k merges 2000f 2 chart

REMEDIESBasic K Damages Expectancy: gains prevented Reliance: losses caused Restitution: restoration of benefit

conferred

Hawkins (expectancy)Sullivan (reliance)Cotnam v. Wisdom (quantum meruit)

Buyer’s Damages: K – market price C/L: time and place to be

delivered (Acme Mills; Missouri Furnace)

UCC §2-610: Antic. Repud: cover or damages. Timing?

UCC §2-708: time and place of tenderUCC §2-712: cover allowed & encouraged;UCC §2-713: time buyer learned of breach;UCC §2-723: damages at time learned of repudiation;

NEW RULE (Cosden): damages at com’lly reasonable time after learned of repudiation.

Acme Mills (damages = 0)

Missouri Furnace (cover at your own risk when installment K)

Construction Contracts cost of completion (public bldg) market value

consider: proportionate costs, public

interest, unique (known) subjective value, willful breach

Restatement 2d §346: dimunition in market value OR reasonable cost of completing

performance or remedying defects if not disproportionate to loss

Groves v. John Wonder (builder refused to level land) (cost of completion)

Peevyhouse (Oklahoma stripminers)

Laurin (dim. in value inadequate; gave gravel)

Plante v. Jacobs (diminished value + clearly separable defects)

liquidated damages NO penalty

Restatement 2d §356LD only in amt reasonable:

UCC §2-718same as restatement +

City of Rye (not enforceable)

REMEDIES must relate to actual damages anticipated/anticipatable

probable harm

ex ante v. ex post perspective policy of encouraging betting

anticipated OR actual loss AND diff. of proof of loss

“inconvenience or nonfeasibility of otherwise obtaining an adequate remedy”

Yockey (sleazy no lawsuit agt)

Muldoon (no int’l penalty)

Grenier (engineer letter: LD had “penal” but not a penalty clause; damages escalated but not penalty; BUT could not create mat’l breach)

mitigation duty to take ordinary prudent

action

construction = stop performing when breach (get costs + exp. profit)

employment = comparable employment

Rockingham County (bridge)

Bunge: can’t run up damages in bad faith (p. 49 CW)

Leingang (subtract variable costs)

Kersarge (exp. capacity = no var. costs)

Parker (Shirley McLaine)Natural and Consequentials arise naturally (incidentals) special circumstances (known &

communicated)

Restatement 2d §3511) reas 4cable as probable

consequences;2) 4cable if: arises in: ordinary

course of events; spec’l circumstances req’r reas to know

3) court may limit damages as justice requires

UCC §2-715 (Buyer’s)1) incidentals 2) consequentials – reason to

know/could not reas. be prevented through cover or otherwise (Pers. & prop. injury)

Hadley (mill part broke)

Victoria Laundry (reas 4cable but not unusually lucrative Ks)

Lamkins (tactit agt: tractor)

New Business Rule C/L: no proof, no damages but NOT an absolute rule reliance may be an alternative

UCC §2-708seller’s damages: Not nec’y to a recovery to show a history of earnings, if new venture involved.

Freund (book deal)Fera (book and bottle shop: got recovery)Dempsey (lost profits too speculative)

reliance§90 – damages NEC’Y TO PREVENT INJUSTICE

usually not expectancy (but see Geremia)

§ 139: can be limited as nec’y to prevent

injustice; allows estoppel for pleading SOF

§349:

Hoffman v. Red Owl (no lost profits)Dempsey (lost profits too speculative)Geremias (insurance = reliance plus)Albert and Son (WWII rubber)

REMEDIES expenditures made in

preparation of performance less any loss would have suffered

if K perf’d;

- can be essential or incidental- burden on breaching party to show others’ losses

REMEDIESSeller’s Damages consider: inexhaustible supply

(lost volume seller) vs. lack of capacity

Hadley issue: who has better grip on costs of breach?

UCC §2-708

1) K – market price at time and place of tender, plus incidentals, minus savings

LOST VOLUME SELLER2) UNLESS: “inadequate to put

seller in as good a position as performance would have done”, then: profit (incl reas overhead) from full performance, plus incidentals offset by costs & credits

not nec’y to show a history of earnings, esp. if new venture.

