Contracts Exam Answer Issue Spotting Mental Checklist



Contracts Exam Answer Issue Spotting Mental Checklist

1) Is there a contract? (a bargained-for agreement with consideration)

Is there consideration?

Are terms definite enough to allow recovery in some form?

Recovery under: expectancy? Reliance? Restitution?

2) Is there obligation under any other theory?

- promissory estoppel/justified reliance?

o Is the promise clear,definite?

o Could promisor reasonably expect the promise to induce forbearance or the action i.e. is promisee’s reliance reasonable? Assurances, actions, statements, conduct? Representations?

o Did the promisor’s actions actually induce the reliance?

o Should recovery be detrimental reliance OR value of promise?

- unjust enrichment?

o IS there an unenforceable agt? (incomplete, not written)

▪ But is keeping the benefit not unjust?

▪ No benefit? But request for the service?

o Breach of enforceable agt?

▪ Is UE/restitution the better theory to recover under i.e. fair market value worth more than the K price, (i.e. losing K or no expectancy) so that the restitution/QM measure is more generous to promisee?

▪ Alternatively, should the K price be limit to recovery?\

▪ Is the only part of the agt left to be performed paying liquidated debt?

▪ Is it a case where the breacher wants to recover under QM?

• Is there some reason that the value of the performance changes over time?

• K price limit for breacher

o Benefit conferred w/out K?

▪ Donative promise? Foisting? Justice requires payment?

▪ Quasi-K/implied in law k? i.e. unjust to keep the benefit

▪ Implied in fact K? Conduct shows K.

- promise for benefit received?

- tort (including statute of frauds) – is there a duty independent of the contract?

- form?

- express warranty?

- implied warranty?

3) Assuming that there is obligation, what remedies are available?

- what are the actual losses to the aggrieved party?

- should they get lost expectance, reliance or restitutionary damages?

- special circumstances, ie. ‘monument’ situation?

- are there any inherent limits on lost expectancy damages?

o new business rule, are they consequential or forseeable damages; did the P mitigate?

o Was it a losing K?

o How to measure the damages?

▪ Consequential? General/essential?

▪ Objectively or subjectively?

- would reliance recovery be more or better than lost expectancy recovery?

o Is it essential reliance (i.e. a losing K situation) or incidental reliance (compensable)

o Was it a losing K?

o Fixed costs might be recoverable if substitute profitable K can be reasonably proven.

- Restitution? (not a damage)

o Better than the other two? If part performance and other party breaches, will value of work given (QM) be more than the K price?

- are there any limitation clauses?

- does specific performance apply?

4) Was there an offer?

Was there acceptance?

Was the assent between the parties? (objectively)

Are there issues with the duration of the offer?

Were parties bargaining at a distance?

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