Internet Legal Resource Guide <http://www.ilrg.com/>
Law Course Outlines Archive <http://www.ilrg.com/students/outlines/>
LawRunner Legal Research Tool <http://www.lawrunner.com/>

Author:  	Mr. Shannon Bangle (sbangle@mail.utexas.edu)
School:		University of Texas School of Law
Course:		Contracts
Year:		Spring 1996
Professor:	Mark P. Gergen
Book:		Contracts:  Cases & Comments, 6th Edition, by Dawson

Note:  This file is a summary of the major cases in Dawson’s textbook covered in the Spring semester, meant to accompany the Spring outline written by Shannon Bangle.

III. Obligation under contracts with open terms
A.Consideration redux: mutuality, Dawson 293-308
Davis v. General Foods, 295 (Compare to Martin, 228)
 	-can’t rely on good will of the other party
-reserving right to refuse overcomes unconscionable gain
Nat Nal Service Stations, Inc. v. Wolf, 295 (Stat. o' Frauds case)
-requirement contract could be performed within a year so a writing was not required
Obering v. Swain-Roach Lumber Co., 298
-no want of mutuality
-once cotingency has occured both parties are bound
-although not a biding contract from the start, once action taken it becomes binding
Paul v. Rosen, 299
-if one party isn’t bound, there is a mutuality problem (K will fail for want of mutuality)
Wood v. Lucy, Lady Duff-Gordon, 300
-every term need not be spelled out if it can be implied
-all parties are required to use best efforts to fulfill K (UCC-2-306(2)
Petoleum Refractionating Corp. v. Kendrick Oil Co.,304 
-alternative promise’s must have consideration for a K to be valid
(iii) Restatement of K, 2nd s. 77 (pg. 306)- Illusory and Alternative Promises
-Gergen thinks it is flawed b/c it says that any alternative is consideration.
Gerfein v. Werbelovsky, 306
-there is consideration if S has briefest amount to compel B to take goods 
Lima Locomotive & Machine Co. v. National Steel Castings, 308
-”all that I require” is binding
-”all that I want” is not binding
SUMMARY FOR SECTION
Solving the Mutuality Problem (Use when one party has power to cancel K)
1. Imply limitation of that power: i.e. Wood, b/c P must use reasonable efforts.
2. Alternative Consideration: i.e. Petroleum Refractionating Corp.
3. Declare any impediment on that power to be consideration: i.e. Gerfein
4. Abolish requirement of consideration for options.
5. Alternative theories - Restitution, Reliance, Unilateral K
(decreasing level of intellectual honesty)

B. Regulating performance under open terms, 308-312
Feld v. Henry S. Levy & Sons, Inc., 308
-in outputs K, satisfied if S acting in good faith AND not unreasonably disproportianate 
-UCC 2-3-6(1) Seller must act in good faith to satisy the K.
(a)Not good faith if D shuts down when profits are less than expected.
(b)Good faith if production is stopped b/c it imperils insolvency.
(c)Good faith if D shuts down for more than trivial losses. (Question of fact)
Fort Wayne Corrugated Paper Co. v. Anchor Hocking Glass Corp., 311
-total business failure satisfies good faith
  
C. The rights of an employee and a franchisee when a contract is terminable at will.
1. A general duty of good faith, 312-320
Corenswet, Inc. v. Amana Refrigeration, Inc., 312 
-if a k provides that termination can be made for any reason, such termination is allowed and 
bad faith doesn’t matter
-Franchises have a better good faith argument than an individual employee
i) 1-203 every K has a duty of good faith
ii) 2-103(1)(b) for merchants good faith is reasonable commercial standards of fair dealing
iii) 1-102(3) duty of good faith is not disclaimable (but parties can define what good faith means)

2. Discharges in violation of public policy, 321-327
Sheets v. Teddy's Frosted Foods , Inc.,321
-can’t fire on employee for refusing to do what law prohibits or doing what law requires
-states vary as to publice policy or statutory requirements (TX statutory)
Price v. Carmack Datsun, Inc., 326
-must be mandate of clear public policy to defend against being fired

