ࡱ> uwrsta GjbjbA]A] $B+?+?G.......^T%$$$$$$$,u&R(l(%.(%..=%..$B....$n!..$ G|" $S%0%#3)3)@$.y>}y>}Intro General (Assent) + O + A + C + (Definiteness) = K UCC Governs sale of goods. DEF: Goods All things (including specially manufactured goods) which are movable at the time of identification to the K for sale. DEF: Merchant Deals in goods of the kind, or by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involves Increases certainty. Uniform laws Decreases transaction costs (lawyers) Issue: When is a K a sale of goods? Test: What is the main purpose of the K? If main purpose is good ( UCC If main purpose is service ( Not UCC Efficient Breach DEF: When the breaching party is able to breach and enter into a new (pareto superior) transaction, and is able to compensate the non-breaching party w/ the expectancy interest. Non-breaching party is no worse off, and breaching party is better off. Policy: Allow for efficient breach is beneficial for economic transactions. Problems: Accounting for externalities Mutual Assent DEF: Mutual agreement of both parties to a K Both parties intend to be bound Maj/Min: Considerations for Assent (look to both) Maj: Objective Theory of K DEF: Outward manifestation of intent Test: Would a reasonable third person view it as a serious offer Pro: Easy to measure evidence Con: Could create bind person to a K who didnt intend to Min: Subjective Theory of K DEF: Looks to the actual intention of the parties (mind) Test: Did the parties think they entered a K Pro: K between people who actually intend it Con: Difficult to measure Courts will not enforce a K where both parties didnt intend to enter. If Ds objective acts suggested he was serious, but he was actually joking, and P intends to make a K, courts will enforce the K. Policy: Take Ks seriously. Misc. If K is written ( courts will most likely enforce it. Writing is objective act, showing that youre not joking. Types of Ks Bilateral-K Promise is consideration for a promise Rule: Binding upon acceptance Unilateral-K Performance is consideration for a promise Rule: Binding upon completion of performance Policies Family Generally, try not to recognize Ks between family members. Reasons: Motivated by altruism (gifts) Outside of legal sphere Judicial economy Splits up families From Contract Avoid people from entering Ks who dont want to be in them To Contract Court wont rescue bad business decisions. Against restraints in trade/lande Offer General Rule: Act by the offeror that gives the offeree the power to make a K by acceptance. Quantity must be definite or clearly ascernible. If not ( no K. Unfair to bind party where Q is unknown. KEY Aspects to Look For: Invitation to open negotiations? Specificity? Open Terms are allowed (Courts wont enforce open terms that are deal breakers) Language regarding offerors intent to be bound? Sequence of communications. K comprises of all communications leading up to offer and acceptance. Context of the communications Industry standards (may require tons of detail) (may clarify vagueness of terms) After acceptance, offeror has no right to change the terms. Offeror is the master of the bargain Has tremendous power in setting the offer If offeror excludes a store policy from the offer, hes screwed. EX. Ad for lapin stole. Didnt have policy about men. Didnt matter that customer knew of the policy. Policy: Freedom from K ( Construe offers narrowly. Courts want to be sure D intended offer. If there is reasonable doubt as to whether D meant to make an offer ( court wont find a K. Offer Application Advertisements As Offers Rule: Advertisements arent treated as offers Treated as solicitations for offers. Not specific or targeted. Q is typically unknown. Exception: Advertisements may be treated as an offer, where it is clear, definite, and explicit, leaving nothing open for negotiation Rule: Reward notices are offers Bids As Offers General Contractor Rule: Bid is an offer 2 Situations that Allow for Rescission of K Clerical Error Honest Mistake Clerical Error Cant be error in judgment more deliberate. No negligence Prompt notification of the mistake (No harm to the offeree because they can select the next lowest bid) Offerees Knowledge of Mistake If the offeree has reason to know of the offerors material mistake @ the time of acceptance ( offeror isnt bound. Issue: When does offeree have reason to know? Voiding a K for partys mistake Rule: Where a mistake of one party @ the time a K was made as to a basic assumption on which he made the K has a material effect on the agreed exchange of performances that is adverse to him, the K is voidable by him if he doesnt bear the risk of mistake, and: The effect of the mistake is such that the enforcement of the K would be unconscionable, or Other party had reason to know of the mistake or his fault caused the mistake. Party bears the risk of mistake when: Risk is allocated to him by agreement He is aware, at the time the K is made, that he has limited knowledge, but treats his limited knowledge as sufficient The risk is allocated to him by the court on the grounds that it is reasonable in the circumstances Termination of the Offerees Power of Acceptance Lapse of an Offer Rule: If no time period is specified in the offer, it lapses after a reasonable time. May also lapse based on the offers terms. Generally, an offer made face-to-face lapses @ end of conversation. Rule: A late acceptance is treated as a counteroffer. Revocation of an Offer Rule: Offers are freely revocable before acceptance. Exception: Option K Direct Revocation: Offeror gives direct notice to offeree of revocation Any words indicating an intention not to enter a K. Policy: Freedom from K ( Construe revocations broadly Indirect Revocation: Offeror takes definite action inconsistent w/ an intention to enter into the K, and the offeree acquires reliable information regarding revocation, prior to his attempt to accept. Policy: Incentive for contracting parties to share information Revocation of Advertisements Rule: Offeror-business gives notice of revocation by using publicity equal and similar to that used in the offer. (Good effort) Offeree doesnt need to be aware of the revocation Offerors Death or Incapacity Rule: Offerees power of acceptance is terminated by the offerors death or supervening incapacity Even if death is unknown to the offeree. Death/Incapacity of the offeree has the same effect. Exception: Option K Offeree still has the power to accept. After a K has been formed, the death of a party may affect obligations. Offerees Rejection Rule: The rejection of an offer by the offeree terminates the power of acceptance. Rule: Mirror Image Rule Rejection of an Option K Rule: Power of acceptance under an option K isnt terminated by rejection or counter-offer. Option K Rule: Offer cant be revoked for a period of time. Ways to Create an Option K Consideration Firm Offers Reliance (NY): Promise to hold open in writing Statute Uni-K: partial performance Consideration Rule: In a writing and signed by the offeror. Offeree pays consideration to hold the offer open. (Separate K) If short period ( nominal consideration If long period ( valuable consideration Purpose: Prevent speculation by offeree Firm Offers UCC: Offer by a merchant to hold an offer open in signed writing. If no time period is stated ( held open for reasonable time period Cant exceed 3 months Reliance Rule: An offer which the offeror should reasonably expect to induce action or forebearance of substantial character on the part of the offeree before acceptance and which does induce such action or forebearance is binding as an option K to the extent necessary to avoid injustice. Uni-K: Partial Performance Rule: Commencement of performance makes the offer irrevocable Offere has option K while tendering performance Offerors duty is conditional upon offerees completion of perfomrnace. The performance must be bargained for EX. obtaining a loan to