Download Contracts Outline and more Exercises Contract Law in PDF only on Docsity! Contracts Outline Sources of Law: • Common Law • Restatement of Contracts • Uniform Commercial Code (UCC) o Governs sale of goods, goods = any movable item • Convention on Sale of International Goods (CISG) I. Contract Basics: a. Offer i. Outward manifestation: oral, written or via conduct; and signal that acceptance will conclude the deal ii. Available for a reasonable amount of time iii. Person who gives offer can revoke it at any time b. Acceptance i. Expression; or ii. Silence; or 1. Custom in long relationships iii. Action. iv. Cannot be revoked 1. Mailbox Rule = acceptance by mail creates a contract at the moment of dispatch c. Consideration i. = agreement needs to be an exchange, you need both arrows ii. needs to be credible that they were bargained for and given in exchange iii. and it is a detriment iv. moral/past consideration = generally not sufficient v. preexisting legal duty is not consideration d. Formation: UCC § 2-‐204 – broad, a k doesn’t need special moment of the making e. Bilateral v. Unilateral Contracts i. Bilateral Contract = exchange of mutual promises 1. Exs. Horse exchange, any goods ii. Unilateral contract = acceptance by performance, limited to two scenarios: 1. i. completion of performance is the only manner of acceptance; and 2. ii. offer to the public a. Ex. Bounty hunter “wanted dead or alive” Offer Acceptance Considerati on Contract b. Ex. Radio show offer $100 to the 99th caller c. Ex. Tramp must walk to the store to get the coat, Brooklyn Bridge walk for $ f. Dead man statute = when one party is dead, prevents extremely biased testimony, need evidence to strongly corroborate an agreement g. Statute of Wills = formal requirement helps courts avoid swampy analysis h. Statute of Frauds = things need to be written down & signed to be enforceable (affirmative defense, must bring it up in litigation or face malpractice) (UCC version is §2-‐ 201) • Types of Ks that must be in writing: 1. Suretyship provision (ex. Co-‐singer) 2. K for sale of interest in land 3. K that cannot be performed within one year from its making (one-‐year provision) when there is no way you can perform the K in a year. 4. Sale of goods in excess of certain value ($500 or more in UCC) • Exception to Statute of Frauds: (UCC exceptions §2-‐201(3)) o Promissory Estoppel §139 restatement o Specially made products o Admittance in court that K was made o Paying in reliance on the contract (promissory estoppel) i. Benefits of Legal Formality (Fuller’s F(n) of Form): i. 1. Evidence; ii. 2. Caution; iii. 3. Channeling j. Promissory Estoppel (Restatement 90) = consideration is not necessary if the facts indicate that the promisor should be estopped from not performing. i. A promise is enforceable if necessary to prevent injustice if: 1. The promisor should reasonably expect to induct action or forbearance; and 2. Such action or forbearance is in fact induced. a. (The remedy is Reliance Damages). k. Contracts subject to conditions of personal satisfaction i. Illusory promise – not enforceable (exs. If you have a legal duty anyway, too subjective) no real commitment, the promise I just exchanged is (0 value) with what I give you) 1. Ex. “I promise I will stay here until noon, unless I change my mind.” ii. Personal satisfaction clause – a very subjective commitment, promisor is limited by good faith 1. Ex. “I will pay you if I am personally satisfied with your work.” VI. Remedies ($) a. 3 initial questions to ask: i. nature and extent of the plaintiff’s compensable loss, including harm suffered and availability and form of the legal remedy or remedies to redress it; ii. if there is more than one means of remedying the loss, we must decided which of the available remedies most effectively and comprehensively compensates for it; iii. take into account any policies or principles that may limit the defendant’s liability for the loss. b. WTF is a K breach anyway? It is the failure by one or both parties to fulfill the contract. Can be either (1) material or (2) non-‐material. c. Specific Performance i. Court order for parties to complete the contract (rare in US because we don’t want courts involved in ongoing matters that would require a lot of oversight) ii. UCC §2-‐716 – Buyer’s Right to SP or Replevin 1. Goods are unique or in other proper circumstances iii. Woodward says this would be like involuntary servitude d. Expectation i. To put parties in as good of a position as if the K had been fully performed ii. Default measure of damages. Aggrieved party is entitled to amount that will restore her to the position she would have been in had the K been fully performed. iii. Hadley v. Baxendale – the Foreseeability Test – “the damages which the other party out