3. Reliance and oral representations, 275-284
Forrer v. Sears, Roebuck & Co., 275
-use of the term”permanent employment” means “permanent at will” (judge decides)
-exception: if employee contributes capital then it will likely be considered as actually permanent
Hunter v. Hayes, 278
-employee cannot be discharged before starting work because K was never fulfilled
-can recover under promisory estoppel (could not fire at will until hired) 
Stearns v. Emery-Waterhouse Co., 278 
-normal remedies to overcome statute of frauds are restitution, part performance, reliance, tort
-in employment case, only way around statute of frauds is proving employers intent to commit fraud
Goldstick v. ICM Realty, 281
-reliance - people often change position in employment cases despite at will status
Goodman v. Dicker, 281 
-premature termination: employee almost always wins nothwithstanding employment at will rule
-Missouri Doctrine - must have time to recoup investment? before you can be terminated at will 
-equitable estoppel works for franchises in premature termination case
American National Bank v. A.G. Sommerville, Inc., 282
-D, who sigh a K saying he had recieved goods, can only be stopped from denying reception if and only if 		the P reiled on it
D’ulisse-Cupo v. Board of Notre Dame High School, 283
-claim for negligent misrepresentation of fact can be innocent yet still actionable if D should have know they were false

4. Rights grounded on a manual, 340-349
McDonald v. Mobil Coal Producing, Inc., 340 
-employee handbook provision can modify at will employment unless disclaimers are obvious and explicit
Psutka v. Michigan Alkali Co., 346
-consderation exists for manual promises (good workers, low turnover,...)
-amiguity in manual favors employee
Kari v. General Motors Corp., 347
-same rule a McDonald, clear and conspicuous but court used objective standard and not subjective 	standard like McDonald (subj. - language was legally sufficient)
Pine River State Bank v. Mettille, 348
-the new or changed conditions are made in a handbook can may become contractual obligation; 
consideration is always present because the employeed daily decides to stay on
Jackson v. Action for Boston Community Dev., Inc., 348
-no implied K based on manual because employees don’t read it

IV. Offer and acceptance
A. Form of an offer (349-352)
Moulton v. Kershaw 349
-there is not K where an offer indicates no amount or offer “to sell” and court doesn’t know how much is 	at issue,  (determined as a matter of law)
Ways to tell if a binding offer:
1. language - what was said?
2. can we fill in the terms under UCC
3. context - look to see if there was ever agreement
4. reliance
Lefkowitz v. Great Minneapolis Surplus Store, 352
-if newspaper add objectively looks binding and P relies, then a binding offer
Carlill v. Carbolic Smoke Ball Co., 352
-a reliance on an advertisement can be used to show there is an offer without precise terms
Steinberg v. Chicago Medical School, 352
-if a catalog purports to offer certain things, application fee is sent, cashed, then the person sending the 	check has a K at least to be treated fairly

B. Some basic principles of contract formation (370-377)
Cobaugh v. Klick-Lewis, Inc. 370 
-if offer objectively appears to be open and employee accepts the offer, it is binding regardless of the 		subjective intent of the offeror
Glover v. Jewish War Veterans 373
-even if D knows there is an offer and ojectively there is an offer, if not relied on it may not be enforceable
Caldwell v. Cline 374
-limitations on acceptance start to run when offer is received
Textron, Inc. v. Froelich 374
-when no time limit is set for acceptance, the power terminates at the end of a reasonable time (which depend on the circumstance of each case)
Allied Steel & Conveyors, Inc. v. Ford Motor Co. 375
-offeree can accept any way he wants (not in violation of K terms) unless offeror has explicit instructions for acceptance
Panhandle Eastern Pipe Line Co. v. Smith, 377
-although offeror is master of the offer, fairness demands he must clearly and definitley express an 	exclusive mode of acceptance

C. Terminating an offer and protecting part performance under unilateral contracts
Davis v. Jacoby 377
-when unclear if unilateral or bilateral, bilateral K is presumed
Jordan v. Dobbins 383
-death terminates offer immediately even if offeree doesn’t know of death and relies to his detriment
-unilateral - period, -bilateral-acceptance can close the deal
Petterson v. Pattberg 384 
-The offer of a unilateral K may be revoked at any time prior to performance of the act required as acceptance without notice
-today we protect offeree through reliance (substantial performance), section 90.
-indirect revokation -offer terminated if offeror does something inconsistent with the offer (if communicated)
Brackenbury v. Hodgkin 391
 -where the offer calls for an act as acceptance and the offeree makes a substantial beginning of performance, a K is formed.
-court uses specific performance to give employee chance to complete performance
 
