only voidable contractual duties by entering into a transaction if the other party has reason to know that by reason of intoxication

(a)  he is unable to understand in a reasonable manner the nature and consequences of the transaction, or

(b)  he is unable to act in a reasonable manner in relation to the transaction.

(1)  Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare.

(2)  If a party's manifestation of assent is induced by undue influence by the other party, the contract is voidable by the victim.

(3)  If a party's manifestation of assent is induced by one who is not a party to the transaction, the contract is voidable by the victim unless the other party to the transaction in good faith and without reason to know of the undue influence either gives value or relies materially on the transaction.

*Basic elements of economic duress:

1. The party alleging econ. Duress must show that he has been the victim of a wrongful or unlawful act or threat and

2. Such act or threat must be one which deprives the victim of his unfettered will    

*Another aspect (without free will:     

1. One party involuntarily accepted the terms of another     

2. Circumstances permitted no other alternative     

3. Such circumstances were the result of coercive acts of the other party

If conduct that appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.  

  -Economic duress makes K’s voidable instead of void, decided on by victim

(1)  If a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim.

(2)  If a party's manifestation of assent is induced by one who is not a party to the transaction, the contract is voidable by the victim unless the other party to the transaction in good faith and without reason to know of the duress either gives value or relies materially on the transaction

(1)  A threat is improper if

(a)  what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property,

(b)  what is threatened is a criminal prosecution,

(c)  what is threatened is the use of civil process and the threat is made in bad faith, or

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

(2)  A threat is improper if the resulting exchange is not on fair terms, and

(a)  the threatened act would harm the recipient and would not significantly benefit the party making the threat,

(b)  the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or

(c)  what is threatened is otherwise a use of power for illegitimate ends.

*Judge Posner stated that the fact a party agreed to a settlement because of a desperate need for cash could not be the basis for duress unless the oher sie had cause the financial hardship-For economic duress there must be a causal link between coercive acts and circumstances of economic duress-Other courts have held that it is enough that one party takes advantage of the other sides dire circumstances without having caused the financial hardship

-For economic duress there must be a causal link between coercive acts and circumstances of economic duress-Other courts have held that it is enough that one party takes advantage of the other sides dire circumstances without having caused the financial hardship

1. discussion of the transaction at an unusual or inappropriate time 

2. Consummation of the transaction in an unusual place 

3. Insistent demand that the business be finished at one 

4. Extreme emphasis on untoward consequences of delay

5. The use of multiple persuaders by the dominant side against a single servient party 

6. Absence of 3rd party advisors to the servient party

7. Statements that there is no time to consult financial advisors or attorneys

(1) Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare.

(2)  If a party's manifestation of assent is induced by undue influence by the other party, the contract is voidable by the victim.

(3)  If a party's manifestation of assent is induced by one who is not a party to the transaction, the contract is voidable by the victim unless the other party to the transaction in good faith and without reason to know of the undue influence either gives value or relies materially on the transaction.

(1)  If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient.

(2)  If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by one who is not a party to the transaction upon which the recipient is justified in relying, the contract is voidable by the recipient, unless the other party to the transaction in good faith and without reason to know of the misrepresentation either gives value or relies materially on the transaction.

(1)  A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker

(a)  knows or believes that the assertion is not in accord with the facts, or

(b)  does not have the confidence that he states or implies in the truth of the assertion, or

(c)  knows that he does not have the basis that he states or implies for the assertion.

(2)  A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so.

(1)  An assertion is one of opinion if it expresses only a belief, without certainty, as to the existence of a fact or expresses only a judgment as to quality, value, authenticity, or similar matters.

(2)  If it is reasonable to do so, the recipient of an assertion of a person's opinion as to facts not disclosed and not otherwise known to the recipient may properly interpret it as an assertion

(a)  that the facts known to that person are not incompatible with his opinion, or

(b)  that he knows facts sufficient to justify him in forming it.

To the extent that an assertion is one of opinion only, the recipient is not justified in relying on it unless the recipient

(a)  stands in such a relation of trust and confidence to the person whose opinion is asserted that the recipient is reasonable in relying on it, or

(b)  reasonably believes that, as compared with himself, the person whose opinion is asserted has special skill, judgment or objectivity with respect to the subject matter, or

(c)  is for some other special reason particularly susceptible to a misrepresentation of the type involved.

* §161. When Non-Disclosure Is Equivalent To An Assertion

A person's non-disclosure of a fact known to him is equivalent to an assertion that the fact does not exist in the following cases only:

(a)  where he knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation or from being fraudulent or material.

(b)  where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the contract and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing

(c)  where he knows that disclosure of the fact would correct a mistake of the other party as to the contents or effect of a writing, evidencing or embodying an agreement in whole or in part

.(d)  where the other person is entitled to know the fact because of a relation of trust and confidence between them.

