OUTLINE PROFILE:

Author:  	Damien Falgoust <dfalgoust@mail.utexas.edu>
School:		University of Texas
Course:		Contracts
Year:		Fall 1996-Spring 1997
Professor:	Prof. Thomas Russell
Book:		McCauley, Kidwell, Whitford, & Galanter; 1st Ed.
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SOURCE OF THIS OUTLINE:

ILRG Law School Course Outlines Archive 	<http://outlines.ilrg.com/>
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A MESSAGE FROM THE AUTHOR:

This outline is e-mailware!  While there is no cost for using the outline, you must drop me a line at dfalgoust@mail.utexas.edu to tell me what you think, if it helped you, etc; it’d also be nice if you dropped by my web page at http://www.geocities.com/NapaValley/3578/ and signed my guest book.

Feel free to redistribute this outline unmodified to anyone who may find it useful.  This outline is provided “as is” and I make no promises as to its accuracy (it worked for me, your mileage may vary).  Good Luck on exams!

Damien Falgoust
University of Texas School of Law

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CONTRACTS OUTLINE
Prof. Thomas Russell – Fall 1996/Spring 1997

I.	General Principles for Contracts
A.	Russell’s Exam Checklist
1.	Is this a U.C.C. (goods) or common law (other) transaction?
a)	Bonebrake rule: if the transaction involves a mix of goods and services, look to which is the predominant element.
2.	Is this transaction within the Statute of Frauds?
3.	Formation Issues
4.	Interpretation and Parol Evidence
5.	Enforceability 
a)	Consideration
b)	Promissory Estoppel
6.	Defenses to Enforcement
a)	Illegality, Duress, Undue Influence, etc.
7.	Remedies
a)	Liquidated Damages
b)	Expectation
(1)	Don’t forget consequential damages (foreseeability, certainty)
c)	Reliance
d)	Restitution
e)	Specific Performance
8.	Suggest ways to solve the problem without litigation
B.	Efficient Breach – Theory by which we do not penalize a breacher or make him perform to preserve efficient allocation of resources
C.	Good Faith Requirement
1.	§ 1-203 – Every contract has a requirement of good faith in performance and enforcement
2.	§ 2-103 (1) (b) – good faith for merchants: honesty & observance of reasonable commercial standards of fair dealing
II.	Remedies for Breach
A.	The Expectation Interest – putting the injured party in the same place he would have been had the contract been fully performed.
1.	Seller’s Remedies under the U.C.C.  (§ 2-703)
a)	A seller can resell the goods and recover the difference between the contract price and resale price (and incidental damages, less expenses saved) § 2-706
(1)	the resale must be commercially reasonable and in good faith.
(2)	The seller must give the buyer notice of the resale.  Otherwise, the remedy becomes § 2-708 (1) market price remedy (see below)
b)	A seller can keep the goods and recover the difference between the contract price and market price at the time of breach (and incidental damages, less expenses saved) § 2-708 (1)
(1)	An exception is the lost volume seller.  If a seller has a “unlimited supply” of the goods in question, and thus a resale or the market price would not equal performance (since he could have just sold the next unit anyway), the seller gets his lost profit on the sale, rather than contract price - market price. § 2-708 (2)
c)	If a seller cannot resell after attempting to do so, the seller can recover the full contract price (he must hold the goods for buyer) § 2-709
d)	In all cases, damages must be both foreseeable and reasonable, and a seller must try to mitigate (except for lost volume sellers) by finding another buyer.  (Rest. §350; no such U.C.C. requirement – see b above)
(1)	Parker v. 20th Century Fox – Court holds that while Shirley MacLaine must try to “cover” by finding a similar role, her turning down the studio’s offer to do a western is not a ‘substanitally similar’ enough role to be proper cover.  (Yes, this is a common-law case, not U.C.C.; this probably isn’t an issue in sale-of-goods situations since the same goods are at issue)
e)	Ex.: Seller K’s w/ Buyer for 100 widgets at $8/each in June ($800 total).  When Seller delivers in July, Buyer breaches.  If…
(1)	Seller resells at $7.10, he is entitled to $90 in damages [$800 K. - $710 resale = $90]
(2)	Seller keeps the goods, and the market price in July is $7.00, he is entitled to $100 in damages [$800 K. - $700 market = $100]
(3)	If the seller qualifies as a lost volume seller, he gets whatever his profit would have been under the K.  (if the widgets cost $600 to make, he gets $200)
(4)	If the seller tries to resell, but cannot, he recovers the full K. price of $800.
(5)	Don’t forget incidental expenses and cost savings due to breach – these examples had none!!
f)	Ex.: Seller K’s with Buyer for custom car for $22,000.  Buyer breaches during construction.  Costs incurred to date: $12,000.  Cost to complete: $6,000.  Salvage value: $2,000.  Car is too unique to resell.
(1)	Note that Seller’s anicipated profit is $4,000.  [$22,000 K - $18,000 total cost to complete = $4,000]
(a)	$12,000 costs to date + $6,000 cost to complete = $18,000
(2)	If Seller scraps production the seller gets $14,000 in damages [$4,000 profit + $12,000 costs to date - $2,000 scrap value]
(a)	Note this uses the “lost volume seller” formula.  Why?  Because § 2-708 (2) is an alternative where ordinary market-price damages will not make the seller whole.  This holds true here as well as for lost volume sellers.
(3)	If Seller completes production his damages are $20,000 [$22,000 K. price - $2,000 scrap (mkt.) value]
(a)	This probably would not be allowed.  Under §2-704 (2) a seller may complete production if he does so with reasonable commercial judgement.  Compared with damages for scrapping it is likely that continuing with production is unreasonable.
2.	Buyer’s Remedies under the U.C.C. (§ 2-711)
a)	A buyer can cover by buying the goods from another vendor and recover the difference between the contract price and the cover price (and incidental damages, less expenses saved) § 2-712
(1)	The cover must be for a reasonable price (i.e., no buying at outrageously expensive prices and sticking the breaching seller for the difference).  It also must be made without unreasonable delay and in good faith.
(2)	The buyer may also recover incidental & consequential damages; see infra.
b)	If a buyer chooses not to (or cannot) cover, he can recover the difference between the market price of the goods at the time of breach, and the contract price (and incidental damages, less expenses saved)     § 2-713
(1)	The buyer may also recover incidental & consequential damages; see infra.
c)	If a buyer has accepted goods that do not conform, he can recover the difference between the value of the goods promised and the value of the nonconforming goods § 2-714 
(1)	The buyer may also recover incidental & consequential damages; see infra.
d)	If the goods in question are unique or other proper circumstances, the buyer has the right to specific performance § 2-716
(1)	The test: Ask “is cash an adequate remedy?”
(2)	Typically, specific performance is used for contracts to convey land (yes, that’s not UCC) and rare items (like famous artwork)
(3)	It is also sometimes used for output/requirement contracts 
(a)	Ex: Copylease v. Memorex – Copylease had a K. to buy a minimum quantity of Memorex’s toner.  When Memorex breaches, Copylease has an action for specific performance because Memorex’s toner is of a significantly higher quality than any other toner on the market.
e)	Incidental and Consequential Damages 
(1)	Incidental Damages are those that are incurred while effecting cover or incident to the breach
(2)	Consequential Damages are those that flow from the breach and are reasonably foreseeable to the breaching party (the language of the U.C.C states the seller had reason to know of the damages)
(a)	Consequential Damages are typically lost profits, etc.
(b)	Note that the U.C.C. allows these damages to buyers but not sellers (the possibilities for what sellers could do with money received are endless)
(i)	Further note the buyer must try to cover under the U.C.C.
(c)	Also note that under § 2-719 (3) consequential damages can be disclaimed in the contract
(d)	U.C.C. vs. common law – the common law requires an actual communication of any consequential damages at the time of contract (the “tacit agreement” test)
3.	Difficulties in Measuring the Expectation Interest
a)	From whose perspective do we evaluate expectation – the buyer or the seller?
(1)	Peevyhouse v. Garland Coal & Mining – Strip mining company breaches contractual clause to restore the land after the mining operation is completed
(a)	Garland argues the land’s value has been diminished by $300; it would cost $29,000 to restore the land.  The expectation interest from Garland’s point of view is $300 – the loss in value of the land from their breach (they expected the land to be worth so much)
(b)	The Peevyhouses expectation is the amount of cash – $29,000 – that would allow them to restore the land to its former state (they expected the land to be in a certain condition).
