contract and non-contract theories
Exercise1: There exists, in the field of contract law, both contract and non-contract theories of recovery. Depending upon the particular fact situation, a party might file a lawsuit for breach of an express contract in fact or an implied contract in fact. Both are contract theories. However, a party might choose to rely on a non-contract theory instead. The two non-contract theories are quasi-contract (implied in law) and promissory estoppel. Briefly distinguish between the two non-contract theories and cite an example of each. Indicate who would prevail in the example that you cite.
Exercise2: The Restatement 2d of Contracts, Uniform Commercial Code and stare decisis are, generally speaking, the sources of law that judges resort to when presiding over contract disputes. The facts of the particular case will determine which of the sources is the one applied in a given lawsuit. It is the duty of the judge to decide what law to apply. The judge will inform the jury of his or her choice. Briefly explain why and when a judge would apply the Uniform Commercial Code instead of the Restatement 2d and vice versa. Give examples of each.
Exercise3: The intent to form a contract is not based on what a person actually intends but rather on the outward message (manifestation of intent) the person sends to others. Thus, contract intent is based on an objective standard. Do you understand the difference between this standard and a subjective one?
Exercise4: An acceptance will create a contract. At common law, the acceptance had to be identical (mirror image) to the offer. A response that was not identical would amount to a counter-offer and cancel out the offer. Modernly, this is no longer the case. If the offeree gives a grumbling response, or if the response given contains additional terms that are unimportant (immaterial), it will still be ruled an acceptance! The UCC reflects a greater departure from the traditional common law approach. When merchants (pros) are transacting business, they almost always rely on their own forms. An offer will be made on one form and an acceptance will be presented on another form. The purported acceptance will invariably contain terms and conditions that are not in the offer. Will the additional terms cause the court to rule that a counter offer was made? Will a court find a contract based on the terms that are identical and then disregard the additional terms? Will a court find a contract and include the additional terms? Submit your answer.
Exercise5: Contract law requires proof that the offeree ‘intended’ to accept the offer. It is not an uncommon defense for the offeree to allege that she did not intend to accept the offer. The offeree might argue that she didn’t even know that an offer was being made, or that when signing the document she failed to read all of the terms, or that she did read all of the terms but did not understand certain ones. How would an offeror prove that the offeree did intend to accept a particular offer if the offeree contended that she was only joking, or that she didn’t know that an offer was being made, or that she knew she was signing an offer but she didn’t read all of the terms or didn’t understand some or all of the terms and conditions?
Exercise6: An offer is a proposal by an offeror that, if accepted, will create a contract. Offers require that the offeror make a promise. The promise can be express or implied. The offer must bargain for a return promise, an act, or forbearance, and it must describe what is being offered (the subject matter) with enough certainty so that a court will not have to guess at what the offeror intended. The offer must be communicated to the offeree, and it must be proven that the offeror manifested the intent to make an offer. How would an offeree prove that an offeror intended to make an offer if the offeror alleged that she was only kidding or that her proposal was merely an invitation to the other party to make an offer?
Exercise7: Offerors have the legal right to revoke their offers if they effectively do so before the offeree accepts. There are, however, several circumstances that would preclude the offeror from revoking the offer. Please identify these circumstances and give an example of each.
Exercise8: While driving to the Staples Center to see a Lakers game, Clara stops at a red light. A man with a towel and windshield fluid rushes up to her car window and washes it, before giving her a chance to comment. He then insists that she must pay him for his work. Would the man be able to recover money from Clara in court based the theory of unjust enrichment? Why or Why not?