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a

IF the condition is fulfilled, it’s as though the condition never existed.  BOTH parties are bound

4

Acceptance may be unconditional while perf is conditional

a

If you make an agreement w/ a condition precedent, you’re still bound.  You’re not obliged to PERFORM unless the condition occurs, but you are still OBLIGED by the promise (i.e., perform if the condition occurs) — so there IS mutuality

D

PARTIAL PERF doesn’t change the situation if there is no mutuality

E

Contracts terminable at will

1

If contract is terminable at whim of a party, it may not be enforceable if one party pulls out b/c of lack of mutuality

a

BUT it may be enforceable, particularly where pulling out would involve major costs.  (Laclede — gas supplier wanted guaranteed supply of gas from Amoco, not a particular price)

b

AND even a mere notice req’t will satisfy mutuality.  (Laclede)

2

At-will employment.  (Grouse)

a

Does not create a binding contract b/c there is no mutuality

b

BUT under promissory estoppel, anticipatory repudiation of work offer is not okay where there has been reliance.  Employer may IMPLIEDLY promise to give job offeree a good-faith opportunity to perform on the job

F

Alternative promises

1

Where promisor has right to choose betw perfs, both must be valid consid

2

But if promisee has right to choose, only one of the possible perfs need be valid consid

G

Where one party may supply material term

1

Promise is illusory

2

EXCEPTIONS: power to alter or modify rather than set — good faith inferred; objective standard for setting term

3

UCC: good faith requirement may mean promise not illusory.  (UCC § 1-203)

a

If K is for sale of goods, explicitly enforceable w/ good faith req’t.  (UCC § 2-305)

H

Modern reforms

1

Ex: agr’t to ship plate glass w/in 3 mos; buyer may cancel order any time before shipment.  Contract enforceable.  If seller had one clear opportunity to fulfill the contract (by shipping when he rec’d the order), this is legal consideration

2

“Satisfaction” clauses

a

Where one party’s perf is conditional upon him being satisfied as to quality of goods.  Ct will infer req’t that party act in good faith as to whether he is satisfied or not

3

Implied commitment.  (Wood)

a

Where there is an IMPLIED promise to deliver something of value mutuality will be found.  Promisor must make r’ble efforts to buy/sell (as under exclusive license agr’t)

b

UCC makes licensing agr’ts of this sort binding; seller must make BEST EFFORTS to supply goods and buyer must make BEST EFFORTS to promote their sale.  (UCC § 2-306)

c

If there is an estimate, this sets the permissible range of variation.  Even if no estimate, normal or prior req’ts set the range.  (UCC § 2-306)

4

Requirements and output contracts

a

Consider: is offer for req’ts K or for series of unilateral K’s?

b

Modern cts will uphold these.  UCC § 2-306 upholds them

i

No consid necy

ii

BUT can’t suddenly increase/decrease volume unr’bly.  (UCC § 2-306(1))

c

Common law — upheld where ELTS:  (Laclede)

i

Needs of purchaser are r’bly f’ble (but need not be able to accurately predict)

ii

AND time of performance is r’bly limited

d

Orders under req’ts K aren’t separate Ks — they’re just notifications

I

STRUCTURAL AGR’TS (class 1/29/04)

1

Def’n = promissory structure that is designed to increase the probability of exchange

4

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