To access this feature, please Log In or Register for your Casebriefs Account.

Add to Library








Chapter 1

The Meaning of “Contract” and the Basic Attributes of the Contractual Relationship




The Legal Meaning of “Contract”


An Oral or Written Agreement Between Two or More Persons


An Exchange Relationship




Legal Recognition of Enforceability


Contract as a General Body of Law Applicable to Diverse Transactions


The Fundamental Policies and Values of Contract Law


Freedom of Contract


The Morality of Promise—Pacta Sunt Servanda


Accountability for Conduct and Reliance


Commercial and Social Values

Chapter 2

Facets of the Law of Contract and the Source of Its Rules, Processes, and Traditions



The Purpose of This Chapter


The Historical Perspective of Contract Law


Classical and Contemporary Contract Law


Classical Contract Law


Contemporary Contract Law


The Meaning of “Common Law”


“Common Law” Used to Designate Our Legal System as a Whole


“Common Law” Used to Denote the Judge-Made Component of Our Legal System


“Common Law” Used to Denote a Process or Approach to Legal Analysis


The Distinction Between Law and Equity


State Law Governs Contracts


The Uniform Commercial Code (UCC)


The UCC as a Uniform Model Statute and State Legislation


The Use and Application of UCC Article 2


The Influence of Article 2 in Cases Involving Contracts Other Than Sales of Goods


What Is the Restatement (Second) of Contracts?


A Transnational Perspective on Contract Law

Chapter 3

The Doctrine of Precedent and a Contract Case Analysis



Studying Contract Law Through Appellate Cases


How Judges Make Contract Law: Judicial Precedent


What Is Precedent?


Who Is Bound by Precedent?


The Drawbacks of the System of Precedent


The Anatomy of a Judicial Opinion


Ratio Decidendi (Rule or Holding) and Obiter Dictum


The Process of Inductive and Deductive Reasoning in the Creation and Application of Legal Rules


The Use of Authority and Supporting Rationale in Judicial Opinions


A Transnational Perspective on the Doctrine of Precedent

Chapter 4

The Objective Test and Basic Principles of Offer and Acceptance



Interpretation and the Objective Test




The Communication of Contractual Intent


Assent and Accountability: Subjective and Objective Tests of Assent


The Substantive and Evidentiary Aspects of the Objective Test


The Duty to Read


Lack of Serious Intent: Jokes and Bluffs


The Purpose and Application of the Rules of Offer and Acceptance




When Are Offer and Acceptance Issues Presented?


The Basic Offer and Acceptance Model at Common Law


The Rules of Offer and Acceptance Applicable in Sales of Goods Under UCC Article 2


The Nature of an Offer, as Distinct from a Preliminary Proposal


The Expiry of the Offer by Passage of Time


The Specified or Reasonable Duration of the Offer


The Effect of a Late Attempt to Accept


Termination of the Offer for Reasons Other Than Expiry by Lapse of Time






The Offeror’s Death or Mental Disability




The Nature and Effect of Acceptance


The Effect of Inconsistency Between the Offer and the Response: Counteroffer


The Mode of Acceptance


Inadvertent Acceptance and Silence or Inaction as Acceptance


Inadvertent Acceptance


Acceptance by Silence or Inaction


The Effective Date of Acceptance and the “Mailbox” Rule


The Traditional Rule


Application of the Rule to Electronic Media


Acceptance by Promise or Performance: Bilateral and Unilateral Contracts


The Distinction in Perspective


The Offer for a Bilateral Contract


The Offer for a Unilateral Contract


When the Offer Does Not Clearly Prescribe Promise or Performance as the Exclusive Mode of Acceptance


