K15syll
CONTRACTS Section B 2015 : (1) Assignment
for first class, (2) Answers to Some Questions
and (3) First Part of the Syllabus
ASSIGNMENT FOR THE FIRST CLASS
Read AND THINK ABOUT pages 1-12 of Cases and Materials: Making
and Doing Deals (4th ed 2014)
ANSWERS TO SOME QUESTIONS
What is the course about?
This course is about contracts and contracts law.
Contracts are legally enforceable agreements, i.e., deals.. The
course will consider the roles of (1) trial lawyers who resolve disputes over
deals and (2) transactions lawyers who make deals so as to minimize any
such possible disputes. All lawyers need to know contracts law – not just
lawyers who represent businesses, but lawyers who do criminal law, family
law, . . .
What am I supposed to get out of this course?
The ultimate objective of every first year class at the University of
Richmond Law School class is to enhance your ability to anticipate,
analyze, prevent and resolve legal problems. The skills that you develop,
the concepts you learn, and the assigned cases and statutes that you read
are no more than some of the tools to be used in that process. But
essential tools.
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Who are you and why are you here?
I am David Epstein. As an old person, I have had a lot of years to do
a lot of different things. I have taught at 17 other law schools (8 of the law
schools in US News top 20), served as dean at two law schools (University
of Arkansas and Emory), worked as an associate at a mid-size Phoenix
firm, counsel to a small Houston firm, partner at a large Atlanta-based law
firm (King & Spalding) and counsel to a large Dallas-based firm, lectured
on contracts in bar review courses from Massachusetts to California (more
than 1/2 of lawyers who passed a bar exam in the past 30 years listened to
my contracts lectures), written lots of books including the best parts of the
best contracts casebook and student guide. I am an effing “law school
legend!” http://www.paperbackswap.com/Law-School-Legends-DavidEpstein/book/0314160841/
Where are you and how can I get a hold of you?
My office is Room 112. You are welcome to drop by anytime. I can
also be reached at depstein@richmond.edu or 804 289-8922.I don’t tweet
or blog. I don’t have a Facebook or Linked-in page.
What books do I need to buy?
(1)Cases and Materials on Contracts: Making and Doing Deals (4thed
2014 )(“Madd”) and
(2) Contracts Texts” Restatement 2d Contracts, US UCC Article 2
and the CISG (any edition)
Madd was written for use in both six-credit contracts courses and
four-credit contracts courses. We will not able to cover all of the material in
Madd in our four-credit course. The first part of the syllabus is set out
below in the part of this document cleverly titled “First Part of the Syllabus.”
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What are we going to do in class?
Every teacher teaches contracts differently -- especially me. I teach
contracts differently from day to day, depending on what is “working” and
what is not “working
We are going to talk in class. I am going to ask questions and you
are going to try to answer them. You are going to ask questions and I am
going to try to answer them.
I love to talk in class but it is important that you talk in class. Unless
you talk in class, I have no way of knowing what you know and what you
don't know. More important, unless you talk in class, you don't really know
what you know and what you don't know.
What should I be doing out of class?
This law stuff can't be that easy to do or you wouldn't now be
spending so much money learning how to do it and clients would not later
be spending so much money for your doing it. You need to spend time as
well as money on this law stuff.
A part of the time that you spend will be getting ready for class. It is
of course important that you read the assigned material before class so that
class is meaningful for you, so that you can make class more meaningful
for others. Read the assigned material carefully and critically. In reading
cases, think about what facts are important, what question the court was
asked to decide, what was the plaintiff’s most effective argument, what was
the defendant’s most effective argument, how the court explained its
decision
It is even more important that, after each class, you think about what
we have talked about in that class. Think about it a lot. Think about how
today’s class relates to prior classes. I urge you to spend twice as much
time going over what happened in classes as you do getting ready for
class.
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Are there any administrative rules for our class?
Not surprisingly, there are lots of rules. First, American Bar
Association rules about stuff like how many minutes our class must meet
and how many classes you are required to attend, Rules that I may not
agree with but . . .
There are also University of Richmond Law School rules about stuff
like how many classes I can record for students who have not gone to class
on a Friday since high school and see no reason to change now, how many
“A” grades I can give and how many grades below “B” I must give. Rules
that I may not agree with but . . .
Most important. I have 4 rules: (1) Do not wear a baseball cap in
class. I don’t take myself seriously; I take your learning how to be a lawyer
seriously. (2) No texting, tweeting or watching porn in class. If you have
an uncontrollable need to text, tweet or watch porn, then quietly leave class
and return when that need has been satisfied. (3) When we have visitors
to our class, please introduce yourself. Just like your mom taught you to
and (4) There is a $5 fine for whining,
https://www.youtube.com/watch?v=CA28My-hzAE
Rules that you may not agree with but . . .
