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You promised, not the right kind of promise


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Contracts Fall Outline, Eisgruber Fall 1999

YOU PROMISED, NOT THE RIGHT KIND OF PROMISE
II. The Formal Extreme: Holmesian Bargain Thry:

A. The consideration of the promise must stand in reciprocal relation with (be the motive of) one another. So both parties induced to promise or act by the promise or act of the other.

B. Restatement Theory of bargain plus reliance.)

1-Some performance, such as an act, forebearance, or return promise (not just initial promise)

2- Which was bargained for (sought after) by promisor

3-Which was given by promisee in exchange for promise

4-And wouldn’t have been given BUT FOR the promise (given in reliance on promise)

III. Restatement Bargain Thry – S71: promisor deserves to pay cuz promisor got sumn in exchange.

A. It’s same test above minus the 4th element. Unlike Holmes & S90, doesn’t require reliance.

B. This test nowadays can be enforced in any ct in US basically. Some cts may insist on showing the Holmesian theory, by either sayin they don’t follow S71 or that they interpret the given in exchange phrase to mean that it’s given in reliance. But that’s not how we’re analyzing it for our class.

C. Consideration requires bargained for performance or returned promise (In other words, the promises of 1 party must induce promises or actions of the other party).

-Is bargained for if sought by promisor in exchange for promise & given by promisee in exchange for promise.

-Performance consists of act or forbearance or creation/modification/destruction of legal relation. --Performance/return promise may be given to promisor/other & given by promisee/other.

D. Consideration=formal – deals w/if promise made certain way, not adequacy of the consideration



-Nominal consideration/Peppercorn=promisor requests mere token from promisee, to make promise binding. While binding under S71 & Holmes, may not be bargained for, or may be gift. Cts divide on this.

IV. Promissory Estoppel – S90

A. Less formal than above 2. Is more openly substantive, looking at reasonableness of reliance & about justice involved, unlike Holmes & S71. Is like a tort like thry, cuz it deals w/redressing injuries to parties. Ain’t about formalism to voluntarily bind selves to…instead of promisor’s intent to be bound to K, focus is on injustice to promisee.

B. Look at harm done & not how agreement may’ve been formulated. Doesn’t enforce terms or value of promise or make K, unlike Holmes & S71.

C. Elements

1) promise

2) which promisor reasonably should have known it would induced promise

3) which induces promisee to rely on promise thru action or forebearance (Reliance must be justifiable, not frivolous)

4) So that injustice can be avoided only by enforcing promise

5) And where the manner of enforcement can be limited in interest of justice

D. Normally, don’t need consideration cuz U have reliance. But a few JDs recognize S90 as a form of consideration

Ex: Feinberg v Pfeiffer CO (MO Ct. App. 1959).



    1. Facts: P worked for D for 37 yrs, & Board of Directors agreed to give her $200/mo upon retiring. P retired 1 ½ yrs later, got payments, but 7 yrs later, got only $100.

    2. Held: P’s retirement from lucrative position in reliance upon D’s promise to pay her an annuity or pension is consideration enuff to make D’s promise binding. While a gift promise of past consideration’s insufficient to enforce K, S90 can be used to enforce the reasonable reliance.

F. Types of promises enforceable under S90: PPCIG (Pimp Prof Chris Is Girly)

  1. PELD

  2. prelim negotiations, if reliance on promise was foreseeable plus reasonable

    1. Hoffman v Red Owl Stores, Inc. (Wis 1965)

      1. Facts: P owned bakery & told D he had $18,000 to invest in franchise. D said it’s enuff, advised him to buy & run grocery store for experience, buy land for future store, sell bakery, rent house elsewhere. P did all but last 1, cuz D advised to get experience at other area store. P moved there & never got job. P was told he’d hafta invest more, so abandoned negotiations.

      2. Held: Under S90, P can recover losses from reasonably relying on D’s suggestions of how he should go about getting a franchise, so good faith bargaining was enforced. P got $ from bakery sale, rental/moving, property down payment for future store location, diff b/w price received & market value of assets from summer store sales back. Didn’t get expectation damages cuz was impossible to see what, if any, profits he woulda made runnin the store.

  3. charitable subscriptions

  4. induce foreseeable reliance of a substantial nature that become irrevocable

    1. Drennan v Star Paving (S90 holds that subcontractor cannot revoke offer once communicated to general contractor)

    2. Ricketts – granddaughter work

    3. Devecmon - Europe

  5. gratuitous/gift promises

V. Allegheny College v National Chautaqua County Bank of Jamestown (NY 1927) - Cardozo

A. Facts: P (Allegheny) tried raising funds, & Johnston wrote: I’ll pay U $5000, due 30 days after I die, outta my estate each yr. Should go to P’s endowment or expended as instructions on back (pledge valid only if gift’s called Mary Yates Memorial Fund, to educ for ministry in US or abroad.) $1000 paid while alive, & 6 mo later, she withdrew promise & 30 days after death, P sued her executor (D) for balance.

B. Held: Duty assumed by P to perpetuate name of founder of memorial is sufficient to enforce promise. S90 is used to fill in incompleteness of bargain thry. Rests on shaky ground w/S71 that being remembered is benefit to promisor or publicizing is return promise. For charitable subscriptions, we can imply sought after in ways normally not acceptable, by departing from strict consideration. Sought after is assumed by satisfying reliance. We don’t know if school actually relied on promise, for no debts were taken on, so S90 is shaky too.

C. Is way to combine legal formalisms of bargain thry – sought after + reliance, esp Holmesian theory, but will go by substantive judgments of S90.

D. This test gives favorable disposition to enforceability to promises. If U have good case under either S71 or S90, judge should be able to imply K. Choose among interpretations that fit & justify data set. Allegheny takes idea of fit very seriously - wants to credit/respect the outcome of virtually all the cases. It matters that there are pe thries cuz they suggest that the bargain thry can’t be the end of the story. Our notion of the bargain must be flexible enuff to encompass those cases.

E. Uses lotsa implication & inference like in De Cicco v Schweizer (NY 1917) - Cardozo



  1. Facts: Agreement by Mr. Schweizer promising to annually pay daughter a specific amount in her lifetime for marrying & his wife would take it over if he died. 1902, marriage, & payments began & went thru 1912. Sued to get that yr’s $. While it’s agreed that marriage=sufficient consideration, D says was no consideration cuz she was already engaged so the marriage was fulfillment of pre-existing legal duty

  2. Held: Promise is intended to induce performance by both marryin. If they postponed or broke off marriage, & then married in reliance, it’s enforceable under Holmes. Cardozo’s faithful to form but not substance of Holmesian test, cuz he said U don’t hafta prove reliance (can imply it by promise inducing em to persevere, w/this pressure implyin both of em may waver in proceeding w/marriage). Law favors marriage settlements & tries enforcing em, even if consideration’s a doubtful inference.