purchase a house was preparation for performance not bargained for performance. Acceptance General DEF: A voluntary act of the offeree whereby he exercises the power conferred upon by the offer, creating a K. Manifests assents back Offeror is bound when accepted Can be bound w/o knowing it How to Accept Rule: Mirror Image Rule Rule: Acceptance must be exact to the terms of the offer w/o the slightest variation. If acceptance varies ( = rejection of the original offer and becomes a counter-offer Exceptions: Addition/different terms in the acceptance were implied in the offer Additional/different terms werent obligatory, but were an expression of a desire Results in K on offerors terms Parties agree K exists, but unclear of the controlling terms Typically, party that sent the last form was the offeror and set the controlling terms. Policy: Find that a K exists UCC: Battle of the Forms( See infra) Terms of Acceptance Offeror sets the terms of acceptance (performance, promise) May dispense w/ notification of acceptance May set specific method of acceptance. Rule: Offeree must undertake reasonable attempts to notify the offeror of acceptance. Offeror doesnt need to receive actual notice Time of Acceptance Mailbox Rule Rule: Acceptance is at time of dispatch of notification After dispatch: The offerors power to revoke is terminated The offerees power to reject is terminate Reason: holding otherwise would effectively give offeree an option K. Exception: If offeree uses an inadequate medium for acceptance, then acceptance is @ time of receipt. Rule: Acceptance must be made in any medium invited by an offer Must be of @ least equal speed as how the offer was presented. Offeror may set the specific medium for acceptance in the offer. Acceptance Methods Acceptance of a Bilateral K Rule: Can begin performance of a promise as acceptance to the K, but the performance must be sufficient to indicate it as an acceptance. Rule: Still requires giving reasonable notice to the offeror. Issue: What if offeror tries to revoke before offeree had a chance to give reasonable notice? Must be objective proof that acts taken were acceptance of the offer subjective assent isnt enough. EX. Loading up truck to do landscaping and going to house = beginning performance w/ objective proof. Woodworker buying wood /=/ beginning performance w/ objective proof. Rule: If offer calls for an exclusive manner of acceptance, acceptance in a different manner doesnt form a K. Exception: If there is a meeting of the minds on the altered type of acceptance. Offerors knowledge, consent, and acquiescence. EX. Offer calls for acceptance by writing, but offeree begins performance @ offerors plant. All construction contracts are treated as bilateral Ks. Reason: Bilateral K provides greater protection to the offeror. In uni-k, construction co. would have no obligation to complete performance. Acceptance of a Unilateral K Rule: No notice of acceptance is necessary. Exception: If rendering performance is insufficient to provide adequate notice w/in reasonable time ( No K, unless: Offeror learns of performance w/in reasonable time Offeree undertakes reasonable diligence in providing notice Offeror indicates that acceptance isnt required May be implied by deal. EX. Carbolic Smoke Ball advertisement. Silence as Acceptance Rule: Silence isnt acceptance Exception: Silence may operate as acceptance, where: Offeree takes the benefit of offered services w/ reasonable opportunity to reject them and reason to know they were offered w/ expectation of compensation Offeror has stated or given the offeree reason to understand that assent may be manifested by silence Because of prevous dealings, it is reasonable that the offeree should notify the offeror if he doesnt intend to accept. Exception: If the terms of the offer are unreasonable, the offeree isnt bound by silence as acceptance UCC: Acceptance UCC: Unless clearly indicated by the offer: An offer shall be construed to invite acceptance by any medium reasonable in the circumstances An offer to buy goods for prompt shipment invites acceptance either by promise to ship or performance of shipment of conforming or non-conforming goods. Shipment of non-conforming goods doesnt constitute acceptance, if: Seller: seasonably notifies the buyer that the shipment is only an accommodation Buyer: Doesnt accept the non-conforming goods. UCC: Battle of the Forms Rule: A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the K, unless: The offer expressly limits the acceptance to the terms of the offer; They materially alter it; or Notification of objection to them has already been given or is given within a reasonable time after notice of them has been received Conduct recognizes K, even if no assent to term ( = K. 2-207(1) Acceptance or Written Confirmation? Plays role in deciding terms of K If confirmation of terms that were part of original K ( not additional If confirmation of terms not part of the original K ( = additional Expressly Conditional on Offerors assent Rule: Must clearly show that offeree is unwilling to proceed w/ the transaction, unless he is assured of the offers assent to the additional/different terms Issue: When is it expressly conditional? Look to Partys Actions Not words Not: Notify after performance Exception: If its fair (see infra) Is: Notify before performance Issue: Is it fair to bind the offeror to terms that he had no knowledge of when making the K? No: Onerous to return; Person forced to assent had no power; Practical make terms known prior to K Yes: Impractical to make terms known prior to K; Not onerous to return; Person forced to assent had the power; Reasonable to expect terms come after making the K. Rule: A buyer accepts goods, when after an opportunity to inspect, he fails to make an effective rejection Policy: Economic Efficiency Assent by the Offeror Rule: Silence/payment/continued orders /=/ Assent Exception: silence may be assent, if evidence from prior business dealings or industry customs 2-207(2) Issue: What is a Material Alteration RL: Causes undue hardship CTR: Transaction wouldnt have occurred Undue hardship is irrelevant Issue: What to do w/ Different Terms? 3 approaches Knockout Rule Dropout (Last Shot) Rule California/Posner Rule USE: Knockout Rule Rule: 2 terms that are different knock each other out. Both are excluded from K If gap ( filled by UCC gap-fillers (gap-fillers dont include arbitration clauses) Reason: Maj. Rule. UCC encourages application of uniform nationwide standard even if imperfect. Dropout Rule Rule: Offerees discrepant terms drop out, and the offerors original terms become part of the K (Terms in acceptance are ignored) Reason: Leading Min. Offeror is master of the bargain. California/Posner Rule Rule: Treat different terms as additional terms. Reason: 1 st. Consistent w/ purpose of 2-207 and makes most sense. Fair. 2-207(3) Rule: If conduct by both parties recognize the existence of a K ( K will be comprised of the terms in which the writings do agree, w/ any UCC gap-fillers Consideration General 2 theories of Consideration Benefit-Detriment Bargain Promise w/o consideration is unenforceable Benefit Detriment Min (NY): For their to be consideration, there has to be a benefit to the promisor or a detriment to the promisee. Problem: Can make gifts look like Ks Bargain Theory Maj: Reciprocal Nature of Inducement Rule: Act or promise of each side is used to support the act or promise of the other side. Promise & Consideration motivate each other Bargained For Exchange Mutuality of Obligation Types of Consideration Promise Performance Performance Act other than performance Forebearance of a legal right Rule: In good faith, by a reasonable person Creation/modification/destruction of a legal relation (i.e. modification of an existing K) NY: If its in writing, and signed by party against whom enforcement is sought ( = Consideration (Forming/Modifying Ks) Sufficiency