Contract Rules Flashcards
A performance or return promise is bargained for (is VC) if…
- It is sought by the promisor in exchange for his promise
- It is given by the promisee in exchange for that promise
What is performance?
An act, a forbearance, or a change of legal relation
Is a promise that benefits a third-party automatically enforceable?
No. See Mills.
When is a promise for benefit received enforceable?
When there is
1. A material benefit directly to the promisor AND
2. a subsequent promise to pay
When there is a benefit received by the promisor but no subsequent promise to pay, is there any recovery?
No except in rare circumstances like Crisan, a medical setting
What are the elements of promissory estoppel?
- Was a promise made?
- Would promisor reasonably expect (i.e. be foreseeable) that promise would induce action or forbearance by promisee?
- Did promise actually induce such action or forbearance on part of the promisee (to her detriment)?
- Does justice require enforcement of the promise?
What are the 3 grounds for enforcement of promises?
- Was there a bargain for exchange? (consideration)
- Was there a benefit conferred?
- Did promises rely on promisor’s promise to her deteriment? (promissory estoppel)
When is a contract unconscionable?
Either
1. Unfair procedural circumstances
2. It is contrary to public policy
What does not make a contract unconscionable by itself?
Inadequacy of the consideration
Parties that have unequal bargaining positions
What is mutuality?
Each party must furnish consideration to the other or else the entire agreement is unenforceable
When does an illusory promise have valuable consideration?
- Each of the alternatives would’ve been consideration if it alone had been bargained for
OR - Substantial possibility that before promisor exercises choice, events may eliminate the alternative that is not valuable consideration
Every contract imposes an obligation of…
good faith
What are limits on at-will contracts?
- Fairness
- Unconscionability
- Good faith
- Mutuality
What are fairness and public policy limits on enforcing promises?
- Unconscionability
- One party has flexibility under the contract
- Illegality/contrary to statute
What are the 3 standard contract remedies?
- Restitution
- Reliance
- Expectation
What is restitution?
Prevention of unjust enrichment
What is reliance?
Reimburse promisee for a change in position due to her reliance on the contract (put promises in the position she was in before the contract was made)
What is expectation?
Gives promisee value she would’ve received if promise had been fulfilled (put promisee in the position she would’ve been had the defendant performed)
What are 3 limitations on expectation damages?
- Unavoidable
- Foreseeable
- Reasonably Certain
When can a person recover emotional distress damages in breach of contract?
- Tort attached as well
- “Particularly likely”
What are avoidable damages?
Plaintiff can’t recover damages that plaintiff could’ve avoided without undue risk, burden, or humiliation (plaintiff has duty to enter into substitute transaction)
What are 2 situations where expectation damages aren’t suitable so reliance damages will be awarded?
- When plaintiff can’t show lost profits with certainty but can show expenditures
- When there is no legally enforceable contract, but plaintiff is entitled to some protection under promissory estoppel
If a plaintiff has fully performed, then…
The plaintiff’s remedy is limited to the contract price
If a plaintiff has partially performed, then…
plaintiff can recover reasonable value of services
Damages clauses are permitted if…
- amount is reasonable in light of anticipated or actual loss
- difficult to prove loss
(UCC - 3. non feasibility of obtaining an adequate remedy)
A term fixing unreasonably large or small liquidated damages is void as a penalty (True or false)
True
Specific performance will not be awarded unless:
- Money damages are inadequate
- No difficulty in enforcing/supervising the order
- Service/good can’t be substituted on the market
What are other factors to consider in deciding to give specific performance?
- Consequences on defendant - is there disproportionate harm?
- Type of contract (personal service, land, sale of goods)
What is the restitution remedy for the breaching party?
Old approach - no recovery for the breaching party
Modern approach - breaching party may recover in restitution for amount of services actually provided MINUS any losses incurred by the non-breaching party
What is a breaching buyer allowed in restitution under the UCC?
The breaching buyer is entitled to restitution for any amount above:
(1) liquidated damages OR
(2) 20% of value of total performance (contract price) or $500, whichever makes restitution smaller
Do parties have to show an intention to be bound to the contract for the contract to be enforceable?
Generally yes
Do advertisements or ad-like communication generally show an intentional to be bound?
Generally no
What cases are exceptions where an advertisement can imply an intention to be bound?
If the ad changes people’s behavior OR a reasonable person would understand it as indicating intent to be bound
What is the common law rule regarding indefiniteness?
(1) Contract terms must be reasonably certain
(2) Must provide reasonable basis for determining breach & appropriate remedy
(3) If terms are left open, it indicates no intent to be bound
What is the UCC rule regarding indefiniteness?
Contract is formed in “any manner sufficient to show agreement” including conduct
It does not fail for indefiniteness if there is:
(1) intention to be bound
(2) Certain basis of a remedy
But the quantity of good can’t be left open
What is the UCC rule regarding contracts with open price arrangements?
Open price terms are OK. Price is “reasonable price at time of delivery”