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Interrogatories: Breach of Contract Formation issues: existence of offer, certainty of terms, and termination of offer. by Kevin R. Culhane Excerpted from Model Interrogatories As most practitioners are aware, a significant component of
contemporary law practice involves the litigation and resolution of contract
disputes. While the law of contracts is taught in every first-year law school
class, the substantive law as it has developed involves a complex array of legal
doctrine as the law seeks to respond to divergent mercantile transactions.
Discovery can be as complex as it is in any legal dispute. It has often been
observed that divergent policy objectives underlie the remedies available in
contract versus tort actions. Contract actions are said to enforce the
intentions of the parties to an agreement, whereas tort law is primarily
designed to vindicate identified “social policies.” (See, e.g.,
Erlich v. Menezes (1999) 21 Cal.4th 543,
550-551.) In this regard, courts have crafted careful distinctions between
recovery in tort and recovery for breach of contract in order to import an
element of certainty into transactions deemed necessary to advance commerce. ( Given the foregoing, the purpose of this chapter is to provide analysis of and interrogatories relating to common issues that arise in breach of contract cases. As is the case throughout this book, the analysis and interrogatories are organized according to the elements of plaintiff’s cause of action and the affirmative defenses thereto; each of these issues is treated from both the plaintiff and defense perspectives. §2601 Elements of Plaintiff’s Cause of Action A cause of action for breach of contract requires the plaintiff to plead and prove (1) the existence of a valid and subsisting contract based upon the mutual assent of the parties thereto; (2) the plaintiff’s performance or excuse for non-performance; (3) the defendant’s breach of said contract; and (4) resulting damages. (See Careau and Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) This chapter contains interrogatories exploring the parties’ respective contentions regarding each of these essential elements of the plaintiff’s claim, and does so from both the plaintiff and defense perspectives. §2602 Defenses in Breach of Contract Cases The law also recognizes a wide array of defenses that might be asserted in breach of contract actions. Defenses such as mutual mistake, fraud and misrepresentation, duress and undue influence go to the core fact of contract formation, because they tend to negate the parties’ mutual consent to be bound. Other defenses, such as unconscionability, the statute of frauds and illegality, etc., effectuate additional substantive policies recognized by the law. While a complete analysis of every contract defense is beyond the scope of this work, this chapter does include interrogatories allowing discovery of the facts, witnesses and writings upon which the parties rely in litigating many of the defenses that arise in contract litigation. §2610 Basic Information §2611 Information Regarding Defendant §2611.1 Identification of Defendant A basic litigation issue relates to the proper identification of the defendant. Accordingly, the interrogatories set forth in §211.1 should be consulted to determine the basic facts regarding the identity of the defendant, the defendant’s business format, and related issues. §2611.2 Personal Data Regarding the Defendant Claims for breach of contract may be directed against natural individuals. Accordingly, the interrogatories set forth in §§211.1 – 211.9 may be used to provide background information regarding the defendant. This information may shed light upon the claimed and actual reasons for the contractual breach, and may also develop information useful for impeachment. §2611.3 Agency Relationships In certain instances, a party to a contract may have acted as an agent for an undisclosed principal. The questions set forth in §213 explore specific agency relationships and include several general questions regarding imputed liability. The responses to these interrogatories may provide useful information to ensure that all legally responsible parties are included within the litigation. §2611.4 Similar Claims and Legal Proceedings The existence of other claims for breach of contract against a defendant may shed light on defendant’s general business practices and motivations. Further, an examination of the papers and files pertaining to similar litigation may tend to illuminate defendant’s litigation practices and provide the identity of potential experts. Therefore, the following interrogatories seek to determine whether the defendant has litigated breach of contract claims in the past.