Acceptance by a Performance That Cannot Be Accomplished Instantly


Notice When an Offer Is Accepted by Performance


Reverse Unilateral Contracts


Irrevocable Offers: Options and Firm Offers




Options and Consideration


The Effect of an Option


Firm Offers Under UCC §2.205


A Transnational Perspective on Offer and Acceptance

Chapter 5

Standard Form Contracts and Contracts Through Electronic Media





The Process and Terminology of Standard Contracting


Conspicuousness, Notice, and Reasonable Expectations


The Problem of Adhesion and Unconscionability in Standard Contracts


“Cash Now, Terms Later”: Deferred Communication of Terms and Rolling Contracts


Deferred Communication of Terms


Rolling Contracts


Modification of Standard Terms


Statutory Recognition of Electronic Contracting


Contracting by Automated Means


Online Auctions

Chapter 6

Mismatching Standard Terms: The “Battle of the Forms” Under UCC §2.207


The Scope and Purpose of UCC §2.207


The Basic Purpose and Drafting Inadequacies of §2.207


The Two Distinct Issues Covered by §2.207: Formation and Confirmation


The Application of §2.207 to Electronic Communications


The Problem Tackled by §2.207: The Common Law “Mirror Image” and “Last Shot” Rules


Offer and Acceptance Under §2.207


§2.207(1): Acceptance, Rejection, and Counteroffer


§2.207(2): The Treatment of Proposals in an Acceptance


§2.207(3): The Effect of Mutual Performance When No Contract Is Formed by the Parties’ Writings


Written Confirmation Following an Oral or Informal Contract Under §2.207(1) and (2)


A Transnational Perspective on the “Battle of the Forms”

Chapter 7



Consideration as the Basis of Contract Obligation


The Essence and Scope of Consideration


The Elements of Consideration: Detriment, Benefit, and Bargained-For Exchange


What Is a “Detriment”?


How Does Benefit to the Promisor Fit In?


The Bargained-For Exchange


The Distinction Between Bargained-For and Incidental Detriment


The Distinction Between a Detriment and a Condition of Gift


The Purpose and Function of Consideration Doctrine


Consideration Doctrine in Common Law and Its Absence in Civil Law


The Formal and Substantive Basis for the Doctrine in Relation to Gratuitous Promises


Consideration Doctrine in the Commercial Context


The Flexibility of Consideration Concepts and the Use of the Doctrine for Policing Purposes


Detriment and “Pre-Existing Duty”


The Basic Rule


The Justification for the Rule Where the Duty Is Owed to the Promisor: Coerced Modifications


The Abolition of the Pre-Existing Duty Rule in Relation to Modifications Under Article 2


Modifications in Light of Supervening Difficulty


Pre-Existing Duty to a Third Party


Consideration in an Agreement to Settle a Disputed Claim or Defense


The Measurement of Detriment: Adequacy of Consideration


The General Rule: Courts Are Not Concerned with Adequacy of Consideration


Inadequacy of Consideration as the Result of Unfair Bargaining


Sham or Nominal Consideration


Nominal Consideration in Options


Past Performance


The Quality of a Promise as Consideration: “Mutuality of Obligation,” Illusory, Conditional, and Alternative Promises


Mutuality and Illusory Promises


Interpretation and the Use of Implied Terms to Cure an Apparently Illusory Promise


“Mutuality” in Requirements and Output Contracts Under UCC §2.306


Conditional Promises


Promises of Alternative Performances

Chapter 8

Promissory Estoppel as the Basis for Enforcing Promises





The Nature of Promissory Estoppel as an Independent Basis of Relief or as a Consideration Substitute


The Difference in Remedial Emphasis Between Contract and Promissory Estoppel


An Introduction to Equitable Estoppel and Its Link to Promissory Estoppel


The Range of Promissory Estoppel: Gifts and Commercial Transactions


The Elements of Promissory Estoppel


Introduction and Overview of the Elements


A Promise Must Have Been Made


The Promisor Should Reasonably Have Expected the Promise to Induce Action or Forbearance by the Promisee


The Promise Must Have Induced Justifiable Action or Forbearance by the Promisee


The Promise Is Binding If Injustice Can Be Avoided Only by Its Enforcement


The Remedy When Promissory Estoppel Is Applied


Charitable Pledges and Promissory Estoppel


Promissory Estoppel as a Means of Enforcing Promises Made in Negotiations


Promissory Estoppel and At-Will Employment Agreements


Reliance on an Option Without Consideration: The Application of Promissory Estoppel to Promises of Irrevocability


A Transnational Perspective on Promissory Estoppel

Chapter 9

Unjust Enrichment, Restitution, and “Moral Obligation”





Unjust Enrichment, the Basis for Restitution


The Relationship Between Unjust Enrichment and Contract


The Meaning of “Quasi-Contract”


Quasi-Contract—A Contract “Implied in Law”


Quasi-Contract Distinguished from a Contract Implied in Fact


The Elements of Unjust Enrichment




When Is Enrichment Unjust?


