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Book:
Acing Contracts
Guest, University of Iowa
©2010 West Academic Publishing
Appendix. Summary–Checklists

361

APPENDIX:

In this Appendix, you will find two checklists: one for the common law and one for the sale of goods. Each is an analytical outline of leading questions to guide you through analysis of
a problem. The framework of questions moves from one issue to the next as though you were answering a hypothetical that raised every possible issue covered in the course, from
formation through remedies for breach.

Use these checklists to accomplish the following:

• Provide a summary outline for a final review

• Finalize a framework for the overall structure of the course

• Create a topic checklist for issue-spotting on the exam

As you know, it is beyond the scope of this book to discuss all the rules under UCC Article 2. Consequently, the sales checklist covers only the basic topics likely to be found on a
general contracts exam but not one dealing specifically with the Uniform Commercial Code. Please do not rely on the checklist for this purpose since it does not cover all the possible
topics in the level of detail required for such a course.

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COMMON LAW CHECKLIST

A. Was there mutual assent?

1. Was there an offer? In determining whether a party made an offer capable of acceptance as opposed to preliminary negotiations or mere inquiries, ask the following:

a. Was there a manifestation of present contractual intent?

b. Were the terms definite and certain?

c. Was it communicated to one capable of acceptance?

2. If there was an offer, was it accepted?

a. Did the proper party accept the offer? Was it the party with the “power of acceptance”?

b. Has the offeree accepted in the manner required by the offer?

i. Was it an offer that called for acceptance by return promise or performance?

ii. Did the offeree still have the power of acceptance or was it terminated in one of the following ways?

• By revocation? If revoked, then ask:

— Was the revocation received?

— Was it an indirect revocation?

— Was it the revocation of a general offer?

• By death or insanity?

• By intervening illegality?

• By rejection/counter-offer?

• By lapse of time?

• By destruction of the subject matter?

iii. Was there an acceptance by silence?

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iv. Was the offeree required to give notice of acceptance to the offeror?

v. When did acceptance become effective?

• Was it an instantaneous communication?

• Was it by mail?

• Was it in the manner invited by the offer so as to be effective upon dispatch (mailbox rule)?

• Was it acceptance of an option contract?

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3. Was there an option contract or an irrevocable offer? Was there a promise to keep an offer open for a stated period of time? Ask the following:

a. Was there consideration?

b. Was there a statute?

c. Does the jurisdiction follow the Restatement rule? (writing signed by the offeror, recites consideration, and proposes a fair exchange within a reasonable time?)

d. Was there an offer for a unilateral contract? Has the offeree partially performed the requested performance? Ask the following:

i. Common law rule? If so, the offer may be revoked at any time before completion of the requested act.

ii. Restatement (Second)? Did the offeree begin performance of the requested act so as to make the offer irrevocable? Did the offeree begin the actual performance or was it mere
preparations to perform?

iii. Reliance that is not part performance? Did the offeror make an offer which she should reasonably expect to induce reliance on the part of the offeree before acceptance and which
did induce such reliance?

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B. Was there consideration?

1. Was there a “bargained for” exchange? If the promise was not sought by the promisor and given by the promisee in exchange for that promise, then what type of promise was
it?

a. Gratuitous promise?

b. Past consideration?

c. Illusory promise?

i. Requirements–Output Contract?

ii. Exclusive dealings?

d. Conditional Promise?

i. On an event?

ii. On personal satisfaction?

2. Was there reliance? Are the elements for promissory estoppel as set forth in Restatement Second § 90 satisfied?

a. Promise?

b. Foreseeability of reliance?

c. Actual, justified reliance?

d. Enforcement of promise necessary to avoid injustice?

3. Was there a modification? Is there consideration to support a promise modifying a duty under a contract not fully performed by either party?

a. Pre-existing duty?

b. Modern trend? Does the jurisdiction depart from the pre-existing duty rule and enforce a modification absent consideration if the following requirements are met:

i. Voluntary? Did the parties voluntarily agree?

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ii. Executory? Is the contract still executory on both sides?

iii. Unanticipated circumstances? Was the basis of modification unanticipated by the parties?

iv. Fair and equitable?

C. Was there a defense or basis on which to avoid the contract?

1. Misunderstanding? Did the parties express assent to the same words or terms, but attach materially different meanings to what they said?

2. Statute of frauds? Was it the type of contract which needed to be in writing to be enforceable?

a. One year provision?

b. Contract in consideration of marriage?

c. Sale of an interest in land?

i. Part performance exception?

d. Sale of goods over $500? (see the Sale of Goods checklist)

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e. Guaranty contracts (suretyship provision)?

i. Main purpose rule exception?

f. Executor to answer for the duty of their decedents?

g. Exceptions:

i. Was it a unilateral contract?

ii. Promissory Estoppel?

3. Capacity? Did the party have capacity to form a contract?

a. Infancy?

b. Mental Incapacity?

