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Assignment for the thirteenth week of class. Remember that we are meeting on Monday from 11:10-12:30, instead of on Wednesday at 10:40.
- On Monday, November 24th, after finishing leftover material, we will reconsider the duty of good faith, as it applies to the problem of changed circumstances. You should read pp. 886–893 and 900-905, together with the last case in the coursepack, Parev Products v. I. Rokeach and Sons. We will focus in discussion on Parev Products and on Bloor v. Falstaff. In reading these cases, consider in particular whether more effort at the drafting stage could have prevented the dispute.
- On Tuesday, November 25th, we will take up the doctrine of substantial performance, which governs whether a party who has breached a contractual duty retains the right to enforce the contract against its counterparty, and the associated doctrine of material breach, which governs an aggrieved party's right to rescind the contract. On substantial performance, you should read pp. 915-927, focusing on Jacob & Youngs v. Kent. On material breach, you should read pp. 975-979 and 982-993, focusing on K&G Construction v Harris.
- Enjoy your holiday weekend. Our last class meeting, on Tuesday, December 2, will be devoted to a review session; no new material will be assigned.
Assignment for the twelfth week of class. This is our last four-session week. Remember that if you want thorough and prompt feedback on the second optional writing assignment, you should submit it by Friday the 21st.
- On Tuesday, November 18th, after finishing leftover material, we will turn to a series of doctrines dealing with misunderstandings and mistakes in contract formation. You should read pp. 714-732, focusing on Donovan v. RRL.
- On Wednesday the 19th, we will continue our discussion of the mistake doctrine. You should read pp. 732-750, focusing with special care on the classic case of Sherwood v. Walker, to which I may have referred once or twice before over the course of the semester.
- On Thursday the 20th, after finishing leftover material, we will discuss the extent to which there is a duty to disclose information before contracting. You should read pp. 750-764, focusing on Hill v. Jones and on Laidlaw v. Organ (the latter of which is discussed in the note at p. 754). Note: in evaluating Eisenberg's analysis of the duty to disclose, consider what position he would take on the problem of insider trading by corporate employees.
- On Friday the 21st, we will turn to doctrines that govern excuse for change of circumstance, including impossibility, impracticability, and frustration of purpose. You should read pp. 765-779; class discussion will focus on Taylor v Caldwell and on Transatlantic Financing v. U.S.
Assignment for the eleventh week of class. We'll meet four times this week and next, to make up for the class meetings lost due to Thanksgiving break.
- On Tuesday, November 11th, we will spend the first part of class on Hoffman v. Red Owl, which you should reread. In the second part of class, we will turn to the parol evidence rule, which governs the interpretation of oral statements that precede or supplement a written agreement. Please read pp. 584-599 and 615-625, focusing on Mitchell v. Lath and Masterson v. Sine. The material from 615-625 may be treated as general background.
- On Wednesday the 12th, after finishing leftover material on parol evidence, we will consider how the interpretative methods we have studied up to this point apply in the setting of standardized form contracts. Here we will go out of order in the casebook, jumping ahead to chapter 17, and then work our way backwards. Accordingly, you should read pp. 692-712. You need not focus on the factual details of the very long Darner Motors case at p. 699, but instead treat it as important background material. Our class discussion will instead focus on Sardo v Fidelity & Deposit and on hypotheticals presented in class.
- On Thursday the 13th, after finishing leftover material, we will discuss the so-called "battle of the forms," in which both parties to an agreement use standardized documents in their communications. This is a famously abstruse topic, complicated by the notoriously ill-drafted UCC 2-207, of which we will only scratch the surface. Here's what I recommend. First, go back and have another look at Ardente v Horan (p. 430) and Polaroid Corp v. Rollins Environmental Services (p. 475), two common-law cases that address the same functional problem as 2-207. Then, read pp. 641-657, focusing on Gardner Zemke Co. v Dunham Bush. Do not worry about mastering the details of 2-207; I will lecture on it.
