By the end of this class, you can
- Apply the offer, acceptance, and consideration tests sequentially to an unseen fact pattern and identify the controlling defect.
- Distinguish bargained-for exchange from gift and from past consideration on a comparative fact pattern.
- Apply the objective theory of manifestation to fact patterns testing offer-versus-invitation-to-deal and the mailbox rule.
This is a review day, not a new-doctrine day. We pull the first half of the fall arc — formation and consideration, Modules I through III — onto one map and run unseen fact patterns through it. Nothing new is assigned; everything below points you back to material you have already seen.
The fall arc, in one question
Every case from the first half of the course answers a single question: does the law have a promise it will enforce? The doctrines stack as a sequence of gates. A fact pattern that fails an early gate never reaches the later ones.
- Is there a promise? R2d § 2 — a manifestation of intention that justifies a specific promisee in understanding that the speaker has committed to a specified act. Pappas v. Bever fails here; Steinberg and Lucy v. Zehmer clear it.
- Is there mutual assent? R2d §§ 17–24. Offer versus invitation to deal (Lefkowitz, Leonard v. PepsiCo), the objective theory (Lucy v. Zehmer), and material misunderstanding as a no-formation rule (Raffles v. Wichelhaus, R2d § 20).
- Did acceptance happen, and when? R2d §§ 50, 58, 63 and the mailbox rule; UCC § 2-207 when forms cross (Flender).
- Is the promise supported? R2d § 71 — bargained-for exchange (Hamer v. Sidway, Pennsy Supply) — or, where there is no bargain, a non-bargain basis: promissory estoppel (R2d § 90; Ricketts v. Scothorn, Conrad v. Fields) or the moral-obligation line (R2d § 86; Mills v. Wyman, Webb v. McGowin).
What to review, and where it lives
- Formation (Modules I–II). Re-read R2d §§ 2, 17, 19, 20, 24. Cases: Pappas, Steinberg, Lucy, Raffles, Lefkowitz, Leonard, Smaligo, Flender. The recurring trap is treating subjective intent as the test; the objective theory controls.
- Consideration and its substitutes (Module III). R2d §§ 71, 79, 90, 86. Keep three categories distinct: bargained-for exchange (consideration), reliance (promissory estoppel), and past benefit (moral obligation / restitution). The common error is collapsing a gift or past act into consideration.
How to use this class
Bring the fall as a single map, not thirteen separate chapters. We will run cold-call fact patterns through the gates above and stop at whichever one controls. Come ready to state a rule by its section number and to name the gate at which a given case fails. You may be called.
Class 24 picks up the second half of the map: the Module IV defenses that override a contract once it is formed.
Slide deck
Spacebar / arrow keys to advance. Press F for fullscreen. Click Print / PDF for handouts. PPTX export is professor-only.
Rules
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R2d § 2Promise; Promisor; Promisee; Beneficiary -
R2d § 17Requirement of a Bargain -
UCC § 2-102Scope: Transactions in Goods -
UCC § 2-105Definitions: Goods; Future Goods -
R2d § 1Contract Defined -
R2d § 3Agreement Defined; Bargain Defined -
R2d § 18Manifestation of Mutual Assent -
R2d § 19Conduct as Manifestation of Assent -
R2d § 20Effect of Misunderstanding -
R2d § 24Offer Defined -
R2d § 26Preliminary Negotiations -
R2d § 33Certainty -
UCC § 2-305Open Price Term -
R2d § 45Option Contract Created by Part Performance or Tender -
R2d § 87Option Contract -
R2d § 50Acceptance of Offer Defined; Acceptance by Performance; Acceptance by Promise -
R2d § 58Necessity of Acceptance Complying with Terms of Offer -
R2d § 63Time When Acceptance Takes Effect -
UCC § 2-207Additional Terms in Acceptance or Confirmation -
R2d § 71Requirement of Exchange; Types of Exchange -
R2d § 73Performance of Legal Duty -
R2d § 74Settlement of Claims -