Measurement of Benefit


The Remedial Aim of Restitution


Alternative Methods for Measuring Enrichment


Market Value


The Recipient’s Net Gain


Choosing Among Market Value, Objective, or Subjective Net Gain


“Moral Obligation” and the Material Benefit Rule




The Role of the Doctrine of “Moral Obligation” and the Development of the Material Benefit Rule


The Traditional Scope of the Doctrine of “Moral Obligation”


The Broad “Material Benefit” Rule

Chapter 10

Interpretation and Construction: Resolving Meaning and Dealing with Uncertainty in Agreements


Ascertaining the Meaning of an Agreement: Interpretation and Construction


Introduction to the Process of Interpretation and Construction


Interpretation as a Question of Fact or Law


The Sources of Evidence Used in Interpretation


Some General Rules of Interpretation and Construction


Gap Fillers Used to Effectuate the Parties’ Reasonable Intent




Gap Fillers That Supply General Obligations


Gap Fillers That Supply More Specific Rights and Duties


Terms Construed as a Matter of Policy


Supplementary Terms That Cannot Be Excluded by Agreement


The General Obligation of Good Faith and Fair Dealing


Construed Terms That Can Be Excluded Only by Express or Specific Language


The Problem of Indefiniteness in an Agreement


Different Causes and Forms of Indefiniteness


Unclear Terms: Vagueness and Ambiguity


Omitted Terms


Terms Left for Future Determination


Implication of an Agreement to Negotiate in Good Faith


Agreements to Record in Writing


Misunderstanding: Total Ambiguity


A Transnational Perspective on Interpretation

Chapter 11

The Statute of Frauds





The First Inquiry: Is the Contract of a Type That Falls Within the Statute?


Contracts for the Sale of Land or an Interest in Land


Contracts That Cannot Be Performed Within a Year


Contracts for the Sale of Goods


Contracts to Answer for the Debt or Obligation of Another


Contracts of Executors or Administrators to Answer for the Duty of Their Decedents


Contracts upon Consideration of Marriage


The Second Inquiry: If the Statute Applies, Is the Contract Reflected in a Writing That Satisfies Its Requirements?


A Written Memorandum


The Content of the Memorandum




The Third Inquiry: If the Statute Applies and Is Not Complied with, Does the Oral Contract Fall Within Any of Its Exceptions?


The Part Performance Exception


The Judicial Admission Exception


The Protection of Reliance: Estoppel and Promissory Estoppel


The Impact of Noncompliance with the Statute


The Effect of the Statute of Frauds on Modifications of a Contract


A Transnational Perspective on the Statute of Frauds

Chapter 12

The Parol Evidence Rule


The Application and Basic Purpose of the Parol Evidence Rule


A Written or Recorded Agreement


The Relationship Between the Parol Evidence Rule and Interpretation


A Basic Statement of the Rationale and Content of the Rule


What Is Parol Evidence?


The Meaning of “Parol”


Terms Allegedly Agreed to Prior to the Written Contract


Terms Allegedly Agreed to Contemporaneously with the Written Contract


Evidence of Subsequent Agreement


Summary of the Scope of the Parol Evidence Rule


A Closer Look at the Purpose and Premise of the Parol Evidence Rule


The Degree of Finality of the Writing: Total and Partial Integration


The Process of Dealing with Parol Evidence


Determining the Question of Integration


Ambiguity or Indefiniteness in an Integrated Writing


Distinguishing Consistency from Contradiction


The Effect of the Rule on Evidence of Course of Performance, Course of Dealing, and Trade Usage


The Collateral Agreement Rule


Exceptions to the Parol Evidence Rule: Evidence to Establish Grounds for Avoidance or Invalidity, or to Show a Condition Precedent


Restrictions on Oral Modification


A Transnational Perspective on the Parol Evidence Rule

Chapter 13

The Judicial Regulation of Improper Bargaining and of Violations of Law and Public Policy





The Objective Test and the Viability of Apparent Assent


General Note on Remedy: Avoidance and Restitution, Adjustment of the Contract, or Damages


