a. What is a K?: A promise of a set of promises for the breach of which the law provides a legal remedy. § 1.
b. Hawkins v. McGee – an expectation to the idea that most medical promises should be argued in malpractice suit
c. Bayliner v. Crow – promise was Insufficiently specific
i. General intro into what kind of promises are enforceable
II. Remedies (Prelim.)
a. 2 assumptions – Naval & Sullivan
i. Rather than punishing the breaching party, we look to heal the breach victim
1. Expectancy (benefit of the bargain) “in as good a position as he would have been had the contract been performed” Restatement § 344(a) and § 347
2. Reliance (P back at SQA) - “”being reimbursed for loss caused by reliance” “in as good a position as he would have been had the contract not been made” in the first place. § 344 (b) and § 349
3. Restitution (D back at SQA) – “restore to any him any benefit that he has conferred on the other party” – Restatement § 344(c) and § 371
III. Consideration as a Basis for Enforcement
a. Basic Definition
i. Benefit to promissor
ii. Detriment to promisee
iii. Bargained for exchange
1. Restatement § 71: To constitute consideration, a performance or return promise must be bargained for.
2. Restatement § 79: There only needs to be a bargained for exchange. No need for benefit or detriment, or equal values of exchange.
a. Holmes’ “reciprocal conventional inducement”
b. Requirement of Exchange
i. Consideration must come prior to a contractual agreement
1. Feinberg v. Pfeiffer, Mills v. Wyman, Webb v. McGowan
c. Requirement of Bargain
i. Kirksey v. Kirksey, Land Land Employment Group v. Columber
d. Promises as consideration
i. Unilateral and bilateral contracts
ii. Illusory promises
1. A promise or apparent promise is not consideration if by its terms the promisor or purported promisor reserves a choice of alternative performances. § 77
2. Promisor cannot have an unfettered route of escape
a. Strong v Sheffield (the wife and the promissory note), Mattei v. Hopper (the strip mall deposit),
i. Satisfaction clauses do not make a promise illusory due to the restraint of acting in good faith.
3. Output and requirements
a. Eastern v. Gulf
i. There are objective measures creating ceilings and floors for the possible future needs. UCC 2-306(1)
4. Exclusive dealing
a. Wood v. Lucy
i. Wood’s promise was inferred; the acceptance of the exclusive agency was an assumption of its duties.
IV. Promissory Estoppel
a. Reliance on the promise – Restatement (Second) § 90: i. Promisor reasonably expects action or forbearance on the part of the promisee and ii. Which does induce such action or forbearance and iii. Enforcement needed to avoid injustice
1. Ricketts v. Scothorn, Feinberg v. Pfeiffer, D&G Stout v. Bacardi
a. Reliance on the promise must be foreseeable on the part of the promisor
b. The reliance need not have been detrimental to the promisee
V. Quasi contracts – contract implied in law – constructive contract
a. Restitution as an alternative basis for recovery
i. Remedy to prevent unjust enrichment; forces disgorgement of unjust gains.
ii. If restitution is the reason for recovery, it will also be the measure. The converse is not always true.
1. Cotnam v. Wisdom, Callano v. Oakwood Park Homes, Pyeatte v. Pyeatte
2. Cannot substitute a third party in the case of an actual contract (with some exceptions)
iii. Rest. 2d § 371
VI. Nature of Assent
a. Does not require a ”meeting of the minds”
b. If the parties both act as though they wish to be in a deal, the court will infer a deal was made (Lucy v. Zehmer)
c. Gentlemen’s agreements
i. Employee handbooks...
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