Contracts in a Nutshell
Authors:
Rohwer, Claude D. / Skrocki, Anthony M. / Malloy, Michael P.
Edition:
8th
Copyright Date:
2017
21 chapters
have results for Nutshell on Contracts
Chapter 1 Introduction 43 results (showing 5 best matches)
- The primary focus of this Nutshell will be just what the title states, “Contracts.” However, these materials will cover not only the law of Contracts, but also some of the law applicable to the sale of goods (regardless of whether there was a contract formed). Materials relating to the law of restitution are included in Chapter 10.
- Scope of This Nutshell—Contract Law and Sales Law
- Under the law of Restitution, courts impose an obligation to pay for benefits conferred despite the absence of a promise. This non-consensual obligation imposed by law, is sometimes called an “implied-in-law contract” but it is not a contract. It has nothing to do with any promise, either express or implied, and therefore there is no need for there to be a promisor or promisee. It is premised upon the concept of avoiding unjust enrichment, and the authors would not be mentioning this term until we reach the topic on restitution in Chapter 10 were it not for the fact that the concept of quasi-contract tends to appear early in some contract discussions. In some cases when the court cannot find a true contract based upon a manifested promise, it will allow relief under a restitutionary theory to prevent unjust enrichment and may refer to the situation as being one of “quasi-contract”.
- “Quasi-contract” is an accepted term today and no particular harm will result from its usage, so long as one remembers that the liability is in restitution (with the purpose being the avoidance of unjust contract. By contrast, the term “implied-in-law contract” almost inevitably leads to confusion. True contracts can be either express or implied. Thus, one form of true contract is properly called an “implied contract” meaning a contract where a person’s promise is implied from that person’s conduct (“implied-in-fact”). If one uses the term “implied-in-law contracts” to describe quasi-contracts, it is only a matter of time before one confuses “implied-in-fact” and “implied-in-law” and loses track of the basic subject being discussed. Use of the term “implied-in-law contracts” should be avoided.
- One classic quasi-contract fact pattern involves an unconscious auto accident victim and the ambulance company called to the scene by the police, as well as the hospital and the various medical providers at the hospital. An unconscious patient is not going to be signing agreements or orally promising to pay for medical services, nor is it reasonable to conclude that the failure of the unconscious patient to object to the emergency medical treatment is conduct implying a promise to pay for the services. There is no consensual undertaking on the part of the unconscious patient to pay and therefore there is no true contract, express or implied. The providers of the care are not doing so in return for a promise or in reliance upon a promise from the patient in their care. However, the law will hold the patient responsible for the reasonable value of the services provided. The basis for this is not contract. It is restitution.
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Outline 47 results (showing 5 best matches)
- § 1.1Scope of This Nutshell—Contract Law and Sales Law
- § 1.6The United Nations Convention on Contracts for the International Sale of Goods (CISG)
- § 5.7Avoidance of Contract on Basis of Misrepresentation; Misrepresentation Defined
- § 2.32Requirements Contracts and Output Contracts
- § 10.1.5Performance of a Contract or Purported Contract
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Preface 8 results (showing 5 best matches)
- The sequence of materials as presented here may differ from the order or approach that the reader is utilizing for the study of the law of Contracts. For example, some Contracts courses may start with “Consideration”, and others may start with “Remedies”. Recognizing the diversity in approach, most chapters of this Nutshell have been written to be comprehensible regardless of the order of study. Therefore, the reader should be able to focus upon individual chapters without immediate concern about continuity.
- As a result, the UCC may be a little less “uniform” as enacted by the states. The text of this Nutshell will rely on the Official Text of the UCC and will use its citation form. When the text of this Nutshell intends to refer to the 2001 Revisions of Article 1, there will be an “R” before the section number. Thus it would be “section R1–301(c)” in the text that follows.
