What to Expect
Contracts cold calls are distinctive because the subject is intensely fact-driven. Your professor will expect you to parse the facts of each case with surgical precision—who said what, when, and whether it constitutes an offer, acceptance, counteroffer, or mere negotiation. Expect questions that begin with the facts and then drill into the specific doctrinal element at issue: 'Was there consideration here? What did the promisee give up?'
Contracts professors love to test the boundaries of doctrines using hypothetical variations. After you explain the holding in Hamer v. Sidway, expect: 'What if the uncle had said he would think about paying? What if the nephew had already quit drinking before the promise was made?' These hypotheticals test whether you understand the doctrine well enough to apply it to novel facts.
Be prepared for questions about the UCC versus common law. Your professor will often ask which body of law applies and why it matters. The answer depends on whether the transaction involves goods (UCC Article 2) or services/real estate (common law), and the differences in rules—particularly around the mirror image rule, the statute of frauds, and gap-filling provisions—are favorite cold call topics.
Common Question Types
Offer vs. Invitation to Deal
“Was the advertisement in Lefkowitz v. Great Minneapolis Surplus Store an offer or an invitation to negotiate?”
Explain the general rule that advertisements are usually invitations to deal, not offers, because they lack specificity and do not limit the number of offerees. Then distinguish Lefkowitz: the ad was specific, left nothing open to negotiation, and was directed to a definable group. When an advertisement is clear, definite, and leaves nothing open for negotiation, it can constitute an offer.
Consideration Analysis
“The promisor said 'I'll pay you $500 if you quit smoking.' The promisee had already quit six months ago. Is there consideration?”
No. Consideration requires a bargained-for exchange where the promisee incurs a legal detriment or the promisor receives a legal benefit. Past actions cannot serve as consideration because they were not induced by the promise. Distinguish from Hamer v. Sidway, where the nephew's forbearance was induced by the uncle's promise and occurred after the promise was made.
Breach and Materiality
“A contractor builds a house but installs the wrong brand of pipes—same quality, different brand. Is this a material breach?”
This is Jacob & Youngs v. Kent. Apply the factors for material breach: the extent of the non-performance, the likelihood of cure, adequacy of compensation, the hardship of forfeiture, and whether the breaching party acted in good faith. Here, the breach is minor because the pipes were of equivalent quality, the cost of replacement would involve demolishing the house (disproportionate forfeiture), and the deviation was inadvertent. The non-breaching party gets damages measured by the diminution in value, not the cost of replacement.
Statute of Frauds Application
“Two parties orally agree that one will sell her car to the other for $6,000. Is this enforceable?”
Under the UCC, contracts for the sale of goods priced at $500 or more must be in writing to be enforceable. This is a sale of goods over $500, so the statute of frauds applies and the oral agreement is generally unenforceable. However, discuss the exceptions: partial performance, specially manufactured goods, judicial admission, and the merchant's confirmatory memo rule.
Promissory Estoppel
“When does promissory estoppel substitute for consideration? What are the elements?”
Under Restatement (Second) of Contracts § 90, promissory estoppel requires: (1) a clear and definite promise, (2) the promisor reasonably expected the promise to induce reliance, (3) the promisee actually relied on the promise, and (4) injustice can only be avoided by enforcing the promise. Cite Ricketts v. Scothorn as the foundational case. Note that the remedy may be limited to reliance damages rather than full expectation damages.
UCC vs. Common Law
“A buyer orders 100 widgets and the seller ships 90 with a note saying the rest are coming. Under the UCC, has the seller breached?”
Under the UCC perfect tender rule (§ 2-601), the buyer can reject goods that fail to conform to the contract in any respect. Shipping 90 of 100 widgets is non-conforming. However, discuss the seller's right to cure under § 2-508 if the time for performance has not yet expired, and note that the installment contract exception (§ 2-612) applies different standards if this is one shipment in an ongoing arrangement.
Parol Evidence Rule
“The parties signed a written contract for the sale of a horse. The buyer claims the seller orally promised the horse was a champion racer. Can the buyer introduce this testimony?”
Apply the parol evidence rule: if the written agreement is fully integrated (intended as the complete and final expression of the agreement), extrinsic evidence of prior or contemporaneous oral agreements that contradict or supplement the writing is inadmissible. Determine whether the agreement is partially or fully integrated. If partially integrated, consistent additional terms may be admissible. Also note the exceptions: fraud, mistake, ambiguity, and conditions precedent.
Remedies Calculation
“The seller breached a contract to deliver goods at $10 per unit. The buyer covered by purchasing from another seller at $14 per unit. What are the buyer's damages?”
Under the UCC § 2-712, the buyer's cover damages are the difference between the cover price and the contract price, plus any incidental and consequential damages, minus expenses saved. Here: ($14 - $10) × number of units, plus any additional costs incurred in covering. The cover must be made in good faith, without unreasonable delay, and on reasonable terms.
