CONTRACTS OUTLINE – Checklist
1ST QUESTION:  WAS THERE A PROMISE?

I.  What kind of promise was it?	1) Express, 2) Implied in fact, or 3) Implied in law 
	A.  Are valid parties bringing suit on the promise?
	- 3rd Party Beneficiaries

II. Was there a valid Offer and Acceptance? 
A. Offer ?
- clear intent to be bound 
- definiteness of terms?
- Was it a firm offer (open until accepted)? 
B.   Acceptance ?  - in general, any signal (sound, action, performance) meaning yes except when
a) silence or 4 exceptions?
	b) mirror-image rule?  Counter-offer & rejection?
	C. Complications to O & A
		1) Unilateral Contracts & 4 ways to solve
	2) Means of Transmission 

III.  Did the promise take the proper form for the situation and content?
	1) Parole Evidence Rule 
- 3 exceptions: 	a) completeness, b) interpretation, c) collateral matter
	2) Statute of Frauds – MY LEGS ? 
	- exceptions of partial performance or reliance

IV.  Would public policy want to regulate the content of that promise (affect its interpretation/enforcement)?
a) Good Faith (GF)									
b) Unconscionability (U), as tested by a) no meaningful choice, and b) terms unreasonably favorable to the other side

2ND QUESTION:  WAS THE PROMISE ENFORCEABLE?
I.  Did it follow the extreme formality of the Holmesian Bargain Theory? If so = full payment (enforceable)
	-  consideration plus: 	1) an act by A
2) sought after B
3) given in exchange by A
4) that would not have been given but for B’s promise
II.  Did it follow the normal form of the Consideration Theory (§71)? If so = full payment (enforceable)
-  consideration: 	1) an act by A
2) sought after B
3) given in exchange by A
III.  If no real formalism, can we substitute it with the substance of Promisory Estoppel (§90)?
-  reliance:	1) promise by B
2) reasonably expected to induce reliance by A
3) actually relied upon by A
4) injustice to A without enforcement
5) remedied as justice requires
IV.  Can we combine the form (§71) and Substance (§90) as in Allegheny College?
	- use substantive issues to imply formalism of HBT or §71?
V.  Are there other approaches we can use if II-V don’t work?
	1) Possesory Transfer Test 
	2) Partial Undertaking -
	3) Reliance Theory of Consideration 
4)  Sealed Instruments 
VI.  This may look like an (un)enforceable promise, but are there any complications to enforcement?
	1)  Pre-Existing Legal Duty 	a) were already legally required to give the return act??
b) can you get around it with new/additional consideration?
	2)  Moral Consideration 	a) Is there a pre-existing moral duty on the part of the promisor?
						b) Did the promise arise out of promisor’s benefit & loss to promisee?
	3) Where there any for Special Contexts: a) Family cases, b) Charitable Subscriptions, c) Bailments, 
d) Merchant Disputes, e) Special Consideration (for “lifetime” employment)
CONTRACTS OUTLINE
Eisgruber -- Fall 1999

1ST QUESTION:  WAS THERE A PROMISE?

I.  Types of contracts/promises:
1) Express = intent from statements of the parties; verbally contemplating their intent to be bound (O&A)
	2) Implied in fact = intent from the actions of the parties; parties’ conduct implies their intent to be bound
		- based on the circumstances what can we say about the intent of the parties
		- cts can use of policy norms to impose or limit liability in some circumstances (Hertzog & Hewitt) 
- 1&2 blend -- both arise out of the intentions of the parties; contentwordsactions...interplay
	3) Implied in law = a public policy consideration contract; cts infer a contract due to the unique situation
		- has nothing to do with parties’ intentions -- the importance of public policy in contract enforcement

II. Formation of Contracts: Offer & Acceptance  
	- bookkeeping measure to keep track of parties negotiations -- each party has a side to prove
	- difficult to determine in circumstances w/various statements by both parties in the bargain
		- the mere use of the words "offer" or "acceptance" does not make it so
** must give the other party a right to consider terms (no unilateral imposition of terms) **

