古文字翻译RESTATEMENT (SECOND) OF CONTRACTS

2021年1月20日发(作者：glove是什么意思)








Page 1
RESTATEMENT (SECOND) OF CONTRACTS
CHAPTER 1
MEANING OF TERMS
§
1. Contract Defined
§
2. Promise; Promisor; Promisee; Beneficiary
§
4. How a Promise May Be Made
CHAPTER 2
FORMATION OF CONTRACTS
–
PARTIES AND CAPACITY
§
12. Capacity to Contract
§
13. Persons Affected by Guardianship
§
14. Infants
§
15. Mental Illness or Defect
§
16. Intoxicated Persons
CHAPTER 3
FORMATION OF CONTRACTS
–
MUTUAL ASSENT
§
17. Requirement of a Bargain
§
18. Manifestation of Mutual Assent
§
20. Requirement of Manifestation of Mutual Assent
. (Restatement First)
§
20. Effect of Misunderstanding
§
22. Mode of Assent: Offer and Acceptance
§
24. Offer Defined
§
25. Option Contracts
§
26. Preliminary Negotiations

§
25. When a Manifestation of Intention is Not an Offer
§
27. Existence of Contract Where Written Memorial is Contemplated
§
30. Form of Acceptance Invited
§
32. Invitation of Promise or Performance
§
33. Certainty
§
34. Certainty and Choice of Terms; Effect of Performance or Reliance
§
35. The Offeree's Power of Acceptance
§
36. Methods of Termination of the Power of Acceptance
§
38. Rejection
§
39. Counter- offers






Page 2
§
38. Rejection of Offer by Counter- Offer
(Restatement First)
§
40. Time When Rejection or Counter-offer Terminates the Power of Acceptance
§
41. Lapse of Time
§
42. Revocation by Communication from Offeror Received by Offeree
§
43. Indirect Communication of Revocation
§
45. Option Contract Created by Part Performance or Tender
§
46. Revocation of General Offer
§
48. Death or Incapacity of Offeror or Offeree
§
50. Acceptance of Offer Defined; Acceptance by Performance; Acceptance by
Promise
§
51. Effect of Part Performance Without Knowledge of Offer
§
52. Who May Accept an Offer
§
53. Acceptance by Performance; Manifestation of Intention Not to Accept
§
54. Acceptance by Performance; Necessity of Notification to Offeror
§
55. Acceptance of Non-Promissory Offers
§
56. Acceptance by Promise; Necessity of Notification to Offeror
§
58. Necessity of Acceptance Complying with Terms of Offer
§
59. Purported Acceptance Which Adds Qualifications
§
60. Acceptance of Offer Which States Place, Time or Manner of Acceptance
§
61. Acceptance Which Requests Change of Terms
§
62. Effect of Performance by Offeree Where Offer Invites Either Performance or
Promise
§
63. Time When Acceptance Takes Effect
§
66. Acceptance Must be Properly Dispatched
§
69. Acceptance by Silence or Exercise of Dominion
CHAPTER 4
FORMATION OF CONTRACTS
–
CONSIDERATION
§
71. Requirement of Exchange; Types of Exchange
§
73. Performance of Legal Duty
§
74. Settlement of Claims
§
77. Illusory and Alternative Promises
§
79. Adequacy of Consideration; Mutuality of Obligation
§
81. Consideration as Motive or Inducing Cause
§
82. Promise to Pay Indebtedness; Effect on the Statute of Limitations
§
83. Promise to Pay Indebtedness Discharged in Bankruptcy






§
84. Promise to Perform a Duty in Spite of Non- occurrence of a Condition
§
86. Promise for Benefit Received
§
87. Option Contract
§
89. Modification of Executory Contract
§
90. Promise Reasonably Inducing Action or Forbearance
Page 3
§
90. Promise Reasonably Inducing Definite and Substantial Action
(Restatement
First)
§
95. Requirements for Sealed Contract or Written Contract or Instrument
CHAPTER 5
THE STATUTE OF FRAUDS
§
131. General Requisites of a Memorandum
§
132. Several Writings
§
139. Enforcement by Virtue of Action in Reliance
CHAPTER 6
MISTAKE
§
151. Mistake Defined
§
152. When Mistake of Both Parties Makes a Contract Voidable
§
153. When Mistake of One Party Makes a Contract Voidable
§
154. When a Party Bears the Risk of a Mistake
§
155. When Mistake of Both Parties as to Written Expression justifies Reformation
§
157. Effect of Fault of Party Seeking Relief
§
158. Relief Including Restitution
CHAPTER 7
MISREPRESENTATION, DURESS AND UNDUE INFLUENCE
§
161. When Non-Disclosure Is Equivalent to an Assertion
§
162. When a Misrepresentation Is Fraudulent or Material
§
164. When a Misrepresentation Makes a Contract Voidable
§
167. When a Misrepresentation Is an Inducing Cause
§
169. When Reliance on an Assertion of Opinion Is Not justified
§
174. When Duress by Physical Compulsion Prevents Formation of a Contract
§
175. When Duress by Threat Makes a Contract Voidable
§
176. When a Threat Is Improper
§
177. When Undue Influence Makes a Contract Voidable
CHAPTER 8
UNENFORCEABILITY ON GROUNDS OF PUBLIC POLICY






