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Contracts (Defenses to Formation (Mistake 2nd 151 (must be a mistake as to…

- - - - Necessity: where necessities are sold/delivered to an infant or person by reason of mental incapacity or drunkenness is incompetant to ct, he must pay reasonable price" see bowling, 78 (car dealer has burdent to show car was a necessity for infant)
  - - - Same Factors as Mutual Mistake + unconscionable; or other party had reason to know of mistake
    - - Both parties believe something not in accord w/ the facts
    - - i) risk is allocated him; ii) he is aware at inception of ct, that he has limited knowledge w/ respect to facts that mistake relates to, but treates his limited knowledge as sufficient, iii) risk allocated to him by court; 81
        
        see Lenawe County Board of Health 82 (holding that parties made a mutual mistake as to the nature of a house that actually has zero value, but buyer assumed risk per the language of the ct. buying 'as is')
    - - includes subject matter of sale, price, some collateral fact materially inducing the agreement; see Sherwood, 82 (ruling that barren cow, which was not barren voided CT due to mistake)
      - does not include: market conditions, or difference in quality. see rest 151-154; also Sherwood 82 (stating difference in quality will not constitute a mistake); see Lenawee County Board of Health, 84 (stating a mistake does not relate to an erroneous estimate about a prediction as to a future occurance or non-occurance)
    - - w/ mistake, injured party CAN keep ct. aslo w/ mistake, there are defenses to the defense of mistake.
    - - makes the CT voidable, and restituion damages are the reward
  - - - if parties are on equal footing, court will not step in, but will step in if parties are unequal footing - see Audrey Vokes; 86 (ruling that fraudlent statements by dance instructor to bad dancer qualifies as fraud)
    - - needs to be belief of a material aspect not in accord with the facrs
        
        nuance to material
        
        misrep does not have to be towards a material fact if: a) there is fidicuary duty; b) artifice/trick is employed by representor; c) where parties do not in general deal at 'arm's length'; d) where representee does not have equal opportunity to become apprised of the truth or falsity of the fact represented. Vokes 86
        
        usually true that misrep must be to a material fact. different if parties are on unequal footing. see Vokes; 82 (ruling that parties on unequal footing about person's dance ability will constitute fraud if teacher gives misrepesentaitve opinions to student)
        
        2nd 168, an opinion can be a misrep;
        
        material matter definition: "one in which a reasonable person would attach importance in determining his choice of action in the transaction in question"; Warren G, 91 (holding that a house with termite damage, that buyer was unaware of is a material matter, which he should have been notified of, but wasn't so defense of misrep is available)
      - must have induced the party to enter into agreement
        
        see Vokes, 82 (ruling that dance instructor's statements induced P to buy lessons that she did not need, and were not helping her)
      - it was reasonable for party to enter into agreement
        
        2nd 169 when reliance on an opinion is justified
        
        see Warren G, 91 (holding that P was reasonable for assuming there was not termite damage when house seller did not disclose it)
    - - falsehood 'not in accord with the facts'; 2nd 159
    - - Rescind Ct: i) parties return to status quo; ii) any benefit gained by P would have to be returned; ii) D pays back any money received from P plus interest; iv) also pay for labor/services rendered by P
    - - no general duty to disclose everything you know, but can not impose on other party; see Laidlaw, 89 (ruling that buyer's silence in regards to war of 1812 is not per se misrep, but it could indicate one party is imposing on another. also note law tends to avoid giving a remedy to a party who is injured b/c of market conditions - see mistake); see also Warren G, 91 (silence on a material fact like termite damage in house can not be held silent)
      - vendor has affirmitve duty to disclose material facts where a) nec to prevent previous assertion from being a misrep; b) disclosure would correct a mistake of other party as to a basic assumption, and failure to disclose would amount to failure to act in good faith; c) disclosure would correct a mistake of other party; d) other party entitled to know the fact b/c of a rship of trust and confidence btw them; Warren G, 91 (holding that buyer has right to know about termite damage in home that seller knows of)
      - Nuances to duty to disclose (2nd 161)
        
        if silence in regards to knowledge in public record, ct still good- 2nd 161, comment 10
        
        2nd 164, exception if 3rd party is responsible for conveying misrep, and other party did not know about that.
        
        the method in which non-disclosed data is collected is to be considered when determining misrepresentation; 2nd 161 comment 11
  - - - existence of eco duress or bizz compulsion exists w/ proof that 'immediate possession of needful goods is threatened' or more particularly, by proof that one party to a ct has threatened to breach the agreement by withholding goods unless other party agrees to some further demand; see Austin Instrument, 97 (holding that contractor who has tough penalty for delayed items w/ navy was under eco duress from subcontractor who wanted to increase price on already agreed upon ct)
      - threatening breach of CT is not sufficient. threatened party must also attempt to obtain goods from another source of supply; see Austin Instruments; 98 (holding that the contractor had tried to find other sources to provide materials, but was unable, so subcontractor's threat of breach was economic duress)
    - - Elements: a) wrongful action (objective standard); b) party was induced by wrongful action; see Rubenstein, 95 (holding that husband who is threatened by wife who will poison him may constitute duress)
        
        Nuances of 'wrongful action'
        
        means themselves lawful must not be so oppressively used as to constitute an abuse of legal remedies
        
        elements not necessary for consideration: violence, intent of duressor
        
        2nd 174, compulsion by physical force prevents CT formation; 2nd 175, compulsion by other means makes CT voidable
      - ct made in duress is voidalbe; See Rubenstein, 95 ("if conveyance is procured by means of duress, the conveyance is inoperative and voidable")
      - Duress Def; 1st rest 492; "was person complaining induced by the duress or undue influence to give his consent and would not have done so otherwise"; See Rubenstein, 96
  - - - Need both Procedural and Substantive (but can have a procedural unconscionability that leads to substantive)
        
        procedure:
        
        definition: "include absence of meaningful choice on the part of one of the parties togetehr w/ contract terms which are unreasonably favorable to the other party"; See Ora Lee Williams; 99 (holding that woman of limited education was a victim of inequality in bargaining power with rent-to-own furniture store, that promulgated a complex CT that the woman was unable to adequately understand)
        
        meaningful choice def: i) determined by all factors; a) can be negated by gross inequality of bargaining power; b) manner in which CT was entered into is also relevant.; Ora Lee Williams, 100, (ruling that there was procedural unconscionability b/c there was gross inequality of bargaining power btw corporation and woman of limited education, and CT was complex document with fine print that Willaims was unlikely to understand)
        
        can focus on lack of knowledge/voluntariness, ex SDNY, note after Ora Lee
        
        Lack of Knowledge
        
        shown by: a)lack of undertanding of the ct terms arising from inconscipious print/use of complex, legalistic langauge; b)disparty in sophistication of parties; c) lack of opportunity to study the ct and inquire about ct terms; ex S.D. Miss (note after Ora Lee, 101)
        
