Failure to provide restitution = unjust enrichment 1. Definiteness of an actual promise ( Mills v Wyman ) 2. Substantiality of the promise / benefit 3. Formality of the promise 4. Existence of part performance 5. Reasonable reliance on the promise c. Unless: i. §86(2)(a) : Promisee conferred the benefit as a gift or has not been unjustly enriched ( Bailey v West ) 1. Hard to tell when it is a gift or obligation. Argue both. ii. §86(2)(b) : Value of promise is disproportionate to the benefit e. Promissory Estoppel (If there is a valid K or proper consideration, can’t use PE) i. Exception to consideration, that allows discretionary enforcement of a promise (full or part) even though there is no K ( Ricketts v Scothorn ) 1. Must actually be based on a promise though, not just an offer 2. Will not be allowed to request damages under PE’s detrimental reliance if there is actual K ( Telecom v Amway ) ii. §90 : Must have had - 1. Clear and definite promise (Evidence in the promisee’s act) 2. Promisor must have intended or clearly foreseen reliance 3. Detrimental reliance to promisee ( Cong. Kadimah Moshe ) 4. Where it would be unjust not to compensate promisee ( Cohen ) a. §139 : Weigh injustice - Are there other remedies? How significant was the detriment? Was the action on promise reasonable? JE 4
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 (3) Offer a. General Rules : i. An offer is not an offer unless it is the fixed and final proposal of intent ii. 26 : Manifestations to enter into a bargain are not an offer if you know the other party has no intent to enter into K. iii. Negotiations alone, or a solicitation to receive an offer is not an actual offer itself ( Lonergan v Scolnick , Bretz v Portland GE ) [ UCC does not define offers so use CL] iv. Proposal is construed objectively and reasonably and actual intentions may not be important ( Southworth v Oliver ) 1. Look to parties’ communications, business practices, windows of time, previous expressions, and context b. Offeror is the master of the offer i. Offeree can not change anything during acceptance, only counter-offer ii. Since Offeror can request what he wants, ambiguous terms are presumed against the party that wrote it unless otherwise proven ( contra preferentem ) c. An Offer requires: i. Language of Commitment 1. A manifestation of willingness to enter into a bargain so that a reasonable offeree would understand acceptance to K is binding ii. Definiteness of Proposal 1. Must use words of certainty so K leaves nothing open for negotiation. All key terms must be present, not just a quote. 2. 204 : Definiteness of Proposal not necessary if terms are impliable and there is intent and reasonable basis for K.
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- Summer '11
- The Land