K Formation Phase Analysis
Components of Contract
1) Valid Contract + Enforceability
2) Mutual Assent & Consideration + Enforceability Docs
Modern Trends & Social Goals
1) Encourage informality overall
2) Obj. Theory of mutual assent
3) Stand. of obj. rsblness (definiteness of offer, PE, etc.)
4) Rsblness meased by trade custom, expert testimony, & change in X
5) Interweaving of tort & K
6) Resolve ambiguities against those who created them
Incorporation of Statutes
1) UCC where applicable (goods)
2) Specific statute can limit pwr to revoke (gen. contractor cases)
3) Restrictive reading b/c of specif. lang. & ez'ly changeable; originalism
4 C/L is still default
Major Names
1) Traynor--advanced tort into K cases; brought PE into mkt
2) Hand--refused 2 allow PE into mkt
3) Llewellyn--4 real mutual assent; UCC article 2 4 correction of
C/L defect
4) Holmes--in consideration, brought notion of barg. & legal
value components
5) Hohfelds legal value terms
Steps of Analysis
1) Did parties offer & accept (mutual assent)?
2) Will any docs, soc. policies, / statutes fill in the gap?
3) Did the parties barg. & exchange w/real world impact (consideration)?
4) Args 4 & against consid. by D & P
5) If no conventional consid., can any docs work as consid. substitute?
6) Even w/valid K, enforceability args
7) Policy rsns in each enforceability args 4 & against enforcing
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Acceptance of Subj. Theory of Mtng Mind / Subj. Stand.
1)Term. of offer: supervening death / legal incapacity of the
offeror & offeree
2) Acceptance: knowledge of the existence of the offer
3) D's Arg. that P didn't give consideration: invalid claim
4) Physical Duress
5) Econ. Duress (also has obj. rsbl stand.)
6) Intentional Misrep.
7) Mistake in Econ. Value; econ. value is subj. inherently
Theme of Torts
1) PE
2) Acceptance: intent 2 accept: silence is acceptance after
accepting services / exercise of dominion over goods
3) Enforceability doc: S/F: effect of noncompliance in
unenforceable K jxn's
4) Enforceabiltiy doc: Infancy: conseqs of being 1
5) Enforceabiltiy doc: Physical duress
6) Enforceabiltiy doc: Intentional Misrep.
7) Enforceabiltiy doc: Unilateral mistake where the other side
induces mistake
8) Enforceabiltiy doc: Econ. Inadeq.--injunctions handed out in
torts cases
8) Punitive damages rewarded if tort liab. found
Theme of Silence
1) Term. of offer: after phone / face 2 face conversation, offer
terminates unless speak up
2) Term. of offer: when offeror/offeree dies / is legally
incapacitated, don't need 2 notify 4 term. of offer
3) Silence as acceptance after
1. Implicit understanding from prior dealings
2. Soliciting the offer
3. Receipt of goods
4. Acceptance of services / exercise of dominion over goods
4) No need 2 communicate acceptance in unilateral K unless unrsbl
5) Unconditional Acceptance: UCC §2-207(2) where silence by
offeror means acceptance of additional terms unless objects
6) Enforceability doc.: Infancy: silence 4 a long X means ratification
7) Imply trade customs in K's
Application of UCC
1) Mutual Assent
1. Offer: gap fillers & general relaxation of stand. of definiteness
2. Term. of offer: limit pwr 2 revoke by statutory
substitute 4 seal
3. Acceptance: accept if silent after receipt of goods
4. Method & Means of Acceptance: by any rsbl means, not
just prom./act
5. In Mail box rule, if theres improper dispatch of
acceptance, then @
dispatch if acceptance gets 2 offeror @ same X as proper dispatch
6. Acceptance: unconditional acceptance
2) Consideration
1. In circumventing pre-exist duty rule, UCC says
implied, incompl,
simultaneous rescission o.k. any X as long as pers. prop.
2. Invalid claim of cashing checks in undisputed
liquidated claims, UCC
says creditor must make counternotation by reserving "w/o
prejudice" "under protest"
3) Enforceability: S/F
1. K 4 realty
2. Personalty
3. Piecing memo/note
4. Acceptance
5. Part payment
6. Admission
4) C/L IS STILL DEFAULT
Application of PE in Validity & in Enforceability
1) Mutual Assent: Limitation on pwr 2 revoke
2) Consideration: Substitute 4 consid.
3) Enforceability: Mitigating doc's against S/F