Contracts Templates
The writing templates for this subject are presented in the following outline.
Practical Outline
Unlike a typical conceptual outline, the following outline is organized according to the typical flow of litigation. It begins with the (1) plaintiff’s required showings, then addresses (2) the defendant’s typical responses. This is done to help frame the issues in a practical context and make them easier to spot.
1. Plaintiff Claims Breach of Contract
Typically, when a party files, a complaint, they are going to be alleging a defendant breached a contract. First, they will have to show that a contract was formed.
- See Contract Formation
Once formation is established, the plaintiff must demonstrate that the defendant failed to perform their contractual obligations. Breach can be asserted based on one or more of the following grounds:
- Nonperformance
- Anticipatory Repudiation
- Failure of Assurances
- Failure to Satisfy a Condition
- Warranty Breached
The plaintiff will likely claim that a material breach resulted.
- Type of Breach
Then, the plaintiff will claim legal and equitable remedies.
- See Remedies
2. Defendant’s Response
The defendant will allege one or more of the following.
After the plaintiff alleges breach, the defendant may respond with one or more defenses. The defendant’s response will generally fall into one of the following categories:
A. Contract Defenses (Defendant argues there is a valid reason why they should not be held liable under the contract.)
1. Formation Defenses (arguing that no valid contract was formed):
• Lack of offer, acceptance, or consideration
• Lack of mutual assent (e.g., fraud, mistake, misrepresentation)
• Lack of capacity (e.g., minor, intoxicated, mentally incompetent)
• Illegality or public policy violations
2. Enforceability Defenses (arguing the contract should not be enforced even if formed):
• Statute of Frauds – The contract was required to be in writing but was not.
• Unconscionability – The contract or a specific term is unfairly one-sided.
• Duress – The defendant was forced into the contract under improper threats.
• Undue Influence – The plaintiff improperly pressured the defendant into the contract.
B. Performance-Based Defenses
1. Failure of Condition – The plaintiff failed to satisfy a condition precedent required for performance.
2. Substantial Performance – Even if there was a breach, the defendant substantially performed their obligations, limiting the plaintiff’s recovery.
C. Discharge of Obligation (Defendant argues that they were excused from performing their obligations.)
1. Impossibility – Performance is objectively impossible (e.g., destruction of subject matter).
2. Impracticability – Performance is extremely burdensome due to unforeseen events.
3. Frustration of Purpose – The contract’s purpose has been destroyed by unexpected circumstances.
4. Rescission – The contract was mutually canceled by the parties.
5. Modification – The contract was legally modified, altering the defendant’s obligations.
6. Accord and Satisfaction – The parties agreed to a substituted performance.
7. Novation – A new party replaced the defendant in the contract.
D. Damages & Mitigation Defenses
1. Failure to Mitigate – The plaintiff failed to take reasonable steps to reduce their losses.
2. Limitations on Damages – The plaintiff’s damages are speculative or not foreseeable.
3. Liquidated Damages Clause – The contract includes an agreed-upon damages provision.
(For further analysis, see Defenses & Discharge.)
3. Third Party Issues
In some cases, third parties may be involved in a contract dispute, either because the plaintiff is trying to impose liability on them or because the plaintiff themselves is a third-party beneficiary.
A. Defendant as a Third Party
If the defendant is not an original party to the contract but the plaintiff attempts to attach liability, the plaintiff must establish liability based on one of the following:
1. Assignment and Delegation of Duties
• Assignment – One party transfers their rights under the contract to a third party.
• Delegation – One party transfers their contractual duties to a third party.
• Limitations – Certain duties (e.g., personal services) may not be delegable.
2. Novation
• A new contract replaces the original, with a third party assuming the obligations.
• Requires the clear intent of all parties to release the original party.
3. Third-Party Liability in Contract Formation
• Implied-in-Fact Contracts – If the third party’s conduct implied agreement to contract terms.
• Promissory Estoppel – If the plaintiff relied on the third party’s promise to their detriment.
B. Plaintiff as a Third-Party Beneficiary
If the plaintiff is a third party attempting to enforce a contract, they must show:
1. Intended vs. Incidental Beneficiary
• Intended Beneficiary – The contract was made for their direct benefit, and they have enforcement rights.
• Incidental Beneficiary – The benefit was indirect, and they have no enforcement rights.
2. Types of Intended Beneficiaries
• Creditor Beneficiary – The contract was intended to satisfy a debt owed to the third party.
• Donee Beneficiary – The contract was intended as a gift to the third party.
3. Claiming a Breach as a Third-Party Beneficiary
• Must show a valid contract existed.
• Must show the promisor (contracting party) failed to perform their obligation.
• Must establish standing as an intended beneficiary under the contract.