to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally…or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract” Re m ed ie s SpeciZic Performance force a party to fully perform Expectation as good as if K fully performed Reliance before the K had been formed Restitution status quo, quantum meruit 1. UCC §2-‐715(2)(a) – expression of Hadley RULES: 2. Arising naturally a. General damages = what you normally get from breach of K, diff $ 3. Reasonably foreseeable a. Special Damages = damages specific to this case & specific to these facts iv. Lake River v. Carborundum (100)– breach deterrence v. liquidated Ds 1. Not enforceable LDs because it was a penalty clause and a conversion to keep the material 2. Blunderbuss K – would have had to pay certain damages no matter what point the K was breached 3. LD clause is valid when there is a proportionality 4. Benefit of LDs a. Keep breach from happening b. Predictability you know the worst case scenario c. Shorter litigation time v. Golden parachute – pg. 111 1. Using wealth to oppress people 2. “pound of flesh” = we don’t want to support retributive stuff vi. Efficient Breach = NIPSCO good example. 1. If both parties are in a losing contract they should breach. 2. Coase Theorem = (economic perspective, Woodward doesn’t like) if there are no transaction costs, the good wills end up with the person that values the goods the most a. I’m going to do it until it is uneconomical for me to do this thing vii. Asante Technologies – to opt out of CISG you have to explicitly say that viii. Parker v. 20th Century (51)-‐ 1. You don’t have to accept an inferior offer to mitigate. (2-‐709) (b). 2. We don’t give $ for lost opportunity. You don’t have to accept different & inferior offers. ix. Copylease v. Memorex (89) – specific performance not enforceable in US and even if you did it is more of a bargaining chip for better damages in settlement (law & action) 1. Uniqueness Test (UCC 2-‐716) a. Specific performance may be decreed where the goods are unique or in other proper circumstances. x. Evergreen v. Milstead – drive in movie theater case should been open for summer but didn’t open until later. Too many variables involved in a start up – you need a well-‐established business to determine the reasonable certainty of lost profits xi. Chung – (pg. 123) “contract is breached in a wanton or reckless manner as to result in a tortious injury, the aggrieved person is entitled to recover in tort” 1. Emotional damages are allowed – window into the morality of breaching 2. Proof of damages new businesses xii. General Expectancy Damages Calculation Loss of value of the breaching party’s performance +any incidental and consequential costs generated by the breach -‐ any payments received from the breaching party -‐ -‐any costs saved as a result of the breach = Expectation Damages of the Aggrieved Party xiii. UCC Sections: §2-‐709, §2-‐715 1. Sellers Expectancy Damages: K Price – Market Price – Incidental expenses + Expenses avoided 2. Buyer’s Expectancy Damages: Price of substitute goods – K price – incidental expenses + expenses avoided xiv. Liquidated Damages: §2-‐718(1) – partiers can agree to damages of a breach in their K 1. Liquidated damages cannot be “penalties” (pound of flesh) any award unreasonably disproportionate to the actual damages incurred will be considered a penalty, and will not be enforced §2-‐718(1). a. Case example where we had penalty damages xv. Incidental Damages: 1. Sellers §2-‐706, §2-‐710 seller may recover incidental damages only (i.e. stop delivery charge, commissions, storage, resale costs) 2. Buyers §2-‐715 – Buyer gets incidental and consequential damages xvi. Direct Damages 1. Damages for price §2-‐708(1) market price – K price; OR 2. Damages for price if resold 2-‐706 resale price – K price; OR 3. Lost Profit §2-‐708(2) IF: a. Damages for price are “inadequate” b. The seller is a “lost volume seller” – he has access to an unlimited supply of such items (and could have made two sales) Lost profit = retail sale price – K price • Neri v. Retail Marine Corp. (65) = case is a lost volume seller. Would a second sale occur if the first was not breached? UCC -‐ 2-‐ 708(2) j. Limitations on Damages: i. Foreseeability (Hadley) ii. Measurability – damages must be measurable iii. Mitigation – parties must/should attempt to mitigate any losses from breach of K. (i.e. resell their goods). Burden of proof is one the D to prove that the P did not mitigate. 2-‐ 709(b) k. Measuring Subjective Losses i. Peevyhouse v. Garland Coal Mining (pg. 196) – whether or not to apply diminution in value v. cost of performance rule. (both rely on Expectation principles) Court found that the back digging was incidental to the main purpose of the contract. My opinion – a misreading of the dismal swamp problem. 