Contracts - UCC & Restatements

A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

(1) A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.
(2) The person manifesting the intention is the promisor.
(3) The person to whom the manifestation is addressed is the promisee.
(4) where performance will benefit person other than the promisee that person is the beneficiary

(1) Except as stated in Subsection (2), the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration.
(2) Whether or not there is a bargain a contract may be formed under special rules applicable to formal contracts or under the rules stated in §§82-94.

(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal relation.
(4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.

ELEMENTS OF CONSIDERATION
Bargained for
Promise or performance
Sought by promisor in exchange for promise given be promisee

If the requirement of consideration is met, there is no additional requirement of (a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee; or
(b) equivalence in the values exchanged; or
(c) "mutuality of obligation."

If consideration is met then no need for: 1) actual gain or loss 2) equivalence 3) mutuality

(1) there is consideration for a set of promises if what is bargained for and given in exchange would have been consideration for each promise in the set if exchanged for that promise alone.

1. Marriage- to charge upon any agreement made upon consideration of marriage
2. Year-upon any agreement that is not to be performed w/in 1 yr. from the making
3. Land-upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them
4. Executor-whereby to charge D upon any special promise to answer damages out of his or her own estate.
5. Goods-sale of goods over $500
6. Surety-guarantor/ co-signer; whereby to charge D upon any special promise to answer for any debt, default or miscarriage of another person.

(1) except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcements is sought or by his authorized agent or broker. A writing is not sufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. (100% of elements of this statute must be satisfied to get reliance)
o a promise
o promisee must rely on promise
o reliance induced by promise
o p’or reason to expect reliance
o injustice avoided only by enforcement of promise
o remedy is limited
o *** NOTE: promissory estoppel goes to enforceability; reliance goes to measure of damages

Except as stated in §§73 and 74, any performance, which is bargained for, is consideration.

If the requirement of consideration is met, there is no additional requirement of (a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee

If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

(12) “Consumer credit sale”:

(a) Except as provided in paragraph (b), “consumer credit sale” means a sale of goods, services, or an interest in land in which
**(i) credit is granted either pursuant to a seller credit card or by a seller who regularly engages as a seller in credit transactions of the same kind
**(ii) the buyer is a person other than an organization
**(iii) the goods, services, or interest in land are purchased primarily for a personal, family, household, or agricultural purpose
**(iv) the debt is payable in instalments or a finance charge is made; and
**(v) with respect to a sale of goods or services, the amount financed does not exceed $25,000

(b) A “consumer credit sale” does not include…
**(ii) … a sale of an interest in land if the finance charge does not exceed 12%

(13) “Consumer credit transaction” means a consumer credit sale or consumer loan…

(1) With respect o… a consumer credit transaction, if the court as a matter of law finds:
**(a) the agreement or transaction to have been unconscionable at the time it was made, or to have been induced by unconscionable conduct, the court may refuse to enforce the agreement; or
**(b) any term or part of the agreement or transaction to have been unconscionable at the time it was made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable term or part, or so limit the application of any unconscionable term or part as to avoid any unconscionable result…

(4) In applying subsection (1), consideration shall be given to each of the following factors, among others, as applicable
**(b) … knowledge by the seller… at the time of the sale… of the inability of the consumer to receive substantial benefits from the property or services sold or leased;
**(c) … gross disparity between the price of the property or services sold… and the value of the property or services measured by the price at which similar property or services are readily obtainable in credit transactions by like consumers
**(e) the fact that the seller, lessor, or lender has knowingly taken advantage of the inability of the consumer or debtor reasonable to protect his interests by reason of physical or mental infirmities, ignorance, illiteracy, inability to understand the language of the agreement, or similar…