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References are to sections. References to Examples and Explanations are designated by the letter “E” followed by the chapter number and the Example number (e.g., “E1-2” refers to Chapter 1, Example 2).

Acceptance. See Offer and acceptance

Adhesion See also Standard contracts and terms; Unconscionability

Agreed damages. See Damages

Agreement defined

Ambiguity. See also Indefiniteness; Interpretation; Vagueness

in acceptance

in assignment

cure by interpretation


in effect of contemporaneous writings



misunderstanding compared to mistake

in offer

parol evidence admissible

in possible repudiation. See Anticipatory repudiation

Anticipatory repudiation

acceptance of

assurance of performance. See Anticipatory repudiation, prospective nonperformance

breach distinguished

damages. See Damages

improper delegation as

installment contracts

interpretation of intent


mitigation of damages

nature and meaning

opportunity for repentance

prospective nonperformance

purpose of doctrine

refusal to accept cure as


transnational perspective

unequivocal intent

victim’s reliance

victim’s rights, generally

victim’s risk in reacting


Arbitration agreement

Article 2. See Sale of goods; Uniform Commercial Code

Assent. See Agreement defined; Freedom of contract; Objective test

Assignment and delegation

assignment as security

assignment defined

assignment of conditional right

assignment of contract as a whole

assignment of personal injury claim

assurance of performance

attorney malpractice claim

defenses against assignee

delegation defined

delegator’s duties

effect of assignment

elements of assignment


insecurity concerning prospective performance

notification of assignment

policy favoring transferability

policy precluding certain assignments

restrictions on assignment

restrictions on delegation

transnational perspective

Assurance of performance. See Anticipatory repudiation; Assignment and delegation

Attorney malpractice claim transfer

Attorney’s fees

Automated assent. See Electronic, e-mail, and Web-based contracts

Avoidance of contract

for duress

for fraud

for impracticability

by mentally incapacitated party

by minor

for mistake

for unconscionability

for undue influence

for unfair bargaining, generally

voidable defined

voidable distinguished from void

Bad faith. See Good faith


discharged debt as moral obligation

promise to refrain as consideration

Bargain. See Agreement defined; Consideration, Negotiation

Barred claim. See Statute of frauds; Statute of limitations; Unenforceability

Battle of the forms. See also Offer and acceptance; Sale of goods


acceptance by performance

additional terms




definite expression of acceptance

different terms

electronic contracting

expressly conditional acceptance

gap fillers

knockout rule

last shot rule

limitation of acceptance to offer

mailbox rule

material alteration of offer


mirror image rule


performance absent written contract


purpose of §2.207

seasonable acceptance

transnational perspective

Benefit. See Consideration; Damages; Material benefit rule; Restitution; Third-party beneficiary contract

Best efforts. See also Gap fillers; Good faith; Implied terms


objective or subjective test

in seeking fulfillment of a condition

Bilateral contract


noninstantaneous performance

offer for

presumption in favor of

Boilerplate. See Adhesion; Battle of the forms; Duty to read; Standard contracts and terms; Unconscionability

Box-top terms. See Standard contracts and terms

Breach of contract

in advance of performance. See Anticipatory repudiation

breacher’s rights

causal link to loss


damages. See Damages


by delegate

deliberate. See Breach of contract, willful

disaffirmance following

of divisible contract


excused by impracticality

of installment contract


nonfulfillment of condition compared

of obligation of best efforts. See Best efforts; Damages

of obligation to bargain in good faith. See Good faith; Negotiation


penalty to discourage

remedies. See Damages; Remedies

repudiation distinguished. See also Anticipatory repudiation


restitution as alternative remedy

restitution in favor of breacher

substantial performance. See Substantial performance

as tort


willful, effect on breacher’s rights

willful, effect on cure

willful, effect on victim’s remedy

Browsewrap terms

Burden of proof. See also Evidence

breach of duty to bargain in good faith

conditions subsequent and precedent

damages. See Reasonable certainty of damages

gratuitous intent, material benefit rule

losing contract

lost volume

mental incapacity

parol evidence. See Parol evidence rule

presumption on sequence of performance

shifting to penalize improper conduct

statute of frauds

trade usage

value of benefit

Canon law

Capacity to contract. See Minority; Mental incapacity

Causation See Damages

Chancery. See Equity

Charitable pledge. See Consideration; Promissory estoppel

CISG. See United Nations Convention on Contracts for the International Sale of Goods (CISG)

