FACTORS:

Language (Offer doesn’t mean offer)

Relationship of Parties
COUNTER-OFFER WARRANTIES:
Course of Dealing
*Price quotes & ads (Mere inquiry not counter-offer)
∞Switches offeree
Past Practice THE BAUHAUS CONTRACTS OUTLINE (1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer
are not offers. Details (more=certain)
∞Terminates P.O.A. Intent to be Bound which relates to the goods and becomes part of the basis of the bargain
creates an express warranty that the goods shall conform to the affirmation
OFFER NON-REVOCABLE OFFERS
∞Accepting offer before revocation
BATTLE OF FORMS or promise.
Common Law: (b) Any description of the goods which is made part of the basis of the
IDENTIFIED OFFEREE ∞Part Performance ∞Mirror Image: forms mirror every term bargain creates an express warranty that the goods shall conform to the
INTENT TO BE BOUND ∞Promissory Estoppel §90: or P.O.A. is destroyed description.
(UCC: Doesn’t necessarily matter)
CL: If more than 1 term left open, shows lack of intent

BARGAIN W/REASONABLE CERTAINTY: -Promisor should have reasonably
Certain if you show how to breach & what expected to induce action/forebearance
remedy would be. -Promisee took action/forebearance
-Injustice can only be avoided by enforcing promise
-Remedy limited as justice requires
TERMS TO CONSIDER INTENT:
∞Option Contract:
∞Identify Offeree
-Limits promisor’s power to revoke
∞Subject Matter
∞Price -In writing (recites a purported consideration)
∞Time of payment, delivery/performance -Signed by offeror
∞Quantity ∞Conditional Contract:
∞Nature of work to be performed -Duty to perform promise on condition that
an action occur/not occur
∞Merchant’s Firm Offer: (deals in goods of the
kind or holds self out as having knowledge/skillz)
ACCEPTANCE -Offer by merchant
-To buy/sell goods (moveable things - not $)
MANIFESTATION OF ASSENT -Signed writing (can be initials)
ABSOLUTE & UNEQUIVOCAL -Gives assurance that it will be held open for
MAILBOX: Effective upon receipt time stated, not to exceed 3 months
∞Last Shot Doctrine: performance implies (c) Any sample or model which is made part of the basis of the bargain
acception, so terms from last form sent is in K. creates an express warranty that the whole of the goods shall conform to the
U.C.C: Acceptance with additional/different terms
sample or model.
NO YES (2) It is not necessary to [form]... an express warranty that the seller use formal
Contract of Agree Terms Is acceptance words such as "warrant" or "guarantee"..., but an affirmation merely of the value
expressly conditional? ... or a statement purporting to be merely the seller's opinion or commendation
NO YES of the goods does not create a warranty.
There’s a K! 1.) Counter-offer
1.) Agreed terms are included 2.) Did offeror express consent? (1) Unless excluded..., a warranty that the goods shall be merchantable is implied
2.) Different terms are “knocked out” in a contract for their sale if the seller is a merchant with respect to goods of that kind....
(2) Goods to be merchantable must be at least such as
NO YES
Are the parties merchants? (a) pass without objection in the trade under the K description; and
Conduct of parties K consists of agreed terms
recognizes agreement (b) in the case of fungible goods, are of fair average quality...; and
NO YES
(c) are fit for the ordinary purposes for which such goods are used; and
3.) Add’l terms are included unless: (d) run, within the variations permitted by the agreement, of even kind, quality
3.) Add’l terms are
proposals to modify a.) Offer expressly limited to its tems and quantity within each unit and among all units involved; and
b.) Add’l terms materially alter: surprise or hardship, $ (e)….(f) conform to the promises or affirmations of fact made on the container/label if any.
c.) Offeror gives notice of rejection (3) Unless excluded or modified other implied warranties may arise from course of
dealing or usage of trade.

