introduction to contract assignment

Assignment of Contract

Jump to section, what is an assignment of contract.

An assignment of contract is a legal term that describes the process that occurs when the original party (assignor) transfers their rights and obligations under their contract to a third party (assignee). When an assignment of contract happens, the original party is relieved of their contractual duties, and their role is replaced by the approved incoming party.

How Does Assignment of Contract Work?

An assignment of contract is simpler than you might think.

The process starts with an existing contract party who wishes to transfer their contractual obligations to a new party.

When this occurs, the existing contract party must first confirm that an assignment of contract is permissible under the legally binding agreement . Some contracts prohibit assignments of contract altogether, and some require the other parties of the agreement to agree to the transfer. However, the general rule is that contracts are freely assignable unless there is an explicit provision that says otherwise.

In other cases, some contracts allow an assignment of contract without any formal notification to other contract parties. If this is the case, once the existing contract party decides to reassign his duties, he must create a “Letter of Assignment ” to notify any other contract signers of the change.

The Letter of Assignment must include details about who is to take over the contractual obligations of the exiting party and when the transfer will take place. If the assignment is valid, the assignor is not required to obtain the consent or signature of the other parties to the original contract for the valid assignment to take place.

Check out this article to learn more about how assigning a contract works.

Contract Assignment Examples

Contract assignments are great tools for contract parties to use when they wish to transfer their commitments to a third party. Here are some examples of contract assignments to help you better understand them:

Anna signs a contract with a local trash company that entitles her to have her trash picked up twice a week. A year later, the trash company transferred her contract to a new trash service provider. This contract assignment effectively makes Anna’s contract now with the new service provider.

Hasina enters a contract with a national phone company for cell phone service. The company goes into bankruptcy and needs to close its doors but decides to transfer all current contracts to another provider who agrees to honor the same rates and level of service. The contract assignment is completed, and Hasina now has a contract with the new phone company as a result.

Here is an article where you can find out more about contract assignments.

Assignment of Contract in Real Estate

Assignment of contract is also used in real estate to make money without going the well-known routes of buying and flipping houses. When real estate LLC investors use an assignment of contract, they can make money off properties without ever actually buying them by instead opting to transfer real estate contracts .

This process is called real estate wholesaling.

Real Estate Wholesaling

Real estate wholesaling consists of locating deals on houses that you don’t plan to buy but instead plan to enter a contract to reassign the house to another buyer and pocket the profit.

The process is simple: real estate wholesalers negotiate purchase contracts with sellers. Then, they present these contracts to buyers who pay them an assignment fee for transferring the contract.

This process works because a real estate purchase agreement does not come with the obligation to buy a property. Instead, it sets forth certain purchasing parameters that must be fulfilled by the buyer of the property. In a nutshell, whoever signs the purchase contract has the right to buy the property, but those rights can usually be transferred by means of an assignment of contract.

This means that as long as the buyer who’s involved in the assignment of contract agrees with the purchasing terms, they can legally take over the contract.

But how do real estate wholesalers find these properties?

It is easier than you might think. Here are a few examples of ways that wholesalers find cheap houses to turn a profit on:

• Direct mailers
• Place newspaper ads
• Make posts in online forums
• Social media posts

The key to finding the perfect home for an assignment of contract is to locate sellers that are looking to get rid of their properties quickly. This might be a family who is looking to relocate for a job opportunity or someone who needs to make repairs on a home but can’t afford it. Either way, the quicker the wholesaler can close the deal, the better.

Once a property is located, wholesalers immediately go to work getting the details ironed out about how the sale will work. Transparency is key when it comes to wholesaling. This means that when a wholesaler intends to use an assignment of contract to transfer the rights to another person, they are always upfront about during the preliminary phases of the sale.

In addition to this practice just being good business, it makes sure the process goes as smoothly as possible later down the line. Wholesalers are clear in their intent and make sure buyers know that the contract could be transferred to another buyer before the closing date arrives.

After their offer is accepted and warranties are determined, wholesalers move to complete a title search . Title searches ensure that sellers have the right to enter into a purchase agreement on the property. They do this by searching for any outstanding tax payments, liens , or other roadblocks that could prevent the sale from going through.

Wholesalers also often work with experienced real estate lawyers who ensure that all of the legal paperwork is forthcoming and will stand up in court. Lawyers can also assist in the contract negotiation process if needed but often don’t come in until the final stages.

If the title search comes back clear and the real estate lawyer gives the green light, the wholesaler will immediately move to locate an entity to transfer the rights to buy.

One of the most attractive advantages of real estate wholesaling is that very little money is needed to get started. The process of finding a seller, negotiating a price, and performing a title search is an extremely cheap process that almost anyone can do.

On the other hand, it is not always a positive experience. It can be hard for wholesalers to find sellers who will agree to sell their homes for less than the market value. Even when they do, there is always a chance that the transferred buyer will back out of the sale, which leaves wholesalers obligated to either purchase the property themselves or scramble to find a new person to complete an assignment of contract with.

Learn more about assignment of contract in real estate by checking out this article .

Who Handles Assignment of Contract?

The best person to handle an assignment of contract is an attorney. Since these are detailed legal documents that deal with thousands of dollars, it is never a bad idea to have a professional on your side. If you need help with an assignment of contract or signing a business contract , post a project on ContractsCounsel. There, you can connect with attorneys who know everything there is to know about assignment of contract amendment and can walk you through the whole process.

ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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Assignment of contract

This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law University, Sonipat. This article explains the meaning, types, and conditions of the assignment of contract. It also seeks to explain the judicial opinion about assignment by the means of a case study. 

This article has been published by Sneha Mahawar .

Table of Contents

Introduction

A contract binds the involved parties to fulfil their obligations. Non-fulfillment of the obligations results in the breach of the contract. Thus, the rights and obligations arising from the contract are owned by the contracting parties. However, in certain cases, these contractual rights and obligations can be transferred to a third party. This is known as the assignment of contract. In a world where the complexity of transactions is increasing continuously, such assignments have become very common. 

Basics of a contract 

Section 2(h) of the Indian Contract Act, 1872 defines a contract as “an agreement enforceable by law”. It is characterised by an offer and an acceptance along with consideration and is backed by the power of law. An agreement is a promise by one party to another. A proposal once accepted becomes a promise. The formation of a contract results in rights and obligations for both parties. A lawful contract binds both parties to fulfil their obligations. In case they are not fulfilled, the aggrieved party can avail of the remedies provided by the law. 

Thus, Contract= (Offer + Acceptance) Agreement + Enforceability of law 

For example: ‘A’ promises to sell his house to ‘B’ for a consideration of Rs. 50 lakhs. Here, there was an offer to sell the house by ‘A’ and acceptance by ‘B’ for consideration of a fixed sum. It is a lawful agreement and hence is a contract. Here, ‘A’ has the obligation to give the house to ‘B’ and ‘B’ has an obligation to pay the amount. If either of them fails to fulfil their respective obligation, it will result in a breach of the contract. 

What is assignment of contract 

When the rights and obligations in a contract are transferred to a third party, who is not a party to the contract, it is called the assignment of contract. For example, in the case where there was a contract between ‘A’ and ‘B’ where ‘A’ was supposed to pay ‘B’ some amount, ‘A’ had an obligation to pay ‘B’ the amount and ‘B’ had the right to receive the amount. Along with this, if ‘B’ had to pay the same amount to ‘C’ and he asked ‘A’ to pay the money directly to ‘C’, it can be called an assignment of the obligation by ‘B’ to ‘A’. It is covered in Section 37 of the Indian Contract Act, 1872. The Section provides that a party can dispense the performance of the contract by the assignment of it to a third party. This concept can also be found in the Transfer of Property Act, 1882 . The use of assignments has increased tremendously in recent times owing to the financial and contractual complexities of the transactions. Usually, it is employed in high-risk transactions that are secured by assigning the contractual rights along with the securities (like hypothecation or mortgage).

The party currently holding the rights and obligations of the existing contract is called the ‘assignor’ and the party to whom they are assigned and taking over the position is called the ‘assignee’. The transfer takes place from the assignor to the assignee. Also, it is pertinent to note that assignment does not affect the rights and responsibilities of the parties involved in any way. These rights and duties remain the same. And even after the transfer, the assignor remains liable if any problems arise unless there was an agreement to the contrary. Thus, the assignment of the contract involves an incorporeal transfer of the rights and obligations. And as per the laws of India, these transfers must be brought onto paper.  

How does assignment of contracts work 

The assignment depends upon several factors including the provisions of the contract entered into by the parties. The original contract may contain a clause that does not permit the assignment or make the consent of the other party necessary before the assignment. The contract can also contain a stipulation that states that the liability of the agreement would lie with the original parties, even after the assignment. This happens in situations where the assignor acts as a guarantor for the performance of duties as per the contract by the assignee. Acting as a guarantor makes the assignor liable. It is also possible that a contract may permit an assignment without any formal notification to the other party. But in this case, it is important for that party to create a ‘Letter of Assignment’ containing the details to notify all other contracting parties. The letter must be signed by both outgoing and incoming parties. 

For example: If ‘A’ and ‘B’ enter into a contract and include a clause that does not allow the assignment of the contract, neither of them can transfer their rights and liabilities to a third party. And if the contract contains a clause that necessitates the requirement of consent, then neither of them can transfer the rights and obligations without the other party’s consent. Also, if ‘A’ decides to assign his obligations to ‘C’ and acts as a guarantor for ‘C’, then also ‘A’ will continue to hold the liability. 

Enforceability of the assignment

Usually, assignments of contract rights and obligations are enforceable. However, under some circumstances, they are not enforced. These are as follows:

• If the provisions of the contract prohibit the assignment of the contract explicitly and it still happens somehow, it will be considered to be void. Such a clause is called an ‘anti-assignment clause’. 
• Sometimes, due to the assignment of contractual rights and obligations, the basics of the contract are altered. In such circumstances, it cannot be considered enforceable. For example, if performance is affected by the assignment, it will probably not be enforced by the court. 
• The assignment will not be enforced if it is illegal or contrary to the law in some or the other way. 

Contracts that can be assigned 

As per Indian law, any kind of contract can be assigned, provided it conforms to the provisions of the contract and is carried out with the consent of the parties involved. Also, for any contract whose foundation lies upon the ‘personal skills’ of the promisor, such a contract cannot be assigned under any circumstances. This is because such a contract depends upon the qualities or qualifications of the promisor only and cannot be found in someone else, thus, the obligations cannot be assigned in such a case. This has also been highlighted by our judiciary that two types of contracts can never be assigned, that are:

• Where the contract is personal in nature.
• Where the assignment of rights is prohibited either by the law or by the contract.

Thus, it is prudence that is followed while deciding the assignability of a contract. It is prudent to explicitly state the conditions regarding assignment in the contract itself, taking due care of the limits placed by the law.  

Who can handle assignment of a contract 

The most competent person to handle the assignment of contract is an attorney. An attorney is a licensed court practitioner who acts as a deputy or the agent of the party he/she is representing in the court of law. Such contracts need professional expertise as they contain some very technical and intricate details that are crucial for the correct and beneficial assignment. 

Types of assignable contracts

As per the common law, the assignment was done by the way of  three kinds of transactions:

• Novation- In simple words, it is an agreement wherein both contracting parties permit the substitution of an existing party with a new one in the contract. Thus, there is a novation of contract where the original party is discharged of its obligations and they are transferred to a new party. This can be called the assignment of contractual obligations. However, there is an essential difference between both. In the assignment, the rights and obligations are transferred from one party to another. But in novation, instead of a transfer, one party substitutes another.  
• Acknowledgment – Where both the parties acknowledge that the interests in the contract can be assigned to a third party in the contract, then the assignment can take place with the consent of both. 
• Power of attorney – It is a legal document that allows a person to appoint someone to organise or manage various affairs including personal and financial. Thus, in a way it is like appointing an agent to conduct professional transactions, settle claims and cater to business demands.

As per the existing laws in India, there are broadly two types of assignment. 

• Legal – A legal assignment is the one that is carried out as per Section 130 of the Transfer of Property Act, 1882 . it is characterised by all the formalities, intention to assign, communication to the assignee, and notice to the debtor. In this, a proper formal agreement is drafted giving assent to the assignment, as per the procedure laid down by the law. The consent of the party is sought first and a notice is sent. Proper communication is sent to the assignee as well. Finally, with all the formalities done, the assignment is carried out. 
• Equitable – An equitable assignment holds good only in equity and not in the eyes of law. It can be related to a transfer of future benefits which is not enforceable by law. In respect of equitable charges attached to a property, the courts are bound to follow the laws laid down. Thus, as held in B.N. Railway Employees’ Urban Bank v. Seager (1941), an equitable assignment can be created only by a written document as per the provisions of the Transfer of Property Act, 1882. 

Modes of assignment 

The assignment of contractual rights and liabilities has been covered under Section 130 of the Transfer of Property Act, 1882 under the heading of ‘actionable claim’. An actionable claim can be transferred simply by the execution of a written instrument. Nothing more is required. The contract permitting assignment must be clearly laid down, strictly adhering to the provisions of this Section. The intention to assign must be clear and certain. Under Indian property laws, a deed is required for the assignment. And this deed must be duly stamped. However, stamp duty is extremely high in India. Also, it is a subject that falls in the concurrent list. So when it is legislated on by both centre and states, it leads to variations and there is no uniformity. This acts as a hindrance in the way of assignment. 

Validity of part-assignment

In the case of Doraisami v. Doraisami (1924), following the English precedent, it was held that if there is an assignment of a debt, the transfer must be of the whole debt and not just a portion of it. Thus, part-assignment was not recognised. However, in the subsequent case of Rajamier v. Subramaniam (1928) , the previous judgement was overruled. It was recognized that even though part-assignment was not recognised in the English common law, part-assignment of debt was a valid transfer as it was held to be good in equity. However, it was also laid down that in such part-assignments, while enforcing a claim, it was necessary to implead the owner of the rest of the portion as well. It was observed that no such distinction was made in the Transfer of Property Act, 1882. Thus, both may be transferred under the term ‘actionable claims’. 

However, the only problem that persists is presented by Order 2 Rule 2 of the Code of Civil Procedure, 1908. As per this, a single cause of action cannot be allowed to be split into many. Thus, it may prevent the owner of a part of the debt from enforcing his rights. Thus, to avoid this, the lenders often submit a substitution claim or notice in the court so that this provision is not applied. 

Assigning intellectual property 

Assignment of intellectual property implies the transfer of the owner’s rights in copyrights, patents, trade secrets, trademarks, and such other intangible properties. Many times, companies look to sell or transfer their intellectual property because an excess of these can prove to be a burden for them. Maintaining intellectual property requires continuous registrations, defending suits against third-party claims or marketing, and creating a finished product. Thus, such transfers can generate good profit for the company and save it from unnecessary expenditure. On the other hand, several companies look for purchasing such property to provide an impetus to their growth. Thus, when intellectual property is assigned, all the rights, titles, and interests with respect to it are transferred to the assignee from the assignor.  

Assignment of contract in real estate 

The use of assignments in real estate is known as ‘real estate wholesaling’ . As per this, the real estate dealers instead of going by the conventional way of buying and selling the house, enter into a contract and then reassign it to another buyer so as to avoid the additional costs and pocket the profit earned in doing so. This is possible because a real estate purchase agreement does not contain a binding obligation to actually buy the property. Such an agreement is called an ‘Assignment of Real Estate Purchase and Sale’ agreement. Thus, here the assignor merely acts as a middleman, selling their right to buy the property with an equitable interest, i.e. in exchange for an assignment fee from the assignee, who is the ultimate buyer of the property.

Alternatives to assignment of contract 

There are certain other types of transfers that operate as an alternative to assignment. 

They are as follows:

• Licensing- It is an agreement under which a party owning the rights over the property (for example – owning patent rights in case of intellectual property) leases those rights to another, without actually selling or assigning them. Thus, the second party gets a licence to use those rights owned by the first party, for its benefit.  
• Delegation- Delegation basically implies appointing someone else to do the work for you. For example, ‘A’ gets a contract to cut the grass from ‘B’s garden. ‘A’ might delegate the work to ‘C’ without actually assigning the contract to him. But ‘A’ will still control the work and receive the payment. 

Case laws on assignment of contract 

Kapilaben and ors. v. ashok kumar jayantilal sheth through poa gopalbhai madhusudan patel and ors., (2019), facts of the case.

In this case, the appellants here had executed an agreement to sell in 1986 in favour of some of the respondents. The respondents had paid only a portion of the consideration amount. Thereafter, the original buyers, i.e. the respondents executed another agreement to sell in 1987 in respect of the same property in favour of Respondent 1 who was not included in the agreement of 1986. Subsequently, a dispute arose among the parties, and Respondent 1 filed a petition against both the original sellers and buyers seeking specific performance of the 1987 agreement. The petition was dismissed by a trial court citing that the original buyers could not have transferred the contract and assigned their obligation to a third party without the written consent of the original seller. Additionally, there was no evidence suggesting that the seller’s consent was taken. However, the decision was overruled by the High Court of Gujarat. Later on, the matter went to the Supreme Court of India

Issue involved in the case

Was the assignment of obligations by the original buyers to Respondent 1 without the consent of the original seller valid? 

Judgment of the Court

The Supreme Court laid down the following principles in its judgment:

• Assignment of contractual liabilities, where the parties agree to substitute the old contract with a new one where the same responsibilities are transferred to another party is called novation. However, this assignment cannot occur without the consent of the other party to the contract. 
• The rights and obligations under a contract are freely assignable unless the contract is personal in nature or is prohibited by the law. 
• It was finally held that an assignment cannot be held valid just because it is not explicitly prohibited by the provisions of the contract. In order to classify an interest in the contract to be assignable, the terms of the contract and circumstances must be taken into consideration to infer whether the pirates intended to make the interests assignable.

Robinson v. Davison, (1871) 

In this case , the defendant’s wife had promised to play the piano at a concert. However, she failed to perform owing to her bad health. As a result, the plaintiff sued for compensation. 

Issues involved in the case

• Can the plaintiff seek compensation in the present case?
• Could assignment of contract be allowed to a third party?

The Court held that the performance of the present contract depended upon the personal skills of the defendant’s wife, which in turn depended on her good health. Thus, non-performance due to ill-health discharged the contract. Hence, no compensation could be claimed. Also, since the contract was based on the promisor’s personal skills and capability, it could not be assigned to a third party. 

Conclusion 

Assignment of contracts has become a common phenomenon in recent times. However, it is important that the assignments conform to the provisions laid down by the law. It must be carried out with the consent of the contracting parties. There are certain cases where the assignment is not possible like the contracts which are personal in nature, where there is an explicit provision in the contract to prohibit it, or when the law does not allow it in particular cases. These conditions must be adhered to. In fact, our law recognises both legal and equitable assignments. These assignments are covered under the provisions of the Transfer of Property Act, 1882, and the Indian Contract Act, 1872. Thus, all the contracts where the contractual rights and obligations are transferred to a third party are valid, provided all the conditions laid down by law are followed. 

References 

• http://docs.m anupatra.in/newsline/articles/Upload/E915DA6B-361C-493B-91D1-96D8EB703128.pdf
• https://www.thebalancesmb.com/what-is-an-assignment-of-contract-in-a-business-agreement-4587747
• https://www.nolo.com/legal-encyclopedia/assignment-of-contract-basics-32643.html
• https://www.contractscounsel.com/b/assignment-of-contract  

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Chapter 8 Introduction to Contract Law

Learning objectives.

After reading this chapter, you should understand the following:

• Why and how contract law has developed
• What a contract is
• What topics will be discussed in the contracts chapter of this book
• What the sources of contract law are
• How contracts are classified (basic taxonomy)

8.1 General Perspectives on Contracts

• Explain contract law’s cultural roots: how it has evolved as capitalism has evolved.
• Understand that contracts serve essential economic purposes.
• Define contract.
• Understand the basic issues in contract law.

The Role of Contracts in Modern Society

Contract is probably the most familiar legal concept in our society because it is so central to the essence of our political, economic, and social life. In common parlance, contract is used interchangeably with agreement , bargain , undertaking , or deal . Whatever the word, the concept it embodies is our notion of freedom to pursue our own lives together with others. Contract is central because it is the means by which a free society orders what would otherwise be a jostling, frenetic anarchy.

So commonplace is the concept of contract—and our freedom to make contracts with each other—that it is difficult to imagine a time when contracts were rare, when people’s everyday associations with one another were not freely determined. Yet in historical terms, it was not so long ago that contracts were rare, entered into if at all by very few: that affairs should be ordered based on mutual assent was mostly unknown. In primitive societies and in feudal Europe, relationships among people were largely fixed; traditions spelled out duties that each person owed to family, tribe, or manor. People were born into an ascribed position—a status (not unlike the caste system still existing in India)—and social mobility was limited. Sir Henry Maine, a nineteenth-century British historian, wrote that “the movement of the progressive societies has…been a movement from status to contract.” Sir Henry Maine, Ancient Law (1869), 180–82. This movement was not accidental—it developed with the emerging industrial order. From the fifteenth to the nineteenth century, England evolved into a booming mercantile economy, with flourishing trade, growing cities, an expanding monetary system, the commercialization of agriculture, and mushrooming manufacturing. With this evolution, contract law was created of necessity.

Contract law did not develop according to a conscious plan, however. It was a response to changing conditions, and the judges who created it frequently resisted, preferring the imagined quieter pastoral life of their forefathers. Not until the nineteenth century, in both the United States and England, did a full-fledged law of contracts arise together with, and help create, modern capitalism.

Modern capitalism, indeed, would not be possible without contract law. So it is that in planned economies, like those of the former Soviet Union and precapitalistic China, the contract did not determine the nature of an economic transaction. That transaction was first set forth by the state’s planning authorities; only thereafter were the predetermined provisions set down in a written contract. Modern capitalism has demanded new contract regimes in Russia and China; the latter adopted its Revised Contract Law in 1999.

Contract law may be viewed economically as well as culturally. In An Economic Analysis of Law , Judge Richard A. Posner (a former University of Chicago law professor) suggests that contract law performs three significant economic functions. First, it helps maintain incentives for individuals to exchange goods and services efficiently. Second, it reduces the costs of economic transactions because its very existence means that the parties need not go to the trouble of negotiating a variety of rules and terms already spelled out. Third, the law of contracts alerts the parties to troubles that have arisen in the past, thus making it easier to plan the transactions more intelligently and avoid potential pitfalls. Richard A. Posner, Economic Analysis of Law (New York: Aspen, 1973).

The Definition of Contract

As usual in the law, the legal definition of contract A legally enforceable set of promises. is formalistic. The Restatement (Second) of Contracts (Section 1) says, “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Similarly, the Uniform Commercial Code says, “‘Contract’ means the total legal obligation which results from the parties’ agreement as affected by this Act and any other applicable rules of law.” Uniform Commercial Code, Section 1-201(11). As operational definitions, these two are circular; in effect, a contract is defined as an agreement that the law will hold the parties to.

Most simply, a contract is a legally enforceable promise. This implies that not every promise or agreement creates a binding contract; if every promise did, the simple definition set out in the preceding sentence would read, “A contract is a promise.” But—again—a contract is not simply a promise: it is a legally enforceable promise. The law takes into account the way in which contracts are made, by whom they are made, and for what purposes they are made. For example, in many states, a wager is unenforceable, even though both parties “shake” on the bet. We will explore these issues in the chapters to come.

Overview of the Contracts Chapter

Although contract law has many wrinkles and nuances, it consists of four principal inquiries, each of which will be taken up in subsequent chapters:

Did the parties create a valid contract? Four elements are necessary for a valid contract:

• Mutual assent (i.e., offer and acceptance), Chapter 9 "The Agreement"
• Real assent (no duress, undue influence, misrepresentation, mistake, or incapacity), Chapter 10 "Real Assent"
• Consideration, Chapter 11 "Consideration"
• Legality, Chapter 12 "Legality"
• What does the contract mean, and is it in the proper form to carry out this meaning? Sometimes contracts need to be in writing (or evidenced by some writing), or they can’t be enforced. Sometimes it isn’t clear what the contract means, and a court has to figure that out. These problems are taken up in Chapter 13 "Form and Meaning" .
• Do persons other than the contracting parties have rights or duties under the contract? Can the right to receive a benefit from the contract be assigned, and can the duties be delegated so that a new person is responsible? Can persons not a party to the contract sue to enforce its terms? These questions are addressed in Chapter 14 "Third-Party Rights" .
• How do contractual duties terminate, and what remedies are available if a party has breached the contract? These issues are taken up in Chapter 15 "Discharge of Obligations" and Chapter 16 "Remedies" .

Together, the answers to these four basic inquiries determine the rights and obligations of contracting parties.

Key Takeaway

Contract law developed when the strictures of feudalism dissipated, when a person’s position in society came to be determined by personal choice (by mutual agreement) and not by status (by how a person was born). Capitalism and contract law have developed together, because having choices in society means that people decide and agree to do things with and to each other, and those agreements bind the parties; the agreements must be enforceable.

• Why is contract law necessary in a society where a person’s status is not predetermined by birth?
• Contract law serves some economic functions. What are they?

8.2 Sources of Contract Law

• Understand that contract law comes from two sources: judges (cases) and legislation.
• Know what the Restatement of Contracts is.
• Recognize the Convention on Contracts for the International Sale of Goods.

The most important sources of contract law are state case law and state statutes (though there are also many federal statutes governing how contracts are made by and with the federal government).

Law made by judges is called case law Law decided by judges as recorded in cases and published. . Because contract law was made up in the common-law courtroom by individual judges as they applied rules to resolve disputes before them, it grew over time to formidable proportions. By the early twentieth century, tens of thousands of contract disputes had been submitted to the courts for resolution, and the published opinions, if collected in one place, would have filled dozens of bookshelves. Clearly this mass of material was too unwieldy for efficient use. A similar problem also had developed in the other leading branches of the common law.

Disturbed by the profusion of cases and the resulting uncertainty of the law, a group of prominent American judges, lawyers, and law teachers founded the American Law Institute (ALI) in 1923 to attempt to clarify, simplify, and improve the law. One of the ALI’s first projects, and ultimately one of its most successful, was the drafting of the Restatement of the Law of Contracts An organized codification of the common law of contracts. , completed in 1932. A revision—the Restatement (Second) of Contracts—was undertaken in 1964 and completed in 1979. Hereafter, references to “the Restatement” pertain to the Restatement (Second) of Contracts.

The Restatements—others exist in the fields of torts, agency, conflicts of laws, judgments, property, restitution, security, and trusts—are detailed analyses of the decided cases in each field. These analyses are made with an eye to discerning the various principles that have emerged from the courts, and to the maximum extent possible, the Restatements declare the law as the courts have determined it to be. The Restatements, guided by a reporter (the director of the project) and a staff of legal scholars, go through several so-called tentative drafts—sometimes as many as fifteen or twenty—and are screened by various committees within the ALI before they are eventually published as final documents.

The Restatement (Second) of Contracts won prompt respect in the courts and has been cited in innumerable cases. The Restatements are not authoritative, in the sense that they are not actual judicial precedents; but they are nevertheless weighty interpretive texts, and judges frequently look to them for guidance. They are as close to “black letter” rules of law as exist anywhere in the American common-law legal system.

Common law, case law (the terms are synonymous), governs contracts for the sale of real estate and services. “Services” refer to acts or deeds (like plumbing, drafting documents, driving a car) as opposed to the sale of property.

Statutory Law: The Uniform Commercial Code

Common-law contract principles govern contracts for real estate and services. Because of the historical development of the English legal system, contracts for the sale of goods came to be governed by a different body of legal rules. In its modern American manifestation, that body of rules is an important statute: the Uniform Commercial Code (UCC) The modern American state statutory law governing commercial transactions. , especially Article 2 That part of the Uniform Commercial Code dealing with the sale of goods. , which deals with the sale of goods.

History of the UCC

A bit of history is in order. Before the UCC was written, commercial law varied, sometimes greatly, from state to state. This first proved a nuisance and then a serious impediment to business as the American economy became nationwide during the twentieth century. Although there had been some uniform laws concerned with commercial deals—including the Uniform Sales Act, first published in 1906—few were widely adopted and none nationally. As a result, the law governing sales of goods, negotiable instruments, warehouse receipts, securities, and other matters crucial to doing business in an industrial market economy was a crazy quilt of untidy provisions that did not mesh well from state to state.

The UCC is a model law developed by the ALI and the National Conference of Commissioners on Uniform State Laws; it has been adopted in one form or another by the legislatures in all fifty states, the District of Columbia, and the American territories. It is a “national” law not enacted by Congress—it is not federal law but uniform state law.

Initial drafting of the UCC began in 1942 and was ten years in the making, involving the efforts of hundreds of practicing lawyers, law teachers, and judges. A final draft, promulgated by the ALI, was endorsed by the American Bar Association and published in 1951. Various revisions followed in different states, threatening the uniformity of the UCC. The ALI responded by creating a permanent editorial board to oversee future revisions. In one or another of its various revisions, the UCC has been adopted in whole or in part in all American jurisdictions. The UCC is now a basic law of relevance to every business and business lawyer in the United States, even though it is not entirely uniform because different states have adopted it at various stages of its evolution—an evolution that continues still.

Organization of the UCC

The UCC consists of nine major substantive articles; each deals with separate though related subjects. The articles are as follows:

• Article 1: General Provisions
• Article 2: Sales
• Article 2A: Leases
• Article 3: Commercial Paper
• Article 4: Bank Deposits and Collections
• Article 4A: Funds Transfers
• Article 5: Letters of Credit
• Article 6: Bulk Transfers
• Article 7: Warehouse Receipts, Bills of Lading, and Other Documents of Title
• Article 8: Investment Securities
• Article 9: Secured Transactions

Article 2 deals only with the sale of goods, which the UCC defines as “all things…which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid.” Uniform Commercial Code, Section 2-105. The only contracts and agreements covered by Article 2 are those relating to the present or future sale of goods.

Article 2 is divided in turn into six major parts: (1) Form, Formation, and Readjustment of Contract; (2) General Obligation and Construction of Contract; (3) Title, Creditors, and Good Faith Purchasers; (4) Performance; (5) Breach, Repudiation, and Excuse; and (6) Remedies.

Figure 8.1 Sources of Law

International Sales Law

The convention on contracts for the international sale of goods.

A Convention on Contracts for the International Sale of Goods (CISG) An international body of contract law. was approved in 1980 at a diplomatic conference in Vienna. (A convention is a preliminary agreement that serves as the basis for a formal treaty.) The CISG has been adopted by more than forty countries, including the United States.

The CISG is significant for three reasons. First, it is a uniform law governing the sale of goods—in effect, an international Uniform Commercial Code. The major goal of the drafters was to produce a uniform law acceptable to countries with different legal, social, and economic systems. Second, although provisions in the CISG are generally consistent with the UCC, there are significant differences. For instance, under the CISG, consideration (discussed in Chapter 11 "Consideration" ) is not required to form a contract, and there is no Statute of Frauds (a requirement that certain contracts be evidenced by a writing). Third, the CISG represents the first attempt by the US Senate to reform the private law of business through its treaty powers, for the CISG preempts the UCC. The CISG is not mandatory: parties to an international contract for the sale of goods may choose to have their agreement governed by different law, perhaps the UCC, or perhaps, say, Japanese contract law. The CISG does not apply to contracts for the sale of (1) ships or aircraft, (2) electricity, or (3) goods bought for personal, family, or household use, nor does it apply (4) where the party furnishing the goods does so only incidentally to the labor or services part of the contract.

Judges have made contract law over several centuries by deciding cases that create, extend, or change the developing rules affecting contract formation, performance, and enforcement. The rules from the cases have been abstracted and organized in the Restatements of Contracts. To facilitate interstate commerce, contract law for many commercial transactions—especially the sale of goods—not traditionally within the purview of judges has been developed by legal scholars and presented for the states to adopt as the Uniform Commercial Code. There is an analogous Convention on Contracts for the International Sale of Goods, to which the United States is a party.

• How do judges make contract law?
• What is the Restatement of the Law of Contracts, and why was it necessary?
• Why was the Uniform Commercial Code developed, and by whom?
• Who adopts the UCC as governing law?
• What is the Convention on Contracts for the International Sale of Goods?

