Black Letter Outline on Contracts
Author:
Perillo, Joseph M.
Edition:
5th
Copyright Date:
2010
21 chapters
have results for Calamari contracts
Appendix C. Comprehensive Essay Examination Questions 83 results (showing 5 best matches)
- The contract cannot be performed within a one year term and is, therefore, within the One Year Provision of the Statute of Frauds. Although either party can terminate within the year, under the majority view, termination discharges the contract so that it cannot be said that the contract is fully performed if the hypothetical termination takes place.
- As a general rule, a promise by one contracting party to pay an additional sum to the other for the performance of his contractual duty is void for lack of consideration.
- The delegation is, however, improper. Under UCC § 2–210(1) a delegation is improper if the obligee has a substantial interest in having the original contracting 229 N.Y. 114, 127 N.E. 898 (1920) (pre-code but good law); J. Calamari & J. Perillo, The Law of Contracts [
- (b) If the oral agreement was made subsequent to the written contract, it would have effectively modified the contract. The parol evidence rule does not bar evidence of agreements made subsequent to the writing. The modification is supported by consideration, as there is new detriment on each side. Broker’s payments rights are postponed. Owner’s payment duty is changed inasmuch as payment must be in one lump sum rather than in installments. The Statute of Frauds presents no obstacle to enforcement, except in those few states that require a brokerage contract to be in writing. The contract, originally not performable within one year, as modified, is performable within a year. Although it relates to real property, it is not a contract for the conveyance of any interest in real property. Therefore, it is not within the real property Statute of Frauds.
- 7. Because the original contract between and Tee called for performances that would be rendered directly to Butcher (paying for meat or, at a minimum, not buying meat from others). Butcher is an intended third-party beneficiary of the contract between and Tee. (Since the contract gives Butcher rights but no duties, it is an option contract.) As a third party intended beneficiary, Butcher’s rights have vested. Butcher knows of the contract and has relied upon it. Nonetheless, despite vesting, Butcher’s rights against and Tee. Potential defenses are the Statute of Frauds and Tee’s prospective unwillingness to carry out the contract.
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Title Page 2 results
Appendix D. Glossary 56 results (showing 5 best matches)
I. Mutual Assent—Offer and Acceptance 165 results (showing 5 best matches)
- While all contracts involve at least two contracting parties, two parties need not make a promise to form a contract. Contracts where only one party makes a promise are “unilateral.” Contracts where there is an exchange of promises are “bilateral.” Another way of looking at bilateral contracts is to note that two parties are under obligations to each other.
- An offer looking to a unilateral contract may be accepted by performance, except in the case of a reverse unilateral contract. The most important difference between any unilateral contract and a bilateral contract is that in the unilateral contract only one party comes under an obligation.
- Typically, an offer looks to a single contract. But an offer may instead look to the formation of a number (series) of contracts, unilateral or bilateral. Such an offer continues after the first contract is formed. Other contracts can also be formed by accepting the continuing offer. However, as to those potential subsequent contracts, the offer is as revocable as any other offer.
- If the offer looks to a unilateral contract, the offeree must intend to accept. Where the offer looks to a bilateral contract, it is quite possible to have a contract without an intent to accept because of the objective theory of contracts.
- This subsection governs acceptance by conduct where the communications of the parties do not result in a contract. The subsection changes the “last shot” principle of the common law. If the communications of the parties do not produce a contract, but the conduct of the parties recognizes the existence of a contract, there is a contract. The terms of the contract are those on which the writings of the parties agree “together with any supplementary terms incorporated under any other provisions of this Act.”
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Perspective 7 results (showing 5 best matches)
- Although preparation is important, what happens in class is much more important. Review the material prior to going to class. Get sufficient rest so that you are eager and alert. Then take the best set of class notes that is possible. How well you do this will depend on your professor’s method of instruction. The most important thing you can do is to organize your notes as soon after class as possible. This Outline should help you do that. If you are still troubled after reading this Outline you may wish to turn to a text such as the Calamari & Perillo Hornbook also published by the West Group. Don’t go to bed until you have mastered the lecture. It is most important to put the material in outline form. Preparing this outline will help you master the material. Continuously review your outline! Do not wait until exam time to learn it. Notice all of the features of this book that are listed in the “Publisher’s Preface” and use all of them.
