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Table of Contents
ENFORCING PRIVATE AGREEMENTS 2
DAMAGES FOR BREACH OF CONTRACT 2
The Three Damage Interests 2
Three Limitations on Damages 4
Constructing Around the Default Rules of Damages 8
OTHER REMEDIES AND CAUSES OF ACTION 11
Specific Performance and Injunctions 11
Restitution—Damage Interest and Cause of Action 13
Tortious Interference with Contract 15
MUTUAL ASSENT 15
REACHING AN AGREEMENT 16
The Objective Theory of Assent 16
What is an Offer? 18
What is an Acceptance? 21
E-Commerce and Mutual Assent 25
DISCERNING THE AGREEMENT 26
Interpreting the Meaning of the Terms 26
Filling Gaps in the Terms 28
Identifying the Terms of the Agreement 30
WRITTEN MANIFESTATIONS OF ASSENT 34
Interpreting a Writing—The Parol Evidence Rule 35
Requiring a Writing—The Statute of Frauds 36
ENFORCEABILITY 38
THE DOCTRINE OF CONSIDERATION 38
The Historical Origins of the Doctrine 38
The Bargain Theory of Consideration 38
Contract Modification and the Preexisting Duty Rule 41
THE INTENTION TO BE LEGALLY BOUND 42
Using Formalities to Manifest an Intention to be Legally Bound 42
THE DOCTRINE OF PROMISSORY ESTOPPEL 44
The Development of Promissory Estoppel as a Substitute for Consideration 44
Promissory Estoppel as an alternative to Breach of Contract 47
Establishing the “Elements” of Promissory Estoppel 47
PERFORMANCE AND BREACH 48
PERFORMANCE 48
The Implied Duty of Good Faith Performance 48
Implied and Express Warranties 48
CONDITIONS 53
The Effect of a Condition 53
What Events are Conditions 53
Avoiding Conditions 53
BREACH 54
Constructive Conditions 54
Prospective Nonperformance 55
Cost of Completion v. Diminution in Value: The Expectation Interest Revisited 57
DEFENSES TO CONTRACTUAL OBLIGATION 58
LACK OF CONTRACTUAL CAPACITY 58
Introduction—Rebutting the Prima Facie Case of Contract 58
Deficiencies in Contractual Capacity 58
OBTAINING ASSENT BY IMPROPER MEANS 59
Misrepresentation 59
Duress 61
Undue Influence 61
Unconscionability 61
FAILURE OF A BASIC ASSUMPTION 62
Mistakes of Present Existing Facts 62
Changed Circumstances 63
Allocation of Risk in Long-term Contracts 65

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