§2612 Information Regarding Plaintiff §2612.1 Personal Data Regarding the Plaintiff Basic interrogatory discovery in breach of contract cases will include examination of the plaintiff’s personal background. Accordingly, the interrogatories set forth in §§211.1 – 211.9 have clear applicability and can be utilized verbatim for this purpose. §2612.2 Prior Actions for Breach of Contract The interrogatories set forth below seek to determine whether the plaintiff has advanced prior claims for breach of contract. The information developed as a result of this investigation can be probative of the number of legal issues, including the nature and extent of the damages plaintiff claims in the instant proceeding.
§2620 Contract Formation Issues In the most basic terms, the formation of an enforceable contract requires an offer, acceptance and consideration. The interrogatories set forth in the sections below examine common formation issues that arise in contract litigation. §2621 Existence of Offer – Plaintiff to Defendant An offer is the objective manifestation of willingness to enter into a bargain so made as to justify another person’s understanding that his assent to that bargain is invited and will conclude it. (Restatement 2d, Contracts §24.) Moreover, an offer must be sufficiently definite, or call for such definite terms in the acceptance, that the performance promised is reasonably certain. (Weddington Productions v. Flick (1998) 60 Cal.App.4th 793, 811.) In practice, it is often said that an offer must be reasonably certain as to parties, time for performance, subject matter and price. The interrogatories set forth in the sections that follow examine these issues from the plaintiff’s perspective. §2621.1 Objective Manifestation of Present Contractual Intent It is has been repeatedly stated that contract formation issues are governed by the objective theory of contracts; the outward manifestation of contractual intent controls over a party’s unexpressed intentions or understanding. (See, e.g., Zurich General Accident & Liability Ins. Co. Ltd. v. Industrial Accident Commission (1933) 132 Cal.App.101, 104.) The interrogatories set forth in this section examine the defendant’s contentions when the existence of an outward manifestation of present contractual intent is in dispute. §2621.1.1 Statements Not Contemplating Legal Enforceability Because the objective theory of contracts controls, the situation and context in which the alleged offer was communicated can be important. Stated otherwise, if it is clear from the words spoken or the surrounding context that the offeror did not intend a legally enforceable agreement, as when statements are made in jest or not otherwise contemplating legal relations, no enforceable contract is formed. (See, e.g., Fowler v. Security First National Bank of Los Angeles (1956) 146 Cal.App.2d 37, 47.) The interrogatories set forth in this section examine defendant’s contentions when the defendant claims that the context in which the words were spoken precludes any reasonable understanding that contractual relations were contemplated.
§2621.1.2 Invitation to Make Offer In some cases, and in particular those involving advertisements from mercantile vendors, the communication is not intended to invite the conclusion of an agreement by acceptance but rather solicits offers from the recipient. (See, e.g., Hanley v. Marsh & McLennan (1941) 46 Cal.App.2d 787; Restatement 2d, Contracts §26.) The interrogatories set forth in this section are for use in cases where the defendant contends that he made no offer but rather only solicited offers from the recipient.
§2621.2 Certainty of Terms Restatement 2d, §33 provides generally that even though a manifestation 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. The same section provides that the requirement of reasonable certainty is satisfied if the facts provide a basis for determining the existence of a breach and for giving an appropriate remedy. As noted above, in practice these issues arise when one party to the alleged contract claims that the parties, subject matter, time for performance, or price are not sufficiently certain. §2621.2.1 Parties to the Contract As noted above, an offer that is capable of acceptance typically must provide a basis for identifying the parties to the proposed agreement. The interrogatories set forth in this section explore defendant’s contentions where defendant asserts that the offer allegedly tendered was insufficiently certain regarding the parties to the agreement.
§2621.2.2 Subject Matter As noted above, an offer that is capable of acceptance typically must provide a basis for identifying the subject matter of the proposed agreement. The interrogatories set forth in this section explore defendant’s contentions where defendant asserts that the offer allegedly tendered was insufficiently certain regarding the subject matter of the agreement.
