Contracts: Examples and Explanations,9780735539693

Contracts: Examples and Explanations

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Edition: 3rd
ISBN13: 9780735539693
ISBN10: 0735539693
Format: Paperback
Pub. Date: 2004-03-01
Publisher(s): Wolters Kluwer
List Price: $42.08

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Summary

Contracts: Examples & Explanations, Third Edition is an accessible, comprehensive treatment of the first-year contracts syllabus. Clearly written with the student in mind, it is designed to provide information, examples, and analysis with the proper complexity and detail. Among the many helpful features of this study guide: the combination of textual material with examples, explanations, and questions teaches students the rules and policies of the law governing contracts, while exposing them To The broader issues of the legal process detailed diagrams provide useful visual aids for students in remembering key points clear, direct explanatory text is specifically geared To The needs of first-year students Features of the Second Edition include: new developments with the Uniform Commercial Code Articles 1 and 2 additional discussion of electronic contracts revised examples and explanations based on recent cases new diagrams to give your students a full understanding of challenging concepts, require or recommend Contracts: Examples & Explanations, Third Edition for your next course.

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 Between 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(18)
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
21(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(5)
The UCC as a Uniform Model Statute and State Legislation
25(2)
The Use and Application of UCC Article 2
27(2)
The Influence of Article 2 in Cases Involving Contracts Other Than Sales of Goods
29(1)
What Is the Restatement (Second) of Contracts?
30(5)
The Doctrine of Precedent and a Contract Case Analysis
35(16)
Studying Contract Through Appellate Cases---An Introduction and a Note on Perspective
35(2)
How Judges Make Contract Law: Judicial Precedent
37(3)
What Is Precedent?
37(1)
Who Is Bound by Precedent?
37(2)
The Drawbacks of the System of Precedent
39(1)
The Anatomy of a Judicial Opinion
40(11)
Ratio Decidendi (Rule or Holding) and Obiter Dictum
40(1)
The Process of Inductive and Deductive Reasoning in the Creation and Application of Legal Rules
41(1)
The Use of Authority and Supporting Rationale in Judicial Opinions
42(9)
The Objective Test and Common Law Offer and Acceptance
51(50)
Interpretation and the Objective Test
51(4)
The Communication of Contractual Intent
51(1)
Assent and Accountability: Subjective and Objective Tests of Assent
52(1)
The Operation of the Objective Test in Contemporary Law
53(2)
The Offer and Acceptance Model
55(3)
Introduction
55(2)
When Are Offer and Acceptance Issues Presented?
57(1)
The Basic Model
57(1)
The Rules of Offer and Acceptance
58(1)
The Nature of an Offer, as Distinct from a Preliminary Proposal
58(3)
The Expiry of the Offer by Passage of Time
61(1)
The Specified or Reasonable Duration of the Offer
61(1)
The Effect of a Late Attempt to Accept
62(1)
Termination of the Offer Before Its Expiry by Lapse of Time
62(2)
Rejection
62(1)
Counteroffer
62(1)
The Offerer's Death or Mental Disability
62(1)
Revocation
63(1)
The Nature and Effect of Acceptance
64(1)
Qualified or Equivocal Acceptance
65(3)
The General Rule That an Acceptance Must Correspond to the Offer
65(1)
The Legal Effect of a Non-Conforming Response
66(2)
The Mode of Acceptance
68(1)
Silence or Inaction as Acceptance
69(1)
The Effective Date of Acceptance and the ``Mailbox'' Rule
70(2)
Acceptance by Promise or Performance: Bilateral and Unilateral Contracts
72(29)
The Distinction in Perspective
72(1)
The Offer for a Bilateral Contract
72(2)
The Offer for a Unilateral Contract
74(1)
When the Offer Does Not Clearly Prescribe Performance as the Exclusive Mode of Acceptance
75(1)
When the Offer Does Not Clearly Prescribe Promise as the Exclusive Mode of Acceptance
76(1)
Acceptance by a Performance That Cannot Be Accomplished Instantly
77(2)
Notice When an Offer Is Accepted by Performance
79(1)
Reverse Unilateral Contracts
80(21)
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(1)
The Effect of an Option
107(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
121(3)
``Expression of Acceptance'' and ``Confirmation,'' the Two Distinct Situations Covered by Existing §2.207
124(1)
Offer and Acceptance Under Existing §2.207
125(7)
Existing §2.207 (1): Acceptance, Rejection, and Counteroffer
125(2)
Existing §2.207 (2): The Treatment of Proposals in an Acceptance
127(4)
Existing §2.207 (3): The Effect of Mutual Performance When No Contract Is Formed by the Parties' Writings
131(1)
Written Confirmation Following an Oral or Informal Contract Under Existing §2.207(1) and (2)
132(2)
The 2003 Revision of §2.207
134(11)
Consideration
145(46)
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(4)
What Is a ``Detriment''?
