A Short and Happy Guide to Contracts
Authors:
Epstein, David G / Markell, Bruce A / Ponoroff, Lawrence
Edition:
2nd
Copyright Date:
2019
15 chapters
have results for happy and short guide to contracts
Chapter 7. Who Else Is Affected by the Deal? (Third Party Interests) 157 64 results (showing 5 best matches)
- As promised by the words on the cover, this book is “short.” And, since you are on this page, you are now “happy.” Happy that you are through with this book; happy that you now understand the law of contracts.
- Because we want you to be happy when you receive your contracts grade, we need to emphasize another word on the cover of this book—“Guide.” This book is not a treatise, not even a hornbook, not even a concise hornbook, not even a nutshell, not even. . . .
- The first exception to the general rule that contract duties are delegable is what we call the “contract language exception.” If your contract with Ponoroff provides that he cannot delegate his contract duty to paint your house, then you don’t have to accept performance from anyone else. When Markell shows up to paint your house, introducing himself as “Markell the delegatee,” you can tell him to “hit the road” and that you want the short guy with whom you contracted to paint your house.
- Assignment of right to services:
- the third party beneficiary case that appears in most contracts casebooks. Holly owed Lawrence $300. Holly then enters into a contract with Fox in which Fox, for consideration, promises to pay $300 to Lawrence. Again, the contract in question was between Holly and Fox. Although Lawrence was not a party to that contract, and was not the source of the consideration to Fox, Lawrence had a contract law right to recover the $300. Holly and Fox made their contract to benefit (pay) Lawrence.
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Copyright Page 2 results
- a short & happy guide
- 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.
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Chapter 5. When Will Performance of the Deal Be Excused? 109 89 results (showing 5 best matches)
- Assume for example that after the Super Bowl was awarded to Richmond for 2019, Ponoroff contracted with Epstein to rent Epstein’s Richmond home for the fourth week of January and the first week of February in 2019. Then, after the contract but a month before the Super Bowl, an unprecedented flood of the James River destroys Epstein’s home. Should Epstein be excused from performing? Or instead, if after the contract but before the Super Bowl, Epstein dies? (Have we mentioned that Epstein is really old?) Or, instead, if after the contract but before the Super Bowl, the Commonwealth of Virginia enacts a law requiring that a person be at least 5 feet 7 inches tall to attend the Super Bowl? (Have we mentioned that Ponoroff is the “short” of this
- Whether a breach is “material” is a fact question and so it is unlikely that you will be asked to decide whether a breach is material unless it is obvious that there was a major screw-up. A breach can be material because of the quantity of performance (or lack thereof)—e.g., Ponoroff contracts to wash Markell’s car and stops work after washing only the lower third of the car (have we mentioned that Ponoroff is short?) or because of the quality of performance (or lack thereof)—e.g., Ponoroff contracts to wash Markell’s car and washes the entire car with a dirty chamois cloth so that the car is dirtier after Ponoroff finishes his performance than before he began.
- First, an express condition is language or words in a contract.
- It is easier to explain what constructive conditions are than to explain what constructive conditions are.
- Damage or destruction of the subject matter of the contract does not always excuse performance. Obviously, if Markell contracts to paint Epstein’s house and the house burns down before Markell is finished, Markell is excused from performing. No ability to perform—nothing for the paint to stick to. By contrast, if Markell contracts to build a house for Epstein and the house burns down before Markell is finished, Markell is not excused from performing. Markell the house builder still has the ability to build the house.
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Chapter 2. Is the Deal Enforceable? (Bases of Promissory Liability) 47 57 results (showing 5 best matches)
- A Short & Happy Guide to Contracts
- We have all been teaching Contracts a long time, although, because of his age, Epstein longest of all. Over that time, we have seen students become quite smitten with promissory estoppel—to the point that when the time comes for the exam they see it everywhere! Therefore, we caution you that before jumping to promissory estoppel as a solution to a problem, you should see if a typical contract—one supported by consideration—exists. If so, it is almost invariably unnecessary to reach for promissory estoppel. Similarly, even in jurisdictions that recognize promissory estoppel as an independent, almost tort-like theory of liability, remember that there are several elements to a successful claim under the theory and that, more often than not in the “real world,” promissory estoppel claims fail. So, particularly in a Contracts course, when you have enforcement of a contract being challenged for whatever reason, such as lack of mutual assent, indefiniteness, absence of a writing, etc....
