Contracts I Outline Fall 2009 DEFINITIONS

Contract: a promise the law will enforce

-requirements of a contract y Offer y Acceptance y Consideration

An Offer: manifestation of a willingness to enter into a bargain that justifies another person to
believe that assent to the bargain is invited and will conclude it. An Offer must: 1. be communicated to the offeree (a manifestation) 2. it must demonstrate a commitment to contract (willingness to enter into a bargain that justifies another to believe assent to the bargain is invited OFFEROR 3. be definite in its terms (assent to the bargain will conclude it)

The Acceptance: a manifestation assent to the terms made by the offeree in a manner invited or
required by the offer

An Acceptance Must:
1.) be communicated to the offeror (manifestation of assent) 2.) be absolute and unequivocal (to the terms of the offer) 3.) be responsive to the offer (manner permitted or required by the offer)

Counter-Offer: an offer made by offeree to offeror concerning the same subject matter but purposing
a different deal Ex: if you offer to sell your car to me for 5,000 and I say, no I will give you 4,000, I have rejected the original offer -under common law, the counter-offer terminates the original offer b/c it is implied as a rejection to the original offer

Mirror Image Rule (Common Law) DOES NOT APPLY TO GOODS: the acceptance must look like the
offer -unless the term that has been changed or added can be reasonably inferred -unless you re dealing w/the sale of goods (2-207) applies as long as you have at least one form (2-207) was there a contract created? If so, what are the terms of that contract?

BATTLE OF THE FORMS

Paragraph 1: was there a change in dickered terms? Price OR Quantity -if no, was there proviso language: expressly conditional on assent to -if not, then there is acceptance and go to paragraph 2 -if there is a change in dickered terms, price or quantity then go to paragraph 3 -STILL CHECK FOR PROVISO LANGUAGE Paragraph 2: were the exchanged documents between merchants? -if yes, the additional term will be automatically become part of the contract UNLESS y The additional or different term materially alters contract OR y There is an objection within a reasonable time OR y The offer is limited in its terms IF ANY OF THE ABOVE ARE PRESENT, A CONTRACT EXIST BUT THE ADDITIONAL TERM WILL NOT BECOME APART OF THE CONTRACT Paragraph 3: Does the conduct of the parties indicate there is a contract? -if not, then no contract exists -if yes, a contract exist and the terms include all those that BOTH parties agrees on PLUS any UCC gap fillers y 2-308 a place, sellers place of business y 2-309 time, reasonable time y 2-305 open price term, reasonable price

MAIL BOX RULE As long as acceptance by mail is a valid way to communicate the acceptance once you place the envelope in the mailbox and it is properly addressed and stamped, it is considered acceptance except when it is an option contract and the offerror requires a receipt. Even if the offerror never receives the mail y Only applies to acceptance y Does not apply to a rejection, offer or counter offer y Only applies to snail mail and telegrams

Consideration
-A bargained for exchange of something with legal value -courts always look at sufficiency but generally do not look at adequacy -only look at adequacy when dealing with equitable relief -known values or currency and getting unequal value for them= a disguised gift and the courts do not enforce gifts so they will look at the adequacy Ex: the parties traded this for that: quid pro quo Ex: if I say I will give you $500 if you do not smoke marijuana for the entire semester (smoking marijuana is not a legal right so forbearing someone to do it has no legal value) Past Consideration y Something that has already been completed but I am trying to exchange it for something now Ex: if I say I will give you $10 for mowing my lawn yesterday, it is not bargained for

EXCEPTIONS TO PAST CONSIDERATION:

-Past consideration is no consideration because it fails the bargained for exchange 1. A promise to pay an indebtedness hat is now barred by a statute of limitations 2. A Promise to pay an indebtedness incurred as an infant after the infant reaches majority 3. A promise to pay an indebtness discharged by a bankruptcy What we need for a promise for benefit to work 1. The promise has received a material benefit from the promise 2. Under circumstances that created a moral obligation Ex: Hayes v. Plantations -implied in fact contract: the parties do not expressly agree by their words but based on their actions the courts find that there is a contract. Yes, there must be consideration -if you give me a pension, I will retire would be a bargained for exchange (consideration) BUT he did not say that, he just said he was going to retire and nothing was exchanged!!!! -He already said he was going to quit, and the company did not induce anything Ex: Mills v, Wyman -the care had already been given before the father (Wyman) offered to compensate Mills for his care. -if you are legally required to pay for the persons services then it is implied that you made the promise to pay BUT Wyman had no legal obligation to take care of his son -bargained for exchange is missing, Dad s promise did not induce the treatment and vice versa. EX: Webb v. McGowin -courts look for specific things to decide if these promises are enforceable -McGowin must receive some material benefit from the promise -THE PERSON MAKING THE PROMISE WAS BENEFITTED Substitutive contract: immediately discharges the original contract and you cannot go back to it Ex: if she says I do not really need money but I need a horse and carriage, so if you agree I will accept your horse and carriage instead of the $2200 plus interest. If he does not deliver the horse and carriage, she cannot later sue for the $2200 cuz I that offer was discharged

Promissory Estoppel : ex: I make a promise to my daughter that if she goes to Spain on study
abroad, I will pay all her living expenses. Has she given any consideration? NO!!! nothing to make promise enforceable. Would it be reasonable if daughter relied on promise. The courts will enforce this promise but only for a reasonable amount. Ex: Promissory Estoppel: y A promise made to the promisee: YES y Was it foreseeable that the contractor would use the offer in their bid? YES y Was the reliance reasonable for the offer not to be changed? YES y Injustice for allowing them to withdraw their bid? NO

Illusory Promise: looks like I am promising to do something but when looking closely, I do not have
to do anything. I have not made myself bound by my promise. My future is not controlled by anything. I have left a way for myself to get out! y *An illusory promise IS NOT CONSIDERATION!!!!!

*If a promise is illusory, there is no consideration because the promise given does not fetter the promisor s future

ILLUSORY PROMISES HYPO S Hypo: Ann offered to sell bob all of the lettuce he needed during 2010 bob agreed. Ann refused to sell bob lettuce when he placed an order on June 1st. Is she in breach of contract? y -yes, it is enforceable, because Ann has committed to selling all HE needs of the lettuce. It is not illusory, it is enforceable!!! OUTPUT K. Hypo: Ann offered to sell bob all the lettuce he WANTED. Bob placed orders for lettuce on the first of each month beginning January 2010 but Ann refused to sell Bob lettuce when he placed an order on June 2019. Is she in breach? y -NO, there is no enforceable contract for the year. Nothing committing Bob to future action and if one party is not bound, then neither is the other. It is Bob offer when he places the order. All the lettuce he WANTS. Continuing offer!!!! People are stating their desire and desire words do not bind you to a future commitment. A contract is formed every time an offer is placed and shipped. Not bound for the entire time period I promise to pay you $500 for your house or your cow, and you agree. Is there consideration here to make an enforceable K? y -Yes, this is enforceable because both things have legal value and each would be consideration although they are alternate promises. You have bound yourself to some action because the alternate promises each have legal value I promise that if I buy a cottage on Lake Michigan, I will rent it to you for a week. If I buy the cottage and refuse to rent it to you, is there consideration to make the promise binding? y -Yes, because my future is bound, either I do not buy the cottage or I rent it to you for a week. I promise to give you $500 in exchange our promise to refrain from parking illegally and speeding? Is this consideration? y -No, because both of the things you do not have a legal right to do anyways. Even if you do both of the things. Your future is not restrained by the law I promise to give you $500 in exchange for your promise to refrain from smoking ciggs and payment o $1. Is there consideration? y -The smoking is consideration because you have a legal right to smoke. The $1 would not be consideration for the $500. BUT with an AND only one has to be of legal value. The $1 is inadequate for the $500. Anything under the $500 is insufficient

Accord in satisfaction: agreement where one party agrees to give and the other party agrees to
accept in satisfaction on a claim something other than what is owed Ex: he will deliver the payment plus his dog in exchange for her forgiving the interest. Is the promise enforceable? Yes, because new consideration with the Dog. Both have legal value -an accord suspends the original claim and both the original claim and accord is discharged upon delivery

Ex: Clark v. Elza -unliquidated claim, if parties agree on the certain amount then the courts do not care what the jury says. They are valuing the amount agreed upon for the broken leg -substitutive contract: Clark fails to deliver the amount; Elza could sue for that amount and nothing else. The tort action cannot be revived.

