Chapter 19. Statute of Frauds 386 results (showing 5 best matches)
- Calamari & Perillo, Contracts § 327 (1970).
- Perillo, Restitution in a Contractual Context, 73 Colum.L.Rev. 1208, 1221–22 (1973)
- See Fridman, The Necessity for Writing in Contracts Within the Statute of Frauds, 35 U. Toronto L.Rev. 43 (1985);
- If the subject matter of the contract is not the transfer of an interest in realty, it does not come within the Statute, even if the end result would be an interest in land. For example, a contract to build a building or to do work on land is not within the Statute, and the same is true of a contract to lend money to buy land, and of a contract between partners to buy and sell real estate and to divide the profits. That the consideration on one side of a contract is a conveyance of an interest in land does not bring the agreement within the Statute. Boundary line and partition contracts are generally held to be within this section of the Statute of Frauds.
- Open Chapter
Chapter 11. Conditions, Performance and Breach 412 results (showing 5 best matches)
- The good faith requirement does not apply to contract formation, but applies to modifications; these relate to performance. CISG has an equivocal provision of good faith, while the later UNIDROIT Principles require good faith in negotiation and performance of contracts. See Perillo, supra § 11.18 n.108 at 287–88.
- Perillo, Restitution in the Second Restatement of Contracts, 81 Colum.L.Rev. 37 (1981)
- See § 11.15 supra. In international trade, the term “fundamental non-performance” has been put forward to substitute for “material breach.” It looks to a very aggravated breach before a contract can be put to an end. This is so because goods or services may have been tendered or performed at an enormous distance and the consequences of rejection or cancellation may be far more serious than in domestic cases. See
- When this condition is not imposed by the contract, the broker is entitled to a commission when the broker produces a buyer who is ready, willing and able to buy on the vendor’s terms. ; 1 Corbin § 2.30 (Perillo 1993).
- Perillo, Abuse of Rights, 27 Pac.L.J. 37, 44–47 (1995)
- Open Chapter
Chapter 5. Informal Contracts Without Consideration or Injurious Reliance 130 results (showing 5 best matches)
- There are those who place the law of contract on the moral obligation to keep a promise. Fried, Contract as Promise 14–17 (1981). To the effect that there is no general moral obligation to keep a promise, see Atiyah, Essays on Contract (1986), described in
- Perillo, The Statute of Frauds in the Light of the Functions and Dysfunctions of Form, 43 Fordham L.Rev. 39, 55–56, 79 (1974)
- Not all contracts require consideration. The distinction between formal and informal contracts is introduced in § 1.8. Formal contracts require no consideration. The formal contract under seal survives in some jurisdictions, as do recognizances and other kinds of specialties that are deemed to be formal contracts. In addition, some informal contracts are exempt from the requirement of consideration. For example, promises that are enforceable because they have induced unbargained-for reliance are the subject of the next chapter on promissory estoppel. This chapter is concerned with informal promises enforceable without detrimental reliance or consideration. One group of promises of this kind, promises to perform a duty despite failure of a condition, will be discussed in chapter 11, where the context will clarify the discussion.
- contracted to sell water for forty years to the plaintiff for resale outside town limits. The contract included a schedule of prices and provisions for escalation that limited any rate increase to an amount proportional to the rates charged other customers. The contract further provided that the town would not be required to provide in excess of fifteen million gallons of water per month. Despite this provision, for fifteen years the town had supplied the plaintiff at the contract rate, almost twice as much water as the contract required. Suddenly, the town doubled the price of plaintiff’s water and reduced the rates to most residents of the town. In partial justification for the rate increase, the town argued that it was supplying much more water than the contract required and therefore the contract did not regulate the price that could be charged. The court disagreed. The course of performance had given plaintiff a feeling of security that it had a good supply of water at the
- The same analysis applies to contracts voidable on other grounds, such as duress, mistake and infancy. However it has not been generally applied to void agreements
- Open Chapter
Chapter 1. Introduction 162 results (showing 5 best matches)
- 1 Williston, Contracts § 1:1 (4th ed. Lord 1990) [hereinafter Williston]; Restatement, Contracts § 1 (1932) [hereinafter Rs. 1st]. The definition is carried over into Restatement, Second, Contracts § 1 (1981) [hereinafter Rs. 2d]. Compare, 1 Corbin, Contracts § 1.3 (Perillo 1993).
- Perillo, Exchange, Contract and Law in the Stone Age, 31 Arizona L.Rev. 17 (1989)
- “A duty is a legal relation that exists whenever certain action or forbearance is expected of an individual, and in default of it the representatives of organized society will act in some predetermined manner injurious to the defaulting individual.” 2 Corbin § 7.12 (Perillo & Bender 1995). While the aggrieved party to an unenforceable or voidable contract sometimes has a remedy against the defaulting promisor, quite often there is none. Where there is no remedy for non-performance it seems inappropriate to speak of a “duty” of performance.