Neri (Retail Marine: loss of 1 gross margin).

Specific Performance personal services = difficult (but

neg injunction may be appropriate)

when no ec. substitute avail. extraordinary needs taken into

account (no cover) presumption w/land (but not

dispositive) (See Van Wag) not when damages adequate can’t stip. in K but is evidence injunction easier to get for IP

UCC §2-716: buyer & spec perf unique chattels other proper circumstances

(damages diff to calculate, not remediable)

Van Wagner (billboard; no SP)Curtice Bros (tomatoes; SP)Manchester Dairy (dairy coop: inj.)Sun v. Microsoft (IP presumed unique)

unusual remedies:

constructive trust hold property in trust (equitable

remedy)buyer ordered to perform vendor’s lien: buyer had duty to

resell to 3d party (Osborne)

Brackenbury v. Hodgkin (mean mom – constructive trust)

Osborne (PhD rip off)

FORMATION IN GENERAL (“Mutual Assent”)C/L Restatement UCC Casesadhesive contract may be unconscionable

ambiguity latent vs. patent “meeting of minds” req’d omniscent 3d party determines

intent remedy = void & restitution

Rest. §201) No K if parties attach materially

diff meanings AND:

a) neither knows/reason to know meaning of other party;

b) each party knows/reason to know other’s meaning

2) innocent party’s meaning

Raffles ( “Peerless”)

disclaimer & objective intent“for persons untutored in K law, clarity is essential” (McDonald)

Restatement 2d §21“manifestation of intention that a promise shall not affect legal relations may prevent formation”

McDonald v. Mobil Coal (employee handbook created K b/c disclaimer so inconspicuous it was like a subjective reservation )

form contracts “even a casual reading would

suffice” (Mundy); standard is average reader signposting required reasonable expectations the rule dickered deal vs. supplementary

boiler plate (Llewellyn)

Rest. 2d §211: know gen’lly applicable form K; interpreted as treating those

similarly situated alike BUT if one party reas to believe

other party would not have agreed – there’s an out.

Mundy (limited liability for prop theft upheld)Weisz (AS IS disclaimer)Richards (tort car case: not adequately bargained over)

gap-fillers the more terms left open the less

likely a K – but courts will uphold basic agt. of parties, and find terms implied if not express.

price = reas price at time of delivery ( §2-305)

place = seller’s place of business (§2-308)

FORMATION IN GENERAL (“Mutual Assent”)time for shipment = reas. time after K (§2-309)

time for payment = §2-310

generalmutual assentobjective intent- subj. intent is evidence (Kabil –

heli)

general§33:definite

§33 (2):definite if reas basis for remedy & ct. can determine breach;

§33 (3): fact terms are left open may show lack of intent to K

§20 – objective: reasonable intent (not subjective)

§24 – creates power of acceptance

§2-204 Formation:

“may be made in manner sufficient to show agreement, INCLUDING conduct by both parties which recognizes existence of K”

§2-204 (3): the parties intended to make a K and there is a reasonably certain basis for giving an appropriate remedy

Kabil (objective manif. of assent – subj. testimony goes to obj. intent)

Hotchkiss (3d party omniscent)

K does not have to be in writing unless the writing is a cond’n precedent

letter of intent* enforceable if it shows that the final K would have been a memorial of an agt. already reached (Empro)

Empro v. Ball Mfg (letter of intent not enforceable b/c contingent on completion of definite agt)

offer of reward claimant must have knowledge of

offer and act w/intent of accepting when rendering performance

if gov’t entity offers a reward, doesn’t matter whether they knew

FORMATION IN GENERAL (“Mutual Assent”)option K offer becomes irrevocable

through ¢ “fictional” option K (restatement,

see unilateral K); mailbox rule does not apply option K sometimes assignable,

may create a property right

(See Unilateral K, §45)UCC §2-205: firm offer irrevocable if merchant, sale of goods, and assurance not to revoke is in writing

Cochran (option ¢ was $1 and never given – but was still ¢)

outputs & requirements contracts C/L: unenforceable, no ¢. (Not

now).