- On Friday the 14th, we will finish up our discussion of form contracts. You should read pp. 664-686. Our discussion will focus on ProCD v. Zeidenberg and Specht v. Netscape.
Assignment for the tenth week of class. We devote this week to the topic of contract formation, often called offer and acceptance.
- On Wednesday, Nov. 5th,after finishing leftover material, we will further explore what actions (or inactions) may count as a binding acceptance. You should read pp. 456-469, 475-478, and 491-503. Our classroom discussion will focus on Carlill v. Carbolic Smoke Ball and Vogt v. Madden.
- On Thursday, Nov. 6th, after finishing leftover material, turn to the topic of implied contracts — i.e., contracts that are formed without any explicit offer or acceptance. You should read pp. 508-11 and 516-535. Our class discussion will focus on the latter part of the Wagenseller case [pp. 525 et seq.], dealing with the legal effect of employee handbooks. The coursepack excerpt from Klein's article on unfair contract terms is optional reading.
- On Friday, Nov. 7th,, we will turn to the topic of preliminary negotiations and their legal consequences. Here you should read pp. 557-583, focusing on TIAA v. Tribune Co. and Hoffman v. Red Owl. You should take special care to read Hoffman carefully; we will use it as the basis for an advocacy exercise.
Assignment for the ninth week of class. We devote this week to the topic of contract formation, often called offer and acceptance.
- On Wednesday, Oct. 29th, after finishing leftover material, we will discuss basic issues in contract formation, including the definition of offer and of acceptance. You should read pp. 413-429; our discussion will focus on the Lonergan and Lefkowitz cases.
- On Thursday, Oct. 30th, we will continue with the topic of offer and acceptance, discussing the effects of revocations and counteroffers. You should read pp. 430-448, focusing on Ardente v. Horan and Dickinson v. Dodds. In studying Ardente, consider what negotiating advice you might have given to the parties. In studying Dickinson, consider how the case would or should come out under Restatement §45.
- On Friday, Oct. 31st,, we will consider how the revocation doctrine plays out in a particular transactional context — that of contracts awarded by competitive bidding. You should read pp. 448-455 and 478-488, together with the coursepack case of Baird v. Gimbel Bros., and the coursepack excerpt from my article, "When Should an Offer Stick?" In class discussion, we will compare Judge Hand's opinion in Baird with Justice Traynor's opinion in Drennan v. Star Paving.
Assignment for the eighth week of class. This week we complete our discussion of remedies for breach and turn to the next major unit of the course, which deals with issues of interpretation and assent. the interpretation of contracts.
- On Tuesday, Oct. 21st, we'll reconsider the law of contract damages from a broader normative perspective, in a special session led by visiting professor Charles Fried, who has served as Solicitor General of the United States and Associate Justice of the Massachusetts Supreme Judicial Court, and who is currently Beneficial Professor of Law at Harvard Law School. Prof. Fried's 1980 book, Contract as Promise, is available on library reserve for anyone who wishes to look at it, but for the assigned reading, we have chosen a selection from a shorter piece: pages 719-739 (Sections II and III) of Seana Shiffrin's The Divergence Of Contract And Promise, 120 Harv. L. Rev. 708 (2007), available online at http://www.harvardlawreview.org/issues/120/jan07/shiffrin.shtml. Shiffrin's article is philosophically dense and you should not worry if you do not follow all of her arguments, but just read it for what you can get out of it.
- On Wednesday, Oct. 22nd, after finishing any leftover material, we will discuss the reliance and restitution measures of damages. You should read pp. 341-355, and should also work through problem 8 in from the coursepack. Our discussion will focus on Security Stove v. American Rys. Express and on problem 8. In preparing to discuss Problem 8, you should also consider what practical advice you would give to a contractor in such a situation.
- On Thursday, Oct. 23rd, we will wrap up our unit on contract remedies by discussing how the restitution measure works when it is the breaching party who seeks it. You should read pp. 355-365. The focus of discussion will be on Problem 9 in the coursepack, and on Kutzin v. Pirnie.