- This Nutshell is intended to assist those who are attempting to learn and understand the basic principles of the law of Contracts and of Sales of Goods in the United States. The materials as presented here are not intended to be the primary source of acquisition of the knowledge and understanding of the substantive law and underlying policies. The reader should appreciate that a work of this type is intended only as an additional supplemental resource to aid in the organization and understanding of the substantive law. As such, it is quite adaptable to a variety of learning strategies. It could be used to acquire a preliminary overview of a specific area, or it could be used after one believes he or she has already acquired an understanding of the basics. It could also be used simultaneously and continually with other sources during the entire learning process. Whichever choice is made as to its use, we would emphasize that ultimately there is no substitute for confronting directly...
- The earlier versions of Articles 1 and 2 of the UCC were adopted by all states except Louisiana. When enacted, they became the statutory law of that state as to what was included within them. Some states refer to the “Articles” as “Divisions” or use other terms. This Nutshell will use the term “Article”. The 2001 Proposed Revisions to Article 2 have not been adopted by any state and it is unlikely that any state will adopt them.
- The authors, along with thousands of law students, attorneys and judges, are indebted to the late Dean Gordon Duane Schaber (1927–1997), one of the authors of the earlier editions of this Nutshell. Gordon D. Schaber served the legal profession in many roles, including that of Lawyer, Professor, Dean, Community Leader, Judge, Adviser, Scholar and most important to us, a friend. His contributions to legal education at the national level cannot be measured.
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Chapter 10 Restitution (Unjust Enrichment) 13 results (showing 5 best matches)
- In each of these situations, there is no enforceable contract on which a suit may be grounded. Even in those instances where there once was a contract, by the time the suit is filed the contract has been rescinded, avoided or excused. Yet partial performance by one party may have enriched the other before the contract was terminated or before it was realized that the contract was not enforceable.
- There are numerous situations in which a party has rendered performance upon a contract or purported contract only to discover that there is no contract remedy. Consider the following possibilities. The negotiation process may fall short of that legally required to form a contract. The partially performed contract may be unenforceable because of failure to comply with some formality such as a writing requirement. The purported contract may have been void from the beginning for a reason such as lack of capacity. An apparently valid contract may have been avoided because of the presence of some defense. Performance of a valid contract may have been excused because of impossibility or frustration of purpose. A valid enforceable contract may have been unilaterally rescinded based upon a material breach by the other party.
- Law schools no longer teach Restitution as a separate subject. It receives some mention in Contracts classes where restitutionary remedies are included along with contract remedies. There are fundamental differences between the two areas of law, and failure to focus briefly upon these differences can leave students confused and ill-informed. For these reasons, we are including a discussion of restitution in this volume devoted to contracts so that you might be aware of how an action in restitution may arise. You will see how an action for restitution may be available in a fact pattern in which there was a contract or an attempted contract.
- Restitution is a separate body of substantive law. It is not part of the law of contracts. Just as an action may be brought in tort or in contract, so can an action be brought in restitution. There is even a separate Restatement of Restitution.
- The law of restitution provides substantive rights that fill some of the cracks between the law of torts and of contracts. It is frequently labeled “unjust enrichment,” an equally appropriate label that is synonymous with restitution. It is also sometimes labeled “quasi-contract” but that phrase describes only one aspect of the law of restitution.
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Chapter 5 Defenses 125 results (showing 5 best matches)
- Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake * * * .
- If a party contracts on Tuesday to purchase a commodity whose price declines sharply on Thursday, one might be inclined to state that the buyer made a mistake, but this is actually an error in judgment or an error in prediction. There were no facts existing on Tuesday, when the contract was
- In some construction contracts subsurface soil conditions are quite important. These contracts frequently contain provisions regarding which party has investigated these conditions. If responsibility for these matters was placed on the contractor, a court will deny relief for a later discovered mistake on the grounds that the contractor assumed this risk.
- cannot avoid a contract on the basis of misrepresentation unless relied upon it to the extent that it contributed significantly to the decision to enter into the contract on the agreed terms. This reliance must have been to the
- The risk of mistake may also be allocated to a party on the grounds that it is reasonable to do so. In a construction contract the risk as to unexpected subsoil conditions may be allocated to the contractor as a matter of law even though the contract does not mention this matter. In a land sales contract, the risk that oil might be discovered under the land after the contract is made is a risk that is allocated to the seller and no relief will be granted on the grounds of mistake.
