Aspen Treatise for Contracts

by Farnsworth, E. Allan

• ISBN13: 9780735545403
• ISBN10: 0735545405
• Edition: 4th
• Format: Paperback
• Copyright: 2004-05-26
• Publisher: Aspen Publishing

Summary

This eagerly awaited revision of a prestigious student treatise helps professors demystify the intricacies of contract law. Long respected for its clarity and accessibility, Contracts, In its completely updated Fourth Edition, continues to illuminate doctrine and practice. the textbook builds on its well-known strengths: Comprehensive coverage of all of the topics that figure prominently in most contracts courses. Intuitive, insightful approach for first-year law students... Clear explanations of the rules, illustrated with noteworthy examples. Incorporation of many recent cases into examples. Clear prose and incisive analysis Reflection of the expertise of the author, who has also written a successful practitioner treatise. Suitability for use alongside any casebook. the Fourth Edition keeps pace with developments in the field, providing: Detailed comparisons of the contract rules of 2003, revised Article 2 (2003), with previous Article 2. Citations to revised Articles 1 and 9. Citations to dozens of new cases, including those applying CISG (Vienna Sales Convention) and reference to current decisions in such areas as employment agreements, enforceability of arbitration clauses, anti-nuptial contracts, liquidated damages, pre-contractual liability, and electronic contracting. Citations to new law journal articles and updated citations to other secondary sources. Learning contract law will be less daunting when the Fourth Edition of E. Allan Farnsworth's Contracts is available for extra assistance.