(c)	The court in Peevyhouse awarded $300, but the debate continues, and the final answer is not clear.
(i)	Subsequent Oklahoma state courts favored the decision, while federal courts have sided with the Peevyhouses.
(ii)	Note the mining company has a more objective test, but both have elements of subjectivity and the courts do not use this as a measure of what is proper.
(2)	Note that in cases like Peevyhouse, specific performance has the same effect as granting the Peevyhouse’s expectation interest.
(3)	Note that restitution (see infra) would give the Peevyhouses the value of the coal extracted from their land and the mining company any money given to the Peevyhouses.
B.	Reliance – Allowing the injured party to recover the expenses incurred due to his reliance on the contract being performed
1.	The basic goal of reliance damages is to put the parties where they would be had the contract never happened 
a)	Note the difference between this and expectation (putting the parties where they would be if the contract had been performed)
b)	Note further that this is similar to tort law in its goal: to return the parties to the status quo
2.	Reliance damages are usually used when expectation damages cannot be figured with any degree of certainty
a)	Sullivan v. O’Conner – plastic surgeon screws up nose.  Expectation damages are unclear: what is a beautiful nose worth?  Court therefore gives her reliance damages – the money and pain & suffering she expended in performing her end of the contract.
b)	Security Stove v. American Railways – Stove manufacturer employs shipping company to take its new product to a trade show.  Company fails to deliver in time for the trade show.  Court allows reliance damages – the cost of hotel rooms, travel, etc., for the manufacturer’s employees – since expectation is unclear (they hoped to show there new product and generate interest, but planned to make no actual sales).
3.	Note therefore reliance typically acts as a subset of expectation
4.	Note further that reliance usually acts as a good “middle ground” between expectation (large recovery) and restitution (small recovery), especially in non-commercial settings where expectation is very subjective
C.	Restitution – a “cancellation” of the contract where the injured party recovers only those payments he has made to the breaching party
1.	Form of Damages:
a)	The breaching party returns any money given by the injured party, and vice-versa
b)	The breaching party gives value of any benefit received from the injured party (for tangible items, the “benefit” itself, plus money for any loss of value), and vice-versa
2.	Conditions for restitution to be available:
a)	There must be a total breach (no minor or partial breaches)
b)	Breaching party must not have substantially performed
(1)	Plante v. Jacobs – homebuilder who has largely finished house is not forced to pay restitution damages for wall misplaced by one foot
c)	Injured party must not have performed fully
3.	Unusual situations for restitution
a)	Sometimes restitution, though a lesser remedy than expectation, can actually result in greater damages
(1)	The “vanishing contract” in construction: Builder K’s to build building for $90k.  At time of breach, he has spent $90k, and would have to spend $30k more to finish (total $120k)
(a)	Expectation recovery is $60k – the $90k spent to date + the     -$30 expected “profit” (actually, a loss) = $60k
(b)	Restitution gives the builder $90k (the value of the benefit given thus far)
(2)	Note that there must be a contract to recover – the builder above cannot just start building and sue for damages
b)	Note that restitution never wipes out reliance – if the reliance loss does not benefit the injured party, there can be no resitution recovery (only reliance)
D.	Liquidated Damages – damages that are pre-determined by the terms of the contract (a.k.a. stipulated damages)
a)	Liquidated damages are permitted as long as they are reasonable in light of the actual or anticipated damages from the breach, and the actual loss is difficult to prove
b)	U.C.C. v. Common Law – to the above, § 2-718 adds “the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy” – In other words, if it is tough to determine the remedy absent liquidated damages, the liquidated damages are permitted
c)	The courts will not enforce a liquidated damage clause that it holds to be a penalty to the breaching party
d)	Courts evaluate reasonableness from the time of contract; some also  additionally evaluate from the time of breach
e)	Note that the rationale behind allowing liquidated damages is that, barring penalty clauses, they provide an accurate barometer of what each party expected from the contract – and thus supports the expectation interest
E.	Limitations on Recovery
1.	Foreseeability
a)	This is largely related to consequential damages (see Buyer’s Remedies, supra)
b)	Basically, consequential damages are only enforced to the extent they could have been reasonably foreseen by the breaching party
(1)	Common Law Rule is that there must be a “tacit agreement” between the two parties as to the damages.
(a)	The “Hop In Buddy” Problem – If a cabbie tells a fare to get in after the fare has told him that if he is late, he will lose $25 million, has there been a tacit agreement between the cabbie and fare?
(i)	The test is at the time of contract: if the cabbie meant “I’ll try,” then no tacit agreement; however, if he meant “I’ll do it,” then there is a tacit agreement.
(b)	Hadley v. Baxendale – Miller is denied recovery for consequential damages (lost profits from his mill shutting down) since he did not make the potential for damages clear to breaching mill-shaft delivery company.
(2)	U.C.C. rule is any damages that the breaching seller “had reason to know” of, and buyer must try to cover (see supra)
2.	Certainty
a)	This is principally a limit on lost-profit consequential damages
b)	Basically, the damages must be able to be estimated with a degree of certainty
(1)	Note therefore new buisinesses are far less likely to recover lost profits than established businesses since they have no earnings history
(2)	Note this also puts a premium on having good experts should a breach action go to trial
3.	Acceptance of Goods
a)	Accepting goods can eliminate or (in the case of nonconforming goods) reduce damages available to a buyer
(1)	Note in Colonial Dodge, infra, if the seller had been deemed to have accepted the goods, he could have nevertheless recovered the value of a conforming car less the value of a spare tire-less car 
(2)	To properly reject nonconforming goods, a buyer must within a reasonable time: § 2-602
(a)	notify the seller, and 
(b)	hold the goods with reasonable care for a time sufficient for the seller to remove them
b)	§ 606 (1) (c) – If a buyer does anything “inconsistent with the seller’s ownership” he is deemed to have accepted the goods
c)	However, the buyer has a right to a “reasonable opportunity” to inspect the goods § 2-606
(1)	Colonial Dodge v. Miller – Buyer discovers his new car has no spare; he returns it the next day.  Seller argues that Buyer had accepted.  Court holds that the Buyer must have a “reasonable opportunity” to discover defects.
(2)	Even if a length of time is stipulated in the contract, the court will extend it to make it “reasonable” if it is not so
d)	Note further that Seller has a right to replace or cure defective goods    § 2-508
F.	Relational Sanctions: Remedies in the Real World 
1.	Most businesses don’t bother to enforce a contract at the expense of a business relationship (unless the stakes are rather high)
2.	Most businesspeople think in terms of “order cancellation” rather than “breach”
a)	Some use cancellation charges; some charge for items completed or a percentange of the contract price; some charge nothing at all
3.	Loss of reputation is a far greater deterrant to breach that legal remedies
4.	Arbitration 
a)	Types
(1)	Umpire – Expert decides.  Good for speed & economy
(2)	Adversary – Evidence & argument in hearings.  Similar to court, but quicker and less formal
(3)	Investigatory – Representative of a business association (e.g., stock exchange) develops evidence and makes a decision
b)	Objections to Arbitration – “split the diffenence” mentality can hurt strong claims; no discovery; difficulty (in some cases) of finding experts
G.	Key Differences between the U.C.C. and the Common Law for Breach
1.	Foreseeability Differences
a)	Common Law requires a “tacit agreement” between the parties for a recovery of any consequential damages
b)	The U.C.C. says the breaching party is liable for any consequential damages he  “had reason to know” about 
2.	Validity of Liquidated Damages
a)	Common Law permits liquidated damages if they are:
(1)	reasonable in light of anticipated/actual losses, and
(2)	the loss is difficult to prove.