        Lack of Voluntariness
        
        shown by: a) great imbalance of parties relative bargaining power; b) stronger partys terms are unnegotiable; c) weaker party prevented by market factors; d) timing or other pressures from being able to ct w/ another party on more favorable terms or to refrain from ct at all; ex S.D. Miss (note after Ora Lee, 101)
        
        may also focus on oppression or suprise; ex Misty Ferguson; 103
        
        oppression: inequality of bargaining power which results in no real negotiation and absence of meaningful choice; Misty Ferguson, 103 (ruling that where a party in unequal bargaining power is presented with an offending clasue w/o opportunity for meaningful negotiation then oppression/proceduracl unconconsionability are present)
        
        surprise: involves extent wo which supposedly agreed upon terms of bargain are hidden in the prelix printed form drafted by the party seeking to enfofce disputed terms
        
        see Ora Lee, 99 (holding that CT was not clear a/o of its fine print, and signing customer would have no idea that the CT had the effect of "keeping balance due on all items until the time balance was completely eliminated")
        
        substantive:
        
        primary concern is w/ terms of ct considered in light of circumstances existing when ct was made; see Ora Lee, 101 (holding that complex ct with fine print had effect of keeping balance due on all items until the time the balance was completely eliminated, was substantively unconscionalbe.)
        
        ex SDNY, note after Ora Lee, 102: substantive unconscionability presnet when there is a i) one sided agreement whereby one party is deprived of all benefits of the agreement or left w/o a remedy for another party's non-performance or breach; ii) large disparity btw cost and price, or price far in excess of that prevailing in market place; iii) terms which bear no reasonable rship to bizz risks assumed by the parties
        
        in regards to (ii); see In re Louis; 102 (holding ct unconscionable that offers to find lawyers for $400, when in fact the service is free)
        
        if agreement is too one-sided, it will be substantively unconscionable; see Misty Ferguson, 104 (holding emp ct w/ a one sided arb agreement, arb fees, and one-sided discovery provision is unconscionable)
      - defense to defense of unconscionability:
        
        a party can show a ct is conscionable if terms bear some reasonable rship to risks of the bizz; 101, Note following Ora Lee Williams in CB
      - Remedies for unconscionability/against public policy: a) rewrite unconscionable parts; b)eliminate whole unconscionable aspect
      - In regards to arbitration
        
        FAA makes arbitration valid, but unconscionability provides a defense, see cases cited here
    - - E.G. bribing person to get illegal alcohol license
      - no remedy; see Sinnar, 105 (holding that parties who made illegal ct to establish an illegal alcohol licsense were not due any remedy)
    - - See Data MGMT, 106 (holding that covenant not to compete for five years is unconscionable)
        
        courts take three approaches to remedying covenant not to compete: see Data MGMT, 107
        
        c) court can render ct to make it enforcable, unless covenant was not made in good faith (burden of proof on emp);(con is that may encourage emp to create overbroad covenant, and have court rewrite)
        
        a) if ct is overbroad, it is unconscionable and whole thing gets thrown out (con is that parties can not ct);
        
        b) if ct can be rendered enforcable, do so by removing langague (can not add langauge) (con is too mechanical);
        
        overbroad is defined by scope and duration
    - - interest in enforcment:
        
        parties justified expectations; any forfeiture that would result if enforcement were denied; any special public interest in enforcement of a particular term
      - against public policy
        
        a) strength of that policy as manifested by leg or judicial deciions; b) liklihood that a refusal to enforce the term will furhtur that policy; c) seriousness of any misconduct involved and the extent to which it is deliberate; d) directness of a connection btw misconduct and ther term
      - See Forrest Ferguson, 141 (holding that an evidentiary condition in a 'storekeepers burglary policy' to show marks on a broken safe was 'beyond the reasonable requirements necessary to prevent fradulent claims')
      - see Jacov v Kent, 144 (holding that CT had express langauge requring reading pipe, but it was an insignificant deviation, there will be injustice if that party lost the CT b/c of the labor they put into it)
- - - - in partially integrated
        
        not contradictory; see Alaksa Northern (ruling that extrinsic evidence that is not in reasonable harmony with the written CT fails step 2)
        
        different jurisdiction: for applying step 2 (must not contradict written). NY - only if extrinsic term contradicts or restates writing is it thrown out; Maryland/Alaska - "absense of reasonable harmony" knocks it out; see Alaksa Northern, 114
        
        not ordinarilly expected to be embodied in the writing; See Mitchell; 110 (ruling that a ct to sell house was so complete w/ details that oral agreement about removing ice house is not valid)
      - to help define defenses to formation (always can be added), 2nd 214
      - if writing is not integrated, can add any extrinsic evidence
      - In full integration writing
        
        to define a term (always can be admitted);
        
        See Matterson, 112 (ruling that court can use extrinsic evidence to define terms in regards to an option CT to determine meaning of "option to repurchase" and whether or not that includes the ability for non-family members to repurchase)
        
        see also 2nd 214
        
        if it is outside the scope of written ct, then it is a new agreement; see Mitchell 110
        
        see Mitchell 110 (ruling that extrinsic evi must be 'collateral' to the orig agreement to be considered, and thus CT to sell house did not include CT to remove ice house, so ice house removal was a new CT)
    - - writing under scruting was integrated
        
        See alaska northern, 114 (holding that determining if CT is integrated is the first step to applying Parol Evidence rule)
        
        to determine if a ct is integretted, lock to all evidence; see Matterson, 112 (holding that the written ct did not explicity state it is the whole agreement; parties were not experienced in land sales, so cant expect them to include all details)
        
        see also UCC2-209(1); defining integration
      - agreement in form must be collateral (i.e. related to orig ct)
        
        See Mitchell; 110 (ruling that a ct to sell house was so complete w/ details that oral agreement about removing ice house is not valid, bc it was not valid -failing 1, and a/o detail in CT, ice house wold have been in there too - failing 3)
      - must not contradict express or implied provisions of written
        
        See Alaksa Northern (ruling that extrinsic evidence that is not in reasonable harmony with the written CT fails step 2
      - must be one that parties would not ordinarily be expected to embody in the writing;
        
        See Mitchell; 110 (ruling that a ct to sell house was so complete w/ details that oral agreement about removing ice house is not valid, bc it was not valid -failing 1, and a/o detail in CT, ice house wold have been in there too - failing 3)
  - - - express > course of performance > course of dealing > usage of trade
        
        course of performance details:
        
        accepting past dealings or acquiescing w/o objection will constitute course of performance that will be given great weight; 2nd 202; ucc 1-303
        
        course of performance/dealing/trade shall be construed as consistent w/ express langauge when reasonable; if unreasonable same heirarchy as stated; ucc 1-303
        
