Contracts: Law in Action, The Concise Course

by Macaulay, Stewart; Kidwell, John; Whitford, William C.

• ISBN13: 9780820557168
• ISBN10: 0820557161
• Edition: 2nd
• Format: Hardcover
• Copyright: 2003-01-01
• Publisher: Lexis Nexis Matthew Bender

Table of Contents

Preface	iii
Introduction	1	(24)
Studying Law	1	(15)
Law School Classes and Contract Theories	3	(1)
Law School Classes	3	(1)
The Classic Approach	3	(3)
Legal Realism	6	(1)
Neutral Principles and Procedures	7	(2)
Economics-and-Law	9	(1)
Critical Legal Studies	10	(2)
Law-and-Society	12	(1)
Law School Examinations	13	(1)
Ends and Means: What am I Here For?	14	(2)
Contracts Courses	16	(9)
The Goals of the Course: Lawyers and Contracts	16	(4)
Contracts: Law in Action	20	(5)
Remedies For Breach of Contract	25	(150)
Protecting the Expectation Interest	25	(14)
A Long, But Necessary, Digression: Of Two Codes, Reading Statutes, and the Application of Article 2 of the UCC	26	(2)
Robert Braucher, Legislative History of the Uniform Commercial Code	28	(9)
Ludwig Wittgenstein, Philosophical Investigations	37	(1)
The Expectation Interest: The Substitute Contract as the Preferred Means to the End	38	(1)
The Expectation Interest: Of Inferior Substitutes, Other Ends and Other Means	39	(22)
Shirley Maclaine Parker v. Twentieth Century-Fox Film Corporation	40	(5)
Notes and Questions	45	(6)
Anthony Neri v. Retail Marine Corporation	51	(3)
Notes and Questions	54	(7)
The Expectation Interest: Performance Rather Than Damages	61	(8)
Copylease Corporation of America v. Memorex Corporation	61	(2)
Notes and Questions	63	(6)
The Expectation Interest: Breach Deterrence Versus Liquidated Damages	69	(10)
Lake River Corporation v. Carborundum Company	69	(6)
Notes and Questions	75	(4)
The Expectation Interest: Lost Anticipated Profits and Consequential Damages	79	(12)
Putting Aggrieved Parties Not Quite Where They Would Have Been Had the Contract Been Performed	80	(1)
Hadley v. Baxendale	80	(2)
Notes and Questions	82	(3)
Proof of Damages with Reasonable Certainty: Of New Businesses and Experts	85	(1)
Evergreen Amusement Corporation v. Milstead	85	(3)
Notes and Questions	88	(3)
The Expectation Interest: Foreseeability and Proof with Reasonable Certainty as Barriers to Relief	91	(24)
Appellate Cases as a Biased Sample of Events in the World	91	(1)
Content Analysis and the Interaction of Doctrines	92	(2)
Karl N. Llewellyn, What Price Contract?---An Essay In Perspective	94	(2)
Stewart Macaulay, The Use and Non-Use of Contract in the Manufacturing Industry	96	(2)
The Reliance Interest	98	(2)
Security Stove & Manufacturing Co. v. American Railways Express Co	100	(5)
Notes and Questions	105	(3)
L. Albert & Son v. Armstrong Rubber Co.	108	(4)
Notes and Questions	112	(3)
Restitution and Exit as Alternatives to Contract Remedies for Breach of Contract	115	(35)
Introduction	115	(1)
Walking Away From a Deal: Exit and Restitution	116	(1)
Sales of Goods	116	(1)
Bertell Ollman, Class Struggle is the Name of the Game	117	(3)
Notes and Questions	120	(2)
Colonial Dodge, Inc. v. Miller	122	(4)
Notes and Questions	126	(1)
Colonial Dodge, Inc. v. Miller	126	(4)
Notes and Questions	130	(3)
Substantial Performance in Building Contracts	133	(2)
Restitution as an Alternative Remedy for Breach of Contract	135	(1)
The Remedy and its Impact	135	(1)
