Contracts Outline

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Contracts Outline
Professor Murray

1. Contract Remedies (Chapter One)
What is a contract?- promise or set of promises, for breach of which the law gives a remedy or the performance of which the law recognizes as a duty. Types of contracts-
a. express: formed by language, oral or written
b. implied: formed by manifestations of assent other than oral or written language; by conduct. c. quasi: not contracts at all, construed by courts to avoid unjust enrichment, by permitting plaintiff to bring an action in restitution to recover the amount of the benefit conferred on defendant. Critical Elements of a Contract:

a. promise- undertaking or commitment that something shall or shall not be done
b. exchange-something the law recognizes as value is exchanged c. enforcement-the law sanctions such promissory exchanges by putting coercive machinery behind them. d. mutual assent “meeting of the minds”

2. The Agreement Process (Chapter Two)
Mutual Assent:an expression of agreement or among the parties Agreement:a manifestation of mutual assent on the part of 2 or more Bargain:an agreement to exchange promises or to exchange a promise for a performance or the exchange performances

A. Objective Theory
(when it is ambiguous as to whether a contract is formed.) Courts do not care what was the intent of the parties.
(can not possibly prove what we were thinking-not objective) Therefore courts look at objective evidence.
1. What would a reasonable person think? We have to use because we cannot use anything else. 2. Court will re-create the scene. (CSI-Pittsburgh: Contracts Scene Investigation)

RULE: An act creates a power of acceptance and is therefore an offer when it satisfies these elements- (1) An expression of will or intention
(2) An act that leads to the offeree reasonably to conclude that a power to create a contract is conferred. (3) This applies to the content of the power as well as to the fact of its existence. RULE: An agreement made in jest is not an offer when a reasonable person would conclude that it is not. RULE: A basic rule of contracts holds that whether an offer has been made depends on the objective reasonableness of the alleged offeree’s belief that the advertisement or solicitation was intended as an offer

B. Interpreting Statements to Determine Legal Consequences
Should a party who makes statements that appear to be serious always be understood as intending legal consequence?
RULE: If physicians make a promise, it should be interpreted by a reasonable person as “I will use my best professional effort to ascertain a cure, but can not promise a 100% cure.”
RULE: Parties who make agreements, even with consideration, and do so under circumstances where they do not intend to be legally bound and never intended to be sued upon are outside the realm of contracts altogether and therefore not legally enforceable.

C. Express Statements Concerning Legal Consequences
The typical letter of intent will merely express the intention of the parties in a continuing negotiation and will not constitute a binding contract. However, the fact that the parties have signed a document captioned ‘letter of intent’ will not preclude the finding of a contract between them if they manifest their intention to be bound to such contract.

Letters of Intent may not bind the parties into reaching a final agreement, but does bind the parties to try to make a deal in good faith. RULE: The finding of good faith is treated as a finding of fact and is reviewed under clear error.

D. Contemplation of Final Writing
When looking at a final writing between two parties, you have to look at objective evidence. Not conclusive but goes to a manifestation of intention. RULE: A question of intention of the parties is a question of fact.

Questions to ask….
1. Was the ‘agreement in principle’ intended to be a binding agreement...
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