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Items
Details
Author
Title
Contracts in a nutshell / by Claude D. Rohwer, Anthony M. Skrocki.
Published
St. Paul, MN : West/Thomson, [2010]
Copyright
©2010
Call Number
KF801.Z9 S3 2010
Edition
Seventh edition.
Spine Title
Contracts, 7th ed.
ISBN
9780314925640 (pbk.)
0314925643 (pbk.)
0314925643 (pbk.)
Description
xxxi, 573 pages ; 19 cm.
System Control No.
(OCoLC)648196176
Note
Includes index.
Series
Record Appears in
Added Author
Table of Contents
Preface
v
Table of Cases
xxix
CONTRACTS
ch. 1
Introduction
[§] 1.1
Scope of This Nutshell---Contract Law and Sales Law
1
[§] 1.2
Basis for Enforcement of Promises
3
[§] 1.2.1
Enforcement Based Upon a Bargained Exchange---Consideration
5
[§] 1.2.2
Enforcement of Promises Not Made as Part of a Bargain---No Consideration Present
6
[§] 1.2.3
Non-enforcement Based Upon Party Intent
8
[§] 1.3
Restitution---Unjust Enrichment---Quasi-Contract
9
[§] 1.4
Sale of Goods and the Uniform Commercial Code
12
[§] 1.4.1
Defining Goods
14
[§] 1.4.2
Special Duties of Merchants
18
[§] 1.4.3
The Duty of Good Faith
19
[§] 1.5
The United Nations Convention on Contracts for the International Sale of Goods (CISG)
20
ch. 2
Contracts Formation
A.
Mutual Assent to a Bargain
1.
Offer
[§] 2.1
Contracts Which Constitute a Bargained Exchange
23
[§] 2.2
Manifestation of Assent to Be Bound
24
[§] 2.2.1
Subjective and Objective Intent
26
[§] 2.2.2
Agreements That Contemplate a Future Writing
29
[§] 2.2.3
Letters of Intent
30
[§] 2.3
Certainty of Terms---As Found in the Offer, the Acceptance and by Implication
32
[§] 2.3.1
Certainty of Terms Under the UCC
37
[§] 2.3.2
Failure of External Standards Used to Establish Terms
40
[§] 2.3.3
Reliance Remedy Where Promise Is Too Vague to Enforce
41
[§] 2.4
Advertisements, Mass Mailings, and Price Quotations
42
[§] 2.4.1
Reward Offers
44
[§] 2.5
Receipt of the Offer
45
[§] 2.5.1
Communication in the Intended Manner
46
[§] 2.5.2
Who May Accept an Offer
47
[§] 2.6
Duration of an Offer
48
[§] 2.6.1
Termination of the Offer by Death or Insanity
50
[§] 2.6.2
Termination of the Offer by Death or Destruction of a Person or Thing Essential to Performance
51
[§] 2.6.3
Termination by Rejection by the Offeree
52
[§] 2.6.4
Termination by Counter-offer
53
[§] 2.6.5
Termination by Revocation
54
[§] 2.6.6
Revocation by Indirect Communication of Facts Inconsistent With Intent to Be Bound
55
[§] 2.6.7
Time When Revocation Is Effective
56
[§] 2.7
Irrevocability of Offers
56
[§] 2.7.1
Irrevocability by Virtue of Option Contracts
57
[§] 2.7.2
Irrevocability Due to Reliance on Promise Not to Revoke
58
[§] 2.7.3
Irrevocability by Statute
59
[§] 2.7.4
Irrevocability of Offers for Unilateral Contracts
60
2.