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Chapter 2 Contract Formation 310 results (showing 5 best matches)
- The seller, perhaps believing there is a contract on its terms, ships the goods and the buyer, perhaps believing there is a contract on its terms, takes possession of the goods and uses them. There was no contract formed under subsection (1) of 2–207, but subsection (3) of 2–207, as well as § 2–204, recognize that the conduct of the parties can result in a contract. When this occurs, there is a need to determine the terms of the contract. Subsection (3) of 2–207 does this in a simple manner.
- A contract may leave terms of performance to be established by external standards. For example, a contract for the sale of goods may provide for a price equal to the price on a certain date of comparable goods on a given commodity market, or interest on an obligation may be fixed at one percent over the prime rate established by a designated bank or the average of a group of banks.
- After removing the interrupting language, UCC subsection 2–207(1) provides that an “expression of acceptance . . . operates as an acceptance . . . ”. The implication is clear that a contract is formed on the offeror’s terms. Turning to subsection (2), it is noted that “additional terms are to be construed as proposals for addition to the contract.” This is consistent with the notion that the contract formed under subsection (1) is on the offeror’s terms and the additional terms requested by the offeree are to be treated as an offer to modify the contract. Note, however, that subsection (2) does not mention “different” terms.
- The rise of the Internet and of digital media generally has had a significant effect on contracts law. In one sense, of course, this development seems superficial—should a new technology ( , ball point pens in place of quills, or the telephone instead of the mails) change basic contract principles? Yet contract law has always emphasized the objective intentions of the parties, and the circumstances surrounding a contract—as well as the practices of the parties and of their particular industry or trade—obviously affect how those intentions are manifested. As a practical matter, then, it should not be surprising that the effects of digital media on the behavior and customary practices of contracting parties have been as profound as their social and economic effects.
- An acceptance in which the offeree agrees to be bound to the offeror’s terms is effective to form a contract on the offeror’s terms even though the offeree may at the same time be requesting a change to those terms. The offeree is assenting to a contract and seeking the offeror’s assent to a modification of that newly created contract, as distinguished from making a counteroffer in which the offeree is manifesting the intent that there will be no contract unless the offeror assents to the counteroffer. So long as the response from the offeree is not made dependent upon the offeror agreeing to some changes or additions, it is effective as an acceptance.
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Chapter 14 Contracts Questions 52 results (showing 5 best matches)
- an offer on the first day of the month, and it arrived on the second. On the tenth day of the month, mailed a revocation, which would ordinarily be delivered on the eleventh but which was in fact delivered at 2:00 p.m. on the twelfth. mailed an acceptance at 1:30 p.m. on the twelfth. The letter of acceptance was never received. Was a contract formed?
- executed a written contract pursuant to which agreed to pay $15,000. The written contract specified that delivery was to be at ’s ranch on April 1. A dispute arose, and the contract was never performed.
- , an artist, on January 2, whereby on January 9. On January 7, repudiated. Is there a contract?
- has also relied upon the oral contract by making full payment, and is entitled to recover the monies paid on a restitution theory, a court should find that no injustice would result if the oral contract were not enforced (§ 10.1.5). Hence,
- On June 1, entered into a written contract in which $600,000 upon completion of the job. The written contract included a promise by promised to pay $750,000. On December 28,
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Chapter 3 Statute of Frauds 78 results (showing 5 best matches)
- enters into an oral contract on June 1 to work for for one year commencing July 10, the contract is within the statute of frauds and a writing is required. If performance were to begin immediately, the oral contract would be enforceable.
