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Identify the Offer

Sale of goods UCC Chart


A clear and definite promise with manifestation of intent to be bound was communicated to an offeree

Unilateral Contract
Assume bilateral

Acceptance only by complete performance Acceptance by return promise


Acceptance by performance or silence, only if that was their custom/was specified in offer.

No manifestation of intent to be bound An Ad

Was the acceptance confined to the manner specified in the offer?

Unclear or indefinite terms

An offer was made.

Bilateral Contract

Was there Acceptance?


Uncle ar terms are not substa ntial

Uncle ar terms are substa ntial

YES. NO.

No Contract formed from this offer or acceptance. Find other facts and start again, or alternatives to Contract formation. Reliance/Restitution
Note: The benefit or detriment cannot be: -promise to do something they are already bound to do. -promise to refrain to do something they have no right to do.

K
formation
bargained for exchange

counter-offer?
Use BoF chart

Neither. Mailbox Rule:

Was the acceptance timely?

NO Acceptance was valid.

Was there Consideration?

YES.

Mirror Image of Offer?

Acceptance is valid the moment it is communicated to the offeror, unless a rejection was received first.

Within a reasonable amount of time Was the offer rescinded before acceptance received? NO.

Benefit to the promisor, detriment to the promisee

YES.

Bargained for exchange?


NO.
Gift; Illusory promise; Past consideration

Unilateral: Irrevocable if offeree begins performance--> an option contract is then formed for a reasonable amount of time. R2d 45 No Need; or Valid writing, that includes:
-Signature (of party to be charged) -Recognition of an agreement -Key terms. NO. Part-performance that unequivocally proves the contract

YES.

alternatives to consideration
Promissory Restitution or Reliance see other page

one thing, for another


Consideration was valid.

YES.

Contract formed!
No K Formed, try alternatives

NO.

Charitable Subscription?

YES.

Need Statute of Frauds? (MYLEGS) see page 2

NO.

SV fall LME 2012

Consideration was invalid.

Consideration was valid.

Was there Promissory Restitution?


Promise for a benefit received? NO.

Need Statute of Frauds? (MYLEGS) see page 2

YES.

Was it intended to be a gift?


NO.

Marriage Year, or more Land sale Executor Goods sale>$500 Surety

VALID WRITING(S)? multiple writings may be combined as one to satisfy the SoF, but only if they are signed by the promisor and/or the writing that is signed by the promisor explicitly references their agreement and/or a previous writing by the promisee.

Promise disproportionate to the benefit received?


NO.

YES.

END.
no promissory restitution

Does justice require the promise to be enforced? Factors:


-unjust enrichment; -the promise made; -the benefit received YES.

NO.

The promise may be enforced.

SV fall LME 2012

R2d 90 Reliance Trigger: Consideration failed, BFE failed, or offer revocation issue.

Restitution
Trigger: When nothing else works; No K; No Consid;No SoF writing; Defense to K w/ capasity, fraud, or mistake

Was there a promise? YES. Should/did the promisor reasonably expect the promise to induce action by the promise? YES. NO. NO. Was there unjust enrichment? YES. Charitable subscription? NO. END. No Restitution.

Was the ! an officious intermeddler?

YES.

NO. NO. YES.

The promisee took action to his detriment.

END. No Reliance

YES.

NO.

" may be forced to pay damages.

The action was in reliance of the promise..

YES.

NO.

can injustice be avoided by enforcement of the promise? YES. NO.

Promise is binding, and will be enforced by court..

SV fall LME 2012

UCC: Sale of Goods

Trigger: Sale of Goods, AKA the transfer of the title for tangible, movable thing. Was it revoked before acceptance?

YES.

Was it revoked within the time the offeror said it would be open?

NO. YES.

YES.

Identify the Offer


Offer must be inviting acceptance

Did the offeror provide the offer would remain 'open' for a certain time?

NO. NO.
Was it revoked before acceptance?

Was the offer accepted by any reasonable means?

By Performance e.g. accepting delivery With non-material changes (&no


objection w/in 10 days)

Valid Offer & Acceptance.

YES. NO.
No Offer & Acceptance. Try new facts or move to alternatives

With material changes

Counter-offer

Consideration?
Benifit/Detriment + Bargained for?

NO.

YES.

Valid writing, that includes:


-Signature (of party to be charged) -Recognition of an agreement -Key terms. INC. #

Over $500? or any other MYLEG?


YES. NO

NO

YES.

from another flowchart. SV fall LME 2012

Modification after contract formation? No consideration necessary

Contract Formed!

Defenses
R2d 208 Unconscionability 2-302 Trigger: Inequality in bargaining process +Grossly unfair to one side. NEED BOTH procedural +Substantive Procedural Unconscionability Unequal Bargaining Power: -Age; Literacy; Lack of sophistication -Lack of legal council -Weak bargaining position
UCC

R2d 152-154

Mistake
Mistake of fact during K formation Bilateral
both parties were mistaken.

Trigger: Incorrect assumption (not fraud)

R2d 19-160

Misrepresentation
An Action to Conceal
Did the action prevent the other party from learning a fact Y E S .

Trigger: False statement/Omission/Concealment An Omission to disclose Was there a relation of trust between parties?
NO. YES. N O .

Unilateral
only 1 party mistaken, or only 1 party was affected by mistake.

A False Assertion
Did the assertion substantially contribute to the assent? NO. YES.

or
Error was made as to a basic assumption on which the K was made?
NO. YES.

Extreme Unfairness?
YES. NO.

Lack of Choice: -boilerplate form -difficult to understand

o r

Mistake made in good faith?


YES. NO.

Had a material effect on the exchange of performance?


more like barren cow than valuable jewel.

" knew previous statement made was wrong


NO. YES.

NO.

Intended to induce assent, while knowing falsity, or maybe falsity NO. YES.

YES.

NO.

Substantive Unconscionability

Factors: -overly harsh, or one sided; -"shocks the conscience"

YES.

Grave Injustice if court does not act?


YES. NO.

NO.

YES.

Adversely affected party did not bear the risk of mistake.


did not sign a contract, "as is". NO. YES.

" knew telling would correct a mistake as to a basic assumption of the K NO. YES.

Note: if NO and no arrow after... no misrep.

Was the misrepresentation justifiably relied upon? NO. YES.

Unconscionable contract/term= NOT ENFORCED NOT unconscionable

NO.

Relief!

No Relief!

" knew telling would correct a mistake as to a the content or effects of writing. NO. R2d 174-176 YES.

Relief!

Contract is Voidable!

Undue Influence
Trigger: unfair domination, or a relationship of trust.
Undue susceptibility may consist of total weakness of mind which leaves a person entirely without understanding. Or which destroys the capacity of a person to make a contract even though he is not totally incapacitated.

Duress
Trigger: A threat.

Non-Physical Threat
One Party makes a threat. NO YES The threat was improper NO YES Threat leaves victim with no reasonable alternative YES NO

A lessened capacity of the object to make a free contract


NO YES

Application of excessive strength by a dominant subject against a servient object


NO YES

Factors: a. Discussion of the transaction at an unusual place or inappropriate time b. Consummation of the transaction at an unusual place c. Insistent demand that the business be finished at once d. Extreme emphasis on untoward consequences of delay e. The use of multiple persuaders by the dominant side against a single party f. The absence of third party advisers to the servient party g. Statement that there is no time to consult financial advisors or attorneys. Voidable Contract!

Physical Threat

Economic Duress
One party must unscrupulously take advantage of another's economic necessities.
like totem marine

Void K

Voidable Contract!

SV fall LME 2012

SV fall LME 2012

(not mine)

PICJUR