1.

Mutual Assent
Lucy 醉酒卖地案— objective standard; what the word or conduct manifest—what the parties’
understanding is irrelevant
Augstein 音乐家寻物启事案
【Holding: posting rewarding for returning a computer is an offer.】
Unilateral contract-in a bonus sense//consider the capacity- there at least exist some doubts
about if the performance would be done-可在(full/partial) performance 前随时撤回//
Bilateral contractthe promise one party seeks would be certain
但是本案中的 acceptance issue 没有解决—还回丢失了资料的电脑是否是 full acceptance?—
这是给 fact-finder 去决定的问题.—要看合同意图

2. Offers o Contract
什么是 offer
Unilateral contract 中 offer 的撤回情形
Advertisement 不是 offer—capacity issue—there will be too many breaches of contract.
“first come, first serve”—capacity issue—有这样的语言，就可以成为要约
百事可乐案
The court is thinking about the objective approach—no reasonable factfinder who watches
the commercial would have taken it seriously as an offer.
 Holding: as a general rule, defendant’s advertisement is not an offer because it did not direct
anyone who appeared and show 7,000,000 points on fourth of July would receive a Harrier
Jet;-没有具体时间，地点，数量要求和严格的 words of limitations.
 Rule: there must ordinarily be some language of commitment or some invitation to take
action without further communication.
 absence of any words of limitation such as “first come, first served,” renders the alleged offer
sufficiently indefinite that no contract could be formed.
思考：法院 “the possibility that there were other people who interpreted the commercial as an
“offer” of a Harrier Jet does not render that belief any more or less reasonable.--> 到底哪些人是
reasonable person? What would be the percentage?
 老师认为：At some point, we should think about what the ordinary viewer thinks
The judge here is a very educational person, but how does the Ads do with the ordinary
person?
 对比醉酒卖地案-背景不同—Pepsico aimed at encouraging creativity, fair markethumor
is the point of the commercial;
Public Policy—如果 hold otherwise, Ads would no longer be funny.
这里的语言并不 definite, explicit.
Lucy—the court wanted the individuals to regulate their conduct.
 Distinguish with unilateral offer/ “reward cases
 Unilateral offer- generally involve public declarations regarding the efficacy or
trustworthiness of specific products,
 Promise of reward: the alleged offer is intended to induce a potential offeree to perform
a specific action, often for noncommercial reasons
Petterson-债主撤回少还债要约案
-Majority: the offer was withdrawn before the performance, and there is no contract.
-The money tendered must be a full performance.
 “In this instance Petterson, standing at the door of the defendant’s house, stated to the
defendant that he had come to pay off the mortgage. Before a tender of the necessary
moneys had been made the defendant informed Petterson that he had sold the
mortgage. That was a definite notice to Petterson that the defendant could not perform his
offered promise[.]”
 Revocation requires communication- there should be notice,
 Argument:所以在债权人转移债权的时候，他没有告诉债务人，所以这不算 revoke
offer
Dissenting:
同 意 D 的 第 二 个 offer （ 提 前 还 债 就 可 以 少 还 利 息 ） is a unilateral contract--“The
consideration requested by the defendant for his promise to accept payment was some act to be
performed by the plaintiff.”
但认为 issue 是 what act the D requested as consideration for his promise—认为原告的行为足以
构成 acceptance—what is full performance?
 多数意见认为 should give the cash to the creditor’s hand; Here is no “tendering”.
 异议认为-show up at the door- tendered the payment- it is the performance
“tender”-your presenting, showing; demonstrating;
--consider that we should not give the creditor the power to reject payment;

3. Acceptance

--Master of the offer a lot of discretions for the offeror to frame the offer.
Mirror Image Rule 重点
 UCC 2-207 reject mirror image rule--unfair
 “Under the common law of contracts, acceptance must match the offer. The match must be so
complete that the concept is sometimes referred to as the ‘mirror image rule.”
 The acceptance must be exactly like the offer;
 The UCC 2-207 clearly rejected the mirror image rule- the drafter thought it to be
unfairUnder the rule, the court usually looks to the last communication- normally
found the acceptance to be the performance—makes the contract only comply with one
side’s term;
 Restatement 2 Sec. 39 Counter-offers (2)give the party a little more flexibility (there
might be some small change, not to change the entire offer) 可以有小 change
Sec. 59增加了 condition 就不是 acceptance 而是 counter-offer
但 是 从 comment 中 可 以 看 出 — the Restatement is seeking to move the law in a new
direction-->adopt UCC which reject the Mirror Image rule.
 CISG—departs from Mirror Image Rule a little 但 是 将 materially change 解 释 的 非 常
broadly (效果上还是和 Mirror Image rule 是差不多的)
 UNIDROIT—考虑是否 materially alter the terms
a. United States Life Insurance Co. v. Wilson 保险合同 reinstatement 案
【Unilateral Contract; Mailbox Rule; Insurance contract】
被保险人在网上银行交保费，2007. 7.23 缴纳；7.30 到账；被保险人在 7.28 死亡.
 The reinstatement contract— 要 求 performance 的 是 unilateral contract the
 REINSTATEMENT clause is a promise by the insurer to reinstate coverage upon
performance by the insured of a single act – payment of the overdue premium.
 Mailbox rule the mailed acceptance of an offer is effective when mailed, not when
received or acknowledged.-->在 give possession/control 的时刻
 Acceptance 是银行寄出支票的那一天—7.25//为什么不是 7.23?--> it was still possible for
Mr. Griffith to revoke the check; he still had the power to reverse course- not given up
possession/control of the check;
 Acceptance is not revocable; The moment they give possession of the check, it is not
revocable;
 Mailbox rule only applies to Acceptance. The offer is revocable until the contract is
formed.
 对比 Patterson case在这里不是 partial performance 因为原告只需要动动手指或者把支
票放进邮箱里就可以了；而 Patterson 中 involve more of the debtor’s effort to show up
at the door and “tender” the payment;
b. Municipal Consultants & Publishers, Inc. v. Town of Ramapo (Court of Appeals of New
York 1979) 小镇 supervisor 反悔没按要求在合同上签字-Still a contract;
whether the contract is enforceable against the town without the signature of the supervisor.
 Generally, where the parties contemplate that a signed writing is required, there is no contract
until one is delivered.
 This rule yields, however, when the parties have agreed on all contractual terms and
have only to commit them to writing. When this occurs, the contract is effective at the
time the oral agreement is made, although the contract is never reduced to writing and
signed.
合同 writing 形式不是必要条件 when the only missing piece is the formality (the signature),
unless there is a positive agreement (about the necessity of the formality if all the substantive
content had been agreed on, the missing of formality would not negate the formation of a
contract
 The enforceability of an incomplete bargain
- incomplete in the sense of formality in this case;
-Another type- incomplete in the sense of the substance;-open terms
--it is within the offeror’s discretion to decide whether the parties could adopt open terms
bargain or incomplete formality;--party autonomy;
 General rule (common law)- the more the open terms there are, the more difficulty it
will be to be enforced;

4. Acceptance
 Consideration is one kind of formality ;-providing evidence that there is an entry of a
binding transaction;--that this is not a joke;
 Bilateral Contract- the return promise constitutes consideration;
 Unilateral Contract- the return performance constitutes consideration;
 Distinguishing gifts from contracts is usually not difficult . . . The key question is whether
the thing or the promise is offered to get something in return.
 The point is--Whether the other party is obligated to do something;--under the
Restatement
  Some jurisdictions would use the language “benefit/detriment”; some jurisdictions would use
the word “exchange”;--但是不管怎么样 court 想看到的是有没有 mutuality of obligation;
Restatement (Second) of Contracts Section 79
-Adequacy of Consideration; Mutuality of Obligation
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—有的法院可能会用这个做 analysis
(b) equivalence in values exchanged; or—not consideration analysis (nowhere would ask
for a fair bargain; the court would allow unfair bargain—but its validity is another question—
unconscionability standard;)
(c) “mutuality of obligation.”—有的法院会用这个 analysis
Requirement contract- under traditional common law- the buyer is just holding a choice to
buy- it could be argued that there is no mutuality of obligation;
 Firm Offer— 不 用 consideration, hold the original offer open (irrevocable); 必 须 有
signed writing.
 Modification—Common law 需要 consideration;
但是 UCC 不需要
 CISG-合同不需要 consideration.
a. Hamer v. Sidway (Court of Appeals of New York 1891) 舅舅保证给侄子钱如果他在 21 前保证
好习惯
【 Understanding of Detriment—by not drinking or using tobacco, the nephew did suffer
some detriment;】
 但是 how the nephew value the right to do these things are not relevant;--only to know that
the nephew promise to do some thing;- the given up of the legal right is sufficient to the
consideration;--the court does not need to worry about the amount of the detriment ; the
court just concern about the existence of the detriment;
 如果不考虑 amount of the detriment- 有可能引发 fraud 的问题 -the court will see whether
the transaction is genuine
 如果是要求 not killing someone-not consideration-必须是 legal right;
 Normally, the court would discuss detriment; 但 是 有 时 候 会 分 析 benefit;- 考 虑
conditional gift- when it comes to motive;
 本案中，what is the benefit for the promissor?-在用 benefit 和 detriment 的 jurisdiction
中，只要满足了 detriment 就足够；
 Forbearance is a kind of detriment;--obligated not to do something.
b. Weavertown Transportation Leasing, Inc. v. Moran ((Superior Court of Pennsylvania 2003) 为
了公司把自己买的座位转让给公司招待客户—NO Consideration
 【Different between Consideration and Conditional Gift—
本案中 the point is to find the motivation of the promisor.】
 Motivation for consideration-the promisor is seeking the return of a promise/performance;
 Motivation for gift- the promisor just wants to give the gift, and it is the condition which
make it possible to happen.
 Moran bought the license;不仅买这个 License 要花钱，还要每年花钱 maintain the license
every year;--Major argument: Moran argues that 这个公司只是 pay for the maintenance of
 the license, but he retained the ownership of the license;
 What is the gift?-the possibility that the company could have the ticket;- 没 有 Moran 的
granting, 公司不会有机会买到这些票，这是 Moran 认为的 gift；
 但是 Weavertown 还要付每年的 maintenance 和 tickets fee—great detriment;
--Moran’s argument: his motivation is not to seek the Weavertown’s detriment; he just
wanted to do something nice;
--Note: 如果是要认定 Moran transferred the ownership of the license-对于 Moran 来说很不
公平，因为这些 license 的价值很高;--it is in no chance that Moran wanted to give up the
license because the Weavertown was just paying for the face value of the ticket;
 如果 Moran 是因为不想要这些票或者需要 cash，才做这些 arrangement 呢？--在这时可
能 就 有 exchange 的 嫌 疑 ， 而 不 是 just conditional gift;--if the company could find the
evidence that Moran needed cash, the court would consider it a bargain;
老师的想法：法院没有仔细讨论 motivation-一个人给自己的公司提供一些利益，很难说他
没有想要什么 in return 的想法。
如果能够证明原告是为了获得大量现金流才让渡的—那么就会有 exchange 的嫌疑
 典型的 conditional gift—告诉一个流浪汉，你如果去服装店旁边的角落，我就会给你一
件礼物。
 The detriment incurred must be the ‘quid pro quo’ or the ‘price’ of the promise, and the
inducement for which it was made.
 NOTES: 用 mutuality of obligation 来分析-Moran: I can help you arrange the ticket—
just wanted to give the company the possibility of buying the ticket - the Weavertown is
not obligated to buy it- lack of mutuality of obligation;--not suffice consideration;
 Gift Promise-reliance doctrine;