        CA : it is not possible to determine exact meaning of words; see Pacific Gas, 121 (holding that express language is not sufficient to determine parties' intent)
        
        test of admissibility of extrinsic evi to explain written ct: a) not whether the written CT appears plain on its face ; b) whehter the offered evi is relevant to prove a meaning to which the langauge of the instrument is reasonably susceptible
        
        look to all evidence to determine the intent of parties
        
        contra In Re Carter's Claim, 136 (holding that the CT expressly stated what elements were warranties, and which were conditions, thus the intent of the parties was clear from express langauge of the ct)
        
        see also Forrest Ferguson, 141 (holding that although a 'storekeepers burglary' policy had express language that required marks on all safes, the same policy omitted express langauge stating insurance co wouldn't pay if the marks were not there)
        
        extrinsic evi can help determine intent when express language is open to two interpretations ; see Frigaliment Importing Co, 122 (ruling that usage of trade, course of performance favoring one party in a chicken sale overrules all ambigiousty in express language)
      - specific terms > general langauge; i.e. technical terms are given technical meaning when used in a technical field
  - - - Good faith is a mandatory rule, though can be cabined, it will have a mandatory floor
        
        if CT has broad discretion e.g. terminate for any reason) then good faith duty cabined
    - - good faith only exists when parties are in a CT. no duty of good faith exists during negotiations; see Market St, 129 (Posner ruling that after ct signed, parties are partners and are lowering their gurard a bit)
        
        after ct is signed: parties are partners and each lowers their guard, and silince is apt to be deceptive
        
        before Ct is signed: parties are weary of each other, and no expectation of full disclosure, so no dishonesty if there if there is not full disclosure
    - - can cancel production only for good faith; see Fred Feld; 124 (holding that a bread crumb mfg can cancel production only for a bankruptcy or genuine imperiling of the very existance of its entire bizz; but stopping prodo a/o a lower profit yield than expected is not ceasing prodo on good faith)
    - - Observance of reasonable trade
        
        Determine subjective state of minds of the parties
        
        superior knowledge v. sharp dealing; see Market st, 129
        
        sharp dealing: "taking deliberate advantage of an oversight by contract partner concerning his rights under the ct"
        
        superior knowledge is ok
        
        "if there is a fiducuar duty, it is often seen that where principal has duty of good faith to agent and illustrated by where principle must act woard agent as though principle was he" ; see Market St; 127 (holding that leasee had duty to remind large corporation, GE, about a singular paragraph in one ct signed 20 years prior that had effect of forcing GE to sell land at a price far below market value. noting that notifying GE of the para would cost nothing, but also considers aspects that leasee may have acted in good faith bc they looked elsewhere for financing and tried for months to get GE's attention.
        
        see Acquista v NY Life Insurance Co, 184 (holding that Insurance co acted in bad faith because it had no reasonable basis to deny coverage to P, and thus insurance co was acting in bad faith)
      - Honesty in fact
        
        good faith will be deemed to exist if parties act 'honest in fact'; see Zapatha , 127 (holding that franchisor encouraged franchisee to talk to a lawyer before signing, and franchisee was even read the CT, thus franchisor showed good faith)
  - - - Definition
        
        2nd 151: representations that are warranted to be true allocate risk to the party making the representation in the event the assertion is not 'in acorrd w/ the facts'
        
        UCC 2-313: made by one party to another about existing or past facts that are knowable but not necessarily known (NA to future 'facts', i.e. opinions); 132
      - 3 paths to formation
        
        description of the goods which is made part of the basis for bargin
        
        sample/model: any sample or model which is made part of the basis of the bargain creates express warranty that whole of the goods will conform to the sample/model
        
        affirmation of fact
    - - 3 types
        
        merchantability; UCC2-314
        
        if seller is a merchant of those goods, the goods will be fit for the ordinary purposes for which such goods are used
        
        fitness for a particular purpose; UCC2-315
        
        arise when buyer has disclosed his partiicular needs or purposes (note diff btw this and ordinary use in merchantability warrant) for the good, and relies upon seller's skill or judgment to supply them
        
        title - applies to all sales; UCC2-312
        
        title shall be good, and transfer rightful; shall not have lien that buyer did not know of (all of this can be opted out of w/ express langauge)
      - Excuse from Implied Warranties
        
        magic langauge:
        
        'as is', 'with all faults'' UCC2-316
        
        can be excluded/modified by course of dealing/performance/usage of trade
        
        other excused from express/implied warranties, UCC2-316
    - - breach of warranty claim easier misrepresentation claim
        
        except for warranty of a particular purpose, no need to show that representation is material and relied upon. 'basis of bargin' is just presumed for other warranties.
        
        Both claims involve a statement of fact
      - Differience in remedies
        
        Warrant, ct is not voided. Misrep it is
    - - Monetary damage, or replace part/good (CT is not voided)
    - - warranty: noncompliance gives rise to breach of CT damage
      - condition: noncompliance excuses other party from performance; 2nd 224
  - - - insurer payee submits document late after insurance co waived condition
      - 4 excuses to exit a condition; 138
        
        conduct by the party for whose benefit the conditon was made that waives the condition
        
        see Clark v West, 139 (ruling a condition can be waived w/o altering the CT, based on an objective standard [i.e. the party waiving the right must know its actions would constitute a waiver]
        
        2nd 84
        
        a waiver can not be revoked
        
        does not require consideration, nor prejudice or injury to the other party, see Clark v West, 139 (stating that D's waiver of the the condition requiring P to abstain from drugs had no requirement of prejudice or injury to P)
        
        changed circumstances that make compliance by the promisee with the condition impracticable
        
        see impracticabiliy under implied conditions
        
        discharge by the court
        
        when court will not discharge
        
        see Forrest Ferguson, 141, (holding that if parties to an insurance CT adopt a provision which contravenenes no principle of pulbic policy and contains no element of ambigiouty, the courts have no right to relieve one of them from disadvantageous terms, however the CT in this case did contravene public policy b/c insured got the policy for protection, and the insurance co is trying to avoid paymen)
        
        Against Publci Policy
        
        evidentiary v. substantive condition
        
        see Forrest Ferguson, 141 (holding that a condition requiring a broke-in safe have marks of physical damage is merely evidentiary, not substantive, and thus not relevant in the CT. Also, the rule is against public policy, b/c insured got the policy for protection, and the insurance co is trying to avoid payment)
        
        insignificant deviations
        
        see Jacob v Kent 144 (holding that not using reading pipe was an insignificant failure, it was done in good faith, and thus should not be enforced)
        
        agreement by both parties modifying the ct to discharge the condition
    - - Enforcement Condition
        
        make one side's dutyies to perform conditional on some level of performance from the other side
      - Performance Condition
        
        not make one's duty to perform conditional on the performance of the other side, but rahter on external conditions
    - - substantial performance rule
        
        Def
        
        make buyer's duty to pay conditional on the seller's substantial and innocent performance; See Jacon v Kent 144 (holding that contractor did substantial work, and omited the reading pipe requirement innocently, and thus held up his side of the deal)
        
        Independent promises are not conditions
        
        if ct is based on substantial performance, than independent promises are not conditions; see Jacob v Kent, 144 (holding that reading pipe was an independent promise and not a condition)
        
        contra; not all courts apply this rule
        
        three different takes
        
        b) substantial performance
        
        (rule taken by Kent court)
        
        perfect tender
        
        buyer has to pay only if other party peforms a perfect job
        
        A) Unconditional duty
        
        party has to pay no matter what, b/c all promises are inddpendent
        
        insignificant deviantions in CT are allowable
        
        see Jacon and Kent, 144 (holding that not installing reading pipe, but instead installing a pipe of equal value is ok)
      - law of impracticability
        