  3. Cardozo worries about Stilk (see below – it held that PELD cannot be consideration for a promise) and PELD (that they’re engaged), & gets around em by assuming either party could rescind, so there’s no PELD to not rescind – they can break off to each other – is no PELD to each other, thus promise is to bind both of them.

  4. Crane: concurs, but says this is a marriage settlement & those are recognized by law. In S.90 subsection 2, a marriage settlement’s binding & U don’t need to prove reliance. (Holmes, however, thinks it’s arbitrary to hold difft promise types (marriages vs others) difftly.)

F. Ex: Kirksey v Kirksey (AL 1845) – didn’t enforce by Allegheny.

  1. Facts: P’s bro-in-law wrote to P after P’s hubby died: sell your land, & if you come over here, I’ll let you have a place to raise your fam, cuz I want you all to do well. P moved w/her fam to D’s houses, then made her leave.

  2. Held: Is insufficient consideration to support promise for a mere gratuity. The moving wasn’t consideration but rather an incidental condition to a gift & so not sought after.

G. Ex: Thorne v Deas (NY 1809)

  1. Facts: Jointly owned vessel. Deas volunteered to insure it, but didn’t

  2. Held: naked promise that vessel would be insured. Pure reliance not enuff, as nothing was parted with (so no injustice). One is only liable for misfeasance, not nonfeasance, in a gratuitous promise.

  3. wanna look for sumn sought after by Deas (promisor), forebearance of Thorne bros for getting insurance. Requires atty creativity, to add facts that can construct an inference to make your case. Holmes didn’t like this idea of usin reliance to render promises enforceable.

VI. Other Approaches to Consideration theory – PPRS – Pee Pee Rat Shit - 1st 3 are shaky

A. Possessory transfer – transfer of sumn by promisee to promisor renders promise enforceable if transfer wouldn’t have otherwise occurred.

1) Siegel v Spear & Co. (NY 1923) – promisee to promisor


  1. Facts: P bought $900 of furniture from D in 1917, 1918. Paid $300 by May 1918, when decided to store it in NYC for summer. P sent it to D, to keep it there free. D allegedly promised to insure furniture, which P hadn’t thought of & suggested he’d handle, but D said he’d save P $. June: destroyed in fire---no insurance put on it.

  2. Held: Promise enforced, cuz was consideration due to possessory transfer, partial performance, & reliance. Bailee under as much of obligation to insure as take care of goods. D entered upon execution of trust - was after promises that P sent furniture over….so this case differs from Thorne v Deas (see above - Was promise to insure, gratuitous promise, broken promise, & accident led to destroyed property, but was no consideration for promise – rather, joint ownership of vessel that was lost at sea w/no commencement of performance). Cites early NY case Rutgers v Lucet, which held: mere agreement to undertake trust w/o compensation’s not obligatory, but once trust is undertaken & entered upon, then is bound to perform by agreement’s terms...the confidence placed in bailee makes sufficient consideration.

2) Lusk-Harbison-Jones, Inc v Universal Credit Co. (Miss 1933) – promisor to promisee

    1. Facts: D sold deferred installments to P (bank). 5 car owners defaulted & bank repossessed em. D agreed bank should recondition cars. P received a pamphlet sayin D would insure em. Fire destroyed em & D hadn’t insured.

    2. Held: S90 made this promise enforceable, for P reasonably relied on promise. Inaction will count as forbearance (reliance). Most crts will distinguish misfeasance (makin a promise & doin it badly) & nonfeasance (makin a promise & doin nothing) by a bailee….anytime a bailee starts to do sumn (ie---deliver cash) he’s strictly liable….like if negligent or grossly negligent.

B. Partial undertaking – commencement of performance by promisor renders the promise enforceable.

1) Siegel v Spear & Co (see above)



C. Reliance thry of consideration – S90 is a so-what answer to the consideration defense. Reliance will count as a consideration.

  1. Ex: Feinberg v Pfeiffer (MO Ct. App. 1959) see above: Retiring due to reliance on retirement offer is consideration.

  2. Ex: Underwood Typewriter Co. v Century Realty Co. (MO 1909)

    1. Facts: P wanted to get outta lease, a good deal cuz other rates were goin up. P & D entered written agreement that D would give P written consent if P found an acceptable tenant. But P found 1 & D wouldn’t give that person permission to move in.

    2. Held: Contract’s enforceable, since P (promisee) fulfilled agreement - which cost him labor & inconvenience – with his performance based on the strength of D’s (promisor’s) offer & w/D’s knowledge…even though the agreement terms didn’t benefit D – isn’t sought after by promisor to have another tenant to take over P’s lease. Ct said reliance is enuff, but gave no argument to support that.

    3. Ct’s 2 confusions:

      1. Ct used unilateral K examples ….it gets q of consideration & whether or not a promise is sought after mixed up w/unilateral K, sayin mutuality’s not a concern in a valid unilateral K. True, if this was a contract, it was a unilateral contract, cuz typewriter company didn’t oblige to find tenant. Unilateral K is really irrelevant to this case, for there was no pulling out of promise in middle.

      2. Underwood ct is confused about mutuality bargain – ct looks for mutual benefit, & not mutual obligation (mutual assent to be bound). Unilateral contracts & S71 don’t have anything to do w/mutual benefit.

    4. Dissent: Agreement not valid cuz 1) unilateral 2) no consideration 3) P didn’t agree to find tenant 4) P’s under no obligation to find tenant 5) the holding would make anyone who says what he’d take for an item to be liable for that, so it’s too far-reaching.

D. Sealed instruments – rarely enforceable today.

  1. Background

    1. Seal doesn’t give consideration…specialty obligations in contracts (like w/parol promises) are valid due to their formal execution.

    2. Putting a wax seal on agreement shows intent & can bind for future gifts.

    3. A seal was always essential, & considered more important in past than now.

    4. Rigid formal thries work best in small or homogenous societies, cuz it’ll otherwise look unfair to refuse to enforce promise based on its formalism. As society diversifies, such formalisms become less successful in enforcing promises & knowing when promises are enforceable.

    5. Cohen: Seals binding promises happened long before consideration was ever heard of. Our modern practices (shakin hands, signing papers) make evid secure plus express the human need for formality & ceremony

    6. Fuller: Any promise can be enforced even w/o consideration as long as it’s made properly. Consideration’s said to be there for evid & to remove hazards of mistaken testimony with enforcement of promises w/nothing given in exchange. Enforcement’s been said to be denied to gratuitous promises cuz they’re often made on impulse, w/o proper deliberation. Objections to these go away if formality/ceremony’s there, like a seal. But some say enforcing gratuitous promises isn’t important enuff to justify energy to that.

  2. Warren v Lynch (NY 1810)

    1. Facts: D wrote note in VA (where what counts as a seal is a scrawl) that he’ll promise to pay P in NY, where U need impressions on wax.

    2. Held: NY doesn’t allow signature to substitute for seal: Formalism requires crisp defn. & shared soc norms so only those who want to be bound will & to prevent fraud.