Civil law

consideration doctrine




statute of frauds

Class action

Classical contract law


objective theory of assent

parol evidence rule

policing doctrines

reflected in Restatement

Clickwrap terms

C.O.D. (cash on delivery) term

Coerced promise. See Adhesion; Duress; Modification; Unconscionability

Common law, scope and definition

Concurrent conditions. See Conditions

Condition precedent. See Conditions


anticipatory repudiation, effect on condition

assignment subject to

best efforts at fulfillment. See Best efforts

breach of contract related to nonfulfillment of condition

burden of proof

concurrent, defined

concurrent, presumption in favor of

constructive conditions of exchange

construed, distinguished from implied-in-fact

construed, meaning and effect

construed, substantial compliance

defined, generally

dependent promises

duty to attempt fulfillment

effect and purpose, generally

effect on consideration

escape clause


event within control of a party

excuse of, generally

express, meaning and effect

express, strict compliance

of gift. See Consideration

hindrance of fulfillment

implied in fact

implied in law. See Conditions, construed

nonfulfillment, effect

offer distinguished from conditional contract

of satisfaction

parol evidence exception

partial breach, effect on condition


presumptions on sequence of performance


pure, distinguished from promissory

pure, meaning and effect

risk allocation

setting alternative performances

setting sequence of performance

solely for one party’s benefit


time-setting provision distinguished

transnational perspective

uncertain future event

unfair forfeiture


Conduct. See Battle of the forms; Implied contract; Implied promise; Implied terms; Interpretation; Objective test; Offer and acceptance

Consent. See Agreement; Objective test

Consequential damages. See Damages



alternative performances

bargain theory

benefit to promisor

best efforts

cautionary function

channeling function

charitable subscriptions

civil law

compromise of dispute

conditional promise as

condition of gift

condition of satisfaction


employment agreement

evidentiary function


executed gift

false recital

firm offer

general scope and purpose

gratuitous promise

illusory promise

modification of contract

moral obligation as

motive distinct from

multilateral contract

mutuality of obligation



parol evidence to challenge recital

past performance

pre-existing duty rule

promise as

promissory estoppel as substitute

requirements and output contracts

restitution in absence of consideration. See also Restitution



substantive basis of doctrine

termination of contract

third-party beneficiary contract

unfair bargaining

unforeseen difficulties rule

unilateral contract

Conspicuousness. See Notice

Construction. See Interpretation

Constructive notice. See Notice

Construed condition. See Conditions

Construed terms. See Implied terms

Contract as property

Contract defined

Contractual capacity. See Mental incapacity; Minority

Counteroffer. See Offer and acceptance

Course of dealing

admissibility under parol evidence rule

definition and relevance

Course of performance

admissibility under parol evidence rule

definition and relevance

Covenant not to compete

Critical legal studies

Cure. See Breach of contract

Custom. See Usage

Damages. See also Remedies


in assignment, against obligor

attorney’s fees

for breach of contract, generally

for breach of duty to bargain in good faith

burden of proof


certainty, reasonable

choice between expectation, reliance, and restitution

compensation, general principle


in contract for benefit of third party

diminution in value. See Unfair forfeiture


direct (variable) costs

for duress

economic waste. See Unfair forfeiture

efficient breach

emotional distress


following avoidance of contract, generally


for fraud


goodwill loss

inadequacy as basis of injunction

inadequacy as basis of specific performance


incidental reliance

indefinite terms, effect on

in favor of breacher

in rem nature



losing contract

lost opportunity

lost profit or earnings

lost volume

market value

mental distress


moral considerations



offset to breacher for restitution

overhead (fixed costs)

