Contracts Checklist

1. Was there a legally valid contract (or enforceable promise) formed? a. Offer and Acceptancei. Offer1. Intention to be bound2. Definiteness of Terms (i.e. lack of indefiniteness)3. Reasonable Person Standard (Objective Test): Would a reasonable person construe the offer as an offer? 4. Termination of Offersa. In Generalb. Lapse of Timec. Death or Incapacitationd. Revocationii. Acceptance1. In General2. Intention to be bound3. Timeliness: The Mailbox Rule4. Silence as Acceptance5. The “Battle of the Forms”a. Mirror Image Ruleb. Last Shot Rulec. UCC 2-207d. Statute of Fraudsb. Considerationi. Formality1. Functionsii. Bargained-For Exchange1. Forms2. Caveats3. Policy Considerationsiii. Benefit1. Past Consideration2. Performance with Expectation of Being Paid3. Moral Obligation4. Promisor Never Makes Promise?iv. Defective Consideration1. Restatement vs. UCC2. Adequacy of Consideration3. Unconscionability4. Contract Revisions and the Legal Duty Rulea. Good Faith Requirementb. Contract Rescission5. Mutuality of Obligation: “Illusory” Promises and Related Fairness Issues a. Illusory Promisesb. Binding Other Party to Performancec. “Reasonable” or “Best Efforts” Contracts: Implied Promises d. Subjective Conditions to be Satisfied Prior to Contract Formation i. Good Faith Requirementii. Limitations6. Freedom of Contract and Public Policya. Derivationb. Traditional Contract Principles vs. Other Societal Principles c. Substitutes for Considerationi. Reliance/Promissory Estoppel1. Differences with Consideration2. Promises Attached to Another Purely Gratuitous Promise3. “Justice” Requirements

2. What type of contract?a. Unilateral vs. Bilateralb. UCC vs. Common Law: Goods vs. Servicesc. Promissory Estoppel Contractd. Equitable Estoppel Contracte. Past Benefit Contractf. Option Contract

3. Contract Interpretation: What does a contract say?a. “Four Corners” Approach  Ordinary Meaning vs. Context b. The Parol Evidence Rulei. Williston Approach vs. Corbin Approachii. Integrated vs. Partially Integrated Agreementiii. Ambiguity/Inconsistent Termsiv. Scope of Agreementc. Allocating Risks in Instances of Mutual and Unilateral Mistakes d. Assent to Standardized Forms: True Assent? How does this affect contract interpretation? e. “Best Efforts” or “Reasonable Efforts” Contracts

4. Policing the Bargain: Can some or all of the contract be voided? a. Duressb. Unconscionabilityi. Procedural and Substantive Unconscionabilityc. Misrepresentationd. Non-Disclosuree. Statute of Fraudsf. Illusory Promisesg. Indefinitenessh. Illegality of Contract Purposei. Mistake

5. Performance and Breach: What constitutes performance, and what constitutes breach? Was there a breach? a. Conditions and the Duty to Performi. Express Conditionsii. Conditions vs. Promisesiii. Constructive (Implied) Conditions and the Order of Performance b. Justifications for Non-Performancei. Impossibility/Impracticability (Implied Excuse)ii. Frustration of Purpose (Implied Excuse)iii. U.C.C. Provisionsc. Unjustified Non-Performancei. Substantial Performanceii. Perfect Tender Rule

6. Damages and Remedies for Breach of Contracta. Expectation Measure of Damagesi. Rationales and Limitationsii. Limitations on Recovery of Expectation Damages1. Uncertain Damages2. Avoidable Damages3. Consequential Damagesb. Restitution Damagesc. Contractual Provision/Liquidated Damagesd. Specific Performance

7. Freedom of Contract8. UCC vs. Common Law/Restatement