Modification to a contract under the common law: only promising to do what they are
supposed to do or paying a lesser amount is not consideration

Modification to contract under the UCC: does not require new consideration but requires
the consideration to be in good faith (good reason to modify the contract and the other party is not trying to take advantage of the other party

Forbearance of claims: the party gives up a legal right in consideration for the bargain they are
getting from the other party -even when the legal claim is invalid, if subjectively and objectively the P believes they had a claim and objectively a reasonable person would believe it, it doesn t matter that the claim is invalid in actuality

Promise: manifestation of an intention to act or refrain from acting in a specified way so as to justify a promisee in understanding that a commitment has been made y Promise is not a statement of intention or opinion ex: I m thinking of selling my car

Uniform Commercial Code- deals with the sale of goods

y y y Goods: tangible movable object Transaction: sale of goods Article 2 applies b/c you are dealing with the sale of goods

Restatement 27 Oral agreement: memoralization of the oral agreement OR parties had no intent to be bound until the document was actually executed -did party intend to be contractually bound w/o written document OR Silence does not equal acceptance (Restatement 69) -Exception: Only accepted If: 1. where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only: a.) where an offeree takes the benefit of offered services w/reasonable opportunity to reject b.) where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction and the offeree in the remaining silent and inactive intends to accept the offer ex: I say I need someone to mow my lawn, you offer to mow my lawn for $50, I do not verbally accept but if you show up to mow my lawn, I should be willing to pay you $50

c.) where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept ex: every winter you shovel my snow and I do not notify you that I do not want you to shovel it, you shovel it and ask for payment 2.) An offeree who does any act inconsistent with the offerers ownership of offered property is bound in accordance with the offered terms unless they are manifestly unreasonable. Ex: I offer to buy your car for $5,000 and I don t respond but I stencil my name on the back of the car

Firm Offer Rule (2-205) an offer by a merchant to buy or sell goods in a signed writing which by its
terms gives assurance that it will be held open is not revocable for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in the event may such period of irrevocability exceed 3 months (IF NO TIME IS STATED, THE OFFER IS OPEN FOR A REASONABLE AMOUNT OF TIME NOT EXCEEDING 3 MONTHS BUT COULD BE LESS, IF THERE IS PAYMENT RENDERED ON THE GOODS, THEN THE OFFER CAN STAY OPEN LONGER THAN 3 MONTHS) OFFER MUST BE BY A y MERCHANT- a person who deals in the goods of the kind or otherwise by his occupation holds himself as having knowledge y OF GOODS- moveable tangible objects y THAT IS SIGNED- any symbol executed or adopted by a party with present intention to authenticate a writing y IN WRITING- printing or typewriting or any other intentional reduction to tangible form Common law rule: offers are freely revocable if no acceptance

Sale by Auction (2-328) BUYERS ARE THE OFFERORS: AUCTIONER IS OFFEREE

1.) In a sale by auction if goods are put up in lots each lot is the subject of a separate sale 2.) A sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. Auctioneer may reopen the bidding at his discretion 3.) Such a sale is w/reserve unless the goods are in explicit terms put up w/out reserve

Restatement 41
-Lapse of Time y An offerees power of acceptance is terminated at the time specified in the offer, or if no time is specified at the end of reasonable time y What us a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made y Unless otherwise indicated by the language or the circumstances and subject to the rule stated in RESTATEMENT 49, an offer sent by mail is seasonably accepted if an acceptance is mailed at any time before midnight on the day on which the offer is received

Restatement 36
-Termination of the Power of Acceptance 1.) An offeree s power of acceptance may be terminated by o A rejection or counteroffer by the offeree OR o Lapse of time OR o Revocation by the offeror OR o Death or incapacity of the offeror or offeree

2.) An offeree s power of acceptance is terminated by the non-occurrence of any condition of acceptance under the terms of the offer