(1)  If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient.

(2)  If a party's manifestation of assent is induced by either a fraudulent or a material misrepresentation by one who is not a party to the transaction upon which the recipient is justified in relying, the contract is  by the recipient, unless the other party to the transaction in good faith and without reason to know of the misrepresentation either gives value or relies materially on the transaction.

*”a party may reasonably expect the other to take normal steps to inform himself and to draw his own conclusions”

Action intended or known to be likely to prevent another from learning a fact is equivalent to an assertion that the fact does not exist.

*Several courts have indicated that a party who seeks rescission because of disclosure must show actual knowledge by the other party of the undisclosed facts

If a party's manifestation of assent is induced by the other party's fraudulent misrepresentation as to the contents or effect of a writing evidencing or embodying in whole or in part an agreement, the court at the request of the recipient may reform the writing to express the terms of the agreement as asserted,

(a)  if the recipient was justified in relying on the misrepresentation, and

(b)  except to the extent that rights of third parties such as good faith purchasers for value will be unfairly affected.

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

(1)  A promise to refrain from competition that imposes a restraint that is ancillary to an otherwise valid transaction or relationship is unreasonably in restraint of trade if

(a)  the restraint is greater than is needed to protect the promisee's legitimate interest, or

(b)  the promisee's need is outweighed by the hardship to the promisor and the likely injury to the public.

(2)  Promises imposing restraints that are ancillary to a valid transaction or relationship include the following:

(a)  a promise by the seller of a business not to compete with the buyer in such a way as to injure the value of the business sold;

(b)  a promise by an employee or other agent not to compete with his employer or other principal;

(c)  a promise by a partner not to compete with the partnership.

1. if the restraint is greater than necessary to protect the employer’s legitimate interest; or

2. If that interest is outweighed by the hardship to the employee and the likely injury to the public

A public policy against the enforcement of promises or other terms may be derived by the court from

(a)  legislation relevant to such a policy, or

(b)  the need to protect some aspect of the public welfare, as is the case for the judicial policies against, for example,

(i)  restraint of trade (§§ 186-188),

(ii)  impairment of family relations (§§ 189-191), and

(iii)  interference with other protected interests (§§ 192-196, 356).

(1)  A promise to refrain from competition that imposes a restraint that is ancillary to an otherwise valid transaction or relationship is unreasonably in restraint of trade if

(a)  the restraint is greater than is needed to protect the promisee's legitimate interest, or

(b)  the promisee's need is outweighed by the hardship to the promisor and the likely injury to the public.

(2)  Promises imposing restraints that are ancillary to a valid transaction or relationship include the following:

(a)  a promise by the seller of a business not to compete with the buyer in such a way as to injure the value of the business sold;

(b)  a promise by an employee or other agent not to compete with his employer or other principal;

(c)  a promise by a partner not to compete with the partnership.

(1)  A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.

(2)  In weighing the interest in the enforcement of a term, account is taken of

(a)  the parties' justified expectations,

(b)  any forfeiture that would result if enforcement were denied, and

(c)  any special public interest in the enforcement of the particular term.

(3)  In weighing a public policy against enforcement of a term, account is taken of

(a)  the strength of that policy as manifested by legislation or judicial decisions,

(b)  the likelihood that a refusal to enforce the term will further that policy,

(c)  the seriousness of any misconduct involved and the extent to which it was deliberate, and

(d)  the directness of the connection between that misconduct and the term.

(1)  If less than all of an agreement is unenforceable under the rule stated in § 178, a court may nevertheless enforce the rest of the agreement in favor of a party who did not engage in serious misconduct if the performance as to which the agreement is unenforceable is not an essential part of the agreed exchange.

(2)  A court may treat only part of a term as unenforceable under the rule stated in Subsection (1) if the party who seeks to enforce the term obtained it in good faith and in accordance with reasonable standards of fair dealing.

(1)  A promise by a person contemplating marriage or by a married person, other than as part of an enforceable separation agreement, is unenforceable on grounds of public policy if it would change some essential incident of the marital relationship in a way detrimental to the public interest in the marriage relationship. A separation agreement is unenforceable on grounds of public policy unless it is made after separation or in contemplation of an immediate separation and is fair in the circumstances.

(2)  A promise that tends unreasonably to encourage divorce or separation is unenforceable on grounds of public policy.

1) ONE PARTY INVOLUNTARILY ACCEPTED THE TERMS OF ANOTHER    

(2) CIRCUMSTANCES PERMITTED NO OTHER ALTERNATIVE, AND

(3) CIRCUMSTANCES WERE THE RESULT OF COERCIVE ACT OF THE OTHER PARTY