	A. Offer = intent to be bound + definiteness
		1) intent to be bound: a) cannot be a mere invitation to bid (as in some advertisements)
			b) words & circumstances help us distinguish between intent & invitation
		2) definiteness:	a) evidence of intent to be bound
			b) w/out it cts have nothing to enforce (Young & Ashburn)
	- offer is master of the offer; free to set time limits, terms, types of acceptances, etc. for the most part
- b/c it doesn't bind anyone except the offeror (offeree can always reject)
	- in general, an offer can be revoked (by the offeror) until accepted & once accepted cannot be revoked
- Firm offers -- offers which explicitly (Dickinson) or implicitly (Star Paving) hold the offer open
			- traditional rule -- firm offers are revocable at will b/c they lack consideration
			- modern rule -- can make a reliance type argument regarding the offer (§87-2)

	B.   Acceptance = in general, any signal meaning yes (do not have to repeat the offer) EXCEPT WHEN
	a) silence: offeror cannot make silence acceptance (offeree must have right to choose to accept)
			- when is silence acceptance (exceptions):
			1) receipt & use of benefits
			2) prior course of conduct (previous relationship & actions implies acceptance on these terms)
			3) separate agreement (ex: BMG bought the right to treat silence as acceptance w/free CDs)
		4) industry custom -- in some business contexts it makes sense to treat silence as acceptance
	* if none of these exceptions are met, but it seems harsh (i.e. Prescott) imply or express the 
promise in modern era (using PE, §90 -- reliance based remedies substitute contractual formalities)
	b) mirror-image rule:  if an acceptance states terms of the contract it must repeat w/out departing 
from or adding to those aspects of the offer it addresses
			- do not have to repeat ALL terms of the offer, but those you do must be similar to the offer
			- modification of terms = counter-offer and rejection of previous offer
		- cts must distinguish between mere requests/inquiries (Butler) and modifications (Langilier)			

	C. Complications to O & A
		1) Unilateral Contracts: contracts based on offers that can be accepted only through performance
		- promblem = A is ½way thru performance and B revokes (no acceptance w/o finished performance)
		- to solve: a) subdivide the K* -- look at different performance parts & their completion = acceptance
  b) option K – once P starts to perform, P has option to stop or continue but D cannot revoke
	 	  c)  reliance remedy -- P performance showed reliance on D's promise
				  d) imply a bilateral K* – both have obligation to complete the promise once performance				* not good for an really hard (i.e. reward) or impossible (i.e. greased flagpole) promises

	2)  Means of Transmission
			- offeror assumes the risk of errors in any transmission approved by the offeror 
				- offeror will generally be assumed to approved of the means they used themselves
				- offeree must use the offeror's means of transmission only if explicitly stated by offeror

	3) 3rd Party Beneficiaries (3PB): parties who benefit from a contract they had no part in making
- old rule = no 3PB may ever sue (no longer true)
- new rule = intended Bs may sue, but incidental Bs may not
			- intended 3PBs as by the contracting parties; usually creditor Bs or donee Bs
			- contract parties may rescind from 3PB until 3PB accepts those benefits by:1) Reliance, 2) Suing 
to enforce, or 3) expressly accepting if requested by the parties

III. General Interpretation – What should the court consider?
- in general, it's about finding the intent of the parties (what obligations did they want to take on?)
- law disciplines this through:
	1) Parole Evidence Rule (Prior Contracts Discharge Game) 
		- PER applies only to statements (oral or written) made before some integrated writing		
- resulting contract is made the "full statement" of their obligations, so prior statements don't count

start of							    written agreement 
negotiations						  of parties obligations*			     oral modifications
TIMELINE  |__________exchange between parties ______________|_______________________here are ok (further analysis)__________
				(written or verbal)					* wipes out any previous exchanges before this point