5. UCC Article 2-Part I

UCC Section 2-204 Formation in General
(1) A contract for sale of goods may be made in any manner sufficient to show agreement,
including conduct by both parties which recognizes the existence of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even through the
moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for
indefiniteness if the parties have intended to make a contract and there is a reasonably certain
basis for giving an appropriate remedy.—deal with open terms
 Regarding open terms, Restatement (Second) of Contracts follows modern approach
(contract can be enforceable notwithstanding open terms)—depend on the parties’
intent.
 Traditional Common law approach on open term—contract not formed.
Restatement 要求 certainty The more terms the parties leave open, the less likely it is that they
have intended to conclude a binding agreement.
--Displays the Common Law
 UCC 对 goods 的定义可能比较模糊
 UCC 2-205 Firm Offers—Clear rule of UCC disposing common law 不可撤销要约
UCC Section 2-205 Firm Offers—clear rule of UCC disposing common law;不可撤销要约
An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance
that it will be held open in not revocable, for lack of consideration, during the time stated or if not
time is stated for a reasonable time, but in no event may such period of irrevocability exceed three
months; but any such term of assurance on a form supplied by the offeree must be separately
signed by the offeror.
 Firm offer 之 前 还 有 original offer; firm offer 是 一 个 后 续 的 second contract—I
promise to hold the amount/price open for a certain amount of time; you have the time
to think about it
 Common law- firm offer has to be supported by consideration;
 UCC- firm offer does not need to be supported by consideration, but it should be
supported by signed writing;这个条款只 deal with firm offer without consideration;
如果有 consideration, 就不用 supported by the signed writing;
Firm offer=optional contract: 给了一个选择，可以选择是否 accept—意思是 firm offer would
be effected before the original offer;
a. Computer Network, Ltd. v. Purcell Tire & Rubber Company (Missouri Court of Appeals
1988)【UCC-Open terms would not obstacle contract formality】
原被告签合同买电脑-原告电脑店给被告发了一封信，包含 21 台电脑销售的内容，最后有 if
D agrees, they could sign it, but if they did not agree, they could reach for negotiation.被告签了字，
但后来在接受了 9 台电脑后拒绝进一步履行合同。
被告认为 the existence of open terms would obstacle the formation of a contract—NO
 “The Official Comment to the Code, Section 2-204, states that if the parties intend to enter
into a binding agreement and an appropriate remedy may be fashioned, a contract for
sale does not fail despite missing terms, if there is any reasonably certain basis for
granting a remedy.”
b. Scoular Co. v. Denney (Colorado Court of Appeals 2006) 买卖小鸟食案
原被告有交易历史；原告是经销商，被告是农户卖小鸟食。在一次协商中，原告表达了以
$5 per hundredweight 购 买 的 意 图 ， 但 是 说 that price was not then available-( 意 思 是
currently they have not found a market)；四天后，原告依据这个价格找到了买家。一个月
后，原告发给被告合同书，被告没有看到这个合同书也没有签。后来小鸟食涨价，被告以
更高的价格将货卖给别人，并对原告说 “too bad for you”.
 Issue 1- does that the P rejected the offer?
 Under Mirror Image rule- it is a rejection; 但是本案规则是-if it simply means that “I
agree, but the price is not settled”—不是 rejection.—it is sth less than rejection
 Interpretation of FIRM OFFER-UCC 2-205—无意义，因为法院讨论的 firm offer 是该
行业交易惯例
 原告被告说的 Firm offer 的意思是 -the price is remaining for a long period of time; 是
一个 offer, revocable;
 UCC 说的 firm offer 意思是 irrevocable;
The court is talking about the firm offer that is different from the firm offer in 2-205; the court is
talking about 行业管理；
※ Issue: Is Scoular accepted his offer when it arranged to sell his millet to another buyer?
PH: trial court found acceptance that “the contract was made [by the] ‘acceptance’ of the firm
offer of Mr. Denney when Scoular sold Mr. Denney’s millet on June 3, 2002.” 初审法院认为原告
在与第三方协商时构成了对被告 offer 的 acceptance；
 Rule: Acceptance is defined as words or conduct that, when objectively viewed, manifests an
intent to accept the offer. When, under § 2-206(2), an offeree relies on the beginning of
performance as the mode of acceptance, the offeree’s actions must be such as to
“unambiguously express the offeree’s intention to engage himself.— 这 个 exception 允 许
delayed notice.
 The Code, with one exception, does not alter the general rule that communication is
required of the acceptance of the offer for a bilateral contract while it is not required of
the acceptance of the offer for a unilateral contract.
法院拒绝 bilateral contract 和 unilateral contract 项下的 accptence
 它 不 是 unilateral contract ， 也 不 构 成 unilateral contract 的 offer- 没 有 full
performance- Scoular did not immediately pay Denney as a result of its contract with the
third party
 不 构 成 bilateral contract 下 的 acceptance 因 为 卖 给 第 三 方 的 时 候 并 没 有
communication— 没 有 notice the seller; 也 不 构 成 bilateral contract 下 的 beginning
performance-because Scoular did not begin paying Denny;即使满足 bilateral contract
项下的 beginning performance (allowed delayed notice in reasonable time)- UCC 2-
206 (2)- 也 不 构 成 acceptance;-- 因 为 没 有 unambiguous expression of intent on
Scoular’s part to be bound to a contract with Denny;
 Beginning performance is a little blur because it overlaps between bilateral contract
and unilateral contract. –意思是在 bilateral scenario 中寻找 performance.
 在本案中为什么法院认为可能是 unilateral contract-因为在交易中 Scoular, the buyer
doubted the capacity of Denny to perform the contract-所以认为是 unilateral contract;
 后续对于 bilateral contract 的分析是为了 support the holding-即使是 bilateral contract-也
不满足；
问题：如果 Denny asked Scoular to broker a sale of his millet to another, 是否原告的行为就构
成了 bilateral/unilateral contract?
Opportunistic— 机 会 主 义 者 行 为 -where should the court draw the line that what conduct is
acceptable and what is unacceptable—当价格上涨时，the farmer is very happy to jump out of
the original contract—法院认为这种行为是 opportunistic。

6. UCC Part II
 UCC Article 2 – Special Rules for Merchants
“Article 2 contains several special rules that apply only to merchants.
 UCC Section 2-104(1)
“Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds
himself out as having knowledge or skill peculiar to the practices or goods involved in the
transaction or to whom such knowledge or skill may be attributed by his employment of an
agent or broker or other intermediary who by his occupation holds himself out as having such
knowledge or skill.”
UCC applies to both consumers and merchants;
But CISG and UNIDORIT do not apply to consumers.
 UCC Section 2-207—displace Mirror Image Rule
 Because the mirror-image rule requires that contracting parties agree to the exact same
 terms in order to form a contract, the last party to propose terms before performance
of the contract always controlled the terms of the deal. Because the last party gets the
upper hand in dictating contract terms in this situation, this mirror-image requirement is
also frequently referred to as the ‘last shot rule.’ While that was not necessarily a fair
way to select among conflicting terms on which parties did not agree, it at least has
the virtue of being simple—easy to predict outcomes.
 Common Law “Last Shot Rule”—unfair, but simple and certain.
 Restatement—Conduct as Manifestation of Assent
(2) The conduct of a party is not effective as a manifestation of assent unless he intends to
engage in the conduct and knows or has reason to know that the other party may infer
from his conduct that he assents.---Subjective requirement+Objective Standard.
(3) The conduct of a party may manifest assent even though he does not in fact assent. In
such cases a resulting contract may be voidable because of fraud, duress, mistake, or other
invalidating cause.
Interpretation of the conduct as acceptance
 Knows—subjective standard
 Has reason to know—objective standarda reasonable person to interpret the conduct would
say it an acceptance;
 重点 UCC 2-207—什么是 acceptance; 有 additional/different terms 会怎么样
--注意 2-207(1) (2) (3)之间的适用次序
--after 2-207 (1), a contract is formed the get to2-207(2)-figuring out the terms of the
contract (when the offer and acceptance are inconsistent)
 Only addresses “additional terms”, with no sign of mentioning “different terms”
--2-207(3) follow the “unless” clause in 2-207(1) the knockout rule—apart from the matching
terms, the non-matching terms are knocked out;
 When the write-in does not support a contract, but the conduct implied a contract;
 适用情形为：当 negotiation 中的 forms 明显不相符，但是双方的行为表明 there is a
contract；比如说两方对 deliver date 有不同意见，他们对于 deliver date 的 terms 都被
knockout, deliver date term will be viewed as an open term; and the terms are determined
on a reasonable standard evaluation by the court or the factfinders—Moving away from the
party autonomy;
 Lead to a lot of open terms; the courts are to fill in the open terms .
 这里的 supplementary terms-指的是 UCC 中的标准条款（比如 warranty）
 2-207(3)的 knockout rule—knocking both the additional terms and the different terms
—as long as they do not match;
 但是 2-207(2)项下的 knockout rule (majority approach)—只 knockout different terms.
--2-207(2) does not apply to consumers, only to merchants, 但 是 2-207(1), (3) applies to
consumers.
a. Flender Corporation v. Tippins International, Inc. 买卖双方在 battle of the form 中提供不
同争议解决条款 【UCC 2-207-different terms- knockout rule】
 注 意 ： the trial court applied the knockout rule under 2-207(3); but the appellate court
applied the knockout rule under 2-207(2)followed that contract is formed under 2-207 (1);
 老师认为 seller’s invoice 中 “the sole terms” indicates 2-207(1) “unless clause”, 所以可能
更同意 trial court 的意见？
 为什么二审法院要适用 2-207(2)?—if the fact falls within the “unless” clause, they
will never get to 2-207(2), only to 2-207(3), and the outcomes are identical.
-->Maybe the court thought that it is important to make the announcement in taking the
majority approach in 2-207(2).只是猜想
双方对 2-207 的适用无争议，但是对于 which subsection 有争议；
 Rule: Under UCC 2-207(1)mere non-conformance between competing forms will not
undermine the formation of a contract, so long as the parties demonstrate their mutual
assent to essential terms.
 The formation of a written contract is defeated only where the offeree responds with
different or additional terms and “explicitly communicate [s] his or her unwillingness to
proceed with the transaction” unless the offeror accepts those terms.
 对于第二款到底包括不包括 different terms 有不同的 approach
少数意见：treating different terms as additional terms—offeror’s term will be adopted
多数意见: Knockout Ruleconflicting terms in the offer and acceptance cancel one another.
 the offeree’s form is treated only as an acceptance of the terms in the offeror’s form
which did not conflict. The ultimate contract, then, includes those non-conflicting terms
anknd any other terms supplied by the U.C.C.
 This approach recognizes the fundamental tenet behind UCC § 2-207: to repudiate
the “mirror-image” rule of the common law.
  Professor White advocates this approach as the most fair and consistent with the
purposes of section 2-207.
 This will create a lot of open terms, and the courts would be more engaged in drafting
contracts;--policy consideration

