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Contracts Outline – Swaine

I. General Overview
a. Contract: an agreement between two or more persons – not merely a shared belief, but a
common understanding as to something that is to be done in the future by one or both of them (alt. a
document detailing this agreement or a set of rights/duties created by the agreement)
b. Sources of Contract Law
i. Common Law: largest and most common source; includes case law and Restatements (which are
not legally binding but are generally persuasive)
ii. Statute: most important statute for our purposes is the UCC (sale of goods); statutory law takes
precedence over common law, but whatever is not covered by the statute is then left to common
law to address (Ex. UCC doesn’t cover “offer,” so we look to § 24 of the 2nd Rest. for help there
iii. Treaty: most important treaty for our purposes is the CISG (international transaction of goods if
countries are parties to treaty); as a treaty is a federal law so takes precedence over both the UCC
and common law
II. Mutual Assent
a. When deciding whether a contract is enforceable, the most basic requirement is mutual assent to
the terms
b. But how do we decide if mutual assent exists? Esp. if one side claims misunderstanding?
c. Subjective approach: looks to the intention of the parties when examining whether mutual assent
was present (what were they thinking?)
i. Raffles v. Wichelhaus: agreement about cotton to be shipped to England aboard the boat Peerless
(with no date specified)
1. But there were two boats called Peerless and when the goods arrived on the later
boat, the buyer refused to accept them (saying he meant for the cotton to be shipped on the
earlier boat)
2. Seller sued for breach of contract claiming that “intention was of no avail”
3. But the court held that there was no enforceable contract because there was no
meeting of the minds since each party had a different subjective intent
d. Objective approach: looks to how a reasonable person would construe the outward conduct of the
party in determining that party’s intention to assent (no subjective part)
i. Lucy v. Zehmer: Lucy offered to buy Zehmer’s land for $50K one night at a bar
1. Z did not believe that L had the money, but he hastily drew up a rough contract on
the back of a check and had L sign it (apparently in an effort to call L’s bluff and force him to
admit that he didn’t have the money)
2. L tried to execute the contract; Z responded that he never intended to actually sell
the land
3. HOLDING: Even if one party is secretly in jest at the time of the agreement, the K
is still binding because given the evidence, a reasonable observer would be justified in
believing that the contract represented a serious business matter
4. SO all that matters is the manifestation of agreement; the secret intent of one
party is immaterial
5. § 201:
e. Modified objective approach: in the American system, the objective approach is generally
preferred over the subjective approach, but it is somewhat modified

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i. § 20 – Effect of Misunderstanding: What to do when the parties attach different meanings to their
words?
1. No contract formed when mistake is symmetrical: parties attach different
meanings to their manifestations and (a) neither party is at fault OR (b) both parties are
equally at fault
2. Contract is formed when mistake is asymmetrical: and the meaning of one
party prevails if (a) that party does not know of any different meaning of the other, and the
other knows the meaning of the first party; OR (b) that party has no reason to know of any
different meaning of the other, and the other has reason to know the different meaning of the
first party
i. So if Lucy knows that Zehmer is joking and Zehmer doesn’t know that
Lucy is serious, then Zehmer’s meaning prevails and, in this case, there’s no contract
ii. § 21 – Intention to be Legally Bound: Intention that a promise be binding is not essential for the
enforcement of a K; the only time intention would prevent a contract is if there was a clear outward
manifestation that a promise was not serious
iii. § 201 – Whose Meaning Prevails: If the parties have attached the same meaning to an
agreement, even if that meaning would not be apparent to a reasonable onlooker, that meaning
prevails
1. So if Lucy and Zehmer were both joking, then the contract would not be
enforceable even if a reasonable onlooker would have thought that they were serious
iv. Ray v. Eurice Bros:
f. Policy rationale for the favoring the (modified) objective approach
i. Protects the reasonable expectations of a party
ii. Relatively easy to police and enforce
iii. Protects against fraud and distortion

BILATERAL CONTRACTS – Offer and Acceptance

g. In order to reach “mutual assent” for a traditional contract, there generally is a bargain for
exchange in which one party makes an offer and the other party returns an acceptance (see Rest.
2nd § 22 below)
h. § 22 – Mode of Assent (Offer and Acceptance): Typically this manifestation of assent occurs
through offer and acceptance
i. BUT you can still have mutual assent even if you can’t identify a specific moment of offer
and acceptance

III. Offer (and requirements):

a. Offer has 3 general requirements: PROMISE, CERTAINTY, & COMMUNICATION
b. Promise or willingness to be bound to a contract, as opposed to an invitation to begin or continue
preliminary negotiations
i. Language: “I promise” or “I offer” instead of “I would consider selling for”
ii. Method of communication: the broader the communicating media, the more likely the
courts will view the communication as merely the solicitation of an offer (for this reason,
ads are usually NOT offers, but there are exceptions to this – see Izadi below)
iii. § 24 – Offer defined: An offer is the 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 conclude it.
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iv. UCC does not define “offer,” so we rely on common law (§ 24 of 2nd Rest. above)
v. § 26 – Preliminary Negotiations: “A manifestation of willingness to enter into a bargain
is not an offer if the person to whom it is addressed knows/has reason to know that the
person making it” intends it only to be preliminary negotiations
c. Certainty and definiteness in both the essential terms and the specific offeree
i. Basic test: are enough terms provided to make the contract capable of enforcement
ii. § 33 – Certainty: A manifestation of intention cannot be an actual “offer” unless its terms
are reasonably certain enough to “provide a basis for determining the existence of a breach
and for giving an appropriate remedy”
d. Communication of the offer to the offeree: an offer is always effective upon its communication
(see Mailbox Rule below)
e. Lonergan v. Scolnick: Scolnick (S) needed cash in a hurry so he put an ad in the paper offering to
sell a tract of land; Lonergan (L) responded to ad
i. At L’s request, S provides directions to get to land but stipulates that “This is a FORM
LETTER.”
ii. After seeing the land, L suggests a bank to serve as an escrow agent “should I desire to
purchase” the land
iii. S writes back and tells L that the bank is ok, but that L will have to act fast because he
wants to sell within the week
iv. Four days later, S sells to a third party; L sues S for breach of contract
v. Court holds that there is no breach of contract because there was NO OFFER
1. Newspaper ad wasn’t certain enough to be an offer under § 33
2. S’ letter w/ directions is explicitly called a FORM LETTER so no offer there
3. S’ letter telling L to hurry says that he is dealing with other potential buyers and
undermines any willingness on the part of S to be bound to a contract with L;
so just preliminary negotiations under § 26
f. MAILBOX RULE:
i. In common law, an offer is effective upon communication (i.e. it must be received by
offeree)
ii. An acceptance is effective as soon as it is dispatched (i.e. out of the hands of the offeree or
any of its agents)
1. This is the “deposited acceptance” rule – § 63 of 2nd Rest.
2. Even if acceptance is never received, it is still effective as long as:
i. the method of sending it was reasonable or comply with offeror’s
stipulations (§ 65); and
ii. it was properly addressed and packaged (§ 66)
3. Policy rationale: provides the offeree with a firm basis for action
4. EXCEPTION: Acceptance of an option contract is effective upon receipt
iii. Like an offer, a revocation is effective upon communication or receipt
iv. Similarly, a rejection or counteroffer is also effective upon receipt
1. Receipt means that the acceptance is in the hands of the person to whom it is
addressed or to one of his agents authorized to receive it (§ 68)
2. BUT if a person sends a rejection/counteroffer by mail and then changes their
mind and also sends an acceptance, that acceptance is not effective on dispatch and

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must be received before the counteroffer/rejection in order to be effective (so

whatever one arrives first is effective) (§ 40)
v. CISG has a similar rule:
1. Art 16(1): Until a contract is concluded an offer may be revoked if the offeree
receives the revocation before he has dispatched the acceptance and cannot be
revoked if acceptance has already been dispatched
2. BUT unlike common law Mailbox rule Art. 18(2) places the risk of non-arrival
of acceptance on the offeree (i.e. if the acceptance does not arrive in a timely
manner than it is not effective)
g. Izadi v. Machado: Car ad strongly implied that any trade-in would have a value of $3K, although
tiny small print showed that this offer only applied to certain makes of cars
i. When plaintiff didn’t get trade-in value because of the small print, he sued for breach of
contract (and fraud and false advertising)
ii. Court grants the breach of contract claim
iii. OFFER: although an ad usually is not an offer (because there is no specific offeree), the
court holds that Machado’s ad was an offer in this case
iv. ACCEPTANCE: can be inferred from Izadi’s attempt to take advantage of the offer
v. MUTUAL ASSENT: Machado says it did not intend to say that all trade-ins were worth
$3K, but that is what Izadi understood. So whose interpretation prevails?
1. TEST: What a reasonable person in the position of the parties would have
interpreted (objective approach discussed above)
2. Based on this, court says that Izadi’s interpretation prevails and Machado’s refusal
to grant the trade-in was a BREACH OF CONTRACT
h. Brown Machine: this is a battle of the forms case (see below), but it remember that a price quote
is generally NOT an offer
i. Even when prices are quoted in response to a specific inquire, in commercial usage the
word “quotation” implies the reservation of a right on the supplier’s part to accept or
reject customer’s orders
ii. So usually, the offer comes from the buyer’s order form, not from the seller’s price quote

IV. Revocation, Rejection and Acceptance

a. An offer may be terminated either by the offeror (REVOCATION) or by the offeree
(REJECTION/COUNTEROFFER or LAPSE OF TIME) [§ 36]
b. Revocation: terminates the offeree’s power of acceptance and obviously precludes the formation
of mutual assent and obviously must be done before the offer is accepted (offers are freely
revocable until accepted)
i. As per the mailbox rule, a revocation is effective upon receipt
ii. Obviously revocation can be done directly (by the offeror to the offeree)
iii. Can also be done indirectly provided that certain requirements are met
1. § 43 of 2nd Rest – Indirect Communication of Revocation: ends the offer “when
the offeror takes action inconsistent with an intention to enter into the proposed
contract and the offeree acquires reliable information to that effect”
2. See also Normile v. Miller below: “You snooze, you lose.”
c. Rejection: clearly terminates the power of acceptance and kills the offer
i. Again, effective on receipt
ii. Usually done directly
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iii. Can also be done by a lapse of time if the offeree doesn’t return a response in the time
specified OR if no time period is specified, if the response is not within a reasonable time
d. Counteroffer: offer made by an offeree to the offeror relating to the same subject matter as the
original offer and proposing a substituted bargain with different terms
i. generally this will also terminate the offeree’s power of acceptance AND serve as a new
offer (§ 39)
ii. Again, effective on receipt
e. Acceptance: manifestation of assent to the terms of the offer in a manner invited or required by the
offer; can be done either by a return promise or by performance (§ 50)
i. Mirror Image Rule – (§ 59) – if the offeree returns an offer with some change in terms
and assent is conditioned upon that change, then even if it purports to be an acceptance, it
is no longer a mirror image of the original and should be regarded not as an acceptance
but rather as a counteroffer
1. EX: So if Swaine offers to sell me a book for $50 and I say, “I’ll gladly take it as
long as it only costs 50 cents,” then it is understood that I have rejected Swaine’s
original offer by making a new counteroffer; I have become the offeror and Swaine
(the original offeror) is now the offeree
ii. Acceptance by Silence or Inaction - § 69 of 2nd Rest: generally some positive assent need
be given in order to constitute acceptance, but there are some exceptions to this rule in
which silence is acceptance:
1. Where an offeree accepts offered benefits and has reason to know they were
offered with an expectation of compensation (see Princess Cruises);
2. Where the offeror makes it explicitly clear that assent may be manifested by
silence and by remaining silent, the offeree intends to accept the offer
3. More likely to happen in commercial dealings where there is a previous history of
doing business
f. Normile v. Miller: Miller (M) listed a property for sale and Normile (N) provided him with an
offer and said it had to be accepted/rejected by 5 pm the next day; M made several changes to the
offer and returned it as a counteroffer to N without any deadline or cut-off
i. N neither accepted or rejected the offer – just sat on it
ii. Real estate broker presented M’s offer to a third party purchaser who accepted it
immediately w/o change
iii. Broker then informed N that the property had been sold to someone else and so M’s
counteroffer was revoked: “You snooze, you lose.”
iv. Hoping to still have a claim, N accepted M’s counteroffer by 5 pm anyway
v. Court holds that the fact that N signed the counteroffer by 5 pm is immaterial because the
c.o. was actually a rejection of the original offer and its 5 pm deadline (because of the
mirror image rule) and a proposal of a new offer without such a deadline
vi. Court also says that broker’s comment to N constituted a valid indirect revocation of the
offer under § 43

