Contracts : Examples and Explanations,9780735519640

Contracts : Examples and Explanations

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Edition: 2nd
ISBN13: 9780735519640
ISBN10: 0735519641
Format: Paperback
Pub. Date: 2001-03-01
Publisher(s): Wolters Kluwer
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Summary

This popular study guide presents the information, examples, and analysis first-year students need to help them acquire a meaningful understanding of contract law. CONTRACTS: Examples & Explanations, Second Edition, places fundamental concepts within the grasp of your class.

Table of Contents

Preface xxiii
Acknowledgments xxvii
The Meaning of ``Contract'' and the Basic Attributes of the Contractual Relationship
1(16)
Introduction
1(1)
The Legal Meaning of ``Contract''
2(7)
An Oral or Written Agreement
2(1)
The Involvement of Two or More Persons
3(1)
An Exchange Relationship
4(1)
Promise
4(3)
Legal Recognition of Enforceability
7(2)
Contract as a General Body of Law Applicable to Diverse Transactions
9(1)
The Fundamental Policies and Values of Contract Law
9(8)
Freedom of Contract
10(1)
The Morality of Promise---Pacta Sunt Servanda
11(1)
Accountability for Conduct and Reliance
12(1)
Social Justice and the Protection of the Underdog
13(1)
Fairness
13(1)
The Economic Aspect of Contract Law
13(4)
Facets of the Law of Contract and the Source of Its Rules, Processes, and Traditions
17(16)
The Purpose of this Chapter
17(1)
The Historical Perspective of Contract Law
17(1)
Classical and Contemporary Contract Law
18(2)
Classical Contract Law
18(1)
Contemporary Contract Law
19(1)
The Meaning of ``Common Law''
20(2)
``Common Law'' Used to Designate Our Legal System as a Whole
20(1)
``Common Law'' Used to Denote the Judge-Made Component of Our Legal System
21(1)
``Common Law'' Used to Denote a Process or Approach to Legal Analysis
22(1)
The Distinction Between Law and Equity
22(2)
State Law Governs Contracts
24(1)
The Uniform Commercial Code (UCC)
25(3)
The UCC as a Uniform Model Statute and State Legislation
25(1)
The Use and Application of UCC Article 2
26(1)
The Influence of Article 2 in Cases Involving Contracts Other than Sales of Goods
27(1)
What Is the Restatement (Second) of Contracts?
28(5)
The Doctrine of Precedent and a Contract Case Analysis
33(16)
Studying Contract Through Appellate Cases---An Introduction and a Note on Perspective
33(1)
How Judges Make Contract Law: Judicial Precedent
34(4)
What is Precedent?
34(1)
Who Is Bound by Precedent?
35(2)
The Drawbacks of the System of Precedent
37(1)
The Anatomy of a Judicial Opinion
38(11)
Ratio Decidendi (Rule or Holding) and Obiter Dictum
38(1)
The Process of Inductive and Deductive Reasoning in the Creation and Application of Legal Rules
38(1)
The Use of Authority and Supporting Rationale in Judicial Opinions
39(10)
The Objective Test and Common Law Offer and Acceptance
49(52)
Interpretation and the Objective Test
49(4)
The Communication of Contractual Intent
49(1)
Assent and Accountability: Subjective and Objective Test of Assent
50(1)
The Operation of the Objective Test in Contemporary Law
51(2)
The Offer and Acceptance Model
53(3)
Introduction
53(2)
When Are Offer and Acceptance Issues Presented?
55(1)
The Basic Model
55(1)
The Rules of Offer and Acceptance
56(1)
The Nature of an Offer, as Distinct from a Preliminary Proposal
56(3)
The Expiry of the Offer by Passage of Time
59(1)
The Specified or Reasonable Duration of the Offer
59(1)
The Effect of a Late Attempt to Accept
60(1)
Termination of the Offer Before Its Expiry by Lapse of Time
60(3)
Rejection
60(1)
Counteroffer
61(1)
The Offeror's Death or Mental Disability
61(1)
Revocation
61(2)
The Nature and Effect of Acceptance
63(1)
Qualified or Equivocal Acceptance
64(2)
The General Rule that an Acceptance Must Correspond to the Offer
64(1)
The Legal Effect of a Non--Conforming Response
65(1)
The Mode of Acceptance
66(2)
Silence, Inaction, or Ambiguous Action as Acceptance
68(1)
Ambiguous Action
68(1)
Silence or Inaction
68(1)
When Does Acceptance Take Effect?
