Introduction to Contracts and Restitution

by Frey, Martin A.; Bitting, Terry H.; Frey, Phyllis Hurley

• ISBN13: 9780314023216
• ISBN10: 0314023216
• Format: Hardcover
• Copyright: 1993-09-01
• Publisher: West Group

Table of Contents

Table of Figures	xiii
Table of Cases	xv
Preface	xvii
INTRODUCTION A Road Map for Analyzing the Law of Contracts and Restitution	3	(15)
A Road Map for the Law of Contracts	3	(1)
Determining the Applicable Law (Choice of Law)	4	(1)
Contract Formation	5	(2)
The Offer	5	(1)
The Acceptance	6	(1)
Contracts That Are Unenforceable	7	(1)
Performance and Breach of the Contract	8	(2)
Plaintiff's Remedies for the Defendant's Breach of Contract	10	(1)
Third Party Interests	11	(2)
A Road Map for the Law of Restitution	13	(5)
PART I Step One: Determining the Applicable Law (Choice of Law)	18	(22)
Introduction Three Issues in the Choice of Law	19	(2)
Selecting the Rules of the Game	21	(19)
Selecting the Rules When More than One State Has an Interest in the Transaction	21	(1)
Selection of the Law by the Parties	22	(3)
The Law Governing in the Absence of an Effective Choice by the Parties	25	(2)
Selecting the Rules When a State has Several Sets of Rules	27	(6)
Selecting the Rules When Federal and State Laws Conflict	33	(5)
Selecting the Rules of the Game (Choice of Law)	38	(2)
PART II Step Two: Contract Formation	40	(148)
Introduction A Transactional Guide to Contract Formation	41	(3)
The Pre-Offer Phase	44	(26)
When Does the Pre-Offer Phase End and an Offer Begin?	44	(1)
When Negotiations End Without an Offer---Is That all There Is?	45	(1)
Expectation Interest	46	(1)
Reliance Interest	47	(1)
Restitution (Unjust Enrichment) Interest	48	(2)
The Role of Expectation When Negotiations Fail to Produce an Offer	50	(1)
The Role of Reliance When Negotiations Fail to Produce an Offer	50	(9)
The Role of Restitution When Negotiations Fail to Produce an Offer	59	(8)
The Performance of Another's Noncontractual Duty to Supply Necessaries to a Third Person	64	(1)
Preservation of Another's Life or Health	65	(2)
The Pre-Offer Phase	67	(3)
The Offer Phase	70	(51)
When an Offer Has Been Made (Creating the Power in the Offeree to Contract)	70	(5)
The Advertisement	75	(2)
The Auction	77	(1)
The Joke	78	(6)
The Ingredients of an Offer---A Promise and Consideration for that Promise	84	(2)
When a ``Promise'' Is Really a Promise	86	(8)
The Illusory Promise	87	(2)
The Indefinite Promise	89	(5)
Consideration for the Offeror's Promise	94	(4)
The Promise to Make a Future Gift	95	(1)
Adequacy of Consideration (the Peppercorn Theory of Contracts)	95	(1)
Motive as Consideration	95	(1)
Moral Obligation as Consideration	96	(1)
Sham Consideration	96	(1)
Mutuality of Obligation	97	(1)
The Offeror's Promise Must be Made to Induce the Consideration	98	(6)
Past Consideration	99	(1)
Pre-Existing Duty	99	(4)
Conditions versus Consideration	103	(1)
Alternatives to Classical Consideration	104	(1)
Tinkering with the Classical Doctrine	104	(5)
Reliance as an Alternative to Consideration	109	(9)
The Offer Phase	118	(3)
The Post-Offer/Pre-Acceptance Phase	121	(13)
The Death of an Offer Prior to Acceptance	121	(1)
Death of the Offer by the Offeree's Inaction	122	(1)
Death of the Offer by Revocation of the Offer	122	(3)
Death of the Offer by Rejection of the Offer	125	(1)
Death of the Offer by the Death or Incapacity of the Offeror or the Offeree	126	(1)
The Offer that Refuses to Die	127	(1)