7. CISG Part I
a. Asante Technologies, Inc. v. PMC-Sierra, Inc. (U.S. District Court for the Northern
District of California 2001) 被告有多个 places of business 该如何确定；怎样才算 opt out
CISG
P is a Delaware corporation; D is also a Delaware corporation, but its corporate headquarters,
inside sales and marketing office, public relations department, principal warehouse, and most
design and engineering functions were located in Burnaby, British Columbia, Canada. Defendant
also maintains an office in Portland, Oregon, where many of its engineers are based.
被告虽然是一个在特拉华州法律下缔结的公司，但是其主要营业地是加拿大，在俄勒冈州
有一个负责工程师任务的办公室。
被告通过一个在加州的 distributor 来在美国销售产品
 Holding: the Court finds that Defendant’s place of business that has the closest
relationship to the contract and its performance is British Columbia, Canada.
Consequently, the contract at issue in this litigation is between parties from two different
Contracting States, Canada and the United States. This contract therefore implicates the
CISG.
Issue 2: whether the parties has opted out the CISG in their Applicable Law Clause
 Holding: The Court finds that the particular choice of law provisions in the “Terms and
Conditions” of both parties are inadequate to effectuate an opt out of the CISG.
 Selection of a particular choice of law, such as “the California Commercial Code” or the
“Uniform Commercial Code” could amount to implied exclusion of the CISG
 Defendant’s choice of applicable law adopts the law of British Columbia, and it is
undisputed that the CISG is the law of British Columbia.
 Plaintiff’s choice of applicable law generally adopts the “laws of” the State of California,
and California is bound by the Supremacy Clause to the treaties of the United States.

8. CISG Part II
 对比 CISG 和 UCC 的 materially alter:
-UCC 2-207- focus on “surprise”- if this kind of term is commonly used in the industry, it
seems no surprise to the parties;
-CISG focus on the clear line it gives in Article 19
-UNIDORIT 的 materially alter 和 UCC 很像—要求 commonly used.
 CISG Modification
CISG Article 29
(1) A contract may be modified or terminated by the mere agreement of the parties.
(2) A contract in writing which contains a provision requiring any modification or termination by
agreement to be in writing may not be otherwise modified or terminated by agreement. However,
a party may be precluded by his conduct from asserting such a provision to the extent that the
other party has relied on that conduct.
(2)-if the parties want to add requirements for the formality, they are free to do so.
--Like “No oral form modification”
--the party may waive their right on requiring the formality;--by his conduct. 比如说两方对合同
内容修改问题-要求任何修改都需要书面呈现，后来两方对合同内容修改达成了合意，但是
没有以书面形式呈现；合同开始履行，三个月后，一方要求按照原先的合同履行并 argue
没有有效修改，另一方可以 argue 另一方在合同开始履行的 reasonable time 没有提出异议就
算 waiver 了对合同修改形式的要求
a. Roser Technologies, Inc. v. Carl Schreiber GmbH
买方发 offer, 卖方在回复的 confirmations 中加入了价金保证条款，要求提供相等的担保或提
前支付价金；后买方接受了卖方新发的 confirmation.
When CSN subsequently insisted on invoking the payment term, and refused to deliver without it.
RTI refused to comply and subsequently bought its requirements elsewhere. RTI sued. CSN
counterclaimed. 后来卖方要求履行价金保证条款时，买方拒绝履行合同义务
Issue: whether a contract had been formed and whether it included the payment term.
----The answer, said the court, depended on what law applied to the transaction.
 1) Choice of law issue- UCC 和 CISG 适用的效果是否相同
 No, with respect to the battle of the forms, the determinative factor under the CISG is
when the contract was formedThe terms of the contract are those embodied in the last
offer (or counteroffer) made prior to a contract being formed.
 CISG adopted the Common law Mirror Image Rule;--The United States District Court
for the Southern District of Ohio has stated that ‘the CSIG applies the common law
concept of mirror image.--
 Under the UCC, standard conditions in an acceptance that materially alter the terms of
the agreement are disregarded. Under the CISG, an acceptance with different
standard conditions is not actually an acceptance, but rather is a rejection and
counteroffer.
--二者适用会造成不同的后果
 “In order for the contract to exclude the CISG, it must include language which
affirmative states the CISG does not apply.”—没有明确拒绝的 CISG 就会 Apply
---In tension with the party autonomy;
 CISG is the applicable law; The parties’ places of business are of different states, and
they are both CISG’s contracting states.
 为 什 么 不 适 用 UCC ？ -CISG in the U.S. is a kind of federal law (treaty), it is
supreme than the state law.
 2) Formation of the contract;-合同何时成立
 Buyer (RTI) argues that the its purchase orders were offers and CSN’s confirmation was
acceptance; CSN argues that its confirmation constituted counter-offer.
 Rule: Article 19 of CISG;
Material alter- if the additional term impose any duty on the parties.
 [CSN’s] order confirmations stated that, “If we have offered a payment target, a
sufficient coverage by our credit insurance company is assumed. In case this cannot [be]
obtained we have to ask for equivalent guarantees or payment in advance.”
  The language did not reference any other document but rather was an independent
additional term under Article 19 of the CISG. Furthermore, the additional term was
material under CISG Article 19(3), as it related to payment terms for the goods.
 因此 CSN 的 confirmation 是 counter-offer 而不是 acceptance—对 CSN 有利
 Acceptance-The court reviews the emails, including one in which RTI noted that it had
received the order confirmations and that CSN should “please proceed with the manufacture
of these plates.
 Holding: Article 18(1) of the CISG provides that “A statement made by or other conduct
of the offeree indicating assent to an offer is an acceptance.” RTI’s acceptance of CSN’s
counteroffer with respect to purchase order is evident from the email exchange.

9. Electronic Contracting: Shrinkwrap, Clickwrap and Browsewrap Terms

a. Nicosia v. Amazon.com, Inc. (U.S. Court of Appeals for the Second Circuit 2016) 亚马逊上
售卖含有禁止物质的减肥药，被 FDA 叫停后停止售卖，但是没有告知消费者；网站首
页上在注册时有强制的仲裁条款

10. Promise as a Consideration Substitute

 Promissory Estoppel-允诺人相信对方将由于信赖其允诺做出某项实质性的作为或不作
为，所受允诺人确实因此做出某项作为或不作为，且做出的允诺不得否定或取消，以
免给对方造成损害。
 Restatement 的要求—要有 promise + detriment reliance
例外—charitable/Marriage—the promise itself is enough
Restatement (Second) of Contracts Section 90

