Parties

Subject matter

Price/compensation (or method to determine)

Quantity, time, and delivery/performance terms (as relevant)

Revocation (before acceptance; must be communicated)

Rejection or counteroffer (generally terminates original offer)

Lapse of time

Death/incapacity (often ends the power of acceptance)

Illegality arising after offer

Common law “mirror image” rule (material changes = counteroffer)

UCC/modern rules may allow different terms in some sales contexts

Must follow required method (if specified) or reasonable method

Effective upon dispatch vs receipt (mailbox rule may apply)

Beginning performance may accept in unilateral settings

Course of dealing and usage of trade can evidence acceptance

Promise for promise

Promise for act (performance)

Forbearance (agreeing not to do something lawful)

Past consideration is generally not valid

Pre-existing duty rule (doing what one is already legally obligated to do is not new consideration)

Nominal/sham consideration may fail if not truly bargained for

Adequacy vs sufficiency

What reasonable parties would understand from words/actions

Contracts can fail if too indefinite to enforce

Signatures

Performance

Emails, clickwrap/browsewrap assent (subject to notice and consent)

Minors (contracts often voidable by minor)

Mental incapacity (void or voidable depending on circumstances)

Intoxication (voidable if inability to understand and other party knew/should have known)

Usually makes contract voidable, not automatically void

Possible restitution obligations for benefits received

Typically void and unenforceable

May limit remedies; sometimes partial enforcement if severable

Real property transfers (and many leases beyond a threshold)

Contracts not performable within one year

Suretyship (promise to pay another’s debt)

Sale of goods over a statutory amount (often UCC threshold)

Marriage-related agreements (e.g., prenuptial)

Identification of parties

Essential terms

Signature of party to be charged

Partial performance (especially real estate)

Admission in court

Reliance/promissory estoppel (in some jurisdictions)

UCC merchant confirmations (in some contexts)

Both parties share the same incorrect assumption about a basic fact

Remedy often rescission/reformation if materially affects exchange

One party mistaken; relief limited

More likely if other party knew/caused mistake or enforcement would be unconscionable

False statement (or concealment where duty to disclose exists)

Materiality and reliance

Intent to induce (for fraud) or negligence (for negligent misrep)

Damages

Rescission

Damages (benefit-of-the-bargain or out-of-pocket depending on rule)

Improper threat leaving no reasonable alternative

Contract typically voidable

Unfair persuasion in a relationship of trust or dominance

Often voidable; courts scrutinize fairness

Unfair surprise, lack of meaningful choice, hidden terms

Overly harsh or one-sided terms

Refusal to enforce entire contract

Severing offending clause

Limiting application to avoid unfairness

Enforce legal portions if separable from illegal part

One party retains unlimited discretion to perform or not

Typically enforceable with good-faith limits

Clear promise

Reasonable, foreseeable reliance

Actual reliance to detriment

Injustice avoided only by enforcement

Often limited to reliance damages rather than full expectation

Can be nonbinding or partially binding depending on wording and conduct

Enforceable if reasonable notice and no unconscionability

Arbitration and class-action waivers

Limitation of liability

Automatic renewals

Choice of law and forum selection

Stronger enforceability with affirmative assent

Enforceability depends on conspicuous notice and actual/constructive knowledge

Generally valid if intent and association with the record are shown

Contra proferentem (against drafter)

Course of performance (how parties performed under the contract)

Course of dealing (prior transactions)

Usage of trade (industry custom)

To explain ambiguity

To show fraud/duress/mistake

To show subsequent modifications

Collateral agreements not inconsistent with writing

Must occur before duty to perform arises

Event that ends an existing duty

Duties performed at the same time (e.g., “cash for keys”)

Minor deviations; generally still entitled to payment minus damages

Buyer may reject if goods fail to conform (with cure rules)

Excuses non-breaching party’s performance; allows termination and damages

Allows damages but not termination

Clear indication of nonperformance before due date

Allows immediate remedies and mitigation

Performance objectively impossible (e.g., subject destroyed)

Extreme difficulty/cost due to unforeseen events

Contract’s principal purpose undermined by unforeseen event

Contractual allocation of risk; scope depends on wording and foreseeability

Put injured party in position as if contract performed

Reimburse costs incurred in reliance

Prevent unjust enrichment; return benefits conferred

Losses beyond direct damages if foreseeable and proven

Reasonable costs of dealing with breach (e.g., cover costs)

Enforceable if reasonable forecast and not a penalty

Generally not available for breach of contract alone (exceptions for independent torts)

Ordered performance when damages inadequate (common with unique goods/real estate)

Prevents certain actions (e.g., misuse of confidential info)

Court rewrites contract to reflect true agreement (often for mutual mistake)

Cancels contract and restores parties (often for fraud/mistake/duress)

Each party pays own fees unless statute or contract provides otherwise

Material change to obligor’s duty/risk

Anti-assignment clauses (effect varies)

Can enforce once rights vest

Cannot enforce

Typically requires new consideration (with exceptions)

Good-faith modifications may be enforceable without new consideration

Enforceability varies; may be overridden by waiver/estoppel