PARALEGAL CHECKLIST The Offer Phase c) Is the promisor’s statement o After all of the communications and really a promise? events have been placed on a timeline, the (1) Is the promisor’s statement a paralegal and the supervising attorney promise or a joke? can use the following checklist to deter- (2) Is the promisor’s statement a mine whether an offer under classical promise or an illusory contract law has been made. promise? An illusory 1. Is the first communication an offer? promise is not a promise a. Use an objective (reasonable person) because it is uncertain— standard. something may or may not b. Has the promisor (offeror) created the be done depending on power of acceptance in the promisee whether the promisor feels (offeree) by making a promise and like doing it. demanding consideration (a “price”) (3) Is the promisor’s statement a for that promise? promise or an indefinite 1) Begin with the promisor’s promise. promise? An indefinite a) Is the promisor’s statement a promise is not a promise promise or an inquiry? A because it omits terms that promise is an unequivocal the court must consider assurance that something will or when determining an will not be done. appropriate remedy for b) Is the promisor’s statement a breach of contract. promise or an invitation to 2) Next, focus on the consideration for make a promise (offer)? the promisor’s promise. The (1) If the promisor’s statement consideration for the promisor’s is an advertisement, is the promise is the promisee’s ad a promise or an performance if the offer is for a invitation to make a unilateral contract or the promisee’s promise? promise if the offer is for a bilateral (2) If the promisor’s statement contract. The fact that the is by an auctioneer at an promisee’s promise ultimately auction, is the auctioneer’s involves the promisee’s performance statement a promise or an does not change the promise into a invitation to the audience to performance. An offer for a make a promise? unilateral contract is rarely made. (3) If the promisor’s statement a) Is what purports to be the is in a preprinted form, is consideration for the promisor’s the statement in the form a promise at least a peppercorn? promise or is the purported Courts will not be concerned promise subject to the with the size or value of the promisor’s subsequent consideration. Something as approval? small as a “peppercorn” can be or to perform (if the offer is for a consideration. unilateral contract)? (1) Is the promisor asking for a (1) Has the promisee already price for his or her promise performed the requested and only for something that price for the promisor’s is a joke? promise? Past (2) Is the promisor asking for a consideration—a timing price for his or her promise problem—cannot be or is the promisor asking for consideration for the an illusory promise? promisor’s promise because (3) Is the promisor asking for a the promisor’s promise price for his or her promise cannot be used to get or is the promisor asking for something that already an indefinite promise? occurred. (4) Is the promisor asking for a (2) Does the promisee already price for his or her promise have the duty to perform or is the promisor merely (preexisting duty to perform stating his or her motive for what the promisor is asking making the promise? for)? A duty the promisee Consideration is what the has already committed to promisor wants to get in perform cannot be consid- return for his or her promise eration for the promisor’s and not why the promisor promise because the wants to get it. promisor’s promise is not (5) Is the promisor asking for a being used to entice the price for his or her promise promisee to perform. The or is the promisor merely promisee is already trying to satisfy a moral obligated to perform. obligation? Consideration is (3) Is the promisor stating a what the promisor wants to price for his or her promise get in return for his or her or merely stating a promise and not the fact condition that the promisee that the promisor feels an must satisfy to receive a gift? obligation to promise. The promisor’s motive (6) Is the promisor asking for a distinguishes whether the price for his or her promise promisor is attempting to or is the promisor merely entice the promisee’s stating a price as a sham to performance by using his or feign consideration? Sham her own promise or whether consideration is pretended the promisee must perform or phony consideration—the to put himself or herself in “price” the promisor never the position to receive the intends to collect. promisor’s performance of a b) Has the promisor made his or gift promise. her promise to attempt to induce o If the first communication is not an offer, the promisee to promise (if the is the next communication an offer? Con- offer is for a bilateral contract) tinue down the timeline until a communi- of Contracts § 90(1)), except that the cation that is an offer is found. “promise” may be less than an o If no classical offer is found due to a lack of unequivocal assurance. consideration for the promisor’s promise, 2. Determine whether your court recognizes check the alternatives for consideration. a restitution (unjust enrichment) cause 1. Determine whether the legislature has of action if no offer exists. (See a. substituted a writing for consideration; Restatement of Restitution §§ 112–117). b. altered the rule about which party has The general elements for a restitution the burden of proving consideration; cause of action are the following: or a. That there is a benefit conferred by c. eliminated the consideration one party on the other requirement in specific types of b. That the retention of the benefit transactions. without compensation would be unjust 2. Analyze whether the courts have: a. implied a promise—thereby supplying consideration; b. implied a promise to correct a timing problem; or c. recognized the doctrine of detrimental reliance (promissory estoppel) (Restatement (Second) of Contracts § 90(1)) to enforce a promise that lacks consideration. The elements of detrimental reliance are the following: 1) That there is a promise by the promisor 2) That the promisor should have reasonably expected his or her promise to induce action or forbearance on the part of the promisee 3) That the promise did induce such action or forbearance 4) That injustice could be avoided only by the enforcement of the promise o If the lack of a “contract” quality prom- ise prevents an offer from being formed (lack of an unequivocal assurance), check whether a detrimental reliance or a resti- tution cause of action exists. 1. Determine whether your court recognizes a detrimental reliance cause of action. The elements are the same as for detrimental reliance as a substitute for consideration (see Restatement (Second).