Promise Reasonably Inducing Action or Forbearance

(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.
--dealing with detrimentcould be established by action or forbearance
 whether the reasonableness of the reliance is relevant to the question;--when the promise is
too good to be true?//—thinking about both parties perspective; if it is a joke, it is not a
promise (for Pepsi)
 比如说 incurred too much detriment that does not comply with the detriment;--unreasonable
(2) A charitable subscription or a marriage settlement is binding under Subsection (1) without
proof that the promise induced action or forbearance.
---it is a departure from promissory estoppelthe only thing that make the promise estopped is
the promise itself, no detriment reliance (action or forbearance) required.
---rejected by most jurisdictions
That will make the promisor to be very cautious when making a too-easy-to-enforcable-promise to
a charitable organization; “Maybe I will never talk to the charitable organization”
a. Ricketts v. Scothorn (Supreme Court of Nebraska 1898) 祖父承诺给孙女钱让她不工作，
 孙女辞职
Holding: there is an equitable estoppel.
 重要的是爷爷有没有想要这个孙女辞职的意图
 Having intentionally influenced the plaintiff to alter her position for the worse on the
faith of the note being paid when due, it would be grossly inequitable to permit the maker,
or his executor, to resist payment on the ground that the promise was given without
consideration.
 “Reasonably expect”—Intent matters— 如 果 祖 父 没 有 让 她 辞 职 的 意 愿 — 就 没 有
reasonable expectation;会影响结果。
 后 来 孙 女 又 找 到 了 工 作 — reducing the damages; it is a kind of fact relevant to the
calculating of damages;--但是孙女还是可以 establish the argument of promissory estoppel;
 如果说这个孙女没有辞职，然后祖父 never pays—可不可以 apply promissory estoppel?
 No. Under Section 90, there is no detriment she had suffered on reliance of the promise.
 What are the outcomes?— 辞 职 了 就 有 remedy; 每 辞 职 继 续 努 力 工 作 却 得 不 到
remedy?
 Policy Choice—disappointment is not detriment;at least allow the remedy when
suffered the detriment;
 这 个 法 院 也 不 承 认 charitable organization 的 例 外 ， 而 是 在 该 种 情 形 下 将 其 作 为 有
consideration.
b. Hoffman v. Red Owl Stores, Inc. (Supreme Court of Wisconsin 1965) 面包店主人想加盟，
在加盟商的指示和保证下卖掉面包店，但最后加盟商增加了加盟费，没有达成和约
创 造 了 一 个 one-sided obligation 的 情 况 — use reliance to bound the Red Owl into the
promise; While Hoffman could walk away freely;--有些不公平
原被告之间有很长时间的协商（很奇怪为什么没有 contract）,基于加盟商的承诺，原告卖
了原先的面包店，后来加盟商增加了加盟费，没有达成和约。
Ultimately, no contract was reached because the parties could not agree on how much Hoffman
had to invest.—【preliminary negotiation】
 injustice would result here if plaintiffs were not granted some relief because of the failure of
defendants to keep their promises which induced plaintiffs to act to their detriment.
c. Mayer v. King Cola Mid-America, Inc. (Court of Appeals of Missouri, Eastern District
1983)原告在离职之后接触被告可乐公司，协商后准备入职，但是最后没有合同，被要
求辞职
【there is even no promise here】
Plaintiff agreed to work for defendant, and moved from his home in Chattanooga, Tennessee to St.
Louis.—He waited for the contract, but the contract was never entered; And Mayer was
terminated.
注意-Plaintiff recovered judgment for these expenses as prayed for in his Count II-原告在初审获
得了补偿—对于差旅费，被 termination 后的补偿。
Holding: No promissory estoppel cause of action here.
 There are three elements to be satisfied to invoke the Doctrine of Promissory Estoppel:
(1) a promise;
(2) a detrimental reliance on such promise; and
(3) injustice can be avoided only by enforcement of the promise.”
 Here, Plaintiff did not have a “promise” in the contractual sense.--> the relationship here
 would be more properly characterized as an “expectation of a promise” rather than an
accomplished fact.
 If the final form of the written contract tendered to plaintiff had not been satisfactory to
him in such matters he could have abandoned the relationship with impunity.
 为什么这里没有 promise 呢？像上一个案子一样 like Red Owl, here the partis were
engaging in preliminary negotiation; here there are concrete numbers about
payment;there is tension between the two cases.
 需要更多 information—但可以说，虽然本案中已经商讨了 payment, all the numbers,
但 是 还 没 有 commission, 只 是 open term; in open terms, there is actually no
promise?
 Moreover, even if it could be said that a promise existed here, plaintiff’s action in reliance
thereon constituted no detriment to him.
 At the time plaintiff was contacted by Ms. Leary, he was unemployed; he did not forego
continued employment. Although he moved from Chattanooga, Tennessee to St. Louis
in order to commence his duties, he recovered judgment for his moving expenses in the
court below. 他没有 give up his income;
 这里是有 detriment 的，但是因为已经被下级法院判决补偿（差旅费），所以这里
没有 Injustice
 Statute of Frauds—writing requirement on certain kinds of contracts;---E.g. a contract in
which more than one-year-obligation is included.比如说本案合同中包括期限超过一年的
服务…
 Promissory Estoppel—Exception of Statute of Frauds, could argue the writing requirement;
因为依赖 oral promise,所以可以 defeat Statute of Frauds requirements.
 无 限 期 雇 佣 合 同 -employment at will- 双 方 都 可 以 free at any time to end the
relationship;---very harsh—not subject to the writing requirement of the Statute of
Frauds;
--policy consideration—if not at will, it will let the employer be more cautious when hiring
employee, and if it could be terminated at will, although the employer will fire the employee
easier, the employee could find new jobs quicker.—that’s the trade-off.

11. Reliance as a Limitation on an Offeror’s Power to Revoke

--在传统规则下，Under classic rules—for a promise to enforceable—it needed to be supported
by the return promise/performance；
--因为 unilateral contract 的 offeree 会处在相对弱势的地位—需要得到保护
--2nd Restatement Section 45-create option contract for unilateral contract—uses part performance
as consideration—makes the offer irrevocable;
--本节课的两个 case 都是 bilateral contract 的情形;--Structural Obstacle—当总承包商 GC 在竞
标期间（没有被 award 合同），还不能拿到承包合同时，需要依赖 Sub-Contractor 的 offer
来拿到承包合同；这期间 GC 处于一个非常不利的地位；Drennan 通过 create a new promise
—which is irrevocable 来保护 GC 的信赖利益；
 上节课针对的是 consideration 完全不确定的情况;--合同不明确—创造 consideration 就可
 本 节 课 针 对 GC 面 临 的 structural obstacle— 运 用 GC 对 于 Sub-Con original offer 的
reliance 来 create a new promise—the offer is irrevocable; 用 以 解 决 delay acceptance
(consideration)的问题；（original offer 的 consideration 就是 acceptance,但是在 General
 Contract 被 award 之前无法有 acceptance—没有 contract）
 The court looks for the prompt acceptance when the GC would be awarded the contract;
 Option Contract: offeree’s option-complete performance/walk away; Offeror has the
one-sided obligation;
※ What circumstance?--Promisee could not accept right away—their acceptance needs
performance
※ 必须 in writing and signed by the offeror.
 The courts are implying Option Contract—based on policy reasons not come from the
parties;
 Rationale under Section 45 of 2nd Restatement: the promise is volnarable—protect
themusing Option Contracttreating part performance as consideration;
 Open Contract 的实质—在 offeree 无法立即 accept 的时候，use reliance to create new
promisein the form of option contractmake the original offer irrevocableto protect the
offeree; 在 waiting period 时保护 GC
 In a unilateral contract—based on the option contract on consideration—the part
performance is consideration;
 In a bilateral contract—based on reliance—use the reliance created a new promise;(the
reliance is the consideration)--makes it irrevocable;
 Option Contract is just the second promise which makes the original contract
irrevocable;
Restatement (Second) of Contracts Section 87 Option Contract

(1) An offer is binding as an option contract if it

(a) Is in writing and signed by the offeror, recites a purported consideration for the making of the
offer, and proposes an exchange on fair terms within a reasonable time; or
(b) Is made irrevocable by statute.
--could apply to both Bilateral contract or Unilateral contract
(2) An offer which the offeror should reasonably expect to induce action or forbearance of a
substantial character on the part of the offeree before acceptance and which does induce such
action or forbearance is binding as an option contract to the extent necessary to avoid
injustice.
 When the original offer has consideration; but the firm offer did not?
 The consideration is the acceptance, but the GC needs to wait; But the reliance creates a
second, new promise—to hold the offer open—make the offer irrevocable—to overcome the
structural obstacle (Structural Obstacle—GC needs to wait, they cannot immediately
accept;)
--Basically restating the Drennan rule;
 和 Section 90 的关系
 just like section 90—uses reliance to enforce promise
 87 (2) uses reliance to creating new (second) promiseto hold the offer open;
 Section 90 is more general;
 Section 87 is narrower;(General Contractor and Sub-Contractor)
 They both wants to protect 脆弱的 party; Both use option contract;
Firm Offer—UCC limit the scope of consideration—Firm offer does not need consideration;
在 这 两 个 case 中 ， 两 个 General Contractor-Promisee to the sub-contractor/supplier 都 不 能
accept right away—GCs are volnaruble; in need of protection;
a. James Baird Co. v. Gimbel Bros., Inc. (U.S. Court of Appeals for the Second Circuit 1933)
承包商竞标买油毡--【Bilateral Contract】
 【本案中 offer could be withdrawn】
 Judge Hand 认为，when GC failed to protect itself, the court should not go ahead and do it;
原告本可以出价（deposit）来获取一个 option contract, 但是它没有保护好自己；在这
样 的 情 况 下 ， the court should not step in and be the one to protect the General
Contractor;
 Promissory Estoppel—only applies to Charitable; Block application of section 90;
 Distinction between a promise and an offer;--后来在 Drennan 中认为 an offer is a promise;--
不再区分；
三个 Issue:
1. Whether there is a valid contract formed; (whether there is an acceptance)
Holding: No, Contractor's placing of successful bid for construction work, based, as to linoleum,
upon prices quoted in merchant's offer of prices for “prompt acceptance after general contract has
been awarded,” held not to create binding contract to supply linoleum, where offer was withdrawn
before contractor gave notice of acceptance.
 是否原告在投标时使用 offer 中的报价构成 acceptance?—No
 It seems entirely clear that the contractors did not suppose that they accepted the offer merely
by putting in their bids.
 If, for example, the successful one had repudiated the contract with the public authorities
after it had been awarded to him, certainly the defendant could not have sued him for
breach.”因为如果原告在竞标成功后拒绝与政府签订合同，被告也不能以此为原因诉原
告 breach of contract; 如果原告破产了，被告也不能 sue the estate;
2. Whether the D could be held under the doctrine of promissory estoppel;
Holding: No, Merchant who withdrew offer to contractor of prices for linoleum after contractor
had made bid on basis of prices offered, but before communication of acceptance, held not liable
in damages under doctrine of “promissory estoppel”
3. Whether the offer could be deemed as an option.
Holding: No, Merchant's offer to contractor of linoleum at specified prices for prompt acceptance
after construction contract should be awarded, held not to give contractor option to accept
linoleum at quoted prices if bid was successful.
b. Drennan v. Star Paving Company (Supreme Court of California 1958) 总承包商依赖分包
商的价格竞标—The offer is irrevocable;
 Draw an analogous analysis to Bilateral contract from the Option Contract in unilateral
contract;
Analysis: There is no evidence that defendant offered to make its bid irrevocable in exchange for
plaintiff’s use of its figures in computing its own bid. Nor is there evidence that would warrant
interpreting plaintiff’s use of defendant’s bid as the acceptance thereof[.]”
—没有 acceptance—No contract
“Plaintiff contends, however, that he relied to his detriment on defendant’s offer and that
defendant must therefore answer in damages for its refusal to perform. (Promissory Estoppel)
 D’s offer constituted a promise to perform on such conditions as were stated expressly or by
implication therein or annexed thereto by operation of law;
 Rule: Comment b of Section of the Restatement-main offer includes as a subsidiary
promise, necessarily implied, that if part of the requested performance is given, the offeror
will not revoke his offer, and that if tender is made it will be accepted. Part performance or
tender may thus furnish consideration for the subsidiary promise. Moreover, merely acting in
justifiable reliance on an offer may in some cases serve as sufficient reason for making a
promise binding (see § 90)-对于 unilateral contract
 Whether implied in fact or law, the subsidiary promise serves to preclude the injustice that
would result if the offer could be revoked after the offeree had acted in detrimental
reliance thereon. Reasonable reliance resulting in a foreseeable change in position
affords a compelling basis also for implying a subsidiary promise not to revoke an offer
for a bilateral contract.
 The absence of consideration is not fatal to the enforcement of such a promise. It is true
that in the case of unilateral contracts the Restatement finds consideration for the implied
subsidiary promise in the past performance of the bargained-for exchange, but its reference
to section 90 makes clear that consideration for such a promise is not always necessary.”
 “Reasonable reliance serves to hold the offeror in lieu of the consideration ordinarily required
to make the offer binding.”
 It bears noting that a general contractor is not free to delay acceptance after he has been
awarded the general contract in the hope of getting a better price.—Bid Shopping
 考 虑到 会变 成一 个 one-sided obligation 的情 况 GC is not allowed to walk away
either; it is not one-sided obligation actually; 法院 disapprove the bid shopping;
 Application: When plaintiff used defendant's offer in computing his own bid, he bound
himself to perform in reliance on defendant's terms. Though defendant did not bargain for
this use of its bid neither did defendant make it idly, indifferent to whether it would be used
or not.
 The lower the subcontract bid, the lower the general contractor's bid was likely to be and the
greater its cnance of acceptance and hence the greater defendant's chance of getting the
paving subcontract. Defendant had reason not only to expect plaintiff to rely on its bid but
to want him to.