Table of Contents

Preface	xxi
Acknowledgments	xxiii
Note on Citations	xxv
PART I INTRODUCTION	1	(42)
Contracts and Contract Law in General	3	(40)
The Meaning and Role of Contract	3	(6)
The Meaning of Contract	3	(2)
The Role of Exchange	5	(2)
The Role of Promise	7	(2)
The Development of a Basis for Enforcing Promises	9	(17)
The Enforcement of Promises in Roman Law	9	(2)
The Enforcement of Promises in Early English Law	11	(3)
The Development of a General Basis for Enforcing Promises	14	(5)
Contract into the Twenty-first Century	19	(7)
Sources and Organization of Contract Law	26	(17)
Treatises, Restatements, and Scholarship	26	(5)
Uniform Commercial Code	31	(5)
Adaptability of Contract Law	36	(4)
Organization of This Treatise	40	(3)
PART II ENFORCEABILITY OF PROMISES	43	(368)
Consideration and Other Grounds for Recovery	45	(62)
Extent of Liability	45	(2)
Expectation, Reliance, and Restitution Interests	45	(2)
Consideration as Bargained-for Exchange	47	(6)
The Bargain Test of Consideration	47	(1)
What Can Constitute Consideration	48	(3)
Example of Consideration	51	(2)
Transactions Lacking Bargained-for Exchange	53	(17)
Exchange Lacking: Gratuitous Promises	53	(1)
Bargained-for Exchange Lacking: Analysis	54	(2)
Past Consideration	56	(1)
Moral Obligation	57	(6)
Unsolicited Action	63	(4)
Action Not Taken in Response	67	(3)
Transactions with Consideration Under Bargain Test	70	(14)
Peppercorns and Pretense of Bargain	70	(2)
Settlement of Invalid Claims as Consideration	72	(3)
Illusory Promises as Consideration	75	(4)
Termination Clauses	79	(2)
Requirements and Output Contracts	81	(3)
Form and Reform	84	(15)
Form: The Seal	84	(2)
Recitals	86	(2)
Reform of the Bases for Enforcement	88	(2)
Reliance as a Ground for Recovery: Promissory Estoppel	90	(9)
Restitution as a Ground for Recovery	99	(8)
Nature and Role of Restitution	99	(8)
The Bargaining Process: Offer and Acceptance	107	(110)
The Bargaining Process in General	108	(6)
Requirements of Assent and of Definiteness	108	(1)
Mutuality of Obligation	108	(2)
Offer and Acceptance	110	(1)
Bilateral and Unilateral Contracts	111	(2)
Another View of the Agreement Process	113	(1)
The Objective Theory of Assent	114	(15)
Subjective and Objective Theories	114	(3)
Intention to Be Bound or Not	117	(4)
Intention Not to Be Bound Until Later Writing	121	(7)
Criticism in Context of Mistake in Expression	128	(1)
The Mechanics of Assent	129	(23)
What Is an Offer	129	(7)
Who Can Accept an Offer	136	(1)
Offer May Invite Acceptance by a Promise or by Performance	137	(3)
What Is an Acceptance	140	(5)
Promise Inferred from Silence or Exercise of Dominion	145	(4)
Notice of Acceptance	149	(3)
Termination of the Power of Acceptance	152	(23)
Ways of Termination	152	(1)
Revocation of the Offer	152	(3)
Offeror's Death or Incapacity	155	(2)
Lapse of the Offer	157	(3)
Rejection by the Offeree	160	(1)
Battle of the Forms	161	(9)
Contracts by Correspondence	170	(5)
Protection of the Offeree	175	(26)
Options, Option Contracts, and Firm Offers	175	(4)
Reliance on Offer That Invites Performance	179	(5)
Reliance on Offer That Invites a Promise	184	(5)
Precontractual Liability	189	(12)
The Requirement of Definiteness	201	(16)
Definiteness in General	201	(2)
Examples of Indefiniteness	203	(7)
Indefiniteness in Agreements with Open Terms	210	(3)
Mitigating Doctrines	213	(4)
Policing the Agreement	217	(96)
Policing in General	217	(2)
Three Perspectives	217	(2)
Status	219	(15)
Incapacity in General	219	(1)
The Test of Immaturity	220	(2)
Effects of Minority	222	(2)
Restitution on Minor's Avoidance	224	(4)
The Test of Mental Incompetency	228	(3)
Effects of Mental Incompetency	231	(1)
Restitution on Mental Incompetent's Avoidance	232	(2)
Behavior	234	(33)
Abuse of the Bargaining Process in General	234	(2)
The Elements of Misrepresentation	236	(1)
Assertion Not in Accord with Facts	237	(6)
Fraudulent or Material	243	(2)
Reliance	245	(2)
Reliance Must Be Justified	247	(5)
Effects of Misrepresentation	252	(3)
The Elements of Duress	255	(2)
The Impropriety of the Threat	257	(4)
The Gravity of the Threat	261	(2)
Effects of Duress	263	(1)
Undue Influence	264	(3)
Policing of Modification and Discharge	267	(18)
Modification and the Pre-Existing Duty Rule	267	(4)
Reform of the Rule	271	(3)
Claims Settlements	274	(2)
Discharge Supported by Consideration	276	(6)
Discharge Unsupported by Consideration	282	(3)
Contemporary Controls	285	(28)
Standardized Agreements	285	(9)
Precursors of Unconscionability	294	(4)
Unconscionability	298	(10)
Consumer Legislation	308	(5)
Unenforceability on Grounds of Public Policy	313	(40)
Introduction	313	(5)
Public Policy as a Ground for Unenforceability	313	(5)
Policies Developed by Courts	318	(16)
Some Judicially Developed Policies	318	(4)
The Policy Against Restraint of Trade	322	(6)
The Policy Against Impairment of Family Relations	328	(6)
Policies Derived from Legislation	334	(9)
Judicial Derivation of Policies from Legislation	334	(4)
Application to Commercial Bribery, Unlicensed Claimants, and Improper Use	338	(5)
Mitigating Techniques	343	(10)
Mitigation in General	343	(1)
Divisibility	344	(4)
Restitution	348	(5)
The Requirement of a Writing: The Statute of Frauds	353	(58)
Introduction	353	(4)
History and Functions of the Statute	353	(4)
What Contracts Are Within the Statute	357	(27)
Scope of the Statute	357	(4)
Contracts to Answer for the Duty of Another	361	(10)