§2621.2.3 Time for Performance As noted above, an offer that is capable of acceptance typically must provide a basis for identifying the time for performance of the proposed agreement. The interrogatories set forth in this section explore defendant’s contentions where defendant asserts that the offer allegedly tendered was insufficiently certain regarding the time for performance of the agreement.
§2621.2.4 Price As noted above, an offer that is capable of acceptance typically must provide a basis for identifying the price for the proposed agreement. The interrogatories set forth in this section explore defendant’s contentions where defendant asserts that the offer allegedly tendered was insufficiently certain regarding the price for the agreement.
§2621.3 Termination of Offer Where an offer is sufficiently certain and manifests a present intention to be contractually bound, it vests in the offeree the power to create a binding contract by acceptance of the offer before the power has been terminated. (Restatement 2d, Contracts §35.) The power to accept may be terminated through several events, including lapse of time, revocation prior to acceptance, or rejection by the offeree. The interrogatories set forth below explore these issues. §2621.3.1 Lapse of Time Specified for Acceptance If the terms of an otherwise valid offer contain a period of time during which the offer is open for acceptance, the lapse of that period terminates the offeree’s ability to form a contract. (See California Civil Code §1587(2); Restatement 2d, Contracts §41.) The interrogatories set forth in this section explore defendant’s contentions where defendant asserts that the plaintiff’s ability to accept the offer was terminated through the lapse of the prescribed acceptance period.
§2621.3.2 Lapse of Reasonable Time Where the offer does not otherwise specify a period during which the offer may be accepted, the law nevertheless requires that the acceptance occur within a reasonable time. A reasonable time is determined with reference to all the surrounding circumstances, including trade usage and the purpose of the proposed contract. (See generally, Restatement 2d, Contracts §41(2); Witkin, Summary of California Law, Contracts (10th ed.) §157 at 196.) The interrogatories set forth in this section explore the defendant’s contentions when defendant asserts that the plaintiff’s power of acceptance was terminated through the lapse of time.
§2621.3.3 Revocation by Offeror An offer is revoked, and hence is no longer capable of acceptance, where notice of revocation has been communicated by the offeror to the offeree before the latter’s acceptance has been communicated. (California Civil Code §1587.) In general, the Restatement takes the position that revocation is effective and that the power to accept is thereby terminated upon receipt. (See generally, Restatement 2d, Contracts §42, cf. California Civil Code §1587.) The interrogatories set forth in the section that follows examine defendant’s contentions where defendant asserts the plaintiff’s ability to form a binding contract through acceptance was terminated by revocation.
§2621.3.4 Rejection by Offeree An offeree’s power to form a binding agreement by tendering an acceptance is terminated by his or her previous rejection of the offer. (See generally, Restatement 2d, Contracts §38.) The interrogatories in this section explore the defendant’s contentions where defendant asserts that plaintiff’s ability to tender an appropriate acceptance was terminated by the plaintiff’s prior rejection of defendant’s offer.
§2621.3.5 Counter-Offer A counter-offer proposing alterations to the material terms of the offer constitutes a rejection and terminates the offeree’s power of acceptance. (See Restatement 2d, Contracts §39.) The interrogatories set forth in this section explore defendant’s contentions where defendant asserts that the plaintiff’s power to form a binding agreement by tendering an appropriate acceptance was terminated by the plaintiff’s prior rejection through the tendering of a counter-offer.
Kevin R. Culhane is a partner with a law firm of Hansen, Boyd, Culhane & Watson in Sacramento, California. His practice consists primarily of professional liability and appellate law. He has been faculty member at Hastings Center for Trial and Appellate Advocacy in San Francisco, and frequently lectures on discovery and trial matters for California’s Continuing Education of the Bar. Following a one-year term as Vice-President of the State Bar of California, Mr. Culhane was appointed to two successive terms as a member of the Judicial Council of California. Mr. Culhane is the author of Model Interrogatories, from which this article is excerpted. |
Updated 11/09/09