12. Restitution in the Absence of a Promise—Pure Restitution

准合同--注重分析 bargaining cost
High-bargain cost—it would be very hard for one party to bargain with other;
e.g. in emergency situations 例如：在外面突然倒下，有救护车来抢救；
--这样有助于 the party to argue implied contract in fact/law
--但是急救 hypo 下，法院应该如何认定呢？
Low Bargaining cost---it would be easy for the parties to bargain, but they did not;
---a court is not willing to recognize a implied contract in fact/law;
---在这种情况下，法院不愿意认定 implied contract in fact/Quasi contract;
Restatement (Third) of Restitution Section 1 Comment d
d. Benefits conferred. Restitution is the law of nonconsensual and non-bargained benefits in
the same way that torts is the law of nonconsensual and non-licensed harms. Both subjects
deal with the consequences of transactions in which the parties have not specified for
themselves what the consequences of their interaction should be. The law of torts identifies
those circumstances in which a person is liable for injury inflicted, measuring liability by the
extent of the harm; the law of restitution identifies those circumstances in which a person is
liable for benefits received, measuring liability by the extent of the benefit.
--Commercial case—something resembling agreement;
--nonconsensual—the parties arguing Unjust Enrichment are going to argue something like
agreement, but not an agreement;成立不当得利要求 one party is being aware of the benefit,
and they accepted (welcomed) it;
Restatement (Third) of Restitution Section 2 Comment d—自愿行为不受准合同的限制
a. Benefits voluntarily conferred. Instead of proposing a bargain, the restitution claimant first
confers a benefit, then seeks payment for its value. When this manner of proceeding is
unacceptable-as it usually is, if the claimant neglects an opportunity to contract--a claim
based on unjust enrichment will be denied.
The limitation of $ 2(3) is traditionally expressed by denying restitution to a claimant
characterized as “officious," an “intermeddler, or a "volunteer” This section states the
same rule, substituting a functional explanation for the familiar epithets. Because contract is
strongly preferred over restitution as a basis for private obligations (see Comment c),
restitution is not usually available to a claimant who has neglected a suitable opportunity to
make a contract beforehand.
---这一条就是在说 low bargaining power—如果一方曾有机会订立合同但并未订立，那
么不能成立不当得利；
自愿给予的利益。归还请求人没有提出讨价还价，而是首先提供一种利益，然后
寻求对其价值的支付。当这种程序方式不可接受时——通常情况下，如果申请人忽略
了签订合同的机会——基于不当得利的申请将被拒绝。
传统上，$2(3)的限制是通过拒绝归还被描述为“好管闲事”，“干涉者”或“志
愿者”的索赔人来表达的。本节陈述了同样的规则，用一个功能性的解释来代替熟悉
的称谓。因为作为私人义务的基础，合同比归还更受欢迎(见评论 c) ，所以对于那些
忽略了一个合适的机会来预先订立合同的索赔人来说，归还通常是不可行的。
 Contract implied in fact v. contract implied in law
a. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc.
(District Court of Appeal of Florida 1997) 原告是分包商，被告是 property owner ( 花钱请
人干活)；原告没有收到付款，总承包商（原告的合同相对方）破产，原告诉被告不当
得利；
原告分包商没有收到总承包商的付款；被告 landowner 付给总承包商的价款少于总价款；
总承包商破产；原告与总承包商有合同关系；原告与被告 landowner 没有 express contract;
Mechanic’s lien:建筑物上优先权；技工留置权；--为使对建设、改造、维修建筑物提供劳动、
服务和材料的费用优先受偿；针对 owner
Issue: could the P-Subcontractor recover from D under a quasi contract theory?—No, remand for
a new trial;
 Rule: Contract implied in fact” is one form of enforceable contract; it is based on tacit 推定
的；默示的 promise, one that is inferred in whole or in part from parties' conduct, not solely
from their words.—It is from the parties, not from the court; 不是 legal fiction;
 Where an agreement is arrived at by words, oral or written, the contract is said to be
‘express’ [. . .] A contract implied in fact is not put into promissory words with sufficient
clarity, so a fact finder must examine and interpret the parties’ conduct to give definition
to their unspoken agreement.
 Common examples of contracts implied in fact are where a person performs services
at another’s request, or ‘where services are rendered by one person for another without
his expressed request, but with his knowledge, and under circumstances’ fairly raising
the presumption that the parties understood and intended that compensation was to be
paid.”
 The enforceability of this obligation turns on the implied promise, not on whether the
defendant has received something of value.
 A contract implied in fact can be enforced even where a defendant has received
nothing of value.---Broder Definition
 Contract implied in law, or quasi-contract, is not based upon finding, by process of
implication from facts, of agreement between parties; contract implied in law is legal fiction
—(法律拟制，实质上是 remedy come from the court, there is no contract;), obligation
created by law without regard to parties' expression of assent or by their words or conduct.
The fiction was adopted to provide a remedy where one party was unjustly enriched,
where that party received a benefit under circumstances that made it unjust to retain it
without giving compensation.
 Where the defendant has received something of value, or has otherwise benefitted from
the service supplied, recovery under a quasi contractual theory may be appropriate.
 Different terms used to refer to a contract implied in law
quasi contract/unjust enrichment/restitution/constructive contract/quantum meruit
 Quasi-Contract Cause of Action
The elements of a cause of action for a quasi contract are that:
(1) the plaintiff has conferred a benefit on the defendant;
(2) the defendant has knowledge of the benefit;
(3) the defendant has accepted or retained the benefit conferred and
(4) the circumstances are such that it would be inequitable for the defendant to retain the
benefit without paying fair value for it.
 Sub-contractor 证明 enrichment was unjust 的 2 elements:
1) The subcontractor had exhausted all remedies against the general contractor and still
remained unpaid.—穷尽救济依旧没有得到 payment
2) the owner had not given consideration to any person for the improvements furnished
by the subcontractor.—Owner 没有给付任何对价
 问题：穷尽所有救济是否要求原告不仅穷尽对 GC-其合同相对人的救济，还要穷尽对
owner 的其他救济?—本案中表现为 fail to perfect the lien(对 owner)(没有主张留置权)后
是否算满足了“穷尽所有救济”
 不是说需要穷尽“所有”救济—相关救济（lien）只是对 sub-contractor 的一种保护
不能阻碍其他的救济(unjust enrichment) You don’t need to exhaust “all the remedies”,
 but the necessary one;---the mechanic’s lien should not bar the remedy of claiming unjust
enrichment;
 Florida's construction lien statute does not purport to be the exclusive remedy for a
lienor, such as a subcontractor, against an owner.—意思是 lien 不 bar 其他的 remedy
like unjust enrichment;
 The contractor with whom the subcontractor is in privity is always the pocket of first
resort. The owner can be liable only where it received a windfall benefit, something
for nothing.
Holding: Allow a subcontractor's recovery in quasi contract against an owner, even where the
subcontractor has failed to perfect its construction lien.—满足这个要求
 As we have observed, where an owner has given consideration for the subcontractor's
work by paying out the contract price for the work, an unpaid subcontractor's claim
that the owner has been unjustly enriched must fail.
 Remand for a new trial-- on whether Commerce made payment to or on behalf of its general
contractor covering the benefits Equity conferred on the subject property.
 先搞清 What was the market value of the work done by P?—然后再看 owner 给付的够不
够；本案中 Owner 给付的所有款项加起来超过了他们应付的所有款项,已经没有 unjust
enrichment;
 如果 owner 只付给了 GC 一部分承包款，不是全部，那么这部分给付到底是付给了 GC
还是 sub-contract?
General idea—do not want Commercial to pay twice;--exercise court’s discretion to determine