- It is currently (except for one volume) in a revised edition. The supervising editor is Joseph M. Perillo. Because the revisions have employed a number of authors, the name of the author of each volume and the revision date will appear in a parenthesis.
- The distinction between formal and informal contracts is based on the method of the formation of the contract. Under the early common law a promise was not binding unless accompanied by certain formalities. Three kinds of formal contracts are still important: (1) contracts under seal; and (3) negotiable instruments and letters of credit.
- Open Chapter
Chapter 4. Consideration 291 results (showing 5 best matches)
- See Calamari, Forging a Good Unilateral or a Series of Good Contracts out of a Bad Bilateral Contract, 1961 Wn.U.L.Q. 367.
- . On special rules of contract law for lawyers, see
- Perillo, Misreading Oliver Wendell Holmes on Efficient Breach and Tortious Interference, 68 Fordham L.Rev. 1085, 1087 (2000)
- On the various functions of writing requirements see,
- ; 2 Corbin § 5.34 (Perillo & Bender 1995). See ch. 3 and §§ 2.2 and 2.7 supra.
- Open Chapter
Preface to the Seventh Edition 6 results (showing 5 best matches)
- The First Edition of this text by the late John D. Calamari and myself was published in 1970. This revision, like the fourth, fifth, and sixth editions, was written without the aid of my late co-author; nonetheless it contains much of his learning and wisdom. Even where the words are mine alone they reflect John’s impact on me as a mentor and friend.
- Joseph M. Perillo
- The six prior editions of this text have met with success beyond our expectations. We measure success by the many graduates of diverse law schools from the most prestigious to the least renowned who have greeted us with thanks for having helped them learn contract law through the medium of this text. We also measure success by the many reported decisions and scholarly works that have cited this text as support for their conclusions about contract law. The aspiration of the present author is that this edition will meet with comparable success.
- The attempt to describe and analyze so vast a subject matter in one volume has obvious dangers. Over-simplifications are inevitable. Generalizations tend to be more dogmatic than the law in action. Nevertheless, the practitioner is aware and the student soon becomes aware of the uses and limitations of introductory texts. A text of this kind seeks to provide a guide to a deeper knowledge of the subject.
- I am extremely grateful for the assistance of Professor Helen Hadjiannakis Bender who read the entire manuscript with care. Her many comments and questions contributed immeasurably to the final text of the manuscript.
- Open Chapter
Chapter 9. Avoidance or Reformation for Misconduct or Mistake 544 results (showing 5 best matches)
- This subsection is based on
- If one party is mistaken as to the contents of the document and the other has actual knowledge of this fact, the mistaken party may avoid the contract. 7 Corbin § 28.38 (Perillo 2002); Rs. 2d § 157 cmt a.
- Perillo, Neutral Standardizing of Contracts, 28 Pace L.Rev. 179 (2008)
- This material is based on
- Perillo, supra n.354, at 1224–25. In , an owner avoided a fraudulent construction contract. In an action by the contractor, restitution was measured by the value of the work to the defendant, rather than the plaintiff’s costs.
- Open Chapter
Chapter 2. Offer and Acceptance 560 results (showing 5 best matches)
- Perillo, The Origins of the Objective Theory of Contract Formation and Interpretation, 69 Fordham L.Rev. 427 (2000)
- Perillo, Screed for a Film and Pillar of Classical Contract Law, 71 Fordham L.Rev. 915 (2002)
- UNIDROIT Principles of International Commercial Contracts Art. 27; see
- 1 Corbin § 4.11 (Perillo 1993). If it is apparent from the message, or otherwise, that an error has been made, no contract results. The addressee is not justified in relying on its contents.
- (“One who signs a contract which he had an opportunity to read and understand is bound by its provisions.”) See § 9.41 infra; 1 Corbin § 4.13 (Perillo 1993);
- Open Chapter
Chapter 15. Restitution as a Remedy for Breach 87 results (showing 5 best matches)
- Keener, Quasi Contracts 301–02 (1893); Woodward, § 15.3 supra n.29, at 415; cf. 12 Corbin § 61.9 (Perillo 2012). The Restatement states that the rule makes the court’s job easier. Rs. 2d Contracts § 373 cmt b.