Preparation Strategy
For Contracts, your primary preparation tool is fact-pattern analysis. Before each class, brief every assigned case with special attention to the timeline of communications between the parties. Who said what first? Was there an offer, or just preliminary negotiations? Was acceptance communicated properly? Contracts cold calls live and die on these factual details.
Build a decision tree for the major doctrinal areas. For formation, your tree should branch: Is there an offer? → Is there acceptance? → Is there consideration? → Are there any defenses (statute of frauds, unconscionability, mistake, duress)? For each node, know the rule, the key exceptions, and one or two landmark cases. Practice walking through this tree out loud with the facts of the assigned cases.
Pay close attention to the difference between the UCC and common law rules. Make a comparison chart covering formation, the mirror image rule vs. UCC § 2-207 (battle of the forms), the statute of frauds thresholds, remedies, and the perfect tender rule vs. substantial performance. Professors frequently ask 'Would the result change if this were governed by the UCC?' and you need to know the answer.
Do's & Don'ts
Do's
- Start every answer by identifying the legal issue and the applicable rule before applying it
- Be precise about the timeline of events—formation questions turn on sequence
- Distinguish between UCC and common law rules and state which applies
- Quantify damages precisely when discussing remedies
- Acknowledge when a case is on the boundary between two doctrines
- Reference the Restatement sections and UCC provisions by number when you can
Don'ts
- Don't say 'they had a deal' without identifying offer, acceptance, and consideration
- Don't confuse revocation of an offer with rejection—they come from different parties
- Don't forget that mailbox rule only applies to acceptance, not to revocation or rejection
- Don't treat every broken promise as a breach—first confirm a valid contract was formed
- Don't ignore the statute of frauds just because the facts seem straightforward
Panic Protocol
When you get caught off guard, follow these steps to recover gracefully.
Fall back on the formation framework: 'Let me work through this systematically—first, was there a valid offer?'
If you cannot remember the holding, analyze the facts: 'Based on the facts, I would argue that this constitutes [offer/acceptance/breach] because...'
Ask whether UCC or common law applies—this buys time and shows doctrinal awareness: 'Before I answer, is this a transaction in goods or services?'
Use the Restatement as a safety net: 'Under the Restatement approach, the key factors would be...'
If completely lost, identify the interests at stake: 'The tension here is between enforcing the parties' expectations and protecting against unfairness.'
Sample Exchange
A realistic professor-student dialogue to help you see how cold calls unfold in Contracts.
Professor
Let's talk about Lucy v. Zehmer. What happened?
Student
Zehmer and Lucy were drinking at a bar when Zehmer wrote on a napkin that he agreed to sell his farm to Lucy for $50,000. Zehmer later claimed it was a joke. The Virginia Supreme Court held that a valid contract existed because Lucy's belief that the offer was serious was objectively reasonable—Zehmer discussed the terms at length, had his wife sign, and the writing was specific enough to constitute an enforceable agreement.
Professor
So we enforce contracts even when one party was joking? That seems unfair.
Student
Contract law uses an objective test for assent. The question is not what Zehmer secretly intended, but what a reasonable person in Lucy's position would have understood. The outward manifestations—the detailed discussion, the written and signed agreement, the involvement of Zehmer's wife—all pointed to a serious transaction. Subjective, uncommunicated intent does not control.
Professor
What if Lucy had also been drinking heavily and was clearly incapacitated?
Student
If Lucy lacked the mental capacity to understand the nature and consequences of the transaction due to intoxication, that could be a defense to formation. Under the Restatement, a contract is voidable if one party was so intoxicated that they could not understand the nature of the transaction, and the other party had reason to know of the condition. But the burden would be on Lucy to show he lacked capacity, and the court in the actual case found both parties were competent despite having been drinking.
Professor
Let's change the facts. Zehmer writes the agreement but Lucy never says 'I accept.' He just takes the napkin and leaves. Is there acceptance?
Student
Acceptance can be manifested by conduct as well as words. By taking the napkin containing the signed agreement and subsequently taking steps to arrange financing and have the title examined—as Lucy actually did—he demonstrated acceptance through performance. Under the Restatement § 69, silence and inaction can constitute acceptance where the offeree takes the benefit of offered services or exercises dominion over offered property.
Professor
Good. Now, was there consideration? Lucy did not actually pay anything at the bar.
Student
Yes, there was consideration. The consideration was the mutual exchange of promises: Zehmer promised to convey the farm and Lucy promised to pay $50,000. This is a bilateral contract where each party's promise serves as consideration for the other. Actual payment was not required at the time of formation—it was a future obligation that Lucy was bound to perform.