		- 3 exceptions to PER to get those prior statements in:
		a) completeness -- writing was not supposed to be complete (left important stuff out)
		b) interpretation -- in order to understand an ambiguity in the writing, you need to know the prior stuff
		c) separate matter -- the prior stuff is not really a part of this writing b/c it's something different
		- can try to use these, but won't always be successful (Thompson)

	2) Statute of Frauds (SOF)
		- to determine whether the absence of a writing makes a contract unenforceable ask these 3 questions:
		1) Is the contract covered by SOF? -- if and only if it fits into MY LEGS

M = marriage contracts (marriage must be consideration for the promise sought to be enforced)
			- marriage as a necessary condition is not covered (i.e. to cater a wedding must not be written)
	Y = year (if it cannot be fully performed w/in a year of the making of the contract)
	L = land (conveying interest in land -- can be purshase, rent, lease, etc.)
	E = executor (contracts that make an executor of an estate liable for debts of the estate)
			G = goods (sales of goods in excess of $500) 
			S = suretyship (A is liable for B debt only if B doesn't pay the debt)

		2) Has SOF been satisfied? – A writing is needed, but it doesn't need to be a complete statement of 
contractual liability, only an acknowledgment of the contract by party to be charged w/it (i.e. receipt)
		3) What are the consequences? --  If 1 & 2 are not met, the contract as not enforceable.
		- exceptions: partial performance (Bader) & reliance (Imperator Realty)

IV. Regulating Content – How does public policy affect interpretation or enforcement?
- while you are free to enter into contracts, there are situations in which cts feel regulation is needed
a) Good Faith (GF)-- a set of norms needed to create promises
		- basis is commercial reasonableness (not charity or looking out for the other side)
	- gets rid of malice, trickery, or favoritism
b) Unconscionability (U) – a test used in extreme cases to counter act evils (such as racism, 
distributive injustice, illiteracy, high pressure sales techniques)
		- 2 part test by party claiming it: 	a) no meaningful choice 
										b) terms unreasonably favorable to the other side
	- courts must choose to remedy these problems by using U or some other remedy (O&A, fraud, etc.)
- GF creates obligations while U nullifies them (both are amorphous doctrines)

2ND QUESTION:  WAS THE PROMISE ENFORCEABLE?
	- Reasons to enforce: 1) damage has been done or 2) freedom to bind oneself/to enforce
	- Reasons not to enforce: 1) not all damage is worth the ct’s time to redress, 2) you had options (ex: get 
insurance as in Thorne v. Diaz), or 3) there may be good reasons for breaking promises (favors, gifts, etc.)
	** In general, promises are not enforceable if they were (or should have been) mutually understood to be 
unenforceable. (Balfour  & Rosenfrank)

I.  Holmesian Bargain Theory – The Formal Extreme
	- right to enforce = insistence on a strict formalism
	- consideration plus = §71 + reliance* (consideration & promise given in exchange for one another)
	- 4 elements:	1) must be a return act/forbearance/return promise by the promisee
2) bargained for/sought after by the promisor
3) given in exchange by the promisee in exchange for the promise
4) * and would not have been given but for the promise (relied upon)

II.  Consideration Theory – Restatement §71 – The Middle Ground
	- 3 elements:	1) there is a return act/forbearance/return promise by the promisee
	2) sought after/bargained for by promisor 
	3) given by promisee in exchange for promise (must know of the promise when you do it) 
	- does not require reliance for the exchange
	- most cts. say §71 = enforceable promise (some cts. still want HBT or say “given in exhange” = reliance)