1. Subjective value of a property and how that idea is applied. 2. Diminution in value= (market value, objectified loss) the difference between the present value of the farm and what its value would have been if D had done what it agreed to do 3. Restatement 168 – ii. Hawkins v. McGee (210)– Dr. guaranteed a perfect hand, guy got a harry hand. Trial Court instructed jury on reliance. Damage – getting guy back to his burnt hand. iii. Sullivan v. O’Connor (cap. 5)-‐ nose job case – she gets the recovery for out of pocket expenses and worsening of her condition and pain & suffering of 3rd operation – should be reliance, because it is more manageable. She gets the consequential dams (3rd operation) in both ways of calculating. 1. Woodward thinks she SHOULD get reliance 2. Jury had no relevant evidence of pain and suffering for 3rd operation but that is what they awarded anyways 3. Jurors were obviously in practice thinking about 2nd operation pain an suffering when they awarded the third. 4. no ruling to apply. Mostly dicta. Limitations on Damages Foreseeability Measurability Mitigation Spring Semester Favorite quote of the semester: "this being the statute of frauds, no argument is too stupid to advance." I. Franchises a. Hoffman v. Red Owl Stores (377) i. Hoffman relied on Red Owl promise and sold bakery & grocery store in reliance for a Red Owl franchise ii. Promissory estoppel case, damages are reliance, but needed new trial on awarding damages b. Economic Considerations i. Franchisee needs to know projection of proceeds v. the value of their investment ii. Due diligence requires $ and cooperation c. Franchise Contract i. Favorable to franchisor because they created it ii. Strict rules to protect “brand trademark” iii. Termination provisions potentially onerous (personal satisfaction clause) iv. Surprise inspections v. Ability to dictate location d. So what are the benefits to a Franchisee? i. Biz reputation = “goodwill” ii. Advertising/marketing iii. A stable product iv. A biz model v. Training vi. HR support (i.e. employee manuals) e. Collins Drugs v. Walgreens (400) i. Ending the franchise relationship ii. Economic problems are not good cause iii. Small drug store wanted injunction (think NIPSCO-‐ we aren’t going to allow this, they just want bargaining power) did get $ damages II. Long Term Employment a. ADR in collective bargaining b. Grievance Processes Under Collective Bargaining i. In Re Trans World Airlines, Inc. (419) 1. Employment agreement negotiated by union on behalf of its members, fried for “insubordination” instead of long hair 2. Arbitrators are expected to bring in their own experience and understandings, not “logical” or “neutral” c. Judicial Review of Arbitration i. The trilogy = labor union cases decided on same day in 1960 1. US Steelworkers of America v. Warrior & Gulf Navigation d. Employment Relations i. Employer’s assertion of power to hire and fire employees e. Proving Employment Contracts & Gaining Meaningful Remedies: i. McIntosh v. Murphy (430) 1. Justifications for statute of frauds: a. Evidentiary b. Cautionary c. Channeling 2. McIntosh gets mgmt. job in Hawaii, has to move, is there for 2.5 months then gets fired 3. Reliance was such that injustice could only be avoided by enforcement of the contract f. Employment at Will i. Employment at will means an employee can be discharged at any time 1. A doctrine to get out of the “swamp of employment relations 2. Some argue that it is an “interjudicial race to the bottom in employment standards” ii. Modern Development of @ Will Doctrine 1. Discrimination cases have forced due process into the workplace a. Companies need strong records that the employee was bad at their job to fire them b. Forces companies to develop processes to document poor performance c. Thereby essentially builds “cause” into the firing process iii. Non-‐Compete Agreements (in PP section later) 1. General rule = must be reasonable in geography & time iv. Wagenseller v. Scottsdale Memorial Hospital (447) 1. In absence of a contractual provision, an @ will employee may be fired for good cause or for no cause, but NOT for bad cause v. Forer v. Sears 1. “permanent employment” = at will employment, according to WI court vi. Skills & Value Problem Checklist w. Employment @ Will Client 1. Conflict of interest check 2. Engagement letter 3. Client likely wants to know practical advice of “what to do” next 4. Inform client of downsides of litigation 5. Give advice on what you think are all potential consequences III. Long Terms Relationships in Commercial Transaction a. Lawyers need to do due diligence – control risk i. Look at the business assets: V. Social Controls on Free Contracting a. Illegal Contracts i. Illegal contracts are UNENFORCEABLE 1. Usually hidden values are operating in an illegal contract case 