69(4)
Instantaneous Communication
70(1)
Non-Instantaneous Communication and the ``Mailbox'' Rule
71(2)
Summary of the Rules Concerning the Effective Dates of Communications
73(1)
Acceptance by Promise or Performance: Bilateral and Unilateral Contracts
73(28)
The Distinction in Perspective
73(1)
The Offer for a Bilateral Contract
74(1)
The Offer for a Unilateral Contract
75(1)
When the Offer Does not Clearly Prescribe Performance as the Exclusive Mode of Acceptance
76(2)
When the Offer Does not Clearly Prescribe Promise as the Exclusive Mode of Acceptance
78(1)
Acceptance by a Performance that Cannot Be Accomplished Instantly
79(2)
Notice When an Offer Is Accepted by Performance
81(1)
Reverse Unilateral Contracts
82(19)
Options and Firm Offers
101(18)
Introductory Note on the Application of the Doctrines of Consideration and Promissory Estoppel
101(1)
The Validity of Options at Common Law and Consideration Doctrine
101(5)
Reliance on an Option Without Consideration: The Application of Promissory Estoppel to Promises of Irrevocability
106(2)
The Effect of an Option
108(1)
Firm Offers Under UCC 2.205
108(11)
Offer and Acceptance Under the UCC, and the ``Battle of the Forms''
119(26)
General Principles of Offer and Acceptance in the UCC
119(1)
The Scope and Purpose of UCC §2.207
120(1)
The Problem Tackled by §2.207. The Common Law ``Mirror Image'' and ``Last Shot'' Rules
120(3)
``Expression of Acceptance'' and ``Confirmation,'' the Two Distinct Situations Covered by §2.207
123(1)
Offer and Acceptance Under §2.207
124(8)
Section 2:207(1): Acceptance, Rejection, and Counteroffer
124(3)
Section 2.207(2): The Treatment of Proposals in an Acceptance
127(3)
Section 2.207(3): The Effect of Mutual Performance When No Contract Is Formed by the Parties' Writings
130(2)
Written Confirmation Following an Oral or Informal Contract
132(13)
Consideration
145(40)
Consideration as the Basis of Contract Obligation
145(1)
The Essence and Scope of Consideration
146(2)
The Elements of Consideration: Detriment, Benefit, and Bargained-for Exchange
148(5)
What Is a ``Detriment''?
148(2)
How Does Benefit to the Promisor Fit In?
150(1)
The Bargained-for Exchange
151(2)
The Purpose and Function of Consideration Doctrine
153(3)
Formal Functions of Consideration
153(1)
The Substantive Basis for Consideration
154(2)
Detriment and ``Pre-Existing Duty''
156(4)
The Basic Rule
156(2)
the Justification for the Rule: coerced Modifications
158(1)
Pre-Existing Duty to a Third Party
159(1)
The Measurement of Detriment: Adequacy of Consideration
160(1)
Past Performance
161(1)
False or Nominal Consideration
162(2)
The Quality of a Promise as Consideration: ``Mutuality of Obligation,'' Illusory, Conditional, and Alternative Promises
164(21)
Mutuality and Illusory Promises
164(1)
Interpretation and the Use of Implied Terms to Cure an Apparently Illusory Promise
165(2)
``Mutuality'' in Requirements and Output Contracts Under UCC §2.306
167(2)
Conditional Promises
169(1)
Promises of Alternative Performances
170(15)
Promissory Estoppel as the Basis for Enforcing Promises
185(26)
Introduction
185(1)
The Ancillary and Independent Basis of Promissory Estoppel
186(1)
The Difference in Remedial Emphasis Between Contract and Promissory Estoppel
187(1)
An Introduction to Equitable Estoppel and Its Link to Promissory Estoppel
187(2)
The Range of Promissory Estoppel: Gifts and Commercial Transactions
189(2)
The Elements of Promissory Estoppel
191(4)
Introduction and Overview of the Elements
191(1)
A Promise Must Have Been Made
192(1)
The Promisor Should Reasonably Have Expected the Promise to Induce Action or Forbearance by the Promisee
193(1)
The Promise Must Have Induced Justifiable Action or Forbearance by the Promisee
193(1)
The Promise Is Binding if Injustice Can Be Avoided Only by its Enforcement
194(1)
The Remedy When Promissory Estoppel Is Applied
195(16)
Restitution: Unjust Enrichment and ``Moral Obligation''
211(30)
Introduction
211(1)
Unjust Enrichment, the Basis for Restitution
211(1)
The Relationship Between Unjust Enrichment and Contract
212(4)
The Meaning of ``Quasi--Contract''
216(1)
The Elements of Unjust Enrichment
217(4)
Enrichment
218(1)
When Is Enrichment Unjust?