Restatement 87 Option Contract

1) An offer is an option contract if it a) Is in writing and signed by the offerror, recites a purported consideration for the making of the offer, and purposes an exchange on fair terms within a reasonable time or; b) Is made irrevocable by statute 2) An offer which the offerror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree before acceptance and which does induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice COMMENT C: False recital of nominal consideration A recital in a written agreement that a stated consideration has been given is evidence of that fact as against a party to the agreement but such a recital may ordinarily be contradicted by evidence that no such consideration was given or expected Three ways to create an option contract under CL y Unilateral contact offer where you have the beginning of performance which requires the offer to hold the offer open for a reasonable amount of time not exceeding 3 months y Money being given to the offerror to hold the contract open y Under the UCC Firm Offer Rule

Restatement 349 Damages based on reliance interest

As an alternative to the measure of damages stated in 347, the injured party has a right to damages base on reliance interest, including expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contact been fully performed

Restatement 77 Illusory and alternative promises

-a promise or apparent promise is not consideration if by its terms the promisor or purported promisor reserves a choice of alternative performance unless a) Each of the alternative performances would have been consideration if it alone had been bargained for OR ex: I will give you my car or my truck for $5,000 (EACH THINGS HAVE LEGAL VALUE) b) One of the alternative performances would have been consideration and there is or appears to the parties to be substantial possibilities that before the promisor exercises his choice events may eliminate the alternative which would not have been consideration Ex: I promise to deliver my car or $1 in exchange for your $5,000 (ONLY ONE HAS TO HAVE LEGAL VALUE)

Must look at the OR and must evaluate each because both have to be of legal value Must look at the AND and only one must have legal value

Continuing Offer -look for words like WANT, DESIRE, WISH, MIGHT WISH, MIGHT REQUIRE

Ex: I offer to buy from you all the widgets I WANT during 2010. (this is not a contract unless there s an order and a shipment then there is only a contract for that order ONLY!!

Preexisting Duty Rule

-there s no consideration if you only promise to do something you are already obligated to do -The law will not allow extortion or holdouts -if you are under an obligation to do something it is not enforceable to do it for more money unless you change what you normally do EX: Lingenfelder v. Wainwright Brewery Co. -preexisting duty to do the exact same thing and he just wanted more money but no extra work was entailed. -not giving up something when he does not breach the contract because he does not have a legal right to breach a contract anyway -must give new consideration for that promise to be enforceable

Executory Accord: not yet been satisfied Executory Contract: not completed (performance is not complete)

Past due Monetary Debts: the promise to pay an amount less then what you owe, will not
discharge the debt, you still must pay it in its entirety -oblige: one to whom the obligation is owed (GETS) -obligor: one who owes an obligation (OWES)

Restatement 90 Promise Reasonably inducing definite and substantial reliance

-look for a promise that the promisor could foreseeable foresee -make sure it was foreseeable to the promisee -how reasonable was it for the promisee to act on that promise, -injustice if we do not Ex: Allegheny College v. National Bank -offer, I will give you this money if you establish the scholarship fund in my name -acceptance, when the $1,000 was delivered, they impliedly promised that they would make the scholarship -bargained for exchange: the money ($1,000) for her name on the scholarship - the money has value and the memorial for her name has value -Courts does not find her interest in Christian education to be of legal value (not consideration) -NO RELIANCE BY THE COLLEGE FOR HER PROMISE OF MONEY!!! NO PROMISSORY ESTOPPEL , CHARITIABLE SUBSCRIPTIONS ARE GENERALLY IRREVOCABLE!!!! Ex: Problem 61

-Earnest was depressed, and aunt said she would give him $1,000 per year until he dies. He lived it up the week before and spent all his money. -would the aunt believe the nephew would have relied upon her promise (promise made by the promisor and it was foreseeable that the promise would rely on the promise) -was his reliance reasonable? Yes (Promise must be reasonable) -What is the injustice that would result? (injustice results) No true consideration, the courts do not enforce gift promises

Remedies: damages (always money) and Equitable Remedies

-money damages: 3 major interest we want to protect 1) expectation interest (what did they expect) 2) reliance interest (how much did they rely on the promise) 3) restitution interest (how much has the plaintiff benefitted the defendant and now require the defendant to pay back)

