ESSAY CHECKLIST

I. APPLICABLE LAW

A. Involving Sale of Goods = UCC B. If Both Parties are Merchants = UCC C. Contract Involving Services or non-sale of Goods = D. Predominant Purpose Test

II. IS THERE A VALID CONTRACT?

A. Where Formation is not an issue = appears to be a valid contract B. Where Formation is an Issue □ Offer □ Manifestation of Present Intent □ Definite and Certain Terms □ Requirement/ □ UCC Sale of Goods □ Communication Requirement □ Termination of the Offer □ Termination by Acts of Parties □ Effective When Received □ Offeror’s Power to Revoke □ Limitations □ Common Law – □ U.C.C Firm Offer □ Offeree detrimentally relied □ Offeree embarked on performance □ Termination by the Offeree □ Rejection □ Effective When Received □ Rejection of Option □ Lapse of Time □ Termination by Operation of Law □ Death or insanity of either party □ Destruction of the contracts proposed subject matter □ Supervening illegality □ Acceptance □ Who May Accept □ Acceptance Must be Unequivocal □ Common Law: mirror image □ U.C.C: confirm the offer □ Additional Terms

Aplus eBooks Publications Page 1 Contracts Essay Checklist □ Between Merchants □ Prior Objection □ Subsequent Objection □ Material Alteration □ Different Terms □ Open Terms □ Performance

□ Communication of Acceptance □ Mailbox Rule □ Acceptance without Communication – bilateral contract □ express waiver □ act as acceptance □ silently takes benefits □ Unilateral Contract □ Notice

□ □ detriment and a benefit – FL minority view; only one party need suffer a detriment or receive a benefit □ Insufficient Consideration □ Gift □ Past Consideration □ Moral Consideration □ Economic Adequacy □ Pre-Existing Duty □ □ Substitute For Consideration □ Promissory or Detrimental Reliance □ Specific Circumstances: Statute of Limitations Example: A promise to pay a debt that is barred by the statute of limitations is valid consideration if there is a writing signed by the debtor..

□ Defenses to Formation □ Absence of Mutual Assent □ Mutual □ Assumption of Risk □ Unilateral Mistake □ Mistake by Intermediary □ □ No Consideration □ Illegality of Contract □ Exceptions

Aplus eBooks Publications Page 2 Contracts Essay Checklist □ Unaware of illegality □ Not in pari delicto □ Failure to obtain a license for revenue purposes □ Contract is voidable

□ Defenses To Enforcement □ – must be in writing □ marriage □ cannot be performed within 1 year □ interest in land □ Executors to pay estates’ debts out of their own pockets □ sale of goods > $500 (UCC) □ Requirements □ Identity of parties □ Contracts subject matter □ Terms and conditions □ Recital of consideration □ Signature of party to be charged

□ Removing the contract from the Statute of Frauds □ Part Performance □ Detrimental Reliance □ Full Performance □ Sale of Goods: Oral contracts enforced when merchant sends a written confirmation □ Writing Not Required in the following situations □ Specially Manufactured Goods □ Delivered Goods □ Full Payment Received □ Admission □ Estoppel □ Florida - Written Agreements Required for Enforcement □ Credit Agreements □ Magazine and Newspaper Subscriptions □ Payment for Medical Services □ Home Construction Agreements □ □ Lack of □ Minors □ Mental incompetence □ Intoxication

Aplus eBooks Publications Page 3 Contracts Essay Checklist III. MODIFICATION

A. New Considerations □ Common Law □ UCC

B. Oral Modifications □ Statute of Frauds □ Modification of written contract □ Goods > $500, modification must be in writing □ Full Performance □ Writing Prohibiting Oral Modification □ Waiver of the Writing Requirement – relied to detriment on the modification □ Written Confirmations UCC □ Waiver of Condition □ Installment Contract

C. By Operation of Law □ Destruction or Injury to Identified Goods □ Failure of Agreed-Upon Method of Transportation

IV. WHAT ARE THE TERMS OF THE CONTRACT?

A. Parol Rule □ Is the writing intended as a final expression? □ Intent □ integration □ relevant evidence □ merger clause □ Is the writing a complete or partial integration? □ Integration complete or partial □ if complete, may not be contradicted □ if partial, may be supplemented □ Test: Would parties similarly situated as were these parties to this contract naturally and normally include the extrinsic matter in the writing? □ Yes – evidence of extrinsic matter not admitted □ Exceptions □ No – evidence of extrinsic matter admitted

B. Ambiguity

Aplus eBooks Publications Page 4 Contracts Essay Checklist V. WARRANTIES – UCC Specific Provisions

A. Warranties – 4 types under UCC □ Warranty of Title– conveying good title free of liens □ of merchantability – goods shall be of merchantable quality. UCC implied warranty of merchantability only upon seller who is a merchant with respect to goods of that kind. □ Implied warranty of fitness-particular purpose – (doesn’t need to be a merchant) □ Reason to know: objective test □ Particular purpose □ Buyer’s Reliance Essential □ Disclaimer: exclusion must be in writing and must be conspicuous □ Buyer Inspection □ Express warranties– goods will conform to the affirmation or promise