218(3)
Measurement of Benefit
221(5)
The Remedial Aim of Restitution
221(1)
Alternative Methods for Measuring Enrichment
221(1)
Market Value
222(1)
The Recipient's Net Gain
223(1)
Choosing Among Market Value, Objective, or Subjective Net Gain
224(2)
``Moral Obligation'': Restitution When a Promise Is Based on a Prior Benefit
226(15)
Introduction
226(1)
Terminology
227(1)
The Traditional Scope of ``Moral Obligation''
227(2)
The Broad ``Material Benefit'' Rule
229(12)
Interpretation and Construction: Resolving Meaning and Dealing with Uncertainty in Agreements
241(46)
The Problem of Indefiniteness in an Agreement
241(1)
The Appropriate Judicial Response to Problems of Indefiniteness
242(1)
Different Forms of Indefiniteness
243(3)
Unclear Terms: Vagueness and Ambiguity
244(1)
Omitted Terms
245(1)
Unresolved Terms
245(1)
Ascertaining the Meaning of an Agreement: Interpretation Distinguished from Construction
246(2)
Introduction to the Distinction
246(1)
The Distinction in Perspective
247(1)
Who Ascertains Meaning: Judge or Jury?
248(1)
Interpretation: Deriving Meaning from Evidence
249(7)
The Meaning of ``Interpretation''
249(1)
The Source of Evidence Used in Interpretation
250(6)
General Rules of Interpretation (or Construction)
256(2)
Gap Fillers---Implication by Law to Effectuate the Parties' Reasonable Intent
258(4)
Introduction
258(1)
Gap Fillers that Supply General Obligations
259(1)
Gap Fillers that Supply More Specific Rights and Duties
260(2)
Implication in Law Irrespective of the Intent of the Parties
262(1)
Supplementary Terms that Cannot Be Excluded by Agreement
262(1)
Construed Terms that Can Be Excluded Only by Express or Specific Language
263(1)
Terms Left for Future Determination
263(3)
Determination by an Objective Standard
264(1)
Determination Within the Discretion of One of the Parties
264(1)
Omission of the Term
264(1)
Deliberate Deferral of Agreement: ``Agreement to Agree'' or to Negotiate in Good Faith
265(1)
Agreements to Record in Writing
266(1)
Misunderstanding: Total Ambiguity
267(20)
The Statute of Frauds
287(24)
Introduction
287(2)
The First Inquiry: Is the Contract of a Type that Falls Within the Statute?
289(2)
Contracts for the Sale of Land or an Interest in Land
289(1)
Contracts that Cannot Be Performed Within a Year
290(1)
Contracts for the Sale of Goods
291(1)
The Second Inquiry: If the Statute Applies, Is the Contract Reflected in a Writing that Satisfies Its Requirements?
291(3)
The Third Inquiry: If the Statute Applies and Is Not Complied with, Does the Oral Contract Fall Within Any of Its Exceptions?
294(3)
The Part Performance Exception
295(1)
The Judicial Admission Exception
295(1)
The Protection of Reliance: Estoppel and Promissory Estoppel
296(1)
The Impact of Non--Compliance with the Statute
297(1)
The Effect of the Statute of Frauds on Modifications of a Contract
298(13)
The Parol Evidence Rule
311(34)
The Relationship Between the Parol Evidence Rule and Interpretation
311(1)
A Basic Statement of the Rationale and Content of the Rule
311(1)
What Is Parol Evidence?
