Is there a promise?

Yes
Is the promise sufficienty definite to be considered
an "offer"? RST 33 and UCC 2-204(3) so there Did the other party:
can be mutual assent (Raffles v. Wickelhaus - -Receive a benefit
Peerless x2) -appreciate the benefit (have knowledge and use the benefit)
(Not definite enough - Hoffman v. Red Owl Stores -had an opportunity to reject but retained it
and Dixon v. Wells Fargo - promise to negotiate) -The law must intervene to prevent injustice
Is there a promise both parties intend to be legally
enforceable? (mutual intent - if subjectively meant
as a joke BUT objectively other party did not know No
that does not eliminate the offer (Lucy v. Zehmer) Was it a charitable
subscription or
marriage
settlement?

NO - NO
CONTRACT OR
Yes RESTITUTION
Is there a Promise +:
-Writing OR No
-Reliance (in some jurisdictions like MA) OR RST 90(1) was the reliance
-Moral Obligation (maybe, see below) OR Yes - Promissory Estoppel forseeable (Wright v. Newman -
under RST 90(2) (Allegheny no-biological dad child-support)
-Seal/writing College v. National and is enforcement necessary to
-Consideration (RST 77 Return promise OR an act other Chautauqua County) prevent injustice (Cohen v.
than a promise, or a forbearance (Hamer v. Sidway, even Cowles Media Co. - newspaper
if did not have the legal right to forbear mutual belief that promise broken)?
the right existed is sufficient (Dyer v. National By-Products, Yes - Quasi Contract formed (if it was a
Inc. - didn't sue foot cut off in exchange employment) or service then it is called quantum meruit, if
the creation modification or destruction of legal relations) for good then called quantum valabum)
and there is restitution
NOT SUFFICIENT: QUASI in Cotnam v. Wisdom - doctors
-Illusory Promise: RST 77 - Strong v. Sheffield but ok if provide services, Pyeatte v. Pyeatte -
there is a satisfaction clause Mattei v. Hopper No - please wife paid for school,
-Prior Acts: Feinberg v. Pfeiffer (unless element of moral try NO QUASI in Bailey v. West - lame
obligation - complicated and unclear standards between NO - no
Promissory Yes - Promissory Estoppel. horse (knew he may not be paid).
webb, and Harrington and Mills) promissory
Estoppel or Non-commerical actors: Callano v. Oakwood - shrubbery not
estoppel
Unjust restitution as "justice unjust and must go after original debtor
claim. Try
enrichment requires" Unjust
commercial actors: more enrichment
Yes likely to enforce (D&G Stout
Was it "bargained-for" (RST 71(2)? Use the mutual v. Bacardi - lost bargaining
inducement test (Kirksey v. Kirksey - offer of land was power got restitution but NOT
not to induce giving giving up of land, Barfield v. expectation damages)
Commerce Bank - can still get consideration even if what
is bargained for does not itself induce as long they are
doing it for a benefit (RST 81), must know of the
consideration at time of acceptance in order to have
induced (Broadnax v. Ledbetter - bounty hunter)

Assuming the consideration has more value than a

peppercorn no adequacy concerns normally
 was it bargained-for? Is there a promise?

No - Is
there
mutual
Yes obligation
?
Is the
contract
only No - unless a
acceptabl voidable
Yes - then this is a e by contract, no Yes - did you
Unilateral Contract performa contract formed rely on the offer
nce? (illusory promise prior to a
Was there full RST 77) you can revocation or
try Unjust possiby accept
performance and no enrichment or
"known" (either the offer?
Promissory Yes - contract cannot be
subjective or Estoppel No - offer can be revoked and
objective) revoked under RST 87(2) so the
no contract formed UNLESS offer must stay open and you
revocation*? there is a statute which conitnue to determine whther
prevents revocation, under there is accpetance. must only
No - Was No - no contract UCC 2-205 as Merchants or stay open for a reasonable
Yes - there partial formed . you can try common law prevents amount of time.
CONTRACT performance Unjust enrichment or revocation Does offer specify manner of
FORMED prior to a Promissory Estoppel acceptance?
revocation? Yes - were No - did you
No - what the means proceed as if a
Yes did you of contract had
Option contract do? acceptance formedw/o fully
created whereby the Partial or actually finalziing terms
offer cannot be complete required and the other
performanc Silence - not (Allied Steel
revoked but the usually unless party also
offeror's duty of e with and proceeded?
notice given meets standards Conveyors,
performance is under Section 69, (such as
in a Yes - did you accept Inc. v. Ford receiving
contingent on the
reasonable very rare
in that manner prior Motor Co.) Yes, See Chartno
regarding
offerree's completion determining terms and UCC
(RST 45) amount of to revocation? (if
time return promise 2-207 or last shot rule under
constitutes required, time of common law. If you DO NOT
acceptance Physical cormation is under want to bound except by the
manifestation mailbox terms proposed you need to
of intent to ruleotherwise must not perform (Does not apply
accept? notify within a to Rolling Contracts - they are
Yes - then reasonable amount seperate)
contract formed No - if revoked of time)
(Ever-tite and prior to physical
International Filter manifestation No, no
Co. v. Conroe (only accepted in contract
Gin, Ice &) and, your mind and formed
assuming notice did not leave Yes,
given in a your agency) contr No, no
reasonable then there was act contrac
amount of time, a no acceptance form t
contract exists (Corlies and Tift) ed formed
 Who are the Parties? (these can switch depending on negotiation)