§
178. When a Term Is Unenforceable on Grounds of Public Policy
§
181. Effect of Failure to Comply with Licensing or Similar Requirement
§
182. Effect of Performance if Intended Use Is Improper
§
187. Non-Ancillary Restraints on Competition
§
188. Ancillary Restraints on Competition
§
194. Promise Interfering with Contract with Another
Page 4
§
195. Term Exempting from Liability for Harm Caused Intentionally, Recklessly or
Negligently
§
198. Restitution in Favor of Party who Is Excusably Ignorant or Is Not Equally in
the Wrong
CHAPTER 9
THE SCOPE OF CONTRACTUAL OBLIGATIONS
§
201. Whose Meaning Prevails
§
202. Rules in Aid of Interpretation
§
203. Standards of Preference in Interpretation
§
204. Supplying an Omitted Essential Term
§
205. Duty of Good Faith and Fair Dealing
§
206. Interpretation Against the Draftsman
§
208. Unconscionable Contract or Term
§
209. Integrated Agreements
§
210. Completely and Partially Integrated Agreements
§
211. Standardized Agreements
§
213. Effect of Integrated Agreement on Prior Agreements (Parol Evidence Rule)

§
214. Evidence of Prior or Contemporaneous Agreements and Negotiations
§
215. Contradiction of Integrated Terms
§
216. Consistent Additional Terms
§
217. Integrated Agreement Subject to Oral Requirement of a Condition
§
220. Usage Relevant to Interpretation
§
221. Usage Supplementing an Agreement
§
222. Usage of Trade
§
223. Course of Dealing
§
224. Condition Defined
§
225. Effects of the Non-Occurrence of a Condition
§
226. How an Event May Be Made a Condition
§
227. Standards of Preference with Regard to Conditions






§
228. Satisfaction of the Obligor as a Condition
§
229. Excuse of a Condition to Avoid Forfeiture
CHAPTER 10
PERFORMANCE AND NON- PERFORMANCE
§
234. Order of Performances
Page 5
§
235. Effect of Performance as Discharge and of Non-Performance as Breach
§
236. Claims for Damages for Total and for Partial Breach
§
237. Effect on Other Party's Duties of a Failure to Render Performance
§
238. Effect on Other Party's Duties of a Failure to Offer Performance
§
240. Part Performances as Agreed Equivalents
§
241. Circumstances Significant in Determining Whether a Failure Is Material
§
242. Circumstances Significant in Determining When Remaining Duties are
Discharged
§
243. Effect of a Breach by Non-Performance as Giving Rise to a Claim for
Damages for Total Breach
§
250. When a Statement or an Act Is a Repudiation
§
251. When a Failure to Give Assurance May Be Treated as a Repudiation
§
252. Effect of Insolvency
§
253. Effect of a Repudiation as a Breach and on Other Party's Duties
§
256. Nullification of Repudiation or Basis for Repudiation
§
257. Effect of Urging Performance in Spite of Repudiation
CHAPTER 11
IMPRACTICABILITY OF PERFORMANCE AND FRUSTRATION OF PURPOSE
§
261. Discharge by Supervening Impracticability
§
262. Death or Incapacity of Person Necessary for Performance
§
263. Destruction, Deterioration or Failure to Come into Existence of Thing
Necessary for Performance
§
265. Discharge by Supervening Frustration
§
266. Existing Impracticability or Frustration
§
272. Relief Including Restitution
CHAPTER 12
DISCHARGE BY ASSENT OR ALTERATION
§
281. Accord and Satisfaction
§
285. Contract Not to Sue
§
286. Alteration of Writing
CHAPTER 13






JOINT AND SEVERAL PROMISORS AND PROMISEES
§
288. Promises of the Same Performance
§
293. Effect of Performance or Satisfaction on Co-promisors
§
294. Effect of Discharge on Co-promisors
CHAPTER 14
CONTRACT BENEFICIARIES
§
302. Intended and Incidental Beneficiaries
§
309. Defenses Against the Beneficiary
§
311. Variation of a Duty to a Beneficiary
§
313. Government Contracts
CHAPTER 15
ASSIGNMENT AND DELEGATION
§
317. Assignment of a Right
§
318. Delegation of Performance of Duty
§
319. Delegation of Performance of Condition
§
321. Assignment of Future Rights
§
322. Contractual Prohibition of Assignment
Page 6
§
328. Interpretation of Words of Assignment; Effect of Acceptance of Assignment
§
331. Partially Effective Assignments
§
332. Revocability of Gratuitous Assignments
§
336. Defenses Against an Assignee
CHAPTER 16
REMEDIES
§
344. Purposes of Remedies
§
346. Availability of Damages
§
347. Measure of Damages in General
§
348. Alternatives to Loss in Value of Performance
§
349. Damages Based on Reliance Interest
§
350. Avoidability as a Limitation on Damages
§
351. Unforeseeability and Related Limitations on Damages
§
352. Uncertainty as a Limitation on Damages
§
353. Loss Due to Emotional Disturbance
§
354. Interest as Damages
§
355. Punitive Damages
§
356. Liquidated Damages and Penalties






