(1) Bargain a. R. 2 nd § 71 – a bargained for exchange, quid pro quo , this for that b. Any exchange as long as there is something that can be objectively found as flowing between P and D ( Thomas v Thomas ) i. Can’t be strictly gratuitous gift or promise without exchange, look at setting ( Kim v Son ) ii. Can seem donative but if provides a benefit/detriment then valid ( Pennsy v American Ash ) iii. Absence of a literal bargain does not mean no bargain present ( Langer v Superior Steel ) iv. Can not be a purely familial matter ( Kirksey v Kirksey ) c. A bad bargain is still a bargain, as long as it seemed good or had perceived value to the parties at the time of K ( Apfel v Prudential ) d. Unconscionable ( Jones v Star Credit / Williams v Walker Thomas ) i. Straight unconscionability when advertising and selling something that is free to parties that don’t know better ( In re Fleet ) ii. “Shock the conscious” 3-part test: 1. Grossly unequal bargaining power between the parties a. May look to company’s size or person’s background ( Zapatha ) 2. Procedural Unconcs. = lack of understanding, unfair surprises, disparity of knowledge between parties, concealment 3. Substantive Unconsc. = oppressive or unfair terms, one sided contract putting one side in much better position a.Arbitration clauses carry a presumption? iii. 302 : courts can render the whole K or just that clause unenforceable iv. 211 : Courts devise a sliding scale weigh substantive burden v benefit ( Ferguson v Countrywide Credit ) v. Hard to argue in commercial settings with companies that seem equal ( Caterpillar ) e. Mutuality of Obligation , §79 i. If a party can stop itself from being sued, there’s no mutuality 1. No party may retain a free way out by retaining sole discretion ( Rehm Zeiher v Walker ) 2. Unless in best effort and good faith with a limited discretion only and where both parties have the opportunity to breach / cause action ( McMichael v Price ) 3. 306 : implied good faith and best effort for requirement, output, or exclusive dealer K’s ( Wood v Lady Lucy ) ii. A condition precedent is ok if it is a reasonable and objectively determinable condition added in good faith ( Omni Group v Seattle Bank ) iii. No party can retain sole discretion to alter the agreement at any time ( Harris v Blockbuster ) f. TINLEA Clauses i. “This is not a legally enforceable agreement” – unless clearly seems like a K, the clause is valid and nothing is binding as a K g. Intent & Manifestation , see p. 9 JE 2
Intent, Consideration, Mutual Assent, Silence, 2-207, Competitive Intent, Bid Offers, Virtual Intent, Definiteness of Commitment, PE, Mistaken or Misrepresented Intent, Influences, Interpretation, Impossibility, Frustration, Damages (2) Consideration a. R. 1 st – benefit to promisor or detriment to promisee (abandoned) b. Can be: i. A promise 1. Must be legal, not just ethical ( Cohen v Cowles Media ) 2. Can not be a promise to do something illegal ( In re Greene ) ii. An act 1. Omissions or refrain from acting may count a.
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