Chapter 8 Performance 102 results (showing 5 best matches)
- Contract law in the United States does not impose a general requirement of good faith in the negotiation stage. The contract is what gives rise to the obligation of good faith, and that obligation is applicable to matters relating to the “performance or enforcement” of the contract. An existing contract may impose a requirement of good faith in the negotiation of renewals or the negotiation of contracts concerning related matters.
- 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.
- The question of severability of contract performance is ultimately resolved by determining the parties’ intentions. Did the parties intend that the painter was to be paid after each fence was painted or did they view the contract performance as a single event? A contract can be severable if:
- At common law, contracts for the sale of goods were interpreted to require sellers to deliver the precise goods at the stated time and in the correct quantity. Historically, contracts for the sale of goods were generally single transactions in which precise performance by the seller was expected. The UCC has continued this interpretation of contracts for goods and any departure from the contract specifications is therefore a breach entitling the buyer to any money damages that can be proven. However, the remedy that is far more important in many circumstances is the right to reject goods that do not conform or goods that are not tendered in conformance with contract requirements such as a late delivery. As a practical matter, if the buyer must accept goods that are not properly tendered, the right to claim some damages is often not a helpful remedy. The right to reject the goods is usually a much more helpful remedy.
- A contract requires that at least one party make a promise. Thus, there was no contract between Bert and Sam. There was a sale, but there was no contract. Because Sam is a merchant with respect to goods of this kind, Bert has an implied warranty of merchantability and may have an express warranty based upon labeling or the like. These warranties arise out of the sale of goods and not out of any contract.
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Chapter 10 Restitution (Unjust Enrichment) 12 results (showing 5 best matches)
- 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.
- 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.
- 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 1 Introduction 41 results (showing 5 best matches)
- “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.
- 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.
- The rules that govern the enforceability of these promises give predictability to contracts. What gives perceived legitimacy to these rules and makes their predictability desirable is the public policy that underlies contract law and sales law. Freedom of contract—the freedom of individuals and enterprises to make their own economic arrangements with each other—is a fundamental prerequisite for a free society. This notion of contract law being a fundamental freedom is easily overlooked in a society in which this right is taken for granted. However, adoption and enforcement of laws permitting freedom of contract have been major necessities in countries that have been evolving from a command economy to a market economy in recent decades.
- 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 a term that is used to describe a certain type of unjust enrichment/restitution case, that being a case involving imposition of a duty to pay for a benefit conferred as a result of the rendition of services or delivery of goods. The terms “quasi-contract” and “implied-in-law contract” are generally treated as synonymous. The terms were doubtless intended to be explanatory and to aid understanding, but as a practical matter their use creates considerable confusion. Each is the product of historical accident. They were developed to impose upon the defendant a liability similar in nature to the liability that arises from a true contract. The critical point to remember is that these terms are used in cases where there is
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Chapter 5 Defenses 118 results (showing 5 best matches)
- A person seeking to avoid a contract has the burden of proof of the requisite facts. If the contract is still executory, the appropriate remedy is rescission. If the other party to the contract was not taking advantage of an apparent mental weakness, and if the contract is not otherwise unfair, the right of avoidance may be lost to the extent that the contract has already been performed. If an unfair contract that resulted from mental impairment has been partially performed, the court may reform the contract or limit the non-impaired party to restitutionary recovery limited to the value of benefits conferred.
- Although it is said that infants are under a legal disability in regard to forming a contract, that is not technically accurate because an infant does have the power to form a contract and the contract will be enforceable by the infant against the other party. However, the contract may be avoided at the option of the infant. The infant therefore is in a favored position enjoying protection against improvident commitments but having the right to enforce the contract if the infant so desires.
- As used in the law of contracts, the term “mistake” refers to a belief that is not in accord with the facts. It must relate to a present factual matter existing at the time the contract is made. Proof of the existence of a mistake does not, in itself, afford a basis for relief from a contract or revision of the contract. It is simply the first step in establishing a right to avoid or reform a contract. As with most defenses, the law of mistake is a concept derived from courts of equity and all considerations of fairness and justice are properly weighed.