§
359. Effect of Adequacy of Damages
§
360. Factors Affecting Adequacy of Damages
§
370. Requirement That Benefit Be Conferred
§
371. Measure of Restitution Interest
§
373. Restitution When Other Party Is in Breach
§
374. Restitution in Favor of Party in Breach
§
375. Restitution When Contract Is Within Statute of Frauds
§
376. Restitution When Contract Is Voidable
§
377. Restitution in Cases of Impracticability, Frustration, Non-Occurrence of
Condition or Disclaimer by Beneficiary
Page 7










RESTATEMENT (SECOND) OF CONTRACTS
CHAPTER 1
MEANING OF TERMS
§
1. Contract Defined
A contract is a promise or a set of promises for the breach of which the law gives

a remedy, or the performance of which the law in some way recognizes as a duty.
§
2. Promise; Promisor; Promisee; Beneficiary
(1) A promise is a manifestation of intention to act or refrain from acting in a
specified way, so made as to justify a promisee in understanding that a commitment
has been made.
(2) The person manifesting the intention is the promisor.
(3) The person to whom the manifestation is addressed is the promisee.
(4) Where performance will benefit a person other than the promisee, that person
is a beneficiary.


§
4. How a Promise May Be Made
A promise may be stated in words either oral or written, or may be inferred wholly
or partly from conduct.











Page 8
CHAPTER 2
FORMATION OF CONTRACTS
–
PARTIES AND CAPACITY
§
12. Capacity to Contract
(1) No one can be bound by contract who has not legal capacity to incur at least
voidable contractual duties. Capacity to contract may be partial and its existence in
respect of a particular transaction may depend upon the nature of the transaction or
upon other circumstances.
(2) A natural person who manifests assent to a transaction has full legal capacity
to incur contractual duties thereby unless he is
(a) under guardianship, or
(b) an infant, or
(c) mentally ill or defective, or
(d) intoxicated.




§
13. Persons Affected by Guardianship
A person has no capacity to incur contractual duties if his property is under
guardianship by reason of an adjudication of mental illness or defect.
§
14. Infants
Unless a statute provides otherwise, a natural person has the capacity to incur
only voidable contractual duties until the beginning of the day before the person's
eighteenth birthday.


§
15. Mental Illness or Defect
(1) A person incurs only voidable contractual duties by entering into a transaction
if by reason of mental illness or defect
(a) he is unable to understand in a reasonable manner the nature and
consequences of the transaction, or
(b) he is unable to act in a reasonable manner in relation to the transaction
and the other party has reason to know of his condition.
(2) Where the contract is made on fair terms and the other party is without
knowledge of the mental illness or defect, the power of avoidance under Subsection
(1) terminates to the extent that the contract has been so performed in whole or in
part or the circumstances have so changed that avoidance would be unjust. In such a
case a court may grant relief as justice requires.


§
16. Intoxicated Persons
A person incurs only voidable contractual duties by entering into a transaction if
the other party has reason to know that by reason of intoxication






(a) he is unable to understand in a reasonable manner the nature and
consequences of the transaction, or
Page 9
(b) he is unable to act in a reasonable manner in relation to the transaction.






CHAPTER 3
FORMATION OF CONTRACTS
–
MUTUAL ASSENT
§
17. Requirement of a Bargain
(1) Except as stated in Subsection (2), the formation of a contract requires a
bargain in which there is a manifestation of mutual assent to the exchange and a
consideration.
(2) Whether or not there is a bargain a contract may be formed under special
rules applicable to formal contracts or under the rules stated in §
§
82-94.


§
18. Manifestation of Mutual Assent
Manifestation of mutual assent to an exchange requires that each party either
make a promise or begin or render a performance.
[The predecessor of §
18 is §
20 of the First Restatement. It read as follows:


§
20. Requirement of Manifestation of Mutual Assent.
A manifestation of mutual assent by the parties to an informal contract is
essential to its formation and the acts by which such assent is manifested must be
done with the intent to do those acts; but, except as qualified by §
§
55, 71 and 72,
neither mental assent to the promises in the contract nor real or apparent intent that
the promises shall be legally binding is essential.]


§
20. Effect of Misunderstanding
(1) There is no manifestation of mutual assent to an exchange if the parties
attach materially different meanings to their manifestations and
(a) neither party knows or has reason to know the meaning attached by the
other; or
(b) each party knows or each party has reason to know the meaning
attached by the other.
(2) The manifestations of the parties are operative in accordance with the
meaning attached to them by one of the parties if
(a) that party does not know of any different meaning attached by the other,
and the other knows the meaning attached by the first party; or
(b) that party has no reason to know of any different meaning attached by
the other, and the other has reason to know the meaning attached by the first
party.