Contract Formation
A contract is formed when: (1) an offeror makes an offer; (2) an offeree accepts the offer; and (3) the parties exchange consideration. The standards for determining what constitutes an offer, acceptance, and consideration may vary depending on whether the contract is governed by the common law or the Uniform Commercial Code (UCC).
Defenses to the Formation of a Contract
Put something here.
Offer-Related Defenses:
Consideration Related Defenses:
Defenses to the Enforceability of a Contract
[A bit about the enforceability of contracts.]
- Illegality
- Unconscionability
- Public Policy
- Statute of Frauds
- Implied Duty of Good Faith and Fair Dealing
Warranty Breach
Common Law Warranties (Services & Real Property)
• Express Warranty Breach – Failure to fulfill specific promises made in the contract.
• Implied Warranty of Workmanlike Performance – Services must be performed with reasonable skill and care.
• Implied Warranty of Habitability – A landlord must maintain premises fit for human habitation.
• UCC Warranties (Sale of Goods)
• Express Warranty Breach (§ 2-313) – A seller’s affirmations, descriptions, or promises about the goods fail to hold true.
• Implied Warranty of Merchantability (§ 2-314) – The goods are not fit for their ordinary purpose.
• Implied Warranty of Fitness for a Particular Purpose (§ 2-315) – The goods do not serve the buyer’s specific purpose, despite seller recommendations.
Common Law Remedies
When legal remedies (monetary compensation) is insufficient to resolve the breach adequately, the court may consider equitable remedies.
Legal Remedies (Monetary)
If a contract contains a valid liquidated damages clause, that clause controls the measure of damages, meaning the nonbreaching party cannot recover expectation damages, provided the clause is enforceable.
- Liquidated Damages
However, if the liquidated damages clause is unenforceable or non-existent, then the nonbreaching party may seek compensatory damages. If expectation damages are too speculative, the nonbreaching party may recover reliance damages, compensating for expenditures made in reliance on the contract. If reliance damages are unavailable or insufficient, the nonbreaching party may seek legal restitution to recover the value of the benefit conferred on the breaching party.
- Compensatory Damages
Compensatory Damages = Loss in Value + Other Loss – Cost Avoided – Loss Avoided
Or, alternatively:
Compensatory Damages = Loss in Value (Expectation Damages) + Other Loss (Consequential and Incidental Damages) – Cost Avoided – Loss Avoided
If expectation damages are too speculative, the nonbreaching party may recover reliance damages. If reliance damages are unavailable or insufficient, the nonbreaching party may seek legal restitution.
- Reliance Damages
- Legal Restitution
Equitable Remedies (Non-Monetary)
The plaintiff may argue the monetary compensation (legal remedies) is insufficient to resolve the breach adequately.
- Legal Remedies Insufficient
When monetary compensation (legal remedies) is insufficient to resolve the breach adequately, the court may consider equitable remedies.
- Specific Performance/Injunction
- Rescission
- Reformation
- Cancellation
- Declaratory Judgment
UCC Remedies
When a seller’s time for performance arrives under a contract for the sale of goods, the seller may:
- Fail to tender – The seller does not deliver the goods at all (breach by the seller).
- Make a nonconforming tender – The seller delivers goods that do not conform to the contract (breach by the seller).
- Make a conforming tender – The seller delivers the goods as agreed, fulfilling their obligations (performance by the seller).
The buyer’s rights and remedies depend on whether the seller has breached and the nature of the breach. Likewise, the seller has remedies when the buyer breaches. The Uniform Commercial Code (UCC) Article 2 governs these rights and obligations in the sale of goods.
Buyer's Remedies When Seller Breaches
If the seller fails to perform, the buyer has several remedies depending on the type of breach.
- Failure to Tender
- Nonconforming Tender
Seller’s Remedies when Buyer Breaches
If the buyer fails to fulfill their obligations, the seller has several remedies depending on the type of breach.
- Buyer Fails to Pay when Due
- Seller Discovers Buyer is Insolvent
- Wrongful Rejection
Risk of Loss
Who bears risk if something goes wrong?
If the goods are damaged or destroyed before delivery is complete, the risk of loss determines which party bears the cost.
- Risk of Loss
Insurable Interest in Goods
Who has title rights?
Determines when a party has a sufficient legal interest in goods to obtain insurance coverage.
- Buyer’s Insurable Interest
- Seller’s Insurable Interest
Title and Good Faith Purchasers
Who has insurance rights?
Addresses how ownership of goods is transferred and the rights of third parties who purchase goods.
- Passage of Title
- Good Faith Purchasers
Statute of Limitations on a Breach of Contract or Warranty
When can a claim be filed?
A time limit for bringing a claim for breach of contract or warranty.
- Statute of Limitations on a Breach of Contract or Warranty
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