148(2)
How Does Benefit to the Promisor Fit In?
150(1)
The Bargained-for Exchange
151(1)
The Purpose and Function of Consideration Doctrine
152(4)
Formal Functions of Consideration
153(1)
The Substantive Basis for Consideration
154(2)
Detriment and ``Pre-Existing Duty''
156(4)
The Basic Rule
156(1)
The Justification for the Rule Where the Duty Is Owed to the Promisor: Coerced Modifications
157(2)
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(27)
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(21)
Promissory Estoppel as the Basis for Enforcing Promises
191(30)
Introduction
191(1)
The Nature of Promissory Estoppel as an Independent Basis for Relief or as a Consideration Substitute
192(1)
The Difference in Remedial Emphasis Between Contract and Promissory Estoppel
193(1)
An Introduction to Equitable Estoppel and Its Link to Promissory Estoppel
193(2)
The Range of Promissory Estoppel: Gifts and Commercial Transactions
195(2)
The Elements of Promissory Estoppel
197(4)
Introduction and Overview of the Elements
197(1)
A Promise Must Have Been Made
198(1)
The Promisor Should Reasonably Have Expected the Promise to Induce Action or Forbearance by the Promisee
199(1)
The Promise Must Have Induced Justifiable Action or Forbearance by the Promisee
199(1)
The Promise Is Binding if Injustice Can Be Avoided Only by Its Enforcement
200(1)
The Remedy When Promissory Estoppel Is Applied
201(20)
Restitution: Unjust Enrichment and ``Moral Obligation''
221(32)
Introduction
221(1)
Unjust Enrichment, the Basis for Restitution
221(1)
The Relationship Between Unjust Enrichment and Contract
222(4)
The Meaning of ``Quasi-Contract''
226(1)
The Elements of Unjust Enrichment
227(4)
Enrichment
228(1)
When Is Enrichment Unjust?
228(3)
Measurement of Benefit
231(5)
The Remedial Aim of Restitution
231(1)
Alternative Methods for Measuring Enrichment
231(1)
Market Value
232(1)
The Recipient's Net Gain
233(1)
Choosing Among Market Value, Objective, or Subjective Net Gain
234(2)
``Moral Obligation'': Restitution When a Promise Is Based on a Prior Benefit
236(17)
Introduction
236(1)
Terminology
237(1)
The Traditional Scope of ``Moral Obligation''
237(2)
The Broad ``Material Benefit'' Rule
239(14)
Interpretation and Construction: Resolving Meaning and Dealing with Uncertainty in Agreements
253(48)
The Problem of Indefiniteness in an Agreement
253(1)
The Appropriate Judicial Response to Problems of Indefiniteness
254(1)
Different Forms of Indefiniteness
255(3)
Unclear Terms: Vagueness and Ambiguity
256(1)
Omitted Terms
257(1)
Unresolved Terms
257(1)
Ascertaining the Meaning of an Agreement: Interpretation Distinguished from Construction
258(2)
Introduction to the Distinction
258(1)
The Distinction in Perspective
259(1)
Who Ascertains Meaning: Judge or Jury?