Acceptance
[§] 2.8
Offeror's Control Over Manner and Medium of Acceptance
62
[§] 2.8.1
Medium of Acceptance: Electronic Communications
65
[§] 2.9
Manner of Acceptance (by Promise or by Conduct): Alternative Approaches
68
[§] 2.9.1
The Traditional Approach: Bilateral and Unilateral Characterization
69
[§] 2.9.2
Effect of Traditional Unilateral-Bilateral Determination Upon Attempted Acceptance
72
[§] 2.9.3
Modern Approach to Manner of Acceptance
73
[§] 2.10
Acceptance by Promise or by Performance; When the Parties Are Bound
74
[§] 2.10.1
Notice of Acceptance
77
[§] 2.11
Common Law Requirement That an Acceptance Must Conform to the Terms of the Offer
79
[§] 2.11.1
Acceptances Which Merely Suggest or Propose New Terms
80
[§] 2.12
Impact of U.C.C. Upon Contract Formation
81
[§] 2.13
Contracts Resulting From an Exchange of Communications---U.C.C. 2-207(1)
82
[§] 2.13.1
Terms of a Contract Created Under U.C.C. 2-207(1)
84
[§] 2.13.1a
Contract Terms Resulting Where the Offeree Adds Additional Terms
85
[§] 2.13.1b
Contract Terms Resulting Where the Offeree Requests Different Terms
87
[§] 2.14
Contract Formed by Conduct---U.C.C. 2-207(3)
90
[§] 2.15
Acceptance by Shipment of Goods---U.C.C. 2-206
95
[§] 2.16
Effect of Confirming Memoranda Sent After an Informal Contract Is Formed
98
[§] 2.17
Sale of Software; Licensing Terms
100
[§] 2.18
Impact of U.C.C. Upon Common Law Rules of Contract Formation
104
[§] 2.19
Time When Communications Are Effective
106
[§] 2.20
What Constitutes "Receipt" of Communications
110
[§] 2.21
Acceptance by Silence
111
[§] 2.22
Acceptance by Exiercise of Dominion and Control Over Goods or by Receipt of Benefits or Services
112
[§] 2.23
Auctions: Finding the Offer and Acceptance
114
3.
Consideration
[§] 2.24
Consideration: An Introduction
118
[§] 2.25
Requirement of a Bargained Exchange
120
[§] 2.24.1
Detriment, Benefit and Preexisting Legal Duty
124
[§] 2.26
Compromise of Disputed Claims
130
[§] 2.27
Partial Payment in Exchange for a Discharge (Payment or Promise to Pay a Lesser Sum in Discharge of a Claim to a Greater Sum)
132
[§] 2.28
Condition to Gift and Bargained Exchange Compared
137
[§] 2.29
Alternative Promises; Multiple Promises
140
[§] 2.30
Illusory Promises
142
[§] 2.30.1
Viodable and Unenforceable Promises
146
[§] 2.31
Implied Promise to Use Best Efforts or to Act in Good Faith
148
[§] 2.32
Requirements Contracts and Output Contracts
150
[§] 2.33
To Whom and From Whom Consideration Must Be Given
151
[§] 2.34
Adequacy of Consideration
153
[§] 2.35
Non-bargained Detriment
154
[§] 2.36
Nominal Consideration: Sham Bargains
155
[§] 2.37
False Recitals of Consideration
159
[§] 2.38
Option Contracts: Nominal Consideration of False Recitals of Consideration
160
[§] 2.39
Subesquent Promises to Perform Unenforceable Contracts
163
[§] 2.39.1
A New Promise to Pay a Debt Enforceable but for the Statute of Limitations
164
[§] 2.39.2
Debts Discharged in Bankruptcy
165
[§] 2.39.3
Obligations Unenforceable Due to Statute of Frauds
166
[§] 2.39.4
Promise to Perform Obligations That Were Voidable
166
[§] 2.40
Promise to Pay for Benefits Previously Conferred
167
B.
Promissory Estoppel
[§] 2.41
Enforcement of Promises That Induce Reliance
168
[§] 2.42
Reliance as a Basis for Holding Offers to Be Irrevocable
173
[§] 2.43
Remedies for Reliance in a Commercial Context
175
ch. 3
Statute of Frauds
A.
Contracts Within the Statute
[§] 3.1
Statute of Frauds
178
[§] 3.1.1
Enforceability of an Oral Contract Which Is Subject to the Statute of Frauds
179
[§] 3.1.2
History
180
[§] 3.2
Contracts Within the Statute of Frauds
183
[§] 3.2.1
A Contract That, by Its Terms, Is Not to Be Performed Within One Year From the Date of Its Making
185
[§] 3.2.2
A Promise to Discharge the Duty of Another; Exceptions Thereto
189
[§] 3.2.3
A Contract in Consideration of Marriage
191
[§] 3.2.4
A Contract for the Transfer of an Interest in Realty
191
[§] 3.2.5
An Oral One-Year Lease
192
[§] 3.2.6
A Contract That Cannot Be Performed During the Lifetime of the Promisor
192
[§] 3.2.7
A Contract for the Sale of Goods for the Price of $500 or More
193
B.
