CONTRACTS

OUTLINE

			 Formation of Contract: Part 1 = Criteria (Ch. 5 )

-Offer & Acceptance (Ch. 3 187-200)
-Consideration (Ch. 3 247-263)
-Statute of Frauds (Ch. 3 263-276)
-Promissory Estoppel (Ch. 3/276-291)

I. Misunderstandings & Mtgs of Mind (Ch. 5/623-651)
EMBRY VS HARGADINE, MCKITTRICK DRY GOODS CO
RAFFLES VS WICHELHAUS
WPC ENTRPRISES CO VS US

II. Mistakes (Ch. 5/652-653)
	-Mailbox Rule (653-654)

III. Firm Offer (Ch. 5/656-678)
JANKE CONSTRUCTION CO VS VULCAN MATERIALS CO
MARANA SCHOOL DISTRICT VS AETTNA CASUALTY & INS CO

IV. Unilateral Mistakes In Communicating (I Meant X but Said Y) (Ch. 5/679-696)
STS TRANSPORT SERVICE CO VS VOLVO WHITE TRUCK CO

V. Unenforceable Contracts, Restitution & Reliance (Ch. 5/696-708)
VICKERY VS RITCHIE
DUNNEBACKE VS PITTMAN

			Contract Formation: Part 2 =Incomplete Planning, 				Flexibility, & Enforceability(Ch. 6/709-822)

I. Indefinite Agreements (Specifying Ends but not means) (709-727)
KLIMEK VS PERISICH
BETHLEHEM STEEL CO VS LITTON INDUSTRIES CO

II. Flexible Price & Quantity (Ch. 6/728-765)
	-Flexible Pricing
	-Flexible Qty (Blanket Orders)
	-Reqs & Output Contracts (751-763)
EMPIRE GAS CO VS AMERICAN BAKERIES CO

III. “Battle of the Forms”/Business Documents & Forming Contracts (764-822)
	-Section 2-207 (777-813)
MCCARTY VS VERSON ALLSTELL PRESS CO
STEINER VS MOBIL OIL CO
ITOH & CO VS JORDAN CO
	-Closing the deal but leaving a way out (814-822)
HILLS VS WILLIAM B KESSLER

			CONTRACT & CONTINUING RELATIONS 							(Ch.3)

I. Family Setting (Ch. 3/202-246)
	Husband & Wife (202-210)
BALFOUR VS BALFOUR
MILLER VS MILLER
	Cohabitation (211-234)
MARVIN VS MARVIN
	Bait by Family Members(of Money to Influence theirLives) (235-246) 
HAMER VS SIDWAY
	The Conditional Gift & Consideration (256-262)
KIRKSEY VS KIRKSEY
RICKETTS VS KATIE SCOTHORN
	The Statute of Frauds Or Promissory Estoppel & Family Bait Promises (263-291)
-Remedies in Family Setting (Ch. 3/292-318)
FITZPATRICK VS MICHAEL
BRACKENBURY VS HODGKIN

II. Franchise  Relations (Ch. 3/319-357)
	-Creating the Franchise Relationship (320-334)
HOFFMAN VS RED OWL STORES 
	-Ending the Franchise Relatiionship (335-349)
COLLINS DRUGS VS WALGREEN CO.
	-Grievances:Arbitration vs Adjudication (350-357)
IN RE TRANS WORLD AIRLINES

III. Employment Relations (Ch. 3/358-410)
	-Contracts & Remedies (358-364)
MCINTOSH VS MURPHY
	-Employment At Will (364-412)
FORRER VS SEARS
GORDON TAMENY VS ATLANTIC RICHFIELD CO

IV. Commercial Transactions (Ch. 3/413-424)

			 	Contract Interpretation (Ch. 7)
				(The deal is closed-But what is it?)

I. Interpretation & Construction-Meaning (Ch. 7/823-850)
FEDERAL EXPRESS CO VS PAN AMERICAN WORLD AIRWAYS

II. Parol Evidence Rule (Ch. 7/851-946)
BINKS MANUF CO VS NATIIONAL PRESTO INDUSTRIES
MITCHILL VS LATH
MASTERSON VS SINE
	-Misrepresentations & Promissory Estoppel & Parol Ev. Rule(887-925)
ENRICO FARMS VS HJ HEINZ CO
PALLADINO VS CONTADINA FOODS CO
NANAKULI PAVING & ROCK CO VS SHELL OIL CO
	-Merger & No representations Clauses
ANDERSON VS TRI-STATE HOME IMPROVEMENT CO
	-Reformation & Parol Evidence
JOHNSON VS GREEN BAY PACKERS
	-Modification of Performance Terms where “Written Modifications Only” Clauses
UNIVERSAL BUILDERS CO VS MOON MOTOR LODGE CO
	-Waiving conditions contrasted w/ Modifying Contracts
JOHN B. CLARK VS WEST

			Contract Performance: Adjusting to Changed 		Circumstances:Risks 	Assumed & Imposed(Ch. 9/1075-1134)

I. Mistake, Impossibility, Frustration of Purpose
PARADINE VS JANE
TAYLOR & ANOTHER VS CALDWELL & ANOTHER
HANDICAPPED CHILDRENS ED BD OF SHEBOYGAN CO VS LUKASZEWSKI
	-Contracts Involving Large Organizations & Great Events of Our Time
EASTERN AIR LINES VS MCDONNELL DOUGLASS 

			 Escape Hatches/Contracts Against Public Policy 							(Ch. 4)

I. Illegal Contracts (Ch. 4/428-439)
	-Illegal Form & Substance (428-431)
EDNA CARROLL VS AGNES BEARDON
	-Comparative Fault (432-439)
JOHN GATES VS RIVERS CONSTRUCTIONCO
KARPINSKI VS GENE & RUTH COLLINS

II. Contracts against Public Policy (Ch. 4/440-449)
	-Covenants by Employees Not to Compete
FULLERTON LUMBER CO VS ALBERT TORBORG

III. Incapacity (Mental, Drugs, Infancy) (Ch. 4/450-457)

IV. Duress (Ch. 4/458-486)
RL MITHCELL VS CC SANITATION CO
WURTZ VS FLEISCHMANN
WURTZ VS FLEISCHMANN (2)
SELMER CO VS BLAKESLEE-MIDWEST CO

V. Undue Influence (Ch. 4(487-491)
ODORIZZI VS BLOOMFIELD SCHOOL DISTRICT

VI. Misrepresentation (Fraud) (Ch. 4/492-508)
OBDE VS SCHLEMEYER

VII. Form Contracts (Ch. 4/509-553)
MCCUTCHEON VS DAVID MACBRAYNE
C & J FERTILIZER CO VS ALLIED MUTUAL INS CO

VIII. Warranties, Disclaimers, & Remedy Limitations (Ch. 4/554-571)
HUNT VS PERKINS MACHINERY CO
GLYPTAL CO VS ENGELHARD CO

VIIII. Unconscionability (Ch. 4/572-622)
	-Retailing & the Poor
WILLIAMS VS WALKER-THOMAS FURNITURE CO
JONES VS STAR CREDIT CO
PATTERSON VS WALKER-THOMAS FURNITURE CO
	Remedies for Victims
FROSTIFRESH CO VS REYNOSO
FROSTIFRESH CO VS REYNOSO (2)
PEARSON VS NATIONAL BUDGETING SYSTEMS
DEVLIN VS KEARNY MESA AMC/JEEP/RENAULT CO
STATE VS AVCO FINANCIAL SERVICE OF NY

				 Remedies (Ch.2)

I. Expectation Interest (Ch. 2/27-114)
SHIRLEY MACLAINE VS 20TH CENT FOX = Movie store actress recovered agreed compensation for Fox’s breach because her failure to accept Fox’s substitute employment could not be applied in mitigation of damages because the offer of the “Big Country” lead was of employment both different & inferior. Rule = Measure of recovery by wrongfully discharged employee is amt of salary agreed upon less the amt which employer aff. proves the employee has earned or w/ reas effort may have earned from other employment (comparable or similar)
NERI VS RETAIL MARINE CO = Under 2-708, buyer gets restitution, and seller gets lost profits & incidental damages.
	-Specific Performance (66-76)
COPYLEASE VS MEMOREX
	-Liquidated damages vs penalty provision
LAKE RIVER CO VS CARBORUNDUM CO
	-Consequential/Loss Profits (91-105)
HADLEY VS BAXENDALE
EVERGREEN AMUSEMENT CO VS MILSTEAD
	-Foreseeability (106-113)

II.  Reliance Interest (Ch. 2/114-130)
SECURITY STOVE CO VS AM RAILWAYS EXPRESS CO
ALBERT & SON VS ARMSTRONG RUBBER CO

III.  Restitution & Exit (Ch. 2/131-179)
COLONIAL DODGE VS MILLER
OLIVER VS CAMPBELL
-Freak Remedy Cases (Ch. 2/163-179)
PEEVYHOUSE VS GARLAND COAL & MINING CO
ALICE SULLIVAN VS JAMES O’CONNER

				CONTRACT FORMATION = CRITERIA

I.MISUNDERSTANDING & MEETINGS OF MIND

EMBRY VS HARGADINE GOODS CO.

1. M doesnt come rt out & say you dont have a job.  E doesnt assure that he does by asking rt out if contract is renewed.---Ambiguity!
2. Was there an agreement/contract?
3. If not, why E kept working for couple of months?
4. M says: “Employment at will & we decided not to renew your contract for next yr”.
   E says: “I thought my contract was renewed”.
Trial Ct = For M or H(D). Jury instructions = If you believed E’s side, & that contract was for the stipulated terms & that both parties intended to make the contract for the same thing (yr contract for $2,000----For E.(Mtg of Minds Theory)

5. Embry is bothered by the instruction because he thinks it should be:  Whether a reasonable person would have believed the other party was agreeing---Not Mtg of Minds/What M intended also.

This Ct = Error in jury instructions. It’s what they externally display, not internally intend.  If party Reasonalbly understood the other party’s actions to be contract behavior?  RULE=Did Reasonalbe Person understand the other to have intended to enter into a contract=Objective Theory of Contract(External signs-what appears to be a contract). Remand & go back to jury for them to decide which story they believe using the rule.