b)	U.C.C., in addition to the above, requires an
(1)	inconvenience or nonfeasibility of otherwise obtaining an adequate remedy
3.	Performance (see expanded discussion in part X)
a)	Common Law allows substantial performance to fulfill the contract
b)	The U.C.C. permits a buyer to reject based on the perfect tender rule (subject to limitations, such as if the buyer has accepted, or if the parties otherwise agree)
III.	Contract Formation
A.	Offer & Acceptance 
1.	There must be an offer, and subsequent acceptance, for a contract to be formed
a)	Offer
(1)	An offer closes at either a stated time or, if no time is stated, a reasonable time
(2)	Broad Communications (e.g., advertisements) are invitations for offers and not offers in themselves
(3)	Generally, an offer can be revoked at any time before acceptance
(a)	A revocation is effective when received
(b)	A “separate” option contract, supported by consideration, will force the offeror to hold the offer open for the length of the option
(c)	A “firm offer” by a merchant for goods in a signed writing is irrevocable either for the term stated or a reasonable time        § 2-205
(i)	Requirements:
(a)	a signed writing,
(b)	giving explicit assurance that the offer will be held open,
(c)	for a time limit 
(i)	if no indication of how long the offer is to remain open, then it is for a reasonable time;
(ii)	in any case, it cannot be made irrevocable for longer than three months  (note consideration can make it irrevocable for a longer time)
(d)	A party who relies on the promise may be able to recover under promissory estoppel, see infra
(e)	Death of offeror revokes all offers
(f)	If an offer would reasonably induce “action or forbearance of a substantial character” must be held open long enough “to prevent injustice” (§ 87(2))
(i)	Typically used for bids from subcontractors; that is, if a general contractor relies on a subcontractor’s bid in providing his own bid, many courts say the sub’s bid must be held open at least long enough for the general to get the job and then accept the sub’s bid.  (Drennan)
(a)	Some courts say the general loses his right to hold a sub to a bid if the general engages in bid shopping or chopping
(ii)	A general can get damages for its sub’s failure to adhere to its bid (Janke, where sub said it had a certain pipe type, but didn’t; court enforces damages for the cost general incurred to get the needed pipe from another sub)
(iii)	Can Statute of Frauds defeat promissory estoppel for an oral bid?
(a)	Yes – § 2-205 requires writing for firm offers; § 2‑201 requires a writing for goods over $500; Using § 90 to apply to oral bids makes the U.C.C. provisions meaningless.  (slight majority uses this approach)
(b)	No – Statute of Frauds relates to enforceability; promissory estoppel to promises with no contractual basis and are enforced only to prevent injustice. (Janke approach)
(4)	Russell’s Rule of Thumb on Offers – If you can’t answer “I accept,” then there is no offer 
b)	Acceptance
(1)	Classic doctrine looks for the “monks to chant” – that is, a moment in time that the parties agree on a definite set of promises
(a)	Note that today, a contract is more likely to involve an ongoing relationship; the terms are frequently modified through the life of the contract
(2)	Mailbox Rules
(a)	Generally, an acceptance is valid when it is sent.  (all others valid when received)
(3)	Manner of Acceptance (§ 30)
(a)	Any manner of acceptance is valid, unless 
(b)	the offer (by language or circumstances) specifies otherwise
(4)	Silence never equals acceptance unless (§ 69):
(a)	The offeree takes the benefit of the services offered with a reasonable opportunity to reject them (e.g., he acts like he is accepting)
(b)	The parties have agreed to such beforehand
(c)	Such an acceptance is part of a course of dealing
(5)	How precise must an acceptance be?
(a)	Classic doctrine: An offer must be accepted according to its precise terms – any differing terms creates a rejection and counteroffer
(b)	U.C.C. § 2-207 – if there is a ‘definite and seasonable’ acceptance, a contract is formed even if some terms are different; the kinks are worked out later
2.	The U.C.C. largely replaces these requirements (and the requirement of consideration) with a general requirement of proof that the parties intended to make a contract
B.	Consideration
1.	Classic doctrine held that to be considered a contract, an agreement had to be supported by consideration
2.	Defined: a right, interest, profit or benefit given; or a forbearance, detriment, loss, or responsibility taken
a)	An illusory promise (“I’ll perform if I feel like it”) is not adequate consideration
3.	Consideration must be bargained for and given in exchange – that is, it must be what induced the other party to enter into the contract
4.	Courts will not look into the equality of the consideration exchanged (except for cash-for-cash transactions)
a)	If both parties admit the consideration was a sham and the transaction was a gift, the court will not enforce the contract
C.	Bilateral vs. Unilateral Contracts
1.	Bilateral Contract –  a promise for a promise
2.	Unilateral contract – a promise for an act
3.	Classical Doctrine regarding unilateral contracts held that the offer was not accepted until performance was complete (“Williston on the bridge”)
4.	Modern Doctrine allows party who expends significant efforts to perform to force enforcement of the “contract” through the doctrine of promissory estoppel (see infra)
a)	More commonly, a unilateral contract is held to be an option contract that is created when performance begins (Rest. § 45)
5.	U.C.C. § 2-206 – an offer to buy can be made unilateral (by shipping) or bilateral (by promising to ship) by the offeree
D.	Modification of Contracts
1.	Common Law Rule – Contract modifications must be supported by consideration
2.	§ 2-209 – Mutually-agreed on modification needs no consideration to be enforceable
E.	Key Differences between the U.C.C. and the Common Law for Formation
1.	Holding Offers Open
a)	Common Law requires independent consideration to create an option contract, which holds the offer open
b)	The U.C.C. permits a merchant’s firm offer to remain open without the support of consideration
2.	Acceptances with Additional Terms
a)	Common Law requires an acceptances to adhere to every term of the offer, or no contract is formed (but rather a rejection and counteroffer)
b)	The U.C.C. permits an acceptance with additional terms to form a valid contract; the details are worked out later, as per the Battle of the Forms Rule
3.	Contract Modification
a)	Common Law requires consideration to modify contracts
b)	The U.C.C. permits good-faith modifications agreed on by both parties to be binding without consideration (§ 2-209)
IV.	Enforceability of Contract 
A.	Gifts
1.	A gift is not enforceable as a contract, nor is a promise to make a gift which is unsupported by consideration
a)	Sometimes, if a gift induces reliance, a court will enforce it anyway
(1)	Rickett’s Ex’r v. Scothorn – Grandfather leaves promissory note to his granddaughter so ‘she won’t have to work;’ Granddaughter quits her job.  Court enforces the contract based on her reliance despite the fact the note was a gift (it didn’t require her to quit)
(2)	See Promissory Estoppel, infra
2.	If a promise requires anything of the promisee, it is not a gift; it is a contract (consideration is present)  Hamer v. Sidway
B.	The Statute of Frauds
1.	The Statute of Frauds sets up certain instances when a writing is required to make a contract enforceable
a)	Effects of Requiring Legal Formality
(1)	Benefits
(a)	Cautionary – people treat formal things more seriously
(b)	Evidentiary – avoids he said/she said
(c)	Channeling – provides bright-line rule for courts 
(2)	Costs
(a)	intent of parties can be sacrificed to a technicality
2.	Contracts falling within the Statute of Frauds
a)	Executors promising to answer for the debts of an estate
b)	Promises to answer for another’s debt
c)	Promise in consideration of marriage
d)	Contract for the sale of real estate
e)	Lease of real estate for more than one year
f)	Agreement that will take more than one year to perform from the date of the agreement 
3.	Timing and the Staute of Frauds
a)	If a contract could possibly be performed within one year, it is outside the statute (a writing is not required)
4.	Writing Requirements
a)	The written document must contain:
(1)	the signature of the party to be charged, and
(a)	note the signature can be stationary, etc.
(2)	the quantity of goods involved
5.	The Statute of Frauds for the sale of land will not be enforced (in Texas) if a party can show:
a)	Payment of consideration
b)	Possession by the transferee
c)	Making of (significant) improvements
6.	Further, a showing of Promissory Estoppel will bar using the Statute of Frauds to prevent enforcement (Rest. § 139)
C.	Promissory Estoppel
1.	Generally, a court will enforce a promise (even with no formal acceptance or consideration) if a party detrimentally relies on that promise
a)	Rest. § 90: to enforce based on promissory estoppel:
(1)	Promise must have reasonably induced reliance from the promisor’s point of view (promise need not be definite on all details);
(2)	Promise must actually induced such reliance; and
(3)	Injustice can only be avoided by enforcement of the promise
2.	What constitutes a promise that can be used as a basis for promissory estoppel?
a)	Strict View – Promise must not be a statement of belief (e.g., “puffing”), and must be definite and unequivocal (Feinman)
b)	Flexible View – Can a promise (that would induce reliance) be reasonably inferred?  (Farber & Matheson)
(1)	Note this is also Russel’s view!
3.	When can injustice not be avoided? Consider:
a)	Availability of other remedies
b)	Definite & substantial character of reliance compared with the remedy sought
c)	Extent to which reliance (& any other evidence) corroborates the promise
d)	The reasonableness of reliance
e)	The foreseeability of reliance
4.	Promissory Estoppel in the Real World
a)	Courts use promissory estoppel all the time
b)	Reliance plays little role as a remedy – Expectation is the norm
c)	Reliance also plays a lesser role in determining liability – any promise to further economic activity is likely to be enforceable
5.	In evaluating a contracts problem (on exams), look first to consideration; if it is not present, then look for promissory estoppel (satisfy 19th century man first)
D.	Quasi-Contracts
1.	Restitution for breach of an implied contract
2.	Ex.: You call a plumber to fix a leak but mention no price.  If you breach after he has performed, he is entitled to the reasonable value of his services.
