Contracts Flashcards

Question

Consequential Damages

Answer 1

Consequential damages consist of losses beyond those covered by the standard measure that a reasonable person would have foreseen would occur as a result of the breach. These damages result from the nonbreaching party's particular circumstances. Usually, consequential damages are loss profits resulting from the breach. To recover consequential damages must be: 1) **Reasonably foreseeable** at the time of contract formation 2) Arise from P's **special circumstance that D knew of** (or had reason to know of), and 3) **Reasonably certain** (not speculative)

Answer 2

Punitive Damages - meant to punish a wrongdoing party Generally NOT available in contact actions.

Answer 3

In contracts not involving the sale of goods, the condition of complete performance may be excused if the party has rendered substantial performance. The rules for determining whether performance is substantial are the same as those for determining whether a breach is minor or material. If the breach is minor, performance is substantial. If the breach is major, performance is not substantial. To determine whether a breach is material, the courts look at: 1) amount of benefit received 2) adequacy of damages 3) extent of performance 4) hardship to the breaching party, and 5) whether the breach was negligent or willful. If the party did not substantially perform, they cannot recover on the full contract. Other party is entitled to treat their incomplete performance as a total breach, relieving them of their duty of performance (to pay $$).

Answer 4

Anticipatory repudiation is the repudiation or breach of a contract in anticipation of contract becoming due. Anticipatory repudiation occurs when a party unequivocally communicates that they are unable or unwilling to perform under the contract. If not unequivocal? → Where a party has reasonable grounds for being insecure about the other party's performance, it may demand adequate assurances from the other party that it will perform in accordance with the contract. If a party does not give (1) adequate assurances of performance (2) within a reasonable time (not to exceed 30 days), the other party may treat that as an anticipatory repudiation. Demand for adequate assurances needs to be reasonable. Once a party makes clear they are not going to perform, nonbreaching party has options: 1) Treat the K as repudiated & sue for damages before performance as due 2) Treat K as discharged & walk away 3) Wait until performance is due & then sue 4) Urge breaching party to perform Retraction: A repudiating party may retract the repudiation and restore the contract unless the other party has a) canceled the contract, b) materially changed their position, or c) indicated that they considered the repudiation final. -Anticipatory repudiation involves communications after K formation, it is tested alongside modification, waiver or estoppel. -Essays testing anticipatory repudiation also usually ask about what damages could be recovered by the parties

Answer 5

Contractual duties are discharged where it has become impossible to perform them. The occurrence of an *unanticipated* or *extraordinary* event may make contractual duties impossible to perform. If the nonoccurence of the event was a basic assumption of the parties in making the contract, and neither party has assumed the risk of the event's occurrence, duties under the contract may be discharged. If there is impossibility, each party is excused from duties that are yet to be performed. If either party has partially performed prior to the existence of facts resulting in impossibility, that party has a right to recover in quasi-contract for the reasonable value of his performance. While that value is usually based on the benefit received by the defendant (unjust enrichment), it also may be measured by the detriment suffered by the plaintiff (the reasonable value of the work performed).

Answer 6

A contract may be discharged by an accord and satisfaction. An accord is an agreement in which one party to an existing contract agrees to accept, in lieu of the performance that he is supposed to receive from the other party, some other, different performance. Satisfaction is the performance of the accord agreement. An accord and satisfaction generally may be accomplished by tender and acceptance of a check marked "payment in full" where there is a bona fide dispute as to the amount owed. **An accord & satisfaction is NOT enforceable *unless* the debt is genuinely in dispute.**

Answer 7

Assignment = delegation of duties + assignment of contract rights. You assign rights & delegate duties. Contract clause prohibiting the "assignment of the contract" = will be construed as barring ONLY the delegation of the assignor's duties. Cannot delegate your duties, but can assign your right to payment to assignee, and assignee can collect $. Generally, an assignee has whatever rights his assignor would have against the obligor. Similarly, the assignee is subject to any contract-related defenses that the obligor has against the assignor.