SUMMARY

1. Objective theory is preferable since the turn of century.
2. If subjective standard: 
	-Evidence problem of how prove M’s intent.
	-Not knowing when you have a contract (they can say it & not 	 mean it).
	-Will lead to manipulation (ethical)
	-Less efficient because no economic predictability.
3. Objective Approach VS Subjective Theory:
	1)Administerability = evidence problem
					= if subj-jury Q of what the intent was-					  jury going haywire.
	2)Facilitation = Making mkt/economy work
				= Redress problem if subj-no one would know 					  if they had contract-guessing.
				= Predictable/beuracratic way of doing 						  business in objective.
	3)Fault/Negligence = If M being thoughless-we dont want to 						 encourage that negligence.
				    = Deterring M being manipulative, if  						 wanted to fraud E.
	4)Will theory = Giving people what they have agreed to/or 					 willed.
			    = What it looks like they intended.  Usu.					 outward signs correspont to what you 						 intended-Other people can act on them.
Objective = Inside the brains doesnt matter.  How things look to observer, that which can be seen from external vantage pt.
1. Standard for Contract-What’s real
				     -What reasonable person would have taken 					to be the case.
					-What about ex. of 2 men arguing-then 						saying there was a deal-Is this a valid 					contract?(know the pattern of dealing)
					-What kind of reas person?  Reas person 					who understands alot about the context.
2. Irony in Objective VS Subjective
IN objective: up to cts & juries to make decision about what’s reas. (a subjectivity)

In subjective: There’s a fact in the person’s head (an objectivity)

WPC ENTERPRISES VS UNITED STATES

1. Q = Whether components had to be manuf by specific co’s.  Ambiguity = Didnt say in contract.
2. P when it bid, thought it could use any manufs. D claims they talked about using specific co.  P thought D was going its way. D thought P was going its way.
3. Suit = P saying pay us the added cost for changing the contract to fit specific manufs for components.
4. Ct = 1)Was there a contract? Yes, but didnt require sp manufs.
	   2)What was the agreement? (what were the terms?)
5. Hold one to what reas person would have thought the agreement was/Interpret the terms of contract by what the other party would have reas believed(objective).
6. Ct says both parties were reasonable---Resp to make clearer on govt.
7. Fault on Draftor: They drew up the contract-Draftor resp for the ambiguity.
8. What about the discussion after the contract in which both thought something?  Both unreas in thinking the other had conceded.--Default resp. on Govt.

RAFFLES VS WICHELHAUS

1. Seller only knew about Peerless ship sailing in December (cotton on it).
2. Buyer only knew about ship sailing in October(no cotton on it).
3. “To arrive ex “Peerless” from Bombay” specifiying ship. If damages to ship-Seller not resp for cotton-Seller excused from having to perform.
4. Why didnt Buyer want cotton from December ship?---Price had dropped on December cotton.
5. Buyer says they agreed on October ship of cotton, not December shipment=So I dont have to buy it. Buyer didnt sue for breach in October when there was no cotton because price had already dropped/didnt want it.
6. Was there a contract?  Ct says No by using Mtg of Minds.  No Mtg of Minds=Parties had different picture in their heads.  Both had picture of Peerless, but arriving at different times.
7. P argues this is irrelevant to contract, but Ct is letting losses ly where they ly since no Mtg of Minds(subjective).
8. Doesnt fit Embry Rule because both acting kind of Reasonable.

II.MISTAKES 

1. How offer & acceptance are supposed to work?
2. Offer = Proposal put forward to someone that is sufficiently detail & concrete that oferree would reas thought to be proposal.  All you need is “I Accept” to close the deal.
3. Acceptance = Agreement to the terms of an offer as they are & in its entirety (classical).  If not doing this, you are negotiating.
4. Mtg of Minds = One side has assented to other side’s proposal.
5. Termination of an Offer = 
-Expired by its own terms (Ex.Offer until Friday-Saturday the offer has expired).
-Revoked (Ex.Offer Mon-Tues I say I’m sorry I already sold it.
-Rejected by oferee
-Counteroffer=New offer by opposite side.

III. FIRM OFFERS

JANKE CONSTRUCTION CO. VS VULCAN MATERIALS CO

MARANA SCHOOL DISTRICT VS AETTNA CASUALTY & INS CO

IV. UNILATERAL MISTAKES IN COMMUNICATING

STS TRANSPORT SERVICE CO VS VOLVO WHITE TRUCK CO

V. Unenforceable Contracts/Restitution/Reliance

VICKERY VS RITCHIE(1909)

1. Implied Contract? Ct treating it as if was contractual relationship.
2. Damages?  Maybe Restitution (unjust enrichment)
3. Reminds us of Expectations in Peevyhouse.
4. Who was resp of the mistake?  Sort of the owner.

DUNNEBACKE VS PITTMAN(1934)

1. Similar to Vickery
2. Breakwater erected.
3. Misunderstanding/Not a Contract?
4. Pittman went ahead & built it w/out specifications of a contract w/ the Gillighens.
5. No benefit to Gillighens-No recovery.

					CONTRACT FORMATION:PART 2
				INCOMPLETE PLANNING,FLEXIBILITY

I. INDEFINITE AGREEMENTS

KLIMEK VS PERISICH

1. Intro = What does it take to create an enforceable agreement? What kind of intent?
2. The builder is payed like any other worker.
3. Builder said it would cost at most $10,000.
3. Klimek ran out of money (spent $10,000).  She sued him to recover damages to finish the job.
4. Breach of contract claim:  “The he could do the job under $10,000”
5. Damages of Expectation? Cost above $10,000 to get the job done.
6. D’s Args = 1)Contract for labor at hrly rate, but no contract as to remodeling or materials used or maximum cost.
7. Ct focuses on no contract at all because no certain Offer.
8. Vickery  No contract but he could recover for his work.
9. Ct = No contract because 

1)No Mtg of Minds(subj) & by Embry Rule(Obj)-Should they have reas understood each other as creating a contract? She couldnt reas believe he was entering into a contract about maximum cost. 

2)We cant fill in the gaps (Cant figure out what they intended nor were the terms reas certain). Need to make it easy for us/How do we know that she wasnt just overspending. No ev. that went by bldg code/or that code would be w/in amt.

10. Summary = What did the parties think they were doing?(Did they intend to enter into an agreement?)

BETHLEHEM STEEL CO VS LITTON INDUSTRIES

1. 1st Letter = Offer 
			
			or offer for future negotitians of an option 				agreement 
			
			or offer of option agreement
2. Under classical, since no consideration, they can revoke the offer before time is up.
3. Under UCC (2-205), 3 mths of revokability.
4. Letter from B = Acceptance of Offer
5. Is there an option agreement?

Args for L not being liable:
1. Price w/ escalation had not been estabiished (needed further negotiations)(didnt know actual indexes, inflation while ship is being built)
2. In accordance w/ UCC? Under 2-204(3), okay to leave some terms open, if reas certain basis for giving remedy & parties intended contract.

Ct
1. Ct is not certain of what remedy since: what about diff between mkt price & contract price(cant figure this out though since price issues were left open).
2. The 2 pg letter was compiled in couple of hrs-gaps.-Didnt intend to committ to contract.-B should have reas understood that L didnt mean to be bound to the letter.

How is the transaction structured?
B’s Args:
1. Offer used in the letter.  Couldnt B have unreas understood as contract?
2)B sent letter back saying “We accept your offer” & L didnt say “no, you were confused-no contract?”

Other Issues:
1. Any consideration for the option agreement?(on part of B giving anything?)
2. Arg = Part of price we were paying for 1st ship included the deal w/ option agreement for subsequent ships.
3. 2-204 = Flexible/Pro-agreement/Indef not a flatal flaw.
4. Ct in B vs L = Classical view of contracts-If indef, not going to enforce/KInd of anti-UCC-indef, so we’re not going along/Bad faith on B’s part-Waiting till last minute-not really wanting the ships, wanting money/at mercy of B due to option.
5. Open Price Term (2-305).  Couldve gone to 2-305(1)(b)-go to reas price(reas index)
6. Couldve gone to Section 90.  No contract-But liable for damages. Hoffman.
7. Making it clear not an agreement/Not a contract.  Letter of intent not legally binding.

II.FLEXIBLE PRICE & QTY (P. 728)

Why?	
1.Inflation
2.Want committment, but not ready to specify price
3.Other mkts’ price

Why do it?
1.We’ll agree on it later
2.Base price w/ adjustments
3.We’ll look to index
4.Cost & mark-up

Objections?
1.Indefinitness

CounterArgs?
1.Can state methodology, not price (gets around indefeniteness)
2.We can have a little indef-Rely on reasonableness & good faith.

FLEXIBLE QTY

1. When would you want it? Ex. Distributor vs Manuf. Dist wants to know she’ll have a stock, but doesnt know how much will sell. Ex. Manuf vs Supplier Ex. Purchaser vs Producer (Bakery generating bread crumbs)
	-secure source
	-unsecure demand(dont want to specify qty)
Objection = Indefiteness

BLANKET ORDER STRUCTURE

1. Everything is fixed, except qty.
2. Purchaser specifies qty in releases.
Objection = No consideration? Dont say how many doods purchaser will buy.-Only ripen into contract when specify qy.-Until then, offer ready to be accepted.

REQS & OUTPUT CONTRACTS

Reqs contracts = Needs of purchaser is the measure of qty.
1. Seller will provide as much as buyer needs to fill its reqs/Buyer will buy its reqs only from the particular seller.
Objection = Purchaser has given up chance to go to other suppliers (some consideration?)

Output contracts = Amt produced by supplier is the measure of qty
1. Purhaser-I’ll buy everything you produce.
2. Seller-Everything I produce, I will sell to you.

III. BATTLE OF THE FORMS

STEINER VS MOBIL OIL CO

Introduction
1. When does a contract arise?
2. What is its terms?
3. Whose terms govern?  Depends on who sent last?
4. Does UCC provide a better machinery? 
5. UCC-Once there is an offer -Can be accepted if reas looks like acceptance even w/ the add. terms of written (2-207).
6. Capture what parties were intended to be doing.

Case
1. Is it an acceptance?(2-207)
	-”Defenite & seasonable expression”?
	-”different term” but contract is not conditioned on __’s 	acceptance of the term. (not in exception)
2. Looks & feels like acceptance----Acceptance.
3. What about the terms? (2-207(2)
Additional terms-Proposals for additions to the contract become part of contract unless:
	(a)offer limits acceptance to terms of the offer.
	(b) they materially alter it.
	(c)notification of objection w/in reas time.
4. In this case, Mobile’s diff terms materially altered Steiner’s offer-Mobile’s different terms do not prevail (not part of contract).  Steiner’s offer & Mobile’s acceptance of it prevails.-Stick to Orig offer.

MCCARTY VS VERSON ALLSTEEL PRESS CO

Introduction
Is there a contract?
Do terms apply?

1. Ct considers it not a 2-207 case, Ct goes back to orig approach.
2. Indemnification Clause in Contract= V can go after Nash Bro’s(buyer) for a press they manuf that injured N’s employee.  If seller becomes liable for employee’s injuries, want to hold buyer resp for the damages because its now the user (will have insurance)
3. Was the indemnfication clause part of the agreement?
4. Order of Transaction-Oral agreements(nothing about indemnification)-Written proposal (deal has to be closed in home office)-W/ terms & conditiions(indemnification clause)-Send reversed version(same stuff)-3rd version(only price changes included)-Buyer sends a purchase order:
	1)Not buying until accepted.
	2)Merger Clause-Wouldnt consider a deal not on their terms
	3)Acknowledgment Form
Seller returned 1)copy of buyer’s Ack form signed by V.Pres 2)letter warning of user’s resp for safety devices.
5. Employee injured because of defects in the safety guards & warning devices on press.

PRE-UCC Analysis
1. Contract arises when offer & acceptance
2. Was the proposal an offer?  No had to be approved by home office to check everthing.
3. Was the purchase order (by buyer) an offer?  Intended as an offer.
4. Was the offer accepted?  No, V sent counter-offer by sending 3 documents of their own terms. 

Counteroffer open until V send press & Nash accepts it 

OR Offer w/ additioinal terms-but hangin in air since Nash didnt accept. 