- On Friday, Oct. 24th, we will take up some basic issues arising in the interpretation of contracts. You should read pp. 368–384 and 393-405 in the casebook, together with the coursepack reading by Peter Tiersma. Our discussion, which will continue into Thursdays class, will focus on Lucy v. Zehmer, Raffles v. Wichelhaus, and Frigaliment Importing Co. v. BNS Int'l Sales.
Assignment for the seventh week of class. Note that this week, we will meet four times, making up the class we missed the week of the Legal Methods exam. We'll continue our discussion of damages for breach of contract. Additionally, to assist you in reviewing the material we have covered so far and practicing the skills of exam writing, I've posted a writing assignment. The assignment is not required, but both the TA's and I strongly encourage you to complete it. It should be submitted via e-mail by the end of the day on Friday the 17th.
- On Tuesday, Oct. 14th, we'll complete our discussion of UCC 2-708, for which you should review material assigned for last Friday's class. Afterwards, we'll turn to the issue of mitigation of damages, for which you should read pp. 266-279, along with Goetz and Scott's coursepack reading, "The Mitigation Principle." Our discussion will focus on Rockingham County v. Luten Bridge Co. and Parker v. Twentieth Century Fox.
- On Wednesday, Oct. 15th, after finishing leftover material, we will turn to the issue of consequential damages. You should read pp. 279-292, along with the coursepack readings by Ayres and Gertner [12] and Quillen [13]. We will focus in class discussion on the classic case of Hadley v. Baxendale. We will not discuss pp. 292-302 in class; you should instead treat it as background reading.
- On Thursday, Oct. 16th, after finishing any leftover material, we will discuss how parties might contract around the usual rules of damages in their initial agreement. On this topic, you should read pp. 308-323; we will focus in class discussion on Wasserman's Inc. v. Middletown. In reading the Wasserman's case, you should ask yourself why the parties designed the liquidated damages clause the way they did.
- On Friday, Oct. 17th, after finishing any leftover material, we will discuss the equitable remedy of specific performance. You should read pp. 323–339, along with the coursepack case of Lumley v. Wagner and the coursepack excerpt by Alan Schwartz.
Assignment for the sixth week of class. Note that this week, we will meet on Tuesday, and not on Thursday.
- On Tuesday, Oct. 7th, we'll continue discussing basic principles of contract damages. You should reread the material relating to Hawkins v. McGee, and then read new material up through pp. 236. Our discussion will focus on Hawkins, on problem 2 in the coursepack (which you may wish to consider ahead of time), and to the extent we have time, on Peevyhouse v. Garland Coal.
- On Wednesday, Oct. 8th, we'll finish our discussion of the Peevyhouse case, and then begin discussing damages in contracts for the sale of goods under the UCC. You should read pp. 241-247 (excluding the Delchi Carrier case that follows), as well as the UCC sections cited on p. 242, focusing most closely on §§2-712 and 2-713, which you should read carefully, attending to the statutory language. You should also work through problem 3 in the supplementary coursepack (Brown v. Acme), which we will focus on in class discussion.
- On Friday, Oct. 10th, after finishing the UCC's rules governing breach by sellers of goods, we will turn to the analogous rules governing breach by buyers. You should read pp. 260-266 (Neri v Retail Marine) and look at the UCC sections cited at p. 254, focusing on §2-708. You should also work through coursepack problem 4 (the three Subarus).
Assignment for the fifth week of class. Note that this is another short week, since we will not meet on Wednesday due to Rosh Hashana.
- On Thursday, Oct. 2nd, we'll turn to the question of what effect, if any, the rules that courts apply to contractual dealings might have on those dealings in the real world. In this regard, you should read and be prepared to discuss the coursepack readings by Stewart Macauley, Lisa Bernstein, and David Charny. As you read these materials, consider [1] what means are at parties' disposal to enforce obligations that the public courts will not enforce, and [2] how the existence of non-legal enforcement options should bear on the availability of legal enforcement.