part payment offset

for promissory estoppel


reliance damages

restitution. See Restitution

salvage offset


specific performance compared

for substantial performance

substitute performance

supplementing specific performance

tacit agreement test

tort compared to contract

unfair forfeiture

willful breach, effect

Definiteness. See Ambiguity; Indefiniteness; Interpretation

Delegation. See Assignment and delegation

Dependence. See Good faith; Undue influence

Detrimental reliance. See Promissory estoppel; Reliance


Disaffirmance. See Avoidance of contract; Mental incapacity; Minority; Restitution


of liability for negligence or recklessness

standard form

of warranty

Discretionary performance. See Conditions; Consideration; Good faith

Dishonest conduct. See Fraud; Good faith

Disproportionality principle. See Unfair forfeiture; Material benefit rule

Divisibility of contract. See also Severance of terms


economic, defined

exception to parol evidence rule


improper threat


in modification of contract


in standard form contracting

transnational perspective

Duty to bargain in good faith. See Good faith; Negotiation

Duty to read. See also Objective test; Unconscionability

conspicuousness and notice


merger clause

parol evidence

policing doctrines as exception

standard contracts

Economic efficiency

damages preferred to specific performance

disposition of cases

efficient breach

general policy

law and economics

lost volume

parol evidence rule

standard form contracting

transaction costs

Economic waste. See Unfair forfeiture

Electronic agent

Electronic, e-mail, and Web-based contracts. See also Standard contracts and terms

browsewrap terms

clickwrap terms

electronic agent


offer and acceptance



Web-based contracts, generally

Electronic Signatures in Global and National Commerce Act (E-sign)

E-mail contracts. See Electronic, e-mail and Web-Based contracts

Emotional distress. See Damages

Employment at will

Enforcement of contract, generally. See also Damages; Remedies; Specific performance; Third-party beneficiary contract; Unenforceability

Equitable balancing

in awarding restitution

in awarding specific performance

in consequential damages

in donations

in enforcing promises in negotiation


in illegal contracts

in impracticality cases

in incapacity cases

in injunctions

in material benefit rule

in measuring benefit in restitution

in misrepresentation cases

in promissory estoppel

in unfair forfeiture

in unilateral mistake


balance of equities. See Equitable balancing

basis for avoidance for mistake

court (Chancery)


estoppel. See Estoppel

inadequate remedy at law

inequitable conduct by claimant

injunction against breach

in personam order

specific performance. See Specific performance

unconscionability origins. See also Unconscionability

E-sign (Electronic Signatures in Global and National Commerce Act)


definition and elements

excusing condition

minor’s misrepresentation of age

option, recital of sham consideration

option, rejection

promissory. See Promissory estoppel

recital of false consideration

waiver distinguished

Ethical obligations. See Moral obligation

Evidence. See also Burden of proof; Interpretation

of benefit to show consideration

of best efforts

of context. See Interpretation

of cost to show value

of damages. See Reasonable certainty of damages

function of consideration

of gratuitous intent, in material benefit rule

of intent. See Interpretation; Objective test

of mental incapacity

of oral contract

oral, under statute of frauds

parol. See Parol evidence rule

perjured, role of statute of frauds

ranking weight

of reliance to show oral contract under statute of frauds

of usage

of value in restitution

Exchange as contractual requirement. See also Consideration

Exclusive dealings

best efforts

distributorship contracts


requirements and output contracts

Executed and executory contract distinguished

Executed gift, consideration not required

Execution writ

Expectation damages. See Damages

Express condition. See Conditions

Express promise. See Promise

Express terms defined

Fair dealing. See Good faith; Unconscionability

Fax, offer and acceptance

Fiction. See Legal fiction

Firm offer. See Options

F.O.B. term

Force majeure

Foreseeability. See Damages.


