American Contract Law for a Global Age, 2017a

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An Introduction to CONTRACT DEFENSES Where Are We Now? At this point, you have marched through the book far enough to understand the concepts of formation and consideration. Pretend now that a contract problem walks into your law office. You plainly find an exchange of consideration. You plainly have an offer and an acceptance by the appropriate parties. Under the section we called “Formation,” has a contract been formed? At this point you might be tempted to think that the answer is yes, but you probably are familiar enough with the way law school works that the answer is likely to be “maybe.” At this point, we fairly can say there is a presumption that a contract has been formed, but that the presumption can be rebutted. Assume, for example, that A and B—anonymous parties for the moment—sign a written agreement under which A agrees to sell B her car for $5,000. We have a signed agreement, so basic formation issues are not a problem. Also, both cash and automobiles are things of value that can act as consideration. To decide if a contract actually was formed, nonetheless, we may have to answer some other questions. Would it matter, for example, if A was unwilling and B held a gun to her head to make her sign the agreement? Would it matter that B was only six years old? Or that A purportedly sold the car while knowing that it had actually been destroyed by a meteor earlier that morning and was a smoking hunk of melted metal at the time of the sale? Enter the Defenses. Your intuition may be that courts would not enforce agreements in the above situations. But what are the reasons why not? As a matter of policy, we do not want contract law to reward liars and thugs or to allow children potentially to be exploited. For reasons such as these, contract law includes the concept of defenses to formation. If a valid defense exists, no enforceable agreement exists even though the rules of formation and consideration suggest otherwise. In earlier times, lawyers generally would call these situations “unenforceable contracts.” Today, since the definition of contract includes enforceability, an unenforceable contract is a bit of an oxymoron, so some prefer to say that there is no contract at all. The terminology may vary, but the effect, no matter what we call it, is that the party claiming breach cannot recover. Shifting Burdens of Proof. In contract litigation, the burden of the party claiming the breach (usually the plaintiff) is to prove the existence of an agreement and of consideration, where such matters are disputed issues. At that point, the burden shifts to the alleged breaching party to raise any of the various defenses to formation. That party will bear the burden of proof on that issue. The plaintiff does not have to prove he did not brandish a gun; the defendant must prove he did. For those litigating contract disputes, the burden of proof can be significant. ______________________________________________________________________________ 236 CHAPTER V: CONTRACT DEFENSES
The units that follow explore various defenses that are commonly raised in contract litigation: lack of capacity, the statute of frauds, defenses based on lack of assent, and public-policy defenses. ______________________ ______________________________________________________________________________ INTRODUCTION TO CONTRACT DEFENSES 237
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Notices This is the first edition o
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About CALI eLangdell Press The Cent
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Unit 19: Conditions ...............
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hired Corleone family thugs 4 or an
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described herein, and agrees to fre
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6. MARY BETH WHITEHEAD, Surrogate,
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Surrogate and WILLIAM STERN, Natura
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10. Consider paragraph 5. Should th
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The two court opinions that follow
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Venue Venue is a concept of place
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Their first child, Ryan, was born o
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Subsequent to entering into the sur
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The sixth and final argument sugges
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It is argued by amicus that the $ 1
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no stated public policy on surrogac
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IN RE BABY M Supreme Court of New J
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adoption; the sole purpose of the c
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The surrogacy contract violates the
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Problems Donald Donor is a single,
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An Introduction to CONTRACT FORMATI
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particular obligation? In Europe, i
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The evidence is undisputed that pla
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After some negotiation a price of $
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The answer of A.H. Zehmer admitted
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no, that is beer and liquor talking
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on the Zehmers as well as on himsel
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offer and of the reward and its sub
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your professor. You will come acros
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car title you’re holding there. I
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In the modern world, the question o
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pair of sunglasses. The drumroll th
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This letter was apparently sent onw
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Because these cases generally invol
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teenager’s schoolmates gape in ad
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Review Question 3. Note how Judge W
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cash in ten days,” it must be dee
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“Before a contract can be complet
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for the purpose of doing the work a
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accidentally being bound to unwante
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Here, we have a counter-offer. The
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parties.” Metropolitan Sports Fac
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court. See Minn. R. Civ. App. P. 10
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Thus, it clearly appears that the d
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with distribution. The parties ulti
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all essential terms. See, e.g., Sit
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Enclosed, we beg to hand you contra
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to call for an acceptance particula
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than identify himself, Dealer says,
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offer.” More often, they nod, sha
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The next attack will be my end, I a
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from all the facts and circumstance
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Notice to the agent, within the sco
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2. Written approval by United State
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contrary in the offer, the acceptan
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HOBBS v. MASSASOIT WHIP CO. Supreme
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stranger may impose a duty upon ano
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contract in this case come into exi
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An Introduction to CONSIDERATION Th
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and you are free to change your min
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Ridge Runner that she lacked the pr
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We conclude that the territory enco
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He further answered, that it was gi
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This action was brought upon an all
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consideration does in fact benefit
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Review Question 5. The promisors in
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The distinction between such a cond
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Vincent refuses. Fritz eventually s
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enefit was money received, the subs
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they stopped work in a body, and de
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supervise this building. Under the
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The day before trial the plaintiffs
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General rules of law established fo
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For the foregoing reasons we are al
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WEBB v. McGOWIN Court of Appeals of
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100 P. 631 (Kan. 1909); Edson v. Po
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McGowin’s adult child, would that
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efuses, saying, “We had a deal.