Oliver v. Campbell	135	(6)
Notes and Questions	141	(2)
Difficulties with Restitution as a Remedy for Breach of Contract	143	(1)
Notes and Questions	143	(4)
Restitution for the Plaintiff in Default	147	(1)
Notes and Questions	148	(2)
Fuller and Perdue's Categories as Surrogates for Difficult Normative Choices	150	(25)
Peevyhouse v. Garland Coal & Mining Company	151	(7)
Notes and Questions	158	(7)
Alice Sullivan v. James H. O'Connor	165	(5)
Notes and Questions	170	(5)
Contract and Continuing Relations	175	(206)
Introduction	175	(16)
The Vocabulary of Contract Formation	178	(1)
An Introduction to the Rules of Offer and Acceptance	179	(10)
A Policy Approach to Judicial Intervention	189	(2)
Contract in the Family Setting	191	(95)
Which Promises Should the Law Enforce?---Illustrations and Issues	191	(1)
Courts and Contracts Between Husband and Wife	191	(1)
Balfour v. Balfour	191	(2)
Notes and Questions	193	(5)
Marriage and Cohabitation Contracts	198	(1)
Notes and Questions	199	(1)
Contracts Between ``Husband'' and ``Wife'' Who are not Married: Courts Swim in the Dismal Swamp	199	(1)
Marvin v. Marvin	200	(8)
Notes and Questions	208	(11)
Which Promises Should the Law Enforce?---The Response of Contracts Doctrine and the Role of Form	219	(1)
``Bait:'' Promises by a Family Member with Money to Influence the Lives of Those Without It	219	(4)
Hamer v. Sidway	223	(4)
Notes and Questions	227	(2)
An Introduction to the Doctrine of Consideration	229	(10)
The Conditional Gift Revisited	239	(1)
Kirksey v. Kirksey	239	(1)
Notes and Questions	240	(1)
Andrew D. Ricketts, Executor v. Katie Scothorn	240	(2)
Notes and Questions	242	(4)
The Statute of Frauds and Family ``Bait'' Promises	246	(8)
Notes and Questions	254	(4)
Family Bait: Reaching the Right Result by Manipulating Doctrines of Contract Formation	258	(6)
Contracts to Provide for the Old: Contract and Restitution as a Substitute for an Extended Family	264	(8)
If Law is to Intervene, What Remedies are Appropriate?	272	(1)
Reliance and the Expectation Interest in the Family Context	272	(1)
Specific Performance and ``Shotgun Marriages''	273	(3)
Notes and Questions	276	(1)
Fitzpatrick v. Michael	276	(5)
Notes and Questions	281	(1)
Brackenbury v. Hodgkin	282	(2)
Notes and Questions	284	(2)
Alternatives to Litigation in Family Matters	286	(11)
Stories from Other Societies	286	(3)
``Alternatives'' in American Society	289	(2)
Calls for New Approaches and the Practice of Law	291	(1)
Calls for Mediation Rather Than Adjudication	291	(1)
Alternative Dispute Resolution and the Practice of Law	292	(1)
Marc Galanter, Worlds of Deals: Using Negotiation to Teach About Legal Process	293	(2)
Effectiveness of Mediation	295	(1)
Compensating Care for the Old	296	(1)
Franchise and Employment Relations	297	(68)
The Franchise	298	(1)
Creating the Relationship	298	(1)
Hoffman v. Red Owl Stores, Inc.	298	(8)
Notes and Questions	306	(6)
Ending the Relationship	312	(5)
Notes and Questions	317	(2)
Grievance Processes Under Collective Bargaining	319	(1)
Grievance Systems	319	(1)
Arbitration Versus Adjudication	320	(1)
In re Trans World Airlines, Inc.	321	(2)
Notes and Questions	323	(3)
Judicial Review of Arbitration	326	(1)
Employment Relations	327	(1)
Proving Employment Contracts and Gaining Meaningful Remedies	327	(1)
McIntosh v. Murphy	327	(5)
Notes and Questions	332	(1)
