Introduction to Contracts and Restitution

, by Frey, Martin A.; Bitting, Terry H.; Frey, Phyllis Hurley

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ISBN: 9780314023216 | 0314023216
Cover: Hardcover
Copyright: 9/1/1993

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Supplemental Materials

Table of Figures

xiii

Table of Cases

Preface

xvii

INTRODUCTION A Road Map for Analyzing the Law of Contracts and Restitution

(15)

A Road Map for the Law of Contracts

(1)

Determining the Applicable Law (Choice of Law)

(1)

Contract Formation

(2)

The Offer

(1)

The Acceptance

(1)

Contracts That Are Unenforceable

(1)

Performance and Breach of the Contract

(2)

Plaintiff's Remedies for the Defendant's Breach of Contract

(1)

Third Party Interests

(2)

A Road Map for the Law of Restitution

(5)

PART I Step One: Determining the Applicable Law (Choice of Law)

(22)

Introduction Three Issues in the Choice of Law

(2)

Selecting the Rules of the Game

(19)

Selecting the Rules When More than One State Has an Interest in the Transaction

(1)

Selection of the Law by the Parties

(3)

The Law Governing in the Absence of an Effective Choice by the Parties

(2)

Selecting the Rules When a State has Several Sets of Rules

(6)

Selecting the Rules When Federal and State Laws Conflict

(5)

Selecting the Rules of the Game (Choice of Law)

(2)

PART II Step Two: Contract Formation

(148)

Introduction A Transactional Guide to Contract Formation

(3)

The Pre-Offer Phase

(26)

When Does the Pre-Offer Phase End and an Offer Begin?

(1)

When Negotiations End Without an Offer---Is That all There Is?

(1)

Expectation Interest

(1)

Reliance Interest

(1)

Restitution (Unjust Enrichment) Interest

(2)

The Role of Expectation When Negotiations Fail to Produce an Offer

(1)

The Role of Reliance When Negotiations Fail to Produce an Offer

(9)

The Role of Restitution When Negotiations Fail to Produce an Offer

(8)

The Performance of Another's Noncontractual Duty to Supply Necessaries to a Third Person

(1)

Preservation of Another's Life or Health

(2)

The Pre-Offer Phase

(3)

The Offer Phase

(51)

When an Offer Has Been Made (Creating the Power in the Offeree to Contract)

(5)

The Advertisement

(2)

The Auction

(1)

The Joke

(6)

The Ingredients of an Offer---A Promise and Consideration for that Promise

(2)

When a ``Promise'' Is Really a Promise

(8)

The Illusory Promise

(2)

The Indefinite Promise

(5)

Consideration for the Offeror's Promise

(4)

The Promise to Make a Future Gift

(1)

Adequacy of Consideration (the Peppercorn Theory of Contracts)

(1)

Motive as Consideration

(1)

Moral Obligation as Consideration

(1)

Sham Consideration

(1)

Mutuality of Obligation

(1)

The Offeror's Promise Must be Made to Induce the Consideration

(6)

Past Consideration

(1)

Pre-Existing Duty

(4)

Conditions versus Consideration

103

(1)

Alternatives to Classical Consideration

104

(1)

Tinkering with the Classical Doctrine

104

(5)

Reliance as an Alternative to Consideration

109

(9)

The Offer Phase

118

(3)

The Post-Offer/Pre-Acceptance Phase

121

(13)

The Death of an Offer Prior to Acceptance

121

(1)

Death of the Offer by the Offeree's Inaction

122

(1)

Death of the Offer by Revocation of the Offer

122

(3)

Death of the Offer by Rejection of the Offer

125

(1)

Death of the Offer by the Death or Incapacity of the Offeror or the Offeree

126

(1)

The Offer that Refuses to Die

127

(1)

The Classical (Express) Option Contract

127

(1)

The Implied Option Contract

128

(4)

The Post-Offer/Pre-Acceptance Phase

132

(2)

The Acceptance Phase

134

(16)