of Consideration Rule: Courts arent concerned w/ adequacy of consideration; it only has to be sufficient. If consideration isnt sufficient, its a gratuity. No K. Peppercorn: consideration of trifling value. Smokescreen. Policy: Courts dont rescue bad business decisions. Rule: Consideration is to be tested by the agreement & not what was done under it. EX. Promising to forebear a collection of debt until you feel like it and not collecting for 3 years isnt consideration Issue: What did the parties bargain for? EX. Promise to mow lawn implies coming to your house ( bargained for. EX. Promise to buy house doesnt imply getting financing ( not bargained for. Unenforcable Promises Categories of Unenforcable Promises Past consideration Unsolicited Action Action not taken in response to an offer Gratuitous Illusory promise Not bound to anything; can do whatever you want. EX. Promise to forbear collection of debt until you feel like it. Reason: Top3 dont have reciprocal inducement ( No consideration. Exception: Moral Obligation Rule: Promise made in recognition of a benefit previously received is binding to the extent necessary to prevent injustice. Issue: When is it necessary to prevent injustice? EX. Save persons life, causing own injuries ( binding EX. Spend $ in caring for others kid ( Not binding Exception: Promising to fulfill prior promise that was unenforceable EX. Promise to pay a debt that is no longer enforceable because of statute of limitations Gratuities Issue: Whether something is a gratuity Obviously a gift. May have weak bargained for consideration. (insufficient) EX. Come see me, and Ill give you my house. (kinda want to see the person) Possible for something not to be a gratuity if there was strong bargained for consideration. (sufficient) EX. (To estranged daughter) Come see me, and Ill buy you a ring. Seemingly Illusory Promises General A K may lack an explicit promise, but the whole writing is instinct w/ obligation. Promise can be fairly implied EX. Promise to pay half of profits implies using reasonable efforts to make profits. Rule: Its assumed that parties use good faith and reasonable efforts in performing their obligations. If they dont ( = Breach. Satisfaction Clauses Rule: Arent illusory because the promisor is bound to certain external standard. Must act in good faith Satisfaction Clauses: 2 types Commercial Clause Reasonable Person Std. Fancy, Taste, Judgment Clause Bound to external circumstance. Real Estate Signing: Time K is signed Closing: Time K is official In between, get things like regulatory approvals. The are conditions to closing, allowing one party to not go forward w/ deal if a condition isnt met. Output & Requirement Ks UCC: Not void for indefiniteness or mutuality of obligation because held to mean good faith requirement, and no unreasonably disproportionate output/requirement may be tendered or demanded. (Good faith is implicit in K) Use stated estimate or prior output/requirement Exclusive Dealings UCC: imposes parties to use reasonable effort (Reasonable efforts is implicit) Consideration Application Employment K Issue: Is an agreement signed shortly after employment begins part of the original agreement? (Does it have consideration?) RL: Yes. Policy: Pragmatic. Typically all Ks arent present @ moment of hire. Against: bargain theory. Rule: At-will employment contracts are valid, where the promises are relatively equal. Issue: What if promises are unequal? (Non-comepetes for at-will employment) If unequal ( void for lack of consideration. However, can take a weak bilateral K ( turn into a good unilateral K. Factors Affecting Sufficiency of Consideration Length of employment after signing K Circumstances under which employee leaves Beneficial change in employees status Severity of the non-compete Policy: Against Restraint of Trade (Burden of proof is on employer for non-compete) Employee Handbook Issue: Was there consideration for the change? Issue: Was there notice? 3 Arguments for Enforcing Policies of Handbooks Administrative Law Model Mutually enhance the employment relationship People doing the same job w/ the same obligations Unilateral K Contents of handbook become uni-k. If given proper notice, changing the handbook is an offer, and employee working is acceptance. Part of original K If changed soon after the original hiring. (REQ: Policies must be applied consistently & uniformly) Against: Bargain Theory Pre-contractual Liability General Rule: Neither party is bound to a K until an offer has been accepted. Exception: Some circumstances in which a party may incur liability prior to formation of K. Unilateral K Rule: Once the offeree begins performance, offeror loses power to revoke. Offerors performance is due upon completion of performance. Methods of Enforcement for Pre-contractual Liability Reliance Restitution Basis for pre-contractual liability 5 bases SC bids Restitution of benefits conferred in negotiations Misrepresentation to prevent a K Promise Express Agreements to negotiate in good faith Revocability of SC Bids Rule: Enforceable through Reliance SCs bid contains subsidiary (implied) promise SC wants GC to use his bid ( SCs bid submission implies that SC will not revoke if GC uses his bid. ( SC cant revoke after GC has submitted his bid. GC relies on SCs promise. Reasonable for him to rely on the promise. GCs legal position has changed to his detriment. Damages through Reliance Rule: GC has duty to reasonably mitigate damages If he does ( expectancy damages is the difference between the bid he later accepts & SCs bid. Exception: If SC alerts GC that his bid submission is a rough estimate and is unsure of the specifications ( GC cant use reliance to enforce the specific bid Cant reasonably rely on it. Maybe can use it to enforce a reasonable value. Exception: If GC had reason to believe SCs bid was in error ( GC cant use reliance. Issue: Whether GC can tell if bid was in error based on variation in bid values Generally, GC cant tell from bid value alone. Issue: Is GC legally bound to use SCs bid, prior to acceptance of it, after he has been awarded the K? No. Reliance isnt an enforcement option for SC. SC didnt rely on GC in submitting bid. Submitted bids to multiple contractors SC had to spend $ in calculating the bid for multiple contractors, regardless if it was awarded the bid. Reason: Efficiency More efficient for economy. May be regulatory requirements. Misrepresentation to prevent a K Rule: Negotiating party cannot misrepresent its intention to come to terms. Promise (Liability When Negotiations Fail) General Promise doesnt need to be an offer to be enforced through relieance Rule: Enforcing a promise through Reliance Rule: Rs90. Issue: @ what point is a promise sufficient to rely on? EX. Assurances that a K will be made. Damages P will only recovery damages after P made a promise that was sufficient for reliance. Since there was no K breached ( award damages solely to prevent injustice. No K ( No expectancy damages Express Agreements to negotiate in good faith Rule: No obligation to negotiate in good faith Exception: An express agreement to negotiate in good faith is enforceable, where: Both parties intend to be bound Terms were sufficiently definite to be enforced There was consideration General Really needs to be express because of the general rule. The words good faith dont appear in these agreements EX. only negotiate lease of it to P to completion. (Until completion of negotiations. Reasonable time frame is inferred). Express agreement to negotiate in good faith must be an enforceable K. Need: O + A+ C = K If no consideration ( may be able to make the promise to negotiate in good faith enforceable through reliance. Issue: What is good faith? No definition. Nixes trickery Doesnt require to reveal bargaining strategy or all information helpful to the other side, or refrain from taking advantage of opportunities. EX. Bad faith is