The Classical (Express) Option Contract	127	(1)
The Implied Option Contract	128	(4)
The Post-Offer/Pre-Acceptance Phase	132	(2)
The Acceptance Phase	134	(16)
The Ingredients of an Acceptance---A Promise or Performance and Consideration for that Promise or Performance	135	(1)
The Acceptance Must Be in Response to the Offer	135	(2)
Knowledge of the Offer	135	(1)
Pre-Existing Duty	136	(1)
The Offeree Must Agree to All of the Offeror's Terms	137	(3)
Common Law Mirror Image Rule	137	(1)
The Uniform Commercial Code 2--207	138	(2)
Mismatch: A Mistake in Understanding the Offer	140	(1)
The Offeree Must Notify the Offeror That the Offer Has Been Accepted	141	(1)
The Parties Who Can Accept the Offer	141	(1)
What Method Must be Used to Accept an Offer?	142	(1)
When Is Acceptance Effective?	143	(1)
Is Restitution an Alternative to Acceptance?	144	(3)
The Acceptance Phase	147	(3)
The Post-Acceptance Phase	150	(28)
What Are the Terms of the Contract?	150	(1)
Interpreting the Language of the Contract	151	(5)
Identifying the Terms Included in the Contract	156	(6)
Parol Evidence Rule	156	(6)
Supplying Omitted Terms	162	(1)
Correcting Errors in the Written Contract: Mistake in Integration	163	(4)
Modifying a Contract	167	(2)
Ending a Contract Before It Has Been Fully Performed	169	(1)
Terminating a Contractual Duty When Neither Party Has Fully Performed	169	(1)
Terminating a Contractual Duty When One Party Has Fully Performed	170	(1)
Terminating a Noncontractual Duty	171	(1)
Terminating a Contractual or Noncontractual Duty with a ``Payment in Full'' Check---The Accord and Satisfaction	172	(3)
The Post-Acceptance Phase	175	(3)
Drafting a Contract	178	(10)
Drafting a Better Contract	178	(1)
Draft from an Outline	178	(1)
Be Brief	179	(2)
Simplify the Language	181	(2)
Use Base Verbs and the Active Voice	183	(1)
Avoid Sexist Language	184	(1)
Check for Spelling, Punctuation, and Grammatical Errors	185	(1)
Drafting Exercise	186	(1)
Drafting a Contract	187	(1)
PART III Step Three: Contracts That Are Unenforceable	188	(90)
Introduction Precluding Enforcement of a Contract	189	(1)
Protecting a Class	190	(19)
Minority (Infancy)	190	(1)
Minority as a Defense to a Breach of Contract Action	190	(1)
Restitution for the Minor and the Other Contracting Party	191	(4)
Liability of the Minor for Necessaries	195	(4)
Statutory Variations	199	(1)
The Evolving Case Law	200	(5)
Mental Incapacity	205	(1)
Incapacity Due to Alcohol or Other Drugs	206	(1)
Unenforceable Contracts---Protecting a Class	207	(2)
Protecting a Party Against Overreaching	209	(37)
Unconscionability and Adhesion Contracts	209	(1)
Unconscionability as a Defense to a Breach of Contract Action	210	(10)
Unconscionability as a Cause of Action	220	(5)
Fraud and Misrepresentation	225	(5)
Duress and Undue Influence	230	(10)
Mistake in a Basic Assumption of Fact	240	(3)
Unenforceable Contracts---Protecting a Party Against Overreaching	243	(3)
Protecting the Judicial Process	246	(32)
Illegality	246	(1)
Illegality as a Defense to a Breach of Contract Action	246	(3)
Illegal Subject Matter	247	(1)
Illegal Conduct to Procure a Legal Contract	248	(1)
Illegal Conduct in the Performance of a Legal Contract	249	(1)
Restitution as a Cause of Action	249	(4)
Statute of Frauds	253	(1)
Contracts That Require a Writing and What Constitutes the Writing	254	(5)
Contract Not to Be Performed within One Year	254	(1)
Contract for the Transfer of an Interest in Real Property	255	(2)