III.  Promisory Estoppel – Restatement §90  -- Substituting Substance for Formalism
	- look at actions which cause the harm (§90 = “So what” if bargain wasn’t met?!)
	- 5 elements:	1) a promise
	2) reasonably expected to induce reliance (promisor should have known to induce reliance)
	3) actually relied upon by the promisee
	4) injustice avoided only by enforcement of the promise
	5) remedy as justice requires  (manner of enforcement limited in the interest of justice)
	- a substantive (tort-like) theory  redresses parties’ injuries (what is just, reasonable, etc.)
	- most cts use §90 as well as §71 (some limit §90’s use only to non-commercial transactions)

Action\Theory	Sec 71	Sec 90	Holmesian theory	
Reliance required 
	No	Yes	Yes	
Enforce the terms or value of the promise	Yes	No (only offers what justice entitles)	Yes	
Allows recovery for reasonable reliance (w/out consideration)	No (reliance is not enough, you need a bargain)	Yes	No (reliance is not enough, you need a bargain)	

EXAMPLE:  Student is on her way to alumni meeting.  Dean Sexton sees student & promises $10 if she goes to the alumni meeting.  Student goes, then approaches Dean for the money.  Dean will not pay.  
	- Holmesian = NO, no real reliance b/c she was going anyway (fails the “but for” test)
	- §71 = YES, b/c student went to the dinner
	- §91 = NO, no actual reliance by the student (she was going anyway)

IV.  Allegheny College – Combine Form (§71) and Substance (§90)
	- adhere to the formal elements of bargain theory but use substantive issues to imply that those formalisms 
have been met
- background is DiCicco & Seigel: marks the debate between maintaining strict doctrines regardless of
outcome (Llewlyn) and getting “fair” results by bending those doctrines or using new ones 
- it’s a binding rule in NY courts (error to simply argue reliance, must show consideration too)

* My Idea:  While DiCicco and Siegel did not use reliance, Cardozo considers them "signposts" b/c in those cases we bent the traditional consideration doctrine so much that we can either break it or make a new way to decide these cases. Others say: Cardozo is the biggest bender of the rules, & he is just doing whatever he wants to get “just” results will saying he adheres to the traditions.

V.  Other Approaches – What to use if II-V don’t work…
	1) Possesory Transfer Test (Seigel)
- transfer of possession by promisee renders promise enforceable (it wouldn’t have occurred otherwise) 
	2) Partial Undertaking (Prof. Parsons in Seigel)
		- commencement of performance by promisor renders the promise enforceable
	3) Reliance Theory of Consideration (Underwood Typewriter & Feinberg)
		- MO courts say PE (§90) is the consideration of §71 
	4)  Sealed Instruments (cases of old & some specific transactions today)
	- use of particular phrases & formal ceremony marks the intentions of the parties = enforceability
		- examples of how cultural/societal knowledge interacts in contract development

VI.  Complications to Enforcement – This may look like an (un)enforceable promise but there was…

	1)  Pre-Existing Legal Duty (PELD) Rule – makes it unenforceable
		- in general, consideration cannot be something you were already legally required to give (Stilk)
		- if promisee owes promisor a performance & promisor offers additional compensation for that 
performance, compensation promise lacks considration unless promisee offers something not 
previously bargained for (DiCicco)
		- purpose of PELD is to prevent extortion by parties midway through performance (have an advantage)
			- sometimes creates unfair results – can use §90 to get around PELD

	2)  Moral Consideration – makes it enforceable
		- pre-existing moral duty on the part of the promisor = consideration for the promise
	- §71 or §90 can’t be used b/c past act can’t be “given in exchange for”		
- also known as “past consideration” – duty is generated by past benefit to the promisor (Webb)
		- What duties count? 
			- all cts: obligations that would have been enforceable but for a technical barrier 
				- Gillingham = statute of limitations; Mills = theory of application
			- some cts: promises are enforceable for promisee’s loss on account of promisor’s material benefit