Answer 8

Specific Performance - is only allowed if monetary damages are inadequate to compensate an injured party. NOT awarded for personal service contracts, but injunctive relief may be awarded. SP is an available remedy when: 1) A **valid contract** exists (with clear & definite terms) 2) **Plaintiff has performed** or is **ready, willing, and able to perform** 3) **Legal remedies are inadequate** (ex: rare/unique item, sale of land) 4) **Enforcement is feasible** for the court (not feasible for personal service contracts or where land/person is outside court's jurisdiction) 5) **No valid equitable or contractual defenses** exist, and 6) **Plaintiff can sufficiently/adequately assure performance**

Answer 9

A buyer who receives nonconforming goods generally has the right to: 1) accept all 2) reject all, or 3) accept any commercial units and reject the rest. To properly reject, the rejecting party must, within a reasonable time after delivery and before acceptance, reject the goods or notify the seller of the rejection.

Answer 10

Where a builder in a construction contract breaches during the construction, the nonbreaching party is entitled to the cost of completion + compensation for any damages caused by the delay in completing the building. **nonbreaching party damages = cost of completion + compensation for damages caused by delay in completing construction - work performed by builder** Most courts, however, will allow the builder to offset or recover for work performed to date to avoid unjust enrichment of the owner. This restitutionary recovery is usually based on the benefit received by the unjustly enriched party. If substitute performance is readily obtainable, damages are measured by the unpaid contract price minus the cost of completion (up to the value of the benefit received by the defendant).

Answer 11

An intended third-party beneficiary can enforce a contract only after its rights have vested. (Therefore, a K cannot be modified or cancelled without the consent of the 3rd party beneficiary if their rights have vested.) Vesting occurs when the beneficiary: "vesting occurs when 3rd party goes to MAS" MAS: Materially changes position, Assent, Suit 1) **manifests assent to the promise** in a manner invited or requested by the parties, 2) **brings suit to enforce the promise**, or 3) **materially changes position in justifiable reliance on the promise** & notifies the parties 4) If contracts terms state rights have vested Promisor → Intended 3rd party beneficiary always has the right to seek enforcement of the contract bc the promsior is under an obligation to the beenficiary Promisee → Intended 3rd party beneficiary never has rights concerning the enforcement of a promise performance against the promisee. Will only have rights against promisee if there was some type of prior obligation b/w promisee & 3rd party beneficiary

Answer 12

The third-party beneficiary is subject to any defenses that the promisor could have used against the original promisee.

Answer 13

Incidental third-party beneficiaries are those who may benefit from the contract, but that is not the primary purpose of the contract. These incidental beneficiaries have NO contract rights. No rights to enforce the contract. To determine whether a beneficiary is "intended" look at the following factors: 1) whether the beneficiary could have reasonably relied on the fact that a purpose of the contract was to confer a right to him 2) whether performance is supposed to run directly from a contracting party to the third party, rather than from the promisor to the promise and only indirectly benefitting the third party, 3) if part of the overall objective of the parties to the contract was to benefit the third party

Answer 14

Unless the contract provides otherwise, a contractual duty may be delegated to another unless the other party to the contract has a substantial interest in having the original obligor perform. Typically, the other party will have such an interest where the contract is a personal services contract involving fancy taste and judgment.

Answer 15

A contract that involves one promise (by offeror) that expressly requires performance to accept. Contract is formed ONLY WHEN offeree completes performance. When an offer invites acceptance by performance, the offeree's beginning of performance creates an **option contract** that prevents the offeror from revoking its offer. An offer to form a unilateral K is *not accepted* until performance is completed. However, the offeree is not obligated to complete performance merely bc he has begun performance, as only complete performance constitutes an acceptance of the offer.