OR Signed ackn Form could be considered an acceptance.
5. Was the indemnity clause part of contract?
6. Why doesnt the merger clause govern?
	-Saying it doesnt make it contractually binding.
	-It’s like offer not accepted
	-Offer must be accepted by merger clause to apply.

UCC Analysis
1. When do we have a contract?
Strategy #1 = Propososal w/ indemnification clause was original offer.  The purchasal order was an acceptance w/ additional terms(Merger Clause).  It was “sensible & definite acceptance” So the Indemnification clause applies.

Strategy #2 = Purchase order was an offer.  Sending of ackn form & 3 documents was acceptance w/ additional terms.  But the Indemnity Clause materially alters the offer under 2-207(2)-No Indemnification Clause.  
Forms dont seem to be the pratical intention of the parties.  But 2-207 focuses on what documents do (Ex. If the proposal is an offer).-Goes back to formalism of old.

ITOH VS JORDAN

1. Formalism coming back in -Manuplating 2-207.
2. Breach of warranty suit.
3. Issue = Who should adjudicate this dispute?  Seller (J)’s term included an arbitration term instead of Ct.
4. Offer = I (buyer)’s purchase order?
5. Acceptance = J’s ack form w/ 1)Arbitration Clause 2) Clause of its acceptance conditional on Buyer’s assent to diff. terms (using 2-207 lang).  This seems to be a counteroffer.
6.  When is contract formed? When Ackn form is signed.  Under 2-207(1)= Def. & seasonable expressiion of acceptance.  But paragraph of “Acceptance conditonal on Buter’s assent to add. terms of seller” = Counteroffer.
7. For acceptance of J’s counteroffer have to look at conduct. (2-207(3)-2-204-gap filler)
8. Is there an arbitration provision?  Not in UCC-Not agreed upon-No arbitration provision.

1. J was trying to use 2-201(2)-Statute of Frauds-The Exception-If the one receives confirmation of agreement-counts as a writing.
2. Arg = We sent the confirmation w/ arbitration-The confirmation is a writing bound to receiver when he received it.
3. Ct = It only satisfies the req. of 2-201-Getting aroud Statute of Frauds-Doesnt decide the terms.
4. Ex = Phone call w/ oral coversation about agreement--Receive written confirmation-Bound by it if dont object.
5. Terms? Any supplemental terms allowed?  Is arbitration a supplemental term? No.  But could use the Arg. that the co’s usually used arbitration to settle .
6. Arg = 1-205(5)= When trying to fill what agreement means-Follow actual practices in the business.  We should arbitrate because its a usual practice of trade.
7. What if ackn form was acceptance?  Contract formed when ackn form received-Terms of agreement = 2-207 Additional terms unless:materiall alters?  Not really, its only adm change & usual practice. Probably becomes part of the contract.
8.Using 2-207 to make sure your confirmatioin is acceptance-Cany maybe get additional terms VS writing it so that confirmatioin is not acceptance-wont get additional terms.
9. 2-207 Exception =
	1)Intent of parties? Did party intend to make the acceptance conditional on assent to additional terms?  Ct let words of party operate, but this may not have been their intent.-Might have thought “We infer that you will assent”
	2)When Cts read 2-207 too strictly-Go back to formalism, but it was meant to attack formalism.

HILLS VS WILLIAM KESSLER(1952)

1. Not under UCC
2. Like Embry-Some principles in different context.
3. Offer-P filled out printed form.
4. Acceptance?-Ackn form sent to H by K saying “You may be assumed of our attention to this order”  2nd letter= cancelling the order.
5. Ct treats it as acceptance.  From viewpt of H-K shouldve known when sent out letter, wouldve been seen as acceptance. Test = What reas recipient would understood the letter to be (not secret intent).
6. Compared to Itoh, Itoh = Opp result using UCC.
7. If looked at Hills case under UCC 2-207. Probably not definite acceptance.
8. Ct looks to equities also.  Loss of profits from not having any fall suits to order & punishing K’s bad action.-Will construe an acceptance.
9. Ct couldve said no acceptance & found for H by using detrimental reliance.  K led H on for 2 months-detriment if we dont hold them to their promise. Section 90.

				CONTRACT & CONTINUING RELATIONS

I. FAMILY SETTING

BALFOUR VS BALFOUR

Promise = I’ll pay you 30 pounds a month until she returned to Ceylon.

Court = No contract.

Why not a contract = 
1. No intent to have a contract.
2. Stay out of family matters.
3. Avoid endless contracts(marriages have arrangements all the time)
4. No consideration(no obligation on part of wife really-maybe to rejoin him or to pay for medical services, wifely duties anyway)
5. too trivial for cts
6. History
7. Intrudes on Marital law
8. No writing
9. Promise was too informal
10.Mutuality flip (focus on wife). If you were to enforce his promise to her, would have to enforce her promise to him.(enforcing promise to use money wisely-more triviality)

Issues =
1. Should we build system that in order to be contract both parties have to really intend that the bargain be legally enforceable?
2. Ex. Promise to make a date - trivial
3. Impact on power dynamics of marital relationships(Already have wills, child support, divorce proceedings)
4. Cts not involving contract w/ husband & wife-helps husband who offers to support wife.
5. There’s a choice about promises in marriage being considered noncontractual & nonenforeceable(Organizing our legal system/Why not like business agreements outside of marriage). 

MILLER VS MILLER

(COHABITATION)
MARVIN VS MARVIN

1. Oral agreement-Ct enforces it by imposing a remedy.
2. Other claims she may have = implied contract, constructive trust, ct imposing a remedy.
3. Possible Recources by Ct = 1)they had contractual agreement, 2)they must have meant a contractual agreement 3)Not our problem whether there was an agreement, just working out of the relationship, imposing a remedy.
4. Influence of the fact that 2 were in sexual relationship where for 1st half of relationship he was married = Ct says just because 2 are having sexual relationship, doesnt mean they cant enter into a contract about other things than sex.
5. Why the difference in this case vs Balfour = In CA in 1970s or is it more like a long arm lenght relationship since not married?
6. Express Contract? Maybe can’t prove the oral agreement.
7. Implied Contract? Can she win on this?  Yes, can prove implicit agreement that was never stated. Behaved like there was a contract (dry cleaning Ex.) But not really like other implied contracts. 1)Doing traditional marital duties 2)She couldnt reas believe that she was going to get half by his behavior.
8. Ct imposing a remedy on equitible basis? Yes, the court awards her $1,000 a week for 2 yrs to rehabilitate her (since 18 yrs she’s beenput out of her career & need a start up).
Attitudes of Courts

(Extreme Left)	
Illegal contracts	Reqt of Formality	Expressed contracts Implied in Fact Contracts   Implied in Law Contracts (Extreme Rt) 

(BAIT)
HAMER VS SIDWAY (Consideration)

Introduction = Consideration is elusive.   
Gifts----------------------------------------Bargains/Exchange

1. Executor wont turn over the money once the uncle dies.
2. Nephew says contract w/ consideration & I lived up to my end of the bargain-I should be paid the money.
3. What happened to the statute of Limitations? (1875-1891) At 21, the letter created a trust (like a gift put away).  In NY, only created when there is consideration at the time of creation.
4.Did the orig language create a contract?
5. Executor’s Arg = No consideration-Promise not turned into contract because 1)benefit to nephew (not doing the vices bad for him anyway) 2)no benefit to uncle (uncle doesnt come off better by nephew getting rid of his vices).
6. What are we looking for when we talk about consideration?
Benefit(if uncle benefited)  Or   Detriment (if nephew gave up something)
7. Why is this needed? 1)For mutuality of give & take/both benefiting/both losing 2)To distinguish from gift (one party benefiting) 3)Flowing both ways.

Promisor								Promisee
8. Need consideration to make promise enforceable.  Dont need consideration once there is a complete gift.  Promise of gift VS Contract.
9. Holding = In this case while there was no benefit to uncle, the Q becomes was the nephew detrimented by giving up something he had legal rt to do? Yes-Consideration.
10.If legally obligated to not do the vices-no consideration.  Ex. in Balfour, she was doing her legally obligated duties-no consideration.

(CONDITIONAL GIFT & CONSIDERATION)
KIRKSEY VS KIRKSEY

RICKETTS VS KATIE SCOTHORN

REMEDIAL CONCERNS & FAMILY CONTRACT RECOGNITION

1. Thinking Doctrinally
2. Unifying core (Real Life Issue)

Davis vs Jacoby 
Facts = (Uncle)If you come to CA & help out, I’ll leave everything to you (niece). Uncle committs suicide & Aunt die, after neice has been taking care of them.  She finds out the will left everything to nephews.

2 Features of these fact patterns = 1)Arrangements are open-ended in family situations 2)Avoidance & Imprecision in when compensation & how large its supposed to be dispersed.

2 Important Messages by Presenting these Fact Patterns = 1)Make us sceptical about doctrine(chaotic, unpredictable, no consistent answers) 2)Which doctrine applied (manipulative, inconsistent) 3) Doctrine is kind of vocabulary to rationalize results. 4) Cts struggling w/ large issue but just use doctrine on side.

3 Things Ct Can Do (Approach) = 
1)Hands Off (Abstination)
2)Regulatory (Looking to Social Order)
3)Contract (Apply/Enforce the Agreement)

2 Ways to be Sceptical/look at Doctrine =
1)Doctrine is largely superstructure/not part of results
2)Doctrine driving results

Second Theme =
1)Contract law isn’t just about horse trade/one shot business deals.  Give alternate set of models.
2)Different Model = Extended Relationships.  Transactions are complex extending for periods.  Other factors & concerns than economic.

2 Dimensioins how the Alt Model is Diff. from Horse Trading Model 1)Family, not mkt-Different values, concerns
2)Extended transaction VS discreet(short term interaction) transaction

Summary =
1)Rules of Contract designed largely for Horse Trading Exs.-Dont work cleanly in family context.
2)Rules, though, may be unpredictable, chaotic when even applied to Horse Trading Exs.
3)Legal Framework perepherial in family context (largely).

STATUTE OF FRAUDS
(Things subject to it?)

1)Contracts that transfer an Interest in Land.
2)Agreements that will take more than one year to perform(duration> one yr)
3)Sales of goods > $500.

Statute of Frauds (what have to do when subjected to it?)
1)Writing (may give ev-not necessarily a contract)
2)Signed
3)By person to be charged (person who must defend against the contract)
4)Writing has to evidence the contract.

Limits on the Rule of Statute of Frauds (Escaping)
1)Part performance(If party asserting contract has started-acts as ev. of writing)
2)Promissory Estoppel/Reliance (Restatement 90, Section 139)
3)Restitution (can recover value of your services in absence of writing).

Concerns =
Undermined if alleging Statute of Frauds, you’re agreeing there was an oral agreemeent.  And if agree during discovery (w/ ev. of interrog)-Its now in writing, signed, by person.-Now its w/in stautue of frauds.