E.	Contracts and the Family Environment
1.	Courts are reluctant to enter the ‘dismal swamp’ of family relations
a)	Most courts (older ones especially) won’t enforce a contract between husband and wife because they presume they would never intend to create a legally enforceable contract (they also fear the “flood of litigation” that would result)
(1)	See Balfour v. Balfour; Miller v. Miller
2.	Some courts will uphold contracts between cohabiting, unmarried partners (see Marvin v. Marvin) so long as the contract is not for sex.  Others, however, will not (see Hewitt v. Hewitt)
3.	When law intervenes in the family environment, what remedies are appropriate?
a)	Fitzpatrick v. Michael – Nurse had an agreement with an old man that she would care for him for life and he would leave to her certain property.  Court denies specific performance recovery to her since it would force the old man to accept services against his will
(1)	Note courts are extremely reluctant to grant specific performance for personal services anyway
b)	Brackenberg v. Hodgkin – Squabbling daughter and mom have “agreement” via mom’s P.S. that the daughter gets the estate if she moves & cares for her.  Later, she kicks daughter out & gives the land to her son.  Court enforces contract, saying daughter had substantially performed.
c)	Why differing results?  Possibly because the first required care “for life,” and thus the nurse would have to continue to perform while the second had no such term.  More likely, though, is the sheer complexity of dealing with family relations. 
F.	Contracts and Franchises
1.	Franchises and Promissory Estoppel
a)	Hoffman v. Red Owl Stores – little guy gets led on by grocery chain.  Court grants his expenses incurred due to his reliance on Red Owl’s promises, but denies him lost profits (no earning history)
b)	Note here that it would be very difficult to grant Hoffman expectation since the details of the franchise arrangement have not been spelled out (without them, how do we know what the parties expected?)
c)	Do we really want to enforce a contract like this – do we want to encourage people with low contract savvy to enter buisiness?
(1)	In Hoffman’s defense, he ran a solid grocery store
2.	Franchise Termination
a)	Most franchise contracts have termination provisions
b)	Many states have statutes protecting franchisees, requiring, for instance, “good cause” for terminating a statute
(1)	Is “good cause” looked at from the franchisor or franchisee?
(2)	Collins Drugs v. Walgreens – Walgreens terminates all its franchises in Wisconsin.  Several sue under Wisconsin’s statute.  Court rules in favor of the drugstores.
(3)	Other decisions have held that such evenhanded, nondiscriminatory terminations are acceptable, looking at the decision from the franchisor’s perspective – does the law intent to create “eternal franchises”?  Surely not.
c)	Note in these cases courts almost always grant money damages rather that injunctive relief since the latter would be overly burdensome to the franchisor
G.	Employment Contracts
1.	Generally, an employment contract for “permanent employment” is actually only a contract for employment-at-will
a)	Even an employee at will cannot necessarily be fired at the drop of a hat
(1)	Statutory preventions (racial, gender discrimination)
(2)	Violations of “well-grounded” public policies
(a)	Tameny v. Atlantic Richfield – Court grants damages for discharge of employee who would not illegally fix gasoline prices
b)	Courts will also frequently hold a company to its termination policies, reasoning that they constitute a modification of the employment contract that the employee accepts by continuing work
c)	Sample question:  The Ms. Vale Hypo
(1)	Ms. Vale is one of company’s best salespeople and was repeatedly told her future there was good (she turned down another job based on these assurances); Company fires her (but doesn’t follow its procedures) for rocking the boat, including complaining about the company buying prosititutes for its salesmen, and making sales in another saleswoman’s territory (the company gives the woman Vale’s commission, and she complains about that too).  The woman supposedly has a sexual relationship with the boss.  The company offers Vale a job in “corporate Siberia.” prior to termination.
(2)	Possible arguments for enforcement of the at-will contract:
(a)	Failure to follow procedures
(b)	Implied covenant (good faith and fair dealing)
(c)	Implied covenant to not terminate (based on company’s assurances)
(i)	Has she been there long enough to make this and the previous argument?
(d)	Reliance (Promissory Estoppel) (she turned down another job offer based on assurances)
(e)	Additional consideration
(f)	Wrongful discharge against public policy (based on her stance against company buying prostitutes)
2.	Covenants not to Compete
a)	Generally these are enforceable, unless they aren’t because of public policy arguments; (see IV, Social Control of Contracts)
V.	Defenses to Enforceability (Social Control of Contracts)
A.	Generally – Rest. § 178 – Contract is unenforceable if:
1.	Legislation makes it so, or
2.	Public policy clearly outweighs the benefits of performance
B.	Statute of Frauds – See Enforceability, supra
C.	Illegal Contracts
1.	A court will not enforce a contract for an illegal act
2.	However, a court will not pry too deeply into a contract to find illegality
a)	Carrol v. Beardon – Court enforces sale of house used as a bordello; the court treats the contract as a simple sale of property and nothing more
3.	Sometimes a court will enforce an illegal contract to prevent a windfall to one party
a)	Gates v. Rivers Construction – Court enforces employment contract with illegal alien to prevent company from getting free labor (and thus encouraging them to do so again)
b)	Karpinski v. Collins – Court enforces contract for kickback reduction in exchange for a loan to prevent ‘economic coercion’
D.	Covenants not to Compete
1.	Courts generally want a reasonable time and a reasonable area before they will enforce
a)	Fullerton Lumber v. Torborg – Miller signs covenant not to compete in the area for 10 years after leaving; he leaves.  Court upholds the area, but remands to determine a more “reasonable” length of time
b)	Note shift from classical contract doctrine (the invalid length would have invalidated the whole thing) to modern doctrine (the courts will modify the offending portion)
2.	Are covenants not to compete always meant to be enforced?  Often, a company will put them into a contract just to discourage former employees from competing, and the company does not expend the energy to enforce the contract against those who do
E.	Incapacity to Contract
1.	Mental Incapacity (§ 15)
a)	A contract is voidable by a party if he is incapable of understanding the contract or is unable to reasonably perform due to his illness and 
b)	The other party had reason to know of his condition
2.	Influence of Drugs/Alcohol (Intoxication) (§ 16)
a)	The contract is voidable if it was entered into if the intoxicated party is unable to understand the consequences of the transaction, or is unable to act in a reasonable manner regarding the transaction, and 
b)	The other party had reason to know of his intoxication
3.	Infancy (§ 14)
a)	Contract is voidable to minors (up until the day before their 18th birthday)
b)	A disaffirming minor need only return as many of the goods as possible (i.e., not full restitution)
c)	A minor cannot disaffirm for necessaries.  (This is typically limited to food, shelter, and clothing – not autos, stereos, etc.)
d)	Question: might a minor who lies about his age trigger misrepresentation tort liability?
F.	Duress and Undue Influence
1.	Duress
a)	Classic Doctrine – to do what you are legally entitled to do cannot be duress (or can it?)
(1)	Traditionally, duress only applied to a threat to do an illegal or tortious act (i.e., holding a gun to someone’s head to get them to sign the contract)
b)	Modern Courts 
(1)	An “improper” threat leaving “no reasonable alternative” (§ 175)
(a)	R.L. Mitchell v. C.C. Sanitation – trucker is injured, threatened with job loss if he doesn’t settle; court holds that even though the firing is legal, it nonetheless constitutes duress
(b)	Wolf v. Marlton Co. – Couple threatens to sell their newly-purchased house to ‘undesirables’ if the seller won’t rescind the contract.  The seller does so, but refuses to return the down payment.  The court says that is permissible as the contract (to rescind) was formed under duress (even though the couple technically could sell to anyone they wanted)
(2)	Restatement makes improper threats of prosecution, bad faith threats of litigation, threats which are a breach of good faith, as well as threats of tortious or criminal acts.  (§ 176)
(3)	Mere taking advantage of other party’s financial difficulty cannot be duress
(a)	Selmer v. Blakeslee-Midwest – Selmer gives B-M option of late payment; when B-M is ready to pay it only offers half of what it owes; Selmer takes it (thus forming a new K) because it is having financial difficulties.  Court (Posner) says Selmer cannot claim duress
(i)	Note Posner’s central issue: is this the type of behavior we want to discourage?  (Not victim’s state of mind)
2.	Undue Influence
a)	Defined – persuasion which tends to be coercive in nature (“overpersuasion”).  Typically:
(1)	High-pressure
(2)	Works on a mental or emotional weakness
(3)	An abuse of a relationship
b)	Hallmarks include:
(1)	Contract is formed at an unusual or inappropriate time
(2)	Consummation of contract is at an unusual place
(3)	Insistent demands that the contract be formed at once
(4)	Extreme emphasis on the bad consequences of delay
(5)	Use of many persuaders against one person
(6)	Absence of a third party (e.g., a lawyer) to advise the victim; statements that there is no time to consult such advisers.
