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Breach of Contract Interrogatories This 149-page chapter from Kevin Culhane’s Model Interrogatories explains the law and provides pattern questions for:
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Breach of Contract
Interrogatories
Elements, formation, third party rights
and obligations, contractual conditions, breach, damages, and defenses
by Kevin Culhane*
Excerpted from
Model
Interrogatories
§2600 Introduction
§2601 Elements of Plaintiff’s Cause of Action
§2602 Defenses in Breach of Contract Cases
§2610 Basic Information
§2620 Contract Formation Issues
§2630 Rights and Obligations of Third Parties to Contract
§2640 Contractual Conditions – Plaintiff to Defendant
§2650 Contractual Conditions – Defendant to Plaintiff
§2660 Breach of Contract – Plaintiff to Defendant
§2670 Breach of Contract – Defendant to Plaintiff
§2680 Damages – Plaintiff to Defendant
§2690 Damages – Defendant to Plaintiff
§26100 Defenses in Contract Cases – Plaintiff to Defendant
§26120 Defenses in Contract Cases – Defendant to Plaintiff
§2600 Introduction
§2601 Elements of Plaintiff’s Cause of Action
§2602 Defenses in Breach of Contract Cases
§2610 Basic Information
§2611 Information Regarding Defendant
§2611.1 Identification of Defendant
§2611.2 Personal Data Regarding the Defendant
§2611.3 Agency Relationships
§2611.4 Similar Claims and Legal Proceedings
§2612
Information Regarding Plaintiff
§2612.1 Personal Data Regarding the Plaintiff
§2612.2 Prior Actions for Breach of Contract
§2620 Contract Formation Issues
§2621 Offer – Plaintiff to Defendant
§2621.1 Objective Manifestation of Present Contractual Intent
§2621.1.1 Statements Not Contemplating Legal
Enforceability
§2621.1.2 Invitation to Make Offer
§2621.2 Certainty of Terms
§2621.2.1 Parties to the Contract
§2621.2.2 Subject Matter
§2621.2.3 Time for Performance
§2621.2.4 Price
§2621.3 Termination of Offer
§2621.3.1 Lapse of Time Specified for Acceptance
§2621.3.2 Lapse of Reasonable Time
§2621.3.3 Revocation by Offeror
§2621.3.4 Rejection by Offeree
§2621.3.5 Counter-Offer
§2622
Offer – Defendant to Plaintiff
§2622.1 Objective Manifestation of Present Contractual Intent
§2622.1.1 Statements Not Contemplating Legal
Enforceability
§2622.1.2 Invitation to Make Offer
§2622.2 Certainty of Terms
§2622.2.1 Parties to the Contract
§2622.2.2 Subject Matter
§2622.2.3 Time for Performance
§2622.2.4 Price
§2622.3 Termination of Offer
§2622.3.1 Lapse of Time Specified for Acceptance
§2622.3.2 Lapse of Reasonable Time
§2622.3.3 Revocation by Offeror
§2622.3.4 Rejection by Offeree
§2622.3.5 Counter-Offer
§2623 Acceptance – Plaintiff to Defendant
§2623.1 Fact of Acceptance
§2623.2 Qualified Acceptance
§2623.3 Communication of Acceptance
§2623.3.1 “Mailbox” Rule
§2623.4 Acceptance by Performance
§2624 Acceptance – Defendant to Plaintiff
§2624.1 Fact of Acceptance
§2624.2 Qualified Acceptance
§2624.3 Communication of Acceptance
§2624.3.1 “Mailbox” Rule
§2624.4 Acceptance by Performance
§2625 Consideration – Plaintiff to Defendant
§2625.1 Bargained-for Exchange
§2625.2 Benefit Conferred Upon Promisor
§2625.3 Preexisting Legal Duty
§2625.4 Mutual Promises as Consideration
§2625.5 Promisory Estoppel
§2625.5.1 Promise Reasonably Expected to Induce Action or
Forbearance
§2625.5.2 Actual Action or Forbearance
§2625.5.3 Reasonableness of Promisee’s Reliance