Contracts Not to Be Performed Within a Year	371	(5)
Contracts for the Sale of an Interest in Land	376	(5)
Contracts for the Sale of Goods	381	(3)
How the Statute Can Be Satisfied	384	(14)
Nature and Contents of Writing Required	384	(6)
Requirement of Signature	390	(4)
Satisfaction by Part Performance	394	(4)
Effects of Failure to Comply	398	(13)
Effects in General	398	(4)
Restitution	402	(3)
Reliance	405	(6)
PART III SCOPE AND EFFECT OF PROMISES	411	(238)
The Law of the Contract: Interpretation and Omitted Cases	413	(88)
The Law of the Contract in General	413	(1)
Significance of the Law of the Contract	413	(1)
Determining the Subject Matter to Be Interpreted	414	(25)
The Rationale of the Parol Evidence Rule	414	(4)
The Application of the Parol Evidence Rule	418	(8)
Evidence to Show No Valid Written Agreement	426	(4)
Reformation and the Parol Evidence Rule	430	(5)
Oral Modifications and No-Oral-Modification Clauses	435	(4)
Interpretation	439	(41)
The Process of Interpretation	439	(2)
Vagueness and Ambiguity	441	(4)
The Choice of Meaning	445	(8)
Fundamental Principles of Interpretation	453	(3)
Rules in Aid of Interpretation	456	(5)
Evidence of Prior Negotiations	461	(8)
Evidence of Course of Dealing, Usage, and Course of Performance	469	(7)
Question of Law or Fact	476	(4)
Deciding Omitted Cases	480	(21)
Reasons for Omission	480	(3)
The Process by Which a Court Supplies a Term	483	(5)
Examples of Terms Supplied by Courts	488	(13)
Performance and Nonperformance	501	(98)
Performance in General	501	(2)
Goals and Concepts	501	(2)
Conditions	503	(31)
The Meaning of Condition	503	(5)
Effects of Nonoccurrence of a Condition	508	(5)
Interpretation and Conditions	513	(10)
Excuse of Condition by Waiver	523	(4)
Excuse of Condition by Breach	527	(3)
Excuse of Condition to Avoid Forfeiture	530	(4)
Nonperformance	534	(26)
Performance as Discharge and Nonperformance as Breach	534	(1)
Constructive Conditions of Exchange	535	(6)
Concurrent Conditions	541	(3)
Order of Performance	544	(3)
Substantial Performance as a Means of Avoiding Forfeiture	547	(6)
Divisibility as a Means of Avoiding Forfeiture	553	(3)
Restitution as a Means of Avoiding Forfeiture	556	(4)
Responses to Breach by Nonperformance	560	(21)
Power to Suspend Performance and to Terminate the Contract	560	(6)
Material Breach and Suspension	566	(3)
Cure	569	(2)
Total Breach and Termination	571	(4)
Waiver and Election	575	(6)
Prospective Nonperformance	581	(18)
Anticipatory Repudiation as a Breach	581	(5)
What Constitutes a Repudiation	586	(3)
Responses to Repudiation	589	(4)
Effect of Insecurity as to Return Performance	593	(6)
Failure of a Basic Assumption: Mistake, Impracticability and Frustration	599	(50)
Introduction	599	(2)
Nature of the Problem	599	(2)
Mistake	601	(18)
Types of Mistake	601	(4)
Mutual Mistake	605	(9)
Unilateral Mistake	614	(5)
Impracticability and Frustration	619	(30)
Growth of Impossibility as an Excuse	619	(5)
A New Synthesis: The Doctrine of Impracticability	624	(10)
Frustration of Purpose	634	(6)
Existing Impracticability and Frustration	640	(2)
Effects of Impracticability and Frustration	642	(7)
PART IV RIGHTS OF THIRD PARTIES	649	(78)
Contract Beneficiaries	651	(28)
Introduction	651	(2)
Nature of the Problem	651	(2)
Intended and Incidental Beneficiaries	653	(17)
Historical Development	653	(4)
A Modern Rule	657	(7)
Construction Contracts	664	(1)
Payment Bonds	665	(2)
Government Contracts	667	(3)
Rights of Parties	670	(9)
Relative Rights of Beneficiary and Promisee	670	(3)
Vulnerability of Beneficiary to Discharge or Modification	673	(2)
Vulnerability of Beneficiary to Defenses and Claims	675	(4)
Assignment and Delegation	679	(48)
Introduction	679	(3)
Terminology and Practical Background	679	(3)
Assignment	682	(35)
Historical Background and Code Provisions	682	(4)
Effectiveness of an Assignment	686	(5)
Limitations on Assignability	691	(5)
Limitations on Assignability of Future or After-Acquired Rights	696	(4)
Revocability of a Gratuitous Assignment	700	(3)
Vulnerability of Assignee to Discharge or Modification	703	(3)
Vulnerability of Assignee to Obligor's Defenses and Claims	706	(6)
Vulnerability of Assignee to Competing Claims of Ownership	712	(5)
Delegation	717	(10)
Delegability of Performance	717	(6)
Assumption and Novation	723	(4)
PART V ENFORCEMENT OF PROMISES	727	(104)
Remedies	729	(102)
Contract Remedies in General	729	(10)
Purposes of Remedies	729	(5)
Types of Remedies	734	(1)
Economic Aspects	735	(4)
Enforcement by Specific Performance and Injunction	739	(18)
Historical Development of Equitable Relief	739	(4)
Forms: Specific Performance and Injunction	743	(3)
The Adequacy Test	746	(5)
Other Limitations	751	(6)
Enforcement by Award of Damages	757	(63)
Basic Principles of Damages	757	(7)
General Measure of Damages	764	(4)
Supplier's Damages	768	(7)
Recipient's Damages	775	(3)
Avoidability as a Limitation	778	(10)
Avoidability and Cost to Remedy Defect	788	(4)
Unforeseeability as a Limitation	792	(7)
Uncertainty as a Limitation	799	(6)
Reliance as an Alternative Measure of Damages	805	(3)
Other Limitations, Including Emotional Disturbance	808	(3)
Liquidated Damages, Penalties, and Other Agreed Remedies	811	(9)
Restitution as a Remedy for Breach	820	(11)
Relation to Restitution in General	820	(3)
Availability for Breach	823	(8)
Bibliographical Appendix	831	(6)
Table of Cases	837	(76)
Index	913