        Definition
        
        default performance condition which makes sellers duty to perform conditional on their performance not becoming impracticable (focus on cost of performance)
        
        distinguish from frustration
        
        frustration focuses on benefit of performance
        
        see Taylor v Caldwell (there is no benefit to the CT when music hall burned down, so injured party is excused from duty)
        
        remedy; 2nd 272
        
        duties discharged w/ appropriate restitution, unless language or circumstances indicate the contrary; 2nd 261
        
        if part performance occured
        
        is divisible
        
        either party may recover at the CT rate for a divisible, or severable part of that performance
        
        not divisible
        
        either party can recover in restitution for any benefit conferred on the other
        
        elements
        
        event must have made performance impracticable
        
        see also Taylor v Caldwell, 150 (holding that a ct to rent a music hall became impracticable to perform b/c music hall destroyed by fire)
        
        see Krell, 156 (holding ct to rent apt for corronation viewing, w/ corrantion being the foundation of ct, is voided when corrantion is cancelled)
        
        see Wegematic, 148 (holding that CU seller's ability to sell the computer it adverstiesed was not impracticale, because when compared to potential profits of 25 million dollars, a 1.5 million dollar cost was not an impracticable undertaking)
        
        party who wants excuse from ct must try to avoid/mitigate damage
        
        party can not create impossibility of performance
        
        A party may not, by its own conduct, creat the event causing the impracticability of performance, in fact it must make all reasonable efforts to avoid the impossibility and once that event occurs, it must employ any practicable means of fulfilling the CT, even if it had originally expected to meet its obligation in a particular way; Chemetron Corp. v. McLouth Steel (note after Dunbar), 152 # #
        
        must make reasonable efforts to avoid the impossibility
        
        once event occurs, must employ any practicable means of fulfilling ct
        
        was the event which preveted performance of the ct of such a character that it cannot reasonably be said to have been in contemplation of the parties at the date of the ct
        
        see Krell, 156 (holding that neither party expected the corrantion to be cancelled)
        
        non occurance of the event must have been a basic assumption on which the CT was made
        
        foundation
        
        see Krell v Henry, 156 (asserting that not only the terms of a ct, but necessary inferences, drawn from surrounding circumstances recognised by both parties, what is the substance of the CT, and then ask the question whether that substantial CT needs for its foundation the assumption of the existence of a particular state of things, thus ct to rent apt to view corrantion is void b/c corrantaion cancelled)
        
        see also Taylor v Caldwell, 150 (holding that a ct to rent a music hall was based on the assumption that the hall would be fit to play music, and that assumption failed when a fire burned down the hall)
        
        basic assumption
        
        risk of non-occurance must not be allocated to in the ct; see Wegematic, 148 (holding that seller of a 'revoluntiary cu' allocated teh risk that its computer would be revoluntainary)
        
        Impractacibility due to a 3rd party
        
        parties must take action to mitigate risk
        
        see Canadian Industrial Alcohol v Dunbar, 151 (holding that the entire point of a middle man is to allocate risk to that party incase the source dries up, and thus middle man for wine had no defense of impracticability when primary source of wine dried up)
        
        contra, dicta in Canadian Industrial, 152 (holding that a party can be excused if they rely on a 3rd party and 3rd party is affected by i)destruction, ii) climage clamity destroys raw material, iii) ravage of war, iv) unavoidable strikes
    - - if condition not met, CT can be cancelled. But payment waives the right to cancel; see In Re Carter's Claim, 136, (explaining that a CT element regarding seller's assurance that there was no materially adverse change in the financial condition of a company was a condition, and thus payment by the buyer waived the right to exercise that condition)
        
        failure of a condition can be vary harsh if party made a condition and used a lot of resources prior to non-payment (see doctrine of 'excuse of conditions' try to work around this)
    - - excuse from performance
- - - - Patterns
        
        will not receive Specific performance for a person's act (i.e. positive injunction)
        
        compare NIPSCO and Walgreens, 164-167 (court ruled against specific performance in NIPSCO, which would have required positive injuction (keeping mine open) v Walgreen, specifi performance was more appropriate for stopping an act (allowing a pharmacy into a mall))
        
        dicta in Curtis bros, 161
        
        2nd rest, 367 (2)
        
        will receive Specific performance for sale of land
        
        see Walgreen, 165 (holding that a CT regarding the use of land in a mall receives speciific performance when CT was breached, b/c land is unique)
      - 4 factor test for Equity
        
        remedies at law are inadequate
        
        substitute is not available
        
        see Curtis bros, 161 (holding that equity is appropriate when injured party can not proucre needed goods, tomatoes, from a substitute source
        
        see Curtis Bros, 161 (holding that $ damages would be inadequate, bc injured party needed tomatoes, and w/o CT with the breaching party, injured party would be vulnerable to whatever tomatoes were left in the market, and may be unable to procure tomatoes at any price in time for the season)
        
        see Northern Indiana Public Service, 164 (holding that coal mine, who was injured party in CT breach w/ D, would not receive specific performance b/c $ damage adequate, and even if specific performance was issued, the parties would be incentivzed to reach a deal resulting in the mine closed anyway, b/c breaching party can receive energy cheaper elsewhere.)
        
        injured party suffered irrepable injury
        
        see Curtis Bros, 161 (holding that injured party would suffer irrepable injury if D did not sell P tomatoes in time for high season)
        
        public interest wold not be disserved by a permanent injunction
        
        see Northern Indiana Public Service, 164 (holding that speciific performance of a ct for coal mining would be a disservice to the public, b/c breaching party can receive energy cheaper elsewhere, and specific performance ruling would still result in the mine being closed, thus specific performance would be a greater cost on society than benefit received)
        
        compare cost of $ damage against equity
        
        if equity is cheaper for society, equity should win; see Northern Indiana Public Service, 164 (ruling that specific performance for a breached coal mining CT would be costlier to society than $ damage)
        
        Posner's factors to consider, see Walgreen v Sara Creek, 166
        
        Cost/Benefit of Injunctive Relief
        
        benefit of injunctive releif
        
        2 more items...
        
        cost of Injunctive relief
        
        1 more item...
        
        cost/benefit of $ damage
        
        benefit of $ damage
        
        2 more items...
        
        cost of $ damages
        
        2 more items...
        
        when analysis is not clear if $ damage or equity is more efficeint, go with money damages
        