§2626 Consideration – Defendant to Plaintiff
§2626.1
Bargained-for Exchange
§2626.2
Benefit Conferred Upon Promisor
§2626.3
Preexisting Legal Duty
§2626.4
Mutual Promises as Consideration
§2626.5
Promisory Estoppel
§2626.5.1
Promise Reasonably Expected to Induce Action or Forbearance
§2626.5.2
Actual Action or Forbearance
§2626.5.3
Reasonableness of Promisee’s Reliance
§2630 Rights and Obligations of Third Parties to Contract
§2631
Third Party Beneficiaries – Plaintiff to Defendant
§2631.1
Intended Beneficiaries – Discharge of Obligation Running to the
Beneficiary
§2631.2
Intended Beneficiaries – Benefit of Promised Performance
§2631.3
Incidental Beneficiaries
§2631.4
Rights Against Promisor
§2632
Third Party Beneficiaries – Defendant to Plaintiff
§2632.1 Intended Beneficiaries – Discharge of Obligation Running
to the Beneficiary
§2632.2 Intended Beneficiaries – Benefit of Promised Performance
§2632.3 Incidental Beneficiaries
§2632.4 Rights Against Promisor
§2633 Assignment – Plaintiff to Defendant
§2633.1 Facts Pertaining to Assignment
§2633.2 Contract Provision Against Assignment
§2633.3 Contract Calling for Personal Performance
§2633.4 Defenses Against the Obligor
§2634 Assignment – Defendant to Plaintiff
§2634.1 Facts Pertaining to Assignment
§2634.2 Contract Provision Against Assignment
§2634.3 Contract Calling for Personal Performance
§2634.4 Defenses Against the Obligor
§2640 Contractual Conditions – Plaintiff to Defendant
§2641 Express Condition
§2642 Implied Condition
§2643 Covenant of Good Faith and Fair Dealing
§2650 Contractual Conditions – Defendant to Plaintiff
§2651 Express Condition
§2652 Implied Condition
§2653 Covenant of Good Faith and Fair Dealing
§2660 Breach of Contract – Plaintiff to Defendant
§2661 Facts Constituting Breach
§2662 Materiality
§2663 Waiver of Breach
§2664 Anticipatory Breach
§2664.1 Express Repudiation of Agreement
§2664.2 Implied Repudiation
§2670 Breach of Contract – Defendant to Plaintiff
§2671 Facts Constituting Breach
§2672 Materiality
§2673 Waiver of Breach
§2674 Anticipatory Breach
§2674.1 Express Repudiation of Agreement
§2674.2 Implied Repudiation
§2680 Damages – Plaintiff to Defendant
§2681 Damages Within the Contemplation of the Parties
§2682 Loss of Profits or Benefits
§2682.1 New Business Doctrine
§2683 Expenditures to Perform Contract
§2684 Emotional Distress
§2685 Interest
§2686 Mitigation of Damages
§2690 Damages – Defendant to Plaintiff
§2691 Damages Within the Contemplation of the Parties
§2692 Loss of Profits or Benefits
§2692.1 New Business Doctrine
§2693 Expenditures to Perform Contract
§2694 Emotional Distress
§2695 Interest
§2696 Mitigation of Damages
§26100 Defenses in Contract Cases – Plaintiff to Defendant
§26101 Mistake
§26101.1 Unilateral Mistake Precipitated by Opposing Party
§26101.2 Mutual Mistake – Neither or Both Parties at Fault
§26101.3 Mistake Not Going to an Essential Element of the Contract
§26101.4 Unilateral Mistake of Fact
§26101.5 Mutual Mistake of Law
§26101.6 Unilateral Mistake of Law
§26102 Fraud
§26102.1 Misrepresentation of Fact
§26102.2 Knowledge of Falsity
§26102.3 Intent to Induce Reliance
§26102.4 Reliance
§26102.4.1 Actual Reliance
§26102.4.2 Justifiable Reliance
§26102.5 Negligent Misrepresentation
§26102.6 Concealment
§26102.7 Constructive Fraud
§26103 Duress
§26103.1 Physical Duress