UNILATERAL CONTRACTS – Offer and Acceptance

g. Because the offeror is the “Master of the Offer,” she can specify any means of acceptance
h. A unilateral contract arises when an offeror says to the offeree, “You can only accept by doing
what I ask, NOT by promising to do what I ask”

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i. Ex. 1: “I promise to pay you $10 if you promise to pet my goat” – this is a BILATERAL
CONTRACT
ii. Ex. 2: “I promise to pay you $10 if you actually pet my goat” – this is a UNILATERAL
CONTRACT
i. So a bilateral contract is sometimes preferable for an offeror because when the offeree makes their
promise they are then bound to perform
j. But a unilateral contract may be preferable in cases where the performance sought is not
guaranteed to happen (“the speculative nature of the performance”)
k. Classical (hard) view of a Unilateral Contract in the Brooklyn Bridge example:
i. A tells B he will give him $100 if B walks across the Brooklyn Bridge
ii. A can revoke the offer up until the time that B accepts, and under the traditional view,
acceptance can only be given by full performance
iii. So even if B has already walked halfway across the bridge, A can revoke and pay him
nothing
iv. This seems harsh to B, but then you also have to remember that B was never bound to do
anything, so A shouldn’t be bound either until B completes performance
l. Petterson v. Pattberg: Plaintiff (P) owed Defendant (D) money on a mortgage; D said that P could
pay off mortgage at a reduced rate if all payments were made by May 31
i. P went to pay off mortgage but when he arrived and announced his intention to pay, D
immediately informed him that he would not accept the offer and had in fact sold the
mortgage to a third party
ii. Citing Williston, the court says that if an offeror can say “I revoke” before the offeree
accepts, then the contract cannot be enforced
iii. So in this case, there was a unilateral agreement that only became enforceable upon
payment; since P never in fact paid (only announced intention to pay) before D revoked,
then the contract cannot be enforced and P is S.O.L.
iv. Dissent: agrees that this is a unilateral contract, but strongly urges that the result here is
unfair the plaintiff
1. The performance sought is payment, but this inherently requires some cooperation
from the offeror (i.e. accepting the money)
2. The offeree should not be penalized if the only reason he was unable to complete
performance was because of an obstruction by the offeror
v. Case may have turned out differently if modern view (§ 32 and § 45 were applied)
m. Modern View of Unilateral Contracts has softened considerably:
i. § 32 – Invitation of Promise of Performance: If the offer is unclear about the mode of
acceptance, it is assumed that acceptance can be given thru promise or performance
ii. § 45 – Option Contract created by Part Performance or Tender: In a unilateral
contract framework, when the offeree tenders or begins the invited performance then an
option contract is created; so offeror cannot revoke the contract, only the offeree can by
deciding not to finish performance
1. Tender = showing that you have the ability & willingness to complete the
requested performance; as opposed to mere preparation
n. Cook v. Coldwell Banker: Coldwell Banker (CB) orally instituted a policy with bonuses to real
estate agents who sold $15K and $25K worth of property and stayed until year’s end

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i. Cook sold $32K of stuff; CB gave her reward for hitting $15K but not for hitting $25K;
said it would be paid the following March and that brokers had to be with CB in March in
order to receive the bonus payment
ii. Cook switched to Remax in Jan. but still wanted the bonus; CB refused to pay the bonus
since it said that Cook had not completed performance by remaining with CB through
March
iii. Court rejects CB’s argument that it was not bound to pay since the performance had not
been completed; instead court says that since Cook had already made a substantial part of
performance, an option contract was created and so CB couldn’t revoke the first policy
and institute the new one (§ 45 of 2nd Rest.)
iv. This approach is typical of the modern view

V. Reaching Mutual Assent with UCC & CISG

a. UCC applies to the sale of goods (§ 2-102)
b. DEFINITIONS:
i. Goods: all things which are movable at the time of their addition to the contract (NOT
money, investment securities, or real estate) (§ 2-105)
1. In a mixed contract when you can’t tell whether something is for goods, services,
or real estate determine whether the contract’s “predominant factor, their thrust,
their purpose” is for service, goods, or property
2. Coakley gives three criteria for testing this:
i. Language: language here clearly points to service (p. 148)
ii. Nature of business of supplier: GE is generally a provider of goods but
the operative department here is the Installation and Service Engineering
Dept., which is largely service-oriented
iii. Intrinsic worth of materials supplied: can’t be determined because
material costs were included in service costs (which is significant in itself)
ii. Merchant: a person who deals in goods of the kind or otherwise by his occupation holds
himself out as having knowledge or skill peculiar to the practices or goods involved (§ 2-
104)
1. This definition of a “merchant” becomes important for later for the “Firm Offer”
provision (§ 2-205), the “Battle of the Forms” (§ 2-207), and exceptions to the
Statute of Frauds (§ 2-201)
iii. Between merchants: where both parties are considered to be merchants
c. § 2-204 – General Contract Formation under the UCC
i. (1): A contract for sale of goods may be made in any manner sufficient to show
agreement, including conduct by both parties which recognizes the existence of such a
contract
1. Any expression of assent is ok - oral, written, or otherwise
ii. (2): Can still have a contract even if the exact moment of its making is undetermined
iii. (3): Contract does not necessarily fail even though one or more terms is left open; still ok
as long as the parties have intended to make a contract and there is a reasonably certain
basis for giving an appropriate remedy
1. Omitting price is often ok since a price can be inferred from the market (see § 2-
305 – Open Price Terms)
2. Quantity is usually a necessity though

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3. But the more terms the parties leave open, the less likely it is that they have
intended to conclude a binding agreement
d. § 2-206 – Offer and Acceptance under the UCC
i. (1): Unless otherwise indicated an offer to make a contract shall be construed as inviting
acceptance in any manner and by any medium reasonable in the circumstances (seems
like Rest. § 32 in this regard)
ii. (2): Where performance is a reasonable mode of acceptance, an offeror may revoke the
offer if not notified of the acceptance within a reasonable time
e. Harlow & Jones Inc. v. Advance Steel Co: Stewart (of Advance) discusses buying steel with
VanAs (of Harlow); they seem to come to a general agreement about quantity and grade specs;
Harlow ordered 1000 tons of steel from it supplier so that it could deliver it to Advance
i. Harlow sent a sales form to Advance confirming the sale but Advance never signed it
ii. Advance then sent back its own purchase form with all of the same quantities, prices, and
specs but just with different boilerplate language; Harlow never signed
iii. When Harlow’s last steel shipment departed a little late, Advance refused to accept it
iv. Harlow sued for breach of contract claiming that the terms of its sales form controlled
v. Advance countered by saying the terms of its purchase form controlled
vi. Court said that both sides were missing the boat: these forms didn’t matter because an oral
agreement had already been reached before any forms were sent
vii. Citing § 2-204(1), court says that a contract can be made in “any way sufficient to show
agreement, including conduct by both parties which recognizes the existence of such a
contract”
1. Here Harlow had already ordered 1000 tons of steel from its supplier
2. Advance had already sent over exact specs about grade and specifications
3. Both of these acts demonstrate conduct that already recognized the existence of a
contract, so we have an enforceable contract under § 2-204(1)
viii. Even though you can’t identify the exact point that the contract was reached, this doesn’t
matter under §2-204(2)
ix. Even though the shipping terms were not exactly ironed out, this does not prevent the
formation of a contract under §2-204(3)
x. So there is an enforceable contract under the UCC and Advance has to pay for steel
f. CISG and Mutual Assent: applies to contracts for the sale of goods (like UCC), but only between
parties whose places of business are in different states when both states are party to the CISG treaty
(Art. 1)
i. Art. 14: Certainty of terms
1. (1): A proposal to enter into a contract is an offer if it is sufficiently definite and
indicates an intention to be bound on the part of the offeror. (Like § 24 of Rest).
A proposal is sufficiently definite if it indicates the goods and makes provision for
determining the quantity and price. (Like § 33 of Rest).
2. (2): Unless expressly specified otherwise, a proposal that is not specifically
addressed to a party is considered merely an invitation for an offer and not an offer
in itself
ii. Art. 15 - OFFER: An offer is effective upon communication
iii. Art. 18(1) - ACCEPTANCE: a statement made or conduct of the offeree indicating assent
to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance.
(Different than § 69 of Rest. in this regard)
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VI. Consideration
a. Along with offer and acceptance, consideration forms the third element of the Holy
Triumvirate of necessary elements for the formation of a classical contract
b. Under modern view, the basis for consideration is a bargained-for exchange
c. Benefit-Detriment Test: old test for consideration that looks for a benefit to the promisor
and a detriment to the promisee as a test of consideration
i. REJECTED by the Restatement in § 79
ii. Hamer v. Sidway: Uncle William promises nephew Willie $5K if he doesn’t drink, smoke,
gamble until his 21st birthday; Willie complies but doesn’t get paid; sues
1. Defendant claims that the promise is not enforceable because there was no consideration
for it under the benefit-detriment test
2. No benefit to uncle, and no detriment to Willie cause he’s better off for not doing any of
those things
3. Court rejects this reasoning; says that there is a clear detriment to Willie in giving up a
legal right to do something (regardless of whether refraining from those things was healthy in the long run)
and that this detriment is enough to constitute consideration for the promise and make it enforceable
d. Bargained-for Exchange: the modern test for consideration
i. § 71: Requirements of a Bargained-For Exchange
1. (1): “To constitute consideration, a performance or a return promise must be
bargained for.”
2. (2): A performance or return promise is bargained for if it is sought by the
promisor in exchange for his promise (so “tramp example” doesn’t qualify) and is
given by the promisee in exchange for that promise
ii. § 79(a): “If the requirement of consideration is met, there is no additional requirement of
gain or benefit to the promisor or loss or detriment to the promisee”
1. So this seems to reject the benefit-detriment test from Hamer v. Sidway; at the
least it means that if there is a bargain for exchange, the courts are not going to go
back to check to see if there was benefits and detriments
2. You should not rely on benefit-detriment test alone!!
3. But most cases will be resolved the same way regardless of which test is used
iii. Pennsy Supply Inc. v. American Ash Recycling Corp: it seems to sort of resurrect the
benefit-detriment language here though
1. If you are unsure that there is a bargained for exchange, you can use the benefit-detriment
test to see if the promisor received a benefit from the promisee’s acts, which would indicate that a
bargained-for exchange occur
e. Applying the Consideration Doctrine:
i. § 73: Performance of a legal duty does not constitute consideration
ii. § 77 – Illusory Promises: A statement in promissory form that actually promises nothing
1. Often in the form of an “at will” promise or agreement (i.e. “I promise to build a house for
you if I feel like it.”)
2. Not enforceable against the one making the illusory promise, nor can it serve as
consideration for a return promise
iii. § 79(b): If the requirement of consideration is met, there is no requirement for any
equivalence in the values exchanged; (doesn’t have to be fair to be consideration)

