(Ebook) Examples & Explanations For Contracts by Brian A Blum ISBN 9781454868415, 1454868414 PDF Download
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EDITORIAL ADVISORS
Vicki Been
Elihu Root Professor of Law
New York University School of Law
Erwin Chemerinsky
Dean and Distinguished Professor of Law
University of California, Irvine, School of Law
Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago
Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School
James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School
Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School
Kent D. Syverud
Dean and Ethan A. H. Shepley University Professor
Washington University School of Law
4
5
6
Copyright © 2017 Brian A. Blum.
Published by Wolters Kluwer in New York.
Wolters Kluwer Legal & Regulatory U.S. serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products.
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To Bryce, Kylie, William,
9
Summary of Contents
Contents
Preface
Acknowledgments
Chapter 1 The Meaning of “Contract” and the Basic Attributes of the Contractual Relationship
Chapter 2 Facets of the Law of Contract and the Source of Its Rules, Processes, and Traditions
Chapter 3 The Doctrine of Precedent and a Contract Case Analysis
Chapter 4 The Objective Test and Basic Principles of Offer and Acceptance
Chapter 5 Standard Form Contracts and Contracts Through Electronic Media
Chapter 6 Mismatching Standard Terms: The “Battle of the Forms” Under UCC §2.207
Chapter 7 Consideration
Chapter 8 Promissory Estoppel as the Basis for Enforcing Promises
Chapter 9 Unjust Enrichment, Restitution, and “Moral Obligation”
Chapter 10 Interpretation and Construction: Resolving Meaning and Dealing with Uncertainty in
Agreements
Chapter 11 The Statute of Frauds
Chapter 12 The Parol Evidence Rule
Chapter 13 The Judicial Regulation of Improper Bargaining and of Violations of Law and Public Policy
Chapter 14 Incapacity
Chapter 15 Mistake, Impracticability, and Frustration of Purpose
Chapter 16 Conditions and Promises
Chapter 17 Breach and Repudiation
Chapter 18 Remedies for Breach of Contract
Chapter 19 Assignment, Delegation, and Third-Party Beneficiaries
Glossary
Table of Cases
Table of Statutes
Index
10
Contents
Preface
Acknowledgments
Chapter 1 The Meaning of “Contract” and the Basic Attributes of the Contractual Relationship
§1.1 Introduction
§1.2 The Legal Meaning of “Contract”
§1.2.1 An Oral or Written Agreement Between Two or More Persons
§1.2.2 An Exchange Relationship
§1.2.3 Promise
§1.2.4 Legal Recognition of Enforceability
§1.3 Contract as a General Body of Law Applicable to Diverse Transactions
§1.4 The Fundamental Policies and Values of Contract Law
§1.4.1 Freedom of Contract
§1.4.2 The Morality of Promise—Pacta Sunt Servanda
§1.4.3 Accountability for Conduct and Reliance
§1.4.4 Commercial and Social Values
Chapter 2 Facets of the Law of Contract and the Source of Its Rules, Processes, and Traditions
11
§2.7.3 The Influence of Article 2 in Cases Involving Contracts Other Than
Sales of Goods
§2.8 What Is the Restatement (Second) of Contracts?
§2.9 A Transnational Perspective on Contract Law
Chapter 4 The Objective Test and Basic Principles of Offer and Acceptance
12
§4.6.1 Rejection
§4.6.2 Counteroffer
§4.6.3 The Offeror’s Death or Mental Disability
§4.6.4 Revocation
§4.7 The Nature and Effect of Acceptance
§4.8 The Effect of Inconsistency Between the Offer and the Response: Counteroffer
§4.9 The Mode of Acceptance
§4.10 Inadvertent Acceptance and Silence or Inaction as Acceptance
§4.10.1 Inadvertent Acceptance
§4.10.2 Acceptance by Silence or Inaction
§4.11 The Effective Date of Acceptance and the “Mailbox” Rule
§4.11.1 The Traditional Rule
§4.11.2 Application of the Rule to Electronic Media
§4.12 Acceptance by Promise or Performance: Bilateral and Unilateral Contracts
§4.12.1 The Distinction in Perspective
§4.12.2 The Offer for a Bilateral Contract
§4.12.3 The Offer for a Unilateral Contract
§4.12.4 When the Offer Does Not Clearly Prescribe Promise or Performance
as the Exclusive Mode of Acceptance
§4.12.5 Acceptance by a Performance That Cannot Be Accomplished Instantly
§4.12.6 Notice When an Offer Is Accepted by Performance
§4.12.7 Reverse Unilateral Contracts
§4.13 Irrevocable Offers: Options and Firm Offers
§4.13.1 Introduction
§4.13.2 Options and Consideration
§4.13.3 The Effect of an Option
§4.13.4 Firm Offers Under UCC §2.205
§4.14 A Transnational Perspective on Offer and Acceptance
§5.1 Introduction
§5.2 The Process and Terminology of Standard Contracting
§5.3 Conspicuousness, Notice, and Reasonable Expectations