312(2)
A Closer Look at the Purpose and Premise of the Parol Evidence Rule
314(3)
The Degree of Finality of the Writing: Total and Partial Integration
317(1)
The Process of Dealing with Parol Evidence
318(2)
Determining the Question of Integration
320(5)
Distinguishing Consistency from Contradiction
325(2)
The Effect of the Rule on Evidence of Trade Usage, Course of Dealing and Course of Performance
327(1)
Exceptions to the Parol Evidence Rule: Evidence to Establish Grounds for Avoidance or Invalidity, or to Show a Condition Precedent
328(2)
The ``Collateral Agreement'' Rule
330(1)
Restrictions on Oral Modification
331(14)
The Judicial Regulation of Improper Bargaining and of Violations of Law and Public Policy
345(62)
Introduction
345(2)
The Objective Test and the Viability of Apparent Assent
347(1)
General Note on Remedy: Avoidance and Restitution or Adjustment of the Contract
348(1)
Avoidance and Restitution
348(1)
Excision or Modification of the Offending Term
349(1)
The Availability of Damages
349(1)
The Nature and Relationship of the Doctrines Regulating Bargaining
349(1)
Misrepresentation Generally: The Meaning of ``Misrepresentation'' and the Distinction Between Fraudulent and Non--Fraudulent Misrepresentations
350(2)
Fraudulent Misrepresentation
352(5)
Introduction
352(1)
A False Representation of Fact
352(3)
Knowledge of Falsity and Intent to Induce the Contract
355(1)
Deception of the Victim and Justifiable Inducement
355(1)
Injury or Detriment and the Remedies of Rescission or Damages
356(1)
Negligent or Innocent Misrepresentation
357(1)
Duress
358(4)
The Nature of Duress
358(1)
The Threat
359(2)
Impropriety
361(1)
Inducement
361(1)
Remedy
362(1)
Duress in the Modification of an Existing Contract
362(2)
Undue Influence
364(1)
Unconscionability
365(6)
The Role of Unconscionability
365(1)
The Nature and Origins of Unconscionability
366(1)
The Elements of Unconscionability
366(1)
Procedural Unconscionability
367(1)
Substantive Unconscionability
368(2)
The Remedy for Unconscionability
370(1)
The Temptation to Overuse Unconscionability Doctrine: A Final Note on Prespective
371(1)
Standard Forms and Contracts of Adhesion: The Role of Unconscionability in Redressing a Power Imbalance
371(3)
Policing Contracts for Illegality or Contravention of Public Policy
374(33)
Illegality, Public Policy, and Freedom of Contract
374(1)
Illegal Contracts
375(1)
Contracts Contrary to Public Policy
375(1)
The Effect of Contracts that Are Illegal or Contrary to Public Policy
376(31)
Incapacity
407(16)
The Scope and Focus of the Doctrines Discussed in this Chapter
407(1)
Minority
408(3)
The Basis and Nature of a Minor's Contractual Incapacity
408(1)
Situations in Which a Minor May Incur Legal Liability
409(1)
Restitution or Other Relief Following Disaffirmation
410(1)
Mental Incapacity
411(12)
The Basis and Nature of Voidability Due to Mental Incapacity
411(1)
The Test for Mental Incapacity
412(2)
Avoidance and Its Consequences
414(1)
Incapacity Induced by Alcohol or Drug Abuse
414(9)
Mistake, Impracticability, and Frustration of Purpose
423(44)
The Common Themes and the Differences Between Mistake, Impracticability, and Frustration of Purpose
423(2)
The Meaning of Mistake and the Distinction Between Mutual and Unilateral Mistake
425(4)
The Legal Meaning of Mistake: An Error of Fact
425(2)
Mutual and Unilateral Mistake
427(2)
The Elements of Mutual Mistake
429(2)
The Elements of Unilateral Mistake
431(3)
Relief for Mistake
434(1)
Mistake in Transcription: Reformation
435(1)
Impracticability of Performance
436(8)
The Nature of Impracticability Doctrine, Contrasted with Mistake
436(1)
The Early Form of the Doctrine: Impossibility of Performance
437(1)
The Contemporary Doctrine of Impracticability of Performance
438(6)
Relief for Impracticability
444(1)
Frustration of Purpose
444(23)
Conditions and Promises
467(56)
The Structure of a Contract: An Introduction to Promises and Conditions
467(3)
The Meaning and Scope of ``Uncertain Event''
470(1)
The Intent to Create a Condition: Express, Implied, and Construed Conditions
471(3)
Express Conditions
471(1)
Conditions Implied in Fact
472(1)
Constructive Conditions
473(1)
A Condition of One Party's Performance, as Distinct from a Condition of the Contract as a Whole
474(2)
Pure Conditions and Promissory Conditions
476(2)
The Time Sequence: Conditions Precedent and Concurrent Conditions
478(2)
Conditions Precedent and Subsequent
480(2)
The Purpose of Using Conditions in a Contract
482(11)
The Use of a Condition as a Complete or Partial ``Escape Clause''
482(2)
The Use of a Condition to Permit the Exercise of Judgment by one of the Parties or a Third Party
484(1)
The Use of a Condition to Provide for Alternative Performances
485(1)
The Use of a Condition to Regulate the Sequence of Performance
486(7)
Strict or Substantial Compliance with a Condition: The Different Rules of Interpretation Governing Express and Construed Conditions
493(2)
Distinguishing a Condition from an Event that Sets the Time for Performance
495(1)
The Excuse of Conditions: Wrongful Prevention, Waiver or Estoppel, and Forfeiture
496(27)
The Party Favored by the Condition Wrongfully Prevents or hinders Its Fulfillment
496(2)
Estoppel or Waiver
498(3)
Forfeiture
501(22)
Breach and Repudiation
523(54)
The Scope of this Chapter: Non--Fulfillment of a Promise
523(2)
The Nature of Breach
525(1)
The Significance of a Breach: Material Breach or Substantial Performance, and Total or Partial Breach
526(8)
Introduction to the Distinction
526(2)
What Makes a Breach Material?