The Nature and Relationship of the Doctrines Regulating Bargaining


Misrepresentation Generally: The Meaning of “Misrepresentation” and the Distinction Between Fraudulent and Nonfraudulent Misrepresentations


The Distinction Between Fraudulent, Negligent, and Innocent Misrepresentations


The Application of the Parol Evidence Rule to Misrepresentations Made Outside a Written Contract


Fraudulent Misrepresentation




What Is a “Fact”? Fact, Opinion, Prediction, and Promise


Types of Fraudulent Misrepresentation: Affirmative Statements, Concealment, and Nondisclosure


Knowledge of Falsity and Intent to Induce the Contract




Justifiable Inducement


Injury and Remedy


Negligent or Innocent Misrepresentation




The Nature of Duress


The Threat








Duress in the Modification of an Existing Contract


Consideration Doctrine


Common Law Duress Doctrine in Relation to Modifications


Modification Under UCC Article 2


The Enforcement of Modifications Despite an Absence of Consideration


Undue Influence




The Role of Unconscionability


The Nature and Origins of Unconscionability


The Elements of Unconscionability


Procedural Unconscionability


Substantive Unconscionability


The Remedy for Unconscionability


A Final Note on the Temptation to Overuse Unconscionability Doctrine


Unconscionability and Adhesion in Standard Contracts


The Role of Adhesion in Unconscionability Analysis


Terms Made Available Only After the Contract Has Been Entered


Adhesion and Unconscionability in Relation to Arbitration Provisions


Policing Contracts for Illegality or Contravention of Public Policy


Illegality, Public Policy, and Freedom of Contract


Illegal Contracts


Contracts Contrary to Public Policy


The Effect of Contracts That Are Illegal or Contrary to Public Policy and the In Pari Delicto Rule


A Transnational Perspective on Policing Doctrines

Chapter 14



The Scope and Focus of the Doctrines Discussed in This Chapter




The Basis and Nature of a Minor’s Contractual Incapacity


Situations in Which a Minor May Incur Legal Liability


Restitution or Other Relief Following Disaffirmation


Mental Incapacity


The Basis and Nature of Avoidance Due to Mental Incapacity


The Test for Mental Incapacity


Avoidance and Its Consequences


Incapacity Induced by Alcohol or Drug Abuse

Chapter 15

Mistake, Impracticability, and Frustration of Purpose


The Common Themes and the Differences Between Mistake, Impracticability, and Frustration of Purpose


The Meaning of Mistake and the Distinction Between Mutual and Unilateral Mistake


The Legal Meaning of Mistake: An Error of Fact


Mutual and Unilateral Mistake


The Elements of Mutual Mistake


The Elements of Unilateral Mistake


Relief for Mistake


Avoidance and Restitution


Other Relief, Including Reformation


Mistake in Transcription


Reformation to Correct Mistakes in Transcription


Reformation to Rectify the Unintended Legal Effect of Language


Impracticability of Performance


The Nature of Impracticability Doctrine, Contrasted with Mistake


The Early Form of the Doctrine: Impossibility of Performance


The Contemporary Doctrine of Impracticability of Performance


Relief for Impracticability


Frustration of Purpose


A Transnational Perspective on Mistake, Impracticability, and Frustration

Chapter 16

Conditions and Promises


The Structure of a Contract: An Introduction to Promises and Conditions


The Meaning and Scope of “Uncertain Event”


The Intent to Create a Condition: Express, Implied, and Construed Conditions


Express Conditions


Conditions Implied in Fact


Construed Conditions (Constructive Conditions of Exchange)


A Condition of One Party’s Performance, as Distinct from a Condition of the Contract as a Whole


Pure Conditions and Promissory Conditions


The Distinction Between Pure and Promissory Conditions


A Pure Condition Subject to an Ancillary Promise


The Time Sequence: Conditions Precedent and Concurrent Conditions


The Confusing Distinction Between Conditions Precedent and Subsequent


The Purpose of Using Conditions in a Contract


The Use of a Condition as a Complete or Partial “Escape Clause”


Conditions of Satisfaction: The Use of a Condition to Permit the Exercise of Judgment by One of the Parties or a Third Party


The Use of a Condition to Provide for Alternative Performances


The Use of a Condition to Regulate the Sequence of Performance


The Doctrine of Substantial Compliance in Construed Promissory Conditions


The Excuse of Conditions: Wrongful Prevention, Waiver or Estoppel, and Forfeiture


The Party Favored by the Condition Wrongfully Prevents or Hinders Its Fulfillment


Estoppel or Waiver


Unfair Forfeiture


A Transnational Perspective on Conditions and Promises

Chapter 17

Breach and Repudiation


The Scope of This Chapter: Nonfulfillment of a Promise


The Nature of Breach


The Significance of a Breach: Material Breach or Substantial Performance, and Total or Partial Breach


Introduction to the Distinction


What Makes a Breach Material?