	3) Special rules for Special Contexts
		a) Family cases (Balfour, more harsh vs. Ricketts, more forgiving)
		b) Charitable Subscriptions (Allegheny & specific §90 clause says they are always enforceable)
		c) Bailments (Colyar in Seigel) – if C takes $ from A to deliver toB, C is responsible for it
		d) Merchant Disputes (Pillans & Rose) – consideration not needed in written commercial contracts 
	- merchants are different b/c circle is small, serious, & understanding of their enforceability
		e) Special Consideration (Fisher v. Jackson) – public policy concerns force special treatment of 
permanent (i.e. “lifetime”) employment (require more than normal consideration)

 What to do (on the exam) as a lawyer, judge, & law student…

1) As a lawyer:
	a) to enforce a promise -- bring case w/in the theory most favorable & surest to get the desired result
			- 1st use Holmes, 2nd s71, then 3rd either §90 or Allegheny/other approaches (depends on the ct.)
		b) to defeat enforcement – on any grounds of enforceability argue that:
			- this case doesn’t fit the accepted paradigm/test (of this court)
			- ct should reject the purposed paradigm (good for S90 if justice = small remedy)
	
2) As a judge:
		- use many different views (dissent & the evolution of law)
		- move from the formal (Holmesian) to the substantive (§90)
			- sensible to use §71, §90, or a combo (Allegheny)
			- substantive approach rejects strict interpretation of rules such as PELD (see Feinberg)

	3) As a law student:
		a)  Memorize – Holmesian, §71, §90, mirror image rule, implied in fact contracts, unilateral contract & 
4 ways to deal w/it, 3 moves in PER, MY LEGS, 2 part test for U, and who can sue as a 3PB
		b) Know how to discuss & apply – PELD, Moral Considerations, & Special rules, ambiguous O & A's, 
when silence can bind a party, firm offers, errors in transmission, factors relevant to GF & U, factors 
relevant to recognizing a 3rd party B
		c) Analysis – careful attention to parties & what was said (was there a promise?), need to recognize 
test in order to apply them, and exceptions/policy considerations for that test

Contracts Cases to Consider
1ST QUESTION:  WAS THERE A PROMISE?
I.	The Formation of Contracts
A.	Need for a Promise (Intent to be Bound)
1.	Hurley – there is personal liberty to enter into contracts/promises (dr’s aren’t obligated to treat you)
2.	Davis – indefiniteness as to legal enforcement = no contract (no true reliance by P for recipe use by D b/c she relies on an indefinite amount of $)
3.	Mabley – even if employer states there is no legally binding contract, there is consideration if it induces future & rewards past employment (in a definite amount)
B:	Implied Contracts
1.	Young & Ashburnham – D stayed at P’s inn, but no real promise to pay b/c no specific amount was agreed upon; contracts need to be definite but not explicit 
(cts today will fill-in indefinite terms by looking at background terms & circumstances)
2.	Hertzog – no contract where a family relationship can account for the situation (son can’t sue for dad for wages)
3.	Barnet’s Estate – no wage contract b/c the wife was working for the “mutual benefit” of the family
4.	Cropsey – wife not legally married but can’t claim “servant wages” from estate b/c it disrespects her position (she is not a servant or a “harlot”)
5.	Shaw – wife not legally married but can claim estate b/c the husband breached the implied-in-fact contract of marriage-ability 
6.	Hewitt – where husband knew there was no common law marriage (express contract), he defrauded wife of its benefits (implied-in-fact K)
	C:	Indefinite Contracts/Offer & Acceptance – Offers
1.	Lefkowitz – Ks must be clear, definite, & explicit so only D’s ad to sell a $100 stole is a true offer
2.	Jenkins – ct applies mirror image rule to say Esso’s bid was counter-offer while P’s bid was a acceptance to buy D’s property
3.	Channel Master – uses tort theory to give P recovery for D’s “misinterpretation” of supply K terms
4.	Fairmount Glassworks – court offers the general strategy of offer & acceptance (facts adhere to the offer or look for a rejection/terms to take offer off the take table) when it rejects D’s counter-claim (“1st quality” good is implied) and change in quantity (D had left it open) arguments