- On Friday, Oct. 3rd, , we'll begin the next major unit of the course, dealing with legal remedies for breach of contract. You should read pp. 190-216, as well as the short coursepack excerpt by Oliver Wendell Holmes. Our discussion will focus on the classic case of Hawkins v. McGee.
Assignment for the fourth week of class. Note that this is a short week. Since you have the Legal Methods study day on Thursday and exam on Friday, we'll make use of our Tuesday slot and meet on Tuesday and Wednesday only. Remember that my regular office hours are Mondays from 2-4 and I invite you to stop by and visit.
- On Tuesday, Sept. 23rd, we'll complete our discussion of modification and then move on to waiver. You should read pp. 117-127 and then 143-150, focusing on UCC §2-209 and on Clark v. West. As you study these materials, you should try to identify the main functional differences between modification and waiver. Consider also whether the concerns that underlay the specific clause in question in Clark v West could have been better handled another way.
Additionally, in connection with Clark v West, you may be interested to know that George Washington once entered into a contract with his gardener that allowed the gardener to be drunk on eight [or possibly ten, depending on how we read the contract] specified days a year. On other days Washington promised to furnish two drinks a day. The contract can be found online in the University of Virginia Library's electronic collection of Washington's writings.
- On Wednesday, Sept. 24th, , we'll discuss the casebook materials on the use of contract in marital settings and with regard to family formation. You should read pp. 163-173 and 183-187 in the casebook, focusing on In re Marriage of Witten. In connection with these materials, consider whether public policy should encourage, discourage, or remain neutral with regard to the use of contracts in such settings.
For further background reading in connection with these materials, you may be interested in Rebecca Mead's article, "Eggs for Sale," which I've posted on the group discussion page. This article, which originally appeared in the New Yorker magazine in August 1999, describes the commercial market in human eggs for purposes of in vitro fertilization, and focuses on one particular professional egg donor, a then-second-year law student at Columbia.
Assignment for the third week of class. Now that we've identified the major elements underlying contractual liability, we turn to a variety of additional limits on contractual liability. The major theme of the week will be how the consideration doctrine has been used over time to regulate a variety of problems that arise in the process of contract negotiation and performance. You will notice a significant increase in the number of pages assigned, but do not be alarmed, as much of it, especially the coursepack excerpts, can be treated as background material. We will continue to focus in class discussion on two or three key cases for each day.
- On Wednesday, Sept. 17th, we'll continue our discussion of the unconscionability doctrine, completing the material originally assigned for last Friday, including Williams v. Walker-Thomas. Then, we'll turn to the doctrine of mutuality, which, although traditionally categorized as an elaboration of the consideration doctrine, responds to a rather different set of functional problems than those we have so far discussed. To get a sense of these problems, you should begin with the Goetz and Scott coursepack reading, "Principles of Relational Contracts." Then read pp. 86-96, focusing on Wickham & Burton Coal. As you read these cases, ask yourself why the parties originally found it in their interests to grant one party to the contract such wide discretion to specify their bargain, and what risks they took in doing so.
- On Thursday, Sept. 18th, in the first half of class, we'll continue with mutuality. You should read pp. 96-106, focusing on Wood v. Lucy, Lady Duff-Gordon. In the second half of class, we'll turn to the special problems raised by contract modification -- i.e, by contracts that amend existing contracts. These problems are extremely important in practice and as you will see there are a number of special doctrinal tools that have evolved to deal with them. Here, you should read pp. 107-117, focusing on Lingenfelder v. Wainwright Brewery.
- On Friday, Sept. 19th, we'll continue with the problem of modification, and then turn to the doctrine of waiver. You should read pp. 117-127 and then 143-150, focusing on UCC §2-209 and on Clark v. West. As you study these materials, you should try to identify the main functional differences between modification and waiver. Consider also whether the concerns that underlay the specific clause in question in Clark v West could have been better handled another way.