What do I need to know about the syllabus?
We will devote more time and attention to some assigned cases than
others, and some assigned cases and materials will not be discussed in
class.. This does not mean that assigned readings that are not discussed
in class are unimportant.
.
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FIRST PART OF THE SYLLABUS
TOPIC 1: OVERVIEW OF CONTRACT LAW AND CONTRACTS
(1)CONTRACT LAW CAN BE FOUND IN JUDICIAL DECISIONS
AND, FOR SALES OF GOODS, IN THE UNIFORM
COMMERCIAL CODE.
Madd 24-27
(2)CONTRACTS ARE MORE THAN AGREEMENTS.
Madd 1-13
Restatement of Contract section 1
RR v. MH (Madd 2-12)(surrogate parenting contract)
Please carefully read the AllLawCom. surrogate parenting contract at
http://www.alllaw.com/forms/family/surrogate_parenting. If your first name
begins with A-K, assume that your client is the Surrogate. If your first name
begins with L-Z, assume that your client is the Natural Father.
TOPIC 2: CONTRACT FORMATION
(1)THERE IS AN OBJECTIVE AND A SUBJECTIVE
COMPONENT TO CONTRACT FORMATION
Madd 41-42
Restatement section 17(a)
https://www.youtube.com/watch?v=uk2yAJ885mEA (A U.Va.Law prof’s
views on how to read and brief Lucy v. Zehmer – listen critically)
Lucy v Zehmer (Madd 42-53)(alleged sale of farm)
http://www.youtube.com/watch?v=oShUx3cWEG4
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(2)
CONTRACTS OFTEN, BUT NOT ALWAYS, CONSIST
OF AN OFFER AND AN ACCEPTANCE
Restatement section 22
A.
An offer has been defined as a manifestation of
commitment.
Restatement section 24
Madd 69-70
B.
Advertisements and price quotations are generally not
offers
Pepsi Harrier Jet video, http://www.youtube.com/watch?v=ZdackF2H7Qc
Maryland Supreme Corp. v. Blake (Madd 74-82)(subcontractor’s concrete
bid)
C.
Acceptance has been defined by the Restatement as “a
manifestation of assent to the terms [of the offer] made
by the offeree in a manner invited or required by the
offer.” Restatement section 50(1)
D.
Offers can control what is required for acceptance.
Ever-Tite Roofing Corp. v. Green (Madd 125-130)(re-roofing
reconsideration)
E.
Historically, courts distinguished unilateral contract offers
from offers to enter bilateral contracts
Davis v. Jacoby (Madd 131-39)(come to California to take care of the
Whiteheads)
Restatement 30(2)
UCC 2-204(1)
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Restatement 54
(3)OFFERS (THINK CATERPILLARS) CAN BE DESTROYED
BEFORE THEY TURN INTO CONTRACTS (THINK
BUTTERFLIES) BY ACCEPTANCE
A. Like caterpillars that often die before they become
butterflies1, many offers “die” before they become
contracts.
Restatement 36
Madd 95
B. We use the term “revocation” to describe an offer
“terminated” by the offeror.
Restatement 42
1
BUT CF http://www.condenaststore.com/-sp/The-thing-is-you-have-to-really-want-to-changeNew-Yorker-Cartoon-Prints_i10818402_.htm
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Madd 97
C. We use the term “rejection” to describe an offer
terminated by the offeree
Madd 96, 165
Restatement 38, 39
https://www.youtube.com/watch?v=qiuCKv3tooc
D. Under the common law mirror image rule, an acceptance
that varies from the offer is treated as a rejection
Madd pages 165-6
http://www.youtube.com/watch?v=j8pgbZV757w&feature=related
Gresser v. Hoitzler (Madd 166-73)(changes in commercial real estate
purchase agreement)
E. UCC 2-207 is different and difficult to apply (until you
understand that it addresses two different questions)
READ UCC2-207 CAREFULLY – REALLY CAREFULLY
Madd 173
http://www.youtube.com/watch?v=b6-PRwhU7cg
Dorton v. Collins & Aikman Corp. (Madd 174-83)(2-207 and arbitration
clause)
Klocek v. Gateway, Inc (Madd 190-200)(another 2-207 and arbitration
clause case)
(4)INDEFINITE TERMS IN AN AGREEMENT RAISE QUESTIONS
AS TO MANIFESTATIONS OF MUTUAL ASSENT
Varney v. Ditmars (Madd 217-23)(“fair share of my profits”)
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Raffles v. Wichelhuas (Madd 212-16)(two ships named “Peerless”)
https://www.youtube.com/watch?v=Ui_skg-3yPw
(5) CONTRACT FORMATION GENERALLY REQUIRES NOT
ONLY OFFER AND ACCEPTANCE BUT ALSO CONSIDERATION OR A
CONSIDERATION SUBSTITUTE
Restatement section 17
A. Definitions of consideration generally include the phrase
“bargained for.”
