A Short and Happy Guide to Contracts

by Epstein, David G.; Markell, Bruce A.; Ponoroff, Lawrence

• ISBN13: 9780314277930
• ISBN10: 0314277935
• Format: Paperback
• Copyright: 2012-01-11
• Publisher: West Academic

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

Acknowledgements	p. iii
Introduction	p. v
About the Authors	p. ix
Has a Deal Been Made? (Offer and Acceptance)	p. 1
Determining Mutual Assent	p. 1
Offer	p. 2
In General	p. 2
Uncertainty About Offers: Price Quotes and Public Advertisements	p. 3
Termination of Offer	p. 4
Rejection	p. 4
Revocation (the Offeror of Common Law Contracts; Namely, Is King)	p. 5
Lapse	p. 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 Option	p. 10
Acceptance (The Other Half of the Mutual Assent Puzzle)	p. 10
Three "Rules" About Acceptance	p. 11
Intent to Accept	p. 11
Who May Accept	p. 11
Manner of Acceptance	p. 12
Communication and Effectiveness of Acceptance	p. 12
General Rules	p. 12
The "Mailbox Rule"	p. 14
The Restatement (Second) and the Effectiveness of Acceptance	p. 16
Imperfect Acceptances (and Counteroffers)	p. 17
Acceptance by Silence (or Inaction)	p. 24
Mutual Misunderstanding of Contract Terms	p. 25
Indefiniteness and Deferred Agreement	p. 26
Indefinite and Missing Terms	p. 26
Indefiniteness and Deferred Agreement-Continued
Deferred Agreement	p. 27
Precontractual Liability	p. 28
Is the Deal Enforceable? (Bases of Promissory Liability)	p. 31
Consideration	p. 31
In General	p. 31
Past Consideration	p. 33
Adequacy of Consideration	p. 33
The Doctrine of Nominal Consideration	p. 34
Consideration May Come From or be Received by Third Party	p. 35
Compromise or Surrender of Claims as Consideration	p. 35
Mutuality of Obligation and Illusory Promises	p. 36
Modification and the Pre-Existing Duty Rule	p. 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
Defined	p. 42
Distinguished From Equitable Estoppel	p. 43
As a Substitute for Consideration	p. 44
As an Independent Basis of Liability	p. 45
Remedies in Promissory Estoppel Cases	p. 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
Contents	p. 52
Who Signed the Writing-	p. 52
When Is an Agreement Within the Statute of Frauds Enforceable Without a Writing?	p. 53
Part Performance	p. 53
Reliance	p. 53
Defenses Based on Flaws in the Agreement Process	p. 54
Duress	p. 54
Misrepresentation of Existing Facts	p. 55
Defenses Based on Flaws in the Agreement Process Continued
Non-disclosure/Concealment	p. 55
Mistake of Existing Facts	p. 56
Mutual mistake	p. 56
Unilateral mistake	p. 57
Defenses Based on What the Agreement Says	p. 57
Illegality	p. 57
Public Policy	p. 58
Unconscionability	p. 59
What Are the Terms of the Deal (Parol Evidence; Interpretation)?	p. 61
The Importance of Determining the "Terms" or "Provisions" of a Contract	p. 61
The Parol Evidence Rule	p. 62
The Basic Rule	p. 62
Exceptions	p. 65
Overview of Parol Evidence	p. 66
Ambiguity and External Evidence	p. 67
The Plain Meaning Rule vs. External Evidence Rule	p. 67
Interpretive Maxims	p. 69
Using the Parties Dealings to Remove Ambiguity-Course of Dealing and Course of Performance	p. 70
Special Rules for Contracts of Adhesion	p. 71
Implied Terms	p. 72
Terms Implied to Achieve the Parties' Intent	p. 72
Obviously Omitted Terms	p. 72
Trade Usage	p. 73
Terms Implied to Achieve Policy Goals	p. 74
Implied Covenant of Good Faith and Fair Dealing	p. 74
UCC Supplied Terms	p. 75
When Will Performance of the Deal Be Excused?	p. 77
First Excuse-Other Guy's Total Nonperformance	p. 77
Second Excuse-Other Guy's Saying He Is Not Going to Perform	p. 78
Third Excuse-Reasonable Grounds for Insecurity	p. 79
Fourth Excuse-Other Guy's Improper Performance	p. 80
Common Law Material Breach Concept	p. 80
UCC Perfect Tender Concept	p. 81
Fifth Excuse of Performance-Non-Occurrence of an Express Condition	p. 82
What an Express Condition Is	p. 82
How an Express Condition Is Satisfied	p. 83
Fifth Excuse of Performance-Non-Occurrence of an Express Condition-Continued
When Non-occurrence of a Condition Is Excused	p. 84
Differences Between Express Conditions Precedent and Express Conditions Subsequent, and Between Express Conditions and Constructive Conditions	p. 85
Express conditions precedent	p. 85
Express conditions subsequent	p. 86
Express conditions and constructive conditions	p. 86
Sixth Excuse of Performance: Impossibility or Impracticability	p. 88
Damage or destruction of the subject matter of the contract	p. 88
Common law	p. 88
Uniform Commercial Code	p. 89
Death of a Contract Party	p. 90
Supervening Law or Regulation	p. 91
Force Majeure and "Hell or High Water" Clauses	p. 91
Seventh Excuse of Performance: Frustration of Purpose	p. 92
How Does the Law Enforce the Deal (Contract Remedies)?	p. 95
Overview	p. 95
Specific Performance	p. 96
Names for Damages	p. 97
Direct or General	p. 97
Special or Consequential	p. 97
Incidental	p. 98
General Measure of Money Damages	p. 98
Benefit of Bargain-The Expectation Interest	p. 99
Ways to Measure Benefit of Bargain-Difference in Value of Performance	p. 99
Ways to Measure Benefit of Bargain-Cost of Repair or Completion	p. 101
Limitation on Cost of Repair or Completion-Economic Waste	p. 101
Limitations on Damages	p. 102
Certainty	p. 102
Foreseeability	p. 103
Avoidability-Mitigation and Costs You Don't Have to Pay	p. 105
No Emotional Distress or Punitive Damages	p. 106
Liquidated Damages	p. 107
Reliance and Restitution Damages as Alternatives	p. 108
UCC Changes to Damages	p. 109
Contractual Limitation on Damages	p. 111
Who Else Is Affected by the Deal? (Third Party Interests)	p. 113
Third Party Beneficiaries	p. 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
Assignment	p. 117
What Is an Assignment?	p. 117
What Is Assignment Vocabulary?	p. 117
What are the Limitations on Assignments?	p. 118
Delegation	p. 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 Words	p. 125
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