promising to negotiate w/ only one party, and then negotiating with another. Damages Probably dont get expectancy damages because the K was only to negotiate in good faith. Misc. Types of Ks Tribune 1K: Binds party to ultimate objective Tribune 2K: Binds party to negotiate to preliminary step (negotiate in good faith) but not the ultimate objective. Definiteness General Serves 2 functions In order to know if K was breached, must know what terms were Implicit in protecting the partys expectation interest Must determine the scope of the promise w/ precision Rs: Cant have acceptance unless the terms of the K are reasonably certain Reasonably certain = terms provide a basis for determining the existence of a breach and giving an appropriate remedy. UCC: Doesnt fail for indefiniteness, if there is a reasonably certain basis for remedy Doesnt need all the terms Definiteness Interpreting the K Can piece together terms of agreement from multiple sources not necessarily written down. Ex. Prior communications to O&A; Prior dealings; Course of performance; Reference to external sources. Reasonable efforts and good faith are sufficiently definite. Referenced to external standard. It is sufficient if the agreement provides the means for making its terms sufficiently definite by the time that performance is called for Rule: A party who performed under an agreement that is unenforceable for indefiniteness is entitled to restitution. Issue: Whether the agreement is definite enough to be enforced Test: Whether the agreement contains all materal and essential terms to be incorporated in the subsequent document. ( Isnt necessary that the contains all terms of the K, as long as it contains an objective method of determining the essential terms. EX. Option to later renew lease, to be renegotiated @ market rate. Statute of Frauds General Oral agreements are unenforceable if they are w/in the statute; must be a writing. Oral agreement can start out w/in the statute, but be removed and become enforceable Signing (of Written Agreement) Rule: Anything that is intended to authenticate a document. Issue: Is Letterhead a signing? Did company intend to authenticate the document? Issue: Is a voicemail a signing? Did he intend to authenticate the document? Can voicemail be verified? (Yes) Statute of Frauds = Defense ( D must raise State Statute of Frauds Writing Rule: Substantially the whole agreement must be in writing, including all material terms. Rule: Following are unenforceable, unless there is a written agreement, signed by the party against whom it is being enforced against: Suretyship DEF: Promise to answer for the debt or default of another Sale of land or interest in land (Not lease) Agreement not to be performed w/in 1 year Loan for > $50k Marriage Agreement to charge any executor upon a promise to pay damages out of his property. Surety Policy: Protect those alleged to have guaranteed a debt Promisor received no direct benefit, making it difficult to prove the oral promise was made. Issue: When is a promise to pay another debt a surety? Key: Surety steps in to answer for the debt of another, to help out the debtor Rule: Main Purpose Doctine remove the promise to pay debt from the statute, wherever: The main purpose and object of the promisor isnt to answer for anothers debt, but to subserve some purpose of his own Factors: Main Purpose Promisor intended to become primarily liable for the debt, in effect making it his original obligation, rather than to become a surety for another Consideration for the promise. Receipt of the consideration was the promisors main purpose primarily for his use and benefit Default was prior to the promise Principal obligor was involved in the transaction Applies when the financial interests of a promisor in a commercial K replace the gratuitous elements often present in a suretyship Justification: Self-interest of promisor confirms that the promise was made 1 Year Clause Issue: When is a promise not to be performed w/in 1 year Rule: Narrow Interpretation Statute doesnt apply to any agreements that are capable of performance w/in 1 year even if longer performance is probable Rule: Statute doesnt apply to oral agreements for lifetime employment (till death) Employees death completes performance, and he could die w/in 1 year. Ameliorating the Operation of the Statute General Courts aims not to prevent Ks purely because of the statute Approaches to enforcing oral agreements Part Performance Rule: 3 Acts that make oral K enforceable Paying the full K price Taking possession of the property Making Improvements Issue: What is partial performance? Rule: Partial payment alone isnt enough Partial payment w/ substantial improvement may be enough Estoppel Issue: When is reliance allowed to enforce oral K? Rule: To prevent unconscionable injury or unjust enrichment ( estopped from asserting statute of frauds defense Restitution Rule: A party who has conferred a benefit on the other party under a K that is unenforceable because of the statute of frauds, can get restitution. UCC Statute of Frauds Rule: Must be a writing sufficient to indicate a K for sale of goods of $500 or more, signed by the party against whom enforcement is sought (Relaxes writing requirement) Writing isnt insufficient because it omits or incorrectly states terms Not required to contain all material terms Must contain Q. If Q is misstated, its not enforceable beyond the Q written Can have reference to multiple outside documents Amelioration of the Statute Rule: Dont need signature of party against whom enforcement is sought, if: Between merchants w/in a reasonable time a writing is sent in confirmation of (oral) K Writing is sufficient against P, and D has reason to know of its contents It satisfies S1 UNLESS, there is written notice of objection to its contents sent back w/ in 10 days (Key: Loosens up who has to sign) Reason: Efficiency; Merchants are businessmen Issue: Reason to Know If the contents contain something different than the oral agreement, then D had no reason to know Issue: Notice of Objection Hypo. We ordered 2000 not 3000? Other Ways to Enforce Ks that dont Satisfy S1. Goods are specially manufactured for buyer and arent suitable for sale to others in the ordinary course of business and the seller, before notice of repudiation and under circumstance which reasonably indicating that the goods are for the buyer, has made a substantial beginning of their manufacture; or If the party against whom enforcement is sought admits that a K was made; or If payment has been made and accepted, or goods have been received and accepted. Issue: Whether to allow use of the amelioration methods of State statutes for UCC Policing the Bargain General Sometimes, parties meet the legal requirements for a K, but courts wont enforce it. Status of Party (Contractual Capacity) Minors Rule: Contract of a minor is either void or voidable @ the option of the minor. Reason: Want a presumption against K w/minors, but acknowledge that minors may want to contract. Exception: K of a minor for necessaries, is enforceable. Things required for own care/survival Enforceable @ least to the extent of their reasonable value Disaffirming (Rescind) K Minor may disaffirm a K w/in a reasonable time after reaching the age of majority Minor must return the goods to the seller. Policy: Prevent unjust enrichment. May not allow rescission for Ks already performed. EX. Child actor and agent ( Hard-and-fast on age requirement Mental Infirmity Rule: A person incurs only voidable contractual duties by entering into a transaction if by reason of mental illness or defect, where: He is unable to understand in a reasonable manner the nature and consequences of the transaction, or He is unable to act in a reasonable manner in relation to the transaction, and the other party has reason to know of his condition. Issue: How to tell if party can act/understand in a reasonable