        $ damages are not possible to calculate
        
        see also Northern Indiana Public Service, 164 (holding that $ damages were adequate b/c it was possible to calculate the money damage the injured party suffered; e.g. value of CT [amount of coal x price] and subtract cost of operation)
        
        see Walgreen Co, Sara Creek, 165 (holding that D's breach of a CT prohibiting a 2nd pharmacy in D's mall would require uncertain calculations for 10 years of P's future sales offeset by a competior [2nd pharmacy], and thus injunctive relief [specific performance] was more appropriate)
        
        see also Walgreen Co v Sara Creek, 166 (also ruling that parties are better able to determine costs than the court, so more appropriate to give specific performance and let parties hash it out)
    - - Direct Loss
        
        seller remedy for buyer's breach
        
        CT damage
        
        when not adequate, receive actual damage
        
        Actual damage
        
        elements
        
        2 more items...
        
        how to calculate
        
        1 more item...
        
        how to calculate
        
        CT price - Market Value on date of breach
        
        nuance for MKV
        
        1 more item...
        
        see Amer Mech v Union Machine, 167 (holding that usual damage calculation for CT breach is CT price - market value on date of breach)
        
        usual remedy for CT breach
        
        Nuance
        
        if CT has payment installments
        
        see New Era Homes, 169 (holding that intent of the parties using rules of interpretion, express langauge, trade usage, etc indicate that the injured party would receive actual loss damages as opposed to lost installment payment)
        
        buyer's remedies for seller's breach
        
        repudiating seller
        
        injured party does not have duty to mitigate
        
        injured buyer has no duty to mitigate damage, see Reliance Cooperage, 173 (holding that party opposing repudiation by seller in CT for white bourban staves has no duty to mitigate damage, and may sue for CT damage at time of performance - measured by difference btw CT price and MKV at time of performance)
        
        CT damage
        
        calculation
        
        measure difference btw CT price and MKV at time of performance
        
        1 more item...
        
        When CT damage award too much (breaching seller usually wants actual damage calculation; contra Hadley v Baxendale, 181)
        
        receive actual damage
        
        2 more items...
        
        if buyer covers
        
        calucated by
        
        1 more item...
        
        if buyer accepts damaged goods
        
        calculated by
        
        1 more item...
        
        options for injured buyer when seller repudiates
        
        a) sue repudiating seller then and receive diff btw MKV and CT price at time of repudiaiton
        
        b) wait for time of performance, and sue for damages measured by diff btw CT price and MKV at time of performance
        
        c) wait for time of performance, and buy goods if repudiating seller revokes the repudiation
        
        see dicta in Reliance Cooper, 173 (holding that party opposiing seller's repudiation, if doesnt sue immediately, would have to buy the goods in event that seller revokes repudiation)
        
        determination of type of remedy can be determined by rules of interpretation, see New Era Homes, 169 (holding that trade usage helps to establish that the parties mean to have remedy be actual loss)
      - Consequential (damage flow from breach)
        
        elements
        
        price of consequental damage is foreseeable
        
        see 2nd 351, stating that damages can not be more than what breaching party could have expected
        
        see Hadley v Baxendale, 181 (holding that breaching party did know the extent of consequential damage to injured party of not delivering crank shaft expeditiously, so consequential damages were not appropriate)
        
        see Hydraform products, 182 (stating that lost profit from sale of 400 wood stoves was foreseeable, so included in consequential damages)
        
        cost of consequential damages can be calculated with reasonable certainty
        
        see Hydraform Products, 182 (stating that consequential damages of future lost sales of wood stoves, and receiving less than expected price on sale of bizz could not be reasonably calculated, and therefore consequntial damages were not appropriate for those losses)
        
        no evidence breach resulted in a particular consequential damage
        
        see Hydraform Products, 182 (stating that consequential damage of selling bizz for a low price was not a foreseeable consequence of the CT breach, and so that consequental damage was not appropraite)
        
        see Sullivan, 183 (stating that injured party's failed nose job did not result in loss of employment, so no consequental damages awarded for that)
        
        Pain/Suffering
        
        elements
        
        foreseeability
        
        see Sullivan, 183 (ruling that P/S from extra 3rd operation in nose job was foreseeable, so consequential damage from that is apprpriate)
        
        see also, Acquista v NY Life Insurance, 184 (holding that P/S was foreseeable from insurance company's bad faith acts of denying coverage and requiring tons of informational documents from P, so P gets consequential damage of P/S)
      - liquidated
        
        Elements
        
        to be determined at time of CT inception
        
        Amount must be a reasonable forecaset of just compensation for the harm caused by the breach (i.e. proportional)
        
        see Southwest Engineering, 186 (ruling that the LD in the Ct were not disproportionate to the substantial projects contemplated by CT, and thus LD were enforcable)
        
        not relevant if party seeking LD was actually injured, just that LD was reasonable at time of inception
        
        see southwest enginering, 186 (holding that party seeking LD did not have to be actually injured to receive $ damages)
        
        see Cellphone Termination Fee Cases, 188 (holding that Sprint failed to show it did any analysis to determine a reasonable LD clause, and thus LD clause was invalid)
        
        the harm caused by the breach must be one that is incapable or 'very difficult' of accurate estimation
        
        See Cellphone Termination Fee Cases, 187 (holding that Sprint's cost of individuals terminating their CT would be very difficult to calculate on an individual basis, so LD did not fail on this count)
        
        determine intent of parties
        
        use rules of interpretation
        
        see Southwest Engineering, 186 (stating party opposing LD failed to show that the intent of the parties was anything other than what was in express langaguge of the CT, and the parties took a calculated risk that LD clause was worth it)
        
        see Cellphone Termination Fee Cases, 188 (holding that Sprint's intent for LD was to stop breach and procure profit from individuals who breached CT, and thus LD was not valid)
      - purpose of $ damage
        
        make party whole again
      - injured party has a right to damages based on expectation interest, 2nd 347
        
        calculation: direct loss + incidental loss + consequential loss - loss avoided
  - - - pary is discharged from their duties
  - - - when promisor by words/conduct repudiates a performance not yet due under agreed exchange
        
        nuance:
        
        if party states great difficulty in completeing performance, it is not the same as repudiation
        
        2nd 251, if injured party is unsure that conduct of other party constitutes repudiation, he can request 'assurance of performance', and if other party confrimed CT would not happen, P can sue.
      - contra actual breach
        
        can not occur until time for performance has arrived
    - - c) the repudiation has not been effectively nullified by a retraction or otherwise
        
        see Taylor v Johnston, 159 (holding that injured party did not rely on first repudiation, and repudiating party retracted before performance was due, so ct not repudiated)
        
        if repudiation has been relied on, or injured party affirmitvely confirms that they understand CT is off, Ct is final; see Hochster, 158 (holding that injured party relied on repudiation, and it was final)
      - b) promisor's repudiation is of a material part of the agreed exchange
      - a) both parties have obligations under CT
      - can be express or implied repudiation
        
        express
        
        clear, positive, unequivacl refusal to perform
        
        see Hochster, 158 (holding that party repudiated by cancelling the ct)
        
        implied
        
        results from conduct where the promisor puts it out of his power to perform so as to make substantial performance of his promise impossible
        
        see Hochster, 160 (holding that stud was in the same state as the mares it was contracted to breed with, so there was no implied repudiation [no question that there was not an express repudiation])
        
        note 2nd 251 - can request assurance of performance. see nuance
    - - party oppossing repudiation has both affirimitive and defensive remedies and these remedies can be invoked before time set for preference
        
        if injuried party seeks affirmitive remedy ($)
        
        w/e money injured party saved/received b/c of repudiaiton is subtracted from total remedy repudiating party will pay
        
        see Hochster v De La Tour, 158 (holding that injured party who replaced repudiated ct w/ another ct will have money damages decreased by the amount the new ct brought in)
        
        UCC
        
        if A buys goods from B, and B repudiates after receiving part payment, A can sue to get that $ back
        
        injured party seeks defensive remedy
        
        injured party will be excused from CT, and can establish new ct
        
        see Hochster v De La Tour, 158 (holding that injured party was excused from duties once ct was repudiated, and injured party could utilize that time to est a new ct, but $ from new ct will be subtracted from $ damages injured party seeks)
      - can sue immediately
        
        see Hochster, 158 (holding that injured party can sue immedaitely once other party repudiates)
      - can wait for actual breach
        
        and sue for CT breach at time of performance
- - - - Was there only a gift?
        