- The course in Contracts tackles a large number of issues that at first appear to be unrelated. While some legal subjects, such as Torts, can be compared to a bowl of fruit, each topic being discrete from each other, the course in Contracts is like an onion, a many-layered subject. A large number of layers may lurk in a short fact pattern. The function of this outline is not only to state the general principles of Contract Law but to structure those principles in an orderly fashion.
- When you have listed all of the issues, try to put them in logical order. For example, the question of whether a contract was formed should precede any discussion of breach of the contract.
- APPROACH TO CONTRACTS
- Contracts is a very difficult course. At the same time, it is very important. It the foundation for many other courses in the curriculum (for example, the Uniform Commercial Code Courses, Real Estate Financing, Mergers and Acquisitions). It also trains students “to think like lawyers.”
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V. Conditions, Performance and Breach 88 results (showing 5 best matches)
- (h) the type of contract involved. For example, in a contract for the sale of goods, the “perfect tender” rule applies except in the case of installment delivery contracts. In construction contracts, and most other contracts, the doctrine of substantial performance is applied.
- contracts to deliver steel to repudiates the contract. On May 5, threatened by a lawsuit and advised by counsel of the probability of an adverse judgment, that the steel deliveries will be made as scheduled. The withdrawal of the repudiation effectively reinstates the duties of the contract. The result would be different if had already contracted with another steel supplier: in that case, liable for total breach of contract.
- Unless otherwise agreed, all goods called for by the contract are to be tendered in one lot. An agreement to the contrary can be inferred from circumstances as where it’s known the buyer cannot store the full quantity. Despite the presumption against installment deliveries, if the contract either explicitly or implicitly requires or authorizes delivery in separate lots, it is subject to the rules of installment contracts despite a contractual agreement to convert each delivery into a separate contract. Such a term of the contract is void.
- If the contract makes “time of the essence,” ordinarily any lateness will be considered a material breach. Otherwise, a reasonable delay will not be considered a material breach. In the case of contracts for the sale of goods, however, the UCC makes time of the essence except in the case of installment contracts.
- (3) A contractor agrees to make alterations for $3,075, payable as follows: $150 on signing the contract, $1,000 on delivery of materials to the site, $1,500 on completion of rough carpentry and $425 on completion of the job. The first two payments are duly made. The contractor wrongfully repudiates upon completion of the rough carpentry and sues for $1,500 on a theory of divisibility. The contractor does not recover as the contract is not divisible. It can hardly be said that $150 was the agreed equivalent for signing the contract or that delivery of plaintiff’s materials was worth $1,000 to defendant. Construction contracts are rarely divisible.
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II. Consideration and Its Equivalents 85 results (showing 5 best matches)
- This topic involves contracts where the quantity term is measured by the buyer’s requirements (requirements contract) or seller’s output (output contract). Because the rules relating to output and requirements contracts are basically the same, as a matter of convenience, emphasis will be on requirements contracts.
- If there is performance under a void bilateral contract, courts treat the promises as if they were offers to unilateral contracts. The party who performed is treated as an offeree. Two requirements are essential for the application this doctrine of forging a good unilateral contract from a bad bilateral. 1) All of the requisites of the law of offer and acceptance must be fulfilled. 2) The performance by the party seeking to enforce the contract must have been detrimental. The same approach can be applied to a series of contracts. That is, a series of good unilateral contracts can be forged out of a bad bilateral contract.
- had contracted with had developed. The contract lacked a quantity term. Also, it did not provide for exclusivity on either side; both parties were free to contract with other companies. Nevertheless, the court held the contract to be enforceable as a “non-exclusive requirements contract.” The probable reason for this holding is that otherwise the agreement, lacking a quantity term, would have been too indefinite, and the reasonable expectations of the parties would have been dashed.