Restatement sections 71(1), (2), 79, 81
Madd pages 261-70
Reed v. University of North Dakota et al (Madd 267-69)(hockey player’s
release)
Hamer v, Sidway (Madd 279-84)(uncle’s promise to namesake nephew)
B.Definition of consideration generally includes the phrase
“bargained for legal detriment.”
McCormick v.Dresdale, Madd 269-74 (settlement of rape accusation)
C. Promise can be consideration.
Restatement 71, 75
Madd pages 288-90
Hooters of America v, Phillips (Madd pages 240-46)(promise to arbitrate)
D.Under common law, modification of a contract
consideration.
requires new
Alaska Packers Ass’n v. Domenico (Madd 297-301)(new, better deal for
fishermen)
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Angel v. Murray (Madd 302-9)(new, better deal for garbage collection
company)
Restatement section 89
UCC 2-209(1)
E.In some jurisdictions, reliance can be a basis for contract.
Madd 324-25
Restatement 17(2), 90
https://www.youtube.com/watch?v=YUDYDhRV1As
Dargo v Clear Channel Communications (Madd 331-35)(promise of twoyears of radio employment)
Dixon v. Wells Fargo Bank (Madd 335-43)(promise to consider loan
Madd 343-49
F. Consideration or consideration substitutes can make offers
irrevocable.
Restatement 25
Madd 119-21
UCC 2-205
REST K 87(1)
REST K 87(2)
TOPIC 3: LEGAL DEFENSES TO THE ENFORCEABILITY OF THE
AGREEMENT BASED ON THE AGREEMENT PROCESS OR THE
LANUGAGE IN THE AGREEMENT
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(1)
ECONOMIC DURESS BY THE PLAINTIFF CAN BE A LEGAL
DEFENSE TO THE ENFORCEABILITY OF AN AGREEMENT
Madd 418-20
Restatement 175(1)
Austin Instrument, Inc v. Loral Corp. (Madd 420-24)(increase in price in
supply subcontract)
Totem Marine Tug & Barge, Inc. v Alyeska Pipeline Serv. Co. (Madd 424432)(shipping contract dispute settlement agreement)
(2) ABSENCE OF A WRITTEN VERSION OF THE AGREEMENT
SIGNED BY THE DEFENDANT CAN BE A LEGAL DEFENSE TO THE
ENFORCEABILITY OF SOME AGREEMENTS.
http://www.youtube.com/watch?v=tNwAFgdpLJM
Madd 375-77
UCC 2-201
Virginia Code section 11-2 https://leg1.state.va.us/cgibin/legp504.exe?000+cod+11-2
Radke v Brenon (Madd 377-83)(sale of strip of land)
DF Activities Corp. v. Brown (Madd 383-89)(sale of Frank Lloyd Wright
chair)
McIntosh v, Murphy (Madd 389-978)(Hawaiian car dealer employment
deal)
(3)FALSE STATEMENTS INDUCING THE AGREEMENT CAN BE A
LEGAL DEFENSE TO THE ENFORCEABILITY OF AN AGREEMENT.
Madd 397-98
Restatement sectionS 159. 164 , 162
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Halpert v. Rosenthal (Madd 398-404)(representation of no termites)
(4)NONDISCLOSURE CAN BE A LEGAL DEFENSE TO THE
ENFORCEABILITY OF AN AGREEMENT.
Swinton v. Whitinsville Savings Bank (Madd 404-7)(failure to mention
termties)
Weintraub v, Krobatsch (Madd 407-12)(cockroaches in lawyer’s home)
Restatement 160, 161
(5) PROMISOR’S LACK OF “CAPACITY” CAN BE LEGAL DEFENSE
TO THE ENFOCEABILITY OF AN AGREEMENT.
