CONTRACTS II SYLLABUS
Section M
Prof. Jon Romberg
Spring, 2011
The same textbook, supplement, and exam policies continue from fall semester.
CH. 5 THE MEANING OF THE AGREEMENT: PRINCIPLES OF INTERPRETATION
Ch. 5A
Principles of Interpretation
Pages 349-352
Introduction
Pages 352-360
Joyner v. Adams [skim]
(Think carefully about the Peerless case mentioned on p.
351, which we will discuss; which party should win if
§ 201 were applied? Focus on the general question of how
to apply K2d § 201 to resolve disputes as to K meaning;
you need not focus much at all on the particular facts of (or
meaning of the particular disputed term in) Joyner.)
Pages 361-370
Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp.
(How does the court analyze: what’s a chicken? What are
the full set of relevant factors the court looks to?)
Supplement:
Restatement (2d) §§ 200, 201, 202, 203, 204, 206, 211, 222, 223
U.C.C. §§ 1-205(1),(2), 2-208(1)
CH. 6 SUPPLEMENTING THE AGREEMENT: GOOD FAITH & OTHER IMPLIED TERMS
Ch. 6A
Pages 437-442
Pages 442-448
Reference:
Ch. 6B
Pages 448-451
Pages 459-462
Pages 462-465
Page 468-469
Pages 470-480
Pages 486-491
Reference:
Rationale for Implied Terms
Wood v. Lucy, Lady Duff-Gordon [Concentrate on the justification
for an implied obligation of good faith; think back to
Berryman v. Kmoch—how could an implied obligation of
good faith affect the analysis of consideration or PE?]
Leibel v. Raynor Manufacturing Co. [skim]
U.C.C. §§ 2-306, 2-309
Implied Obligation of Good Faith
Introductory Material
Notes following Seidenberg v. Summit Bank
Comment: Requirements and Output Contracts
Note 1 to Morin Bldng Products Co. v. Baystone Construction Co.
Locke v. Warner Bros., Inc. [Focus on this case. Why has WB
breached its duty of good faith here? Doesn’t the k give WB
the right not to hire Locke, so how can WB’s exercise of its
express k right not to hire her breach good faith?]
Notes following Donahue v. Federal Express Corp.
Restatement (2d) § 205, 228
U.C.C. § 1-201(20) (+ cmt. 20)
§ 1-304 (+ cmts.)
CH. 5 THE MEANING OF THE AGREEMENT: PRINCIPLES OF INTERPRETATION
Ch. 5B
Pages 382-394
Pages 394-410
Pages 419-432
Reference:
The Parol Evidence Rule
Thompson v. Libby [this case employs a classical approach to PER;
how would a ct applying the modern approach analyze this
case?]
Taylor v. State Farm Mutual Automobile Ins. Co. [skim Taylor,
except for background legal principles concerning the PER]
Nanakuli Paving & Rock Co. v. Shell Oil Co. [UCC PER case; focus
on UCC concepts of “trade usage,” “course of performance,”
and “course of dealing,” and on how UCC approaches
determination of explanatory vs. contradictory PEV]
Restatement (2d) §§ 209, 210, 211, 213, 214, 215, 216, 217, 218
U.C.C. § 1-205, 2-208, 2-202, 1-303
Parol Evidence Handout on Blackboard
CH. 7 AVOIDING ENFORCEMENT (K DEFENSES)
Ch. 7A
Reference:
Minority and Mental Incapacity [skim intro material]
Restatement (2d) §§ 12, 13, 14, 15, 16
Ch. 7B
Pages 537-548
Duress and Undue Influence
Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Svc. Co.
[Duress: how does Alyeska’s (alleged) conduct meet the
doctrinal requirements for duress (wrongful threat; reliance;
no reasonable alternative)?]
Odorizzi v. Bloomfield School Dist. [Don’t be confused by the court’s
odd terminology, particularly for “duress”; focus on the
court’s analysis of undue influence – what factors, in this case
and in general, warrant a k defense of undue influence?]
Restatement (2d) §§ 175, 176, 177
Pages 548-556
Reference:
Ch. 7C
Pages 556-567
Pages 567-578
Pages 580-584
Pages
Reference:
Misrepresentation and Nondisclosure
Syester v. Banta [Focus on this case: what sorts of misrepresentations
were made? What part of the case deals with the tort of
misrepresentation, and what part with the k defense of
misrepresentation? Even if the defendants are not very
savory, can you come up with plausible arguments that the k
defense of misrepresentation should not actually be available?
Are there other k defenses that Syester could have brought?]
Hill v. Jones [What categories of misrepresentation are present here,
and how do they meet the doctrinal elements?]
Comment: Lawyers’ Professional Ethics
Park 100 Investors v. Kertes [What categories of misrepresentation
are present here, and do they meet the doctrinal elements?]