- The statute of frauds is a personal defense in that only a party to the contract or a party’s successor in interest can assert the absence of a signed writing to challenge the enforceability of the contract. Thus, an oral contract to buy a house can give the buyer an insurable interest which is needed for the buyer to purchase a valid insurance policy. If the house burns before risk of loss passes to the buyer, the insurance company, which is not a party to the contract for the purchase of the property, cannot challenge the buyer’s interest in the property on the basis of the statute of frauds. Also, the tort of interference with contractual relationships can be found despite the fact the contract is oral, and the existence of an unenforceable oral agreement may be introduced into evidence in any action for purposes other than its enforcement.
- Most jurisdictions include within the statute of frauds leases of an interest in land with a duration of more than one year. Assume that L and T enter into an oral contract for a one-year lease to commence on the first day of the following month. This contract does not involve an interest in real property of more than one-year’s duration, but it is a contract that is not capable of being performed within one year of the day of making. Some jurisdictions, probably the majority, hold that the dominant nature of the agreement is an interest in land, and since it does not come within the statute of frauds as an interest in land lasting beyond one year, there is no writing requirement. (See Restatement § 125, comment b.) Other jurisdictions, California, hold that since the contract cannot be performed within one year, it comes within another section of the statute, and a writing is required.
- Failure to comply with the statute of frauds will not preclude enforcement of a contract for the sale of land where there has been a change of possession referable to the sale and the buyer has made permanent improvements on the real property. This is referred to as “part performance” despite the fact that the critical element, making improvements, is not really part of the performance called for in the contract. (See Restatement, § 129, comment a.) Some jurisdictions will accept part performance in lieu of the required writing where the buyer has made rather minor improvements or paid a portion of the purchase price in addition to taking possession. Case law in different states varies widely as to what acts of part performance are sufficient to make an oral contract for an interest in real property enforceable.
- contract itself rather than some ancillary promise or representation relating to a writing. The Restatement now provides authority for courts to recognize such reliance on the oral contract as sufficient to preclude a statute of frauds defense, and there is a substantial body of case law that takes this position.
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Chapter 9 Remedies 107 results (showing 5 best matches)
- this loss was caused. Substantial loss on another contract is not a natural and probable result of a breach of a contract for goods. Therefore, Paul’s ability to recover for this item is dependent upon showing that Dan had reason to know the special facts that caused this loss at the time the Paul-Dan contract was made. Paul probably must show that Dan was aware that Paul had the contract with the Government; that this contract had a clause providing for stipulated damage for delay in delivery; and that delay in receipt of material would result in the inability to perform the Government contract on time. Absent reason to know all of these facts, it is unlikely that Dan should have anticipated that a delay would produce damages of this nature.
- The cause of action for recovery in restitution is technically not a contract action and for that reason, this right and remedy is discussed in Chapter 10. When seeking expectation or reliance damages, the plaintiff is asserting the contract and suing for its breach. When seeking recovery in restitution, the plaintiff is asserting that the defendant will be unjustly enriched if not required to disgorge its ill-gotten gain. The existence of a contract that was subsequently breached by the defendant and rescinded by the plaintiff may be a necessary element to establish why the right to restitution exists. But the fact is that the contract has been rescinded and the action is not being brought on the contract.
- If the contract provides for interest, and the sum specified does not violate local laws relating to usury (excessive interest), interest will be calculated in accordance with the contract terms and added to the damages awarded. If there is no express provision in the contract, common law decisions typically allow recovery of interest from the time of the breach if the obligation in question was a “sum certain.” For example, if the contract provided for the payment of $5,000 on April 1, and the defendant failed to pay this amount when due, the plaintiff is entitled to interest on $5,000 from April 1 until the date of judgment as “pre-judgment interest,” and thereafter as “post-judgment interest”, the calculation of which may vary depending upon local law. Conversely, if the amount owing as a result of the breach of a contract is an unliquidated sum, that is, a sum that cannot be determined precisely until a court makes its findings of fact regarding the amount of damages, then the...on
- Contract law requires greater certainty in the proof of damages than does tort law. There are several possible justifications. We usually select the parties with whom we make contracts and we can plan the transaction, including making provision for liquidated damages if appropriate. We do not pick our tortfeasors. There is no opportunity to negotiate a formula or other damage calculation before we are tortiously injured. The law of contracts has strong notions that people negotiating a contract should have an accurate picture of the risks they are assuming, including the liability that might result if they are unable to perform. No such policy restrictions on liability have been found appropriate in tort law.