2. Knowledge of WHY the party wants a provision is important to determine if it is fraudulent ii. Edna Carrol v. Agenes Beradon (494) 1. Legal form, illegal substance 2. Prostitution house k, really a contract for the business 3. Beardon stopped paying for prop and then said she didn’t have to keep paying for the k, B tried to raise illegal k as defense – mortgage with Edna iii. Coma Corp v. Kansas Dept. of Labor (499) 1. Restaurant tries not to pay “illegal immigrant” 2. We want to protect wage earners so we want to pay undocumented immigrants 3. Comparative fault in illegal contracts iv. Karpinsky v. Collins (Danzig) 1. Milk price controls case, P wants to recover $ for secret rebates/kickbacks 2. Comparative fault in illegal contracts 3. In pari delecto= equally at fault 4. If you are NOT in pari delecto you can get restitution damages, so a k doesn’t matter anyways social limits to free K illegal k violat e PP Dures s Undue Inplue nce Misre prese ntatio n Fraud Good Faith b. Contracts that Violate Public Policy i. Rest. §178 – a promise is unenforceable if the interest in its enforcement is clearly outweighed in the circumstances by a PP against the enforcement of such terms ii. Fullerton Lumber Co. v Torborg (Danzig) 1. No compete clause in employment contract, guy left to start his own lumber biz a. Was a 10-‐year no compete too long? 2. Damages probably impossible to calculate 3. “blue pencil test” = the court can delete shit from the k and what is left is “still” what the parties agreed to…(cough cough BS) iii. Anti-‐Competitive Contracts (Non-‐Competes) 1. Rule: non competes must be reasonable in: a. geography; and b. time. iv. Sources of PP: 1. Legislation (best bet, judge doesn’t have to stretch); or 2. Judicial decision. c. Contract & Choice Balance to Protect Conflicting interests: i. Capacity to Contract 1. Mental incapacity, drugs, age 2. Mental incapacity to contract a. Restatement §15 concerned with: i. Status of individual; and ii. Knowledge of “predator” 1. Understanding 2. Act in a reasonable manner 3. Ks Made under the Influence of Drugs justipied expectations & security of transactions persons unable to protect themselves against imposition a. Harlow v. Kingston – i. you don’t necessarily have to be drunk at time of contracting, drunken debauch that caused P to agree to a K to continue drinking bing upheld as a voidable contract ii. Important fact – grossly inadequate consideration b. Restatement §16 – in most instance other party must have reason to know that by reason of intoxication the other party was unable to understand the nature and consequences o the transaction or to act in a reasonable manner 4. Ks Made with Minors a. Infancy = defense that a contract made with a minor is voidable at the minor’s election b. Restatement 14 – only voidable contractual duties for anyone under 18 c. PP rationale – easy to administer bright line rule, don’t have to determine relative intelligence of minors, etc. ii. Duress (threat!) 1. Duress = Lack of free will, proper v. improper advantage taking 2. Mitchell v. CC. Sanitation Company (533) a. P signed 2 releases to his personal injury on the job, employer threatened to fire him if he didn’t sign, incurred much more in personal injuries than the $ he got 3. The Selmer Co. v. Blakeslee Midwest (541) a. General contractor must provide material for subcontractor to do their work but breaches k by delivering material late, despite this breach the subcontractor agrees to an oral k to complete the work provided that GC pays extra cost b. General rule = If you extract a promise by means of a threat, the promise is unenforceable c. The mere stress of business conditions will not constitute duress where the D was not responsible for the conditions 4. Restatements §174-‐177 iii. Undue Influence (relationships!) 1. Unfair persuasion; and other party was vulnerable to such persuasion. a. not a precise rule but must be something other than an impersonal market relationship 2. The court needs to see the weakness of the party wanting to get out of the contract as excusable 3. Undue Influence problems often arise in gifts & wills 4. Proper remedy are voidable k obligations and/or restitution of any benefits conferred 5. Fiduciary = person with an obligation to look out for the interest of another a. Held to a higher standard or fairness d. Form Contracts i. Contract of Adhesion = boiler plate, standard form k 1. K where T&Cs are set by 1 of the parties and offered on a “take it or leave it basis” ii. Battle of the Forms = UCC 2-‐207 iii. McCutcheon v. David MacBrayne Ltd. (583) 1. Look at this again… 2. UCC 2-‐719 (3) iv. Yauger v. Skiing Enterprises (592) 1. Skiing case, little girl dies 2. Form was called an “application” not a waiver v. Choice 1. ProCD, Inc. v. Zeidenberg (599) a. Shrink-‐wrap