(REMEDIES)
FITZPATRICK VS MICHAEL(1939)
Nurse doesnt get sp performance

Introduction = Brackenbury had opposite results.
Facts =
1)Michael was going to give nurse: 1)$8 per week 2)automobiles 	3)furniture & furnishings 4)life estate in the home for her 	services.
2)After a while, he wanted her services stopped & her out.
3)Remedies?
	Monetary? 1)Her expectations of board & living expenses for 			   period until his death?
			 2)Restitution = value of services of part 					   performance?
	Equity?
4)Why does lawyer go after specific performance? Answer = Hard to measure expectations (value of house for life tenancy, value of auto, value of board &living expenses until his death).  Old man doesnt have cash flow(only paying her $8 per week).
5)Laywer saying we want the 
	-car when he dies
	-home when he dies
	-$8 per week until he dies
	-her ability to staty there & render him services 
6)But this imposes on Micheal.  He should have services in return for things he’s giving up, but he doesnt want her there. Bad move by lawyer-Imposes on Michael.

Analysis
1)No written contract.-Does the SOF apply?
2)SOF? 1)There was interest in land-so needed to be in writing. 		  2)He couldve died w/in yr-so didnt need to be in writing.
3)SOF not a bar since there’s part performance in an equitable suit.
4)Why cant the ct grant her equitable relief?
	1)Will not sp. enforce a contract for personal services.
	2)Forcing him to accept unsatisf. services or services he 	doesnt want.
	3)Dont want to get into any intimate services.
5)Why dont ct grant Negative Injunction?  Ordering Michael not to hire anyone else in place of Fitzpatrick.
6)To have negative injunction-the services lost must be unique.-Not unique in Fitzpatrick v Michael’s case.
7)F really wouldnt want a negative injunction against Michael since preventing Michael from hiring anyone else wouldnt really help her.

Holding =
Ct says her services arent unique-no sp performance.  But that shouldnt be the question.  Q should be whether his employing is of a unique qty? Is the Ct saying this is wierd transaction, & they shouldve gotten married so she could perform “household services”?

BRACKENBURY VS HODGKIN
Daughter gets sp performance.
1)Hodkin offering daugher:
	-use & income of premises
	-care for her during her life (consideration?)
	-use of household goods
	-home when she died
2)Have they performed their part? No.
3)Ct says there was 1)Offer of unilateral contract (requiring act 				  for a promise).
				2)Breach by mother
				3)Equity w/in jurisdiction

Analysis
1)For contract, court says “promise becomes binding when the act is performed”.  But have they actually performed the act-taking care of her?
2)Should the court have labeled the contract bilateral vs unilateral contract?  
Why not call it a bilateral contract, where it requires reciprocal promise?
3)The Bs want sp. performance(declaration of trust for house)-she doesnt have money.
4)If bilateral-Mutuality-If going to order her to perform-have to order daughter to perform the personal services. - Ct doesnt want to get involved in sp performing personal services in looking at how daughter has performed & making her take care of mother.
5)In unilateral-Just requiring mother to perform.

COMPARING FITZPATRICK V MICHAEL VS BRACKENBURY V HODGKIN

1)Complete different results.  The B Ct doesnt want to get involved in personal services.  The F Ct was totally involved in figuring out the personal services.
2)B Ct-Transaction internal to family-willing to give to daughter.
3)Other transactions external to family-not willing to give to nurse (Blurring of business w/ family situation of leaving property)
4)B Ct-Has writing (letter)
5)Lawyering in B Ct-Nothing about services.  Interest in real property/trust-No injunctions for personal services sought-less threatening.
6)Lawyering in F Ct-Ordering M to allow F to live up to her services.

II. FRANCHISE RELATIONSHIPS

HOFFMAN VS RED OWL STORES(1965)
Introduction
1)Was there a contract?  
-offer & acceptance 
-consideration 
-statute of frauds(Section 90)
2)Was there an offer?
3)Statute of Frauds?  Promissory Estoppel?
4)Section 90-Equitable discretion of Ct.  Need promise to apply it.  Is Ct going to imply a promise?
5)Does the Ct abstain, enforce, or regulate? Which remedies?

The Court’s Analysis
1)There wasnt a contract-so hard to enforce. But Ct has Section 90 which may be an excuse for doing something. (Ex. when there’s a technical problem (no consideration)-enforce it anyway)
2)2 ways at looking at ct’s decision: 
	1)They were so close to contract-we should treat it as such 	  (Hold Red Owl to its promise). External view?
	or
	
	2)Red Owl misbehaved by leading Hoffman on.  That’s not fair 	  so we’re going to punish Red Owl. Internal view?
3)Theory of Damages?
	Reliance? = lost by selling the store (where wouldve been if 			   never met Red Owl)
	Expectations?
	Consequential? = loss of profits (too speculative)
	Restitution?
	Tort?
4)Ct chooses Reliance.  Is this a general truth about Section 90 cases or when expectations ae too difficult to estimate.

FRANCHISEE			FRANCHISOR
COLLINS DRUGS VS WALGREEN CO

1)C mainly gets W’s tradename on its products. W gets C’s market.
2)Why did W want to break this Up?  What was their business plan? To cancel allof its dealership arrangements.
3)Impact on franchisees: 1)no longer have the tradename
					2)clientale, reputation, selling power 					taken away & given to anothr in big mall.
4)Is this transaction governed by UCC? Sales of goods contract vs contract to use tradename?
5)Good cause must be shown for franchisor to terminate dealership arrangements.
6)How does the statute apply here?
7)Collins wants injunctiion-Ct says too far-would impede ability of business & there’s an adequate remedy at law-loss profits.
8)Is it a good idea to regulate a situation like this?
9)Small business(regulation to protect them-Legis shifting balances)  VS  Large Business (Free Mkt)

III. EMPLOYMENT RELATIONSHIPS

*CONTRACTUAL RELATIONS
*TERMINATION-WHERE DO EMPLOYER/EMPLOYEE RTS COME FROM

American Rule of Construction = Contract of employment is a contract for exployment at will unless otherwise expressed. (not fixed duration-employer & employee are free to terminate the relationship at any time for any reason).

Why this rule?  

1)CT wouldnt grant sp performance if there was a breach.
2)Mutuality-If employee is allowed to terminate-an employee should be allowed (dont want to lock either).
3)Allow free will/competition/choice
4)There’s free will for employer & employee, but no protection for employee-Interests of corps. & money put higher.

FORRER VS SEARS

1)Was there a contract?  Yes.
2)Did terms of contract include permanent employment?
3)Statute of Frauds problem? No, couldve been fired after a day.
4)Why isnt it a breach?
5)The agreement was for permanent work, but the employee was discharched.
6)F relid on exception to Rule.  Wright = An exployer can give promise of permanent employment if called by certain circumstances/Additional consideration in benefit to employer.
Ex.= I get permanent employment if I bring in special knowledge or client list or capital. Consideration other than your labor given to employer for permanent employment.
7)F’s Arg to why he fits that exception = Hoffman = (Section 90) Detriment Reliance can substitue additiional consideration.  F says I sold my farm.
8)Ct says we will not use Section 90 in this context.
9)Reasons = 1)Did he really have to sell the farm?
		  2)He hasnt started work yet.
		  3)Francise relationship (Hoffman) taken more 					seriously than Employment Relationship.
10)F attempts to use promissory estoppel for extra consideration to turn permanent into permanent.
11)Ct is worried about turning permanent into permanent. Detrimental Relaince could mean clothes, giving up other job, etc.-Fear of exceptions swallowing the American Rule-Threatens social order of employment relationships.

MCINTOSH VS MURPHY

1)Expressed Employee for fixed Term(1 yr).-Does this mean employee can do nothing for 1 yr because the employer is stuck w/ him? No, contract for employer/employee to do something. -If employee no longer performs, he breaches.
2)Murphy’s Args = 1)Oral agreement -No contract
			   2)Where did the agreement begin?
			   3)Deal was for trial basis, if worked out-for a 
				yr.
3)Needs to be in writing if more than 1 yr agreement.  Murphy argues how long from time contract is made till end.
4)Mcintosh’s Args = 1)The contract was to start when I started work, till 1 yr after.  It was for less than yr, so statute of frauds doesnt apply. 2)Even if statute applies because more than 1 yr, there was detrimental reliance.

IN RE TWA

1)Agreement w/ Union (collective bargaining agreement between tWA & union).
2)Do all employees sign a contract (offer & acceptance)?
3)Was X a party to the contract? (employee member of union)
4)Did collective bargaining agreement include appearance & grooming stuff?-grievances by procedures/regualtions-only terminated for cause(changes “AT will” rule)-Express agreement to contract-Cause according to TWA was insubordination (refused to follow superior’s directions)-They have to show now good cause.  
5)Up to Arbitration vs Adjudication?
6)Arbitrators chosen by parties(familiarity w/ the situation)-procedure is informal-Airing the 2 positions-The parties are union & employer-Employee is the occasion.
7)Remedies = Reinstatement of job, but no back pay (no monetary damages).  
8)A ct wouldnt have granted sp performance.
9)Relationship of Court to Arbitration System = Ct will enforce arbitration because the parties agreed to arbitrate.  For injunctive enforcement, Cts usually dont, but here they do.
10)Summary = “AT WILL” Rule unless specifically expressed provision.

		CONTRACT INTERPRETATION 

Contract-How do you operate under the contract?
1. Interpreting the terms of the contract-what does it require the parties to do?
2. Parol evidence rule-excluding prior extrinsic evidence.
3. Whose the breacher? Whose the victim?
4. What happens when the world changes dramatically-efffect on performance.

FEDERAL EXPRESS CO VS PAN AMERICAN WORLD AIRWAYS

1. F to buy 2 jets, then 23 jets.
2. Dispute = Meaning of “initial training”
3. F’s interp of (23 jets) = total of 46 pilots being trained (2 crew members times 23 jets-2 crew members per jet).
   P’s interp of (23 jets) = only training at beginning (already have 4 trained-dont need any more trained.
4. Like Raffles- Diff interp of Peerless.
5. Too late in game to say no contract since no mtg of minds.
6. Have UCC tools to clear up the training term.
7. Parties thought they were being definite-but had different visions in their heads.
8. Ct = 
1)Phrase “initial training” was ambiguous.
2)Ct doesnt look to intent of parties, but looks to trade usage under UCC.  Is trade usage showing intent of the parties? Analysis:  Prob. not. (Corp jets vs cargo jets/owner of F new in the field). Also should P have reas though F would intend “initial training” in its way vs their way? Balfour
3)Ct concern for not letting the contract crash down.

Issues
1)Other avenues if term is ambiguous other than usage of trade?  F argued consture it favorable to non-draftor.:
	-Particular needs of the parties & their understanding
	-Turning to Govt Regulations (FAA)
	-Construe against the draftor
	-Diff. lang of 2 jets vs 23jets-If we meant same thing-we 	wouold said same thing. (But we meant something diff for 23 	jets)-what P would argue.
2)UCC-Always use usage in understanding contractual terms (not supposed to look at ambibuity-then usage of trade).

II. PAROL EVIDENCE RULE

*Excluding prior oral & writings.
*Applies to situation: 1)final 2)writing-Asking about it in context of prior evidence of meaning.
*Have to have these to invoke the rule:
1)Writing
2)Had to be intended by parties as final characterization of their agreement.
3)In interpreting final writing, a party wants to look at prior writing/or oral conversations.
4)UCC 2-202 = No prior orals/writings that are contradictory to the written final agreement. 
*Rule = Final writing trumps prior evidences (dont look to prior evidence to understand final agreement).