Formalities. See also Statute of frauds

agreement to record in writing



seal, 7.4.2

Forms of action

Forum selection clause


affirmative statement



deception and inducement

elements, generally

factual misrepresentation

in factum

in inducement


intention misrepresented


minor’s misrepresentation of age

mistake resulting from nondisclosure or silence


opinion misrepresented

parol evidence exception


response to question



transnational perspective

Freedom of contract


imposition of contract by the court

in incapacity cases

limitations in public interest, generally

in liquidated damage provisions

voluntary exchange

Frustration of purpose

basic assumption



impossibility of performance compared

impracticability compared


mistake compared

purpose defined


risk allocation

unforeseen supervening event

Gap fillers. See also Implied terms; Interpretation; Omitted terms; Sale of goods; Unresolved terms

assignment right

best efforts

C.O.D. term

concurrent performance

consistency with parties’ intent

contracting out of

delivery terms

employment at will

generalized obligations


implication unless clearly excluded

inspection and rejection of goods

mandatory terms compared

payment terms

price term. See Price

relationship to usage

requirements and output contracts

warranties. See Sale of goods; Warranties

Gift transactions. See Consideration; Material benefit rule; Promissory estoppel

Good faith

attempts to fulfill condition

attorney’s fees for breach of

component of best efforts

in composition

in compromise of disputed claim

in condition of satisfaction


fair dealing

impact on measurement of restitution

in mitigation of damages

in modification of contract

in negotiations

nondisclosure as breach of

punitive damages for violation

in requirements and output contract

Goods. See Sale of goods

Gratuitous promises and benefits. See Consideration; Material benefit rule; Promissory estoppel

Gravamen test. See Sale of goods

Illegal contract

Implied condition. See Conditions

Implied contract

court’s proper role

distinction between legal and factual implication

in fact

in law. See Quasi-contract

Implied in law. See Implied contract; Implied promise, Interpretation; Quasi-contract

Implied promise

to bargain in good faith. See Good faith; Negotiation

commencement of performance

false recital of consideration as


Implied terms. See also Gap fillers; Interpretation; Omitted terms; Unresolved terms

allocating risk

assignability of rights

basic assumption of contract

best efforts

conditions. See Conditions

consistency with parties’ intent

delivery term

duty to bargain in good faith. See Good faith; Negotiation

employment at will

generalized obligations

good faith. See Good faith

by law, generally


parol evidence contradicting

payment term

price. See Price

reasonableness. See Objective test

sequence of performances

tacit agreement test

warranties. See Sale of goods; Warranties

Imposition. See Adhesion; Unconscionability

Impossibility of performance

elements and scope

frustration of purpose compared

impracticability compared


basic assumption of contract

divisibility of impracticable terms

event defined


force majeure

frustration of purpose compared


government regulation

impossibility doctrine as precursor

market changes


mistake compared

modification for supervening difficulties compared


risk allocation

transnational perspective

unduly burdensome

unforeseen supervening event

Improper bargaining. See Adhesion; Duress; Fraud; Unconscionability

Incapacity. See Mental incapacity; Minority


agreement to agree. See Unresolved terms

discretionary terms

effect on compliance with statute of frauds

effect on remedy

generalized obligations


materiality of unclear term

missing terms. See Omitted terms

objective standard for resolving

parol evidence to cure. See Parol evidence rule

as to property sold

reasonable certainty

requirements and output contract

specific performance barred

terms left for future decision. See also Unresolved terms

Inducement. See Promissory estoppel; Reliance

Injunction against breach

Injustice. See Equity; Material benefit rule; Promissory estoppel; Unfair forfeiture; Unjust enrichment