- On restitution see Restatement (Third) of Restitution and Unjust Enrichment (2011) and symposia on it in 68 Washington & Lee L. Rev. 865–1444 (2011), 92 B. U. L. Rev. 763–1080 (2012).;
- Rs. 1st Contracts § 354 cmt b; 12 Corbin § 61.18 (Perillo 2012)
- See 12 Corbin § 61.4 (Perillo 2012); Woodward, Quasi Contracts § 260 (1913). The question whether an action for restitution based on breach is a contract remedy or a quasi-contractual action is not devoid of practical significance. For example, the U.S. has not waived its immunity under the Tucker Act as to quasi-contractual actions. . An action for restitution based on breach may, however, be brought under the Act. ( on the theory that the action is on the contract.) For the confused state of the law with respect to restitutionary claims against the government, see
- See Rs. 1st Restitution p. 1; 3d of Restitution and Unjust En. See Perillo, Restitution in a Contractual Context and the Restatement (Third) of Restitution & Unjust Enrichment, 68 Wash. & Lee L. Rev. 1007 (2011), which criticizes the Restatement (Third) for not including the reliance interest except in the context of breach. We are on the same page as to breach. The Restatement is defended by Laycock, Restoring Restitution to the Canon, VCT0530 ALI-ABA 35 (2012).
- Open Chapter
Chapter 16. Specific Performance and Injunctions 168 results (showing 5 best matches)
- Rs. 1st § 367 cmt b; see Rs. 2d § 364; 12 Corbin § 64.3 (Perillo 2012); see (App.2004) (contract must be “fair, just, and equitable”).
- For a history of equity, see Walsh, Equity §§ 1–7 (1930). On equitable discretion, see 12 Corbin § 63.1 (Perillo 2012);
- Rs. 1st § 366 and cmt b; 12 Corbin § 64.4 (Perillo 2012). Cf. Rs. 2d § 87(1)(a) and cmt b, § 88(a) and cmt a. See § 4.6 supra.
- Perillo, The Law of Lawyers’ Contracts Is Different, 67 Fordham L.Rev. 443, 477–80 (1998)
- (contract to build and convey); . See 12 Corbin §§ 64.11–64.12 (Perillo 2012);
- Open Chapter
Chapter 3. Parol Evidence and Interpretation 241 results (showing 5 best matches)
- Painter, Professional Responsibility Rules as Implied Contract Terms, 34 Ga.L.Rev. 953 (2000)
- Thus, in one employment case the parties had different reasonable meanings of the term, “gross receipts.” There was no contract and compensation was based on reasonable value. When the parties again reached agreement and used the employer’s same form contract, there was a contract based on the employer’s understanding because this time the employee knew what the employer’s intention was.
- It is obvious that the “four corners” and the “collateral contract” concepts do not determine the existence of a total integration on the basis of the intention of the parties. Instead, they concentrate on the words of the writing. In contrast, both Williston and Corbin assert that the existence of a total integration depends upon the intention of the parties. Williston does so primarily in a section entitled “Integration Depends Upon Intent.” Corbin’s emphasis on intent runs throughout his entire discussion of the rule. In this context, however, they use the term “intent” in ways that are remarkably dissimilar. A typical fact pattern will illustrate this. A agrees to sell and B agrees to purchase Blackacre for $100,000. The contract is in writing and in all respects appears complete on its face. Prior to the signing of the contract and in order to induce B’s assent, A orally promises B, in the presence of a number of reputable witnesses, to remove an unsightly shack on A’s land...
- When such evidence of subjective intent is introduced, its evaluation depends on certain factors. If the parties place the same meaning on the term, there is obviously a contract based on that meaning. If the evidence shows that the parties had conflicting understandings as to the meaning of a material term, there is a contract based on the meaning of the one party who is justifiably unaware of the ambiguity. Finally, if the understandings conflict as to a material term and each party is guilty or blameless on the issue of knowledge or reason to know of the ambiguity, there is no contract.
- Once a trade usage that binds the parties is proved, the trade usage may be used on the issue of meaning and also to add a term to the agreement. For example, the Model Rules of Professional Conduct can supply implied terms to the attorney-client contract, operating much like a statement of professional usages. Under common law, in many jurisdictions, a trade usage (and a course of dealing) may be added as an additional term to a writing or other record “if the term is not inconsistent” with the agreement. However, some common law cases continue to exclude evidence of usage, course of dealing and course of performance unless the written contract is ambiguous or contains a gap. These cases are unwise. The principles of contract law do not depend “solely on what occurred at the moment in time when a contract was formed, but instead turn on the moving stream of events that precedes, follows, or constitutes the formation of a contract.” ...flesh out an incomplete oral or written contract...
- Open Chapter
Chapter 13. Impracticability and Frustration 244 results (showing 5 best matches)
- Upon the demand of one of the parties, the judge may modify the effects of a contract, or he may set it aside in whole or in part on the basis of unforeseen circumstances which are of such a nature that the co-contracting party, according to criteria of reasonableness and equity, may not expect that the contract be maintained in an unmodified form. The modification or the setting aside of the contract may be given retroactive force.
