Intro to Contracts: Contract
Enforcement I
Prof. Merges
Jan. 10, 2011
Agenda
• Logistics
• Overview of course: structure and
approach
• Intro to K enforcement
Logistics
• Office Hours: Thursdays at 2 pm – 438
North Addition
• Slides: bclt course website
• Meeting times, break days, etc.: see
syllabus
Course Overview
• Overall approach: high-level concepts,
doctrines, tools
• With an eye toward practical
application
– This is the foundational private law course
E. Allan Farnsworth
Contracts and enforcement
• What does it mean for a contract to be
enforceable?
• Enforceable by whom?
• How does a party enforce a contract?
Restatement 2d § 1
• A K is –
“a promise or set of promises for the
breach of which the law gives a
remedy, or the performance of which
the law recognizes as a duty . . .”
“Private law”
• Contrast with “public law”
• Who makes private law?
Rest sec. 1
• “Promise for which law gives a
remedy” –
• What can you infer from this?
Rest sec 1 (cont’d)
• OR performance recognized as a duty
 What can you infer from this?
What does it mean to enforce
a contract?
• Hawkins v. McGee
• Bayliner Marine v. Crow
Hawkins v. McGee
Hawkins v. McGee
•What is the contract?
Hawkins
• Who are the parties to the
contract?
Hawkins
• When was the contract
written down?
Rest sec 1
• “A promise for the breach of
which the law gives a
remedy . . .”
• Was there a promise here?
Doctor’s statements
• “Three or four days, not over
four, then the boy can go home,
and [in a few days he] can go to
work with a good hand.”
• Legal status?
Dr.’s statements
• “Clearly [these statements] would
not justify a finding that the
doctor contracted . . . .”
• “[T]he fact that these estimates
were exceeded would impose no
contractual liability upon the
defendant.”
What if?
• The Doctor had said “I promise
the boy will be in the hospital
three or four days and then can
go home and soon get to
work”?
• “Expressions of opinion or
predictions”
• Still true if he promised?
What did the Dr. say that
implicated a K?
What did the Dr. say that
implicated a K?
“I will guarantee to make
the hand a hundred
percent perfect hand or a
hundred percent good
hand.”
Were these words alone
enough to create a K?
Were these words alone
enough to create a K?
• Can one person’s statement,
without more, create a
contractual obligation?
• What about the other party
here?
What was the holding here?
What was the holding here?
“The question of the making
of the alleged contract was
properly submitted to the
jury.”
Language and context
Rest. 2d § 2. Promise; Promisor; Promisee;
Beneficiary
(1) A promise is a manifestation of
intention to act or refrain from
acting in a specified way, so made
as to justify a promisee in
understanding that a commitment
has been made.
Rest. 2d § 2. Promise; Promisor;
Promisee; Beneficiary
(2) The person manifesting the
intention is the promisor.
(3) The person to whom the
manifestation is addressed is
the promisee.
R2 § 4. How A Promise May Be
Made
A promise may be stated in
words either oral or written,
or may be inferred wholly or
partly from conduct.
Illustrations:
1. A telephones to his grocer, “Send me a
ten-pound bag of flour.” The grocer
sends it. A has thereby promised to pay
the grocer's current price therefor.
2. A, on passing a market, where he has an
account, sees a box of apples marked “25
cts. each.” A picks up an apple, holds it
up so that a clerk of the establishment
sees the act. The clerk nods, and A
passes on. A has promised to pay
twenty-five cents for the apple.
Anglin v. Kleeman, 140 N.H. 257, 665
A.2d 747 (Sup Ct N.H.,1995)
Action arising out of unsuccessful
knee surgery
Cites Hawkins v. McGee
665 A.2d 747, 750
In this case, the plaintiff testified he was
told that the “operation could give me a
knee that was stronger than ... before,”
and that following surgery “if [he] was
committed, [he] would be able to play
ball again.” The language quoted by the
plaintiff does not rise to the level
required by Hawkins to allow a finding
of a contract or warranty to cure by a
physician.