The Ingredients of an Acceptance---A Promise or Performance and Consideration for that Promise or Performance

135

(1)

The Acceptance Must Be in Response to the Offer

135

(2)

Knowledge of the Offer

135

(1)

Pre-Existing Duty

136

(1)

The Offeree Must Agree to All of the Offeror's Terms

137

(3)

Common Law Mirror Image Rule

137

(1)

The Uniform Commercial Code 2--207

138

(2)

Mismatch: A Mistake in Understanding the Offer

140

(1)

The Offeree Must Notify the Offeror That the Offer Has Been Accepted

141

(1)

The Parties Who Can Accept the Offer

141

(1)

What Method Must be Used to Accept an Offer?

142

(1)

When Is Acceptance Effective?

143

(1)

Is Restitution an Alternative to Acceptance?

144

(3)

The Acceptance Phase

147

(3)

The Post-Acceptance Phase

150

(28)

What Are the Terms of the Contract?

150

(1)

Interpreting the Language of the Contract

151

(5)

Identifying the Terms Included in the Contract

156

(6)

Parol Evidence Rule

156

(6)

Supplying Omitted Terms

162

(1)

Correcting Errors in the Written Contract: Mistake in Integration

163

(4)

Modifying a Contract

167

(2)

Ending a Contract Before It Has Been Fully Performed

169

(1)

Terminating a Contractual Duty When Neither Party Has Fully Performed

169

(1)

Terminating a Contractual Duty When One Party Has Fully Performed

170

(1)

Terminating a Noncontractual Duty

171

(1)

Terminating a Contractual or Noncontractual Duty with a ``Payment in Full'' Check---The Accord and Satisfaction

172

(3)

The Post-Acceptance Phase

175

(3)

Drafting a Contract

178

(10)

Drafting a Better Contract

178

(1)

Draft from an Outline

178

(1)

Be Brief

179

(2)

Simplify the Language

181

(2)

Use Base Verbs and the Active Voice

183

(1)

Avoid Sexist Language

184

(1)

Check for Spelling, Punctuation, and Grammatical Errors

185

(1)

Drafting Exercise

186

(1)

Drafting a Contract

187

(1)

PART III Step Three: Contracts That Are Unenforceable

188

(90)

Introduction Precluding Enforcement of a Contract

189

(1)

Protecting a Class

190

(19)

Minority (Infancy)

190

(1)

Minority as a Defense to a Breach of Contract Action

190

(1)

Restitution for the Minor and the Other Contracting Party

191

(4)

Liability of the Minor for Necessaries

195

(4)

Statutory Variations

199

(1)

The Evolving Case Law

200

(5)

Mental Incapacity

205

(1)

Incapacity Due to Alcohol or Other Drugs

206

(1)

Unenforceable Contracts---Protecting a Class

207

(2)

Protecting a Party Against Overreaching

209

(37)

Unconscionability and Adhesion Contracts

209

(1)

Unconscionability as a Defense to a Breach of Contract Action

210

(10)

Unconscionability as a Cause of Action

220

(5)

Fraud and Misrepresentation

225

(5)

Duress and Undue Influence

230

(10)

Mistake in a Basic Assumption of Fact

240

(3)

Unenforceable Contracts---Protecting a Party Against Overreaching

243

(3)

Protecting the Judicial Process

246

(32)

Illegality

246

(1)

Illegality as a Defense to a Breach of Contract Action

246

(3)

Illegal Subject Matter

247

(1)

Illegal Conduct to Procure a Legal Contract

248

(1)

Illegal Conduct in the Performance of a Legal Contract

249

(1)

Restitution as a Cause of Action

249

(4)

Statute of Frauds

253

(1)

Contracts That Require a Writing and What Constitutes the Writing

254

(5)

Contract Not to Be Performed within One Year

254

(1)

Contract for the Transfer of an Interest in Real Property

255

(2)

Contract for the Sale of Goods for the Price of $500 or More

257

(2)

