I.Conclusion

II.A.Rule: Elements of a contract

B.Analysis: Elements of a contracts

III.A.The statute of fraud

B. Analysis: The statute of fraud

The following facts are based on a lawsuit in which ABC PistachioCo. sued DEF Pistachio Co. for breach of contract.

ABC Pistachio Co. is a pistachio shelling company operating in Anytown, Wisconsin. DEF Pistachio Co. is a competing pistachio sheller located in Sometown, Wisconsin. Because there is no established pistachio commodities market, pistachio shellers and other businesses handling pistachio products often use Brokers to buy and sell pistachios. Typically, the broker's fee is paid by the seller. The transaction in this case was brokered by the creatively named "Brokers Co." ABC and DEF have both used Brokers Co. several times, previously, as well as other nut brokers, to buy and sell pistachio products on their behalf.

In mid-September 2019, Chad, president of ABC, called Tiffany, a pistachio broker with Brokers, and asked them to find pistachios for his company to buy and to have delivered to his shelling facility. Chad requested that ABC not be identified as the buyer when Brokers contacted potential sellers. According to Chad and Tiffany, that is not an unusual practice. Brokers solicited offers from several pistachio shellers, including DEF, and conveyed them to Chad. After reviewing the offers, on September 20, Chad asked Tiffany to communicate a counteroffer to DEF's manager, Brodie. Specifically, the counteroffer was an offer to buy 3 million pounds of 2019 crop round Fandoghi shelled pistachios for $.50 per pound, to be delivered on the 15th of each month through December 2020.

Tiffany testified that she called Brodie, told him the counteroffer, and Brodie verbally accepted the counteroffer that same day, September 20. After Brodie accepted these terms, Tiffany revealed that ABC was the buyer. According to Tiffany, Brodie "audiblysighed" upon learning that a competitor was involved in thetransaction, and said "Oh well." Later, in court, Brodie testified that, although he did accept the deal when Tiffany presented the counteroffer, he decided that he didn't want to do business with ABC after all, sohe didn't forward a written contract to ABC.

On the same day (September 20), Chad prepared and emailed to DEF a written confirmation of the sale of pistachios that Brokers brokered. The confirmation stated: "We confirm a Sale and Purchase Transaction as described below." The confirmation listed the names and addresses of the seller and the buyer, as well as terms covering price, quantity, quality, crop year, delivery schedule, and payment method. Spaces for the seller's contract number and the buyer's purchase order number were left blank. The final line of the confirmation stated that ABC didn't plan on issuing purchase orders subsequent to receiving a written contract from DEF.

After receiving the confirmation email later in the day on September 20, DEF did not issue a written contract (as noted in Brodie's testimony). However, Tiffany continued communicating with the parties to finalize the logistics of the deliveries. For example, on September 25, she conveyed to Chad that the DEF shipping manager told her that DEF would haul the pistachio loads. They also discussed increasing the volume of the monthly shipments, but Brodie told the manager that he wanted "to stay at 6 loads a month on the ABC Pistachio contract for right now."

DEF did not raise any objection to the email confirmation until late January 2020, when Brodie ordered that the shipping manager to cease fulfilling any more orders unless ABC started paying $.75 per pound. Brodie testified that he "did not see the need" to respond to the confirmation because it didn't mean anything. Beginning in January 2020, DEF took the position that the deal between DEF and ABC was unenforceable because a condition precedent had not occurred due to the fact that DEF had not issued a written contract.

DEF'srefusal to ship the pistachios resulted in ABC's ability to fulfill orders from its clients, which caused financial losses. In response, ABC filed suit against DEF for breach of contract.

Discuss the following: (I) Whether the elements of a contract existed as of September 20, 2019 and (II) regardless of how you answered Part I, whether the agreement needed to be in writing in order for ABC to enforce the agreement against DEF.(Remember to address the grading standards stated above.)