Restatement (2d) §§ 159, 160, 161, 162, 163, 164, 168, 169
Ch. 7D
Pages 584-596
Pages 596-599
Pages 370-382
Pages 625-632
Reference:
Ch. 7E
Pages 632-647
Pages 654-658
Reference:
Unconscionability
Williams v. Walker-Thomas Furniture Co. [Focus on this case. What
is procedural unconscionability, and what is substantive
unconscionability? What are the arguments, pro and con, that
each is satisfied in this case?]
Comment: Consumer Protection Legislation
C&J Fertilizer, Inc. v. Allied Mutual [from Ch. 5A] [Note that this
doctrine of “reasonable expectations” can be thought of as a
specific example of unconscionability. How does it apply
here? What is the purpose of the definition of burglary, and
how does it affect your analysis?]
Comment: Commercial, Employment and Consumer Arbitration
Restatement (2d) §§ 208, 211
U.C.C. § 2-302
Public Policy
Valley Medical Specialists v. Farber [Pay some attention to the
case/elements of public policy that limit the scope of noncompete agreements. Pay attention to the notes discussing
what happens when a statute/ regulation requires licensure for
public safety vs. for revenue generation, particularly note 5.]
Notes following R.R. v. M.H. & Another
Restatement (2d) §§ 178, 179, 186, 187, 188, 191
CH. 8 JUSTIFICATION FOR NON-PERFORMANCE
Ch. 8A
Pages 663-674
Pages 674-684
Reference:
Ch. 8B
Pages 684-701
Mistake
Lenawee County Board of Health v. Messerly [Don’t get hung up on
the discussion of the historical development of the doctrine of
mistake as a k defense. Focus on 1) the mistaken belief that
was held by both parties; and 2) whether the party asserting
the defense bore the risk of mistake, and why. Are the cases
discussed in the notes consistent with Lenawee?]
Wil-Fred=s, Inc. v. Metropolitan Sanitary District [Skim. Consider
how you could think of this case as a unilateral mistake case,
and why Wil-Fred’s was able to prevail despite its unilateral
mistake.]
Restatement (2d) §§ 151, 152, 153, 154, 155, 158
Changed Circumstances, Impracticability, and Frustration [consider the cases
discussed in the introductory material b/c they will help you
understand the gist of the k defenses in this chapter]
Karl Wendt Farm Equipment Co. v. Int=l Harvester Co. [As to
impracticability, how severe does market change need to be
before it can constitute a change in the basic assumptions of
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Reference:
Ch. 8C
Pages 713-723
Pages 728-731
Pages 739-740
Reference:
the k? Does something in the actual k here affect the ordinary
analysis of severity? As to frustration of purpose, do you find
the court’s analysis convincing?]
Restatement (2d) §§ 261, 266(1), 269, 270 (impracticability)
265, 266(2), 269 (frustration)
262, 263 (death of person, destruction of thing =>
impossibility or impracticability)
264 (government order => impossibility or impracticality)
272, 377 (restitutionary relief for k=s voided on these grounds)
U.C.C. §§ 2-613 (impossibility); 2-615 (impracticability)
Modification [Carefully consider the handouts, introductory material, and
notes, not merely the case assigned]
Alaska Packers= Assn. v. Domenico [How does the pre-existing duty
rule apply to this case? Is there only new consideration on
one side here? Do the sailors have an argument that they
provided new consideration, at least on their version of the
facts?]
Notes 1 - 4 following Kelsey-Hayes
Note 4 following Brookside Farms
Restatement (2d) §§ 73, 74, 89
U.C.C. §§ 1-107, 1-207, 2-209(1)
CH. 10 CONSEQUENCES OF NON-PERFORMANCE
Ch. 10A
Pages 783-796
Pages 796-804
Reference:
Express Conditions
Oppenheimer & Co. v. Oppenheimer, Appel, Dixon & Co. [What is
an express condition, and what is an expressly conditioned
duty? What are the express conditions in this k? How do you
know they are express (rather than implied) conditions? Are
they strictly satisfied? Are any of the excuses for failure to
satisfy an express condition potentially available (in
particular, consider the issues of waiver and estoppel, even
though not discussed on appeal); don’t be confused by the
court’s dancing around the issue of forfeiture, which it
doesn’t really analyze. Note that the court properly explains
that substantial performance is not enough to require
performance of an expressly conditioned duty.]
J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc. [consider the possible
excuse of forfeiture, even though the court isn’t quite clear
about which excuse it is considering.]
Restatement (2d) §§ 84, 224, 225, 226, 227(1), 228, 229
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Ch. 10B
Pages 806-814
Pages 814-817
Pages 817-824
Reference:
Ch. 10C
Reference
Material Breach (Note: this subchapter addresses constructive conditions)
Jacob & Youngs, Inc. v. Kent [What is substantial performance? Why
has J&Y potentially satisfied this standard, according to the
majority? When does substantial performance matter – think
about why the issue here only arises in contracts in which the
parties have duties due at different times, either b/c the k so
states, or by operation of the presumption that duties that take
longer are due first.]