13. Promissory Restitution

先前已经得到了 value,然后做出了承诺；
Restatement (Second) of Contracts Section 86
Promise for Benefit Received
(1) A promise made in recognition of a benefit previously received by the promisor from the
promisee is binding to the extent necessary to prevent injustice.
(2) A promise is not binding under Subsection (1)
(a) if the promisee conferred the benefit as a gift or for other reasons the promisor has not been
unjustly enriched; or
(b) to the extent that its value is disproportionate to the benefit
--proportionality; the court would think that- what should have been the value the promisor
received?
--inviting the court to make the adjustment to the provisions —to make the value
proportionate to the benefit;
Restatement (Second) of Contracts Section 86 Comment a
a. "Past consideration; "moral obligation." Enforcement of promises to pay for benefit received
has sometimes been said to rest on “past consideration or on the "moral obligation of the
promisor, and there are statutes in such terms in a few states. Those terms are not used here:
“past consideration" is inconsistent with the meaning of consideration stated in $ 71,
and there seems to be no consensus as to what constitutes a "moral obligation”. The mere
fact of promise has been thought to create a moral obligation, but it is clear that not all
 promises are enforced. Nor are moral obligations based solely on gratitude or sentiment
sufficient of themselves to support a subsequent promise.
--“past consideration” --it’s about future performances for the past bargains; Drafters
不喜欢这个 term;--使得 consideration 的定义变得 confusing;
--the moral obligation standing alone should not be the sole basis for the supporting the
promise.
--但是到底什么才是 basis for the enforcing of promise—法院们也没有定论—以下的两
个 case 显示出了不同的 approaches;
Restatement (Second) of Contracts Section 86 Comment b
b. Rationale. Although in general a person who has been unjustly enriched at the expense of
another is required to make restitution, restitution is denied in many cases in order to protect
persons who have had benefits thrust upon them. See Restatement of Restitution $$ 1, 2, 112.
In other cases restitution is denied by virtue of rules designed to guard against false claims,
stale claims, claims already litigated, and the like, In many such cases a subsequent
promise to make restitution removes the reason for the denial of relief, and the policy
against unjust enrichment then prevails. Compare Restatement, Second, Agency 462 on
ratification of the acts of a person who officiously purports to act as an agent, Enforcement of
the subsequent promise sometimes makes it unnecessary to decide a difficult question as
to the limits on quasi-contractual relief.
--the existence of the promise resolves the problems regarding the “knowledge, awareness,
acceptance…” which was required in supporting restitution(上节课提到的不当得利的要素)
 What are the “moral obligations” come from?
 “I have received a benefit, and because of that I feel it is morally obligated to do
something in return for the benefit.”
 The consideration requirement
a. Mills v. Wyman (Supreme Court of Massachusetts 1825) 成年儿子从海上归来突发急病，
被好心护士照料，后死亡；其父亲为了感谢护士写信承诺支付相关费用；后反悔
要注意 the court are using Contract language or Restitution language.—可以显示出不同法院对
于这个问题的倾向；
 No moral obligation from the father to the grown-up sonNo consideration to the promise
(父子关系中没有 moral obligation to support)Not enforceable
 Contract law analysis—因为当时 restitution law has not been developed well;
 是 否 可 以 适 用 implied contract in fact—the question will be—How high the bargaining
power would be? We should see the capacity of the son—如果这个儿子病的太厉害根本没
有机会 bargain—implied contract in fact;但是如果这个儿子有 bargaining power—可能不
好支持 implied contract in fact;
 There was no consideration for this promise, except what grew out of the relation which
subsisted between Levi Wyman and the defendant.
Holding: Not Enforceable
 Rule: The rule that a mere verbal promise, without any consideration, cannot be enforced by
action, is universal in its application, and cannot be departed from to suit particular cases in
which a refusal to perform such a promise may be disgraceful.”
—显示了 very rigid consideration rule—第一次合同法重述//但第二次重述不采用如此
rigid 的规则—debate about predictability and flexibility;
 The general position, that a moral obligation is a sufficient consideration for an express
promise, is to be limited in its application, to cases where a good or valuable
consideration has once existed.
 The universality of the rule cannot be supported, and that there must have been some
pre-existing obligation (bargains in the past), which has become inoperative by
positive law, to form a basis for an effective promise.—这里说的是以下的情形-自然
之债没有强制执行力，但通过承诺人的承诺使之有强制执行力；
 The cases of debts barred by the statute of limitations（超出诉讼时效之债）, of debts
incurred by infants (无民事行为能力人承诺之债 -成年之后再承诺？), of debts of
bankrupts （ 破 产 之 债 ） , are generally put for illustration of the rule.--> Express
promises founded on such pre-existing equitable obligations may be enforced; there
is a good consideration for them; they merely remove an impediment created by law to
the recovery of debts honestly due, but which public policy protects the debtors from

being compelled to pay.-->在这些情形中本身就有对价- In all of these cases there is a

moral obligation founded upon an antecedent valuable consideration. These promises
therefore have a sound legal basis.
 Moral obligation alone is not enough for the enforcement of the promise, it needed
to be plus the bargain in the past which is made inoperative by positive law;
 The court is trying to respect the doctrine虽然现在没有 consideration,但至少有
bargain in the past;the court did not want to discharge the doctrine;
 It is only when the party making the promise gains something, or he to whom it is made
loses something, that the law gives the promise validity
 Pre-existing obligation—between the father and the stranger;No bargain in the past;
这个父亲在之前没有要求这个护士照顾他儿子Because there is no bargain in the
past, the moral obligation alone would not stand solely to support the enforcement of
the promise;--这是不支持原告的主要原因
 The case is “a strong example of particular injustice sometimes necessarily resulting from the
operation of general rules.”
 The father had been “influenced by a transient feeling of gratitude”
 如 果这 个儿 子是 未成 年呢 ？- 结果 是否 会不 同？ -在 Webb rule 下 ，there will be a
stronger argument for the stranger to arguing the “material benefit”;在这里不影响，
因为本案中主要的关系是父亲和救他儿子的陌生人之间的 ---no legal obligation in the
past
 “Material benefit” rule
b. Webb v. McGowin (Court of Appeals of Alabama 1935) 工人为了不让水泥掉下去砸到路
人自己摔下墙导致终身残疾；路人为感谢承诺照顾工人余生--每周给钱；八年后路人死
掉，路人继承人不继续付款enforceable;
 No longer looking for the “bargain in the past”—turn to the existence of “material
benefit”—Intersection of contract law and the restitution law;
 Could argue implied contract in fact here—a rescuer circumstance;
怎么 argue?—本案中 very high bargaining cost—emergency, they do not have the time to
bargain—a tacit agreement—just like the doctor saving the patient;
What is the legal significance of the promise?---can we find consideration of the promise?--
 >Moral Obligation + Material Benefit = enforceability of the promise;
 Holding: the promise is valid and supported with consideration;
 Rule: It is well settled that a moral obligation is a sufficient consideration to support a
subsequent promise to pay where the promisor has received a material benefit, although
there was no original duty or liability resting on the promisor.
 Benefit to promisor or injury to promisee is sufficient consideration for promisor's
agreement to pay.

14. The Parol Evidence Rule

 Integration clause (1941) A contractual provision stating that the contract represents the
parties' complete and final agreement and supersedes all informal understandings and oral
agreements relating to the subject matter of the contract. — Also termed merger clause;
entire-agreement clause.
 Integrated Agreement-this writing represent the entire agreement, and nothing else would
be recognized as a part of the agreement;
Merger Clause-confer that this agreement is an integrated agreementtalking about
prior agreements, contemporaneous agreements, not the future agreement;
Extrinsic Evidence—parol evidence;
“four-corner of the writing”
 General Idea—Extrinsic Evidence could not be used to contradict or add or supplement
the writing agreement; it could only be used to interpret the writing agreement;
 Major question is that—Do we have an integrated agreement? Does the extrinsic
evidence used to interpret the writing agreement?
 If it is not an integrated agreement, the extrinsic evidence could supplement the
agreement;--在不是 integrated agreement 的情况下才可以 supplement.
 There are many exceptions to the parol evidence rule;
 UCC adopt different rule compared with the common law;
UCC- it okay to use the extrinsic evidence to not only interpret, but also supplement the
writing agreement;--a departure from the common law approach;
 Plain Meaning Approach (Traditional)—before the court could even look at the extrinsic
evidence, the court would look at the language of the writing; if its language does not show
any vagueness, the court would not look to the extrinsic evidence.
Modern Approach criticizes the traditional approach—there are language might seem to be
clear at its face, but contain implied vagueness;a court should look all the relevant
evidence.
--so long as the extrinsic evidence is used to interpret the language, it is admissible, even
if the language of the writing agreement is very clear;
 前两个案子其实都是在说 side agreement/collateral agreement 的问题—look to the scope
of the integrated agreement;
 Mitchell case-Dissenting-contract covers only limited field 其实是在说 covers only limited
subject matter那么就是说，还可能有其他不是这个 subject matter 的 agreementif it is
not a part of the integrated agreement/the scope of the integrated agreement is limited, it
could vary the principal agreement;
 如果没有 merger clause,可不可以用 Mitchell case 中的三个 condition;--这三个 elements
适用于已经有 integrated agreement ，然后判断 collateral agreement 是否可以 vary the
integrated agreement 的情况；(和 traditional Parol Evidence Rule 的适用不同)
a. Mitchell v. Lath (Court of Appeals of New York 1928) 原告买农场，条件是移除对面土地
上的冰房子，被告口头答应；农场买卖合同中未出现相关内容；
本案中的问题也是 should the collateral agreement be the essential part of the principal
agreement?
We can use the ice-house agreement to vary the conveyance agreement if it satisfy the
three conditions;--但是没有满足.
Focus on the closeness of the collateral contract agreement and the written agreement;
背后的逻辑是，如果是是和这个 principal transaction 有关的问题，应该放入 writing
agreement 之中；
 Rule: Parol Evidence RuleOral testimony even if admitted will not control the written
contract unless admitted without objection. It applies to attempts to modify such a
contract by parol.
 The parol evidence rule “does not affect a parol collateral contract distinct from and
independent of the written agreement”
 判断是否是一个 separate agreement-collateral contractOne agreement is entered into
wholly or partly in consideration of the simultaneous agreement to enter into
another, the transactions are necessarily bound together. . . . Then if one of the
agreements is oral and the other is written, the problem arises whether the bond is
sufficiently close to prevent proof of the oral agreement.
 这个其实不是 parol evidence ruleSuch an oral agreement as the present is received to
vary (改变) the written contract at least three conditions must exist：
 (1) the agreement must in form be a collateral one; 在形式上具有附带性
 (2) it must not contradict express or implied provisions of the written contract;
与书面合同的明示或默示条款不冲突
 (3) it must be one that parties would not ordinarily be expected to embody in the
writing; or put in another way, an inspection of the written contract, read in the
light of surrounding circumstances must not indicate that the writing appears “to
contain the engagements of the parties, and to define the object and measure the
extent of such engagement.” Or again, it must not be so clearly connected with the
principal transaction as to be part and parcel of it. 不是原来书面合同中的一部
分
 How closely bound to the contract is the supposed collateral agreement is the
decisive factor in each case.
 Reasoning: Majority Opinion 认为没有满足第二个(可能没满足)和第三个条件
 在书面合同规定的卖方义务之下Are they to do more? Or is such a claim inconsistent
with these precise provisions? It could not be shown that the plaintiff was to pay $500
additional. Is it also implied that the defendants are not to do anything unexpressed in the
writing?
 条件(3) The presence of the ice house, even the knowledge that Mrs. Mitchill thought it
objectionable would not lead to the belief that a separate agreement existed with regard
to it. Were such an agreement made it would seem most natural that the inquirer should
 find it in the contract. Collateral in form it is found to be, but it is closely related to the
subject dealt with in the written agreement – so closely that we hold it may not be
proved.”认为 the oral agreement 可能会 contradict the writing agreement
 Dissenting: 条件(2) (3)都满足
 By the oral agreement the plaintiff seeks to hold the defendants to other obligations to be
performed by them thereafter upon land which was not conveyed to the plaintiff. The
assertion of such further obligation is not inconsistent with the written contract
unless the written contract contains a provision, express or implied, that the
defendants are not to do anything not expressed in the writing.--> 合 同 中 没 有
integration clause
 The subject-matter of the written contract was the conveyance of land. The contract
was so complete on its face that the conclusion is inevitable that the parties intended to
embody in the writing all the negotiations covering at least the conveyance.
 I do not think that in the written contract for the conveyance of land here under
consideration we can find any intention to cover a field so broad as to include prior
agreements, if any such were made, to do other acts on the property after
stipulated conveyance was made.
b. Nelson v. Elway (Supreme Court of Colorado 1995) 对原告经营有否决权的 GMAC 要求原
告卖经销商时不得达成补偿协议；买方与卖方公司口头承诺补偿协议-后不履行；
异议意见 - 虽然书面合同非常完整，并且承认 Merger Clause ；但是鉴于本案是 summary
judgment process; 认 为有 fact dispute on whether the extrinsic evidence could establish a
totally separate agreement different from the subject matter of the original writing
document;
Facts: The involving “service agreement” under which the sale price would be dropped and
Nelson would get a fee of $50 per car sold over the ensuing seven years.—is made under oral
agreement.
 有 merger clause
Issue: whether the merger clauses in the Buy-Sell Agreements precluded the consideration of
evidence that the parties intended the Service Agreement to be part of the overall agreement to sell
the dealerships—Yes
 Rule: the merger clauses preclude consideration of extrinsic evidence to ascertain the
intent of the parties.--> the terms of a contract intended to represent a final and
complete integration of the agreement between the parties are enforceable, and extrinsic
evidence offered to prove the existence of prior agreements is inadmissible.—very
broad;
 Even when extrinsic evidence is admissible to ascertain the intent of the parties, such
evidence may not be used to demonstrate an intent that contradicts or adds to the intent
expressed in the writing.
 As a lawyer, the best argument is that the extrinsic evidence is not going to contradict
or add the intent expressed in the writing, it is just serve to explain or interpret the
agreement;
 “Where, as here, sophisticated parties who are represented by counsel have consummated a
complex transaction and embodied the terms of that transaction in a detailed written
document, it would be improper for this court to rewrite that transaction by looking to
 evidence outside the four corners of the contract to determine the intent of the parties.”
CISG Article 8—No Parol Evidence Rule

