Contract Checklist 2016.docx - Contract Checklist 2016 Is...

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Contract Checklist 2016Is there a contract?(offer <irrevocable>, acceptance <counteroffer>, consideration <mutuality>, formal requirement, completeness <material term>, defense)When is the contract formed?Prior K formation terms may be excluded by virtue of parol evidence rule (but not independentwritten agreement) Additional terms in acceptance that one does not insist (consumer – non explicit agreement not incorporated, merchants, probably, if without material change or objection)After K formation – terms will be modification (check if there is additional consideration or changed circumstances)How to understand the terms?Extrinsic evidence (first is the term ambiguous? If so, trade usage, judiciary default, course of dealing, risk bearing…Is there a breach or merely not satisfying a condition (check if condition has been waived)? Who breach first, one side breach (anticipatory repudiate/fail to give adequate assurance), other side’s duty to perform is discharged?Minor/unintentional breach – still got diminution in valueMaterial breach – divisible (K price), non-divisible (restitution)Implied duty of good faithWarrantyNon-performance of a condition, Breach (anticipatory repudiation, failure to give adequate assurance), Impracticability discharge the other side’s duty to perform.Offer1.The objective test -- Whether there is reasonable indication to the other party that there is an intention to enter into a contract. Embry v. Hargadine; Lucy v. Zehmera)Offer made in jest – reasonable person would not construe it as an offer, Leonard v. Pepsicob)Invitations to make an offer – no fixed purpose to close the deal, Lonergan v. Scholnick(indicate other buyers), Leonard v. Pepsico (ads refer to a catalogue)2.Reasonable certainty – whether it provide a basis for the court to determine breach and give proper remedies. 2RS33. An “offer” that leaves nothing open for negotiation may be an offer. Lefowitz v. Minneapolis(selling fur at X price at X place at X time, first come first serve)a)Lack of certaintyi.does not identify which one to sell -- selling fur coat worth from 10 -100 dollars – virtually make it hard to calculate damages. Lefowitz v. Minneapolisb)Lack of quantity i.does not identify how much to be sold -- ads, catalogues – virtually court cannot determine the quantity so also hard to calculate damages.3.Offers are revocable 2RS42 unless there is an option 2RS37 check if offer is furnished with consideration or invited reasonable, foreseeable relianceIrrevocable offers1.Option contracts – offer open for a certain period of time 2RS25 formed by providing consideration. i.e. down paymentsa)Partial performance in a unilateral offeri.Once actual performance begun, offer becomes irrevocable. 2RS45. Marchiondo v.

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