  3. Krell v Codman (MA 1891)

    1. Facts: This is a note earlier to a will about who’ll be paid when she dies. It’s better than a will, cuz the $ comes from executors of estate, yet for a will, the $ comes from estate just bein broken up. When she dies, the bills are paid off, then creditors take 1st, & what’s left is divided up among heirs.

    2. Held: A note made under seal is enforceable, w/o determining if there’s consideration, since consideration is as much a form as a seal (Means U do sumn formal to make agreement enforceable, as consideration’s formal.)

  4. Pillans and Rose v Van Mierop and Hopkins (Eng 1765)

    1. Facts: White (Ireland) wants to pay debt to P (P&R) in Holland. Clifford is creditor in Holland also. P&R want sumn in exchange for payin off White’s debt to Clifford. So White says P&R can pay off Clifford who can draw on White’s credit by Van & Hop in England. P&R pay off Clifford & pile up debts w/someone in England. Then V&H will be billed. White goes bankrupt, & V&H refuse to pay bills to P&R. P&R sue V&H.

    2. Rule: Havin a promise among merchants in writing is enforceable. Don’t need wax, seal, etc. Don’t need consideration, either. (Nothin given in exchange for promise, so S71 won’t work.) Merchants don’t make gifts & we can assume they’re not impulsive. People can make obligations binding when they wish to.

VII. Complications - PMS

A. Pre-existing legal duty (PELD) rule – U can’t give consideration for a promise by givin sumn U already gave or are already legally bound to give. More precisely, if the promisee owes promisor some performance, & promisor promises additional compensation for that performance, then the promise of additional compensation lacks consideration unless the promisee gives in return sumn not previously owed. Here, it’s clarified that a pre-existing legal duty is owed to promisor in particular.



  1. The purpose of this rule is to prevent extortion by people who midway thru contract get a special advantage (various companies bid on ship, 1 company accepts bid, then 1/2way thru building it, they raise the price).

  2. Probs w/PELD:

    1. presumes ignorance

    2. can frustrate parties’ intentions & make it hard to modify Ks.

    3. Facilitates trickery, makin a promise look enforceable when it’s not

  3. Sometimes, S90 is used to get around this in modern courts. S90 is a so-what answer to the claim that there’s no consideration, alleviating the harshness of PELD by looking at injustice in S90. But PELD rule is still very important.

  4. Stilk v Myrick (Eng 1809)

    1. Facts: On round trip from London to Baltic, 2 seamen jetted so capt (D) agreed w/crew to divide those 2 wages up b/w them all equally if 2 substitutes couldn’t be found. They couldn’t.

    2. Held: A pre-existing legal duty cannot be used as consideration for a promise. Crew (incl P) entered into contract before voyage, & are bound by those terms…had to deal w/that emergency.

B. Moral consideration

  1. In some cases (judicial interpretation hasn’t always been so friendly), a pre-existing moral duty on part of promisor will count as consideration for the promise. Sometimes, this is called past consideration cuz it generally deals w/circumstances of past benefit & not a moral duty per say.

  2. Often used to overcome the bargain thry rule that a past consideration is no consideration, for the promise couldn’t have been made as part of a bargained-for exchange. That rule’s often seen as socially undesirable, esp where promise was meant to compensate for past benefits.

  3. an obligation that would be legally enforceable but for some technical barrier will suffice for consideration. Narrow test (majority view):

    1. Mills v Wyman (MA 1825) – mills is ill

      1. Facts: P cared for D’s 25 yr old son who got ill sailing. D wrote note to P to pay for care of his son. But dad changes mind--doesn’t pay on the promise.

      2. Held: A valid promise needs promisor to gain sumn, though consideration doesn’t require an exactly = transaction. D not bound to promise, as material benefit was to his son & not him. No prior legal obligation, just gratuitous naked promisse.

    2. Gillingham v Brown (MA 1901)

      1. Facts: D owed P a debt dating back to 1872. 1898, D told P he’d repay it in installments, & gave her $5. But D paid no more. Statute of lims on action is 6 yrs.

      2. Held: Promisor had past debt to promisee that woulda been enforceable except for statute of lims, so that debt will count as sufficient consideration. To be payable by D’s terms he set forth. Cuz acknowledged he owed & would pay debt in intallments

  4. Material benefit from promisee to promisor may render enforceable a promise to compensate the promisee for losses incurred in furnishing the benefit. Here, sumn from past can be used to serve to enforce the promise for a legally unenforceable debt. Wide version (minority view):

    1. Webb v McGowin (Ala App 1935)

      1. Facts: Webb (P) works for lumber yard, & is about to drop block but jumped w/it to protect McGowin (D). D not hurt, but P crippled for life. D promised to pay biweekly til P died, but D died 1st & payments stopped 4 wks later. So P sues D’s executors for rest of installments.

      2. Held: If & only if promisor receives material benefit, then moral obligation’s a sufficient consideration (as it’s assumedly sought after by promisor), so the promise to promisee should be enforced. When promisee cares for promisor’s property, even w/o his request, it’s sufficient consideration cuz of benefit received…so services not gratuitous.

  5. Natural & positive law

    1. Positive law =by virtue of procedures that validate it as law, & has norms which have force cuz someone w/authority picked em.

    2. Natural law (sometimes the same thing as justice)=by substance, & has norms which have force cuz they’re fair or good.

    3. Mills Model: natural law duties incl. obligations enforceable under positive law but for existence of some statutory restriction. Natural law duties become enforceable under pos. law if someone promises to enforce em.

    4. Comparative Models: people often see natural & pos law as intersecting sets of norms

    5. Interpretive Models: natural norms become ideals that can resolve disputes about meanings of pos law. Ex: Const Fugitive Slave Clause in Const was seen as unconst since inconsistent w/natural law.

    6. Reasons for Controversy. Some see natural law as particular set of norms as conservative principles from relig conviction. Also, some think since intuitions about justice vary so much, is no point in havin judges think about what justice requires

C. Special rules for special contexts – be careful for usin major theories in: FCBMS

  1. fam cases

    1. Background

      1. Common law doesn’t require positive intention to create legal obligation for contract, & just cuz both parties think they made a contract doesn’t necessarily mean they did. Agreements’ subject matter can imply lack of intent to be legally bound. (In business, too, parties can state their unwillingness to be bound). In general, promises ain’t enforceable if they were or shoulda been mutually understood to be unenforceable

      2. In common law view, all promises not supported by consideration = gift promises

      3. If there’s benefit to promisor, the happening requested was likely consideration. If the happening of that condition won’t benefit promisor but is just for purpose of letting promisee receive a gift, there’s no consideration. Ie: Williston - wouldn’t have walked around the corner to the store w/o the request…is a request but is no benefit…is no consideration under S 71.