Contract for the Sale of Goods for the Price of $500 or More	257	(2)
Circumvention of the Statute of Frauds through Reliance	259	(8)
Restitution as a Cause of Action	267	(1)
Contract That Cannot Be Fully Performed within a Year	267	(1)
Contract for the Transfer of an Interest in Real Property	267	(1)
Forum Selection Provisions	268	(7)
Unenforceable Contracts---Protecting the Judicial Process	275	(3)
PART IV Step Four: Performance and Breach of the Contract	278	(50)
Introduction Types of Breach and Responses	279	(3)
The Defendant's Response To The Plaintiff's Allegation of Breach	282	(46)
No Breach, Compliance	283	(1)
Finding the Terms of the Contract	283	(2)
Condition Precedent, Concurrent Conditions, Condition Subsequent	285	(1)
Restitution as an Action When the Nonoccurrence of a Condition Precludes Performance of the Contract	285	(1)
No Breach, Excuse	286	(1)
Impossibility	286	(4)
Impracticability	290	(5)
Frustration of Purpose	295	(1)
Restitution as a Cause of Action When Nonperformance of the Contract Is Excused	296	(6)
No Breach, Justification	302	(1)
Was the Plaintiff in Breach?	302	(3)
Entire and Divisible Performances	303	(1)
Waiver of a Breach	304	(1)
Estoppel	304	(1)
Was the Defendant's Performance Dependant on the Plaintiff's Performance?	305	(1)
Was the Plaintiff's Performance a Condition Precedent to the Defendent's Performance?	305	(1)
Did the Magnitude of the Plaintiff's Breach Justify the Defendant's Nonperformance?	305	(6)
Restitution as an Action for the Beaching Plaintiff	311	(11)
No Breach, Terminated Duty	322	(1)
Consensual Termination of a Duty	323	(1)
Unilateral Termination of a Duty	323	(1)
Termination of a Duty by Operation of Law	323	(1)
Breach	323	(2)
The Defendant's Response to the Plaintiff's Allegation of Breach	325	(3)
PART V Step Five: Plaintiff's Remedies for the Defendant's Breach of Contract	328	(28)
Introduction Compensation for Breach	329	(2)
Plaintiff's Remedies for the Defendant's Breach of Contract	331	(25)
Protecting Plaintiff's Expectation, Reliance, and Restitution Interests	331	(1)
Expectation Damages	331	(4)
Reliance Damages	335	(1)
Restitution Damages	336	(6)
Expectation as a Remedy for Breach of Contract	342	(7)
Compensatory Damages	343	(3)
Nominal Damages	346	(1)
Injunction and Specific Performance	346	(1)
Cover	347	(1)
Liquidated Damages	347	(1)
Costs and Attorney Fees	348	(1)
Reliance as an Alternative Remedy for Breach of Contract	349	(1)
Restitution as an Alternative Remedy for Breach of Contract	349	(2)
Is a Restitution Action Available for the Plaintiff When the Defendant Has Breached the Contract?	351	(1)
Plaintiff's Remedies for the Defendent's Breach of Contract	352	(4)
PART VI Third Party Interests	356	(45)
Introduction Beyond the Two Contracting Parties	357	(1)
Third Party Interests	358	(43)
Third Party Beneficiary Contracts	358	(14)
The Assignment of Contract Rights and Delegation of Contract Duties	372	(1)
Assignment	372	(12)
Delegation	384	(1)
Substituting and Releasing a Contracting Party: The Novation	385	(8)
Simple Novation---Substitution of Obligors	386	(3)
Simple Novation---Substitution of Obligees	389	(2)
Compound Novation	391	(2)
Third Party's Interference With Existing Contract Rights	393	(5)
Third Party Interests	398	(3)
Glossary	401	(7)
Appendix A: Briefing Cases and Analyzing Statutes	408	(7)
Appendix B: Evaluating a Breach of Contract Case	415	(4)
Appendix C: Uniform Commercial Code---Articles 1 & 2	419	(116)
Index	535