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
defined
in effect of contemporaneous writings
irreparable
misunderstanding
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
materiality
mitigation of damages
nature and meaning
opportunity for repentance
prospective nonperformance
purpose of doctrine
refusal to accept cure as
retraction
transnational perspective
unequivocal intent
victim’s reliance
victim’s rights, generally
victim’s risk in reacting
voluntariness
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
generally
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
Bankruptcy
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
acceptance by performance
additional terms
conduct
confirmation
counteroffer
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
merchant
mirror image rule
offer
performance absent written contract
proposals
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
implied
objective or subjective test
in seeking fulfillment of a condition
Bilateral contract
defined
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
cure
damages. See Damages
defined
by delegate
deliberate. See Breach of contract, willful
disaffirmance following
of divisible contract
efficient
excused by impracticality
of installment contract
material
nonfulfillment of condition compared
of obligation of best efforts. See Best efforts; Damages
of obligation to bargain in good faith. See Good faith; Negotiation
partial
penalty to discourage
remedies. See Damages; Remedies
repudiation distinguished. See also Anticipatory repudiation
rescission
restitution as alternative remedy
restitution in favor of breacher
substantial performance. See Substantial performance
as tort
total
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
defined
equity
precedent
statute of frauds
Class action
Classical contract law
defined
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
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
estoppel
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
precedent
presumptions on sequence of performance
promissory
pure, distinguished from promissory
pure, meaning and effect
risk allocation
setting alternative performances
setting sequence of performance
solely for one party’s benefit
subsequent
time-setting provision distinguished
transnational perspective
uncertain future event
unfair forfeiture
waiver
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
Consideration
adequacy
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
detriment
employment agreement
evidentiary function
exchange
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
nominal
options
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
seal
sham
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
agreed
in assignment, against obligor
attorney’s fees
for breach of contract, generally
for breach of duty to bargain in good faith
burden of proof
causation
certainty, reasonable
choice between expectation, reliance, and restitution
compensation, general principle
consequential
in contract for benefit of third party
diminution in value. See Unfair forfeiture
direct
direct (variable) costs
for duress
economic waste. See Unfair forfeiture
efficient breach
emotional distress
expectation
following avoidance of contract, generally
foreseeability
for fraud
general
goodwill loss
inadequacy as basis of injunction
inadequacy as basis of specific performance
incidental
incidental reliance
indefinite terms, effect on
in favor of breacher
in rem nature
interest
liquidated
losing contract
lost opportunity
lost profit or earnings
lost volume
market value
mental distress
mitigation
moral considerations
nominal
noneconomic
offset to breacher for restitution
overhead (fixed costs)
part payment offset
for promissory estoppel
punitive
reliance damages
restitution. See Restitution
salvage offset
special
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
Dictum
Disaffirmance. See Avoidance of contract; Mental incapacity; Minority; Restitution
Disclaimer
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
Duress
economic, defined
exception to parol evidence rule
generally
improper threat
inducement
in modification of contract
remedy
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
generally
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
incapacity
offer and acceptance
recording
signature
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
generally
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
Equity
balance of equities. See Equitable balancing
basis for avoidance for mistake
court (Chancery)
definition
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)
Estoppel
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
generally
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.
Formalism
Formalities. See also Statute of frauds
agreement to record in writing
consideration
function
seal, 7.4.2
Forms of action
Forum selection clause
Fraud
affirmative statement
concealment
conduct
deception and inducement
elements, generally
factual misrepresentation
in factum
in inducement
injury
intention misrepresented
materiality
minor’s misrepresentation of age
mistake resulting from nondisclosure or silence
nondisclosure
opinion misrepresented
parol evidence exception
remedies
response to question
scienter
silence
transnational perspective
Freedom of contract
generally
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
defined
fault
impossibility of performance compared
impracticability compared
materiality
mistake compared
purpose defined
remedy
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
generally
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
defined
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
generally
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
mandatory
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
Impracticability
basic assumption of contract
divisibility of impracticable terms
event defined
fault
force majeure
frustration of purpose compared
generally
government regulation
impossibility doctrine as precursor
market changes
materiality
mistake compared
modification for supervening difficulties compared
remedy
risk allocation
transnational perspective
unduly burdensome
unforeseen supervening event
Improper bargaining. See Adhesion; Duress; Fraud; Unconscionability
Incapacity. See Mental incapacity; Minority
Indefiniteness
agreement to agree. See Unresolved terms
discretionary terms
effect on compliance with statute of frauds
effect on remedy
generalized obligations
generally
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
Interpretation
of acceptance
of agreement as a whole
agreement to agree. See Unresolved terms
agreement to record in writing
ambiguity. See Ambiguity
assignability
commercial practice. See Usage
of conduct
conduct creating implied contract
construction consistent with parties’ intent
construction distinguished and defined
context
contra proferentum rule (against the drafter)
course of dealing. See Course of dealing
course of performance. See Course of performance
custom. See Usage
defined
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
generally
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
Judge
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
Materiality
as basis of contract’s failure for indefiniteness
in battle of the forms
of breach
in deciding unfair forfeiture
defined
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
test
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
remedy
subjective standard
unfair terms
Mental suffering. See Damages
Merchant
defined
firm offer by
good faith
statute of frauds
warranty
Merchantability warranty
Merger clause. See Parol evidence rule
Minority
capacity to contract generally
disaffirmance (avoidance) of contract
emancipation
illegal contract
misrepresentation of age
necessaries
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
Mistake
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
generally
impracticability and frustration compared
improper bargaining, relevance
of law
materiality
misunderstanding compared
modification of contract by court
mutual
negligence
nondisclosure causing
policing doctrines compared
reformation
restitution
risk allocation
in transcription
transnational perspective
unilateral
Misunderstanding. See Ambiguity; Mistake; Objective test
Mitigation of damages. See Damages
Modification of contract
coerced
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
Negligence
disclaimer
making breach of contract a tort
malpractice suit by nonclient
misrepresentation
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
generally
good faith obligation
promissory estoppel during negotiations
unequal bargaining power
Neoclassicism
Nondisclosure. See Fraud
Notice
of acceptance of repudiation
of assignment
constructive
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
acceptance
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
disclaimer
duration of firm offer
duration of offer
duress
duty to read. See Duty to read
estoppel
exchange
expectation interest, 18.2.1
foreseeability
frustration of purpose
fulfillment of condition of satisfaction
generally
gratuitous intent
implication of contract
impossibility
impracticability
incapacity
incidental reliance
inducement
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
misrepresentation
mistake
misunderstanding
mitigation
motive
negotiations
objective evidence, defined
offer
parol evidence. See Parol evidence rule
price
promissory estoppel
reasonable efforts. See also Gap fillers
reasonable expectations
requirements and output contracts
repudiation
substantive unconscionability
time for performance
unjust enrichment
usage
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
advertisement
ambiguous responses to offer
battle of the forms. See Battle of the forms
bilateral contract. See Bilateral contract
communication of acceptance
counteroffer
death of offeror
deposited acceptance rule
duration of offer
effective date of acceptance
electronic media
exercise of ownership as acceptance
firm offers. See Options
generally
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
solicitation
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
defined
effect on compliance with statute of frauds
generally
parol evidence of
reasons for omission
supplied by formula or objective standard
Oppression. See Adhesion; Unconscionability