        May only be a gift: Kirksey v Kirksey (move to house in woods); 5
        
        Was no consideration
        
        Normative value why courts will not enforce: 7
        
        Promisor (theorietically) did not receive any benefit (contra Langer, 6, where D did receive benefit because P would not provide his skill to any of D's competitors)
      - Is there consideration
        
        benefit/detriment as useful aids
        
        Langer v Superior Steel, 6 (not to compete clause after retirement, and receive pension)
        
        Promisor benefitted. Helpful aid to realize its a consideration
        
        Promissee suffered detriment - relied on promise, and if promise fell through, Promisee suffer (promissory estoppel); 6
        
        Will always look to motive/intent of BOTH parties. this is newer test to determine if consideration exists. Use tools of interpreatation (express langauge, trade, etc); look for motive and inducement to distinguish consid from gift; 7/8
        
        Was there Intent to contract? 10
        
        Cohen v Cowles Media; 9 (newspaper - there was evi of consideration, but no intent, based on trade practice) - keep courts out of area of newspaper
        
        courts will stay out of deals made in special relationships; newspaper; family
        
        it is not legally relevant if there is intent; however CT will be destroyed if there is no intent; 10
        
        can consist in some right, interest, profit, or benefit accuring to one party or some forebearance, detriment, loss or responsiblity given (see Hamer v Sidway, 6 (ruling that one party's duty to refrain from tabacco constitutes consideration)
        
        Promise induce detriment, detriment induce promise
        
        Promise induce detriment; detriment induce promise; Penny v American Ash (holding that D's promise of a free hazardous substance, that P thought was useful induced P to suffer a detriment (costing P 230K), and P's offer to take on a detriment (unknowingly) induced D's promise. Thus there was a consideration, and enforcable CT as opposed to a gratiutity); 6
    - - consideration must be adequate and sufficient
        
        adequate: consideration given was adequate (courts avoid; 11)
        
        sufficient: nominal consideration is not sufficient
        
        In re Greene; sex and $1 not sufficient for all the goods promisor gave; 8/9 (although they do have intent)
        
        compare to Thomas v Thomas; 11 (house goes to widow per will; she pays 1 lb a year; she upkeeps premise) although it was only 1LB, it is sufficient based on totality of the circumstances
        
        standard for sufficiency: i) detriment incurred by promissee; ii) benefit received by promisor at request of promisor; 11
    - - no pre-existing duty: consideration must not be from past; 9
        
        Nuance
        
        if there is a debt to be paid, and its SoL has run, but is renewed, that is a valid consideration; see First Hawiian Bank; 70
        
        Per First Hawiian, 70. SOL for debt can be renewed in 2 ways:
        
        ii) implied, which includes
        
        b) part payment of
        
        defense to implied reneweal of debt: may be rebutted by other evidence and circumstances in which it is made. .See Hawaiian (person in debt denies knowledge of the debts, or that he agreed to actually pay them)
        
        a) express acknowledgement of debt
        
        i) express
    - - No Mutuality test:
        
        McMichael v Harley (buy all sand); 17. If one party did not suffer previous detriment, and can escape future liabiltiy under CT, there there is no mutuality
        
        Also known as the illusory promise: 21.
        
        mutuality requirement: "if party free to perform or w/draw from agreement at own unrestricted pleasure, the promise is deemed illusory and there is no consideration; 21
      - there is mutuality:
        
        mutuality satisfied: if 'no free way out': i) duty of good faith; ii) requirement that the party's dissatisfaction be reasonable in good faith; iii) in regards to a termination right, that termination be advanced w/ notice; 22
        
        implied obligation: [19]
        
        see Otis Wood, 19 (holding that injured party was making an implied consideration by having established a bizz for the purpose of satisfying the CT w/ D who was using P as an agent to sell D's brand/name. Thus, look to the totality of the circumtances to determine if there is an implied obligation, which constitutes as a consideration)
        
        see Omni Group Inc, 20 (holding that D's promise to exercise judgment of real estate sale in good faith is adequate consideration to support CT)
    - - Promissory Estoppel
        
        Elements
        
        must satisfy: i) promise; ii) should promisor reasonably induce promisee to change action; iii) actually induce a change of behavior ; iv) there would be injustice if ct was not enforced
        
        Def:
        
        2nd Rest 90; reliance acts as consideration (promise which promisor should reasonably expect to induce action...on part of promisee..& does induce action is binding if injusctice an be avoided only by enforcement of promise": 22
        
        Remedy
        
        can be limited by judge, 2nd rest, P. 23
        
        contra consideration: P.E. does not require definitness/concreteness in terms
      - Moral Obligation (2nd 86):
        
        Wess , 72, rule: "where promisee cares for, improves, and preserves property of promisor, though done w/o his request, it is sufficient consideration for promisor's subsequent agreement to pay for the service b/c of the material benefit received" (ruling that X who saves Y's life and Y agrees to pay to X, Y must pay X)
        
        contra Daniel Mills, 72 -promisee cares for promisor's adult son. No Ct.
        
        contra to Unjust Enrichment. Party can rely on moral obligation if act is done voluntarily.
        
        contra consideration:
        
        no consideration for act done in past, but can promise to pay for past recevied benefit, and that is enforcable, See Wess 72 (holding that promise for past received benefit can consitute a moral obligation and make enforcable ct)
      - Unjust Enrichment:
        
        elements see Bailey v West; 67
        
        i) benefit conferred upon D by P; ii) appreciation by D of such benefit; iii) acceptance/retention by D of such benefit such circumstances that it would be inequitable to retain benefit w/o payment of value
        
        see Bailey, 67 (person knew there was controversy about horse ownership when he accepted horse; D did not acquiesce in conferment of a benefit upon himself; P was a mere volunteer who accepted to care/maintain horse w/ full knowledge he may not recover)
        
        if one party receives doube recovery
        
        if X receives double recovery, some of which Y is owed, Y can rely on 'unjust enrichment' to recieve payment he is owed; see Kossian; 69 ( owner of house receives $ from insurance co to fix house after fire, and refuses to pay construction co who actually fixed the house. owner must compensate, because he was unjustly enriched)
    - - Elements; 2nd 89
        
        both parties find new difficulties to be unexpected
        
        there is volutnary modification by both parties
        
        see Alaska Packers, 13 (ruling that injured party did not voluntarily modify the CT); contra Angel v Murray, 14 (holding that both parties did voluntairly modify CT)
        
        modification is suggested/agreed before completion of original ct
        
        modification is fair/equitable
        
        see Alaska Packers, 13 (ruling that modification effectively happend under duress/coercion, thus modification is not appropriate)
  - - - Subjective, mental state of parties not relevant
        
        see Taco Bell, 28 (ruling that an implied obligation can substitute for express words. implied ct: "ct not manifested by direct or explict words btw parties, but instead gathered by implication or proper deduction from conduct of the parties, language used, or things done by them")
        