D. The effect of a promise to keep an offer open: options (396-401 & UCC 2-205)
Dickenson v. Dodge 396
-a clause in a K leaving offer open still can be revoked before accepted evin if before specified date and revokation is o.k. if from justifiable source (hear from someone else)
Thomason v. Bescher 398 
- At common law, instruments under seal do not require consideration. (Seals only enforced if covering options)
-courts will enforce options even when consideration is nothing more than a formality (peppercorn or seal)
Marsh v. Lott (400)
-nominal consideration can used for consideration on options (sell used in Thomason)
Smith v. Wheeler (401)
-$1 promised but not paid was consideration (promise to pay binding)
Thomason, Marsh, Wheeler - courts will accept almost anything as consideration to enforce options
 	- Rstmt 2d Sec. 87 (Option Contract) pg. 401- reflected by all 3 cases above.
 
E. Protecting reliance on offers (402-414)
James Baird Co. v. Gimbel Bros. Inc. 402 (Old rule)
-reliance will not act as consideration to make an offer irrevocable - old rule
-UCC 2-205 would make offer binding today
Drennan v. Star Paving Co. 405 (Modern view)
-reliance can substitute for consideration now (i.e. promisory estoppel) if reasonable and forseeable by D and P relied to his detriment (Restatement s90)
Loranger Consrt. Corp. v. E.F. Hauserman Co. 409
-submission of K by general contractor can be seen as acceptance of subs bid
Coronis Associates v. Gordon Constr. 409
-if UCC 2-2-5 fails, and if no writing, can go to sect 90-reliance take the place of a writing

1. Reliance on negotiations (414-421)
Hoffman v. Red Owl Stores, Inc. 414
-promissory estoppel cna be used to protect reliance in negotiations to prevent injustice
-compare to Embro, Goodman, Wheeler, Drennan
Skycom Corp. v. Telestar Corp. 420
-even when a K as a whole does not become effective, particular terms may under promissory estoppel allow recovery to an extent necessary to compensate the relying party

F. Acceptance
1. Effect of rejection (422-425)
Livingstone v. Evans 422
-a counteroffer rejects and terminates a previous offer
  	-“Mirror image rule” -if acceptance varies from offer in any way, it is a counter offer.
Ardente v. Horan 424
-an acceptance may be valid even if it contains conditional language if the acceptance is clearly independent of the condition

2. Battle of the forms under the UCC (425-435) 
Idaho Power Co. v. Westinghouse Electric Corp. 427
 	- UCC 2-207: additional terms in an acceptance are only proposals for additions to the K unless the acceptance is expressly made conditional on assent to the additional terms.
Southern Idaho Pipe
-knockout rule (UCC2-207(2))   Probable exam question
-conflicting terms cancel out and court supplies contested terms
Roto-Lith, Ltd. v. F.P. Bartlett Co. 431
-some courts try to assume that material different terms imply that it is expressly conditional
 3. Timing of acceptance (435-445)
Morrison v. Thoelke 435
-mailbox rule - acceptance is effective upon mailing and not upon receipt (Adams v. Lindsell 437)
Kibler v. Caplis 442
some courts say that if acceptance no received by the specified time then no K

4. Acceptance by Silence
H.B. Toms Tree Surgery, Inc. v. Brant 445
-an express K is usually binding, but if substantial extra work is done where the parites know they will not be under the original express K,the value of the extra services will be given
Standard Casulty Co. v. Boyd 448
-No K b/c asking for a response and then silence is not assent
Hobbs v. Massasoit Whip Co. 448
-Sending order and unreasonable silence imports acceptance despite the actual state of mind of the D, based on prior business relations
 Ammons v. Wilson & Co. 449
-failure to reply within as quick a time as usual is assent 
Austin v. Burge 451
-if one didn’t order items but continues to receive and use them in circumstances where there is no right to suppose they were gratuity then implied agreement to pay in restitution or in K
 Moore v. Kuehn 450
-if a person begins to perform a service while the D has full knowledge but doesn’t stop them, then D liable for payment under s69(1)(a)