8.3 Basic Taxonomy of Contracts

• Understand that contracts are classified according to the criteria of explicitness, mutuality, enforceability, and degree of completion and that some noncontract promises are nevertheless enforceable under the doctrine of promissory estoppel.
• Keep your eyes (and ears) alert to the use of suffixes (word endings) in legal terminology that express relationships between parties.

Some contracts are written, some oral; some are explicit, some not. Because contracts can be formed, expressed, and enforced in a variety of ways, a taxonomy of contracts has developed that is useful in grouping together like legal consequences. In general, contracts are classified along four different dimensions: explicitness, mutuality, enforceability, and degree of completion. Explicitness is the degree to which the agreement is manifest to those not party to it. Mutuality takes into account whether promises are given by two parties or only one. Enforceability is the degree to which a given contract is binding. Completion considers whether the contract is yet to be performed or whether the obligations have been fully discharged by one or both parties. We will examine each of these concepts in turn.

Explicitness

Express contract.

An express contract A contract in words, orally or in writing. is one in which the terms are spelled out directly. The parties to an express contract, whether it is written or oral, are conscious that they are making an enforceable agreement. For example, an agreement to purchase your neighbor’s car for $5,500 and to take title next Monday is an express contract.

Implied Contract (Implied in Fact)

An implied contract A contract that is not expressed but is inferred from the actions of the parties. is one that is inferred from the actions of the parties. When parties have not discussed terms, an implied contract exists if it is clear from the conduct of both parties that they intended there be one. A delicatessen patron who asks for a turkey sandwich to go has made a contract and is obligated to pay when the sandwich is made. By ordering the food, the patron is implicitly agreeing to the price, whether posted or not.

The distinction between express and implied contracts has received a degree of notoriety in the so-called palimony cases, in which one member of an unmarried couple seeks a division of property after a long-standing live-together relationship has broken up. When a married couple divorces, their legal marriage contract is dissolved, and financial rights and obligations are spelled out in a huge body of domestic relations statutes and judicial decisions. No such laws exist for unmarried couples. However, about one-third of the states recognize common-law marriage, under which two people are deemed to be married if they live together with the intent to be married, regardless of their failure to have obtained a license or gone through a ceremony. Although there is no actual contract of marriage (no license), their behavior implies that the parties intended to be treated as if they were married.

Quasi-Contract

A quasi-contract (implied in law) A contract imposed on a party when there was none, to avoid unjust enrichment. is—unlike both express and implied contracts, which embody an actual agreement of the parties—an obligation said to be “imposed by law” in order to avoid unjust enrichment of one person at the expense of another. A quasi-contract is not a contract at all; it is a fiction that the courts created to prevent injustice. Suppose, for example, that the local lumberyard mistakenly delivers a load of lumber to your house, where you are repairing your deck. It was a neighbor on the next block who ordered the lumber, but you are happy to accept the load for free; since you never talked to the lumberyard, you figure you need not pay the bill. Although it is true there is no contract, the law implies a contract for the value of the material: of course you will have to pay for what you got and took. The existence of this implied contract does not depend on the intention of the parties.

Bilateral Contract

The typical contract is one in which the parties make mutual promises. Each is both promisor and promisee; that is, each pledges to do something, and each is the recipient of such a pledge. This type of contract is called a bilateral contract A contract in which each party makes a promise to the other. .

Unilateral Contract

Mutual promises are not necessary to constitute a contract. Unilateral contracts A contract that is accepted by performance of the requested action, not by a promise. , in which one party performs an act in exchange for the other party’s promise, are equally valid. An offer of a reward—for catching a criminal or for returning a lost cat—is an example of a unilateral contract: there is an offer on one side, and the other side accepts by taking the action requested.

Figure 8.2 Bilateral and Unilateral Contracts

Enforceability

Not every agreement between two people is a binding contract. An agreement that is lacking one of the legal elements of a contract is said to be a void contract An agreement that never was a contract. —that is, not a contract at all. An agreement that is illegal—for example, a promise to commit a crime in return for a money payment—is void. Neither party to a void “contract” may enforce it.

By contrast, a voidable contract A contract that is capable of being annulled. is one that may become unenforceable by one party but can be enforced by the other. For example, a minor (any person under eighteen, in most states) may “avoid” a contract with an adult; the adult may not enforce the contract against the minor if the minor refuses to carry out the bargain. But the adult has no choice if the minor wishes the contract to be performed. (A contract may be voidable by both parties if both are minors.)

Ordinarily, the parties to a voidable contract are entitled to be restored to their original condition. Suppose you agree to buy your seventeen-year-old neighbor’s car. He delivers it to you in exchange for your agreement to pay him next week. He has the legal right to terminate the deal and recover the car, in which case you will of course have no obligation to pay him. If you have already paid him, he still may legally demand a return to the status quo ante (previous state of affairs). You must return the car to him; he must return the cash to you.

A voidable contract remains a valid contract until it is voided. Thus a contract with a minor remains in force unless the minor decides he or she does not wish to be bound by it. When the minor reaches majority, he or she may “ratify” the contract—that is, agree to be bound by it—in which case the contract will no longer be voidable and will thereafter be fully enforceable.

Unenforceable

An unenforceable contract A contract for which the nonbreaching party has no remedy for its breach. is one that some rule of law bars a court from enforcing. For example, Tom owes Pete money, but Pete has waited too long to collect it and the statute of limitations has run out. The contract for repayment is unenforceable and Pete is out of luck, unless Tom makes a new promise to pay or actually pays part of the debt. (However, if Pete is holding collateral as security for the debt, he is entitled to keep it; not all rights are extinguished because a contract is unenforceable.) A debt becomes unenforceable, too, when the debtor declares bankruptcy.

A bit more on enforceability is in order. A promise or what seems to be a promise is usually enforceable only if it is otherwise embedded in the elements necessary to make that promise a contract. Those elements are mutual assent, real assent, consideration, capacity, and legality. Sometimes, though, people say things that seem like promises, and on which another person relies. In the early twentieth century, courts began, in some circumstances, to recognize that insisting on the existence of the traditional elements of contract to determine whether a promise is enforceable could work an injustice where there has been reliance. Thus developed the equitable doctrine of promissory estoppel To be prohibited from denying a promise when another subsequently has relied on it. , which has become an important adjunct to contract law. The Restatement (Section 90) puts it this way: “A promise which the promisor should reasonably expect to induce action or forbearance on the party of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.”

To be “estopped” means to be prohibited from denying now the validity of a promise you made before.

The doctrine has an interesting background. In 1937, High Trees House Ltd. (a British corporation) leased a block of London apartments from Central London Properties. As World War II approached, vacancy rates soared because people left the city. In 1940 the parties agreed to reduce the rent rates by half, but no term was set for how long the reduction would last. By mid-1945, as the war was ending, occupancy was again full, and Central London sued for the full rental rates from June on. The English court, under Judge Alfred Thompson Denning (1899–1999), had no difficulty finding that High Trees owed the full amount once full occupancy was again achieved, but Judge Denning went on. In an aside (called a dicta—a statement “by the way”—that is, not necessary as part of the decision), he mused about what would have happened if in 1945 Central London had sued for the full-occupancy rate back to 1940. Technically, the 1940 amendment to the 1937 contract was not binding on Central London—it lacked consideration—and Central London could have reached back to demand full-rate payment. But Judge Denning said that High Trees would certainly have relied on Central London’s promise that a reduced-rate rent would be acceptable, and that would have been enough to bind it, to prevent it from acting inconsistently with the promise. He wrote, “The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it.” Central London Property Trust Ltd. v. High Trees House Ltd. (1947) KB 130.

In the years since, though, courts have gone so far as to give a cause of action in damages for various noncontract promises. Contract protects agreements; promissory estoppel protects reliance, and that’s a significant difference. The law of contracts continues to evolve.

Degree of Completion

An agreement consisting of a set of promises is called an executory contract A contract that has yet to be completed. before any promises are carried out. Most executory contracts are enforceable. If John makes an agreement to deliver wheat to Humphrey and does so, the contract is called a partially executed contract A contract in which one party has performed, or partly performed, and the other party has not. : one side has performed, the other has not. When John pays for the wheat, the contract is fully performed. A contract that has been carried out fully by both parties is called an executed contract A contract that has been completed. .

Terminology: Suffixes Expressing Relationships

Although not really part of the taxonomy of contracts (i.e., the orderly classification of the subject), an aspect of contractual—indeed, legal—terminology should be highlighted here. Suffixes (the end syllables of words) in the English language are used to express relationships between parties in legal terminology. Here are examples:

• Offeror. One who makes an offer.
• Offeree. One to whom an offer is made.
• Promisor. One who makes a promise.
• Promisee. One to whom a promise is made.
• Obligor. One who makes and has an obligation.
• Obligee. One to whom an obligation is made.
• Transferor. One who makes a transfer.
• Transferee. One to whom a transfer is made.

Contracts are described and thus defined on the basis of four criteria: explicitness (express, implied, or quasi-contracts), mutuality (bilateral or unilateral), enforceability (void, voidable, unenforceable), and degree of completion (executory, partially executed, executed). Legal terminology in English often describes relationships between parties by the use of suffixes, to which the eye and ear must pay attention.

• Able writes to Baker: “I will mow your lawn for $20.” If Baker accepts, is this an express or implied contract?
• Able telephones Baker: “I will mow your lawn for $20.” Is this an express or implied contract?
• What is the difference between a void contract and a voidable one?
• Carr staples this poster to a utility pole: “$50 reward for the return of my dog, Argon.” Describe this in contractual terms regarding explicitness, mutuality, enforceability, and degree of completion.
• Is a voidable contract always unenforceable?
• Contractor bids on a highway construction job, incorporating Guardrail Company’s bid into its overall bid to the state. Contractor cannot accept Guardrail’s offer until it gets the nod from the state. Contractor gets the nod from the state, but before it can accept Guardrail’s offer, the latter revokes it. Usually a person can revoke an offer any time before it is accepted. Can Guardrail revoke its offer in this case?

Explicitness: Implied Contract

Roger’s Backhoe Service, Inc. v. Nichols

681 N.W.2d 647 (Iowa 2004)

Defendant, Jeffrey S. Nichols, is a funeral director in Muscatine.…In early 1998 Nichols decided to build a crematorium on the tract of land on which his funeral home was located. In working with the Small Business Administration, he was required to provide drawings and specifications and obtain estimates for the project. Nichols hired an architect who prepared plans and submitted them to the City of Muscatine for approval. These plans provided that the surface water from the parking lot would drain onto the adjacent street and alley and ultimately enter city storm sewers. These plans were approved by the city.

Nichols contracted with Roger’s [Backhoe Service, Inc.] for the demolition of the foundation of a building that had been razed to provide room for the crematorium and removal of the concrete driveway and sidewalk adjacent to that foundation. Roger’s completed that work and was paid in full.

After construction began, city officials came to the jobsite and informed Roger’s that the proposed drainage of surface water onto the street and alley was unsatisfactory. The city required that an effort be made to drain the surface water into a subterranean creek, which served as part of the city’s storm sewer system. City officials indicated that this subterranean sewer system was about fourteen feet below the surface of the ground.…Roger’s conveyed the city’s mandate to Nichols when he visited the jobsite that same day.

It was Nichols’ testimony at trial that, upon receiving this information, he advised…Roger’s that he was refusing permission to engage in the exploratory excavation that the city required. Nevertheless, it appears without dispute that for the next three days Roger’s did engage in digging down to the subterranean sewer system, which was located approximately twenty feet below the surface. When the underground creek was located, city officials examined the brick walls in which it was encased and determined that it was not feasible to penetrate those walls in order to connect the surface water drainage with the underground creek. As a result of that conclusion, the city reversed its position and once again gave permission to drain the surface water onto the adjacent street and alley.

[T]he invoices at issue in this litigation relate to charges that Roger’s submitted to Nichols for the three days of excavation necessary to locate the underground sewer system and the cost for labor and materials necessary to refill the excavation with compactable materials and attain compaction by means of a tamping process.…The district court found that the charges submitted on the…invoices were fair and reasonable and that they had been performed for Nichols’ benefit and with his tacit approval.…

The court of appeals…concluded that a necessary element in establishing an implied-in-fact contract is that the services performed be beneficial to the alleged obligor. It concluded that Roger’s had failed to show that its services benefited Nichols.…

In describing the elements of an action on an implied contract, the court of appeals stated in [Citation], that the party seeking recovery must show:

(1) the services were carried out under such circumstances as to give the recipient reason to understand:

(a) they were performed for him and not some other person, and

(b) they were not rendered gratuitously, but with the expectation of compensation from the recipient; and

(2) the services were beneficial to the recipient.

In applying the italicized language in [Citation] to the present controversy, it was the conclusion of the court of appeals that Roger’s’ services conferred no benefit on Nichols. We disagree. There was substantial evidence in the record to support a finding that, unless and until an effort was made to locate the subterranean sewer system, the city refused to allow the project to proceed. Consequently, it was necessary to the successful completion of the project that the effort be made. The fact that examination of the brick wall surrounding the underground creek indicated that it was unfeasible to use that source of drainage does not alter the fact that the project was stalemated until drainage into the underground creek was fully explored and rejected. The district court properly concluded that Roger’s’ services conferred a benefit on Nichols.…

Decision of court of appeals vacated; district court judgment affirmed.

Case Questions

• What facts must be established by a plaintiff to show the existence of an implied contract?
• What argument did Nichols make as to why there was no implied contract here?
• How would the facts have to be changed to make an express contract?

Mutuality of Contract: Unilateral Contract

SouthTrust Bank v. Williams

775 So.2d 184 (Ala. 2000)

SouthTrust Bank (“SouthTrust”) appeals from an order denying its motion to compel arbitration of an action against it by checking-account customers Mark Williams and Bessie Daniels. We reverse and remand.

Daniels and Williams began their relationship with SouthTrust in 1981 and 1995, respectively, by executing checking-account “signature cards.” The signature card each customer signed contained a “change-in-terms” clause. Specifically, when Daniels signed her signature card, she “agree[d] to be subject to the Rules and Regulations as may now or hereafter be adopted by the Bank.” (Emphasis added.)…[Later,] SouthTrust added paragraph 33 to the regulations:…

ARBITRATION OF DISPUTES. You and we agree that the transactions in your account involve ‘commerce’ under the Federal Arbitration Act (‘FAA’). ANY CONTROVERSY OR CLAIM BETWEEN YOU AND US…WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FAA.…

This action…challenges SouthTrust’s procedures for paying overdrafts, and alleges that SouthTrust engages in a “uniform practice of paying the largest check(s) before paying multiple smaller checks…[in order] to generate increased service charges for [SouthTrust] at the expense of [its customers].”

SouthTrust filed a “motion to stay [the] lawsuit and to compel arbitration.” It based its motion on paragraph 33 of the regulations. [T]he trial court…entered an order denying SouthTrust’s motion to compel arbitration. SouthTrust appeals.…

Williams and Daniels contend that SouthTrust’s amendment to the regulations, adding paragraph 33, was ineffective because, they say, they did not expressly assent to the amendment. In other words, they object to submitting their claims to arbitration because, they say, when they opened their accounts, neither the regulations nor any other relevant document contained an arbitration provision. They argue that “mere failure to object to the addition of a material term cannot be construed as an acceptance of it.”…They contend that SouthTrust could not unilaterally insert an arbitration clause in the regulations and make it binding on depositors like them.

SouthTrust, however, referring to its change-of-terms clause insists that it “notified” Daniels and Williams of the amendment in January 1997 by enclosing in each customer’s “account statement” a complete copy of the regulations, as amended. Although it is undisputed that Daniels and Williams never affirmatively assented to these amended regulations, SouthTrust contends that their assent was evidenced by their failure to close their accounts after they received notice of the amendments.…Thus, the disposition of this case turns on the legal effect of Williams and Daniels’s continued use of the accounts after the regulations were amended.

Williams and Daniels argue that “[i]n the context of contracts between merchants [under the UCC], a written confirmation of an acceptance may modify the contract unless it adds a material term, and arbitration clauses are material terms.”…

Williams and Daniels concede—as they must—…that Article 2 governs “transactions in goods,” and, consequently, that it is not applicable to the transactions in this case. Nevertheless, they argue:

It would be astonishing if a Court were to consider the addition of an arbitration clause a material alteration to a contract between merchants, who by definition are sophisticated in the trade to which the contract applies, but not hold that the addition of an arbitration clause is a material alteration pursuant to a change-of-terms clause in a contract between one sophisticated party, a bank, and an entire class of less sophisticated parties, its depositors.…

In response, SouthTrust states that “because of the ‘at-will’ nature of the relationship, banks by necessity must contractually reserve the right to amend their deposit agreements from time to time.” In so stating, SouthTrust has precisely identified the fundamental difference between the transactions here and those transactions governed by [Article 2].

Contracts for the purchase and sale of goods are essentially bilateral and executory in nature. See [Citation] “An agreement whereby one party promises to sell and the other promises to buy a thing at a later time…is a bilateral promise of sale or contract to sell”.…“[A] unilateral contract results from an exchange of a promise for an act; a bilateral contract results from an exchange of promises.”…Thus, “in a unilateral contract, there is no bargaining process or exchange of promises by parties as in a bilateral contract.” [Citation] “[O]nly one party makes an offer (or promise) which invites performance by another, and performance constitutes both acceptance of that offer and consideration.” Because “a ‘unilateral contract’ is one in which no promisor receives promise as consideration for his promise,” only one party is bound.…The difference is not one of semantics but of substance; it determines the rights and responsibilities of the parties, including the time and the conditions under which a cause of action accrues for a breach of the contract.

This case involves at-will, commercial relationships, based upon a series of unilateral transactions. Thus, it is more analogous to cases involving insurance policies, such as [Citations]. The common thread running through those cases was the amendment by one of the parties to a business relationship of a document underlying that relationship—without the express assent of the other party—to require the arbitration of disputes arising after the amendment.…

The parties in [the cited cases], like Williams and Daniels in this case, took no action that could be considered inconsistent with an assent to the arbitration provision. In each case, they continued the business relationship after the interposition of the arbitration provision. In doing so, they implicitly assented to the addition of the arbitration provision.…

Reversed and remanded.

• Why did the plaintiffs think they should not be bound by the arbitration clause?
• The court said this case involved a unilateral contract. What makes it that, as opposed to a bilateral contract?
• What should the plaintiffs have done if they didn’t like the arbitration requirement?

Unilateral Contract and At-Will Employment

Woolley v. Hoffmann-La Roche, Inc.

491 A.2d 1257 (N.J. 1985)

Wilntz, C. J.

Plaintiff, Richard Woolley, was hired by defendant, Hoffmann-La Roche, Inc., in October 1969, as an Engineering Section Head in defendant’s Central Engineering Department at Nutley. There was no written employment contract between plaintiff and defendant. Plaintiff began work in mid-November 1969. Sometime in December, plaintiff received and read the personnel manual on which his claims are based.

[The company’s personnel manual had eight pages;] five of the eight pages are devoted to “termination.” In addition to setting forth the purpose and policy of the termination section, it defines “the types of termination” as “layoff,” “discharge due to performance,” “discharge, disciplinary,” “retirement” and “resignation.” As one might expect, layoff is a termination caused by lack of work, retirement a termination caused by age, resignation a termination on the initiative of the employee, and discharge due to performance and discharge, disciplinary, are both terminations for cause. There is no category set forth for discharge without cause. The termination section includes “Guidelines for discharge due to performance,” consisting of a fairly detailed procedure to be used before an employee may be fired for cause. Preceding these definitions of the five categories of termination is a section on “Policy,” the first sentence of which provides: “It is the policy of Hoffmann-La Roche to retain to the extent consistent with company requirements, the services of all employees who perform their duties efficiently and effectively.”

In 1976, plaintiff was promoted, and in January 1977 he was promoted again, this latter time to Group Leader for the Civil Engineering, the Piping Design, the Plant Layout, and the Standards and Systems Sections. In March 1978, plaintiff was directed to write a report to his supervisors about piping problems in one of defendant’s buildings in Nutley. This report was written and submitted to plaintiff’s immediate supervisor on April 5, 1978. On May 3, 1978, stating that the General Manager of defendant’s Corporate Engineering Department had lost confidence in him, plaintiff’s supervisors requested his resignation. Following this, by letter dated May 22, 1978, plaintiff was formally asked for his resignation, to be effective July 15, 1978.

Plaintiff refused to resign. Two weeks later defendant again requested plaintiff’s resignation, and told him he would be fired if he did not resign. Plaintiff again declined, and he was fired in July.

Plaintiff filed a complaint alleging breach of contract.…The gist of plaintiff’s breach of contract claim is that the express and implied promises in defendant’s employment manual created a contract under which he could not be fired at will, but rather only for cause, and then only after the procedures outlined in the manual were followed. Plaintiff contends that he was not dismissed for good cause, and that his firing was a breach of contract.

Defendant’s motion for summary judgment was granted by the trial court, which held that the employment manual was not contractually binding on defendant, thus allowing defendant to terminate plaintiff’s employment at will. The Appellate Division affirmed. We granted certification.

The employer’s contention here is that the distribution of the manual was simply an expression of the company’s “philosophy” and therefore free of any possible contractual consequences. The former employee claims it could reasonably be read as an explicit statement of company policies intended to be followed by the company in the same manner as if they were expressed in an agreement signed by both employer and employees.…

This Court has long recognized the capacity of the common law to develop and adapt to current needs.…The interests of employees, employers, and the public lead to the conclusion that the common law of New Jersey should limit the right of an employer to fire an employee at will.

In order for an offer in the form of a promise to become enforceable, it must be accepted. Acceptance will depend on what the promisor bargained for: he may have bargained for a return promise that, if given, would result in a bilateral contract, both promises becoming enforceable. Or he may have bargained for some action or nonaction that, if given or withheld, would render his promise enforceable as a unilateral contract. In most of the cases involving an employer’s personnel policy manual, the document is prepared without any negotiations and is voluntarily distributed to the workforce by the employer. It seeks no return promise from the employees. It is reasonable to interpret it as seeking continued work from the employees, who, in most cases, are free to quit since they are almost always employees at will, not simply in the sense that the employer can fire them without cause, but in the sense that they can quit without breaching any obligation. Thus analyzed, the manual is an offer that seeks the formation of a unilateral contract—the employees’ bargained-for action needed to make the offer binding being their continued work when they have no obligation to continue.

The unilateral contract analysis is perfectly adequate for that employee who was aware of the manual and who continued to work intending that continuation to be the action in exchange for the employer’s promise; it is even more helpful in support of that conclusion if, but for the employer’s policy manual, the employee would have quit. See generally M. Petit, “Modern Unilateral Contracts,” 63 Boston Univ. Law Rev. 551 (1983) (judicial use of unilateral contract analysis in employment cases is widespread).

…All that this opinion requires of an employer is that it be fair. It would be unfair to allow an employer to distribute a policy manual that makes the workforce believe that certain promises have been made and then to allow the employer to renege on those promises. What is sought here is basic honesty: if the employer, for whatever reason, does not want the manual to be capable of being construed by the court as a binding contract, there are simple ways to attain that goal. All that need be done is the inclusion in a very prominent position of an appropriate statement that there is no promise of any kind by the employer contained in the manual; that regardless of what the manual says or provides, the employer promises nothing and remains free to change wages and all other working conditions without having to consult anyone and without anyone’s agreement; and that the employer continues to have the absolute power to fire anyone with or without good cause.

Reversed and remanded for trial.

• What did Woolley do to show his acceptance of the terms of employment offered to him?
• In part of the case not included here, the court notes that Mr. Woolley died “before oral arguments on this case.” How can there be any damages if the plaintiff has died? Who now has any case to pursue?
• The court here is changing the law of employment in New Jersey. It is making case law, and the rule here articulated governs similar future cases in New Jersey. Why did the court make this change? Why is it relevant that the court says it would be easy for an employer to avoid this problem?

8.5 Summary and Exercises

Contract law developed as the status-centered organization of feudal society faded and people began to make choices about how they might order their lives. In the capitalistic system, people make choices about how to interact with others, and—necessarily—those choices expressed as promises must be binding and enforceable.

The two fundamental sources of contract law are (1) the common law as developed in the state courts and as summarized in the Restatement (Second) of Contracts and (2) the Uniform Commercial Code for the sale of goods. In general, the UCC is more liberal than the common law in upholding the existence of a contract.

Types of contracts can be distinguished by four criteria: (1) express and implied, including quasi-contracts implied by law; (2) bilateral and unilateral; (3) enforceable and unenforceable; and (4) completed (executed) and uncompleted (executory). To understand contract law, it is necessary to master these distinctions and their nuances.

• Mr. and Mrs. Smith, an elderly couple, had no relatives. When Mrs. Smith became ill, the Smiths asked a friend, Henrietta, to help with various housekeeping chores, including cleaning and cooking. Although the Smiths never promised to pay her, Henrietta performed the chores for eighteen months. Henrietta now claims that she is entitled to the reasonable value of the services performed. Is she correct? Explain.
• Assume instead that the Smiths asked Mrs. Smith’s sister, Caroline, who lived nearby, to help with the housekeeping. After eighteen months, Caroline claims she is entitled to the reasonable value of the services performed. Is she correct? Explain.
• A letter from Bridge Builders Inc. to the Allied Steel Company stated, “We offer to purchase 10,000 tons of No. 4 steel pipe at today’s quoted price for delivery two months from today. Your acceptance must be received in five days.” Does Bridge Builders intend to create a bilateral or a unilateral contract? Why?
• Roscoe’s barber persuaded him to try a new hair cream called Sansfree, which the barber applied to Roscoe’s hair and scalp. The next morning Roscoe had a very unpleasant rash along his hairline. Upon investigation he discovered that the rash was due to an improper chemical compound in Sansfree. If Roscoe filed a breach of contract action against the barber, would the case be governed by the Uniform Commercial Code or common law? Explain.
• Rachel entered into a contract to purchase a 2004 Dodge from Hanna, who lived in the neighboring apartment. When a dispute arose over the terms of the contract, Hanna argued that, because neither she nor Rachel was a merchant, the dispute should be decided under general principles of common law. Rachel, on the other hand, argued that Hanna was legally considered to be a merchant because she sold the car for profit and that, consequently, the sale was governed by the Uniform Commercial Code. Who is correct? Explain.
• Lee and Michelle decided to cohabit. When they set up house, Michelle gave up her career, and Lee promised to share his earnings with her on a fifty-fifty basis. Several years later they ended their relationship, and when Lee failed to turn over half of his earnings, Michelle filed suit on the basis of Lee’s promise. What kind of contract would Michelle allege that Lee had breached? Explain.
• Harry and Wilma were divorced in 2008, and Harry was ordered in the divorce decree to pay his ex-wife $10,000. In 2009 and 2010 Harry was hospitalized, incurring $3,000 in bills. He and Wilma discussed the matter, and Wilma agreed to pay the bill with her own money, even though Harry still owed her $5,000 from the divorce decree. When Harry died in late 2010, Wilma made a claim against his estate for $8,000 (the $3,000 in medical bills and the $5,000 from the decree), but the estate was only willing to pay the $5,000 from the decree, claiming she had paid the hospital bill voluntarily and had no contract for repayment. Is the estate correct? Explain.
• Louie, an adult, entered into a contract to sell a case of scotch whiskey to Leroy, a minor. Is the contract void or voidable? Explain.

James Mann owned a manufacturing plant that assembled cell phones. A CPA audit determined that several phones were missing. Theft by one or more of the workers was suspected. Accordingly, under Mann’s instructions, the following sign was placed in the employees’ cafeteria:

Reward. We are missing phones. I want all employees to watch for thievery. A reward of $500 will be paid for information given by any employee that leads to the apprehension of employee thieves.

—James Mann

Waldo, a plant employee, read the notice and immediately called Mann, stating, “I accept your offer. I promise to watch other employees and provide you with the requested information.” Has a contract been formed? Explain.

• Almost every day Sally took a break at lunch and went to the International News Stand—a magazine store—to browse the newspapers and magazines and chat with the owner, Conrad. Often she bought a magazine. One day she went there, browsed a bit, and took a magazine off the rack. Conrad was busy with three customers. Sally waved the magazine at Conrad and left the store with it. What kind of a contract, if any, was created?
• Joan called Devon Sand & Gravel and ordered two “boxes” (dump-truck loads) of gravel to be spread on her rural driveway by the “shoot and run” method: the tailgate is partially opened, the dump-truck bed is lifted, and the truck moves down the driveway spreading gravel as it goes. The driver mistakenly graveled the driveway of Joan’s neighbor, Watson, instead of Joan’s. Is Devon entitled to payment by Watson? Explain.

Self-Test Questions

An implied contract

• must be in writing
• is one in which the terms are spelled out
• is one inferred from the actions of the parties
• is imposed by law to avoid an unjust result
• may be avoided by one party

The Convention on Contracts for the International Sale of Goods is

• an annual meeting of international commercial purchasing agents.
• contract law used in overseas US federal territories
• a customary format or template for drafting contracts
• a kind of treaty setting out international contract law, to which the United States is a party
• the organization that develops uniform international law

An unenforceable contract is

• void, not a contract at all
• one that a court will not enforce for either side because of a rule of law
• unenforceable by one party but enforceable by the other
• one that has been performed by one party but not the other
• too indefinite to be valid

Betty Baker found a bicycle apparently abandoned near her house. She took it home and spent $150 repairing and painting it, after which Carl appeared and proved his ownership of it. Under what theory is Betty able to get reimbursed for her expenditures?

• express contract
• implied contract
• apparent or quasi-contract
• executory contract
• none: she will not get reimbursed

Alice discusses with her neighbor Bob her plan to hire Woodsman to cut three trees on her side of their property line, mentioning that she can get a good deal because Woodsman is now between jobs. Bob says, “Oh, don’t do that. My brother is going to cut some trees on my side, and he can do yours too for free.” Alice agrees. But Bob’s brother is preoccupied and never does the job. Three weeks later Alice discovers Woodsman’s rates have risen prohibitively. Under what theory does Alice have a cause of action against Bob?

• promissory estoppel
• quasi-contract
• none: she has no cause of action against Bob

Self-Test Answers

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9 Introduction to Contract Law

Learning Objectives

After completing the material in this chapter, you should be able to do the following:

• Understand what role contracts play in society today
• Understand what a contract is
• Understand the sources of contract law
• Identify the required elements of a contract: agreement, consideration, legality, and capacity
• Identify common problems with contracts, such as undue influence and fraud
• Understand the circumstances when a contract needs to be in writing to be enforceable
• Identify the remedies for breach of contract

The two legal cornerstones of business relationships are contract and tort. Although both involve the concept of duty, creation of the duty differs in a manner that is important to business. The parties create contract duties through a bargaining process. The key element in the process is voluntary consent; individuals are in control of a situation because they have the freedom to decide whether to enter into a contractual relationship. Tort duties, in contrast, are obligations the law imposes, whether or not the parties desire. Together, voluntary obligations in contract and involuntary obligations in tort are the foundational aspects of the common law of business.

General Perspectives on Contracts

• Understand the role of contract in society: it moves society from status to contract.
• Know the definition of a contract.
• Recognize the sources of contract law: the common law, the UCC, and the Convention on the International Sale of Goods—a treaty (the CISG).
• Understand some fundamental contract taxonomy and terminology.