        See also Lucy v Zhemer, 26 (holding that drunk conversation and much back and forth among parties would establish an objective manifestation of agreement, and thus CT enforcable)
        
        See Embry v Hargadine, 25 (holding that a reasonable person in P's position, who asked for assurance of employment in a emotionally distraught state of mind, could have believed there was agreement that P would remain employed, and CT would be enforced, despite what D thought)
      - Relevant factors include:
        
        note after Lucy v Zehmer: on factors to look at to determine objective standard (27): i) subject matter; ii) rship of parties; iii) circumstance surrounding transaction; iv) background knowledge of parties; v) past dealings; vi) purpose of conversation
      - if not, may be a misunderstanding
        
        Rule
        
        as soon as it is known the parties mean different thing, the contract is not enforcable. Peerless; 27
        
        misunderstanding: "both interpretations are reasonable, but different than each other" - peerless
        
        Definiton
        
        2nd 20: "parties attach materially different meanings to their manifestation"
      - 3rd parties who suffer from CT breach, but are not parties in CT
        
        see Northern Indiana Public Service, 164 (holding that a breaching party in a coal mining CT had not assumed any obligation to the coal mine ee's, so any injury the ee's suffered was none of the breaching party's concern)
        
        contra, dicta in Northern Indiana Public Service, 165 (holding that although 3rd party interests are irrelevant in CT, the public interest, which is also a 3rd party, is an interest that must always be taken into account)
    - - was there an offer? rest 24; 29
        
        Elements
        
        Clear
        
        Definite
        
        see Pepsico, 32 (holding that an ad needs words of limitation to make the offer good. e.g. 'first come, first serve'. Pepsico not offer b/c no definiteness)
        
        explicit
        
        leaves nothing open for negotiation
        
        reasonableness
        
        See Lefkowitz, 30 (lapin coat for reasonable cost); contra Pepsico, 32 (jet for much less than it is worth)
      - was there acceptance?; 30
        
        advitesor can change mind b4 acceptance; See Lefkowitz; 30 (holding that offeror can revoke the offer before acceptance)
    - - Option CT
        
        three types of Option CT
        
        Rest 45
        
        performance activates acceptance. performance must be in a reasonable time, if no time limit stated; 40
        
        For advertisemetns
        
        if ad makes offer that performance satisfies acceptance of a ct, it will be enforced; Carhill v Carbonic smoke ball; 42
        
        for ads offering contract w/ performance being acceptance, notification is never necessary b/c against common sense
        
        nuance - if option was accepted, but not yet performed (or worked) on, offeror can still revoke. 39 (see Marchiondo - if broker had not found buyer, but put in work, the option may still be enforcable)
        
        offeror can not revoke CT if performance has started, see Marchiondo, 39 (holding that once a party starts performance, offeror can not revoke Option CT)
        
        Reliance
        
        see Drennan v Paving, 41 (ruling that Subcontractor can not pull out of CT w/ contractor, because Contractor is relying on the Subcontractor's performance)
        
        buy option
        
        See Humboldt Oil, 37 (holding that if a party buys an option to buy land/goods/etc, that option is enforcable and irrevocable once accepted by consideration that bought the option CT. It can not be repudiated by counteroffer)
        
        see also 2nd 25: Option is like a ct, but limits promisor's ability to revoke offer; e.g. in consideration of $1, I promise not to revoke my offer to sell X for 30 days
        
        Definition
        
        "a promise which meets the requirements for the formation of a contract and limits the promisor's power to revoke an offer." 2nd 25
        An option contract is a type of contract that protects an offeree from an offeror's ability to revoke their offer to engage in a contract
        
        contra CT
        
        which is accepted by promissory acceptance, and can be revoked if no promissory acceptance, option CT can be accepted before promissory acceptance
      - Silence as Acceptance
        
        Default rule is that Silence will not act as acceptance.
        
        Can be overruled in two ways
        
        when expressly stated
        
        default rule can be contracted around with langauge in the CT allowing silence to act as acceptance; See Beneficial Bank v Rayton; 35 (holding that credit card companies can establish silence as acceptance in the express langauge of the CT)
        
        CA says written agreement that silence is agreement is no good; 35
        
        When history reasons it
        
        Silence as mode of acceptance, when it was a common practice btw the particular parties in the past (ammons v wilson - past practice of silence overruled express terms of ct); 34
        
        default rule is that silence will not be acceptance. overridden based on past practice of particular parties; 35
        
        Silence as Acceptance for Counteroffer
        
        silence can not consitute acceptance of a counter offer, even if past practice shows it. Must apply 2207. see Textile Unlimited; 52. (buyer sends order form, seller sends back invoice stating silence is acceptance and adds materially different terms - the invoice is not enforcable)
      - Use tools of interpreation to determine acceptance for sale of goods
        
        Alternate modes of acceptance for goods, UCC 2-201(b)(3); 35 - "bargain of parties in fact as found in their langauge, or by implication from other circumstances including course of dealing or usage of trade or course of performance"
      - may stipulate acceptance by verbal/written promise; 2nd 30, 32; 40. Promisee must follow those instructions
      - Rest 62 (promise or performance) 33
        
        see Ever-Tite, 33 (holding that once part peformance has begun, acceptance is established, and CT enforcable, thus when P began moving materials for the construction work, the CT was in force)
        
        B/C promisee's notificaiton to promisor is not required (See 2nd 54), if offeror wants to cancel CT, he must give notice to offeree
        
        'commencing preparations' may not constitute 'commencing preparations', see note after Ever-Tite (holding that commencing preparations may not establish acceptance when CT under 2nd 62, but may give promissee the ability to sue under reliance)
    - - 2nd 40, 42: rejections, counteroffers, and revocations valid when received; 46
      - Acceptance effective when mailed; 2nd rest 63; 45
        
        unless counteroffer/rejection mailed before acceptance is received - race btw letters
        
        if acceptance arrives first, it is accepted. if acceptance arrives after, it is a counter-offer. 2nd 40; 46
        