manner? ( Look @ objective evidence in the rest of her life. EX. Friends, DRs, Treatment Must have objective evidence Unfairness General Rule: Dont assess adequacy of consideration no requirement of equivalence in the values exchanged. Exception: When acting in equity, courts only enforce fair bargains ( must assess adequacy of consideration. If K is unfair and unenforceable in equity ( still enforceable in law Factors: Unfairness of Bargains Value of Exchanged Consideration Viewed prospectively, @ time of deal. (Ex. Aunt dying) Risks of the party Unequal Bargaining Power Couldnt negotiate @ arms length (Ex. Loan for trailer park) Harm-Benefit in Specific Performance w/ Businesses & Middlemen Markup alone isnt enough to be unfair, must be something in dealings that is unfair (fraud). Middlemen play important economic role in society. Typically, courts will enforce because their businessmen negotiating @ arms length. Overreaching General Pressure In Bargaining Pre-Existing Duty Rule Rule: Performance of a legal duty owed to the promisor, which isnt in doubt nor the subject of honest dispute, isnt consideration Promise made to modify K for the same duty that was bargained for ( w/o consideration Remedy: Transfer excess funds back Exception: If promise to modify K (greater consideration for performance of same duty) is fair in view of the circumstances not anticipated by the parties ( = consideration. Mutual agreement to modify the K Promise cant be made through coercion. Still dont have to re-negotiate ( can hold party to original terms. Exception (NY): Can modify K w/o fresh consideration through signed writing by party against whom enforcement is sought Modification cant be made through coercion. UCC: An agreement modifying a K needs no consideration to be binding. Must be modified in good faith Issue: When is modification of K due to genuine assent or coercion? Duress DEF: Impermissible pressure exerted by one party over another either during the initial bargaining or the attempted renegotiations. Deprives party of its freewill. Rule: Duress Other Party made Improper Threat Party put up some form of Resistance (If coercive effect is strong ( little resistance needed) No Reasonable Alternative (If coercive effect is weak ( more resistance needed) Rule: Duress by 3rd party K is voidable by the victim unless the other party to the transaction acted in good faith, w/o reason to know of the duress, either gives value or materially relies on the transaction. Rule: Economic Duress (= Improper Threat element) Threat to w/hold needful (Required) goods; OR Threatened to w/hold unless other party agrees to further demand AND those goods couldnt be maintained from some other source. Rule: Must goto court w/ argument of duress @ time of duress Exception: If its reasonable to wait, to avoid harm from the threat Misc. Financial difficulty, alone, isnt duress. May be, if caused by other side. Empty threats arent duress Undue Influence DEF: Persuasion which is coercive nature; overcomes freewill w/o changing your mind. Rule: Dominant-Subservient relationship Excessive pressure by dominant party. Factors: Excessive Pressure Discussion of the transaction @ an unusual or inappropriate time Consummation of the transaction in an unusual place Insistent demand that the business be finished @ once Extreme emphasis on bad consequences of delay Use of multiple persuaders by the dominant party against a single subservient party Absence of third party advisers to the subservient party Statements that there is no time to consult 3rd party. Considers both objective and subjective factors Were they actually overwhelmed? Would reasonable person be overwhelmed? Concealment & Misrepresentation (Fraud) General Is big deal in equity ((equity only enforces fair bargains) Concealment Rule: No obligation to communicate information Non-liability for bare non-disclosure in business deals @ arms length and no fiduciary relationship. Exceptions: Obligation to communicate information, where: He knows that disclosure of a fact that is necessary to prevent a previous assertion from being a material misrepresentation He knows that the other party is mistaken as to a basic assumption of the K, and refuses to tell them ( = not acting in good faith. Where he knows that disclosure of the fact would correct a mistake of the other party as to the substance of the writing Where the other person is entitled to know because of a relationship of trust and confidence between them Misrepresentation Rule: For a misrepresentation to be actionable, it must be one of fact, rather than opinion. Salesman are allowed to commit puffery Exceptions: (When puffery is excessive) Fiduciary relationship Trickery Not dealing @ arms length Representee doesnt have equal opportunity to become appraised of the truth or falsity of the fact represented A statement of a party having superior knowledge may be regarded a statement of fact, although it would be considered as opinion if the parties were dealing on equal terms. If party says tests are objective ( must actually be objective. Unconscionability & Adhesion Ks General Rule: Absent fraud, party is bound to written agreement whether or not he read or understood it. Reason: Parties negotiated the agreement. Freedom to K. w/ Exculpatory agreements ( hopefully, the bargain allows for Renter to reduce rates because of no need for insurance. (Different if written in a way that everybody cant understand it) Adhesion K DEF: Standardized K, imposed and drafted by the party of superior bargaining strength, relegating to the subscribing party only the opportunity to adhere to the K or reject it Characteristics: Adhesion K Disproportionate Economic Power Side w/ relative power dictates terms No Opportunity to Bargain Drafting party usually has some advantage in time and legal expert advice (Takes time in drafting; signing party has little time in looking it over) Free Choice of weaker party Importance of the subject to weaker partys well-being No Existence of Competition among stronger party If entire industry provided same terms ( No choice. Legislation by K Where stronger party band together and use monopolistic power to overturn the will of the legislature through K. EX. exculpatory agreements of landlords. (Adhesion Ks arent automatically unconscionable However, since only 1 side is setting terms ( easier to slip in unconscionable terms TEST: Adhesion K is generally enforceable, w/ 2 exceptions: Is it K of adhesion? ( Yes. (Continue) Term in K that that isnt within w/in reasonable expectations of the party ( Dont Enforce (Done only w/ adhesion K) (Ex. K written in a way to mislead everybody. Unfair surprise) Unduly oppressive or unconscionable ( Dont enforce Even if w/in reasonable expectations of party (May be done to any K?) Unconscionable Issue: What is unconscionable? Community/Industry standards about fairness of terms Account for broader issues. Policy UCC: When K is unconscionable @ time it was made, court can do what ever it wants w/ it: throw it out, re-write the clause; refuse to enforce K. Principle: Prevention of oppression and unfair surprise not changing allocation of risks because of superior bargaining power. DEF: Unconscionable Something which is unfair, and no reasonable person would enter into if had ability to not enter into. 2 Types of Unconscionability Procedural DEF: Fault/Unfairness in the bargaining process that took place in making the K (Something wrong in the bargaining process that is unconscionable, regardless of the outcome) Substantive DEF: Fault/Unfairness in the outcome (Something in the outcome is unfair ( unconscionable) (Both must be present in order for court to refuse enforcing a K but most not be present to the same degree) Large amount of one may be enough on its own Sliding Scale Characteristics: Unconscionability Absence of meaningful choice Disparity in bargaining power Unable to understand terms