The Role of Contract in Society

Contract is probably the most familiar legal concept in our society because it is so central to a deeply held conviction about the essence of our political, economic, and social life. In common parlance, the term is used interchangeably with agreement, bargain, undertaking, or deal; but whatever the word, it embodies our notion of freedom to pursue our own lives together with others. Contract is central because it is the means by which a free society orders what would otherwise be a jostling, frenetic anarchy. So commonplace is the concept of contract—and our freedom to make contracts with each other—that it is difficult to imagine a time when contracts were rare, an age when people’s everyday associations with one another were not freely determined. Yet in historical terms, it was not so long ago that contracts were rare, entered into if at all by very few. In historical societies and in the medieval Europe from which our institutions sprang, the relationships among people were largely fixed; traditions spelled out duties that each person owed to family, tribe, or manor. Though he may have oversimplified, Sir Henry Maine, a nineteenth-century historian, sketched the development of society in his classic book Ancient Law . As he put it:

(F)rom a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals. . . . Thus the status of the Slave has disappeared—it has been superseded by the contractual relation of the servant to his master. . . . The status of the Female under Tutelage . . . has also ceased to exist. . . . So too the status of the Son under Power has no true place in the law of modern European societies. If any civil obligation binds together the Parent and the child of full age, it is one to which only contract gives its legal validity…. If then we employ Status, agreeably with the usage of the best writers, to signify these personal conditions [arising from ancient legal privileges of the Family] only, we may say that the movement of the progressive societies has hitherto been a movement. [1]

This movement was not accidental. It went hand-in-glove with the emerging industrial order; from the fifteenth to the nineteenth centuries, as England, especially, evolved into a booming mercantile economy with all that that implies—flourishing trade, growing cities, an expanding monetary system, commercialization of agriculture, mushrooming manufacturing—contract law was created of necessity.

Contract law did not develop, however, according to a conscious, far-seeing plan. It was a response to changing conditions, and the judges who created it frequently resisted, preferring the quieter, imagined pastoral life of their forefathers. Not until the nineteenth century, in both the United States and England, did a full-fledged law of contracts arise together with modern capitalism.

Contract Defined

As usual in the law, the legal definition of “contract” is formalistic. The Restatement says: “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” [2] Similarly, the Uniform Commercial Code says: “‘Contract’ means the total legal obligation which results from the parties’ agreement as affected by this Act and any other applicable rules of law.” [3] A short-hand definition is: “A contract is a legally enforceable promise.”

Economic View of Contract Law

In An Economic Analysis of Law (1973), Judge Richard A. Posner (a former University of Chicago law professor) suggests that contract law performs three significant economic functions. First, it helps maintain incentives to individuals to exchange goods and services efficiently. Second, it reduces the costs of economic transactions because its very existence means that the parties need not go to the trouble of negotiating a variety of rules and terms already spelled out. Third, the law of contracts alerts the parties to trouble spots that have arisen in the past, thus making it easier to plan the transactions more intelligently and avoid potential pitfalls.

Sources of Contract Law

There are four basic sources of contract law: the Constitution, federal and state statutes, federal and state case law, and administrative law. For our purposes, the most important of these, and the ones that we will examine at some length, are case law [4] and statutes.

Case (Common) Law and the Restatement of Contracts

The Restatement of Contracts won prompt respect in the courts and has been cited in innumerable cases. The Restatements are not authoritative, in the sense that they are not actual judicial precedents, but they are nevertheless weighty interpretive texts, and judges frequently look to them for guidance. They are as close to “black letter” rules of law as exist anywhere in the American legal system for judge-made (common) law.

Statutory Law: The Uniform Commercial Code

Common law contract principles govern contracts for real estate and for services, obviously very important areas of law. But in one area the common law has been superseded by an important statute: the Uniform Commercial Code (UCC), the modern American state statutory law governing commercial transactions, especially Article 2 [6] , which deals with the sale of goods (movable, tangible items). Briefly put, the UCC is a model law developed by the American law Institute and the National Conference of Commissioners on Uniform State Laws; it has been adopted in one form or another in all fifty states, the District of Columbia, and the American territories. Before the UCC was written, commercial law varied, sometimes greatly, from state to state. This first proved a nuisance and then a serious impediment to business as the American economy became nationwide during the twentieth century.

The UCC provides a flexible and yet highly technical framework for sale of goods that will, for large part, be beyond the scope of this chapter. The text will note some cases when substantial and important differences exist between the common law (services and real estate) and the UCC (sale of goods). For example, under the common law offer must meet acceptance exactly for a contract to be formed, while the UCC is much more flexible, which reflects commercial practice in which offered terms and conditions often don’t match terms and conditions in acceptances. [7]

The Convention on Contracts for the International Sale of Goods

A Convention on Contracts for the International Sale of Goods (CISG)An international body of contract law. was approved in 1980 at a diplomatic conference in Vienna. (A convention is a preliminary agreement that serves as the basis for a formal treaty.) The Convention has been adopted by several countries, including the United States.

The Convention is significant for three reasons. First, the Convention is a uniform law governing the sale of goods—in effect, an international Uniform Commercial Code. The major goal of the drafters was to produce a uniform law acceptable to countries with different legal, social and economic systems. Second, although provisions in the Convention are generally consistent with the UCC, there are significant differences. For instance, under the Convention, consideration (discussed below) is not required to form a contract and there is no Statute of Frauds (a requirement that some contracts be evidenced by a writing to be enforceable—also discussed below). Finally, the Convention represents the first attempt by the US Senate to reform the private law of business through its treaty powers, for the Convention preempts the UCC if the parties to a contract elect to use the CISG. [8]

Basic Contract Taxonomy

Contracts are not all cut from the same die. Some are written, some oral; some are explicit, some not. Because contracts can be formed, expressed, and enforced in a variety of ways, a taxonomy of contracts has developed that is useful in lumping together like legal consequences. In general, contracts are classified along these dimensions: explicitness, mutuality, enforceability, and degree of completion. Explicitness is concerned with the degree to which the agreement is manifest to those not party to it. Mutuality takes into account whether promises are exchanged by two parties or only one. Enforceability is the degree to which a given contract is binding. Completion considers whether the contract is yet to be performed or the obligations have been fully discharged by one or both parties. We will examine each of these concepts in turn.

Explicitness

Express contract.

An express contract [9] is one in which the terms are spelled out directly; the parties to an express contract, whether written or oral, are conscious that they are making an enforceable agreement. For example, an agreement to purchase your neighbor’s car for $500 and to take title next Monday is an express contract.

Implied Contract

An implied contract [10] is one that is inferred from the actions of the parties. Although no discussion of terms took place, an implied contract exists if it is clear from the conduct of both parties that they intended there be one. A delicatessen patron who asks for a “turkey sandwich to go” has made a contract and is obligated to pay when the sandwich is made. By ordering the food, the patron is implicitly agreeing to the price, whether posted or not.

Contract Implied in Law: Quasi-contract

Both express and implied contracts embody an actual agreement of the parties. A quasi-contract [11] , by contrast, is an obligation said to be ‘‘imposed by law” in order to avoid unjust enrichment of one person at the expense of another. In fact, a quasi-contract is not a contract at all; it is a fiction that the courts created to prevent injustice. Suppose, for example, that a carpenter mistakenly believes you have hired him to repair your porch; in fact, it is your neighbor who has hired him. One Saturday morning he arrives at your doorstep and begins to work. Rather than stop him, you let him proceed, pleased at the prospect of having your porch fixed for free (since you have never talked to the carpenter, you figure you need not pay his bill). Although it is true there is no contract, the law implies a contract for the value of the work.

The garden-variety contract is one in which the parties make mutual promises. Each is both promisor and promisee; that is, each pledges to do something and each is the recipient of such a pledge. This type of contract is called a bilateral contract. [12] But mutual promises are not necessary to constitute a contract. Unilateral contracts [13] , in which only one party makes a promise, are equally valid but depend upon performance of the promise to be binding. If Charles says to Fran, “I will pay you five dollars if you wash my car,” Charles is contractually bound to pay once Fran washes the car. Fran never makes a promise, but by actually performing she makes Charles liable to pay. A common example of a unilateral contract is the offer “$50 for the return of my lost dog.” Frances never makes a promise to the offeror, but if she looks for the dog and finds it, she is entitled to the $50.

Enforceability

Not every agreement between two people is a binding contract. An agreement that is lacking one of the legal elements of a contract is said to be void [14] —that is, not a contract at all. An agreement that is illegal—for example, a promise to commit a crime in return for a money payment—is void. Neither party to a void “contract” may enforce it.

By contrast, a voidable contract [15] is one that is unenforceable by one party but enforceable by the other. For example, a minor (any person under eighteen, in most states) may “avoid” a contract with an adult; the adult may not enforce the contract against the minor, if the minor refuses to carry out the bargain. But the adult has no choice if the minor wishes the contract to be performed. (A contract may be voidable by both parties if both are minors.) Ordinarily, the parties to a voidable contract are entitled to be restored to their original condition. Suppose you agree to buy your seventeen-year-old neighbor’s car. He delivers it to you in exchange for your agreement to pay him next week. He has the legal right to terminate the deal and recover the car, in which case you will of course have no obligation to pay him. If you have already paid him, he still may legally demand a return to the status quo ante (previous state of affairs). You must return the car to him; he must return the cash to you.

A voidable contract remains a valid contract until it is voided. Thus, a contract with a minor remains in force unless the minor decides he does not wish to be bound by it. When the minor reaches his majority, he may “ratify” the contract—that is, agree to be bound by it-in which case the contract will no longer be voidable and will thereafter be fully enforceable.

An unenforceable contract [16] is one that some rule of law bars a court from enforcing. For example, Tom owes Pete money, but Pete has waited too long to collect it and the statute of limitations has run out. The contract for repayment is unenforceable and Pete is out of luck, unless Tom makes a new promise to pay or actually pays part of the debt. (However, if Pete is holding collateral as security for the debt, he is entitled to keep it; not all rights are extinguished because a contract is unenforceable.)

Degree of Completion

An agreement consisting of a set of promises is called an executory contract [17] before either promise is carried out. Most executory contracts are enforceable. If one promise or set of terms has been fulfilled—if, for example, John had delivered the wheat to Humphrey—the contract is called partially executed. [18] A contract that has been carried out fully by both parties is called an executed contract. [19]

Finally, the common law recognizes contracts that are “substantially” performed. If one party to a contract performs in a way that doesn’t precisely fulfill the contract, but fulfills its essential terms, the common law would require the other party perform. For example, if someone building a house for another installed the cabinets incorrectly, the buyer would still need to pay for the house. The buyer could then claim damages or require the builder to fix the cabinets. The UCC has a different rule for buying goods: sellers are bound by the “perfect tender” rule, which requires that buyers receive exactly what they ordered or they may reject the good.

Key Takeaways

Contract is the mechanism by which people in modern society make choices for themselves, as opposed to being born or placed into a status as is common in feudal societies. A contract is a legally enforceable promise. The law of contract is the common law (for contracts involving real estate and services), statutory law (the Uniform Commercial Code for contract involving the sale or leasing of goods), and treaty law (the Convention on the International Sale of Goods). Contracts may be described based on the degree of their explicitness, mutuality, enforceability, and degree of completion.

• What did Sir Henry Maine mean when he wrote of society’s movement “from status to contract?
• Are all promises “contracts”?
• What is the source of law for contracts involving real estate? For contracts involving the sale of goods?
• In contract taxonomy, what are the degrees of explicitness, mutuality, enforceability, and of completion?
• Why might it make sense for the law to have a doctrine like “substantial performance”?

Contract Formation

• Understand the elements of common-law contracts: mutuality of agreement (offer and acceptance), consideration, legality, and capacity.
• Learn when a contract must be in writing—or evidenced by some writing—to be enforceable.

Although it has countless wrinkles and nuances, contract law asks two principal questions: did the parties create a valid, enforceable contract? What remedies are available when one party breaks the contract? The answer to the first question is not always obvious; the range of factors that must be taken into account can be large and their relationship subtle. Since people in business frequently conduct contract negotiations without the assistance of a lawyer, it is important to attend to the nuances to avoid legal trouble at the outset. Whether a valid enforceable contract has been formed depends in turn on whether:

• The parties reached an agreement (offer and acceptance);
• Consideration was present (some “price was paid for what was received in return);
• The agreement was legal;
• The parties entered into the contract with capacity to make a contract; and
• The agreement is in the proper form (something in writing, if required).

The Agreement: Offer and Acceptance

The core of a legal contract is the agreement between the parties. Although agreements may take any form, including unspoken conduct between the parties, they are usually structured in terms of an offer and an acceptance. Note, however, that not every agreement, in the broadest sense of the word, need consist of an offer and acceptance, and it is entirely possible, therefore, for two persons to reach agreement without forming a contract. For example, people may agree that the weather is pleasant or that it would be preferable to go out for Chinese food rather than seeing a foreign film; in neither case has a contract been formed. One of the major functions of the law of contracts is to sort out those agreements that are legally binding—those that are contracts—from those that are not.

The Restatement (Second) of Contracts defines agreement as a “manifestation of mutual assent by two or more persons to one another.” [20] The UCC defines agreement as “the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance.” [21] The critical question is what the parties objectively said or did, not what they subjectively thought they said or did.

The distinction between objective and subjective standards crops up occasionally when one person claims he spoke in jest. The vice president of a manufacturer of punchboards, used in gambling, testified to the Washington State Game Commission that he would pay $100,000 to anyone who found a “crooked board.” Barnes, a bartender, who had purchased two that were crooked some time before, brought one to the company office, and demanded payment. The company refused, claiming that the statement was made in jest (the audience before the commission had laughed when the offer was made). The court disagreed, holding that it was reasonable to interpret the pledge of $100,000 as a means of promoting punchboards:

(I)f the jest is not apparent and a reasonable hearer would believe that an offer was being made, then the speaker risks the formation of a contract which was not intended. It is the objective manifestations of the offeror that count and not secret, unexpressed intentions. If a party’s words or acts, judged by a reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of the party’s mind on the subject. [22]

An offer is a manifestation of willingness to enter into a bargain such that it would be reasonable for another individual to conclude that assent to the offer would complete the bargain. Offers must be communicated and must be definite; that is, they must spell out terms to which the offeree can assent.

To constitute an agreement, there must be an acceptance of the offer. The offeree must manifest his assent to the terms of the offer in a manner invited or required by the offer. If the offer says “accept in skywriting at noon”, then the only way to accept the offer is to hire an airplane. If the offeror specifies no particular mode, then acceptance is effective when transmitted as long as the offeree uses a reasonable method of acceptance. It is implied that the offeree can use the same means used by the offeror or a means of communication customary to the industry. For example, the use of the postal service was so customary that acceptances are considered effective when mailed, regardless of the method used to transmit the offer. Indeed, the so-called “mailbox rule” (the acceptance is effective upon dispatch) has an ancient lineage, tracing back nearly two hundred years to the English courts. [23]

Consideration

Not every agreement forms a contract. One way in which agreements fail to become contracts is because they lack consideration . Consideration is the quid pro quo (something given or received for something else) between the contracting parties in the absence of which the law will not enforce the promise or promises made. Consider the following three “contracts”:

• Betty offers to give a book to Lou. Lou accepts.
• Betty offers Lou the book in exchange for Lou’s promise to pay $15. Lou accepts.
• Betty offers to give Lou the book if Lou promises to pick it up at Betty’s house. Lou accepts.

The question is which, if any, is a binding contract? In American law, only situation 2 is a binding contract, because only that contract contains a set of mutual promises in which each party pledges to give up something to the benefit of the other. [24]

The existence of consideration is determined by examining whether the person against whom a promise is to be enforced (the promisor [25] ) received something in return from the person to whom he made the promise (the promisee [26] ). That may seem a simple enough question. But as with much in the law, the complicating situations are never very far away. The “something” that is promised or delivered cannot just be anything: a feeling of pride, warmth, amusement, friendship; it must be something known as a legal detriment [27] —an act, a forbearance, or a promise of such from the promisee. The detriment need not be an actual detriment; it may in fact be a benefit to the promisee, or at least not a loss. At the same time, the “detriment” to the promisee need not confer a tangible benefit on the promisor; the promisee can agree to forego something without that something being given to the promisor. Whether consideration is legally sufficient has nothing to do with whether it is morally or economically adequate to make the bargain a fair one. Moreover, legal consideration need not even be certain; it can be a promise contingent on an event that may never happen. Consideration is a legal concept, and it centers on the giving up of a legal right or benefit.

Consideration has two elements. The first, as just outlined, is whether the promisee has incurred a legal detriment. (Some courts—although a minority—take the view that a bargained-for legal benefit to the promisor is sufficient consideration.) The second is whether the legal detriment was bargained for : did the promisor specifically intend the act, forbearance, or promise in return for his promise? Applying this two-pronged test to the three examples given at the outset of the chapter, we can easily see why only in the second is there legally sufficient consideration. In the first, Lou incurred no legal detriment; he made no pledge to act or to forbear from acting, nor did he in fact act or forbear from acting. In the third example, what might appear to be such a promise is not really so. Betty made a promise on a condition that Lou come to her house; the intent clearly is to make a gift. Betty was not seeking to induce Lou to come to her house by promising the book.

There is a widely recognized exception to the requirement of consideration. In cases of promissory estoppel, the courts will enforce promises without consideration. Simply stated, promissory estoppel [28] means that the courts will stop the promisor from claiming that there was no consideration. The doctrine of promissory estoppel is invoked in the interests of justice when three conditions are met: (1) the promise is one that the promisor should reasonably expect to induce the promisee to take action or forbear from taking action of a definite and substantial character; (2) the action or forbearance is taken; and (3) injustice can be avoided only by enforcing the promise.

Timko served on the board of trustees of a school. He recommended that the school purchase a building for a substantial sum of money, and to induce the trustees to vote for the purchase, he promised to help with the purchase and to pay at the end of five years the purchase price less the down payment. At the end of four years, Timko died. The school sued his estate, which defended on the ground that there was no consideration for the promise. Timko was promised or given nothing in return, and the purchase of the building was of no direct benefit to him (which would have made the promise enforceable as a unilateral contract). The court ruled that under the three-pronged promissory estoppel test, Timko’s estate was liable. [29]

In general, illegal contracts are unenforceable. Thus, one can think of “legality” as being a required element of a contract, along with agreement, consideration, and capacity. As illegality is also a defense to a contract, we cover it later in the chapter.

Capacity issues often arise when contracting with minors. The general rule is that persons younger than eighteen can avoid their contracts.

Although the age of majority was lowered in most states during the 1970s to correspond to the Twenty-sixth Amendment (ratified in 1971, guaranteeing the right to vote at eighteen), some states still put the age of majority at twenty-one. Legal rights for those under twenty-one remain ambiguous, however. Although eighteen-year-olds may assent to binding contracts, not all creditors and landlords believe it, and they may require parents to cosign. For those under twenty-one, there are also legal impediments to holding certain kinds of jobs, signing certain kinds of contracts, marrying, leaving home, and drinking alcohol. There is as yet no uniform set of rules. The exact day on which the disability of minority vanishes also varies. The old common law rule put it on the day before the twenty-first birthday. Many states have changed this rule so that majority commences on the day of the eighteenth (or twenty-first) birthday.

A minor’s contract is voidable, not void. A child wishing to avoid the contract need do nothing positive to disaffirm; the defense of minority to a lawsuit is sufficient. Although the adult cannot enforce the contract, the child can (which is why it is said to be voidable, not void).

When the minor becomes an adult, she has two choices: she may ratify the contract or disaffirm [31] it. She may ratify explicitly; no further consideration is necessary. She may also do so by implication—for instance, by continuing to make payments or retaining goods for an unreasonable period of time. (In some states, a court may ratify the contract before the child becomes an adult. In California, for example, a state statute permits a movie producer to seek court approval of a contract with a child actor in order to prevent the child from disaffirming it upon reaching majority and suing for additional wages. As quid pro quo, the court can order the producer to pay a percentage of the wages into a trust fund that the child’s parents or guardians cannot invade.) If the child has not disaffirmed the contract while still a minor, she may do so within a reasonable time after reaching majority.

In most cases of disavowal, the only obligation is to return the goods (if he still has them) or repay the consideration (unless it has been dissipated). However, in two situations, a minor might incur greater liability: contracts for necessities and misrepresentation of age.

Contract for Necessities

At common law, a “necessity” was defined as an essential need of a human being: food, medicine, clothing, and shelter. In recent years, however, the courts have expanded the concept, so that in many states today necessities include property and services that will enable the minor to earn a living and to provide for those dependent on him. If the contract is executory, the minor can simply disaffirm. If the contract has been executed, however, the minor must face more onerous consequences. Although he will not be required to perform under the contract, he will be liable under a theory of “quasi-contract” for the reasonable value of the necessity.

Misrepresentation of Age

In most states, a minor may misrepresent his age and disaffirm in accordance with the general rule, because that’s what kids do, misrepresent their age. That the adult reasonably believed the minor was also an adult is of no consequence in a contract suit. But some states have enacted statutes that make the minor liable in certain situations. A Michigan statute, for instance, prohibits a minor from disaffirming if he has signed a “separate instrument containing only the statement of age, date of signing and the signature:” And some states “estop” him from claiming to be a minor if he falsely represented himself as an adult in making the contract. “Estoppel” is a refusal by the courts on equitable grounds to listen to an otherwise valid defense; unless the minor can return the consideration, the contract will be enforced.

Contracts made by a mentally incompetent or highly intoxicated person are also said to have been made by a person lacking capacity. In general, such contracts are voidable by the person when capacity is regained (or by the person’s legal representative if capacity is not regained).

As a general rule, a contract need not be in writing to be enforceable. An oral agreement to pay a high-fashion model $1 million to pose for a photograph is as binding as if the language of the deal were printed on vellum and signed in the presence of twenty bishops. For centuries, however, a large exception has grown up around the Statute of Frauds [32] , first enacted in England in 1677 under the formal name “An Act for the Prevention of Frauds and Perjuries.” The purpose of the Statute of Frauds is to prevent the fraud that occurs when one party attempts to impose upon another a contract that did not in fact exist.

The Statute of Frauds requires that certain kinds of contracts be in writing to be enforceable. These include:

• Contracts to convey an interest in land (such as sale of a home);
• Contracts that are impossible to fulfill within one year (such as a contract entered July 1, for employment beginning August 1 and lasting a year);
• Contracts in which the consideration is marriage;
• Contracts to pay another’s debt; and
• Under the UCC, contracts for sale of goods for at least $500 (and lease of goods of at least $1,000).

Again, as may be evident from the title of the act and its requirements, the general purpose of the law is to provide evidence, in areas of some complexity and importance, that a contract was actually made. To a lesser degree, the law serves to caution those about to enter a contract and “to create a climate in which parties often regard their agreements as tentative until there is a signed writing.” [33]

There are many exceptions to the Statute of Frauds. For example, under the UCC, custom goods manufactured, such as with the logo of another company, would be evidence of the agreement, as it is unlikely someone would produce custom goods without an agreement. If the parties have began to perform according to the oral agreement, it would also be hard to deny the contract exists, at least as to what has been performed. For contracts to pay another’s debt, if the primary purpose for which the agreement was made was to benefit the guarantor, then again an exception applies. These are just several examples, and so one should research the law carefully before trying to back out of a contract for Statute of Frauds concerns. Of course, it would be prudent to render the agreement in writing to begin with!

Parol Evidence

Unlike Minerva sprung forth whole from the brow of Zeus in Greek mythology, contracts do not appear at a stroke memorialized on paper. Almost invariably, negotiations of some sort precede the concluding of a deal. People write letters, talk by telephone, meet face-to-face, send e-mails, and exchange thoughts and views about what they want and how they will reciprocate. They may even lie and cajole in duplicitous ways, making promises they know they cannot or will not keep in order not to kill the contract talks. In the course of these discussions, they may reach tentative agreements, some of which will ultimately be reflected in the final contract, some of which will be discarded along the way, and some of which perhaps will not be included in the final agreement but will nevertheless not be contradicted by it. Whether any weight should be given to these prior agreements is a problem that frequently arises.

The rule at common law is this: a written contract intended to be the parties’ complete understanding discharges all prior or contemporaneous promises, statements, or agreements that add to, vary, or conflict with it.

The rule applies to all written contracts, whether or not the Statute of Frauds requires them to be in writing. The Statute of Frauds gets to whether there was a contract at all; the parol evidence rule says, granted there was a written contract, does it express the parties’ understanding? But the rule is concerned only with events that transpired before the contract in dispute was signed. It has no bearing on agreements reached subsequently that may alter the terms of an existing contract.

Exceptions to the Parol Evidence Rule

Despite its apparent stringency, the parol evidence rule does not negate all prior agreements or statements, nor preclude their use as evidence. A number of situations fall outside the scope of the rule and hence are not technically exceptions to it, so they are better phrased as exemptions (something not within the scope of a rule).

If the parties never intended the written contract to be their full understanding—if they intended it to be partly oral—then the rule does not apply. If the document is fully integrated, no extrinsic evidence will be permitted to modify the terms of the agreement, even if the modification is in addition to the existing terms, rather than a contradiction of them. If the contract is partially integrated, prior consistent additional terms may be shown. It is the duty of the party who wants to exclude the parol evidence to show the contract was intended to be integrated. That is not always an easy task. To prevent a party later from introducing extrinsic evidence to show that there were prior agreements, the contract itself can recite that there were none. Here, for example, is the final clause in the National Basketball Association Uniform Player Contract: “This agreement contains the entire agreement between the parties and there are no oral or written inducements, promises or agreements except as contained herein.” Such a clause is known as a merger or integration clause.

When the parties orally agree that a written contract is contingent on the occurrence of an event or some other condition (a condition precedent [34] ), the contract is not integrated and the oral agreement may be introduced. The classic case is that of an inventor who sells in a written contract an interest in his invention. Orally, the inventor and the buyer agree that the contract is to take effect only if the buyer’s engineer approves the invention. (The contract was signed in advance of approval so that the parties would not need to meet again.) The engineer did not approve it, and in a suit for performance, the court permitted the evidence of the oral agreement because it showed “that in fact there never was any agreement at all.” [35] Note that the oral condition does not contradict a term of the written contract; it negates it. The parol evidence rule will not permit evidence of an oral agreement that is inconsistent with a written term, for as to that term the contract is integrated.

Third-Party Rights

Assigning rights.

Contracts create rights and duties. By an assignment [36] , an obligee (one who has the right to receive a contract benefit) transfers a right to receive a contract benefit owed by the obligor (the one who has a duty to perform) to a third person (assignee); the obligee then becomes an assignor (one who makes an assignment). The assignor may assign any right unless (1) doing so would materially change the obligation of the obligor, materially burden her, increase her risk, or otherwise diminish the value to her of the original contract; (2) statute or public policy forbids the assignment; or (3) the contract itself precludes assignment. A common example of this last point are prohibitions against subletting commonly found in leases–subletting is assigning the contractual right of occupancy.

An assignment of rights effectively makes the assignee stand in the shoes of the assignor. [37] She gains all the rights against the obligor that the assignor had, but no more. An obligor who could avoid the assignor’s attempt to enforce the rights could avoid a similar attempt by the assignee.

Delegating Duties

To this point, we have been considering the assignment of the assignor’s rights (usually, though not solely, to money payments). But in every contract, a right connotes a corresponding duty, and these may be delegated. A delegation is the transfer to a third party of the duty to perform under a contract. The one who delegates is the delegator. Because most obligees are also obligors, most assignments of rights will simultaneously carry with them the delegation of duties. Unless public policy or the contract itself bars the delegation, it is legally enforceable.

An obligor who delegates a duty (and becomes a delegator) does not thereby escape liability for performing the duty himself. The obligee of the duty may continue to look to the obligor for performance unless the original contract specifically provides for substitution by delegation. This is a big difference between assignment of contract rights and delegation of contract duties: in the former, the assignor is discharged (absent breach of assignor’s warranties); in the latter, the delegator remains liable. The obligee (again, the one to whom the duty to perform flows) may also, in many cases, look to the delegatee, because the obligee becomes an intended beneficiary of the contract between the obligor and the delegatee.

Third-Party Beneficiaries

The general rule is this: persons not a party to a contract cannot enforce its terms; they are said to lack privity [38] , a private, face-to-face relationship with the contracting parties. But if the persons are intended to benefit from the performance of a contract between others, then they can enforce it: they are intended beneficiaries.

For example, a contract to paint one’s house cannot be enforced by a neighbor–the neighbor might benefit from an increased home value due to your house looking maintained, but this benefit is only incidental . In contrast, a contract between A and B to deliver insurance proceeds to C would be enforcable by C. C is an intended, rather than merely incidental, beneficiary of the contract.

• What are the required elements of a contract?
• When was the Statute of Frauds first enacted, by whom, and why?
• Basically, what does the Statute of Frauds require? How does it interact with the Parol Evidence Rule?

Defenses and Interpretations

• Understand problems with voluntary consent, such as fraud, mistake, duress, and undue influence
• Understand when courts will choose not to enforce contracts for public policy reasons, such as unconscionability.
• Understand implications of illegal contracts.
• Understand rules for resolving ambiguity in contracts

Because contracts are voluntary agreements the law will enforce, the common law developed a variety of doctrines that responded to situations in which someone was not truly free to enter into the contract, or to situations in which courts felt it unfair to enforce the agreement. In this section we will study these doctrines.

Misrepresentation is a statement of fact that is not consistent with the truth. If misrepresentation is intentional, it is fraudulent misrepresentation; if it is not intentional, it is nonfraudulent misrepresentation, which can be either negligent or innocent.

In further taxonomy, courts distinguish between fraud in the execution and fraud in the inducement. Fraud in the execution occurs when the nature of the document itself is misrepresented. For example, Alphonse and Gaston decide to sign a written contract incorporating terms to which they have agreed. It is properly drawn up, and Gaston reads it and approves it. Before he can sign it, however, Alphonse shrewdly substitutes a different version to which Gaston has not agreed. Gaston signs the substitute version. There is no contract. There has been fraud in the execution.

Fraud in the inducement is more common. It involves some misrepresentation about the subject of the contract that induces assent. Alphonse tells Gaston that the car Gaston is buying from Alphonse has just been overhauled—which pleases Gaston—but it has not been. This renders the contract voidable.

Nondisclosure

A passive type of concealment is nondisclosure. Although generally the law imposes no obligation on anyone to speak out, nondisclosure of a fact can operate as a misrepresentation under certain circumstances. This occurs, for example, whenever the other party has erroneous information where the nondisclosure amounts to a failure to act in good faith, or where the party who conceals knows or should know that the other side cannot, with reasonable diligence, discover the truth.

In a remarkable 1991 case out of New York, a New York City stockbroker bought an old house upstate (basically anyplace north of New York City) in the village of Nyack, north of New York City, and then wanted out of the deal when he discovered—the defendant seller had not told him—that it was “haunted.” The court summarized the facts: “Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists [ghosts], reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years. Plaintiff promptly commenced this action seeking rescission of the contract of sale. Supreme Court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction.”

The high court of New York ruled he could rescind the contract because the house was “haunted as a matter of law”: the defendant had promoted it as such on village tours and in Reader’s Digest . She had concealed it, and no reasonable buyer’s inspection would have revealed the “fact.” The dissent basically hooted, saying, “The existence of a poltergeist is no more binding upon the defendants than it is upon this court.” [39]

Statement Made False by Subsequent Events

If a statement of fact is made false by later events, it must be disclosed as false. For example, in idle chatter one day, Alphonse tells Gaston that he owns thirty acres of land. In fact, Alphonse owns only twenty-seven, but he decided to exaggerate a little. He meant no harm by it, since the conversation had no import. A year later, Gaston offers to buy the “thirty acres” from Alphonse, who does not correct the impression that Gaston has. The failure to speak is a nondisclosure—presumably intentional, in this situation—that would allow Gaston to rescind a contract induced by his belief that he was purchasing thirty acres.

Statements of Opinion

An opinion, of course, is not a fact; neither is sales puffery. For example, the statements “In my opinion this apple is very tasty” and “These apples are the best in the county” are not facts; they are not expected to be taken as true. Reliance on opinion is hazardous and generally not considered justifiable.

If Jack asks what condition the car is in that he wishes to buy, Mr. Olson’s response of “Great!” is not ordinarily a misrepresentation. As the Restatement puts it: “The propensity of sellers and buyers to exaggerate the advantages to the other party of the bargains they promise is well recognized, and to some extent their assertions must be discounted.” [40] Vague statements of quality, such as that a product is “good,” ought to suggest nothing other than that such is the personal judgment of the opinion holder.

Despite this general rule, there are certain exceptions that justify reliance on opinions and effectively make them into facts. Merely because someone is less astute than the one with whom she is bargaining does not give rise to a claim of justifiable reliance on an unwarranted opinion.

