Need some K's help

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BCLS
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Re: Need some K's help

Postby BCLS » Fri Dec 10, 2010 10:41 pm

joobacca wrote:Q1:
That totally depends. Are you a shithead? Then my reliance is not reasonable. Did I help you cheat on your LSAT and law exams? Then, again, no. Are you a priest? That certainly helps. Just go through the elements of promissory estoppel, and remember (in every K situation) the capacities and capabilities or the parties that they possess independently or because of prior relationships, and other shit.

I think without more facts that would warrant "reasonable reliance" this sounds like a promise of a gift, which is jackshit.

Q2:
I had to look up the Restatement. It says:
(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.

My take: no.


Got ya. Essentially I was just trying to make sure I'm applying the right doctrine to the right type of situation. I know that it may not be found to be justifiable reliance etc. So in that sense I have it down right?

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joobacca
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Re: Need some K's help

Postby joobacca » Fri Dec 10, 2010 10:55 pm

yea, promissory estoppel requires equitable action to the extent "justice" requires. so the reliance has to be justifiable. of course, it also limits recovery. also, it says that the offeror reasonably expects to induce. that should mean that the other needs to reasonably rely. this requires looking at the relationship between the folks. i think you should also look to what the relying party has done to see if there is a reasonable and justifiable reliance in terms of the promise made and actions taken. for example

grandfather offers me 50K for a new venture. if you get that shit off the ground, then i'll help out with a 50K investment." one on hand, it's tough to ask family members about a promise. in a way, it might be insulting to question his word. but if i go out and spend 50K thinking that he's going to invest in my company, then is it reasonable considering the sum of money involved? should i have at least tried to confirm the sincerity and seriousness of the promise? was my grandfather drunk at a family get together? does he often make bullshit big promises in front of other family members to strengthen his own image? i mean, the possibilities are endless. just tear up the facts on the exam and argue both sides.

edit:
and by the way, that uncle promising money if the kid didn't smoke drink gamble have fun... that was decided on consideration, right? i think promissory estoppel would have been the better remedy.

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evilxs
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Re: Need some K's help

Postby evilxs » Fri Dec 10, 2010 11:04 pm

It was decided on consideration. A contract is always better than non-contractual remedies. Better for that than promissory estoppel.

BCLS
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Re: Need some K's help

Postby BCLS » Fri Dec 10, 2010 11:04 pm

joobacca wrote:yea, promissory estoppel requires equitable action to the extent "justice" requires. so the reliance has to be justifiable. of course, it also limits recovery. also, it says that the offeror reasonably expects to induce. that should mean that the other needs to reasonably rely. this requires looking at the relationship between the folks. i think you should also look to what the relying party has done to see if there is a reasonable and justifiable reliance in terms of the promise made and actions taken. for example

grandfather offers me 50K for a new venture. if you get that shit off the ground, then i'll help out with a 50K investment." one on hand, it's tough to ask family members about a promise. in a way, it might be insulting to question his word. but if i go out and spend 50K thinking that he's going to invest in my company, then is it reasonable considering the sum of money involved? should i have at least tried to confirm the sincerity and seriousness of the promise? was my grandfather drunk at a family get together? does he often make bullshit big promises in front of other family members to strengthen his own image? i mean, the possibilities are endless. just tear up the facts on the exam and argue both sides.

edit:
and by the way, that uncle promising money if the kid didn't smoke drink gamble have fun... that was decided on consideration, right? i think promissory estoppel would have been the better remedy.



Thanks! I guess here my problem is distinguishing between an offer and a promise. With the grandfather's promise to pay you 50k once it gets going it seems like PE would enforce the promise.

On the other hand if it is an offer then what do we do? We would use 87(2) right to hold it open as an option K?

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joobacca
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Re: Need some K's help

Postby joobacca » Fri Dec 10, 2010 11:09 pm

evilxs wrote:It was decided on consideration. A contract is always better than non-contractual remedies. Better for that than promissory estoppel.

you sure? can't restitution damages exceed expectation damages?