c)	Example:
(1)	Odorozzi v. Bloomfield School District – homosexual teacher is arrested in violation of sodomy laws.  Superintendent visits him after 40 hours of no sleep, tells him it is in his best interests to resign, there is no time to consult an attorney, and if he didn’t he would be suspended and publicly humiliated.  He sues to get his job back.  Court says resignation is invalid because it is the result of undue influence
G.	Misrepresentation
1.	Classic doctrines affecting misrepresentation:
a)	The classic contract rule was caveat emptor, “let the buyer beware.”  The buyer was responsible for finding all flaws
b)	Elements of the tort of fraud:
(1)	A party fraudulently makes
(2)	a material misrepresentation
(3)	of fact
(4)	on which the plaintiff had the right to rely, and
(5)	actually did rely
(6)	which caused an injury 
2.	Misrepresentation as a Defense to Enforcement
a)	If a party’s assent is induced by misrepresentation (either fraudulent or material), the contract is voidable if the victim is justified in relying on the contract (§ 164)
(1)	Exception: if a third party used misrepresentation, the contract is only voidable if the non-victimized party, acting in good faith, did not know of the misrepresentation and relies on the contract
(2)	Materiality is determined from a reasonable person’s point of view (would it induce a reasonable person to contract?)
b)	An assertion of opinion is not sufficient for misrepresentation unless (§§ 168, 169):
(1)	There is a relationship of trust and confidence (also, a fiduciary relationship), or
(2)	The opinion comes from someone with special skill or judgment relative to the other party, or
(3)	The party is for some reason especially susceptible to misrepresentation of the type involved
c)	For innocent misrepresentation, many states permit rescission only (i.e., no damages)
3.	Silence (Non-Disclosure) as Misrepresentation
a)	Generally, there is no duty to disclose 
(1)	Exceptions:
(a)	Half-truths may constitute misrepresentation (§ 159)
(b)	Positive concealment of the truth, even if not verbal (§ 160)
(c)	Failure to correct past misleading statements (§ 161(a))
(d)	Failure to correct a mistake of the other party if he knows the party is relying on that mistake and such failure is tantamount to bad faith (§ 161(b), (c))
(i)	Ex.: Buyer says “I’ll take that diamond” and jeweler knows it is a cubic zirconium.
(e)	There is a relationship of trust and confidence (§ 161(d))
b)	Obde v. Schlemeyer – Home seller does not disclose termite problem to buyer
(1)	Court says there is a duty to disclose – a concealed danger not likely to be discovered by buyer creates duty to disclose
(2)	Court grants expectation (value of termite-less house less value of infested house)
(3)	Note that today most realty companies use ‘seller disclosure forms’ that limit their liability to a buyer if the seller does not disclose all defects on the form
(4)	Question: how far to take this?  Is there a duty to disclose if a sex offender lives next door?  What about a crack house three blocks away?
4.	Remedies for Misrepresentation
a)	Intentional Misrepresentation – expectation is the most likely remedy
b)	Innocent Misrepresentation – rescission (and restitution with it) is the most likely remedy
H.	Special Rules for Relationships of Trust 
1.	Arms-length – the typical assumption that neither parties need to be concerned about the other’s interests.  Usual contract rules apply
2.	Fiduciary – Acting on another’s behalf (must act in the other’s interest)
a)	Fiduciary has a responsibility to prove the contract is fair, and that the other party fully understands the facts and his legal rights and responsibilities
b)	Typical fiduciary relationships include attorney-client, parent-child, principal-agent, pastor-parishoner
c)	Close friends (Vargas v. Esquire) and siblings (Licas v. Frazee) are not fiduciary relationships
3.	Relationships of Trust and Confidence – between the first two types.
a)	Defendant has burden of proving the contract is fair if challenged; full disclosure may be required; weaker party may rely on stronger party’s opinions
b)	The Arthur Murray Cases
(1)	Vokes – Court says elderly lady had a right to rely on what would otherwise be “puffing” by the Arthur Murray salespeople
(2)	Parker – Court denies same to man who was a college graduate
I.	Choice and Form Contracts
1.	How to deal with terms in a form a party never reads?
a)	Consider the terms oral if that is when the real contract was made.  (Justice Reid in McCutcheon – the sinking ferry case)
b)	Look to course of dealing, if any (i.e., Justice Reid in McCutcheon found no course of dealing since the forms were not signed consistently by customers)
c)	Hold the signing party regardless of what he knew (Justice Devlin in McCutcheon)
d)	Reasonable Expectations – party is only bound to terms which could reasonably be expected to be there (C & J Fertilizer – broken-into store with insurance contract with ‘no inside job’ clause that, due to its wording, may prevent recovery)
2.	Restatement § 211(3)
a)	A party’s standard form term is not part of the contract if that party has reason to believe the other (adhering) party would not have accepted the contract if he knew of the term
(1)	“reason to believe” can be shown by prior negotiations, a bizarre or oppressive term, or if the term eliminates either the non-standard terms agreed to or the dominant purpose of the transaction
3.	Shrinkwrap Licenses  
a)	Two approaches, both from Pro-CD:
(1)	District court:
(a)	The offer was putting the product on the shelf, acceptance was the purchase
(b)	Buyer wasn’t aware of terms at time of purchase
(c)	On-screen license agreement is either a modification (§ 2-209) or a confirmation of terms (§ 2-207)
(d)	Either way, because Buyer did not have the opportunity to bargain or object to the proposed user agreement, and did not explicitly assent to those terms, he is not bound
(2)	Appellate Court (likely the prevailing view):
(a)	Seller proposed a contract that Buyer could accept by using software after having an opportunity to read the license
(b)	Buyer could have read the terms and rejected, but didn’t; this represents Buyer’s acceptance (§2-606, buyer’s acceptance)
(c)	Court draws analogy to ticket and insurance cases – transactions in which the exchange of money precedes the communication of detailed terms (buyer can cancel ticket/insurance if they don’t like the terms)
J.	Unconscionability
1.	Definitions 
a)	Corbin’s Test – Are the terms so extreme as to be unconscionable according to the mores & business practices of the time and place?
b)	§ 2-302 comment 1 – If in light of the general commercial background and commercial needs of the particular trade or case, the clauses are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract
2.	Types of Unconscionability
a)	Procedural – One party was induced to enter the contract without having any real choice
(1)	Frostifresh v. Reynoso – Contract negotiated in Spanish (cost is next to nothing), but written in English (cost is $1,000)
b)	Substantive – Terms are unduly unfair or one-sided, and thus unconscionable
(1)	Jones v. Star Credit; Williams v. Walker-Thomas – both involve credit arrangements that exorbitantly inflate the cost of the goods
(2)	Patterson v. Walker-Thomas – high price alone was not enough to render the contract unconscionable
3.	Remedies for Unconscionability
a)	U.C.C. § 2-302 – Judge as alternative of :
(1)	Rescinding whole contract (restitution)
(2)	Rescinding only the offending clauses (partial restitution)
(3)	Limiting the application of the offending clause (reforming the contract)
b)	Note there are no punitive damages under unconscionability (may seek them in a fraud action, however); in fact, no other damages are permitted, either
4.	Other notes on unconscionability
a)	The decision to invoke unconscionability is mostly within the judge’s discretion
b)	Unconscionability is rarely granted
c)	Question: in the some of the above cases, why not just treat substantive unconscionability as a penalty clause, and procedural as a lack of meeting of the minds?
K.	Misunderstanding (§ 20)
1.	Three possible misunderstanding scenarios
a)	Neither party is aware of the misunderstanding
(1)	If both parties have a misunderstanding regarding a mutual term and neither knows or had reason to know of the other’s meaning, there is no contract (because no ‘meeting of the minds’)
(a)	The Peerless – two boats with the same name in a harbor; Buyer wants boat sailing in October, Seller means boat sailing in December.  Court says no contract.
