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Assignment for the fourteenth week of class. Please note that model answers and top student essays for my old exams are now available on the exam page.
- On Monday, December 3rd, we will discuss the following exercise, which you should prepare over the weekend, and sent to me via e-mail by 9 am Monday at the latest [and ideally by Sunday evening, so I can incorporate it into my class presentation.]
Please draft contractual language that, if included in the parties' initial agreement, would have reversed the result in one of the following cases: [1] Hoffman v. Red Owl Stores, [2] Sherwood v. Walker, [3] TW Oil v. Consolidated Edison. You may choose any of the three cases you wish; do not choose more than one case. Also, please confine your suggestions to those that the parties would plausibly have been willing to accept; terms that protect the drafter at the cost of destroying the deal are not helpful. Your proposed solution should contain no more than 150 words, and less if you can manage it.
- On Tuesday, December 4th, the last day of class, we will hold a general review session. Please come prepared with questions, since I will not be making any introductory presentation.
- The final exam will be an eight-hour take-home exam administered on Tuesday, December 18, from 10 am to 6 pm. I will arrange to hold office hours on Monday the 17th in case you have any last-minute review questions. I will be also holding extra office hours from 4-6 on Thursday the 6th, in addition to my usual office hours on Tuesday the 4th.
Assignment for the thirteenth week of class. This week, we focus on a set of issues that the casebook treats under the category of "problems of performance." What these issues have in common is that they all arise at the point where a contractual relationship has run into trouble, but has not yet broken down; and how the parties manage the situation will determine whether there is a breakdown and how costly it will be to respond to it. Thus, the following cases will also serve to review many of the major functional issues we have discussed over the course of the term.
- On Monday, November 26th, we will spend the first part of class discussing Bloor v Falstaff (leftover reading from last week) from a transactional perspective. We will discuss what substantive arrangements, if any, could have avoided or mitigated the conflict of interest that lay at the heart of the parties' dispute.
In the second part of class, 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. You should read pp. 915-933; our discussion will focus on Jacob & Youngs v. Kent and TW Oil v. Consolidated Edison.
- On Tuesday the 27th, after finishing leftover material, we will discuss the role of conditions in regulating the parties' duties to perform under the contract (and specifically, the question of when a party's failure to satisfy a contractual condition releases the counterparty from its end of the bargain). You should read pp. 934-941, 945-961, and 965-974, focusing on Morin Building Products v Baystone Construction (note the change from the earlier version of this assignment) and Aetna Casualty & Surety v. Murphy.
- On Wednesday the 28th, after finishing leftover material, we will discuss the doctrine of material breach, which governs an aggrieved party's right to rescind the contract. You should read pp. 975-979 and 982-996, focusing on K&G Construction v Harris and Walker v. Harrison.
- On Thursday the 29th, we will discuss the doctrines of anticipatory breach and insecurity, which govern the point at which the aggrieved party is entitled to declare the contract in default (and thus to begin mitigating and calculating damages). You should read pp. 997-1002, 1005-1012, and 1016-1022, focusing on Oloffson v. Coomer and Pittsburgh-Des Moines Steel v. Niagara Mohawk Power Corp. In studying these two cases, you should consider what other steps the parties could have taken to clarify the situation around the time of alleged breach, and why they did not take them.
Assignment for the twelfth week of class. Remember that if you want thorough and prompt feedback on the second optional writing assignment, you should submit it by Wednesday the 21st.
- On Monday, November 19th,we will complete our discussion of the doctrine of mistake, and then discuss the extent to which there is a duty to disclose information before contracting. You should review the materials assigned for last Thursday's class, and then go on to read pp. 750-764, focusing on Hill v. Jones and Laidlaw v. Organ, the latter of which is discussed in the note 750 at p. 731. 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 Tuesday the 20th, after finishing any leftover material, we will turn to doctrines that govern excuse for change of circumstance, including impossibility, impracticability, and frustration of purpose. You should read pp. 765-78; class discussion will focus on Taylor v Caldwell and on Transatlantic Financing v. U.S.
- On Wednesday the 21st, we will reconsider the duty of good faith, as it applies to the problem of changed circumstances. You should read pp. 886–905, 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 Thursday the 22nd, Thanksgiving Day, class will not meet. Enjoy your holiday weekend.