UCC §2-306: Output, Requirements & Exclusive Dealings

Nat Nal

precontractual obligation sub-contractor bid can become

binding offer (Drennan) through reliance w/out ¢ * exception to mutuality rule

pre-contractual negotiations can create reliance (Hoffman) §90

Drennan v. Star Paving (clerical error)

Hoffman v. Red Owl (contrast with Empro & Drennan)

unilateral contracts: if and when acceptance by performance;

consideration = act; old rule = revocation until K

complete; mod. rule = not revocable after

performance began BUT separate out “preparing to perform”

Restatement §32: offer is interpreted as inviting offeree to accept by promise or performance, as offeree chooses

Rest §45 (option K) option K created when offeree

begins invited performance;

offerors duty of performance is cond’l on completion of the performance;

[contract kept open when offeree begins performance, but offeror doesn’t have to perform until its completed]

UCC §2-206 “invites acceptance in any manner reasonable.”

Brackenbury v. Hodgkin (daughter & son went to take care of mom = enforceable unilateral K)

Davis v. Jacoby (suicidal man asked for promise) – presumption of bilateral

FORMATION IN GENERAL (“Mutual Assent”)

INTERPRETATION

four-corner vs. contextual to uphold basic agt. of the parties

oral evidence always available to interpret a document, though inadmisssable if completely integrated;

if agt ambiguous, parol evidence to clarify intent;

parol evidence admissable to show special usage in the trade;

PG & E (Traynor: totality of circumstances) “reasonably susceptible”

Lansing (four-corners)

course of dealing (can give meaning) §1-205: also uses, in order, as basis for interpretation:1) express terms;

usage of trade; course of dealing

Joseph Martin Deli (renewal term did not contain formula for determining rent: agt to agree not enforc.)

May v. May Oil Burner Corp. (“meaning of agt of the parties is to be determined by the language they use and their actions, read & interpreted in light of commercial practices and other surrounding circumstances”)

OFFER“Objective intent”

C/L Restatement UCC Cases distinguish OFFER from ad &

invitation to dealgeneral§33:definite

§33 (2):definite if reas basis for remedy & ct. can determine breach;

§33 (3): fact terms are left open may show lack of intent to K

§20 – objective: reasonable intent (not subjective)

§24 – creates power of acceptance

covered by formation: §2-204

§2-204 Formation:

“may be made in manner sufficient to show agreement, INCLUDING conduct by both parties which recognizes existence of K”

§2-204 (3): the parties intended to make a K and there is a reasonably certain basis for giving an appropriate remedy

Moulton v. Kershaw (lacked quantity; invitation); (Salt)

Sharp (1939) (“offer which may be sign. is also a promise.”)

offeror is master of the offer (determines) substance of exchange, identity

of offeree procedure : identifies time, place,

mode of acceptance

offer vs. ad language lack of quantity not specifically addressed (eg:

first come first served = first K) maybe not a price identify remedies

Lefkowitz (unusual – coats)

offer left open by mistake reasonable for offeree to think it

was still good? time limit on reasonable belief

Cobaugh

CONDUCT CONCLUDING A BARGAIN

agreement up front – detailed agreement to follow (when there’s an out)

ProCD v. Zeidenberg (shrinkwrap did adhere – NOT §2-207)

Hill v. Gateway (terms binding after purchase b/c could return – NOT §2-207) (codified in UCITA §2-209)

C/L: mirror image rule

C/L : last shot rule

Modern rule: more flexible look to conduct (Kobe Bryant)

UCC §2-204: Formation: in any manner suff’t to show agreement (all gap-fillers)

UCC §2-207: Battle of the Forms2) proviso (explicit & precise)3) add’l terms . btwn merchants = K

UNLESS:a) my terms only in offerb) mat’lly alter it ORc) notification of objection

w/in reasonable time

4) conduct is sufficient to establish K. (terms that writings agree + gap fillers)

diff terms = knock outadd’l terms = proposal, in btwn merchants, or fall out under UNLESS

Livingstone v. Evans (offer & resuscitation – land; C/L)

Idaho Power (proviso did not apply to “supersedes all previous agreements”)

Step-Saver v. Wyse (§2-207: box-top was material alteration)

general (unilateral or bilateral) Rest. §32: offer is interpreted as inviting offeree to accept by promise or performance, as offeree chooses

UCC §2-206 “invites acceptance in any manner reasonable.”