- Expectancy damages can also be denied where they are simply too large in relationship to the contract price. Breach of a contract to perform minor repairs on the furnace in a restaurant before a big weekend might result in very large consequential damages that were quite foreseeable. However, even though the aggrieved party proves substantial damages, recovery may be denied if the amount of damages is out of proportion to the contract price. Where recovery is denied, it is usually based upon the concept that liability for damages of this magnitude was not within the contemplation of the parties at the time the contract was made. Here again the contrast with tort law is significant.
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Chapter 8 Performance 110 results (showing 5 best matches)
- Review the discussion of hypothetical construction contracts in section 8.3. When failure of an express condition leaves one party with a substantial loss due to inability to obtain the anticipated contract benefits, there is a motive to excuse that condition and give the party the benefits of the contract. The contrary position is based on the simple fact that we espouse principles of freedom of contract, and we are committed to respect the intention of the parties, which in this case includes enforcement of the express condition.
- No court ever interprets a term of a contract and labels it a promise or a condition without knowing what effect that label will produce. No law student or attorney should attempt to place labels on contract events without considering what results will best carry out the evident intention of the parties and the needs of justice.
- payment is due on delivery, which means at the time delivery is completed if it is a single lot contract or at the time of each delivery if it is an installment contract, and
- Assume that NFL Team hires Quarterback on a one-year contract that provides for a salary of $4,000,000 plus an additional $800,000 if Quarterback passes for a total of more than 3,000 yards during the regular season. Passing for more than 3,000 yards is an express condition to the duty of Team to pay the extra $800,000. Since it is a party-imposed condition and is expressly stated (rather than merely implied) in the contract, the court can be expected to respect the parties’ manifested intention and enforce the contract as written.
- An anticipatory repudiation may also give rise to an immediate cause of action for breach. In many cases, the innocent party is in a position where action must be taken to mitigate damages if the contract is not going to be performed. Thus, it is economically efficient to give the victim the right to react to a repudiation by suspending performance or seeking alternative ways to get the return performance needed. When this is done, courts generally recognize an immediate right to sue on the contract even though the repudiator’s duty to perform may not yet be due under the terms of the contract. Some common law decisions deny an immediate right of action if the innocent party has already fully performed and is simply waiting for the date on which payment will be due. In this latter circumstance, there is no action to be taken to mitigate damages and thus no economic inefficiency involved in compelling the victim to wait until the time that performance was due under the contract.
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Chapter 6 Events That Excuse Performance 29 results (showing 5 best matches)
- Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.
- Contract duties can be excused by the occurrence of an event if the contract was made on the basic assumption that this event would not occur. Events that excuse performance include those that make performance of the contract literally impossible or, as discussed in the next section, events that make performance commercially “impracticable,” what is commonly referred to as “practically impossible.” Included within “impossibility” are subsequent changes in the law that make performance illegal, even though factually still possible. (See example (3)
- can be held liable for damages even if actual performance of the promise is literally impossible. Students of contract law sometimes jump to the conclusion that since performance is impossible, any discussion of the question whether performance is excused or not is irrelevant. Since damages are the most common remedy for contract breach, the fact that performance is impossible does not preclude giving a remedy to the other party. For example, if Construction Company (CC) contracts to sell a specific new home to Buyer #1 but inadvertently sells the same house and conveys title to Buyer #2, the performance of the contract with Buyer #1 is now impossible. However, the contract with Buyer #1 is not excused because the impossibility is due to CC’s own fault. CC remains liable on that contract and Buyer #1 can obtain a judgment for whatever money damages Buyer #1 can prove.