R2d § 79Adequacy of Consideration; Mutuality of Obligation -
R2d § 90Promise Reasonably Inducing Action or Forbearance -
R2d § 110Classes of Contracts Covered -
R2d § 131General Requisites of a Memorandum -
UCC § 2-201Formal Requirements; Statute of Frauds -
R2d § 152When Mistake of Both Parties Makes a Contract Voidable -
R2d § 153When Mistake of One Party Makes a Contract Voidable -
R2d § 154When a Party Bears the Risk of a Mistake -
R2d § 164When a Misrepresentation Makes a Contract Voidable -
R2d § 175When Duress by Threat Makes a Contract Voidable -
R2d § 177When Undue Influence Makes a Contract Voidable -
UCC § 2-302Unconscionable Contract or Clause -
R2d § 12Capacity to Contract -
R2d § 14Infants -
R2d § 15Mental Illness or Defect -
R2d § 6Formal Contracts -
R2d § 36Methods of Termination of the Power of Acceptance -
R2d § 42Revocation by Communication from Offeror Received by Offeree -
R2d § 86Promise for Benefit Received
Cases
- Pappas v. Bever 219 N.W.2d 720 (Iowa 1974) A statement of present intention to act in the future is not a promise; the language of intent does not become a binding commitment merely because the speaker later behaves as if it were.
- Steinberg v. Chicago Medical School 69 Ill. 2d 320, 371 N.E.2d 634 (1977) A contract may be formed through a sequence of acts when one party invites performance, the other performs, and the conduct objectively manifests assent; the offeror's undisclosed intent is immaterial.
- Lucy v. Zehmer 196 Va. 493, 84 S.E.2d 516 (1954) The mental assent of the parties is not requisite for the formation of a contract; the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. A secret joking intent is no defense when a reasonable person would believe the words and conduct manifested a serious bargain.
- Raffles v. Wichelhaus 2 Hurl. & C. 906, 159 Eng. Rep. 375 (Ex. 1864) Where two parties attach materially different meanings to a critical term and neither has reason to know of the other's meaning, no contract is formed for want of mutual assent.
- Lefkowitz v. Great Minneapolis Surplus Store 251 Minn. 188, 86 N.W.2d 689 (1957) An advertisement is an offer when it is clear, definite, and explicit, and leaves nothing open for negotiation. A seller cannot impose new conditions of acceptance after the offer has been accepted by performance.
- Leonard v. Pepsico, Inc. 88 F. Supp. 2d 116 (S.D.N.Y. 1999), aff'd, 210 F.3d 88 (2d Cir. 2000) An advertisement does not constitute an offer where no objective, reasonable person could understand it to be a serious expression of willingness to enter a bargain. Obvious humor, exaggeration, and commercial context can defeat any reasonable inference of an offer.
- Smaligo v. Fireman's Fund Insurance Co. 432 Pa. 133, 247 A.2d 577 (1968) An offer is rejected by conduct inconsistent with acceptance. Demanding arbitration after an offer of settlement amounts to a rejection because it is inconsistent with the conclusion that the offer has been accepted.
- Flender Corp. v. Tippins International, Inc. 830 A.2d 1279 (Pa. Super. Ct. 2003) Under UCC § 2-207, when an offer and acceptance contain conflicting terms on the same subject, both conflicting terms drop out and default rules supply the gap. Forum-selection clauses that disagree are knocked out; jurisdiction is governed by background law.
- State Department of Transportation v. Providence & Worcester Railroad Co. 674 A.2d 1239 (R.I. 1996) An acceptance is not rendered counter-offer by terms that are immaterial or that the offer itself permits. Changes that do not alter the substance of the bargain or impose new burdens on the offeror leave acceptance effective.
- Hamer v. Sidway 124 N.Y. 538, 27 N.E. 256 (1891) Forbearance from the exercise of a legal right is sufficient consideration, even if the promisor receives no economic benefit. Consideration looks to the promisee's detriment as much as to the promisor's gain.
