Notes

Governing Area
This problem is governed by common law contracts because it deals with what is services.
Formation of Contract
A contract is formed when there is offer, acceptance, consideration, legal capacity of parties, legality of subject matter, and it complies with the statute of frauds.
Preliminary Negotiations
Preliminary negotiations are communications between the parties before a definite offer or acceptance is made. Advertisements are preliminary negotiations and not an offer because they do not have an intended beneficiary. Alison saw an advertisement by Brenda (B). The advertisement was not to an intended offeree. Therefore, this was a preliminary negotiation and not an offer.
Offer
An offer is communicated willingness to enter into an agreement with an intended offeree inviting only assent. Alision emailed Brenda (B) that she needed a webpage. Therefore, Allison made an offer.
Acceptance
An acceptance is manifestation of assent of an offer as so invited by the offeror. The words of an acceptance must mirror the acceptance otherwise it is considered a counter-offer. B emailed back ":)". B did not add any addiitional terms. Therefore, B acted in acceptance.
Consideration
Consideration is bargain for exchange. Allison implied that
she promised to pay 5,000 for the webpage design. Therefore, there was consideration.
Legal Capacity
Parties must not have infancy, insanity, or intoxication.
Infancy means a party cannot contract if under 18 unless married. B was a 17 yr old computer geek and the facts have not show that B was in a matrimony. Therefore, B's contract is voidable.
Legality of Subject matter
The subject must not be illegal.B used unlicensed softwared. Therefore, the contract was void because
of illegality of subject matter.
Statute of Frauds
Performance that takes more than a year must be in
a signed, writing. B's performance was to be
completed in less than a year. Therefore, allison and
B's agreement satisfies the statute of frauds.
Fraud
A fraud is committed when a party present materially false information when making a contract. B advertised to be a
professional, experienced webpage designer. B was unexperienced. Therefore, the contract is void.
Performance breach
There is a breach in performance when there is substantial non-performance. The non-breaching party can suspend performance and collect damages. The website not working is substantial non-performance. Therefore, Allison can stop performance (payment) and collect for damages.
Mitigation
The non-breaching party must attempt to mitigate damages. Allision did not mitigate damages and perhaps there was not enough time to do so. Therefore, Allision's lack of mitigation may be excused.
Defenses of Non-Performance
Defenses of non-performances include impossibilty (the subject matter is impossible to obtain) or impracticablity (there is undue hardship to attain subject matter). the webpage stopped working after B put it up. Therefore, B can argue the defense of impracticality.
Modification
Modification of contract necessitates mutual assent of parties and consideration. A pre-existing duty cannot be bargained for a new promise. B stated that fixing the webpage wouldn't take more than a few hours of consutting. B already had duty to give a standard, working webpage. B's fixing is a pre-exstting duty. Therefore, B cannot modify the contract.
Damages
Damages puts a non-breaching party in a position had the contract been performed. Damages are measured by consequential damages (forseeable, certain and calculable, and unavoidable) plus other damages minus any benefits confered. B knew that Allison was expecting to sell products online and this was calculable and maybe unavoidable given the period of time. Therefore, B would have to pay the consequenital damages of 25,000.
Webpage Design
The webpage design was not working so there was substantial nonperformance. If Allison obtained any benefits from the period of time it was working. B could obtain damages by the unjust enrichment theory.
Consulting Time
As menitoned ealier, Allison did not agree to this modification and creating a working webpage was B's pre-exisitng duty. Therefore, B cannot collect.