§
22. Mode of Assent: Offer and Acceptance
Page 10
(1) The manifestation of mutual assent to an exchange ordinarily takes the form
of an offer or proposal by one party followed by an acceptance by the other party or

parties.
(2) A manifestation of mutual assent may be made even though neither offer nor

acceptance can be identified and even though the moment of formation cannot be
determined.


§
24. Offer Defined
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.




§
25. Option Contracts
An option contract is a promise which meets the requirements for the formation
of a contract and limits the promisor's power to revoke an offer.
§
26. Preliminary Negotiations
A manifestation of willingness to enter into a bargain is not an offer if the person
to whom it is addressed knows or has reason to know that the person making it does
not intend to conclude a bargain until he has made a further manifestation of assent.
[The predecessor of §
26 is §
25 of the First Restatement. It reads as follows:


§
25. When a Manifestation of Intention is Not an Offer.
If from a promise, or manifestation of intention, or from the circumstances
existing at the time, the person to whom the promise or manifestation is addressed
knows or has reason to know that the person making it does not intend it as an
expression of his fixed purpose until he has given a further expression of assent, he
has not made an offer.]


§
27. Existence of Contract Where Written Memorial is Contemplated
Manifestations of assent that are in themselves sufficient to conclude a contract
will not be prevented from so operating by the fact that the parties also manifest an
intention to prepare and adopt a written memorial thereof, but the circumstances may
show that the agreements are preliminary negotiations.


§
30. Form of Acceptance Invited
(1) An offer may invite or require acceptance to be made by an affirmative
answer in words, or by performing or refraining from performing a specified act, or
may empower the offeree to make a selection of terms in his acceptance.
(2) Unless otherwise indicated by the language or the circumstances, an offer
invites acceptance in any manner and by any medium reasonable in the
circumstances.







§
32. Invitation of Promise or Performance
Page 11
In case of doubt an offer is interpreted as inviting the offeree to accept either by
promising to perform what the offer requests or by rendering the performance, as the
offeree chooses.


§
33. Certainty
(1) Even though a manifestation of intention 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.
(2) The terms of a contract are reasonably certain if they provide a basis for
determining the existence of a breach and for giving an appropriate remedy. (3) The
fact that one or more terms of a proposed bargain are left open or uncertain may
show that a manifestation of intention is not intended to be understood as an offer or

as an acceptance.


§
34. Certainty and Choice of Terms; Effect of Performance or
Reliance
(1) The terms of a contract may be reasonably certain even though it empowers
one or both parties to make a selection of terms in the course of performance.
(2) Part performance under an agreement may remove uncertainty and establish
that a contract enforceable as a bargain has been formed.
(3) Action in reliance on an agreement may make a contractual remedy
appropriate even though uncertainty is not removed.


§
35. The Offeree's Power of Acceptance
(1) An offer gives to the offeree a continuing power to complete the manifestation
of mutual assent by acceptance of the offer.
(2) A contract cannot be created by acceptance of an offer after the power of
acceptance has been terminated in one of the ways listed in §
36.


§
36. Methods of Termination of the Power of Acceptance
(1) An offeree's power of acceptance may be terminated by
(a) rejection or counter-offer by the offeree, or
(b) lapse of time, or
(c) revocation by the offeror, or
(d) death or incapacity of the offeror or offeree.
(2) In addition, an offeree's power of acceptance is terminated by the
nonoccurrence of any condition of acceptance under the terms of the offer.


§
38. Rejection
(1) An offeree's power of acceptance is terminated by his rejection of the offer,
unless the offeror has manifested a contrary intention.








Page 12
(2) A manifestation of intention not to accept an offer is a rejection unless the
offeree manifests an intention to take it under further advisement.
§
39. Counter-offers
(1) A counter-offer is an offer made by an offeree to his offeror relating to the
same matter as the original offer and proposing a substituted bargain differing from
that proposed by the original offer.
(2) An offeree's power of acceptance is terminated by his making of a counter-
offer, unless the offeror has manifested a contrary intention or unless the counter-
offer manifests a contrary intention of the offeree.
[The predecessor of §
39 is §
38 of the First Restatement. It read as follows:


§
38. Rejection of Offer by Counter-Offer.
A counter-offer by the offeree, relating to the same matter as the original offer, is
a rejection of the original offer, unless the offeror in his offer, or the offeree in his
counter-offer states that in spite of the counter-offer the original offer shall not be
terminated.]


§
40. Time When Rejection or Counter-offer Terminates the Power of
Acceptance
Rejection or counter-offer by mail or telegram does not terminate the power of
acceptance until received by the offeror, but limits the power so that a letter or

telegram of acceptance started after the sending of an otherwise effective rejection or
counter-offer is only a counter-offer unless the acceptance is received by the offeror
before he receives the rejection or counter-offer.