      4. Holmes: hates reliance-based recoveries, sayin K is based on bargains. There’d be fewer gratuitous bindings or promises may become binding w/o people realizing it, if a promisee could make a gratuitous promise binding by actin in reliance on it…so that’s why it’d take up the doctrine of consideration by the roots.

      5. A few reasons for the traditional reluctance to enforce gift promises: made impulsively w/lil reflection, donor was vic of fraud or undue influence, legal enforcement of em would either decrease # of em or hardly effect their reliability & accuracy, admin cost of determinin its existence may be hi, chance for errors is hi.

      6. Restatement 2nd=fam contracts are more like fam law than contract law. Agreements substantially changing marital relationship in way detrimental to pub interest is unenforceable due to pub policy interests & crts lackin workable standards. .

    2. Kirksey v Kirksey (AL 1845) – see above also

      1. Facts: P’s bro-in-law wrote to P after P’s hubby died: sell your land, & if you come over here, I’ll let you have a place to raise your fam, cuz I want you all to do well. P moved w/her fam to D’s houses, then made her leave.

      2. Held: Is insufficient consideration to support promise for a mere gratuity. The moving wasn’t consideration but rather an incidental condition to a gift & so not sought after.

    3. Balfour v Balfour (Eng 1919) – Harsh to fams…(modern decisions have relaxed presumption against legal consequences for family promises)

      1. Facts: Wife stay in England after op, & hubby sailed out…he promised to pay her monthly til he returned…she thought he’d come back to Eng in a few mo., but he later wrote & said they should stay apart.

      2. Held: Promises b/w married couples, even if there’s consideration, aren’t enforceable cuz parties didn’t intend legal consequences. Such agreements would take huge amounts of crt power to keep enforcing, don’t wanna invade privacy, & love should be the consideration & should work these agreements out. In short, Balfour presumes promises b/w spouses unenforceable on pub policy grounds

    4. Barnet’s Estate (PA 1936) – Harsh to fams

      1. Facts: Widow claims dead hubby owed her $31,000 (salary for runnin his concessions 1917-21) & the claim would be for remainder of his estate.

      2. Held: Hubby may employ wife, but her services need clear express agreement (otherwise her work’s considered for the good of his worth, affection, & their mutual benefits). Seems that this is interpretation of what a marriage is, goin by ct’s norms of a marriage.

    5. Hertzog v Hertzog (PA 1857) – Harsh to fams

      1. Facts: Son (P) sued dad’s estate (D) to recover $ (he lived w/dad – from 21 to nearly 40- & he and his wife worked on farm). Also, his wife lent dad $ which son’s tryin to get back.

      2. Held: it’s not implied-in-fact cuz there’s another relationship (fam affection, continued work for dad cuz he wanted to, plus ct says U’d rather be a son than employee) that accounts for express.

      3. Ct assumes that a fam SHOULD work this way. But it’s complex in fam relations how much affection & econ factors come into play. Ct is tryin to both FIT what they’ve seen in fams & JUSTIFY what they think fams should be like in this opinion.

d. Cropsey v Sweeney (NY 1858) – Harsh to fams

      1. Facts: James & Catherine married 1812, separated 1815. 1821-James & P marry, & Catherine sued for divorce on adultery grounds. 1822-divorce. 1825-James & P again marry. Neither James & P marriage valid, unknown to P, cuz adultery divorce stops U from marrying while Catherine still alive. P sued James for services while together.

      2. Held: No contract, cuz ct doesn’t presume wife’s services done w/view to pay as if to a servant, but rather that the work was done w/higher intent than payment.

      3. Ct wouldn’t give her $ out of respect for her, cuz ct said you weren’t servant & that role would be insulting, as it would be if she got $ if ct implied she was mistress.

    1. Shaw v Shaw (CA 1954) – more forgiving to fams

      1. Facts: D married P, telling her he wasn’t married. She lent him $. He died, & she sued for breach of marriage promise.

      2. Held: Proposal, marriage, & married life all imply & affirm that he’s in position to marry her, & he broke his warranty at every pt. She lived with & supported him for 14 yrs, so she won 1,000 lb & ½ remaining estate, cuz that’s what she woulda gotten if she really was his widow, though marriage was invalid.

      3. So she wins not cuz of her services, makin her a mistress, but cuz she woulda had that share if she really had been the wife.

    2. Rickets v Scothorn (NB 1898) – More forgiving to fams

      1. Facts: Decedent (grandpa) promised to pay granddaughter (P) annuity, cuz he didn’t want her to work. But he never said if U stop working, I’ll give U a gift. She stopped working for a yr, then returned to bookkeeper job at a difft place. Had gotten 1 yr interest so far.

      2. Held: Is equitable estoppel (voluntary conduct where someone relies in good faith) cuz he intentionally influenced her to alter her position. Doesn’t matter if she did it in reliance. Note was gratuitous & such promises are usually not enforceable. Here, though, grandpa suggested she quit & rely on his $, & he foresaw her probably doin that.

      3. Ct compared her to charitable institutions that spend $ cuz they believe they’re getting donations. She quit her job thinking she’d get “reimbursed.”

    3. Devecmon v Shaw (MD 1888) – More forgiving to fams.

      1. P went to Europe, for uncle encouraged & offered to reimburse him.

      2. Held: Like Ricketts, was gratuitous w/no consideration, as going to Europe was condition, but enforced cuz of detriment to promisee—S.90.

      3. This & Kirksey presents close calls on 1 of the elements needed for a bargain, that is, if it’s sought after….in Kirksey, ct thought it wasn’t sought after.

    4. Hamer v Sidway (NY 1891) – More forgiving to fams

      1. Facts: Uncle promises about 15 yr old nephew $5000 if he refrained from bad habits (drinkin, smoking, swearin, gambling) 6 yrs later, P wants his $.

      2. Held: neither material benefit to promisor nor material detriment to the promisee is a necessary feature of a bargain. But was assumedly sought after by promisor, so was enforced.

2) charitable subscriptions (ie Allegheny, see above, don’t need reliance here, as consideration likely will be implied)

3) bailments



    1. Siegel, see above, so partial undertaking may apply here only for bailments

    2. Hammond v Hussey

      1. Facts: Bailee made gratuitous promise to take bailor’s $ to a certain place. He delivered it to 2nd person who lost it.

      2. Held: Bailee liable for gross neg in not fulfilling the terms of the bailment

c. Rutgers v Lucet (see above): bailment, once undertaken, is enforceable

4) merchants disputes (ie Pillans and Rose v Van Mierop and Hopkins, see above, among merchants, a written promise may suffice w/o consideration),



  1. special consideration

    1. Extra consideration’s required where permanent’s said to mean lifetime. Permanent employment’s usually terminable at will of either party. Would freeze econ or confuse juries if distinction not made.