Offeror Offeree

Is it an Offer?
-Offeror is Master
-locutionary/illocutionary evidence -perlocution
-Is it reasonably definite? -Does it create power to accept?
-Is it more than invite to negotiate? -can the offeree say "I accept" & able to do it
-are all the essential terms [mechanism] present (no more -Did Offeree Reject/Counter-offer?
neg)?

Offer

-Offeror Can Revoke before acceptance -Accept??

 Offer w Offeror
Terms

Acceptance = No expressed
k(offeror terms) Accept w
acceptance. Common law: No K,
(2-204/2-206/2-
207(1)) + Does conduct Offeree Terms
counteroffer of offeree.
common law acknowledge K?
Last Shot Rule

No no K
Yes (Contract implied in UCC: Acceptance
Fact, Itoh) Conditional?
K (2-207(3) w/ terms A&B
agreed + UCC -others
Gap filler)/2-204; Gap- No. Are both
Fillers 2-305 etc. + Yes.
parties
merchants? UCC O.O. accepts?
2-104

Yes Jurisdictional rule:

Knock out rule w/ UCC gap-filler Yes. No. K(offeror). Yes. K w Offeree
Evaluate under 2-207 Do terms Offeree terms Terms
Offeror's terms control conflict? are proposals

No no K (2-207(1)) unless
implied under 2-207(3)--
No K(+ ) with unless 2-207(2)(a-c): agreed-take out addl and
different terms- gap fillers
A expressly limits acceptance to A
materially alters A (Bayway)
Criteria is surprise & hardship
Arbitration, merchantability, seller power to cancel
Timely notice
If & conflict: (1) governs or
(2) Knockout rule replace & w/ UCC Gap.
 Some Ways to Lose your SoF Defense for Realty:

Oral Promise by B

Bargained for Promise

Promise RSC 90

A accepts
orally/conduct

Restitution and Partial Reliance

One-Sided
Unjust Enrichment fr Equitable Estoppel Performance - RSC
Performance RSC 139
RSC 3rd - 31 129
 Challenge: Kp is always
Kw Admissible to challenge legitimacy
Of Kw (E.g. condition, duress, lack
Of consideration, mistake, or duress).
No: Kp does not apply.
Is the writing integrated (RS 209, 210 cmt 10; UCC 2-202)-merger clause evidence but not per se

Interpret Written Contract Purpose of Parol Evidence Modify or add to the agreement

NY: Four Corners/ CA: Kp allowed Enforce Prior Parol Agreement w/in scope
Plain meaning. Does Kp contradict writings?
Kp excluded.

Completely Integrated (RSC 210)?

Merger clauses compelling but not Yes no Kp No is it collateral? (No sep consideration)
dispositive.

No independent agreement
On terms Kp

Is it the type of term that

would naturally (common law,
Gianni)or certainly (UCC) be
Yes no Kp Partial Kp included?

Yes no Kp No Kp
 K Interpretation Issues
Cateogries of K
Ambiguities

Ambiguities

Patent (appearing on
the document)

Words or Phrases w Conflicts Among terms

Grammatical Problems
Multiple Meanings
Latent (ambiguity
revealed only after
learning more info)

Gap in K (K is silent or
incomplete regarding
an issue)

Course of Interpet to
Course of Reconcile
Dealings (past Trade Usage make Public Policy
Performance Inconsistencies
Ks) Reasonable