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Giles had no right to use it. But t
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BLICESTER: That’s crazy. JUDGE: N
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A. She took the piece of paper and
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According to the undisputed proof,
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We recognize that upon different fa
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was discussed with compensation to
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CONRAD v. FIELDS Court of Appeals o
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her job at Qwest and enroll in law
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Seth Wyman’s estranged son Levi i
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An Introduction to ALTERNATIVE REGI
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consistency. Some provisions have p
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TOUSLEY-BIXLER CONSTRUCTION CO. v.
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of goods within this Article whethe
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differently from other contracts? F
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nine units was delivered and paid f
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Page 198 and 199: COMMERCIAL CODE § 2-206:12 (3D ED.
Page 200 and 201: face of which appears the notation,
Page 202 and 203: Problem 10.3 On June 1, the sales d
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Page 210 and 211: we also note that Best Bolt’s vic
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Page 214 and 215: This purchase order represents the
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Page 218 and 219: FLENDER CORPORATION v. TIPPINS INTE
Page 220 and 221: well that the reservations each par
Page 222 and 223: The alternate approach, recognized
Page 224 and 225: (a) Is Ivy League University a “m
Page 226 and 227: and ratified a treaty called the Un
Page 228 and 229: (2) The fact that the parties have
Page 230 and 231: e. Manufacturer in Texas contracts
Page 232 and 233: an authorized distributor of Defend
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Page 236 and 237: Treaty Text Note. Read Articles 18,
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Page 240 and 241: perform a substantial part of his o
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Page 248 and 249: which extended even to being able t
Page 250 and 251: Dickerson, 72 Ala. 318 (1882). In t
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Page 256 and 257: ORTELERE v. TEACHERS’ RETIREMENT
Page 258 and 259: medicine, this physician “judged
Page 260 and 261: The avoidance of duties under an ag
Page 262 and 263: 7. What is my total service credit?
Page 264 and 265: Review Question 5. In McGovern v. C
Page 266 and 267: will pay the full listed price of $
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Page 270 and 271: Y Contracts that cannot be performe
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Page 276 and 277: contracts. What is the real purpose
Page 278 and 279: At the ensuing trial, defendant den
Page 280 and 281: There may be cases in which it woul
Page 282 and 283: professional. Things were really ge
Page 284 and 285: GUENTHER v. AMER-TEX CONSTRUCTION C
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Page 288 and 289: Problem 14.3 Van der Rohe USA, Inc.
Page 290 and 291: sold, the terms of the sale, the na
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The first issue is whether the labe
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some point or on some occasion it w
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As a matter of law, based on the fa
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or, more particularly, in cases suc
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“deprived Loral of its free will.
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As to mistake, the amended complain
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In Weger v. Rocha, 32 P.2d 417 (Cal
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I had brought back the topaz, and h
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May 5, 1886, plaintiff went out to
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arren cow is substantially a differ
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prior to the sale was Buyer aware t
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Against Public Policy. In many situ
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HANKS v. POWDER RIDGE RESTAURANT CO
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interest adversely, and identified
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illogical, in these circumstances,
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_____________________ Review Questi
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construed against the employer). Th
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acquired by virtue of effort and ex
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_____________________ Review Questi
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Mere inadequacy of consideration wi
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District of Columbia Court of Appea
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In determining reasonableness or fa
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Problems Problem 16.1 The Californi
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position to all of his patients (or
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An Introduction to TERMS AND INTERP
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contract itself. Thus written docum
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consideration of the simultaneous a
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the contract on the basis of which
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The subject-matter of the written c
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understandings or agreements.” 3
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little time to compose it . . . . A
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expressed in the writing. KN Energy
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Article 8 UNITED NATIONS CONVENTION
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contracts or that parol evidence re
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percent (50%) protein, as tested on
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get the deal they intended, and the
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Cases and Materials W.W.W. ASSOCIAT
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do so because of some identified am
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The truth is that whatever virtue a
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Absent strong public policy conside
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FRIGALIMENT IMPORTING CO. v. B.N.S.