- Contract liability is strict liability. It is an accepted maxim that contracts are to be kept. The obligor is therefore liable in damages for breach of contract even if he is without fault and even if circumstances have made the contract more burdensome or less desirable than he had anticipated.
- The more difficult questions regarding excuse of performance often involve events that do not make performance literally impossible. An event may preclude performance in the contemplated fashion but leave open alternative methods of performance. An event may not preclude performance in the contemplated fashion but may make performance more difficult or expensive to the point that the performing party faces substantial losses on the contract.
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Chapter 12 Assignment of Rights and Delegation of Duties 38 results (showing 5 best matches)
- As noted in the Restatement, however, in the case of assignment of executory contracts for the purchase and sale of real property, courts generally hold that the assignee does not impliedly assume personal liability for the contract performance. Assume ’s rights in a contract for the purchase of Blackacre from does not assume personal liability on the contract. remains liable on the contract with
- It is not uncommon to read that one party “assigned the contract” to another. This is an ambiguous expression that must be interpreted by use of surrounding facts and circumstances. The question to be answered is whether the parties intended only an assignment of the rights, or both an assignment of the rights and delegation of the duties. An “assignment of the contract” may mean that the assignor intends to perform the contract duties and manifests an intention only to transfer the contract rights. This is the typical situation if the assignment is made to a bank or other lender as security for a loan. For example, a lender may advance money to a contractor and take an assignment of the right to payment on certain construction contracts. This is done to protect the lender in the event the contractor does not repay the
- A delegatee does not become liable for the performance of contract duties unless he assumes those duties by expressly or impliedly promising to perform. If the delegatee does assume, the promise to perform creates contract rights in the delegator who may bring an action against the delegatee for its breach. The delegatee’s promise to perform also creates contract rights in the obligee who may bring an action as a third party beneficiary of the contract between the delegator and the delegatee, in which the delegatee promised the delegator that the delegatee would perform the duties owed to the obligee. Most third party creditor beneficiaries base their rights upon agreements in which a delegatee assumed contract duties (§ 11.2).
- “Assignment of the contract” may mean that the assignor manifests an intention to transfer the contract rights and to delegate the contract duties. The assignee/delegatee may expressly promise to perform those duties or in some cases will be found to have impliedly promised to perform the delegated duties by consenting to the transaction. If such a promise is found, the delegatee will be liable to the other party to the contract. (That party is a third party beneficiary of the contract of delegation.) The delegatee can also be liable to the assignor/delegator for breach in the event of nonperformance.
- It is essential to an assignment of a right that the obligee manifest an intention to transfer the right to another person without further action or manifestation of intention by the obligee. The manifestation may be made to the other or to a third person on his behalf, and, except as provided by statute or by contract, may be made either orally or by a writing.
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Chapter 15 A Framework for Review 35 results (showing 5 best matches)
- : While included on the list, bad faith is generally recognized as a defense to contract formation in the absence of some fiduciary relationship. Bad faith is relevant as an issue in contract performance and enforcement.)
- Post-contract event that makes performance impossible or legally impracticable. Must prove that non-occurrence was a basic assumption on which the contract was made. Must establish that the risk of this event is not properly allocated to the party seeking relief.
- If it is an installment contract, has there been a breach that constitutes a substantial impairment of the value of the installment tendered and cannot be cured (§ 2–612(2))? (If so, buyer may reject that installment.) Has there been such a breach that it substantially impairs the value of the entire contract? (If so, buyer may terminate the entire contract, § 2–612(3).)
- Contract Modification—Post-Contract Agreements
- If the agreement is not enforceable as a modification of the contract, can it still be effective as a waiver of a condition in the contract?
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Chapter 13 Discharge 36 results (showing 5 best matches)
- Assuming that Al was simply informing Harry that Al had assigned his rights and delegated his duties to Betty, and Harry was stating that he did not object, then as a delegator, Al remains liable on the contract with Harry. Harry has not manifested his assent to releasing Al from further liability on the contract. Harry would have had no right to object to the assignment and delegation on these facts, but informing Harry of the transaction is a customary and appropriate thing to do.