Employment-at-Will	333	(1)
Introduction	333	(1)
Forrer v. Sears, Roebuck & Company	333	(3)
Notes and Questions	336	(1)
Development of the At-Will Doctrine	336	(2)
California: A Case Study in Conflicting and Contrasting Rules	338	(1)
Gordon Tameny v. Atlantic Richfield Company	339	(7)
Advance, and Then Retreat (or is it Retreat, and Then Advance?)	346	(5)
California Revisited: Foley, Gantt and Hunter	351	(1)
Where Are We Now?	352	(1)
Public policy exception	352	(1)
Implied-in-fact contracts	352	(1)
The covenant of good faith and fair dealing	353	(1)
Other causes of action	353	(3)
Reflecting on the Struggle Over Employment-at-Will	356	(1)
``The Job as Property Right'' (Peter F. Drucker)	357	(2)
Employment-at-will and the free market	359	(1)
Employment-at-will and the idea of ``consent''	360	(1)
Farber and Matheson	361	(1)
Employment-at-will as protecting the already-protected	362	(1)
In Conclusion . . . A hypothetical	363	(2)
Long-Term Relationships in Commercial Transactions	365	(16)
Relational Sanctions and Enforceable Contracts	365	(1)
Business Views on Other-Than-Legal Sanctions	366	(2)
Form Contract Provisions	368	(2)
Contract Litigation and Appeals	370	(2)
Notes and Questions	372	(1)
Commercial Relationships and Private Governments	373	(8)
Social Control of Free Contract	381	(184)
Social Control and the Interests of Other	383	(18)
Illegal Contracts	383	(1)
Introduction	383	(1)
Illegality: Form and Substance	383	(1)
Edna Carroll v. Agnes Beardon	384	(2)
Notes and Questions	386	(2)
Comparative Fault	388	(1)
John Karpinski v. Gene Collins and Ruth Collins	389	(2)
Notes and Questions	391	(1)
Contracts Against Public Policy	392	(1)
Introduction	392	(1)
Covenants by Employees Not to Compete	393	(1)
Fullerton Lumber Co. v. Albert Torborg	393	(7)
Notes and Questions	400	(1)
Social Control, Contract and Choice	401	(60)
Introduction	401	(2)
Capacity to Contract	403	(1)
Mental Incapacity to Contract	404	(2)
Contracts Made Under the Influence of Drugs	406	(1)
Contracts Made with Minors---Infancy	406	(2)
Duress	408	(1)
The Search for a Standard	408	(1)
R. L. Mitchell v. C. C. Sanitation Company, Inc.	409	(3)
Notes and Questions	412	(2)
A Case Study in One Jurisdiction	414	(1)
Wurtz v. Fleischman	414	(6)
Wurtz v. Fleischman	420	(2)
Notes and Questions	422	(1)
Yet Another Standard?	422	(1)
The Selmer Company v. Blakeslee-Midwest Company	422	(4)
Notes and Questions	426	(2)
Undue Influence	428	(2)
Notes and Questions	430	(3)
Misrepresentation	433	(4)
Obde v. Schlemeyer	437	(4)
Notes and Questions	441	(4)
Good Faith	445	(1)
Market Street Associates v. Frey	445	(7)
Notes and Questions	452	(1)
Most of the Theories at Once: A Review	453	(1)
Vokes v. Arthur Murray, Inc.	453	(4)
Notes and Questions	457	(4)
Social Control in the Guise of Seeking Choice: Choice and Form Contracts	461	(33)
Stewart Macaulay, Private Legislation and the Duty to Read---Business Run by IBM Machine, the Law of Contracts and Credit Cards	461	(1)
McCutcheon v. David MacBrayne Ltd.	461	(8)
Notes and Questions	469	(2)
ProCD, Inc. v. Zeidenberg	471	(5)
Notes and Questions	476	(2)
Hill v. Gateway 2000, Inc.	478	(3)
Notes and Questions	481	(3)
C & J Fertilizer, Inc. v. Allied Mut Ins. Co.	484	(8)
Notes and Questions	492	(2)
Warranty, Disclaimers and Remedy Limitations: the UCC Pattern	494	(19)