260(1)
Interpretation: Deriving Meaning from Evidence
261(8)
The Meaning of ``Interpretation''
261(1)
The Sources of Evidence Used in Interpretation
262(7)
General Rules of Interpretation (or Construction)
269(1)
Gap Fillers---Implication by Law to Effectuate the Parties' Reasonable Intent
270(4)
Introduction
270(2)
Gap Fillers That Supply General Obligations
272(1)
Gap Fillers That Supply More Specific Rights and Duties
273(1)
Implication in Law Irrespective of the Intent of the Parties
274(2)
Supplementary Terms That Cannot Be Excluded by Agreement
274(1)
Construed Terms That Can Be Excluded Only by Express or Specific Language
275(1)
Terms Left for Future Determination
276(3)
Determination by an Objective Standard
276(1)
Determination Within the Discretion of One of the Parties
277(1)
Omission of the Term
277(1)
Deliberate Deferral of Agreement: ``Agreement to Agree'' or to Negotiate in Good Faith
277(2)
Agreements to Record in Writing
279(1)
Misunderstanding: Total Ambiguity
280(21)
The Statute of Frauds
301(26)
Introduction
301(2)
The First Inquiry: Is the Contract of a Type that Falls Within the Statute?
303(3)
Contracts for the Sale of Land or an Interest in Land
304(1)
Contracts That Cannot Be Performed Within a Year
304(1)
Contracts for the Sale of Goods
305(1)
The Second Inquiry: If the Statute Applies, Is the Contract Reflected in a Writing That Satisfies Its Requirements?
306(4)
The Third Inquiry: If the Statute Applies and Is Not Complied with, Does the Oral Contract Fall Within Any of Its Exceptions?
310(3)
The Part Performance Exception
310(1)
The Judicial Admission Exception
311(1)
The Protection of Reliance: Estoppel and Promissory Estoppel
312(1)
The Impact of Non-Compliance with the Statute
313(1)
The Effect of the Statute of Frauds on Modifications of a Contract
314(13)
The Parol Evidence Rule
327(34)
The Relationship Between the Parol Evidence Rule and Interpretation
327(1)
A Basic Statement of the Rationale and Content of the Rule
328(1)
What Is Parol Evidence?
328(2)
A Closer Look at the Purpose and Premise of the Parol Evidence Rule
330(4)
The Degree of Finality of the Writing: Total and Partial Integration
334(1)
The Process of Dealing with Parol Evidence
335(2)
Determining the Question of Integration
337(4)
Distinguishing Consistency from Contradiction
341(2)
The Effect of the Rule on Evidence of Trade Usage, Course of Dealing, and Course of Performance
343(2)
Exceptions to the Parol Evidence Rule: Evidence to Establish Grounds for Avoidance or Invalidity, or to Show a Condition Precedent
345(1)
The ``Collateral Agreement'' Rule
346(1)
Restrictions on Oral Modification
347(14)
The Judicial Regulation of Improper Bargaining and of Violations of Law and Public Policy
361(62)
Introduction
361(2)
The Objective Test and the Viability of Apparent Assent
363(1)
General Note on Remedy: Avoidance and Restitution or Adjustment of the Contract
364(1)
Avoidance and Restitution
364(1)
Excision or Modification of the Offending Term
365(1)
The Availability of Damages
365(1)
The Nature and Relationship of the Doctrines Regulating Bargaining
365(1)
Misrepresentation Generally: The Meaning of ``Misrepresentation'' and the Distinction Between Fraudulent and Non-Fraudulent Misrepresentations
366(2)
Fraudulent Misrepresentation
368(5)
Introduction
368(1)
A False Representation of Fact
368(3)
Knowledge of Falsity and Intent to Induce the Contract
371(1)
Deception of the Victim, Justifiable Inducement, and the Significance of the Misrepresented Fact
371(1)
Injury or Detriment and the Remedies of Rescission or Damages
372(1)
Negligent or Innocent Misrepresentation
373(1)
Duress
374(4)
The Nature of Duress
374(1)
The Threat
375(2)
Impropriety
377(1)
Inducement
377(1)
Remedy
378(1)
Duress in the Modification of an Existing Contract
378(2)