- If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so
- Procedural unconscionability has to do with how a term becomes part of a contract. It can relate to matters bearing upon a party’s lack of knowledge or understanding of the contract terms due to factors such as inconspicuous print, unintelligible legalistic language or a party’s lack of opportunity to read a contract or ask questions concerning its terms and meanings. Illiteracy or lack of sophistication may be relevant here. Procedural unconscionability can also relate to a lack of voluntariness arising from great disparity of bargaining power that makes the stronger party’s terms non-negotiable. These situations frequently involve an adhesion contract, which is simply a contract drafted by the dominant party and then presented to the “adhering” party on a take-it-or-leave-it basis. (See § 4.4.) Adhesion contracts are not objectionable, but the presence of an adhesion contract, with the attendant lack of any ability to negotiate, may bear upon contract interpretation and defenses...
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Chapter 2 Contract Formation 265 results (showing 5 best matches)
- Those offers that required a return promise would result in a contract upon the giving of the promise by the offeree in return for the promise by the offeror. At the moment of creation, both sides had unperformed promises, and the contract was thus a bilateral contract. (Today the bilateral contract is still the more common type of contract in business transactions.)
- Common law contract decisions from the early part of the twentieth century were often predicated upon a high degree of formalism. To convince a court that a contract existed, counsel had to establish precisely which communication was an offer and precisely when and how the offeree accepted that offer to create a contract. All essential terms were provided by the parties or there would be no contract. Court opinions often stated that it was the task of the courts to enforce contracts made by the parties, not to make contracts for them. If an offer was arguably one for a unilateral or a bilateral contract, the existence of a contract would be dependent upon proving to the court which type of contract the offer proposed and proving that the offeree in fact accepted in the “proper” fashion.
- If the parties intend a contract to exist currently, with the signed writing when it is created constituting a mere memorialization of their already existing contract, then there is a contract in existence from the time of the initial agreement. If however, the parties have reached an agreement but their intent is that the agreement will not be enforceable unless and until there is a signed formal written contract, then there will not be a contract unless and until the signed writing does come into existence.
- Those offers that could be accepted only by performance resulted in unilateral contracts. The contract would be formed when performance had been rendered by the offeree and therefore at the instant of creation there was only one party with any unperformed promises. This contract which had performances owing only by one side was dubbed a unilateral contract. When the contract was formed by the offeree’s completed performance, only the promise(s) of the offeror remained unperformed.
- The Restatement, First applied the traditional structure in which every offer is either an offer for the formation of a unilateral contract or a bilateral contract. As stated in the preceding section, this requires that one characterize the nature of the contract that the offeror proposes in order to determine whether the offeree must give a return promise or perform the requested act to create a contract.
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Chapter 4 Contract Interpretation 73 results (showing 5 best matches)
- 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.
- In many cases contract disputes will involve the meaning of the language used by the parties. Interpretation of oral contracts is a matter for the trier of fact, meaning the jury if there is one. Since the terms of oral contracts are usually remembered somewhat hazily, figuring out what was said often becomes more critical than determining what the words mean. However, interpretation of written contracts is at least initially a question of law and is therefore done by the judge and reviewed by appellate court judges. The discussion that follows refers primarily to written contracts or contracts in which the terms at issue were in writing.
- A few hours observing trial court judges in action interpreting written contracts will likely convince the observer that trial court judges are concerned with what the parties meant. Judges are painfully aware that these concerns will be antagonistic in some cases. A judge will listen, usually patiently, to the buyer telling what he or she thought the contract provided. If the judge concludes that this understanding is not in accord with what the contract language reasonably states, the judge will consider the factors mentioned in Restatement § 201(2) (quoted above). Finally the judge may rule for the seller, telling the buyer that the buyer must read and understand contracts before he or she signs them, or the judge may rule for the buyer, telling the seller that the seller should have understood what the buyer thought the contract
- Attributing a standard meaning to language used in a contract promotes consistency and predictability, whereas introduction of subjective meaning to alter contract relationships derogates from these goals. Therefore, courts are concerned with the plain meaning of contract language. This is perhaps even more important in international transactions where deviation from the literal meaning of contract terms in the interpretation process may open the door to unexpected results. The following rules are designed in part in response to these concerns.