VI. THIRD PARTY BENEFICIARY, , , RIGHTS

A. Third Party Beneficiary □ Intended vs. Incidental Beneficiary □ Creditor vs. Donee Beneficiary □ When does the beneficiary Acquire Contract Rights? (rights have vested) □ Manifests assent □ Suit to enforce the promise □ Justifiable reliance on the promise □ Who can sue whom? □ Third Party Beneficiary vs. Promisor □ Restitution □ Third Party Beneficiary vs. Promisee □ Promisee vs. Promisor

B. Assignment of Contract Rights □ Assignment Limitations □ Non-assignment Provisions □ Is the Assignment Revocable? □ An assignment for consideration is irrevocable. □ An assignment not for consideration is generally revocable. □ Exceptions: gratuitous assignment is irrevocable if: □ obligor has already performed; □ marriage; □ cannot be performed with one year; □ interest in land

□ Termination

Aplus eBooks Publications Page 5 Contracts Essay Checklist □ Who Can Sue Whom? □ Assignee v. Obligor □ Assignee v. Assignor □ Successive Assignments □ Exceptions □ second assignee paid value and taken without notice of the first assignment

C. Delegation of Contract Duties □ Requirements: may be written or oral □ Limitations □ duties involves personal judgment and skill □ change the obligee’s expectancy (requirements and output contracts)

□ special trust □ contractual restriction delegation □ Rights and Liabilities

D. UCC Third-Party Rights □ Entrustment □ Voidable Title □ fraud, seller can rescind and recover goods (voidable title); except from a purchaser for value even where: □ seller was deceived □ check dishonored □ cash sale □ conduct of buyer is punishable as larceny □ Thief Cannot Pass Good Title

VII. HAVE THE TERMS OF THE CONTRACT BEEN PERFORMED?

A. Promise or Condition □ Precedent □ Concurrent □ Subsequent □ Express conditions □ Implied in Fact Conditions □ Constructive Conditions

B. Have the Conditions been Satisfied or Excused? □ Excuse of Conditions by: □ Failure to Cooperate □ Actual Breach □ Right to Demand Assurances □ □ Substantial Performance

Aplus eBooks Publications Page 6 Contracts Essay Checklist □ Divisibility of Contract □ Requirements □ performance of each party I divided into two or more parts □ number of parts due from each party is the same □ performance of each part is the agreed equivalent of the corresponding part □ UCC – Installment Contracts

C. Waiver or Estoppel □ Estoppel Waiver □ Election Waiver □ No Consideration □ , , or Frustration: infra.

D. Has the Duty to Perform Been Discharged? □ Performance or Tender of Performance □ Condition Subsequent □ Illegality □ Impossibility/Impracticability/Frustration □ Impossibility □ Impracticability □ □ Mutual Rescission □ □ Release/Covenant Not to Sue □

VIII. BREACH AND REMEDIES

A. General □ Breach □ minor or material? □ Test: factual issue resolved by a reasonable person test □ Minor Breach: Remedy is an award of damages, but the contract is still in force and enforceable □ Material Breach: Non-breaching party’s duties are discharged but must mitigate the effects of breach. □ Damages □ Compensatory □ Causal □ Foreseeable □ Certain □ Unavoidable □

Aplus eBooks Publications Page 7 Contracts Essay Checklist □ Punitive Damages □ Interest and Attorney’s

□ Restitution □ □ contract exists □ all conditions of the contract have been satisfied □ legal remedy is inadequate □ terms are definite and certain □ must be feasible to enforce □ must be mutuality of performance

□ Defenses □ Laches □ Unclean Hands □ Hardship □ Mistake and Misrepresentation □ Rescission

B. UCC Remedies

□ UCC in the Absence of Breach □ Non-carrier cases □ Carriers cases □ Sale or Return and Sale on Approval Contracts

□ UCC Risk of Loss Upon Breach □ Buyer has right of rejection □ Buyer rightfully revokes acceptance □ Buyer’s in breach

□ Buyer’s Remedies – dependent on rejection prior to acceptance or revokes acceptance □ Acceptance □ Rejection □ Single Delivery □ Installment Contracts □ Revocation of Acceptance □ Seller’s Right to Cure

□ Buyer’s Damages □ For Non-Delivery or Upon Rejection or Revocation of Acceptance □ For Accepted Goods □ Specific Performance

Aplus eBooks Publications Page 8 Contracts Essay Checklist □ Seller’s Remedies □ Right to Withhold Goods □ Seller’s Right to Recover Goods □ From Buyer on Buyer’s Insolvency □ From Bailee

□ Seller’s Damages □ Recover the difference between the market price and the contract price □ Resell the goods and recover □ Recover under lost profits measure □ Incidental damages

□ Liquidated Damages □ Limitations on Damages □ Statute of Limitations □ Florida Statute of Limitations – Non UCC □ Written Contracts: 5 years from the breach □ Oral Contracts: 4 years from the breach

Aplus eBooks Publications Page 9 Contracts Essay Checklist