(1) For the purposes of this Convention statements made by and other conduct of a party are
to be interpreted according to his intent where the other party knew or could not have been
unaware what that intent was.—subjective knew—the party intent;
(2) If the preceding paragraph is not applicable, statements made by and conduct of a party
are to be interpreted according to the understanding a reasonable person of the same kind as
the other party would have had in the same circumstances.---objective approach
(3) In determining the intent of a party or the understanding a reasonable person would
have had, due consideration is to be given to all relevant circumstances of the case
including the negotiations, any practices which the parties have established between
themselves, usages and any subsequent conduct of the parties.—addressing extrinsic
evidence, as long as the evidence is relevant, it is admissible;
--even if it contradict with the writing agreement; BUT the evidence should be coherent,
compelling;
c. MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D’Agostino, S.P.A. (U.S. Court of
Appeals for the Eleventh Circuit 1998) 原被告贸易会上见面，被告口头承诺打折；书面
合同中未包括打折条款；原告拒绝付款，要求打折；
【CISG 下 Parol Evidence Rule 是否适用—No】
Because there is no parol evidence rule, the parties could make the argument;
如果适用 CISG 的合同里面有 Merger Clause-那么 extrinsic evidence 还适用吗？
--it is an open question; formatting issueThe party is free to reject all or part of the
application of the CISGthe party needs to be clear in rejecting the CISG ( 一定要清楚的说
reject CISG article 8 之类的)；如果只是有 Merger Clause，法院可能不好认定
 如果适用 CISG 碰到了 merger clause—可以 argue 没有 clearly opt out the application of
CISG—thus the extrinsic evidence could be used by the court.
 Rule & Rationale: Given Article 8(1)’s directive to use the intent of the parties to
interpret their statements and conduct, article 8(3) is a clear instruction to admit and
consider parol evidence regarding the negotiations to the extent they reveal the parties’
subjective intent.”
 the drafters of the CISG were comfortable with the concept of permitting parties to rely
on oral contracts because they eschewed any statutes of fraud provision and expressly
provided for the enforcement of oral contracts.
 Courts applying the CISG cannot . . . upset the parties’ reliance on the Convention by
substituting familiar principles of domestic law when the Convention requires a different
result.”
 “[T]o the extent parties wish to avoid parol evidence problems they can do so by including a
merger clause in their agreement that extinguishes any and all prior agreements and
understandings not expressed in the writing

15. Principle of Interpretation I

 Every contract “contains far more terms than the ones the parties have actually discussed.—
default terms
 “When interpreting contracts, a tension frequently exists between ‘objective’ and
‘subjective’ meanings of certain terms. When two parties have expressed an agreement in
words, one approach is simply to enforce what they wrote as the terms would appear to an
ordinary reasonable person.”
 “Objective Approach”You may recall that formation of contracts occurs based on an
objective understanding of the parties’ actions. Objective standards value simplicity and
predictability. If the parties have used a writing, the plain language of which does not
really reflect their actual bargain, then it is the parties’ fault when they do not get the deal
they intended, and the solution is to express themselves more clearly in the future.”—只看
language 的 plain meaningit is the party’s fault not to include their actual intent.
 Subjective Approach to Contract Interpretation
The goal in the subjective approach is to carry out the ‘real’ bargain of the parties, which
may be different than what they wrote. The benefit, when this approach works correctly, is
that the parties get what they really intended. The downside, of course, is the uncertainty
inherent in proving subjective meaning.
 Plain Meaning approach—establish ambiguity first;
 如 果 一 个 contract 不 integrated, 那 么 说 明 there is a missing part of the
contract,extrinsic evidence would always be admissible to supplement; 那么 the court
would look to the extrinsic evidence to ascertain the missing part of the contract ( to
supplement, but cannot contradict)
如 果 一 个 Integrated Contract 的 language is ambiguous, then the court would
introduce the general rule—the extrinsic evidence could be used to interpret the
contract, but cannot add or modify the contract;
 Interpret the language within the “four corner”—在整个合同的语境下解释个别条款
--比如说，如果在第一个 case 中，争议条款所属的 sub-section 标题中含有—this section
is in protection of the buyer—那么可能就有利于 Buyer.
 第一次和第二次合同法重述采用了不同的 approach
 第二次合同法重述—decide innocent party and guilty party
 Objective Approach to Contract Interpretation

1st Restatement of Contracts Section 230 Comment B

When parties have assented to a writing “as the expression of the things to which they agree .
. . the terms of the writing are conclusive, and a contract may have a meaning different
from that which either party supposed it to have.—不管意图，只看 plain meaning?
--pure objective approach;

Restatement of Contracts Section 230 Illustration 1

In an integrated agreement A promises to sell, and B promises to buy certain patents. A
intends to sell only English patents on a certain invention. B understands that A promises to
sell the English, French, and American patents on the invention. If a reasonably intelligent
person at the time when the integration is made and at the place as of which the
standard of interpretation is applicable, under the circumstances accompanying its
 making, would understand the agreement to state a promise to sell the English and American
patents, but not the French patents, there is a contract and A and B are bound by that
meaning.
--not that respectful for the party’s will;
--和两方的想法都不同
 Modified Objective Approach to Contract Interpretation—combined Subjective &
Objective
Restatement (Second) of Contracts Section 201(1)
Where the parties have attached the same meaning to a promise or agreement or a term
thereof, it is interpreted in accordance with that meaning.

Restatement (Second) of Contracts Section 201(2)—combination of one party’s

innocence and the other party’s guilty.—只看 plain meaning 的话没有 ambiguity,但是如
果看显示某意图的 extrinsic evidence 就可能有 ambiguity;

Where the parties have attached different meanings to a promise or agreement or a term
thereof, it is interpreted in accordance with the meaning attached by one of them if at the time
the agreement was made
(a) that party did not know of any different meaning attached by the other, and the other
knew the meaning attached by the first party; or—一方不知道对方有不同意思；另一方明
知对方的合同意图—subjective standard;
(b) that party had no reason to know of any different meaning attached by the other, and the
other had reason to know the meaning attached by the first party.一方不可能知道；另一
方应当明知；---objective standard
 如果两方都明知对方的 different meaning 呢(两方都 guilty)？--the court might just look to
the reasonable person (objective standard)—还是要看不同 jurisdiction 采用什么方法
 Drafter 想要让 court at least choose one side;--
 Plain Meaning Approach to Parol Evidence Rule
a. W.W.W. Associates, Inc. v. Giancontieri (Court of Appeals of New York 1990) 诉讼终止条
款解释—是否双方都有权终止；
【 Plain Meaning Rule 】 — 先 看 language 是 否 clear; 再 确 定 是 否 用 extrinsic evidence 来
interpret contract
Policy Trade-offthe parties should draft the contract carefully;
本 案 中 就 算 看 extrinsic evidence, 也 会 conflict with the provision of the contract;-- 就 算 用
Modern Approach
Note p362 的 问 题 — Seller has all the extrinsic evidence, Buyer has nothing but the written
contract—But the buyer won;The written contract alone is very persuasive;
合同条款中明确注明在一些情况下 either party could terminate the contract;
但是原告却认为应当只有一方—只有原告才可以终止合同
 Rule: Plain Meaning Rule
<First Step>Before looking to evidence of what was in the parties’ minds, a court must
give due weight to what was in their contract.
Whether or not a writing is ambiguous is a question of law to be resolved by the courts.
 Parol Evidence RuleEvidence outside the four corners of the document as to what was
 really intended but unstated or misstated is generally inadmissible to add to or vary the
writing.
Extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement
which is complete and clear and unambiguous upon its face
 Thus, we conclude that there is no ambiguity as to the cancellation clause in issue, read in the
context of the entire agreement, and that it confers a reciprocal right on both parties to the
contract
 Principles of Interpretation
b. PPG Industries, Inc. v. Shell Oil Co. (Eastern District of Louisiana 1989) 卖方因为火灾无
法提供足量货物--不可抗力条款解释—Read the Grammar;
 原告认为 the phrase “reasonably beyond its control” qualifies the rest of the contract clause,
making the exculpation of Shell dependent upon whether the explosion was reasonably
beyond its control; the Court is required to determine whether reading “or” as
disjunctive would defeat the intentions of the parties, and whether the context requires
the Court to determine if a conjunctive meaning is more appropriate.
 法院拒绝
 Rule: These inquiries are necessary only if the Court were to determine as a matter of law
that the contract language is ambiguous.
 “Or” is disjunctive and, therefore, Shell is exculpated under Section 8 of the contract,
because of the explosion, regardless of whether the explosion was “reasonably beyond its
control.”
 原 告 辩 称 the term “reasonably beyond its control” modifies the enumerated events which
follow “or” in Section 8 of the contract.
 法院拒绝
 This interpretation is not in keeping with the plain grammatical meaning of the
disjunctive.
 Cite 2 cases p367—对比
 我们这里的 fire…等列举和 beyond control 是独立的—意思是不需要经历 beyond
control test;