(i)	How to interpret this?
(a)	Holmes – an objective third party couldn’t tell which ship, so contract is void (objective test)
(i)	rationale for objective theory – certainty in transactions
(b)	Eisenberg – should use what each party meant; either meaning is reasonable, so the contract can be voided (subjective test)
(2)	Restitution is the remedy given as a result of ‘no contract’
b)	Both parties are aware of the misunderstanding
(1)	If both parties have a misunderstanding regarding a mutual term and both knows or had reason to know of the other’s meanding, there is no contract (again, because no ‘meeting of the minds’)
(2)	Restitution is the remedy given as a result of ‘no contract’
c)	One party only is aware of the misunderstanding (“Whose Meaning Prevails”) (see also § 201)
(1)	If a party knows or has reason to know the other party has attached a different meaning to a term (or terms) the other (unknowing) party’s terms form the basis for the contract
(2)	Note then, the party most at fault is penalized by using the other’s parties terms
2.	Materiality and misunderstanding – the misunderstanding must have a material effect on the contract in order for the contract to be rescinded (i.e., the first two scenarios)
L.	Mistake 
1.	Types of Mistake
a)	Mutual Mistake
(1)	Generally, if both parties are mistaken as to a fact that concerns a basic assumption on which the contract is made, the mistake has a material effect on the exchange agreed on, and the party seeking to avoid the contract does not assume the risk of the mistake, the contract is voidable. (§ 152)
b)	Unilateral Mistake
(1)	A mistake by one party which affects a basic assumption on which the contract is formed and has a material effect on the exchange is voidable by the mistaken party if (§ 153):
(a)	The effect of the mistake would make enforcement unconscionable; or
(b)	The other party had reason to know of or caused the mistake.
(2)	Mistake generally can be invoked for material clerical, mechanical, or computational errors, especially in circumstances (like bidding for subcontractors) where those numbers are entered in a hurried fashion
(a)	The court will still generally require the other party be returned to the status quo.
(b)	Note further that the mistake must be material in nature
(3)	Mistake generally cannot be invoked for errors in business judgment (e.g., you speculate a stock will rise and it falls)
(4)	In either case, courts are very reluctant to use mistake
2.	Remedies for Mistake (§§ 158, 152)
a)	Rescission – (restitution) court treats contract as though it never happened and attempts to return parties to status quo
b)	Reliance – If rescission will not return parties to status quo, the court can give the injured party reliance damages
c)	Reformation – If possible, the court can adjust the terms of the contract to redress any unfairness stemming from the mistake, removing its ‘material effect on the agreed exchange’
VI.	Warranties, Disclaimers, and Remedy Limitations (UCC)
A.	General Notes on Warranties
1.	Note a warranty is not a promise something will work – it’s a promise to make reparations if it doesn’t
2.	Russell’s rule for working a warranty problem: do every step in order, and do not skip steps.  Steps are (e.g., ask about):
a)	Creation (Is there a warranty?  What kind(s)?)
b)	Disclaimers (Is the disclaimer proper?)
c)	Remedy Limitations (Has the seller effectively limited the remedies for warranties not disclaimed?)
B.	Express Warranties (§ 2-313)
1.	An express warranty can be created by (note contract doesn’t have to use the phrase ‘warranty’):
a)	An affirmation of fact or promise that becomes a basis for the bargain
b)	A description of the goods (warrants they will conform to that description – includes blueprints, technical specifications, etc.)
c)	A sample or model (warrants goods will conform to the model)
2.	A statement of value or opinion does not create a warranty
3.	Statements after the sale become modifications and do not require consideration to be a warranty (§ 2-313 comment 7)
C.	Implied Warranties
1.	Implied Warranty of Merchantibility (§ 2-314)
a)	If the seller is a merchant, there is an implied warranty of merchantibility
(1)	A merchant is (§ 2-104):
(a)	One who deals in the type of goods involved
(b)	One who holds himself out as having special knowledge or skill related to the goods
(2)	You could argue that a maker of custom goods doesn’t sell a “type of good;” you could also argue the opposite
(3)	May apply to a nonmerchant as well if he guarantees the goods (§ 2-314 comment 4)
b)	To be merchantible, the goods must:
(1)	Pass without objection in the trade, and
(2)	Fungible goods (e.g., commodities, securities) must be of fair average quality, and
(3)	Be fit for ordinary purposes that the goods are normally used for, and
(4)	Be of even kind, quality, and quantity, and
(5)	Be adequately contained, packaged, and labeled as per the agreement, and
(6)	Conform to any promises on the label
2.	Implied Warranty of Fitness for a Particular Purpose (§ 2-315)
a)	Criteria for Warranty of Fitness for a Particular Purpose
(1)	The seller must have reason to know the buyer intends to use the goods for a particular purpose, and
(2)	The seller must have reason to know the buyer is relying on the seller’s skill and judgment, and
(3)	The buyer must have in fact relied on the seller’s skill and judgment
b)	Additional Notes
(1)	Usage of trade name – if buyer insists on a particular brand, he is considered to not be relying on the seller’s skill. (§ 2-315, comment 5)
(2)	Mututality – a contract may contain both warranty of merchantibility and warranty of fitness for a particular purpose. (§ 2-315, comment 2)
3.	Conflict Among Warranties (§ 2-317)
a)	Warranties should be construed as consistent if at all possible
b)	If unreasonable:
(1)	Exact or technical specifications displace a sample or general description; 
(2)	A sample displaces general language;
(3)	Express warranties displace implied warranties (except for implied warranties for a particular purpose)
4.	Disclaimer of Warranties (§ 2-316)
a)	Disclaiming Express Warranties
(1)	Express warranties will be construed as consistent with language that negates them where possible.  If they cannot be so construed, the disclaimer is void
b)	Disclaiming Implied Warranties
(1)	Explicit Disclaimer
(a)	Merchantibility – must be disclaimed by language that:
(i)	Mentions ‘merchantibility’ specifically, and
(ii)	If in writing, disclaming language must be conspicuous.
(a)	Conspicuous – written where a reasonable person against whom it would operate ought to have noticed it
(b)	 Fitness for Particular Purpose – must be disclaimed by language that:
(i)	Is in writing, and 
(ii)	Writing is conspicuous (see above)
(2)	Implicit Disclaimers
(a)	Language of sale – “as is,” “with all faults,” etc., effectively disclaims all implied warranties
(b)	Inspection – if buyer inspects goods (or a sample or model of goods), or refuses such inspection, and such inspection would have revealed defects, any implied warranty as to those defects is disclaimed
(i)	Seller must demand inspection by buyer, not just make goods available for inspection (comment 8)
c)	Federal Warranty Act (Moss-Magnson Act)
(1)	A seller cannot disclaim implied warranties if he is selling to consumers
5.	Limitation of Remedy (§ 2-719)
a)	Limitations of remedy must be expressly made in the contract
b)	If the remedy fails it’s essential purpose, the remedies provided by the U.C.C. prevail 
(1)	Ex.: if a good doesn’t do what it is supposed to, a remedy limitation to repair only doesn’t solve the problem.  Use U.C.C. instead
c)	Limiting or excluding consequential damages is permissible unless unconscionable (see supra)
(1)	Limitation of consequential damages for consumers is prima facie unconscionable
(2)	Limitation of consequential damages for commercial losses is not prima facie unconscionable
VII.	Lack of Important Terms (Indefiniteness)
A.	Indefiniteness under the Restatement 
1.	The terms of a contract are sufficiently definite if (§ 33):
a)	They provide a basis for determining the existence of a breach, and
b)	They provide a basis for giving an appropriate remedy
(1)	Example: Klimek v. Perisch – P thinks deal is to remodel for $10k; D thinks he only gave an estimate of price and is working at an hourly rate.  The court says the gaps are too large to create an enforceable contract.
2.	An indefinite contract can be affected by (§ 34):
a)	Part Peformance – if such performance removes the uncertainty and establishes that a bargain has been formed, the contract is enforceable
b)	Action in Reliance – may make a contractual remedy appropriate even though the contract is indefinite
B.	Indefiniteness under the U.C.C.
1.	The U.C.C. does not force a contract to fail for indefiniteness if (§ 2‑204(3)):
a)	The parties intended to make a contract, and
b)	There is a reasonably certain basis for giving a remedy
c)	Ex.: Bethlehem Steel v. Litton – big ship construction deal at stake, did parties have an option contract?
(1)	Court holds that the gaps are too big to provide a basis for a remedy.