Assignment for the second week of class. This week we will continue our introductory discussion of the motives underlying contractual liability. You should make sure to bring your statutory supplement to class, since we will be discussing the text of various sections of the Restatement of Contracts.
- On Wednesday, Sept. 10th, we'll continue discussing the role of reliance in justifying contractual liability, and then turn to the role of exchange. After reviewing unfinished material from last week, you should read pp. 47-63, including the Restatement sections cited on p. 51. In class discussion, we will focus on Hamer v. Sidway and then Batsakis v. Demotsis. Be prepared to discuss whether Batsakis was decided correctly, as well as what help (if any) the duress doctine affords to persons in difficult bargaining positions such as that of the defendant in that case. [As additional background reading, you may wish to take a look at John Stossel's 2005 op-ed essay, "In Praise Of Price Gouging."]
- On Thursday, Sept. 11th, after finishing leftover material, we'll take up the principle of restitution, under which liability can derive from benefit received, apart from any bargain or reliance. You should read and be prepared to discuss pp. 504-507 and 151-162. Consider particularly, as you read Mills v. Wyman and Webb v. McGowan, whether their outcomes can be squared with one another.
- On Friday, Sept. 12th, we'll turn to the doctrine of unconscionability. You should read pp. 63-86, together with the coursepack excerpts by Richard Epstein and Duncan Kennedy. The focus of discussion will be on Williams v Walker-Thomas. In studying these materials, consider the following question: if a retail client selling to low-income consumers asked you what contract terms it could use and what price it could charge without falling afoul of the unconscionability doctrine, what advice would you give?
Assignment for the first week of class. The required texts are Fuller and Eisenberg, Basic Contract Law, 8th ed. unabridged (WestGroup: 2006; do not buy the concise edition), and Burton and Eisenberg, Contract Law: Selected Source Materials (WestGroup, 2008 edition, any edition after 2003 is also acceptable). There is also a short coursepack of supplementary readings, available in hard copy from University Printing Services (located between the law school and the School of International and Public Affairs) and also available online to registered students only.
The general topic for the week is the justification for state enforcement of promises — or framed alternatively as a question: which promises should amount to legally enforceable contracts? In pursuing this question, we will proceed through the reading assignments as listed on the syllabus, but our discussions will spill over the boundaries of the individual class periods.
For the first class meeting on Wednesday, September 3, please read carefully pp. 1–13 in the casebook, and be prepared to discuss the first case, Dougherty v. Salt. In studying this case, consider what differences there might be, if any, between the account of the underlying event as described in Judge Cardozo's opinion, and the way in which it actually occurred in fact. You should also read the first item in the coursepack: the one-page excerpt from Morris Cohen's The Basis of Contract. Please arrive promptly so that we may begin class at 10:40 am sharp; and please bring your casebook with you.
On Thursday, September 4th, we'll discuss the role of formality in justifying contractual liability. The assigned reading is pages 13-23 in the Fuller and Eisenberg casebook, together with the coursepack excerpt by Richard Craswell. Our class discussion will take up where we left off with Dougherty, and then turn to the case of Schnell v. Nell. In studying these materials, consider the following question: when, if at all, should it be sufficient to justify legal enforcement of an obligation that the promisor intended the obligation seriously and memorialized it using a recognized legal formality?
On Friday, September 5th, after finishing any leftover material, we'll discuss the role of reliance in justifying contractual liability. You should read pp. 23-45 in the casebook, omiting Stout v. Bacardi. After briefly touching on the famous case of Kirksey v. Kirksey, our class discussion will focus on Feinberg v. Pfeiffer Co. To get a better sense of the economic stakes of this case, you can consult the table at p. vi in the coursepack.) In studying these materials, consider the following question: is the reliance rationale logically circular? I.e., how can it be reasonable to rely on a promise which is not otherwise legally enforceable?