9780314277930

A Short and Happy Guide to Contracts

by ; ;
  • ISBN13:

    9780314277930

  • ISBN10:

    0314277935

  • Format: Paperback
  • Copyright: 2012-01-11
  • Publisher: West Academic

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Summary

This efficient and exceedingly effective guide to Contracts will help you see the big picture. The authors focus on making the key concepts of contract law, and the relationship among those concepts, easier to understand and retain. The authors have also infused the book with humor, believing there is nothing inconsistent between a rigorous academic experience and having a little fun. Each of the authors is nationally-renowned law teacher who has taught Contracts for decades. Based on that experience, in this book they have set forth understandable techniques for mastering the law governing each critical aspect of the contract relationship, including, contract formation (offer and acceptance), enforcement (consideration and defenses), interpretation, performance, breach, and remedies.

Table of Contents

Acknowledgementsp. iii
Introductionp. v
About the Authorsp. ix
Has a Deal Been Made? (Offer and Acceptance)p. 1
Determining Mutual Assentp. 1
Offerp. 2
In Generalp. 2
Uncertainty About Offers: Price Quotes and Public Advertisementsp. 3
Termination of Offerp. 4
Rejectionp. 4
Revocation (the Offeror of Common Law Contracts; Namely, Is King)p. 5
Lapsep. 7
Death (or Incapacity) of the Offeror (or Offeree)p. 7
Preservation of the Offer (Option Contracts)p. 8
Traditional Option-p. 8
UCC "Option"p. 9
Reliance as a Basis to Create an Optionp. 10
Acceptance (The Other Half of the Mutual Assent Puzzle)p. 10
Three "Rules" About Acceptancep. 11
Intent to Acceptp. 11
Who May Acceptp. 11
Manner of Acceptancep. 12
Communication and Effectiveness of Acceptancep. 12
General Rulesp. 12
The "Mailbox Rule"p. 14
The Restatement (Second) and the Effectiveness of Acceptancep. 16
Imperfect Acceptances (and Counteroffers)p. 17
Acceptance by Silence (or Inaction)p. 24
Mutual Misunderstanding of Contract Termsp. 25
Indefiniteness and Deferred Agreementp. 26
Indefinite and Missing Termsp. 26
Indefiniteness and Deferred Agreement-Continued
Deferred Agreementp. 27
Precontractual Liabilityp. 28
Is the Deal Enforceable? (Bases of Promissory Liability)p. 31
Considerationp. 31
In Generalp. 31
Past Considerationp. 33
Adequacy of Considerationp. 33
The Doctrine of Nominal Considerationp. 34
Consideration May Come From or be Received by Third Partyp. 35
Compromise or Surrender of Claims as Considerationp. 35
Mutuality of Obligation and Illusory Promisesp. 36
Modification and the Pre-Existing Duty Rulep. 38
Consideration Substitutes (and More)p. 39
The Material Benefit Rule (Promise + Prior Benefit Conferred)p. 39
Promissory Estoppel (Promise + Unbargained for Reliance)p. 42
Definedp. 42
Distinguished From Equitable Estoppelp. 43
As a Substitute for Considerationp. 44
As an Independent Basis of Liabilityp. 45
Remedies in Promissory Estoppel Casesp. 45
A Caution (or Two)p. 46
Are There Defenses to Enforcement of the Deal?p. 49
Defense Based on the Form of the Agreement (Statute of Frauds)p. 49
What Is the Purpose of the Statute of Frauds?p. 50
Which Agreements are Covered by (i.e. "Within") the Statute of Frauds?p. 50
If There Is a Writing, Does the Writing Satisfy the Statute of Frauds?p. 52
Contentsp. 52
Who Signed the Writing-p. 52
When Is an Agreement Within the Statute of Frauds Enforceable Without a Writing?p. 53
Part Performancep. 53
Reliancep. 53
Defenses Based on Flaws in the Agreement Processp. 54
Duressp. 54
Misrepresentation of Existing Factsp. 55
Defenses Based on Flaws in the Agreement Process Continued