§
41. Lapse of Time
(1) An offeree's power of acceptance is terminated at the time specified in the
offer, or, if no time is specified, at the end of a reasonable time.
(2) What is a reasonable time is a question of fact, depending on all the
circumstances existing when the offer and attempted acceptance are made.
(3) Unless otherwise indicated by the language or the circumstances, and subject
to the rule stated in §
49, an offer sent by mail is seasonably accepted if an
acceptance is mailed at any time before midnight on the day on which the offer is
received.


§
42. Revocation by Communication from Offeror Received by
Offeree
An offeree's power of acceptance is terminated when the offeree receives from
the offeror a manifestation of an intention not to enter into the proposed contract.







§
43. Indirect Communication of Revocation
Page 13
An offeree's power of acceptance is terminated when the offeror takes definite
action inconsistent with an intention to enter into the proposed contract and the
offeree acquires reliable information to that effect.


§
45. Option Contract Created by Part Performance or Tender
(1) Where an offer invites an offeree to accept by rendering a performance and
does not invite a promissory acceptance, an option contract is created when the
offeree tenders or begins the invited performance or tenders a beginning of it.
(2) The offeror's duty of performance under any option contract so created is
conditional on completion or tender of the invited performance in accordance with the
terms of the offer.


§
46. Revocation of General Offer
Where an offer is made by advertisement in a newspaper or other general
notification to the public or to a number of persons whose identity is unknown to the
offeror, the offeree's power of acceptance is terminated when a notice of termination
is given publicity by advertisement or other general notification equal to that given to
the offer and no better means of notification is reasonably available.




§
48. Death or Incapacity of Offeror or Offeree
An offeree's power of acceptance is terminated when the offeree or offeror dies
or is deprived of legal capacity to enter into the proposed contract.
§
50. Acceptance of Offer Defined; Acceptance by Performance;
Acceptance by Promise
(1) Acceptance of an offer is a manifestation of assent to the terms thereof made
by the offeree in a manner invited or required by the offer.
(2) Acceptance by performance requires that at least part of what the offer
requests be performed or tendered and includes acceptance by a performance which
operates as a return promise.
(3) Acceptance by a promise requires that the offeree complete every act
essential to the making of the promise.


§
51. Effect of Part Performance Without Knowledge of Offer
Unless the offeror manifests a contrary intention, an offeree who learns of an
offer after he has rendered part of the performance requested by the offer may accept
by completing the requested performance.


§
52. Who May Accept an Offer
An offer can be accepted only by a person whom it invites to furnish the
consideration.







Page 14
§
53. Acceptance by Performance; Manifestation of Intention Not to
Accept
(1) An offer can be accepted by the rendering of a performance only if the offer

invites such an acceptance.
(2) Except as stated in §
69, the rendering of a performance does not constitute
an acceptance if within a reasonable time the offeree exercises reasonable diligence
to notify the offeror of non-acceptance.
(3) Where an offer of a promise invites acceptance by performance and does not
invite a promissory acceptance, the rendering of the invited performance does not
constitute an acceptance if before the offeror performs his promise the offeree
manifests an intention not to accept.


§
54. Acceptance by Performance; Necessity of Notification to
Offeror
(1) Where an offer invites an offeree to accept by rendering a performance, no
notification is necessary to make such an acceptance effective unless the offer

requests such a notification.
(2) If an offeree who accepts by rendering a performance has reason to know

that the offeror has no adequate means of learning of the performance with
reasonable promptness and certainty, the contractual duty of the offeror is discharged
unless
(a) the offeree exercises reasonable diligence to notify the offeror of
acceptance, or
(b) the offeror learns of the performance within a reasonable time, or
(c) the offer indicates that notification of acceptance is not required.




§
55. Acceptance of Non-Promissory Offers
Acceptance by promise may create a contract in which the offeror's performance
is completed when the offeree's promise is made.
§
56. Acceptance by Promise; Necessity of Notification to Offeror
Except as stated in §
69 or where the offer manifests a contrary intention, it is

essential to an acceptance by promise either that the offeree exercise reasonable
diligence to notify the offeror of acceptance or that the offeror receive the acceptance
seasonably.


§
58. Necessity of Acceptance Complying with Terms of Offer
An acceptance must comply with the requirements of the offer as to the promise
to be made or the performance to be rendered.







§
59. Purported Acceptance Which Adds Qualifications
Page 15
A reply to an offer which purports to accept it but is conditional on the offeror's
assent to terms additional to or different from those offered is not an acceptance but
is a counter-offer.


§
60. Acceptance of Offer Which States Place, Time or Manner of
Acceptance
If an offer prescribes the place, time or manner of acceptance its terms in this
respect must be complied with in order to create a contract. If an offer merely
suggests a permitted place, time or manner of acceptance, another method of
acceptance is not precluded.


§
61. Acceptance Which Requests Change of Terms
An acceptance which requests a change or addition to the terms of the offer is

not thereby invalidated unless the acceptance is made to depend on an assent to the
changed or added terms.


