Autonomy Principle: Society should bind people only to what they mutually agree to be bound to…
； Intent: Objective theory of intent – one is bound to what a reasonable interpretation of one’s behavior implies.
; If one party has a secret intention that intention is void.
； Zehmer did not let Lucy know he was joking. Lucy v Zehmer, (12)
； Employment contract renewal upheld by the courts by phrase "you're alright, go back to work." Embry v
Hardgradine Dry Goods Co. (19)
; Unless one party knows
; Or should know what that undisclosed intention is.
？ Multiple interpretations.
; Where one party was took a particular interpretation & the other party knew (or should have known) of that
interpretation, it is binding. Where neither party knows there is a misunderstanding, there is no meeting of the ndminds. Restatement 2 ?20 & ?201
; If confusion as to the subject of the contract is due to two different reasonable interpretations of the words of the
contract, that voids the contract. Oswald v Allen (24)
nd？ Manifestation of Assent – Restatement 2 ?19
1. Manifestation of assent may be made wholly or partly by written or spoken works or by other acts or by failure
2. The conduct of a party is not effective as manifestation of his assent unless he intends to engage in the conduct
and knows or has reason to know that the other party may infer from his conduct that he assents 3. The conduct of a party may manifest assent even though he does not in fact assent. In such cases, a resulting
contract may be voidable because of fraud, duress, mistake or other invalidating cause.
； What is the offer?
？ Something that can be accepted to make a contract. (Farnsworth…) “…manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will ndconclude it [the bargain]” Restatement 2 ?24.
; Intent to make an offer as determined by offeree’s language. (objectively)
; Something that only a defined person may accept.
； Joshua Tree land, seller stated buyer should hurry as seller was entertaining multiple bids. Did not specify
to buyer that he was sole offeree, therefore no offer was made. Lonergan v Scolnick (p.28)
； Fur coats for sale to first comer definite enough to be an offer. Lefkowitz v Great Minneapolis Surplus
？ Offer can be terminated nd; Restatement 2 ?36
1. By rejection or counter-offer
; Counteroffer to buy house including certain furnishings. Ardente v. Horan (41) nd; “Acceptance” that adds conditions is a counter-offer. Restatement 2 ?59
2. Lapse of time
; Offer to resign not accepted during conversation. Akers v. Sedberry (35)
; Acceptance after specified term expired considered counteroffer. Houston Dairy v. John Hancock (63)
3. Revocation by offeror
; By direct statement. Petterson v. Pattberg (46)
; Offeree receives “manifestation of intent” that offeror no longer wishes to contract. Does not require ndstated revocation. Restatement 2 ?42
; Manifestation of intent not to accept is rejection unless offeree states he/she will take offer under ndfurther advisement. Restatement 2 ?38
4. Death or incapacity of offeree
; Offeror terminates the offer when he/she takes action inconsistent with intention to contract & offeree receives ndthat information. Restatement 2 ?43
； Offer to resign – employer told employees to go back to work inconsistent with any intent to accept offer of
resignations. Akers v. Sedberry (35) nd; Unilateral contracts (Option contracts) can’t be revoked by offeror. Restatement 2 ?37 nd; Revocations of advertised offers must be revoked in the same manner as the offer was given. Restatement 2
？ How to tell the difference between a unilateral offer & a bilateral offer
; Preference is for bilateral contract
; Intent of the offeror.