Non-disclosure/Concealmentp. 55
Mistake of Existing Factsp. 56
Mutual mistakep. 56
Unilateral mistakep. 57
Defenses Based on What the Agreement Saysp. 57
Illegalityp. 57
Public Policyp. 58
Unconscionabilityp. 59
What Are the Terms of the Deal (Parol Evidence; Interpretation)?p. 61
The Importance of Determining the "Terms" or "Provisions" of a Contractp. 61
The Parol Evidence Rulep. 62
The Basic Rulep. 62
Exceptionsp. 65
Overview of Parol Evidencep. 66
Ambiguity and External Evidencep. 67
The Plain Meaning Rule vs. External Evidence Rulep. 67
Interpretive Maximsp. 69
Using the Parties Dealings to Remove Ambiguity-Course of Dealing and Course of Performancep. 70
Special Rules for Contracts of Adhesionp. 71
Implied Termsp. 72
Terms Implied to Achieve the Parties' Intentp. 72
Obviously Omitted Termsp. 72
Trade Usagep. 73
Terms Implied to Achieve Policy Goalsp. 74
Implied Covenant of Good Faith and Fair Dealingp. 74
UCC Supplied Termsp. 75
When Will Performance of the Deal Be Excused?p. 77
First Excuse-Other Guy's Total Nonperformancep. 77
Second Excuse-Other Guy's Saying He Is Not Going to Performp. 78
Third Excuse-Reasonable Grounds for Insecurityp. 79
Fourth Excuse-Other Guy's Improper Performancep. 80
Common Law Material Breach Conceptp. 80
UCC Perfect Tender Conceptp. 81
Fifth Excuse of Performance-Non-Occurrence of an Express Conditionp. 82
What an Express Condition Isp. 82
How an Express Condition Is Satisfiedp. 83
Fifth Excuse of Performance-Non-Occurrence of an Express Condition-Continued
When Non-occurrence of a Condition Is Excusedp. 84
Differences Between Express Conditions Precedent and Express Conditions Subsequent, and Between Express Conditions and Constructive Conditionsp. 85
Express conditions precedentp. 85
Express conditions subsequentp. 86
Express conditions and constructive conditionsp. 86
Sixth Excuse of Performance: Impossibility or Impracticabilityp. 88
Damage or destruction of the subject matter of the contractp. 88
Common lawp. 88
Uniform Commercial Codep. 89
Death of a Contract Partyp. 90
Supervening Law or Regulationp. 91
Force Majeure and "Hell or High Water" Clausesp. 91
Seventh Excuse of Performance: Frustration of Purposep. 92
How Does the Law Enforce the Deal (Contract Remedies)?p. 95
Overviewp. 95
Specific Performancep. 96
Names for Damagesp. 97
Direct or Generalp. 97
Special or Consequentialp. 97
Incidentalp. 98
General Measure of Money Damagesp. 98
Benefit of Bargain-The Expectation Interestp. 99
Ways to Measure Benefit of Bargain-Difference in Value of Performancep. 99
Ways to Measure Benefit of Bargain-Cost of Repair or Completionp. 101
Limitation on Cost of Repair or Completion-Economic Wastep. 101
Limitations on Damagesp. 102
Certaintyp. 102
Foreseeabilityp. 103
Avoidability-Mitigation and Costs You Don't Have to Payp. 105
No Emotional Distress or Punitive Damagesp. 106
Liquidated Damagesp. 107
Reliance and Restitution Damages as Alternativesp. 108
UCC Changes to Damagesp. 109
Contractual Limitation on Damagesp. 111
Who Else Is Affected by the Deal? (Third Party Interests)p. 113
Third Party Beneficiariesp. 113
What Is a Third Party Beneficiary Contact?p. 113
What Is the Vocabulary of Third Party Beneficiary Law?p. 114
Have the Rights of the Third Beneficiary Vested?p. 116
Assignmentp. 117
What Is an Assignment?p. 117
What Is Assignment Vocabulary?p. 117
What are the Limitations on Assignments?p. 118
Delegationp. 119
What Is a Delegation?p. 119
What Is Delegation Vocabulary?p. 120
What Are the Legal Consequences of a Delegation?p. 120
What Are the Legal Limits on Delegations?p. 121
Last Wordsp. 125
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