- All contracts involve risks. Some contracts are almost purely aleatory. If one sells shares of stock on the stock exchange that one does not have—the so-called “short sale”—it is a contract of pure risk and there is no circumstance (absent fraud or the like) in which a court should relieve the seller or buyer from a total loss even if unexpected and On the other hand, in the more typical contract involving the sale of goods or services, or the rental of real estate, each party expects to gain from the contract and each party understands that the other party also expects to gain. In such contracts, neither party expects to gain from the other’s loss, although both realize that such an imbalance may occur. It is in these situations that the impracticability doctrine may redress the imbalance.
- Perillo, 5 Tul.J.Int’l & Comp.L. 5 (1997)
- ; Perillo, Restitution in a
- Open Chapter
Chapter 14. Damages 311 results (showing 5 best matches)
- Perillo, Misreading Oliver Wendell Holmes on Efficient Breach and Tortious Interference, 68 Fordham L.Rev. 1085, 1099–1102 (2000)
- ; Perillo, The Collateral Source Rule in
- 11 Corbin § 60.1 (Perillo 2005). For a critical view, see
- See McCormick, Damages 579–80. It has also been attacked by writers on contracts. 11 Corbin § 56.5 (Perillo 2005);
- 11 Corbin § 55.5 (Perillo 2005).The Restatement (Second) distinguishes between “rights to performance” (Rs. 2d § 236 cmt b) and “rights to damages.” § 346 cmt a.
- Open Chapter
Chapter 17. Third Party Beneficiaries 130 results (showing 5 best matches)
- Another view is that the rights of a creditor beneficiary vest on learning of the initial contract and assenting to it. The second view seems preferable in that once the creditor beneficiary has assented to the contract there is likely to be reliance in subtle ways, not easily provable, on the security of the contract.
- If A is an intended beneficiary of a contract between B (promisee) and C (promisor), can B and C by an agreement subsequent to the contract destroy or curtail A’s rights? This cannot be done if the rights of the beneficiary have vested. There are several views on when the rights of the beneficiary vest.
- The plaintiff’s assignor sold an oil burner to B on credit. When B sold the house, the defendant purchaser agreed to assume the payments still due on the oil burner contract. The defendant failed to pay and sought to interpose as a defense that plaintiff’s assignor had breached a warranty made to B.
- Under the Statute of Wills and its modern descendants, a testamentary disposition must usually be in writing, signed and witnessed in a rather rigidly specified manner. If a contract for the benefit of a third party makes the beneficiary’s rights conditional on surviving the promisee, some courts have held that the promisee acquires no rights because the contract creates a testamentary disposition and fails to comply with the Statute of Wills. This is clearly incorrect. The promisee is not disposing of an existing right by will but is creating a present conditional right by contract.
- Often, it is clear that a decision rests primarily on policy grounds. For example, a Delaware Court ruled that a federal prisoner kept in a Delaware state prison under a contract between the state and the U. S. is a third party beneficiary of that contract, permitting the prisoner to recover for injuries suffered from an assault in the prison. The decision, circumventing Delaware’s rule of sovereign immunity as to torts, was based in part on giving the prisoner rights similar to those in federal prisons, who may sue the federal government under the Federal Tort Claims Act. In some cases, it is clear that the government intended to give a class of persons rights they can enforce, as in the case of contracts between a state and nursing homes concerning the treatment of Medicaid patients. ...federally subsidized housing project were not held to be third party beneficiaries when it was alleged that private defendants were illegally siphoning federal funds and the U. S. was acquiescing...
- Open Chapter
Chapter 12. Anticipatory Breach and Prospective Non-Performance 117 results (showing 5 best matches)
- In Post v. Merrill, Lynch, Pierce, Fenner & Smith, 48 N.Y.2d 84, 421 N.Y.S.2d 847, 849, 397 N.E.2d 358, 361 (1979), the court said “[w]here the employer terminates the employment relationship without cause, however, his action necessarily destroys the mutuality of obligation on which the covenant rests as well as the employer’s ability to impose a forfeiture. An employer should not be permitted to use offensively an anticompetition clause coupled with a forfeiture provision to economically cripple a former employee and simultaneously deny other potential employers his services.” The attempt to base the result on mutuality of obligation is like the flailing of a non-swimmer. First, mutuality of obligation is an obsolete and abandoned doctrine. See supra § 4.12(b); 2 Corbin ch. 6 (Perillo & Bender 1995). Second, in the typical at-will employment, there is no obligation on the employee, except perhaps the covenant itself. A theory of abuse of rights is inherent in the rest of this...
- Perillo, Abuse of Rights: A Pervasive Legal Concept, 27 Pac.L.J. 37, 88–89 (1995) (footnotes renumbered).