- Pennsy Supply, Inc. v. American Ash Recycling Corp. 895 A.2d 595 (Pa. Super. Ct. 2006) A promisor's avoidance of a cost or burden can be consideration. When a promisee accepts a 'free' material at the promisor's invitation, and the promisor thereby escapes a disposal obligation, the transaction is a bargain, not a conditional gift.
- Conrad v. Fields 2007 WL 2106302 (Minn. Ct. App. July 24, 2007) Promissory estoppel requires a clear and definite promise, foreseeable reliance, actual reliance to the promisee's detriment, and injustice that can only be avoided by enforcement. Tuition for a course of study undertaken in reliance is a recoverable detriment.
- Ricketts v. Scothorn 57 Neb. 51, 77 N.W. 365 (1898) A gratuitous promise that induces foreseeable, substantial action in reliance becomes enforceable to the extent justice requires. Reliance can supply what bargain does not.
- Drake v. Bell 26 Misc. 237, 55 N.Y.S. 945 (Sup. Ct. App. Term 1899) Where a benefit has been conferred under circumstances showing an expectation of payment, and the recipient promises to pay after receiving the benefit, the promise is enforceable. Mistake in the identity of the benefited party does not defeat recovery when the actual recipient knowingly accepts and promises.
- Mills v. Wyman 20 Mass. (3 Pick.) 207 (1825) A moral obligation alone is not sufficient consideration to support a promise. A promise to pay for benefits already conferred to a third person (here, an adult son) is unenforceable for want of consideration.
- Webb v. McGowin 27 Ala. App. 82, 168 So. 196 (1935) Where the promisee has materially benefited the promisor by an act done at risk to the promisee, a subsequent promise to pay for that benefit is enforceable; moral obligation can support such a promise when accompanied by a material benefit previously received.
- McIntosh v. Murphy 52 Haw. 29, 469 P.2d 177 (1970) Promissory estoppel can take an oral contract out of the Statute of Frauds where the promisee has reasonably and foreseeably relied to substantial detriment, and injustice can be avoided only by enforcement.
- Sterling v. Taylor 40 Cal. 4th 757, 152 P.3d 420, 55 Cal. Rptr. 3d 116 (2007) A memorandum sufficient under the Statute of Frauds need only state the essential terms with reasonable certainty; extrinsic evidence may resolve ambiguity in those terms, but it may not supply or contradict essential terms missing from the writing.
- DePrince v. Starboard Cruise Services, Inc. 271 So. 3d 11 (Fla. Dist. Ct. App. 2018) (en banc) Unilateral mistake supports rescission where (1) the mistake goes to a material term, (2) enforcement would be unconscionable, (3) the mistake did not result from inexcusable lack of care, and (4) the other party can be returned to status quo. A buyer's knowledge or silence in the face of an obvious error can defeat enforcement.
- Sherwood v. Walker 66 Mich. 568, 33 N.W. 919 (1887) A mutual mistake going to the substance of the thing bargained for, not merely to its quality, renders the contract voidable. Where both parties believed a cow to be barren and she proved fertile, the mistake went to the very nature of the bargained-for animal.
- Wood v. Boynton 64 Wis. 265, 25 N.W. 42 (1885) Mutual mistake as to the value, but not the identity, of the subject matter does not justify rescission. A sale stands when both parties were ignorant of the true nature of the thing and neither bore a duty to investigate.
- Quebodeaux v. Quebodeaux 102 Ohio App. 3d 502, 657 N.E.2d 539 (1995) Duress rendering a contract voidable requires three elements: an involuntary act by the victim, no reasonable alternative to the act, and circumstances induced by the other party. Threats that exploit a power imbalance and leave no realistic option satisfy the test.
- Webster Street Partnership, Ltd. v. Sheridan 220 Neb. 9, 368 N.W.2d 439 (1985) A contract entered into by a minor is voidable. The minor may disaffirm within a reasonable time after reaching majority. Necessaries are an exception, but housing is not a necessary where the minor could live with parents able and willing to provide for him.