Innocent and negligent misrepresentation

In pari delicto rule

Installment contracts. See Anticipatory repudiation; Breach; Sale of goods

Intent. See Interpretation; Objective test; Subjective standard


of acceptance

of agreement as a whole

agreement to agree. See Unresolved terms

agreement to record in writing

ambiguity. See Ambiguity


commercial practice. See Usage

of conduct

conduct creating implied contract

construction consistent with parties’ intent

construction distinguished and defined


contra proferentum rule (against the drafter)

course of dealing. See Course of dealing

course of performance. See Course of performance

custom. See Usage


delegability of duties

to determine divisibility

to determine existence of promise

to determine implied condition

to determine intent to confer third-party benefit

to determine materiality. See Materiality

to determine nature of condition

to determine nature of reliance

to determine noneconomic purpose of contract

to determine promissory condition

to determine prospective inability to perform

to determine repudiation

to determine risk of frustration of purpose

to determine risk of impracticability

to determine risk of mistake

to determine substantial performance. See Substantial performance

to determine unfair forfeiture. See Unfair forfeiture

to distinguish condition from time provision

of effect of condition

ejusdem generis rule

expressio unius rule

four corners rule

gap fillers. See Gap fillers; Implied terms


general policy

implied terms. See Gap fillers; Implied terms

indefiniteness. See Indefiniteness

judge’s role

jury’s role

of language

of liquidated damages provision

market formula or standard

as matter of law. See Interpretation, construction

missing terms. See Omitted terms

negotiations as source of meaning

noscitur a sociis rule

objective standard. See Objective test

of offer

omitted terms. See Omitted terms

oral agreement, intent to memorialize

ordinary grammatical meaning

parol evidence. See Parol evidence rule

plain meaning rule

presumption against disclaimer of tort liability

presumption of reasonableness, legality, and validity

ranking objective evidence

reasonableness standard. See Objective test

of requirements and output contract. See Requirements and output contracts

rules of, generally

specific language governs general

strict compliance standard for express conditions

subjective standard. See Subjective standard

substantial compliance standard for construed conditions

transnational perspective

usage and trade usage. See Usage

vagueness. See Vagueness

of writing generally

of writing to determine compliance with statute of frauds

Joke transaction. See Objective test


role in contracts cases, generally

role in developing gap fillers

role in evaluating parol evidence

role in interpretation, generally

role in unconscionability determination

Judicial efficiency. See Economic efficiency

Jury’s role, generally

Justice. See Equity; Injustice

Knowledge. See Notice

Law and economics

Legal fiction defined. See also Implied terms; Quasi-contract

Legal realism

Liberty of contract. See Freedom of contract

Liquidated damages. See Damages

Mailbox rule. See Offer and acceptance

Manifested intent. See Objective test

Market conditions and value. See Damages; Frustration of purpose; Impracticability; Material benefit rule; Restitution

