Contracts Major Issues Checklist

I. Box I – Is there a K?
a. Offer, Acceptance, Consideration—magic moment—Not if
requires further assent—indefinite/illusory— statement of intent
—option contracts—UCC firm offer (no separate consideration for
option contract) —mailbox rule—termination/counter offer—
limitation on revocability because of reliance (subcontractors)—
which terms/communications constituted offer/acceptance –
nominal/sham –bi-/unilateral K
b. Acceptance—by promise—by performance (unilateral contracts)
—by conduct recognizing contract—UCC different addition terms
v. counteroffer
c. Misunderstanding—whose terms—contra preferendem
d. Consideration—bargain-exchange—v. condition—some moral
consideration—past consideration (material benefit rule)—
donative promise/charities—at will employment
II. Alternatives to consideration for granting a remedy/finding
a contract—promissory estoppel—pre-acceptance reliance on
offer—restitution (rescues, saving property)
a. Non-traditional contracts—relational contracts—battle of the
forms—additional terms—letters of intent—contracts in family
law—rolling Ks/shrink-wrap Ks
III. Box 2 – Breach - materiality
a. Statute of Frauds—writing—signed by charged party
b. Interpretation—objective—course of perf, course of dealing,
usage of trade—parol evidence—tell it to the judge—implied
terms—warranties(implied—merchantability & fitness, and
express)—good faith
c. Avoiding the agreement—duress—undue influence—adhesion
contracts—unconscionability—mistake—changed circumstances—
bad policy—efficient breach
d. Excuses—Bad circumsances(impracticability, impossibility,
frustration)—Bad Bargaining (coercion, duress, undue influence,
lying/concealment) –Bad Policy (illegal K, restraint of trade,
family protection)—Bad Bargain (unconsionability – procedural
or substantive, adhesion)—Bad Assumption (bi-, unilateral
mistake)
e. Modification—consideration or not? —often duress
IV. Box 3: Remedies—expectation damages—consequential/incidental
damages—reliance damages—restitution damages—specific
performance—liquidated damages—limits on foreseeability,
certainty, mitigation, causation –lost volume seller
V. Justifications for enforcing contract—economic efficiency—
sanctity of promises and K