      1. Fisher v Jackson (CN 1955)

        1. Facts: P claimed: I gave up bakery job ($50/wk), hired as reporter ($40/wk, $5/wk raise each yr), suffered detriment by givin up his bakery job, & under oral contract employment would be for life or til phys disabled for work. Sued to recover damages for breach of oral employment contract

        2. Held: Permanent position is indefinite & terminable at will of either pary, & doesn’t mean life-time employment. The consideration that the employee does work isn’t sufficient to uphold promise, job wasn’t bargained for. This case is creative & is makin public policy.

        3. Need consideration plust – changing job was condition, showin up not enuff

b. Marriage agreements – if marriage is consideration for promise, specific consid. not needed to enforce (see above De Cicco)

VIII. What to do as a lawyer

A. If U’re tryin to enforce a promise:

1) bring your case w/in thry most favorable to U & surest to gain acceptance from a ct.

2) Try to bring it w/in Holmesian bargain thry, & if U can, U’re set.

3) Or else next go for S71, cuz almost every ct holds that sufficient.

4) Next, if U don’t think U can win under those, go for either other approaches to the consideration doctrine or else under S90.

6) All U need to do is win under 1 of em.

B. If U’re tryin to defeat enforcement of a promise, U’re gonna hafta say that none of em will work. Have 2 options, by sayin either this case doesn’t fit the paradigm accepted by the ct or else that the test should be rejected by the ct cuz other cts rejected it. May wanna go under S90 but there should be a modest recovery.

IX. What a judge might do

A. Most contracts get performed so contract law shapes people’ behavior little. So contract law usually adjusts equity in the transactions & prescribes rules for future behavior much less (as people don’t anticipate litigation later on from breach of contract.)

B. So, S71 or S90 seem easier to work thru than Allegheny test…enforce a deal when there is 1, & assume when it looks like 1 that there is a deal.

C. Recommend against PELD.

X. What to know

A. Memorize the following 3 things: Holmesian bargain test, S71, & S90.

B. Know how to discuss & apply the pre-existing legal duty rule, specialized topics (permanent employment, bailments, charitable subscriptions, moral consideration, & distinction b/w fam & business situations)

C. Is need for careful attn to the parties & what was actually said. Was there a promise? Distinctions b/w bargains & gifts affect how the tests can be applied.

WAS THERE EVER AN ENFORCEABLE PROMISE? WHAT DOES THAT MEAN? HOW SHOULD POLICY PLAY A ROLE?
I. Formation: Offer & Acceptance

A. Formation in general: Must be a promise made before there can be acceptance & enforceable agreement.



  1. Look for invitation to make an offer, an offer, a greeting, an acceptance, counter-offer, advertisement, gibberish.

  2. Invitation to offer = statement that U’re thinking of makin an offer or may be willing to be bound later.

  3. The mere fact that a party says it’s an offer or that they accept it, doesn’t mean it’s necessarily a legal offer or legal acceptance (esp. w/acceptances, which often turn out to be counter-offers.)

    1. US v Braunstein (see below): P said they accept (but then a much too price was given) D’s offer, but that didn’t make for acceptance.)

  4. Plus, think of distinction b/w offers & promises. An offer becomes a promise once there’s acceptance.

  5. Hurley v Eddingfield (Ind. 1901)

    1. Facts: Family doctor was sent for, & came, to treat sick patient but doc refused treatment. That’s cuz doc was told he could get fees & was told decedent was relyin on him but he didn’t agree to take on patient P sued for wrongful death.

    2. Held: U’re not liable for something just cuz U can do it. It’s important to protect people’ liberties and if U regulate obligations of doc, may impede health care & lower desires of people enterin medical profession. State doesn’t require license to practice at all or on terms a doctor doesn’t accept. Ct won’t require people to enter into contractual obligations, except for bus drivers, innkeepers, shippers, etc., who must accept business when it comes to them.

  1. Mabley & Carey Co. v Borden (Ohio 1935)

    1. Facts: Borden (P) sued Co (D) for her sis to get 1 yr’s pay at her death (she’d dead). P wants that & interest til now, & supports claim w/certificate notin $ owed to sis. Certif said it’s for her duration & faithful work there & may be discontinued & withdrawn at any time by D. This is like Feinberg, w/alleged agreement to induce her to keep working there. She worked there 26 yrs after this agreement.

    2. Held: Her death was the acceptance. While the promise woulda normally been binding, except that it says that the co. explicitly says it’s not bound by the promise, that only applies to sis. The voluntary & gratuitous part of the K showed sis had no right she could assert while alive. Doesn’t apply (so the contract is bound) to P. Not gratuitous cuz it induced her to keep working there, as it said she’d only get $ if she was still there when she died. The other consideration is D’s appreciation of P’s work.

B. Offer:

  1. Factors to consider in determining if an offer’s been made:

    1. Words used (in Fairmount: “for immediate acceptance”)

    2. Surrounding circumstances – (if it reasonably creates immediate power of acceptance to reasonable person in offeree’s position)

    3. To whom the proposal’s made

    4. Offeror’s manifested intent to be bound.

      1. Advertisement’s usually an invitation to offer, but it’s an offer if there’s intent to be bound – by indicating specific quantity & price of goods AND specific steps offeree needs to follow to accept it

        1. Fairmount Glass Works v Crunden-Martin Woodenware Co. (KY Ct App 1899)

          1. Facts: P wrote D: tell us lowest price you’d charge for 10 cars of jars. Fairmount answered w/prices “for immediate acceptance,” & that quotes & contracts are beyond their control. So P said we’ll take 10 cars as per your quote. D told em their output was sold, so can’t book order.

          2. Held: D’s saying “for immediate acceptance”& C askin for price seems to imply offer & that P was willing to be bound which, trumped the phrase that it’s a “quote.” – so when offer accepted, it closed the K. (Gotta look at the exact lang. A quote’s too indefinite to count as offer, but this wasn’t quote.)

    5. Definiteness & certainty of terms (which may be evid of intent to be bound)

        1. Lefkowitz v Great Minneapolis Surplus Store, Inc. (Minn 1957)

          1. Facts: P (Lefkowitz”) put 2 ads in aper: 3 coats, each $1 (worth $100)…& 2 scarfs & 1 lapin stole for $1 (worth $139.50), both ads sayin 1st come 1st served. P was 1st there & offered $ both times, but D (Surplus Store) refused him both times. D said “house rule” holds that the offer’s just for w.

          2. Held: Newspaper ad noting items for sale constitute an offer, w/P’s asking for items w/his $ make it an acceptance. Offers are unilateral & may be withdrawn before acceptance. But D can’t modify after acceptance. (Since quantity, price, & steps to take were laid out, was offer.)

        2. Davis v General Foods Corp (SDNY 1937)

          1. Facts: Co. (D) received letter from Davis (P) , & said it might be interested in marketing her ice cream recipe though the company’s use & payment would be solely in its discretion. P was “at will” of D. The Co. used it & paid her nothing.

          2. Held: was her mistake to rely on Co. only by assuming it’d be fair. If promisor has unlimited right to decide performance’s nature later on, promise is too vague/indefinite to be binding.