- Now, assuming a party is insolvent, the question is what are the rights and obligations of a party who is dealing with an insolvent? For example, if S agrees to sell and deliver certain goods to B on May 1, for which B is to pay on August 1, and on April 30 B is insolvent, must S deliver the goods according to terms of the contract?
- Is it possible that a doctrine which in a few generations swept practically the entire common law world is so illogical as to violate the “nature of things?” On the contrary, the doctrine does not offend logic and is supported by practical wisdom. As far as logic goes, a contract is usually formed by promises, but the obligation of a contract is the sum of duties thrust by law on the promisor or promisors. There is no lack of logic in the law’s imposition of a duty not to repudiate, as, for example, it has imposed constructive conditions and duties of cooperation on the contracting parties. This duty not to repudiate imposed by law may be breached although no express promise has been breached. or in terms that “the promisee has an inchoate right to performance of the bargain . . . he has a right to have the contract kept open as a subsisting and effective contract,”
- This chapter discusses two related concepts—prospective failure of condition and anticipatory breach. Prospective failure of condition is subdivided into two classes: prospective inability to perform and prospective unwillingness to perform. To illustrate: Suppose Jane Actor contracts to play the leading role in a stage show. Rehearsals are to begin on February 1 and the show is scheduled to open on April 1. On January 15 she is severely injured while a passenger in a car that crashes. Her physician expresses the opinion that she cannot return to work until about May 1 and her agent communicates this opinion to the employer. She is prospectively unable to substantially perform. This gives her employer several options, including the an election to cancel the contract and hire a replacement. If, after the employer had hired a substitute for the run of the show, Jane miraculously presented herself ready to work on February ..., justifying the employer’s cancellation of the contract...
- Open Chapter
Chapter 18. Assignment and Delegation 190 results (showing 5 best matches)
- . Delegation without client consent would also violate disciplinary rules. See Perillo, The Law of Lawyers’ Contracts is
- Buyer hereby acknowledges notice that the contract may be assigned and that the assignees will rely on the agreements contained in this paragraph, and agrees that the liability of the Buyer to any assignee shall be immediate and absolute and not affected by any default whatsoever of the Seller signing this contract.
- 1 Corbin § 3.3 (Perillo 1993).
- ; 1 Corbin § 3.3 (Perillo 1993); 9 Corbin § 49.8 (Murray 2007).
- An option contract gives the optionee the option of accepting or rejecting the terms of the underlying offer. Whether the optionee may assign the rights in the underlying contract to a third party depends on a number of factors including whether the underlying contract is unilateral or bilateral. Suppose A offers to sell property to B in exchange for B’s promise to pay $100,000. A asks B for $1,000 to keep the offer open for 10 days, which B pays, creating an option contract. The offer in the underlying contract is an offer looking to a bilateral contract and can be accepted only by B’s promise. If B does not make the promise, there is no possibility of the underlying contract being effectively assigned. A is entitled to B’s promise because A relied on B’s credit. If B makes that promise, then the right to receive a deed would be assignable and the duty to pay money would be delegable.
- Open Chapter
Chapter 7. Contracts Under Seal 39 results (showing 5 best matches)
- Perillo, The Statute of Frauds in the Light of the Functions and Dysfunctions of Form, 43 Fordham L.Rev. 39, 43–69 (1974)
- An instrument under seal was known as a deed. “[E]arly law generally required that a deed be written on paper or parchment, but now an instrument written or printed on any substance capable of receiving and retaining legible characters, would probably have equal validity.” In addition, the promisor and the promisee must be named or sufficiently described in the instrument so as to be capable of identification. Thus, for example, the rule of agency law that a principal may sue or be sued on a contract, although the contract by its terms appears to be made with the agent, is inapplicable to sealed instruments. Some courts, however, have circumvented this rule in part by holding that if the contract was such that no seal is required, it will be treated as an informal contract.
- The rule on discharge or modifications of sealed contracts has changed considerably. At early common law, courts held that the discharge or modification of a sealed contract could be accomplished only by another sealed instrument. Later it was held that a sealed instrument could be discharged or modified by an accord and satisfaction but not by an unperformed executory bilateral contract.
- Centuries before the doctrine of consideration was developed and long before informal contracts were enforced, contracts under seal were enforced. A contract under seal is a formal contract; indeed, the prevalent kind of formal contract from the late middle ages down to recent times, at least in non-commercial transactions. The promise under seal is enforced because of the form of the instrument. The three required formalities are: a sufficient writing, a seal, and delivery. In addition, the promisor and promisee must have legal capacity and the contract must not be void as, for example, because of illegality. Also, if the promisee is to render some performance under the contract, such performance may be required as a condition precedent to enforcement of the promise under the same rules as are applicable to a contract without a seal (an informal contract).
- See § 1.8 supra on formal and informal contracts.