§26103.2 Duress of Property
§26103.3 Menace
§26104 Undue Influence
§26104.1 Unfair Persuasion
§26104.2 Unfairness of Resulting Bargain
§26104.3 Availability of Independent Advice
§26105 Unconscionability
§26105.1 Adhesion Contract
§26105.2 Unconscionable Agreement
§26106 Statute of Frauds
§26106.1 Application of Statute of Frauds
§26106.1.1 Contract Not to Be Performed Within One Year
§26106.1.2 Promise to Answer for the Debt or Default of Another
§26106.1.3
§26106.2 Existence of Memorandum
§26106.3 Estoppel to Plead the Statute of Frauds
§26107 Illegality
§26107.1 Contract Contrary to Express Statute
§26107.2 Contract Contrary to the Policy of an Express Statute
§26107.3 Contract Contrary to Good Morals
§26108 Impossibility of Performance
§26108.1 Operation of Law
§26108.2 Destruction of Subject Matter
§26108.3 Death of Promisor Where Contract Calls for Personal Services
§26108.4 Unreasonable Difficulty or Expense
§26109 Frustration of Purpose
§26109.1 Principal Purpose Frustrated
§26109.2 Substantial Frustration
§26109.3 Frustration Going to a Basic Assumption on Which Contract Was Made
§26110 Accord and Satisfaction
§26111 Novation
§26120 Defenses in Contract Cases – Defendant to Plaintiff
§26121 Mistake
§26121.1 Unilateral Mistake Precipitated by Opposing Party
§26121.2 Mutual Mistake – Neither or Both Parties at Fault
§26121.3 Mistake Not Going to an Essential Element of the Contract
§26121.4 Unilateral Mistake of Fact
§26121.5 Mutual Mistake of Law
§26121.6 Unilateral Mistake of Law
§26122 Fraud
§26122.1 Misrepresentation of Fact
§26122.2 Knowledge of Falsity
§26122.3 Intent to Induce Reliance
§26122.4 Reliance
§26122.4.1 Actual Reliance
§26122.4.2 Justifiable Reliance
§26122.5 Negligent Misrepresentation
§26122.6 Concealment
§26122.7 Constructive Fraud
§26123 Duress
§26123.1 Physical Duress
§26123.2 Duress of Property
§26123.3 Menace
§26124 Undue Influence
§26124.1 Unfair Persuasion
§26124.2 Unfairness of Resulting Bargain
§26124.3 Availability of Independent Advice
§26125 Unconscionability
§26125.1 Adhesion Contract
§26125.2 Unconscionable Agreement
§26126 Statute of Frauds
§26126.1 Application of Statute of Frauds
§26126.1.1 Contract Not to Be Performed Within One Year
§26126.1.2 Promise to Answer for the Debt or Default of Another
§26126.1.3
§26126.2 Existence of Memorandum
§26126.3 Estoppel to Plead the Statute of Frauds
§26127 Illegality
§26127.1 Contract Contrary to Express Statute
§26127.2 Contract Contrary to the Policy of an Express Statute
§26127.3 Contract Contrary to Good Morals
§26128 Impossibility of Performance
§26128.1 Operation of Law
§26128.2 Destruction of Subject Matter
§26128.3 Death of Promisor Where Contract Calls for Personal Services
§26128.4 Unreasonable Difficulty or Expense
§26129 Frustration of Purpose
§26129.1 Principal Purpose Frustrated
§26129.2 Substantial Frustration
§26129.3 Frustration Going to a Basic Assumption on Which Contract Was Made
§26130 Accord and Satisfaction
§26131 Novation
§2600 Introduction
As most practitioners are aware, a significant component of contemporary law
practice involves the litigation and resolution of contract disputes. While
the law of contracts is taught in every first-year law school class, the
substantive law as it has developed involves a complex array of legal
doctrine as the law seeks to respond to divergent mercantile transactions.