- Of course, there is an exception to this general rule; circumstances where a promise made in recognition of past benefits may be enforceable. This “exception” is known as the “material benefit rule.” To understand this rule, we believe it may be helpful first to introduce the concept of a contract “implied in law,” and to distinguish that type of “contract” from both an express contract and a contract “implied in fact.” The latter two terms refer to true contracts; that is, agreements predicated on the voluntary undertakings of the parties—whether the promises are evidenced by words (express contract) or conduct (implied-in-fact contract). An implied-in-law contract—or quasi-contract—is not really a contract at all. It is an undertaking created under the law of restitution to prevent an unjust enrichment. There is no real promise or voluntary consent; but rather a duty imposed by law to pay (i.e., make restitution) for the value of a benefit conferred on the defendant by the...to
- In modern terms, it’s pretty easy to see that there was a bargain in ; i.e., nephew gives up doing things he has a legal right to do (and presumably had done in the past) in exchange for the promise of money. However, short of a situation where the promisee has no legal right to do what he agreed not to do, it’s hard to see the doctrine of consideration operating as a very significant limitation on the enforcement of promises, so long as there is some act or return promise given by the promisee. But maybe that’s ok, as it is not exactly obvious to us why enforcement of promises should depend on the presence of consideration at all, as opposed to say a written or electronic record, which provides clear evidence of the terms of the promise, as well as shows that it was undertaken seriously. Be that as it may, we still have the doctrine and it does emphasize the primacy of as a foundational element in the law of contracts.
- The answer was “no” because the new promise to pay the additional $5,000 was not supported by consideration; Epstein, Markell, and Ponoroff did not agree to do anything beyond what they originally promised to do. This rule was known as the pre-existing duty rule, which held that a promise to do that which a party is already bound to do, or refrain from doing something she has already agreed not to do, could not constitute consideration for a contract modification. Its application meant that for any contract modification to be enforceable, the modified agreement had to be supported by a
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Title Page 3 results
Acknowledgments iii 4 results
- We would like to thank Paula Franzese and Louis Higgins for making this book possible. Paula is an incredibly creative law professor who “invented” the Short and Happy series. Louis is our incredibly nice friend at West with even nicer daughters, Cecilia and Yvette.
- Finally, and most important, we’d like to thank all of the professors assigned to teach contracts but who would have preferred to teach constitutional law (or to not teach at all so they could devote more time to their “scholarship”)—they made this book necessary.
- And, Epstein would like to thank Juliet Moore who made this book better. Juliet, a law student at Georgetown, helped Epstein with his part of the book, and Epstein, bless his heart, needs all of the help he can get.
- Ponoroff, although not being nearly as needy as Epstein, would like to thank Carol Lamoureux, a graduate of the University of Arizona College of Law, who made several helpful suggestions from a student’s perspective and did a fine editing job on the first edition of the book. He further wishes to acknowledge Alla Goldman, also an Arizona Law graduate, who is responsible for the diagram of UCC § 2–207, which appears in Chapter 1 of the book.
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Chapter 4. What Are the Terms of the Deal? (Parol Evidence; Interpretation) 87 79 results (showing 5 best matches)
- When presented with difficult questions of interpretation, courts will often resort to “maxims” of interpretation. These are short hand rules that distill cases and, in some cases, common sense, in an effort to figure out what the parties meant by the words they used. One main maxim is that a contract should be construed against its drafter—representing the notion that if someone drafted a less than perfect contract, then that person should bear the cost of ambiguity. Other maxims look to common sense. For example, generic terms will take the meaning from their context. (This rule often goes by its Latin name, ). A contract to sell, for example, the “horses, cattle, sheep and other animals” on a farm would likely include hogs on the farm, but not the seller’s pet fish, or even her pet dog. And general wisdom holds that we should prefer an interpretation that leads to a valid contract, or one that furthers public policy, over an interpretation that produces invalid or illegal contracts.
- To the contrary: most contracts in use are adhesion contracts, and the world gets along just fine. With contracts of adhesion, however, courts often will narrowly construe the terms in favor of the party who had no choice but to accept the terms offered. In some sense, this is a version of the legal maxim of construing the contract against the drafter, or of construing a contract so as to promote public policy. Most often these rules are used to construe insurance and other similar contracts in which a consumer pays for a standard service without the ability to bargain over much of anything.