Qs you have to ask:
1)Is the writing a final integration? (concluding the deal?)
If no, rule not in play.  If yes, go to next Q
2)Is it a complete (capturing the entirety of their agreement/whole deal in writing) VS partial(capture certain key terms/not every detail captured) integration?
3) If complete integration = Any additional(contradictory or supplemental) terms are barred.  
   If partial integration = Contradictory terms outside the contract are barred.

Issues
1)How do you tell if something is a final integration? complete vs partial integration?
2)Williston = You tell by looking at the document itself-What kind of document is this (Form).
3)Corbin = You tell by looking at surrounding facts & circumstances (negotiations, things said before)--Intended as integration? complete vs partial?
4)Like controversy in Battle of Forms (2-207), formalistic vs fact based (intend the documents)

BINKS VS PRESTO INDUSTRIES

1. Did the term for maximum capacity mean peices vs pounds?
2. Contract-Binks Rt-pieces
		  Presto wrong-not pounds
3. Presto argues need to bring in outside evidence prior to contract to show the parties intended maximum capacity to be defined in pounds.
4. Ct wont allow admittance of the evidence.--No breach--Brinks wins.

Analysis
1. Is it an integration?  Parties conceded it was.
2. Is it complete vs partial integration?--Dont need answer because the ev. is contradictory-Barred if complete or partial.
3. Is the extrinsic evidence inconsistent? Yes-Evidence not allowed.
4. Presto’s Arg = the extrinsic evidence not inconsistent because contract language is unclear--outside evidence will help explain contract.

MASTERSON VS SINE

1. Oral agreement preceding granting of the option.
2. Q = Can you bring in evidence of the oral agreement?  Court says in this case, Yes!

Mitchell Approach =
1. Is it collateral in form? (part of vs separate from the writing?)Not collateral since option part of written.
2. Does it contradict the writing? Not really a direct contradition-but tension.
3. Is it one expected to be embodied in the writing?
The case seems to fail the Mithcell approach.

Parol Analysis
1. Is it an integration? Yes
2. Is it a complete integration? Ct says yes.  But maybe not because no merger clause.
3. Ct says transaction  would make sense only w/ the oral provision.

Traynor Approach
1. What is sthe intent of the parties? (Did they mean the writing to be complete? exclusive of previous stuff?)
2. Not going to allow something in that completely contradicts the writing.

Issues
1. What happens when put Traynor approach in Mithcell vs Lath.
2. Mithcell = Williston approach
	1)What kind of document? Partial or complete?
	2)Not ask what parties really thinking.
3. Masterson = Corbin approach
	1)What kind of document? Look to history, experiences, intent before document.  To see what kind of document. Partial or complete?
4. When just interpreting document=You can bring in parol to interpret the writing.  Exs = Non-assignability, Calculating Price.
5. Internal (writing) VS External(around the transaction) evidence.
6. Willison(strict) If writing is ambiguous.
   Corbin(modern)   To establish interpretation.
7. Should you be allowed to bring parol evidence in to interpret a word differently.  Example = “Lease” used in the writing really means “sale”.--CTs struggle w/ this.

PALLADINO VS CONTADINA

1. Oral-”I wont sign unless last person sign”.  Last person’s signature never obtained.  Can you bring in parol?
2. Agreement #1 = Oral
   Agreement #2 = Document
3. Interpretation--Conditional Delivery.
4. Ct = Bringing in evidence if document can be upheld at all -Not barred.
5. Terms of written = If more tomatoes than canneries can handle--Place quotas on qty of tomatoes.
6. Terms of oral = No quota would be imposed.
7. Writing (form contract) didnt reflect oral.
8. Traynor Approach = 1)Intent of parties.
				  2)Contradictory terms
9. C’s Arg = Our employees may say something, but co. only responsible for contract.  Parol ev. of employee’s oral stuff prior to writing should be excluded.
10. Timing is not clear: Previous stuff vs Contemporaneous vs Modifications After
11. Strategy = Can we make the conditional delivery apply?  Only entered agreement because of oral agreement.
	-Way to show no agreement (took no effect)-Wont get him a contract on his terms,just no contract at all.-This is about one of the terms (subst. piece not a separate piece).

*How to get out of Parol Evidence Rule =
1)Interpretation
2)Conditional Delivery
3)Promissory Estoppel
4)Fraud (In the inducement)

ANDERSON VS TRI STATE

1. Writing = “No Representations” Clause (like merger clause)
2. Oral = President guaranteed -no chipping, cracking for 30 yrs.
						 -siding tested under all 								  conditions.
Args
1. Tri state: Writing= Complete integration-Bar contradictory previous oral stuff.
2. Anderson:  We were defrauded.

Ct = We will not enforce the agreement because of fraud “We never opened the envelope”-like conditional delivery analysis.

Anderson = Trying to bring the fraud evidence in to interpret the contract in order for T to live up to its representations--The parol evidence rule doesnt apply to tort--Should sue for tort damages, not contract.

Issue = Fraud = Bad thing= Exception to Parol Ev. Rule.  But was A reas in relying on promise when writing said “No misreps”

UNIVERSAL BUILDERS CO VS MOON MOTOR LODGE (not finished)

1. Not in UCC.
2. Offer & Acceptance?
3. consideration? (consideration for modification?) (detriment to builder & benefit to Moon?)
4. Is there duress?  Dominant party wanting to change the terms?  Not in this case.
5. Modification VS Waiver = Builder claiming no modification, but M waived req. that the change order be in writing.
	-Waiver not equal to contract for activity.  Can be done by one party by itself (giving up one of its rts)
	-No req. of cosideration. Like a gift.

Under UCC
1. 2-209(1)(2).  Modification doesnt need additional consideration.-Not a parol evidence rule for modifecations (subsequent stuff)--Maybe a Statute of Frauds problem.

JOHN B. CLARK VS WEST

1. Waiver?
2. Ct not going to allow waiver that which is essential to the contract.
3. C argues the intoxication liquour condition had been waived.
4. W argues the term was essential to the contract-nonwaivable-but C is attempting a modification.
5. Ct = Term was one of a number of terms--Waivable!

		CONTRACT PERFORMANCE: ADJUSTING TO CHANGED 				CIRCUMSTANCES

1. Mutual Mistake/Impossibility/Frustration of Purpose
2. How do they affect parties’ duties under the contract.
3. Mutual mistake = both parties confused.

TAYLOR VS CALDWELL

1. Owner of Hall providing entertainment = Caldwell
2. User of Hall = Taylor
3. No reference to use of & condition of Hall in contract.
4. Hall burns down.
5. P’s Arg = D assured us of the Hall under the agreement--They didnt perform.  
6. Could C sue for $100 for each night P didnt perform.
7. Doctrine = Impossibility = Extremely impractiable due to unforeseen circumstances.
8.Failure of assumed circumstance(implied condition that thing will continue to exist)-essential to performing of contract.--No liability.
9. but if : Positive contract to do thing--Unforeseen accidents--Still Responsible.  Ex = Contract to build a concert hall = Explici duty you created (not tacitly implicit nor assumed).
10. What if Taylor gave Caldwell $100 downpayment at signing of contract-could they get that back?
11. Relation of Frustration of Purpose - If T hired a singer, but Hall burned.  T has frustration of purpose-ptless to have singer w/ no where to singer.

EASTERN AIRLINES VS MCDONNEL DOUGLASS CO

1. Why did M still get off the hook?
2. Specific provision in contract about “changed circumstances”= “Seller will not be resp....for act of govt” = Force Majeure Clause (Act of God/natural disaster clause)
3. How Ct treats it?  Doctrine of Impossibility & Frustratiion. Parties tried to allocate the risks-Respect the allocation.
4. Ct= 
1)How are we to interpret the meaning of the clause (What parties thought they were doing?)
2)Applying 2-615.
3)Provision says not resp for “act of govt, govt priorities”.  E & M allocated risks to E. 
5. Allocating provision of risk Trumping doctrine of impossibility & frustration.
6. Cts enforcing private orderings (what parties intended to do).  If parties didnt anticipate-Use doctrine of impossibility & frustratiion.

Issues
1. Does private ordering win out?
2. Occidental  vs International Mineral vs Llano = Public Orderings.
3. Occidental = Says we couldnt perform because Libya wouldnt let us. Ct says O mismanaged Libyan govt-Theyre liable. (Discouraging people from complying w/ bad govt)
4. Int. Mineral co vs Llano = Different result than O.  Encouraging people to comply w/ good govt.

 ESCAPE HATCHES/CONTRACTS AGAINST PUBLIC 					POLICY

1. Basic goal behind contract-underwrite private orders & holding people to their promises.
2. Why legal world try to hold people to their agreements? 1)mkt system working 2)Morally/ethically important.
3. Which agreements are deserving of that kind of treatment?-Narrow set of promises?- Remedial into play?
4. Which undertakings are goint to count as contracts?
5. When do you have a contract (1st chapter)
	A. Offer & Acceptance (Promise arrived by both parties agreeing.
	B. Consideration (An exhange from promisor to promisee) (Bargain-Give & Take-Promise part of transaction)
	C. Writing (Statute of Fraud)
6. Why we distinguish upon promises? (social policy)

DURESS

Critical element traditionally = Threat of illegal Act/Threat to do something unlawful.

Why dont we enforce these contracts?
1)What a contract is (internal factor)= 1)Social enforcement of private agreements, 2)no voluntary agreement under duress, 3)no voluntary offer & acceptance/mtg of minds.
2)External factor = 1)We dont want to reward that behaviro, 2)Bad means 3)Ex = Putting gun up to someone’s head for them to sign a contract.
3)The result is unfair & unbalanced.  Rotten deal for one party.
4)Q = Does threat to do legal rt someone has under the umbrella of duress?

ALASKA PACKERS V DOMENICO

1)Is this case under duress?
2)Why not get injunction?
3)Party threatened not to perform the contractual agreement.-1)Modified agreement under duress? But couldve waited till it breached, then remedy in ct, rather than agreeing to modified one. 2)No additional consideration for modified agreement?
4)What if the Alaska Packers had coerced the fishermen in the original contract?  Paying them a low amt because they were the only employers & were a lot of fishermen.
5)What if fishermen then had leverage?-Refused to work unless paid more?-Coerced the modified contract.
6)How are we being fair if enforcing 1st contract, but not enforcing 2nd contract?

EXPANDING DOCTRINE OF DURESS
*THREATS OF WRONGFUL CONDUCT = MORE GENERAL THAN UNLAWFUL ACTS.

RL MITCHELL VS CC SANITATION CO

1)Tort suit-pain & suffering, future doctor bills.
2)CC’s defense = 2 releases (“you wont sue us) bar any recovery.
3)RL’s Response to defense = Releases dont bar recovery because they were obtained through duress.
4)RL clams duress = threat of firing him.
5)Herrin had legal rt to fire RL -It was a threat to do a lawful act.  Was the rule of threat only having to be a wrongful act  a judge-made limitation on employer’s rt to discharge an employee at will?  
6)Not really, Ct is saying wrongful conduct = enough
7)Court factors in 	1)unequal footing 
				2)economic disparity 
				3)unequal bargaining position 
				4)Herring gaining economic interest 
				5)no consideration for RL 
				6)CC knew of the threat & participated in & 					  benefited from threat.
8)Ct is also factoring in the unfairness of the bargaining - the means of coercion.

