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A contract made expressly for the benefit of a third person, may be enforced by a party to the contract or such person at any time before the parties to the contract rescind it.
[If a contract is not made expressly for the benefit of a particular third person, such person cannot enforce the contract even though he or she would receive some benefit from the performance of the contract.]
[It is not necessary that the contract identify or refer to the beneficiary by name. The beneficiary may recover if [he] [or] [she] can show that [he] [or] [she] is one of a class of persons for whose benefit the contract was made.] | TOP |
One of the essential elements to the existence of a contract is the consent of the parties. This consent must be freely given, mutual, and communicated by each party to the other[s].
[Consent is not freely given if it is obtained by [duress,] [menace,] [fraud,] [undue influence,] [or] [mistake.]]
Consent is not mutual, unless the parties all agree upon the same thing in the same sense. Ordinarily, it is the outward expression of consent that is controlling. Mutual consent arises out of the reasonable meaning of the words and acts of the parties, and not from any secret or unexpressed intention or understanding. In determining if there was mutual consent, you should consider not only the words and conduct of the parties, but also the circumstances under which the words are used and the conduct occurs.
Conduct alone is not effective as an expression of consent, unless that person intends to engage in the conduct and knows or has reason to know that the other party may infer consent from such conduct. | TOP |
[Except in certain situations as to which you will be instructed, a] [A] promise without sufficient consideration cannot be enforced.
Consideration may be either a benefit conferred or agreed to be conferred upon the person making the promise or some other person, or a detriment suffered or agreed to be suffered by the person to whom the promise is made or some other person. Consideration must be bargained for and given in exchange for the promise. In determining whether there was a bargained-for exchange, you must consider only the outward expression of the intention of the parties.
[Promises by the parties bargained for and given in exchange for each other constitute consideration.]
To be sufficient, the consideration must have some value. Something that is completely worthless cannot constitute sufficient consideration. | TOP |
An offer is an expression of willingness to enter into an agreement so made as to justify another person in understanding that his or her consent to that agreement is invited and will conclude it.
Mutual consent is accomplished [except as you will be otherwise instructed] by the offeror, communicating an offer to another, known as the offeree, who responds by communicating an acceptance of the offer to the offeror.
[An expression of willingness to enter into an agreement is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to be bound until [he] [she] has made a further expression of consent.]
[An offer must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain of definition.]
[Parties may engage in preliminary negotiations, oral or written, before reaching an agreement. These negotiations only result in a binding contract when all of the essential terms are definitely understood and agreed upon even though the parties intend that a formal writing including all of these terms shall be signed later] [, unless the law requires that the contract be in writing] [, or] [unless the apparent agreement is void or voidable].] | TOP |
Where any of the essential terms of an apparent agreement are left for future determination and it is understood by the parties that the agreement is not complete until they are settled, or where it is understood that the agreement is incomplete until reduced to writing and signed by the parties, no contract results until this is done.
[An agreement definite in its essential terms is not rendered unenforceable by reason of uncertainty in some minor, nonessential detail. [ Such details may be left to the further agreement of the parties].]
[Though an essential term is uncertain or not agreed upon, if the contract provides a means or formula by which that essential term can be determined, the contract is enforceable. Performance by the parties may [also] render clear what was uncertain, and the contract becomes enforceable.] | TOP |
The person making the offer may revoke the offer at any time before the communication of acceptance by the person to whom the offer is made. [This is so even though the offer is stated to be good or irrevocable for a specified period.]
An offer is revoked,
[1. By the person who made the offer, giving notice of revocation to the person to whom the offer has been made, in the same manner required to communicate the acceptance;] [or]
[2. By the lapse of the time set forth in the offer for the acceptance, or if no time is set forth, the lapse of a reasonable time without communication of the acceptance;] [or]
[3. By the failure of the person accepting the offer to fulfill a condition precedent to acceptance;] [or]
[4. By the death or insanity of the person making the offer.]