In discussing fraud, we have considered the ways in which trickery by the other party makes a contract void or voidable. We now examine the ways in which the parties might “trick” themselves by making assumptions that lead them mistakenly to believe that they have agreed to something they have not. A mistake is “a belief about a fact that is not in accord with the truth.” [41]

Mistake by One Party

Unilateral mistake.

Where one party makes a mistake, it is a unilateral mistake. [42] The rule: ordinarily, a contract is not voidable because one party has made a mistake about the subject matter (e.g., the truck is not powerful enough to haul the trailer; the dress doesn’t fit).

If one side knows or should know that the other has made a mistake, he or she may not take advantage of it. A person who makes the mistake of not reading a written document will usually get no relief, nor will relief be afforded to one whose mistake is caused by negligence (a contractor forgets to add in the cost of insulation) unless the negligent party would suffer unconscionable hardship if the mistake were not corrected. Courts will allow the correction of drafting errors in a contract (“reformation”) in order to make the contract reflect the parties’ intention. [43]

Mutual Mistake

In the case of mutual mistake [44] —both parties are wrong about the subject of the contract—relief may be granted.

The Restatement sets out three requirements for successfully arguing mutual mistake. [45] The party seeking to avoid the contract must prove that

• the mistake relates to a “basic assumption on which the contract was made,”
• the mistake has a material effect on the agreed exchange of performances,
• the party seeking relief does not bear the risk of the mistake.

Basic assumption is probably clear enough. In the famous “cow case,” the defendant sold the plaintiff a cow—Rose of Abalone—believed by both to be barren and thus of less value than a fertile cow (a promising young dairy cow in 2010 might sell for $1,800). [46] Just before the plaintiff was to take Rose from the defendant’s barn, the defendant discovered she was “large with calf”; he refused to go on with the contract. The court held this was a mutual mistake of fact—“a barren cow is substantially a different creature than a breeding one”—and ruled for the defendant. That she was infertile was “a basic assumption,” but—for example—that hay would be readily available to feed her inexpensively was not, and had hay been expensive, that would not have vitiated the contract.

Material Effect on the Agreed-to Exchange of Performance

“Material effect on the agreed-to exchange of performance” means that because of the mutual mistake, there is a significant difference between the value the parties thought they were exchanging compared with what they would exchange if the contract were performed, given the standing facts. Again, in the cow case, had the seller been required to go through with the deal, he would have given up a great deal more than he anticipated, and the buyer would have received an unagreed-to windfall.

Party Seeking Relief Does Not Bear the Risk of the Mistake

Assume a weekend browser sees a painting sitting on the floor of an antique shop. The owner says, “That old thing? You can have it for $100.” The browser takes it home, dusts it off, and hangs it on the wall. A year later a visitor, an expert in art history, recognizes the hanging as a famous lost El Greco worth $1 million. The story is headlined; the antique dealer is chagrined and claims the contract for sale should be voided because both parties mistakenly thought they were dickering over an “old, worthless” painting. The contract is valid. The owner is said to bear the risk of mistake because he contracted with conscious awareness of his ignorance: he knew he didn’t know what the painting’s possible value might be, but he didn’t feel it worthwhile to have it appraised. He gambled it wasn’t worth much, and lost.

Duress and Undue Influence

When a person is forced to do something against his or her will, that person is said to have been the victim of duress. There are two types of duress: physical duress and duress by improper threat.

Physical Duress

If a person is forced into entering a contract on threat of physical bodily harm, he or she is the victim of physical duress. It is defined by the Restatement (Second) of Contracts in Section 174: “If conduct that appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.” A contract induced by physical violence is void. [47]

Duress by Economic Threat

The second kind of duress is duress by economic threat ; it is more common than physical duress. Here the perpetrator threatens the victim economically, who feels there is no reasonable alternative but to assent to the contract. It renders the contract voidable. This rule contains a number of elements.

First, the threat must be improper. Second, there must be no reasonable alternative. If, for example, a supplier threatens to hold up shipment of necessary goods unless the buyer agrees to pay more than the contract price, this would not be duress if the buyer could purchase identical supplies from someone else. Third, the test for inducement is subjective. It does not matter that the person threatened is unusually timid or that a reasonable person would not have felt threatened. The question is whether the threat in fact induced assent by the victim. Such facts as the victim’s belief that the threatener had the ability to carry out the threat and the length of time between the threat and assent are relevant in determining whether the threat did prompt the assent.

There are many types of improper threats that might induce a party to enter into a contract: threats to commit a crime or a tort (e.g., bodily harm or taking of property), to instigate criminal prosecution, to instigate civil proceedings when a threat is made in bad faith, to breach a “duty of good faith and fair dealing under a contract with the recipient,” or to disclose embarrassing details about a person’s private life.

Jack buys a car from a local used-car salesman, Mr. Olson, and the next day realizes he bought a lemon. He threatens to break windows in Olson’s showroom if Olson does not buy the car back for $2,150, the purchase price. Mr. Olson agrees. The agreement is voidable, even though the underlying deal is fair, if Olson feels he has no reasonable alternative and is frightened into agreeing. Suppose Jack knows that Olson has been tampering with his cars’ odometers, a federal offense, and threatens to have Olson prosecuted if he will not repurchase the car. Even though Olson may be guilty, this threat makes the repurchase contract voidable, because it is a misuse for personal ends of a power (to go to the police) given each of us for other purposes. If these threats failed, suppose Jack then tells Olson, “I’m going to haul you into court and sue your pants off.” If Jack means he will sue for his purchase price, this is not an improper threat, because everyone has the right to use the courts to gain what they think is rightfully theirs. But if Jack meant that he would fabricate damages done him by a (falsely) claimed odometer manipulation, that would be an improper threat. Although Olson could defend against the suit, his reputation would suffer in the meantime from his being accused of odometer tampering.

Undue Influence

The Restatement of Contracts (Second) characterizes undue influence as “unfair persuasion.” [48] It is a milder form of duress than physical harm or threats. The unfairness does not lie in any misrepresentation; rather, it occurs when the victim is under the domination of the persuader or is one who, in view of the relationship between them, is warranted in believing that the persuader will act in a manner detrimental to the victim’s welfare if the victim fails to assent. It is the improper use of trust or power to deprive a person of free will and substitute instead another’s objective. Usually the fact pattern involves the victim being isolated from receiving advice except from the persuader. Falling within this rule are situations where, for example, a child takes advantage of an infirm parent, a doctor takes advantage of an ill patient, or a lawyer takes advantage of an unknowledgeable client. If there has been undue influence, the contract is voidable by the party who has been unfairly persuaded. Whether the relationship is one of domination and the persuasion is unfair is a factual question. The answer hinges on a host of variables, including “the unfairness of the resulting bargain, the unavailability of independent advice, and the susceptibility of the person persuaded.” [49]

Illegal contracts

Contracts that violate a statute.

Any bargain that violates the criminal law—including statutes that govern extortion, robbery, embezzlement, forgery, some gambling, licensing, and consumer credit transactions—is illegal. Thus determining whether contracts are lawful may seem to be an easy enough task. Clearly, whenever the statute itself explicitly forbids the making of the contract or the performance agreed upon, the bargain (such as a contract to sell drugs) is unlawful. But when the statute does not expressly prohibit the making of the contract, courts examine a number of factors.

Unconscionable contracts

Courts may refuse to enforce unconscionable contracts, those that are shockingly one-sided, unfair, the product of unequal bargaining power, or oppressive; a court may find the contract divisible and enforce only the parts that are not unconscionable.

The common-law rule is reflected in Section 208 of the Restatement: “If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.”

Unconscionability may arise procedurally or substantively. A term is procedurally unconscionable if it is imposed upon the “weaker” party because of fine or inconspicuous print, unexpected placement in the contract, lack of opportunity to read the term, lack of education or sophistication that precludes understanding, or lack of equality of bargaining power. Substantive unconscionability arises where the affected terms are oppressive and harsh, where the term deprives a party of any real remedy for breach. Most often—but not always—courts find unconscionable contracts in the context of consumer transactions rather than commercial transactions. In the latter case, the assumption is that the parties tend to be sophisticated businesspeople able to look out for their own contract interests.

Specific contractual pitfalls

Courts have long held that public policy disfavors attempts to contract out of tort liability. Exculpatory clauses that exempt one party from tort liability to the other for harm caused intentionally or recklessly are unenforceable without exception. A contract provision that exempts a party from tort liability for negligence is unenforceable under two general circumstances: (1) when it “exempts an employer from liability to an employee for injury in the course of his employment” or (2) when it exempts one charged with a duty of public service and who is receiving compensation from liability to one to whom the duty is owed. [50] Contract terms with offensive exculpatory clauses may be considered somewhat akin to unconscionability.

Another broad area in which public policy intrudes on private contractual arrangements is that of undertakings between couples, either prior to or during marriage. Marriage is quintessentially a relationship defined by law, and individuals have limited ability to change its scope through legally enforceable contracts. Moreover, marriage is an institution that public policy favors, and agreements that unreasonably restrain marriage are void. Thus a father’s promise to pay his twenty-one-year-old daughter $100,000 if she refrains from marrying for ten years would be unenforceable. However, a promise in a postnuptial (after marriage) agreement that if the husband predeceases the wife, he will provide his wife with a fixed income for as long as she remains unmarried is valid because the offer of support is related to the need.

Finally, a promise by an employee not to compete with his or her former employer is scrutinized carefully by the courts, and an injunction [52] will be issued cautiously, partly because the prospective employee is usually confronted with a contract of adhesion [53] and is in a weak bargaining position compared to the employer, and partly because an injunction might cause the employee’s unemployment. Many courts are not enthusiastic about employment noncompete agreements. The California Business and Professions Code provides that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” [54] As a result of the statute, and to promote entrepreneurial robustness, California courts typically interpret the statute broadly and refuse to enforce noncompete agreements. Other states are less stingy, and employers have attempted to avoid the strictures of no-enforcement state rulings by providing that their employment contracts will be interpreted according to the law of a state where noncompetes are favorably viewed.

Ways to resolve ambiguity

As any reader knows, the meaning of words depends in part on context and in part on the skill and care of the writer. As Justice Oliver Wendell Holmes Jr. once succinctly noted, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” [55] Words and phrases can be ambiguous, either when they stand alone or when they take on a different coloration from words and phrases near them. A writer can be careless and contradict himself without intending to; people often read hurriedly and easily miss errors that a more deliberate perusal might catch. Interpretation difficulties can arise for any of a number of reasons: a form contract might contain language that is inconsistent with provisions specifically annexed; the parties might use jargon that is unclear; they might forget to incorporate a necessary term; assumptions about prior usage or performance, unknown to outsiders like judges, might color their understanding of the words they do use. Because ambiguities do arise, courts are frequently called on to give content to the words on paper.

Courts attempt to give meaning to the parties’ understanding when they wrote the contract. The intention of the parties governs, and if their purpose in making the contract is known or can be ascertained from all the circumstances, it will be given great weight in determining the meaning of an obscure, murky, or ambiguous provision or a pattern of conduct. A father tells the college bookstore that in consideration of its supplying his daughter, a freshman, with books for the coming year, he will guarantee payment of up to $350. His daughter purchases books totaling $400 the first semester, and he pays the bill. Midway through the second semester, the bookstore presents him with a bill for an additional $100, and he pays that. At the end of the year, he refuses to pay a third bill for $150. A court could construe his conduct as indicating a purpose to ensure that his daughter had whatever books she needed, regardless of cost, and interpret the contract to hold him liable for the final bill.

The policy of uncovering purpose has led to a number of tools of judicial interpretation:

• More specific terms or conduct are given more weight than general terms or unremarkable conduct. Thus a clause that is separately negotiated and added to a contract will be counted as more significant than a standard term in a form contract.
• A writing is interpreted as a whole, without undue attention to one clause.
• Common words and terms are given common meaning; technical terms are given their technical meaning.
• In the range of language and conduct that helps in interpretation, the courts prefer the following items in the order listed: express terms, course of performance, course of dealing, and usage of trade.
• If an amount is given in words and figures that differ, the words control.
• Writing controls over typing; typing controls over printed forms.
• Ambiguities are construed against the party that wrote the contract.

For an example of resolving ambiguity by construing against, the drafter, the Cases section below gives an example from golf: does a hole in one on the seventeenth round, played on the eighth hole, count as the eighth hole? [56]

• Why do courts fairly frequently have to interpret the meaning of contracts?
• Henrioulle was an unemployed widower with two children who received public assistance from the Marin County (California) Department of Social Services. There was a shortage of housing for low-income residents in Marin County. He entered into a lease agreement on a printed form by which the landlord disclaimed any liability for any injury sustained by the tenants anywhere on the property. Henrioulle fractured his wrist when he tripped on a rock on the common stairs in the apartment building. The landlord had been having a hard time keeping the area clean. Is the disclaimer valid? Explain.
• A parking lot agreement says the parking lot is “not responsible for loss of contents or damage to the vehicle.” Is that acceptable? Explain.
• Why is relief usually not granted for unilateral mistakes? When is relief granted for them?
• How is duress different from undue influence?
• If a contract has no procedural problems, should it ever be found substantively unconscionable?

Remedies for Breach of Contract

• Know the types of damages: compensatory and punitive.
• Understand specific performance as a remedy.
• Understand restitution as a remedy.
• Recognize the interplay between contract and tort as a cause of action.

Monetary awards (called “damages”), specific performance, and restitution are the three principle remedies when a contract is broken or “breached”.

In view of the importance given to the intention of the parties in forming and interpreting contracts, it may seem surprising that the remedy for every breach is not a judicial order that the obligor carry out his undertakings. But it is not. Of course, some duties cannot be performed after a breach: time and circumstances will have altered their purpose and rendered many worthless. Still, although there are numerous occasions on which it would be theoretically possible for courts to order the parties to carry out their contracts, the courts will not do it. In 1897, Justice Oliver Wendell Holmes, Jr., declared in a famous line that “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it.” By that he meant simply that the common law looks more toward compensating the promisee for his loss than toward compelling the promisor to perform—a person always has the power, though not the right, to breach a contract. Indeed, the law of remedies often provides the parties with an incentive to break the contract. In short, the promisor has a choice: to perform or pay. The purpose of contract remedies is, for the most part, to compensate the non-breaching party for the losses suffered—to put the non-breaching party in the position he, she, or it would have been in had there been no breach.

This is very different than tort law! Tort law looks backward , to put the injured party in the same position as if the tort had not occurred. Contract law looks forward to put the injured party in the same position as if the contract had been fulfilled. These are called “expectation damages.” If giving expectation damages is impossible, such as if they cannot be calculated, [57] the law might then look backward and put the parties in the same position as if the contract had not been entered.

Compensatory Damages

One party has the right to damages [58] (money) when the other party has breached the contract unless, of course, the contract itself or other circumstances suspend or discharge that right. Compensatory damages is the general category of damages awarded to make the non-breaching party whole.

Consequential Damages

A basic principle of contract law is that a person injured by breach of contract is not entitled to compensation unless the breaching party, at the time the contract was made, had reason to foresee the loss as a probable result of the breach. The leading case, perhaps the most studied case in all the common law, is Hadley v. Baxendale , decided in England in 1854. Joseph and Jonah Hadley were proprietors of a flour mill in Gloucester. In May 1853, the shaft of the milling engine broke, stopping all milling. An employee went to Pickford and Company, a common carrier, and asked that the shaft be sent as quickly as possible to a Greenwich foundry that would use the shaft as a model to construct a new one. The carrier’s agent promised delivery within two days. But through an error the shaft was shipped by canal rather than by rail and did not arrive in Greenwich for seven days. The Hadleys sued Joseph Baxendale, managing director of Pickford, for the profits they lost because of the delay. In ordering a new trial, the Court of Exchequer ruled that Baxendale was not liable because he had had no notice that the mill was stopped:

Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. [59]

This rule, it has been argued, was a subtle change from the earlier rule that permitted damages for any consequences as long as the breach caused the injury and the plaintiff did not exacerbate it. But the change was evidently rationalized, at least in part, by the observation that in the “usual course of things,” a mill would have on hand a spare shaft, so that its operations would not cease. [60]

This sub-set of compensatory damages is called consequential damages [61] —damages that flow as a foreseeable consequence of the breach. For example, if you hire a roofer to fix a leak in your roof, and he does a bad job so that the interior of your house suffers water damage, the roofer is liable not only for the poor roofing job, but also for the ruined drapes, damaged flooring and walls, and so on.

Whether consequential damages are allowed under the contract is the source of much litigation. The UCC provides an extensive set of rules for sale of goods to determine whether sellers’ disclaimers or buyers’ inclusion of these terms in contracts are binding. This kind of dispute is called a “battle of the forms.”

Nominal Damages

If the breach caused no loss, the plaintiff is nevertheless entitled to a minor sum, perhaps one dollar, called nominal damages. When, for example, a buyer could purchase the same commodity at the same price as that contracted for, without spending any extra time or money, there can be no real damages in the event of breach.

Incidental Damages

Suppose City College hires Prof. Blake on a two-year contract, after an extensive search. After one year the professor quits to take a job elsewhere, in breach of her contract. If City College has to pay $5000 more to find a replacement for year, Blake is liable for that amount—that’s compensatory damages. But what if it costs City College $1200 to search for, bring to campus and interview a replacement? City College can claim that, too, as incidental damages [62] which include additional costs incurred by the non-breaching party after the breach in a reasonable attempt to avoid further loss, even if the attempt is unsuccessful.

Punitive Damages

Punitive damages [63] are those awarded for the purpose of punishing a defendant in a civil action, in which criminal sanctions may be unavailable. They are not part of the compensation for the loss suffered; they are proper in cases in which the defendant has acted willfully and maliciously and are thought to deter others from acting similarly. Since the purpose of contract law is compensation, not punishment, punitive damages have not traditionally been awarded, with one exception: when the breach of contract is also a tort for which punitive damages may be recovered. Punitive damages are permitted in the law of torts (in most states) when the behavior is malicious or willful (reckless conduct causing physical harm, deliberate defamation of one’s character, a knowingly unlawful taking of someone’s property), and some kinds of contract breach are also tortuous—for example, when a creditor holding collateral as security under a contract for a loan sells the collateral to a good-faith purchaser for value even though the debtor was not in default, he has breached the contract and committed the tort of conversion. [64] Punitive damages may be awarded, assuming the behavior was willful and not merely mistaken.

Punitive damages are not fixed by law. The judge or jury may award at its discretion whatever sum is believed necessary to redress the wrong or deter like conduct in the future. This means that a richer person may be slapped with much heavier punitive damages than a poorer one in the appropriate case. But the judge in all cases may remitA judicial reduction in the amount of a damage award (the noun is remission). (lower) some or all of a punitive damage award if he or she considers it excessive.

Punitive damage claims have been made in cases dealing with the refusal by insurance companies to honor their contracts. Many of these cases involve disability payments, and among the elements are charges of tortious conduct by the company’s agents or employees. California has been the leader among the state courts in their growing willingness to uphold punitive damage awards despite insurer complaints that the concept of punitive damages is but a device to permit plaintiffs to extort settlements from hapless companies. Courts have also awarded punitive damages against other types of companies for breach of contract.

Specific Performance

Liquidated Damages

In order to limit risk in contracts, many contractual drafters choose to include “liquidated damages” clauses. These are statements in the contract that spell out what damages will be if the contract is broken. This makes the damages certain, which lowers risk for the contracting parties. For example, in a contract for sale of a home, a party might lose their “ready money” if they back out of the agreement without cause.

Courts will uphold these clauses so long as they are reasonable, e.g., in the range of what actual damages might be. If the liquidated damages clause is unreasonably large, courts will not enforce it as a penalty. After all, if a liquidated damages clause was large enough, and courts chose to enforce it, the law would be favoring a regime of specific performance (as parties would always find it worthwhile to fulfill contracts rather than efficiently breach). For example, a liquidated damages clause of $10,000,000 on the sale of a $100,000 home would is excessive. If a court chose to enforce a clause like that, the parties would essentially be forced to perform.

Restitution

As the word implies, restitution [66] is a restoring to one party of what he gave to the other. Therefore, only to the extent that the injured party conferred a benefit on the other party may the injured party be awarded restitution.

If the claimant has given the other party a sum of money, there can be no dispute over the amount of the restitution interest. Tom gives Tim $100 to chop his tree into firewood. Tim repudiates. Tom’s restitution interest is $100. But serious difficulties can arise when the benefit conferred was performance. The courts have considerable discretion to award either the cost of hiring someone else to do the work that the injured party performed (generally, the market price of the service) or the value that was added to the property of the party in breach by virtue of the claimant’s performance. Mellors, a gardener, agrees to construct ten fences around Lady Chatterley’s flower gardens at the market price of $2,500. After erecting three, Mellors has performed services that would cost $750, market value. Assume that he has increased the value of the Lady’s grounds by $800. If the contract is repudiated, there are two measures of Mellors’s restitution interest: $800, the value by which the property was enhanced; or $750, the amount it would have cost Lady Chatterley to hire someone else to do the work. Which measure to use depends on who repudiated the contract and for what reason.

Tort vs. Contract Remedies

Frequently a contract breach may also amount to tortious conduct. A physician warrants her treatment as perfectly safe but performs the operation negligently, scarring the patient for life. The patient could sue for malpractice (tort) or for breach of warranty (contract). The choice involves at least four considerations:

• Statute of limitations. Most statutes of limitations prescribe longer periods for contract than for tort actions.
• Allowable damages. Punitive damages are more often permitted in tort actions, and certain kinds of injuries are compensable in tort but not in contract suits—for example, pain and suffering.
• Expert testimony. In most cases, the use of experts would be the same in either tort or contract suits, but in certain contract cases, the expert witness could be dispensed with, as, for example, in a contract case charging that the physician abandoned the patient.
• Insurance coverage. Most policies do not cover intentional torts, so a contract theory that avoids the element of willfulness would provide the plaintiff with a surer chance of recovering money damages.
• What are compensatory damages?
• When is specific performance an appropriate remedy? Will it be used to require a person to perform a service (such as properly repair a leaky roof)?
• When is restitution used?
• How could a breach of contract also be a tort, and when is one cause of action chosen over the other?
• What is the purpose of punitive damages?
• What advantage is there in allowing parties to breach contracts?

Grove v. Charbonneau Buick-Pontiac, Inc.

240 N.W.2d 853

Supreme Court of North Dakota.

March 24, 1976.

This is an appeal from the decision of the Stark County District Court awarding to Lloyd B. Grove damages equivalent to the value of the automobile which was offered by Charbonneau Buick-Pontiac, Inc. as a prize in a golf contest.

The Dickinson Elks Club conducted its annual Labor Day Golf Tournament on September 1 and 2, 1974. Posters were placed at various locations in the area announcing the tournament and the prizes to be awarded to the flight winners and runners-up. Included in the posters was an offer by Charbonneau of a 1974 automobile “to the first entry who shoots a hole-in-one on Hole No. 8.” This offer was also placed on a sign on the automobile at the tournament. Grove testified that he learned of the tournament from a poster placed at the Williston golf course. He then registered for the tournament and paid his entry fee.

The Dickinson golf course at which the tournament was played has only 9 holes, but there are 18 separately located and marked tee areas so that by going around the 9-hole course twice the course can be played as an 18-hole golf course. The first nine tees are marked with blue markers and tee numbers. The second nine tees are marked with red markers and tee numbers. Because of this layout of the course, the tee area marked “8” and the tee area marked “17” are both played to the eighth hole. The tee area marked “17” lies to one side of tee area “8” and is approximately 60 yards farther from the hole.

Grove scored his hole-in-one in hole No. 8 on the first day of the tournament while playing from the 17th tee in an 18-hole match. He had played from the 8th tee previously on the same match and had scored a 3 on the hole.

Grove claimed he had satisfied the requirements of the offer and was entitled to the prize. Charbonneau refused to award the prize, claiming that Grove had not scored his hole-in-one on the 8th hole, as required, but had scored it on the 17th hole.

The trial court found that Grove had performed all of the conditions set out in the offer by Charbonneau so that there was a completed contract which Charbonneau had unlawfully breached by failing to donate the car. The court awarded damages to Grove of $5,800.00, plus interest.

Charbonneau claims the evidence was insufficient to support the trial court’s finding that Grove had properly accepted and performed in accordance with the offer made by Charbonneau so as to impose a contractual duty upon Charbonneau to deliver the automobile or in the alternative be liable for damages. He also claims the trial court applied the wrong rule of law and that the findings of fact are clearly erroneous.

… Rewards and prizes are governed by the general rules of contract. There must be a genuine offer and an acceptance. To collect a prize, the person must perform all of the requirements of the offer in accordance with the published terms in order to create a valid and binding contract under which he may be entitled to the promised award.

… In Schreiner v. Weil Furniture Co. , 68 So.2d 149 (La.App.1953), the court stated it is a well settled proposition of law that where there is a dispute over what the terms of a contract are or what the stipulations mean the document must be interpreted against the one who has prepared it, and applied such rule to an offer of a prize made to the public. The Schreiner case involved a “count-the-dots” contest where certificates worth money-off on the purchase of a television were awarded. The plaintiff won and a dispute developed as to what prizes were to be awarded under the rules of the contest. The court held that it was the duty of the defendant to explain the contest so that the public would not be misled.

[W]e believe the rule on ambiguous contracts applies to this case, and therefore any language of this contract which is not clear and definite or in which an uncertainty exists as to its meaning must be interpreted most strongly against Charbonneau.

Our research disclosed only one case in which the court dealt with a hole-in-one question, but in a different setting. The Supreme Court of Nevada, in Las Vegas Hacienda v. Gibson , 77 Nev. 25, 359 P.2d 85 (1961),1 had under consideration the question whether or not the offer and promise to pay an award to a person who, having paid fifty cents for an opportunity to make a hole-in-one, actually did make a hole-in-one, constituted wagering on the contention that a hole-in-one was a game of chance rather than a game of skill and that on such basis the offer or promise was invalid.

The court concluded that the contract or offer was valid and enforceable, and then stated as follows:

 “Whereas we have concluded that the contract does not involve a gaming transaction, consideration of appellant’s second assignment of error that the lower court erred in finding that the shooting of a ‘hole in one’ was a feat of skill, becomes unnecessary. We do wish to state, however, that the record contains sufficient evidence to sustain the court’s finding in this regard. Appellant insists, however, that the testimony of one Capps, a golf professional, precludes such a finding. He testified that luck is a factor in all holes in one where skill is not always a factor. He further testified that `a skilled player will get it (the ball) in the area where luck will take over more often than an unskilled player.'”

The crucial or pivotal point in this case rests upon the meaning of the language “a hole-in-one on Hole No. 8,” where the 9-hole golf course was converted to or used as an 18-hole course without adding any additional holes. Does this language, “on Hole No. 8,” refer to the actual, physical designation of the hole, which is generally identified with the number on the flagstick, or does it refer to the hypothetical number given to the hole because of the sequence in which it is “played”? If it is the latter, the 8th hole could also become the 17th hole in the second round of an 18-hole game of golf where the course is played around twice to make an 18-hole course out of a 9-hole course. The term could also mean the 8th hole in sequence of play regardless of the actual physical identification of the hole; as an example, if a player were to start his game with or on hole No. 2 (actually so marked) the 8th hole in sequence would be the 9th hole (actually so marked). The 8th hole under this concept would change depending upon the actual numerical designation of the hole from which the player started. …

By interpreting and construing the ambiguous provisions of the offer most strongly against the party who caused them as set out in § 9-07-19, NDCC, and as announced in case law developed on this subject, we construe it to mean that an entrant in the golf tournament who had paid the fee and who during regular tournament play drives the ball in one stroke into hole No. 8 from either the 8th or 17th tee has made a hole-in-one on hole No. 8, and has met the conditions of the offer and is entitled to the award or the equivalent in money damages.

The judgment of the district court is affirmed.

• If the rules of golf had spoken clearly to this situation, would the case have come out differently?
• How could the sponsors of the golf tournament better protect themselves in the future?

Objective Intent

Leonard v. pepsico.

88 F.Supp.2d 116 (1999)

KIMBA M. WOOD, District Judge. Plaintiff brought this action seeking, among other things, specific performance of an alleged offer of a Harrier Jet, featured in a television advertisement for defendant’s “Pepsi Stuff” promotion. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, defendant’s motion is granted.

This case arises out of a promotional campaign conducted by defendant, the producer and distributor of the soft drinks Pepsi and Diet Pepsi. The promotion, entitled “Pepsi Stuff,” encouraged consumers to collect “Pepsi Points” from specially marked packages of Pepsi or Diet Pepsi and redeem these points for merchandise featuring the Pepsi logo. Before introducing the promotion nationally, defendant conducted a test of the promotion in the Pacific Northwest from October 1995 to March 1996. A Pepsi Stuff catalog was distributed to consumers in the test market, including Washington State. Plaintiff is a resident of Seattle, Washington. While living in Seattle, plaintiff saw the Pepsi Stuff commercial that he contends constituted an offer of a Harrier Jet.

Because whether the television commercial constituted an offer is the central question in this case, the Court will describe the commercial in detail. The commercial opens upon an idyllic, suburban morning, where the chirping of birds in sun-dappled trees welcomes a paperboy on his morning route. As the newspaper hits the stoop of a conventional two-story house, the tattoo of a military drum introduces the subtitle, “MONDAY 7:58 AM.” The stirring strains of a martial air mark the appearance of a well-coiffed teenager preparing to leave for school, dressed in a shirt emblazoned with the Pepsi logo, a red-white-and-blue ball. While the teenager confidently preens, the military drumroll again sounds as the subtitle “T-SHIRT 75 PEPSI POINTS” scrolls across the screen. Bursting from his room, the teenager strides down the hallway wearing a leather jacket. The drumroll sounds again, as the subtitle “LEATHER JACKET 1450 PEPSI POINTS” appears. The teenager opens the door of his house and, unfazed by the glare of the early morning sunshine, puts on a pair of sunglasses. The drumroll then accompanies the subtitle “SHADES 175 PEPSI POINTS.” A voiceover then intones, “Introducing the new Pepsi Stuff catalog,” as the camera focuses on the cover of the catalog.

The scene then shifts to three young boys sitting in front of a high school building. The boy in the middle is intent on his Pepsi Stuff Catalog, while the boys on either side are each drinking Pepsi. The three boys gaze in awe at an object rushing overhead, as the military march builds to a crescendo. The Harrier Jet is not yet visible, but the observer senses the presence of a mighty plane as the extreme winds generated by its flight create a paper maelstrom in a classroom devoted to an otherwise dull physics lesson. Finally, the Harrier Jet swings into view and lands by the side of the school building, next to a bicycle rack. Several students run for cover, and the velocity of the wind strips one hapless faculty member down to his underwear. While the faculty member is being deprived of his dignity, the voiceover announces: “Now the more Pepsi you drink, the more great stuff you’re gonna get.”

The teenager opens the cockpit of the fighter and can be seen, helmetless, holding a Pepsi. “[L]ooking very pleased with himself,” the teenager exclaims, “Sure beats the bus,” and chortles. The military drumroll sounds a final time, as the following words appear: “HARRIER FIGHTER 7,000,000 PEPSI POINTS.” A few seconds later, the following appears in more stylized script: “Drink Pepsi — Get Stuff.” With that message, the music and the commercial end with a triumphant flourish. Inspired by this commercial, plaintiff set out to obtain a Harrier Jet. Plaintiff explains that he is “typical of the ‘Pepsi Generation’ … he is young, has an adventurous spirit, and the notion of obtaining a Harrier Jet appealed to him enormously.” (Pl. Mem. at 3.) Plaintiff consulted the Pepsi Stuff Catalog. The Catalog features youths dressed in Pepsi Stuff regalia or enjoying Pepsi Stuff accessories, such as “Blue Shades” (“As if you need another reason to look forward to sunny days.”), “Pepsi Tees” (“Live in ’em. Laugh in ’em. Get in ’em.”), “Bag of Balls” (“Three balls. One bag. No rules.”), and “Pepsi Phone Card” (“Call your mom!”). The Catalog specifies the number of Pepsi Points required to obtain promotional merchandise. (See Catalog, at rear foldout pages.) The Catalog includes an Order Form which lists, on one side, fifty-three items of Pepsi Stuff merchandise redeemable for Pepsi Points. Conspicuously absent from the Order Form is any entry or description of a Harrier Jet. The amount of Pepsi Points required to obtain the listed merchandise ranges from 15 (for a “Jacket Tattoo” (“Sew `em on your jacket, not your arm.”)) to 3300 (for a “Fila Mountain Bike” (“Rugged. All-terrain. Exclusively for Pepsi.”)). It should be noted that plaintiff objects to the implication that because an item was not shown in the Catalog, it was unavailable.

