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K Formation Phase Analysis

Components of Contract
	1) Valid Contract + Enforceability
	2) Mutual Assent & Consideration + Enforceability Docs
Modern Trends & Social Goals
	1) Encourage informality overall
	2) Obj. Theory of mutual assent
	3) Stand. of obj. rsblness (definiteness of offer, PE, etc.)
	4) Rsblness meased by trade custom, expert testimony, & change in X
	5) Interweaving of tort & K 
	6) Resolve ambiguities against those who created them
Incorporation of Statutes
	1) UCC where applicable (goods)
	2) Specific statute can limit pwr to revoke (gen. contractor cases)
	3) Restrictive reading b/c of specif. lang. & ez'ly changeable; originalism
	4 C/L is still default
Major Names
	1) Traynor--advanced tort into K cases; brought PE into mkt
	2) Hand--refused 2 allow PE into mkt
	3) Llewellyn--4 real mutual assent; UCC article 2 4 correction of 
	C/L defect
	4) Holmes--in consideration, brought notion of barg. & legal 
	value components
	5) Hohfelds legal value terms
Steps of Analysis
	1) Did parties offer & accept (mutual assent)?
	2) Will any docs, soc. policies, / statutes fill in the gap?
	3) Did the parties barg. & exchange w/real world impact (consideration)?
	4) Args 4 & against consid. by D & P
	5) If no conventional consid., can any docs work as consid. substitute?
	6) Even w/valid K, enforceability args
	7) Policy rsns in each enforceability args 4 & against enforcing
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Acceptance of Subj. Theory of Mtng Mind / Subj. Stand.
	1)Term. of offer:  supervening death / legal incapacity of the 
	offeror & offeree
	2) Acceptance:  knowledge of the existence of the offer
	3) D's Arg. that P didn't give consideration:  invalid claim
	4) Physical Duress
	5) Econ. Duress (also has obj. rsbl stand.)
	6) Intentional Misrep.
	7) Mistake in Econ. Value;  econ. value is subj. inherently

Theme of Torts
	1) PE
	2) Acceptance:  intent 2 accept:  silence is acceptance after 
	accepting services / exercise of dominion over goods
	3) Enforceability doc:  S/F:  effect of noncompliance in 
	unenforceable K jxn's
	4) Enforceabiltiy doc:  Infancy:  conseqs of being 1
	5) Enforceabiltiy doc:  Physical duress
	6) Enforceabiltiy doc:  Intentional Misrep.
	7) Enforceabiltiy doc:  Unilateral mistake where the other side 
	induces mistake
	8) Enforceabiltiy doc:  Econ. Inadeq.--injunctions handed out in 
	torts cases
	8) Punitive damages rewarded if tort liab. found

Theme of Silence
	1) Term. of offer: after phone / face 2 face conversation, offer 
	terminates unless speak up
	2) Term. of offer:  when offeror/offeree dies / is legally 
	incapacitated, don't need 2 notify 4 term. of offer
	3) Silence as acceptance after
		1. Implicit understanding from prior dealings
		2. Soliciting the offer
		3. Receipt of goods
		4. Acceptance of services / exercise of dominion over goods
	4) No need 2 communicate acceptance in unilateral K unless unrsbl
	5) Unconditional Acceptance:  UCC §2-207(2) where silence by 
	offeror means acceptance of additional terms unless objects
	6) Enforceability doc.:  Infancy:  silence 4 a long X means ratification
	7) Imply trade customs in K's

Application of UCC
	1) Mutual Assent
		1. Offer:  gap fillers & general relaxation of stand. of definiteness
		2. Term. of offer:  limit pwr 2 revoke by statutory 
		substitute 4 seal
		3. Acceptance:  accept if silent after receipt of goods
		4. Method & Means of Acceptance:  by any rsbl means, not 
		just prom./act
		5. In Mail box rule, if theres improper dispatch of 
		acceptance, then @ 
		dispatch if acceptance gets 2 offeror @ same X as proper dispatch
		6. Acceptance:  unconditional acceptance
	2) Consideration
		1. In circumventing pre-exist duty rule, UCC says 
		implied, incompl, 
		simultaneous rescission o.k. any X as long as pers. prop.
		2. Invalid claim of cashing checks in undisputed 
		liquidated claims, UCC 
		says creditor must make counternotation by reserving "w/o 
		prejudice" "under protest"
	3) Enforceability:  S/F 
		1. K 4 realty
		2. Personalty
		3. Piecing memo/note
		4. Acceptance
		5. Part payment
		6. Admission
	4) C/L IS STILL DEFAULT

Application of PE in Validity & in Enforceability
	1) Mutual Assent:  Limitation on pwr 2 revoke
	2) Consideration:  Substitute 4 consid.
	3) Enforceability:  Mitigating doc's against S/F

 

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