- An integrated agreement is one that is complete and final. Duh. But “agreement” here is slippery. It can mean an agreement on just one term in the contract—the subject of the sale contract or the price being paid, for example—or it can refer to the entire set of promises that comprise the contract by which Armie is to be sold. So the first contract above—Armie the Armadillo for $25—is integrated as to its subject—Armie—and its price—$25. If written (and by the way, the parol evidence rule applies to agreements in writing), then this agreement is
- Parties often use preprinted forms, or economically powerful entities use their might to offer terms on a take-it-or-leave-it basis. These are examples of adhesion contracts—contracts in which there is no bargaining permitted and which offer no choice but to accept the terms as presented. Your apartment lease, your cell phone contract, a car rental contract are all examples of adhesion contracts. Make no mistake—
- The same result follows if the contract is for six months, and Ponoroff has paid on the first business day for the first three months, and then Epstein pulls his stunt. In this case, not only would Ponoroff have the ability to show a course of dealing—consistent and accepted performance over several years of contracts—but also course of performance—consistent and accepted performance with respect to the very contract at issue.
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Chapter 1. Has a Deal Been Made? (Offer and Acceptance) 1 133 results (showing 5 best matches)
- The realities of modern commercial transactions, however, suggest that agreements to agree can serve useful and important commercial purposes. Not uncommonly today, instead of “one-shot” transactions involving short, impersonal dealings, many business deals will involve long-term, complex arrangements. In these cases, where performance may span several years, perhaps neither party wants to accept the risk of setting a price today for goods and services that will be rendered far into the future. In these circumstances, it makes sense for them to say: “We will set the price at the time when prevailing market conditions are known.” When everything goes according to plan, the parties will later come to an agreement on the open term, and everyone is happy. If the parties fail to come to an agreement, however, the court will have to decide whether the agreement is too indefinite to enforce or whether the court can save the deal by supplying the missing terms.
- By and large, courts have enforced clickwrap and scrollwrap agreements, while the results have been mixed with respect to other kinds of online consumer contracts. In determining the validity of any form of electronic assent, the factors that will guide the analysis tend to be whether (1) the website draws the user’s attention to the terms of the deal or at least to their existence, (2) the website’s design makes it easy for the user so inclined to examine the standard terms, (3) the user’s assent is captured in some fashion, and (4) the proximity of the hyperlink to the vendor’s terms to the part of the website where the user signifies her assent or signs-in.
- So, if Ponoroff says, “I agree to pay you $100 if you deliver Armie to me,” and Epstein says, “I accept,” a contract is formed even though Epstein hasn’t yet delivered Armie. Under this contract, Epstein is bound to deliver Armie and Ponoroff is bound to pay. However, if Ponoroff had said I’ll pay you $100 if and when, and only if and when, you deliver Armie, no contract is formed by Epstein’s verbal acceptance. Rather, the contract will only arise when Epstein performs the requested act. This is because Ponoroff’s made clear that this was an offer for a contract. More on this distinction follows.
- Under classical contract law principles, every offer had to be characterized as either unilateral or bilateral; that is, as seeking acceptance by, respectively, either an act (unilateral) or a return promise (bilateral), and an attempt to accept was proper only if it complied accordingly. Therefore, if Markell offered Ponoroff $20 to “wash and wax my car,” the only way for Ponoroff to accept would have been to do the work. Correspondingly, if Markell said, “I’ll pay you $20 if you agree to wash and wax my car,” Ponoroff would need to promise to do so (“I agree”) in order to create a binding contract. By definition, a unilateral contract is executory only on one side (because the other party has fully performed as part of her acceptance), and a bilateral contract is, at the moment of formation, wholly executory (
- Now, just to make sure you really have it here, let’s assume the same facts except (1) Markell never speaks with Ponoroff, and (2) unbeknownst to Markell when he calls Epstein and accepts, Epstein had in fact entered into a contract to sell Armie to Robbie’s. Is there a contract between Epstein and Markell? You bet. Is there also a contract between Epstein and Robbie’s? Sure. Are they both enforceable? Yes. You mean, one party can enter into more than one contract for a single subject matter? Absolutely, but we don’t recommend it, since Epstein necessarily will only be able to perform one contract and, thus, will unavoidably be in breach on the other. To be clear, the difference in this set of facts is that revocation was never to Markell, so he had no way of knowing that Epstein’s intention was no longer the same as when the offer originally had been communicated to him.
