1. Manor
of Acceptance
a. What type
of offer and what type of acceptance?
i. Does it ask
for a promise or performance?
b. Did the
offeree know of the offer?
c. Is it an
offer or a solicitation of bids?
d. Is it a
quote?
e. Does the
offer call for a promise of performance or neither?
f. Is there
mutual assent prior to a written agreement
i. Is there a
letter of intent
ii. Do
the parties intend to be bound by the letter?
2. Silence
as acceptance (Rest. §69)
a. Does the
offeree receive some benefit?
b. Is there
prior conduct that shows this?
c. Does the
offeree take dominion?
3. Notice
a. Did the
contract state a time?
i. If not, was
it accepted in a reasonable time?
b. Did the
seller have reasonable notice to know of the acceptance?
4. Warranties
a. Was there
a promise or fact made by the seller?
b. Implied
warranty of marketability?
c. Was
there a floor model?
d. Description
of the goods’
i. Did seller
know what it was to be used for?
5. UCC
2-207 & Battle of the Forms
a. Is it a
sale of good case?
b. Are they
both merchants?
c. Does the
acceptance state different or additional terms?
i. If
additional do they
1. limits
acceptance to the terms of the offer?
2. alter
the contract?
3. is there
an objection to the terms?
ii. Is
there an expressly conditional clause?
iii. Are
they different terms?
1. Are the
terms so divergent that there is no contract?
6. Consideration
a. Was there
a detriment and benefit exchanged?
b. Was there
a bargain for exchange?
i. Was the
forbearance a legal right?
ii. Was
the bargain for past performance?
c. Are the
promises binding (i.e. not illusory)?
i. Does the
promisor have the right to change his mind or stop at his discretion?
d. Was a
requirement contract in good faith?
e. Is there
a promise of something already done, has to do, forebear from something he
cannot do, etc.?
f. Is there
a modification?
7. Statute
of Frauds
a. Is it for
the sale of land, good over 500$ or over 1 year?
i. Is for an
interest in land not crops?
1. Was there
performance by the vendor?
2. Was there
significant reliance by the vendee?
ii. Was
it for sale of goods over 500$?
1. Were the
goods specially made?
2. Were they
accepted?
3. Was there
multiple contracts that the parties intended to be over 500?
iii. Was
the contract for over 1 year?
1. Does it
contain a date in contract?
2. Is it
unable to be performed in under a year?
a. Is there
a fixed term?
3. Are there
multiple options given?
4. Was the
contract discharged?
b. Was the
contract admitted to in court?
c. Was
there detrimental reliance?
d. Was it a
CISG contract?
8. Parol
Evidence (common law, UCC, CISG)
a. Is the
written agreement meant to fully integrated
i. Is it total
pr partial?
1. If
partial what type of term (additional or contradicting)?
b. Is there
a no oral-modification clause?
i. Was it
waived by performance?
c. UCC –
Parol Evidence
i. Same as
above
ii. Is
the writing a complete and conclusive statement?
1. If a
complete agreement would terms, if certainly agreed upon, be included?
iii. Can
the terms be supplemented by additional terms?
d. Exceptions
i. Was the
contract made under fraud duress, lack of consideration, etc.?
ii. Is
there a condition ( performance or event)?
iii. Is
there a collateral agreement?
iv. Is
there subsequent agreements?