Price Unconscionability DEF: Price charged was so high that K was unconscionable on that ground alone. Issue: Determining appropriate price Dont want damages awarded to be too high because the sellers serve a purpose and dont want to discourage them. Still allow for a price > MSRP (Account for costs, shipping, finance, and profit) Factors Mathematical disparity Limited financial resources of purchaser, known to sellers @ time of sale Commercial Unconscionability Difficult for businesses to claim unconscionability, where the bargaining positions are equal and less likely to be unfairly surprised. However, possible for business to claim unconscionability, where: Gross disparity in bargaining power Dictating of terms of agreement Grossly unfair and oppressive contractual provisions Apply the same unconscionability rules just more difficult to be unconscionable. Severability DEF: Ability to take unconscionable clause and remove it from K May not enforce the K, remove the clause, limit the clause Public Policy General Regardless if K was made, court may not enforce obligation because of illegality or public policy Rule: K is unenforceable if its enforcement is clearly outweighed in the circumstances by a public policy against enforcement. 2 Situations where it occurs K violates a specific law K doesnt violate a specific law, but goes against general public policy Issues: How to figure out what public policy is Burdens on different parties Burden of proof is on the party that is arguing that the K violates public policy. Discretionary Both judicially and legislatively created public policy. Factors for enforcement Interests in enforcement Parties justified expectations Any forfeiture that would result if enforcement were denied (unjust enrichment) Any special public interest in the enforcement of a particular term Public Policy Interests Against Enforcement The strength of that policy as manifested by legislation or judicial decisions The likelihood that a refusal to enforce the term will further that policy (Other methods of serving that policy) The seriousness of any misconduct involved and the extent to which it was deliberate The directness of the connection between that misconduct and the term. General violation of public Policy Nature of the conduct Extent of public harm Moral quality of the conduct of the parties in light of the prevailing standards of the community Judicial Policy Against Restraints in Trade Courts try to assist commerce Covenant not to compete is construed against the party seeking to enforce them. Burden is on the party seeking to enforce them. Non-compete can only prohibit unfair competition. Can only reasonably protect his business interests from unfair competition. Cant prohibit fair competition. Rule: Rule of Reason A restraint is reasonable, only if: Is no greater than is required for the protection of the employer Does not impose undue hardship on the employee Is not injurious to the public. Techniques for dealing w/ Non-competes: Min (Old): All-or-Nothing Either enforce the non-compete, or dont. Min: Blue Pencil Change terms and re-write grammatically. Cross out unreasonable terms Maj: Reasonableness Rule: Court can enforce the non-compete to the extent necessary to protect the employers interests, if: No bad faith by the employer (court is using equitable powers, so party seeking their use cant be acting in bad faith). Not overly burdensome Doesnt impose undue hardship Doesnt hurt the public Alternate Methods of Enforcement Reliance Rs90: Promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee of a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted may be limited as justice requires. (A charitable subscription or marriage settlement is binding without actual reliance.) Damages Default: Expectancy Can award other damages Compensate for opportunity foregone in reasonable reliance on the promise not for lost expectations of future earning potential. EX. At-will employee cant recover for future salary. EX. Bacardi decreased price, business liquidation sale. Uses Substitute for consideration Basis for enforcing promises (including pre-contractual) Restitution General DEF: Alternate basis for recovery Recovery is based on preventing unjust enrichment Law finds an implied / Quasi-K Legal fiction NOT a substitution for consideration or a method of enforcement Policy: Use sparingly. Damages Default: Restitution Dont get expectancy because there was no K. Rule: Recover a reasonable price Not necessarily full professional fee Issue: What is reasonable? Factors: Value it would cost D to receive Value it cost P to confer Value it increased Ds welfare Policy: Prevent injustice Confer unjust enrichment back Misc. Rule: Restitution will not be granted gratuities. Law presumes saving persons life from accident is gratuitous, due to mores of society. Rebuttable presumption Issue: When is a service a gratuity? Factors: Burden placed on P in providing service P acted in professional capacity. Generally, family agreements are gratuities not always. Rule: Quasi-K provides a remedy only where no other remedy exists Damages General Goal: Compensate not punish. Disgorgement of profits is punitive. 4 Types of Legal Damages Expectation Reliance Restitution Nominal Once K is formed ( binding to the full extent (expectancy). Issue: If instant repudiation, should they get specific performance? Expectation Default damage DEF: The right to receive the full benefit of the bargain Goal: Put the non-breaching party in the position he would have been if the contract had been performed. If there isnt reasonable certainty for establishing expectation value ( court will give Reliance. Reliance DEF: Party has a reliance interest if his position changed to his detriment by reliance on the contract. Goal: Put the non-breaching party in the position as if no K had been made. Rare to account for lost opportunities Policy: Given uncertainty, exercise generosity in favor of the injured party Restitution DEF: Non-breaching conferred a benefit on the breaching party. Goal: Return the benefit conferred on the breaching party to the non-breaching party. Nominal Damages Important to acknowledge the existence of a breach, but no actual harm occurred. Equitable Powers General (i.e. Specific Performance; Injunciton) Rule: Will not be ordered if damages would be adequate to protect the interests of the injured party Use only when monetary damages dont actually compensate the injured party. UCC: Where the goods are unique or its proper in the circumstances. When acting in equity, courts only enforce fair bargains. Will deny enforcement if its unduly oppressive or unconscionable. Use of Equitable Powers Rule: Parties must have intended ongoing K, and the terms of the K must be adequately definite. Intent to be Bound Equitable powers are based on mutual assent For fairness, parties must have intended ongoing relationship otherwise, specific performance doesnt make sense. EX. Did parties intend to be bound in the future when the agree-upon price setting mechanism failed? Yes, invested in each other. Definite ( So that a court would know what to order, if it ordered specific performance EX. K sets out framework for price. Past dealings add definiteness. May award where determination of long-term damages would be too speculative. Clean Hands Doctrine Courts wont enforce in equity a corrupt bargain. (party seeking enforcement must come in w/ clean hands) RS + UCC: Requirement to act in good faith once K is made No duty in K formation Policy of UCC: liberally interpreted, to promote its policies >? S Y  ! ( X m 2 H ; < =   P Q ] ^ i j #$߿߿߰߿ߦߦ߿߿߿߿߿߿߿߿߿߿߿߿߿߿hBQhBQ5CJhBQhBQ5B*CJphhBQhBQ>*CJ jhBQhBQCJ *hBQhBQCJhBQhBQCJhBQhBQ5>*CJhBQhBQ5>*CJ$A9=T_p#HY S  !  & FgdBQ & FgdBQ & FgdBQ & FgdBQgdBQ$a$gdBQG! D S n - I =  Q ^ j  & FgdBQ & FgdBQ & FgdBQ & FgdBQ$i Dfghnow  & FgdBQ & FgdBQ & FgdBQ & FgdBQ$a$gdBQgdBQ &dPgdBQ & FgdBQ & FgdBQ & FgdBQ$hi  CDeghnow{5Nhq126GHstյ *hBQhBQ5CJ *hBQhBQCJ jhBQhBQCJ *hBQhBQCJhBQhBQ5>*CJhBQhBQ5>*CJ$hBQhBQ>*CJhBQhBQCJ> 5No|_} 0Z4] & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ6h2HtDc%+" & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQtCDbc%)$tm-.?@D :;QRV./LM *hBQhBQCJ jhBQhBQCJhBQhBQ>*CJhBQhBQCJhBQhBQ5>*CJhBQhBQ5CJL.@;RMUr%C & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQM`TUqr$%BCG >?   $ L Q { | ֳ֩ *hBQhBQ5CJ *hBQhBQCJhBQhBQ5B*CJphhBQhBQ6CJ *hBQhBQCJhBQhBQ5>*CJhBQhBQ>*CJhBQhBQCJhBQhBQ5CJ>? | !$!?!M!!! "3"?"""" & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ !!#!$!>!?!L!M!Q!!!!!!!!!!! " "2"3"7"8">"?"B"J"W"q""""""""""""" #=##### $ $$$$T$U$$$$$$$]%`% jhBQhBQCJhBQhBQ>*CJ *hBQhBQCJhBQhBQ5B*CJphhBQhBQ5>*CJhBQhBQCJhBQhBQ5CJA""#$U$$$$^%_%`%k%l%t%%%&4&B& & FgdBQ & FgdBQ & FgdBQ & FgdBQgdBQ$a$gdBQ$&dPa$gdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ`%k%l%%%A&B&F&H&Y&Z&`&s&x&&&&&&'''''&'J'W'X''''''((_(`(f(}(()B)D)H)a)~))))))))))*** */*0*[*\****߼߰hBQhBQ5CJ jhBQhBQCJhBQhBQ5B*CJph *hBQhBQCJhBQhBQ>*CJhBQhBQCJhBQhBQ5>*CJhBQhBQ5>*CJ$AB&Z&&''X'''(`(}(((()D))))) *0*\*** & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ****+1+2+3+7+r+s++++++,,!,",&,,,,,O-^-Y.]...000000011111-1.1`1a1111111 2 2"2#2'2A2B2K2v2w233w3x333334&4X4Y4h4i4l44444 jhBQhBQCJhBQhBQ>*CJhBQhBQCJ *hBQhBQCJhBQhBQ5>*CJP*3+s+++,",,,G--Y../J///#0p000.1a111 & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ11 2#2B2w23x33Y4i44455"6R6k6r67H88 & F  gdBQ & F  gdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ4i5s5w555555!6"6Q6R6U6W6]6^6`6a6d6e6j6k6q6r6667&7-767Z777777 8>8`9a9o9p9999999991:2:B:C:l:m:q: ; ;3;4;K;W;X;u;v;;;;;;; jhBQhBQCJhBQhBQ>*CJhBQhBQ5CJ *hBQhBQCJhBQhBQ5>*CJhBQhBQ6CJhBQhBQCJH8809g9p9999C:m: ;4;X;v;;;<y<==== & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & F  gdBQ & F  gdBQ;;;<<x<y<============J>K>S>T>Y>x>y>>>>>>>>> ? ???1?2?H?I?L?N?V?W?[?\?????????`@a@m@n@@@@@'A(A>A?AoApAAAAAA jhBQhBQCJhBQhBQ5B*CJph *hBQhBQCJhBQhBQ5>*CJhBQhBQ5CJhBQhBQCJJ==K>T>y>>>>> ??2?I?\????a@n@@@(A?ApAA & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQAA\B]B^BlBmBuBBBBBB[CCCCD*CJhBQhBQ5>*CJ$hBQhBQ5>*CJ jhBQhBQCJhBQhBQCJ4kDDDDDDDE>EcEEEEUFFFFPGGG8HHHHH & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ'H(HqHrHHHHHHHHHH I IIIII#I$I+IIIIIIIJJKKMMNN8NBNGNQNNNNNNNNNNO3OEO[OzOOOOOOOOOPPuPPPPPPPPQLQMQjQkQQQQQQhBQhBQ>*CJ *hBQhBQCJhBQhBQ5CJhBQhBQCJ jhBQhBQCJQHHII,I]IIIIyJJJKYKKKKK2L~LL*MFMNMMM & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQMN{NNNNO3OEO\OzOOOOOPvPPMQkQQQQQR$R & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQQQQQQ$R)RSSSSUVeV{VW9WUWnWoWWWXXXXYYZZZ Z*CJ$ jhBQhBQCJ *hBQhBQCJhBQhBQ>*CJhBQhBQCJD$RRRRS_SSSTMTrTTTTU3UEUtUUUUV5VBVeVV & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQVVW;WSWTWUWoWpWxWWX'XqXXXXXY%Y-Y & FgdBQ & FgdBQ & FgdBQ & FgdBQ$a$gdBQgdBQ &dPgdBQ & FgdBQ & FgdBQ & FgdBQ-Y_YYYYYY!Z*CJ$hBQhBQ5CJhBQhBQ>*CJ *hBQhBQCJhBQhBQCJ jhBQhBQCJBbbbccccMdhddese{eeeefffffff & F gdBQgdBQ$a$gdBQ &dPgdBQ & FgdBQ & FgdBQ & FgdBQfff+g`gg#h{hhhhiyiiibjjkklTlUlVlgdBQ &dPgdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQVlhlilqllm8mtmmmmn3n^nvn~nn`okoooo pp & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQgdBQ$a$gdBQpipppxppq*CJ jhBQhBQCJhBQhBQ5B*CJphhBQhBQ>*CJ *hBQhBQCJhBQhBQ5CJhBQhBQCJ *hBQhBQCJ?HvPvvvvvw*w>wbwwwwx*CJ *hBQhBQCJhBQhBQCJhBQhBQ5>*CJ$B")yڀ9u .c}9#j & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQgdBQjۄT'H)$;Rֈ, & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQ,OG3y܋gڌ.d~7iT & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQٌ-JKdhuw~č׍"7;=LzCST] mqאjl~34Xcdh͓ٓޓ)*.epPQN *hBQhBQCJhBQhBQ5B*CJphhBQhBQ5CJhBQhBQCJH* *hBQhBQCJhBQhBQ>*CJ jhBQhBQCJhBQhBQCJCTʏmsאL=tX & F gdBQ & F gdBQgdBQ & F gdBQ & F gdBQ & F gdBQXd45*֖.o4 & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQNO Śfgs !.Q~1HVWƞОԞ9GNku$/z{6Yƣgqr2q +=봾 *hBQhBQCJhBQhBQ>*CJ *hBQhBQCJhBQhBQ5CJhBQhBQ5B*CJphhBQhBQCJ jhBQhBQCJGŚ %oכ?s R f! & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQ!9HgP[ѠNkvơ$1V(6Yvǣ & F gdBQ & F gdBQ & F gdBQ & F gdBQǣ;ˤg NrǦ'gѨ & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQѨ"Jgȩ2Rcի*q"Pn & F gdBQ & F gdBQ & F gdBQ & F gdBQ"nȮ 9Yů֯0(F^_ &dPgdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQ & F gdBQYʯίϯկ!/^`ȱα(R[ ")x~ٵݵܶOSs{߹hBQhBQ5B*CJph jhBQhBQCJhBQhBQ6CJhBQhBQ>*CJ *hBQhBQCJhBQhBQ5>*CJ$hBQhBQ5>*CJ *hBQhBQCJhBQhBQ5CJhBQhBQCJ9_`Dz&:Rճ EJgٴ *8 & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ$a$gdBQgdBQ8xٵ ;Deֶܶf}ӷ/ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ & FgdBQ/qrs{|ȸ FJ & FgdBQ & FgdBQ & FgdBQ$a$gdBQgdBQ &dPgdBQ & FgdBQIJ#k+/$(սؽƾξ  CKMNGǽ *hBQhBQCJhBQhBQ5CJhBQhBQ5B*CJph jhBQhBQCJhBQhBQ>*CJhBQhBQCJ *hBQhBQCJ*k+$սT!MCM. & FgdBQ & FgdBQ & FgdBQ & FgdBQ.CyEFG &dPgdBQgdBQ & FgdBQ & FgdBQ & FgdBQ ":pBQ/ =!"#$%<@< NormalCJaJmH sH tH DA@D Default Paragraph FontRi@R  Table Normal4 l4a (k@(No ListG B !z z z z z z z z z z z z z z z z z z z z z z z zU`G' 1I9c?{HOV^ifn4w0G % gb - V  91FpiL9=T_p#HY S!DSn-I=Q^j$i  D f g h n o w 5 N o |  _ } 0 Z  4 ] 6h2HtDc%+".@;RMUr%C? |$?M 3?U^_`klt 4 B Z !!X!!!"`"}""""#D##### $0$\$$$3%s%%%&"&&&G''Y(()J)))#*p***.+a++++ ,#,B,w,-x--Y.i...//"0R0k0r01H22203g3p3333C4m4 545X5v5556y677777K8T8y88888 9929I9\9999a:n:::(;?;p;;;\<]<^<l<m<u<<<<<<[====><>S>k>>>>>>>?>?c????U@@@@PAAA8BBBBBBCC,C]CCCCyDDDEYEEEEE2F~FF*GFGNGGGH{HHHHI3IEI\IzIIIIIJvJJMKkKKKKKL$LLLLM_MMMNMNrNNNNO3OEOtOOOOP5PBPePPPQ;QSQTQUQoQpQxQQR'RqRRRRRS%S-S_SSSSSS!Tqbqqqqr 0k> 0> 0> 0> 0> 0> 0? 0k> 0c? 0m< 0? 0? 0U@ 0? 0? 0@ 0m< 0A 0A 0 0B 0B 0B 0B 0B 0B 0C 0C 0B 0C 0C 0C 0yD 0yD 0C 0E 0B 0E 0E 0E 0E 0E 0~F 0 0*G 0FG 0NG 0NG 0FG 0H 0*G 0H 0H 0H 0I 03I 0I 0\I 0H 0I 0I 0I 0I 0*G 0vJ 0J 0J 0*G 0K 0K 0 0K 0L 0$L 0L 0$L 0L 0M 0_M 0M 0_M 0N 0N 0N 0N 0L 0N 0K 03O 03O 03O 0O 0O 0O 0O 05P 05P 0O 0P 0O 03O0000 0 0pQ 0xQ 0pQ 0R 0'R 0pQ 0R 0R 0 0R 0S 0S 0S 0S 0S 0R 0S 0S 0S 0S 0S 0T 0S 00U 0IU 0S 0U 0U 0S 0V 0W 0S 0W 0X 0X 02X 02X 0X 0X 0X 0R 09Y 0R 0Y 0Y 0Y 0Z 0Z 0UZ 0Z 0Z 0Z 0[ 0R 0y[ 0[ 0[ 0[ 0[ 0y[ 0\ 0\ 0\ 0y[ 0] 0] 0y[ 0M^ 0h^ 0M^ 0y[ 0s_ 0y[ 0_ 0_ 0_0000 0 0` 0` 0` 0` 0` 0`a 0` 0#b 0 0b 0b 0b 0b 0yc 0b 0b 0b 0d 0e 0e0000 0 0if 0qf 0if 0g 08g 0tg 08g 0g 0g 0if 0 0^h 0vh 0^h 0h 0`i 0h 0h 0h 0h 0h 0^h 0ij 0pj 0pj 0ij 0k 0k 0k 0k 0Yl 0Yl 0Yl 0Yl 0Yl 0k 0k 0^h 0n 0n 0n 0n 0o 0 0p 0Hp 0p 0p 0p 0p 0p 0p 0p 0>q 0bq 0p 0q 0q 0r 0p 0pr 0 0s 0&s 0&s 0s 0t 0Dt 0s 0s 0t 0t 0t 0t 0t 0t 0t 0/v 0/v 0v 0/v 0v 0t 04w 04w 04w 0t0000 0 0y 0 0y 0"z 0)z 0)z 0z 0z 0"z 0u{ 0u{ 0{ 0 | 0.| 0"z 0y 0| 0| 0| 0| 0#~ 0j~ 0j~ 0 0~ 0~ 0~ 0~ 0~ 0 0' 0' 0 0 0 0~ 0 0) 0) 0 0 0 0$ 0; 0R 0R 0; 0O 0 0O 0; 0 0; 03 0$ 0$ 0܅ 0 0܅ 0 0 00 0چ0 00 0܅0 0d0 0܅0 070 070 0܅0 00 0܅0 00 00 0000 0$0 00 00 0m0 0m0 00 00 0 0 0 0 0 0 0Т 0tТ 0 0 0Й 0Й 0XЙ 0dЙ 0XР 0Р 0Й 0Й 0p 0 0p 0*Й 0Т 0`ƀ 0 0 0 0 0p 0 0o 0p 0Й 0p 0p`ƀ 0o 0p 0 0 0Ŕ 0 0 0%p 0Й 0  0Й 0 0 0sp 0s 0Й 0 Т 0op`ƀ 0Й 0 0  0 p`ƀ 0 0 0Т 0o 09 0H 0g 0gТ 0Hp 0HР 0Pp 0H 0њȀ 09 0N 0kР 0k` 0N 0$`€ 0$ 0N 0 0`€ 09Й 06 06 06 09  0 0 0p 0; 0;`€ 0 0 0p 09 0g 0 0  0  0  0gȀ 09 0 0' 0Р 0Р 0p 00 0 0 0 00ǀ 0 0 0 0 0Р 0`€ 0 0 0 0RÀ 0 0Й 0 0 0c`€ 0 0p 0Й 0q 0q 0qp 0Й 0"` 0"Й 0nЙ 0"Й 0Ȁ 0Й 0"Й 0 0 0 0 0" 0Y 0Й 0Y 0ũ  0֩Й 0Y 0@ʀ 00 0p 00 00 00Р000p`ƀ0000 00 00 00 0p`ƀ 0p`ƀ 0p`ƀ 0&p`ƀ 0p`ƀ 0Rp`ƀ 0Rp`ƀ 0p`ƀ 0Ep`ƀ 0Ep`ƀ 0gp`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0 p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0ٯp`ƀ 0ٯp`ƀ 0 p`ƀ 0;p`ƀ 0;p`ƀ 0;p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0ְp`ƀ 0ܰp`ƀ 0p`ƀ 0ܰp`ƀ 0}p`ƀ 0p`ƀ 0p`ƀ 0}p`ƀ 0ְp`ƀ0p`ƀ0p`ƀ0p`ƀ0p`ƀ 0p`ƀ 0|p`ƀ 0p`ƀ 0|p`ƀ 0Ȳp`ƀ 0Ȳp`ƀ 0Ȳp`ƀ 0Ȳp`ƀ 0|p`ƀ 0 p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0$p`ƀ 0 0 0`€ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0p`ƀ 0Cp`ƀ 0Cp`ƀ 0 0 0. 0C@ʀ0`0`0`0p`0p`0p`0p`0p`0`9=T_p#HY S!DSn-I=Q^j$i  D f g h n o w 5 N o |  _ } 0 Z  4 ] 6h2HtDc%+".@;RMUr%C? |$?M 3?U^_`klt 4 B Z !!X!!!"`"}""""#D##### $0$\$$$3%s%%%&"&&&G''Y(()J)))#*p***.+a++++ ,#,B,w,-x--Y.i...//"0R0k0r01H22203g3p3333C4m4 545X5v5556y677777K8T8y88888 9929I9\9999a:n:::(;?;p;;;\<]<^<l<m<u<<<<<<[====><>S>k>>>>>>>?