Restatement section 12
(6)PUBLIC POLICY CAN BE A REASON FOR NOT ENFORCING
AN AGREEMENT
Restatement 178
Valley Medical Specialists v. Farber (Madd 403)(covenant not to compete)
http://www.youtube.com/watch?v=_zAbWjoB60k
(7) UNCONSCIONABILITY CAN BE A LEGAL DEFENSE TO THE
ENFORCEABILITY OF AN AGREEMENT
UCC 2-302
Madd 455, 463-64
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Vernon v. Qwest Communications (Madd 464-68)(arbitration in internet
contract)
Restatement section 208
(8) MISTAKE AS TO FACTS EXISTING AS OF THE TIME OF THE
AGREEMENT CAN BE A LEGAL DEFENSE TO THE
ENFORCEABILITY OF AN AGREEMENT
Madd 468-70
http://www.law.berkeley.edu/faculty/rubinfeldd/LS145/roseofaberlone.htm
https://www.youtube.com/watch?v=pjjRBAQ7ET8
Estate of Nelson v. Rice (Madd 470-71)(Heade paintings at estate sale)
Grenall v. United of Omaha Life Ins, Co (Madd 476-82)(annuity)
Restatement sections 151-54
TOPIC 4: TERMS OF THE CONTRACT
(1)
WORDS OF THE PARTIES IS THE PRIMARY, BUT NOT SOLE,
SOURCE OF CONTRACT TERMS
UCC section 1-303(a)-(f)
Restatement 221, 223
(2)
IF THERE IS A FINAL, WRITTEN VERSION OF THE
AGREEMENT, THEN THE “PAROL EVIDENCE RULE” LIMITS A
COURT’S CONSIDERATION OF EARLIER WORDS OF THE
PARTIES.
Madd 489-90
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Restatement 213-17
UCC section 2-202
Madd 519-20
(3)
NOTWITHSTANDING THE PAROL EVIDENCE RULE, COURTS
SOMETIMES USE PAROL EVIDENCE AND OTHER EXTRINSIC
EVIDENCE TO DETERMINE THE MEANING OF THE WORDS IN
A WRITTEN CONTRACT
Frigaliment Importing Co., Ltd v. B.N.S. International Sales Corp. (Madd
523-31)(American company selling chickens to German company)
http://www.youtube.com/watch?v=TjkIDzGeOkc&feature=youtube_gdata_p
layer
Restatement sections 20, 201, 202
Random House, Inc v. Rosetta Books LLC (Madd 533-43)(digital books
and “print . . . in book form)
(4)
COURTS ADD TERMS
Wood v, Lucy, Lady Duff Gordon (Madd 568-71)(exclusive agent for Lucy
http://www.ladyduffgordon.com/)
https://www.youtube.com/watch?v=yLe3wWrBUMk
But cf https://www.youtube.com/watch?v=dnDKzzPZD8I
Hobin v. Coldwell Banker Residential Affiliates, Inc., (Madd 58994)(additional Coldwell Banker franchise near Hobin’s Coldwell Banker
franchise)
(5)
LEGISLATURES ADD TERMS
Madd 594-95, 605-606
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UCC 2-314
Webster v. Blue Ship Tea Room (Madd 606-13) (bone in chowder)
UCC 2-316
POST-CONTRACT EXCUSES OF NONPERFORMANCE
(1)
NONOCCURENCE OF A CONDITION CAN EXCUSE
PERFORMANCE
Restatement section 224
Madd 643-44
https://www.youtube.com/watch?v=ineCh4TFltQ (boring, but basic)
A. Occurrence of a condition generally requires strict compliance
Luttinger v Rosen (Madd 645-7)(8.75% home mortgage not strict
compliance with condition of 8.5%)
B. Courts are reluctant to interpret contract language as condition.
Restatement 227(1)
National Fuel Gas Distribution Corp. v. Hartford Fire Ins. Co (Mapp 64850)(notice provision)
C, Courts excuse conditions to avoid harsh results.
Restatement 229
NPC Offices, LLC v. Kowaleski, Appellate Court of Connecticut.August
26, 2014152 Conn.App. 445 , 100 A.3d 42 (loss of easement not
disproportionate forfeiture)
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(2)
POST-CONTRACT OCCURRENCE OF SOMETHING NOT
PROVIDED FOR IN THE CONTRACT CAN EXCUSE
PERFORMANCE
A.
Unforeseen occurrences that affect the ability to perform can
excuse nonperformance.
Taylor v. Caldwell (Madd 703-8)(Surrey Gardens destroyed by fire)
UCC 2-613, 2-615
Restatement sections 261-64
B.
Unforeseen occurrences that affect the mutually understood
purpose of the performance can excuse nonperformance
Restatement section 265
Krell v. Henry (Madd 718-24)(cancellation of coronation parade)
https://www.youtube.com/watch?v=NcPUrSVOnsI
C.
Force majeure clauses and hell and high water clauses can
affect the effect of unforeseen occurrences.
Route 6 Outparecels, LLC v. Ruby Tuesday, Inc. (Madd 714-18)(Ruby
Tuesday not excused from building contract)
END OF PART 1 OF SYLLABUS
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