The rear foldout pages of the Catalog contain directions for redeeming Pepsi Points for merchandise. (See Catalog, at rear foldout pages.) These directions note that merchandise may be ordered “only” with the original Order Form. The Catalog notes that in the event that a consumer lacks enough Pepsi Points to obtain a desired item, additional Pepsi Points may be purchased for ten cents each; however, at least fifteen original Pepsi Points must accompany each order. Although plaintiff initially set out to collect 7,000,000 Pepsi Points by consuming Pepsi products, it soon became clear to him that he “would not be able to buy (let alone drink) enough Pepsi to collect the necessary Pepsi Points fast enough.” Reevaluating his strategy, plaintiff “focused for the first time on the packaging materials in the Pepsi Stuff promotion,” and realized that buying Pepsi Points would be a more promising option. Through acquaintances, plaintiff ultimately raised about $700,000.

Plaintiff’s understanding of the commercial as an offer must … be rejected because the Court finds that no objective person could reasonably have concluded that the commercial actually offered consumers a Harrier Jet.

In evaluating the commercial, the Court must not consider defendant’s subjective intent in making the commercial, or plaintiff’s subjective view of what the commercial offered, but what an objective, reasonable person would have understood the commercial to convey. See Kay-R Elec. Corp. v. Stone & Webster Constr. Co. , 23 F.3d 55, 57 (2d Cir.1994) (“[W]e are not concerned with what was going through the heads of the parties at the time [of the alleged contract]. Rather, we are talking about the objective principles of contract law.”).

What kind of act creates a power of acceptance and is therefore an offer? It must be an expression of will or intention. It must be an act that leads the offeree reasonably to conclude that a power to create a contract is conferred. This applies to the content of the power as well as to the fact of its existence. It is on this ground that we must exclude invitations to deal or acts of mere preliminary negotiation, and acts evidently done in jest or without intent to create legal relations .

Plaintiff’s insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny. Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, “Humor can be dissected, as a frog can, but the thing dies in the process….”

First, the commercial suggests, as commercials often do, that use of the advertised product will transform what, for most youth, can be a fairly routine and ordinary experience. The military tattoo and stirring martial music, as well as the use of subtitles in a Courier font that scroll terse messages across the screen, such as “MONDAY 7:58 AM,” evoke military and espionage thrillers. The implication of the commercial is that Pepsi Stuff merchandise will inject drama and moment into hitherto unexceptional lives. The commercial in this case thus makes the exaggerated claims similar to those of many television advertisements: that by consuming the featured clothing, car, beer, or potato chips, one will become attractive, stylish, desirable, and admired by all. A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact ….

Second, the callow youth featured in the commercial is a highly improbable pilot, one who could barely be trusted with the keys to his parents’ car, much less the prize aircraft of the United States Marine Corps. Rather than checking the fuel gauges on his aircraft, the teenager spends his precious preflight minutes preening. The youth’s concern for his coiffure appears to extend to his flying without a helmet. Finally, the teenager’s comment that flying a Harrier Jet to school “sure beats the bus” evinces an improbably insouciant attitude toward the relative difficulty and danger of piloting a fighter plane in a residential area, as opposed to taking public transportation.

Third, the notion of traveling to school in a Harrier Jet is an exaggerated adolescent fantasy. In this commercial, the fantasy is underscored by how the teenager’s schoolmates gape in admiration, ignoring their physics lesson. The force of the wind generated by the Harrier Jet blows off one teacher’s clothes, literally defrocking an authority figure. As if to emphasize the fantastic quality of having a Harrier Jet arrive at school, the Jet lands next to a plebeian bike rack. This fantasy is, of course, extremely unrealistic. No school would provide landing space for a student’s fighter jet, or condone the disruption the jet’s use would cause.

Fourth, the primary mission of a Harrier Jet, according to the United States Marine Corps, is to “attack and destroy surface targets under day and night visual conditions.” United States Marine Corps, Factfile: AV-8B Harrier II (last modified Dec. 5, 1995) . Manufactured by McDonnell Douglas, the Harrier Jet played a significant role in the air offensive of Operation Desert Storm in 1991. See id. The jet is designed to carry a considerable armament load, including Sidewinder and Maverick missiles. See id. As one news report has noted, “Fully loaded, the Harrier can float like a butterfly and sting like a bee — albeit a roaring 14-ton butterfly and a bee with 9,200 pounds of bombs and missiles.” Jerry Allegood, Marines Rely on Harrier Jet, Despite Critics, News & Observer (Raleigh), Nov. 4, 1990, at C1. In light of the Harrier Jet’s well-documented function in attacking and destroying surface and air targets, armed reconnaissance and air interdiction, and offensive and defensive anti-aircraft warfare, depiction of such a jet as a way to get to school in the morning is clearly not serious even if, as plaintiff contends, the jet is capable of being acquired “in a form that eliminates [its] potential for military use.”

Fifth, the number of Pepsi Points the commercial mentions as required to “purchase” the jet is 7,000,000. To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred years — an unlikely possibility), or one would have to purchase approximately $700,000 worth of Pepsi Points. The cost of a Harrier Jet is roughly $23 million dollars, a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer. Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter plane for $700,000 is a deal too good to be true.

In sum, there are three reasons why plaintiff’s demand cannot prevail as a matter of law. First, the commercial was merely an advertisement, not a unilateral offer. Second, the tongue-in-cheek attitude of the commercial would not cause a reasonable person to conclude that a soft drink company would be giving away fighter planes as part of a promotion. Third, there is no writing between the parties sufficient to satisfy the Statute of Frauds.

For the reasons stated above, the Court grants defendant’s motion for summary judgment. The Clerk of Court is instructed to close these cases. Any pending motions are moot.

• Based on the results in this case, what are the “elements” of a joke, such that it is not a contractual offer?
• Can humor ever be part of a contractual offer? Give an example.

Lucy v. Zehmer

84 S.E.2d 516 (Va. 1954)

Buchanan, J.

This suit was instituted by W. O. Lucy and J. C. Lucy, complainants, against A. H. Zehmer and Ida S. Zehmer, his wife, defendants, to have specific performance of a contract by which it was alleged the Zehmers had sold to W. O. Lucy a tract of land owned by A. H. Zehmer in Dinwiddie county containing 471.6 acres, more or less, known as the Ferguson farm, for $50,000. J. C. Lucy, the other complainant, is a brother of W. O. Lucy, to whom W. O. Lucy transferred a half interest in his alleged purchase.

The instrument sought to be enforced was written by A. H. Zehmer on December 20, 1952, in these words: “We hereby agree to sell to W. O. Lucy the Ferguson farm complete for $50,000.00, title satisfactory to buyer,” and signed by the defendants, A. H. Zehmer and Ida S. Zehmer.

The answer of A. H. Zehmer admitted that at the time mentioned W. O. Lucy offered him $50,000 cash for the farm, but that he, Zehmer, considered that the offer was made in jest; that so thinking, and both he and Lucy having had several drinks, he wrote out “the memorandum” quoted above and induced his wife to sign it; that he did not deliver the memorandum to Lucy, but that Lucy picked it up, read it, put it in his pocket, attempted to offer Zehmer $5 to bind the bargain, which Zehmer refused to accept, and realizing for the first time that Lucy was serious, Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.…

In his testimony Zehmer claimed that he “was high as a Georgia pine,” and that the transaction “was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done.…

If it be assumed, contrary to what we think the evidence shows, that Zehmer was jesting about selling his farm to Lucy and that the transaction was intended by him to be a joke, nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. The very next day he arranged with his brother to put up half the money and take a half interest in the land. The day after that he employed an attorney to examine the title. The next night, Tuesday, he was back at Zehmer’s place and there Zehmer told him for the first time, Lucy said, that he wasn’t going to sell and he told Zehmer, “You know you sold that place fair and square.” After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal.

Not only did Lucy actually believe, but the evidence shows he was warranted in believing, that the contract represented a serious business transaction and a good faith sale and purchase of the farm.

In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.”

At no time prior to the execution of the contract had Zehmer indicated to Lucy by word or act that he was not in earnest about selling the farm. They had argued about it and discussed its terms, as Zehmer admitted, for a long time. Lucy testified that if there was any jesting it was about paying $50,000 that night. The contract and the evidence show that he was not expected to pay the money that night. Zehmer said that after the writing was signed he laid it down on the counter in front of Lucy. Lucy said Zehmer handed it to him. In any event there had been what appeared to be a good faith offer and a good faith acceptance, followed by the execution and apparent delivery of a written contract. Both said that Lucy put the writing in his pocket and then offered Zehmer $5 to seal the bargain. Not until then, even under the defendants’ evidence, was anything said or done to indicate that the matter was a joke. Both of the Zehmers testified that when Zehmer asked his wife to sign he whispered that it was a joke so Lucy wouldn’t hear and that it was not intended that he should hear.

The mental assent of the parties is not requisite for the formation of a contract. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party.

“ The law, therefore, judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them. .” [Citation]

An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. If his words and acts, judged by a reasonable standard, manifest an intention to agree, it is immaterial what may be the real but unexpressed state of his mind.

So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement.

Whether the writing signed by the defendants and now sought to be enforced by the complainants was the result of a serious offer by Lucy and a serious acceptance by the defendants, or was a serious offer by Lucy and an acceptance in secret jest by the defendants, in either event it constituted a binding contract of sale between the parties.…

Reversed and remanded.

• What objective evidence was there to support the defendants’ contention that they were just kidding when they agreed to sell the farm?
• Suppose the defendants really did think the whole thing was a kind of joke. Would that make any difference?
• As a matter of public policy, why does the law use an objective standard to determine the seriousness of intention, instead of a subjective standard?
• It’s 85 degrees in July and 5:00 p.m., quitting time. The battery in Mary’s car is out of juice, again. Mary says, “Arrgh! I will sell this stupid car for $50!” Jason, walking to his car nearby, whips out his checkbook and says, “It’s a deal. Leave your car here. I’ll give you a ride home and pick up your car after you give me the title.” Do the parties have a contract?

Consideration: Preexisting Obligation

Denney v. reppert.

432 S.W.2d 647 (Ky. 1968)

R. L. Myre, Sr., Special Commissioner.

The sole question presented in this case is which of several claimants is entitled to an award for information leading to the apprehension and conviction of certain bank robbers.…

On June 12th or 13th, 1963, three armed men entered the First State Bank, Eubank, Kentucky, and with a display of arms and threats robbed the bank of over $30,000 [about $208,000 in 2010 dollars]. Later in the day they were apprehended by State Policemen Garret Godby, Johnny Simms and Tilford Reppert, placed under arrest, and the entire loot was recovered. Later all of the prisoners were convicted and Garret Godby, Johnny Simms and Tilford Reppert appeared as witnesses at the trial.

The First State Bank of Eubank was a member of the Kentucky Bankers Association which provided and advertised a reward of $500.00 for the arrest and conviction of each bank robber. Hence the outstanding reward for the three bank robbers was $1,500.00 [about $11,000 in 2010 dollars]. Many became claimants for the reward and the Kentucky State Bankers Association being unable to determine the merits of the claims for the reward asked the circuit court to determine the merits of the various claims and to adjudge who was entitled to receive the reward or share in it. All of the claimants were made defendants in the action.

At the time of the robbery the claimants Murrell Denney, Joyce Buis, Rebecca McCollum and Jewell Snyder were employees of the First State Bank of Eubank and came out of the grueling situation with great credit and glory. Each one of them deserves approbation and an accolade. They were vigilant in disclosing to the public and the peace officers the details of the crime, and in describing the culprits, and giving all the information that they possessed that would be useful in capturing the robbers. Undoubtedly, they performed a great service. It is in the evidence that the claimant Murrell Denney was conspicuous and energetic in his efforts to make known the robbery, to acquaint the officers as to the personal appearance of the criminals, and to give other pertinent facts.

The first question for determination is whether the employees of the robbed bank are eligible to receive or share in the reward. The great weight of authority answers in the negative. [Citation] states the rule thusly:

‘To the general rule that, when a reward is offered to the general public for the performance of some specified act, such reward may be claimed by any person who performs such act, is the exception of agents, employees and public officials who are acting within the scope of their employment or official duties. *.’…

At the time of the robbery the claimants Murrell Denney, Joyce Buis, Rebecca McCollum, and Jewell Snyder were employees of the First State Bank of Eubank. They were under duty to protect and conserve the resources and moneys of the bank, and safeguard every interest of the institution furnishing them employment. Each of these employees exhibited great courage, and cool bravery, in a time of stress and danger. The community and the county have recompensed them in commendation, admiration and high praise, and the world looks on them as heroes. But in making known the robbery and assisting in acquainting the public and the officers with details of the crime and with identification of the robbers, they performed a duty to the bank and the public, for which they cannot claim a reward.

The claims of Corbin Reynolds, Julia Reynolds, Alvie Reynolds and Gene Reynolds also must fail. According to their statements they gave valuable information to the arresting officers. However, they did not follow the procedure as set forth in the offer of reward in that they never filed a claim with the Kentucky Bankers Association. It is well established that a claimant of a reward must comply with the terms and conditions of the offer of reward. [Citation]

State Policemen Garret Godby, Johnny Simms and Tilford Reppert made the arrest of the bank robbers and captured the stolen money. All participated in the prosecution. At the time of the arrest, it was the duty of the state policemen to apprehend the criminals. Under the law they cannot claim or share in the reward and they are interposing no claim to it.

This leaves the defendant, Tilford Reppert the sole eligible claimant. The record shows that at the time of the arrest he was a deputy sheriff in Rockcastle County, but the arrest and recovery of the stolen money took place in Pulaski County. He was out of his jurisdiction, and was thus under no legal duty to make the arrest, and is thus eligible to claim and receive the reward. In [Citation] it was said:

‘It is well established that a public officer with the authority of the law to make an arrest may accept an offer of reward or compensation for acts or services performed outside of his bailiwick or not within the scope of his official duties. .’…

It is manifest from the record that Tilford Reppert is the only claimant qualified and eligible to receive the reward. Therefore, it is the judgment of the circuit court that he is entitled to receive payment of the $1,500.00 reward now deposited with the Clerk of this Court.

The judgment is affirmed.

• Why did the Bankers Association put the resolution of this matter into the court’s hands?
• Several claimants came forward for the reward; only one person got it. What was the difference between the person who got the reward and those who did not?

EBWS, LLC v. Britly Corp.

928 A.2d 497 (Vt. 2007)

Reiber, C.J.

The Ransom family owns Rock Bottom Farm in Strafford, Vermont, where Earl Ransom owns a dairy herd and operates an organic dairy farm. In 2000, the Ransoms decided to build a creamery on-site to process their milk and formed EBWS, LLC to operate the dairy-processing plant and to market the plant’s products. In July 2000, Earl Ransom, on behalf of EBWS, met with Britly’s president to discuss building the creamery.…In January 2001, EBWS and Britly entered into a contract requiring Britly to construct a creamery building for EBWS in exchange for $160,318.…The creamery was substantially completed by April 15, 2001, and EBWS moved in soon afterward. On June 5, 2001, EBWS notified Britly of alleged defects in construction. [EBWS continued to use the creamery pending the necessity to vacate it for three weeks when repairs were commenced].

On September 12, 2001, EBWS filed suit against Britly for damages resulting from defective design and construction.…

Following a three-day trial, the jury found Britly had breached the contract and its express warranty, and awarded EBWS: (1) $38,020 in direct damages, and (2) $35,711 in consequential damages.…

…The jury’s award to EBWS included compensation for both direct and consequential damages that EBWS claimed it would incur while the facility closed for repairs. Direct damages [i.e., compensatory damages] are for “losses that naturally and usually flow from the breach itself,” and it is not necessary that the parties actually considered these damages. [Citation]. In comparison, special or consequential damages “must pass the tests of causation, certainty and foreseeability, and, in addition, be reasonably supposed to have been in the contemplation of both parties at the time they made the contract.”

…The court ruled that EBWS could not recover for lost profits because it was not a going concern at the time the contract was entered into, and profits were too speculative. The court concluded, however, that EBWS could submit evidence of other business losses, including future payment for unused milk and staff wages.…

At trial, Huyffer, the CEO of EBWS, testified that during a repairs closure the creamery would be required to purchase milk from adjacent Rock Bottom Farm, even though it could not process this milk. She admitted that such a requirement was self-imposed as there was no written output contract between EBWS and the farm to buy milk. In addition, Huyffer testified that EBWS would pay its employees during the closure even though EBWS has no written contract to pay its employees when they are not working. The trial court allowed these elements of damages to be submitted to the jury, and the jury awarded EBWS consequential damages for unused milk and staff wages.

On appeal, Britly contends that because there is no contractual or legal obligation for EBWS to purchase milk or pay its employees, these are not foreseeable damages. EBWS counters that it is common knowledge that cows continue to produce milk, even if the processing plant is not working, and thus it is foreseeable that this loss would occur. We conclude that these damages are not the foreseeable result of Britly’s breach of the construction contract and reverse the award.…

[W]e conclude that…it is not reasonable to expect Britly to foresee that its failure to perform under the contract would result in this type of damages. While we are sympathetic to EBWS’s contention that the cows continue to produce milk, even when the plant is closed down, this fact alone is not enough to demonstrate that buying and dumping milk is a foreseeable result of Britly’s breach of the construction contract. Here, the milk was produced by a separate and distinct entity, Rock Bottom Farm, which sold the milk to EBWS.…

Similarly, EBWS maintained no employment agreements with its employees obligating it to pay wages during periods of closure for repairs, dips in market demand, or for any other reason. Any losses EBWS might suffer in the future because it chooses to pay its employees during a plant closure for repairs would be a voluntary expense and not in Britly’s contemplation at the time it entered the construction contract. It is not reasonable to expect Britly to foresee losses incurred as a result of agreements that are informal in nature and carry no legal obligation on EBWS to perform. “[Parties are not presumed to know the condition of each other’s affairs nor to take into account contracts with a third party that is not communicated.” [Citation] While it is true that EBWS may have business reasons to pay its employees even without a contractual obligation, for example, to ensure employee loyalty, no evidence was introduced at trial by EBWS to support a sound rationale for such considerations. Under these circumstances, this business decision is beyond the scope of what Britly could have reasonably foreseen as damages for its breach of contract.…

In addition, the actual costs of the wages and milk are uncertain.…[T]he the milk and wages here are future expenses, for which no legal obligation was assumed by EBWS, and which are separate from the terms of the parties’ contract. We note that at the time of the construction contract EBWS had not yet begun to operate as a creamery and had no history of buying milk or paying employees. Thus, both the cost of the milk and the number and amount of wages of future employees that EBWS might pay in the event of a plant closure for repairs are uncertain.

Award for consequential damages is reversed.…

• Why, according to EBWS’s CEO, would EBWS be required to purchase milk from adjacent Rock Bottom Farm, even though it could not process this milk?
• Surely it is well known in Vermont dairy country that dairy farmers can’t simply stop milking cows when no processing plant is available to take the milk—the cows will soon stop producing. Why was EBWS then not entitled to those damages which it will certainly suffer when the creamery is down for repairs?
• Britly (the contractor) must have known EBWS had employees that would be idled when the creamery shut down for repairs. Why was it not liable for their lost wages?
• What could EBWS have done at the time of contracting to protect itself against the damages it would incur in the event the creamery suffered downtime due to faulty construction?

Summary and Exercises

In this chapter we have seen that two fundamental sources of contract law are the common law as developed in the state courts and as summarized in the Restatement (Second) of Contracts, and the Uniform Commercial Code for the sale of goods.

Sales law is a special type of contract law, governed by Article 2 of the UCC. Article 2 governs the sale of goods only, defined as things movable at the time of identification to the contract for sale. When the goods are “sold” incidental to a service, the courts do not agree on whether Article 2 applies. For two categories of goods, legislation specifically answers the question: foodstuffs served by a restaurant are goods; blood supplied for transfusions is not.

Types of contracts can be distinguished along these axes: (1) express and implied, including quasi-contracts implied by law; (2) bilateral and unilateral; (3) enforceable and unenforceable; and (4) completed (executed) and uncompleted (executory). To understand contract law, it is necessary to master these distinctions and their nuances.

In order to determine whether a valid, enforceable contract exists, the following questions must be answered: (1) Did the parties reach an agreement? (2) Was consideration present? (3) Was the agreement legal? (4) Did the parties have capacity to make a contract? (5) Was the agreement in the proper form?

If a contract is formed, the law provides additional ways to ensure that a true “meeting of the minds” occurred. Doctrines such as fraud, duress, mistake and undue influence provide remedies. The law also provides ways to avoid contracts against public policy, such as overly broad exculpatory contracts or contracts so unfair they shock the conscience of the court.

Remedies available against someone who breaches a contract include damages, specific performance, and restitution. Frequently the party who is not in breach must choose between tort and contract remedies.

• Rachel entered into a contract to purchase a 2004 Dodge from Hanna, who lived in the neighboring apartment. When a dispute arose over the terms of the contract, Hanna argued that, because neither she nor Rachel was a merchant, the dispute should be decided under general principles of common law. Rachel, on the other hand, argued that Hanna was legally considered to be a merchant because she sold the car for profit and that, consequently, the sale was governed by the Uniform Commercial Code. Who is correct? Explain.
• On November 26, Joe wrote to Kate offering to purchase a farm that she owned. Upon receiving the letter on November 28, Kate immediately sent Joe a letter of acceptance. However, shortly after mailing the letter, Kate had second thoughts and called Joe to advise him that she was rejecting his offer. The call was made before Joe received the letter of acceptance. Has a contract been formed? Why?
• On a busy day just before April 15, Albert Accountant received a call from a local car dealer. The dealer said, “Hi, Mr. Accountant. Now, while you have income from doing clients’ taxes, I have an excellent offer for you. You can buy a new Buick Century automobile completely loaded for $36,000. Al, I know you’re busy. If I don’t hear from you by the end of the day, I’ll assume you want the car.” Albert, distracted, did not respond immediately, and the dealer hung up. Then followed an exhausting day of working with anxiety-ridden tax clients. Albert forgot about the conversation. Two days later a statement arrived from the dealer, with instructions on how Albert should pick up the car at the dealership. Is there a contract? Explain.
• Bert purchased Ernie’s car. Before selling the car, Ernie had stated to Bert, “This car runs well and is reliable. Last week I drove the car all the way from Seattle to San Francisco to visit my mother and back again to Seattle.” In fact, Ernie was not telling the truth: he had driven the car to San Francisco to visit his paramour, not his mother. Upon discovery of the truth, may Bert avoid the contract? Why?
• Langstraat was seventeen when he purchased a motorcycle. When applying for insurance, he signed a “Notice of Rejection,” declining to purchase uninsured motorist coverage. He was involved in an accident with an uninsured motorist and sought to disaffirm his rejection of the uninsured motorist coverage on the basis of infancy. May he do so?
• Richard promised to have Darlene’s deck awning constructed by July 10. On June 20, Darlene called him and asked if he could get the job done by July 3, in time for Independence Day. Richard said he could, but he failed to do so, and Darlene had to rent two canopies at some expense. Darlene claims that because Richard breached his promise, he is liable for the cost of awning rental. Is she correct—was his promise binding? Why?
• After taking a business law class at State U, Elke entered into a contract to sell her business law book to a classmate, Matthew, for $45. As part of the same contract, she agreed to prepare a will for Matthew’s mother for an additional $110. Elke prepared the will and sent the book to Matthew, but he refused to pay her. Is she entitled to any payment? Explain.
• Sara Hohe, a fifteen-year-old junior at Mission Bay High School in San Diego, was injured during a campus hypnotism show sponsored by the PTSA as a fund-raiser for the senior class. Hypnotism shows had been held annually since 1980, and Sara had seen the previous year’s show. She was selected at random from a group of many volunteers. Her participation in the “Magic of the Mind Show” was conditioned on signing two release forms. Hohe’s father signed a form entitled “Mission Bay High School PTSA Presents Dr. Karl Santo.” Hohe and her father both signed a form titled “Karl Santo Hypnotist,” releasing Santo and the school district from all liability. During the course of the show, while apparently hypnotized, Hohe slid from her chair and also fell to the floor about six times and was injured. She, through her father, then sued the school district. The Hohes claimed the release was contrary to public policy; the trial court dismissed the suit on summary judgment. Was the release contrary to public policy? Decide.
• Plaintiff Irma Kozlowski cohabited with Defendant Thaddeus Kozlowski for fifteen years without marriage. She repeatedly asked him specifically about her financial situation should he predecease her, and he assured her—she said—that he would arrange to provide for her for the rest of her life. She had provided the necessary household services and emotional support to permit him to successfully pursue his business career; she had performed housekeeping, cleaning, and shopping services and had run the household and raised the children, her own as well as his. When they separated and she was “literally forced out of the house,” she was sixty-three years old and had no means or wherewithal for survival. When she sued, he raised the Statute of Frauds’ one-year rule as a defense. Is the defense good?
• Owner of an auto repair shop hires Contractor to remodel his shop but does not mention that two days after the scheduled completion date, Owner is to receive five small US Army personnel carrier trucks for service, with a three-week deadline to finish the job and turn the trucks over to the army. The contract between Owner and the army has a liquidated damages clause calling for $300 a day for every day trucks are not operable after the deadline. Contractor is five days late in finishing the remodel. Can Owner claim the $1,500 as damages against Contractor as a consequence of the latter’s tardy completion of the contract? Explain.
• Calvin, a promising young basketball and baseball player, signed a multiyear contract with a professional basketball team after graduating from college. After playing basketball for one year, he decided he would rather play baseball and breached his contract with the basketball team. What remedy could the team seek? Louie, an adult, entered into a contract to sell a case of scotch whiskey to Leroy, a minor. Is the contract void or voidable? Explain.
• Consider the XKCD comic below. Could someone be bound by this type of agreement?

Self-Test Questions

1. An implied contract (a) must be in writing (b) is one in which the terms are spelled out (c) is one inferred from the actions of the parties (d) is imposed by law to avoid an unjust result (e) may be avoided by one party. 2. The Convention on Contracts for the International Sale of Goods is (a) an annual meeting of international commercial purchasing agents. (b) contract law used in overseas US federal territories (c) a customary format or template for drafting contracts (d) a kind of treaty setting out international contract law, to which the United States is a party (e) the organization that develops uniform international law. 3. Consideration (a) can consist of a written acknowledgment of some benefit received, even if in fact the benefit is not delivered (b) cannot be nominal in amount (c) is a bargained-for act, forbearance, or promise from the promisee (d) is all of the above 4. True of False: An example of valid consideration is a promise

Self-Test Answers

• Sir Henry Maine, Ancient Law (1869), 180–82. ↵
• Restatement (Second) of Contracts, Section 1. ↵
• Section 1-201(11). ↵
• Law decided by judges as recorded and published in cases. ↵
• An organized codification of the common law of contracts. ↵
• That part of the Uniform Commercial Code dealing with the sale of goods. ↵
• We will visit two areas of the UCC in depth later in this text. First, the law of warranty in the following chapter is drawn from the UCC. Second, the law of secured transactions covered in the last chapter of the text. ↵
• So yes, the parties may contract for which form of contract law applies to their agreement! ↵
• A contract in words, orally or in writing. ↵
• A contract not expressed by inferred from the parties’ actions. ↵
• A contract imposed on a party when there was none, to avoid unjust enrichment. ↵
• A contract where each party makes a promise to the other. ↵
• A contract that is accepted by the performance of the requested action, not by a promise. ↵
• An agreement that never was a contract. ↵
• A contract that can be annulled. ↵
• A contract for which the non-breaching party has not remedy for its breach. ↵
• A contract that has yet to be completed. ↵
• A contract in which one party has performed, or partly performed, and the other has not. ↵
• A contract that has been completed. ↵
• (Section 3) ↵
• (Section 1-201(3)) ↵
• Barnes v. Treece , 549 P.2d 1152 (Wash. App. 1976). ↵
• Adams v. Lindsell , 1 Bamewall & Alderson 681 (K.B. 1818). ↵
• The question of what constitutes a binding contract has been answered differently throughout history and in other cultures. For example, under Roman law, any contract that was reduced to writing was binding, whether or not there was consideration in our sense. Moreover, in later Roman times, certain promises of gifts were made binding, whether written or oral; these would not be binding in the United States. And in the Anglo-American tradition, the presence of a seal was once sufficient to make a contract binding without any other consideration. In most states, the seal is no longer a substitute for consideration, although in some states it creates a presumption of consideration. The Uniform Commercial Code has abolished the seal on contracts for the sale of goods. ↵
• The one who makes a promise. ↵
• The one to whom a promise is made. ↵
• The giving up by a person of that which she had a right to retain. ↵
• To be prohibited from denying a promise when another has subsequently relied upon it. ↵
• Estate of Timko v. Oral Roberts Evangelistic Assn. , 215 N.W.2d 750 (Mich. App. 1974). ↵
• The mental state of mind sufficient to understand that a contract is made and its consequences. ↵
• To legally disavow or avoid a contract. ↵
• A rule requiring that certain contracts be evidenced by some writing, signed by the person to be bound, to be enforceable. ↵
• Restatement (Second) of Contracts Chapter 5, statutory note. ↵
• A term in a contract that something has to happen before the obligation to perform the contract ripens. ↵
• Pym v. Campbell , 119 Eng. Rep. 903 (Q.B. 1856). ↵
• The passing or delivering by one person to another of the right to a contract benefit. ↵
• An assignee takes no greater rights than his assignor had. ↵
• The relationship of the immediate parties to a contract, a “private” relationship, as between retailer and customer. ↵
• Stambovsky v. Ackley , 169 A.D.2d 254 (N.Y. 1991). ↵
• Restatement (Second) of Contracts, Section 168(d). ↵
• Restatement (Second) of Contracts, Section 151. ↵
• A mistake made by one party to a contract; relief is not usually granted. ↵
• Sikora v. Vanderploeg , 212 S.W.3d 277 (Tenn. Ct. App. 2006). ↵
• Erroneous belief shared and relied on by both parties to a contract for which a court often grants relief. ↵
• Restatement (Second) of Contracts, Section 152. ↵
• Sherwood v. Walker , 33 N.W. 919 (1887). ↵
• There is different authority on physical violence as a threat or a physical action that actually forces a contractual action. For our purposes, all forms of physical threat make a contract void. ↵
• Restatement (Second) of Contracts, Section 177. ↵
• Restatement (Second) of Contracts, Section 177(b). ↵
• Restatement (Second) of Contracts, Section 195. ↵
• Henrioulle v. Marin Ventures, Inc. , 573 P.2d 465 (Calif. 1978). ↵
• A judicial order directing a person to stop doing that which he or she should not do. ↵
• A contract presented to the offeree to take or leave without bargaining. ↵
• California Business and Professions Code, Section 16600. ↵
• Towne v. Eisner , 245 US 418, 425 (1917). ↵
• Grove v. Charbonneau Buick-Pontiac, Inc. , 240 N.W.2d 853 (N.D. 1976). ↵
• Such as a contract to start a new business, in which nobody knows how well the new business would have performed. ↵
• Money paid by one party to another to discharge a liability. ↵
• Hadley v. Baxendale (1854), 9 Ex. 341, 354, 156 Eng.Rep. 145, 151. ↵
• R. J. Danzig, “Hadley v. Baxendale: A Study in the Industrialization of the Law,” Journal of Legal Studies 4, no. 249 (1975): 249. ↵
• Damages that flow as a foreseeable but indirect result of the breach of contract. ↵
• Money paid to the non-breaching party in an attempt to avoid further loss on account of the breach. ↵
• Money awarded to the non-breaching party in excess of any loss suffered to punish the breaching party. ↵
• The wrongful taking of someone’s property by another; the civil equivalent of theft. ↵
• An order directing a person to deliver the exact property (real or personal) that she contracted to sell to the buyer. ↵
• To restore to one party what was delivered to the other. ↵

Business Law: A Risk Management Approach Copyright © 2022 by Jeff Lingwall is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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Understanding Contract Assignment (All You Need To Know)

Wondering what is contract assignment and how it works?