- A contract infected with fraud, duress, undue influence, mistake, or lack of capacity is generally voidable. A promise is when its enforcement is subject to the defense of the Statute of Frauds or the statute of limitations. Thus, there are a number of contracts where a party cannot be compelled to perform because the contract is voidable or unenforceable. Would that render the contract as under the mutuality doctrine? No. Because the real issue is mutuality of consideration, and it is well settled that a voidable or unenforceable promise is consideration. Thus, there is no problem in these situations with the contract’s validity.
- , a minor, enters into a contract with has the power to avoid the contract because of infancy. But even though ’s promise were not deemed to be consideration, minors would lose the right to enforce contracts.
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Appendix A. Answers to Review Questions 87 results (showing 5 best matches)
- a fair share of the profits is too vague and indefinite to be enforced and the result is a void bilateral contract under the doctrine of mutuality of consideration. Although complies with the two minimum rules for forging a good unilateral contract out of a bad bilateral contract, is still not able to enforce the contract, because despite is not entitled to a contractual recovery but may recover in quasi contract.
- The issue involves the one-year section of the Statute of Frauds. Logically, the contract is not within the Statute, as the severance could legally occur the same day. Since the day of contracting is disregarded as a fraction of a day, the contract is performable within one year.
- Assuming that there was an intent to contract, the Statute of Frauds must also be satisfied as the contract is for a three year term. The document has not been signed. Can we piece together the signed letter and the document and regard Marv’s signature as the subscription of the contract? Assuming Marv is authorized to act as Ms. Francis’s agent [lawyers are rarely authorized by their clients to contract on their behalf], the signature does not purport to authenticate the contract; it clearly refrains from doing so by asking that George get Ms. Francis’s signature on the four copies. Consequently, the Statute of Frauds would bar enforcement of the contract, if there were one.
- ’s contract with was not justified in hiring a substitute, he did enter into a contract with would not make it impossible to honor the contract with
- Of course, Caleb’s refusal of delivery was a material breach. In contracts for the sale of goods, refusal to accept delivery within the contract term is a material breach which justifies cancellation of the contract and triggers a right to demand damages for total breach.
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IV. Proper Form (Writing), Interpretation and an Overview of Electronic Contracting 103 results (showing 5 best matches)
- The section relates to “a contract to sell or sale of goods.” This covers both a present sale of goods and a contract to sell goods at a future time. “Goods” are movable tangible things. The UCC provision does not, for example, apply to service contracts, real property contracts, or assignments of choses in action including securities. (See below.)
- contracts to work for for one year, and the work is to begin the very next day, the contract is not within the Statute, on the theory that the law disregards fractions of a day. If the work is to begin more than one day after making the agreement, the contract is within the one-year section. However, if when the employment begins, the parties restate their bargain and the restatement can be regarded as the making or remaking of the contract, the year begins to run from that time.
- (2) A contract is enforceable “if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted.”
- According to the Restatement (Second), real property comprises all tangible property other than goods. The UCC clarifies the area very well. It provides that a contract for sale “of growing crops and other things attached to realty and capable of severance without material harm thereto … or of timber to be cut” is a sale of goods. It also provides that in the case of a “contract for the sale of minerals or the like (including oil and gas) or a structure or its materials to be removed from realty” the determination depends upon who is to sever the property to be sold. If the seller is to sever, it is a contract for the sale of goods. If the buyer is to sever, it is a contract of the sale of an interest in land.
- Where any of the promises on either side of a bilateral contract (except for alternative promises) cannot be fully performed within one year from the formation of the contract, all of the promises are within the one-year section of the Statute of Frauds. This means that the contract is unenforceable by either party in the absence of a sufficient memorandum or performance, or the application of the doctrine of estoppel. (See
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VIII. Avoidance or Reformation for Misconduct or Mistake 76 results (showing 5 best matches)
- a radar manufacturer acting under a Navy contract, threatens not to deliver components promised under a contract except at a greatly increased price and only if it is awarded a second contract to supply similar components to under a second government contract that has been awarded to to damages for breach of its contract with the Navy and would prejudice its ability to get future government contracts. Duress exists. The excess payments can be recovered, and the second contract avoided. Note that the threat to breach unless the second contract were signed is clearly a breach of the duty of good faith and fair dealing.