; found to be bilateral contract as at its terms, offeror would not survive to see full performance and must rely on
promise for offeree to perform after offeree’s death. Davis v. Jacoby (55)
; “Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner ndand by any medium reasonable in the circumstances.” Restatement 2 ?30 (2)
nd？ Formal Definition: Restatement 2 ?50:
1. Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited
or required by the offeree
； Offeree may waive formal requirements that it places on an acceptance. If it does waive this requirement,
acceptance may be manifested through performance, notification to other parties, cashing of a check, any of
which are communicated to offeree. Empire raises question of what constitutes “substantial performance”
under this rule. Empire v. Litton (73)
； Manifestation of assent in any fashion constitutes acceptance unless otherwise required by the offeree. “In
any manner and any medium reasonable.” UCC 2-206
2. Acceptance by performance requires that at least part of what the offer requests be performed or tendered and
includes acceptance by a performance which operates as a return promise. (OPTION CONTRACT)
； Where performance is requested, (Option contract,) partial performance constitutes acceptance. ndRestatement 2 ?45
； Partial performance creates option contract, conditional on full performance. Beginning to look for a buyer
fulfils agents part performance to seller. Marchiando v. Scheck (51)
； No notice that performance has begun is necessary unless offeree has no way of discovering performance.
Unless offer explicitly does not require notice, offeree must “exercise reasonable diligence” to notify. ndRestatement 2 ?54
; Contract not accepted by deposit of cashier’s check as offeree had no way to know check had been
deposited. Houston Dairy v. John Hancock (63)
3. Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.
？ How must the acceptance be phrased?
; An acceptance must comply with the requirements of the offer as to the promise to be made or the performance ndto be rendered. Restatement 2 ?58
； Strict mirror image rule, counteroffer NOT an acceptance. Ardente v. Horan (41)
； Offeror may require complete performance not promise to complete offer. Petterson v. Pattberg (46)
； If offer requires performance, offer is an option contract/unilateral offer.
; "Mailbox rule" - Acceptance is valid when mailed, not when received. Offeror bears the burden of putting
multiple offers out for acceptance for only one good.
; According to Farnsworth, acceptance may be implied from smile, nod, other conduct. UCC - “In any manner
and by any medium reasonable under the circumstances”
？ Acceptance by silence nd; Restatement 2 ?69 – Silence is an acceptance when
a. Offeree takes the benefit of offered services with opportunity to reject them knowing they were offered with
expectation of compensation
； Buyers new community dues were owed even by nonusers of community facilities – took advantage of
those facilities through market value of property. Seaview Assn v. Williams (69)
b. Offeror has stated or given offeree reason to understand that assent may be manifested by silence or
c. Where because of previous dealings or otherwise it is reasonable that the offeree notify the offeror if he
does not intend to accept the offer.
； Frequent salesman did not state that order would be rejected. Cole-Mcintyre-Norfleet v. Holloway (66)
； Incomplete Agreements
？ Omission of a term
; Common Law
； “The fact that one or more terms of a proposed bargain are left open or uncertain may show that a
manifestation of intention is not intended to be understood as an offer or as an acceptance.” Restatement nd2 ?33
； Court found indefiniteness of price & times for delivery too incomplete to enforce. Sun Printing v.
； "Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the
parties have intended to make a contract and there is a reasonably certain basis for giving appropriate
remedy.” UCC ?2-204 (3)
？ Agreements to agree
; Agreements to agree, or be bound by good faith in negotiating end when formal contract is submitted to be
approved. Because two parties agreed to negotiate does not bind them to actually contract unless specified by
the agreement to negotiate. Apothekernes v. IMC (91)
; Agreement to negotiate in good faith requires that the parties accept a fairly negotiated settlement. Clause
stating that parties “will not be bound w/o formal contract” does not allow refusal to consider negotiated
agreement when subsequent third party offer arises. Itek v. CAI (97)
？ Policy – the court does not like to “make contracts” for people.
； Parol Evidence - Oral testimony may not supply the terms of a contract unless
？ Clear & Convincing evidence of fraud, accident or mistake
？ Ambiguity in written contract requires resolution.
； Statute of Frauds UCC 2-201
？ Sale of goods for more than $500 must be in writing.