          3. This is like Rosenfrank & Compton (where stationer & supplier entered in agreement to each other, 1st sayin it shall not be legally binding to other, & ct upheld that later when 1 party tried to enforce the agreement.)

          4. How is it this case came out difft from Mabley? Could just be difft circumstances. But maybe they can be reconciled cuz U can read the lang in Mabley which make it a LESS CONCLUSIVE disclaimer (is for definite amt.) than Davis, & the relationship b/w parties has no employer/employee relationship in Davis.

        3. Young & Ashburnham’s Case (Eng 1587)

          1. Facts: Dude lodged at inn, took his lodging/diet/servants/horses, but didn’t pay.

          2. Held: No obligation cuz was no price or agreement worked out. U need a promise, & for it to be specific

          3. Today, though, cts wouldn’t decide such a case this way…they’d look at other room prices in that hotel & enforce clients to pay the going rate. It’s a sufficiently precise promise to be implied (under some circumstances, a promise can be implied). Leave out price & ct can infer, but leave out quantity & crt probably can’t.

4. Now, common law holds: it doesn’t need to be very definite to be enforced.

  1. Offeror can set limits on the offer

    1. Offeror is master of the offer

    2. Offeror may put weird conditions on offer

    3. Can put unfavorable conditions

    4. Conditions can incl. time limits, way to accept, who may accept it

    5. Generally, offeror can’t prescribe silence as acceptance

  2. Any ambiguities are decided against the person who wrote it:

    1. Jenkins (see below): D’s letter to accept best bid was held as an offer once P sent in bid = to another but not conditional to the other.

    2. Hamer v Sidway (see above): Uncle bargained for performance of refraining from bad habits, & nephew gave it in a reasonable manner.

  3. Offers are in general revocable until accepted

    1. Can be revoked on a whim

    2. Dickinson v Dodds (see below): Offer open for 2 days can be revoked & sold to someone else before accepted

    3. once accepted, can’t revoke (except for 3 day prd - unconscionability)

  4. Price quotes usually not an offer to sell:

    1. Unless: Quoter specifies quantity he’s willing to sell, not merely the per-cost unit AND the quote is to specific person, not general public

    2. Fairmount Glass (see above) is minority opinion: “Quote” for “immediate acceptance” was offer

    3. Quotes may implicitly be subject to availability

    4. If say “current” price, offer may be open for a short time

C. Acceptance

  1. Anything meaning “yes” – a manifestation to be bound - counts…doesn’t hafta be fancy, formal acceptance. Don’t hafta repeat any portions of offer

  2. Silence

    1. Generally doesn’t constitute acceptance - offeror can’t stipulate that silence counts

        1. Hurley v Eddingfield (see above): doc chose not to treat patient

        2. Prescott v Jones (NH 1898)

          1. Facts: D (insurance co) says we’ll assume if we don’t hear back from U, U want the insurance. Never heard back, & insurance was never gotten, & P’s house burned down.

          2. Held: Was no consideration cuz P paid no premium for policy nor bound himself to pay any. No mutuality, cuz P just decided to accept offer in own head.

          3. U wouldn’t wanna hafta turn down every offer to show no acceptance.

    2. ExceptionsBCSC (Because Silence = Crap)

      1. receipt & use of benefits

        1. Austin v Burge (MO App 1911)

          1. Facts: P got newspaper from father-in-law who subscribed to it for 2 yrs, & father-in-law paid for that. Paper kept comin to P, & he paid for it, but then ordered it stopped twice…it came for a few yrs until he moved.

          2. Held: policy holder liable, for conduct (of never returning or refusing parpers) can imply contractual relations. He was under no pretense that it was gratuitous, yet benefited from em.

          3. This was extreme cuz the person twice said no & so it wasn’t simple silence & also reading isn’t that much of a use if it’s coming to you & it can be a burden to get rid of it. Statutory modifications have tended to narrow this exception. Is the opposite of Prescott, w/the same set of facts. Policyholder gets policy, & unless the other hears back, would be sued.

      2. prior course of conduct (doesn’t go against the reason why silence isn’t normally acceptable which is cuz it’ll burden u.) Here, the same fear doesn’t exist if a relationship already made an understanding b/w the parties.

        1. National Union Fire Insurance Co. v Ehrlich (App T, 1st Dept 1924)

          1. Facts: like Prescott. A broker got 5 insurance policies for D. 1 expired, so broker sent D renewal policy issued by P, & a bill for premium. D kept policy & bill for 2 mo., then rejected it once $ was demanded. In short, P sent D renewal K, & D waited 2 mo. to cancel it.

          2. Held: broker’s previous relations justified both him & P assuming that D’s holding onto the policy implied his acceptance.

        2. Cole-McIntyre-Norfleet Co. v Holloway (Tenn 1919)

          1. Facts: P’s travelin salesman got goods order from D’s country store (incl 50 barrels meal) to be ordered out 4 mo. later, & 5 cents/mo/barrel for storage after that. But 2 mo later, D heard nothing, then told P to begin shipment. P said it didn’t accept original order, so was no contract. D never got word regarding order, though P called repeatedly. Prices 2 mo after the 1st negotiation were up about 50 cents.

          2. Held: Acts implying acceptance (here, the unreasonable delay) can make offer binding.

      3. separate agreement

        1. they give U sumn, & U buy the right to treat silence as acceptance

        2. Columbia house purchased the right by givin u lotsa cds cheap to insist that acceptance isn’t silence. U must pay for monthly CDs if they’re sent to you.

      4. industry custom (custom might give rise to a duty to speak)

1. Cole (see above)

    1. Can avoid paradox by enforcing S90. (Prescott could have used estoppel when insurance co. said we’ll assume U want insurance if we don’t hear back.) (see above).

  1. Mirror Image Rule

    1. If an acceptance states terms of a K, it must repeat them w/o departing from or adding to em. Acceptance doesn’t hafta repeat terms, but if offeree does, the terms must be same as orig K or else it’s a counter-offer. If u do mention terms, don’t hafta mention all of em either.

    2. Purpose: 1 party can’t unilaterally force terms on other side

    3. Ask: what were terms of the offer…when do U have a variation in terms & when do U have just a suggestion? When do proposals vary the term?

    4. US v Braunstein – SDNY1947

      1. Facts: Offeree invited bids & laid down terms for inedible raisins for sale that can be turned into alcohol: designate distillery & pay by check w/in 10 days of

telegram acceptance of bid. D…offeror) telegrammed to CCC: “Offer 10 cents/LB for 9599 boxes.” P said, we accept offer for 10 cents/BOX. Ds had done nothing, so CCC told Ds if they don’t pay, raisins’ll be sold & that happened.

      1. Held: If party knows the other doesn’t intend what it says, cuz the offer’s too good to be true, that knowledge prevents offer/acceptance operation. Plus, using word “accept” doesn’t make it acceptance.