Davis v. Jacoby: presumption of bilateral (suicidal)

Mailbox rule Rest 2d.§ 63 acceptance valid when sent but option K valid when rec’d

(option K often limited time)

UCITA §203-4 – e-mail when rec’dUCC §1-201: offer can be accepted by any reas means; if unreas, still valid when dispatched if rec’d no later than reas means

termination of power of acceptance Rest. 2d §36

CONDUCT CONCLUDING A BARGAIN

revocation rejection or counter-offer lapse of time death or incapacity (but option K

may be binding on decedent’s estate)

non-occurrence of cond’n of acceptance

Unsolicited merchandiseusually a gift, by statute

CONSIDERATION

C/L Restatement/UCC Casesagreement to agree agreement to agree not by itself enforceable course of dealing can give meaning to terms

§1-205: annual renewals might ripen into a course of dealings by which it might be possible to give meaning to an otherwise uncertain term.

Joseph Martin Deli (renewal term did not contain formula for determining rent: agt to agree not enforc.) -

May v. May Oil Burner Corp. (“meaning of agt of the parties is to be determined by the language they use and their actions, read & interpreted in light of commercial practices and other surrounding circumstances”)

employment & reliancereliance does not substitute for ¢, must be some benefit to emp, detriment not enough (Forrer)

reliance not out of SOF (Stearns)

reliance estops SOF & damages OK (Seymour, Captain of Detectives)

enforceable promises vs. unenforceable donative promises illlusory promises gratuitous promises reliance

Kadimah v. DeLeo (if in writing, would have been enforceable)

generalmutually interlocking obligations- detriment/benefit - bargained for exchange

forebearance of a legal right (Hamer)

mere inadequacy of ¢ NOT a defensebut: nominal not enough (Shnell)

§§71, 72

§71(1): must be bargained for;§71(2): bargain = sought for in exchange;§ 71(3): performance

a) an act other than a promiseb) a forebearancec) creation, modification or destruction

of a legal relation

Hamer (basic principle) (Nephew)

Allegheny (flexible, non-gift, binding)

Fischer (nominal – love not enuf) (retarted daughter)

Schnell v. Nell (1 ¢ intended nominal)Batsakis (mere inadequacy – Greek)

illusory promises §77 Davis v. Gen. Foods (illusory promise – recipe)

CONSIDERATION

“I’ll do it if I want to”

mutuality principle: both parties must be bound or neither will be bound.

are NOT consideration if choice of alt perf. unless: a) each is ¢ b) One if ¢ and substantial possibility other

alternatives will be eliminated

see also: §2-306 (implied promise)

§2-309: Successive Performances : indefinite Ks are valid for a reasonable time; but can be terminated at any time unless otherwise in K.

Nat. Nal. (rolling offer and acceptance provided terms for illusory contracts)

Franchise dealings: term could be termination with 10 days notice (Corenswet) (see p.14 CW, p 21 FR)

implied promise“instinct with an obligation, imperfectly expressed”

§2-306requires best efforts rather than reasonable efforts, when an exclusive dealing, output, requirements

Wood v. Lucy, Lady Duff (reas. efforts implied)

implied promise in lawfor non-prof. volunteerNO need for subsequent agt.entitled to restitution for performance

Cotnam v. Wisdom (doctor helping patient entitled to f.m.v.)

legal duty rulepromise to perform an act that the promisor has a pre-existing legal duty to perform is NOT consideration even if bargained for;

can still reduce debts by agreeing to do something you are not legally bound to do (hawk, horse, robe)

promises based on past contracts §§ 82 and 83

CONSIDERATION

SOLbankruptcyminors-> courts will enforce w/out new ¢

promises to pay barred debt enforceable without ¢

bankruptcy must be express promisepromises grounded in the pastmoral duty NOT nec. enforceable