Warranties as a Tool to Guard Expectations	494	(2)
Warranties, Express and Implied	496	(3)
Conspicuous Disclaimers and Conscionable Remedy Limitations	499	(1)
Hunt v. Perkins Machinery Co., Inc.	499	(3)
Notes and Questions	502	(4)
Regulating Warranties in Consumer Transactions	506	(7)
Unconscionability	513	(52)
Retailing and the Poor	514	(1)
Federal Trade Commission Economic Report on Installment Credit and Retail Sales Practices in the District of Columbia	514	(5)
Notes and Questions	519	(2)
The First Cases	521	(1)
Williams v. Walker-Thomas Furniture Co.	521	(4)
Notes and Questions	525	(2)
Retailing and the Poor in Modern Form	527	(1)
Remco Enterprises, Inc. v. Alice Houston	527	(5)
Notes and Questions	532	(2)
Unconscionability and Consumer/Employee Arbitration Agreements	534	(1)
Barry Meier, In Fine Print, Customers Lose Ability to Sue The New York Times	534	(4)
Tony Brower v. Gateway 2000, Inc.	538	(6)
Notes and Questions	544	(2)
Robert Ramirez III v. Circuit City Stores, Inc.	546	(5)
Notes and Questions	551	(1)
Remedies for Victims of Unconscionable Contracts	552	(1)
Frostifresh Corp v. Reynoso	552	(1)
Frostifresh Corp v. Reynoso	553	(1)
Pearson v. National Budgeting Systems, Inc.	554	(1)
Notes and Questions	554	(2)
Evaluating Unconscionability	556	(1)
Arthur Leff, Unconscionability and the Crowd---Consumers and the Common Law Tradition	556	(5)
Notes and Questions	561	(4)
Formation of Contract	565	(78)
Choice, Fault, or Something Else?	568	(12)
Embry v. Hargadine, Mckittrick Dry Goods Co.	568	(3)
Notes and Questions	571	(5)
Stewart Macaulay, Private Legislation and the Duty to Read---Business Run by IBM Machine, the Law of Contracts and Credit Cards	576	(4)
The Risk of Ambiguity or Misunderstanding	580	(51)
Choice and the Careless Use of Language	582	(1)
Raffles v. Wichelhaus	582	(1)
Notes and Questions	583	(2)
Flat Rules to Allocate Losses	585	(1)
WPC Enterprises, Inc. v. United States	585	(4)
Notes and Questions	589	(1)
When is it Too Late to Discover a Mistake and Avoid the Contract?	589	(1)
Introducing the Problem of the Mistaken Bid	589	(2)
The Mailbox Rule	591	(3)
The Firm Offer	594	(5)
Janke Construction Co. v. Vulcan Materials Co.	599	(6)
Notes and Questions	605	(5)
Marana Unified School Dist. No. 6 v. Aetna Casualty and Surety Co.	610	(5)
Notes and Questions	615	(1)
Unilateral Mistakes in Communicating: I Meant ``X'' But Said ``Y''	615	(7)
Malcolm Pitman Sharp, Promissory Liability II	622	(3)
S.T.S. Transport Service, Inc. v. Volvo White Truck Corp.	625	(5)
Notes and Questions	630	(1)
Unenforceable Contracts, Restitution and Reliance	631	(12)
Vickery v. Ritchie	632	(2)
Notes and Questions	634	(4)
Dunnebacke v. Pittman	638	(3)
Notes and Questions	641	(2)
Incomplete Planning, Flexibility and Enforceability	643	(102)
Specifying Ends But Not Means: ``We Can Work it Out!''	643	(18)
Building Construction and Ordinary People	643	(1)
Klimek v. Perisich	643	(2)
Notes and Questions	645	(1)
The UCC and Indefiniteness: Transactions in Goods Between Major Corporations	646	(1)
Bethlehem Steel Corp. v. Litton Industries, Inc.	646	(12)
Notes and Questions	658	(3)
Flexible Price and Quantity: ``I'll Buy What I Want at a Fair Price''	661	(31)
Flexible Pricing	664	(2)
Thomas R. Hurst, Drafting Contracts in an Inflationary Era	666	(7)
Notes and Questions	673	(2)
