Subject matter of the contract time for performance

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Subject matter of the contractTime for performance or deliveryPrice or other consideration to the exchangeRestatement Test requires a court to examine the terms of the agreement to determine whether they provide a basis for determining the existence of a breach and for giving an appropriate remedyMissing terms may be supplied by the court when they may be implied as “reasonable” or by the course of past dealingAgreements to AgreeParties into agreement with an essential term unfilled, intending to agree upon it laterCourt may supply missing termLandmark Case 6.2 Raffles v. WichelhausoMistakeOver course of business cycle, a manger involved in a contract will make a mistakeMistake – an erroneous belief that is not in accord with existing factsLaw recognizes certain mistakes and provides remediesMutual (both parties) or unilateral (one party)Mutual Mistake – may be basis for cancelling a contract (avoiding a contract) when both parties hold erroneous beliefMistake must concern a basic assumption on which the contract was madeMistakes as to the existence of the subject matter Courts won’t count financial ability or market conditionsUnilateral Mistake – one party had erroneous belief about a basic assumption; courts much less willing to allow cancelation based on thisNot valid reason to avoid contract unless mistaken party had reason to know of the mistake or his actions caused the mistakeConsiderationoDistinguish between promises that are binding on the promisor and those that are notoA promise supported by consideration if:The promise suffered legal detriment by giving up something of value or some legal rightThe promisor makes his promise as part of a bargained for exchangeoLegal DetrimentProper consideration requires that the parties suffer some type of detriment that the law recognizes as adequateSatisfied if the party promises to perform something that the party is not legally obligated to do or refrain from doing something that party had a right to dooPreexisting Duty Rule
Preexisting Duty – a duty that one is already legally obligated to do and thus generally not recognized as a legal detrimentContract unenforceableApplies in circumstances where one party claims they wish to modify an existing contract because of unforeseen difficulties in performing obligationsCourts have fashioned many exceptionsIn a case where certain circumstances were not reasonably anticipated by either party when the original contract was formedoBargained for ExchangeEven if a legal detriment is suffered by one party, that alone does not satisfy the consideration requirementBargain for Exchange – aspect of consideration differentiating contracts from gifts by holding that a performance or return promise is bargained for only if it was exchanged for another promiseoPast Consideration

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