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1. Even nominal consideration (i.e. very small sums of money) can be considered valuable
consideration if exchanged [see Berryman, Bozik ($5 is sufficient consideration on a $200K land purchase)]
2. Exceptions to § 79(b):
i. Token consideration (in which the purported “consideration” was entirely devoid of value)
ii. Sham consideration (in which no consideration was ever actually given)
iv. Dougherty v. Salt: Aunt writes a promissory note to give nephew $3K when she dies, but
her estate doesn’t pay up a few years later when she croaks; nephew sues but the court decides that there is
not sufficient consideration to make the promise enforceable
1. First of all, this was purely a gratuitous gift – not done in exchange for anything on the
part of the nephew, so it fails the bargained-for exchange test
2. Secondly, the mere fact that the note says “Value received” in an attempt to create some
semblance of consideration is not enough – just because a note says that it’s consideration doesn’t mean it
actually is (sham consideration)
3. So this case shows that there is no consideration for a gift or donative promise, and
sham consideration is not enough to make a promise enforceable
v. Batsakis v. Demotsis: Defendant was living in Greece during WWII and was in dire
financial straits; plaintiff was living in America and agreed to lend defendant 500,000 drachmae if plaintiff
would sign a note saying that she would repay defendant $2,000 plus 8% interest at the end of the war
1. The value of 500,000 drachmae was disputed (between $25 and $750), but either way was
MUCH less than the $2000 the woman has to pay back
2. Defendant alleges that the 500,000 drachmae, which she values at $25, is insufficient
consideration for such a large repayment
3. Court rejects this reasoning and says that as long as the consideration has some real
value, it is valid even if its value is unequal to the promise: “It is not contended that the drachmas had no
value…Therefore, the plea of want of consideration was unavailing…mere inadequacy (unequal
exchange) will not void a contract”
4. So the $2000 promise is enforceable
vi. Plowman v. Indian Refining Co: Longtime workers at an oil refinery get laid off but GM
of company promises to keep them on the payroll at half their salary out of appreciation for years of loyal
service; all they have to do is pick up their checks
1. But when refinery is bought by new management, the payments stop
2. Plaintiffs seek to enforce promise; contend that there was consideration on three grounds:
years of loyal service, moral obligation, and the act of coming in and picking up the checks
3. Court says past acts are not consideration: consideration must be given in exchange for a
promise, but since their service has already been given they can’t give it again or give it more to make it
consideration
4. Court also says there is no moral obligation unless supported by a legal one
5. Finally, while the employees may be inconvenienced by having to come in to pick up the
checks, this is not a act sought by the company and so can’t be viewed as something “bargained-for” as
consideration – rather it is just a condition on collecting a gift, like Williston’s “tramp example” above
6. For these reasons, the court says there is no bargained-for exchange here – the company
wasn’t getting anything out of it – it was just a donative gift

VII. Pre-Acceptance Reliance: Limiting the Offeror’s Power to Revoke

a. What happens when an offeree has already relied on an offeror’s offer/promise and then the
offeror tries to revoke it? Is such revocation operable?
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b. This is where the doctrines of option contracts, promissory estoppel, and firm offer
come into play
c. Option Contract:
i. When the offeree gives the offeror some consideration (usually a sum of money) in
exchange for the offeror’s express promise to hold the offer open for a stated period of time while the
offeree considers it
1. The offer is irrevocable during this “holding open” time period
2. If the offeree allows the option period to lapse, then the offeror can put the offer to
someone else or revoke it
3. **Acceptance of an option contract is operative upon receipt, NOT dispatch**
d. § 87: Option contract
i. (1): An offer is binding as an option contract if it (a) is in writing and signed by the offeror,
recites a purported consideration, and proposes an exchange on fair terms
1. Key here is that only a recitation of consideration is required to create an option contract
2. NOTA BENE: DO NOT RELY ON § 87(1) – has not been accepted by the majority of
courts; therefore it is considered a FORM REQUIREMENT ONLY
ii. (2): “An offer which the offeror should reasonably expect to induce action of a substantial
character is binding as an option contract to the extent necessary to avoid injustice;” [Basically applies the
Drennan rule for sub & prime contractor relations to all types of contractual relations]
1. HOWEVER, § 87(2) has not been normally embraced outside of the subcontractor context
e. Promissory Estoppel
i. Although we will later see that Promissory Estoppel operates on its own to allow a plaintiff
to recover, here it serves to hold open an offer by creating an option contract
ii. § 90(1) of 2nd Rest: A promise which the promisor should reasonably expect to induce
action or reliance on the part of the promisee and which does induce such action or reliance is binding if
injustice can be avoided only by enforcement of the promise
1. IN OTHER WORDS: If there is a promise upon which an offeree should be expected to
rely and in fact does rely to his detriment, and the failure to enforce that promise will lead to injustice, then
that promise serves to create an option contract which is held open for the offeree who has already relied
on the promise
2. NOTE: Often the phrase “action or forbearance” has been interpreted to mean “detrimental
reliance.” But sometimes a court will interpret “reliance” just to mean a change in position, even if not
detrimental. However, in the end there does seem to be a need for some detriment because of the
“injustice” issue – i.e. we would not need to enforce a promise to avoid injustice if there is no detriment in
reliance on the promise.
iii. James Baird Co. v. Gimbel Bros., Inc: Baird, a contractor, put in a bid for the construction
of a public building in PA; used a price quote from Gimbel Bros., a linoleum supplier, in their bid (for the
flooring); Gimbel realized it had made a mistake in its pricing and so contacted Baird to inform them of the
mistake; a few days later Baird was awarded the bid, but Gimbel refused to supply the linoleum at the
original (mistaken) price; Baird sued claiming that Gimbel was obligated to pay under both contract &
promissory estoppel
1. Deciding the case on classical contract terms, court says that using a price quote in your
bid does not constitute acceptance of the offer if you have yet to be awarded the bid, and so the sub-
contractor can revoke the offer before acceptance

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2. Declines getting into an analysis of whether promissory estoppel might prevent

revocation: says that P.E. is ok for things like donative promises, but is not well-suited for a commercial
relationship
i. The problem is that if P.E. is applied, then this will bind the sub-contractor to the prime,
but the prime will not be bound to the sub-contractor
ii. Court says that this type of asymmetry is unfair to the sub-contractor, so the application of
the PE doctrine would not be appropriate
3. END RESULT: Price quote is not an offer in an enforceable contract; Baird loses
iv. Drennan v. Star Paving: Drennan, a contractor, was fielding bids from sub-contractors for
paving work on a school construction job; Star Paving called and submitted a bid lower than any others;
Drennan used Star’s sub-bid in its bid and was awarded the contract – Yippee!
1. Star then informed Drennan that it had made a mistake in calculating its price and their
estimate was actually double the previously submitted bid used by Drennan
2. Drennan sues for breach of contract
3. Unlike James Baird, the court here applies the P.E. doctrine – pursuant to the requirements
of § 90(1), Star’s offer was irrevocable because of Drennan’s reliance on that offer in submitting and being
awarded the prime bid
i. It was reasonable for Drennan to rely on Star’s offer
1. Star’s offer was low, but not ridiculously low to the point where Drennan could have
clearly known that it was a mistake and that reliance on it would be unreasonable
2. Had the offer been for $71 instead of $7,110 then the mistake would be obvious and
reliance upon the bid would not be reasonable
ii. Did in fact rely and to his detriment
iii. Injustice to Drennan would have resulted w/o enforcing the promise
4. HOLDING: “The absence of consideration is not fatal to the enforcement of such a
promise…The very purpose of § 90 is to make a promise binding even though there was no
consideration…Reasonable reliance serves to hold the offeror in lieu of the consideration ordinarily
required to make the offer binding.”
5. So basically, PE in § 90 is creating an option contract for the prime contractor in the
sense that the sub-contractor cannot revoke its offer
6. NOTA BENE: This approach is favored over the Baird method
7. The following inequitable conduct by the Prime Contractor will preclude PE:
i. Bid shopping: practice of trying to find another subcontractor who will do the work
cheaper while continuing to claim the original bidder is bound
ii. Bid chopping: attempt to renegotiate with the bidder to reduce the price
v. Berryman v. Kmoch: Berryman (B), the landowner, signed an option contract granting
Kmoch (K), a real estate broker, 120 days to decide to purchase his land; writing stated that option was
premised on “For $10.00 and other valuable consideration,” but never actually exchanged $10
1. Berryman then pulled out of the “option contract” and sold to someone else; when Kmoch
complained, B sued for a declaratory judgment to nullify the “option contract”
2. CLASSICAL CONTRACT THEORY: Court says there is no consideration here because
the $10 never changed hands and the mere recitation of consideration is not sufficient to support an
enforceable contract (see Dougherty v. Salt above)
i. What about “other valuable consideration”? K claims that he had the land appraised and
traveled to view it at his expense. Court says this was of no benefit to the offeror (B) and so was more like
a condition to acquiring the land (similar to Williston’s “tramp example”)
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3. PROMISSORY ESTOPPEL: Court says that the injustice part of the promissory estoppel
requirement in § 90(1) was not present so applying PE is not appropriate
vi. Pop’s Cones v. Resorts International Hotel: Pop’s Cones wanted to set up a boardwalk-
front stand on real estate owned by Resorts; sent an offer to Resorts but despite not getting the offer signed,
Pop’s was assured by a Resorts rep that they would be able to lease the property and were in fact 95% done
with the official deal
1. Based on these assurances and anticipating a move to a new local, Pop’s did not renew the
lease at their current location in Margate
2. But despite all of the assurances, Resorts did not offer Pop’s the lease; Pop’s sued
3. HOLDING: Applying § 90 of the 2nd Rest, the court here says there was a promise (or at
least sort of a promise) that Pop’s reasonably relied on, and that injustice could only be avoided by
enforcing the promise
i. Promise: Resorts rep promised that Resorts COO would sign lease (this is a bit of a
sketchy promise because it is conditional, but court allows it)
ii. Expectation of reliance: The fact that Pop’s was asking Resorts rep for advice about
whether to renew their old lease shows that Resorts should have expected Pop’s to rely on the promise
iii. Actual reliance: Pop’s didn’t renew the lease
iv. Injustice: Pop’s had to scramble to find another lease and wasn’t able to do so until over a
year later and so missed out on a lot of revenue
f. Firm Offer: Irrevocability by Statute
i. In the business world, contracts are generally held open not by promissory estoppel, but
rather by the firm offer provision
1. So the UCC developed the Firm Offer provision which “represents a fundamental shift
from traditional common law doctrine by providing that at least some offers will be irrevocable despite the
absence of any consideration”
2. BUT sometimes the UCC firm offer rule is ignored in favor of the Drennan
promissory estoppel rule, even in instances involving the sale of goods where the UCC might presumably
be applied
ii. § 2-205 – Five Elements of a Firm Offer:
1. Offer (defined by common law principles in § 24)
2. Merchant making the offer
i. “Merchant” defined by §2-104 above: a “person that deals in goods of the
kind” or person who presents himself “by occupation as having knowledge
or skill peculiar to the practices or goods involved”
ii. Fairly permissive standard; basically anyone who is in business in
something that seems related in some way
3. Offer is made in a signed writing
i. “Signed” defined by §1-201(39) as “any symbol executed or adopted by a party with
present intention to authenticate a writing”
ii. “Writing” defined by §1-201(46) as “printing, typewriting, or any other intentional
reduction to tangible form”
4. Offer gives assurance that it will be held open
5. If the firm offer provision is prepared by the offeree, it must be separately signed by the
offeror.
iii. Effect of the Firm Offer Provision
1. Offer is not revocable for lack of consideration during:

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i. The time stated in the offer;

ii. If no time stated, then a reasonable amount of time; but
iii. No period of irrevocability (stated or not) can exceed three months
iv. UCC’s Firm Offer v. Promissory Estoppel
1. BOTH hold an offer open in the absence of consideration
2. UCC offers more protection in some cases, PE offers more protection in others
i. §2-205 has no reliance requirement; so unlike PE, UCC’s Firm Offer offers protection to
an offeree even without reliance
ii. No firm oral offer qualifies for protection under §2-205; unlike PE, UCC does not offer
protection on an offeree relying on an oral offer
g. Firm Offer under the CISG
1. Art. 16(2): “An offer cannot be revoked:
i. If it indicates, whether by stating a fixed time for acceptance or otherwise, that it is
irrevocable; OR
ii. If it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree
has acted in reliance on the offer
2. So firm offer under CISG is much more permissive than under UCC:
i. Doesn’t need to be in writing (oral offer is ok)
ii. Doesn’t need to be signed
iii. Doesn’t need to involve a merchant
iv. DOES require reliance if irrevocability is not expressly stated

VIII. Battle of the Forms: Qualified Acceptance

a. Parties often make use of pre-written forms when forming contracts that are essentially the
same in terms of major provisions, but differ in respect to the boilerplate provisions
i. Saves time, and therefore money
ii. Prevents an agent from making a deal on bad terms
iii. But sometimes can lead to litigation which is both time-consuming and costly AND might
result in a bad deal anyway
b. Common Law Battle of the Forms:
i. Mirror Image Rule - § 59: A reply to an offer which purports to accept it but is
conditional on the offeror’s assent to terms additional to or different from those offered is not an
acceptances but is a counter-offer
1. So basically even if a communication says “I accept,” it is deemed a counter-offer if it
conditions acceptance upon the inclusion of additional or different terms
2. But this does NOT mean that different terms will automatically nix a contract under the
Mirror Image rule; if acceptance does NOT depend on the additional/different terms then there is no
problem and it is enforceable
ii. Last Shot Rule: a consequence of the Mirror Image Rule
1. Whatever party fires the last shot (i.e. sends out the last form) gets to have the
terms/conditions of their specific form be controlling because the other party generally impliedly accepts
the terms of the last form by conduct (i.e. lack of objection)
2. Usually favors the seller because the buyer submits a purchase form or something and the
seller then supplies its own form when “accepting” (actually counter-offering) that ends up controlling
iii. Princess Cruises v. General Electric, Inc: Princess scheduled inspection services with GE
and issued a Purchase Order for this work with a price of $260K; Purchase Order also included boilerplate
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language establishing a warranty of merchantability for the work; GE sent back a Price Quotation with a
different price ($231k) and different boilerplate language that limited its liability; GE also sent a letter
saying that these terms would control; Princess didn’t respond and GE did the work on the boat
1. Service work was bad and the motor fell apart; Princess had to cancel cruises and sued the
fuck out of GE for lost revenue
2. GE pointed to the terms of its Price Quotation, which limited liability, and said those terms
controlled
i. GE claimed that its Price Quotation was a counter-offer which Princess accepted by
conduct (proceeding under a different price proposed by GE, not objecting to GE’s confirmation letter, and
accepting the services performed)
ii. Silent acceptance under § 69(1)(a): Acceptance can be demonstrated by conduct alone
“where an offeree takes the benefit of offered services with reasonable opportunity to reject them and
reason to know that they were offered with the expectation of compensation”
3. HOLDING: GE’s modification of Princess’ initial purchase order constituted a counter-
offer (Rest. §59, “Mirror Image Rule”), and is therefore controlling given Princess’ acceptance of its
terms (Last Shot Rule); thus damages awarded by jury were excessive
c. UCC Battle of the Forms - § 2-207:
i. § 2-207: What do we do with an acceptance that proposes additional or different terms?
ii. Main purpose of 2-207 was to counter/negate the “mirror image” rule
1. 2-207(1) – you have an agreement (acceptance is not undone)
2. 2-207(2) – what are the terms (permitting terms that are new)
3. 2-207(3) – what if there’s no written acceptance – can conduct constitute acceptance
anyway?
iii. § 2-207(1): “A definite and seasonable expression of acceptance (i.e. timely and
unconditional) …operates as an acceptance even though it states additional or different terms from those
agreed on, UNLESS acceptance is expressly made conditional on assent to the additional or different
terms.”
1. So the first part (the “definite and seasonable acceptance”) contradicts the Mirror Image
Rule by permitting the formation of a contract even if terms do not exactly match up
2. The last italicized part (“expressly conditional”) means that if Swaine offered me a goat
and I say, “I accept only if you abide by each one of my terms and conditions,” then this is NOT an
acceptance; instead it is a counter-offer because I have clearly expressed that my assent is conditional on
the adoption of the additional terms
i. “subject to the following terms and conditions” generally does NOT qualify as an
“expressly conditional” assent
ii. NOTA BENE: Generally this type of counter-offer cannot be accepted by silence or
conduct alone; to allow this type of “acceptance” would in effect continue the “last shot rule”
3. BUT we know from Brown Machine that if Swaine offered me a goat and I say, “I accept.
I expect delivery upon receipt of my check,” then this might still be an acceptance because my assent was
not EXPRESSLY conditional on the additional term
iv. § 2-207(2): But what to do with additional terms? When do we include them?
1. “Additional terms are to be construed as proposals for addition to the contract. Between
merchants such terms become part of the contract unless:
a. the offer expressly limits acceptance to the terms of the offer;
b. the additional terms materially alter the offer; or
a. Comment 4: Material alterations usually are seen in cases of surprise or hardship
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i. Ex: clause negating standard warranties, clause requiring that complaints be made in a time
materially sorter than customary or reasonable, etc.
b. Comment 5: clauses which don’t involve surprise or hardship are therefore incorporated
into the contract
i. Ex: seller’s exemption due to causes beyond his control, clause fixing a reasonable time for
complaints within customary limits, clause providing for interest on overdue invoices, etc
c. notification of objection to the additional terms is given within a reasonable time”
2. BUT, 2-207(2) only deals with additional terms (i.e. “new” issues injected into the
agreement); what if we have different terms (i.e. terms that are not just wholly new, but in fact are directly
in conflict w/ previously stated terms)
i. Some courts treat these different terms just as they treat the additional terms (i.e. same
three-prong exception)
ii. Other courts simply say that different terms don’t come into the contract under any
circumstance and simply shrivel up and die off on their own
iii. But the favored approach is the Knockout Rule: all of the different/conflicting terms of the
contract knock each other out (essentially cancelling each other) and any resultant gaps are filled in by the
UCC when necessary
iv. Why is the KO rule preferred?
1. Without the knockout rule, you basically are left with just a first shot rule (i.e. the first
terms seize the terrain and basically prevent anything else from knocking them out under the first two
approaches)
2. But the knockout rule allows for first-shot terms to be knocked out
3. So basically the KO rule is neither first shot nor last shot
v. § 2-207(3): “Conduct by both parties which recognizes the existence of a contract is
sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a
contract. In such case the terms of the particular contract consist of those terms on which the writings of
the parties agree, together with any supplementary terms incorporated under any other provisions of this
act.”
1. Even if you don’t have a contract under 2-207(1), you might still have an enforceable
contract under 2-207(3)
2. So even if the boilerplate language of each writing expressly says that only their terms will
govern the contract, there is still an enforceable contract IF the parties act as though there is an agreement
3. The terms of this contract will be those terms on which the writings do agree,
supplemented by the rest of the UCC to fill in the holes
d. Analytical Framework of a UCC §2-207 Issue
i. Does the UCC apply?
ii. If so, where is the first offer?
iii. Does the response constitute an acceptance or counteroffer?
1. Is there a “seasonable and definite” expression of assent?
2. Are there different terms?
3. If there are different terms, is the assent expressly conditional on them?
iv. If there was an acceptance but it was not expressly conditional on the inclusion of the new
terms, do the additional terms become part of the contract under 2-207(2)?
1. Were the additional terms expressly assented to by the original offeror?
2. If not, will they still become part of the contract anyway?
i. Are both parties merchants?
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1. If no, then new terms do not become part of the contract.

2. If yes, terms will become part of the contract unless they fall into the category of one of the
three exceptions.
ii. Examine the three exceptions
v. If there was a counteroffer in the form of an “expressly conditional acceptance,” is this
counteroffer accepted?
1. Is there express acceptance beyond mere conduct?
vi. If there is no acceptance to the offeree’s counteroffer (in the form of an expressly
conditional acceptance), then do the parties still have an enforceable agreement based on their performance
under 2-207(3)?
1. What writings do agree, because they will be included in the contract?
2. What UCC provisions will supplement these terms?
e. Battle of the Forms under Revised § 2-207
i. One of the major criticisms of § 2-207 is that it replaces the “last shot rule” with the “first
shot rule”
1. i.e. Under § 2-207 there seems to be a major advantage to whatever party is the first to
send out an offer, because there are three different ways that the different terms of a counteroffer can be
excluded under § 2-207(2)
2. Revised § 2-207 seeks to counteract this tendency
ii. Revised § 2-207 covers the same two major issues as the original § 2-207: when is a
contract formed AND what terms are included
1. Issue of contract formation covered under § 2-207(1) of the original is basically unchanged
except moved to § 2-206(3) of the revised code
2. Both reject the “mirror image” rule and allow a contract even if there are different terms as
long as there is a definite and seasonable manifestation of assent
iii. But Revised § 2-207 basically eliminates the three-prong approach of present § 2-207(2)
for determining what terms are included
1. Instead all that is left is a basically expanded version of § 2-207(3)
2. Only terms that are included are those that:
i. Appear in the record of both parties
ii. Both parties have agreed to, regardless of whether they appear in the record
iii. Supplemental gap-filler terms of the UCC
3. The idea is that this revision gets rid of both the last shot rule and the first shot rule
4. NO DISTINCTION BETWEEN MERCHANTS & NON-MERCHANTS
f. Battle of the Forms under the CISG
i. Art. 19 (CISG version of UCC § 2-207)
1. (1): “A reply that purports to be an acceptance but contains addictions or limitations is a
rejection of the offer and constitutes a counteroffer”
i. Basically restates the common law Mirror Image Rule
2. (2): BUT a reply that purports to be an acceptance but contains additional terms that
neither materially alter the offer nor prompt a timely objection from the offeror still is considered an
acceptance
i. Kind of softens the harshness of subsection 1- additional terms don’t nix an offer unless
they materially alter it