You’re looking to assign your contract and need to better understand the assignment process.

Don’t go any further…

We’ve got what you need!

In this article, we will talk about everything there is to know about a contract assignment process.

We’ve divided this article into the following sections:

What is the assignment of contract

Assignment clause in a contract, types of assignment clauses in a commercial contract, is a contract assignment enforceable.

• Who is involved in contract assignments

How does the assignment of a contract work

Type of contract that can be assigned, assignment vs delegation.

Let’s get started…

An assignment of contract is when a party to a contract hands off the contract terms and conditions to another party.

The assigning party is the “assignor” and the party receiving the contract is the “assignee”.

Once the assignor assigns the contract to the assignee, then the terms and conditions of the contract will apply to the assignee as well.

In some cases the assignor will be completely liberated from its obligations under the contract and in other cases the assignor will have varying degrees of responsibility or liability.

We will cover such details in this article.

When you are looking to assign a contract, the first thing that you should do is to look at your contract and see if you have an assignment clause.

In most commercial contracts, businesses will plan ahead and include an assignment clause.

In most instances, the assignment clause will state that the parties to the contract are not authorized to assign the contract to another unless it is approved by the other party.

The assignment clause will also state in some cases the liability applicable to the assignor.

The assignment clause may state that the assignor will remain obligated to the same extent as the assignee towards the other party to the original contract.

In such a scenario, the assignment of the contract will benefit the other party as it will now have the assignor and assignee responsible and liable towards it.

Before performing an assignment, it’s important to consult the assignment clause in the contract to ensure you respect its terms. 

There are different variations of an assignment clause in business contracts.

We’ll go over the three main contract assignment flavours.

The first type of assignment clause in a contract is when the assignment is entirely prohibited.

In this case, neither party may assign the contract without the prior consent of the other.

Another scenario is that the assignment is generally not authorized unless a party wishes to assign the contract to a subsidiary, an affiliate or an entity of its own corporate group.

If the assignor intends to assign the contract to another entity in its own group of entities the assignment will generally be authorized if the assignor owns more than fifty percent of the shares of the assignee or controls the management. 

A third scenario is when the assignment is generally authorized but subject to a prior notification of the other party.

In such clauses, the other party will still be required to give consent for the assignment but the consent must not be unreasonably withheld.

A contract assignment, to the extent the assignor has followed the terms and conditions of the contract, will be enforceable against the other party.

However, if the assignor does not follow the terms of the contract, the assignment will be unenforceable against the other original contracting party.

If the assignment is not done properly, the assignor, assignee and the other party to the original contract may all get entangled in unwanted legal risk.

To avoid creating legal risk for all parties involved, make sure that you ensure that the contract authorizes the assignment.

If the contract allows for the assignment, make sure the assignor gives the proper preliminary notifications to the other contracting party and receives any required consent or authorization before assigning the contract.

In the assignment agreement between the assignor and assignee, make sure the assignee understands the terms and conditions of the contract so it will perform its obligations as it was originally intended between the original contracting parties. 

It is also important for the assignor to ensure it understands the extent of liability or responsibility it will continue to have following the assignment should the contract require the assignor to remain responsible in some way.

If the assignor continues to have ongoing responsibilities after the assignment, the assignor must include terms and conditions in its own assignment agreement with the assignee to ensure the assignee adequately observes the contract terms to avoid triggering the responsibility of the assignor towards the other contracting party.

Provided the terms and conditions of the assignment are respected, the assignment of the contract will be enforceable.

And assignment will not be effective if it substantially changes the terms and conditions for the other contracting party.

For example, if you are a software company, you will not be able to assign the contract to a real estate company.

This goes without saying!

Who is involved in contract assignments 

There are typically at least three parties to an assignment.

You will have two original contracting parties and a third party.

Among the two original contracting parties, one party intends to assign the contract to the third party.

That party is the assignor.

The third-party agreeing to take over the contract from the assignor is referred to as the assignee.

Essentially, once the contract assignment is performed, the third party becomes a contracting party and the assignor becomes a third party.

So the assignor and assignee swap positions in relation to the other contracting party.

The assignment of a contract is fundamentally not complicated.

The process starts with one party to a contract notifies in writing of its intention to assign the contract to a third-party or assignee.

The other contracting party will either consent or not to the request.

If the consent is given, then the assignor enters into a commercial agreement with the assignee.

This agreement will typically cover the terms and conditions and the commercial considerations between the assignor and the assignee.

Every contract has a value and the assignor will probably require the assignee to pay for the right to take over the contract.

The agreement between the assignor and assignee will also clarify their obligations and responsibilities towards the other contracting party.

Once the assignor and assignee agree on the assignment terms and conditions between themselves, the assignor will prepare an assignment agreement that will be executed between the assignor, the assignee and the other contracting party. 

This assignment agreement will clarify the terms and conditions of the actual assignment and will formally result in the assignment of the contract as of that date.

In the business world, nearly all types of business contracts can be assigned.

The assignment clause will govern the assignment process from a legal point of view.

Although most types of contracts can be assigned, some types of contracts cannot be effectively assigned. 

If a business contract was signed with a person specifically for the skills and abilities of that individual, that individual may not assign the contract.

For example, you’ve asked your favorite band to sign at your wedding, the band could not assign that contract to another because you don’t care for the other signers to be at your wedding.

So a contract signed with an individual or entity based on the considerations and value brought by that specific person or entity cannot be assigned.

In some cases we talk about contract assignment and in other cases we talk about contract delegation.

What is the difference between a contract assignment and contract delegation?

The assignment of a contract is when you hand off the entire contract to another party.

The assignor will typically want to be discharged from its own obligations and the assignee inherits all the contract obligations towards the other party.

When we talk about contract delegation, this is a case when a party does not assign the entire contract but delegates part of its own responsibilities to another party.

A contract assignment is a process where a party to an existing contract transfers or gives up its contract rights and obligations for the benefit of another party.

Contract assignments are relatively frequent in cases where a company restructures and changes its corporate operations.

It can also happen between a company and its suppliers.

No matter the reason for the contract assignment, you’ll need to ensure that you follow the terms and conditions of your contract, particularly the assignment clause.

If you follow the assignment terms of the contract, your assignment will be enforceable against the other contracting party.

We hope that this article was useful to you.

Should you need any legal advice on contract assignment or contract law , we are here to support you.

In the meantime, best of luck!

SaaS vs PaaS (Differences: All You Need To Know)

What qualifies as trade secrets (all you need to know), what is a residual clause (explained: all you need to know), latest posts, trade secrets vs patent (explained: all you need to know), editor's picks, 12 different types of contract pricing models you should know about, civil law in quebec, cost-plus pricing (explained: all you need to know), breach of contract in quebec (explained: all you need to know).

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11 Introduction to Contract Law

Learning Objectives

After reading this chapter, you should understand the following:

• What role contracts play in society today.
• What a contract is.
• The sources of contract law.
• Some basic contract taxonomy.
• The required elements of a contract: mutual assent, consideration, legality, and capacity.
• Common problems with contracts, such as undue influence and fraud.
• The circumstances when a contract needs to be in writing to be enforceable.
• The remedies for breach of contract.

The two legal cornerstones of business relationships are contract and tort. Although both involve the concept of duty, creation of the duty differs in a manner that is important to business. The parties create contract duties through a bargaining process. The key element in the process is voluntary consent; individuals are in control of a situation because they have the freedom to decide whether to enter into a contractual relationship. Tort duties, in contrast, are obligations the law imposes, whether or not the parties desire. Together, voluntary obligations in contract and involuntary obligations in tort are the foundational aspects of the common law of business.

11.1    General Perspectives on Contracts

After reading this section, you should be able to do the following:

• Understand the role of contract in society: it moves society from status to contract.
• Know the definition of a contract.
• Recognize the sources of contract law: the common law, the UCC, and the Convention on the International Sale of Goods—a treaty (the CISG).
• Understand some fundamental contract taxonomy and terminology.

11.1.1    The Role of Contract in Society

Contract is probably the most familiar legal concept in our society because it is so central to a deeply held conviction about the essence of our political, economic, and social life. In common parlance, the term is used interchangeably with agreement, bargain, undertaking, or deal; but whatever the word, it embodies our notion of freedom to pursue our own lives together with others. Contract is central because it is the means by which a free society orders what would otherwise be a jostling, frenetic anarchy. So commonplace is the concept of contract—and our freedom to make contracts with each other—that it is difficult to imagine a time when contracts were rare, an age when people’s everyday associations with one another were not freely determined. Yet in historical terms, it was not so long ago that contracts were rare, entered into if at all by very few. In historical societies and in the medieval Europe from which our institutions sprang, the relationships among people were largely fixed; traditions spelled out duties that each person owed to family, tribe, or manor. Though he may have oversimplified, Sir Henry Maine, a nineteenth-century historian, sketched the development of society in his classic book Ancient Law . As he put it:

This movement was not accidental. It went hand-in-glove with the emerging industrial order; from the fifteenth to the nineteenth centuries, as England, especially, evolved into a booming mercantile economy with all that that implies—flourishing trade, growing cities, an expanding monetary system, commercialization of agriculture, mushrooming manufacturing—contract law was created of necessity.

Contract law did not develop, however, according to a conscious, far-seeing plan. It was a response to changing conditions, and the judges who created it frequently resisted, preferring the quieter, imagined pastoral life of their forefathers. Not until the nineteenth century, in both the United States and England, did a full-fledged law of contracts arise together with modern capitalism.

11.1.2    Contract Defined

As usual in the law, the legal definition of “contract” is formalistic. The Restatement says: “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” [2] Similarly, the Uniform Commercial Code says: “ ‘Contract’ means the total legal obligation which results from the parties’ agreement as affected by this Act and any other applicable rules of law.” [3] A short-hand definition is: “A contract is a legally enforceable promise.”

11.1.3    Economic View of Contract Law

In An Economic Analysis of Law (1973), Judge Richard A. Posner (a former University of Chicago law professor) suggests that contract law performs three significant economic functions. First, it helps maintain incentives to individuals to exchange goods and services efficiently. Second, it reduces the costs of economic transactions because its very existence means that the parties need not go to the trouble of negotiating a variety of rules and terms already spelled out. Third, the law of contracts alerts the parties to trouble spots that have arisen in the past, thus making it easier to plan the transactions more intelligently and avoid potential pitfalls.

11.1.4    Sources of Contract Law

There are four basic sources of contract law: the Constitution, federal and state statutes, federal and state case law, and administrative law. For our purposes, the most important of these, and the ones that we will examine at some length, are case law [4]   and statutes.

11.1.4.1    Case (Common) Law and the Restatement of Contracts  Because contract law was forged in the common-law courtroom, hammered out case by case on the anvil of individual judges, it grew in the course of time to formidable proportions. By the early twentieth century, tens of thousands of contract disputes had been submitted to the courts for resolution, and the published opinions, if collected in one place, would have filled dozens of bookshelves. Clearly this mass of case law was too unwieldy for efficient use. A similar problem had developed in the other leading branches of the common law. Disturbed by the profusion of cases and the resulting uncertainty of the law, a group of prominent American judges, lawyers, and teachers founded the American Law Institute in 1923 to attempt to clarify, simplify, and improve the law. One of its first projects, and ultimately one of its most successful, was the drafting of the Restatement of the Law of Contracts [5] , completed in 1932. A revision—the Restatement (Second) of Contracts—was undertaken in 1946 and finally completed in 1979.

11.1.4.2       Statutory Law: The Uniform Commercial Code Common law contract principles govern contracts for real estate and for services, obviously very important areas of law. But in one area the common law has been superseded by an important statute: the Uniform Commercial Code (UCC), the modern American state statutory law governing commercial transactions, especially Article 2 [6] , which deals with the sale of goods (movable, tangible items). Briefly put, the UCC is a model law developed by the American law Institute and the National Conference of Commissioners on Uniform State Laws; it has been adopted in one form or another in all fifty states, the District of Columbia, and the American territories. Before the UCC was written, commercial law varied, sometimes greatly, from state to state. This first proved a nuisance and then a serious impediment to business as the American economy became nationwide during the twentieth century.

The UCC provides a flexible and yet highly technical framework for sale of goods that will, for large part, be beyond the scope of this chapter. The text will note some cases when substantial and important differences exist between the common law (services and real estate) and the UCC (sale of goods). For example, under the common law offer must meet acceptance exactly for a contract to be formed, while the UCC is much more flexible, which reflects commercial practice in which offered terms and conditions often don’t match terms and conditions in acceptances.

11.1.5    The Convention on Contracts for the International Sale of Goods

A Convention on Contracts for the International Sale of Goods (CISG)An international body of contract law. was approved in 1980 at a diplomatic conference in Vienna. (A convention is a preliminary agreement that serves as the basis for a formal treaty.) The Convention has been adopted by several countries, including the United States.

The Convention is significant for three reasons. First, the Convention is a uniform law governing the sale of goods—in effect, an international Uniform Commercial Code. The major goal of the drafters was to produce a uniform law acceptable to countries with different legal, social and economic systems. Second, although provisions in the Convention are generally consistent with the UCC, there are significant differences. For instance, under the Convention, consideration (discussed below) is not required to form a contract and there is no Statute of Frauds (a requirement that some contracts be evidenced by a writing to be enforceable—also discussed below). Finally, the Convention represents the first attempt by the US Senate to reform the private law of business through its treaty powers, for the Convention preempts the UCC if the parties to a contract elect to use the CISG. [7]

11.1.6    Basic Contract Taxonomy

Contracts are not all cut from the same die. Some are written, some oral; some are explicit, some not. Because contracts can be formed, expressed, and enforced in a variety of ways, a taxonomy of contracts has developed that is useful in lumping together like legal consequences. In general, contracts are classified along these dimensions: explicitness, mutuality, enforceability, and degree of completion. Explicitness is concerned with the degree to which the agreement is manifest to those not party to it. Mutuality takes into account whether promises are exchanged by two parties or only one. Enforceability is the degree to which a given contract is binding. Completion considers whether the contract is yet to be performed or the obligations have been fully discharged by one or both parties. We will examine each of these concepts in turn.

11.1.6.1    Explicitness

11.1.6.1.1    Express Contract  An express contract [8] is one in which the terms are spelled out directly; the parties to an express contract, whether written or oral, are conscious that they are making an enforceable agreement. For example, an agreement to purchase your neighbor’s car for $500 and to take title next Monday is an express contract.

11.1.6.1.2    Implied Contract An implied contract is one that is inferred from the actions of the parties. Although no discussion of terms took place, an implied contract exists if it is clear from the conduct of both parties that they intended there be one. A delicatessen patron who asks for a “turkey sandwich to go” has made a contract and is obligated to pay when the sandwich is made. By ordering the food, the patron is implicitly agreeing to the price, whether posted or not.

11.1.6.1.3    Contract Implied in Law: Quasi -contract  Both express and implied contracts embody an actual agreement of the parties. A quasi-contract [9] , by contrast, is an obligation said to be ‘ ‘imposed by law” in order to avoid unjust enrichment of one person at the expense of another. In fact, a quasi-contract is not a contract at all; it is a fiction that the courts created to prevent injustice. Suppose, for example, that a carpenter mistakenly believes you have hired him to repair your porch; in fact, it is your neighbor who has hired him. One Saturday morning he arrives at your doorstep and begins to work. Rather than stop him, you let him proceed, pleased at the prospect of having your porch fixed for free (since you have never talked to the carpenter, you figure you need not pay his bill). Although it is true there is no contract, the law implies a contract for the value of the work.

11.1.6.2    Mutuality  The garden-variety contract is one in which the parties make mutual promises. Each is both promisor and promisee; that is, each pledges to do something and each is the recipient of such a pledge. This type of contract is called a bilateral contract. [10] But mutual promises are not necessary to constitute a contract. Unilateral contracts [11] , in which only one party makes a promise, are equally valid but depend upon performance of the promise to be binding. If Charles says to Fran, “I will pay you five dollars if you wash my car,” Charles is contractually bound to pay once Fran washes the car. Fran never makes a promise, but by actually performing she makes Charles liable to pay. A common example of a unilateral contract is the offer “$50 for the return of my lost dog.” Frances never makes a promise to the offeror, but if she looks for the dog and finds it, she is entitled to the $50.

11.1.6.3    Enforceability  Not every agreement between two people is a binding contract. An agreement that is lacking one of the legal elements of a contract is said to be void [12] —that is, not a contract at all. An agreement that is illegal—for example, a promise to commit a crime in return for a money payment—is void. Neither party to a void “contract” may enforce it.

By contrast, a voidable contract [13] is one that is unenforceable by one party but enforceable by the other. For example, a minor (any person under eighteen, in most states) may “avoid” a contract with an adult; the adult may not enforce the contract against the minor, if the minor refuses to carry out the bargain. But the adult has no choice if the minor wishes the contract to be performed. (A contract may be voidable by both parties if both are minors.) Ordinarily, the parties to a voidable contract are entitled to be restored to their original condition. Suppose you agree to buy your seventeen-year-old neighbor’s car. He delivers it to you in exchange for your agreement to pay him next week. He has the legal right to terminate the deal and recover the car, in which case you will of course have no obligation to pay him. If you have already paid him, he still may legally demand a return to the status quo ante (previous state of affairs). You must return the car to him; he must return the cash to you.

A voidable contract remains a valid contract until it is voided. Thus, a contract with a minor remains in force unless the minor decides he does not wish to be bound by it. When the minor reaches his majority, he may “ratify” the contract—that is, agree to be bound by it-in which case the contract will no longer be voidable and will thereafter be fully enforceable.

An unenforceable contract [14] is one that some rule of law bars a court from enforcing. For example, Tom owes Pete money, but Pete has waited too long to collect it and the statute of limitations has run out. The contract for repayment is unenforceable and Pete is out of luck, unless Tom makes a new promise to pay or actually pays part of the debt. (However, if Pete is holding collateral as security for the debt, he is entitled to keep it; not all rights are extinguished because a contract is unenforceable.)

11.1.7     Degree of Completion

An agreement consisting of a set of promises is called an executory contract [15] before either promise is carried out. Most executory contracts are enforceable. If one promise or set of terms has been fulfilled—if, for example, John had delivered the wheat to Humphrey—the contract is called partially executed. [16] A contract that has been carried out fully by both parties is called an executed contract. [17]

Finally, the common law recognizes contracts that are “substantially” performed. If one party to a contract performs in a way that doesn’t precisely fulfill the contract, but fulfills its essential terms, the common law would require the other party perform. For example, if someone building a house for another installed the cabinets incorrectly, the buyer would still need to pay for the house. The buyer could then claim damages or require the builder to fix the cabinets. The UCC has a different rule for buying goods: sellers are bound by the “perfect tender” rule, which requires that buyers receive exactly what they ordered or they may reject the good.

Key Takeaway

Contract is the mechanism by which people in modern society make choices for themselves, as opposed to being born or placed into a status as is common in feudal societies. A contract is a legally enforceable promise. The law of contract is the common law (for contracts involving real estate and services), statutory law (the Uniform Commercial Code for contract involving the sale or leasing of goods), and treaty law (the Convention on the International Sale of Goods). Contracts may be described based on the degree of their explicitness, mutuality, enforceability, and degree of completion.

11.2    Contract Formation

• Understand the elements of common-law contracts: mutuality of agreement (offer and acceptance), consideration, legality, and capacity.
• Learn when a contract must be in writing—or evidenced by some writing—to be enforceable.

Although it has countless wrinkles and nuances, contract law asks two principal questions: did the parties create a valid, enforceable contract? What remedies are available when one party breaks the contract? The answer to the first question is not always obvious; the range of factors that must be taken into account can be large and their relationship subtle. Since people in business frequently conduct contract negotiations without the assistance of a lawyer, it is important to attend to the nuances to avoid legal trouble at the outset. Whether a valid enforceable contract has been formed depends in turn on whether:

• The parties reached an agreement (offer and acceptance);
• Consideration was present (some “price was paid for what was received in return);
• The agreement was legal;
• The parties entered into the contract with capacity to make a contract; and
• The agreement is in the proper form (something in writing, if required).

11.2.1    The Agreement: Offer and Acceptance

The core of a legal contract is the agreement between the parties. Although agreements may take any form, including unspoken conduct between the parties, they are usually structured in terms of an offer and an acceptance. Note, however, that not every agreement, in the broadest sense of the word, need consist of an offer and acceptance, and it is entirely possible, therefore, for two persons to reach agreement without forming a contract. For example, people may agree that the weather is pleasant or that it would be preferable to go out for Chinese food rather than seeing a foreign film; in neither case has a contract been formed. One of the major functions of the law of contracts is to sort out those agreements that are legally binding—those that are contracts—from those that are not.

The Restatement (Second) of Contracts defines agreement as a “manifestation of mutual assent by two or more persons to one another.” [18] The UCC defines agreement as “the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance.” [19] The critical question is what the parties objectively said or did, not what they subjectively thought they said or did.

The distinction between objective and subjective standards crops up occasionally when one person claims he spoke in jest. The vice president of a manufacturer of punchboards, used in gambling, testified to the Washington State Game Commission that he would pay $100,000 to anyone who found a “crooked board.” Barnes, a bartender, who had purchased two that were crooked some time before, brought one to the company office, and demanded payment. The company refused, claiming that the statement was made in jest (the audience before the commission had laughed when the offer was made). The court disagreed, holding that it was reasonable to interpret the pledge of $100,000 as a means of promoting punchboards:

An offer is a manifestation of willingness to enter into a bargain such that it would be reasonable for another individual to conclude that assent to the offer would complete the bargain. Offers must be communicated and must be definite; that is, they must spell out terms to which the offeree can assent.

To constitute an agreement, there must be an acceptance of the offer. The offeree must manifest his assent to the terms of the offer in a manner invited or required by the offer. If the offer says “accept in skywriting at noon”, then the only way to accept the offer is to hire an airplane. If the offeror specifies no particular mode, then acceptance is effective when transmitted as long as the offeree uses a reasonable method of acceptance. It is implied that the offeree can use the same means used by the offeror or a means of communication customary to the industry. For example, the use of the postal service was so customary that acceptances are considered effective when mailed, regardless of the method used to transmit the offer. Indeed, the so-called “mailbox rule” (the acceptance is effective upon dispatch) has an ancient lineage, tracing back nearly two hundred years to the English courts. [21]

11.2.2    Consideration

Not every agreement forms a contract. One way in which agreements fail to become contracts is because they lack consideration . Consideration is the quid pro quo (something given or received for something else) between the contracting parties in the absence of which the law will not enforce the promise or promises made. Consider the following three “contracts”:

• Betty offers to give a book to Lou. Lou accepts.
• Betty offers Lou the book in exchange for Lou’s promise to pay $15. Lou accepts.
• Betty offers to give Lou the book if Lou promises to pick it up at Betty’s house. Lou accepts.

The question is which, if any, is a binding contract? In American law, only situation 2 is a binding contract, because only that contract contains a set of mutual promises in which each party pledges to give up something to the benefit of the other. [22]

The existence of consideration is determined by examining whether the person against whom a promise is to be enforced (the promisor [23] ) received something in return from the person to whom he made the promise (the promisee [24] ). That may seem a simple enough question. But as with much in the law, the complicating situations are never very far away. The “something” that is promised or delivered cannot just be anything: a feeling of pride, warmth, amusement, friendship; it must be something known as a legal detriment [25] —an act, a forbearance, or a promise of such from the promisee. The detriment need not be an actual detriment; it may in fact be a benefit to the promisee, or at least not a loss. At the same time, the “detriment” to the promisee need not confer a tangible benefit on the promisor; the promisee can agree to forego something without that something being given to the promisor. Whether consideration is legally sufficient has nothing to do with whether it is morally or economically adequate to make the bargain a fair one. Moreover, legal consideration need not even be certain; it can be a promise contingent on an event that may never happen. Consideration is a legal concept, and it centers on the giving up of a legal right or benefit.

There is a widely recognized exception to the requirement of consideration. In cases of promissory estoppel, the courts will enforce promises without consideration. Simply stated, promissory estoppel [26] means that the courts will stop the promisor from claiming that there was no consideration. The doctrine of promissory estoppel is invoked in the interests of justice when three conditions are met: (1) the promise is one that the promisor should reasonably expect to induce the promisee to take action or forbear from taking action of a definite and substantial character; (2) the action or forbearance is taken; and (3) injustice can be avoided only by enforcing the promise.

Timko served on the board of trustees of a school. He recommended that the school purchase a building for a substantial sum of money, and to induce the trustees to vote for the purchase, he promised to help with the purchase and to pay at the end of five years the purchase price less the down payment. At the end of four years, Timko died. The school sued his estate, which defended on the ground that there was no consideration for the promise. Timko was promised or given nothing in return, and the purchase of the building was of no direct benefit to him (which would have made the promise enforceable as a unilateral contract). The court ruled that under the three-pronged promissory estoppel test, Timko’s estate was liable. [27]

11.2.3    Illegality

In general, illegal contracts are unenforceable. Thus, one can think of “legality” as being a required element of a contract, along with agreement, consideration, and capacity. As illegality is also a defense to a contract, we cover it later in the chapter.

11.2.4    Capacity

A contract is a meeting of minds. If someone lacks mental capacity [28] to understand what he is assenting to—or that he is assenting to anything—it is unreasonable to hold him to the consequences of his act.

Capacity issues often arise when contracting with minors. The general rule is that persons younger than eighteen can avoid their contracts.

A minor’s contract is voidable, not void. A child wishing to avoid the contract need do nothing positive to disaffirm; the defense of minority to a lawsuit is sufficient. Although the adult cannot enforce the contract, the child can (which is why it is said to be voidable, not void).

When the minor becomes an adult, she has two choices: she may ratify the contract or disaffirm [29] it. She may ratify explicitly; no further consideration is necessary. She may also do so by implication—for instance, by continuing to make payments or retaining goods for an unreasonable period of time. (In some states, a court may ratify the contract before the child becomes an adult. In California, for example, a state statute permits a movie producer to seek court approval of a contract with a child actor in order to prevent the child from disaffirming it upon reaching majority and suing for additional wages. As quid pro quo, the court can order the producer to pay a percentage of the wages into a trust fund that the child’s parents or guardians cannot invade.) If the child has not disaffirmed the contract while still a minor, she may do so within a reasonable time after reaching majority.

In most cases of disavowal, the only obligation is to return the goods (if he still has them) or repay the consideration (unless it has been dissipated). However, in two situations, a minor might incur greater liability: contracts for necessities and misrepresentation of age.

11.2.4.1    Contract for Necessities  At common law, a “necessity” was defined as an essential need of a human being: food, medicine, clothing, and shelter. In recent years, however, the courts have expanded the concept, so that in many states today necessities include property and services that will enable the minor to earn a living and to provide for those dependent on him. If the contract is executory, the minor can simply disaffirm. If the contract has been executed, however, the minor must face more onerous consequences. Although he will not be required to perform under the contract, he will be liable under a theory of “quasi-contract” for the reasonable value of the necessity.

11.2.4.2    Misrepresentation of Age  In most states, a minor may misrepresent his age and disaffirm in accordance with the general rule, because that’s what kids do, misrepresent their age. That the adult reasonably believed the minor was also an adult is of no consequence in a contract suit. But some states have enacted statutes that make the minor liable in certain situations. A Michigan statute, for instance, prohibits a minor from disaffirming if he has signed a “separate instrument containing only the statement of age, date of signing and the signature:” And some states “estop” him from claiming to be a minor if he falsely represented himself as an adult in making the ·contract.  “Estoppel” is a refusal by the courts on equitable grounds to listen to an otherwise valid defense; unless the minor can return the consideration, the contract will be enforced.

Contracts made by an insane or highly intoxicated person are also said to have been made by a person lacking capacity. In general, such contracts are voidable by the person when capacity is regained (or by the person’s legal representative if capacity is not regained).

11.2.5    Form

As a general rule, a contract need not be in writing to be enforceable. An oral agreement to pay a high-fashion model $1 million to pose for a photograph is as binding as if the language of the deal were printed on vellum and signed in the presence of twenty bishops. For centuries, however, a large exception has grown up around the Statute of Frauds [30] , first enacted in England in 1677 under the formal name “An Act for the Prevention of Frauds and Perjuries.” The purpose of the Statute of Frauds is to prevent the fraud that occurs when one party attempts to impose upon another a contract that did not in fact exist.

The Statute of Frauds requires that certain kinds of contracts be in writing to be enforceable. These include:

• Contracts to convey an interest in land (such as sale of a home);
• Contracts that are impossible to fulfill within one year (such as a contract entered July 1, for employment beginning August 1 and lasting a year);
• Contracts in which the consideration is marriage;
• Contracts to pay another’s debt; and
• Under the UCC, contracts for sale of goods for at least $500 (and lease of goods of at least $1,000).

Again, as may be evident from the title of the act and its requirements, the general purpose of the law is to provide evidence, in areas of some complexity and importance, that a contract was actually made. To a lesser degree, the law serves to caution those about to enter a contract and “to create a climate in which parties often regard their agreements as tentative until there is a signed writing.” [31]

There are many exceptions to the Statute of Frauds. For example, under the UCC, custom goods manufactured, such as with the logo of another company, would be evidence of the agreement, as it is unlikely someone would produce custom goods without an agreement. If the parties have began to perform according to the oral agreement, it would also be hard to deny the contract exists, at least as to what has been performed. For contracts to pay another’s debt, if the primary purpose for which the agreement was made was to benefit the guarantor, then again an exception applies. These are just several examples, and so one should research the law carefully before trying to back out of a contract for Statute of Frauds concerns. Of course, it would be prudent to render the agreement in writing to begin with!

11.2.5.1    Parol Evidence

11.2.5.1.1    The Rule  Unlike Minerva sprung forth whole from the brow of Zeus in Greek mythology, contracts do not appear at a stroke memorialized on paper. Almost invariably, negotiations of some sort precede the concluding of a deal. People write letters, talk by telephone, meet face-to-face, send e-mails, and exchange thoughts and views about what they want and how they will reciprocate. They may even lie and cajole in duplicitous ways, making promises they know they cannot or will not keep in order not to kill the contract talks. In the course of these discussions, they may reach tentative agreements, some of which will ultimately be reflected in the final contract, some of which will be discarded along the way, and some of which perhaps will not be included in the final agreement but will nevertheless not be contradicted by it. Whether any weight should be given to these prior agreements is a problem that frequently arises.

The rule at common law is this: a written contract intended to be the parties’ complete understanding discharges all prior or contemporaneous promises, statements, or agreements that add to, vary, or conflict with it.

The rule applies to all written contracts, whether or not the Statute of Frauds requires them to be in writing. The Statute of Frauds gets to whether there was a contract at all; the parol evidence rule says, granted there was a written contract, does it express the parties’ understanding? But the rule is concerned only with events that transpired before the contract in dispute was signed. It has no bearing on agreements reached subsequently that may alter the terms of an existing contract.

11.2.5.1.2    Exceptions to the Parol Evidence Rule  Despite its apparent stringency, the parol evidence rule does not negate all prior agreements or statements, nor preclude their use as evidence. A number of situations fall outside the scope of the rule and hence are not technically exceptions to it, so they are better phrased as exemptions (something not within the scope of a rule).