        Adams v Lindsell; 45, every second offer is in the mail, it is a good offer
        
        offeror can ct around this aspect of mailbox rule (so mailbox rule is default rule); 46 (also has justifications for this rule)
      - Mailbox rule for option K: acceptance of option not valid until received (b/c option K do not allow for revocability); 2nd 63; 46
    - - 2-207 gets rid of mirror image
        
        1) added terms in acceptance still acts as acceptance, unless 'expressly made conditional on assent' to added term
        2) added terms are proposals.
        i) btw merchants, added terms are good unless
        a) expressly limit acceptance to terms
        b) materially alter it
        c) notification of objection is given in reasonable time
        3) conduct may show CT exists (although express langauge shows otherwise), w/ terms agreed on and those that UCC adds in
        
        material terms: price, quantity, delivery, choice of forum (DTE Energy, 49); aslo limit on damages (Hydraform Products v American Steel, 182)
        
        if different terms, jurisdictions are split: some will apply them like proposals for added terms, and look to UCC2-207(2); others will use the knock-out rule and apply UCC2-207(3)
        
        if added terms are made conditional on assent
        
        If assent not given
        
        apply subsection 3, and let UCC add gaps: see Textile; 52 (holding that subsequent invoice to a CT had an arbritration clause and required express assent, which was not given. Thus court applied UCC2-207 (3) and dropped the arbratirion clause, and allow UCC to fill in gaps with default rules, which does not include an arbitration clause)
        
        How to establish 'assent'
        
        the assent to added terms must be "specific, and unequivical"; textile 52
        
        See DTE Energy, 49 (holding that language like "the terms in this acceptance supercede original offer" does not consittue an requirement of express assent, thus original CT was accpted even though P sent follow up with added terms)
        
        silence as assent is not sufficient; Textile 52 (holding that D's subsequent invoice to a CT which included an arbitration clause, and stated silence would act as acceptance was rejected by the Court, stating assent to added terms must be clear and unequivical. but bc D required assent, and it was not received, the court applied UCC207(3) and dropped arb clause)
        
        Result
        
        it acts as a counter offer; see klocek 55 (dicta stating that if added terms require assent, which Gateway did not do, then the added terms are a counteroffer)
        
        added terms are NOT made conditional on assent
        
        then they are just proposals, but CT is accepted. See Klocek; 55 (holding that subsequent written CT with added terms to a prior oral agreement that did not require express assent, would be deemed an acceptance of the Offeror's (customer) original CT)
      - Mirror Image -acceptance is valid only if mirror image of original offer - no counter offers; Minn v Columbus; 47
        
        2nd 39: offeree's counter offer is a rejection; 47
        
        counteroffer includes: offeree submitted a 'qualified/conditional acceptance'
        
        does not include 'unqualified acceptance' (e.g. won't you take less?); or inquiry regarding possibility of deff terms, request for better offer, or comment; or 'contrary statement' - e.g. efferee may state he will keep offer under advisement, but if offeror wants to close bargain at once, offeree makes a specific counteroffer
        
        even non-material changes are fatal to establishing acceptance, and thus K; 48
        
        Requests/Suggestions:
        
        2nd 59; reply that purports to be acceptance, but adds qualifications or requires performance of conditions is not acceptance, but counteroffer
        
        2nd 61; acceptance that requests changes is not a counter, unless acceptance is made to depend on assent to new terms (but note, added term may be something in original offer)
    - - if terms not filled in for goods
        
        Majority rule:
        
        if terms of quantity are not filled in, or ambigious - default term is zero; 31
        
        if price not settled by time goods delivered, often apply reasonableness standard; UCC 2-305; 31
        
        Minority rule: interpret ct against drafter to incentivze better CT writing; 31
      - CT expressly leaves terms open for future negotiation:
        
        Can use Rules of Interpretation to fill in Gaps and determine parties' intent
        
        MGM v Scheider; 61; open terms are not a death nail, can still fill in terms by looking at totality of circumstances:
        
        ii) commerical practice
        
        Delicatessen - sale of goods often leaves price open b/c price fluid, but sale of land, stability is paramount, so open term there may kill ct)
        
        iii) other usage and custom. s
        
        see MGM (ct to star in TV show may be valid ct based on these factors); 61; see also J Martin Delicatessen; 62 (future lease will be 'mutually agreed upon', but no past practice of filling lease w/ this person, so CT die)
        
        i) can be found in agreement itself
        
        see Delictatessen, 62 - agreement may have language saying parties will agree based on a methodology - market price, recourse to objective/extrinisc test
        
        if no other evidence or tools available to fill in the gap, the gap will remain, and CT may die if it is a material term,
        
        Empro MFG, 65 (explaining that 'subject to' and 'up to the discretion of the board' manifest an objective intent for the Ct to not be binding, and there are no other rules of interpretation to rely on to fill in the gap)
        
        "clarifications are needed" Empro MFG 62 - often is a death nail
        
        nuances, 'subject to' may have been used carelessly; option and acceptance usually bind, only question is if open terms are too important; Empro MFG; 66
        
        see Blinn, 60 (holding that "work for at least five more years" is not defiinte enough to establish agreement, and there is no other evidence to point to suggest there was agreement)
        
        See Varney, 59 (holding that D's promise of 'fair share of profits' could not be determined from any tools of interpretation (specifically usage of trade) to determine party's intent, so CT fails)
        
        see also UCC2-204(3); Code favors filling in gaps
      - use of Promissory Estoppel in CT w/ open terms
        
        even if terms are not clear and definite injured party can claim promissory estoppel and receive less damage; see Blinn 60 ('we have at least five more years of work' may induce reliance on emp; red owl 62 (buyer is dragged along for months making irrevocalbe decisions); see Dixon 66 (bank agrees to 'consider' P for a loan mod if he stops making payments, and P relies on that causing a foreclosure. P uses P.E. and receives remedy of reliance)
      - Agreement to Negotiate v Agreement to Agree
        
        Negotiate: "impose duty to negotiate and obligation of fair dealing". if negotiation fail, then no agreement
        
        see Dixon; 66 - bank agrees to negotiate w/ P about loan modification. owes duty of fair dealing
        
        agreement: terms that are agreed to are terms in Ct and terms court will apply
        
        See Empro; 65 - whole CT is agreement to agree. no terms get into CT; see also Delicatessen; 62 (renewal term 'may be mutually agreed upon' - no agreement = no ct)
    - - Shrinkwrap
        
        majority: CT formed with oral agreement b4 box shipped; Klocek; 55
        
        Point of 2207 was to reconcile battle of forms; comment 1 says 2207 applies to oral agreements later made explicit by writing
        
        purchaser is the master of the offer, and added terms must be expressly accepted by him
        
        CT formed when box shipped
        
        vendor is the master of the offer, and purchaser accepts by performing acts needed for acceptance; see hill 53
        
        even Hill's district applies Klocek's rule
        
        Rich Hill; 53; if CT has only one form, UCC 2-207 does not apply. "ct is formed w/ documents that arrive in box as long as there is an accept or return device"
      - Browsewrap
        
        Netscape;Crossmedia; 56-7: ct online not 'accepted' unless accepting party has clear and obvious knowledge of terms