Fairmont (Seller) = D
(Theory 1)	Fairmont (Seller) = D
(Theory 2)	Actions	Crunden (Buyer) = P	
 Invite to offer	Invite to offer	4/20 Telegram by P	Invite to offer (request info)	
Further Invite to offer	Offer	4/23 Return by D	Offer	
Offer	Counter-offer (specific terms)	4/24 by P	Acceptance	
Rejection  	Rejections	4/24 by D	Breach of Contract	

D:	Indefinite Contracts/Offer & Acceptance – Acceptances 
1.	Prescott – silence is not acceptance b/c we would bind P without his consent (if we force insurance to pay we would also have to force P to pay – unthinkable to make both liable)
2.	Ehrlich – (reverse of Prescott) silence is not acceptance b/c D would be forced to pay w/out P’s premiums (if insurance must pay we’ll also force P to pay – unthinkable to make neither liable)
3.	Austin – P tried to cancel newspaper subscription twice, but receipt & use of benefits = acceptance 
4.	Cole-McIntyre – okay if prior conduct/custom/separate agreement says silience = acceptance
5.	Langellier – court invokes mirror image rule to say that P’s “acceptance” qualified & departed from D’s offer to sell land (P’s delivery terms are a counter-offer)
6.	Butler –P’s delivery terms are a suggestion/request – opposite of Langellier
7.	US v Braunstein – when terms between parties are too good to be true or too ambiguous there can’t be real offer & acceptance (raisins not fit for human consumption)
E:	Indefinite Contracts/Offer & Acceptance – Firm Offers
1.	Dickinson – offeror is not bound (free to revoke) until acceptance when land is offered for sale
2.	James Baird – a bid is simply an offer & must have acceptance; PE is not enough
3.	Star Paving – a bid is a promise & can be relied upon following §90; PE is enough (“loss resulting from the mistake should fall on the party who caused it”)
F:	Unilateral Contracts (i.e. Box & Cox & the horses)
	1.	Carbolic Smoke Ball – D’s “flu” reward structure waived the need for P’s formal acceptance
G:	Means of Transmission
      1.   Butler – telegraph co. was D’s agent & thus D is liable for any mistakes made in transmission of the 
		offer to sell shares to P (when offeror specifies reply mode, he is liable for mistakes of that mode)
H:	3rd Party Beneficiaries (3PB)
1.	Lawrence – a creditor is an intended TPB in new contracts to pay off debt and can sue for that debt
2.	Socony-Vacuum Oil – ct ruled that a material supplier was intentional TPB in surety contracts by implied wording & transactions
II: General Interpretation
A:	Parole Evidence Rule (Prior Contracts Discharge Game)
1.	Thompson – ct rules that quality of goods (i.e. logs) is specifically tied to buying goods & can’t be a collateral agreement under PER
2.	Mitchell – ct says removal of outhouse from land purchased was too important to be considered a collateral matter & thus should have been in the agreement (completeness)
3.	Zell – sales contract is not complete if it specifically leaves out elements on purpose (to fool others)

B:	Statute Of Frauds (SOF)
1.	Bader – agreement’s part performance (her marriage) is an exception to the SOF (he must give land)
2.   Doyle – performance contracts that could have been performed within one year via the death of the performer do not fall under the SOF (promise not to open a grocery business)
2.	Imperator Realty – reliance upon an agreement to modify a realty contract = exception to the SOF