- Open Chapter
Chapter 8. Capacity of Parties 147 results (showing 5 best matches)
- On the ground that one cannot contract with oneself it has been said that dealers in mobile homes who purportedly contracted to sell mobile homes to themselves on credit and who, as sellers, purported to retain security interests in the homes, created no change in legal relations. Certainly if they were suing themselves such an analysis would be appropriate. Assume the proprietor of a mobile home business “sells” a home to on credit to herself. She then sells the business to A who takes an assignment of all outstanding contracts of the business. The seller of the business should be protected by the terms of the contract and also have the obligations of the contract. Entrepreneurs tend to conceive of their business assets as something other than their personal assets. When they deal with them on such a basis, interested third parties have a right to hold them to their promises, even if originally the promises were made to themselves.
- A good many cases speak in terms of a firm rule that distinguishes between executory and executed contracts. According to these cases, executed contracts are automatically ratified and thus binding if not disaffirmed within a reasonable time after majority, but executory contracts are not binding unless ratified by words or conduct after majority. The rule is a carryover from the older view than an infant’s executory contract is void rather than voidable. It is apparent, however, that this “rule” as to executory contracts is not applied when the infant’s failure to disaffirm within a reasonable time after attaining majority works injustice on the other party.
- In a significant case, the U.S. appointed the defendant steamship company as its agent for the management of a government owned merchant ship. As agent, the company contracted with its stevedoring division for the loading and unloading of the ship. Despite the company’s subsequent contention that it could not contract with itself, the court ruled that the contract was binding on the defendant upon ratification of the contract by the U.S. A contrary result based upon the supposed incapacity of a company to contract with itself would clearly have sacrificed a sound result from an overgeneralized rule. The case is in tune with the same realistic approach which permits one department of the executive branch of government to sue another department of the executive branch.
- Courts of equity have long enforced contracts between an individual and a group of individuals which includes the individual. Thus a member of an unincorporated club may contract with the club and a partner may contract with the partnership. In each of these instances, the member is both a promisor and a promisee in the contractual relation.
- Mental infirmity, feebleness of intellect or intoxication may exist to a lesser degree than required by law for the avoidance of a contract. Persons so afflicted are bound by their contracts if no other ground for avoidance exists. The cases, however, frequently reveal exploitation of such persons. The law offers a number of other doctrines for their protection. It is obvious that where a feeble-minded illiterate woman is made to execute a conveyance at pistol point the transaction is voidable on grounds of duress. The woman’s mental powers are barely relevant in such circumstances. The fact patterns, however, usually involve more subtle forms of duress, fraud, undue influence or overreaching. To ply an alcoholic with liquor and then induce the alcoholic to enter into a contract for a grossly inadequate consideration has been deemed a species of fraud. Such cases are not decided on grounds of lack of capacity, but on the ground that the victim’s limited mental ability is coupled...
- Open Chapter
Chapter 21. Discharge of Contracts 104 results (showing 5 best matches)
- A similar problem arises where a party cancels the contract because of a material breach. The UCC provides that “Unless the contrary intention clearly appears, expressions of ‘cancellation’ or ‘rescission’ of the contract or the like shall not be construed as a renunciation or discharge of any claim in damages for an antecedent breach.” The Code language and comment make it clear that this provision applies after a breach and is designed to avoid an involuntary loss of a remedy for breach by the use of language by the aggrieved party to the effect that the contract is called off. The Code primarily addresses itself to a number of unsound decisions that have held that, when a contract is canceled for breach, it is logically impossible to permit an action on the contract since the contract is nonexistent; therefore, only quasi-contractual relief is available. ...of the fact that the term “rescission” is often used by lawyers, courts and businessmen in many different senses, for example...
- The chief advantage of an account stated from the plaintiff’s point of view is the facility of the requirements of pleading and proof. In an action on the account, the creditor need not plead and prove the making and performance of each contract (goods sold and delivered, money lent, services rendered, etc.) that went into the account. Moreover, since an account stated is a new contract, the statute of limitations commences upon assent to the account.
- The word “novation” is used in a variety of senses. Courts frequently use it as synonymous with “substituted contract.” and both contracts’ restatements, however, restrict its use to describe a substituted contract involving at least one obligor or obligee who was not a party to the original contract. A contract is a novation in this sense if it does three things: (a) discharges a duty immediately, (b) creates a new duty (or a good faith claim), and (c) includes a new obligor or obligee. executory contract. Some third party beneficiary contracts are novations, but are not usually so labeled. Indeed, the utility of the classification of novation is doubtful. Its legal effect is that of a substituted contract. The development of a separate category under the rubric “novation” is doubtless traceable to problems of consideration formerly thought to be present in such contracts because of the former common law rule that consideration must be supplied by the promisee.