    1. Butler v Foley (Mich 1920): May be hard to distinguish mere requests from variations in terms of offer (ie Langelier & Butler). Mere inquiry won’t affect status of offer.

      1. Facts: P offered by telegram to buy. D telegrammed that it accepted yet telegram had “subject” in the original but not in the copy received by P, so it became a counteroffer. P then confirmed the order, makin acceptance.

      2. Held: offeror, not offeree, takes risk of communication ineffectiveness. Even if the terms that vary were from a clerical error, it’s still not acceptance. When the offeror specifies a preferred mode of reply, offeror is responsible for errors attributable to it. Is assumed that offeror prefers offeree use offeror’s own means. It’s not REQUIRED that offeree use the same means as offeror to act, though.

    2. Langellier v Schaefer (Minn 1887) – stricter app of mirror image rule than most crts

      1. P accepted D’s offer to sell property, but added terms to the deal, that he will buy it on time, or D could please execute enclosed deed (by changing place of delivery to where P resided for deed’s delivery & payment of $.

      2. Held: An offer needs to be accepted on its terms for any obligation to be placed on offeror...here, a counter-offer was created. While some parts of P’s letter were suggestive, the above conditions were what P required of D & were not incidental conditions. Absent a specified location, delivery will be expected at offeror’s residence.

    3. Jenkins Towel Service, Inc. v Fidelity-Philadelphia Trust Co. (PA 1960)

      1. Facts: D sent letter out sayin they’ll sell property to highest sealed bidder, but had right to approve offers or withdraw property from market, & could recommend best offer. P sent bid = to another party (Esso -though Esso’s bid was conditional). D selected that party’s bid.

      2. Held: the additional conditions of Esso’s bid made it a counter offer. Opening of P’s bid made it acceptance, for D can’t disapprove offers or withdraw property AFTER P’s bid’s opened & it’s all in compliance w/conditions. The sealed bidding process would be undermined if the party selling sumn could see how much U’d be willing to bid, then change the offer & try to renegotiate & get more $. D had made an offer, not just invitation, cuz asked for sealed bids & D specified all conditions for agreement of sale. P’s offer was the highest & most advantageous.

      3. Dissent (Jones): Letter’s an invitation. D warned P it could pick best offer. Sealed bid is still an offer, & opening it doesn’t imply its acceptance. Sale was not to highest, but to highest acceptable, bidder. D said it had right to approve offers, not fully complying offers.

  1. Complications in acceptance

    1. Unilateral Ks

      1. Offer requests in return an act, not a promise like w/bilateral Ks. There’s acceptance once performance is complete.

      2. Unilateral Ks only matter when there’s revocation mid-performance & promisee tries to enforce promise.

      3. Possible solutions: SOBR (when U’re single, get sober).

        1. Subdivide offer up: (Implicitly, U made 6 offers, so I completed 5 of the 6.)

        2. Imply an option: S45=Commencement of performance by offeree creates an option which offeree can then exercise. In other words, if I start bakin the 1st pie, I have option of completing the performance, so U don’t have the right to revoke it any more.

        3. imply a bilateral K. When I start performin, I implicitly promise to keep performin, & the offer assumedly allowed me to do so. Builder, not reward

        4. Compensate reasonable reliance. Maybe don’t pay $500 for the 5 pies, but give $ for my labor. (Works for construction Ks, when both parties do sumn they can complete – won’t work for reward like Box.)

      4. Carlill v Carbolic Smoke Ball Co. (C.A. QB 1893)

        1. Facts: Carbolic put out ad that they call “reward for getting sick.” Gotta sit in smoke fumes & catch the flu, which it doesn’t cause. Mrs. Carlill did all this & never communicated her acceptance.

        2. Held: She can recover anyway. (Most reward offers will have structure: do it & you’ll get reward, & the actual communication of intent to accept isn’t needed.)

v. Hamer v Sidway (see above): Uncle offerin to pay nephew for refrainin from bad habits, & nephew forebore, was assumedly sought after by uncle…was valid unilateral K.

    1. Errors in transmission: Offeror assumes risk in any error occurring from transmission form he chose...he’s assumed to approve that type. But offeree doesn’t hafta reply in same way. (See above Butler, where offeree chose to reply using offeror’s means).

II. Amendments to general strategy of offer & acceptance

A. Firm offers

1) Firm offer=offer made for specified time for offeree to respond. Intent to be bound if act quickly

2) The old common law said offerors can revoke their offers during prelim negotiations no matter what. A party who, in anticipation of a K, incurs preparation expenses or turns down another deal, can’t hold withdrawing party liable. U had to buy an option (ie put down some $ now) in order to get an unrevocable offer for prd of time then. But duty to bargain in good faith has recently modified that somewhat.

3) A naked offer, like gratuitous promise, can be revoked w/impunity until accepted, unless given under seal

4) But there’s big diff b/w gift promises & offers (esp firm offers)



  1. Firm offers also binding if in writing.

  2. PE eroded consideration doctrine, & modern tendency is to make reliance argument for holding firm offer enforceable. 87 sub 2 (Offer which offeror should reasonably expect to, & does, induce substantial action or forebearance before acceptance is binding as option K to extent necessary to avoid injustice.

  3. Dickinson v Dodds – C.A. 1876 (w/book) – explicitly holds offer open

    1. Facts: D agreed to sell P property, with offer available for 2 days. The next day, P found out D offered or agreed to sell it to someone else. So P anyways delivered it to D’s mother-in-law that night & the next morning.

    2. Held: Offerors can revoke offers before they’re accepted, in general. A mere offer to sell property, revocable at any time, depends on acceptance of offeree & is a naked offer. So it can’t be a binding K after D tries to accept, knowing from a reliable source that P has already sold it to someone else. Is no consideration.

    3. This rule is a major target of critics of the consideration doctrine, who see this offer as a firm offer.

    4. Mailbox Rule:

      1. acceptance is effective on dispatch (once dropped in the mail) & revocations effective on receipt (when the offeror hears about it, no matter how it happens)—assumes promise

      2. Here, P got off dispatch before learning of revocation. When he gave secretary the letter, he made her an agent, & so he never dispatched the agent legally. It’s his fault if the offeror doesn’t get it from the agent…he must put it in the mail to constitute dispatch. As far as receipt, P learns about the property bein sold from the grapevine, & that’s enuff. If offeree hears about revocation, then it’s effective even if offeror did bad job of communicating it.

  4. Drennan v Star Paving Co. (Cal 1958) – implicitly holds offer openthis is modern tendency for cts to imply promise & use S90 to compensate reliance.

    1. Facts: D (Star Paving - subcontractor) submitted bid to P (Drennan – contractor) to do paving work, along w/50-75 other subcontractors, & he had to bid himself to guarantee he’d enter K if given the work. D bids the lowest by several 1000 bucks, which was submitted w/P’s bid (which was lowest, too, & awarded the K). D told P the next day they made mistake & couldn’t do it for that price. Several mo. later, P found another paving co. to do it for a bit more. In short, contractor’s been accepted, THEN subcontractor withdraws bid.