(2)	Dissent says parties agreed to agree (§ 2-204(1)); also, does not fail because it leaves particulars of performance to be specified by a party later (§ 2-311(1))
2.	Specific Gaps the U.C.C. Permits Courts to Fill
a)	Price (§ 2-305(1))
b)	Place of Delivery (§ 2-308)
c)	Time for Shipment or Delivery (§ 2-309)
d)	Time for Payment (§ 2-310)
e)	Duration of the Contract (§ 2-309)
C.	Flexible Price and Quantity
1.	Definitions 
a)	Output Contract – Seller agrees to deliver all of his factory/farm’s output to Buyer
b)	Requirements Contract – Seller agrees to supply all of Buyer’s needs, and Buyer agrees to only buy from Seller.
2.	U.C.C. Obligations on Output and Requirement Contracts
a)	Good Faith – The output of buyer and requirements of seller must be measured in good faith
(1)	More than a whim is required to scale down a requirements contract (Posner in Empire Gas)
(2)	Cannot be motivated solely by a reassessment of the balance of advantages/disadvantages under the contract
(3)	Shutting down for lack of orders may be permissible, but shutting down to curtail losses might not.  (as in Empire Gas)
(4)	Posner – examples of bad faith – Buyer buys from another Seller; Buyer makes his own units; Buyer reduces purchases to hurt Seller
b)	Limitations on Quantity – No quantity can be tendered or demanded disproportionate to either a stated estimate, or (if no estimate) to any normal, comparable prior output.  (§ 2-306)
(1)	Any agreed estimate is the center around which the parties intend the variation to occur
(2)	Posner’s view of § 2-306:
(a)	Is meant to apply when a buyer asks for a disproportionate amount in a time when the price of the goods is rising so he can resell at a profit (Posner wouldn’t necessarily consider this bad faith, so it fits here)
(b)	Buying less than the estimate means you need good faith.
(c)	Buying more than the estimate means you need good faith and reasonableness (e.g., § 2-306)
VIII.	Battle of the Forms
A.	Common Law Apprach
1.	“Mirror Image” rule – an acceptance must be precisely the same as the offer, or it is in fact a rejection and a counteroffer (i.e., not a valid contract)
2.	“Last Shot” rule – at common law, if the terms differ but the parties begin performance, the terms of the contract are those of the last form sent
B.	U.C.C. Approach (§ 2-207) – Assumes a transaction in goods, see supra
1.	Was there a definite and seasonable expression of acceptance (e.g., a paper deal) (Doesn’t matter if additional or different terms unless acceptance is made conditional on accepting those terms)?
a)	Yes, there is a paper deal; Are the parties merchants?
(1)	Yes, they are merchants; The new terms are part of the contract unless:
(a)	The offer expressly limits acceptance to new terms, or
(b)	The new terms materially alter the contract, or
(c)	Notification of objection to the terms has been previously given or is given within a reasonable time
(2)	No, they are not merchants; the new terms are proposals to amend the contract
b)	No, there is not a paper deal; Do the parties act as though they recognize the existence of a contract?
(1)	Yes, the parties act in such a manner; the ‘Knockout Rule’ applies (all consistent terms become part of the contract, and the U.C.C. provisions fill the gaps)
(a)	Gap fillers – price, quantity, etc. (see ‘open price terms,’ supra)
(i)	White & Summers would limit to these article 2 terms
(ii)	Others say article 1 terms apply also (trade usage, etc.) (§ 1-205)
(2)	No, the parties do not act in such a manner; no contract is formed
2.	“Addtional” vs. “Different” Terms
a)	The first step (e.g., definite & seasonable acceptance?) applies regardless of whether the new terms are additions or different from specific existing terms.
b)	The controversy arises in the second step, after acceptance is established (e.g., merchants?).  The text in this step only includes the phrase “additional.”  There are two ways of dealing with this:
(1)	The Russell Way (e.g., mistake theory) – Russell and others treat this section as an error in the drafting of the U.C.C.; They think this series of steps should apply regardless of if the new terms are additional or different.  Just follow the steps above (note this is the way to work problems on exams)
(2)	The Other Way (the way most commentators do it) – The second step only applies to “additional” terms.  If the terms are different (e.g., contradictory), then there is no contract unless the parties act like there is one (and the ‘gap-filler’ provisions apply to the new terms)
3.	Cases Interpreting the U.C.C. Approach
a)	McCarty v. Vernon – indemnity clause in sale of machinery
(1)	Court says Seller’s proposal was not an offer because it required acceptance by the home office
(2)	Here, the court interprets the language in § 2-207(1) narrowly (e.g., the seller’s inclusion of conditions of sale did not make acceptance expressly conditional on the additional terms)
b)	Steiner v. Mobil Oil – was an irrevocable discount on gas a part of the contract?
(1)	Court says no, because parties were merchants and 1) Steiner expressly limited his acceptance to the inclusion of the discount, and 2) the discount materially altered the deal
c)	C. Itoh v. Jordan – is an arbitration clause part of the deal?
(1)	Court says Seller’s acceptance was made expressly conditional on assent to the arbitration requirement
(2)	Seller’s acceptance was a counteroffer; parties perform.
(a)	Court says arbitration not included since parties didn’t agree to it and it’s not a supplemental U.C.C. term
(b)	Alternate view: arbitration may be a gap-filler under trade usage (e.g., § 1-205)
IX.	Rules of Contract Construction
A.	Ambiguity in Contract
1.	Two approaches: Williston and Corbin
a)	Williston
(1)	Williston looks first to objective interpretation – what would a reasonable third person think was meant.
(a)	Williston would often turn to “plain meaning” doctrine, which says that (if sufficient) the document’s plain meaning should be used (exceptions for trade usage, etc.)
(2)	Williston would only turn to the parties subjective meanings if an objective view still leaves ambiguity (and the rules for subjective meanings apply – see infra)
(3)	The big problem with a Willistonian view is it often means neither party gets what they actually wanted from the deal
b)	Corbin 
(1)	Corbin prefers to look first to subjective interpretation – what did the parties mean.  This is the most common approach today and the approach taken in the Restatement (§ 201)  
(a)	Whose Meaning Prevails (§ 201)
(i)	If both parties attach the same meaning, no problem – that meaning is used
(ii)	If the parties have different meanings, and A knows (or should have known) that B is using a different meaning and B does not know (and had no reason to know) of A’s meaning, then B’s meaning prevails
(iii)	If neither party knew or had reason to know, then neither party is bound (no assent, no contract)
(2)	If all else fails (say both parties know of the other’s different meaning) then Corbin would use the objective standard
2.	The Meaning of Language and the U.C.C.
a)	The Totem Pole – set up in §§ 1-205(4)& 2-208(2)  (common law is similarly set up – Rest. §202)
(1)	Express Terms outweigh
(2)	Course of Performance, which outweighs
(3)	Course of Dealing, which outweighs
(4)	Usage of Trade
b)	The Totem Pole may be torn down by § 1-201(3), which says an “agreement” is a bargain found either by the parties’ language or “by implication from other circumstances, including course of dealing or usage of trade or course of performance as provided in this Act.”
(1)	[Ed. Note: might “in this Act” imply the totem pole is intact?]
3.	Miscellaneous Ambiguity Topics
a)	Silence as Acceptance – These clauses are rarely enforced; Restatement § 69 says silence can only be an acceptance if:
(1)	Offeree takes the benefit of the services (with reasonable opportunity to reject) and had reason to know the offeror expected compensation
(2)	Where the offeror has made it very clear that assent can be manifested by silence and the offeree in his silence intends acceptance
(3)	Due to previous dealings, the offeree should know silence is acceptance
b)	Sometimes the courts will interpret an ambiguity against the drafter of the contract, particularly in adhesion (e.g., “take it or leave it”) contract situations
B.	The Parol Evidence Rule
1.	The Parol Evidence Rule basically says that any evidence of prior understandings are not valid if there is a written contract
a)	The basic rationale is that most of those prior understandings represent the bargaining process, and if they aren’t in the contract, the parties must not have meant to make them part of the deal
b)	Another rationale is that a written contract ought to serve the same functions as the Statute of Frauds (evidentiary, etc.)  (Fuller)
2.	Steps in Parol Evidence Analysis
a)	Is the writing an integration (e.g., the final expression of the parties’ agreement)?