Answer 16

Parol Evidence - A party cannot introduce a prior or contemporaneous agreement (written or oral) that contradicts a later contract. EXCEPTIONS: Parole evidence can be introduced to... 1) To correct a cleric or typographical error 2) To establish a defense to formation (incapacity, duress, undue influence, mistake, illegal contract, contract contrary to public policy, unconscionability) 3) To interpret vague or ambiguous terms. Courts will interpret using the plain meaning rule, use the literal/ordinary meaning of terms. Only when this is not possible, courts will turn to extrinsic evidence. 4) To supplement a partially integrated writing, *if it does not contradict* the writing. Partially integrated writing is a writing that does not contain a complete statement of all terms. Fully integrated contracted, meaning it has all the terms the contract needs, then no parol evidence allowed. -Indicators of partial integration → absence of merger clause, length & lack of formality of K A merger/integration clause states that the contract contains a complete and entire agreement of the parties. A merger clause is evidence of total integration. Ex of Merger clause: "This agreement contains the complete and exclusive agreement b/w the parties and any prior representations are deemed to be merged herein." Remember, parol evidence does NOT bar the admission of subsequent agreements. Parties can always modify the contract!

Answer 17

Under the UCC, contract terms that are intended by the parties to be the final expression of their agreement can't be contradicted by evidence of any previous agreement or contemporaneous oral agreement but **may be explained or supplemented by evidence of "consistent additional terms."** Ranked from most impt to least impt. 1) Express Terms 2) Course of Performance → the way the parties have conducted themselves in performing the particular contract at hand 3) Course of Dealing → pattern of performance b/w the parties to the contract with respect to their past contracts together 4) Trade Usage → any practice regularly observed in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the trx in question

Answer 18

A constructive condition is one not agreed on by the parties, but which courts impose as a matter of law, in order to ensure fairness. Constructive conditions will only require substantial compliance to be satisfied (unlike express conditions which strict compliance is ordinarily required). Most common type of constructive condition is when each party's performance is conditioned on the other party's performance. This arises with issues of cooperation or notice, where one party's obligation to perform is impliedly conditioned on the other party's cooperation or notice that the performance is due.

Answer 19

In order for an agreement to qualify as a legally enforceable contract, it must contain a **bargained-for exchange of any act or forbearance that benefits the promisor OR causes detriment to the promisee.** -Past/Moral Consideration → not sufficient -Illusory Promises → are invalid, occurs when one party has no obligation to perform -Promise or Gift → not sufficient -Sham/Nominal/Token Consideration → not sufficient *Conditional promises* are enforceable, but the duty to perform does not become absolute until the condition has been met or is legally excused. Courts will not inquire into the adequacy of the detriment to evaluate the effectiveness of the consideration offered. As long as the promisee suffers some detriment, no matter how small, the court will not find consideration lacking merely bc what the promisee gave up was of much less value than what he received.

Answer 20

For breach of contract, the injured party may be entitled to expectation damages. These damages are intended to put the injured party in the same position as if the contract had been performed. To recover, damages must be: 1) **Caused** by breaching party (actual cause) 2) **Foreseeable** (proximate cause) 3) **Certain** (not speculative); and 4) **Unavoidable** (reasonable steps were taken to mitigate damages) **Expectation Damages** = Compensatory damages (direct loss) + Consequential & Incidental Damages (other/indirect loss) - Costs or Loss Avoided (by not having to perform) .

Answer 21

Where the cost to restore is many times greater than the difference in value of the property in its unrestored condition, damages are measured by the difference in value. Courts are split on which measure to use because the value measure encourages breach. In a case of willful breach, where only the completion of the contract will enable the nonbreaching party to use the land for its intended purposes, the cost of completion may be considered the appropriate damage award.

Answer 22

Traditionally, courts would not allow recovery of lost profits from a business not yet started; they were considered too speculative. The modern trend, however, is to allow recovery if there is sufficient evidence to determine profits with reasonable certainty.

Answer 23

Mitigation of Damages - a party MUST take reasonable steps to mitigate losses. If a party fails to do so, the court will reduce the total damages by the amount that could have been avoided. Affirmative steps to avoid loss are NOT required if they involve undue risk, burden or humiliation.