Rest. 2d §86

new promise for benefit previously rec’d binding to extent nec’y to prevent injustice

BUT NOT: if a gift, or value disproportionate to benefit

Mills v. Wyman (no ¢ for sick son);

Webb v. McGowan (¢ “sudden tort like K”)

reliance can substitute for ¢

can be used to support ¢ (Allegheny, Geremia)

can be taken out of statute of frauds (unless employment, see below)

Rest. §90

reasonable, detrimental, reliance

1) expect to induce2) does induce3) injustice cannot be avoided

Rest. §139promise is enforceable despite SOF

Kirksey (trad’l: no ¢ for woman whom moved to live w/brother in law)

Ricketts (quit job) (yes ¢)

settlement of a disputed claimunenforceable claim NOT ¢ (Duncan – sharecroppers)“you can make a mountain out of a molehill but not a molehill out of nothing.”

but, postponement of lawsuit is (Military College)

§74honest OR reasonable belief

- claim is in fact doubtful- forebearing party believes lawsuit may be

successful- execution of a written instrument is

consideration even if the party asserting the claim believes invalid.

Duncan v. Black

PAROL EVIDENCE RULE:policy: prevent fraudulent undermining of written agreement, and uphold what parties IN FACT agreed to.

basic parol evidence rule: when an agt has been reduced to

writing that parties intend to be their final agt, evidence of add’l previous NOT admissable to vary terms

Rest §213 binding int. agt. discharges

inconsistent prior agts; binding completely integrated agt

discharges agts. w/in its scope.

Hatley (relaxed parol evidence: read in a time-limit on buy-out clause)

Mitchell (strict: ice house)

consistent add’l terms Rest. §216 agt not completely integrated if it

omits consistent add’l agreed term which is:

- agreed to for separate consideration;

- such a term as in the circumstances might naturally be omitted from the writing.

consider “in light of all the circumstances”

integrated writing Rest §209 *writing is final expression of one or more terms; judge decides whether integrated

before determining parol evidence;

presumption: “face of the instrument” (then add’l evid.)

parol term admissable?1) collateral2) does not contradict express or

implied3) not ordinarily expressed in

writing

Rest §213: binding integrated agt. discharges

prior agts to the extent it is inconsistent;

binding discharges agts w/in its scope

Rest §214: EVIDENCE of prior or

UCC §2-202: written terms may not be contradicted by evidence of prior/contemporaneous agt. BUT may be explained or supplemented:a) course of dealing or usage of

tradeb) evidence of consistent add’l term

unless writing is completely

PAROL EVIDENCE RULE:policy: prevent fraudulent undermining of written agreement, and uphold what parties IN FACT agreed to.

contemporaneous agts & negotiations = admissable:

writing is not integrated; integrated agt. is completely or

partially integrated; to show meaning whether or not

integrated; illegality, fraud, duress, mistake,

duress, lack of ¢, or other invalidating cause;

ground for recission, reformation, spec. performance, or other remedy.

integrated

** course of performance = best indication of what K means

See also §1-205.

§1-205: also uses, in order, as basis for interpretation:

express terms; usage of trade; course of dealing

MODIFICATION/NOVATION/WAIVER & RELEASE(Revisions of Contractual Duty)

C/L Restatement UCC CasesAccord & Satisfaction unliquidated bona fide tendered for entire dispute

UCC §1-207: (performance while reserving rights doesn’t apply to A & S)

UCC §3-311 discharge an existing disputed

claim (for less than full amt):

1) good faith, conspicuously stating to terminated;

2) bona fide dispute3) cashed

Marton Remodeling (“old check trick”, worked despite words of reservation)

School Lines (didn’t work – no bona fide dispute, liquidated)

Executory Accord (cw, p 45) C/L: no effect modern rule: in effect when in

writing & signed lots of exceptions: if breached,

then other party may reinstate original claim

Restatement 2d §781:until performance of accord, org. duty suspended unless there is breach, which may discharge duty to accept in satisfaction

modification of a K needs add’l consideration to be binding

legal duty rule in mod. context ¢ req’d to form K and escape

from unperformed K; K cannot be modified w/out ¢

(except §2-209); K duty owed is NOT ¢ for new

promise by party (Levine); threatened breach Not nec.