- (2) Rescission of an existing contract contemporaneous with and conditioned on the entering into of a new agreement.
- Thus, for example, where an obligation arising under a contract is reduced to judgment, the only remaining obligation is the judgment. Also, where the obligation created by an informal contract is superseded by a sealed instrument or other specialty, the informal contract is discharged by merger. The primary effect of such a discharge of the earlier obligation was an almost total exclusion of parol evidence of the prior contract in an attempt to vary or contradict the higher obligation, or indeed even to explain it. The judgment or specialty was itself the obligation and not merely evidence of it. This early rule of integration preceded the parol evidence rule as applied to informal integrations. Today, the merger of an informal contract into a specialty raises basically ...of an informal contract into an integration; that is, the extent to which the prior expressions of agreement are admissible into evidence. Thus, the existence of a separate heading of “discharge by merger...
- Open Chapter
Chapter 22. Illegal Bargains 104 results (showing 5 best matches)
- (ambulance company owner); Rs. Law Governing Lawyers § 10(3). As to fee splitting between attorneys, see id. § 47 and
- There are other examples of severance outside of the standardized situations. In each of these cases, the primary purpose of the contract was salvaged. One, it has been held that if a contract contains an illegal provision whereby a party surrenders the right to appeal, the balance of the contract is enforceable. Two, provisions in a contract unlawfully circumventing the powers of corporate directors have been disregarded where of the contract would not be defeated. Three, a contractual clause that violates state antitrust law by fixing prices to be paid by customers other than the plaintiff may be severed and the plaintiff’s promise to purchase enforced. Five, a contract containing an illegal price term can be salvaged by excising the price term and supplying “market price” as an implied term. ...is distinctly different from the rest of this catalog. It continues to favor arbitration by holding that an arbitration clause cannot be severed from a contract unless the clause itself...
- An illegal provision does not necessarily render the entire contract unenforceable. If the illegal provision is not central to the agreement and does not involve serious moral turpitude, the illegal portion of the agreement is disregarded and the balance of the agreement is enforceable. We have seen examples of this rule earlier. Thus, contracts containing illegal covenants not to compete are enforced. The illegal covenant is disregarded or curtailed. Contracts containing illegal penalty clauses are enforced. The illegal clauses are in effect deleted. Arbitration clauses have been salvaged by severing invalid restrictions on the arbitrator’s powers.
- If a party enters into an illegal bargain and is justifiably ignorant of the facts creating the illegality and the other is not, the innocent party may recover on the contract by showing a readiness, willingness and ability to perform but for the illegality. A simple illustration is the case of a married man who promises to marry another woman. She, assuming her ignorance of his marital status, could bring an action for breach of a contract to marry, if she is in a state that still recognizes such an action. It has been held that a plaintiff could recover from an unlicensed trucking company for breach of a contract of carriage where the plaintiff had no knowledge that the defendant A seller of land was permitted to recover damages for breach of a contract that was illegal because the purchaser was an enemy alien, where the seller was ignorant of the purchaser’s nationality.
- As one court stated, “public policy can be enunciated by the Constitution, the legislature or the courts at any time and whether there is a prior expression or not the courts can refuse to enforce any contract which they deem to be contrary to the best interests of citizens as a matter of public policy.” Public policy has been the announced rationale for striking down contracts or contract clauses on grounds of immorality, parental deals that prejudice their children’s rights to support, and diverse other criteria. A contract guarantying performance of an illegal act is itself illegal.
- Open Chapter
Chapter 6. Promissory Estoppel as a Substitute for Consideration and Much Else 114 results (showing 5 best matches)
- Perillo, Twelve Letters from Arthur L. Corbin to Robert Braucher Annotated, 50 Wash. & Lee L.Rev. 755, 768–69 (1993)
- The parties were negotiating for the sale of the defendant’s business to the plaintiff. They reached agreement on most of the important terms of a contract for purchase and sale. Their agreement, however, expressly contained terms referring to the possibility of the failure of negotiations. Nonetheless, plaintiff occupied offices in the defendant’s premises, its principals were introduced by the defendant to others as the new owners, and plaintiff spent funds improving defendant’s physical facilities. Abruptly, the market for the defendant’s product improved and defendant demanded a drastic improvement in the terms of the sale. The court held that although there was no contract of sale, defendant had breached an obligation to negotiate in good faith. For breach of such an obligation, defendant was adjudged liable for damages on a theory of promissory estoppel. The court limited the recovery to the costs incurred by plaintiff in reliance upon the negotiations. Note that the thrust...on
- There are other cases of promissory estoppel salvaging indefinite contracts. In Grouse v. Group Health Plan, plaintiff applied for a position with the defendant as a pharmacist. After several interviews, he was offered the job and he accepted. It was agreed that he would resign from his present position, giving two weeks notice. After accepting, he turned down another offer. When he showed up for work, he was told that someone else had been hired. Because the hiring was at will, he had no action for breach based on a conventional contract. He was granted damages based on promissory estoppel, measured by his lost opportunity costs—what he lost by quitting and by turning down another job offer. He was not awarded what he would have earned under the contract, which in this case would have been zero, because the hiring was at will. So
- The concept of promissory estoppel, and perhaps the term itself, was coined by Samuel Williston in the 1920 edition of his treatise where he pulled together an assortment of cases where promises without consideration had been enforced on one theory or another. The common thread through these cases was that the promisee had relied on the promise. In 1932, through the combined efforts of Williston and Corbin, Section 90 of the Restatement of Contracts adopted the concept as an orthodox doctrine of contract law. Since its adoption by the Restatement, the courts have greeted it with broad support. Although in its original formulation, it was a substitute for (or the equivalent of) consideration, it has since grown from a consideration substitute to a doctrine that provides a remedy for many promises or agreements that fail the test of enforceability under many traditional contract doctrines, including indefiniteness, and more. ...as a mender of ailing contracts. As a court has said: “...