？ May be multiple papers as long as a signature (by party charged) on document admitting a contractual arrangement
Enforcement is expensive – therefore there must be a good reason for enforcement. Court wants consideration – a
bargained for exchange
nd； Mutuality of Obligation. Restatement 2 ?71 "To constitute consideration a performance or a return promise must be bargained for"
？ Policy: Court wants to promote more promises being made.
; If all contracts are enforced without more than just moral “he promised” would lead to fewer promises.
; However, where there is some consideration, cost of enforcement is worth stability of economy to preserve
reliability of non-cash-on-hand exchanges.
; Not necessarily equal (monetarily equal) somethings must be exchanged. Batsakis v Demotsis (135)
； Because there may be some social reason to enforce these kinds of promises.
； The court will not question why the inadequate consideration was given.
？ Gift promises are unenforceable, as both parties have not given something up. BUT consideration is found where
both parties will incur obligation and "gain:"
; Specific behavior is something that can be both given up and received.
； Uncle can receive good behavior of nephew in exchange for money. Hammer v Sidway (133)
； Conditional gift promises must be separated from specific performance as consideration. "If you go to
Europe, I will pay your expenses" is a conditional gift - going to Europe is not consideration for giftor.
Devecmon v Shaw (165) nd； "… any performance which is bargained for is consideration" Restatement 2 ?72
; Valueless monetary exchanges ($.01) have no real consideration.
； Where return consideration is offered after gift, there is no legal consideration. Congregation Kadimah
Toras-Moshe v. DeLeo (125)
； Love & respect for dead wife are not valid consideration. Schnell v. Nell (127)
； Exchange of worthless securities for debt is not valid consideration. Newman & Snell's Bank v. Hunter
; Giving up a “claim” even if there is no valid cause of action may be consideration if potential plaintiff believed ndin good faith that the claim was valid. Dyer v. National By-Products (142) Restatement 2 74
; No mutuality if buyer is not bound to buy exclusively, and seller is bound to sell at a specific price. If buyer has
option to purchase elsewhere there is no obligation on buyer and no consideration to the contract. Wickham v
; If implicit duty found by (explicitly) unbound party there is mutuality of obligation. Wood v. Lucy, Lady Duff-
； An exclusive contract is an argument for implied duty.
； Since neither party gains if agent does not advertise, he is implicitly obligated to advertise to acquire his
share of profit.
； Change of payment mid-contract. Mid-term modification
？ Usually no good – that subsequent agreement needs new and independent consideration and usually has no consideration as one party has done nothing more than agreed to in the initial contract ; A subsequent agreement is OK if the receiving side has a “similar performance that differs in a way that reflects
more than a token change.” (Bogen’s dicta says that change in # of years of contract meets this criteria.) ndRestatement 2 ?73
; Decreasing rent so business does not fail does not constitute additional consideration for landlord - lessee is
merely continuing contractual obligation to pay. Levine v. Blumenthal (151)
; Modification OK if it is fair in view of unanticipated circumstances, if it is fair in light of material change of ndcircumstances or if provided for by statute. Restatement 2 ?89
； If performance is finished on either side, ?89 doesn’t apply.
； # of people to be serviced by garbage collectors increasing over 10-year contract is sufficient to prove
"unanticipated circumstances." Angel v. Murray (159)
; UCC says good faith modification for contract for goods is OK. UCC ?2-209(1)
； What is not good faith? Where legal redress for changor’s breach of the agreement would not be sufficient.
(Fear of breach if change is not accepted.) Gross Valentino Printing Co. v Clarke (154)
； Also, there must be some evidence of wrongdoing on changor’s part to prove bad faith.
; To prevent “hold-up” for arbitrary increase in payment when payor cannot get out of agreement due to partial
； Business compulsion – sometimes damages awarded for “breach of contract” (only receive what you
haven’t yet been paid for) don’t recompense for actual damages accrued when one party leaves. Gross
Valentino Printing Co. v. Clarke (154)
； Alaska packers case as classic example of "hold-up" - fishermen refuse to fish unless boat operator agrees
to increase wages while out on long-term trip.
