Syllabi and Contracts
Kathryn Atkinson Overberg
August 16, 2006
Million Dollar Question…
Is my syllabus a contract?
Answer: It depends!
First Things First
•
What is a Contract?
“An agreement between two or more persons
which creates an obligation to do or not to do
a particular thing.” Black’s Law Dictionary
(1991).
“A contract is a promise or a set of promises
for the breach of which the law gives a
remedy, or the performance of which the law
in some way recognizes as a duty.”
Restatement (2nd) Contracts, § 3.
Contracts 101
To create a contract, there must be:
1. An offer (must be definite to enforce)
2. Acceptance of that offer (i.e., same
terms otherwise it is a counter offer)
3. Consideration (right, profit, benefit to
one party, or detriment, forbearance,
or loss suffered by another)
Types of Offers
There must be an expressed or implied intention
to be bound by the agreement.
“I will sell you my car today if you pay me $3,000 cash.”
“This is a contract.”
“All parties agree to be bound by the terms of this
document.”
Even without these express commitments, intent
can be implied by words and conduct.
“An offer is a ‘manifestation of willingness to enter into a
bargain, so made as to justify another person in understanding
that his [or her] assent to that bargain is invited and will
conclude it.’” Magnusson Agency v. Public Entity Nat.
Company-Midwest, 560 N.W.2d 20 (Iowa1997).
Offer or No Offer?
Statement of Intent
Objectives
Quotes for work
Estimates for work
Options
Requests for Bid
Bid
No
No
Yes
No
Yes
No
Yes
“Ordinarily, a municipality's advertisement for bids is a
solicitation for offers, and does not itself constitute an
offer. A bid generally constitutes an offer, and does not
in itself constitute a contract.” Horsfield Const., Inc. v.
Dubuque County, 653 N.W.2d 563 (Iowa 2002).
Is a Syllabus an Offer to Contract?
That’s up to you! The syllabus is not
rendered a contract simply because you
have requirements of the students.
•
If you say it is a contract, then you are binding
yourself contractually.
– E.g., “Review your syllabus. It is your contract with
the university.”
Is a Syllabus an Offer to Contract?
•
If you say nothing, most likely the syllabus will
not be a contract, but the language may make
this ambiguous.
• If you say it is not a contract, then there is no
intent to be bound and therefore, it can’t be a
contract.
Disclaimers
Disclaimers reflect an intention not
to be bound by a document and
can preclude the other party from
relying on the syllabus as a contract
or from contesting modifications to
the syllabus.
Some Disclaimer Language…
•
“The instructor reserves the right to alter
the syllabus if unforeseen circumstances
warrant.”
•
“This syllabus is subject to change.”
These are good notices to the students that
you have the right to modify the syllabus,*
which suggests there is not a contract…
* Make sure student is alerted to changes.
Better Disclaimer Language…
But why not take it one step further?
•
“This syllabus is a guide, not a contract. It may be
revised if it seems in the best interests of the class
to do so. Students will be notified promptly of any
revisions.”
•
“This syllabus is a guideline for the course and not
a contract. As such, its terms may be altered when
doing so is, in the opinion of the instructor, in the
best interests of the class.”
•
Words like “objectives,” “guide,” or “guidelines” are
good and non-binding terminology.
Claims for Breach of Contract
To state a breach of contract claim, a party must show:
(1) the existence of the contract (offer, acceptance,
consideration);
(2) the terms and conditions of the contract (must be
definite);
(3) that the party has performed all of the terms and
conditions of the contract required of him/her to now
require the other to perform;
(4) that the contract was breached in some particular way;
and
(5) that the party has suffered damages.
Lautenbach v. Rowan, 710 N.W.2d 257 (Iowa Ct. App. 2005)
Educational Malpractice and
Other Claims
Generally, claims based on the reasonableness or adequacy of
educational services are not recognized causes of action.
“Educational malpractice is a tort theory beloved of
commentators, but not of courts. While often proposed as a
remedy for those who think themselves wronged by educators
[citations omitted], educational malpractice has been repeatedly
rejected by the American courts.”
Ross v. Creighton Univ., 740 F.Supp. 1319 (N.D. Ill. 1990)
Iowa has rejected claims of “educational malpractice,” which
includes academic instruction, placement in specific educational
setting, and supervising performance. Courts do not like to
review adequacy of academics due to unique setting and lack of
specific knowledge and expertise. This can vary by state.
Educational Malpractice and
Other Claims
However, Iowa has recognized “negligent
misrepresentation” in a case where a
school counselor allegedly provided bad
advice/instruction.
Sain v. Cedar Rapids Comm. Schl. Dist.,
626 N.W.2d 115 (Iowa 2001).
Other states are also cautious to avoid
labeling all claims against educators as
Relevant Cases
Poe v. Hamilton, 565 N.E.2d 887 (Ohio Ct. App.
1990) (student sued teacher after failing high
school course alleging failure to follow School
Board’s rules and guidelines).
Finstad v. Washburn Univ., 845 P.2d 685 (Kan.
1993) (students sued under Consumer
Protection Act and for educational malpractice
due to false statements regarding accreditation).
Relevant Cases
Andre v. Pace University, 655 N.Y.S.2d 777 (N.Y.
App. 1996) (students sued for misrepresentation of
computer program, breach of contract, and
deception).
Alsides v. Brown Inst., Ltd., 592 N.W.2d 468 (Minn.
Ct. App. 1999) (40 computer program students sued
trade school alleging breach of contract, fraud,
misrepresentation, and violations of the Consumer
Fraud and Uniform Deceptive Trade Practices Act).
Leiby v. University of Akron, 2006 WL 1530152 (Ohio
Ct. App. 2006) (student brought breach of contract
and educational malpractice claims against university
over re-use of exams in courses).
Relevant Cases
Lemmon v. Univ. of Cinn., 750 N.E.2d 668 (Ohio
Ct. Claims 2001) (claim by court reporting students
for breach of contract, fraud, and negligence when
students could not achieve speed levels).
Alligood v. County of Erie, Erie Comm. College,
749 N.Y.S.2d 349 (N.Y. App. 2002) students
brought claim alleging failure to provide adequate
instruction and failure to teach biomedical
technology in accordance with syllabus).
Hutchings v. Vanderbilt Univ., 55 Fed. Appx. 308
(6th Cir. 2003) (student sued over inadequate
education when he failed student teaching
assignment and could not graduate with licensure).
Lessons Learned
Generally, claims over the adequacy, quality, or
reasonableness of education will not be
recognized even if stated as claims of breach of
contract. This can vary by state.
However, specific promises (e.g., number of hours,
particular skill or experience, accreditation,
licensure) may be enforced under theories of
breach of contract or fraud.
Questions?