Discovery can be as complex as it is in any legal dispute. It has often been
observed that divergent policy objectives underlie the remedies available in
contract versus tort actions. Contract actions are said to enforce the
intentions of the parties to an agreement, whereas tort law is primarily
designed to vindicate identified “social policies.” (See, e.g.,
Erlich v. Menezes (1999) 21 Cal.4th 543, 550-551.) In this regard,
courts have crafted careful distinctions between recovery in tort and
recovery for breach of contract in order to import an element of certainty
into transactions deemed necessary to advance commerce. (
Given the foregoing, the purpose of this chapter is to provide
analysis of and interrogatories relating to common issues that arise in
breach of contract cases. As is the case throughout this book, the analysis
and interrogatories are organized according to the elements of plaintiff’s
cause of action and the affirmative defenses thereto; each of these issues
is treated from both the plaintiff and defense perspectives.
§2601
Elements of Plaintiff’s Cause of Action
A cause
of action for breach of contract requires the plaintiff to plead and prove
(1) the existence of a valid and subsisting contract based upon the mutual
assent of the parties thereto; (2) the plaintiff’s performance or excuse for
non-performance; (3) the defendant’s breach of said contract; and (4)
resulting damages. (See Careau and Co. v. Security Pacific Business
Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) This chapter contains
interrogatories exploring the parties’ respective contentions regarding each
of these essential elements of the plaintiff’s claim, and does so from both
the plaintiff and defense perspectives.
§2602
Defenses in Breach of Contract Cases
The law
also recognizes a wide array of defenses that might be asserted in breach of
contract actions. Defenses such as mutual mistake, fraud and
misrepresentation, duress and undue influence go to the core fact of
contract formation, because they tend to negate the parties’ mutual consent
to be bound. Other defenses, such as unconscionability, the statute of
frauds and illegality, etc., effectuate additional substantive policies
recognized by the law. While a complete analysis of every contract defense
is beyond the scope of this work, this chapter does include interrogatories
allowing discovery of the facts, witnesses and writings upon which the
parties rely in litigating many of the defenses that arise in contract
litigation.
§2610 Basic
Information
§2611
Information Regarding Defendant
§2611.1
Identification of Defendant
A basic
litigation issue relates to the proper identification of the defendant.
Accordingly, the interrogatories set forth in §211.1 should be consulted to
determine the basic facts regarding the identity of the defendant, the
defendant’s business format, and related issues.
§2611.2
Personal Data Regarding the Defendant
Claims
for breach of contract may be directed against natural individuals.
Accordingly, the interrogatories set forth in §§211.1 – 211.9 may be used to
provide background information regarding the defendant. This information may
shed light upon the claimed and actual reasons for the contractual breach,
and may also develop information useful for impeachment.
§2611.3
Agency Relationships
In
certain instances, a party to a contract may have acted as an agent for an
undisclosed principal. The questions set forth in §213 explore specific
agency relationships and include several general questions regarding imputed
liability. The responses to these interrogatories may provide useful
information to ensure that all legally responsible parties are included
within the litigation.
§2611.4
Similar Claims and Legal Proceedings
The
existence of other claims for breach of contract against a defendant may
shed light on defendant’s general business practices and motivations.
Further, an examination of the papers and files pertaining to similar
litigation may tend to illuminate defendant’s litigation practices and
provide the identity of potential experts. Therefore, the following
interrogatories seek to determine whether the defendant has litigated breach
of contract claims in the past.
1. Please state
whether within the last ten years any PERSON has claimed that YOU
breached any contract.
2.
If your answer to interrogatory number 1 was yes, please IDENTIFY
the PERSON who advanced such claim.
3.
If your answer to interrogatory number 1 was yes, please describe the
means by which such claim was advanced.
4.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each WRITING relating to such claim.
5.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 4.
6.
If your answer to interrogatory number 1 was yes, please set forth
the disposition of each such claim.
7.
Please state whether within the last ten years any PERSON
commenced a legal proceeding claiming that YOU breached any contract.
8.
If your answer to interrogatory number 7 was yes, please IDENTIFY
each PERSON who advanced such claim.