V. Interpretation and the parole evidence rule (457-508)
Mitchill v. Lath 457
-cannot bring parole evidence if terms would have “ordinarily and naturally” been included
-UCC requires “certainly would have included”
 Gergen on Relevant evidence for deciding integration
1. Williston; 4 corners; look at face of agreement itself and whether looks complete.
2. Corbin (majority); look at entire facts and background circumstances including evidence of prior agreements.
3. Judge decides whether completely integrated (Hatley).

Interform Co. v. Mitchell 473
-Corbin (focuses on entire facts) v. Williston (focuses on writing)
-UCC 2-202 reflects Corbin’s influence
Hatley v. Stafford 464
-For parol evidence to be inconsistent it must contradict an express provision in the K.
-general rule: courts should look to all surrounding cirmcumstances to determine if it would be naturally 	included (exception in Luria)
Luria Bros.& Co. v. Pielet Bros. Scrap Iron. 475
-court redefines inconsistency from express terms to be the absence or reasonable harmony in terms of language and respective obligations of the parties  (redefined 2-202)
-does not have to be expressly inconsistent, can be cosistent if “the absence of reasonable harmony in terms of the language and the respective obligation of the parties
Hayden v. Hoadley 471
-parole evidence is not allowed if conflicts with the implied terms court would use to fill in the gaps
Marcus v. K.L.G. Baking 471
-won’t imply terms before looking at parole evidence --supports Hadley, cuts Hayden
Sierra Diesel Injection v. Burroughs Corp. 475
-merger clause is not conclusive on integration, especially when seller places it on a preprinted form with no real negotiations

Long Island Trust Co. v. International Inst. 477
-parol evidence may be introduced to establish the existence of the conditional delivery of a signed instrument 
Western Commerce Bank v. Gillespie 482
-Where no time for performance of a condition precedent is specified, the law implies a reasonable time & condition precedent fulfilled by using “due diligence”
Lipsit v. Leonard 484 (To show Fraud)
-Parol evidence to show fraud is not barred by the parol evidence rule, even though the rule bars parol evidence concerning br/K.
Bank of America v. Pendergrass 487
-extrinsic evidence to K may get around the parole evidence rule
-Shannon’s cut off head example (sign here, it’s o.k., chop!)
Sabo v. Delman 488
-a merger clause will not alleviate a fraud claim
LaFazia v. Howe 489
-damn good merger clause can prevent fraud claim
Bates v. Southgate 494
-a specific merger clause may not always alleviate a fraud claim
Hoffman v. Chapman 495
-if mistake/accident occurs in drafting, parole evidence allowed to reform the K (even if terms inconsistent)
Bethlehem Steel v. Turner Const Co. 499
-four corners rule
-if the words of a K are not ambiguous, there should be no trial
Robert Industries v. Spence 500
-a K may be looked at in light of surrounding circumstances to see if the terms are ambiguous.  These circumstances may be used to elucidate but not change the terms
Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co. 501
-Corbin view
-language is almost always inexact on its fac-all evidence should at least be looked at by the court despite the courts understanding of its terms to see if it is susceptible to a different meaning and is ambiguous
FDIC v. W.R. Grace  504 
-self-serving statements of subjective understanding are barred but all other forms of parole evidence allowed
Provident Tradesmen Bank v. Trust Co. 505
-despite language to the contrary in the K, course of dealing and trade usage should be taken into account 	to understand the terms
 Nanakuli Paving (Gergen)
-incorporates all the arguments
 
VI. Contract modifications
A. Introduction to the pre-existing duty rule (286-293)
Levine v. Blumenthal 289
-pre-existing duty rule requires consideration for a modification to be binding
-UCC 2-209, don’t need consideration for modifications
Foakes v. Beer 292
even with partial performance a modification needs consideration
Fried v. Fisher 287
-reliance on a K is enough to get around consideration (promisory estoppel)
 	-don’t need to show you relied to detriment, just a change in position (Ricketts)
Mahban v. MGM 288
-waiver or equitable estoppel can also be used to get around consideration requirement for a modification