Hawkins distinguished
“Additionally, unlike the doctor in Hawkins,
Dr. Kleeman did not solicit or request that
he be allowed to perform the plaintiff's
surgery. In fact, the plaintiff testified that Dr.
Kleeman had informed him that he could
have another surgeon perform the surgery,
and the plaintiff did consult another surgeon
prior to agreeing to surgery.” – 665 A.2d
747, 750
Other causes of action?
• Anglin v. Kleeman, 140 N.H.
257, 665 A.2d 747 (Sup Ct
N.H.,1995)
Other causes of action?
• Anglin v. Kleeman
• Negligence (tort)
• “The spongy knee” case
Bayliner Marine v. Crow
• Parties and procedural
history
• Primary issue in the case
Bayliner
Facts
• Crow and Atherton
Atherton
• Who was he exactly?
• What did he say?
Bayliner documents
YEAR
MODEL ENGINE OPTIONDRIVE RATIO HIGH ALTITUDE GEAR
RATIO PROP SIZE
PART N0.
WIDE OPEN
THROTTLE RPM
1989
160 CB OB
100 hp 2.07:1 13 X 19 5500
1989
160 BR 3.0L 130hp Merc 1.98:1 13.75 X 21
4600
1989
160 BR OB
100 hp 2.07:1 13 X 19 5500
1989
Laguna 17
100hp Merc OB 2.07:1 13.75 X 17
5500
1989
Laguna 17
135hp Merc OB
2.00:1
17 Mirage
5500
1989
180 BR OB
135 hp Merc
2.00:1
17 Mirage SS
5500
Prop matrix disclaimer
• “This data is intended for comparative
purposes only, and is available without
reference to weather conditions or
other variables. All testing was done at
or near sea level, with full fuel and
water tanks, and approx. 600 lbs.
passenger gear and weight.” – p. 4
Bayliner brochure
• “The 3486 delivers the
kind of performance you
need to get to the prime
offshore fishing grounds.”
Other facts: Crow
Other facts: Crow
• Lots of extra equipment – nav
system, radar, icemaker,
autopilot, AC/heating unit, etc.
• No test drive prior to delivery
The sad truth
• This boat was a dog!
• Topped out at 17 mph
• And it could not be much improved
The lawsuit
• Who sued whom, and for
what?
Parties
• Crow v. Tidewater, Bayliner, and
Brunswick (engine manufacturer)
• Why all 3?
Causes of action
• Breach of express warranty
• Breach of implied warranties of
merchantability and fitness for a
particular purpose
Trial proceedings
• Who heard the facts?
Why a bench trial?
• Think about the strategy on
each side
Who won at trial?
Who won at trial?
• Crow
• All 3 warranty counts of the complaint,
held in Crow’s favor
Appeal standard
• View of the evidence
• Standard of review on issues of law?
Express warranty provision
• What is the source of this
provision? Who enacted it,
where did it come from?
Why does the UCC apply
here?
Why does the UCC apply
here?
There is at least one “merchant”
This is a transaction involving “goods”
-- UCC § 2-104(1), 2-105(2)
UCC § 2-313
“Express warranties by the seller are
created as follows:
(a) Any affirmation of fact or promise
made by the seller to the buyer which
relates to the goods and becomes part
of the basis of the bargain creates an
express warranty that the goods shall
conform to the affirmation or promise.
UCC § 2-313
“Express warranties by the seller are
created as follows:
(b) Any description of the goods which is
made a part of the basis of the bargain
creates an express warranty that the
goods shall conform to the description.
Prior case law
• Daughtrey v. Ashe
• Diamond appraisal case
– Holding?
Prop matrix statements
• Were they binding?
Prop matrix statements
• NO!!
• They “did not relate to the particular
boat bought by Crow”
Brochure statement?
Brochure statement?
• “A statement purporting to be merely
the seller’s opinion or commendation
of the goods does not create a
warranty.”
Was there a contract?
Was there a contract?
• Yes
• But – it did NOT include a warranty as
to the speed of the boat