#11275 - Contracts Attack - Contracts Attack Outline

Attack Outline

1. Agreement with Consideration

   1. Elements

      1. Bargain for exchange

      2. Competent parties

      3. For Consideration

         1. Promise for:

            1. Act or forbearance

   2. Questions to Ask:

      1. Is it a gift? If yes, UNENFORCEABLE UNLESS conditional

      2. Is it illusory? If yes, UNENFORCEABLE UNLESS

         1. Exclusive if yes ENFORCEABLE OR

         2. Satisfaction Clause if yes ENFORCEABLE OR

         3. If one or both parties’ discretion is constrained if yes ENFORCEABLE

      3. Is it an agreement that needs to be in writing? Would it violate the Statute of Frauds? If so, and not in writing UNENFORCEABLE UNLESS

         1. Partial performance to demonstrate implied in fact contract if yes ENFORCEABLE

         2. NOTE: Violation of statute of frauds could lead to enforcement through other theories/remedies if yes ENFORCEABLE

   3. Remedy

      1. Expectancy Damages

         1. D= LOV + (CD + ID) – (CA+LA)

            1. Is the Cost of Performance grossly disproportionate to value upon completion? If, yes- no expectancy BUT

               1. Is that what party really wanted?

            2. Is it a new business?--> NO expectancy but maybe reliance under AwC

            3. Did they mitigate?

               1. BUT did they have another materially similar option?

            4. Is plaintiff lost volume seller?--> Can recover for profit of two sales

2. Promissory Estoppel

   1. Elements

      1. Promise reasonably expected to induce action or forbearance

      2. Does induce detrimental reliance

      3. Injustice can only be avoided by enforcing promise

   2. Question to Ask:

      1. Was reliance unreasonable? IF YES UNENFORCEABLE

      2. Conditional or Indefinite promise? IF YES UNENFORCEABLE

      3. Gratuitous promise? IF YES UNENFORCEABLE

   3. Remedy

      1. Reliance Damages

         1. (ER +P) + (ID + CD) – (CA + LA)

            1. Would reliance be greater than expectancy?--> Can’t get reliance then so maybe restitution

            2. Is it a losing contract? If so, can’t get reliance, maybe restitution though

            3. Is the reliance on future lost profits?- no reliance BUT

               1. Is the reliance on future foregone lost opportunities?

3. Unjust Enrichment

   1. Elements:

      1. Benefit to promisor (unjustly enriched)

      2. At the expense of promisee

   2. Questions to Ask:

      1. Was promise gratuitous? (Think Bloomgarden) IF YES UNENFORCEABLE

      2. There was NO benefit— IF YES UNENFORCEABLE

         1. BUT was the defendant the intended beneficiary even though they received no benefit/ would they have had they accepted? (Think Kearns) if yes ENFORCEABLE

      3. Was expectation of payment not communicated or reasonably expected?--> IF YES UNENFORCEABLE

         1. BUT did relationship change (Think Sparks) if yes ENFORCEABLE

      4. Can the benefit not be returned?--> IF YES UNENFORCEABLE

      5. Was the benefit thrust upon you?--> IF YES UNENFORCEABLE

         1. BUT did you admit it was beneficial? if yes ENFORCEABLE

      6. Was the intent to obtain to obtain a business advantage?--> IF YES UNENFORCEABLE

   3. Remedy

      1. Restitution Damages

         1. Quasi- limit is contract price

         2. Quantum- reasonable market value

      2. NOTE: Argue freedom to contract (quasi) versus penalization for breach (quantum)

      3. To get Quantum:

         1. Plaintiff is non-breaching party

         2. There was ONLY partial performance

      4. To make restitution:

         1. Give back what you took

         2. Or its equivalent value either by contract price or the market value price

4. Moral Obligation

   1. Elements:

      1. Unrequested/ Unbargained benefit

      2. Subsequent promise to pay is made

      3. Promisor must directly benefit

      4. Services were beneficial

   2. Questions to Ask?

      1. Was it a gift? IF YES UNENFORCEABLE

      2. Promisor was not directly benefitted? IF YES UNENFORCEABLE

         1. BUT is there a pre-existing obligation IF YES ENFORCEABLE

      3. Did promisor change their mind? IF YES UNENFORCEABLE

5. Obligation Arising from Tort

   1. Elements:

      1. Duty arises from agreement

      2. There is also a legal duty

         1. No fraud

         2. Professional duty

      3. NOT just a breach of a term in contract there is a tort too

   2. Questions to Ask:

      1. Was there nonfeasance (no performance)? IF YES UNENFORCEABLE

         1. BUT was there misfeasance? If yes ENFORCEABLE

      2. Note: Must perform badly, can’t just not perform at all

   3. NOTE: No double dipping can’t sue in contract and tort, sue tort more money

UCC Theories for Good (moveable at time of sale)

1. Express Warranty

   1. Elements

      1. Statement of facts or description or model

      2. NOT an opinion

         1. Opinion if:

            1. Lack of specificity

            2. Ambiguous statement

            3. Experimental

      3. Statement induced your purchase

   2. Questions to Ask?

      1. Did plaintiff inspect? If yes, UNENFORCEABLE

         1. But was defect was not discoverable? If yes ENFORCEABLE

      2. Did plaintiff waive the right to inspect? If yes, UNENFORCEABLE

      3. Was statement an opinion?--> If yes, UNENFORCEABLE

      4. Was statement vague? If yes, UNENFORCEABLE

      5. Was the description not the basis of bargain? If yes, UNENFORCEABLE

2. Implied Warrant of Fitness

   1. Elements

      1. Buyer intends to use for a particular purpose

      2. Seller has reason to knows the purpose

      3. Buyer relies on seller’s expertise and seller is aware of reliance

   2. Questions to Ask?

      1. Did buyer not rely on seller? If yes, UNENFORCEABLE

      2. Did buyer inspect? If yes, UNENFORCEABLE

         1. But was defect was not discoverable? If yes ENFORCEABLE

3. Implied Warranty of Merchantability

   1. Elements:

      1. Seller is a merchant (see UCC for definition of merchant)

      2. Goods fit for ordinary purpose

   2. Questions to Ask:

      1. Is the hazard within the nature of the good? If yes, UNENFORCEABLE

         1. Example: cutting your finger on a knife versus blade falling off the knife

      2. Did buyer inspect? If yes, UNENFORCEABLE

         1. But was defect was not discoverable? If yes ENFORCEABLE

      3. Is defect foreign? If yes ENFORCEABLE

         1. A bone in boneless chicken is foreign