- If a judgment is obtained for breach of a contractual duty, the duty to perform under the contract is “merged” into the judgment and is discharged. A second action on the contractual duty will not lie, and enforcement must proceed on the judgment.
- Assume that a customer has charged various items at a store on a weekly basis for two years. Periodic payments have been made on this account but the balance has never been reduced to zero. The importance of account stated will be appreciated if one contemplates the evidence that would have to be produced at trial if a merchant sued on the more than 100 contracts which the parties have made. Proof of each sale, of each charge, of each returned item, and of each payment would be cumbersome.
- Two parties to a contract may discharge their respective duties by mutually agreeing to rescind their contract so long as a third party’s vested rights are not affected (§ 11.5). So long as there are executory duties owing on each side, the relinquishment of each party’s rights is supported by consideration, since each is giving up the right to receive performance in exchange for avoiding the duty of performance. Where one party has already fully performed, release of the other by way of “mutual rescission” will raise a consideration issue at common law (§§ 2.24, 2.25, and 2.25.1).
- An oral rescission is valid even if the statute of frauds required the contract that is being rescinded to be in writing. (See Restatement (Second) of Contracts (1981) (“Restatement”) § 148.) State statutes that provide that a contract in writing can be modified only by another contract in writing, or by an executed oral agreement, have usually been held to apply only to a “modification” and not to a rescission. Under common law, a contract can be orally rescinded even though it expressly states it can be modified only by a written document.
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Chapter 4 Contract Interpretation 78 results (showing 5 best matches)
- It is a commonplace that in determining either the existence or terms of a contract, we rely on the objective manifestation of the parties. (See § 2.2.) However, in seeking to interpret the meaning of the language of a contract, Restatement (Second) of Contracts (1981) (“Restatement”), § 201(1) requires that the court first determine the subjective intention of both parties. Subjective intention refers to the true intention that each person had in mind when the contract was made. What each person subjectively intended may be different from what
- The goal is to interpret adhesion contracts so as to enforce only those provisions that the reasonable person signing such a contract would anticipate. Provisions that a reasonable person would not anticipate and to which a reasonable person would not willingly agree are not considered part of the bargain. The fact that a contract is an adhesion contract may also be a relevant factor if the party with no choice is asserting that the contract is unconscionable. (See § 6.10.)
- One view of the obligation of good faith in contract law is that it is implied in order to protect the express covenants or promises of the contract, not to protect some general public policy interest that is not directly tied to the contract’s purposes. This is a fundamental distinction between tort and contract. The notion is that contracting parties should be permitted to control their obligations and their destinies by the intentions that they manifest. Thus, any duty of good faith and fair dealing must be consistent with the express terms of the contract and any other manifested intentions of the contracts. This use of the implied duty of good faith and fair dealing to implement the intention of the parties is consistent with our basic notions of freedom of contract.
- On the issue of contract interpretation and the intent of the parties, much has been written about the views of the two giants of American contract law from the first half of the twentieth century. Prof. Williston of Harvard is credited with advancing the view that the objectively manifested intent controls without regard to what the parties may have actually intended. Although a great jurist, Judge Learned Hand, wrote an opinion or two that expressly stated that contract terms, strictly speaking, have nothing to do with the actual intention of the parties ( ), it is not likely that Samuel Williston’s views on this, or on most other subjects, were as dogmatic or simplistic as a few later day writers sometimes indicate. Professor Williston was
- The likely proper conclusion is that the objective meaning of the contract terms refers to the barn on Old Acre. This happens to be consistent with the offeree’s subjective understanding, but it is the
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Chapter 7 Contract Modification 54 results (showing 5 best matches)
- discovered significantly more work was required than had been anticipated. The original contract required to lose at least $2,000 on the contract. When would complete the work on time and completed the work on time but
- allows a contract modification to be enforced without consideration. However, the preceding example involves a contract for services, not goods, and had a sales contract with to deliver the purchased furniture on a specified date, but would be obligated to deliver on the new date (assuming that any writing requirement is satisfied).