duress; ordinary defense to Ks are

defenses to mods as well

§2-209: 1) modification needs no ¢2) no oral mods clause must be

signed by other party (and then is valid)

3) SOF satisfied if mod w/in it;4) else , can be a waiver5) waiver can be retracted w/reas

notice unless unjust b/c mat’l reliance

Levine (depression lease - legal duty rule did not allow mod)

Alaska Packers (ec. duress) Austin Instruments (ec. duress)


Non-waiveable conditions can’t waive self into promise for

a giftNovation:parties can rescind a K by mutual assent: new promises are ¢ for each other:- no duress - clear indication of intent

Restatement §89:mod binding if a) fair and equitable, circum not

anticipatedb) statute allowsc) justice req’rs/reliance

Schwartzreich (“tore up K”)

Release gen’l release can preclude

affirmative defenses; if based on current issues

gen’l release for future claims may be too broad

analyze under A & S, also under settlement of doubtful claim

Richards (too broad & future claims = invalid)

Pickwick (video)

theories to support subsequent oral agreements (when no oral mod clause):1) estoppel2) oral novation & substitution3) recission of written agt by an oral

agt4) waiver of a provision of a written

K5) oral independent collateral K


Waiver vs. modification waiver = one time

relinquishment; mod = permanent change

Waiver: promises to render performance; even though cond’n not occurred equitable concerns (if enforcing

would result in fraud)

Geremia (ins. company waived right to enforce K)

Waiver: no oral modification clause or, cond’n of writing waived

Restatement §224waived if given1) when not moot2) in reliance, mat’l change

Failed modification can be a waiver: See §2-209 (4).

Universal Builders v. Moon Motor Lodge (stood by & watch = liable)

PERFORMANCE & CONSTRUCTIVE CONDITIONS(See also: Modification)

Constructive Conditions

1. mutual and independent: can recover for breach; but not an excuse for non-performance (Howard);

2. dependent & conditional: discharges other party till performed. must be: essence if not express. ( Kingston ).

3. simultaneous conditions: whoever has complied can bring action for default.

determine from intent of parties. law can imply a cond’n.

Separate constructive cond’n from minor covenant: Cohen. other party doesn’t perform

constructive cond’n, you are discharged

but if you guess wrong and don’t perform yourself, you are in breach

practical effect: show up and be ready to perform if you want to enforce K.

Discharge vs. damages ( Caporale ) if other party can’t perform, you

can be discharged (if it’s a constructive condition).

if you can’t perform, you can’t get damages (no COA for breach)

Rest §234:

1) presumption of simultaneity.

Rest §238

1) if simultaneous, both sides have to be ready to perform to give rise to a breach.

Kingston (silk servant – security a cond’n precedent)

Cohen (land title curable: guessed wrong & breached); Ansorge (land title totally incurable did equal major breach of constructive cond’n).

Caporale (couldn’t sue for breach unless able to tender, but discharged)

Cure: Acceptance, Revocation, CURE §2-508: goods may be essence of Bartus (hearing aid)


Rejection C/L: perfect tender rule now : more flexible, esp. in

goods. Failure of the other party to be ready, willing & able to perform does NOT let you off the hook

Cure earned, not a right.

the deal but parties may still be on the hook for CURE.

1) seller can cure if time for performance not exp’d and seasonably notify buyer

2) extension of time poss. if seller has reasonable grounds to believe goods acceptable.

BUYER’s RIGHTS §2-601: if not perfect buyer can reject.§2-602: Rejection in reasonable time for any non-conformance.

§2-605: (Opp to cure). WAIVER of buyer’s objection by FAILURE to particularize.

1) buyer precluded from relying on defect to justify rejection or establish breach:

a) where seller could have cured if stated seasonably;

b) btwn merchants when seller made request in writing for list of defects.