Satisfaction of the Writing Requirement
[§] 3.3
Sufficiency of the Written Memo
193
[§] 3.3.1
"Writings," "Records," and Modern Methods of Communication
195
[§] 3.4
The Signature
197
[§] 3.5
Signed Confirmation Sent by One Merchant to Another Merchant
198
C.
Avoidance of the Writing Requirement
[§] 3.6
Basis for Avoidance of Writing Requirement
199
[§] 3.6.1
Effect of Part Performance; Real Property
201
[§] 3.6.2
Full Performance; One-Year Provision
201
[§] 3.6.3
Reliance as a Basis for Avoiding the Statute of Frauds
202
[§] 3.6.4
Avoiding Writing Requirement Under U.C.C. Section 2-201
205
[§] 3.7
Judicial Approach to Enforcement of the Statute of Frauds
208
ch. 4
Contract Interpretation
A.
General Interpretation Problems
[§] 4.1
Basic Considerations: Subjective and Objective Intent
210
[§] 4.1.1
Subjective and Objective Intent: Philosophical Debate
216
[§] 4.2
Objective Intent: The Search for Some Answers
218
[§] 4.3
Course of Performance; Course of Dealing, and Usage of Trade (Custom)
221
[§] 4.4
Interpretation Against Drafter, Adhesion Contracts
225
B.
Parol Evidence Rule
[§] 4.5
When the Parol Evidence Rule Applies
228
[§] 4.6
Use of Parol Evidence to Supplement (Add to) the Terms of a Writing
229
[§] 4.6.1
Tests Used to Determine Whether a Writing Is a Total or Partial Integration
230
[§] 4.7
Use of Parol Evidence to Interpret (Explain) the Meaning of the Words Contained in the Writing
233
[§] 4.8
Merger Clauses (Integration Clauses)
237
C.
Implied Terms and Terms Imposed by Law
[§] 4.9
Terms Found by Implication or Construction
238
[§] 4.10
Mandatory Terms, Permissive Terms, and Default Rules
243
[§] 4.11
Duty of Good Faith and Fair Dealing
245
[§] 4.11.1
Bad Faith Torts Distinguished
245
[§] 4.12
Defining Good Faith and Fair Dealing
248
[§] 4.13
Impact of the Good Faith and Fair Dealing Obligations
250
[§] 4.13.1
Carrying Out the Parties' Intentions or Imposing Obligations
253
ch. 5
Defenses
A.
Defenses Affecting Assent
[§] 5.1
Defenses Affecting Assent to Be Bound
255
[§] 5.2
Capacity to Contract
257
[§] 5.2.1
Infants (Minors)
257
[§] 5.2.2
Parties With Mental Disabilities or Illness
260
[§] 5.2.3
Persons Under the Influence of Drugs or Intoxicants
262
[§] 5.3
Duress; What Must Be Threatened
263
[§] 5.3.1
Duress; Sufficient Gravity to Induce a Manifestation of Assent
267
[§] 5.4
Undue Influence
267
[§] 5.5
Mistake Defined
269
[§] 5.5.1
Mutual Mistake
272
[§] 5.5.2
Unilateral Mistake
274
[§] 5.5.3
Allocation of Risk of Mistake
278
[§] 5.5.4
Fault in the Mistake Context
281
[§] 5.5.5
Mistake Resulting From Failure to Read
283
[§] 5.6
Mistakes or Misunderstandings That Prevent formation of a Contract (As Distinguished from Merely Providing Grounds to Rescind or Reform a Contract)
284
[§] 5.6.1
Vagueness and Ambiguity Distinguished
285
[§] 5.7
Avoidance of Contract on Basis of Misrepresentation; Misrepresentation Defined
286
[§] 5.7.1
Fraudulent Misrepresentation and Material Misrepresentations
289
[§] 5.7.2
Reasonableness of Reliance; Misrepresentations of Fact, Opinion, Law and Intention
290
[§] 5.7.3
Misrepresentation and Mistake Compared
293
[§] 5.8
Misrepresentation, Duress or Undue Influence by a Third Party
294
[§] 5.9
Misrepresentation That Prevents Formation of a Contract
295
B.