(1)	If No, then parol evidence is admissible
(2)	If Yes, then must ask: Is the integration complete or partial?  (Williston favors a default of complete integration, Corbin a default of partial integration; Partial means that only some terms are final)
(a)	If complete – no parol evidence is admitted at all (except for the general exceptions below)
(b)	If partial – supplementary parol evidence (e.g., those that don’t change the part of the agreement that is integrated) is admissible; contradictory parol evidence is not admissable
(c)	Note that the presence of a merger clause (see supra) tends to indicate a complete integration
b)	Exceptions to the Parol Evidence Rule (these are always admissable)
(1)	Evidence of intent to integrate
(2)	Evidence of a collateral (separate) agreement
(a)	Generally, it must not contradict the written agreement
(b)	It also must not be an agreement that one would expect to be part of the written agreement (Mitchell v. Lath – ice house case)
(c)	Of course, the collateral agreement must meet all the requirements of a valid contract on its own
(3)	Evidence of a subsequent agreement (a modification)
(a)	Always admissible at common law – “the hand that pens the agreement cannot gag the mouths of assenting parties”
(b)	The U.C.C. (§ 2-209(2)) permits oral modification clauses (see supra) to only permit evidence of later agreements if they are in writing
(4)	Evidence of fraud, misrepresentation, duress, or mistake
(5)	Evidence explaining any ambiguities
(6)	Evidence of trade usage or course of dealing which explains the meaning of a term
(7)	Evidence of a condition precedent – a condition that must happen for the contract to become legally enforceable (not a condition of the contract itself – rather evidence that the written contract never came into being)
(a)	Ex: A and B sign a written contract, but also agree that the contract will not become enforceable unless something happens – say, A secures financing or B gets home office approval.  Evidence of the nonhappening of that event is admissible
(b)	Not a condition subsequent, e.g., an oral agreement that the party would not be obliged to perform until a stated event – this condition limits a duty rather than showing the nonexistance of the contract
3.	Key definitions for Parol Evidence Problems
a)	Merger Clause – a merger clause says that the terms of the contract are a final, complete expression of the contract – in other words, a complete integration
b)	Oral Modification Clause – a oral modification clause says that any subsequent modification of the written contract must be in writing
(1)	Not valid at common law – “hand that pens…” 
(2)	U.C.C. § 2-209(2) permits such clauses:
(a)	Between merchants in any case
(b)	Between other parties (e.g., merchant-consumer) if on a merchant’s form, the clause must be separately signed by the other party
X.	Miscellaneous Topics
A.	Breach, Substantial Performance and the Perfect Tender Rule
1.	Effect of material and immaterial breach
a)	Material – Injured party can cease performing and seek remedies
b)	Immaterial – Injured party must continue performance, though he may seek remedy for any injury caused by the breach
(1)	Jacobs & Young v. Kent – Kent’s construction contract specifies Reading Pipe; builder uses comparable brand.  Builder’s use of the pipe does not excuse Kent from payment (he may be able to reduce if he can show injury, but he can’t)
(a)	Note this is more of a substantial performance case – we don’t call builder’s use of different pipe a breach.  Instead, we basically say “close enough” 
(2)	More common would be a time delay – if immaterial, the failing party must pay damages for the delay but the injured party is not discharged from his duty to perform
(a)	Note, however that a “time is of the essence” clause may make an otherwise minor delay a material breach
(b)	Also note that if repeated extensions are given, a delay that may be immaterial to the extension can be judged material as to the whole agreement (e.g., bad faith) Fairchild Stratos Co. v. Lear Sieglar, Inc. (oft-delayed boat press case)
2.	When is a breach material and when is it not? The following factors are considered: (§ 241)
a)	Extent to which injured party is deprived of a benefit which he reasonably expected
(1)	In other words, if you want Reading Pipe, ask for it explicitly and make it clear how much you want it
b)	Extent that the injured party  can be compensated
c)	Extent to which failing party will suffer forfeiture
d)	Likelihood that failing party will cure
e)	Extent to which failing party comports with good faith and fair dealing
3.	Perfect Tender is the rule for the U.C.C. – Or is it?
a)	§ 2-601 establishes that a buyer can reject goods (he must seasonably notify seller) upon delivery or a reasonable time thereafter for any defect
b)	This rule is weakened in the U.C.C. by:
(1)	§ 2-612 – the rule does not apply to installment contracts (can only reject the installment unless material)
(2)	§ 2-508 – the seller has the right to cure 
(3)	§ 2-504 – delay in delivery only a breach if material 
c)	Many courts ignore the pure language of the perfect tender rule and only apply it to substantial failures in performance (though this is not a textually accurate reading of the U.C.C.)
4.	Partial and Total Breaches (Installment Contracts)
a)	Installment Contracts – means that seller does A, buyer pays $X; seller does B, buyer pays $Y and so on until whole contract is done
b)	Problem arises when a breach only affects one installment
(1)	Majority (Minnesota) Rule: If only a partial breach (e.g., breach of installment), then only restitution for that installment
(2)	Minority (Missouri) Rule: Breach of installment is a breach of the whole contract and injured party can get full expectation damages
c)	U.C.C. § 2-612 (3) – Breach of one installment is a complete breach only if it substantially impairs the value of the whole
(1)	Easy at the extremes
(a)	If trivial and curable, buyer can only reduce or postpone performance on that installment
(b)	If substantial and incurable (and impairs contract as a whole), then buyer can reject the whole contract (and get remedies)
(2)	Tougher in the middle.  What if the defect is…
(a)	Trivial and incurable?
(b)	Trivial and curable, but not cured?
(c)	Substantial as to the installment and incurable?
(d)	Substantial as to the installment and curable, but not cured?
(e)	Substantial as to the installment and the contract as a whole, but the seller tenders an adequate cure?
B.	Waiver (§ 84)
1.	You can waive any condition that is not an essential part of the bargain
a)	Thus, the court in Clark v. West Publishing (the drunken law professor case) says that the no-drinking provision was not an essential part of the contract – it was a mere condition precedent to insure they got a quality manuscript
(1)	Bear in mind that this case shows that waiver can be implied via the conduct of the parties
b)	West, on the other hand, argued that the provision was part of the consideration for the contract (either position could be valid)
2.	A party may retract its waiver at any time if the other party has not relied on the retraction
3.	Waiver and the U.C.C.
a)	The U.C.C. permits modification of contracts without new consideration, which logically includes waivers (§2-209(1))
b)	The retraction requirements are the same as common law (§ 2-209(5))
4.	Remember, you always sue for breach of a promise not a breach of condition 
C.	Anticipatory Breach
1.	If one party repudiates (e.g., says he’s going to breach), the other party does not have to wait until the date of the contract to bring a breach action
a)	The repudiation must be clear – mere expressions of doubt about performance are not enough to satisfy
(1)	If implied repudiation, the thing relied on to show repudiation must be reasonable (you have to have a good reason to doubt performance)
b)	A repudiation can be retracted if the other party has not relied on it
c)	Generally, the injured party must mitigate damages (e.g., no intentionally running up damages)
2.	Anticipatory Breach and the U.C.C.
a)	A party has the right to demand adequate assurance of performance (§2-609)
(1)	The party’s grounds for insecurity regarding the other’s performance must be reasonable 
(2)	The party seeking assurance must do so in writing 
(3)	He may make any commercially reasonable suspension of performance until he receives his assurance
(4)	If the questioned party does not respond within 30 days, he is considered to have repudiated the contract
(5)	comment 4 – depending on the circumstances, “adequate” may be more than a mere assurance; it can mean posting a bond or otherwise making some kind of show of proof
b)	If a party anticipatory breaches the contract, the other party can (§ 2‑610) 
(1)	Await performance
(2)	Sue for breach
(3)	In both cases, he may suspend his own performance
c)	Breaching party may retract if the other party has not yet relied on his anticipatory breach (§2-611)
XI.	Impossibility and Impracticability
A.	The courts have evolved from Pardine v. Jane (1647) where invasion did not excuse rental payments to Taylor v. Caldwell (1863) where music hall burning down was a valid excuse to avoid the contract
B.	Mutual Mistake revisited
1.	Old Rule was “No Contract”
2.	Modern courts may still say no contract, but are more likely to ask if either party was in a position to find out
a)	Ex. – Sherwood, the fertile cow case – both parties thought they were contracting for a barren cow; the court excused the contract.  However, a modern court may ask the farmer if he had reason to know his cow was pregnant before rescinding
3.	See U.C.C. (§§ 2-615, comments 5, 9; 1-616; also see 2-709 (risk of loss); 2-509; 2-510
4.	See Restatement §§153, 154; also see 261-272