B. Policing modifications through the doctrines of duress, consideration, and good faith. (569-589)
Austin Instrument Co. v. Loral Corp 570
-duress voids a K
-Rstmt 2d says for duress:
a. Must be an improper threat (b/c not duress to threaten to do what is a legal right to do)
-may be improper if threaten to break K if other party doesn’t modify K 
-may be improper b/c the threat makes the outcome disproportional
b. Must be no reasonable alternative
-Duress is alternative to consideration for avoiding a K modification. (note 2-209 displaces need for consideration to validate modifications)
Smithwick v. Whitley 574
-instead of seeking $ damages, you should stop and sue for specific performance in face of duress
Wolf v. Marlton Corp. 574
-Duress is tested, not by the nature of the threats, but rather by the state of mind induced thereby in the victim.
-A legal threat can still be duress if it is malicious (soley intended to injure P)
Alaska Packers Ass’n v. Domenico 577
-no consideration for a promise coerced under duress and coercing party cannot estop coerced from 	abandoning the promise
-supervisor did not have to pay coerced wage, because already had a duty to work (so no consideration)
Schwartzreich v. Bauman-Basch, Inc. 583
-Parties to K can rescind through mutual assent.  They can then make new K in which their mutual promises are consideration for each other. 
Goebel v. Linn 582
-no duress claim if you have a reaonable alternative
-K element is waived if no attempt to try and cover or get judicial help
 	(a) Gergen; 4 ways around consideration arg:
-Settlement
-Reliance/estoppel
-Tear up K, make new one (Swartzreich)
-Waiver arg. (Goebel)
Brian Constr. & Dev. Co. v. Brighenti 583
-if modification leads to additional obligation on the party seeking greater compensation, the modification 	is valid and binding upon both parties if separate circumstances are unanticipated or there is consideration 	(common law) (abolished by UCC 2-209(1))
Gergen review: Doctrines to Test Validity of Modifications
1. Common Law Consideration
a. Don’t need consideration if there are unanticipated circumstances.
2. 2-209(1)
a. Dispenses with consideration and puts you under test of “good faith”.
3. Duress
a. Need an improper threat or no reasonable alternative

C. No oral modification clauses and the concept of waiver
Universal Builders v. Moon Motor Lodge 591
-Common Law Rule: can’t bind yourself w/a no oral mod. clause.
Gergen notes
1. 2-209(2) says a no oral mod. clause can’t be modified by an oral promise. (rejects common law)
2. 2-209(4) says an oral mod. can act as a waiver of a no oral mod. clause
3. 2-209(5) says one can retract a waiver unless a material change in position caused by reliance on the waiver.

Comparison of Modification and Waiver

Modification
1. Requires consideration or substitute(reliance or statute, e.g. 2-209(1)
2. Requires promise and assent	
Waiver
1. No consideration etc. necessary (Nassau Trust 594)

2.(Can be implied) voluntary and intentional
3.Unilaterally restore its original term
4. Can’t waive a material term (Corbin article 594)	

Quigley v. Wilson 595
-court will find a modification rather than a waiver if protected under unanticipated circumstance s89 and 	the obligations are change considerable

D. Hard bargaining in settlements (596-603)
Hackley v. Headley 596
-the issue of duress cannot be solely dependent on the financial situation of the aggrieved party 
Gergen notes: Duress requires
-Headley: Must be a threat to commit unlawful act.
-Austin Instruments: “wrongful act”, duress of goods
-Rstmet 2d K’s: “improper threat”, bad faith
Vyne v. Glenn 599
-Threat to use garnishment to force a settlement is duress
Capps v. Georgia Pacific 601
-duress claim accepted (similar but more aggregious facts than Hackley)