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Introduction vii 10 results (showing 5 best matches)
- In this book, we are going to break the subject of contracts into seven short questions:
- Most contract law is common law; which is to say, judge-made law, developed over hundreds of years in individual cases. Contract law in this country was originally inherited from England at the time of the founding of the Republic, and then continued to be developed by American courts. The early 20th Century saw the promulgation by the American Law Institute of of the law in several fields, including contracts. The are code-like documents that attempt to set out the law as it currently exists. They are influential, but without the force of law. In other words, a court is not bound to apply the
- Welcome to law school. In your first year, you’ll have several courses, such as Civil Procedure, Torts, Criminal Law, and, of course, your most important course: Contracts. Why is Contracts so important? Just think about the last month. We’re betting that during that time you did not: (1) sue anyone in federal court, (2) run down a pedestrian while driving under the influence, or (3) commit any major felonies. But we are willing to bet that during that same time you probably signed (1) an apartment lease, (2) an agreement for broadband wireless service, or (3) a promissory note for your student loans, and maybe all three. Each of those transactions, and perhaps several more in which you’ve engaged in the last month, involves a contract. So, as you can see, contract law pervades daily life from shelter to occupation to creature comforts.
- Now, what does each of those “contracts” you may have entered into over the last month have in common? Each involved at least one A promise, in its most elemental form, is an undertaking or commitment to do or not do something in the future. Generally speaking, a promise, once made, should be kept, right? But not all promises are equal in the eyes of the law; not every promise made can be enforced in a court of law. That’s what contract law is all about; namely, when will a broken promise give rise to legal liability and when not. At its core, contract law is the system of rules and policies governing the legal enforcement of promises. And, bear in mind, contract cases range from very simple deals, like those described above, to highly complex transactions, such as corporate mergers, technology transfer agreements, or construction financing arrangements, to name just a few.
- In this book we will reveal those rules to you in as straightforward and clear a fashion as the rules themselves permit. But we will also talk some about and the difference between the two. For now, think of them this way: policy reflects the normative objectives we want to attain, and the rules are the vehicles for getting us there. For example, one of the foundational policies behind contract law is that of “freedom of contract.” That phrase refers to the right of a person to make a legally binding agreement with one or more other persons without governmental interference as to what type of obligations she can take upon herself or impose upon the other.
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Chapter 3. Are There Defenses to Enforcement of the Deal? 71 56 results (showing 5 best matches)
- There is considerable case law on whether a covenant not to compete is unenforceable because of the public policy defense. Covenants not to compete are fairly common in contracts for the sale of business and employment contracts and contracts casebooks.
- Is a contract between the City of Chicago and Markell to move the Statute of Liberty to the Miracle Mile in Chicago within the statute of frauds? No. Contracts for the performance of a specific task, as contrasted with contracts for a specific time period or a specific time are never within the statute of frauds. The amount of time that it will take Markell to perform is irrelevant. Most statute of frauds regarding service contracts use language similar to “to be performed within a year of the date of the contract.” And most courts interpret the words “to be” in this context as meaning “theoretically possible with unlimited resources.” With unlimited resources, any task, including moving the Statute of Liberty to Chicago is “capable” of being performed within a year of the date of the contract.
- The law in question does not have to be a criminal law. You know and understand that a court will not enforce an agreement to pay 12% interest if the usury statute in the state where the contract was made provides that contracts to pay greater than 10% interest are void.
- There are not many reported cases holding that contract performance is excused by economic duress. This is because in most situations, it’s perfectly ok to capitalize on one’s economic advantage.
- Is a January 2, 2017, contract by Kinky Friedman to perform at Epstein’s 75th birthday party on December 7, 2018, “within the statute of frauds” even though the Kinkster’s performance will only last an hour? “Yes.” The focus is not on how long a person actually performs but whether her performance can be completed within a year of the date of the contract. Watch for the exam question that gives you both the date of the contract and the date that the contract specifies performance must occur.
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Chapter 6. How Does the Law Enforce the Deal? (Contract Remedies) 133 74 results (showing 5 best matches)
- The UCC makes some subtle changes to damages. While a buyer may still recover the difference between the market price of the goods the seller agreed to sell and the contract price, the UCC makes proof of damages somewhat easier. Rather than having to prove market price, which would require an expert to opine on what the market was, the buyer can purchase substitute goods and recover the difference between the substitution cost and the contract price. Section 2–712 of the UCC calls this “cover,” and conditions its use on the repurchase being in good faith, without unreasonable delay, and at reasonable terms. Thus, if Epstein breaches his contract to sell Ponoroff Armie the armadillo for $10, and then Ponoroff promptly buys a substitute armadillo for $25, his damages will be set by that price—$25—if it was in good faith and otherwise reasonable.