Expectation interest: unique to contract law

y y Put the non-breacher into the position he or she would have been in if the K was fully performed. benefit of the bargain The purpose is to compensate the plaintiff the amount that gives him or her the value of what was bargained for

Reliance interest:
y y y y y y Put the non-breacher back into the position he or she was in right before the agreement was entered into. Restore the Status Quo The purpose is to compensate the plaintiff the amount that gives him or her the expenses that have been paid out of pocket in reliance on the bargain Alternate to Not unique to contract law Put the defendant back into the position he or she was in before the K was created The purpose is to compensate plaintiff the amount that the defendant has receives as a benefit from the plaintiff, but which the defendant has not yet paid for

Restitution interest:

Restitution -what we want to give the Plaintiff based on the amount they have incurred to the Defendant -must find that the benefit was unjust otherwise it is viewed that P is an officious intermeddler and it is viewed as a gift and the courts do not enforce gifts 1) Independent theory of recovery when there is no enforceable contract because of lack of mutual assent or some other formation defect-QUASI CONTRACT 2) As an alternative measure of damages or an independent recovery for a non breaching plaintiff: losing contract ex: US v. Alger Blair 3) As an independent recovery for a party that has breached an enforceable contract, breaching plaintiff unless they have incurred some benefit that the defendant has not yet paid for ex: Britton case

4) As an independent theory of recovery when a contract is unenforceable because of some defect such as a lack of a requisite writing (statute of frauds) impossibility, mistake or incapacity Purpose of Restitution: to protect the interest to avoid unjust enrichment -puts the defendant back into the position he or she was in by requiring the defendant to pay for the benefit that he or she has received from the plaintiff but the defendant has not yet paid for

Loss in Value:
y If there has been no performance at all, the loss is the value that is equal to the promised performance to the plaintiff If there has been defective performance or partial performance, the loss in value is equal to the value of the performance expected and the value of the performance received All losses actually suffered (except those necessary to receive the loss of value) including incidental and consequential losses Incidental losses are those incures in a reasonable effort Consequential losses are those such as injury to a person or property resulting from the breach If the plaintiff avoids cost or losses by the breach, those must be subtracted from the plaintiffs damage awarded Ex: if Ann has spent $500 for building materials to perform a contract with Bob who breaches the contract if she can resell the building materials to Chris, for $300 ann cannot recover the $300 from Bob

Other Losses:
y y y y y

Cost Avoided:

HYPOS:
Buyer and seller entered into a K for the sale of the land for $20,000 and the land is worth $25,000 and seller revokes. Buyers measure of damages would be $5,000. The amount that puts the buyer into the position the buyer would have been in if the K was successfully performed Buyer and seller enter into a contract for the sale of the land for $50,000 and the market value is $52,000. They paid $10,000 down on the land and the seller revokes. They are down $12,000 Loss in value is $52,000 40,000= 12,000 Buyers expectations of damages would be $12,000 Buyer and seller have a contract of $50,000 and the value is $52,000. Buyer incurs $300 fees and puts down$10,000 on the land and the seller revokes. -his expectation and reality are the same ($300) Loss of value is $52,000 (do nothing with the $300 cuz it would be over-compensation) -$40,000 =$12,000 Buyers expectations measures damages of $12,000 this amount puts the buyer back into the position that the buyer would have been in if the K was successfully performed, (The buyer does not get the $300 b/c the buyer expected to pay that money in addition to the purchase price to receive the land. Expectation interest (damages) : only for loss in value or loss profit K s

Reliance interest (no loss profits to recover) Ann contracts to employ Bob for the summer at a wage of $10,000. Ann breached the contract by firing Bob and he spent $200 looking for more employment -expectation: $10,000 + $200 =10,200 for the breach (expectation interest) Ann hires Bob to do her land for $2,000 and Bob destroys a land storage for $500 and she then hires Chris for $5,000. $5,000-$2,000=$3,000 + $500 which is the loss of value=$3,500