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Chapter 6 Events That Excuse Performance 29 results (showing 5 best matches)
- 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.
- 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.
- To excuse performance, it is essential that both parties understand the purpose for which the contract is being made and that the failure of that purpose makes the contract performance totally valueless or almost totally valueless to the party seeking relief. Parties have attempted to apply this concept to a situation in which an event occurred that frustrated plans to make money from the contract performance. For example, tenants/lessees have sought relief from long-term leases of service stations when the highway was moved or gas and tire rationing was imposed. These efforts to obtain relief from unprofitable contracts almost invariably fail. The purpose of the contract is not frustrated; the only frustration is with the profitability expected by the tenant/lessee. Courts sometimes refer to this type of situation as being one of “economic frustration,” or “commercial frustration” for which relief is denied.
- 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)
- destruction, without the fault of the promisor, of the subject matter of the contract or a thing necessary for the performance of the contract; or,
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Chapter 12 Assignment of Rights and Delegation of Duties 35 results (showing 5 best matches)
- 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.
- Contract rights are property rights and as with most property rights, there are strong policy reasons to make them transferable. Like any other transfer of a property right, once an irrevocable transfer of a contract right has been accomplished, the transferor’s legal interest in the right is extinguished and the right becomes the property of the transferee. This transfer of a contract right is called an assignment.
- Debtors other than consumers may expressly waive defenses against an assignee in the original contract with the assignor ( ). When one party to a contract plans to assign rights thereunder (typically a seller of goods or services contemplating assigning the right to payment), that party may seek a contract term in which the buyer waives contract defenses against an assignee. This simple contract term can have far-reaching implications, because the buyer can end up paying money to the assignee for defective goods or for goods that were never delivered or services that were never properly rendered.
- A delegator remains liable for the performance of his contract duties despite the fact that the delegatee has assumed them. A denial by the delegator of further obligation under the contract constitutes a repudiation of the contract even if the delegatee is competent to perform and expresses willingness to perform.
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Chapter 3 Statute of Frauds 74 results (showing 5 best matches)
- Some state statutes describe as “void” any contract subject to the statute if the requirement of a signed writing is not met. However, such contracts have considerable legal force and the lack of a writing may be considered as only rendering the oral contract unenforceable but not void. If an oral contract was formed it will be valid. However, even though valid, the contract will be unenforceable if: (a) the contract is required by a statute to be in a signed writing; and (b) the party against whom enforcement is sought affirmatively raises the statute as a defense to the enforceability of the contract. If a party proves the existence of the oral contract and its terms, and the other party does not assert in a timely manner the absence of a writing as a defense in accordance with the jurisdiction’s rules of civil procedure, this defense may be deemed to be lost or waived. If the contract were truly “void,” then the many exceptions (discussed later) should not operate to make a “void”
- If a transaction involves an offer for a unilateral contract to be accepted by performance of an act that will take more than one year, the one-year statute of frauds provision is generally held not to be applicable. If one adopts the theory that the unilateral contract is not formed until performance is completed, then the contract is not “incapable of being performed within one year” from the time of its making, since the promisee has already completed performance as of the time of making. And if it is the promisor’s promise that cannot be performed within one year of the date of the making of the contract, the fact that the promisee has already fully performed takes the contract out of the statute of frauds.
- If the oral contract does not involve a transaction in goods but is within some other provision of the statute of frauds, parties to the oral contract are permitted to admit (orally) the existence and terms of the contract and still assert the absence of a writing as a defense to the enforceability of the oral contract. However, if the admission is in a signed writing, that writing itself may fulfill the statutory requirement.
