Cases!
Where terms and conditions are included in the packaging of products, where use of product is assent?
Shrinkwrap Agreement (DeFontes v. Dell)
A professor tells a struggling 1L, Jomama:
“If you drop your research assistant job, I promise I will hire you next semester. You have my word.”
Jo relies on this: she quits her paid RA position and turns down another small stipend job.
Two months later, the professor changes their mind, saying they “never meant it as a formal commitment.” Jo ends up with no job and no income for the semester.
Does Jo have a claim to enforce his promise? Discuss.
Yes.[PE]
The statement is specific enough to reasonably induce reliance (“I promise I will hire you”).
Maya reasonably relied by quitting paid work and suffered detriment (lost income).
Injustice can only be avoided by enforcing the promise.
A university tells a job candidate: ‘You’re basically hired — start looking for housing.’ Candidate signs a one-year lease but later is never given the contract. Which element of PE is the lease? [+ relevant case]
Detrimental reliance +
Pops Cones
According to UCC § 2-207(2), one way that additional terms in an acceptance will be excluded from a merchants’ contract — when the additional terms do this to the original bargain.
Materially alter the contract
Under this section of the Uniform Commercial Code, a written confirmation or seasonable acceptance sent within a reasonable time can count as acceptance even if it includes additional or different terms.
UCC § 2-207
In this case, the seller’s acknowledgement included an indemnification clause not present in the buyer’s purchase order; because the purchase order expressly limited acceptance to its own terms, the indemnification clause was not part of the contract.
Brown Machine, Inc. v. Hercules, Inc.
(a) P conferred a benefit
(b) D had knowledge of and accepted benefit conferred
(c) D is unjustly enriched
A donor promises $5 million to a hospital and the hospital hires staff and architects in preparation. What doctrine allows enforcement of the pledge? [+ Caseish]
Charitable-subscription promissory estoppel
[King v. Trustees of BU]
Under UCC § 2-207, even if the writings exchanged by the parties don’t conclusively form a contract, a binding contract may still be found if both parties’ conduct shows they operated under an agreement.
UCC § 2-207(3) (acceptance by conduct)
What is a "Merchant" under UCC Article 2?
With respect to the sale of some kind of good, a merchant is one who (a) deals professionally in that kind of good or (b) holds himself out as having special knowledge related to that kind of good.
Rule of Law: A mistake by the promisor does not relieve them of their obligation if the promisee had no reason to know of the mistake and reasonably relied on the promise.
Drennan v. Star Paving Co.
Define PE
PE
1) clear promise
2) reasonable reliance
3) detriment (upon reasonable reliance)
4) injustice
Restatement §87(2) states that a relied-upon offer becomes this kind of contract — enforceable to the extent needed to avoid injustice. [Offer reasonably induced action]
Option K [Drennan & Baird]
Under this doctrine, if both parties send conflicting terms and neither becomes part of the contract, the conflicting terms cancel each other out.
knock-out rule
Can silence or failure to object be construed as assent under UCC § 2-207(2)?
Yes; UNLESS, materially alters etc.
Is a charity Subscription binding?
Restatement 2d § 90(2)
"a charitable subscription ... is binding under subsection (1) [which sets forth the promissory estoppel doctrine] without proof that the promise induced action or forbearance."
[King] ish
Law student Brianna is waitlisted for a competitive summer program.
The director emails her:
“If you withdraw from your other offers, I promise we will have a spot for you.” Hearing this, Brianna withdraws from two paid internships and signs a summer apartment lease near the program site.
A week before the program starts, the director tells her the promise was “just an informal assurance” and gives her spot to the child of a major donor. Brianna cannot get her internships back and is stuck paying rent.
Can Brianna recover? Under what theory? Explain.
Yes.
Brianna likely succeeds under Promissory Estoppel because:
Clear & definite promise: “We will have a spot for you” is specific, not vague encouragement.
Reasonable reliance: Withdrawing from paid internships and signing a lease are foreseeable and reasonable responses to the promise.
Detrimental reliance: She lost income opportunities and incurred rental costs.
Justice requires enforcement: Otherwise she eats the reliance losses caused by the promise.
During a hike, Leo collapses from dehydration. A passerby, Jamie, uses her own medical supplies, stabilizes him, and stays until help arrives. EMTs later confirm Jamie’s aid prevented organ damage.
A week later Leo emails:
“I would have been in the hospital for days without you. I will reimburse you $2,000, your usual EMT rate, for what you spent and did.”
Then he refuses to pay.
Restitution. [Pelo]
Jamie conferred a substantial, life-preserving, non-gratuitous benefit, and Leo’s later promise recognizes that benefit. Unlike Mills v. Wyman, this is not a purely moral obligation; Jamie’s actions directly benefited Leo by preventing significant bodily harm. Under the material benefit rule, Leo’s promise is enforceable to the extent necessary to avoid injustice (usually reimbursement-level damages).