Flexible Quantity	675	(1)
Blanket Orders	675	(1)
Stewart Macaulay, The Standardized Contracts of United States Automobile Manufacturers	675	(5)
Notes and Questions	680	(1)
Requirements and Output Contracts	681	(1)
Empire Gas Corp. v. American Bakeries Co.	682	(6)
Notes and Questions	688	(1)
Distributorships---Is a Distribution Contract a Requirements Contract?	689	(3)
Business Documents and Forming Contracts	692	(45)
Business Documents and Commercial Practices	695	(2)
The Battle of the Forms: Magic Through Contract Drafting	697	(6)
Section 2-207 of the Uniform Commercial Code	703	(1)
McCarty v. Verson Allsteel Press Co.	704	(8)
Notes and Questions	712	(1)
Steiner v. Mobil Oil Corp.	713	(6)
Notes and Questions	719	(4)
C. Itoh & Co. (America) Inc. v. Jordan International Co.	723	(6)
Notes and Questions	729	(1)
Lawyers Cope with § 2-207: Business Procedures and Drafting Practices	730	(3)
Notes and Questions	733	(3)
Remember the UN Convention on Contracts for the International Sale of Goods	736	(1)
Closing the Deal But Leaving a Way Out	737	(8)
Hills, Inc. v. William B. Kessler, Inc.	738	(2)
Notes and Questions	740	(5)
The Deal is Closed---But What is it?	745	(120)
Introduction	745	(3)
Interpretation and Construction of Contractual Language	748	(23)
Edwin W. Patterson, The Interpretation and Construction of Contracts	748	(12)
Notes and Questions	760	(1)
E. Allan Farnsworth, ``Meaning'' in the Law of Contracts	761	(3)
Federal Express Corp. v. Pan American World Airways, Inc.	764	(3)
Notes and Questions	767	(4)
The Parol Evidence Rule	771	(67)
John D. Calamari & Joseph M. Perillo, A Plea for a Uniform Parol Evidence Rule and Principles of Contract Interpretation	773	(8)
The Parol Evidence Rule: Search for Truth . . . Or Defense of Form?	781	(1)
Binks Manufacturing Co. v. National Presto Industries, Inc.	781	(5)
Notes and Questions	786	(1)
Of Partial Integrations and Side Agreements	787	(1)
Mitchill v. Lath	787	(4)
Notes and Questions	791	(1)
Masterson v. Sine	792	(5)
Notes and Questions	797	(9)
The Parol Evidence Rule, Misrepresentation, and Promissory Estoppel	806	(1)
Enrico Farms, Inc. v. H.J. Heinz Co., Palladino v. Contadina Foods, Inc.	806	(2)
Notes and Questions	808	(3)
Nanakuli Paving and Rock Co. v. Shell Oil Co.	811	(17)
Notes and Questions	828	(2)
Merger and ``No Representations'' Clauses	830	(1)
Anderson v. Tri-State Home Improvement Co.	830	(2)
Notes and Questions	832	(6)
Conclusions About the Parol Evidence Rule	838	(11)
AM International, Incorporated v. Graphic Management Associates, Inc.	838	(5)
Notes and Questions	843	(6)
The Adjustment or Modification of Performance Terms	849	(7)
``Written Modifications Only'' Clauses	850	(1)
Universal Builders, Inc. v. Moon Motor Lodge, Inc.	850	(3)
Notes and Questions	853	(3)
Waiving Conditions Contrasted with Modifying Contracts	856	(9)
Clark v. West	856	(3)
Notes and Questions	859	(6)
Performance and Breach of Contract	865	(122)
The Main Themes---Promises, Conditions and the Role of Courts	865	(23)
The Logic of ``Conditions''	865	(7)
Conditions and Forfeitures: Free Contract vs. Fairness and Sympathy?	872	(3)
Ronald D. Davis v. Allstate Insurance Co.	875	(3)
Notes and Questions	878	(3)
Van Iderstine Co. v. Barnet Leather Co.	881	(3)
Notes and Questions	884	(4)