§2-608: Revocation, after acceptance, only when substantially non-conforming:

a) on reas assumption that defects would be cured;

b) if non-conformity not discovered for reasonable reasons, w/in reasonable time.

Cohen (defective title could be cured)

Estoppel


misrepresentationdetrimental reliance= discharge


Express Conditions vs. Covenant if forfeiture, can lead to

discharge but does not void K (for damages, analyze breach). Forfeiting your right to enforce K against other party.

contrast discharge w/unilateral K where no K formed if cond’n not met;

gen’l policy OPPOSED to forfeitures

Covenant vs. Condition“mere covenant” = damages associated w/covenant

breached vs. cond’n = forfeiture (Sun, Howard);

§261: “term specifies something to be done or not done; promise is created. provision refers to a situation, cond is created.”

Howard (tobacco – pref for covenant)Royal Globe (hit-and-run)Fidelity-Phenix (“further warrants” = cond’t precedent)

Good faith §1-203: Obligation of good faith

- note parties can K to determine standards of performance so long as not manifestly unreasonabale

- good faith = commercially reasonable

Material vs. Minor Breach material = have rt to stop

performing; minor = continue performing and

seek remedy in offset & damages

Rest. §275 factors: extent performed willful breach (repudiation = mat’l) uncertainty of future performance extent of benefit obtained extent adequately compensated degree of hardship on breaching party parties’ agt make something a mat’l breach

Reviving a Con’dn after Waivertemporary

§2-209 can rescind w/reas notice if no

detrimental reliance/injustice.


Substantial Performance determines major vs. minor

breach; construction = no structural

defects or workmanlike performance;

substantial performance = no discharge;

if breach is unintentional and trivial = substantial performance (Jacob & Young);

consider express cond’ns to define substantial performance

Groves v. John Wonder = no substantial performance when fraud and willful breach (cost of completion)

Plante v. Jacobs (diminished value for mis-constructed house + clear sep’n of defects)

Jacob & Young (wrong pipes)

Waivervol. & intentional relinquishmentof known right[typically, invites reliance – but reliance can be as little as K still exists].= discharge

old rule (Clark) = express waiver req’d.

§2-208:Course of performance can show waiver or modification.

Sometimes a course of performance can make a waiver mature into mod.

Pref for waiver if unclear (uphold expectations).

Course of perf trumps course of dealing.

Clark v. West (drunk law professor)Royal-Globe (insurance - no waiver)

Warranties §2-313: Express: part of the basis of the bargain; “mere puffery is not enough”;

§2-314: Implied warranty of merchantability: fair average quality.

§2-315: Implied warranty of fitness for a particular purpose. Seller must know or have reason to know; buyer must rely.

Neilson (software for MD)


§2-316: DISCLAIMERS: AS IS probably enough. BUT: §2-315 fitness for a particular purpose must be in writing, & conspicuous. Merchantability does NOT have to be in writing, but must be spec. mentioned.

§2-317: Consistency: interpret warranties as not conflicting. Warranties can be cumulative.

Was the Cond’n Satisfied or Excused “Time is of the Essence” – may

be too general, or may be enforced;

can be excused if con’d NOT mat’l part of agd. xchange & impractical (Grenier).

if not met : consider Liq. Dam.

Two standards for satisfaction objective = reasonable man;

OR: subjective: “fancy, taste,

judgement & sensibility”

Doctorman (time/land: strict & unambiguous)

Grenier (letter from engineer)

Loyal Erectors (policy of progress payments vs. cond. of satisfaction).

Fursmidt (laundry & valet = subj.)