    2. Held: Ct runs through elements of S90. B/w subcontractor makin bid & contractor who reasonably relied on it, the loss should fall on party who caused it. So P wins since P’s reliance made D’s offer irrevocable. D’s offer was promise & D had reason to expect P would use its bid if it was lowest. After awarded a general K, a general contractor can’t delay acceptance or re-open bargaining w/subcontractor.

    3. Coase theorem: if transaction costs are lo, parties will assign responsibilities of offers to the party who can carry em out w/smallest burden & rights to the party who values em most. Parties will bargain to most efficient point.

  5. James Baird Co v Gimbel Bros (2nd Circ 1933) – implicitly holds offer open

    1. Facts: D sent in bid, but underestimated yards by ½. D sent offer to P (contractor), sayin it’d be guaranteed for prompt, reasonable acceptance. P got it the same day that D realized mistake & sent out retractions. P’s sum was already sent out, accepted by pub authorities before it got the retraction. P accepted the offer a few days later.

    2. Held: Offer was withdrawn before acceptance, so acceptance was too late. S90 wasn’t applied, cuz was just an offer, not promise.

B. Implied Ks

1) 3 types of promises: (shown in Hertzog): ICE

a-constructive/implied-in-law


      1. If there’s no implied or express, nor voluntarily undertaken, yet pub policy (justice & reason) dictate there oughta be a duty under these circumstances. Considered fictions of law. They aren’t really contracts at law.

      2. Ex: Ovrepayments: OvU owe creditor $ & send off a check that’s too big, so U overpay your debt. The law says creditor has contractual duty to return the excess $. Doesn’t matter if creditor thinks he’s not bound cuz he didn’t promise that. But it’s implied-in-law for him to return the $.

      3. Unlike other 2 types, this doesn’t aim to get at intentions of parties

b- implied-in-fact.

  1. It’s not express but it can be inferred from the circumstances – reasonably implied by parties’ conduct

  2. Ex: If non-fam member helps a man out w/his land, it’s presumed a servant relationship. If someone gives U services that U benefit from, & U give some form of consent to those services, & it’s not inferred as expectedly free work.

  3. Ex of implied in fact: Hewitt (sorta), Shaw (above – she won cuz lived as if married), Austin (above - receipt/use of newspaper)

  4. Not implied: Hurley (above – infringe on doc’s freedom), Davis (above - ice cream-indefinite), Young (above – inn - indefinite)

c-express

  1. K results from words - can be oral or written. Use offer/acceptance strategy

  2. Don’t need signatures or word contract on it if it’s oral, but does need statement of intent to be bound, even if it’s oral.

  3. Doesn’t hafta be detailed. Just oral or written manifestation of both parties’ assent to the contract is what’s distinct to express contract

  4. Hewitt v Hewitt (Ill App. 1978)

    1. Facts: D told P they’re married, lived together 17 yrs, she helped him become successful, & wants ½ of his $.

    2. Held: It’s an express K, for she relied on his idea that they were married. Relationship wasn’t as mistress but rather had conventional fam life. Respectin common law marriages won’t encourage them, & letting D win would increase incentives to undermine policy, cuz it’d increase hubby’s incentives to lie about marriage. Shouldn’t reward shrewd breach.

c. This does seem to be implied-in-fact, a bit.

2) Pub policy (also called justification) relevant to interpretation. Were the parties in a relationship that can best be explained by enforcing a contract b/w em?

a. Hertzog (see above): it’s not implied-in-fact cuz there’s another relationship (fam affection) why son worked for dad.

3) Pub policy also relevant to enforceability

a. Hewitt v Hewitt: (see above) is no barrier to contractual obligations. Even if there is contract, IL Sup Ct says pub policy should make this not enforceable

III. Interpretation - to see what intent of parties were



A. Parol Evidence Rule (PER) aka Prior K Discharge Game

  1. Parties may fail to address or consider a contingency which can greatly alter original expectations, so ct can either supply term to fill gap or else do nothing. Cts may need to interpret agreements due to what’s said & unsaid bein confusing.

  2. 3 lies about it

    1. Doesn’t just mean oral. Never requires writing; it’s triggered by certain kinda writing

    2. Not really about evid

    3. Not a rule cuz the 3 exceptions are so huge that most judges think U can come out either way by manipulating the exceptions, so it’s a game.

  3. Is way of determining effect of writings that purport to be a complete statement of the parties’ purpose for agreement, & to screen out previous negotiations.

  4. Not about how trustworthy an obligation is.

  5. Putting the parol evid into place lets the jury look at it or not. May be a confusing transfer of power from juries to judges. Takes a q of fact about what the parties meant into a q of law about applying the PER.

  6. S213:

    1. A binding integrated agreement discharges prior agreements to the extent it’s inconsistent w/em.

    2. A binding integrated agreement discharges prior agreements to the extent they’re w/in its scope

    3. An integrated agreement that’s not binding or is voidable & avoided doesn’t discharge a prior agreement. But an integrated agreement, though not binding, may be effective to render inoperative a term which woulda been part of the agreement if it hadn’t been integrated.

  7. 3 exceptions: ACC

    1. ambiguous terms: then all prior stuff is relevant for interpretation– to say my obligation’s in there. But U can’t go back & say prior stuff just trumps this

      1. Thompson v Libby (Minn 1885)

    1. Facts: P & D agreed in writing that P would sell specified logs for specified price to D, w/fast cash payments expected. P sued for payments. D implied verbal warranty, & P said it can’t be implied since K was in writing.

    2. Held: No ambiguity found here.

    1. collateral matter: this is to be complete statement about everything it covered. Was intended to be complete & this obligation’s in there, but that’s cuz it’s sep from the obligation in here

      1. Mitchill v. Lath (NY 1928)

        1. Facts: Ds’ owned farm & was an ice house on other property which P wanted removed, but would otherwise purchase Ds’ land. Ds orally promised to remove ice house. Relyin on this promise, P made written K to buy the property. But Ds didn’t remove it.

        2. Held: Not a collateral matter, cuz a collateral matter doesn’t require a separate K w/separate consideration. The removal of the ice house was the type of term that’d probably have been incl. in the written K.

        3. Lehman dissent: Ds’ promise wasn’t connected w/their obligation to convey except that the agreement wouldn’t have been made unless the other was made. Was collateral matter.

      2. Thompson v Libby (see above)

        1. Held: warranty isn’t collateral. In personal property sales, warranty of quality isn’t a separate K, so it can’t be added to written agreement thru verbal testimony.

c. completeness – not intended to be final/complete.

  1. Zell v American Seating Co. (2nd Circ 1943)

    1. Facts: P orally agreed to get gov. Ks for D. The written K didn’t incl. the commission they’d orally agreed on, for D disapproved of including it.

    2. Held: Written K was incomplete & it was designed to make it look like it was complete.
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