Limitations on Recovery -Certainty: a party cannot recover for damages for loss beyond the amount proven with
reasonable certainty: must show reasonable certainty FREUND v. WASHINGTON (author and publisher but he did not publish the book) -expected royalties but could not recover them b/c its not known how much they would have been, $2000 in advance, published in hard copy -Court awarded him nominal damages; $10,000 (expected cost of publishing the book) -reduced the award amount to $.06 and cannot show any damages w/ reasonable certainty (royalties or loss of promotion) Nominal damages: even when the plaintiff cannot prove loss, the court may still award nominal damages. This technical win may permit the court to award cost, attorney fees, or both to the winning plaintiff HUMETRIX v. GEMPLUS (smart cards w/vassicard in US) -$ 15 million in damages -expectation interest -NEW BUSINESS RULE: the courts will let you recover for the loss of your business if you can prove what you would have made -Humetrix is not seen as a new business -able to recover the losses able to prove with reasonable certainty

-Foreseeability: a party cannot recover damages for loss that the party in breach had no
reason to foresee at the time that the K was created Hadley v. Baxendale (mill stopped working and sent it for repair) -it was unforeseeable to this defendant that they would be liable for the delay in the parts being delivered to the defendant -at the time the contract was entered into, not afterwards AM/PM v. Atlantic: UCC on damages -general damages: the actual difference in value between the goods as promised and the goods received -able to get loss of primary profits -able to get loss of secondary profits -able to get loss of prospective profits (good will damages) CANNOT RECOVER FOR EMOTIONAL BREACH OF CONTRACT UNLESS, -THE BREACH CAUSES PHYSICAL /BODILY HARM OR -it s the kind of contract where the emotional damage would be foreseeable

-Avoidability: a party cannot recover damages for loss that he or she could have avoided if that party had taken reasonable steps

Liquidated Damages: amount the party has agreed upon in the event of a breach but it cannot
be unreasonably high so to be viewed as a penalty. 3 questions to decide if the court will find that this is an enforceable clause -did the parties tend to agree upon the damage amount before the breach -would the damages of the breach be hard to ascertain in advance -is the amount agreed to a reasonable forecast of the losses that would result from a breach Courts will not enforce if they view it as a penalty!!!! If a liquidated damages clause is not enforceable, then they must PROVE their damages rather than having the court look at the K and deciding the damages

General rule: Substitute Employment

P s measure of recovery in an employment case is the amount of the K minus any reasonable amount that the D can show with reasonable certainty could have been avoided by the Plaintiff seeking substitute employment -substitute employment: type of acting, place film is to be taped **Substantially different employment from what she was previously doing**

Statute of Frauds
-general rule: oral K s are binding BUT S of F makes some K s have to be in writing MY LEGS (these types of promises MUST be in writing) M- marriage: something promised in anticipation of Y- year: a K that cannot be completed in one year L- Land: a K dealing with an interest in land E- executor: a promise by an executor to male payment on behalf of estate from the executors own estate S- suretyship: one party promises to pay the debt of another G- sale of goods over $500: selling a movable tangible object over the amount of $500 Within the Statute of Frauds: one of the kinds of K s that the statute of frauds says must be evidenced by a writing to be enforced, If it is not evidenced by a writing, it will not be enforced (MY LEGS) MUST BE IN WRITING!!! Without the Statute of Frauds: Oral K s are enforceable (can be completed within a year) Marriage: oral exchange to marry, courts will not hear these cases- do not enforce these kind of promises for public policy reason

y y

Property or support claim Those made w/ prenuptial agreements: ORAL prenump is unenforceable and a WRITTEN prenump is enforceable