- a proposed contract, omitting from the reading certain material clauses. can avoid the contract even though had read none of the contract to
- If a party, prior to contracting, has received false or otherwise incorrect information from a third person who is an agent of the other party, that party cannot avoid a contract induced by this information unless the other party learned of the misrepresentation prior to contracting. These rules are variants of the
- a 55 year old man, purchases an annuity contract from for life. At the time of contracting, unknown to purports to avoid the contract. The transaction cannot be avoided. Despite the existence of a mutual mistake as to a vital fact, the court will determine that it is reasonable that assume the risk of mistake. Both parties to an annuity contract should understand that it is an aleatory contract; that is, a contract of hazard.
- Reformation for duress requires that (1) the parties have made a binding contract preliminary to entering into a more formal contract; (2) one party is coerced into agreeing to a more formal contract that is at variance with the original agreement.
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III. Legal Capacity 31 results (showing 5 best matches)
- . As to contracts not yet performed by the former infant, a mere acknowledgment of the contract is not enough—nothing less than a promise will suffice. If the contract is fully performed, an acknowledgment or other words consistent with an intention to stand on the contract is sufficient to constitute ratification.
- An infant carelessly destroys personal property in the infant’ s possession that belongs to another (a bailment); it is possible to frame a cause of action sounding in negligence or in contract. Neither a tort or contract action will be sustained, because the action is ultimately rooted in the contract. The infant, however, would be liable for conversion of a chattel because this type of wrong is deemed to be independent of the contract.
- A separate question is whether the infants are liable in tort for willful misrepresentation of age. Again, there is a split of authority. The division stems from the rule that a tort action will not be allowed against an infant if in essence it involves the enforcement of a contract. The question is whether the tort action is sufficiently independent of the contract.
- As in the case of infants’ contracts, ratification can be effected by conduct or words and, once ratified, the contract may not be avoided. After ratification, the former incompetent may have an action for damages if exploitation of the incompetent amounted to actionable fraud.
- . An infant may disaffirm contracts until a reasonable time after reaching the age of majority. What is a reasonable time is often a question of fact dependent upon such circumstances as whether or not there has been any performance by either party, the nature of the transaction and the extent to which the other party has been prejudiced by any extensive delay in disaffirming. Where it has been performed by the adult or both parties, it would ordinarily be inequitable to permit the infant to retain the benefits of the contract for a long period of time and then disaffirm. Ordinarily, however, if the infant has obtained no benefits under the contract, as will usually be the case where the adult has not performed, there is no reason to bar the infant from disaffirming at any time up until the statute of limitations has run.
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Capsule Summary 269 results (showing 5 best matches)
- An offer to a unilateral contract asks for a performance; an offer looking to a bilateral contract invites a promise. The promise may be expressed in words or communicated by conduct. An offer to a unilateral contract may not be accepted by a promise. Conversely, an offer to a bilateral contract may not, except under an unimportant exception, be accepted by performance. The offeree does not become bound when starting to perform the act requested by an offer looking to a unilateral contract, but the offeror is bound by an option contract.
- Although a wholly executory void contract is a nullity, if there is performance under a void bilateral contract, the case should be treated as if an offer looking to a unilateral contract or a series of unilateral contracts was made. If this cannot be done, a quasi-contractual action for reasonable value may be available.
- Where any of the promises on either side of a bilateral contract (except for alternative promises) cannot be performed within a year from the formation of the contract, the entire contract is within the Statute. This means that none of the promises in the contract may be enforced in the absence of a sufficient memorandum, or performance, or the application of the doctrine of estoppel (see below).
- If the contract is unclear whether it is a shipment or destination contract, it is a shipment contract. It is not a destination contract unless it explicitly so provides. There are certain terms, entrenched in commercial usage, which are frequently used to indicate the parties’ intent. These are: F.O.B., F.A.S., C.I.F., and Ex-ship.
- An employee who has been discharged in breach of contract may recover the wages or salary that would have been payable during the contract term minus the income that the employee has earned, will earn, or could with reasonable diligence earn during the contract term. In the case of a long term contract, the present worth doctrine will be applied.