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ii. So for the CISG, materiality is important because it will determine whether an offer is
accepted or rejected; in contrast, materiality is only important under the UCC when determining what terms
will be included in an already formed contract
iii. NOTA BENE: Under Art. 18(1) of CISG, acceptance is granted by an affirmative
statement or conduct, NOT by silence or inactivity
3. (3): Examples of material alterations: additional or different terms relating to price,
payment, quality & quantity of goods, place & time of delivery, extent of one party’s liability to the other,
the settlement of disputes, etc.
ii. Filanto v. Chilewich: Filanto (F) is an Italian bootmaker; Chilewich (C) is an int’l import-
export firm that order hundreds of thousands of boots from F; C stipulated that any contract dispute would
be decided in arbitration in Russia; although C requested a signature and return on this form, F waited 5
months before sending back a confirmation that denies the Russian arbitration provision
1. ISSUE: whether the Russian arbitration provision is binding
2. HOLDING: Yes sir!
3. Usually would apply the UCC to answer this question, but since this is a contract between
parties with places of business in different nations (and both nations are party to CISG), then the CISG is
applied
4. F’s denial of the Russian arbitration provision constitutes a material alteration and would
normally be rejection, but it failed to make this alteration in a timely manner (5 months later!) so is not a
timely objection

IX. The Agreement to Agree & The Formal Contract Contemplated

a. This kind of thing would probably come up in a situation in which there was an oral
agreement but it was still understood that a written contract was forthcoming, and then one side tries to
back and revoke the agreement before the formal contract is written up
b. Common law approach to open terms: common law is generally resistant to the notion
that an enforceable contract could result from an agreement in which the parties failed to agree on either a
specific price or at least a method for determining a price (specific formula, designated arbitrator, etc)
i. From Walker (below): “We think the basic principle of contract law that requires
substantial certainty as to the material terms upon which the minds of the parties have met is a sound one
and should be adhered to.”
ii. Walker v. Keith: option contract for a lease extension was invalidated by the court because
not only was there no provision for the continuing rent price, but even worse there was no method for even
determining the rent
1. Since price is such a critical part of a rental agreement and the parties couldn’t agree on a
price, the court said it would be a pure fiction for it to set a price; that would be tantamount to making a
contract instead of enforcing one
iii. Nevertheless comment e to § 33 of the 2nd Rest. seems to lend support for an interpretation
of “open price contracts” similar to that of § 2-305 of the UCC (below) in certain situations
1. Oglebay v. Norton: a contract dispute arose over the price to be paid for shipping services
between two companies with a longstanding business relationship; although no price term was set and the
provisions for fixing one seemed vague, the court stepped in and fixed a price anyway because of the
“longstanding relational” nature of the contract
2. So the common law approach isn’t totally clear-cut about the open price term issue
3. To see if the UCC approach can be applied to common law, look for both continuous and
longstanding contacts AND reasonably certain terms
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c. UCC approach to open terms is the OPPOSITE: says an open price term will not
prevent enforcement of a contract for sale if the parties intended to be bound by their agreement
i. § 2-305 – Open Price Terms
1. (1): The parties if they so intend can conclude a contract for sale even though the price is
not settled. In such a case the court will enforces a reasonable price at the time for delivery as long as:
i. (a): nothing is said as to price in the contract; or
ii. (b): the price is left to be agreed by the parties and they fail to agree; or
iii. (c): the price is to be fixed in terms of some agreed market or other standard…and it is not
so set or recorded.
2. (2): If one party is to fix the price, as opposed to the court, it must be fixed in good faith
3. (3): When a price left to be fixed fails to be fixed due to fault of one party, the other party
may either treat the contract as cancelled or fix a reasonable price himself.
4. (4): BUT where the parties intend not to be bound unless the price be fixed or agreed and
the price does not end up being fixed or agreed upon, then there is NO contract
ii. UCC § 2-204 (3): Contract does not necessarily fail even though one or more terms is left
open; still ok as long as the parties have intended to make a contract and there is a
reasonably certain basis for giving an appropriate remedy
1. Omitting price is ok since a price can be inferred from the market (see § 2-305
above)
2. Quantity is usually a necessity though
3. But the more terms the parties leave open, the less likely it is that they have
intended to conclude a binding agreement
d. Formal Contract Contemplated: in contrast to the “agreement to agree” on open terms, in a
formal contract contemplated the parties have already nailed down all of the terms (often this
agreement in principle is shown in a letter of intent), but still plan on making a formal written
contract anyway
i. BOTH the common law AND the UCC allow for enforceability of an agreement
although a formal contract might still be forthcoming IF the parties intend their agreement
to be binding and not merely be preliminary negotiations
ii. § 27 – Formal Contract Contemplated: Manifestations of assent that are in themselves
sufficient to conclude a contract will be effective even though the parties also manifest an intention to
prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are only
preliminary negotiations
iii. UCC § 2-204 (3): (again) contract does not necessarily fail even though one or more terms
is left open; still ok as long as the parties have intended to make a contract and there is a
reasonably certain basis for giving an appropriate remedy
iv. The key here is determining if the parties intend to be bound in their discussions OR rather
only intend the discussions to be preliminary negotiations and not binding until the
executing of a formal written contract
v. Quake Construction: Quake (Q) is a contractor which was invited to put in a bid to
renovate the American Airlines (AA) terminal at O’Hare Airport; Jones Bros. (JB), AA’s
rep, sent Q a letter that said “(1) we have elected to award you the bid…(2) a contract
agreement outlining the detailed terms and conditions is being prepared and will be
available for your signature shortly…(3) Jones Bros. reserves the right to cancel this letter
of intent if the parties cannot agree on a fully executed agreement”; but a week later, before

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a formal contract arrived, AA told Q that its involvement in the project had been
terminated; Q sues for breach of contract
1. ISSUE: whether the letter of intent from JB to Q is an enforceable contract
2. Although letters are potentially enforceable, they are not necessarily enforceable
unless the parties intend them to be binding
i. So if a letter of intent is clear about the intention to be bound or not to be
bound, then it can be decided as a matter of law
ii. But if a letter is ambiguous about its intention to be bound, then the case
must be submitted to a fact finder to determine its enforceability
3. The following factors may be considered when determining whether or NOT the
parties intended to be bound before the formal written K:
i. Whether the type of agreement involved is one usually put into writing
ii. Whether the agreement contains many or few details
iii. Whether the agreement involves a large or small amount of money
iv. Whether the agreement requires a formal writing for the full expression of
the covenants
v. Whether the negotiations indicated that a formal written document was
contemplated at the completion of the negotiations
4. HOLDING: “The parties’ intent, based on the letter alone, is ambiguous.
Therefore, upon remand, the circuit court must allow the parties to present other
evidence of their intent. The trier of fact should then determine whether the parties
intended to be bound by the letter.”
5. CONCURRING OPINION: agrees that the parties’ intent to be bound is
ambiguous from the letter, but says the most likely result upon examination of
further evidence is not that the parties intended to be bound; neither is it that the
parties did not intend to be bound; rather a third option: contract to bargain in
good faith
vi. Contract to bargain in good faith: the letter of intent binds the parties to negotiate in
good faith to attempt to reach an agreement, but if no agreement can be reached then the
contract can be terminated
1. the terms already agreed on cannot be justifiably changed, but if there is a dispute
in further negotiation then that can be reason for ending the contract
2. Breach of a contract to bargain in good faith will NOT permit a breach of contract
claim because no final or definite contract exists in the case of a contract to bargain
in good faith; BUT the plaintiff might still be entitled to reliance-based recovery
based on a PROMISSORY ESTOPPEL theory
i. So if a party fails to live up to its agreement to continue bargaining in good
faith and stick to the terms already agreed on, then the other party may
bring a suit for recovery based on promissory estoppel
ii. P.E. is especially useful in this case since the remedy could be limited to
compensation of the plaintiff’s out-of-pocket costs that can be easily
established
iii. Arcadian Phosphates: defendants violated an agreement to bargain in
good faith (by insisting on a substantial change in the deal when market
conditions altered); court said that the promise to bargain in good faith is
not binding in a “breach-of-contract” sense, but it violation of the promise
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to bargain in good faith might allow recovery on a PE basis for plaintiff’s

out-of-pocket costs
vii. SEE PROBLEM 2-5 HERE.

X. Electronic Contracting
a. Shrinkwrap: purchaser orders a product (for example, a computer) over the phone (without
discussing the specific terms) or internet and when the product arrives, the customer unwraps the
plastic and finds the seller’s contract terms contained inside
i. Usually the terms stipulate that if the customer is dissatisfied with the product or contract
terms, he must return the product within a certain number of days
ii. If he does not return it and instead keeps it, the purchaser agrees to the seller’s contract
terms
iii. There is a big split in the thinking about the viability of shrinkwrap contracts based on the
timing of when the contract was formed
1. Brower v. Gateway: holds that the shrinkwrap terms are an offer by the company
that the customer (the offeree) accepts by keeping the product
i. There was no pre-existing offer between Gateway and purchaser
ii. The only offer was the shrinkwrap terms, and the provision for dispute
resolution in Chicago under ICC rules is just a provision of the sole
contract that the consumers accepted by keeping the computer beyond 30
days
iii. This is the Easterbrook reasoning seen in Hill and ProCD
iv. Policy basis: practical business considerations (efficiency and social
desirability) support allowing vendors to enclose the full legal terms with
their products – customers would not want to hear sales reps read them
four pages of T&C’s over the phone
v. Possibly some issues with adhesion (stemming from unequal bargaining
power) here but court rejects this; does say the argument about
unconscionability has some legitimacy because of the obscure arbitration
provision (ICC in Chicago)
vi. Adhesion: leaves a party in a take it or leave it situation. No choice but to
accept that term
vii. NOTE ON UNCONSCIONAB ILITY: generally courts require both
substantive and procedural unconscionability for a claim to succeed; but
sometimes, as is the case here, a contract that is so substantively
unconscionable will be found unconscionable even if there was nothing
procedurally unconscionable about it
1. Procedural unconscionability: when the actual bargaining or
negotiation process is patently unfair
1. EX: Oppressive clauses tucked away in the boilerplate,
high-pressure sales people misleading illiterate
consumers; oligopolistic industries offer the same unfair
adhesion type contracts so that no bargaining is possible
2. Substantive unconscionability: when the substance of the actual
terms of the contract unreasonably favor one party