E. Accord and satisfaction (603-611)
Marton Remodeling v. Jensen (603) 
-When there is an unliquidated claim and a bona fide dispute over the amount due, a check with “paid in full” on it will be accord and satisfaction if cashed.
Bennett v. Robinson’s Medical Mart 604
-case might come out different if there are separate parts to the transaction which are being settled by the payment
School Lines v. Barcomb Motor Sales 608
-if there is no real legal dispute over the amount owed then there is no consideration and no settlement
Whittaker Chain Tread v. Standard Auto Supply 606
-Payment of an undisputed sum can’t be consideration for release of the dispute. (agrees w/ Headley, minority opinion)

VII. Remedies
A. Expectation Damages
1. Sales of Goods--Basic UCC Remedies
(a) Buyer’s Remedies
i. Upon non-delivery

Missouri Furnace Co. v. Cochran 53
K price - mkt price at time of performance; if delivery in installments, value @ time each delivery.
Reliance Cooperage Corp. v. Treat 55
B doesn’t cover upon repudiation and mkt up on time of performance you get mkt price at time of performance.
Oloffson v. Coomer 58
-UCC 2-610 (a): You can only await performance for a commercially resonable time.  Under 2-610(b) after a commercially reas. time expires you have to resort to any remedy for breach.
Cargill v. Stafford 58
-Ct. says under 2-713 damages are measured from the time when performance is due, not when buyer learns of breach.
ii. Delivery defective goods--perfect tender, cure, and revocation of acceptance
Bartus v. Riccardi 832 
-the UCC allows a party who has delivered a model not in exact conformity with the K to recover upon tender of the exact model (2-508-seller’s right to cure)
 Oddo v. GM 835
-a buyer is entitled to reject good (or seller has right to cure) even if repaird but it is substantially impaird (subjective test)
Fortin v. Ox-bow Marina 835
-Buyer can reject lemon-boat when dealer can’t fix all problems over a reasonable period of time. (2-608)
Oshinsky v. Lorraine Mfg. Co. 826 
-Time was the essence of the K therefore proper rejection. 
-Buyer’s remedies: a. Don’t use good-faith to override K specifics (Corenswet);   b. 2-601: Perfect-tender
Prescott v. Poweles 827
-seller must deliver exact amount due and there can be no excuse for failure to do so
Beck & Pauli Lithographing v. Colorado Milling & Elevator 829
-while delivery time of goods may be essential, there is likely a different outcome under perfect tender rule 	if they are artistic pieces

(b) Seller’s remedies: Lost profits, 60-65
Neri v. Retail Marine Corp. 60
-a dealer who has an unlimited supply of cars in entitled to lost profits and incidental damages if  the party breaches
(i) Damages for retailer = 2-708(2), Lost profit + incidental 
(ii) Damages for single sale=2-706; K price - resale price + incidental
(iii) Damages if keep good=2-708(1); K price - market price
(iv) Whether seller completes unfinished product upon repudiation: 2-704(2); (Luten)
(v) dams for manufacture who stops during production = lost profits + incidental - due credit for payments or proceeds from resale
(vi)if supplier would not have sold two items, then no recovery (father pays for son after breach)
(vii)dams for seller if buyer breaches on good only usable by him = full K price/specific performance

2. Foreseeability, 65-73
Hadley v. Baxendale 65
-Shipper is liable for consequential damages resulting from nondelivery if:
a. Resulting damages would naturally occur from br/K
b. Resulting dams. were objectively in parties’ minds when contracted.  
Kerr Steamship Co. v. Radio Corp. of America 68
-D not liable for consequential damages resulting from delay if subsequent damgaes not forseeable
-Study rules on outlines 
Victoria Laundry Ltd. v. Newman Industries Ltd. 69
-D liable for forseeable loss resulting from late delivery
 
B. Restitution to the breaching promisor, 109-132
Pinches v. Swedish Evangelical Lutheran Church 115
-to recover in restitution K breacher must show substantial performance and breach was not willful (contrary to Plant)
-damages =Kprice - diminution of value
Plante v. Jacobs 837
-Substantial Performance doesn’t require compliance w/every detail unless those details made essence of the K.
-breacher does not have to show breach not willful to recover damages

C. Repudiation (Saturday)
BoneBrake v. Cox 830
if mixed goods and sevices, if goods predominate UCC
Cherwell Ralli 859
-right to cancel overall K when default on one or more installments substantially impaires the value of the 	whole K 2-612 (3); can be established by lack of adequate assurances 2-609, 2-610 