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VII. Contract Remedies 117 results (showing 5 best matches)
- Walsh Construction has entered into a contract with Jones to build her a house for $300,000. Jones repudiated the contract after she has paid Walsh Construction $60,000. At this point the house was one-third constructed. Walsh Construction sued for breach and proved that it would have cost it a total of $255,000 to perform the contract, of which it has already spent a total of $90,000 in materials and labor in performing the contract. It was able to salvage $10,000 by sales of some of these materials to other contractors after Jones repudiated the contract.
- Employees who have been discharged in breach of contract may recover the wages or salary that would have been payable during the contract term minus the income that they have earned, will earn, or could with reasonable diligence earn during the contract term. In the case of a long term contract the “present worth” doctrine (see pp.
- Notice that a contract price minus market price formula is not used in this context. the employee is entitled to the contract price. This is reduced only if the employer meets the burden of proof that the discharged employee obtained another job or could reasonably have obtained one during the contract term.
- If a contract vendee totally breaches the contract, the vendor may recover the difference between the contract price and the value of the realty.
- Can expenditures incurred prior to contracting be compensated? In the example immediately above, plaintiff could not recover the cost incurred prior to contracting of the plates from which the cards were printed. Other courts disagree, and allow such costs on the theory that these are opportunity costs that would have been incurred even if the plaintiff had contracted with another distributor.
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IX. Third Party Beneficiaries 37 results (showing 5 best matches)
- a city, entered into a contract with a property owner, is billed for water at a rate in excess of the contract rate. need not pay more than the contract rate. The water was furnished directly to the property owners. The rate limitation was intended to benefit individual members of the public.
- Unless the contract provides otherwise, the rights of a creditor beneficiary vest, at the latest, when the beneficiary brings an action to enforce a contract or otherwise materially changes position in reliance on the contract.
- would be a third party beneficiary under the first of the two tests, frequently the contract will provide that no third party has an enforceable right under the contract. This is the case with most if not all liability insurance policies. If the contract has such a provision,
- If a creditor beneficiary releases the promisee in exchange for the promisor’s assumption of the obligation, the substituted contract between promisor and beneficiary is called a novation. No novation occurs in a normal third party beneficiary contract, because the beneficiary does not impliedly release the debtor when the beneficiary assents to, or even attempts to enforce, the promisor’s assumption. The beneficiary may obtain judgment against the promisee on the original debt and against the promisor on the third party beneficiary contract. Although entitled to judgment against both, the beneficiary is entitled only to one satisfaction.
- Although this chapter has focused on the rights of the beneficiary, it should not be forgotten that the promisor’s contract is with the promisee. In the case of a donee beneficiary contract, the promisee usually suffers no damages by a promisor’s breach, and restitution may not be a satisfactory remedy. In such a case the legal remedy may be inadequate and, if so, an action for specific performance will be entertained.
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X. Assignment and Delegation 42 results (showing 5 best matches)
- Option contracts are offers but are also contracts. While offers are not assignable, option contracts generally are.
- contracts with could have performed the contract by hiring a crew of plumbers, each of whom could have been changed on a day to day basis. When this can happen, the contract duties are delegable.
- On January 2, 1999, Abel contracted in writing subscribed by both parties to sell to Baker 1,000 bales of cotton on or before May 1, 2009 at the price of $50,000, payable $20,000 cash on delivery. On delivery of the cotton, Baker was to execute a promissory note in the amount of $30,000 payable in one year. The contract also stated that “this contract is non-assignable.” On March 1, 2009, Caleb bought Baker’s business. At the bottom of the contract with Abel, Baker wrote, “I hereby assign this contract to Caleb.” This document was delivered to Caleb. Abel was notified by letter of this transaction. Abel in reply, on March 6th, wrote to Baker and Caleb saying “Since you have wrongfully assigned, I regard the contract as terminated and am selling the cotton elsewhere.”
