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C

Ct may INFER missing terms if r’ble

D

Part perf weighs in favor of enforcement

E

Construction bids are enforceable as offers despite being indefinite (b/c only contain price).  This is standard practice

II

Gap-fillers

A

UCC:

1

R’ble price at time for delivery.  (UCC § 2-305)

2

Place of delivery.  (UCC § 2-308)

3

Time of delivery/shipment: r’ble time; also termination, successive performances.  (UCC § 2-309)

4

No gap-filler for QUANTITY, however

B

Rest: fill in at ct’s discretion, if it’s clear parties intended a bargain.  (Rest § 33)

C

But note that the more missing terms, the less likely it is that parties intended a K

III

Agreements to agree (don’t yet have complete K)

A

Where parties agree to fill in some term in the future by future agr’t, not by objective std

B

Trad’l rule:

1

If missing term is material, no K

2

Ct won’t fill in, b/c parties DID put in a mechanism to fill the gap, but it failed.  In contrast, if they hadn’t said anything about the material term, ct might fill the gap

3

If missing term is minor, yes K

C

Modern view (Rest, UCC): enforce if parties intended a K

IV

Document to come (already have complete K)

A

Parties come to agr’t on understanding that formal written K will be executed, but they never do it

B

Intent is determinative: if they intended writing merely as a memorial to the agr’t, then yes K.  But if they intended the writing as a consummation of the agr’t, then no K

V

Prelim agr’ts

A

Two kinds of prelim agr’ts:

1

Agr’t contemplating formalization

a

Written K will just be memorial of agr’t

b

Binding

2

Agr’t contemplating further negotiations

a

Ex: letter of intent

b

Even though terms left open for future negotiation, cts may find binding commitment to continue negotiations IN GOOD FAITH.  (Channel)

c

What is remedy for breach of such an agr’t?

3

Theoretically, could be full exp dams, but more likely only rel dams b/c of uncertainty that parties would indeed have eventually entered into the main K

Defenses — Mistake

I

Gen’y

A

Mistake doctrine is concerned w/ mistakes of FACT (which includes law), not judgment or prediction

B

“Mistake” as to meaning of words or conduct in agr’t is not mistake, it’s ERROR OF INTERPRETATION, and not covered here

C

Mistake of law is a mistake of fact

D

Mistake may be more properly treated as breach of K.  Ex: A buys a Van Gogh painting from B.  Painting turns out to be fake.  Did B know and conceal?  Then fraud, not mistake.  Was genuineness of painting a basic premise of K?  Then mistake

II

Mutual mistake

A

Mistake shared by both parties such that there is no real agr’t

B

ELTS for rescission:  (Rest § 152) (Griffith) (Walker)

28

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