Fall 2010 Nehf
* Legal doctrine and theory * Private law created by voluntary agreement * Courts will enforce the parties’ agreement * Interpretation * Limits * Remedies * Hornbooks/Study Aid * Murray * Calamari & Perillo * Farnsworth * Sources of Contract Law * Legislation/regulations * Uniform Commercial Code (UCC) Article 2 (sale of “goods”) * Others * Treaties * Convention on International Sale of Goods (CISG) * Others * Common Law (cases) * Precedent followed, distinguished, overruled * Hierarchy of courts (federal system; state systems) * Secondary sources * Restatement (Second) of Contracts * Treaties, articles * Not “law” until adopted by court or legislature * Caveat Emptor * Buyer beware
08/25/2010 * Promissory gift v. Executive gift * Promise to give a gift is unenforceable. When a gift is given, it is enforceable. * Bargain: Restatement Second of Contracts §1, 17, 71, 79 * Exception 1: Nominal consideration for option promise
09/01/2010 * Statute of Fraud * Origin: Old England * Purposes: * Prevent fraud * Evidentiary * Cautionary * Contracts within in the Statute of Fraud * Application * Strict construction * Many exceptions * 1 year provision: do the contract terms call for performance over more than 1 year? Is the K already fully performed on one side? “Lifetime” or “permanent” contract?
* We should not allow party to get out of a contact just because of a bad bargain.
09/15/2010 * Duress requires * Improper threats and * No reasonable alternatives. * Unconscionability: * Procedural: no meaningful choice * Substantive: unreasonable/unfair favorable to one party * To determine whether the contract involves a sale of good or service, the court would look at the predominant factor test. Pittsley v. Houser on p. 74.
09/20/2010 * Unilateral K: a promise in exchange for performance * Bilateral K: a promise in exchange for promise * Requirement/Output K does not lack mutuality because both parties have shrunk their realms of choice. * Firm offers: * In writing * The period for irrevocability should be no more than 3 months. * How to make the offer over 3 months? * Pay money to buy the firm offer. * The assurance that it will be held open is not revocable.
09/22/2010 * Legal-duty rule * Why legal duty, not moral duty? * The moral duty is too ambiguous. Legal duty is more obvious. * If someone perform without even know the promise, is there a K? * Technically no. Because there is a lack of bargain. * But for rewards K, it is OK. The inducement would discourage just act under public policy. * Three methods to get rid of the legal duty * Compromise * Tear up the old K * Modification
09/27/2010 * Ways to modify an existing duty * Bona fide to tender a full satisfaction * Add other obligation * Destroy the original K * Modification
* Restatement of K § 89 Modification of Executory K: * K not yet fully performed on either side * Fair and equitable in view of circumstances not anticipated, or * Provided by statute, or * Change in position (reliance), as justice requires. * UCC §2-209 * No need of consideration for modification. * Official Comment: modification must be sought in good faith. * Modification v. Waiver * Modification needs either consideration, or unanticipated circumstances or etc. Modification cannot be retracted unilaterally. * Waiver…