Substantial Performance


Relief for Substantial Performance and Adjustment to Avoid Unfair Forfeiture


Partial Breach and Cure


A Summary of the Relationship Between the Materiality of Breach and the Nonfulfillment of a Condition


Substantial Performance Under UCC Article 2: Perfect Tender and Cure


Perfect Tender


Cure Under UCC Article 2


The Breaching Party’s Recovery Following Material Breach and the Concept of Divisibility


The Forfeiture of Contractual Rights by a Party Who Breaches Materially


Restitution in Favor of a Party Who Has Breached Materially


The Enforcement Rights of a Material Breacher When the Contract Is Divisible


Anticipatory Repudiation


The Distinction Between Breach and Repudiation


The Purpose and Value of the Doctrine of Anticipatory Repudiation


The Elements of Repudiation


The Response to a Repudiation


Prospective Nonperformance and Assurance of Performance


Transactions Involving Installments


A Transnational Perspective on Breach and Repudiation

Chapter 18

Remedies for Breach of Contract


The Scope of This Chapter


The Basic Goal of Remedies for Breach: Enforcement of the Expectation Interest


The Nature of the Expectation Interest


An Introduction to the Means of Enforcement: The Primacy of Monetary Compensation over Specific Relief


Fundamental Principles of Expectation Relief


The Enforcement of a Damage Award


The Calculation of Expectation Damages


An Overview of Expectation Damages Under UCC Article 2


The Basic Principles


The Seller’s Remedies


The Buyer’s Remedies


The Distinction Between Direct and Consequential Damages


Limitations on Expectation Recovery


The Nature and Goals of the Limitations








Reasonable Certainty


Unfair Forfeiture


Reliance and Restitution as Alternatives to Expectation


Reliance Damages


The Distinction Between Essential and Incidental Reliance


Essential Reliance Damages


Incidental Reliance Damages


Restitutionary Damages


Equitable Remedies: Specific Performance and Injunctions


Specific Performance




Liquidated (Agreed) Damages


The Test for Enforcing a Liquidated Damages Provision


The Evaluation of the Parties’ Forecast of Harm


Damage Limitation Provisions


Incidental Damages, Attorney’s Fees, and Interest




Incidental Damages


Attorney’s Fees


Noneconomic and Punitive Damages


Mental Distress and Other Noneconomic Loss


Punitive Damages


A Transnational Perspective on Remedies

Chapter 19

Assignment, Delegation, and Third-Party Beneficiaries




Third-Party Beneficiaries


The Distinction Between Intended and Incidental Beneficiaries


The Essence of Intended Beneficiary Status: The Right of Independent Enforcement


The Intent to Confer an Independent Right of Enforcement


The Relevance of the Relationship Between the Promisee and the Beneficiary: Creditor and Donee Beneficiaries


Vesting of the Benefit and the Parties’ Power to Modify or Terminate It


The Promisee’s Parallel Rights of Enforcement Against the Promisor


The Promisor’s Ability to Raise Defenses Against the Beneficiary


The Beneficiary’s Rights Against the Promisee in the Event of the Promisor’s Nonperformance


Citizens’ Claims as Intended Beneficiaries of Government Contracts


Assignment and Delegation


The Basic Concept and Terminology


The Nature of an Assignment


Restrictions on Assignment


The Effect of Assignment


Defenses Against the Assignee




“Assignment” of the Contract: The Assignment of Rights and Delegation of Duties


Grounds for Insecurity Following Assignment or Delegation


A Transnational Perspective on Third-Party Beneficiaries, Assignment, and Delegation


Table of Cases

Table of Statutes


Create New Group

Casebriefs is concerned with your security, please complete the following