One Year Provision: k must be completed in 1 year OR must be in writing y Courts do not like this, b/c it seems like you are barring k s y You ll have lifetime employment: might be alive longer than a year OR might die within 1 year (this is enforceable as an oral promise) y I ll support you for the rest of your life: courts will enforce this oral promise y You can live here permanently: promise will be enforceable as oral promise b/c they could be completed in 1 yr from when the promise was made y FROM THE DATE THAT THE PROMISE WAS MADE, COULD IT BE COMPLETED WITHIN ONE YEAR? If it can be completed within 1 year then it is without the statute of frauds and the oral K is enforceable. If it cannot be completed within 1 year it is within the statute of frauds and the oral k is not enforceable y Natural termination of the K within one year: lifetime employment= not in writing o Employment for 5 yr=must be in writing b/c the 5 yr is the termination point not death y Partial: the day the K is entered into is not counted. o Ex: we entered into a k that starts dec 1 2009 and ends Dec 2010 it is completed within 1 year so it is enforceable Transactions involving LAND: y Must be in writing Real property is permanent fixtures on real estate Executor K: Ann dies owing Chris 5000. Later Bob, the executor of Ann s estate orally promises Chris that he will pay Ann s debts from his own funds. Will Bob s promise be enforced? NO, must be written Sale of Goods: if $500 or more, must be evidenced by a writing Eastern Dental v. Issac y Requirements k: agree to sell all I want OR agree to buy all she produces OR all I require y Courts say this in unenforceable and we do not have a writing to evidence the k Rule required to be a signed writing: symbol w/ present intent to authenticate (letterhead, symbol, initials etc) Suretyship K: one party promises to pay the debt of another y Exception: if the primary purpose of the other party paying the debt is to benefit themselves, it does not have to be in writing!!! Satisfaction of the Statute: what s required for the writing to be evidenced of the K? y General rule: a K within the S of F is enforceable is it is evidenced by any writing signed by or on behalf of the party to be charged with the obligation (has the defendant signed the writing) Basically, if the defendant signed the writing? (Kayla s words) o MUST reasonable identify the subject matter of the K o Is sufficient to indicate that a contract with respect thereto has been made between the parties or offered by the signer to the other party o States w/ reasonable certainty the essential terms of the unperformed promises

Questions to ask with the statute of fraud 1. does enforcement of this K require evidence of a writing (my legs) a. if NO, then oral K is enforceable b. If the answer is YES, then 2. ask; do we have a document or documents that satisfy the evidence of a writing requirement. a. If NO, is there an exception or mitigation doctrine that would still make the K enforceable although we don t have a sufficient writing. b. If no, not enforceable, c. if yes, then it is enforceable Mitigation Doctrines and Exceptions y General Rule: Partial performance alone does not make a K enforceable w/o the evidence of a writing ( courts did not specify that we needed all three) o Sale of land that does not have a sufficient writing requires: delivery and assumption of actual or exclusive possession of the land o Payment or tender of the consideration whether in money, property or services o Making of permanent substantial and valuable improvements referable to the K y Part performance does not go with employment K s or in consideration of marriage o Admissions: CL it doesn t matter, NO CL RULE RELATED TO ADMISSIONS, not an acceptation o UCC: this is recognized as a mitigating doctrine, admitting to entering into the K, I could have the K enforced only for the amount I admit to!!!! Something that is done under oath. Merchants Confirmation Rule=merchants exception y Enter into an oral K with 2 merchants and the sender sends a document that would be sufficient to satisfy the SoF terms against the sender, and the receiving merchant gets it, and they do not object w/in 10 days, that writing is sufficient to enforce the K against the receiver Thomson printing v. Goodrich y Sale of goods for $500 or more y D has not written or sent out anything w/ a signature. NO writing to satisfy the requirement (writing) y Exceptions: must reasonably object within 10 days after getting P s letter (merchant exception)

MISCELLANOUS
y Social Contracts do not have legal consequences Ex: if I invite you to dinner, I am not at home and you bang on the door, you cannot sue me y Sale of land contract MUST be in writing y Ad s do not constitute an offer, it is a solicitation for an offer and then the buyer becomes the offeror UNLESS the offer is clear, definite and nothing to negotiate y Fungible goods for fungible goods do not constitute a contract Ex: a bunch of people putting corn and wheat into a silo, then getting it all out, they do not necessarily get their exact wheat or corn back but as long as they get the same amount back it is considered a fungible goods exchange y Love and affection have no legal value and do not make binding promises y Courts do not enforce GIFT promises y Quantity is the only thing needed to make a sale of goods enforceable
Implied in Fact K -true K s that are created not in expressed words but by the parties actions Implied in Law K s -the courts impose a K responsibility, even if the parties did NOT intend to create a K, it may be imposed upon them by the court if one party has been benefitted unjustly Quantum Meruit: the value of services rendered to another Quantum valebant: the value of the property delivered to another Money had and received: money held by one person but belonged to another