Answer 24

The occurence of an unanticipated or extraordinary event may make contractual duties impossible or impracticable to perform. Where the nonoccurrence of the event was a basic assumption of the parties in making the contract and neither party has expressly or impliedly assumed the risk of the event occurring, contractual duties may be discharged. Test for finding Impracticability: The party to perform has encountered: 1) **Extreme and unreasonably difficulty and/or expense**, AND 2) Its **nonoccurence was a basic assumption of the parties**

Answer 25

All employees are free to terminate their employment bc involuntary servitude is prohibited by the Constitution, but in the case of an employee under a contract, doing so is a breach of K and would be responsible for damages for breach. [Contrast w/ if employee's performance was excused by impracticability, then wouldn't be liable for breach of K]

Answer 26

For a contract to be enforceable, both parties must have had capacity to enter into a contract. One who is so intoxicated by drugs or alcohol that she does not understand the nature and significance of her promise may be held to have made only a voidable promise if the other party had reason to know of the intoxication.

Answer 27

Builder is entitled to any profit he would have derived from the k + any costs he has incurred to date. If the builder has mitigated his damages, any losses that are avoided must be subtracted from this amount. **Builder damages = expected profit from k + costs incurred to date**

Answer 28

A condition precedent must occur before an absolute duty of immediate performance arises in the other party. A contract of satisfaction that involves matters of personal taste, is fulfilled only if the promisor is personally satisfied. If the promisor claims she is not satisfied, her lack of satisfaction must be honest and in good faith. If promisor honestly was not satisfied, then the condition precedent did not occur, and homeowner had no duty to perform under the K. The standard used is the subjective good faith standard.

Answer 29

Both parties have promised to do something. Unless an offer specifically provides that it may be accepted only through performance, it will be construed as an offer to enter into a bilateral contract and may be accepted either by a promise to perform OR by the beginning of performance.

Answer 30

When an employer breaches an employment K, the standard measure of the employee's damages is the full contract price. However, the nonbreaching party cannot recover damages that could have been avoided with reasonable effort. If the breaching employer can prove that a *comparable* job in the same locale was available, then contract damages against that reaching employer for lost wages will be reduced by the wages that the plaintiff would have received from that comparable job. -has to be similar job. A mason cannot be forced to take a job as a night guard or day laborer

Answer 31

At common law, acceptance MUST exactly mirror the offer. Any different or additional terms in the acceptance make the response a rejection and a counteroffer.

Answer 32

Common law → contract for land or services, employment UCC → contract for goods (anything movable, tangible personal property) If K deals with both goods & services → look to **predominant purpose** of K to determine whether to apply common law or UCC ex: Sam signs K for wood and to build fence. Well he's not just signing K to buy a bunch of wood, the wood is for the fence so service K so common law would govern here.

Answer 33

A void contract is meaningless to begin with while a voidable contract is a valid contract except that it can be affirmed or rejected at the option of one of the parties.

Answer 34

Need unreasonable, deceitful behavior to prove this. Contract law requires each party to act in good faith. Good faith has been defined in multiple ways, including honestly and remaining committed to the agreed common purpose as well as consistent with the other party's justifiable expectations. Bad faith has been defined as conduct that does not adhere to reasonable community standards around fairness and decency, such as abuse of power or interference with the other party's ability to perform.

Answer 35

Equitable estoppel is invoked to prevent a party from taking advantage of another party in an unfair way, often by way of false or fraudulent words or actions.

Answer 36

(applies to both common law & UCC) A contract is voidable on the ground of **economic duress** by threat when it is established that a party's manifestation of assent is induced by an improper threat that leaves the party no reasonable alternative. In order to void the agreement on the grounds of duress, the claiming party must prove that: 1) The other party made a physical force or threat 2) Threat was improper or wrongful 3) The threat induced the claiming party's manifestation of assent to the modification, and 4) the threat was sufficiently grave to justify the claiming party's assent. Must be evidence of force or an improper threat, that leaves party no viable alternative to entering into the k. Contracts that are induced by duress will be **voidable** and may be rescinded.