; However, it is unfair to hold payee to lower price due to unforeseeable changes in the assumptions that original ndprice quote was based on. Thus the equity solutions under UCC & Restatement 2 ?89. Note that both of these
sections require that both parties agree to the change
； Promissory Estoppel
？ Sometimes this looks like a conditional gift, but if the person acts on the commitment to make the conditional gift (fulfilling the condition) & justice can only be served by enforcing the gift, the promise is enforceable. Restatement nd2 ?90
1. A promise is made (Even one too vague to be a contract – First National Bank of Logansport v Logan Mfg Co.
; Which the promissor should reasonably expect to induce action or forbearance of the part of the promissee or a
； Company promised bank loans for relocating. First National Bank of Logansport v Logan Mfg Co., Inc.
； Nephew goes to europe on uncle's promise to pay expenses. Devecmon v Shaw (165)
; And which does induce such action or forbearance
； Woman retires because she knew she would receive pension Feinberg v. Pfeiffer (172)
； Man retires and demands pension at the same time - decision to retire came before pension offered,
therefore there was no reliance. Hayes v. Plantation Steel (178)
; [Of considerable and substantial nature]
; Is binding if injustice can be avoided only by enforcement of the promise nd； Restatement 2 ?90 factors: Substantial reliance
； Reasonableness to rely
； Many of these are only enforced because there is no way to have mutuality of obligation. Why enforce
something based on reliance where there has been a refusal to make a valid acceptance? General contractor
may rely on subcontractor’s bid without being forced to use that subcontractor. (monogamy of K)
; Many of these contracts are enforced as bargained-for exchange – giftor "gets" promised behavior. Usually this
is in states which refuse to enforce equitable estoppel.
; Contractor relies on subcontracting bid, may enforce that bid regardless of acceptance. Drennan v. Star Paving
(185) however, subcontractor does not necessarily get to rely on winning the bid just because his price was used
& published. So. Cal. Acoustics v. Holder (189)
nd？ Equitable Enforcement of Option Contract. There are a few other reasons to enforce a promise Restatement 2
; Deal is binding if:
； It is in writing,
； Is signed by offeror,
； It recites a purported consideration, (one that would not be good consideration)
； And proposes an exchange on fair terms within a reasonable time.
; Drennan AND Holder – “If you get the contract, I will do the work for X price” is the offer made by
subcontractor’s bid - the option contract must be held open, general contractor can rely on
subcontractor’s bid. If contractor talks to other subcontractors, general contractor loses reliance
; OR UCC ?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 for time stated or "reasonable time" (>3
？ Damages awarded – will the promise be enforced? Yes. Will they be reliance, expectation or restitution damages? Courts tend to enforce expectation damages. (Logansport)
; While Logan Mfg was moving to Indiana, they gave up opportunities to move elsewhere. Therefore,
expectation damages measure that reliance – measure the value of the reliance. Remedy granted for breach may
be as limited as justice required.
； Unjust Enrichment
？ Alaskan Court's test: Sparks v Gustafson (199)
; Where one party has received material benefit from another
； Gives interest in land, chattel or money
； Performs services beneficial to or on request of another
； Satisfies a debt of the other
； In other way benefits the other
; And it would be unjust for the receiver to retain that benefit without compensating benefitor
； If services/gifts given are reasonably given considering the relationship between the two parties, there is no ndinjustice. (Gratuitous Intent, Restatement 2 ?86, notes)
； If no compensation is sought for gift/services with a close relationship until after relationship was severed, ndthere is no injustice. (Gratuitous Intent, Restatement 2 ?86, notes)
; Promise is enforced
nd？ A gift promise may be enforced to prevent unjust enrichment Restatement 2 ?86
1. A promise made in recognition of a benefit previously received by the promisor from the promisee is binding
； Where benefit was made to son and not to promisor, court did not enforce the promise. Mills v. Wyman
(191) Would a modern court, (rather than an 1825 court) enforce this promise?