9.
If your answer to interrogatory number 7 was yes, please IDENTIFY
each such claim by jurisdiction, caption, and file number.
10.
If your answer to interrogatory number 7 was yes, please IDENTIFY
each WRITING relating to such claim.
11.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 10.
12.
If your answer to interrogatory number 7 was yes, please set forth
the disposition of each such claim.
§2612
Information Regarding Plaintiff
§2612.1
Personal Data Regarding the Plaintiff
Basic interrogatory discovery in breach of contract cases will
include examination of the plaintiff’s personal background. Accordingly, the
interrogatories set forth in §§211.1 – 211.9 have clear applicability and
can be utilized verbatim for this purpose.
§2612.2
Prior Actions for Breach of Contract
The
interrogatories set forth below seek to determine whether the plaintiff has
advanced prior claims for breach of contract. The information developed as a
result of this investigation can be probative of the number of legal issues,
including the nature and extent of the damages plaintiff claims in the
instant proceeding.
1. Please state
whether YOU have ever initiated any legal proceeding in which YOU
claimed that any PERSON breached a contract to which you were a
party.
2.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each party to such proceeding.
3.
If your answer to interrogatory number 1 was yes, please state the
date that the proceeding was initiated.
4.
If your answer to interrogatory number 1 was yes, please set forth
the jurisdiction in which the action was filed.
5.
If your answer to interrogatory number 1 was yes, please set forth
the disposition of each such claim.
6.
If your answer to interrogatory number 1 was yes, please IDENTIFY
counsel for each party to such proceeding.
7.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each WRITING relating to such claim.
8.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 7.
9.
Please state whether YOU have ever initiated any
administrative proceeding in which YOU claimed that any PERSON
breached a contract to which YOU were a party.
10.
If your answer to interrogatory number 9 was yes, please IDENTIFY
each party to such administrative proceeding.
11.
If your answer to interrogatory number 9 was yes, please set forth
the file number and jurisdiction of such proceeding.
12.
If your answer to interrogatory number 9 was yes, please set forth
the disposition, if any, of such administrative proceeding.
13.
If your answer to interrogatory number 9 was yes, please IDENTIFY
counsel for any party to such administrative proceeding.
14.
If your answer to interrogatory number 9 was yes, please IDENTIFY
each WRITING relating to such claim.
15.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 14.
§2620
Contract Formation Issues
In the most basic terms, the formation of an enforceable contract
requires an offer, acceptance and consideration. The interrogatories set
forth in the sections below examine common formation issues that arise in
contract litigation.
§2621
Existence of Offer – Plaintiff to Defendant
An offer
is the objective manifestation of willingness to enter into a bargain so
made as to justify another person’s understanding that his assent to that
bargain is invited and will conclude it. (Restatement
2d, Contracts §24.) Moreover, an offer must be sufficiently definite, or
call for such definite terms in the acceptance, that the performance
promised is reasonably certain. (Weddington Productions v. Flick
(1998) 60 Cal.App.4th 793, 811.) In practice, it is often said that an offer
must be reasonably certain as to parties, time for performance, subject
matter and price. The interrogatories set forth in the sections that follow
examine these issues from the plaintiff’s perspective.
§2621.1
Objective Manifestation of Present Contractual Intent
It is has
been repeatedly stated that contract formation issues are governed by the
objective theory of contracts; the outward manifestation of contractual
intent controls over a party’s unexpressed intentions or understanding. (See,
e.g., Zurich General Accident & Liability Ins. Co. Ltd. v. Industrial
Accident Commission (1933) 132 Cal.App.101, 104.) The interrogatories
set forth in this section examine the defendant’s contentions when the
existence of an outward manifestation of present contractual intent is in
dispute.