Circumvention of the Statute of Frauds through Reliance

259

(8)

Restitution as a Cause of Action

267

(1)

Contract That Cannot Be Fully Performed within a Year

267

(1)

Contract for the Transfer of an Interest in Real Property

267

(1)

Forum Selection Provisions

268

(7)

Unenforceable Contracts---Protecting the Judicial Process

275

(3)

PART IV Step Four: Performance and Breach of the Contract

278

(50)

Introduction Types of Breach and Responses

279

(3)

The Defendant's Response To The Plaintiff's Allegation of Breach

282

(46)

No Breach, Compliance

283

(1)

Finding the Terms of the Contract

283

(2)

Condition Precedent, Concurrent Conditions, Condition Subsequent

285

(1)

Restitution as an Action When the Nonoccurrence of a Condition Precludes Performance of the Contract

285

(1)

No Breach, Excuse

286

(1)

Impossibility

286

(4)

Impracticability

290

(5)

Frustration of Purpose

295

(1)

Restitution as a Cause of Action When Nonperformance of the Contract Is Excused

296

(6)

No Breach, Justification

302

(1)

Was the Plaintiff in Breach?

302

(3)

Entire and Divisible Performances

303

(1)

Waiver of a Breach

304

(1)

Estoppel

304

(1)

Was the Defendant's Performance Dependant on the Plaintiff's Performance?

305

(1)

Was the Plaintiff's Performance a Condition Precedent to the Defendent's Performance?

305

(1)

Did the Magnitude of the Plaintiff's Breach Justify the Defendant's Nonperformance?

305

(6)

Restitution as an Action for the Beaching Plaintiff

311

(11)

No Breach, Terminated Duty

322

(1)

Consensual Termination of a Duty

323

(1)

Unilateral Termination of a Duty

323

(1)

Termination of a Duty by Operation of Law

323

(1)

Breach

323

(2)

The Defendant's Response to the Plaintiff's Allegation of Breach

325

(3)

PART V Step Five: Plaintiff's Remedies for the Defendant's Breach of Contract

328

(28)

Introduction Compensation for Breach

329

(2)

Plaintiff's Remedies for the Defendant's Breach of Contract

331

(25)

Protecting Plaintiff's Expectation, Reliance, and Restitution Interests

331

(1)

Expectation Damages

331

(4)

Reliance Damages

335

(1)

Restitution Damages

336

(6)

Expectation as a Remedy for Breach of Contract

342

(7)

Compensatory Damages

343

(3)

Nominal Damages

346

(1)

Injunction and Specific Performance

346

(1)

Cover

347

(1)

Liquidated Damages

347

(1)

Costs and Attorney Fees

348

(1)

Reliance as an Alternative Remedy for Breach of Contract

349

(1)

Restitution as an Alternative Remedy for Breach of Contract

349

(2)

Is a Restitution Action Available for the Plaintiff When the Defendant Has Breached the Contract?

351

(1)

Plaintiff's Remedies for the Defendent's Breach of Contract

352

(4)

PART VI Third Party Interests

356

(45)

Introduction Beyond the Two Contracting Parties

357

(1)

Third Party Interests

358

(43)

Third Party Beneficiary Contracts

358

(14)

The Assignment of Contract Rights and Delegation of Contract Duties

372

(1)

Assignment

372

(12)

Delegation

384

(1)

Substituting and Releasing a Contracting Party: The Novation

385

(8)

Simple Novation---Substitution of Obligors

386

(3)

Simple Novation---Substitution of Obligees

389

(2)

Compound Novation

391

(2)

Third Party's Interference With Existing Contract Rights

393

(5)

Third Party Interests

398

(3)

Glossary

401

(7)

Appendix A: Briefing Cases and Analyzing Statutes

408

(7)

Appendix B: Evaluating a Breach of Contract Case

415

(4)

Appendix C: Uniform Commercial Code---Articles 1 & 2

419

(116)

Index

535

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