>?c????U@@@@PAAA8BBBBBBCC,C]CCCCyDDDEYEEEEE2F~FF*GFGNGGGH{HHHHI3IEI\IzIIIIIJvJJMKkKKKKKL$LLLLM_MMMNMNrNNNNO3OEOtOOOOP5PBPePPPQ;QSQTQUQoQpQxQQR'RqRRRRRS%S-S_SSSSSS!Tqbqqqqr 0k> 0> 0> 0> 0> 0> 0? 0k> 0c? 0m< 0? 0? 0U@ 0? 0? 0@ 0m< 0A 0A 0 0B 0B 0B 0B 0B 0B 0C 0C 0B 0C 0C 0C 0yD 0yD 0C 0E 0B 0E 0E 0E 0E 0E 0~F 0 0*G 0FG 0NG 0NG 0FG 0H 0*G 0H 0H 0H 0I 03I 0I 0\I 0H 0I 0I 0I 0I 0*G 0vJ 0J 0J 0*G 0K 0K 0 0K 0L 0$L 0L 0$L 0L 0M 0_M 0M 0_M 0N 0N 0N 0N 0L 0N 0K 03O 03O 03O 0O 0O 0O 0O 05P 05P 0O 0P 0O 03O0000 0 0pQ 0xQ 0pQ 0R 0'R 0pQ 0R 0R 0 0R 0S 0S 0S 0S 0S 0R 0S 0S 0S 0S 0S 0T 0S 00U 0IU 0S 0U 0U 0S 0V 0W 0S 0W 0X 0X 02X 02X 0X 0X 0X 0R 09Y 0R 0Y 0Y 0Y 0Z 0Z 0UZ 0Z 0Z 0Z 0[ 0R 0y[ 0[ 0[ 0[ 0[ 0y[ 0\ 0\ 0\ 0y[ 0] 0] 0y[ 0M^ 0h^ 0M^ 0y[ 0s_ 0y[ 0_ 0_ 0_0000 0 0` 0` 0` 0` 0` 0`a 0` 0#b 0 0b 0b 0b 0b 0yc 0b 0b 0b 0d 0e 0e0000 0 0if 0qf 0if 0g 08g 0tg 08g 0g 0g 0if 0 0^h 0vh 0^h 0h 0`i 0h 0h 0h 0h 0h 0^h 0ij 0pj 0pj 0ij 0k 0k 0k 0k 0Yl 0Yl 0Yl 0Yl 0Yl 0k 0k 0^h 0n 0n 0n 0n 0o 0 0p 0Hp 0p 0p 0p 0p 0p 0p 0p 0>q 0bq 0p 0q 0q 0r 0p 0pr 0 0s 0&s 0&s 0s 0t 0Dt 0s 0s 0t 0t 0t 0t 0t 0t 0t 0/v 0/v 0v 0/v 0v 0t 04w 04w 04w 0t0000 0 0y 0 0y 0"z 0)z 0)z 0z 0z 0"z 0u{ 0u{ 0{ 0 | 0.| 0"z 0y 0| 0| 0| 0| 0#~ 0j~ 0j~ 0 0~ 0~ 0~ 0~ 0~ 0 0' 0' 0 0 0 0~ 0 0) 0) 0 0 0 0$ 0; 0R 0R 0; 0O 0 0O 0; 0 0; 03 0$ 0$ 0܅ 0 0܅ 0 0 0 0چ 0 0܅ 0d 0܅ 07 07 0܅ 0 0܅ 0 0 00 0$ 0 0 0m 0m 0 0 0 0 0 0 0 0 0 0t 0 0 0 0 0X 0d 0X 0 0 0 0 0 0 0* 0 0 0 0 0 0 0 0 0o 0 0 0 0 0o 0 0 0 0Ŕ 0 0 0% 0 0 0 0 0 0s 0s 0 0  0o 0 0 0  0  0 0 0 0o 09 0H 0g 0g 0H 0H 0P 0H 0њ 09 0N@ʀ 0k 0k@ʀ 0N@ʀ 0$ 0$ 0N 0 0 09 06 06 06 09 0 0 0 0; 0; 0 0 0 09 0g 0 0  0  0  0g 09 0 0' 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0R 0 0 0 0 0c 0 0 0 0q 0q 0q 0 0" 0" 0n 0" 0 0 0" 0@ʀ 0@ʀ 0@ʀ 0 0" 0Y 0 0Y 0ũ 0֩ 0Y 0 00 0 00 00 000000 0 0 0 0 0 0 0& 0 0R 0R@ʀ 0@ʀ 0E@ʀ 0E@ʀ 0g@ʀ 0@ʀ 0@ʀ 0@ʀ 0@ʀ 0@ʀ 0 @ʀ 0@ʀ 0@ʀ 0@ʀ 0@ʀ 0@ʀ 0@ʀ 0ٯ@ʀ 0ٯ@ʀ 0 @ʀ 0;@ʀ 0;@ʀ 0;@ʀ 0@ʀ 0@ʀ 0@ʀ 0@ʀ 0ְ@ʀ 0ܰ@ʀ 0@ʀ 0ܰ@ʀ 0}@ʀ 0@ʀ 0@ʀ 0}@ʀ 0ְ0000 0 0| 0 0| 0Ȳ 0Ȳ 0Ȳ 0Ȳ 0| 0  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0$ 0 0 0 0 0 0 0 0 0 0 0C 0C 0 0 0. 0C@0Т@0Т0Т0Т0Т0Т0Т0Т0Т$tM `%*4;A'HQaappٌNGchkmoqsvx{}!  "B&*18=AkDHM$RV-YZ^bfVlpHvzj,TX!ǣѨ_8/.Gdfgijlnprtuwyz|~Ge!$SVZ]DG` e  ] d DMjqbix%.IR|$'ry{+21=jqU[ !!8"?"""J#Q#####4$=$`$i$$$$$%%&&&&'')")y))))))* *&*)*.+5+a+h+++w,~,--2-9-------,.3.\4e4445577t:}:::; ;z;|;2=:=}====>>BBBB`FeFHHJJLLMM^PaP6R=RRRYRqRzRZZ__`aba>eEe`ijikkl l8l@lFmPmmnMnWnxnnkpnpqq>rFrJwMwUz]zK|N|||"&o*-YjGXƝr4E֠fpSW"IEI ""C&J&99<<??@?$F0F`FeFFFJJW WZZ ]]^^ff>rFrrr;u4d @2vOfferJamison EndersJamison Enders@          Oh+'0@d   , 8 DPX`hp'OfferJamison EndersNormalJamison Enders185Microsoft Word 11.3.8@Pw=@}.@=\GbPICTbd ,, MSWD ,Times New Roman K.(rI- 6)n-)*tr- 6):o 1zN --` >)& (, -+K5I-[)),Arialj-i%) -)wGe-[)4n-)eral-P )D -( a-[).,Arial-  )  -)+(Assent-[)) -)+ -[)%O-)! -[) + -)&A -[),+-) -[) C -)++-) -[) (D-)1efiniteness) = -[(KK-P )! -(JwII-[))[-Z [) -[)hU-)!CC-P )< -( a-[).-  )  -)+Gov-[)Ne-)rns-)8 -) sale-[)G o-)#f-) -) goods.-P )y -(i.-p) -[)&DE-)=F: Goods-` >) -(91.-@ )" -)) All things (including specially -[(m-)$anufactu-[)r-)ed-)+ -) goods)-)} -) w-[) h-)ich-)8 -) ar-[)#e-) mo-[)Ev-)able ( at the tim-[)e-) o-[)"f-) identification-(w -) to-[)$ -) the K for-) -[) s-)ale.-P )@ -(Rii.-)% -[)%DE-)=F: Merc-[)h-)ant-` >)8 -(91.-@ )" -))D-[) e-)als-)3 -) in-[)$ -) goods-)n -) of-[)& -) th-[)$e-) kind,-)h -) o-[)r-) by-)9 -) his-[)6 -) o-[)c-)cupation-) -) holds-[)d -) himself-) -) out-[); -) a-[)s -(having knowledg-[(e-) or-)1 -) skill-[)P -) peculia-[)r-) to-)/ -) the-[)8 -) p-[)r-)actice-[)js-) or-)1 -[) g-)oods-)W -) involves-p) -( b.-@ )" -))Increa-[)qs-)es-)& -[) c-)ertainty. Unifo-[(/r-)m-)# -[) la-)#ws-` >)2 -(%i.-p) -)&D-[) e-)cr-[)#e-)ases-)L -) t-[) r-) ansaction-) -) costs-[)\ -) (l-[)a-)wy-[)7e-)rs)-P )0 -(Y c-[).-  )  -)+Issue:-[)k -) When-)l -) is-) -) a-) -[) K -),a-) -[) s-)ale-)5 -) o-[)f-) goods?-P )   1d< -(i.-p) -)&Test)N:-[)  -) W-[)*h-)at-)! -) is-[) -) the main-) -) purpos-[)}e-) o-[)"f-) th)/e-[) -) K?-P )4 -(91.-@ )" -))If-[) -) main-)[ -) purpos-[)}e-) is-)* -) good-)\ ,  Wingdings-) -[), U-)-CC-P )< -(92.-@ )" -))If-[) -) main-)[ -) purpos-[)}e-) is-)* -) servic-[)me ,  Wingdings-)!-[), -) Not -[)PUC-)@C-P ) -(,wIII-[)-)L-K) -)YE-[)f-)ficient-)u -[) B-)re-[)#a-)ch-P )+ -(a a-[).-  )  -[)+DE-)=F: Whe-[)n-) the-)C -) b-[)r-)eaching-) -) p-[)a-)rty-)3 -) is-[) -) abl-[)8e-) to-)/ -) br-[)&e-)ach and-) -[) e-)nter-)G -) into-[)H -) a-) -) n-[)ew-)6 (-[)p-)areto-)[ -) sup-[)@e-)rior  1fph )B)-[) -(Xtransaction, an-[(bd-) is-)* -) able-[)L -) to com-[)~p-)ensate-)r -) th-[)$e-) non)P-)br-[)&e-)aching-)z -) party-)^ -) w/- J)- -) th-[)$e-) ) exp-[)Be-)ctancy 1W% )w inte-[)Pr-)est.-P )> -(i.-p) -)&Non)N-)b-[)r-)eaching-) -[) p-)arty-)G -) is-[) -) no wor-[)s-)e-) -) o-[)f-)f-[),-)  and-)M -) b-[)r-)eaching-) -[) p-)a-[)r-)ty-)$ -) is-[) -) better-)h -) of-[)&f-).-P )    1X  -( b.-@ )" -))Policy)u: All-[)Ro-)w for efficient-(< -[) b-)re-[)#a-)ch-)+ -) is-[) -) ben-[)Be-)ficial-)^ -) f-[)o-)r-) -[) e-)co-[)+n-)omic-)[ -) tran-[)Gs-)actions.-` >) -(4 c-[).-  )  -)+ Problems:-[) A-)- ccounting-) -) for-)5 -) externalities-` >) -(hwI-[)V)I-H@)1 -[)VM-)+utua-[)Xl) -) Assent-P ) -( a-[).-  )  -[)+DE-)= F: Mutual-) -) agr-[):e-)e-[)m-)$ent-)8 -) o-[)f-) both-)] -) parties-[)z -) to a K-P )p -(i.-p) -)& Both parties ) intend to -[)b-)e-) -) bound  1. -P )s   1X -( b.-@ )" -))Maj/Min):-[)  -) Considerations-(& -) for-)5 -) As-[)2s-)ent-` >)8 -(;i.-p) -)&(look to both)-` >) -(pii.-)% -)%Maj:-[)V -) Ob-[)<j-)ectiv-[)[e-) -[) T-)heor-[)Xy-) of K-P )` -(91.-@ )" -[))DE-)=F: Ou-[)it-)war-[)Cd-) -[) m-)$ anifestation-) -) of-[)& -) intent-` >)i  1 -(92.-@ )" -))Test)N:-[)  -) Would a-) -[) r-) easonable-) -) third-[)W p-)#erson-)c -) vi-[)$ew-)6 it-)% -) as-)& -) a- J) -) seri-[)Bo-)us-)) -) offer-P )X -(93.-@ )" -))Pro:-[)L -) Easy-)X -) to-)$ -) m-[)#e-)asur-[)Le-) evidence-P ) -(C94.-@ )" -)) Con: Could -[)c-)re)#at-[)!e-) bind-)] -) person-[)z -) t-[) o-) a -[)+K -)-who-)N -) didnt-[)n -) inten-[)\d-) to-)/ -P )  -(wiii.-)2 -)%Min: -[)dS-)ub-[)2j-)ectiv-[)[e-) -[) T-)heor-[)Xy-) of K-P )` -(91.-@ )" -[))DE-)=F: Looks-) -) to-[)$ -) the actual-) -) intention-[) -) of-)& -) th-[)$e-) parties (mind-[))-` >)  1 -(92.-@ )" -))Test)N:-[)  -) Did-)D -) th-[)$e-) parties-) -) think-[)_ -) they entere-[)d-) a -[)+K-P )! -( 93.-@ )" -))Pro:-[)L -) K-)  -[) b-)et-[)!w-)!ee-[)(n-) people wh-[)o-) actually-) -) intend-[)s -) it-` >) -( J94.-@ )" -))Con:-[)Y -) Difficult-) -) to-)$ -) measu-[)tr-)e-P ) -(  c-[).-  )  -)+Courts-[)z -) wil): l not enfor-[)c-)e a -[)@K -)-whe-[)Kr-)e-) -) both-[)R -) partie-[)hs-) didnt-)y -) intend-[)s -) to-)$ -) enter  1 X 6 )[.-P )  -( i.-p) -)&If-[) -) D-[)/s-) objective-) -[) a-)cts-)3 -) suggested-[) -) h-[)e -)!was-)F -[) s-)erious,-){ -) but-[); -) h-[)e w-)Bas-)& -) actually-[) -) joking, and-) -[) P-) -( intends to mak-[( e-) a -[)+K-)! , courts will-) -) enfo-[)Qr-)ce-)( -) th-[)$e -)!K.-P )+   1  ( -( 91.-@ )" -))Policy)u: -[)T-)ake -[)KK-)!s-)! -) seriously.-P ) -( R d.-@ )" -))Misc.-P )f -( i.-p) -)&If-[) K-)- is written )-[), -) courts will-) -) m)#ost likely enfo-[( +r-)c-[)e-) it.-P )0 -( 91.-@ )" -[))W-)+riting-)d -) is-[) -) objective-) -) act-[)5,-)  sh-[)4o-)wing-)[ -) that-[)E -) your-[)ce-) not-)F -) joking.-` >) -( wV-[) )Y-X@) -)fTypes -[)zo-)f Ks-P )\ -( % a-[).-  )  -)+ Bilateral)-)K-P )# -( Yi.-p) -)&Promis-[)e-) is-)* -) consideration-[) -) fo-[)&r-) -[) a-) promise-P ) -( ii.-)% -)%Rule: )n Binding upon -[( ba-)ccepta-[)tn-)ce  1 \ + -P )(  ! ! ! !  ! ! !  ! ! !  ! ! !  ! ! !  ! ! !  ! ! !  ! ! !  ! ! ! ՜.+,0 `hpx  'EN Offer Title  !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghijklmnopqrstuvwxyz{|}~      !"#$%&'()*+,-./012345689:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghiklmnopqvRoot Entry Fu'F=x1Tables)WordDocument$BSummaryInformation(7pdDocumentSummaryInformation8jCompObjX FMicrosoft Word DocumentNB6WWord.Document.8