[5. _______________________________________________________
_________________________________________________________]. | TOP |
An acceptance of an offer must be absolute and unconditional. All of the terms of the offer must be accepted without change or condition.
A change in the terms set forth in the offer, or a conditional acceptance, is a rejection of the offer. Once an offer has been rejected, it cannot be accepted, unless the person who made the offer, remakes the offer following the rejection.
A change in terms, or a conditional or qualified acceptance communicated to the person who made the original offer, is a counter offer. A counter offer may be accepted, rejected totally, or rejected by a further counter offer. A contract results only when an offer or a counter offer is absolutely and unconditionally accepted.
To be effective, an acceptance must be communicated to the person who made the offer. If the offer prescribes any conditions concerning the communication of its acceptance, the conditions must be conformed to; but in the absence of such conditions, any reasonable and usual mode of communication may be adopted.
[A written [notice of] acceptance is effective when __________.]
[A written [notice of] acceptance is effective when placed into the course of transmission by an [authorized] [or] [reasonable means] to the person who made the offer. [Transmission of an acceptance by __________ (U.S. Postal Service, telegraph, etc.) __________ was a[n] [authorized] [reasonable] means.] If the accepting party uses an [unauthorized] [or] [unreasonable] means of transmittal, the acceptance is not effective until actually received by the person who made the offer [within any time limit [set forth] [or] [implied in the offer].]
[Performance of the conditions of an offer, or the acceptance of the consideration offered with a proposal, is an acceptance [even though a notice of acceptance is not transmitted].] | TOP |
A modification of a contract is a change in an obligation by a modifying agreement. To be effective the modifying agreement requires mutual consent. In addition, the modifying agreement must be supported by additional consideration, except that,
[1. A contract not in writing may be modified in any respect by consent of the parties, in writing, without a new consideration;]
[2. Errors in a contract may be corrected, and omissions supplied without a new consideration;]
[3. A fully performed modifying agreement, oral or written, cannot be invalidated for lack of consideration;]
[4. _______________________________________________________
_________________________________________________________]. | TOP |
[The plaintiff [also] seeks to recover damages for money had and received.]
When a person has or had in [his] [her] possession money [,or a specific article of property agreed to be treated as money,] which in fairness should be paid to another person, the law imposes an obligation to do so.
[Direct possession or the receipt of money is not essential; it is sufficient if the defendant knowingly and consensually had its use and benefits even though the money was possessed by a third party.]
A plaintiff is entitled to recover for money had and received when:
[1.] [A defendant has obtained money from the plaintiff by [fraud] [,] [the exercise of undue influence] [,] [menace or threat] [,] [payment under compulsion or duress] [,] a mistake of fact];] [or]
[2.] [Money has been paid for a consideration that has totally failed;] [or]
[3.] [Money has been paid pursuant to a valid contract which has been rescinded or abandoned;] [or]
[4.] [_________________________________________________
_____________________________________________________]. | TOP |
[The plaintiff __________ [also] seeks to recover damages by way of compensation for the reasonable value of services performed.]
When one person renders services to another [at such person's request,] [or] [from which the latter derives benefit,] the law imposes an obligation to pay for the reasonable value of the services [except as you will be otherwise instructed] if both parties had the expectation that during the time the services were performed that compensation should be made.
[When one person renders services to a third person at the request of another, under the reasonable belief that the requesting party will compensate [him] [her] for such services, regardless of whether the requesting person derives any benefit from the services, the law imposes an obligation on the requesting party to pay for the reasonable value of the services [except as you will be otherwise instructed].
[If the person performing services intended them to be gratuitous, [or] [if the person rendering the services did so by unjustifiably interfering in the other's affairs,] no duty of payment arises.] | TOP |
[No instruction is provided.] | TOP |
A condition is [a fact], [an event], [the happening] [or] [non-happening] of which [creates] [or] [extinguishes] a duty on the part of a promisor. [A condition which creates a duty is a condition precedent.] [A condition which extinguishes a duty is a condition subsequent.]