§
62. Effect of Performance by Offeree Where Offer Invites Either
Performance or Promise
(1) Where an offer invites an offeree to choose between acceptance by promise
and acceptance by performance, the tender or beginning of the invited performance
or a tender of a beginning of it is an acceptance by performance.
(2) Such an acceptance operates as a promise to render complete performance.


§
63. Time When Acceptance Takes Effect
Unless the offer provides otherwise,
(a) an acceptance made in a manner and by a medium invited by an offer

is operative and completes the manifestation of mutual assent as soon as put
out of the offeree's possession, without regard to whether it ever reaches the
offeror; but
(b) an acceptance under an option contract is not operative until received
by the offeror.


§
66. Acceptance Must be Properly Dispatched
An acceptance sent by mail or otherwise from a distance is not operative when
dispatched, unless it is properly addressed and such other precautions taken as are
ordinarily observed to insure safe transmission of similar messages.


§
69. Acceptance by Silence or Exercise of Dominion
(1) Where an offeree fails to reply to an offer, his silence and inaction operate as
an acceptance in the following cases only:






Page 16
(a) Where an offeree takes the benefit of offered services with reasonable
opportunity to reject them and reason to know that they were offered with the
expectation of compensation.
(b) Where the offeror has stated or given the offeree reason to understand
that assent may be manifested by silence or inaction, and the offeree in
remaining silent and inactive intends to accept the offer.
(c) Where because of previous dealings or otherwise, it is reasonable that
the offeree should notify the offeror if he does not intend to accept.
(2) An offeree who does any act inconsistent with the offeror's ownership of
offered property is bound in accordance with the offered terms unless they are
manifestly unreasonable. But if the act is wrongful as against the offeror it is an
acceptance only if ratified by him.






CHAPTER 4
FORMATION OF CONTRACTS
–
CONSIDERATION
§
71. Requirement of Exchange; Types of Exchange
(1) To constitute consideration, a performance or a return promise must be
bargained for.
(2) A performance or return promise is bargained for if it is sought by the
promisor in exchange for his promise and is given by the promisee in exchange for

that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal relation.
(4) The performance or return promise may be given to the promisor or to some
other person. It may be given by the promisee or by some other person.


§
73. Performance of Legal Duty
Performance of a legal duty owed to a promisor which is neither doubtful nor the
subject of honest dispute is not consideration; but a similar performance is
consideration if it differs from what was required by the duty in a way which reflects
more than a pretense of bargain.


§
74. Settlement of Claims
(1) Forbearance to assert or the surrender of a claim or defense which proves to
be invalid is not consideration unless
(a) the claim or defense is in fact doubtful because of uncertainty as to the
facts or the law, or






Page 17
(b) the forbearing or surrendering party believes that the claim or defense
may be fairly determined to be valid.
(2) The execution of a written instrument surrendering a claim or defense by one
who is under no duty to execute it is consideration if the execution of the written
instrument is bargained for even though he is not asserting the claim or defense and
believes that no valid claim or defense exists.


§
77. Illusory and Alternative Promises
A promise or apparent promise is not consideration if by its terms the promisor or
purported promisor reserves a choice of alternative performances unless
(a) each of the alternative performances would have been consideration if it
alone had been bargained for; or
(b) one of the alternative performances would have been consideration and
there is or appears to the parties to be a substantial possibility that before the
promisor exercises his choice events may eliminate the alternatives which
would not have been consideration.


§
79. Adequacy of Consideration; Mutuality of Obligation
If the requirement of consideration is met, there is no additional requirement of
(a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or
detriment to the promisee; or
(b) equivalence in the values exchanged; or
(c)


§
81. Consideration as Motive or Inducing Cause
(1) The fact that what is bargained for does not of itself induce the making of a
promise does not prevent it from being consideration for the promise.
(2) The fact that a promise does not of itself induce a performance or return
promise does not prevent the performance or return promise from being
consideration for the promise.


§
82. Promise to Pay Indebtedness; Effect on the Statute of
Limitations
(1) A promise to pay all or part of an antecedent contractual or quasi-contractual
indebtedness owed by the promisor is binding if the indebtedness is still enforceable
or would be except for the effect of a statute of limitations.
(2) The following facts operate as such a promise unless other facts indicate a
different intention:
(a) A voluntary acknowledgment to the obligee, admitting the present
existence of the antecedent indebtedness; or
(b) A voluntary transfer of money, a negotiable instrument, or other thing by
the obligor to the obligee, made as interest on or part payment of or collateral
security for the antecedent indebtedness; or








(c) A statement to the obligee that the statute of limitations will not be
pleaded as a defense.
Page 18
§
83. Promise to Pay Indebtedness Discharged in Bankruptcy
An express promise to pay all or part of an indebtedness of the promisor,
discharged or dischargeable in bankruptcy proceedings begun before the promise is
made, is binding.