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4. Mistake? Did one or both of the parties hold an erroneous assumption about the facts that existed at the time of contracting?

a. Unilateral mistake?

b. Mutual mistake?

c. Scrivener’s error? Was there an error in recording the parties’ agreement?

5. Misrepresentation? Was there an assertion not in accord with the facts?

a. Was it fraudulent or material?

b. Was it an opinion?

c. Was it a failure to disclose or concealment of a material fact?

6. Duress or undue influence? Did one party improperly/wrongfully pressure the other party into giving assent? Did one party take advantage of the relationship with the other to
induce assent?

7. Unconscionability? Was the contract manifestly unfair or oppressive?

a. Substantive unconscionability?

b. Procedural unconscionability?

8. Illegality and public policy concerns? Was either the consideration or the object of the contract is illegal? Did the agreement offend public policy?

D. Was there a dispute during the performance phase of the contract?

1. Parol Evidence? Was there a dispute regarding the scope and content of the deal? Is one party introducing evidence of a prior or contemporaneous agreement to show that the
terms of the parties’ written agreement are other than as shown in the writing?

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a. Integrated or unintegrated?

i. Merger clause?

b. Completely or partially integrated?

2. Interpretation? Do the parties disagree as to the meaning of the terms in their agreement? Is evidence admissible to interpret the parties’ agreement?

3. Promise or condition or both?

a. Was it a condition of performance?

i. Condition Precedent?

ii. Concurrent Conditions?

iii. Condition Subsequent?

iv. Express Condition?

v. Constructive Conditions?

b. If so, was the condition excused or waived?

c. Was it a promise?

d. Was it a promissory condition?

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4. Changed circumstances? Have drastically changed circumstances made the obligor’s performance impracticable or has the purpose in performing the contract been
frustrated?

a. Existing or supervening impracticability?

b. Frustration of purpose?

E. Was there a breach of contract? Did a promisor, without justification or excuse, fail to tender a promised performance when performance was due or tendered a defective
performance?

1. Anticipatory repudiation? Has one party to the contract expressed the intent, either through words or conduct, that

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a promised performance will not be forthcoming? Has this occurred before the actual time set for performance?

a. Was it a clear, unequivocal refusal to perform?

b. Adequate assurances? If there was doubt, did the aggrieved party seek adequate assurances of performance?

c. Retraction? Was there a retraction of the repudiation? Did it occur before the aggrieved party relied on the repudiation?

2. Material breach or substantial performance? Did the party commit a material breach or substantially perform?

a. Consider the following factors:

i. To what extent has the breaching party already performed?

ii. Was the breach wilful, negligent, or purely innocent?

iii. What is the extent to which the injured party will be deprived of the actual benefit of the contract?

iv. To what extent will the breaching party suffer a forfeiture?

• Is the contract divisible?

v. To what extent has the injured party obtained or will obtain the substantial benefit for which she bargained?

vi. To what extent can the injured party be compensated for the defective performance by damages?

b. Cure? If the breach is material, can it be cured before it is a total breach?

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F. Remedies?

1. Expectation interest? Can the injured party recover the benefit of her bargain?

a. Measuring the interest?

i. Has neither party performed?

ii. Has there been part performance?

• Diminution in value?

• Cost of completion or repair?

b. Are there limitations on recovery?

i. Foreseeability?

ii. Mitigation/avoidability?

iii. Certainty?

2. Reliance interest? Was the injured party’s loss caused by reliance on the contract? Can she be put in as good a position as she would have been in had the contract not been
made?

3. Restitution interest? Has the plaintiff conferred a benefit on the other party so that it would be unjustly enriched at the plaintiff’s expense?

4. Agreed remedies? Have the parties defined their own remedies in the event of breach?

a. Liquidated damages?

b. Restriction on remedies?

5. Equitable remedies? Will the award of money damages not compensate the injured party for her loss?

a. Specific performance?

b. Injunctive relief?

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G. Third Party Interests? Was there a third party to the deal?

1. Third party beneficiary?

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a. What type of beneficiary?

i. Intended?

• Creditor?

• Donee?

ii. Incidental beneficiary?

b. Vested? Has the intended beneficiary’s rights vested so that the beneficiary has acquired the right of enforcement?

i. Assent? Has the beneficiary manifested assent to the promise at the request of the promisor or promisee?

ii. Suit? Has the beneficiary brought suit to enforce the promise?

iii. Reliance? Has the beneficiary materially changed position in justifiable reliance?

2. Assignment and delegation? Has one of the contract parties purported to transfer her rights or delegate her duties under the contract to someone else who was not an original
party to the contract?

a. Assignment of rights?

i. Are there any limits on assignability?

• Personal services?

• Material change or material increase in risk or burden to obligor’s duty?

• Public policy?

ii. Is there an anti-assignment clause?

b. Delegation of duties?

3. Novation? Has there been a substitution of the original parties to the contract?

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SALE OF GOODS CHECKLIST

A. Do the provisions of Article 2 apply?

1. Is it a transaction involving the sale of goods or services?

2. Is it a hybrid? If so, are goods the predominant purpose?

3. Are one or both of the parties to the agreement “merchants” so as to fall within the Code’s merchant provisions where applicable?