Defenses Based Upon Policy
[§] 5.10
Unconscionability as a Defense; Procedural and Substantive
296
[§] 5.11
Public Policy or Illegality as a Defense
301
[§] 5.11.1
Enforcement When Parties Are Not in Equal Fault; Laws Designed to Protect One of the Parties
305
[§] 5.11.2
Exculpatory Clauses
306
[§] 5.11.3
Violation of Licensing Requirements
309
[§] 5.11.4
Severability of Offending Provisions
310
[§] 5.11.5
Restitution Where Public Policy Precludes Enforcement
311
ch. 6
Events That Excuse Performance
A.
Impossibility or Impracticability
[§] 6.1
Impossibility of Performance
312
[§] 6.1.1
Impracticability as a Basis for Excuse
314
[§] 6.2
Factors Necessary to Support Impracticability as a Defense
316
B.
Frustration of Purpose
[§] 6.3
Frustration of Purpose; "Economic Frustration" Distinguished
320
[§] 6.4
Relief Afforded in Cases of Impracticability or Frustration
322
ch. 7
Contract Modification
[§] 7.1
Requirements for Modifying a Contract
324
[§] 7.2
Consent Required for Modification
326
[§] 7.3
The Consideration Requirement
328
[§] 7.4
Promissory Estoppel as a Basis for Enforcement Despite Absence of Consideration
332
[§] 7.5
Writing Requirements: Imposed by Statute or by Agreement of the Parties
333
[§] 7.6
If the Modification Is Required to Be in Writing, Does a Sufficient Writing Exist or Is There an Exception?
336
[§] 7.7
Promissory Estoppel as a Basis for Enforcing Oral Modifications
337
[§] 7.8
Ineffective Attempt to Modify; Operation as a Waiver
338
[§] 7.9
Retraction of a Waiver
341
ch. 8
Performance
A.
Promises and Conditions
[§] 8.1
Introduction; Promises and Conditions
344
[§] 8.1.1
Sources of Conditions
346
[§] 8.1.2
Enforcement of Conditions
347
[§] 8.1.3
Labeling of Conditions
348
[§] 8.2
Substantial Performance; Effect of Breach
358
[§] 8.2.1
Finding Occurrence of Substantial Performance
360
[§] 8.3
Enforcement of Conditions (Examples)
365
[§] 8.4
Guidelines to Identify Promises and Different Types of Conditions
369
[§] 8.4.1
Alternative Vocabulary to "Constructive Conditions"
371
[§] 8.5
Conditions Subsequent
373
B.
Excuse of Conditions
[§] 8.6
Excuse of Conditions
375
[§] 8.6.1
Excuse of Condition by Tender
375
[§] 8.6.2
Excuse of Condition by Failure of a Prior Condition
376
[§] 8.6.3
Excuse of Condition by an Anticipatory Repudiation of a Promise, or by Voluntary Disablement or Prospective Inability to Perform
377
[§] 8.6.3a
Prospective Inability, Demand for Assurances, and Repudiation Under the U.C.C.
380
[§] 8.6.3b
Necessity to Demonstrate the Ability to Perform
382
[§] 8.6.4
Excuse of Condition by Waiver or Estoppel
383
[§] 8.6.5
Excuse of Condition by Impossibility
386
[§] 8.6.6
Excuse of Condition to Avoid a For-feiture
387
[§] 8.7
Effect of Severability
389
[§] 8.8
The Condition of Approval by a Third Party or by a Principal Party to the Contract
391
[§] 8.8.1
The Condition of Approval; Requiring Good Faith
394
C.
Sale of Goods
[§] 8.9
Performance of Contracts for the Sale of Goods
395
[§] 8.10
Warranties Arising From the Sale of Goods and From the Sale of Other Property
397
[§] 8.10.1
Warranties in Non-Goods Transactions
401
[§] 8.10.2
Disclaimer of Warranties
403
D.