- The statute of frauds is commonly referred to as an “affirmative defense to the enforcement” of a contract, with the result that a party must affirmatively and timely assert the statute as a defense to enforcement of the contract. This is the same as a “defense to the formation” of a contract, which can include situations in which there is a lack of capacity to contract, or misrepresentation or mistake in its formation, etc. Put another way, even if there was a contract formed, with offer, acceptance, and consideration present, the statute of frauds may make that contract unenforceable if it is not evidenced by a signed writing. Likewise, finding there is a signed
- 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.
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Chapter 7 Contract Modification 51 results (showing 5 best matches)
- 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.
- The issues that might arise as to the existence and enforceability of an agreement to modify an existing contract are very similar to those that could arise in regard to the existence and enforceability of the original contract itself. However, because there is already an existing contract relationship between the parties, the attempted modification must be measured against the express terms and other duties imposed by the existing contract. Therefore, the modification issues will potentially have some unique aspects that do not exist at the time of formation of the original contract. You should keep in mind when addressing modification issues not only the general principles of contract formation but also the special issues that could arise because of
- Note that evidence offered to prove a contract modification does not give rise to a parol evidence rule problem because the attempted modification is subsequent to the written contract. The parol evidence rule applies only to extrinsic agreements made prior to or contemporaneously with the creation of the written contract.
- Is there a statute requiring that the modification be evidenced by a signed writing? And, if there is already a written contract in existence does the existing contract by its terms require that any modification be evidenced by a signed writing?
- Contract modification, like formation, needs mutual assent. A party who has manifested assent to the modification may be able to show that the assent was induced as a result of mistake, misrepresentation, undue influence, or duress. All of these defenses to formation of a contract are applicable to modifications and subject to the same rules as discussed in Chapter 5.
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Chapter 13 Discharge 31 results (showing 5 best matches)
- 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.
- In contracts law, The most common manner in which contract duties are discharged is by performance, but there are numerous other methods by which contract obligations can be terminated.
- has materially breached a contract with has the right to rescind and thereby discharge all rights and duties under the contract. (If the entire contract. If should not be seeking to “rescind” the contract. If the victim of a material breach responds by stating that the contract is “rescinded,” there is the risk that a court may interpret that term literally and thereby deny the victim any right to recover damages for the breach.
- The UCC avoids these problems in transactions in goods by providing that when the parties mutually terminate a contract or when either party puts an end to a contract for breach by the other, unless the contrary intention clearly appears, remedies for breach of contract are preserved (§§ 2–106(3) and (4) and 2–720).
- has harvested 50 acres, the contract is “rescinded” by mutual agreement. Under the prevailing common law view, there is no presumption or inference that has preserved the right to collect at the contract price for the work performed. However, may still have a right to recover in restitution for the reasonable value of benefits conferred, even if the parties did not preserve any rights under the rescinded contract.
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Chapter 11 Third Party Beneficiaries 30 results (showing 5 best matches)
- 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.
- Many contracts are bilateral when formed, with two promisors and two promisees. Courts have sometimes indicated a lack of certainty as to which party’s intention actually controls in evaluating whether a third party will have enforceable rights under the contract. The third party will typically be seeking to enforce a promise of only one of the parties and it is helpful to identify as the “promisor” the person who made the promise that the third party seeks to enforce. Therefore, the other party to the contract will be “the promisee” of that promise. It should be noted that the promise that is sought to be enforced is not a promise made the third party himself. It is quite common that the third party will not even have knowledge of the existence of the contract at the time it is formed.
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Chapter 14 Contracts Questions 46 results (showing 5 best matches)
- ’s promise is by its terms not capable of full performance within one year from the date of making the contract and is thus within the statute of frauds. Part performance may affect the enforceability of contracts for the sale of goods or of interests in land, but this doctrine is not ordinarily used to enforce oral contracts which violate the one year provision. However, case law permits contracts not capable of performance within one year to be enforced if one party has fully performed (Restatement, Second, § 130(2)).