Material benefit rule


as basis of contract’s failure for indefiniteness

in battle of the forms

of breach

in deciding unfair forfeiture


effect on return performance in assignment

in fraud cases

in frustration of purpose

in impracticability

in innocent and negligent misrepresentation cases

in installment contracts

of length of option, E16-8

in mistake

in noncompliance with condition. See Conditions

omissions in writing under statute of frauds

of omitted term as basis for lack of agreement

of personal attributes in barring assignment or delegation

in repudiation


of time of performance

“time of the essence” clause

transnational perspective

in variation between acceptance and offer

in waiver

Meeting of the minds. See Subjective standard

Mental incapacity

alcohol and drug abuse

balance of equities

burden of proof

cognitive test

effect on offer

general scope and definition

incompetence or eccentricity distinguished

minor. See Minority

motivational test

objective evidence

presumption of competence

reliance interest of other party


subjective standard

unfair terms

Mental suffering. See Damages



firm offer by

good faith

statute of frauds


Merchantability warranty

Merger clause. See Parol evidence rule


capacity to contract generally

disaffirmance (avoidance) of contract


illegal contract

misrepresentation of age


objective standard

protection policy

reliance by major party

relief following disaffirmance

tort liability of minor

unfair bargaining or terms

Misrepresentation. See Fraud; Innocent and negligent misrepresentation

Missing terms. See Omitted terms


avoidance remedy

basic assumption of fact

equitable balancing, 15.4.6

error in communication

error in judgment

error in prediction

exception to parol evidence rule

of fact


impracticability and frustration compared

improper bargaining, relevance

of law


misunderstanding compared

modification of contract by court



nondisclosure causing

policing doctrines compared



risk allocation

in transcription

transnational perspective


Misunderstanding. See Ambiguity; Mistake; Objective test

Mitigation of damages. See Damages

Modification of contract


composition as

consideration required

by court, to adjust for impracticability

by court, to adjust for mistake

by court, to remove improper term

enforced under promissory estoppel

by mitigating transaction with breacher

“no-oral-modification” clause

rejection of option as

standard terms

statute of frauds applicability

subsequent parol evidence as

third-party beneficiary’s rights

unforeseen difficulties

Moral obligation

donation as

as ground for enforcing contract

keeping promises

material benefit rule

Mutual assent. See Agreement; Objective test

Mutuality of obligation. See Consideration



making breach of contract a tort

malpractice suit by nonclient


in mitigation attempt

in unilateral mistake

Negotiation. See also Offer and acceptance

agreement to agree. See Unresolved terms

as contextual evidence for interpretation

evidence of, effect of parol evidence rule


good faith obligation

promissory estoppel during negotiations

unequal bargaining power


Nondisclosure. See Fraud


of acceptance of repudiation

of assignment


of objection by merchant under statute of frauds

reason to know misrepresented facts

reason to know of usage

of standard terms

of unilateral mistake

Obiter dictum explained

Objective test


adequacy of assurance of performance

adequacy of cure

agreement to agree

assent policy

best efforts. See also Gap fillers

complete ambiguity

compromise of disputed claim

construction or interpretation, generally. See Interpretation


duration of firm offer

duration of offer


duty to read. See Duty to read



expectation interest, 18.2.1


frustration of purpose

fulfillment of condition of satisfaction


gratuitous intent

implication of contract




incidental reliance


intent to assign or delegate

intent to create third-party beneficiary

joke transaction

lessor’s withholding permission to assign

liquidated damages provision

measuring restitutionary benefit

mental incapacity

minority, test of







objective evidence, defined


parol evidence. See Parol evidence rule


promissory estoppel

reasonable efforts. See also Gap fillers

reasonable expectations

requirements and output contracts


substantive unconscionability

time for performance

unjust enrichment


Offer and acceptance

acceptance, inadvertent

acceptance, nature and effect

acceptance, unknown terms

acceptance by conduct

acceptance by performance. See Unilateral contract

acceptance by promise. See Bilateral contract

acceptance by silence

acceptance following counteroffer or rejection


ambiguous responses to offer

battle of the forms. See Battle of the forms

bilateral contract. See Bilateral contract

communication of acceptance


death of offeror

deposited acceptance rule

duration of offer

effective date of acceptance

electronic media

exercise of ownership as acceptance

firm offers. See Options


intent to offer or accept. See Objective test; Interpretation

interpretation. See Interpretation

irrevocable offers. See Options

knowledge of offer by offeree

last shot rule

late acceptance

mailbox rule

mental disability of offeror

mirror image rule

mode of acceptance

neutral responses to offer

objective test. See Objective test

offer, distinguished from conditional contract

offer, nature of

offer to multiple offerees

options. See Options

power of acceptance

rejection of offer

revocation of offer

reward offer

ribbon matching rule

rolling contract

sale of goods. See Battle of the forms; Sale of goods

silence as acceptance, 4.10


standard contracts. See also Battle of the forms

time for acceptance

unilateral contract. See Unilateral contract

Omitted terms. See also Gap fillers; Implied terms

agreement to agree


effect on compliance with statute of frauds


parol evidence of

reasons for omission

supplied by formula or objective standard

Oppression. See Adhesion; Unconscionability

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