Comment: The Doctrine of Constructive Conditions [important –
don’t skim this.]
Sackett v. Spindler [In this case, focus on the question of when the
buyer materially breached, and when the buyer totally
breached, and the implications of the seller’s temporary
refusal to proceed.]
Restatement (2d) §§ 226, 234, 235, 237, 238, 240, 241, 242, 243(3)
U.C.C. §§ 2-507(1), 2-511(1)
Anticipatory Repudiation
Restatement (2d) §§ 251, 253(1)
U.C.C. §§ 2-609, 2-610, 2-611
CH. 11 EXPECTATION DAMAGES
Ch. 11A
Computing the Value of Plaintiff= Expectation
Handout/Blackboard
Turner v. Benson [Think about each category of damages assessed by
the court – what is the best argument for and against each?]
Pages 847-857
Roesch v. Bray [Skim – read only to contrast with approach of court
in Turner as to whether breaching buyer should be
responsible for the seller’s obligation to shoulder the carrying
costs of two houses.]
Reference:
Restatement (2d) §§ 344(a),(b)&(c), 346, 347, 348(2)
U.C.C. §§ 1-106, 2-703, 2-706(1), 2-708, 2-710, 2-711(1), 2-712, 2-713
Ch. 11B
Pages 868-874
Pages 874-886
Foreseeability, Certainty and Causation
Hadley v. Baxendale [Pay attention to the definition of general
foreseeability and specific foreseeability; note that the
description of what the carrier knew about the consequences
of the broken shaft, as expressed at the beginning of the case,
may not be the facts the court takes as true in its opinion.]
Florafax International, Inc. v. GTE Market Resources, Inc. [Good
case to take notes on to see if you can outline the issues going
to damages – what consequential damages are asserted here,
what limits are there on consequential damages, and how do
those limits apply on these facts? What is the different effect
of a k clause granting a right to terminate, if it is in the k b/w
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Reference:
Ch. 11C
Pages 886-890
Pages 890-904
Pages 904-911
Reference:
the two parties in the suit, as opposed to in a k b/w the nonbreaching party and a third party (as to whom the nonbreaching party is claiming consequential damages for loss of
profit on that k, caused by the breach of the k b/w the
parties)]
Restatement (2d) §§ 347, 351, 352
U.C.C. § 2-715(2)
Mitigation of Damages
Rockingham County v. Luten Bridge Co. [Simple case giving stark
example of what mitigation requires/precludes.]
Havill v. Woodstock Soapstone [Do not focus on the (interesting)
issues of liability here, but rather on the scope of damages.]
Jetz Service Co. v. Salina Properties [Skim – focuses on the concept
of a lost volume sale, in which the non-breaching party enters
into what appears to be a substitute k (which would ordinarily
be in mitigation and thus lessen damages), but it is not a
substitute k b/c the non-breaching party could and would
have entered that k even if the other party hadn’t breached.]
Restatement (2d) §§ 347, 350
U.C.C. §§ 2-704(2), 2-706(1), 2-712, 2-715(2)(a)
Ch. 11D
Reference:
Nonrecoverable Damages [Read only K2d sections below]
Restatement (2d) §§ 353, 355
Ch. 11E
Pages 938-942
Pages 942-945
Buyers’ and Sellers’ Remedies Under the U.C.C. [Skim chapter]
Ch. 11E1 Buyers’ Remedies
Ch. 11E2 Sellers’ Remedies
CH. 12 ALTERNATIVES TO EXPECTATION DAMAGES
(Note: We may well cover Chapters 12A and 12B briefly)
Ch. 12A
Pages 965-975
Reference:
Reliance Damages
Wartzman v. Hightower Productions Ltd. [Why don’t the plaintiffs
seek expectation damages here? How does the court evaluate
the defendant’s argument that the plaintiffs’ enterprise would
have failed even if he had incorporated it properly? Why did
the plaintiffs’ failure to mitigate damages by hiring someone
to incorporate them properly not bar (or limit) recovery
here?]
Restatement (2d) §§ 90, 344(b), 349
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[We may or may not reach Ch. 12B, apart from the Restatement provisions]
Ch. 12B
Restitutionary Damages
Pages 983-988
Coastal Steel Erectors, Inc. v. Algernon Blair, Inc. [In what
circumstances can the non-breaching party recover
restitutionary damages that are greater than expectation
damages, b/c the k would have been a losing k?]
Pages 988-995
Lancellotti v. Thomas [In what circumstances can a breaching party
recover restitution from the non-breaching party?]
Pages 995-1007
Ventura v. Titan Sports, Inc. [Skim – you don’t need to read this case
closely – focus on why restitution is possible remedy for k
violation before Ventura’s agent is involved in k negotiations,
and why restitution is possible remedy after Ventura’s agent
was involved in k negotiations.]
Reference:
Restatement (2d) §§ 344(c), 370, 371, 373, 374, 376, 377
Syllabus current as of 1/10/11. Subject to change as semester progresses.
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