If the parties never intended the written contract to be their full understanding—if they intended it to be partly oral—then the rule does not apply. If the document is fully integrated, no extrinsic evidence will be permitted to modify the terms of the agreement, even if the modification is in addition to the existing terms, rather than a contradiction of them. If the contract is partially integrated, prior consistent additional terms may be shown. It is the duty of the party who wants to exclude the parol evidence to show the contract was intended to be integrated. That is not always an easy task. To prevent a party later from introducing extrinsic evidence to show that there were prior agreements, the contract itself can recite that there were none. Here, for example, is the final clause in the National Basketball Association Uniform Player Contract: “This agreement contains the entire agreement between the parties and there are no oral or written inducements, promises or agreements except as contained herein.” Such a clause is known as a merger or integration clause

When the parties orally agree that a written contract is contingent on the occurrence of an event or some other condition (a condition precedent [32] ), the contract is not integrated and the oral agreement may be introduced. The classic case is that of an inventor who sells in a written contract an interest in his invention. Orally, the inventor and the buyer agree that the contract is to take effect only if the buyer’s engineer approves the invention. (The contract was signed in advance of approval so that the parties would not need to meet again.) The engineer did not approve it, and in a suit for performance, the court permitted the evidence of the oral agreement because it showed “that in fact there never was any agreement at all.” [33] Note that the oral condition does not contradict a term of the written contract; it negates it. The parol evidence rule will not permit evidence of an oral agreement that is inconsistent with a written term, for as to that term the contract is integrated.

11.2.6    Third-Party Rights

11.2.6.1    Assigning Rights  Contracts create rights and duties. By an assignment [34] , an obligee (one who has the right to receive a contract benefit) transfers a right to receive a contract benefit owed by the obligor (the one who has a duty to perform) to a third person (assignee); the obligee then becomes an assignor (one who makes an assignment). The assignor may assign any right unless (1) doing so would materially change the obligation of the obligor, materially burden her, increase her risk, or otherwise diminish the value to her of the original contract; (2) statute or public policy forbids the assignment; or (3) the contract itself precludes assignment. A common example of this last point are prohibitions against subletting commonly found in leases–subletting is assigning the contractual right of occupancy.

An assignment of rights effectively makes the assignee stand in the shoes of the assignor. [35] She gains all the rights against the obligor that the assignor had, but no more. An obligor who could avoid the assignor’s attempt to enforce the rights could avoid a similar attempt by the assignee.

11.2.6.2    Delegating Duties  To this point, we have been considering the assignment of the assignor’s rights (usually, though not solely, to money payments). But in every contract, a right connotes a corresponding duty, and these may be delegated. A delegation is the transfer to a third party of the duty to perform under a contract. The one who delegates is the delegator. Because most obligees are also obligors, most assignments of rights will simultaneously carry with them the delegation of duties. Unless public policy or the contract itself bars the delegation, it is legally enforceable.

An obligor who delegates a duty (and becomes a delegator) does not thereby escape liability for performing the duty himself. The obligee of the duty may continue to look to the obligor for performance unless the original contract specifically provides for substitution by delegation. This is a big difference between assignment of contract rights and delegation of contract duties: in the former, the assignor is discharged (absent breach of assignor’s warranties); in the latter, the delegator remains liable. The obligee (again, the one to whom the duty to perform flows) may also, in many cases, look to the delegatee, because the obligee becomes an intended beneficiary of the contract between the obligor and the delegatee.

11.2.6.3    Third-Party Beneficiaries  The general rule is this: persons not a party to a con- tract cannot enforce its terms; they are said to lack privity [36] , a private, face-to-face relationship with the contracting parties. But if the persons are intended to benefit from the performance of a contract between others, then they can enforce it: they are intended beneficiaries.

For example, a contract to paint one’s house cannot be enforced by a neighbor–the neighbor might benefit from an increased home value due to your house looking maintained, but this benefit is only incidental . In contrast, a contract between A and B to deliver insurance proceeds to C would be enforcable by C. C is an intended, rather than merely incidental, beneficiary of the contract.

A contract requires mutuality—an offer and an acceptance of the offer; it requires consideration—a “price” paid for what is obtained; it requires that the parties to the contract have legal capacity to know what they are doing; it requires legality. Certain contracts—governed by the statute of frauds—are required to be evidenced by some writing, signed by the party to be bound. The purpose here is to avoid the fraud that occurs when one person attempts to impose upon another a contract that did not really exist. The parol evidence rule states that if a written contract is integrated, evidence of prior oral agreements cannot be used in court. Third parties may have stakes in contracts: contractual rights can be assigned in most cases, and contractual duties may be delegated. Intended third party beneficiaries may be able to enforce contracts to which they are not a party.

11.3    Defenses and Interpretations

Type your learning objectives here.

• Understand problems with voluntary consent, such as fraud, mistake, duress, and undue influence
• Understand when courts will choose not to enforce contracts for public policy reasons, such as unconscionability.
• Understand implications of illegal contracts.
• Understand rules for resolving ambiguity in contracts

Because contracts are voluntary agreements the law will enforce, the common law developed a variety of doctrines that responded to situations in which someone was not truly free to enter into the contract, or to situations in which courts felt it unfair to enforce the agreement. In this section we will study these doctrines.

11.3.1    Fraud

Misrepresentation is a statement of fact that is not consistent with the truth. If misrepresentation is intentional, it is fraudulent misrepresentation; if it is not intentional, it is nonfraudulent misrepresentation, which can be either negligent or innocent.

In further taxonomy, courts distinguish between fraud in the execution and fraud in the induce- ment. Fraud in the execution occurs when the nature of the document itself is misrepresented. For example, Alphonse and Gaston decide to sign a written contract incorporating terms to which they have agreed. It is properly drawn up, and Gaston reads it and approves it. Before he can sign it, however, Alphonse shrewdly substitutes a different version to which Gaston has not agreed. Gaston signs the substitute version. There is no contract. There has been fraud in the execution.

Fraud in the inducement is more common. It involves some misrepresentation about the subject of the contract that induces assent. Alphonse tells Gaston that the car Gaston is buying from Alphonse has just been overhauled—which pleases Gaston—but it has not been. This renders the contract voidable.

11.3.1.1    Nondisclosure  A passive type of concealment is nondisclosure. Although generally the law imposes no obligation on anyone to speak out, nondisclosure of a fact can operate as a misrepresentation under certain circumstances. This occurs, for example, whenever the other party has erroneous information where the nondisclosure amounts to a failure to act in good faith, or where the party who conceals knows or should know that the other side cannot, with reasonable diligence, discover the truth.

In a remarkable 1991 case out of New York, a New York City stockbroker bought an old house upstate (basically anyplace north of New York City) in the village of Nyack, north of New York City, and then wanted out of the deal when he discovered—the defendant seller had not told him—that it was “haunted.” The court summarized the facts: “Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists [ghosts], reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years. Plaintiff promptly commenced this action seeking rescission of the contract of sale. Supreme Court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction.”

The high court of New York ruled he could rescind the contract because the house was “haunted as a matter of law”: the defendant had promoted it as such on village tours and in Reader’s Digest . She had concealed it, and no reasonable buyer’s inspection would have revealed the “fact.” The dissent basically hooted, saying, “The existence of a poltergeist is no more binding upon the defendants than it is upon this court.” [37]

11.3.1.2    Statement Made False by Subsequent Events  If a statement of fact is made false by later events, it must be disclosed as false. For example, in idle chatter one day, Alphonse tells Gaston that he owns thirty acres of land. In fact, Alphonse owns only twenty-seven, but he decided to exaggerate a little. He meant no harm by it, since the conversation had no import. A year later, Gaston offers to buy the “thirty acres” from Alphonse, who does not correct the impression that Gaston has. The failure to speak is a nondisclosure—presumably intentional, in this situation—that would allow Gaston to rescind a contract induced by his belief that he was purchasing thirty acres.

11.3.1.3    Statements of Opinion  An opinion, of course, is not a fact; neither is sales puffery. For example, the statements “In my opinion this apple is very tasty” and “These apples are the best in the county” are not facts; they are not expected to be taken as true. Reliance on opinion is hazardous and generally not considered justifiable.

If Jack asks what condition the car is in that he wishes to buy, Mr. Olson’s response of “Great!” is not ordinarily a misrepresentation. As the Restatement puts it: “The propensity of sellers and buyers to exaggerate the advantages to the other party of the bargains they promise is well recognized, and to some extent their assertions must be discounted.” [38] Vague statements of quality, such as that a product is “good,” ought to suggest nothing other than that such is the personal judgment of the opinion holder.

Despite this general rule, there are certain exceptions that justify reliance on opinions and effectively make them into facts. Merely because someone is less astute than the one with whom she is bargaining does not give rise to a claim of justifiable reliance on an unwarranted opinion.

11.3.2    Mistake

In discussing fraud, we have considered the ways in which trickery by the other party makes a contract void or voidable. We now examine the ways in which the parties might “trick” themselves by making assumptions that lead them mistakenly to believe that they have agreed to something they have not. A mistake is “a belief about a fact that is not in accord with the truth.” [39]

11.3.2.1    Mistake by One Party

11.3.2.1.1    Unilateral Mistake  Where one party makes a mistake, it is a unilateral mis- take. [40] The rule: ordinarily, a contract is not voidable because one party has made a mistake about the subject matter (e.g., the truck is not powerful enough to haul the trailer; the dress doesn’t fit).

11.3.2.1.2    Exceptions  If one side knows or should know that the other has made a mistake, he or she may not take advantage of it. A person who makes the mistake of not reading a written document will usually get no relief, nor will relief be afforded to one whose mistake is caused by negligence (a contractor forgets to add in the cost of insulation) unless the negligent party would suffer unconscionable hardship if the mistake were not corrected. Courts will allow the correction of drafting errors in a contract (“reformation”) in order to make the contract reflect the parties’ intention. [41]

11.3.2.2    Mutual Mistake  In the case of mutual mistake [42] —both parties are wrong about the subject of the contract—relief may be granted.

The Restatement sets out three requirements for successfully arguing mutual mistake. [43] The party seeking to avoid the contract must prove that:

• The mistake relates to a “basic assumption on which the contract was made,”
• The mistake has a material effect on the agreed exchange of performances, and
• The party seeking relief does not bear the risk of the mistake.

Basic assumption is probably clear enough. In the famous “cow case,” the defendant sold the plaintiff a cow—Rose of Abalone—believed by both to be barren and thus of less value than a fertile cow (a promising young dairy cow in 2010 might sell for $1,800). [44] Just before the plaintiff was to take Rose from the defendant’s barn, the defendant discovered she was “large with calf”; he refused to go on with the contract. The court held this was a mutual mistake of fact—“a barren cow is substantially a different creature than a breeding one”—and ruled for the defendant. That she was infertile was “a basic assumption,” but—for example—that hay would be readily available to feed her inexpensively was not, and had hay been expensive, that would not have vitiated the contract.

11.3.2.2.2    Party Seeking Relief Does Not Bear the Risk of the Mistake  Assume a weekend browser sees a painting sitting on the floor of an antique shop. The owner says, “That old thing? You can have it for $100.” The browser takes it home, dusts it off, and hangs it on the wall. A year later a visitor, an expert in art history, recognizes the hanging as a famous lost El Greco worth $1 million. The story is headlined; the antique dealer is chagrined and claims the contract for sale should be voided because both parties mistakenly thought they were dickering over an “old, worthless” painting. The contract is valid. The owner is said to bear the risk of mistake because he contracted with conscious awareness of his ignorance: he knew he didn’t know what the painting’s possible value might be, but he didn’t feel it worthwhile to have it appraised. He gambled it wasn’t worth much, and lost.

11.3.3    Duress and Undue Influence

11.3.3.1    Duress  When a person is forced to do something against his or her will, that person is said to have been the victim of duress There are two types of duress: physical duress and duress by improper threat.

11.3.3.1.1    Physical Duress  If a person is forced into entering a contract on threat of physical bodily harm, he or she is the victim of physical duress. It is defined by the Restatement (Second) of Contracts in Section 174: “If conduct that appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.” A contract induced by physical violence is void. [45]

11.3.3.1.2    Duress by Economic Threat  The second kind of duress is duress by economic threat ; it is more common than physical duress. Here the perpetrator threatens the victim economically, who feels there is no reasonable alternative but to assent to the contract. It renders the contract voidable. This rule contains a number of elements.

First, the threat must be improper. Second, there must be no reasonable alternative. If, for example, a supplier threatens to hold up shipment of necessary goods unless the buyer agrees to pay more than the contract price, this would not be duress if the buyer could purchase identical supplies from someone else. Third, the test for inducement is subjective. It does not matter that the person threatened is unusually timid or that a reasonable person would not have felt threatened. The question is whether the threat in fact induced assent by the victim. Such facts as the victim’s belief that the threatener had the ability to carry out the threat and the length of time between the threat and assent are relevant in determining whether the threat did prompt the assent.

There are many types of improper threats that might induce a party to enter into a contract: threats to commit a crime or a tort (e.g., bodily harm or taking of property), to instigate criminal prosecution, to instigate civil proceedings when a threat is made in bad faith, to breach a “duty of good faith and fair dealing under a contract with the recipient,” or to disclose embarrassing details about a person’s private life.

11.3.3.2    Undue Influence  The Restatement of Contracts (Second) characterizes undue influence as “unfair persuasion.” [46] It is a milder form of duress than physical harm or threats. The unfairness does not lie in any misrepresentation; rather, it occurs when the victim is under the domination of the persuader or is one who, in view of the relationship between them, is warranted in believing that the persuader will act in a manner detrimental to the victim’s welfare if the victim fails to assent. It is the improper use of trust or power to deprive a person of free will and substitute instead another’s objective. Usually the fact pattern involves the victim being isolated from receiving advice except from the persuader. Falling within this rule are situations where, for example, a child takes advantage of an infirm parent, a doctor takes advantage of an ill patient, or a lawyer takes advantage of an unknowledgeable client. If there has been undue influence, the contract is voidable by the party who has been unfairly persuaded. Whether the relationship is one of domination and the persuasion is unfair is a factual question. The answer hinges on a host of variables, including “the unfairness of the resulting bargain, the unavailability of independent advice, and the susceptibility of the person persuaded.” [47]

11.3.4    Illegal Contracts

11.3.4.1    Contracts that violate a statute  Any bargain that violates the criminal law— including statutes that govern extortion, robbery, embezzlement, forgery, some gambling, licensing, and consumer credit transactions—is illegal. Thus determining whether contracts are lawful may seem to be an easy enough task. Clearly, whenever the statute itself explicitly forbids the making of the contract or the performance agreed upon, the bargain (such as a contract to sell drugs) is unlawful. But when the statute does not expressly prohibit the making of sthe contract, courts examine a number of factors.

11.3.4.2    Unconscionable contracts  Courts may refuse to enforce unconscionable contracts, those that are shockingly one-sided, unfair, the product of unequal bargaining power, or oppressive; a court may find the contract divisible and enforce only the parts that are not unconscionable.

The common-law rule is reflected in Section 208 of the Restatement: “If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.”

Unconscionability may arise procedurally or substantively. A term is procedurally unconscionable if it is imposed upon the “weaker” party because of fine or inconspicuous print, unexpected place- ment in the contract, lack of opportunity to read the term, lack of education or sophistication that precludes understanding, or lack of equality of bargaining power. Substantive unconscionability arises where the affected terms are oppressive and harsh, where the term deprives a party of any real remedy for breach. Most often—but not always—courts find unconscionable contracts in the context of consumer transactions rather than commercial transactions. In the latter case, the assumption is that the parties tend to be sophisticated businesspeople able to look out for their own contract interests.

11.3.5    Specific Contractual Pitfalls

Courts have long held that public policy disfavors attempts to contract out of tort liability. Exculpatory clauses that exempt one party from tort liability to the other for harm caused intentionally or recklessly are unenforceable without exception. A contract provision that exempts a party from tort liability for negligence is unenforceable under two general circumstances: (1) when it “exempts an employer from liability to an employee for injury in the course of his employment” or (2) when it exempts one charged with a duty of public service and who is receiving compensation from liability to one to whom the duty is owed. [48] Contract terms with offensive exculpatory clauses may be considered somewhat akin to unconscionability.

Put shortly, exculpatory clauses are okay if they are reasonable. Put not so shortly, exculpatory clauses will generally be held valid if (1) the agreement does not involve a business generally thought suitable for public regulation (a twenty-kilometer bicycle race, for example, is probably not one thought generally suitable for public regulation, whereas a bus line is); (2) the party seeking exculpation is not performing a business of great importance to the public or of practical necessity for some members of the public; (3) the party does not purport to be performing the service to just anybody who comes along (unlike the bus line); (4) the parties are dealing at arms’ length, able to bargain about the contract; (5) the person or property of the purchaser is not placed under control of the seller, subject to his or his agent’s carelessness; or (6) the clause is conspicuous and clear. [49]

Finally, a promise by an employee not to compete with his or her former employer is scrutinized carefully by the courts, and an injunction [50] will be issued cautiously, partly because the prospective employee is usually confronted with a contract of adhesion [51] and is in a weak bargaining position compared to the employer, and partly because an injunction might cause the employee’s unemployment. Many courts are not enthusiastic about employment noncompete agreements. The California Business and Professions Code provides that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” [52] As a result of the statute, and to promote entrepreneurial robustness, California courts typically interpret the statute broadly and refuse to enforce noncompete agreements. Other states are less stingy, and employers have attempted to avoid the strictures of no-enforcement state rulings by providing that their employment contracts will be interpreted according to the law of a state where noncompetes are favorably viewed.

11.3.6     Ways to Resolve Ambiguity

As any reader knows, the meaning of words depends in part on context and in part on the skill and care of the writer. As Justice Oliver Wendell Holmes Jr. once succinctly noted, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” [53] Words and phrases can be ambiguous, either when they stand alone or when they take on a different coloration from words and phrases near them. A writer can be careless and contradict himself without intending to; people often read hurriedly and easily miss errors that a more deliberate perusal might catch. Interpretation difficulties can arise for any of a number of reasons: a form contract might contain language that is inconsistent with provisions specifically annexed; the parties might use jargon that is unclear; they might forget to incorporate a necessary term; assumptions about prior usage or performance, unknown to outsiders like judges, might color their understanding of the words they do use. Because ambiguities do arise, courts are frequently called on to give content to the words on paper.

Courts attempt to give meaning to the parties’ understanding when they wrote the contract. The intention of the parties governs, and if their purpose in making the contract is known or can be ascertained from all the circumstances, it will be given great weight in determining the meaning of an obscure, murky, or ambiguous provision or a pattern of conduct. A father tells the college bookstore that in consideration of its supplying his daughter, a freshman, with books for the coming year, he will guarantee payment of up to $350. His daughter purchases books totaling $400 the first semester, and he pays the bill. Midway through the second semester, the bookstore presents him with a bill for an additional $100, and he pays that. At the end of the year, he refuses to pay a third bill for $150. A court could construe his conduct as indicating a purpose to ensure that his daughter had whatever books she needed, regardless of cost, and interpret the contract to hold him liable for the final bill.

The policy of uncovering purpose has led to a number of tools of judicial interpretation:

• More specific terms or conduct are given more weight than general terms or unremarkable conduct. Thus a clause that is separately negotiated and added to a contract will be counted as more significant than a standard term in a form contract.
• A writing is interpreted as a whole, without undue attention to one clause.
• Common words and terms are given common meaning; technical terms are given their technical meaning.
• In the range of language and conduct that helps in interpretation, the courts prefer the following items in the order listed: express terms, course of performance, course of dealing, and usage of trade.
• If an amount is given in words and figures that differ, the words control.
• Writing controls over typing; typing controls over printed forms.
• Ambiguities are construed against the party that wrote the contract.

For an example of resolving ambiguity by construing against, the drafter, see Grove v. Charbonneau Buick-Pontiac, Inc. in the Cases section.

The common law protects the voluntary aspect of contract law by policing various ways in which free will may not be manifest in an agreement. These are doctrines such as mistake, duress, and undue influence. It also provides methods to avoid unconscionable exchanges, methods to stop illegal contracts from being enforced, and ways to interpret situations in which the parties’ intent is unclear.

11.4    Remedies for Breach of Contract

• Know the types of damages: compensatory and punitive.
• Understand specific performance as a remedy.
• Understand restitution as a remedy.
• Recognize the interplay between contract and tort as a cause of action.

Monetary awards (called “damages”), specific performance, and restitution are the three principle remedies when a contract is broken or “breached”.

In view of the importance given to the intention of the parties in forming and interpreting contracts, it may seem surprising that the remedy for every breach is not a judicial order that the obligor carry out his undertakings. But it is not. Of course, some duties cannot be performed after a breach: time and circumstances will have altered their purpose and rendered many worthless. Still, although there are numerous occasions on which it would be theoretically possible for courts to order the parties to carry out their contracts, the courts will not do it. In 1897, Justice Oliver Wendell Holmes, Jr., declared in a famous line that “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it.”

By that he meant simply that the common law looks more toward compensating the promisee for his loss than toward compelling the promisor to perform—a person always has the power, though not the right, to breach a contract. Indeed, the law of remedies often provides the parties with an incentive to break the contract. In short, the promisor has a choice: to perform or pay. The purpose of contract remedies is, for the most part, to compensate the non-breaching party for the losses suffered—to put the non-breaching party in the position he, she, or it would have been in had there been no breach.

This is very different than tort law! Tort law looks backward , to put the injured party in the same position as if the tort had not occurred. Contract law looks forward to put the injured party in the same position as if the contract had been fulfilled. These are called “expectation damages.” If giving expectation damages is impossible, such as if they cannot be calculated, [54] the law might then look backward and put the parties in the same position as if the contract had not been entered.

11.4.1    Damages

11.4.1.1    Compensatory Damages  One party has the right to damages [55] (money) when the other party has breached the contract unless, of course, the contract itself or other circumstances suspend or discharge that right. Compensatory damages is the general category of damages awarded to make the non-breaching party whole.

11.4.1.2    Consequential Damages  A basic principle of contract law is that a person injured by breach of contract is not entitled to compensation unless the breaching party, at the time the contract was made, had reason to foresee the loss as a probable result of the breach. The leading case, perhaps the most studied case in all the common law, is Hadley v. Baxendale , decided in England in 1854. Joseph and Jonah Hadley were proprietors of a flour mill in Gloucester. In May 1853, the shaft of the milling engine broke, stopping all milling. An employee went to Pickford and Company, a common carrier, and asked that the shaft be sent as quickly as possible to a Greenwich foundry that would use the shaft as a model to construct a new one. The carrier’s agent promised delivery within two days. But through an error the shaft was shipped by canal rather than by rail and did not arrive in Greenwich for seven days. The Hadleys sued Joseph Baxendale, managing director of Pickford, for the profits they lost because of the delay. In ordering a new trial, the Court of Exchequer ruled that Baxendale was not liable because he had had no notice that the mill was stopped:

This rule, it has been argued, was a subtle change from the earlier rule that permitted damages for any consequences as long as the breach caused the injury and the plaintiff did not exacerbate it. But the change was evidently rationalized, at least in part, by the observation that in the “usual course of things,” a mill would have on hand a spare shaft, so that its operations would not cease. [57]

This subset of compensatory damages is called consequential damages [58] —damages that flow as a foreseeable consequence of the breach. For example, if you hire a roofer to fix a leak in your roof, and he does a bad job so that the interior of your house suffers water damage, the roofer is liable not only for the poor roofing job, but also for the ruined drapes, damaged flooring and walls, and so on.

Whether consequential damages are allowed under the contract is the source of much litigation. The UCC provides an extensive set of rules for sale of goods to determine whether sellers’ disclaimers or buyers’ inclusion of these terms in contracts are binding. This kind of dispute is called a “battle of the forms.”

11.4.1.3    Nominal Damages  If the breach caused no loss, the plaintiff is nevertheless entitled to a minor sum, perhaps one dollar, called nominal damages. When, for example, a buyer could purchase the same commodity at the same price as that contracted for, without spending any extra time or money, there can be no real damages in the event of breach.

11.4.1.4    Incidental Damages  Suppose City College hires Prof. Blake on a two-year contract, after an extensive search. After one year the professor quits to take a job elsewhere, in breach of her contract. If City College has to pay $5000 more to find a replacement for year, Blake is liable for that amount—that’s compensatory damages. But what if it costs City College $1200 to search for, bring to campus and interview a replacement? City College can claim that, too, as incidental damages [59] which include additional costs incurred by the non-breaching party after the breach in a reasonable attempt to avoid further loss, even if the attempt is unsuccessful.

11.4.1.5    Punitive Damages  Punitive damages [60] are those awarded for the purpose of punishing a defendant in a civil action, in which criminal sanctions may be unavailable. They are not part of the compensation for the loss suffered; they are proper in cases in which the defendant has acted willfully and maliciously and are thought to deter others from acting similarly. Since the purpose of contract law is compensation, not punishment, punitive damages have not traditionally been awarded, with one exception: when the breach of contract is also a tort for which punitive damages may be recovered. Punitive damages are permitted in the law of torts (in most states) when the behavior is malicious or willful (reckless conduct causing physical harm, deliberate defamation of one’s character, a knowingly unlawful taking of someone’s property), and some kinds of contract breach are also tortuous—for example, when a creditor holding collateral as security under a contract for a loan sells the collateral to a good-faith purchaser for value even though the debtor was not in default, he has breached the contract and committed the tort of conversion. [61] Punitive damages may be awarded, assuming the behavior was willful and not merely mistaken.

Punitive damages are not fixed by law. The judge or jury may award at its discretion whatever sum is believed necessary to redress the wrong or deter like conduct in the future. This means that a richer person may be slapped with much heavier punitive damages than a poorer one in the appropriate case. But the judge in all cases may remitA judicial reduction in the amount of a damage award (the noun is remission). (lower) some or all of a punitive damage award if he or she considers it excessive.

Punitive damage claims have been made in cases dealing with the refusal by insurance companies to honor their contracts. Many of these cases involve disability payments, and among the elements are charges of tortious conduct by the company’s agents or employees. California has been the leader among the state courts in their growing willingness to uphold punitive damage awards despite insurer complaints that the concept of punitive damages is but a device to permit plaintiffs to extort settlements from hapless companies. Courts have also awarded punitive damages against other types of companies for breach of contract.

11.4.2    Specific Performance

Specific performance [62] is a judicial order to the promisor that he undertake the performance to which he obligated himself in a contract. Specific performance is an alternative remedy to damages and may be issued at the discretion of the court, subject to a number of exceptions. (When the promisee is seeking enforcement of a contractual provision for forbearance—a promise that the promisor will refrain from doing something—an injunction, a judicial order not to act in a specified manner, may be the appropriate remedy.) Emily signs a contract to sell Charlotte a gold samovar, a Russian antique of great sentimental value because it once belonged to Charlotte’s mother. Emily then repudiates the contract while still executory. A court may properly grant Charlotte an order of specific performance against Emily. Specific performance is an attractive but limited remedy: it is only available for breach of contract to sell a unique item (real estate is always unique).

11.4.3    Liquidated Damages

In order to limit risk in contracts, many contractual drafters choose to include “liquidated damages” clauses. These are statements in the contract that spell out what damages will be if the contract is broken. This makes the damages certain, which lowers risk for the contracting parties. For example, in a contract for sale of a home, a party might lose their “ready money” if they back out of the agreement without cause.

Courts will uphold these clauses so long as they are reasonable, e.g., in the range of what actual damages might be. If the liquidated damages clause is unreasonably large, courts will not enforce it as a penalty. After all, if a liquidated damages clause was large enough, and courts chose to enforce it, the law would be favoring a regime of specific performance (as parties would always find it worthwhile to fulfill contracts rather than efficiently breach). For example, a liquidated damages clause of $10,000,000 on the sale of a $100,000 home would is excessive. If a court chose to enforce a clause like that, the parties would essentially be forced to perform.

11.4.4    Restitution

If the claimant has given the other party a sum of money, there can be no dispute over the amount of the restitution interest. Tom gives Tim $100 to chop his tree into firewood. Tim repudiates. Tom’s restitution interest is $100. But serious difficulties can arise when the benefit conferred was performance. The courts have considerable discretion to award either the cost of hiring someone else to do the work that the injured party performed (generally, the market price of the service) or the value that was added to the property of the party in breach by virtue of the claimant’s performance. Mellors, a gardener, agrees to construct ten fences around Lady Chatterley’s flower gardens at the market price of $2,500. After erecting three, Mellors has performed services that would cost $750, market value. Assume that he has increased the value of the Lady’s grounds by $800. If the contract is repudiated, there are two measures of Mellors’s restitution interest: $800, the value by which the property was enhanced; or $750, the amount it would have cost Lady Chatterley to hire someone else to do the work. Which measure to use depends on who repudiated the contract and for what reason.

11.4.5    Tort vs. Contract Remedies

Frequently a contract breach may also amount to tortious conduct. A physician warrants her treatment as perfectly safe but performs the operation negligently, scarring the patient for life. The patient could sue for malpractice (tort) or for breach of warranty (contract). The choice involves at least four considerations:

• Statute of limitations. Most statutes of limitations prescribe longer periods for contract than for tort actions.
• Allowable damages. Punitive damages are more often permitted in tort actions, and certain kinds of injuries are compensable in tort but not in contract suits—for example, pain and suffering.
• Expert testimony. In most cases, the use of experts would be the same in either tort or contract suits, but in certain contract cases, the expert witness could be dispensed with, as, for example, in a contract case charging that the physician abandoned the patient.
• Insurance coverage. Most policies do not cover intentional torts, so a contract theory that avoids the element of willfulness would provide the plaintiff with a surer chance of recovering money damages.

The purpose of remedies in contract is, usually, to put the non-breaching party in the position he or she would have been in had there been no breach. The remedies are: compensatory damages (money paid to compensate the non-breaching party for the losses caused by the breach), which also include sub-categories of incidental and nominal damages; punitive damages (to punish the breaching party) are sometimes allowed where the breach is egregious and intentional.