STATUTE OF FRAUDS policy = big value, possibility of fraud, evidence required

applications of SOF land goods over $500 marriage is consideration not performable in one year suretyship (at time of K)

UCC §2-2011) sale of goods over $500, signed

by party against whom enforcement is sought

2)

consequences of non-compliance


non-complying K NOT illegal; part-performed then restitution; still a K, but unenforceable; consideration for another

promise; statute spec’lly pleaded to be

used; 3d parties still liable for

interference in oral K;

estoppelpart-performance (but maybe only restitution)PromE (but not usually employment)

UCC §2-201: estoppel provisions1) btwn merchants, signed by

sender, rec’vr reas to know contents, no sig req’d, but can reject

2) K not w/in 1 is enforceable IF:

a) goods spec’lly mfd (can’t be resold)b) judicial admissionsc) rec’d goods

part performance = rest. only

illusory promises Nat Nal – outside statute of frauds b/c K came into existence at moment of dealing

modification UCC §2-209:3) if modified & comes w/in SOF, must comply w/§2-201

other examples of SOF copyright (Valente) wills real estate agreements for extending SOL etc.


signed by party against whom enforced

Kobe Bryant

sufficiency of writing

land: description of land, signed by party against whom enforcement sought

does NOT have to be an integration;

single letter to 3d person will do; signed = some evd. of

authentication writing: e-mail? voice?

(continued)memo identifies: parties rel’n & to transaction; specific asset or assets forming

K; price if agt, terms of pay if other

than case on delivery

UCC §2-201: does NOT need to contain all

mat’l terms; terms need NOT be precise; evidence of a real transaction quantity must appear: need not

be accurate but recovery limited to amount stated

ISSUES

construction contracts Drennan (sub-contractor

reliance) see also remediesemployee handbooks majority rule : only K if clear

language that would allow a reasonable employee to regard handbook as altering at-will, and there is valid offer & acceptance

some cases say NEVER binding K (PA)

University Patents v. Kligman

employment notice/at-will spec. performance/damages PromEstop/SOF mitigation (comparable

employment = rank, locale, not nec pay – See Parker)

collateral source rule (don’t deduct unemployment)

remedies = neg injunction may be more apt than spec performance

Forrer v. Sears (at-will)(no PromEstop)(detrim. move NOT ¢)

Stearns (No PromEstop for SOF) Seymour (Prom Estop YES SOF) McDonald v.Mobil Coal

Producing Inc.: employee handbook WAS said to modify terms of employment; disclaimer was inconspicuous (unusual); also, course of conduct created reasonable reliance.

Dempsey (neg inj not enforceable)

Wagner (opera star = neg inj) Harris v. Dallas Cowboys Drennan (sub-contractor liability

for mistake)franchise1) can find an overarching

relationship even if only term is reasonable notice;

§2-309: successive performances

§1-203: good faith (reas. termination)

Corenswet (franchise relationship could be terminated w/out cause when K so specified. Consistent w/UCC).

ISSUES

2) inadequate notice is remediable at law but not in equity by forbidding termination;

3) unconscionability can require reasonable termination notice (Corenswet);

4) legislature may address by statute (eg, automobile manufacturer relationship)

land specific performance SOF issues

Seavey v. Drake (1882) (parol gift of land enforceable despite SOF, enforceable in equity)

THIRD PARTY RIGHTS AND OBLIGATIONS

Agency employment (both agent &

employee sued)

? no agency in Hadley

Assignment & Delegation avoid maintenance & champerty

assigning options: not barred by express terms? assignment & successor language in

K? statute/public policy forbids? involves personal integrity or skill? eg, reliance on creditworthiness?

option is assignable absent a showing it is w/out ¢, not assignable, and not accepted according to its terms, not personal in character

delegation: same rules as assignment for personal & objective services.

Rest. §149: transfer of K right that extinguishes right in transferor & gives to transferree.

Cochran (land option K assigned)

Macke (soft drinks not personal)

Third-Party Beneficiary Ks C/L: req’d privity; mod rule : must be intended 3d party

beneficiary, more than an incidental beneficiary.

loan can be ¢ for promise to pay (Lawrence)

Rest. § 3021) intended benef. if – recognition of

right in perf. 3d party appropriate for intent of parties & either:

2) will satisfy obl. to pay $$ to beneficiary; or

a) circumstances indicate promisee intends to give benefit of promised performance to 3d party.

§2-318: Extension of WarrantiesA: family household (personal injury)B: any person (personal injury) - ? bystandersC: any person, any injury

Lawrence v. Fox (Holly)Buick & Henningsen (torts)

Trust property cause of action.

k merges 2000f 2 chart

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