Contracts—MBE Attack Sequences

Attack sequence

1. Subject matter Goods (movable things) are governed by UCC Article 2; services and land by the common law.
2. Mixed contracts Apply the predominant purpose test; the dominant element controls the whole contract.
3. Merchant status Under the UCC, ask whether a party is a merchant, which triggers special rules (firm offers, battle of the forms, implied warranty of merchantability).

Attack sequence

1. Offer An outward manifestation of present intent to contract with definite terms, giving the offeree the power of acceptance.
2. Termination of the offer Revocation before acceptance, rejection or counteroffer, lapse of time, or death, unless the offer is irrevocable.
3. Irrevocable offers Option (promise plus consideration), UCC firm offer (merchant, signed writing, up to 90 days), or a started unilateral contract.
4. Acceptance Common law mirror image rule; UCC allows a definite acceptance with additional terms.
5. Mailbox rule Acceptance is effective on dispatch; revocations and rejections on receipt.
6. Consideration Bargained-for exchange; a promissory estoppel substitute applies where there is foreseeable detrimental reliance.

Key rules

• Firm offer: merchant + signed writing + stated open period, no consideration needed, up to 90 days.
• Battle of the forms (both merchants): additional terms enter the contract unless they materially alter it, the offer limits acceptance, or objection is timely; conflicting terms knock out.

Attack sequence

1. Capacity Infancy (voidable, but liable for the reasonable value of necessaries) and mental incapacity.
2. Assent defects Misrepresentation or fraud, duress, undue influence, and mutual mistake of a basic assumption.
3. Statute of Frauds Marriage, contracts not performable within one year, land, executor promises, goods 500 or more, suretyship (MYLEGS) require a signed writing.
4. SOF exceptions Part performance, judicial admission, merchant confirmation, and specially manufactured goods.
5. Unconscionability No meaningful choice plus grossly unfair terms, judged at formation.

Attack sequence

1. Integration Decide whether the writing is partially or completely integrated (a merger clause is strong evidence of the latter).
2. Parol evidence rule Prior or contemporaneous evidence cannot contradict a final writing; it cannot even supplement a completely integrated one.
3. Exceptions Always admissible to show a defense, a condition precedent, ambiguity, or a collateral agreement.
4. UCC gap fillers Course of performance, course of dealing, and usage of trade fill and explain terms.
5. Output and requirements Enforceable with a good-faith quantity, not unreasonably disproportionate to any estimate.

Attack sequence

1. Conditions Identify express conditions (strict compliance) and constructive conditions of exchange (substantial performance).
2. Common law breach Material breach excuses the other side; minor breach still requires performance but allows damages.
3. UCC perfect tender Any nonconformity lets the buyer accept, reject, or accept in part, subject to the seller's right to cure.
4. Anticipatory repudiation A clear repudiation lets the other party sue now or await performance; on reasonable insecurity, demand adequate assurance.
5. Excuse Impossibility, impracticability (unforeseen, non-assumed, essential change), frustration of purpose, rescission, accord and satisfaction.

Attack sequence

1. Default measure Expectation damages put the nonbreaching party where full performance would have.
2. Buyer of goods Cover minus contract price, or market minus contract price, plus incidental and consequential damages.
3. Seller of goods Contract minus resale or market price; lost-volume sellers recover lost profit.
4. Limits Damages must be foreseeable, reasonably certain, and mitigated; liquidated damages must be a reasonable estimate, not a penalty.
5. Alternatives Reliance, restitution, and specific performance for land or unique goods.

Attack sequence

1. Third-party beneficiary Only an intended beneficiary may enforce; an incidental beneficiary cannot.
2. Vesting The beneficiary's rights vest when they assent, sue, or rely; before that the original parties may modify or rescind.
3. Assignment of rights Effective on a present manifestation to transfer, unless it materially increases the obligor's risk or is barred.
4. Delegation of duties Duties are delegable unless personal or barred; without a novation the delegator stays liable.