- Certain duties are delegable; others are not. The test is whether performance by the original obligor or under the obligor’s personal supervision is required by the contract. Such a requirement may be expressed in the contract. If it is not, such a requirement will be implied in two kinds of cases:
- contracts with Inc., a small specialized company that does applied scientific research, and which had a reputation for excellence. The contract looked to the development of a prototype of a battery operated furnace. Inc. The delegation is proper. The delegant is a corporation and its scientists could be changed at any time. Nothing in the contract required the personal performance of any given person.
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Appendix B. Practice Examinations 79 results (showing 5 best matches)
- contracted in a subscribed writing on February 1 to purchase a house and lot from . Title was to be conveyed on June 1. Time was stated in the contract to be of the essence and the contract recited valid and sufficient reasons why time should be of the essence.
- 4. c The offer unambiguously looks to a unilateral contract. Under the modern and prevailing view an offer to a unilateral contract becomes irrevocable when the offeree commences performance. Choice a is incorrect because most jurisdictions hold that a performance measured by a lifetime is not within the one-year Statute of Frauds because the person could die within a year from the making of the contract. Moreover, because the proposed contract is unilateral, the contract itself is made only on full performance of the requested act. It would be made at the instant of the promisor’s death. Choice b is incorrect because the condition would be excused and an action could proceed on the contract.
- is unaware of the destruction of the automobile, no contract is formed, if at the time the offer is accepted, the contract is impossible or impracticable to perform. Choices b and d could be engaged if there were an existing contract.
- 11. f None of the statements is correct. There is a contract because ’s purported acceptance is a manifestation of willingness to enter into a contract and, thus, is an offer which . Choice c is wrong, a novation is a variety of substituted contract; here there was no prior contract to substitute.
- 19. b Choice b is correct. The common law rule is clear that, unless otherwise agreed, work must precede payment. Thus, choice a is incorrect. Choice b is correct, because the rule that work must precede payment is the basis of creating a constructive condition of substantial performance. Choice c is incorrect because destruction of the building makes the subcontractor’s performance impossible. There is no breach of contract. The plumbing subcontractor can recover but not in a contract action. Because the contract is not divisible, recovery is in the restitutionary action of quasi contract.
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VI. Defenses 59 results (showing 5 best matches)
- A movie star, under a multi-year contract with a studio, is drafted into the army during World War II. The army discharges him while his contract still has several years to run. Clearly, his inability to perform during military service excuses his performance. Whether he must fulfill the balance of the contract depends on the whether the burden of performance will have been substantially increased by the interruption of the contractual relationship.
- can deliver only part of the promised goods. As in the case of excusable delay, the seller must seasonably notify the buyer of the shortfall and communicate the estimated quota allocated to the buyer. The quota must be fixed in a fair and reasonable manner. In fixing quotas the seller may include allocations for regular customers who are not under contract, and also an allocation for its own needs. The buyer has a reasonable time, not exceeding 30 days, to accept the allocation. Otherwise the seller’s duties are discharged. If the contract is an installment contract, the buyer’s rights to cancel are subject to the criteria for canceling installment contracts discussed in connection with exceptions to the perfect tender rule.
- When a contract is discharged for impracticability or frustration, the executory duties are at an end. Yet, one or both parties may have partly performed. Compensation for part performance is available in the restitutionary action of quasi-contract.
- the contract was illegal; therefore, the contract between has become illegal according to some strong modern authorities. Traditionally, the illegal conduct was regarded as too tangential, collateral or remote to infect the contract itself with the taint of illegality.
- contracts to sell ammunition to ’s request, packs the ammunition in boxes marked “plumbing fixtures.” The contract is illegal because
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Summary of Contents 6 results (showing 5 best matches)
Half Title 1 result
Appendix E. Index 203 results (showing 5 best matches)
Table of Contents 52 results (showing 5 best matches)
- Publication Date: March 25th, 2010
- ISBN: 9780314926937
- Subject: Contracts
- Series: Black Letter Outlines
- Type: Outlines
- Description: These outlines are designed to help law students recognize and understand the basic principles and issues of law covered in a law school course. They can be used both as a study aid when preparing for classes and as a review of the subject matter when studying for an examination. Each outline is written by experienced law school professors who are recognized national authorities in their subject areas.