Assignment for the eleventh week of class.
- On Monday, November 12th, we will discuss interpretation and formation issues relating to standardized form contracts. You should review the material at pp. 692–699, and then also read pp. 664-686. Our discussion will focus on Sardo v Fidelity & Deposit, ProCD v. Zeidenberg and Specht v. Netscape.
- On Tuesday the 13th, after finishing leftover material, we discuss the problem of 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 misdrafted UCC 2-207, of which we will only scratch the surface. You should read pp. 641-664, focusing on Gardner Zemke Co. v Dunham Bush.
- On Wednesday the 14th, 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. I will also provide an additional hypothetical problem, to be handed out in class on Tuesday.
- On Thursday the 15th, 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.
Assignment for the tenth week of class.
- On Monday, November 5th, we will complete the material left over from last week (Vogt v. Madden and acceptance by silence), and then 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 now optional reading.
- On Tuesday the 6th, after finishing leftover material, 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.
- On Wednesday the 7th, after finishing leftover material, we will turn to the parol evidence rule, which governs the interpretation of oral statements that precede or supplement a written agreement. You should read pp. 584-606 and 615-625, focusing on Mitchell v. Lath and Masterson v. Sine.
- On Thursday the 8th, after finishing leftover material, we will consider how the interpretative methods we have studied up to this point apply in the setting of standardized form contracts. We will go out of order in the casebook, jumping ahead to chapter 17, and then work our way backwards the following week. 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.
Assignment for the ninth week of class. We devote this week to the topic of contract formation, often called "offer and acceptance."
- On Monday, October 29th, 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 Tuesday the 30th, we will continue with the topic of offer and acceptance, discussing the effects of attempted 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 Wednesday the 31st, after finishing leftover material, 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.
- On Thursday, November 1, 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 491-501. Our classroom discussion will focus on Carlill v. Carbolic Smoke Ball and Vogt v. Madden.
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 Monday, October 22nd, we will discuss the reliance and restitution measures of damages, a topic that will take us into the following class as well. 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 Tuesday the 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 Wednesday the 24th, we will take up some basic issues arising in the interpretation of contracts. You should read pp. 368–384 and 393-396 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.
- On Thursday the 25th, after finishing leftover material, we will turn to the topic of contract formation, sometimes called offer and acceptance. You should read pp. 397-405 and 413-424. Our discussion will focus on the Lonergan and Lefkowitz cases.
Assignment for the seventh week of class. Remember that the writing assignment is due on Monday the 15th.
- On Monday, October 15th, we'll retun to our discussion of consequential damages, picking up where we left off with Hadley v. Baxendale. In the second part of class, we will discuss the possibilities for parties to contract around the law 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 Tuesday the 16th, after completing leftover material on liquidated damages, 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.
- On Wednesday the 17th, after finishing leftover material, we will discuss the tort of interference with contractual relations, which in appropriate cases plays an important role in supplementing the law of contract remedies. You should read Lumley v. Gye, Pennzoil v. Texaco, and the relevant sections from the Restatement of Torts, all in the coursepack.
- On Thursday the 18th, we will discuss how damages for breach of contract play out in the setting of private arbitration -- an increasingly important forum for the resolution of contractual disputes. You should read the coursepack excerpt by Stephen Ware, together with the coursepack case of Garrity v. Lyle Stuart. In reading these materials, consider whether there is any institutional mechanism that will ensure that arbitrators comply with the law, and that does not also sacrifice the practical advantages of arbitration.
Assignment for the sixth week of class. We 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 Monday the 15th.
- On Monday, October 8th, we'll finish our discussion of the Peevyhouse case, and then turn to the issue of mitigation of damages. You should read pp. 237-241 and 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 Tuesday the 9th, after completing leftover material, we will begin discussing damages for breach of 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 . You should also work through problem 3 in the supplementary coursepack (Brown v. Acme), which we will focus on in class discussion.
- On Wednesday the 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).
- On Thursday the 11th, 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.
Assignment for the fifth week of class. This week we turn to the next major unit of the course, dealing with legal remedies for breach of contract.
- On Monday, October 1st, we'll discuss non-legal enforcement of promises, focusing on the harpsichord hypothetical I offered at the end of class on Wednesday. Then in the later part of class, we'll start our discussion of money damages for breach. You should read pp. 190-200, focusing on the classic case of Hawkins v. McGee.