Undue Influence
380(2)
Unconscionability
382(6)
The Role of Unconscionability
382(1)
The Nature and Origins of Unconscionability
382(1)
The Elements of Unconscionability
383(1)
Procedural Unconscionability
384(1)
Substantive Unconscionability
385(2)
The Remedy for Unconscionability
387(1)
The Temptation to Overuse Unconscionability Doctrine: A Final Note on Perspective
388(1)
Standard Forms and Contracts of Adhesion: The Role of Unconscionability in Redressing a Power Imbalance
388(3)
Policing Contracts for Illegality or Contravention of Public Policy
391(32)
Illegality, Public Policy, and Freedom of Contract
391(1)
Illegal Contracts
391(1)
Contracts Contrary to Public Policy
392(1)
The Effect of Contracts that Are Illegal or Contrary to Public Policy
393(30)
Incapacity
423(18)
The Scope and Focus of the Doctrines Discussed in This Chapter
423(1)
Minority
424(3)
The Basis and Nature of a Minor's Contractual Incapacity
424(1)
Situations in Which a Minor May Incur Legal Liability
425(1)
Restitution or Other Relief Following Disaffirmation
426(1)
Mental Incapacity
427(14)
The Basis and Nature of Voidability Due to Mental Incapacity
427(1)
The Test for Mental Incapacity
428(1)
Avoidance and Its Consequences
429(1)
Incapacity Induced by Alcohol or Drug Abuse
430(11)
Mistake, Impracticability, and Frustration of Purpose
441(44)
The Common Themes and the Differences Between Mistake, Impracticability, and Frustration of Purpose
441(2)
The Meaning of Mistake and the Distinction Between Mutual and Unilateral Mistake
443(4)
The Legal Meaning of Mistake: An Error of Fact
443(2)
Mutual and Unilateral Mistake
445(2)
The Elements of Mutual Mistake
447(2)
The Elements of Unilateral Mistake
449(2)
Relief for Mistake
451(1)
Mistake in Transcription: Reformation
452(2)
Impracticability of Performance
454(8)
The Nature of Impracticability Doctrine, Contrasted with Mistake
454(1)
The Early Form of the Doctrine: Impossibility of Performance
455(1)
The Contemporary Doctrine of Impracticability of Performance
456(6)
Relief for Impracticability
462(1)
Frustration of Purpose
462(23)
Conditions and Promises
485(56)
The Structure of a Contract: An Introduction to Promises and Conditions
485(3)
The Meaning and Scope of ``Uncertain Event''
488(1)
The Intent to Create a Condition: Express, Implied, and Construed Conditions
489(3)
Express Conditions
489(1)
Conditions Implied in Fact
490(1)
Constructive Conditions
491(1)
A Condition of One Party's Performance, as Distinct from a Condition of the Contract as a Whole
492(2)
Pure Conditions and Promissory Conditions
494(2)
The Time Sequence: Conditions Precedent and Concurrent Conditions
496(2)
Conditions Precedent and Subsequent
498(2)
The Purpose of Using Conditions in a Contract
500(11)
The Use of a Condition as a Complete or Partial ``Escape Clause''
500(2)
The Use of a Condition to Permit the Exercise of Judgment by One of the Parties or a Third Party
502(1)
The Use of a Condition to Provide for Alternative Performances
503(1)
The Use of a Condition to Regulate the Sequence of Performance
504(7)
Strict or Substantial Compliance with a Condition: The Different Rules of Interpretation Governing Express and Construed Conditions
511(2)
Distinguishing a Condition from an Event that Sets the Time for Performance
513(1)
The Excuse of Conditions: Wrongful Prevention, Waiver or Estoppel, and Forfeiture
514(27)
The Party Favored by the Condition Wrongfully Prevents or Hinders Its Fulfillment
514(2)
Estoppel or Waiver
516(3)
Forfeiture
519(22)
Breach and Repudiation
541(52)
The Scope of This Chapter: Non-Fulfillment of a Promise
541(2)
The Nature of Breach
543(1)
The Significance of a Breach: Material Breach or Substantial Performance, and Total or Partial Breach
543(8)
Introduction to the Distinction
543(3)
What Makes a Breach Material?