WURTZ VS FLEISCHMAN

1)Closing agreed for March 24, 1975.
2)Day before closing, W threatens not to close unless F paid him an additional $50,000.
3)F offered W his interest in Lakeside Habitat.
4)Closing took place.
5)F later refused to transfer his interest.
6)W sued.
7)Trial Ct = No duress because F had legal alt rather than agreeing to W’s demand.
8)Is purchasing & sales agreement a contract? Yes.
9) F could have refused to meet the demand & brought a legal action.
10)Was this a threat of unlawful action?  No?
				 of wronful action?   Yes?
11)Is refusing to close lawful?

SELMER CO VS BLAKESLEE MIDWEST CO

1)Was it unlawful to refuse to pay the $120,000?
2)Financial Duress like in Wurtz case? Extended business relationship-Get close to end-One party wants to modify-B offers less, S feels they were coerced into accepting.  In Wurtz - W wanted more, F feels he was coerced into accepting.
Wurtz VS Selmer =
1)W manipulated the terms-duress
2)In Selmer, there is a dispute about how much the completion cost-not duress. 
3)Duty to bargain reasonably. Unequal bargaining towards the end of the deal.
4)WI Supreme Ct = Was the threat wrongful in overcoming the will of the party.  IN Wurtz = Yes.
5)Posner says negotiate between themselves w/out duress. Selmer
6)Look at Restatement Section 175-176.

UNDUE INFLUENCE

ODORIZZI VS BLOOMFIELD SCHOOL DISTRICT

1)O claimed his resignation was invalid because obtained through duress, fraud, mistake, mentally incapacitation, & undue influence.  Claims modification of contract should be void & original contract should be validated.
2)Duress = “If he didnt resign, the District would suspend & dismiss him & publicize the proceedings”.  this is not illegal.  They had legal duty to disclose reason for termination.

WARRANTY DISCLAIMERS & REMEDY LIMITATIONS

1)Content of the contract-Author thinks its a social imposition on what the parties did.
2)Writing terms into the contract.
3)Are warranties things parties agreed on? sociall imposed?
4)How do warranties come to be?
5)What can parties do to restrict the impact of warranties?

GLYPTAL VS ENGELHART

1)The aknowledgement form-It wanst part of the contract between the parties. (G needed chemical to deliver paint to GE)
2)E tells G cadmium 2020 would be the rt thing for him.
3)The chemical given to G didnt work out (Sample worked, but orders didnt)
4)So G orders a diff. kind E recommends. (Didnt test sample fully, but order didnt work out).
5)Damages sought? G has delivered new paint to GE from a different manufacturer.

Possibilities
1)You promised us quality of viscosity & shape-Didnt work-We have to repaint for GE-We need the costs-Give us consequential damages or money paid for cadmium 2020 (restitution?).
2)G argues 3 different ways to find warranties of quality to fit purpose of painting locomotives: 1)express = affirmation/stated in contract or descrip or model or sample 2)implied of merchantibility 3) implief of fit for purpose.

Arguments
1)Express Warranty
-Sample? Have expressly said something about the character of the goods-Sent sample of camdimum 20, not 1864.
-Affirmation of fact? Salesperson of E said cadmium 1864 was lightfast.  But E said test it yourself. (G would argue the comment was not based on bargain opinion but affirmation vs E would argue it meant dont depend on our comment/no affirmation of fact).

2)Implied Merchantibility = ordinary circumstances & fair & average quality.

Ex = Going to grocery-buy bad meat-can take it back.
G’s Arg = Impunities of cadmium 20 not fit for its ord use of mixing of paints (not fit for use).
E’s Arg = For cadmium 1864, intended for use in rubber & plastics, for ordinary commercial standards doesnt apply because not for use in paint.
G’s counterArg = Ordinarty purposes= To intended & reas anticipated purposes. But was it reas foreseeable that the cadmium 1864 would be used for paint to make it ord purpose?  Could say E anticipated paint being the use when making it.

3)Implied Fitness for Purpose = If the seller knows the buyer is relying on seller’s judgement-Sellers says this is the rt product-It better be.

E’s Arg = For cadmium 20, it says dont rely on us, try it to see if it works for you.  Ct says no warranty for particular purpose. G was depending on its own skill & research to see if it worked.
G’s Arg = For cadmium 1864 & lightfastness, G claims E knew it was relying on them since it didnt have time to test if for anything else than viscosity.  E argues it said you have to test it yourself-Factual dispute.

Issues
1)Is there anything the seller can do to overcome the warranties? Yes.
2)Two paths(2-316) = 
1)Excluding/Disclaiming Warranties. Saying doent rely on this/No promise/No warranties.  
Or 
2)(2-718-719) Yes a warranty, but limitations on remedies in consequence of a breach of warranty.  Exs = “No consequential damages”, Limiting time period, “Will only Repair”.

HUNT VS PERKINS

Warranties =
1)Implied warranty of merchantibility(sale of merchant goods,fit for ordinary purposes)
2)Implied warranty of fitness for a particular purpose

Arguments =
1)P argues there “No warranties” of any kind on Terms & Conditions on back of order form makes them not liable.

Ct =Ct says the disclaimers are not valid because not conspicuous(2-316)

Issues =
1)Does that view eliminate provisions on limitations of remedies as well as disclaimers? NO.
2)Conspicuous req. only one way to restrict disclaimers.
3)Limitations on remedies must not fail of its essential purpose (2-719.2).  If the limitation of remedies fails in its essential purpose (fails to give buyer protection/cant negate the warranty)-Not valid.

SPERAU VS FORD 

1)Ford being pushed to its outer limits.
2)Ford seeking to increase its representation of minority dealers.
3)Minority dealers losing money-bad track record.
4)Ford activiely recruit Foster who recruits Sperau.
5)Ford shows them data of profitability of Ford dealers, but not of minorities.
6)Foster & Sperau start dealership-They lose money.

Causes of Action=
1)Fraud claim by Foster & Sperau towards Ford.
2)Statutory claim dropped.
3)Nondisclosure claim-Ford didnt disclose low return for minority dealers.
4)Ford’s counterclaim of loan amts.
5)Foster & Sperau seeking tort damages(made whole before your tortious conduct)

Fraud Theory
1)The records shows substantial profitability. Forecast-Not statement of material fact-Rule bended.
2)It was a knowing misrepresentatioin of facts.

Analysis
1)What did they think when they made the projections?  Why would Ford misrep to Sperau?  Maybe if knew they ould do bad-low return-setting them up to do bad.  Or maybe low return at first=then work out in long run.  Or maybe they knew past return-But would use Sperau as experiment to make good return.  Or maybe pressures to do deals w/minority-Dont care if they fail.
2)Did Sperau & Foster ask Qs of minority delaer projections of ford?  No evidence but may have asked or Not good business smarts by Sperau & Foster-assumption of risk.

Nondisclosure Theory
1)Ford had turned down the original appliatioin by the P’s .
2)Ford not disclosing of the differential between minority vs nonminority returns.
3)Are they material? 
4)Why didnt Ford disclose?  Maybe wanted them to enter the dealtership & not be put off. Difficult to recruit minority dealer if disclosed the info.
5)Disclaimers on projections by Ford.  Ct setting this aside-Part of deceptive practice.

THE FORM CONTRACT PROBLEM

MCCUTCHEON VS MACBRAYNE(1964)

1)Contract of carriage?
2)D’s vessel sank(negl navigator) & car was a total loss.
3)What was the contract between the parties?  Oral contract?  Money paid & receipt given-Not a contract.
4)D’s Arg = Their elaborate printed conditions “Risk Notes” form part of the contract.
5)Rule = Bound by conditions in form because had duty to read.
6)If had opposite rule of Not bound by conditions if reasonable in not reading.-Not good incentive-wont read, will say they didnt read to get out of contract.
7)Do we want to discourage form contracts?  Unfair terms vs Reading it unreas vs being stuck w/ it (even if dont like term)
8)If dont sign-Not bound(even though may have known the terms)
9)Of sign-Bound (even though didnt read) 1)Utility of form contract 2)Bad things effected if dont have this rule
Summary
1)Certain kinds of things not considered form contracts.
3)Bound by contract, but hold draftor responsible for every detail.
4)Req. of conspicuousness -Contracts applicable if reas in getting attention of the consumer.
5)Statutory Reqs. of plain language-If not-Not enforceable rescindable.
6)Form contract agaisnt public policy (unconsionability)-Protect people from defective goods.

C & J FERTILIZER VS ALLIED

Introduction = 1)Standard for form contracts = contract adhesion.  Bound to it if signed it whether or not understood it or read it. 2)req. of reasonable expectations

Facts
1)Def of burglary = Visible marks by tools to exterior of premises added. Crim def of burglary = Breaking into premises for purposes of committing a crime.
2)In this case, burglarer left visible marks to interior door & track marks to & fro the door entrance. -Does it apply to Ins. Co def. of Burgary? Ins. Co says no, not insured against it.  
3)Ct says not an inside job because insider wouldnt have to leave marks in interior door.
4)How to get over def: 1)bend def. of premises 2)tire marks = visible marks on exterior of premises

Ct’s basis that Ins. Co has to pay?
1)Rule = Reas Expectations of applicants regarding the terms of ins. contracts will be honored.  Would they have accepted the entire agreement if they knew it contained that one term? (2-111)
2)If the one party had known the term was stuck in there, wouldnt have assented to the whole agreement TRUMPS General Rule that Seller can rely on assent of other party.
3)Ins. Co argues that the rule doesnt apply here.  No reason to think C&J wouldnt accept the agreement because of the one term.
4)Ct applied 2-11. Not going to upset C&J’s expectations on a technicality.
5)The rule is limited.  
6)Reas Expectations Strategy = Where a provision of a form is out of line w/ the agreement of the parties (doesnt allign w/ reas expectations)-Not going to enforce it.

WILLIAMS V WALKKER-THOMAS FURNITURE CO

1)D’s advantages to going door to door = 
	1)control the situatiion
	2)buyers would not otherise buy (no cars, bad treatment in 	 	  stores, dont have the money).
2)Structure of contracts= Installments,must pay all to get title. Cross-Collateralization Clause = If owned 2 things, almost paid all for one (small % accounted for in payment) & other is newly being paid off (large % of payment), so can keep paying & always owe a balance for all of them, & one is not completely paid for. So co. can repossess all if want to.
3)P last item purchased = stereo set = $514.95.  She only got $200/month welfare check. Cros collaterization w/ all items in her house.
4)D has action to replevy so as to deter others from defaulting on payments.-Go to ct.-Get decision.-Take all their stuff in front of neighbors,etc.
5)Other situations where Disadv consumers/other types of relationships-Use unconsionability.
6)Use Unconscionable contract to say the cross-collatralization provision is contrary to public policy.
7)Trial ct = No statutory basis for ct saying unenforceable becasue unconscionable.  Defer to Legislature.
8)This Ct’s Authority for saying Unconscionable=Not enforceable.
	1)UCC 2-302.  Does it apply to the contract between Williams 	  			& D? Not really, 2-302 is guidance for a path 				to what common law shcould be.
	2)Scott V US
	3)Henningsen V Bloomfield
	4)Other jurisdictions

UNCONSCIONABILITY

What is it?
1)Unfairness of terms
2)Absence of meaningul choice.