Answer 37

1) Incapacity (Minor/Infant, Mental Incompetence, Intoxication) 2) Misrepresentation 3) Duress 4) Undue influence 5) Unconscionability 6) Illegality 7) Public policy 8) Statute of Frauds 9) Misunderstanding 10) Mistake

Answer 38

Minor only. Other party cannot void the K & the minor can enforce it against the other party. If, however, the minor lied about his age, the other party can seek to void it on the grounds of fraud.

Answer 39

No, a minor cannot void a K for necessities like (clothing, shelter, food, or medical expenses). Minor must pay for them.

Answer 40

Other party can recover reasonable value of the goods under the quasi contract theory

Answer 41

Yes, a minor can choose to enforce a K if these 3 elements exist: 1) Minor **entered into the K before adulthood** 2) Minor has **now reached adulthood** 3) Minor either **ratifies the contract implicitly** (by failing to disavow the contract once reaching adulthood) **or explicitly** (orally or through writing) **or by conduct** (minor encourages the other party to perform)

Answer 42

A person is considered mentally incompetent when they either 1) fail to comprehend the contract OR 2) comprehend the contract but they act in an unreasonable manner & the other party knows that they are acting unreasonably.

Answer 43

A contract is a legally enforceable agreement.

Answer 44

1) Mutual Assent (Offer + Acceptance) 2) Consideration (bargained-for legal detriment) 3) No defenses to formation

Answer 45

1) A manifestation of present intent to enter into a K 2) with definite & reasonably certain terms 3) communicated to an identified offeree

Answer 46

1) Parties 2) Subject matter 3) Price 4) Quantity

Answer 47

1) Identity of the land and 2) Price terms

Answer 48

Only required term for UCC contracts is QUANTITY. As long as parties intended to make a contract, the UCC will supply gap fillers for missing terms.

Answer 49

UCC presumes that contracts are partially integrated. They allow the addition of non-contradictory terms unless the parties would have certainly included them.

Answer 50

1) Expectation Damages - Entitle the non-breaching party to the amount that would put them in the position that they would have been in if the contract had been fully performed. 2) Reliance Damages 3) Restitution

Answer 51

Yes. You can get damages to compensate for the work performed & expectations damages for the work not performed.

Answer 52

1) If the cost to perform significantly exceeds the market value of such performance 2) If the party cannot calculate expectation damages with reasonable certainty 3) If the damages are unforseeable 4) If the damages could have been mitigated or reasonably avoided.

Answer 53

For destination contracts, the risk of loss only transfers to the buyer when the goods are delivered at the buyers destination. Also known as "FOB Buyer's Place of Business"

Answer 54

Non-Carrier cases are when the parties do not agree to use a common carrier to deliver the goods. In non-carrier cases, if seller is NOT a merchant, then risk of loss passes to the buyer upon tender of delivery. If seller is merchant, then risk of loss passes to buyer only when buyer physically takes possession of the goods.

Answer 55

If seller sends notice of accommodation & actual accommodation to buyer, that serves as a counteroffer. Accommodation = counteroffer to form a contract around the goods shipped as they are. Bc the non-conforming goods are an accommodation shipment, the supplier would not be in breach of the original contract. Buyer may accept the shipment, in which case he must pay the seller the list price OR he may reject the shipment, in which case he has no further rights against the supplier.

Answer 56

Aka "over-persuasion," often includes factors such as the existence of a confidential relationship, unusual time and place for persuasion, multiple persuaders, and time pressure

Answer 57

Under UCC, the meaning of a term supplied by trade usage will be observed if trx b/w members of the trade, even if one of the parties was not aware of the usage at the time of contracting.

Answer 58

Rule of interpretation that a term's meaning is construed against the party who drafted the writing is applied where there is an ambiguity, but there is no ambiguity when the meaning is readily supplied by trade usage.