- Ordinary service contracts are not within the statute of frauds unless the contract by its terms is incapable of being performed within one year of the date of making. (One could enforce an oral contract to build a twin of the Sears Tower or the Grand Coulee Dam, because each contract is for services to be performed by , the statute of frauds does not apply. If this is viewed as a contract for goods, then the UCC would make the oral contract unenforceable unless further facts bring the case within one of the exceptions found in
- 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.
- : “Accept your offer. This contract should be reduced to writing and signed by us.” Is there an enforceable contract?
- If it is evident that there are further terms to be negotiated, or if there is some prospective difficulty in sorting out precisely what has been agreed to in the course of negotiations, then the request that a complete writing be drafted and signed may indicate that a further or final assent to be bound is necessary. In the given facts, the offer is contained in one writing and the offeree’s assent is unqualified. Thus it does not appear that there are terms yet to be agreed upon. There could be further details that might be resolved in the process of preparing a formal contract, but none are indicated in the facts. Thus we can find assent to be currently bound, and the signed written contract is intended as a formality. used language (“accept your offer”) that connotes present intent to be bound, and the anticipation of a formal writing does not preclude finding that the parties are already bound to a contract (§ 2.1).
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Chapter 9 Remedies 99 results (showing 5 best matches)
- The basic remedy for breach of contract in the Anglo-American legal system involves awarding money damages to compensate the aggrieved party for the loss of the benefits that the party would have received had the contract been properly performed. The formation of a valid enforceable contract creates in each party to the contract an expectancy that the law will protect. The right to the benefits that will be obtained from performance by the other party is a property right. When one party breaches, the aggrieved party is entitled to receive a judgment for that amount of money necessary to be placed, as nearly as possible, in the position the person would have occupied had the contract been performed. The computation of damages must take into account any amount that the aggrieved party could reasonably have saved by not having to perform the contract and recovery is limited to items that were foreseeable when the contract was made (This measure of damages is discussed in detail in § 9.2).
- If expectation damages cannot be or have not been proven, the aggrieved party may recover reliance damages. Reliance damages are measured by the amount of money necessary to compensate the aggrieved party for expenses or loss incurred in reasonable reliance upon the contract that was breached. Whereas expectation or benefit of the bargain damages are designed to place the aggrieved party in the position the party would have occupied had the contract been performed, reliance damages are designed to place that party in the position occupied before the contract was made. In other words, reliance damages are designed to restore the status quo. The victim is not given any profit or benefit of the contract but is merely being made whole as though the contract had never been formed (This measure of damages is discussed in detail in § 9.3). Expectation damages are “forward looking” and reliance damages are “backward looking.”
- 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.
- The parties had a valid enforceable contract; the wrongdoer committed a material breach of that contract; and, the innocent party elected to rescind the contract and sue for restitution.
- Specific performance, sometimes referred to as “specific enforcement of a contract,” involves an order of the court compelling the breaching party to complete the contract performance. In the Anglo-American legal system, common law courts could not specifically enforce a contract. Orders compelling a breaching party to perform could only be decreed by a court of equity, and a court of equity would not act unless the remedy at law was inadequate. While courts of law and equity have been merged today in most states, the requirements for obtaining specific performance have not been substantially changed. Thus, specific performance is not available for any contract breach in which the money damage remedy at law is considered adequate to place the innocent party in the position that party would have enjoyed had the contract been performed. In restitution cases, a party might get a court order directing restitution of the specific property delivered to the defendant under the contract. (...
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Chapter 15 A Framework for Review 34 results (showing 5 best matches)
- 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?
- Do the defense issues relate to the original contract? To a contract modification?)
- 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.)
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Preface 4 results
- Issues related to modification of contracts have been presented as a separate body of material. Although this is not ordinarily done, contract modification raises a rather standard clutch of issues that we think can efficiently be taught and understood as a package.
- 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.
- the study of the entire Contracts course is completed. It may assist in developing a manageable approach to the application of the extensive materials covered in the course. A student reading this chapter would be well-advised to self-test his or her own understanding of the Contracts course by evaluating why this “Framework” was put together as it was and whether the student could make improvements in it.
- ...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 primary sources of...
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Outline 45 results (showing 5 best matches)
- 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.