Majority/Minority Rules

Contracts

When is acceptance of option contact valid?

Majority: Upon receipt by offeror

Minority: Upon Dispatch

How much performance is required to make a unilateral offer binding?

Majority: At beginning of performance

Minority: Part performance

Are ads offers?

Majority: No

Minority: Yes, if they contains essential terms, if there’s no risk of overselling, and if contains certain language like “first come first serve”; or when they invite performance of a specific act without further communication, and leave nothing for negotiation

Will courts recognize validity of indefinite clauses? E.g. price

Majority: Only if there’s an objective method of determining it, e.g. specific formula, designated arbiter, extrinsic market source

Minority: Yes, it may insert a reasonable price if justice mandates it (Curran’s interpretation)

UCC: Open price term is fine, open quantity is not

Bound to negotiate in good faith

Minority

How are “different” terms treated between merchants in battle of forms?

Majority: Ignore different terms beceause they aren’t incorporated under 2-207

Quasi-Majority: Different terms knock each other out

Minority: Treat them the same as additional terms

Who must show that an alteration is material under UCC 2-207(2): Between Merchants?

Majority: Party who’d like to strike term

What is the definiton of a material alteration under UCC 2-207(2): Between Merchants?

Majority: Surprise

Minority: Surprise or Hardship

Are Shrinkwrap terms binding?

Majority: Yes, as long as they explicitly say that not sending back item within certain time constitutes acceptance

Minority: No, unless customer explicitly agrees with them

Is software a good?

Majority: Yes

R2d 87(2): Is an offer which should and does induce substantial reliance binding to the extent necessary to prevent injustice?

Majority: This is very rarely applied.

Is a mere recital of consideration sufficient to show consideration for an option contract?

Majority: You need to at least specify an amount to be paid.

Minority: Yes, if the option is short term and represents a fair exchange

How explicit must a promise be to justify Promissory Estoppel?

Majority: Can be implicit or slightly indefinite, but then it helps if subsequent reliance is allowed or helped by promisor

Minority: Promsie must be explicit and definite

Aceves

Majority

Promissory Estoppel for Charitable GIfts

Majority: Courts might find charitable promises to be binding if the potential donee has substantially relied on the promise, and if the donee still has the capacity to give the gift

Minority: R2d 90(2) A charitable subscription or a marriage settlement is binding if action or forbearance could be expected, without proof that the promise induced action or forbearance.

Can a subcontractor revoke a bid after the general contractor uses it to win a contract?

Majority: Not if contractor reasonably relies, unless the contractor bid shops or bid chops

Minority: Subcontractor bids are freely revocable

Other minority: There is a bilateral contract, so contractor and sub are bound to each other

Commerce v Equity: Can a sub recover from a customer who refuses to pay the contractor, which then can’t pay the sub?

Majority: Yes, as long as zero money had made its way from customer to sub

Are promises to repay a moral obligation binding?

Majority: No

Minority: Can be

Are lifetie employment contracts within the Statute of Frauds?

Majority: No

Minority: Yes

Are sales of goods for <500 that last more than a year within the Statute of Frauds?

Some courts say yes, some say no

How can unsigned papers be linked to signed ones under the Statute of Fraud?

Majority: They must clearly indicate that they refer to the same transaction as the signed papers

Minority: They must explicitly refer to the signed papers

When can part performance of an oral agreement regarding land be excused from the Statute of Frauds, and make the agreement binding?

Majority: To the extent which justice requires, when buyer has reasonably and substantially changed his position, with continued assent of seller

Minority: By showing performance unequivocally referable (reasonable person would think it connects) to the purported agreement. Residency and substantial improvement will generally suffice

Can Promissory Estoppel be used to overcome Statute of Frauds?

Majority: Yes with clear and convincing evidence of promise, and substantial reliance

Minority: No

Other minority: Only if one party relied on misrepresentation that a writing had been or would be created

UCC

Minority: Can’t be used because exceptions listed in UCC disclaim any common law remedies, like Statute of Frauds

Insurance: Reasonable Expectations Doctrine

Majority: Unreasonable terms are excluded from insurance contracts. Split over whether even unambigious and up-front terms can be excluded for unreasonableness.

Minority Rule: Interpret unclear terms in favor of policy holder

What materials to use in finding level of integration?

Textualist: Just the four corners of the contract. Merger clauses are dispositive.

Contextualist: Allow extrinsic evidence. Intent of parties is very important. Merger clauses not dispositive.

How to determine if there are ambiguities?

Textualist: Four corners + dictionaries

Contextualist: Can also use extrinsic evidence

To what extent can you use extrinsic evidence to show proof of fraud?

Majority: Can show evidence of fraud in execution, or fraud in the inducement

Minority: Can only show evidence of fraud in the execution

Other Minority: Can show evidence of execution, and can also show evidence of inducement as long as evidence doesn’t contradict explicit language of contract

Contra preferentum

Majority: used only when contract was unilaterally drafted

Warranty for particular use: can it be used for regular use?

Majority: No

Must a plaintiff show reliance on a seller’s statement to establish an express warranty

Approach 1: NO

Approach 2: yes

Approach 3: yes, but there’s a rebuttable presumption that there was reliance

 Does the parol evidence rule bar oral evidence of a UCC express warranty

Majority rule: yes, since they are a prior agreement

Minority: No, since some judges are very solicitous of express warranty claims

What do you need to show to prove unconscionability

Majority: Both procedutal and substantive unconscionability, which are on a sliding scale

Minority: You only need show substantive unconscionability

What different approaches do courts use to deal with unreasonable restraints of trade

Approach 1: Void them completely

Blue pencil: strike void clause if severable

Approach 3: blue pencil except if bad faith shown, then strike void whole thing