Good Faith Affecting Performance
[§] 8.11
Good Faith and Contract Performance
405
ch. 9
Remedies
A.
Remedies Available at Common Law
[§] 9.1
An Overview of Possible Remedies for Breach of Contract
408
[§] 9.2
Expectation Damages (Benefit of the Bargain)
415
[§] 9.2.1
Limitations on Expectation Damages; The Requirements of Certainty and Foreseeability
420
[§] 9.2.2
Other Limitations on Expectation Damages
428
[§] 9.2.3
Avoidance of Damages
431
[§] 9.3
Reliance Damages
433
[§] 9.4
Measuring Recovery in Restitution
434
[§] 9.5
Stipulated Damages (Liquidated Damages)
435
[§] 9.6
Specific Enforcement (Specific Performance)
438
[§] 9.7
Remedies Available in Actions Based Upon Promissory Estoppel
439
B.
Remedies in Sales of Goods
[§] 9.8
Buyer's Rejection, Acceptance, and Revocation of Acceptance, of Goods
441
[§] 9.8.1
Legal Affect of Acceptance; Revocation of Acceptance
445
[§] 9.8.2
Seller's Right to Cure After Buyer's Rejection
449
[§] 9.9
Sequence of Rights and Duties; Tender, Rejection, etc
450
[§] 9.10
Seller's Remedies for Breach
452
[§] 9.11
Buyer's Remedies for Breach
456
[§] 9.11.1
Buyer's Right to the Goods
458
ch. 10
Restitution (Unjust Enrichment)
[§] 10.1
Restitution
459
[§] 10.1.1
Benefits Conferred by Mistake
460
[§] 10.1.2
Benefits Derived From the Commission of a Tort
462
[§] 10.1.3
Rendition of Services
464
[§] 10.1.4
Delivery of Goods
466
[§] 10.1.5
Performance of a Contarct of Purported Contract
467
[§] 10.2
Measure of Recovery in Restitution
468
ch. 11
Third Party Beneficiaries
A.
What Parties May Assert Contract Rights
[§] 11.1
Third Party Beneficiary Contracts
472
[§] 11.2
Identification of the Third Party
474
[§] 11.3
Intended Beneficiaries in Special Situation: Government Contracts and Assumption of Secured Indebtedness
477
[§] 11.4
Rights of the Promisee Against the Promisor
479
B.
Promisors' Defenses Against Third Parties' Claims
[§] 11.5
Contract Modification or Rescission; Vesting of Third Party's Rights
480
[§] 11.6
Defenses Assertable Against the Third Party Beneficiary
482
ch. 12
Assignment of Rights and Delegation of Duties
A.
Assignment of Rights
[§] 12.1
Assignment of Rights; Delegation of Duties Distinguished
486
[§] 12.2
Impact of U.C.C. Article 9
488
[§] 12.2.1
Prohibitions Against Assignment
488
[§] 12.2.2
Effect of Assignment Upon the Debtor
489
[§] 12.2.3
Rights Among Successive Assignees and Between Assignees and Other Creditors
491
[§] 12.3
Requisites of an Assignment
492
[§] 12.4
Assignment of Rights Embodied in a Tangible Object
494
[§] 12.5
Revocability of Gratuitous Assignments; Events That Revoke
495
[§] 12.6
Partial Assignments
498
B.
Delegation of Duties
[§] 12.7
Delegation of Duties: What Is Delegable
499
[§] 12.8
Liability of Delegator and Delegatee
502
[§] 12.9
Assuming Delegated Duties; Resolving Ambiguities
504
ch. 13
Discharge
[§] 13.1
Discharge by Performance, Rescission, Release or Contract Not to Sue
507
[§] 13.2
Discharge by Substitute Contract or by Satisfaction of an Accord Agreement
511
[§] 13.3
Discharge by Novation
513
[§] 13.4
Discharge by Account Stated
516
[§] 13.5
Discharge by Tender and Acceptance of Part-Payment of a Disputed Claim
517
[§] 13.6
Miscellaneous Concepts That May Serve as Methods of Discharge
518
ch. 14
Contrcts Questions
521
ch. 15
A Framework for Review
546
Index
555