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persuasive if sustained by the reco
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and there is force in defendant’s
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RANDOM HOUSE, INC. v. ROSETTA BOOKS
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language of the grant was broad, en
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F.3d at 1095, would conclude that t
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When Hurricane Rubin strikes the lo
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the business. The contract was sile
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party argues ambiguity), the loan f
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accordance with the terms of this c
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of the advance payments, or the num
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imbibe alcoholic beverages and stil
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significant satisfied requirement o
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TOWN OF FAIRFIELD v. D’ADDARIO Su
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damages. The notice of Kant’s act
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who had turned down lucrative offer
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were to suggest some express provis
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notice of ninety days. The plaintif
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Review Question 2. What was Judge C
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exercising discretion under the con
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NANAKULI PAVING AND ROCK CO. v. SHE
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§ 490:1-102(2)(b). The drafters of
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trade existed in Hawaii in 1969 and
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1978) (unpublished opinion) (holdin
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Plaintiff does not contest its stat
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product. The concept of “merchant
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discovery by defendant of the defec
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Unfortunately, Plumber’s work doe
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An Introduction to PERFORMANCE AND
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doctrine, so that close-enough perf
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the number of joists used in all th
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JACOB & YOUNGS, INC. v. KENT Court
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transgressor must accept the penalt
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was for requiring this kind of pipe
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The evidence is undisputed that the
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eing a new roof. We are not prepare
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This case is simple if the perfect
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yacht remained located at SIYS’ f
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happens by mere operation of law; s
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Problems Problem 21.1 Actor is a ve
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processor for the same price as the
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venue. Under Paradine v. Jane, this
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At trial, the court allowed IH’s
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In order for a supervening event to
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The court interpreted this passage
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economic circumstances sufficiently
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A cancellation order given by her o
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e entitled to judgment. They certai
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performance is excused when unfores
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caused to communications and transp
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Following the closing of the above-
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performance. 407 East 61st Garage,
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Canal, across the Mediterranean thr
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An Introduction to REMEDIES We now
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multiplication and (very rarely) di
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It was also erroneous and misleadin
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and we turn to the question of whet
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testified that the total gas, oil,
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BRANDEIS MACHINERY & SUPPLY CO., LL
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PEEVYHOUSE v. GARLAND COAL & MINING
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explanation as to why a measure of
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work; however, where the contract p
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clear and unambiguous and the parti
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pool contractor to finish the pool
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Nevertheless, the English courts he
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perform the work. As Lee failed to
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UNITED STATES ex rel. COASTAL STEEL
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emanded for those findings. When th
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the substance is that the plaintiff
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the agreement would continue on a m
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Review Question 7. Note the paralle
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product that would be fully functio
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car to the Country Music Museum for
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Restatement (Second) of Contracts s
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Harrahs brings the instant action a
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contest payment for same if constru
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This is in accord with the earlier
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Defendant’s sole defense to this
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particular. Certainly, none of the
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sustained where, from the nature of
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ut will be happy to try to help in
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the full $7,500 price of admission
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Problem 25.2 Mina is a second-year
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other types of specific performance
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imposed as the remedy for breach of
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certainty, then S&M should be compe
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There is simply no requirement in t
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“other proper circumstances” th
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fence plaintiff erected to discoura
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y no means certain, at the time of
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cannot use that method of self-help
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contract price of $533,000) that La
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teacher resigned at the beginning,
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eaching its lease with Perez by the
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An Introduction to CONTRACT NONPART
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fraud, mistake, and illegality. If
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may be the diversity of opinion els
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given him by the will for a particu
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since Lawrence v. Fox in a desire t
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workers’ compensation benefits),
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to divide a lawyer’s loyalty betw
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Review Question 9. Lawyers do many
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Problems Problem 27.1 Hank and Hild
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interested in jumping into such a b
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limitations barred the claims. She
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assigned their claim to recover the
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application to this contract as it
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A breach of contract has been defin
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moved to Arizona and had no further
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It is evident from the express lang
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contracted to assume, and the assig
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March 1 for the conveyance of Purpl
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