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1. EX: Excessive price; or unfair modification of either the

seller’s or buyer’s remedies
viii.HYPO: what if the customer was the offeror and Gateway wanted their
shrinkwrap to be a counteroffer? They would have had to make their
“acceptance” expressly conditional on the consumer accepting the terms of
the shrinkwrap, and even then it seems like the terms would not be
accepted just by the customer’s silence and inaction in not sending back
the computer
2. Klocek: holds that the “natural understanding” of the situation is that there is
already an oral agreement between buyer and seller before the product is shipped
(offer comes from customer’s order, acceptance comes from Gateway’s shipping
of the computer);
i. so any shrinkwrap terms are simply modifications to an existing agreement
and subject to § 2-207 analysis
ii. this would mean that the shrinkwrap terms are material alterations and
therefore not included in the contract w/o express assent on the part of the
purchaser
iii. Policy basis: the idea that the customer accepts a contract just by keeping
the product strains the idea of mutual assent
b. Cickwrap: purchaser orders a product over the internet but before placing the order must click an
“I agree” box that demonstrates the purchaser’s assent to the seller’s terms (more formalized than
shrinkwrap)
i. This is typically an easier situation to assess: by requiring a click on an “I agree” box, you
ensure that the customer has reasonable notice of contract terms and has done an
affirmative act of agreement by clicking the box to show assent
ii. Some argument about coercion or unfairness, but this has generally not been accepted by
the courts
iii. Regulation of these transactions falls outside of contract formation
iv. Capsie (note case): Court ruled that users had reasonable notice of clause because they
could review the terms of the contract online. (terms were not unfairly presented or
designed to conceal)
c. Browsewrap: in the typical browsewrap transaction, a website has a statement providing the
“terms of use” for its site that is reached by clicking a button that says “Terms & Conditions”
i. But unlike a clickwrap scenario, browsewrap requires no outward manifestation of assent
from the consumer and does not require or even prompt the viewer to scroll through or
click any “I agree” button
i. Register.com v. Verio: (Applying contract doctrine to a situation that
doesn’t wholly feel like a contract)
ii. Internet domain name registrar satisfied likelihood of
prevailing on merits requirement for preliminary injunction
prohibiting competitor from obtaining access to registrar's
customer list information regarding new registrants, in
violation of Computer Fraud and Abuse Act; by showing
that competitor, who had bulk license allowing access to
list of all registrants, obtained access to new registrants

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through unauthorized use of “search robots,” which

extracted names of new registrants.
iii. Unconventional form of consideration, assenting to being bound not
necessarily to use the information
iv. In these types of cases, the plaintiff seems to matter, they do not typically
involve consumers and maybe this is why it is treated differently
v. A lot of the cases turns upon conceptions in property law, if you have a no
trespass sign up you don’t normally think of it as an agree but just a
notification of a pre-existing property right, but its not clear if cases are
like no trespassing signs
vi. Terms are of importance, arbitration has substantial effect but not
necessarily unreasonable
ii. See Problem 2-8

XI. Promissory Estoppel: Liability in the Absence of a Contract

a. Earlier we saw that promissory estoppel/reliance was used to keep offers open by preventing the
revocation of an offer when the offeree has already relied on it
b. But here, instead of trying to permit the enforcement of the actual contract, we are just trying to
compensate the plaintiff for the effort/expense they have already undertaken
c. Using § 90 of the 2nd Rest, P.E. allows for protection for the plaintiff despite the absence of
consideration – in this regard, it is said to serve as a “substitute for consideration”
d. Equity and fairness really are the driving forces behind the promissory estoppel theory – when the
formalisms of contract are used to leave people hanging, something should be done to remedy the
situation
i. Kirksey v. Kirksey: Woman’s brother in law convinces her to move out of her place and
onto his land. She settles onto the land and then the brother kicks her out
1. Issue: You distinguish Condition on a gratuitous promise from consideration by
looking to see if the promisor received a benefit.
2. Bargained for exchange test: Did the landlord seek to have the tenant move in
exchange for his promise
3. Hard to find contracts within a family because of things like companionship and
emotional reasons
4. Property question: If he invited her down and said he had more land than he could
tend would that mean he expected her to work? No, not in this case. She was
invited down so he could secure the land that he wanted to own. (Possibility that
the settler has a priority on the land and could get it for a good price and by her
being on the land it could help his chance of acquiring the land. Turns out she was
going to establish a rival claim for herself which made him want to kick her out)
ii. Wright v. Newman: mother wanted guy to pay child support for her kid even though he
was not the biological father; when child was born, dude put his name on the birth
certificate and gave the kid his last name; but hadn’t paid any child support since the kid
was three and didn’t see the child for any reason between ages of 3 and 8
1. For a case seeking to enforce a promise between family members, look for both
classical contract terms (which we don’t have here) and PE.
2. ISSUE: Georgia has codified P.E. as a statute, so the only question is whether all
of the elements of a PE claim are present to allow recovery by the woman
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3. Promise? Yes. Court says that by putting his name on the birth certificate and
giving the kid his last name, the dude made an implied promise to support the kid
4. Reasonable expectation of reliance? Yes. Doesn’t matter what the dude claims
he expected; the only question is what should be reasonably expected and it is
logical that the mother would rely on this implied promise
5. Reliance on the promise? Majority: Yes, because in reliance on the promise of
the dude, mother refrained from seeking out payments from the biological dad of
the kid, so she relied on dude’s promise; Dissent: No way, dude hadn’t paid any
child support in seven years so she clearly wasn’t relying on him
6. Reliance to her detriment? Majority: Yes, by not seeking out child support from
biological dad right away, mom is now in a tough spot since common-law dad isn’t
paying; Dissent: there is no evidence that there would be an undue burden on
woman in tracking down and recovering payment from the biological father
7. Injustice only avoidable by enforcing the promise? Yes, enforcing the promise
is necessary because the other option would be to make the woman go through a
costly legal battle to get the biological father to pay the child support and this
would end up penalizing the mother
8. HOLDING: The promise should be enforced under GA’s PE law
e. Charitable Gifts and Promissory Estoppel
i. Classical contract principles generally cannot be applied to enforce a charitable gift or
promise because of a lack of bargained-for exchange or consideration
ii. § 90(2): “A charitable subscription . . . is binding under Subsection (1) without proof that
the promise induced action or forbearance.”
1. Obviously this makes enforcement easier because it requires NEITHER
consideration NOR reliance in order to enforce a charitable promise
2. Public policy rationale for § 90(2): “charitable subscriptions often serve the
public interest by making possible projects which otherwise could never come
about,” so we should be more apt to enforce them
3. BUT only one state has adopted § 90(2) (Iowa) and many other states have
rejected its leniency outright (as Mass. does in the King case: “we are not
persuaded that we should…adopt a policy favoring charities at the expense of the
law of contracts”)
iii. Nevertheless, courts have still been generally sympathetic towards charitable organization
seeking to have promises enforced and have enforced such promises using EITHER
classical contract terms (Allegheny) OR promissory estoppel (King v. Trustees of BU)
iv. Swaine’s advice: because of these policy concerns, whenever you see a case of a
charitable donation or family promise, you should look for both Promissory Estoppel and
Bargain for Exchange supporting a classical contract
1. If possible, better to get the contract because it is a BIGGER PAYOFF (enforces
the entire contract instead of just compensating for reliance)
2. Also a classical contract claims have a HIGHER SUCCESS RATE than
promissory estoppel claims
v. King v. Trustees of Boston University: basically MLK promised some personal papers to
BU and there was a lot of confusion about whether it was a gratuitous gift and if so,
whether the promise could be enforced
1. No traditional bargained-for exchange here so no classical contract analysis
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2. BUT the court does say that it is reasonable to think that MLK made a promise
(“charitable subscription”) to give his papers to BU
3. ISSUE: whether BU furnished consideration for or relied on MLK’s promise.
4. Court finds that a bailor-bailee relationship was established here that allowed BU
to have the papers so long as they took “scrupulous care” of them
5. So in order to show reliance, BU would have to demonstrate some action beyond
mere “scrupulous care” – court rules that this was shown by indexing the papers,
providing trained staff, holding a convocation, etc.
6. In light of this reliance, the court holds that the principles of PE apply and make
the promise enforceable, so BU gets to keep the papers
7. NOTE: Even though PE usually does not enforce contracts and instead only
provides compensation to the extent of reliance, the contract is enforced in this
case because of a twist of Mass. law.
vi. Allegheny case: woman pledged to give a shitload of money to a school and in return the
school said that it would memorialize her by naming a building after her; but then the
woman died and her estate refused to pay up; school sues for enforcement
1. Cardozo says that the promise should be enforced on the basis of a classical
contract theory of bargained-for exchange
2. Consideration that made the charitable offer binding was naming the building after
the woman; this is enough to created an enforceable contract
f. Promissory Estoppel in the Commercial Context
i. Initially, promissory estoppel was not applied to the commercial sphere with the exception
of employee benefit or pension cases
ii. However PE evolved over the years and now is frequently applied to a wide variety of
commercial promises
iii. Here we see that PE can be applied to enforce commercial promises even in the absence of
any consideration
iv. Katz v. Danny Dare: Katz was a long-time employee whose performance suffered after
being injured in a mugging; DD felt he was a liability and wanted him to retire so as an
incentive offered him a pension package, but Katz refused it; finally, after 13 months of
negotiations Katz accepted the lifetime pension plan and retired; Katz continued working
part-time though and so DD stopped paying the pension, arguing that it shouldn’t have to
keep paying him if he was well enough to work
1. ISSUE: Whether DD’s promise of pension payments is binding under the doctrine
of Promissory Estoppel even in the absence of consideration.
2. Promise? Yes, clearly.
3. Reasonably expected that Katz would rely? Again, yes – clearly.
4. Actual reliance? Again yes.
5. To the detriment of Katz? Yes – this is the main controversy in the case because
DD argued that Katz was about to be fired, so the fact that he now gets $13K in
pension instead of $0 had he been fired cannot be seen as detrimental reliance; but
court rejects this and says that whatever DD claims were its future intentions, Katz
voluntarily retired and voluntarily took a pay cut from $23K to $13K so this was a
detriment – and besides, even a “change in position” is sufficient to show reliance
6. Injustice? Yes. Katz was 72 years old and couldn’t work full-time to support
himself w/o the pension checks.
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7. HOLDING: DD’s promise to provide lifetime pension payments to Katz is

enforceable under a PE analysis because Katz clearly relied on the promise to his
detriment
v. Shoemaker v. Commonwealth Insurance: Shoemakers (S) obtained a mortgage from
Commonwealth (C) that required them to maintain insurance on the home; S allowed the
insurance policy to lapse, and C said that if they didn’t renew it, then C would acquire
insurance and S would have to pay them back; S instructed C to go ahead and get the
insurance; later the house burned down and had not insurance; S sues C under a theory of
PE
1. Court says that the fact that S was obligated to obtain insurance doesn’t preclude S
from brining a PE claim against C because S made a provision to obtain insurance
through C and there is nothing wrong with that
2. Elements of PE claim:
i. Promise by promisor which should be expected to induce reliance – Y
ii. Actual reliance – Yes, S claims that they relied on C’s promise to get
insurance so they made no other attempt to get it on their own
iii. Injustice – Yes, obvi
3. HOLDING: S’ PE claim should not have been dismissed and is at least strong
enough to be put before a fact finder to be tried on its merits
4. **NOTE: apparently Mrs. S said that she told C to get insurance for her because
she “was in no financial situation to do so on my own.” The court doesn’t focus
on this quote, but it could be argued that this admission undermines S’ reliance on
C’s promise – the whole idea of detrimental reliance is that S would have done
something different if it weren’t for the C’s promise – BUT this makes it seem like
she couldn’t have done anything different, so it makes her reliance a little less clear