- and in cases of reliance on an oral modification. Presumably promissory estoppel could be used in cases involving voidable contracts but the traditional rules employed in the area of voidable contracts take into account the element of reliance. For example, where auditors were promised 25% of any recovery of fraudulent claims they were instrumental in discovering, they found out that a health care provider had an anti-audit provision in their contract with the promisor and that the promisor did not pursue claims that violated the anti-audit provision. They pleaded a good claim in promissory estoppel.
- Open Chapter
Chapter 20. Joint and Several Contracts 69 results (showing 5 best matches)
- Thus, if A promised to pay B and C $1,000 for work to be done by B and C, the question of whether B and C are joint promisees is resolved by interpreting the wording of the contract in the light of the nature of the relationship between B and C. If they are partners, they have a community of interest in the profits and losses of the transaction and as a matter of law their rights are joint or joint and several. If they were not partners, in a formal sense, but joined together for this particular project with an intention to share profits and losses, the same result would follow. Here too, they would be operating as a business organization even if on an ad hoc basis. If, however, B and C were merely employees of A, there would be no community of interest between B and C. Their rights would be several.
- Inconsistent with the general rule that one joint obligee may discharge a joint obligation, is the holding that a repudiation by one of the parties who jointly held rights and obligations under a bilateral contract does not create an anticipatory breach, and that one joint obligee cannot exercise an option to accelerate.
- Braucher, Freedom of Contract and the Second Restatement, 78 Yale L.J. 598, 608 (1969)
- On the question of joinder, the rule was that the plaintiff could elect to sue one, or plaintiff could elect to sue all, but could not elect to sue more than one unless all were joined. Thus, if the creditor sued one of the obligors on the several promises and recovered, there was no merger and separate actions and separate judgments could be obtained against the others. But, if the creditor brought suit against more than one and fewer than all of the obligors, the rule of a merger with respect to joint obligors applied.
- If C builds a structure for X and Y who jointly agree to pay $180,000 and X pays the full $180,000, X may recover $90,000 from Y in the absence of any contrary agreement between X and Y. A co-obligor who has paid more than a proportionate share is entitled to contribution. What is the proportionate share of a co-obligor depends on the agreement between or among the co-obligors and, if there is no such agreement, on equitable principles. Thus, in this illustration, in the absence of an agreement, X and Y as between themselves would be liable for $90,000 each. But if X and Y agreed between themselves that X was responsible for ⅔ and Y for ⅓, X would be entitled to only $60,000 from Y.
- Open Chapter
Index 681 results (showing 5 best matches)
- Breach of contract, series of contracts and series of performances distinguished, 74
- See also Divisible Contracts, this index; Joint and Several Contracts, this index
- Personal service contract repudiation, elections on, 462
- Recovery on an illegal executory bilateral contract, 775
- UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG)
- Open Chapter
Table of Contents 197 results (showing 5 best matches)
Summary of Contents 27 results (showing 5 best matches)
Table of Cases 61 results (showing 5 best matches)
Copyright Page 3 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- is a trademark registered in the U.S. Patent and Trademark Office.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Open Chapter
- Publication Date: August 21st, 2014
- ISBN: 9780314287700
- Subject: Contracts
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: The author provides a detailed treatment of the basic rules, principles, and issues in contracts. Topics covered include offer and acceptance, parol evidence and interpretation, consideration, promissory estoppel, contracts under seal, capacity of parties, conditions, performance, and breach. The author also discusses damages, avoidance and reformation, third-party beneficiaries, assignments, and the statute of frauds. The discharge of contracts and illegal bargains are also the subject of separate chapters.