licenses – retail software packages are covered in shrink-‐wrap and vendors write licenses that become effective as soon as the customer tears the wrapping from the package i. Shrink-‐wrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general. vi. Hill v. Gateway 2000, Inc. (609) 1. Arbitration clause, 30-‐day return… 2. Acceptance was triggered when the Hill’s kept the computer for more than 30 days vii. Closik (Closec) v. Gateway…. viii. Plain language statute = biz’s required to use common language & appropriately divide headings in form k’s 1. PP rationales: a. Better for biz because consumer knows the terms b. Easier for biz to win in any litigations ix. “click to agree” doctrine – well established and accepted in k law, k forms at the click x. Reasonable Expectations as a Limit to Form Ks 1. C&J Fertilizer, Inc. v. Allied Mutual Insurance Co. (616) a. Burglary insurance policy so narrow not what a reasonable person would expect, had to be an outside job and visible marks by tools b. Court considered the education of the guy who signed, he had signed similar insurance provisions that did not contain this language i. Restatement 211 (3) applied xi. Some Risk shifting devices: 1. Disclaimer of consequential damages 2. Mandatory arbitration e. Warranty, Disclaimers & Remedy Limitations i. Warranty = a promise, most likely to be in a sale of goods case ii. UCC Sections: 1. §2-‐312 -‐ Warranty of Title Against Infringement 2. 2-‐313 -‐ Express Warranties by Affirmation, Promise, Description, Sample 3. 2-‐314 -‐ Implied Warranty Merchantability 4. 2-‐315 -‐ Implied Warranty Fitness for a Particular Purpose 5. 2-‐316 -‐ Exclusion or Modification of Warranties f. Unconscionability i. Unconscionability doctrine is a technique for controlling the quality of a transaction when the free market is ineffective. 1. UNCON focuses on (1) unfair process AND (2) unfair results. ii. UCC §2-‐302 1. Effect of the UCC provision is to reduce unconscionability applications iii. Restatement §208 iv. How to Evaluate Unconscionability: 1. Procedural; AND 2. Substantive v. Williams v. Walker-‐Thomas Furniture Co. (668) 1. Rent-‐to-‐own industry a. A way to skirt around financial industry regulations, as rent to own you are still acting like a creditor, but don’t have to deal with all the regulation 2. Monthly installment k 3. Add on clause 4. Cross-‐collateral clause = company puts your $ and spreads it a little bit among ALL the shit you owe $ on, so you can never really pay off any one item 5. Replevin = take back, repossess (§2-‐716(3)) vi. Jones v. Star Credit Corp (675) 1. K was for monthly rental of a $900 freezer, P paid $1,234 towards the freezer 2. Max retail price of the freezer was actually $300 3. Salesman came into the house to k, people “let their guard down” vii. Allen v. Quality Furniture (Danzig) 1. Predatory lending targeted at low income communities 2. P thought she was buying food at cheap price, but instead bought commercial freezer 3. “unconscionable facts:” a. 8th grade education, low income, taking care of kids running around, sales pitch in her house, sales pitch is like fraud throwing in the freezer, attorney’s fees provision is one sided in favor of company no matter what 4. Acceleration Clause = everything you owner on a lease loan becomes due at the time of default 5. Holder in Due Course = “dumping paper” means that the normal warranty claims are gone, the 3rd party is a BFP who isn’t held to those helpful standards a. Seems like a fraudulent way to abuse protective legal principles viii. Remedies for Unconscionability = a court may: refuse to enforce a k; blue pen test the offending clause and enforce the remainder of the k; or limit the application of the offending clause to avoid any unconscionable result ix. Consumer Arbitration 1. Kilgore v. Keybank a. Similar to a Ponzi scheme: helicopter school gets paid cash today for its current expenses, not the thing [education] you are buying in the future b. Damages sought was an injunction, this tactic “advanced the ball” for the clients because it helped to keep the case in judicial court i. CA doesn’t allow injunction in arbitration 2. AT&T v. Concepcion a. California state contract law, which deems class-‐action waivers in arbitration agreements unenforceable when certain criteria are met, is preempted by the Federal Arbitration Act because it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 3. Why “Opt-‐Out” Options in Standard Ks Doesn’t Matter to Biz: a. Consumers don’t read k anyway b. Small window of time to opt out usually by the time someone has a dispute they have missed the time period c. Consumers don’t recognize legal terms as well as biz terms like payment d. The odds of small # of people who will opt out having causes of action later are even smaller