According to this subsection of UCC § 2-207, additional terms in an acceptance become part of the contract between merchants — unless one of three exceptions applies.
UCC § 2-207(2)
(a) o expressly limited to its terms
(b) additional term materially alters K [s or h test]
(c) offeror gives notice of its objection
Breathe <3
<3
Rosa falls behind on her mortgage after a medical emergency. She files for Chapter 7 bankruptcy, planning to later convert to Chapter 13 so she can save her home by reinstating the mortgage.
Before she files the conversion paperwork, a representative from LenderCo calls Rosa and says:
“Don’t go through with the Chapter 13 conversion. If you hold off, we will work with you on a loan modification to keep you in your home.”
Rosa confirms this twice in writing, and the representative replies:
“Yes, we’re committed to helping you. We just need you to stop the bankruptcy process so we can move forward.”
Relying on LenderCo’s promise, Rosa does not convert to Chapter 13, and her Chapter 7 case closes.
Immediately afterward, LenderCo forecloses, saying it “never guaranteed” anything.
Discuss.
PE: [Aceves]
Promise
LenderCo’s assurance that it would “work with her on a loan modification” if she halted the bankruptcy process was a specific and actionable promise, similar to the bank’s assurances in Aceves.
This goes far beyond vague encouragement.
2. Reasonable Reliance
Rosa’s reliance was foreseeable and reasonable:
LenderCo directly told her not to convert to Chapter 13.
As in Aceves, the lender intended for her to act on that instruction.
3. Detriment
By not pursuing Chapter 13, Rosa lost her legal mechanism to save her home.
This parallels the detriment in Aceves where the homeowner forfeited bankruptcy protections.
4. Injustice
Given the lender’s inducement and Rosa’s loss of her only meaningful remedy, enforcement of the promise (via reliance damages) is necessary to avoid injustice.
Conclusion:
Rosa has a strong promissory estoppel claim for reliance damages.
Imagine you were in a logmill and you save your boss's life and you hurt yourself by saving him and you're in the south.
Webb v. McGowin
A father tells his adult son:
“If you enroll in that HVAC certification program, I’ll cover all your tuition. You should sign up soon so you don’t miss the deadline.”
The son immediately enrolls, pays the $4,000 tuition on his credit card, and starts classes.
Two weeks later, the father says he “only meant to support him emotionally” and refuses to pay.
The son sues.
The father gave a specific, definite promise (“I’ll cover tuition”).
He encouraged reliance (“sign up soon”).
Son actually relied (enrolling + paying).
This aligns with the Harvey v. Dow idea:
Actions + encouragement = implied or explicit enforceable promise.
This is not a mere gift promise, because it wasn’t casual generosity—it was designed to induce a specific act.
IN THE AIR DEBATABLE: Buyer sends a purchase order for 5,000 bolts. Seller sends back an acknowledgment stating: “Acceptance is expressly conditional on Buyer’s assent to our additional terms,” including an indemnity clause. Buyer says nothing, but Seller ships and Buyer accepts all goods.
Under UCC §2-207, is there a contract, and does the indemnity clause become part of it?
Yes K, but the indemnity clause does not become part of it
Explanation:
Seller’s “expressly conditional” language makes the acknowledgment a counteroffer (§2-207(1)).
Buyer did not expressly assent, so no contract forms by writings.
But a contract is formed by conduct (§2-207(3)): Seller ships, Buyer accepts.
Under §2-207(3), the contract consists only of terms on which the forms agree plus UCC gap-fillers.
The indemnity clause is a conflicting additional term, so it is knocked out.
So: Contract by conduct, without the indemnity clause.
A chemical manufacturer sends a Purchase Order to a plastics company for resin pellets:
‘Price: $100,000. Delivery by June 1. All disputes to be litigated in State A courts.’
The plastics company sends back an Acknowledgment stating:
‘We accept your order only if you agree to the terms on the reverse side,’
and those reverse-side terms include:
– A forum-selection clause requiring arbitration in State B,
– A warranty disclaimer,
– And a limitation of buyer’s remedies.
Despite no discussion of the differing dispute-resolution terms, the seller ships the goods, and the buyer accepts them.
A dispute arises, and each side tries to enforce its own forum-selection term.
Under § 2-207, what body of terms controls, and which dispute-resolution clause applies?
Seller’s Acknowledgment is an expressly-conditional acceptance, so under § 2-207(1) it is a counteroffer.
• Buyer accepted the counteroffer by accepting delivery/performance under common § 2-207 principles.
• However, because both parties have conflicting dispute-resolution terms, the knockout rule applies (different terms knock each other out).
• Gap-filler applies: dispute resolved under default UCC/regular state court jurisdiction, not either chosen forum.
• There is no arbitration and no State A clause — both are knocked out