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ii

OR is K for sale of goods; still may be valid acceptance per UCC § 2-207

III

Was a K formed?

A

Was there a bargain?  Must be two-way exchange

B

Failure of consideration?

1

Nominal consid (form of bargain only)

2

Illusory promise

a

BUT these are enforceable

i

Unilateral K

ii

Voidable by other party

iii

Conditional promise

iv

Implied promise (reqts/output)

1

BUT is this an offer for a req’ts K or for a series of unilateral Ks?

3

Legal duty rule

a

Mod to exsting K or substitute K?  INTERPRET

4

Surrender of invalid legal claim

C

Enforcement despite failure of consideration?

1

Reliance (Rest § 90)

2

Past consideration

3

Waiver: is this a waiver promise?

4

Form (seal)

IV

Are there reasons not to enforce the K?

A

S/F

B

Indefiniteness

1

Interpretation; parol evidence; gap-fillers

C

Mistake

1

Unilateral or mutual?

D

Misrep, duress, undue influence

E

Unconscionability

1

Substantive, procedural

V

Is there a duty to perform?

A

Condition precedent to duty to perform?

B

Changed circums: impracticability of frustration?

C

Discharge of K (accord & satisfaction [subst K] / full-payment check)?

1

INTERPRET

VI

Was there a breach?

A

If so, was breach material or minor?

VII

Damages

A

Limits on exp dams:

1

F’bility

2

Certainty

3

Duty to mitigate

a

Could party have avoided dams?

B

Other dams:

1

Reliance

2

Restitution

3

Liquidated dams

4

Spec perf

Unilateral v. Bilateral K

2

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