§2621.1.1
Statements Not Contemplating Legal Enforceability
Because
the objective theory of contracts controls, the situation and context in
which the alleged offer was communicated can be important. Stated otherwise,
if it is clear from the words spoken or the surrounding context that the
offeror did not intend a legally enforceable agreement, as when statements
are made in jest or not otherwise contemplating legal relations, no
enforceable contract is formed. (See, e.g., Fowler v. Security
First National Bank of Los Angeles (1956) 146 Cal.App.2d 37, 47.) The
interrogatories set forth in this section examine defendant’s contentions
when the defendant claims that the context in which the words were spoken
precludes any reasonable understanding that contractual relations were
contemplated.
1. Do YOU
contend that when YOU communicated to [plaintiff] that [here set
forth nature of alleged offer] YOU did not intend to be contractually
bound upon acceptance by plaintiff?
2.
If your answer to interrogatory number 1 was yes, please state each
fact upon which YOU base such contention.
3.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
4.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each WRITING relating to such contention.
5.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 4.
6.
Do YOU contend that when YOU communicated to
[plaintiff] that [here set forth nature of alleged offer] [plaintiff]
understood that YOU did not intend to be contractually bound upon
acceptance by plaintiff?
7.
If your answer to interrogatory number 6 was yes, please state each
fact upon which YOU base such contention.
8.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
9.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each WRITING relating to such contention.
10.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 9.
11.
Do YOU contend that when YOU communicated to
[plaintiff] that [here set forth nature of alleged offer] [plaintiff] should
have understood that YOU did not intend to be contractually bound
upon acceptance by plaintiff?
12.
If your answer to interrogatory number 11 was yes, please state each
fact upon which YOU base such contention.
13.
If your answer to interrogatory number 11 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
14.
If your answer to interrogatory number 11 was yes, please IDENTIFY
each WRITING relating to such contention.
15.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 14.
§2621.1.2
Invitation to Make Offer
In some cases, and in particular those involving advertisements from
mercantile vendors, the communication is not intended to invite the
conclusion of an agreement by acceptance but rather solicits offers from the
recipient. (See, e.g., Hanley v. Marsh & McLennan (1941) 46
Cal.App.2d 787; Restatement 2d,
Contracts §26.) The interrogatories set forth in this section are for use in
cases where the defendant contends that he made no offer but rather only
solicited offers from the recipient.
1. Do YOU
contend that when YOU communicated to [plaintiff] that [here set
forth nature of alleged offer] YOU intended to solicit offers from
plaintiff?
2.
If your answer to interrogatory number 1 was yes, please state each
fact upon which YOU base such contention.
3.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
4.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each WRITING relating to such contention.
5.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 4.
6.
Do YOU contend that when YOU communicated to
[plaintiff] that [here set forth nature of alleged offer] [plaintiff]
understood that YOU intended to solicit offers from plaintiff?
7.
If your answer to interrogatory number 6 was yes, please state each
fact upon which YOU base such contention.
8.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
9.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each WRITING relating to such contention.
10.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 9.
11.
Do YOU contend that when YOU communicated to
[plaintiff] that [here set forth nature of alleged offer] [plaintiff] should
have understood that YOU intended to solicit offers from plaintiff?
12.
If your answer to interrogatory number 11 was yes, please state each
fact upon which YOU base such contention.
13.
If your answer to interrogatory number 11 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
14.
If your answer to interrogatory number 11 was yes, please IDENTIFY
each WRITING relating to such contention.
15.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 14.
§2621.2
Certainty of Terms
Restatement 2d, §33 provides generally that even
though a manifestation is intended to be understood as an offer, it cannot
be accepted so as to form a contract unless the terms of the contract are
reasonably certain. The same section provides that the requirement of
reasonable certainty is satisfied if the facts provide a basis for
determining the existence of a breach and for giving an appropriate remedy.
As noted above, in practice these issues arise when one party to the alleged
contract claims that the parties, subject matter, time for performance, or
price are not sufficiently certain.
§2621.2.1
Parties to the Contract
As noted
above, an offer that is capable of acceptance typically must provide a basis
for identifying the parties to the proposed agreement. The interrogatories
set forth in this section explore defendant’s contentions where defendant
asserts that the offer allegedly tendered was insufficiently certain
regarding the parties to the agreement.