III.	Regulating content
A:	The Duty to Bargain in Good Faith 
1.	Sun Printing – without specificity, negotiation of newsprint is no contract (“agreement to agree”)
2.	Red Owl – a party that repeatedly changes terms is not negotiating in good faith & the other party can use reliance (§90) to recover
	3.	Lucy, Lady Duff-Gordon – there is an obligation to good faith performance of a business contract even without specificity
B:  Economic Liability/Consumer Protection -- Unconscionability (U) 
1.	American Home Improvement – when home improvements were of little or no value, a contract for credit payment is U
2.	Williams v Walker-Thomas – ct rules add-on clause for a stereo U b/c P lacked meaningful choice & terms were unreasonably favorable to D 
3.	Patterson v Walker-Thomas – trial ct said price alone  U, but appellate ct said price = U if P can offer up evidence of why the price of the goods was exorbitant 
4.	Jones – ct says price alone = U esp. with poor people & the sales pressure of door-to-door salesmen
5.	Kugler – ct reads U into a statute to give class relief b/c fraud (misrepresentation) is found w/ 24 Ps

2ND QUESTION:  WAS THE PROMISE ENFORCEABLE?

I.	The Nature of Contract/Enforceable Promises

A:	The Bargain Theory & The Reliance Principle (PE)
1.	Siegel –consideration (enforcing promises) applied to cover burned furniture (sounds like reliance)
	- ct uses possessory transfer, bailments, & partial undertaking for support 
2.	Lusk-Harbison –LH’s forebearance of insurance is consideration
3.	Fisher – promises of lifetime/permanent employment (indefinite time) need special consideration 
4.	Underwood Typewriter – ct widens PE to unilateral contract between leasee and realtor

B:	Pre-Existing Legal Duty Rule (PELD)
1.	Stilk – shipmen were already legally bound to work on the ship & could not expect/demand more
2.	Feinberg – turn down PELD b/c MO ct says promisory estoppel is a type of consideration (P was promised $200 upon retirement, but D says she had PELD to continue working) 

C:	Gratuitous Non-Commercial Promises
1.	Balfour – marriage promises are not legally binding unless otherwise stated (no §71 or §90)
a. Williston on Contracts  -- return acts cannot be mere conditions of the promise/gift (must be more)
2.	Kirksey – bro may have sought after sis’s move, but it was a condition not a return act
	- conditions  consideration (b/c they don’t benefit the promisor)
3.	Devecmon – detrimental reliance on a gift promise = enforcement (trip to Europe)
4.   Hamer -- neither [material] benefit to promisor not [material] determent to the promisee (promise to 
pay nephew $5k not to smoke, drink) is needed in a bargain, look at "sought after" (o’rule Kirksey)
5.	Ricketts – equitable estoppel (really §90) will enforce gift promises if P incurred liability (niece relied on uncle’s promise of $2000 so she wouldn’t have to work)
6.	DeCicco – Cardozo does everything he can to make a marriage payment agreement apply to the form (if not substance) of bargain (Holmes) but not to PELD (new promise to both = no PELD)

D:	Moral Consideration (PAST consideration)
1.	Webb – (wide) the material benefit to promisor (P saved D’s life) imposes a moral duty for promisor to uphold (special type of consideration)
2.	Mills – (narrow) no moral consideration when nurse cares for adult son, but for public policy reasons (opposite of Webb) or technical barrier (like Gillingham)
3.	Gillingham – past obligations become moral consideration only if there is a legal bar to action (like statute of limitations on a debt obligation)

E:	Seals 
1.	Warren – no flourish seal allowed in wax seal state; easily executed & may not know its legality
2.	Krell – w/out 3 witnesses, Holmes says “consideration is as much a form as a seal” (process = seal)
3.	Pillans – writing supplant consideration with merchant promises (writing = enforceability) 

F: Charitable Subscription/Policy Considerations
1.	Allegheny – acceptance of a charity donation = implied promise to comply w/donors wishes =  consideration, but we don’t always need consideration in these cases(legitimates PE in America cts)
2.	Dworkin – interpretation of law, like literature, is concerned with fit & justification 
	- in Allegheny, Cardozo wants to adhere to the fit (cases/theories) and justification (good law/fair)
	- think of the 3 Total Recall ideas: realized hero, bad trip, and open texture (how you see it)