Offer/Acceptance Was there an offer? -Was there a manifestation of present contractual intent?

-Were the terms definite and certain? -Was it communicated to one capable of acceptance? If there was an offer, was it accepted? -Did the proper party accept the offer? Was it the party with the power of acceptance? -Has the offeree accepted in the manner required by the offer? 1) Was it an offer that called for acceptance by return promise or performance? 2) Did the offeree still have the power of acceptance or was it terminated in one of the following ways: a) death/insanity b) intervening illegality c) rejection/counter-offer d) lapse of time e) destruction of subject matter f) revocation If revoked, was the revocation received? Was it indirect? Was it a revocation of a general offer? 3) Was there an acceptance by silence? 4) Was the offeree required to give notice of acceptance? Was there an option contract or irrevocable offer? -Was there a promise to keep offer open for stated period of time? Ask: 1) Was there consideration 2) Was there a statute 3) Restatement rule? (writing signed by offeror, recites consideration, proposes fair exchange within reasonable time?) 4) Offer for a unilateral contract? Has the offeree partially performed the requested performance? Ask: a. Common law rule (offer may be revoked at any time before completion of the requested act) b. Restatement (Did the offeree begin performance of the requested act so to make the offer irrevocable? Did the offeree begin the actual performance or was it mere preparations to perform?) c. Reliance that is not part of the performance (Did the offeror make an offer which she should reasonably expect to induce reliance on the part of the offeree before acceptance and did induce such reliance?) Consideration Was there a bargained for exchange -If the promise was not sought by the promisor and given by the promisee in exchange for that promise, what type

of promise was it? 1) Donative? 2) Past consideration? 3) Illusory promise? 4) Conditional promise (event, personal satisfaction?) Was there reliance? -Are the elements of 90 satisfied? Promise? Foreseeability of reliance? Actual, justified reliance? Enforcement of promise necessary to avoid injustice? Was there a modification? -Is there consideration to support a promise modifying a duty under a contract not fully performed by either party? -Preexisting duty? -Modern trend? Does the jurisdiction depart from the pre-existing rule and enforce a modification absent consideration if the following requirements are met: 1) Voluntary (did the parties agree?) 2) Executory? 3) Unanticipated circumstances? Was the basis of modification unanticipated by the parties? Was there a defense or basis on which to avoid the contract? -Misunderstanding? -Capacity (infancy, mental capacity) -Mistake? 1) Unilateral mistake 2) Mutual mistake -Misrepresentation? Was there an assertion not in accord with the facts? -Duress or undue influence? -Unconscionability? Was there a dispute during the performance phase of the contract? -Parole evidence? Was there a dispute regarding the scope and content of the deal? Is one party introducing evidence of a prior or contemporaneous agreement to show that the terms of the parties written agreement are other than as shown as writing? Integrated or unintegrated? Merger clause? Completely or partially integrated? -Interpretation? Do the parties disagree as to the meaning of the terms of the agreement? Is evidence admissible to interpret the parties agreement? -Promise or condition or both? 1) Was it a condition of performance 2) Condition precedent 3) Concurrent conditions 4) Condition subsequent 5) Express condition 6) Constructive conditions?

If so, was the condition excused or waived? Was it a promise? Was it a promissory condition? Changed circumstances? Have drastically changed circumstances made the obligors performance impracticable or has the purpose in performing the contract been frustrated? Existing or supervening impracticability? Frustration of purpose? Was there breach of contract? -Did a promisor, without justification or excuse, fail to tender a promise performance when performance was due or tendered a defective performance? -Anticipatory repudiation? Has one party to the contract expressed the intent, either through words or conduct, that a promise performance would not be forthcoming? Has this occurred before the actual time set for performance? 1) Was it a clear, unequivocal refusal to perform? 2) Adequate assurances? 3) Retraction? Was there a retraction of the repudiation? -Material breach or substantial performance? See pg. 2 for factors -Cure? If the breach is material, can it be cured before it is a total breach? Remedies Expectation interest? Can the injured party recover the benefit of her bargain? 1. Measuring the interest? -Has neither party performed? -Has there been part performance? Diminution in value? Cost of completion or repair? 2. Are there limitations on recovery? -Foreseeability? -Mitigation/avoidability? -Certainty? Reliance interest? Was the injured partys loss caused by reliance on the contract? Can she be put in as good a position as she would have been had the contract not been made? Restitution interest? Has P conferred a benefit on the other party so that it would be unjustly enriched at Ps expense? Liquidated damages? Has the party defined their own remedies in the event of a breach? Is it legal? Specific Performance?