§
84. Promise to Perform a Duty in Spite of Non- occurrence of a
Condition
(1) Except as stated in Subsection (2), a promise to perform all or part of a
conditional duty under an antecedent contract in spite of the non-occurrence of the
condition is binding, whether the promise is made before or after the time for the
condition to occur, unless
(a) occurrence of the condition was a material part of the agreed exchange
for the performance of the duty and the promisee was under no duty that it
occur; or
(b) uncertainty of the occurrence of the condition was an element of the risk
assumed by the promisor.
(2) If such a promise is made before the time for the occurrence of the condition
has expired and the condition is within the control of the promisee or a beneficiary,
the promisor can make his duty again subject to the condition by notifying the
promisee or beneficiary of his intention to do so if
(a) the notification is received while there is still a reasonable time to cause
the condition to occur under the antecedent terms or an extension given by the
promisor; and
(b) reinstatement of the requirement of the condition is not unjust because
of a material change of position by the promisee or beneficiary; and
(c) the promise is not binding apart from the rule stated in Subsection (1).


§
86. Promise for Benefit Received
(1) A promise made in recognition of a benefit previously received by the
promisor from the promisee is binding to the extent necessary to prevent injustice.
(2) A promise is not binding under Subsection (1)
(a) if the promisee conferred the benefit as a gift or for other reasons the
promisor has not been unjustly enriched; or
(b) to the extent that its value is disproportionate to the benefit.


§
87. Option Contract
(1) An offer is binding as an option contract if it
(a) is in writing and signed by the offeror, recites a purported consideration
for the making of the offer, and proposes an exchange on fair terms within a
reasonable time; or






Page 19
(b) is made irrevocable by statute.
(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.


§
89. Modification of Executory Contract
A promise modifying a duty under a contract not fully performed on either side is

binding
(a) if the modification is fair and equitable in view of circumstances not
anticipated by the parties when the contract was made; or
(b) to the extent provided by statute; or
(c) to the extent that justice requires enforcement in view of material
change of position in reliance on the promise.


§
90. Promise Reasonably Inducing Action or Forbearance
(1) A promise which the promisor should reasonably expect to induce action or

forbearance on the part of the promisee or a third person and which does induce
such action or forbearance is binding if injustice can be avoided only by enforcement
of the promise. The remedy granted for breach may be limited as justice requires.
(2) A charitable subscription or a marriage settlement is binding under
Subsection (1) without proof that the promise induced action or forbearance.
[The predecessor of §
90, in the First Restatement, read as follows:


§
90. Promise Reasonably Inducing Definite and Substantial Action.
A promise which the promisor should reasonably expect to induce action or

forbearance of a definite and substantial character on the part of the promisee and
which does induce such action or forbearance is binding if injustice can be avoided
only by enforcement of the promise.]


§
95. Requirements for Sealed Contract or Written Contract or
Instrument
[The Introduction to this topic notes that the effect of a seal is governed by
statute in most states.]
(1) In the absence of statute a promise is binding without consideration if
(a) it is in writing and sealed; and
(b) the document containing the promise is delivered; and
(c) the promisor and promisee are named in the document or so described
as to be capable of identification when it is delivered.






Page 20
(2) When a statute provides in effect that a written contract or instrument is
binding without consideration or that lack of consideration is an affirmative defense to
an action on a written contract or instrument, in order to be subject to the statute a
promise must either
(a) be expressed in a document signed or otherwise assented to by the
promisor and delivered; or
(b) be expressed in a writing or writings to which both promisor and
promisee manifest assent.






CHAPTER 5
THE STATUTE OF FRAUDS
§
131. General Requisites of a Memorandum
Unless additional requirements are prescribed by the particular statute, a
contract within the Statute of Frauds is enforceable if it is evidenced by any writing,
signed by or on behalf of the party to be charged, which
(a) reasonably identifies the subject matter of the contract,
(b) is sufficient to indicate that a contract with respect thereto has been
made between the parties or offered by the signer to the other party, and
(c) states with reasonable certainty the essential terms of the unperformed
promises in the contract.


§
132. Several Writings
The memorandum may consist of several writings if one of the writings is signed
and the writings in the circumstances clearly indicate that they relate to the same
transaction.


§
139. Enforcement by Virtue of Action in Reliance
(1) A promise which the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and which does induce the
action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice
can be avoided only by enforcement of the promise. The remedy granted for breach
is to be limited as justice requires.
(2) In determining whether injustice can be avoided only by enforcement of the
promise, the following circumstances are significant:
(a) the availability and adequacy of other remedies, particularly cancellation
and restitution;
(b) the definite and substantial character of the action or forbearance in
relation to the remedy sought;
(c) The extent to which the action of forbearance corroborates evidence of
the making and terms of the promise, or the making and terms are otherwise
established by clear and convincing evidence;






Page 21
(d) the reasonableness of the action or forbearance;
(e) the extent to which the action of forbearance was foreseeable by the
promisor.








CHAPTER 6
MISTAKE
§
151. Mistake Defined
A mistake is a belief that is not in accord with the facts.
§
152. When Mistake of Both Parties Makes a Contract Voidable

(1) Where a mistake of both parties at the time a contract was made as to a basic
assumption on which the contract was made has a material effect on the agreed
exchange of performances, the contract is voidable by the adversely affected party
unless he bears the risk of the mistake under the rule stated in §
154.
(2) In determining whether the mistake has a material effect on the agreed
exchange of performances, account is taken of any relief by way of reformation,
restitution, or otherwise.