Answer 59

Rescission - treats the original contract as **cancelled.** Available when there is a problem with contract formation A contract will NOT be rescinded if: 1) there is a valid equitable defense, or 2) plaintiff sued for damages under the contract in a prior action A party may sue for both damages and rescission at the same time, but if choose damages first, then may bar rescission. Rescission is ONLY available when the non-mistaken party knows or should have known about the unilateral mistake.

Answer 60

Reasonable reliance on a bid creates an option contract under which the offeror cannot revoke its bid for a reasonable time. If subcontractor tries to revoke, it will be ineffective and basically just breach & remedy for breach is expectation damages

Answer 61

Exceptions to the general rule that an offer may be revoked prior to acceptance. REMEMBER: "FOUR" 1) **F**irm Offer Under Article 2 → An offer in a signed writing for the sale of goods by merchant that gives assurances that it will be held open cannot be revoked. If no stated time, a reasonable time will be implied. Cannot exceed 3 months. 2) **O**ption K → a promise plus consideration 3) **U**nilateral K, Beginning Performance → an offer may not be revoked and must be held open for a reasonable time if the offeree has begun performance on a unilateral K. 4) **R**easonably Foreseeable Substantial Reliance on Offer → An offer may not be revoked if there has been reasonably foreseeable detrimental reliance on the offer by the offeree. (Almost always comes up in a bidding situation!)

Answer 62

An offer can be terminated before acceptance by: 1) **Revocation** by offeror 2) **Rejection** or Counteroffer by offeree 3) **Lapse of Time** → time for acceptance expires after a) time stated, or b) reasonable time (if no time state) 4) *Death or Incapacity** of either party, or (Be careful: contract does not terminate upon death) 5) **Supervening illegality** → proposed contract becomes illegal after offer is made

Answer 63

An offer may be revoked at any time before acceptance by: 1) **Unambiguous words or conduct** indicating an unwillingness/inability to contract communicated to offeree; OR 2) **Indirect Revocation** → when offeror takes definite action inconsistent with entering into a proposed contract, and offeree acquires reliable info to the effect

Answer 64

Incidental Damages - are the **reasonable costs or expenses incurred** as a result of a breach ex: cost to return, store, inspect, transport, or care for non-conforming goods

Answer 65

Waste Doctrine - when an award for cost of completion is wasteful, a court may award damages for **diminution in value** (the difference in value of the property/and) This may be awarded instead of expectation damages Waste doctrine applies if: 1) Contractor **performs in good faith,** but defects exist, and 2) Remedying the defects would entail economic waste (the cost of completion **greatly exceeds** the value of the completed work) Normally see in the construction contract context

Answer 66

When a buyer breaches, a seller may recover/do any of the following: 1) **Withhold Delivery** of goods 2) **Cancel** the contract 3) **Cover Damages** → difference b/w the resale price and the contract price (used when seller resold in good faith) 4) **Market Damages** → difference between market price and contract price 5) **Lost Volume Seller** → can recover lost profits on a sale if the seller regularly sells the goods at issue and has unlimited inventory 6) **Stop Delivery** of goods (if buyer is insolvent and goods are in possession of carrier/bailee) 7) **Replevy** (reclaim goods) from insolvent buyer in certain instances Seller is also entitled to **incidental damages** → the commercially reasonable costs as a result of the breach

Answer 67

A buyer *who never received the goods, rightfully rejected, or justifiable revoked acceptance* may: 1) **Cancel** the K 2) Recover any amount paid (**refund**) - even if buyer doesn't cancel 3) Recover **Incidental & Consequential damages 4) Recover either: A) **Cover Damages** → difference b/w contract price and price of substitute goods (if purchased in good faith) B) **Market Damages** → difference b/w market price and contract price (if not in good faith or no cover at all) If buyer *keeps the non-conforming goods,* then buyer is entitled to **Loss-in-Value Damages** → difference b/w the value as promised and the value of the non-conforming goods.