Indication of it?
1)Unreas favorable to one party.

Real Def?
If it shocks the conscience.  Appalling.

2 Aspects
1)Procedural = Something wrong in the way the contract was entered/Process was wrong (Unequal bargaining power, no meaningful choice). 
EXS = 
Walker-Thomas going door to door.
Williams not having money/couldnt go to Sears.
WT hiding the ball/not explaining the contract.
WT selling to buyers who had bad credit/who couldnt buy.

2)Substantive = Term of the agreement is so one-sided, no reas party expected to voluntarily agree.  
EXS =
WT cross-collateralization provision was abusive.

*Weigh the above two.

EVOLVING UNCONSCIONABILITY CONCEPT

JONES VS STAR CREDIT CORP

1)Value of $300. Frig sold for $1,234.80
2)Claim of overprice was unconsionable as a matter of law.
3)Ev of substantive uncons. = price term of contract
4)No ev of procedural uncons.
5)CT says yes unconscionalbe as matter of law when facts are extreme.

PATTERSON VS WALKER-THOMAS FURNITURE CO

1)Evidentery Q
2)P tried to get interrog answered about WT’s pricing.
3)Ct says you cant go on ev of disparity of ev to get to the discovery to show unconscionability.  The price element is not enough.  Need 2 elements of 1)absence of choice 2)terms unreas favorable to one party-to get ev. about price.

UNCONSCIONABILITY SUMMED UP

1)Structuring Devices = Procedural vs Substantive circumstances
2)CT’s ability to ask last Q = Is it so outrageus that we dont want to do it?
3)Characteristics = Almost case of duress, fraud, mistake, absence of consideration.  If problematic in # of ways-can claim unconscionability.
4)Jurisprudence = Cts drawing boundaries or loosening bounderies.
5)The cases = Low income consumers being taken adv of by retailers.
6)What is going to be the impact on the transactions by using unconscionability?  Beneficial vs Harmful?
7)How is the merchant going to react to the doctrine?
	-go out of business?
	-high risk, so high price?
	-Retarget business to higher income people?
	-Business go on-other consumers wont go to ct?
	-Other ways to take adv of consumers?
8)Is there any social utility from this doctrine? Is it the small step in social deorganizing -not allowing rip off of the pooer?
9)Open ended/flexible standard. vs Sharp/specific/tight standard. 
10)Deal too one-sided.-Ex. Extreme overpricing-Unconscionalbe = wide standard-May not be a good idea because for example Bloomingdale overprices merchants needing to protect themselves.  The devices, terms may be wrong leading to unequal bargaining power, not the price.  May be good idea-Proof level low-Could simply show high price instead of other factors.
11)Is the doctrine practical?
12)Remedies?  FrostiFresh = Trial Ct: Co got cost of frig because consumers kept it. Like the adjusting done in Lumber Co case:  Restrictive Covenant was reduced from 10 yrs to 3 yrs.
APP Ct: P gets cost for frig + reasonable profit + trucking & service charges + finance charges. (Restitution measured in a different way.)  Frostifresh Co. seems to get off okay.

SHOULD YOU AWARD PUNITIVE DAMAGES ON UNCONSCIONABLE CONTRACTS?

1. encourages litigation by consumers.
2. deters unconsionalbe terms.

Any Basis for Awarding Punitive Damages for Unconscionable Contracts?

1. UCC-Just says contract will be unenforceable.
2. Should a tort of unconscionable contract be established Ex. Fraud.  Kearney Mest

STATE VS AVCO FINANCIAL SERVICES OF NY

1. Loan agreements contrary to statute---Unconscionable?
2. Attorney General can enforce “Consumer Protection Act”--State suing the Co. on behalf of consumer.
3. Ct = Unconscionability must have procedural component.
Mass basis of general level--Doesnt provide example of case specific procedural & substantive unconscionability.

	  REMEDIES FOR BREACH OF CONTRACT

UCC = STATUTE
Replacing common law w/ statute.  Why?
1. Interstate Uniformity 
2. Issues not in decided cases
3. Law Reform motivation -Fixing law so business runs smoothly.

Article I = General Intro
Article II = Sale of Goods (Editorial Board Revised Recently)
Q = What does it apply to?  Is it an Article II case?

Problems p. 36

1) Transaction in Realty-Is it in Article 2?
Section 2-102 = Goods
Section 2-105 = What is goods?  Things movable.
Section 2-107 = Things severed from realty are goods (realty must be excluded)
Answer = Realty is not movable = not goods = not in Article 2.
Reasons = Realty has feudal origns of property law not contract law = Goods vs Realty = How does this classification affect behavior/ common law vs Article 2?

2) Buying/Selling plans Architect drew up (Architect owning plan/Owner owning rt to build house)
Section 2-105 = Is it a good?
Section 2-501 = Can we identify the rt to build/rt to plans? 
Answer = Rt to build/plans is intangible or service or right = not goods = not in Article 2.
Reasons = Common sense and history and Article 2 tell us.

3)Lease-Is it in Article 2?
Section 2-101 = Sales
Section 2-101 (28) = Def. of Sales = passing of title
Answer = Leases = goods = in Article 2.

4A)Contract in sale (transaction involving good) = Is part of Art 2.
4B)Yes, transaction in goods = Is part of Art. 2.

5)Lawyer’s fee for will w/ fancy paper-Is it in Article 2?
Answer = Bonebrake v. Cox  = Service (w/ little goods)  VS   Good (w/ little service or incidental services)  Article 2 applies to Good w/ incidental services.

6)Transaction not in goods/Transaction in realty = nonmovable = not good = not in Art.2
7)Transactioin not in goods/Transaction in realty = nonmovable = not good = not in Art. 2

SANCTIONS FOR BREACHING A CONTRACT

1. FINE
2. ENFORCE THE CONTRACT
3. COMPENSATION
4. NOTHING
5. IMPRISONMENT
6. PUBLICITY
7. PROHIBITION

MEASURE OF COMPENSATION

Section 1-106
1)EXPECTATION = Put her in position would have been had breacher followed the contract = Dominant measure of remedy = With contract was supposed to be better off than started, so with compensation for contract you’re usu. better off than started.  You were promised something then you get it, even if its more generous than where you would have been.  Putting back where you should be.  The mkt principles is filling expectation of more money and the moral principle is breaking promise is wrong.

2)RElIANCE

3)RESTITUTION

REMEDIES = Section 2-700(s)

Section 2-703 = Index where buyer has breached/Remedy for seller
Section 2-711 = Buyer’s remedies when seller breaches

PROBLEMS P. 40

1)
*Mkt price = willing buyer/seller
*What remedy for seller?

Section 2-703 - (e) - Section 2-708 = Difference between contract price and mkt price ($90)

*Seller expected to be at $800
$710 = sell of apples at mkt price   +  $90 = from UCC    +   incidental damages? (Section 2-710)

*Breacher put at where he was w/ contract = 
Paying damages of $90    +     Paying mkt price somewhere of $710

*If breacher can get apples at price lower than the mkt price, he’s advantaged.  Ex. Pays $600 to another seller  + $90 damages

3)Reselling = Section 2-703 (d) - Section 2-706 = Difference between resale price and contract price w/ incidental damages and less expenses saved.

*Was it commercially reas/in good faith to sell $7/a crate to neighbor?

*If Section 2-706 (reselling) doesnt apply, go to 2-708.

*Seller chose to not sell at mkt price, but to neighbor for less price = he unduly increased the damages.  “We’ll make the victim whole, if victims act responsibly”

4)Reselling - Section 2-703(d) - 2-706 (only get $50) - 2-708 (get $90/mkt price-contract price).  Advantaged if under 2-708.

*Buyer is not worse off - pays $90.
*Seller is given choices (free of contract) if acts in rational, mkt oriented way.

BREACHES BY BUYER

SHIRLEY MCCLAINE V 20TH CENTURY FOX

1) What remedy?  Difference between what she gets vs what she was going to get.

2) Losing $750,000 from orig movie vs Getting $500,000 from 2nd movie-She gets $250,000.  Losing consequential damages-opp. of making that movie (its pleasure).  Doensn’t lose when 2nd movie is flop (her decision as rational, mkt oriented person).

3)Other Situations. -If 2nd movie is 1 million-Gets no damages because she’s advantaged. -If no movie & she gardens for 2,000-she gets $748,000.

4)This case w/ different spins
-Same movie co. offering 2nd movie
-Offered 2nd movie job, but didnt take it (like 1st hypo of apples-difference between mkt price & contract price).

5)Fox’s Arg.-She had commodity worth $750,000-she chose not to extract the value of her commodity by making 2nd movie.

6)Seller has duty to mitigate damages.

7)California Rule = Duty to seek mitigation if its reas available/similar to original commodity.  Difference between commodity and personal services. (Way mitigation rule gets set up).

8)Values = Personal Choice/Autonomy -I want to make this movie, not that movie
						vs
			Efficiency/Mkt -Obligation to sell at mkt price, or take consequences

EXPECTATION INTEREST: SP PERFORMANCE VS DAMAGES

COPYLEASE CORP OF AMERICA V. MEMOREX CORP.

Parties
Memorex = Manufacturer of supplies for copying machines
Copylease = Distributor of these supplies

Contract = For 3 types of toner (chemical used in copy machines)
Copylease promised to buy minimum qtys.
Memorex granted C a favorable price and exclusinve dealership for M toners in the midwest.

Dissatisfaction
1)Memorex says terms are too favorable to Copylease. C is free to devote its efforts to promoting private label toner vs M toner, although both supplied by M (M product sales more adv to M)

2)Both were going to negotiate for new contract-but ill feelings insued.

3)M notified C it was altering the terms of the relationship-M would no longer recognize C as its exclusive dealer in any area.

4)C sued for breach of contract.  

Damages Sought
Seeking specific performance of the exclusive dealership & damages for lossess suffered between the time M took action and when a ct entered an order.

COURT OPINION

1)M breached its contract w/ C for the sale of toner & developer.

2)Told M & C to submit proposed judgments for sp. performance.

3)Ct needs further testimony to determine if sp. performance is appropriate.

4)M’s Arg = Under CA law, C is not entitled to sp. performance

5)Ct agrees that the provision granting C an exclusive territory is not in itself an adequate basis under CA law for sp. performance.

6)CA cts dont want to give sp. performance when: 1)there are simply difficulties as to the precise calculation of damages. 2)performance is not capable of immediate enforcement(continuing series of acts & cooperation between the parties).

Ct’s Holding
C will be limited to recovery of damages for breach of contract.
Exception is where the goods are unique or in other proper circumstances (2-716(1)-CA UCC)

OTHER PTS ABOUT SP PERFORMANCE

1)C claims no alternate source of toner-Does this make the toner unique? Or is M’s toner only superior & C is not being deprived of the good.

2)This may be an output and req. contracts-Is this under “other proper circumstances”?

3)Sp performance if can show no adequate remedy at law/no way you can recover w/out it/no amt of money can put you back in the place you were-”unique” & “other circumstances”.