； Promise to pay $15 semi-monthly annuity after promisor's life was saved was upheld. Payment had already
been performed for 9 years. Webb v. McGowin (195)
; To the extent necessary to prevent injustice
； Necessary "injustice" - disrupts the equality of two persons so that one gains at the expense of another for
； Only where benefit has already been given a fair dollar amount by both parties - Court may enforce
promise to give but not necessarily assign fair dollar amount as payment for services…
a. The promisee conferred the benefit as a gift for other reasons the promisor has not been unjustly enriched
b. The promise will not be enforced to the extent that its value is disproportionate to the benefit received.
; Court will not enforce a promise to sell property to certain party if that property has already been sold
to third party, (as taking property away from subsequent buyer would be unjust) so court decides to
reimburse for expenses that were not promised. Sparks v. Gustafson (199)
Why don't we enforce contracts that are offered, accepted and each party has an obligation & recieves a benefit? Society & individuals benefit from the enforcement of contracts, as it makes for an economically stable environment. However, if they are unable to understand the benefits or drawbacks of a contract they enter into, society takes away their ability to contract. Society will also not enforce contracts which encourage practices harmful to itself & its stated goals.
？ A person may only enter into a voidable contract if they are under guardianship, an infant, mentally ill or defective, ndor intoxicated. Restatement 2 ?12
; Incapacity may be total or partial and may depend on the circumstances nd; Mental Illness defined, Restatement 2 ?15 - contract is voidable if
a. he is unable to understand in a reasonable manner the nature or concequences of the transaction or
b. he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to
know of his condition
; Woman unable to "make a decision" not capable to contract regardless of how much she knew about
the concequences. Ortelere v. Retirement Board
？ Declaring someone incapacitated effectively strips them of economic power - courts are reluctant to do so.
； Public Policy
nd？ The court may refuse to enforce a contract on public policy grounds if it violates: Restatement 2 179
； The court will not enforce a contract in such a way as to force an illegal act.
； Court may make reparation for a contract already concluded where one party was not a wrongdoer or a
lesser wrongdoer. Karpinski
b. Need to protect some aspect of the public welfare, as is the case for judicial policies against, for example
i. restraint on trade
; Long-term noncompete found against public policy - court knocked term down to three years.
Fullerton Lumber v. Torborg
; Deprives economy of labor.
; "Blue penciling" - reducing a term to a reasonable time rather than striking altogether makes it dificult
for someone bound unreasonably to determine how long they should be bound for, also encourages
long noncompete terms in contracts - worst case scenario is that court will knock it down, but will still
provide some protection.
; Farnsworth’s analysis:
？ Restraint must be ancillary to another agreement
？ Must protect legitimate interest of promisee
？ Must be reasonable in scope
; Three aspects of reasonability – activity, geographical area, time. These may only be
restricted to the level necessary to protect promisee’s interests.
？ Must not create unreasonable hardship for public interest or promisor.
ii. impairment of family relations
iii. interference with other protected interests
？ Mistake by one or both parties
; Where a mistake by both parties on a basic assumption having material effect on the agreed exchange, contract ndis voidable by adversely affected party unless he bears the risk. Restatement 2 ?152
； Basic assumption must be on what is being contracted for - thinking a fertile cow was barren. Sherwood v.
； Mathmatical mistake by contractor not enforced as owner used 'next best bid,' what they would have gotten
without the mistake. Risk also allocated to school district as they had almost immediate notification, had
not relied on the bid, and would not have been especially inconvenienced by chosing another contractor.
Elsinore School Dist. v. Kastaroff
； Person in posession of a good generally has an obligation to know the value of that good, as they are in
control of it prior to the sale. Especially if it is relatively easy to value. Wood v. Boynton (227)
; This puts burden on person most likely to be able to prevent the problem.
