American Contract Law for a Global Age, 2017a

hired Corleone family thugs 4 or angry mobs with torches. 5 The really complex part of
this definition is what kind of promises will the law enforce? It is fair to say that
perhaps half of the first-year Contracts course involves aspects of this single
question—and professors will routinely complain that they do not have enough time
to teach it as thoroughly as they like.
Contracts in Transactional Foresight. An old joke about the traditional law
school Contracts course is that students could get through an entire casebook’s worth
of material without seeing an actual contract. We don’t want that to happen to you.
While the bulk of the course is necessarily made up of legal materials—typically
statutes and cases from appellate courts—the contract is always central to the
questions involved.
While much of the contract law you will learn in this course will come from
cases, most parties don’t anticipate a lawsuit at the time they enter into an
agreement. Transactional lawyers have gotten a rap, often unfairly, as being the
people who say “no” to a deal getting done. That is because transactional lawyering
is forward-thinking. It requires understanding the known situation of the parties, but
also considering the many potential unknown futures that might lie ahead. What
happens if the deal doesn’t work out as wonderfully as the parties expect? The
foresight of a good transactional lawyer can sometimes prevent a future conflict or
else put the client in a better situation if a conflict does arise.
Transactional lawyers must thus deal with a contract in the absence of a legal
case. We want you to do start the course by doing the same thing. Accordingly, our
jumping-off point will be for you to read and consider the transactional agreement in
this unit. Along with that document, we have added some comment boxes to provide
additional information as you read. After the agreement, you’ll find a series of
Questions for Discussion that you should (surprise!) be thoroughly prepared to
discuss in class. After the questions, you will find a Problem that your professor may
ask you work or even to turn in. If the goal of law school is to teach you how to “think
like a lawyer,” then one of the many goals of this Contracts course is to teach you how
to think like a transactional lawyer—that is, as someone who has the foresight and
practical wisdom to create and draft contracts, not merely to sue over them after they
are broken. The questions and problem at the end of this unit are the beginning of
our process of learning how to think transactionally.
Without further ado, let us begin Contracts with a very formal-looking and
lawyer-drafted document entitled “Surrogate Parenting Agreement.” Read it through
carefully. Note that it never once uses the term “contract.” Is it a contract?
for better or for worse, is part of how lawyers earn their keep. If this stuff were simple, everyone would
do it.).
4 See generally THE GODFATHER (Paramount Pictures 1972).
5 See, e.g., MARY SHELLEY, FRANKENSTEIN (1818).
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4 CHAPTER I: INTRODUCTION TO CONTRACT LAW