546(1)
Substantial Performance
547(1)
Relief for Substantial Performance and Adjustment to Avoid Unfair Forfeiture
548(2)
Partial Breach and Cure
550(1)
The Relationship Between the Materiality of Breach and the Non-Fulfillment of a Condition
551(1)
Substantial Performance Under UCC Article 2: Perfect Tender and Cure
552(3)
The Breaching Party's Recovery Following Material Breach and the Concept of Divisibility
555(4)
The Forfeiture of Contractual Rights by a Party Who Breaches Materially
555(1)
Restitution in Favor of a Party Who Has Breached Materially
555(2)
The Enforcement Rights of a Material Breacher When the Contract Is Divisible
557(2)
Anticipatory Repudiation
559(34)
The Distinction Between Breach and Repudiation
559(1)
The Purpose and Value of the Doctrine of Anticipatory Repudiation
560(2)
The Response to a Repudiation
562(1)
The Elements of Repudiation
562(3)
The Dangers of Dealing with Possible Repudiation
565(1)
Retraction of Repudiation
566(1)
Prospective Non-Performance and Assurance of Performance
567(2)
Transactions Involving Installments
569(24)
Remedies for Breach of Contract
593(94)
The Scope of this Chapter
593(1)
The Basic Goal of Remedies for Breach: Enforcement of the Expectation Interest
594(6)
The Nature of the Expectation Interest
594(1)
An Introduction to the Means of Enforcement: The Primacy of Monetary Compensation over Specific Relief
595(2)
Fundamental Principles of Expectation Relief
597(3)
The Enforcement of a Damage Award
600(1)
The Calculation of Expectation Damages
600(9)
An Overview of Expectation Damages Under UCC Article 2
609(3)
The Basic Principles
609(1)
The Seller's Remedies
609(1)
The Buyer's Remedies
610(2)
The Distinction Between Direct and Consequential Damages
612(2)
Limitations on Expectation Recovery
614(15)
The Nature and Goals of the Limitations
614(1)
Foreseeability
615(4)
Mitigation
619(5)
Causation
624(1)
Reasonable Certainty
625(3)
Unfair Forfeiture
628(1)
Reliance and Restitution as Alternatives to Expectation
629(3)
Reliance Damages
632(4)
The Distinction Between Essential and Incidental Reliance
632(1)
Essential Reliance Damages
633(2)
Incidental Reliance Damages
635(1)
Restitutionary Damages
636(2)
Equitable Remedies: Specific Performance and Injunctions
638(4)
Specific Performance
638(3)
Injunctions
641(1)
Liquidated (Agreed) Damages
642(5)
Anticipated Harm---Evaluation of the Liquidated Damages as at the Time of Contracting
644(2)
Actual Harm---Comparison Between Anticipated and Actual Loss
646(1)
Incidental Damages, Attorney's Fees, and Interest
647(2)
Interest
647(1)
Incidental Damages
648(1)
Attorney's Fees
648(1)
Non-Economic Damages and Punitives
649(38)
Non-Economic Damages
649(1)
Punitive Damages
650(37)
Assignment, Delegation, and Third-Party Beneficiaries
687(42)
Introduction
687(1)
Third-Party Beneficiaries
688(11)
The Distinction Between Intended and Incidental Beneficiaries
688(2)
The Essence of Intended Beneficiary Status: The Right of Independent Enforcement
690(2)
The Intent to Confer an Independent Right of Enforcement
692(1)
The Relevance of the Relationship Between the Promisee and the Beneficiary: Creditor and Donee Beneficiaries
693(2)
Vesting of the Benefit and the Parties' Power to Modify or Terminate It
695(1)
The Promisee's Parallel Rights of Enforcement Against the Promisor
696(1)
The Promisor's Ability to Raise Defenses Against the Beneficiary
697(1)
The Beneficiary's Rights Against the Promisee in the Event of the Promisor's Non-Performance
697(1)
Citizens' Claims as Intended Beneficiaries of Government Contracts
698(1)
Assignment and Delegation
699(30)
The Basic Concept and Terminology
699(2)
The Nature of an Assignment
701(2)
Restrictions on Assignment
703(1)
The Effect of Assignment
704(2)
Defenses Against the Assignee
706(1)
Delegation
707(2)
``Assignment'' of the Contract: The Assignment of Rights and Delegation of Duties
709(1)
Grounds for Insecurity Following Assignment or Delegation
710(19)
Glossary 729(22)
Index 751

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