1. Do YOU
contend that [here set forth nature of alleged offer] was not sufficiently
certain to allow acceptance by any particular person?
2.
If your answer to interrogatory number 1 was yes, please state each
fact upon which YOU base such contention.
3.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
4.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each WRITING relating to such contention.
5.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 4.
6.
Do YOU contend that [here set forth nature of alleged offer]
was not sufficiently certain to allow acceptance by plaintiff?
7.
If your answer to interrogatory number 6 was yes, please state each
fact upon which YOU base such contention.
8.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
9.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each WRITING relating to such contention.
10.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 9.
§2621.2.2
Subject Matter
As noted above, an offer that is capable of acceptance typically must
provide a basis for identifying the subject matter of the proposed
agreement. The interrogatories set forth in this section explore defendant’s
contentions where defendant asserts that the offer allegedly tendered was
insufficiently certain regarding the subject matter of the agreement.
1. Do YOU
contend that the subject matter of [here describe alleged agreement between
the parties] was not identified with reasonable specificity?
2.
If your answer to interrogatory number 1 was yes, please state each
fact upon which YOU base such contention.
3.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
4.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each WRITING relating to such contention.
5.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 4.
6.
Do YOU contend that YOU and [plaintiff] did not enter
into a contract with respect to [here describe subject matter]?
7.
If your answer to interrogatory number 6 was yes, please state each
fact upon which YOU base such contention.
8.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
9.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each WRITING relating to such contention.
10.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 9.
§2621.2.3
Time for Performance
As noted above, an offer that is capable of acceptance typically must
provide a basis for identifying the time for performance of the proposed
agreement. The interrogatories set forth in this section explore defendant’s
contentions where defendant asserts that the offer allegedly tendered was
insufficiently certain regarding the time for performance of the agreement.
1. Do YOU
contend that the time for performance regarding [here describe alleged
agreement between the parties] was not identified with reasonable
specificity?
2.
If your answer to interrogatory number 1 was yes, please state each
fact upon which YOU base such contention.
3.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
4.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each WRITING relating to such contention.
5.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 4.
6.
Do YOU contend that [here describe alleged agreement between
the parties] did not require performance by [here describe time parameters
upon which plaintiff’s claim is based]?
7.
If your answer to interrogatory number 6 was yes, please state each
fact upon which YOU base such contention.
8.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
9.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each WRITING relating to such contention.
10.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 9.
§2621.2.4
Price
As noted above, an offer that is capable of acceptance typically must
provide a basis for identifying the price for the proposed agreement. The
interrogatories set forth in this section explore defendant’s contentions
where defendant asserts that the offer allegedly tendered was insufficiently
certain regarding the price for the agreement.
1. Do YOU
contend that [here describe alleged agreement between the parties] did not
identify a price with reasonable specificity?
2.
If your answer to interrogatory number 1 was yes, please state each
fact upon which YOU base such contention.
3.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
4.
If your answer to interrogatory number 1 was yes, please IDENTIFY
each WRITING relating to such contention.
5.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 4.
6.
Do YOU contend that [here describe alleged agreement between
the parties] did not require the payment of [here describe price parameters
upon which plaintiff’s claim is based]?
7.
If your answer to interrogatory number 6 was yes, please state each
fact upon which YOU base such contention.
8.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each PERSON who has knowledge of any fact relating to such
contention.
9.
If your answer to interrogatory number 6 was yes, please IDENTIFY
each WRITING relating to such contention.
10.
Please IDENTIFY the present CUSTODIAN of each
WRITING identified in your answer to interrogatory number 9.
§2621.3
Termination of Offer
Where an offer is sufficiently certain and manifests a present
intention to be contractually bound, it vests in the offeree the power to
create a binding contract by acceptance of the offer before the power has
been terminated. (Restatement
2d, Contracts §35.) The power to accept may be terminated through several
events, including lapse of time, revocation prior to acceptance, or
rejection by the offeree. The interrogatories set forth below explore these
issues.
§2621.3.1
Lapse of Time Specified for Acceptance
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