Answer 68

Generally, advertisements are not offers, they are invitations to make an offer. An advertisement transforms into an offer if it is: 1) sufficiently definite in its terms 2) can be accepted w/o any additional negotiations 3) circumstances demonstrate the advertiser intended to enter into the contract. An advertisement can be a valid offer if it is 1) made to a particular person 2) outlines the specific details of the offer 3) and concretely provides the recipient with instructions on how to accept

Answer 69

1) UCC or Common Law? 2) Was a K formed? (Offer + Acceptance + Consideration) -If facts tell you k was formed, just acknowledge that & move on 3) Defenses to Contract Formation

Answer 70

A fraudulent misrepresentation occurs when one party: 1) knowingly 2) makes a false representation 3) of a fact 4) and the other party reasonably relies on the misrepresentation to their detriment P will argue that the misrepresentation formed the basis of the bargain. D will argue P did not actually rely on the misrepresentation and that the P did not make it clear that x was a material fact of the contract. A contract induced by a fraudulent misrepresentation is voidable (may be rescinded) by the injured party. *Watch out for "as is" clauses

Answer 71

Requires Plaintiff to show: 1) Def did not disclose a material fact 2) formed the basic assumption of the agreement 3) Plaintiff reasonably relied on the statement *Watch out for "as is" clauses

Answer 72

**ADDITIONAL TERMS** Under the UCC, where there is a 1) definite and 2) seasonable expression of acceptance with additional terms, that expression will act as an acceptance. **BOTH MERCHANTS**: Whether the additional terms becomes part of the contract depends on whether the contract is between two merchants. If both offeror and offeree are merchants, then the additional terms will become part of the contract *unless* 1) they materially alter the contract, 2) the offeror objects within a reasonable time, or 3) the offer expressly limits acceptance to the contract. **1 OR NEITHER ARE MERCHANTS:** If acceptance comes back with additional terms, acceptance still works but the new term will be treated as a **proposal for an addition to the contract** (so other party can accept or reject it). Sometimes, offer will say "acceptance is expressly conditioned on assent to additional terms," and then acceptance will be treated as a counter-offer. -definite → nothing is waiting to be decided. Both ppl know what is being bought & sold & for how much -seasonable → within the right timeframe Unlike mirror image of Common law, UCC does not just throw the K out. **CONTRADICTORY/DIFFERENT TERMS** Courts differ on different terms. Some courts say UCC 2-207 is about additional terms, not different terms. (so different terms will just fall away) Other courts treat additional or different terms the same way whether they add something or change it. Some courts follow a third approach where the different terms will knock-out each other. The two terms cancel each other out, and missing information is filled in by trade usage in the industry or gap filler term.

Answer 73

Implied-in-fact contracts are formed by manifestations of assent through **conduct,** rather than oral or written language. Ex: atty received a doc at his office with an attached note from a client for whom he had just finished drafting a will. Note read: "Do you think this contract of sale for my boat complies with state law? I would have talked to you in person about this, but I'm on my way out of town." Atty reviewed the doc, wrote a 1 page letter to client stating it complied w/ state law & included a bill for $500, which was a reasonable fee. Client refused to pay arguing she never agreed to retain the atty * she received nothing of value from atty. if atty sues for $500, will recover bc client & atty had previously engaged in conduct that would indicate some sort of contractual relationship. Client's questions on a different typical would manifest assent to further services from atty, to which the atty performed the service of answering client's questions. Respective behaviors of client & atty formed an implied-in fact contract.

Answer 74

No-Oral Modification clauses prevent non-written changes & are meant to hold parties to the terms of the written agreement. A party may, however, through words or conduct, rely on verbal modification and essentially waive the no-oral modification clause. No-oral modification clauses would not necessarily prevent a verbal modification of a written agreement though conduct that effectively evidence the parties' mutual agreement to ignore the effect of the clause.