; Benefits a buyer's special knowledge/experience.
; Unless, of course, buyer was asked to honestly appraise item prior to purchasing it… nd; Risk assesment under Restatement 2 ?154
； Allocated by agreement
； Party was aware that he had limited knowledge but advertises self as knowledgeble. ； Risk reasonably allocated by the court.
; Why should the court mess with things as they stand at time of litigation? Wouldn't that reduce
litigation costs, if people knew nothing would change?
; Why shouldn't the court universally enforce the agreement as signed? Isn't enforcement of contracts a
good economic policy?
; Non-disclosure is equivalent to assertion that the fact does not exist when a party knows that disclosure of that ndfact: Restatement 2 ?161
a. is necessary to prevent some previous assertion from being a misrepresentation or from being fradulent
b. would correct a mistake of the other party as to a basic assumption on which the party is making the
c. would correct a mistake of the other party as to the contents or effect of the writing
d. or the other person is entitled to know the fact because of a relation of trust and confidence. ; If one party does not disclose & the other party has no real way of knowing what was not disclosed, there can
be no "meeting of the minds" as one party is mistaken as to what a fundamental portion of the contract is about.
Failure to disclose that you have advertised your house as haunted allowed buyer to void the contract.
Stambovsky v. Ackley (231)
； Unequal Bargaining Power / Unconcionability
？ If a contract term is unconcionable, it is good evidence that an otherwise rational person entered into that clause due to extreme unequal bargaining power.
; If a contract or term thereof is unconcionable at the time the contract is made a court may refuse to enforce the
contract, or may enforce the contract without the unconcionable term, or may so limit the application of any ndunconcionable term as to avoid any unconcionable result. Restatement 2 ?208
; If the court as a matter of law finds the contract or any clause of the contract to have been unconcionable at the
time it was made the court may refuse to enforce the contract without the unconcionable clause, or it may so
limit the application of any unconcionable clause to avoid any unconcionable result. UCC 2-302(1)
; Kinds of "unconcionable clauses"
； Lease terms exempting landlord from tort liability for landlord's own negligence.
; Usually enforced in residential leases Lloyd v. Service Corp. (249), but not usually in commercial ones.
； Unfair credit terms.
; Where pro-rata payments over entire sum owed creates forfiture of all goods for defaulting on one.
Williams v. Walker-Thomas Furniture (267)
； Unfair sales practices/severe overpricing.
; Fraud & language barrier during door-to-door sales FrostiFresh Corp v. Reynoso (275)
; 250% overpricing of a refridgerator. Toker v. Westerman (273)
; “such as no man in his senses and not under a delusion would make on the one hand, and as no honest or fair
man would accept on the other … difficult to state in abstract terms, which gives but little practical help. It has
been said that there must be so strong, gross, and manifest that it must be impossible to state it to a man of
common sense without producing an exclamation at the inequality of it.” Toker v. Westerman (273)
; Why enforce these things?
； Because they have been clearly bargained for
; If langage shows that both parties considered the issue, "unconcionability" does not apply. Particularly
in regards to placing of damage liability, as it is mainly an issue of who pays for insurance. Mafair
Fabrics v. Henly (257)
； Court is wary of stepping into legislature's shoes in heavily regulated tenant/landlord arena. O'Callaghan v.
Waller & Beckwith Realty (246)
； Why not allocate the price of insurance onto the tenant, or the cost of credit defaultors on the defaultors
rather than raising prices & spreading the cost evenly?
; Why not?
； Evidences inability to reasonably bargain - only option is a form lease. Lloyd v. Service Corp. (249)
； Unsophisticated franchisor was discouraged from reading contract, unconcionable clause was buried in fine
print. Weaver v. American Oil (260)
； UCC states that disclaimers of any implied warranties must be "conspicuous and in writing" UCC ?2-316.
This supposedly creates a better-informed consumer who knows to purchase the insurance.