Time budget
- Floor
- ~40 min — Statute of Frauds (McIntosh) and mistake (Sherwood). The defenses with the cleanest element structure.
- Target
- ~75 min — Floor + improper bargaining (Quebodeaux) and incapacity (Webster Street). One case per defense chapter.
- Ceiling
- ~110 min — Target + practice on label-matching failures across the defense cases.
By the end of this class, you can
- State the elements of each fall defense (Statute of Frauds, mistake, misrepresentation, duress, undue influence, unconscionability, incapacity) and apply each to a contract that otherwise looks formed.
- Distinguish defenses by their gateway requirements: which require procedural defect, which require substantive defect, which require both, and which require neither.
- Evaluate, on a fact pattern, whether the parties made a contract the law will enforce, synthesizing formation, consideration, and defenses.
Second review day, second half of the map. Class 23 ran the formation-and-consideration gates: is there a promise the law will enforce? Today assumes the answer is yes and asks the override question: even a fully formed contract may fail if a defense reaches it. No new doctrine — this is synthesis across Module IV.
Defenses as override gates
A defense presupposes formation. You only reach it after the contract has cleared offer, acceptance, and consideration. The cleanest way to hold the seven fall defenses is to sort them by what they require and by what they do to the contract.
| Defense | Core rule | Effect |
|---|---|---|
| Statute of Frauds | R2d § 110; UCC § 2-201 | Unenforceable unless a writing or an exception (part performance, reliance) applies (McIntosh v. Murphy) |
| Mistake | R2d §§ 152–154 | Voidable for mutual mistake on a basic assumption (Sherwood v. Walker; contrast Wood v. Boynton) |
| Misrepresentation | R2d § 164 | Voidable for a fraudulent or material false assertion |
| Duress | R2d § 175 | Voidable for an improper threat leaving no reasonable alternative (Quebodeaux) |
| Undue influence | R2d § 177 | Voidable for unfair persuasion in a dominant relationship |
| Unconscionability | R2d § 208; UCC § 2-302 | Clause or contract unenforceable; usually needs both procedural and substantive defect |
| Incapacity | R2d §§ 14–16 | Voidable by the protected party (Webster Street: minor; intoxication under § 16) |
Two distinctions do most of the exam work. First, void versus voidable versus unenforceable: physical compulsion is the only fall defense that makes a contract void; the rest make it voidable at the protected party’s election; the Statute of Frauds leaves it merely unenforceable. Second, who holds the choice: when a contract is voidable, the protected party may disaffirm or ratify, and disaffirmance is lost by conduct manifesting ratification.
What to review, and where it lives
- Statute of Frauds (Ch. 11). R2d § 110, UCC § 2-201. Always ask the gate question first — is the contract within a category? — before reaching the writing requirement. Then check the exceptions (McIntosh). The common error is skipping straight to the memorandum.
- Mistake (Ch. 12). R2d §§ 152–154. Sherwood v. Walker (mutual mistake going to substance) against Wood v. Boynton (mistake going only to value). Keep § 152 (mistake, a defense) separate from § 20 misunderstanding (a no-formation rule, reviewed in Class 23).
- Improper bargaining and incapacity (Ch. 13). Duress (Quebodeaux), undue influence, unconscionability, and incapacity (Webster Street, Quebodeaux v. Quebodeaux on family-setting facts).
How to use this class
Bring one question you cannot answer cleanly from a fall defense case. We will run unseen fact patterns through the full stacked apparatus — formation, consideration, then defenses — and label-match each fact to the controlling gate. The discipline being tested is naming the elements of the defense you reach for and identifying the missing fact. Come ready; you may be called.
This closes the fall doctrinal arc. Class 25 is a buffer day; Class 26 bridges to the spring.
Slide deck
Spacebar / arrow keys to advance. Press F for fullscreen. Click Print / PDF for handouts. PPTX export is professor-only.
Rules
-
R2d § 110Classes of Contracts Covered -
R2d § 152When Mistake of Both Parties Makes a Contract Voidable -
UCC § 2-302Unconscionable Contract or Clause -
R2d § 131General Requisites of a Memorandum -
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 § 2-201Formal Requirements; Statute of Frauds -
R2d § 12Capacity to Contract -
R2d § 14Infants -
R2d § 15Mental Illness or Defect -
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 § 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Notes
Full practice hypo.