- On Tuesday the 2nd, we'll continue discussing basic principles of contract damages. You should read pp. 200-216, as well as the short coursepack excerpt from Oliver Wendell Holmes, The Path of the Law. Our discussion will focus on problems 1 and 2 in the coursepack (page 45), which you may wish to consider ahead of time.
- On Wednesday the 3rd, after finishing leftover material, we will begin applying the general principles of contract damages in specific factual circumstances, starting with cases in which the breaching party is a supplier of services. You should read pp. 217-236. Our class discussion will focus on Peevyhouse v. Garland Coal.
- On Thursday the 4th, the United States Court of Appeals for the Federal Circuit will be hearing arguments at CLS, and as it happens, one of the cases being argued, American Federal Bank v. United States , is centered on a dispute over contract damages. This is too good an opportunity to pass up, and so instead of our regular class meeting, we will attend the oral argument.
The court will sit in JG 104-106 from 10 am until approximately noon, and since your torts class has been canceled for that day, you are welcome to attend the entire session. Based on the schedule that has been provided to us, however, it looks like the contracts case will be the second of four cases argued, with arguments probably beginning at 10:30. I will post materials related to the case as soon as I receive them.
Assignment for the fourth week of class. We will have a short week this week because of the Legal Methods exam. While the materials raise a number of distinct concerns that we'll come back to again, the unifying theme theme continues to be the limits of contractual liability.
- On Monday the 24th, we'll follow the assignment originally set for last Thursday, namely, leftover material on modification, and then pp. 138-150 and associated sections in the statutory supplement. You should focus on UCC §2-209 and on Clark v. West, trying 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 Tuesday the 25th, , 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 the 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.
- On Wednesday the 26th, 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.
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 one or two key cases for each day.
- On Monday the 17th, after some brief additional remarks on the past consideration cases, 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?
- On Tuesday the 18th, after completing leftover material, 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. 86-106, focusing on Wickham & Burton Coal and Wood v. Lucy, Lady Duff-Gordon (another Cardozo opinion). 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 Wednesday the 19th, after completing leftover material, we'll take up 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. You should read pp. 107-127 for a survey of these doctrinal tools; as you read this material, consider whether there is anything that the parties could have done at the modification stage -- or at the initial stage of the drafting of the original contract -- to avoid the problems that resulted in litigation . Our discussion will focus on Lingenfelder v. Wainwright Brewery and Foakes v. Beer.
- On Thursday the 20th, after compleing leftover material, we'll turn to the doctrine of waiver. You should read pp. 138-150, 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. This discussion will continue into the following week of class.
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 Monday the 10th, we'll continue discussing the role of reliance in justifying contractual liability, and then turn to the role of exchange. For the reliance discussion, you should reread Feinberg v. Pfeiffer Co. at p. 29 (practicing the skill of reading between the lines for situation sense that we have been working on this last week.) For our discussion of exchange, you should read pp. 47-51, including the Restatement sections cited on p. 51. In class discussion, we will focus on Hamer v. Sidway.
- On Tuesday the 11th, we'll continue discussing the role of exchange in justifying contractual liability. You should read pp. 51-63, focusing on 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 Wednesday the 12th, 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 Thursday the 13th, class will not meet.
Assignment for the first week of class. The required texts are Fuller and Eisenberg, Basic Contract Law, 8th ed. (WestGroup: 2006), and Burton and Eisenberg, Contract Law: Selected Source Materials, 2007 ed. (WestGroup, 2005 edition, any edition after 2001 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 Tuesday, September 4, 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 formally 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 11 am sharp; and please bring your casebook with you.
On Wednesday, September 5th, 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: should it be sufficient to justify legal enforcement of an obligation [or when should it be sufficient] that the promisor intended the obligation seriously and memorialized it using a recognized legal formality?
On Thursday, September 6th, after finishing leftover material, we'll discuss the role of reliance in justifying contractual liability. You should read pp. 23-45 in the casebook; 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. 5 in the coursepack.) In studying these materials, consider the following question: how can it be reasonable to rely on a promise which is not otherwise legally enforceable? I.e., is the reliance rationale logically circular?