My Right to Call Off Some or All of the Deal Because of Your Failure to Perform: ``Material Failure of Performance''	888	(97)
A Note and Some Problems to Set the Stage	888	(3)
Solutions Offered by the Restatement (Second) of Contracts	891	(1)
Transactions in Goods: The Basic Solutions of the UCC	892	(1)
The General Pattern	892	(1)
Inspection and Acceptance of the Goods	893	(1)
Ardex Cosmetics of America v. Logotech, Inc.	893	(4)
Notes and Questions	897	(1)
Cooperation and Good Faith	897	(3)
Notice: § 2-607(3)(a)-and a Note on § 2-608(2)	900	(1)
Eastern Air Lines, Inc. v. McDonnell Douglas Corp.	900	(9)
Notes and Questions	909	(12)
Section 2-508: The Seller's Right to Cure	921	(1)
T.W. Oil, Inc. v. Consolidated Edison Co. of New York, Inc.	921	(4)
Notes and Questions	925	(2)
CISG and Imperfect Performance	927	(1)
Two Classic, But Troublesome, Problems	928	(1)
Installment Contracts and the Failure to Perform Part of the Deal	928	(1)
Ervin F. Palmer v. Watson Construction Company	929	(3)
Notes and Questions	932	(5)
Installment Contracts and the UCC	937	(4)
Midwest Mobile Diagnostic Imaging, L.L.C. v. Dynamics Corporation of America	941	(11)
Notes and Questions	952	(2)
The Long Wait: Delay and Calling Off the Deal After One Has Given Extension	954	(1)
Fairchild Stratos Corp. v. Lear Siegler, Inc.	954	(5)
Notes and Questions	959	(7)
``Anticipatory Breach'' and ``Reasonable Grounds for Insecurity''	966	(1)
Repudiation and the Power to Walk Away From the Deal	966	(2)
Insisting on my Interpretation of the Contract as Repudiation	968	(1)
Bill's Coal Co., Inc. v. Board of Public Utilities of Springfield, Missouri	968	(4)
Notes and Questions	972	(2)
Anticipatory Repudiation and the Calculation of Damages	974	(1)
Uncertainty About the Other Side's Performance---The Code's Framework	975	(1)
AMF, Inc. v. McDonald's Corp	975	(3)
Notes and Questions	978	(1)
Cherwell-Ralli, Inc. v. Rytman Grain Co., Inc.	979	(3)
Notes and Questions	982	(1)
Uncertainty About Peformance---At Common Law	983	(2)
Self-Help in the Face of Default	985	(2)
Adjusting to Changed Circumstances: Risks Assumed and Imposed	987
Mistake, Impossibility and Frustration: Contract Doctrine, Restitution, and Coping with the Problems	987	(29)
Contrasting Legal Approaches	988	(1)
Paradine v. Jane	989	(1)
Notes and Questions	989	(4)
Taylor and Another Against Caldwell and Another	993	(6)
Notes and Questions	999	(2)
Coping with Floods, Strikes and the Like	1001	(1)
Business Practices	1001	(1)
Allocations: Solutions With a High Potential for Dispute	1002	(2)
Restitution After an Excuse	1004	(12)
Contracts Involving Large Organizations and Great Events of our Time	1016
The Spirit of Paradine v. Jane	1017	(3)
Handicapped Children's Ed Bd. of Sheboygan Co. v. Lukaszewski	1020	(5)
Notes and Questions	1025	(2)
Transatlantic Financing Corporation v. United States	1027	(4)
Notes and Questions	1031	(1)
7200 Scottsdale Road General Partners v. Kuhn Farm Machinery, Inc.	1032	(8)
Notes and Questions	1040	(1)
Paradine v. Jane or Taylor v. Caldwell?	1041	(1)
Eastern Air Lines, Inc. v. McDonnell Douglas Corp.	1041	(9)
Notes and Questions	1050	(2)
Do the Rules Change When the Game Gets Bigger?	1052	(4)
Notes and Questions	1056	(7)
Notes and Questions	1063	(3)
Aluminum Company of America v. Essex Group, Inc.	1066	(26)
Notes and Questions	1092
Table of Cases	1	(1)
Table of Statutes	1	(1)
Index	1