B. Was there an agreement or “bargain of the parties in fact”?

1. Was there an offer and acceptance?

2. Was there a dispute over contract terms because of additional or different terms in the acceptance, i.e., “battle of the forms”?

3. Was there a “firm offer”? Did a merchant offer to buy or sell goods in a signed writing which promised to hold the offer open?

C. What are the terms of the agreement?

1. Are “gap fillers” necessary to fill in terms left open by the parties, except for the quantity term which is required?

2. Is it an requirements/output contract or one for exclusive dealings?

D. Statute of frauds? Was it a contract for the sale of goods over $500 such that a writing would be required? Does an exception apply?

1. Specially manufactured goods?

2. Admissions?

3. Goods paid for and accepted, or received and accepted?

4. Merchant memo? Has a merchant sent a written confirmation to another merchant who has reason to know its contents and it is in a form sufficient to bind the sender? If

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so, then the writing requirement is satisfied unless written notice of objection is given within 10 days of receipt.

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E. Parol evidence? Is one party introducing evidence of a prior or contemporaneous agreement to show that the terms of the parties’ written agreement are other than as shown in
the writing?

1. Integrated?

2. Partially or completely integrated?

3. Explained or supplemented by course of dealing or usage of trade or by course of performance?

F. Modification?

1. Good faith? Although consideration is not necessary, was the modification made in good faith?

2. Statute of frauds? If the contract as modified falls within the statute, have its requirements been met?

3. Waiver? If it was not a modification, could it be a waiver?

G. Impracticability? Can performance be excused by a “failure of presupposed conditions”?

H. Warranty?

1. Warranty of title?

2. Warranties of quality? Has the seller made a representation of quality to which the goods must conform at the time of delivery?

a. Implied warranties?

i. Warranty of merchantability? Goods sold by a merchant?

ii. Warranty of fitness for a particular purpose? Did the seller have reason to know of the buyer’s particular purpose, know or have reason to know that the buyer was relying on the
seller’s skill to

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furnish appropriate goods, and the buyer relied on the seller to select the goods?

b. Express warranty?

i. Was there an affirmation of fact or promise“?

ii. Was there a description of the goods?

iii. Was there a sample or model?

iv. Were there post-sale statements?

3. Exclusion or disclaimer of warranties?

a. Express warranties? Would it be inherently inconsistent?

b. Implied warranties?

i. Warranty of merchantability? Did the language mention the word “merchantability” and, if in writing, was it conspicuous?

ii. Warranty of fitness for a particular purpose? Has the seller excluded or modified the warranty in a writing which is conspicuous?

c. Modification or limitation of remedies?

i. Exclusive remedy? Was the limited remedy “expressly agreed to be exclusive?”

ii. Essential purpose? Was the seller unwilling or unable to repair the defective goods within a reasonable time or willing and able to repair but repairs cannot be done?

I. Performance?

1. Perfect tender? Has the seller tendered non-conforming goods?

2. Right to cure? Has the non-conforming tender or delivery occurred before the contract’s specified delivery date so that the seller has time to cure?

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J. Breach?

1. Did the buyer breach?

a. Wrongfully rejected the goods?

b. Wrongfully revoked acceptance of the goods?

c. Failed to make a payment when due?

d. Repudiated a part or the whole contract?

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i. Was repudiation by statements? (overt communication)

ii. Was repudiation by conduct? (an action)

iii. Was repudiation by failure to give adequate assurances?

e. Was it the breach of an installment contract? Can the buyer reject an installment?

i. Was it non-conforming, and

ii. Did the non-conformity substantially impair the value of that installment, and

iii. Can the seller cure the non-conformity?

iv. If there was a breach of an installment, was it a breach of the whole?

2. Did the seller breach?

a. Repudiated the contract?

b. Failed to deliver the goods?

c. Tendered non-conforming goods? (perfect tender rule)?

K. Remedies?

1. What are the seller’s remedies for the buyer’s breach?

a. Action for the price?

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b. Resale of the goods?

c. Hypothetical resale?

d. Lost volume seller?

e. Incidental damages?1

2. What are the buyer’s remedies for the seller’s breach?

a. Specific performance or replevin?

b. Right to cover?

c. Hypothetical repurchase?

d. Breach of warranty? Can the buyer claim breach of warranty?

i. Did the seller made some warranty, express or implied?

ii. Was the warranty breached?

iii. Was the breach the cause of the damages sought?

iv. Was there a disclaimer of warranties?

• Was the disclaimer unconscionable?

e. Incidental damages?

f. Consequential damages?

i. Causation?

ii. Reason to know?

iii. Preventable?

iv. Reasonable certainty“?

________________________________

1. The 2003 revision to the Code provides specifically for seller’s right to recover consequential damages in similar terms to the rights of the buyer.

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