RESTITUTION: A person who is unjustly enriched Implied Warranty: Fitness for Particular Purpose.
NOT CONSIDERATION: at the expense of another is required to pay restitution Where the seller at the time of contracting has reason to know any particular purpose
∞Illusory/Gratuitous Promise (3 Scenarios) for which the goods are required and that the buyer is relying on the seller's skill
or judgment to select or furnish (penis) suitable goods, there is unless excluded or modified
∞Past/Moral Consideration 1.) Implied in Law Contracts (Quasi): under the next section an implied warranty that the goods shall be fit for such purpose.
∞Gross Inadequacy 1. π conferred benefit on ∆.
2. ∆ has knowledge of benefit.
∞Fraud/Duress/Incapacity 3. ∆ has accepted/retained benefit. Parol Evidence Overarching Rule:
CONSIDERATION 4. If would be inequitable for ∆ to retain w/o paying
Exceptions:
The Parol Evidence Rule provides that a writing intended
BARGAINED FOR EXCHANGE Officious Intermeddler - Stranger unjustifiably demands payment for unrequested service
by the parties to be a fully integrated and final expression
of their agreement may not be supplemented or contradicted
∞PID/DIP Gratuitous Gift (gift w/o expecting compensation-can’t ask for it back)
by any oral or written agreements made prior to the writing.
∞Legal Value Saving lives (physician)/property (emergency situation, must intend to charge, owner accepts prop.)
If the writing is only final as to part of the agreement,
K ineffective, but benefit received
∞Waiver of Legal Right EX: Restitution is either reasonable value of goods/services rendered or whatever the market value.
(i.e. partially integrated) then the writing cannot be contradicted
but can be supplemented by extrinsic evidence.
∞Act or Forebearance i.e. Paint house for $1,000, but house goes up in value $10,000
The judge rather than jury decides when evidence will be heard
2.) Promissory Restitution: Promise based on past consideration during an in camera proceeding. If the evidence is admitted,
P.E: Part Performance Promise made in recognition of a benefit received by promisor then the fact finder will determine whether the evidence is credible.
from promisee is binding unless:
Promiseee conferred benefit as a gift To what level is the writing integrated?
STATUTE OF FRAUDS Value is disproportionate to benefit (and something that hasn’t already been paid - Indian Refinery Rules: An “integrated writing” is one in which the parties intend to incorporate
all prior and contemporaneous oral and written agreements into the one
Webb v. McGowan: “surfing the block”.
∞Marriage Agreements writing. In other words, the writing and the writing alone is what determines
the terms of the contract and there can be no other written or oral agreements.
∞One-Year REMEDIES: Measuring Restitution
∞Land What is the measure of recovery? There is split among jurisdictions as to the process to determine integration.
∞Executor Payment Different courts measure restitution recovery differently: Classis Jurisdiction Rule: (Williston) Plain meaning or Four Corners approach.
∞Goods over $500 ∞Some courts measure the reasonable value of goods or services Before considering parol evidence, judge must find ambiguous language within
conveyed whether or not D benefited in any economic sense. the four corners of the contract without resorting to outside evidence. The
CL: Memorandum or note ∞Other courts measure the benefit conferred upon the D by the P ambiguity must be patent and not latent. The presence of a merger clause is
shall be in writing & signed regardless of how much those services would have cost in the marketplace. dispositive.
by the party to be charged, If a sum of money is awarded to protect a party's restitution interest, it may as Modern Jurisdiction Rule: (Corbin) Judge can consider outside evidence to
justice requires be measured by either: determine intent of parties as to integration even if there is no ambiguity on
can be many documents (a) the reasonable value to the other party of what he received in terms of what it the face of the writing – i.e. both patent and latent ambiguities can be addressed.
would have cost him to obtain it from a person in the claimant's position, or Factors: Consider all facts and circumstances, including, but not limited to:
Memorandom: (b) the extent to which the other party's property has been increased in value or contract language, amount of detail in writing, formalities observed,
∞Identity of party to be charged his other interests merger clause (not dispositive), type of transaction, negotiations between parties,
relationship of parties, and transactional context.
∞Subject matter Test: If the parties in the position of those to the written agreement would
∞Terms & Conditions INTENT CONSIDERATION normally and naturally enter into a separate agreement with regard to the
∞Recital of Consideration Construed as a whole additional terms, then the writing is only a partial integration and the terms may
Ordinary meaning: dictionary be consistent additional terms.
UCC: Preference for a valid K
Meaning:
1.) Sale of goods over $500 & state quantity, signed Ejustdem Generis: Lists of same kind (farm animals) Classic Jurisdiction Plain Meaning Rule: Ambiguity must be patent on its face.
2.) Between merchants, confirmatory writing is good after 10 days Interpretation against drafter: ambiguity runs against drafter Analysis: “Trees” is not ambiguous on its face therefore oral evidence may not be introduced.
∞Don’t need signature of Party to be Charged Modern Jurisdiction
FACTORS TO RESOLVE AMBIGUITY Rule: Even if there is no ambiguity on the face of the writing (both patent and latent ambiguities)
3.) If it doesn’t satisfy §1, may still be enforceable if: Judge can consider outside evidence to determine intent of parties as to integration
∞Specially manufactured good Language (ordinary meaning: dictionary) Test: In order to admit the evidence the court asks whether the contract language is
∞Partial admitted to in court - quantity (b/c market value can be determined) Course of performance (in business) “reasonably susceptible” to the interpretation asserted by the person offering evidence?
∞Goods paid & accepted or received & accepted Course of Dealing/Prelim. Negot. Overarching Rules:
∞Can use many documents Courts will interpret the intent of the parties by looking at all of the relevant circum. – R2. 202
Trade usage CONTRA- CONSIST INTERP Special Meaning: Where the parties have attached the same meaning to a ... term..., it is interpreted
INTERPRETATION: Is there ambiguity? Transactional Contract: market price DICTORY ADD’L AMBIG in accordance with that meaning. – Rest 2d 201.
If yes, determine intent of the parties Legal Standards: Gov’t Regs Ordinary meaning of words: Courts will construe words according to their ordinary meaning unless
NO YES YES YES it is clearly shown that there were meant to be used in a technical sense.
(Subjective) Classic CL: If no meeting of the minds PAROL EVIDENCE (CL) INT.
PAROL EVIDENCE (UCC)
(Objective) Words interpreted to Reasonable Person Standard Exceptions: PARTIAL
NO YES YES Terms in writing are to be final expression. May not be contradicted by
MODIFIED: INT.
Subsequent Agreements evidence, but may be explained or supplemented
If some meaning, then interpret to that Evidence shows fraud/duress TOTAL
NO NO YES a.) by course of dealing or usage of trade or by course of performance; and
If different meanings, then one wins if: Oral condition precedent to K INT.
b.) by evidence of consistent additional terms
a.) If A didn’t know of any other meaning & B knows A’s meaning Collateral agreements
b.) If A had no reason to know any other meaning & B had reason Equitable remedy
to know A’s meaning PE (not likely)