A person who makes an absolute or unconditional promise, [supported by a sufficient consideration,] is bound to perform when the time for performance arrives. A person who makes a conditional promise, [supported by a sufficient consideration,] [is bound to perform only if the condition precedent occurs] [or] [is relieved from the duty to perform if the condition subsequent occurs].
[A promise may be dependent upon the happening or performance of more than one condition, in which event, the person to whom the promise is made must perform all conditions precedent before any duty to perform arises.] | TOP |
Performance of a condition precedent is excused when,
[the other party refuses to perform [his] [or] [her] own promise.] [, or]
[the other party prevents or makes impossible the performance of the condition precedent.] [,or]
[the condition is waived.] [, or]
[performance of the condition is impossible, unlawful, or impractical.] [, or]
[requiring performance of the condition would substantially frustrate the object or effect of the contract.]
[________________________________________________________.] | TOP |
If one party materially fails to perform [his] [or] [her] promise, or materially delays performance, the other party's duty is [discharged] [ended]. However, a slight or partial delay or failure to perform does not [discharge] [end] the other party's duty to perform.
[In determining whether a failure to perform is material, you should consider:
1. The extent of the actual performance or preparation;
2. The good faith, or lack thereof, of the defaulting party;
3. The hardship, if any, resulting to the defaulting party; and
4. The adequacy of damages to compensate the other party for the default.]
[Delay in performance is material only if time of performance is of the essence, that is, if prompt performance is, by the express language of the contract or by its very nature, a vital matter.]
[A duty to perform is [discharged] [ended] by a material failure of consideration[.] [even though __________ (the party owing the duty) [is unaware of the failure] [or] [has breached [his] [or] [her] own promise][.] | TOP |
Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on [his] [her] behalf, and with [his] [her] consent, if accepted by the person to whom the obligation is due, [extinguishes] [ends] the obligation. | TOP |
A tender is an offer of performance. An effective tender has the effect of placing the party to whom the tender is made in default if such person refuses to accept the offer of performance.
To be effective, the tender must,
1. Be of full [and unconditional] performance; [A party entitled under the contract to the performance of a condition [precedent] [or] [concurrent] may, however, make an offer of performance dependent upon due performance of the condition [precedent] [or] [concurrent];]
2. Be made by the party making the tender or by some person on his or her behalf and with that party's consent;
3. Be made to the party to whom the tender is due or some other person authorized by such party to receive or collect what is due;
4. Be made at a place [appointed by the party to whom the tender is due] [or] [a place where the person authorized by that party can be found] [or] [if [he] [she] cannot be found, at any place within the state];
5. Be timely; and
6. Be made in good faith. | TOP |
[The plaintiff __________ [also] seeks to recover damages based upon a claim of breach of contract.]
[A] [An] [unjustified] [or] [unexcused] failure to perform a contract is a breach.
The essential elements of such a claim are:
1. The existence of a [valid] contract between the parties;
2. Plaintiff's performance [, unless excused];
3. Defendant's [unjustified] [or] [unexcused] failure to perform; [and]
[4. Plaintiff had the ability to perform;] [and]
[4.] [5.] Damages to plaintiff caused by the breach. | TOP |
A breach of contract may be total or partial. If the breach is total, the injured party has the right to terminate the contract. If the breach is partial, there is no such right.
A total breach occurs if the breach is material.
Materiality depends upon the importance or seriousness of the breach, and the probability of the injured party obtaining substantial performance.
[A slight breach at the outset of performance [except as you will be otherwise instructed] justifies termination, and constitutes a total breach.]
[After considerable performance, a slight breach which does not materially impact upon the contract, does not justify termination, and does not constitute a total breach.]
Any breach of contract [, whether total or partial,] causing measurable injury, gives rise to a cause of action for damages. | TOP |
[A] [An] [unjustified] [or] [unexcused] repudiation of or failure to perform a contract at the time performance is due is an actual breach. A repudiation which occurs before the time when performance is due is a breach by anticipatory repudiation, sometimes referred to as an anticipatory breach. When an anticipatory breach occurs, the injured party may either sue immediately, or wait until the time for performance, and then exercise [his] [or] [her] rights for actual breach of contract.