- painting contract had been formed with a completion date of June 12, ’s tenants were planning on moving in on June 13. and without justification stated that the work would not be done on time unless
- If the original ($9,000) contract was rescinded and a new contract made for $11,200, then there is no consideration problem. There is no preexisting duty if the first contract was rescinded. If facts exist from which such an analysis might be made, should prevail, and in some jurisdictions, courts are quick to assume that there was such a rescission and new contract.
- A promise modifying a duty under a contract not fully performed on either side is binding
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Chapter 11 Third Party Beneficiaries 32 results (showing 5 best matches)
- In contracts to which governmental entities are parties, one might assume that the government would prefer to do its own contract enforcing and reserve the right to rescind or modify a contract or determine the manner and extent of enforcement action. Thus one might assume that giving a right of action to a third party beneficiary might not be “appropriate to effectuate the intention of the parties.” However, assume that a government contract requires a builder to construct homes to certain minimum standards for a class of buyers such as military veterans. In this circumstance it has been successfully argued that the government did intend to give the home buyers the right to enforce the contract promises. Apartment tenants have been found to be intended beneficiaries of the financing contract between a Federal Agency (HUD) and their landlord ( ...to third party beneficiary claims of this sort. If the party seeks damages, courts look to whether the contract in question... ...on a...
- Contracts may be formed in which one party’s performance is to be rendered directly to a third party or the performance will indirectly confer a benefit upon a third party. Early common law courts were reluctant to recognize enforceable contract rights for these third parties. They had difficulties with the theoretical aspects of permitting a third party, who had no privity with the promisor and from whom no consideration “flowed,” to enforce the contract. Today all American jurisdictions have accepted principles of contract law that allow enforcement of such third party beneficiary contracts.
- A third party acquires the right to enforce a contract only if the court finds that the principal parties to the contract intended to create legally enforceable rights in the third party. This test has been expressed using varying terminology in different jurisdictions. Some require a finding that the third party was a “direct” beneficiary, some require that the third party be the “primary” beneficiary, and others inquire whether the contract was made for the “express benefit” of the third party. No matter how it is articulated, the critical test is whether the third party was intended to have enforceable rights under the contract.
- does a third party beneficiary’s right vest? Different jurisdictions find third party’s rights to have vested upon the occurrence of one of three events. First, there are cases which hold that rights vest immediately at the time the contract is made. This is true even when the beneficiary does not learn of the contract until a later time. Second, a number of cases hold that rights vest at the time the third party acquires knowledge of the contract and agrees to accept the benefits thereof. If the beneficiary learns of the contract and does not expressly reject the benefits, then acceptance is ordinarily presumed. The third and probably the most commonly applied rule requires a change in position by the beneficiary in reliance upon the contract in order for the beneficiary’s rights to vest. Ordinarily, only a slight change in position is required,
- The only defense that might arise under the Dan-Joe contract that cannot be asserted against Mary would be the defense of modification or rescission that occurred after Mary’s rights had vested. If Mary learned of the Dan-Joe contract and changed position in reliance upon her right to recover from Dan, her rights under that contract would be vested no matter which vesting rule the court applied. If Dan and Joe later modified their contract, such as by providing that Dan would pay the $10,000 to Joe instead of to Mary, this modification cannot defeat Mary’s vested rights.
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Index 74 results (showing 5 best matches)
- CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOOD, UNITED NATIONS
- UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS
- UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS
- REQUIREMENTS CONTRACTS AND OUTPUT CONTRACTS,
- Performance of a contract or purported contract, 10.1.5
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- Publication Date: November 15th, 2016
- ISBN: 9781634599146
- Subject: Contracts
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell provides a comprehensive guide to the law of contracts. It contains expert explanations of contract concepts under both the common law and Article 2 of the Uniform Commercial Code. It also includes the basics of the Law of Restitution and an introduction to digital contracting.