XII. Restitution: Liability for Benefits Received

a. AKA implied in law contract, quasi contract, quantum meruit (value of services received),
quantum valeat (value of goods received), etc.
b. Completely different analysis from classical contracts – all about unjust enrichment – i.e. “a
person who has been unjustly enriched at the expense of another is required to make restitution to
the other” (§ 1 Rest. of Rest)
c. Two types of restitution: restitution in the absence of a promise (pure restitution) and promissory
restitution (an amalgam of contract and restitution principles)
d. Restitution w/o a Promise: when one party is unjustly enriched by receiving a benefit from
another and therefore has an obligation to pay for that benefit even though they never made a
promise to do so (as long as the actor conferring the benefit was acting unofficiously and with an
intention to charge)
i. Implied in fact v. Implied in law contract:
1. implied in fact is a “real contract” with all of the characteristics of a classical
contract (mutual assent & consideration is not expressly stated but is instead
inferred based on conduct)
2. implied in law is NOT a contract at all; more of an obligation imposed by law in
the absence of mutual assent in order to counteract unjust enrichment
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ii. MAIN QUESTIONS: Were the actions officious? Was there an intent to charge? Was
there a benefit? Were services reasonably necessary? Was consent possible?
iii. A good example of non-promissory restitution is the provision of emergency services
iv. § 116 of Rest. of Rest: “A person who has supplied things or services to another, although
acting without the other’s knowledge or consent, is entitled to restitution therefor from the
other if:
1. (a): he acted unofficiously and with an intent to charge, and
2. (b): the things or services were necessary to prevent the other from suffering
serious bodily harm or pain, and
3. (c): the person supplying them had no reason to know that the other would not
consent to receiving them, if mentally competent, and
4. (d): it was impossible for the other to give consent or, because of extreme youth or
mental impairment, the other’s consent would have been immaterial”
5. Terms:
i. Officious action: action that interferes with someone’s choices and forces
someone to pay for a benefit that they never wanted
ii. Intent to charge: this would be the difference between a doctor and
“Samaritan Swaine”
1. If a doctor assists an accident victim, he is assumed to be
responding to the victim’s request and with an intent to charge and
can therefore recover for the fair value of his professional services
2. BUT if Samaritan Swaine helps an accident victim as a favor,
v. Credit Bureau v. Pelo: Pelo (P) was involuntarily committed to a hospital after threatening
suicide; while there, P refused to sign payment form until the nurse told him they couldn’t
guarantee the safety of his possessions unless he signed it; after a week, he was ruled fit to
leave the hospital; refused to pay charges though; hospital (through the credit bureau) sued
his ass
1. Court decides the case based on restitution principles using § 116 of Rest or Rest
(see above)
2. Actions by hospital were (2) necessary to save Pelo’s life (he was bipolar and
about to kill himself), were (1) not done officiously, were (1) done with an
intention to charge, and (4) because Pelo was mentally incompetent it was
impossible for him to give consent so the hospital was justified in going ahead w/o
his consent
3. Basically says that P must pay because all of the elements of § 116 are satisfied so
there is an implied in law contract
vi. Watts v. Watts: common law marriage that lasted 12 years and produced two kids; wife
quit her career as nurse on husband’s request to raise kids and help w/ his business; they
split up and wife wants some of his dough; sues his ass
1. Bargained-for exchange contract? Yes.
i. Husband’s words and conduct clearly constituted an offer to share all of
their assets equally, and wife’s conduct shows her acceptance to the offer;
ii. Consideration is the years of raising the kids by the wife and also the time
she spent working part-time at husband’s business
iii. Although noting was written down or formally expressed, the court says
this is an example of an implied in fact contract
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2. Restitution/Unjust Enrichment? Yes.

i. Husband accepted and retained the benefit of services wife provided
knowing that she expected to share equally in the wealth accumulated
during their relationship, so it would be unfair for him to retain ALL of
their assets
ii. Requirements for restitution:
1. Benefit conferred on D by P? Yes, wife conferred benefits on
husband by raising kids, keeping house, working for him, etc
2. Knowledge of benefit by D? Clearly, husband knew that wife did
all of those things, even if he didn’t appreciate it.
3. Acceptance or retention of benefit by D under circumstances
making it inequitable for D to retain everything? Yes.
e. Promissory Restitution – Moral Obligation: allows enforcement of an express promise to pay for
benefits already received
i. We know that this normally cannot be enforced through a classical contract theory since
past acts are not consideration because there is no bargained-for exchange (Plowman)
ii. But promissory restitution also differs from pure restitution in that it is based on the
assent/promise of the person subject to liability
iii. So Promissory Restitution is like a middle ground between classical contract theory and
pure restitution, but how does it work??
iv. Two ways in which a promise can be enforced under Promissory Restitution:
1. Promise based on a pre-existing legal obligation
2. Promise based on a material benefit received
v. § 82 of 2nd Rest: “A promise to pay all or part of an antecedent … indebtedness owed by
the promisor is binding if the indebtedness…would still be enforceable except for the
effect of a statute of limitations”
1. So even if the SoL has run on your debt, if you nevertheless make a promise to pay
it back then that promise is binding even in the absence of consideration for that
promise
vi. § 83: Same as §82, except has to do with debts that have been discharged because of a
bankruptcy filing.
vii. Mills v. Wyman: Wyman’s son, Levi, gets sick and Mills takes him in and cares for him
out of the goodness of his heart; sends a letter to Wyman to let him know about the
situation; Wyman writes back after Levi has died to say that he will repay Mills for the
expenses of care, but he never does; Mills sues
1. Applying only a classical theory, the court says Mills cannot recover because there
was no consideration for Wyman’s promise since all of the expenses had been
incurred and duties had been performed by the time he got Wyman’s letter, and
past acts can’t be consideration under a BFE theory
2. Court also says that a moral obligation alone is not enough to enforce a promise
unless it is combined with a pre-existing legal obligation which for some reason
has become inoperative as a matter of law (like in §§ 82, 83)
3. Ex: if you owed a debt that expired because of a statute of limitations, if you then
promise to repay the debt then that moral obligation is enforceable (§ 82)

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4. HOLDING: So even if an express promise is made to repay, if that promise comes

after the benefit has already been provided then it cannot succeed under a classical
contract theory unless there was a pre-existing legal duty
viii. Webb v. McGowin: Webb (W) saves the life of McGowin (M) by falling from the top floor
of a lumber mill in order to prevent M from being hit by a block of wood; W is seriously
injured though and cannot work anymore, so M promises to pay him $15 per week for the
rest of his life; but then M dies and his estate discontinues payment
1. Initially this seems to be a case where the promise won’t be enforced because it
was made in recognition of past performance so there’s no consideration
2. No pre-existing legal duty to make this moral obligation enforceable either
3. BUT the court decides this case based on the material benefit rule:
i. M received a benefit from W
ii. M promised to pay W money in recognition of the benefit conferred on
him by W
iii. Promise of $15 per week was not disproportionate to the value of the
benefit received (his life being saved)
4. HOLDING: “Where the promisee preserves the property or life of the promisor,
though done without his request, it is sufficient consideration for the promisor’s
subsequent agreement to pay for the service, because of the material benefit
received”
5. So although Mills v. Wyman says that a moral obligation alone is not enough to
make a promise enforceable unless accompanied by a pre-existing legal
obligation, here the court says that a moral obligation will also be sufficient to
enforce a promise if it is accompanied by a material benefit to the promisor
6. NOTA BENE: this decision was rendered before the promulgation of the 2nd Rest.
and § 86; had the court followed the language of § 86, Webb might not have the
promise enforced because there could be a strong argument that his action in
saving McGowin’s life was gratuitous and therefore McGowin was not unjustly
enriched under § 86(2)(a)
7. NOTA BENE: for this same reason, Webb would be unlikely to recover under
pure restitution principles because a gratuitous action done without an intention to
charge does not unjustly enrich the party upon whom the benefit is conferred
ix. § 86 – Material Benefit Rule:
1. (1) “A promise made in recognition of a benefit previously received by the
promisor from the promisee is binding to the extent necessary to prevent injustice”
2. (2) But promise is NOT binding if the promisee conferred the original benefit on
the promisor as a gift or for other reasons the promisor was not unjustly enriched;
OR the value of the promise is disproportionate to the reasonable value of the
benefit conferred on the promisor
3. IN OTHER WORDS: If a person receives a material benefit from another, other
than gratuitously, a subsequent promise to compensate the person for rendering
such benefit is enforceable as long as the promise is not excessive.
4. FULLER: a moral obligation (arising from a benefit) PLUS a promise to pay in
recognition of that benefit is sufficient to be binding (one-half plus one-half equals
one)
5. POSNER: says this approach is paternalistic
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x. EXAMPLE: D mows C’s lawn while C is on vacation and then asks C to pay her
whatever C thinks the service is worth. Although C never requested the service, she feels
cornered and promises to pay D $10 next week. But then C changes her mind and decides
NOT to pay. Is C’s promise enforceable, or should the promise be treated as
gratuitous/unenforceable?
1. Probably not enforceable
i. C has received a benefit and her promise is in recognition of that
previously received benefit
ii. Further the $10 promise seems to be a proportional/reasonable price for
the service
iii. BUT, § 86(2) says that if the promisor was not unjustly enriched, then the
promise is not binding, even if it was made in recognition of a material
benefit already received
1. In this case, C cannot be said to be unjustly enriched because she
never requested the service and instead is just an imposed-upon
promisor who is better understood as being victimized by D’s
high-pressure sales tactics than being unjustly enriched
f. See Problem 3-2

XIII. Statute of Frauds

a. MAIN QUESTION: When must a contract be in writing in order to be enforced?
i. If the agreement falls within the SoF and it is not in writing, then it will not be enforceable
unless there is an applicable exception.
ii. BUT whether or not the contract falls within the SoF then it still must meet all of the
requirements for a contract (offer, acceptance, and consideration)
iii. SO satisfying the SoF doesn’t necessarily make the contract enforceable – still need the
other contractual requirements
1. But NOT satisfying the SoF will usually make the contract unenforceable unless
there is an exception
2. So it is a usually necessary, but not sufficient, condition
b. Policy bases of the Statute of Frauds:
i. Discourage the enforcement of spurious or untruthful claims
ii. Encourage the resolution of potential differences before agreement
c. Three questions of a SoF analysis:
i. Step 1: Does the contract at issue fall within the SoF so that a written memorandum of
agreement is required?
1. If yes, then proceed to step 2.
2. If no, then analysis stops here – there is no need for contract to be in writing.
ii. Step 2: Is the statute of frauds “satisfied”? That is, is there some sort of written statement
(“some memorandum or note”) sufficient to meet the statute’s requirements?
1. If yes, then analysis stops here and contract is enforceable
2. If no, proceed to step 3.
iii. Step 3: Are there other factors in the case, such as performance or reliance by the plaintiff,
which might invoke an exception to the statutory bar?
1. If yes, then the contract is still enforceable despite the lack of writing.
2. If no, then the statute of frauds will bar enforcement of the contract.
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d. Statue of Frauds in common law