• Sir Henry Maine, Ancient Law (1869), 180–82. ↵
• Restatement (Second) of Contracts, Section 1. ↵
• Section 1-201(11). ↵
• Law decided by judges as recorded and published in cases. ↵
• An organized codification of the common law of contracts. ↵
• That part of the Uniform Commercial Code dealing with the sale of goods. ↵
• So yes, the parties may contract for which form of contract law applies to their agreement! ↵
• A contract in words, orally or in writing. ↵
• A contract imposed on a party when there was none, to avoid unjust enrichment. ↵
• A contract where each party makes a promise to the other. ↵
• A contract that is accepted by the performance of the requested action, not by a promise. ↵
• An agreement that never was a contract. ↵
• A contract that can be annulled. ↵
• A contract for which the non-breaching party has not remedy for its breach. ↵
• A contract that has yet to be completed. ↵
• A contract in which one party has performed, or partly performed, and the other has not. ↵
• A contract that has been completed. ↵
• (Section 3) ↵
• (Section 1-201(3)) ↵
• Barnes v. Treece, 549 P.2d 1152 (Wash. App. 1976). ↵
• Adams v. Lindsell, 1 Bamewall & Alderson 681 (K.B. 1818). ↵
• The question of what constitutes a binding contract has been answered differently throughout history and in other cultures. For example, under Roman law, any contract that was reduced to writing was binding, whether or not there was consideration in our sense. Moreover, in later Roman times, certain promises of gifts were made binding, whether written or oral; these would not be binding in the United States. And in the Anglo-American tradition, the presence of a seal was once sufficient to make a contract binding without any other consideration. In most states, the seal is no longer a substitute for consideration, although in some states it creates a presumption of consideration. The Uniform Commercial Code has abolished the seal on contracts for the sale of goods. ↵
• The one who makes a promise. ↵
• The one to whom a promise is made. ↵
• The giving up by a person of that which she had a right to retain. ↵
• To be prohibited from denying a promise when another has subsequently relied upon it. ↵
• Estate of Timko v. Oral Roberts Evangelistic Assn., 215 N.W.2d 750 (Mich. App. 1974). ↵
• The mental state of mind sufficient to understand that a contract is made and its consequences. ↵
• To legally disavow or avoid a contract. ↵
• A rule requiring that certain contracts be evidenced by some writing, signed by the person to be bound, to be enforceable. ↵
• Restatement (Second) of Contracts Chapter 5, statutory note. ↵
• A term in a contract that something has to happen before the obligation to perform the contract ripens. ↵
• Pym v. Campbell, 119 Eng. Rep. 903 (Q.B. 1856). ↵
• The passing or delivering by one person to another of the right to a contract benefit. ↵
• An assignee takes no greater rights than his assignor had. ↵
• The relationship of the immediate parties to a contract, a “private” relationship, as between retailer and customer. ↵
• Stambovsky v. Ackley , 169 A.D.2d 254 (N.Y. 1991). ↵
• Restatement (Second) of Contracts, Section 168(d). ↵
• Restatement (Second) of Contracts, Section 151. ↵
• A mistake made by one party to a contract; relief is not usually granted. ↵
• Sikora v. Vanderploeg , 212 S.W.3d 277 (Tenn. Ct. App. 2006). ↵
• Erroneous belief shared and relied on by both parties to a contract for which a court often grants relief. ↵
• Restatement (Second) of Contracts, Section 152. ↵
• Sherwood v. Walker , 33 N.W. 919 (1887). ↵
• There is different authority on physical violence as a threat or a physical action that actually forces a contractual action. For our purposes, all forms of physical threat make a contract void. ↵
• Restatement (Second) of Contracts, Section 177. ↵
• Restatement (Second) of Contracts, Section 177(b). ↵
• Restatement (Second) of Contracts, Section 195. ↵
• Henrioulle v. Marin Ventures, Inc. , 573 P.2d 465 (Calif. 1978). ↵
• A judicial order directing a person to stop doing that which he or she should not do. ↵
• A contract presented to the offeree to take or leave without bargaining. ↵
• California Business and Professions Code, Section 16600. ↵
• Towne v. Eisner , 245 US 418, 425 (1917). ↵
• Such as a contract to start a new business, in which nobody knows how well the new business would have performed. ↵
• Money paid by one party to another to discharge a liability. ↵
• Hadley v. Baxendale (1854), 9 Ex. 341, 354, 156 Eng.Rep. 145, 151. ↵
• R. J. Danzig, “Hadley v. Baxendale:  A Study in the Industrialization of the Law,” Journal of Legal Studies 4, no. 249 (1975): 249. ↵
• Damages that flow as a foreseeable but indirect result of the breach of contract. ↵
• Money paid to the non-breaching party in an attempt to avoid further loss on account of the breach. ↵
• Money awarded to the non-breaching party in excess of any loss suffered to punish the breaching party. ↵
• The wrongful taking of someone’s property by another; the civil equivalent of theft. ↵
• An order directing a person to deliver the exact property (real or personal) that she contracted to sell to the buyer. ↵

Business Law, Ethics, and Sustainability Copyright © 2022 by Andrew Hosmanek is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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Transactional Drafting: Introduction to Contract Drafting and Transactional Practice

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Ben L. Fernandez, Gainesville, Florida

Copyright Year: 2021

ISBN 13: 9798453368501

Publisher: Ben Fernandez

Language: English

Formats Available

Conditions of use.

Table of Contents

• Introduction
• 1. Getting up to Speed (Preparing to Draft)
• 2. Drafting Obligations, Rights, Prohibitions and Descriptive Statements
• 3. Avoiding Potentially Ambiguous Words and Phrases
• 4.  Organizing a Contract's Beginning Sections
• 5. Drafting the Core Obligations and Organizing Deal Provisions
• 6. Organizing a Contract's Ending Sections
• 7.  Brainstorming for Future Contingencies
• 8. Drafting with Precedent Documents
• 9. Tailoring Precedent Documents for a Deal
• 10. Revising the Other Side's Completed Documents
• 11. Negotiating Contract Provisions
• 12. Ethical Issues in Contract Drafting
• 13. Getting the Contract Signed (Closing the Deal)
• 14. Drafting With Document Assembly Programs and Closing with On Line Resources
• 15. Drafting a Contract Amendment
• Flowchart for Drafting Contract Provisions
• Contract Drafting Checklist
• Drafting Exercises
• Transcript of Client Intake for Laptop Purchase Agreement
• Memorandum for Residential Lease Agreement
• Memorandum for Sale of Assets Agreement
• Transcript of Client Intake for Consulting Services Agreement
• Introduction to Commercial Real Estate Loan Documents
• Sample Commercial Real Estate Loan Documents
• Promissory Note
• Assignment of Rents and Leases
• Construction Loan Agreement
• Revised Construction Loan Agreement (Tailored for a Deal)
• Revised Construction Loan Agreement (Revised for the Other Side)
• About The Author

Ancillary Material

About the book.

Transactional Drafting: Introduction to Contract Drafting and Transactional Practice contains a condensed presentation of all of the topics typically covered in an upper-level law school class on contract drafting. The book covers drafting from scratch including writing in plain English (not using legalese), avoiding ambiguity, and drafting covenants, rights and prohibitions consistently (using "will" or "shall" for covenants, "may" for rights, and "will not" or "shall not" for prohibitions). And it covers contract organization, from the title and the exordium to the core covenant, deal provisions and "boilerplate," to the testimonium and the signature blocks. The book also includes material on getting up to speed before you start drafting and brainstorming for contingencies after you have finished. In addition to drafting from scratch the book introduces students to the wide range of skills involved in transactional practice. There are chapters on revising form documents, both when you are the original drafter and when you represent the other side. Also, the book includes chapters on negotiating contract language, handling a closing (i.e., verifying authority and getting the documents signed), dealing with ethical issues that arise in contract drafting and execution, drafting a contract amendment, and using computers to draft contracts. Transactional Drafting includes everything students need to know to “hit the ground running” as a transactional attorney.

About the Contributors

Ben Fernandez teaches Legal Drafting and Legal Research and Writing at the University of Florida Levin College of Law. He had previously taught Legal Methods, Legal Research and Objective Writing, Lawyering Process for Litigation Practice, and Transactional Drafting at Florida Coastal School of Law. Also, he worked as an adjunct professor teaching Legal Writing at Northeastern University School of Law in Boston, and Business Law at Cape Cod Community College.

Prof. Fernandez has twenty-five years of experience practicing law in Massachusetts. He represented financial institutions and government finance agencies in commercial and residential finance transactions. He had his own practice in Plymouth, Massachusetts for ten years. Before that, he practiced law in the city of Boston for fifteen years. He worked as in-house counsel for a state-sponsored affordable housing finance agency, managed the business department of a prominent minority-owned firm, and was an associate at two large Boston law firms.

Also, Prof. Fernandez served on the Board of Directors for Habitat for Humanity of Greater Plymouth, Massachusetts. He was a volunteer teacher in Junior Achievement's Financial Literacy program, and a regular speaker at Homebuyer Education Workshops sponsored by South Shore Housing and Housing Assistance Corporation on Cape Cod.

Prof. Fernandez has an LL.M. from Boston University School of Law, as well as a J.D. from Northeastern University School of Law and a B.A. from Cornell University.

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LawNow Magazine

relating law to life

Introduction to Contracts

August 30, 2019 By Judy Feng

Consumer law covers a wide range of topics that are pervasive in our everyday lives – including contracts, advertising, credit, buying of goods and services, privacy and more. CPLEA often receives questions from the public about consumer law-related issues and so LawNow is launching this column to address these concerns. Our new Consumer column aims to help readers become better-informed consumers. This first article of the column will introduce what contracts are, what they look like and what laws apply to them.

The main source of law that applies to contracts is common law (judge-made law). Contracts are in every aspect of our everyday lives. When you rent a home, you have to abide by the terms of a lease. If you have a mortgage on your home, you essentially have a contract with your bank to pay back the money they lent you. When you go to work, the terms and conditions of your employment are likely outlined in a written employment contract. You are under a contract whenever you use your mobile phone or queue up your favorite show on your television subscription service. By the end of today, you will probably enter into some more contracts. Did you buy a coffee in the morning or grab some groceries? Work out at a gym? How about open up your web browser to read the news? Have you done some online shopping? All of these activities are governed by contracts.

What is a contract?

A contract is a type of agreement where there is an exchange of legally enforceable promises between parties. To create a legally-binding contract, there must be 6 essential elements:

• There must be an offer where one party is willing to enter into an agreement with another party.
• There must be an acceptance where one party signifies their willingness to enter into a contract with the party making the offer. An offer can be accepted by words or actions.
• There must be consideration given by each party. Consideration is a right, interest, profit or benefit experienced by one party with some detriment, forbearance, loss or responsibility experienced by another party. An example of consideration between parties is one party paying money and the other party providing a service.
• Parties to a contract must intend for the agreement to become binding when it is accepted by the other party.
• Generally, only parties who are privy to (named in) a contract can sue or be sued on the contract. Third party rights are usually not recognized except in specific circumstances.
• There must be certainty of terms between the parties to the contract. Each party must know what the terms of the contract are.

For each of these elements, there are additional rules that have been developed in case law. While we won’t be going into further details about the elements of a contract in this article, what you should know is that the elements of a contract often overlap. For example, the rules of certainty of terms and the rules of offer and acceptance overlap.

What does a contract look like?

A contract is often in the form of a written agreement between parties. Contracts can also be in the form of an oral agreement but oral agreements can be much harder to prove when a dispute arises.

A typical form of a written contract contains information such as:

• the names of the parties to the contract;
• when and where the contract was made;
• terms and conditions that must be met by the parties;
• what service, product or good is provided;
• what is being exchanged (e.g., money) for the service, product or good that is provided;
• an acknowledgment that the parties agree to the terms in the contract; and
• the signature of the parties agreeing to the contract.

For example, when your employer offered you your job, they may have sent you an offer letter. This letter would have set out the name of your employer, your name, your salary, the number of holidays you get, your job description and duties, and any other terms of the job. This is a contract.

What laws apply to contracts?

The main source of law that applies to contracts is common law (judge-made law). The general rules on agreements and contract theory comes from the decisions of judges in past contract dispute cases, many of which come from England. While our body of knowledge in contract law in Canada has its roots in English case law, it has evolved over the years in the Canadian courts to suit our circumstances. In Canada, the Supreme Court of Canada has the ultimate authority in making binding decisions that Canadian courts must follow in contract dispute cases.

A contract is a type of agreement where there is an exchange of legally enforceable promises between parties. There is some legislation (parliament or legislative assembly-made law) that applies to particular types of contracts. However, the legislation is usually limited to setting out what the default rules are for the particular type of contract. There are varying degrees on how far legislation goes in setting out the “default rules” for a particular type of contract.

For example, the Residential Tenancies Act ( RTA ) applies to residential leases. If there’s an inconsistency between the RTA and a residential lease, then the terms in the Residential Tenancies Act will override the inconsistent terms of the lease. The RTA doesn’t go as far as setting out what information must be in a lease. On the other hand, the Consumer Protection Act , which applies to direct sales contracts, outlines specific information that must be in a direct sales contract –for example, a detail description of goods, a statement of cancellation rights, etc.

Contracts can take many different forms and exist in many different situations. In upcoming issues of LawNow, we will look closer at specific types of contracts that consumers enter into.

Judy Feng, BCom, JD, is a staff lawyer at the Centre for Public Legal Education Alberta.

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Tom Brady Fox contract, explained: Salary, length, and more about former NFL QB's TV deal

The Tom Brady era of Fox NFL coverage has begun. After one year away from the field, Brady is headed into the broadcast booth as the top analyst for Fox NFL broadcasts starting in the 2024 season.

As a player, Brady does not need much of an introduction. The seven-time Super Bowl champion has reached heights no other NFL player has, and he now looks to bring that same level of excellence to a season of broadcasts that will culminate with coverage of Super Bowl 59.

Brady is a high-profile talent who commands a high-profile salary, meaning the reported figures of his deal with Fox jump off the page. Here is a breakdown of Brady's contract with Fox and how it impacts his standing among his peers.

2024 NFL RANKINGS: QBs | RBs | WRs | TEs | Defense

Tom Brady Fox contract

Brady received a 10-year, $375 million deal from Fox to become an analyst for NFL games, according to a 2022  report from Andrew Marchand. The reported figure averages out to $37.5 million annually, making Brady one of the media's highest-paid members.

For reference, CBS reportedly pays Tony Romo $18 million annually, and ESPN's Troy Aikman reportedly earns $17.5 million each season. Brady's reported salary for his first year in the booth will double those figures.

Fox executives Eric Shanks and Brad Zager detailed how the company landed Brady in an interview with The Ringer . The two discussed the "Hail Mary" attempt that ultimately ended up in a deal to bring the future Hall of Famer to the Fox network. 

"Shanks and Zager were trying to convince Brady, who’d retired from football, to take a job he’d never shown interest in," The Ringer's Bryan Curtis wrote . "They wanted to make Brady Fox’s no. 1 NFL analyst and have him call the next Super Bowl."

"It was only because he was retired that we threw that Hail Mary," Zager said. 

The Fox executives had a couple tricks up their sleeves in order to convince Brady to sign with Fox, including a video with highlights from his career. The clip showed multiple Super Bowls that Brady won during his time, and those contests happened to be on Fox. 

"To build a new legacy, become the face of a network dedicated to giving you every resource possible to succeed with it," the narrator in the video said. 

The pitch worked. After two months of negotiations, Brady and Fox ultimately came to an agreement on the monster contract. 

How much does Tom Brady make per game?

With an 18-week season, three rounds of the playoffs, and Super Bowl 59, Brady could call up to 22 games during the 2024 NFL season. If he does, he would earn around $1.7 million per game.

If Brady does not call a game during each week of the season, the figure could approach $2.0 million per game, though Brady will almost certainly be on the call for at least 20 games this season.

MORE:  Why Tom Brady waited until regular season to make booth debut

Tom Brady career earnings

Brady earned over $332.9 million over his 23-year NFL career, per Spotrac . The figure rounds out to an average of around $14.5 million annually.

The most lucrative season of Brady's career was 2021 when he earned $39.4 million with Tampa Bay. Brady's age-44 season with the Buccaneers was the only season of his career in which he earned more than his reported annual salary with Fox.

Tom Brady net worth

Brady is worth $300 million, according to Celebrity Net Worth . When considering Brady's endorsements, investments, and business endeavors, the true figure may be harder to identify. Brady's Fox salary will only add to an impressive portfolio that continues to grow.

Gilbert McGregor is an NBA content producer for The Sporting News.

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A teacher caught students using ChatGPT on their first assignment to introduce themselves. Her post about it started a debate.

• A teacher said students used ChatGPT for an introductory essay in an ethics and technology class.
• Professor Megan Fritts shared her concerns on X, sparking a debate on AI's role in education.
• Educators are divided on AI's impact, with some feeling it undermines critical-thinking skills.

Professor Megan Fritts' first assignment to her students was what she considered an easy A: "Briefly introduce yourself and say what you're hoping to get out of this class."

Yet many of the students enrolled in her ethics and technology course decided to introduce themselves with ChatGPT .

"They all owned up to it, to their credit," Fritts told Business Insider. "But it was just really surprising to me that — what was supposed to be a kind of freebie in terms of assignments — even that they felt compelled to generate with an LLM."

When Fritts, an assistant professor of philosophy at the University of Arkansas at Little Rock, shared the experience on X, formerly Twitter, in a post that has now garnered 3.5 million views, some replies argued that students would obviously combat " busywork " assignments with similarly low-effort, AI-generated answers.

Second week of the semester and I've already had students use (and own up to using) ChatGPT to write their first assignment: "briefly introduce yourself and say what you're hoping to get out of this class". They are also using it to word the *questions they ask in class*. — Megan Fritts (@freganmitts) August 28, 2024

Fritts said that the assignment was not only to help students get acquainted with using the online  Blackboard  discussion-board feature, but she was also "genuinely curious" about the introductory question.

"A lot of students who take philosophy classes, especially if they're not majors, don't really know what philosophy is," she said. "So I like to get an idea of what their expectations are so I can know how to respond to them."

The AI-written responses, however, did not reflect what the students, as individuals, were expecting from the course but rather a regurgitated description of what a technology ethics class is, which clued Fritts in that they were generated by ChatGPT or a similar chatbot.

"When you're a professor, and you've read dozens and dozens of AI essays, you can just tell," she said.

The calculator argument — why ChatGPT is not just another problem-solving tool

Many of the commenters who defended using AI likened ChatGPT for writing to using a calculator for math problems. But Fritts said that viewing LLMs as just another problem-solving tool is a "mistaken" comparison, especially in the context of humanities.

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Calculators reduce the time needed to solve mechanical operations that students are already taught to produce a singular correct solution. But Fritts said that the aim of humanities education is not to create a product but to "shape people" by "giving them the ability to think about things that they wouldn't naturally be prompted to think about."

"The goal is to create liberated minds — liberated people — and offloading the thinking onto a machine, by definition, doesn't achieve that," she said.

Lasting impacts on students

Beyond cheating on papers, Fritts said that students have, in general, become compromised in their thinking ability — and they've noticed.

"They're like, 'When I was young, I used to love to read, and now I can't. I can't even get through the chapter of a book,'" she said. "'My attention span is so bad, and I know it's from looking at my phone, always having YouTube or TikTok on.' And they're sad about it."

Fritts said that technology addiction has affected students' general agency when interacting with information. She  cited a 2015 paper  by the professor Charles Harvey, the chair of the philosophy and religion department at the University of Central Arkansas, which examines the effects that interactions with technology could have had on human agency and concentration.

Harvey wrote that two different eye-tracking experiments indicated that the vast majority of people skim online text quickly, "skipping down the page" rather than reading line by line. Deep reading of paper texts is being snipped into "even smaller, disconnected" thoughts.

"The new generations will not be experiencing this technology for the first time. They'll have grown up with it," Fritts said. "I think we can expect a lot of changes in the really foundational aspects of human agency, and I'm not convinced those changes are going to be good."

Teachers are getting tired

Fritts acknowledged that educators have some obligation to teach students how to use AI in a productive and edifying way. However, she said that placing the burden of fixing the cheating trend on scholars teaching AI literacy to students is "naive to the point of unbelievability."

"Let's not deceive ourselves that students are using AI because they're just so psyched about the new tech, and they're not sure of what the right way to use it in the classroom," Fritts said.

"And I'm not trying to slam them," she added. "All of us are inclined to take measures to make things easier for us."

But Fritts also feels just as "pessimistic" about the alternative solution — educators and institutions forming a "united front" in keeping AI out of the classroom.

"Which isn't going to happen because so many educators are now fueled by sentiments from university administration," Fritts said. "They're being encouraged to incorporate this into the curriculum."

At least 22 state departments of education have released official guidelines for AI use in schools, The Information recently reported . A 2024 survey by EdWeek Research Center found that 56% of over 900 educators anticipated AI use to rise — and some are excited about it.

Curby Alexander, an associate education professor at Texas Christian University, previously told BI that he uses AI to help brainstorm ideas and develop case studies "without taking up a lot of class time."

Arizona State University's Anna Cunningham, a dean's fellow, and Joel Nishimura, an associate professor in the mathematical and natural sciences department, wrote  an op-ed  encouraging having students teach ChatGPT agents with programmed misunderstandings.

"With this, we are on the cusp of being able to give all students as many opportunities as they want to learn by teaching," they wrote.

OpenAI even partnered with Arizona State University to offer students and faculty full access to ChatGPT Enterprise for tutoring, coursework, research, and more.

But many educators remain skeptical. Some professors have even reverted back to pen and paper to combat ChatGPT usage, but Fritts said many are tired of trying to fight the seemingly inevitable. And students are left in the middle of education and AI's love-hate relationship.

"I think it, understandably, creates a lot of confusion and makes them feel like the professors who are saying 'Absolutely not' are maybe philistines or behind the times or unnecessarily strict," Fritts said.

Fritts is not the only professor voicing concerns about AI use among students. In a Reddit thread titled " ChatGPT: It's getting worse ," several users who identified as professors lamented increased AI usage in classrooms, especially in online courses. One commented, "This is one reason I'm genuinely considering leaving academia."

A professor in another post that received over 600 upvotes said that ChatGPT was "ruining" their love of teaching. "The students are no longer interpreting a text, they're just giving me this automated verbiage," they wrote. "Grading it as if they wrote it makes me feel complicit. I'm honestly despairing."

Watch: What is ChatGPT, and should we be afraid of AI chatbots?

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Assistant(e) Administratif(ve) et Finanicer(ère)

Advertised on behalf of.

Bangui, avec déplacements dans l’arrière-pays, CENTRAL AFRICAN REPUBLIC

Type of Contract :

Service Contract

Starting Date :

Application deadline :.

16-Sep-24 (Midnight New York, USA)

Post Level :

Duration of initial contract :.

12 mois renouvelable

Time left :

Languages required :.

English   French  

Expected Duration of Assignment :

UNDP is committed to achieving workforce diversity in terms of gender, nationality and culture. Individuals from minority groups, indigenous groups and persons with disabilities are equally encouraged to apply. All applications will be treated with the strictest confidence. UNDP does not tolerate sexual exploitation and abuse, any kind of harassment, including sexual harassment, and discrimination. All selected candidates will, therefore, undergo rigorous reference and background checks.

Porte-drapeau mondial des femmes et des filles, l’entité des Nations Unies pour l’égalité des sexes et l’autonomisation des femmes (ONU Femmes) a été créée en 2010 pour accélérer les progrès dans la réponse apportée aux besoins des femmes partout dans le monde.

ONU Femmes soutient les États membres des Nations Unies dans l’adoption de normes internationales pour parvenir à l’égalité des sexes et travaille avec les gouvernements et la société civile à concevoir les lois, les politiques, les programmes et les services nécessaires pour veiller à l’application effective de ces normes et à ce que les femmes et les filles en bénéficient, partout dans le monde. ONU Femmes coordonne et promeut le travail réalisé par le système des Nations Unies en faveur de l’égalité des sexes et dans le cadre des discussions et accords relatifs au programme à l’horizon 2030.

En République Centrafricaine, ONU Femmes travaille depuis Août 2015 avec le Gouvernement, les Institutions Nationales, les institutions académiques, la société civile et les médias et l’équipe pays des Nations unies pour faire progresser l’agenda d’égalité des sexes et d’autonomisation de la femme par la mise en œuvre des engagements nationaux et internationaux. Le mouvement féminin se mobilise de manière dispersée pour la revendication des droits des femmes. Les liens entre les groupements et associations de défense des droits des femmes à la base et les réseaux nationaux des femmes, doivent être renforcés, afin d’augmenter la représentativité et assurer que les plaidoyers de haut niveau soient plus inclusifs et correspondent aux besoins spécifiques des femmes et filles centrafricaines de l’arrière-pays. Malgré l’existence d’une Politique Nationale d’Egalité et d’Equité (PNPEE) révisée pour la période 2019-2024, et l’institutionnalisation de points focaux genre (PFG) dans tous les Départements Ministériels, la capacité de mobilisation et de coordination genre du MPGPFFE demeure faible.

Dans le cadre de mise en œuvre de sa Note Stratégique en Centrafrique, ONU Femmes a bénéficié de la Délégation de l’Union Européenne un financement pour la mise en œuvre du Projet « MOUNGO MABOKO - Appui au Gouvernement de la République centrafricaine pour la promotion de l’égalité de genre et l’autonomisation des femmes » pour une durée de trois ans qui vise, entre autres, le renforcement des mécanismes nationaux de coordination et le suivi de tous les programmes et projets ainsi que les mécanismes de coordination de terrain des interventions du secteur genre, famille et enfant. Afin faciliter la mise en œuvre des activités du projet, ONU Femmes Centrafrique cherche à recruter un(e) Un(e) Assistant(e) à la Coordination pour appuyer l’appuyer l’équipe de coordination du projet.

Sous la supervision du Coordonnateur national de programme et en collaboration avec l’Associée aux finances du Bureau ONU Femmes, l’Assistant(e) Administratif(ve) et Financier(ère) sera chargé/e d’apporter un appui à la gestion financière du projet Moungo Maboko. Il/elle assistera le Coordonnateur national de programmes dans la mise en œuvre des activités.

Duties and Responsibilities

Appui à la préparation et la mise en œuvre du Projet

• Contribuer à l’élaborer du Plan de Travail, des rapports et Compte rendus des réunions ;
• Assurer un contrôle adéquat des documents à l’appui du paiement des activités du projet ;
• Examiner les dépenses effectuées sur le projet ;
• Préparer les rapports et compte rendu des activités du projet et des réunions des mécanismes de coordination que le projet appuie;
• Fournir un appui pour l’organisation et le soutien logistique des missions des activités du projet ;
• Faire une synthèse des meilleures pratiques et des enseignements tirés sur la coordination à l’occasion des rapports annuels et des revues à mi-parcours du plan de travail du Bureau d’ONU Femmes.

Gestion financière :

• Assister dans l’élaboration du budget du plan de travail annuel et des budgets des activités du projet ;
• Enregistrer et assurer le suivi des transactions financières dans Quantum ;
• Préparer les réquisitions et demandes de paiement ;
• Assister l’équipe du projet dans l’élaboration du budget lié au plan de travail annuel et à la mise en œuvre des activités du projet ;
• Préparer et suivre les dossiers d’engagement des dépenses et de paiement des OSC féminines, bénéficiaires du projet ;
• Appuyer l’Assistant technique dans l’établissement des états financiers, y compris les états des justifications des dépenses ;
• Assurer le paiement des frais relatifs aux ateliers ;
• Elaborer les requêtes de paiement, honoraires et per diem des consultants et des experts, de règlement des factures des fournisseurs et autre ;
• Elaborer les plans annuels d’achat et en faire le suivi ;
• Suivre les dossiers d’acquisition des biens et des services ;
• Contribuer à l’élaboration des rapports financiers annuels du projet ;
• Maintenir et classer les fichiers et dossiers relatifs aux documents administratifs et comptables du projet ;
• Assurer l´archivage des documents administratifs et comptables du projet ;
• Remplir toute autre tâche demandée par le supérieur hiérarchique.

Gestion administrative :

• Contribuer à la préparation et la rédaction des correspondances relatives aux affaires courantes et assurer leur transmission à leurs destinataires ;
• Rédiger les rapports des réunions de coordination et de l’équipe organisées au sein du projet et se rassurer que les comptes-rendus soient envoyés à tous les participants ;
• Assurer l’archivage et le classement des dossiers et des documents de travail, y compris électroniques ;
• Enregistrer, numériser, archiver les documents reçus et expédiés ;
• Appuyer les collègues de l’équipe du projet dans les aspects administratifs liés à la mise en œuvre du projet (réunions de coordination, ateliers, visites conjointes, formations et/ou retraites entre autres) ; Cela peut comprendre les réservations de voyages et d'hôtels, salles de conférence et réunion, préparation d'autorisations de voyage et autorisations de sécurité.

Le titulaire s'acquitte d'autres tâches relevant de son profil fonctionnel qui sont jugées nécessaires au bon fonctionnement du Bureau et de l'Organisation.

Responsabilités de supervision et de gestion : Le titulaire du poste sera dans une équipe de sept membres de l’unité Coordination stratégique. Sous la supervision directe du Coordonnateur National de Programme, il/elle travaille en collaboration avec l’Assistante au Programme et l’Associée aux Finances.

Competencies

Valeurs fondamentales :

• Respect de la diversité
• Professionnalisme

Compétences clés :

• Sensibilisation et sensibilité aux questions de genre
• Responsabilité
• Résolution créative de problèmes
• Communication efficace
• Inclusive Collaboration
• Engagement des parties prenantes
• Donner l'exemple

Veuillez consulter ce lien pour plus d'informations sur les valeurs et compétences fondamentales d'ONU Femmes :

https://www.unwomen.org/en/about-us/employment/application-process#_Values

COMPÉTENCES FONCTIONNELLES :

• Capacités à gérer les données, le calendrier, les documents, les correspondances, les rapports et à maintenir le protocole et le flux d’informations ;
• Capacité à effectuer des travaux de nature confidentielle ;
• Aptitude à exécuter les tâches quotidiennes de façon efficace, systématique et fiable ;
• Démontrer de bonnes aptitudes de communication écrite et orale ;
• Une bonne connaissance de la thématique genre et d’ONU Femmes ou d’une autre Agence du Système des Nations Unies ;
• Être motivé(e) et démontrer une capacité à poursuivre son développement personnel et à apprendre ;
• Grand sens des responsabilités, grande capacité d’analyse et d’organisation, et grande capacité d’user de la diplomatie dans le traitement des dossiers ;
• Aptitude à communiquer et à travailler sous pression et en équipe dans un environnement multiculturel ;
• Être capable de travailler sur plusieurs tâches en même temps, sous pression et quelquefois sans préavis.

Required Skills and Experience

Education & Certification:

• Une licence ou l'équivalent en sciences économiques, sciences sociales, études de genre, développement ou dans un domaine connexe est requis ; Une certification en genre serait un atout supplémentaire.
• Un diplôme Bac + 2 avec trois années supplémentaires d’expérience dans le domaine seraient acceptés ;
• Une certification en genre serait un atout supplémentaire.

Expérience:

• Au moins deux années d'expérience professionnelle à des niveaux de responsabilité de plus en plus élevés dans les domaines de conception, planification, mise en œuvre, le suivi et évaluation de projets de développement ;
• Au moins quatre ans d'expériences techniques dans les questions de genre, d’autonomisation de la femme ;
• Une expérience de la coordination et de la liaison avec le gouvernement, les Partenaires techniques et financiers, le secteur privé et la société civile est un atout.
• Une expérience dans la direction / la gestion d'interventions soutenant les organisations et les réseaux de femmes de la société civile est un atout majeur.
• Solides compétences informatiques. Expérience dans l'utilisation d'applications informatiques et de progiciels (MS Word, Excel, Quantum, etc.) est un atout
• Une expérience de travail à ONU Femmes ou dans d’autres entités du système des Nations Unies est un atout.
• Maîtrise parfaite du français, langue de communication en Centrafrique.
• La connaissance de l'anglais est un atout.

Application

La durée totale de la mission est de six mois à compter de la date de signature du contrat. Le travail sera conduit auprès au bureau ONU Femmes. Conformément au “chronogramme : livrables clés, tous les paiements seront libérés au Consultant(e) à la suite de l'examen des livrables / travaux soumis à ONU Femmes WCARO et approuvés par la Conseillère régional Femmes Paix, sécurité et action humanitaire d’ONU Femmes.

• CV détaillé et P11 bien renseignés et signés. P11 (à télécharger sur) :

https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/About%20Us/Employment/UN-Women-P11-Personal-History-Form.doc  )

• Une lettre de motivation

A ONU Femmes, nous nous engageons à créer un environnement de diversité, d'inclusion et de respect mutuel. ONU Femmes recrute, emploie, forme, rémunère et promeut sans tenir compte de la race, de la religion, de la couleur, du sexe, de l'identité sexuelle, de l'orientation sexuelle, de l'âge, des capacités, de l'origine nationale ou de toute autre base couverte par la loi appropriée. Tout emploi est décidé sur la base des qualifications, des compétences, de l'intégrité et des besoins de l'organisation.

Si vous avez besoin d'un aménagement raisonnable pour soutenir votre participation au processus de recrutement et de sélection, veuillez inclure cette information dans votre candidature.

ONU Femmes applique une politique de tolérance zéro à l'égard des comportements incompatibles avec les buts et objectifs des Nations Unies et d'ONU Femmes, notamment l'exploitation et les abus sexuels, le harcèlement sexuel, l'abus d'autorité et la discrimination.  Tous les candidats sélectionnés devront adhérer aux politiques et procédures d'ONU Femmes et aux normes de conduite attendues du personnel d'ONU Femmes et seront donc soumis à une vérification rigoureuse des références et des antécédents. (La vérification des antécédents comprendra la vérification des qualifications académiques et des antécédents professionnels. Les candidats sélectionnés peuvent être tenus de fournir des informations supplémentaires pour compléter la vérification des antécédents).

Note :  En juillet 2010, l'Assemblée générale des Nations Unies a créé ONU Femmes, l'entité des Nations Unies pour l'égalité des sexes et l'autonomisation des femmes. La création d'ONU Femmes fait partie du programme de réforme de l'ONU, qui vise à mettre en commun les ressources et les mandats pour un plus grand impact. Elle fusionne et s'appuie sur l'important travail de quatre parties du système des Nations Unies auparavant distinctes (DAW, OSAGI, INSTRAW et UNIFEM), qui se concentraient exclusivement sur l'égalité des sexes et l'autonomisation des femmes.