4)Sp performances is ordinarily available in real estate.

5)Calculating money damages is problematic, while sp performance is more adminersterly problematic.

6)Sp performance may not allow for efficient breaches.  Breach position was previously so much better that she can make victim whole by monetary and still come out ahead.  With sp perforance, would efficient breaches be possible?  Bargaining power will simply be shifted, victim who could use sp performance has more power than breacher.(Ex. could be oppressive depending on positions since tomato growers as breachers, & canned co’s as victims using sp performance to oppress).
So sp performance doesnt create inefficient breaches, it shifts negotiaing power.

7)Why isn’t sp performance readily available? Historical look at Injunctive Relief-Ct of Equity-Different Approach-Backup Cts-No juries-Judge using creativity   VS  Monetary-Ct of Law-Diff. Approach-Main CTS

LIQUIDATED DAMAGES VS PENALTY PROVISIONS

LAKE RIVER CO V CARBORUNAM CO

Contract
Long term contract of 3 yrs.  C needed L to provide distribution.  C agreed they wouldn’t ship less to L. (must be certain its doing a certain amt of work).  Qty shipment plummetted.

1)Why would C agree to it?  1)Not may have needed all the service2)L may have wanted it 3)They thought mkt would fulfill the required services.

2)Is this a transaction subject to UCC? Buying & selling services-Not contract for sale of goods-Not under UCC

3)What would it take to give L its expectations?  Could give them profit anticipated & cost incurred.  Or could give them the whole contract price (costs avoided).

EX. Contract price =   	cost incurred = 150
	 				cost avoided  = 250
	  				profit antici = 100

4)Ct is not going to give them their full expectations.

5)Why do they write down the damages (liq of damages vs penalty provision) in the contract? Way to pressure co. to perform/simplify things/give certainty.

6)Even if provision not there, C can be liable to L for breaching the contract.

RULE = If the provision is a liquidation of damages-good-we will enforce it. If the provision is a penalty(too big of damages)-bad-we wont enforce it.

TEST = Weigh 1)Is the measure a reas estimation of damages? 2)Would the actual damages be difficult to determine? (actually need 2nd req. to be able to measure 1st req.)

7)Cts dont fulfill parties’ expectations in penalty provisions because of the possibility of inequality & provisions being oppressive.

Other pts about penalty provisions
1)Do they allow efficient breaches?
2)Why come cts dont come in on limitation on damages provisions that hurt small players?
3)Autonomy in parties being stuck w/ what they agreed on vs Autonomy in letting parties not being bound by the contract.
4)Limits on parties’ ability to enter into contract w/ damage provision-may be considered penalty provision.  Can sometimes get over this by sneaking the penalty provisions into the contract as part of the contract and not a damage provision.
5)Judicial Autonomy-Is the ct doing justice?
6)Respecting Autonomy of action?
7)Facilitating way business world works?

CONSEQUENTIAL DAMAGES (Foreseeability)

HADLEY VS BAXENDALE

Intro = Is the wrong close enough to the harm for damages (proximate cause?)

Direct Damages = Difference between what you’re supposed to get & what you get.

Incidental Damages = Come along in connection w/ reacting to the breach & necessary to get you back to place before breach.

Consequential Damages = Flow from breach.  Bad things that happen after the breach (loss profits)

Parties
Blaxendale = General Manager/Proprieter of Pickford (no corps in 1850s)

Contract
A crankshaft was supposed to be shipped. Pickford kenew it was a crankshaft being delivered (all ct is going to say P knows)

Breach
P’s mill stopped.  Failure to deliver crankshaft w/in reas time.

Qs on Appeal
1)Jury of small merchants where Hadley did business for P.
2)Ct says instructions to jury were not okay since Q of damages was left open/problematic to let jury protect small businesses.

Rule = Is the item of damages foreseen given the breach/What D shouldve known?

Holding = No recovery since it wasnt foreseeable that D not delivering the shaft on time would lead to the P’s business stopping and loss profits. (P couldve had extra shaft)
Issues 
1)Concern about juries going amock if allowed full expectation damages for the breach.
2)Hadley cant recover since it wasnt communicated to D directly that a breach would lead to loss profits?

EVERGREEN AMUSEMENT CORP. VS MILSTEAD

Summary = Theater wants money they would have made in those couple of months delay = loss of profits.

1. Need reasonable certainty to estimate loss of profits.
2. Ct felt not there in Theater’s case-Does not award loss profits.

CHUNG VS KAONOHI CENTER CO.

Summary = Seeking loss of future profits for a 10 yr period.  Compared themselves to other restaurants. Ct awarded.

1. Under Hadley, would Evergreen & Chung have recovered?  Maybe, because it was foreseeable to the D that P would incur the costs if the contract was breached.  Not suprising for Chung & Evergreen to seek recovery.

Why the difference between Evergreen & Chung?

1. Loss in Chung more extreme than loss to Evergreen (No restaurant vs 2 month delay in starting theater).
2. Time period difference ( 10 yrs vs 2 months)
3. Easier to calculate loss in Chung-compared to identical restaurants.
4. Different jurisdiction & year
5. Mall (easier to estimate damages) VS Isolation(Evergreen theater in middle of nowhere)
6. Difference in culpability of Ds.  Evergreen - D didnt wilfully delay VS Chung - Deliberate breach of contract (you’re out of here).

THREE REMEDY TYPES

EXPECTATION = More reliable than RELIANCE.  Payments to others, own time & labor, cost of borrowing.  Putting people back where they would have been. (Other ideologies include predictability, autonomy of parties, fairness).

RELIANCE = Things you’ve given up because you were counting on things being promised. Larger than Restitution.

RESTITUTION = Replacement of benefits that I’ve turned over (benefited the other party, that should be restored to me in connection w/ the contract.  Get rid of unjust enrichment to the other party.  Narrower than reliance-only giving up things directly to other party in connection w/ the contract.

CHICAGE COLISEUM CLUB VS DEMPSEY

Original contract = 6 months before the fight, Depsey said no contract.

Court = Dempsey breached the contract. 

Damages 

Expectations? Ct doesnt want to award expectations = making them whole/loss profits & costs they incurred.  There is a lack of certainty since no reasonable comparison because so many factors to determine loss profits (weather, etc.)

Reliance or Restitution? Necessary or unavoidable expenses in furtherance of the occurrence (after signing, before breach. Expenses w/ RR, Secretarial wages, Paying Dempsey.

Tort? Puts them where they would have been if no contract (to the beginning, not end).  

Incidental Expenses? Expenses after the breach.

Rule = The victim of breach can always seek reliance damages in leu of expectation damages.  It’s a backup if expectations damages are not availabile (Restatement *90).

ALBERT & SON VS ARMSTRONG RUMMER CO.

Expectation Damages (wouldve been if breach was fullfilled)? Can’t recover loss profit, foundation loss, what paid to seller. There was a delay in 2nd batch of machines-With breach, they dont have to pay for the rest of the machines.

Reliance? Rubber costs & dept not attributal to purchase of machines.  But foundation costs for machines is a reliance loss.

Issues
1. It was going to be a losing contract for Armstrong.
2. Proof = Not going to make victim prove future positive performance.  We’re goint to make breacher prove wouldve been negative performace if breach performed ( in order for D not to pay foundation costs).
3. This case wouldve been covered by UCC since transaction in goods.

RESTITUTION = Preventing unjust enrichment.  Looks different from contract being focus.  Relationship of the parties is the focus.

RECISSION = Call the whole thing off once one party has failed to perform.  Undoing the deal to get the parties back before he deal. Example = Colonial Lodge
Under what circumstances is Recission (Exit) available? Other side has to breach-Exit is maybe available.  Class struggle = Victim of breach trying to get remedy of exit when there’s a minor defect or fullfillment of breach wont help.

NONCONTRACT/QUASI-CONTRACT/IMPLIED CONTRACT 

NONCONTRACT  = Giving wrong lawnmower co. a check - No contract - Co. will have to return the check (restitution).

IMPLIED IN FACT = Take clothes to cleaner - Return to get them - Have to pay $15 - No written contract - Implied in fact contract.  You reasonably should have understood you were entering into a contract. (Fair value of services).

IMPLIED IN LAW = Told boy you would give him $20 for shoving driveway before noon - Boy does it at 2pm. There’s an implied in law contract where you will probably have to pay. (Fair reas value of services, maybe $15). 

COLONIAL DODGE VS MILLER(2-701, 2-709)

1. Noticed no spare tires-stopped driving the car.
2. Buyer called dealership to reject the car since no spare tires.
3. Dealership wanted contact price for car.”You bought it-you need to pay” “It was your car-I didnt need to resell”
4. UCC = Car didnt conform to contract, buyer has rt to reject in in whole (exit).
5. Oppurtunity to put spare tire in?  Dealer can make a reasonable conforming delivery (2-508).  (Ex. If dealer had said at time of sale “Tire will be delivered in 2 days” & buyer accepted - Buyer couldnt really reject later.)
6. Accepting does not mean no breach.  Could revoke acceptance.
7. Acceptance when (2-60?)
			    (a) Hasnt accepted under this section or
			    (b) Miller hasnt accepted in this section or
			    (c) Miller drove away....
Holding = Ct says Miller didnt have reasonable time to inspect when drove away.  He inspected car w/in reasonable time after driving away-No acceptance.

OLIVER VS CAMPBELL

1. Contract for legal services during divorce proceedings for $850.
2. At close to end of trial, Husband Campbell decided to fire Oliver. (breach of contract)
3. What damages are Oliver entitled to?
Expectation Damages?  Give him $300 because paid $450 & contract for $850?  (Probably negative # because fired w/out doing full job.)

PROBLEM SET

2. (not in UCC)Oliver vs. Campbell
Quick as victim, Jones as breacher.
-Expectations not much help.

-Restituion-Fair value of work performed so far-$65,000(Quick has performed half of the work-gets half of whole.

3. (w/in UCC-movable good) 1965 Corvette, what remedy does Edna have?
-Expectations - Difference between mkt price & contract price (Dont know mkt price of car-maybe go to car dealer book-Ex. $27,000) (Contract price = $25,000).  She lost $2,000-her remedy.

-Specific Performance(2-716) might be appropriate

-Consequential damages (2-715)-Was it reas foreseeable to breacher there was going to be a loss profit(Did she have reason to know Enda was in business of selling?)Recovering loss profit if she was going to sell to somebody for $30,000. Paid $25,000 for it.  Loss profit of $5,000.

4. What are the damages gardenshop can recover?
-Dont look at loss profits.  Q is what would have cost to go out & get somewhere else (mkt price).
-Remedy is restitution of what you paid-1/2 monies where 1/2 products werent delivered.
-1st Q-Is there a mkt price?
 2nd Q-If no, Specific performance & rt to conseq. damages(loss profits)?

6. Client breached. Oliver vs Campbell
-Maybe recovery should be limited to contract price (restitution)
-Maybe fair mkt value of work already done = $2,000
-Maybe recovery for % of contract price (what you’ve worked = $500)

7. Opportunity to earn profit is speculative. Security Stove, Chicago Coliseum.
-Expectation is hard to estimate.
-Restitution = $100
-Reliance on contract = $600