1. Irrelevant to what is in the written agreement
2. consistency 
3. undermines the importance of a written contract
4. fraud

1. Timing - must be before or during the singing or execution of the contract
2. was it a totally integrated or partially integrated contract?
3. Is the oral agreement collateral - meaning a side deal
4. does it contradict the written agreement?
5. is it something that one would ordinarily expect to be embodied in the writing 
6. look at the circumstances at the time of writing of the contract, including the relationship of the parties 
7. the more formal, the more it is expected to be included in the written agreement

1. in situations of collateral agreements supported by new consideration 
2. if there is evidence of misrepresentation, duress, undue influence
3. if a term in the contract is ambiguous 

No Parole Evidence

look to the reasonable and ordinary meaning of the term in the contract without introducing outside information or parole evidence

Use parole evidence to define the term 

trade usage and speaking the same language

professional commonalities 

words are subjective 

An occurrence of an unforeseen event which makes a party's performance impracticable, and the non-occurance of which was a basic assumption on which the parties made the contract. 

the party claiming impracticability must have no fault in causing the event and must not have assumed the risk 

1. Timing - post formation but pre/during execution
2. impracticable to complete / basic assumption, meaning it is so vitally different it alters the essential nature of the bargain 
3. no fault
4. unforeseen event
5. no assumption of risk

subject to

contingent upon

provided that

on condition

as soon as 

after

Intent =

(for purposes of consideration)

Surrounding circumstances =

(for purposes of conditions)

1. time is of the essence

2. conditions of satisfaction

1. the extent the injured party was deprived of the benefit they expected

2. the extent the injured party can be compensated for what they were deprived of

3. the extent the failing party will suffer forfeiture

4. the likelihood the failing party can cure the failure

5. the extent to which the failing party's behavior caused the failure

*balancing test*

1. are the terms dependent on each other - the more dependent, less likely to be divisible

2. the intent of the parties at the time they entered

3. how many sets of consideration 

4. number of types and prices, timing of delivery, etc.

1. are the terms dependent on each other - the more dependent, less likely to be divisible

2. the intent of the parties at the time they entered

3. how many sets of consideration 

4. number of types and prices, timing of delivery, etc.

there is a condition, but it hasn't been performed, so the other party can excuse the condition 

can be excused by waiver, estoppel, extreme forfeiture, and bad faith/prevention/failure to cooperate 

1. known legal right

2. relinqueshes right 

can relinquish right through words or acts 

1. fails to disclose - did not inform of requirement, or misstated facts

2. justifiably relied - can be fact or policy based 

want to encourage businesses to uphold promises

should favor person against big company - they're not on equal playing fields in contract formation 

contracts are interpreted against the drafter

1. Anticipatory - post formation but pre performance

2. repudiation - a positive statement or action by the promisor indicating distinctly and unequivocally that he either will not or cannot substantially perform any of his contractual obligations

1. positive statement

2. based on words and acts 

3. words and acts must be distinct and unequivicoally intending not to be contractually bound

to put them in the position they would be in if the contract wasn't breach

post-performance position 

Types of monetary damages

general/compensatory/expectation

reliance/incidental

consequential 

what you did relying on the contract 

money you already lost because of the breach

examples are previous sale of reliance; moving costs; loss of income

objective, quantifiable, and measurable 

what you lost because of the breach

example: lost profits 

cost of repair

diminution in value 

if the repair would be so unreasonable or too disproportionate to the damages

example: readingg pipe case

the difference int he market value before and after the work was performed

positive: quantifiable 

Defendant's response to having to pay damages

defendant has burden of proof

avoidability

foreseeability

certainty 

Foreseeability

probable result because it follows in ordinary events or in special circumstances and the party in breach has reason to know. 

defendant must have constructive knowledge or reason to know

cannot be too speculative

need a reasonable foundation to calculate damages or future profits

can be past records or market trends

set by parties at the time of contract negotiations or during formation

most likely used in delays in finishing i.e. construction

1. too difficult for the court to measure or ascertain damages and

are reasonable in light of anticipated losses

more likely to be struck down if they seem more like a penalty

1. enrichment

2. unjust 

one party obtained a benefit at the expense of another 

fact analysis 

unjust

(for purposes of restitution)

unfair for the party to keep the benefit without paying for it

policy based 

Specific Performance

Injunctions

1. money damages are inadequate because unique or irreplaceable, uncertain or too hard to calculate, or breaching party is insolvent AND

2. it would be unfair not to order to specific performance - fact and policy based 

fancy, taste, and judgement

if he's making a good faith determination he's unsatisfied, court will rule in his favor