D. Agreed Remedies
1. Liquidated damages 2-718
Pacheco v. Scoblionko 133
-sets up two prong test to enforce liquidated damages.
1) must be difficult to accurately estimate damages
2) must be a reasonable forecast of what is required to justly compensate 
 City of Rye v. Public Service 134
-restatement 356;  ct may look at actaul damages to determine if stipulated dams will be einforced
Banta 136
-liquidated dams might be applied for emotional dam suffered due to breach; i.e. not real out of  pocket 	expenses
Equitable Lumber Corp. v. IPA Land Development Corp. 140
-2-718(1);  don’t look at actual loss unless it is unreasonable, but if too high then void
Muldoon v. Lynch 137
-per diem not used if too outrageous

2. Limitation of Remedies
Fretwell v. Protection Alarm Co. 145
-liq dam clause was really an attempt to limit liability and is valid as such, not unconscionable. 2-719(3)	

F. Conditions
Merritt Hill Vineyards v. Windy Heights Vineyard 733
-if conditional language is seen as a promise, you may get K dams for breach, but if seen as a condition you cannot sue under K
Sahadi 761
-by asking if clause is a condition, ask if it is central to the fulfilment of K 
 Doctorman v. Shroeder 761
-if K stipulates time is of the essence as a condition, late performance can cancel K, and substantial performance is not looked at - a rare result in equity
Porter v. Harrington 762
-even if time is of the essence, actions of obligor may waive requirements (accepting late payments)
Sliwinski 764
-accepting very few late payments will act as waiver even if lawsuit brought, must be proper notice
Bead Chain Mfg. v. Saxton Products 765
-B of goods can also waive time is of the essence clause 
Fursmidt v. Hotel Abbey Holding Corp. 781
-sets out difference between subjective/objective standards of sufficient performance in conditions of 	satisfaction
Haymore 784
-building of a house normally falls under the objective test
Breslow 784
-legal services may fall in objective category 
Morin 785
-good faith is applied when personal aesthetics or fancy is at issue and subjective standards used

VIII. Policing Contracts
B. Mistake, misrepresentation and nondisclosure
Sherwood v. Walker 621
-if assent to K is founded on mutual mistake of material fact, K not enforceable
Lenawee County 628
-restatement 152, if there is an as is clause the B will lose
Backus 629
-if risk is known it becomes element of bargain and no recovery
Smith 633
-2-313; supplies a warranty the goods will be as described
Elsinore Union Elementary School Distircty v. Kastorff 634
-if there is an honest clerical error and not mistake in judgment, and prompt recision then the K can be 	voided - unilateral mistake
Crenshaw 638
-bids may be enforced if the other party relies and the other party relies and the difference in price is not 	disproportionate to the other bids 
White 639 
-even is a mistake is mixed between fact and judgement, the court may enforce the K for equitable reasons
 Cushman v. Kriby 652
-sulfur water and lying bitch with sackless husband
-if you intentionally mislead or stand by in watch, then there is fraud 
Matthews v. Kincaid 657
-duty to disclose rarely imposed where parites deal at arms length, and where info is the type which buyer 	would be expected to discover by ordinary inspection and inquiry

C. Impossibility, impracticability and frustration of purpose
Kel Kim Corp v. Central Markets 674
-impossibility when: 1. Subject of K destroyed/performance objectively impossible 2. Must be produced by 	unforseen events	
Bunge Corp. v. Recker 676
-Where goods not identified in K, S can’t argue impossibility through act of God.

Snipes Mountain v. Benz Bros. 678
-Specifically identified goods excuse P from liability, K may be reformed to show particular identification 	was intent of the parties.

Mishara 684
-2-615 Impracticability: Question in employment strike context is “Is it foreseeable?”

Chase Precast Corp. V. John J. Paonessa Corp. 697
-Rstmt. 265 Frustration of Purpose: Ct. may let off b/c of lack of reliance loss and good faith of breaching 	party.

D. Standardized forms: assent, unconscionability, and reasonable expectations

Mundy v. Lumbermans Mut. Cas. Co. 510
-Insurance cases: Modification in K must be in plain English and conspicuous.