i. § 110 – Classes of Contracts Covered by SoF: (five possibilities)
1. (a): Executor-Administrator provision - if an executor promises to personally
pay a debt owed by the estate then the promise must be in writing
2. (b): Suretyship provision – similar to the exec/admin provision; if someone says,
“If Swaine doesn’t pay, then I will,” then that promise must be in writing
3. (c): Marriage provision – only relates to non-mutual promises to marry
4. (d): Land contract provision – an agreement for the sale of real property must be
in writing
5. (e): One year provision – contracts that absolutely will last longer than one year
from the time of agreement must be in writing
i. So you look to see if the contract precludes the possibility performance
being completed in less than one year; if performance of the contract in
less than one year is possible, even if unlikely, then the contract does not
have to be in writing
ii. So generally look for a contract that states that it is for two years or
something
iii. NOTE: even if a contract states that someone may be terminated within a
year for poor performance, if the contract still provides for more than a
year then it is subject to the statute of frauds analysis
ii. Memo requirements:
1. § 131 – General Requirements of a Memo: Generally, a memo can be any
writing, signed by or on behalf of the party to be charged, which:
i. (a): reasonably identifies the subject matter of the contract,
ii. (b): is sufficient to indicate that a contract has been made between the
parties or offered by the signer to the other party, and
iii. (c): states with reasonable certainty the essential terms of the unperformed
premises in the contract.
2. § 132 – Several Writings: “The memo may consist of several writings if one of
the writings is signed and the writings in the circumstances clearly indicate that
they relate to the same transaction.”
i. Either expressly refers to the other writings; or
ii. Refer to the same subject matter or transaction
3. § 133 – Memo not made as such: Except in marriages, “the SoF may be satisfied
by a signed writing not made as a memorandum of a contract”
i. **Still must relate to the same transaction though**
ii. EX: Informal letter to a third person, minutes from a meeting, entry in a
diary, communication to or from an agent of the party to be charged
4. § 134 – Signature: “Any symbol made or adopted with an intention, actual or
apparent, to authenticate the writing as that of the signer”
i. REMEMBER that the memo must be signed by the party to be charged
(i.e. the party who is dragging their feet about not enforcing the contract)
iii. Crabtree v. Elizabeth Arden Sales Corp: big drama about whether Crabtree’s contract was
sufficient to satisfy the SoF and allow him to get his raise; the problem was that there were
three different writings, two which listed the terms of the contract but was not signed, and
two that referred to the contract but were signed
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1. Court holds that because the writings refer to the same transaction they may be
read together so as to constitute a memo that is sufficient to satisfy the SoF
2. This is the “subject matter connection” test
3. Parol (oral) evidence can be introduced to support the connection between the
writings and further demonstrate the expression of assent (i.e. acquiescence) by the
defendant to the unsigned document (allowed into evidence to fill in the blanks of
the surrounding circumstances)
i. It seems that “acquiescence” can be demonstrated by conduct alone
4. So the contract is enforceable here under the SoF
5. If there were no payroll documents would Crabtree have lost?
6. BUT if Crabtree were the one trying to back out and Arden was seeking
enforcement of the contract, it couldn’t be enforced by the court because the
writings must be signed by the party to be charged and Crabtree didn’t sign
iv. § 139 – Enforcement by Virtue of Reliance: very similar to § 90’s account of P.E. except
there is two big differences:
1. Similarities to § 90: need (a) a promise, (b) promisor should reasonably expect that
promise will be relied upon, (c) actual action in reliance upon the promise by the
promisee, and (d) injustice can only be avoided by enforcing the promise.
2. Differences from § 90: imposes a heightened standard of proof than § 90
i. § 139(2)(b) says that the reliance must be of a “definite and substantial
character”
ii. § 139(2)(c) says that you need “clear and convincing evidence” of an
agreement for a promissory estoppel exception to the SoF
iii. This is a slightly higher standard than is required for §90 which makes no
“clear and convincing” evidentiary requirement
iv. SO theoretically you could have PE claim that satisfies the standard of
§ 90 but still fails to override the SoF under § 139
***NOTE: Many, but NOT ALL, jurisdictions have adopted § 139. So on the exam, say something like,
“Assuming this is a jurisdiction that has adopted § 139…”***
Alaska Democratic Party v. Rice: Rice (R) gave up her job in Maryland and moved to
Alaska to take over as executive director of the AK Democratic Party on the basis of an
oral offer from the incoming party chair; no written contract was ever entered into though;
after assuring R that the job was hers, the new chairman then told her she couldn’t have the
job and R was left out in the cold, literally; R sued
1. ISSUE: whether the doctrine of promissory estoppel can be invoked to enforce an
oral contract that falls within the Statute of Frauds, and if so, whether enough
evidence was provided to defeat the defendant’s motion for summary judgment
2. HOLDING: in light of the policy bases for both P.E. and SoF, it makes sense to
apply § 139 to the SoF to permit the enforcement of oral contracts on which the
plaintiff has substantially and reasonably relied notwithstanding the SoF
3. Because the contract was for two years, it fell within the SoF (time is based on
when the contract is made not really how long it’s for.)
4. Because it was an oral contract, the SoF was not satisfied
5. BUT court says that this case is an exception to the SoF rule because the
Promissory Estoppel provision of § 139 allows for enforcement of contracts when
there has been reasonable reliance even if the contract was not written
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6. Here the court says that there is clear and convincing evidence of an agreement
and reliance of a definite and substantial character (she quit job and moved)
7. There was evidence of the promise itself (theory seems to be that the reliance
evidenced the promise because its unlikely that she would have quit her position
and moved to Alaska had it not been for the existence of a promise (other side
would argue that she was just returning to where she was from) (could also say that
it doesn’t refer to the clear and definite terms of the promise)
8. Awarded damages on PE claim, SOF doesn’t only apply to contracts but also to
promises.
9. You may have a promise that looks enforceable under § 90 but fails to meet the
requirements of § 139 because there’s no writing to satisfy the SOF. So be careful
when reviewing PE for promises and be sure to apply § 139 test. Also § 129 refers
to land contracts where person is seeking performance not damages.
10.**This case shows that the SoF can be applied not only to classical contracts,
but also to P.E. and Promissory Restitution claims as well**
e. Statute of Frauds under the UCC
i. § 2-201(1): “A contract for the sale of goods for the price of $500 or more is not
enforceable unless there is some writing sufficient to indicate that a contract for sale has
been made between the parties and signed by the party against whom enforcement is
sought or by his authorized agent. A writing is not insufficient because it omits or
incorrectly states a term agreed upon but the contract is not enforceable beyond the
quantity of goods shown in the writing.”
1. So the three absolute necessities for the memo of an agreement for a sale of $500
or more are as follows: must show a contract for the sale of goods, must be signed
by the correct party, must have a quantity
ii. Three main differences from SoF under Common Law
1. Instead of the five categories falling under the SoF at common law, the only
requirements for a contract to be invoke the SoF under the UCC is that it be for the
sale of goods with a price of $500 or more
2. Common law requires that the contract/offer state all of the essential terms, but
under the UCC SoF you don’t need all of the terms (as long as you have quantity)
3. There are some exceptions set out in the UCC that don’t really have an equivalent
in common law
iii. Exceptions to SoF under UCC:
1. § 2-201(3)(a) - Specially Manufactured Goods exception: if you have already
started making goods specially for a certain buyer and the goods are not ordinarily
suitable for sale to others, this is sufficient evidence that a contract exists despite a
lack of writing and so is an exception to the SoF
2. § 2-201(3)(b) – Admissions exception: if a party admits in a pleading or
otherwise in court that there is a contract then this is sufficient to show that there
was a contract and constitutes an exception to the SoF
3. § 2-201(3)(c) – Part Performance exception: if either the payment has been
received and accepted OR the goods have been received and accepted, then this
will constitute an exception to the SoF
i. Buffaloe v. Hart: here the court finds that under the UCC the SoF would
normally bar enforcement of the oral contract to sell tobacco barns, BUT
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because Buffaloe delivered a check to Hart as payment and Hart kept the
check for four days, that constitutes “receipt and acceptance” under §
2-201(3)(c) and is an exception to the SoF
4. § 2-201(2) – Merchant Confirmation exception: usually happens when an oral
contract is made and one merchant later sends a written letter as confirmation
within a reasonable time of the agreement (satisfies SOF even though it is not
signed by the party who receives it)
i. Must involve two merchants (experienced in dealing with business forms
not particular to a specific field)
ii. Letter must be sufficient against the sender – i.e. must show the existence
of a contract, be signed by the sender, and show a quantity of goods
iii. Letter must be sent in a reasonable amount of time
iv. Letter must be received by another party who has reason to know of its
contents
v. Receiving party has 10 days to object; if no objection is made then SoF is
considered to be satisfied
1. CAUTION: sending an objection to a confirmation letter is a
good idea if you are sure that the UCC applies; BUT if the
common law might apply, then be careful because your objection
letter (which you presumably sign) might be combined with the
first confirmation letter to form a sufficient memo of agreement
vi. NOTA BENE: The M.C. exception to the SoF does not mean that the
contract will necessarily be enforceable; only means that the defendant
cannot raise an SoF defense because the merchant confirmation exception
has been established; so the buyer will be unable to raise the SoF defense,
but he can still argue to the trier of fact that the oral conversation did not
result in a contract
1. So once you establish the merchant confirmation exception,
you still have work to do
2. Next look to see if the regular principles of a contract are
present
vii. NOTA BENE: even if a confirmation letter does not explicitly state that it
is confirming an earlier oral agreement, it may still satisfy the merchant
confirmation exception (Bazak)
viii.RATIONALE for merchant confirmation exception: merchants tend to
have the business sophistication and capability to retaliate/object to
fraudulent confirmatory memos, so there is less danger of a fraudulent
agreement getting past the SoF
5. Promissory Estoppel and the UCC: courts are split as to whether Promissory
Estoppel applies to UCC transactions
i. The majority view is that P.E. CAN operate as an exception to § 2-201 by
virtue of § 1-103 (which says that principles of law and equity supplement
the UCC unless specifically displaced by UCC provisions)
ii. BUT a strong minority says that the exceptions expressly listed in § 2-201
displace any common law exceptions like P.E.
iv. Analytical Steps for a UCC SoF Problem:
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1. Step 1: Is the contract within the UCC SoF?

i. For the sale of goods
ii. $500 or more
2. Step 2: Is the SoF satisfied by a sufficient writing?
i. Similar to common law here, except that the UCC except that the UCC
requires the demonstration of a made contract and not just an offer
3. Step 3: Are there any exceptions to the UCC SoF?
i. This is the main area of difference between UCC and common law
f. NO STATUTE OF FRAUDS UNDER THE CISG
g. Policy Arguments concerning the Statute of Frauds
i. FOR SoF:
1. Encourages sound business practice
2. Prevents fraudulent contracts from being enforced
ii. AGAINST SoF:
1. Because of its myriad exceptions, the SoF might breed more confusion then it does
afford protection
2. Potentially allows legitimate agreements to go unenforced since people make oral
agreements all of the time

XIV. Principles of Interpretation

a. Even when parties maintain that there is a contract and have initially agreed on that contract’s
language, disagreements may later arise about the meaning that should be attached to those
manifestations of agreement.
b. This is where the principles of interpretation become important
c. PLAIN LANGUAGE:
d. INTRINSIC INTENT:
e. EXTRINSIC INTENT:
f. POLICY FACTORS:
i. Noscitur a sociis: know a word by its associates; “a word is known by the
company it keeps”;
1. Ex. if a contract refers to “jerseys, spikes, baseballs, and bats”
then “bats” probably means Louisville sluggers and not winged
rodents
ii. Ejusdem generis:
- Ex. If we say “KFC, Roy Rogers, Popeye’s and other fine dining establishments”
then “Chick-Fil-A” would probably be considered a “fine dining establishment”
also
1. Expressio unius exclusion alterius: if one or more specific terms
are listed, without any general terms, other items not
enumerated are not included
iii.

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