American Contract Law for a Global Age, 2017a

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no stated public policy on surrogacy. There is no reason why this court should not order specific performance. Specific performance is a discretionary remedy. It should only be exercised in accordance with principles of equity. In each case the evaluation of the equities must be left to the judgment and good conscience of the trial court. Stehr v. Sawyer, 40 N.J. 352 (1963). This means that the court must adjudge and weigh whether the parties’ conduct was fair and reasonable. Will the relief The judgment, contained in the numbered item list at this point, is the substantive final result of the trial court’s reasoning stated up until this point. A final judgment is often the first point at which a trial court’s decision may be appealed to a higher court based on specific alleged errors. afforded by the remedy be unreasonable? If specific performance is ordered, the result will be just what the parties bargained for and the contract contemplated. Mr. Stern wanted progeny, a child. Mrs. Whitehead wanted to give the child she would bear to a childless couple. His sperm fertilized her egg. A child was born. Until the child was placed in his home he never knew the stress and bliss, the responsibilities and rewards of a child. The Whiteheads have two children. They did not want any more. Theirs was the perfect family, Mr. Whitehead testified. The Whiteheads agreed that Mr. Whitehead should get a vasectomy to prevent further conception. It is suggested that Mrs. Whitehead wanted a baby, now that she is older than when her first two children were born, to experience and fulfill herself again as a woman. She found the opportunity in a newspaper advertisement. She received her fulfillment. Mr. Stern did not. At this point the court would enter its order for specific performance, but an additional inquiry is necessary. Since we here deal with a human life of only one year, since we treat with, as the guardian ad litem has said “the most precious and unique thing on this earth, a small vulnerable and lovable child,” inquiry must be made to determine if the result of such an order for specific performance would be in the child’s best interest. This court holds that whether there will be specific performance of this surrogacy contract depends on whether doing so is in the child’s best interest. . . . [The court extensively reviews the evidence and concludes that the child’s best interest is to be with the Sterns.] This court enters judgment in favor of plaintiffs as follows: (1) The surrogate parenting agreement of February 6, 1985, will be specifically enforced. (2) The prior order of the court giving temporary custody to Mr. Stern is herewith made permanent. Prior orders of visitation are vacated. (3) The parental rights of defendant Mary Beth Whitehead are terminated. (4) Mr. Stern is formally adjudged the father of Melissa Stern. (5) The New Jersey Department of Health, Bureau of Vital Statistics and its ancillary and/or subordinate state or county agencies are directed to amend all records of birth to reflect the paternity and name of the child to be Melissa Stern. ______________________________________________________________________________ 26 CHAPTER I: INTRODUCTION TO CONTRACT LAW
(6) Defendants, Mary Beth Whitehead, Richard Whitehead, Joseph Messer and Catherine Messer, their relatives, friends, agents, servants, employees or any person acting for and/or on their behalf are restrained from interfering with the parental and custodial rights of plaintiff, his wife or their agents, servants, employees or any other persons acting for and/or on their behalf. (7) As heretofore ordered unpleaded claims for money damages are reserved to plaintiffs. (8) Counsel for plaintiffs will submit a certification of services pursuant to R. 4:42-9 in support of their application for counsel fees. (9) The court will enter judgment against defendants on all prayers for relief in the first and second counts of their counterclaim. (10) The guardian ad litem shall file a certification of services pursuant to R 4:42-9 to support her application for fees. She shall also submit to the court the statements of fees from her experts for allocation by the court. (11) The sum of $ 10,000, being held by the Clerk of the Superior Court, shall be the property of Mary Beth Whitehead. (12) The guardian ad litem shall be discharged herewith except for the purposes of appeal. ______________________ Review Question 1. The trial court states that it “was further told by the parties that they all understood their obligations under the contract.” Why can’t we just end the inquiry there? What, based on this opinion, do you now understand to be the elements of an enforceable contract? Review Question 2. The court notes that “Mr. and Mrs. Whitehead had consulted with an attorney” when they signed the 1984 agreement with a prior couple. Why does that matter? Can’t parties enter into contracts without attorneys being involved? What value—if any—can attorneys add to the process of contracting? Review Question 3. The court observes that the “remedies that exist for breach of a contract are an award of money damages or specific enforcement of the terms of the contract.” Which type of remedy does the trial court enforce and why? ______________________ ______________________________________________________________________________ UNIT 2: THINKING LIKE A CONTRACT LITIGATOR 27
Page 2 and 3: ___________________________________
Page 4 and 5: Notices This is the first edition o
Page 6 and 7: About CALI eLangdell Press The Cent
Page 8 and 9: Unit 19: Conditions ...............
