1. Formation
1.1. Restatement 17: Formation of a contract requires •(1) manifestation of mutual assent to the exchange and •(2) a consideration
1.1.1. Mutual Assent
1.1.1.1. Restatement 22: The manifestation of mutual assent to an exchange ordinarily takes the form of an offer and acceptance.
1.1.1.1.1. would a contract (if it exist) be governed by the UCC or Commonlaw
1.1.1.1.2. was there an offer
1.1.1.1.3. ask whether it was accepted
1.1.1.1.4. did the acceptance occur prior to termination of power to accept?
1.1.1.1.5. Offer
1.1.1.1.6. Acceptance
1.1.1.1.7. Manifestation of assent to the terms in the way invited or required by the offer (unqualified + unequivocal)
1.1.1.1.8. Methods of Mutual Assent
1.1.1.1.9. Misunderstanding
1.1.1.2. Intention
1.1.2. Consideration
1.1.2.1. Tests
1.1.2.1.1. Benefit-Detriment Test (see Hamer v. Sidway)
1.1.2.1.2. Restatement 71 Test (Broader—See Pennsy)
1.1.2.2. Restatement § 73: Legal duty rule – if the promisor had a pre-existing legal duty to perform that act, there is no consideration. Also includes performance.
1.1.2.2.1. - E.g. Contractor asking for more money halfway into project - Doesn’t apply if act isn’t within scope of duties - Must be a real and material difference - Includes public duties (policing) - If there’s honest dispute over what a debtor owes a creditor, paying a lesser amount is consideration for a promise to deliver in full.
1.1.2.3. Restatement § 79: Adequacy of Consideration; Mutuality of Obligation: If the requirement of consideration is met, there is no additional requirement of
1.1.2.3.1. 1. A gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee; or 2. Equivalence in the value exchanged or 3. Mutuality of obligation
1.1.2.4. Precursors to Modern Consideration
1.1.2.5. Theories
1.1.2.5.1. Formaility Theory
1.1.2.5.2. Empowerment Theory
1.1.2.5.3. Historical Accident
1.1.2.6. advertisments are usually invitations for offers not offers
1.1.3. Five Factors
1.1.3.1. (1) language; (2) history; (3) directedness; (4) definiteness; (5) type of contract.
2. Defintions
2.1. Restatement 1 A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law somehow recognizes duty. Contract is an act only if given legal effect.
2.1.1. Bilateral
2.1.2. Unilateral
2.1.2.1. does one exist?
2.1.2.1.1. Is it something that no offeree would reasonably promise to do - even if they may try?
2.1.2.1.2. Is it something that is highly speculative or uncertain
2.1.2.2. breach remedy: expectation damages
2.1.2.3. Irrevocablity (special rule)
2.1.2.3.1. when does it become irrevocable?
3. THREE BEASTS OF CONTRACT LAW
3.1. Breach
3.1.1. Elements
3.1.1.1. 1.Promise or promises created through expressions of mutual assent
3.1.1.2. 2. consideration
3.1.2. Policy
3.1.2.1. Empower Promisors
3.1.3. Remedy
3.1.3.1. Expectation damages
3.1.3.1.1. Expectation damages are the dollar amount needed to put the victim of a breach in the same position as if both parties had fully performed their parts of a contract.
3.2. Promissory Estoppel
3.2.1. Elements
3.2.1.1. 1. Promise
3.2.1.2. 2.reliance on promise
3.2.1.3. 3.Promisor should have reasonably expected 1-2 (i.e., the promise to cause the reliance)
3.2.1.4. 4.Injustice can only be avoided through enforcement.
3.2.2. Policy
3.2.2.1. Protect reliance interers
3.2.3. Remedy
3.2.3.1. Reliance Damages
3.2.3.1.1. Reliance damages are the dollar amount needed to compensate the victim of a breach for any reasonably foreseeable harms caused by the breach.
3.3. Restitution/Unjust Enrichment
3.3.1. Elements
3.3.1.1. 1. Conferral of material benefit
3.3.1.2. 2. Non-gratitutiously
3.3.1.3. 3. in circumstances in which retention would be unjust
3.3.2. Policy
3.3.2.1. protect against unjust enrichment
3.3.3. Remecy
3.3.3.1. restitution