- Another distinction between Contract and other types of damages is that contract damages do not include damages for emotional distress (unless such distress was serious, and clearly foreseeable at formation—as if Ponoroff’s Funeral Parlor agrees with Markell for burial services for Markell’s grandmother, and then neglects to put the body in the casket before burial). Contract law also does not award punitive damages—damages designed to deter future similar conduct or to punish conduct.
- This measure of damages is often used without any change when the object of the contract has a value can be determined without reference to the contract. Put another way, it is often used when there is a market for what was to be bought and sold under the contract, or if there is some way to independently determine the value of the object “as promised.” Obviously, if there is a market for the kind of object mentioned in the contract, proof of what the market would charge would also be proof of what the value of the promise was.
- This is illustrated by the following. Assume that Epstein signs a contract with Markell under which Markell will buy land from Epstein for $100,000. Unbeknownst to Markell, Epstein misrepresented material facts to Markell, and those misrepresentations would allow Markell to avoid the contract. A year later, after Markell spends $10,000 making improvements to the property, he discovers the fraud, and seeks to avoid the contract. Markell will not only get back his $100,000, but will also receive the value of his improvements; if they are worth $15,000 ($5,000 more than he paid), he will receive his original $100,000 plus the value of the improvements, or another $15,000. He, of course, will have to return the land to Epstein.
- to be charged with consequential or special damages, the breaching party must have been able,
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About the Authors v 3 results
- Bruce A. Markell is the Professor of Bankruptcy Law and Practice at Northwestern University Pritzker School of Law in Chicago. He’s not taught Contracts for as long as Epstein (that would be almost impossible), but he has taught it for almost 30 years. During this time, in addition to being a law professor, he was a bankruptcy judge for the District of Nevada, and also served on the Bankruptcy Appellate Panel for the Ninth Circuit. Before taking the bench, he practiced bankruptcy and business law for ten years in Los Angeles. He is the author or co-author of numerous articles, and of casebooks on contracts, bankruptcy, and commercial law. He is a conferee of the National Bankruptcy Conference, a fellow of the American College of Bankruptcy, a member of the International Insolvency Institute, and a member of the American Law Institute. He is the humorless co-author.
- David G. Epstein, the “senior” co-author of this book, has taught Contracts at seven different law schools. For more than 40 years, he has also lectured on Contracts at bar review courses around the country. David now teaches at the University of Richmond Law School (which is wonderfully close to his wonderful granddaughter Libbie and grandson Charlie) where he holds the George E. Allen Chair. (Created to honor an outstanding Virginia trial lawyer, not the former Redskins coach or his politically incorrect politician son.)
- Lawrence Ponoroff is Dean of the Michigan State University College of Law. Prior to that, he was Dean of the James E. Rogers College of Law at the University of Arizona, where he also held the Samuel M. Fegtly Chair in Commercial Law. Ponoroff also served as Dean and Mitchell Franklin Professor of Law at Tulane University Law School in New Orleans. A couple light years prior to that, he was a partner in the Denver-Colorado based law firm of Holme Roberts & Owen (now Bryan Cave Leighton Paisner LLP). Dean Ponoroff, who has been teaching Contracts for over 30 years, has received outstanding teaching awards at four different law schools. He is a Fellow of the American College of Bankruptcy as well as a member of the American Law Institute. He is also much nicer than his two co-authors, and almost as funny as Epstein.
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Table of Contents 32 results (showing 5 best matches)
- Publication Date: March 18th, 2019
- ISBN: 9781640207523
- Subject: Contracts
- Series: Short & Happy Guides
- Type: Overviews
- Description: This efficient and exceedingly effective guide to Contracts will help you see the big picture. The authors focus on making the key concepts of contract law, and the relationship among those concepts, easier to understand and retain. The authors have also infused the book with humor, believing there is nothing inconsistent between a rigorous academic experience and having a little fun. Each of the authors is nationally-renowned law teacher who has taught Contracts for decades. Based on that experience, in this book they have set forth understandable techniques for mastering the law governing each critical aspect of the contract relationship, including, contract formation (offer and acceptance), enforcement (consideration and defenses), interpretation, performance, breach, and remedies.