Page 10 and 11: ___________________________________
Page 12 and 13: hired Corleone family thugs 4 or an
Page 14 and 15: described herein, and agrees to fre
Page 16 and 17: 6. MARY BETH WHITEHEAD, Surrogate,
Page 18 and 19: Surrogate and WILLIAM STERN, Natura
Page 20 and 21: 10. Consider paragraph 5. Should th
Page 22 and 23: The two court opinions that follow
Page 24 and 25: Venue Venue is a concept of place
Page 26 and 27: Their first child, Ryan, was born o
Page 28 and 29: Subsequent to entering into the sur
Page 30 and 31: The sixth and final argument sugges
Page 32 and 33: It is argued by amicus that the $ 1
Page 36 and 37: IN RE BABY M Supreme Court of New J
Page 38 and 39: adoption; the sole purpose of the c
Page 40 and 41: The surrogacy contract violates the
Page 42 and 43: Problems Donald Donor is a single,
Page 44 and 45: An Introduction to CONTRACT FORMATI
Page 46 and 47: particular obligation? In Europe, i
Page 48 and 49: The evidence is undisputed that pla
Page 50 and 51: After some negotiation a price of $
Page 52 and 53: The answer of A.H. Zehmer admitted
Page 54 and 55: no, that is beer and liquor talking
Page 56 and 57: on the Zehmers as well as on himsel
Page 58 and 59: offer and of the reward and its sub
Page 60 and 61: your professor. You will come acros
Page 62 and 63: car title you’re holding there. I
Page 64 and 65: In the modern world, the question o
Page 66 and 67: pair of sunglasses. The drumroll th
Page 68 and 69: This letter was apparently sent onw
Page 70 and 71: Because these cases generally invol
Page 72 and 73: teenager’s schoolmates gape in ad
Page 74 and 75: Review Question 3. Note how Judge W
Page 76 and 77: cash in ten days,” it must be dee
Page 78 and 79: “Before a contract can be complet
Page 80 and 81: for the purpose of doing the work a
Page 82 and 83: 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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___________________________________
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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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think they have struck a deal.” Q
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more sense for contract formation t
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COMMERCIAL CODE § 2-206:12 (3D ED.
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face of which appears the notation,
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Problem 10.3 On June 1, the sales d
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except for personal use. If, howeve
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[T]he plain reading of the statute
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not lubricated in any way. Without
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we also note that Best Bolt’s vic
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(c) are fit for the ordinary purpos
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This purchase order represents the
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provision would cause no “surpris
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FLENDER CORPORATION v. TIPPINS INTE
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well that the reservations each par
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The alternate approach, recognized
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(a) Is Ivy League University a “m
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and ratified a treaty called the Un
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(2) The fact that the parties have
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e. Manufacturer in Texas contracts
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an authorized distributor of Defend
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undisputed that each of these alleg
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Treaty Text Note. Read Articles 18,
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*4 (S.D. Ohio Mar. 26, 2009); see a
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perform a substantial part of his o
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shall be settled by binding arbitra
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An Introduction to CONTRACT DEFENSE
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which extended even to being able t
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Dickerson, 72 Ala. 318 (1882). In t
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loss from the transaction, includin
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this definition. Whether other area
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ORTELERE v. TEACHERS’ RETIREMENT
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medicine, this physician “judged
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The avoidance of duties under an ag
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7. What is my total service credit?
Page 264 and 265:
Review Question 5. In McGovern v. C
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will pay the full listed price of $
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endeavoured to be upheld by Perjury
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Y Contracts that cannot be performe
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you think the consideration doctrin
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NICKELS, J., dissenting. I disagree
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contracts. What is the real purpose
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At the ensuing trial, defendant den
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There may be cases in which it woul
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professional. Things were really ge
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GUENTHER v. AMER-TEX CONSTRUCTION C
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(b) Subsection (a) of this section
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Problem 14.3 Van der Rohe USA, Inc.
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sold, the terms of the sale, the na
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the judgment of a vulnerable party.
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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
Page 342 and 343:
An Introduction to TERMS AND INTERP
Page 344 and 345:
___________________________________
Page 346 and 347:
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
Page 388 and 389:
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
Page 394 and 395:
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
Page 402 and 403:
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
Page 412 and 413:
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
Page 434 and 435:
___________________________________
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doctrine, so that close-enough perf
Page 438 and 439:
the number of joists used in all th
Page 440 and 441:
JACOB & YOUNGS, INC. v. KENT Court
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transgressor must accept the penalt
Page 444 and 445:
was for requiring this kind of pipe
Page 446 and 447:
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
Page 462 and 463:
At trial, the court allowed IH’s
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In order for a supervening event to
Page 466 and 467:
The court interpreted this passage
Page 468 and 469:
economic circumstances sufficiently
Page 470 and 471:
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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___________________________________
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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
Page 494 and 495:
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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___________________________________
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Nevertheless, the English courts he
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perform the work. As Lee failed to
Page 514 and 515:
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
Page 522 and 523:
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
Page 528 and 529:
___________________________________
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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
Page 538 and 539:
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
Page 548 and 549:
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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___________________________________
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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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