An anticipatory repudiation or breach may be [express] [or] [implied]. [A person who expressly repudiates the contract by an unequivocal refusal to perform, commits an express anticipatory breach or repudiation.] [A person who puts it out of [his] [or] [her] power to perform the promise, commits an implied anticipatory breach or repudiation.] | TOP |
Instead of treating a breach as a termination of the contract, the injured party may waive the breach, by electing to treat the contract as still alive, and remaining ready and able to perform on [his] [or] [her] own part, thereby limiting the claim to damages caused by the breach. A waiver may be [express] [or] [implied]. [It is implied when the injured party continues to perform, with knowledge of the other's breach and accepts further performance from the breaching party following the breach.] | TOP |
The measure of [general] damages for the breach of a contract is that amount which will compensate the injured party for all the [detriment] [or] [loss] caused by the breach, or which in the ordinary course of things, would be likely to result therefrom. The injured party should receive those damages naturally arising from the breach, or those damages which might have been reasonably contemplated or foreseen by both parties, at the time they made the contract, as the probable result of the breach. As nearly as possible, the injured party should receive the equivalent of the benefits of performance.
Damages must be reasonable. Plaintiff cannot recover a greater amount as damages than [he] [or] [she] could have gained by the full performance of the contract. | TOP |
Loss of profits, present or future, as an element of [general] damages, may be recovered for a breach of contract if,
1. The loss is the direct and natural consequence of the breach,
2. It is reasonably probable that the profits would have been earned except for the breach, and
3. The amount of loss can be shown with reasonable certainty.
If future loss of profits is reasonably certain, any reasonable basis for determining the amount of the probable profits lost is acceptable. | TOP |
The plaintiff is also seeking to recover special damages for the claimed breach of contract. Special damages are recoverable when special circumstances exist which cause some unusual injury to plaintiff. The plaintiff can only recover special damages if defendant knew or should have known of the special circumstances at the time defendant entered into the contract. Any award for special damages must be reasonable. | TOP |
The measure of damages for a breach of contract to pay money only, is:
1. The amount due by the terms of the contract [, and
2. [Simple] [Compound] interest thereon, at a rate of _____% from the date of breach]. | TOP |
The measure of damages for a breach of contract to sell an interest in real estate is:
[1. The price paid,]
2. Expenses properly incurred in examining the title and preparing the necessary papers,
3. The difference between the price agreed to be paid and the fair market value of the estate agreed to be conveyed at the time of the breach,
4. The expenses properly incurred in preparing to enter upon the land,
[5. Consequential damages,] [and
6. [Simple] [Compound] interest at the rate of _____% from the date of the breach]. | TOP |
The measure of damages for a breach of contract to purchase an interest in real estate is:
1. The excess of the amount which would have been due the seller under the contract over the fair market value of the property to him or her,
[2. [Simple] [Compound] interest at the rate of __________% from the date of the breach[,]]
[3. Consequential damages.] | TOP |
A right arising out of a contract may be transferred by the holder of the right to another person. Such a transfer is called an assignment. The person making the transfer is the assignor. The person receiving the transfer is the assignee.
[Unless some law provides otherwise an] [An] assignment may be oral, written, or partly oral and partly written. There need be no consideration for the assignment. [If there is consideration, it is a contract of assignment, and subject to all laws relating to contracts.]
[Whether rights arising out of a contract are assignable, depends upon the nature and terms of the contract. Ordinarily, rights are assignable unless the contract expressly or impliedly prohibits an assignment, [a statute prohibits an assignment,] or performance calls for some personal quality of the person making the promise which materially impairs the non-assigning party's right of obtaining the performance it expected.]
[A non-assigning party to the contract may waive an objection to an assignment. A waiver may be express or implied. It is implied if the non-assigning party, after learning of the purported assignment, continues to deal with the assignee either by performing to the assignee, or by accepting performance from the assignee.] | TOP |