American Contract Law for a Global Age, 2017a

10. Consider paragraph 5. Should the Whiteheads really be able to agree to
the “risk of death” for Mary Beth? Come to think of it, have you signed a document
agreeing to the “risk of death”?
11. Why on earth would the psychiatric evaluations for the Whiteheads in
paragraph 6 be part of the agreement?
12. Paragraph 9 provides that, in the event of William Stern’s death, the
Whiteheads agree that the child will be placed in the custody of Stern’s wife. Do the
parties have a right to agree to this term? Can Mrs. Stern, who is not a party to the
contract, sue to compel performance if the Whiteheads fail to comply?
13. Notice that both paragraphs 13 and 15 involve Mary Beth Whitehead
limiting her right to act in certain ways in the future. Should the legal system, in
your view, enforce one, both, or neither of these two paragraphs? If you find one to be
enforceable and one not, what kind of a legal rule would you craft that would support
your conclusion?
14. Can the parties really, as paragraph 18 provides, sever “any of the
provisions” from the agreement and enforce the remainder? Try omitting all of
paragraph 4, for example. What provisions could the parties reasonably drop and still
retain the benefit of their bargain?
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Problem
Problem 1.1
Suppose that you represent either Mary Beth Whitehead or William Stern
(your professor may assign you to one party or the other). Think about your client’s
position and interests. Draft a list of changes to the Surrogate Parenting
Agreement—at least five of them—that you, as the attorney would want made on
your client’s behalf to improve your client’s situation.
Beside each of your proposals, include two numbers: (1) the likely importance
to your client of your proposed change on a one-to-ten scale (with ten being the most
important), and (2) the percentage you would estimate your chances are of persuading
the other party to accept your proposal in a negotiation of the terms.
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12 CHAPTER I: INTRODUCTION TO CONTRACT LAW