American Contract Law for a Global Age, 2017a

[The court concludes that no false statements were made.]
There is no fraud, legal or equitable, that would allow Mr. and Mrs. Whitehead
to rescind their contract.
It is further argued that the contract is illusory; that is to say, that only one of
the parties has an obligation, the other only benefits, that there is no mutuality of
obligation. This does not mean equality of obligation. See Friedmann v. Tappan
Development Corp., 22 N.J. 523 (1956); SAMUEL WILLISTON, THE LAW OF CONTRACTS,
§ 105A at 421. Such is not the case. Mr. Stern gave his sperm; Mrs. Whitehead gave
her egg. Together the miracle of a new life was obtained. Mrs. Whitehead argues Mr.
Stern does not have to take the child under certain circumstances which have not
happened and are not before this court. She is arguing, hypothetically, “if.” It is
suggested again that this court is dealing with the facts before it. Even assuming
arguendo, that the court were to address the issue of the illusory contract as stated
by defendants, the conclusion would be the same. The Whiteheads argue that Mr.
Stern does not have to take the baby if it is imperfect; but the fact is the contract does
provide that there is an obligation and responsibility, that there is a life long
responsibility by Mr. Stern for the child’s support and welfare. The contract is not
illusory.
[The court analyzes the question whether there is a right to assisted
reproduction under the U.S. Constitution.]
For the foregoing reasons, this court concludes and holds that the surrogateparenting
agreement is a valid and enforceable contract pursuant to the laws of New
Jersey. . . . This court further finds that Mrs. Whitehead has breached her contract
in two ways: (1) by failing to surrender to Mr. Stern the child born to her and Mr.
Stern and (2) by failing to renounce her parental rights to that child.
What are the remedies available to the plaintiff? The remedies that exist for
breach of a contract are an award of money damages or specific enforcement of the
terms of the contract. There are, of course, other remedies but they are neither
relevant nor applicable here. Monetary damages cannot possibly compensate plaintiff
for the loss of his bargain because of defendant’s breach. The singular subject of the
contract further mitigates against an award of damages.
Plaintiff acknowledges that before the remedy of specific performance can be
used it must be shown that the contract was entered into with understanding and
free will. Dr. Vetter, the Whitehead psychiatric expert, testified that the Whiteheads
were competent when the contract was signed and they understood the terms. It must
also be shown that the contract was entered in good faith, without fraud and is not
unenforceable because of public policy. By reason of the
findings heretofore made, to wit: there is no evidence of
fraud and the parties voluntarily entered the agreement,
indeed they were all very anxious to do so, such contracts
are not contrary to public policy. Indeed New Jersey has
Remedies will be another
significant issue in our study of
contract law. Legal rights arising
from a contract breach are not
terribly useful unless the law
provides a remedy for the
breach.
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UNIT 2: THINKING LIKE A CONTRACT LITIGATOR 25