528(2)
Substantial Performance
530(1)
Relief for Substantial Performance and Adjustment to Avoid Unfair Forfeiture
531(2)
Partial Breach and Cure
533(1)
The Relationship Between the Materiality of Breach and the Non--Fulfillment of a Condition
534(2)
Substantial Performance Under UCC Article 2: Perfect Tender and Cure
536(2)
The Breaching Party's Recovery Following Material Breach and the Concept of Divisibility
538(4)
The Forfeiture of Contractual Rights by a Party Who Breaches Materially
538(1)
Restitution in Favor of a Party Who Has Breached Materially
538(2)
The Enforcement Rights of a Material Breacher When the Contract Is Divisible
540(2)
Anticipatory Repudiation
542(35)
The Distinction Between Breach and Repudiation
542(1)
The Purpose and Value of the Doctrine of Anticipatory Repudiation
543(2)
The Response to a Repudiation
545(1)
The Elements of Repudiation
545(3)
The Dangers of Dealing with Possible Repudiation
548(1)
Retraction of Repudiation
549(1)
Prospective Non-Performance and Assurance of Performance
550(2)
Transactions Involving Installments
552(25)
Remedies for Breach of Contract
577(90)
The Scope of this Chapter
577(1)
The Basic Goal of Remedies for Breach: Enforcement of the Expectation Interest
578(7)
The Nature of the Expectation Interest
578(1)
An Introduction to the Means of Enforcement: The Primacy of Monetary Compensation over Specific Relief
579(2)
Fundamental Principles of Expectation Relief
581(3)
The Enforcement of a Damage Award
584(1)
The Calculation of Expectation Damages
585(8)
An Overview of Expectation Damages Under UCC Article 2
593(2)
The Basic Principles
593(1)
The Seller's Remedies
593(1)
The Buyer's Remedies
594(1)
The Distinction Between Direct and Consequential Damages
595(1)
Limitations on Expectation Recovery
596(16)
The Nature and Goals of the Limitations
596(1)
Foreseeability
597(4)
Mitigation
601(6)
Causation
607(1)
Reasonable Certainty
608(2)
Unfair Forfeiture
610(2)
Reliance and Restitution as Alternatives to Expectation
612(2)
Reliance Damages
614(5)
The Distinction Between Essential and Incidental Reliance
614(1)
Essential Reliance Damages
615(2)
Incidental Reliance Damages
617(2)
Restitutionary Damages
619(2)
Equitable Remedies: Specific Performance and Injunctions
621(4)
Specific Performance
621(3)
Injunctions
624(1)
Liquidated Damages
625(4)
Anticipated Harm---Evaluation of the Liquidated Damages as at the Time of Contracting
627(1)
Actual Harm---Comparison Between Anticipated and Actual Loss
628(1)
Incidental Damages, Attorney's Fees, and Interest
629(2)
Interest
630(1)
Incidental Damages
630(1)
Attorney's Fees
630(1)
Non-Economic Damages and Punitives
631(36)
Non-Economic Damages
631(1)
Punitive Damages
632(35)
Assignment, Delegation, and Third-Party Beneficiaries
667(42)
Introduction
667(1)
Third-Party Beneficiaries
668(11)
The Distinction Between Intended and Incidental Beneficiaries
668(2)
The Essence of Intended Beneficiary Status: The Right of Independent Enforcement
670(2)
The Intent to Confer an Independent Right of Enforcement
672(1)
The Relevance of the Relationship Between the Promisee and the Beneficiary: Creditor and Donee Beneficiaries
673(2)
Vesting of the Benefit and the Parties' Power to Modify or Terminate It
675(1)
The Promisee's Parallel Rights of Enforcement Against the Promisor
676(1)
The Promisor's Ability to Raise Defenses Against the Beneficiary
677(1)
The Beneficiary's Rights Against the Promisee in the Event of the Promisor's Non-Performance
677(1)
Citizens' Claims as Intended Beneficiaries of Government Contracts
678(1)
Assignment and Delegation
679(30)
The Basic Concept and Terminology
679(2)
The Nature of an Assignment
681(2)
Restrictions on Assignment
683(1)
The Effect of Assignment
684(2)
Defenses Against the Assignee
686(1)
Delegation
687(2)
``Assignment'' of the Contract: The Assignment of Rights and Delegation of Duties
689(1)
Grounds for Insecurity Following Assignment or Delegation
690(19)
Glossary 709(22)
Index 731

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