Weisz v. Parke-Bennett Galleries 512
-Some courts may hold that even if the disclaimer is plain and conspicuous but buyer does not take it 	seriously, then disclaimer may not be enforced.

Henningsen v. Bloomfield Motors 516
-Ct. held disclaimer of warranty is unconscionable for ethical and prudential reasons (Today use UCC 2-	719, 2-316)

E. Unconscionability
Williams v. Walker-Thomas Furniture 712
-Cross-collateral clause deemed unconscionable.

Smith v. Price’s Creameries 718
-Like Corensweat, but shows that you usually lose on an unconscionable argument.

Martin v. Joseph Harris Co. 722
-If K of adhesion and parties are less educated, then unconscionable.

Gianni Sport Ltd. v. Gantos, Inc. 723
-Unconscionablility works but better understood as a bad faith case.

 

Gergen Flow Chart of Idahoe Power

Was purchase order an acceptance?
                                                               /                                                   \
                       If yes. (b/c accepted price and delivery date)      If no, then it is a counteroffer(mirror image rule)
                                                 \/                                                   1. Seller can refuse to ship.
                                                 \/                                                   2. If S ships, then K on counteroffer’s terms.
                                                 \/
      Was acceptance “expressly made conditional” under 2-207(1)?
                                  /                                                                        \                                                                                                   If No                                                                                   If Yes

Go to 2-207(2), seller wins
-(No, b/c superseder clause was too vague)
-(“Subject to” clause wouldn’t work either, Dorton), must say expressly conditional
-See if terms in acceptance become part of the deal 2-207(2)
- If additional, run through 2-207(2)
- If different, apply Knockout Rule or 2-207(2)	
1. Seller can refuse to ship.
2. If seller ships, then K
    Go to 2-207(3) to derive terms (those on which      the writings of the parties agree and UCC “gap      fillers”)	

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

from under V. interpretation and parole evidence rule
A. Parol evidence Rule (Rstmnt 213, p.472))
1. A binding integrated agreement discharges prior agreements to the extent that it is inconsistent with them.
2. A binding completely integrated agreement discharges prior agreements to the extent that they are within its scope.
(a. Completely and exclusive final terms of an agreement)
3. An integrated agreement that is not binding or that is voidable and avoided does not discharge a prior agreement.  But an integratred agreement, even though not binding, may be effective to render inoperative a term which would have been part of the agreement if it has not been integrated.
4. Comment: Whether a binding agreement is completely or partially integrated, it supersedes inconsistent terms of prior agreements.

B. Integrated agreements (Rstmnt 209, p.471)
1. An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement.
2. Whether there is an integrated agreement is to be determined by the court as a question preliminary to determination of a question of interpretation or to pplication of the parole evidence rule.
3. Where the parties reduce an agreement to a writing which in view of its completeness and specificity reasonably appears to be a complete agreement unless it is established by other evidence that the writing did not constitute a final expression. 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

                                             Two Reasons to Introduce Parol Evidence

1. To Interpret Ambiguous Stmts.	
2. To Contradict Plain Meaning	

Testimony of Subjective Understanding	
Yes, Kabil	
No, FDIC v. W.R. Grace 504

Circumstances	
	
Yes, New York Trust
Yes, PG&E 501
No, “4 Corners Rule” & Beth Steel	

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXx

Hypo: Anticipatory repudiations, what are buyer’s damages?
3 Cases

#1: B covers upon repudiation and then market price goes down on time of performance.

a. Common Law Damages- Difference btwn. K price and market price at time of performance

b. UCC- Difference btwn. K price and cover price 2-712	
#2: B covers upon repudiation but market price is up at time of performace. Buyer wants higher damages based on time of performance.

a. No - b/c buyer can cover at low price and get windfall b/c of market price at top.

b. 2-713 comment 5 - only sue for K minus market to the extent you haven’t covered	
#3: B doesn’t cover on repudiation and market price up at time of performance.

a. Common Law - Market price at time of performance, Reliance Cooperage

b. 2-713 - K-Market when “B learned of breach” + commercially reas. time

c. 2-610 Anticipatory Repudiation - Can wait for a commercially reasonable time