16. Principles of Contract Interpretation II

 2nd Restatement—let the court to decide the innocent party and the guilty party.
Restatement (Second) of Contracts Section 201 Comment b
b. The problem of context. Uncertainties in the meaning of words are ordinarily greatly reduced by
the context in which they are used. The same is true of other conventional symbols, and the
meaning of conduct not used as a conventional symbol is even more dependent on its setting. But
the context of words and other conduct is seldom exactly the same for two different people , since
connotations depend on the entire past experience and the attitudes and expectations of the person
whose understanding is in question. In general, the context relevant to interpretation of a
bargain is the context common to both parties. More precisely the question of meaning in cases
of misunderstanding depends on an inquiry into what each party knew or had reason to
know, as stated in Subsections (2) and (3). See $ 20 and Illustrations. Ordinarily a party has
reason to know of meanings in general usage.
a. Frigaliment Importing Co. v. B.N.S. International Sales Corp. (S.D.N.Y. 1960)买方卖方对
合同标的“鸡”的种类产生 dispute;采用 narrower interpretation 的原告输；【Plain
meaning approach】
Forms of extrinsic evidence:

negotiations
trade usage
experts
regulatory environment
market conditions
performance
-- 是 否 不 同 种 类 的 evidence 会 be given much weight?—No, depend on the particular
content;
 Judge Friendly put the burden of production on the buyer—chicken means chicken sounds
more reasonable所以让有另外解释的人承担证明责任
 There may be no contract—但是法院没有说这个问题；--以后可以 argue;
 For the purpose of the seller, they just want to walk away;
 本案中 trade usage 和 expert testimony双方提出的相关证据 cancel each other
 Trade Usagetalking about the usage to the whole industry; Even if D is a new entrant, he
is expected to act in his due dillegence and have the constructive knowledge of the trade
usage;
但是法院并没有这样要求，而是要求原告证明 constructive knowledge;
 本案中的 reasonable person standard in different situations;//但是在讲 trade usage 时，采
用 了 actual knowledge standard;one way to harmonize is that the court adopt the
“reasonable new entrant standard”.
详情看 case brief
Rule: Plain Meaning Rule---先看 language 是否 ambiguous—yes—could use extrinsic evidence;
 证明商业惯例规则（对于一方不是本行业内人士的证明标准）：when one of the parties
is not a member of the trade or other circle, his acceptance of the standard must be made
to appear” by proving either that he had actual knowledge of the usage or that the usage is
“so generally known in the community that his actual individual knowledge of it may be
inferred.
 如 何 证 明 constructive knowledge: the usage is of so long continuance, so well
established, so notorious, so universal and so reasonable in itself, as that the presumption
is violent that the parties contracted with reference to it, and made it a part of their
agreement. (以至于当事人签订了关于它的合同，并使它成为他们协议的一部分)
采用(1st restatement approach) Pure objective approach: Defendant’s subjective intent would
not be significant if this did not coincide with an objective meaning of “chicken.”
 Analysis
 Market Conditions:最 strong 的 argument;被告进一步辩称 Defendant makes a further
argument based on the impossibility of its obtaining broilers and fryers at the 33 cents
price offered by plaintiff for the 2½-3 lbs.-->原告知道嫩鸡的价格是 35 美分，也应当知
道被告不可能以减损自己利润的方式来以 33 美分的价格销售嫩鸡；
 The court tend to have both the parties enjoy certain benefit; it should make business
sense;
“Too good to be true”—unilateral contract;但是这里不是，too good to be true is more
about the big picture, more ambiguous;
But market condition argument is more specific.
 Performance: 被告最后 rely on the conduct of the plaintiff after the first shipment原告发
现不是嫩鸡后发信函询问被告被告回复，询问以原合同价格继续发一样的货物原
告回复要求继续发货the buyer make objections, but not deny transportation;
 结 论 it is clear that defendant believed it could comply with the contracts by delivering
stewing chicken in the 2½-3 lbs. size.// Here it did coincide with one of the dictionary
meanings, with the definition in the Department of Agriculture Regulations to which the
contract made at least oblique reference, with at least some usage in the trade, with the
realities of the market, and with what plaintiff’s spokesman had said.
原告的解释也符合字典的 Meaning(objective meaning)但是没有提供足够的证据；
b. Random House, Inc. v. Rosetta Books LLC (S.D.N.Y. 2001) 作者和出版公司签订电子书出
版协议，被版权公司起诉认为其 exclusive right 包含 the right to public in the form of the
e-bookNo
The court would want to look to the whole contract want to give effect to all the articles of
the contract;
Facts: 原 合 同 内 容 : Random House had the exclusive right, within the particular territory, to
“print, publish and sell the work in book form” (emphasis added). Random House claimed that
an ebook involved publishing “in book form.” Rosetta claimed it was not “in book form.
Issue: whether the term “in book form” encompass the form of e-book;--NO
Rule: Plain Meaning Rule 判断是否 ambiguous 的 标准 contract language is ambiguous if it
is capable of more than one meaning when viewed objectively by a reasonably intelligent
person who has examined the context of the entire integrated agreement and who is cognizant of
the customs, practices, usages and terminology as generally understood in the particular trade or
business.
 What governs is the language of the contract. If the contract is more reasonably read to
convey one meaning, the party benefitted by that reading should be able to rely on it; the
party seeking exception or deviation from the meaning reasonably conveyed by the words
of the contract should bear the burden of negotiating for language that would express the
limitation or deviation. This principle favors neither licensors nor licensees.
 采用原告的解释 would make the contract superfluous

17. Contract Interpretation III

 UNIDOIT separate the interpretation of contract and the interpretation of parties’

conduct and statement;
 The lawyers and judges in each jurisdiction know more about their domestic law rather
than CISG—resistance to use CISG (MCC’s language)
 CISG 和 UNIDOIT 没 有 说 extrinsic evidence 不 能 contradict the terms in the
contract也就是说在这两个条约之下有 admit the extrinsic evidence that contradict
the language of the contract 的可能But it must be compelling;
 如果一个合同语言不模糊，那么 extrinsic evidence 怎么可能不 contradict it 呢？
Latent Ambiguity
UNIDROIT
ARTICLE 4.1(Intention of the parties)—focus on the contract
(1) A contract shall be interpreted according to the common intention of the parties.
(2) If such an intention cannot be established, the contract shall be interpreted according to
the meaning that reasonable persons of the same kind as the parties would give to it in the
same circumstances.

ARTICLE 4.2—focus on the conduct and statement—coming from one party (normally
there will be extrinsic evidence)
(Interpretation of statements and other conduct)
(1) The statements and other conduct of a party shall be interpreted according to that
party's intention if the other party knew or could not have been unaware of that
intention.
(2) If the preceding paragraph is not applicable, such statements and other conduct shall be
interpreted according to the meaning that a reasonable person of the same kind as the
other party would give to it in the same circumstances.— 站 在 行 为 相 向 方 的
reasonable person 角度
--follow CISG, innocent party/guilty party;

ARTICLE 4.3(Relevant circumstances)—like CISG 8(3)—rejecting parol evidence rule;

In applying Articles 4.1 and 4.2, regard shall be had (very strong language) to all the
circumstances, including
(a) preliminary negotiations between the parties;
(b) practices which the parties have established between themselves;
(c) the conduct of the parties subsequent to the conclusion of the contract;
(d) the nature and purpose of the contract;
(e) the meaning commonly given to terms and expressions in the trade concerned;
(f) usages.
---There is overlap between e and f—look to the common meaning within the particular
industry;
---如果有 Merger Clause 呢？--is the question of whether they opt out the article—但是如果
想排除适用，应有 clear language suggesting it;

ARTICLE 4.4 (Reference to contract or statement as a whole)

Terms and expressions shall be interpreted in the light of the whole contract or statement in
which they appear.

ARTICLE 4.5(All terms to be given effect)

Contract terms shall be interpreted so as to give effect to all the terms rather than to deprive
some of them of effect.

ARTICLE 4.6 (Contra proferentem rule)—discretionary;

 If contract terms supplied by one party are unclear, an interpretation against that party is
preferred.
一些 jurisdiction limit the application to contract of adhesion;
some would willing to apply this rule
what if the extrinsic evidence support the drafting party?—the court would not apply this
rule;
并不是说有非常明晰的适用顺序，而都是 different options of the court;//法院只会在需
要适用 Contra Proferentem Rule (very common in U.S.)
是否只有 Merchant contract 才会适用？---depend on jurisdictions;

18. Supplementing the Agreement: Implied Terms I

第一个 case---implied promise

第二个 case—good faith and fair dealing—deals with party’s discretion
 an obligation to exercise discretion reasonably and with proper motive, not arbitrarily,
capriciously, or in a manner inconsistent with the reasonable expectations of the parties.
 the Agreement provides Hanesbrands with discretionary termination rights under Section
17(a), that discretion is subject to the implied covenant of good faith and fair dealing. As
such, Hanesbrands’ exercise of any such discretion would include a promise on
Hanesbrands’ part not to act arbitrarily, irrationally or unreasonably in exercising that
discretion.
 给 予 了 discretion 的 条 款 需 要 subject to the clause of implied good faith and fair
dealingnot to exercise the discretion arbitrarily, irrationally…