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evilxs
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Re: Need some K's help

Postby evilxs » Fri Dec 10, 2010 11:17 pm

joobacca wrote:
evilxs wrote:It was decided on consideration. A contract is always better than non-contractual remedies. Better for that than promissory estoppel.

you sure? can't restitution damages exceed expectation damages?


In one sense it is :)

It is better to have a contract as a lawyer because you are probably going to get what you want from the court for your client, instead of hoping to get non-contractual remedies. That's all ;)

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joobacca
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Re: Need some K's help

Postby joobacca » Fri Dec 10, 2010 11:19 pm

well, the O/A has to be based on acceptable consideration, right?
fuck... i think i see what you're getting at.

OK: so offer =
An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

yea, this is coming back. so you have to distinguish between an offer and a bullshit promise for a gift, right? and that hinges on consideration. man, reading that restatement 2nd definition makes it sound like O/A and consideration are extremely interrelated and that a separate analysis might even be weird.

i can't think of the reason why i separated OA and consideration. it's been too long, i guess... or my reason was crap.

i'm leaving this thread. i feel like because i haven't studied K in a while that i might not be helpful and might even be confusing your understanding. i suggest reading the comments of others or consulting a hornbook. my apologies.

BCLS
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Re: Need some K's help

Postby BCLS » Fri Dec 10, 2010 11:20 pm

joobacca wrote:well, the O/A has to be based on acceptable consideration, right?
fuck... i think i see what you're getting at.

OK: so offer =
An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

yea, this is coming back. so you have to distinguish between an offer and a bullshit promise for a gift, right? and that hinges on consideration. man, reading that restatement 2nd definition makes it sound like O/A and consideration are extremely interrelated and that a separate analysis might even be weird.

i can't think of the reason why i separated OA and consideration. it's been too long, i guess... or my reason was crap.

i'm leaving this thread. i feel like because i haven't studied K in a while that i might not be helpful and might even be confusing your understanding. i suggest reading the comments of others or consulting a hornbook. my apologies.

its all good!! thanks for the help nonetheless. I'm re-reading my notes trying to figure this all out haha

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evilxs
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Re: Need some K's help

Postby evilxs » Fri Dec 10, 2010 11:34 pm

joobacca wrote:well, the O/A has to be based on acceptable consideration, right?
fuck... i think i see what you're getting at.

OK: so offer =
An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.

yea, this is coming back. so you have to distinguish between an offer and a bullshit promise for a gift, right? and that hinges on consideration. man, reading that restatement 2nd definition makes it sound like O/A and consideration are extremely interrelated and that a separate analysis might even be weird.

i can't think of the reason why i separated OA and consideration. it's been too long, i guess... or my reason was crap.

i'm leaving this thread. i feel like because i haven't studied K in a while that i might not be helpful and might even be confusing your understanding. i suggest reading the comments of others or consulting a hornbook. my apologies.


You've got it! No offer if it doesn't have consideration. = nothing to accept.

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JCougar
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Re: Need some K's help

Postby JCougar » Sat Dec 11, 2010 7:03 pm

You are over-thinking this.

Contracts are two promises dependent on each other.

Consideration is just another way of stating this more specifically. Consideration has two elements 1) bargain, and 2) detriment. The bargain element answers to the dependency of the promises. One promise has to be made "in consideration" of the other. IOW, the first promise has to invoke the second promise, making one promise the cause of the return promise. That how you satisfy the bargain element of consideration.

The second element of consideration is that each promise has to involve the party giving up something, limiting their freedom to act in some way, ect. If there is no detriment, you either have nominal consideration or an illusory contract.

Yet a third way to look at this is offer and acceptance. The first promise is the offer, and the return promise is the acceptance. Acceptance is defined as a return promise in consideration of the offer. If you have two parties making promises to each other but neither has heard of the other party's promise yet, you still have two promises, but they are not "offer" and "acceptance," since one wasn't made in consideration of the other. For example, if two parties at the same time promise to do each other favors, but they mail the promises to each other before each one gets the other one's letter (party A says "I promise to mow your lawn", and party B promises to "give party A $50 just because they like party A"), there is no consideration, since the second promise wasn't given with the knowledge of the first promise.

Offer and acceptance are basically terms used when the bargain element of consideration has already been established, because the nature of "acceptance" is to consider the offer.




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