§
153. When Mistake of One Party Makes a Contract Voidable
Where a mistake of one party at the time a contract was made as to a basic
assumption on which he made the contract has a material effect on the agreed
exchange of performances that is adverse to him, the contract is voidable by him if he
does not bear the risk of the mistake under the rule stated in §
154, and
(a) the effect of the mistake is such that enforcement of the contract would
be unconscionable, or
(b) the other party had reason to know of the mistake or his fault caused
the mistake.


§
154. When a Party Bears the Risk of a Mistake
A party bears the risk of a mistake when
(a) the risk is allocated to him by agreement of the parties, or
(b) he is aware, at the time the contract is made, that he has only limited
knowledge with respect to the facts to which the mistake relates but treats his
limited knowledge as sufficient, or
(c) the risk is allocated to him by the court on the ground that it is
reasonable in the circumstances to do so.







§
155. When Mistake of Both Parties as to Written Expression
justifies Reformation
Page 22
Where a writing that evidences or embodies an agreement in whole or in part
fails to express the agreement because of a mistake of both parties as to the contents
or effect of the writing, the court may at the request of a party reform the writing to
express the agreement, except to the extent that rights of third parties such as good
faith purchasers for value will be unfairly affected.


§
157. Effect of Fault of Party Seeking Relief
A mistaken party's fault in failing to know or discover the facts before making the
contract does not bar him from avoidance or reformation under the rules stated in this

Chapter, unless his fault amounts to a failure to act in good faith and in accordance
with reasonable standards of fair dealing.


§
158. Relief Including Restitution
(1) In any case governed by the rules stated in this Chapter, either party may
have a claim for relief including restitution under the rules stated in §
§
240 and 376.
(2) In any case governed by the rules stated in this Chapter, if those rules
together with the rules stated in Chapter 16 will not avoid injustice, the court may
grant relief on such terms as justice requires including protection of the parties'
reliance interests.






CHAPTER 7
MISREPRESENTATION, DURESS AND UNDUE INFLUENCE
§
161. When Non-Disclosure Is Equivalent to an Assertion
A person's non-disclosure of a fact known to him is equivalent to an assertion
that the fact does not exist in the following cases only:
(a) where he knows that disclosure of the fact is necessary to prevent
some previous assertion from being a misrepresentation or from being
fraudulent or material.
(b) where he knows that disclosure of the fact would correct a mistake of
the other party as to a basic assumption on which that party is making the
contract and if non-disclosure of the fact amounts to a failure to act in good faith
and in accordance with reasonable standards of fair dealing.
(c) where he knows that disclosure of the fact would correct a mistake of
the other party as to the contents or effect of a writing, evidencing or embodying
an agreement in whole or in part.
(d) where the other person is entitled to know the fact because of a relation
of trust and confidence between them.







§
162. When a Misrepresentation Is Fraudulent or Material
Page 23
(1) A misrepresentation is fraudulent if the maker intends his assertion to induce
a party to manifest his assent and the maker
(a) knows or believes that the assertion is not in accord with the facts, or
(b) does not have the confidence that he states or implies in the truth of the
assertion, or
(c) knows that he does not have the basis that he states or implies for the
assertion.
(2) A misrepresentation is material if it would be likely to induce a reasonable
person to manifest his assent, or if the maker knows that it would be likely to induce
the recipient to do so.


§
164. When a Misrepresentation Makes a Contract Voidable
(1) If a party's manifestation of assent is induced by either a fraudulent or a
material misrepresentation by the other party upon which the recipient is justified in
relying, the contract is voidable by the recipient.
(2) If a party's manifestation of assent is induced by either a fraudulent or a
material misrepresentation by one who is not a party to the transaction upon which
the recipient is justified in relying, the contract is voidable by the recipient, unless the
other party to the transaction in good faith and without reason to know of the
misrepresentation either gives value or relies materially on the transaction.


§
167. When a Misrepresentation Is an Inducing Cause
A misrepresentation induces a party's manifestation of assent if it substantially
contributes to his decision to manifest his assent.
§
168. Reliance on Assertions of Opinion
(1) An assertion is one of opinion if it expresses only a belief, without certainty,
as to the existence of a fact or expresses only a judgment as to quality, value,
authenticity, or similar matters.
(2) If it is reasonable to do so, the recipient of an assertion of a person's opinion
as to facts not disclosed and not otherwise known to the recipient may properly
interpret it as an assertion
(a) that the facts known to that person are not incompatible with his

opinion, or
(b) that he knows facts sufficient to justify him in forming it.


§
169. When Reliance on an Assertion of Opinion Is Not justified
To the extent that an assertion is one of opinion only, the recipient is not justified
in relying on it unless the recipient
(a) stands in such a relation of trust and confidence to the person whose
opinion is asserted that the recipient is reasonable in relying on it, or