§5.4 The Problem of Adhesion and Unconscionability in Standard Contracts
§5.5 “Cash Now, Terms Later”: Deferred Communication of Terms and Rolling
Contracts
§5.5.1 Deferred Communication of Terms
§5.5.2 Rolling Contracts
§5.6 Modification of Standard Terms
§5.7 Statutory Recognition of Electronic Contracting
13
§5.8 Contracting by Automated Means
§5.9 Online Auctions
Chapter 6 Mismatching Standard Terms: The “Battle of the Forms” Under UCC §2.207
Chapter 7 Consideration
14
§7.5.2 The Justification for the Rule Where the Duty Is Owed to the
Promisor: Coerced Modifications
§7.5.3 The Abolition of the Preexisting Duty Rule in Relation to
Modifications Under Article 2
§7.5.4 Modifications in Light of Supervening Difficulty
§7.5.5 Preexisting Duty to a Third Party
§7.6 Consideration in an Agreement to Settle a Disputed Claim or Defense
§7.7 The Measurement of Detriment: Adequacy of Consideration
§7.7.1 The General Rule: Courts Are Not Concerned with Adequacy of
Consideration
§7.7.2 Inadequacy of Consideration as the Result of Unfair Bargaining
§7.7.3 Sham or Nominal Consideration
§7.7.4 Nominal Consideration in Options
§7.8 Past Performance
§7.9 The Quality of a Promise as Consideration: “Mutuality of Obligation,” Illusory,
Conditional, and Alternative Promises
§7.9.1 Mutuality and Illusory Promises
§7.9.2 Interpretation and the Use of Implied Terms to Cure an Apparently
Illusory Promise
§7.9.3 “Mutuality” in Requirements and Output Contracts Under UCC
§2.306
§7.9.4 Conditional Promises
§7.9.5 Conditions of Satisfaction
§7.9.6 Promises of Alternative Performances
§8.1 Introduction
§8.2 The Nature of Promissory Estoppel as an Independent Basis of Relief or as a
Consideration Substitute
§8.3 The Difference in Remedial Emphasis Between Contract and Promissory Estoppel
§8.4 An Introduction to Equitable Estoppel and Its Link to Promissory Estoppel
§8.5 The Range of Promissory Estoppel: Gifts and Commercial Transactions
§8.6 The Elements of Promissory Estoppel
§8.6.1 Introduction and Overview of the Elements
§8.6.2 A Promise Must Have Been Made
§8.6.3 The Promisor Should Reasonably Have Expected the Promise to
Induce Action or Forbearance by the Promisee
§8.6.4 The Promise Must Have Induced Justifiable Action or Forbearance by
the Promisee
§8.6.5 The Promise Is Binding If Injustice Can Be Avoided Only by Its
15
Enforcement
§8.7 The Remedy When Promissory Estoppel Is Applied
§8.8 Charitable Pledges and Promissory Estoppel
§8.9 Promissory Estoppel as a Means of Enforcing Promises Made in Negotiations
§8.10 Promissory Estoppel and At-Will Employment Agreements
§8.11 Reliance on an Option Without Consideration: The Application of Promissory
Estoppel to Promises of Irrevocability
§8.12 A Transnational Perspective on Promissory Estoppel
§9.1 Introduction
§9.2 Unjust Enrichment, the Basis for Restitution
§9.3 The Relationship Between Unjust Enrichment and Contract
§9.3.1 Restitution as an Alternative Remedy When a Valid Contract Has
Been Breached
§9.3.2 Restitution When a Contract Has Been Rescinded
§9.3.3 Restitution When a Benefit Is Conferred Pursuant to an Invalid or
Unenforceable Contract
§9.3.4 Restitution When a Benefit Is Conferred on the Strength of a Promise
Without Consideration
§9.3.5 Restitution in Cases When No Contractual Interaction Occurred
§9.4 The Meaning of “Quasi-Contract”
§9.4.1 Quasi-Contract—a Contract “Implied in Law”
§9.4.2 Quasi-Contract Distinguished from a Contract Implied in Fact
§9.5 The Elements of Unjust Enrichment
§9.5.1 Enrichment
§9.5.2 When Is Enrichment Unjust?
§9.6 Measurement of Benefit
§9.6.1 The Remedial Aim of Restitution
§9.6.2 Alternative Methods for Measuring Enrichment
§9.6.3 Market Value
§9.6.4 The Recipient’s Net Gain
§9.6.5 Choosing Among Market Value, Objective Net Gain, or Subjective
Net Gain
§9.7 “Moral Obligation” and the Material Benefit Rule
§9.7.1 Introduction
§9.7.2 The Role of the Doctrine of “Moral Obligation” and the Development
of the Material Benefit Rule
§9.7.3 The Traditional Scope of the Doctrine of “Moral Obligation”
§9.7.4 The Broad “Material Benefit” Rule
16
Chapter 10 Interpretation and Construction: Resolving Meaning and Dealing with Uncertainty in
Agreements
§11.1 Introduction
§11.2 The First Inquiry: Is the Contract of a Type That Falls Within the Statute?
§11.2.1 Contracts for the Sale of Land or an Interest in Land
§11.2.2 Contracts That Cannot Be Performed Within a Year
§11.2.3 Contracts for the Sale of Goods
17
§11.2.4 Contracts to Answer for the Debt or Obligation of Another
§11.2.5 Contracts of Executors or Administrators to Answer for the Duty of
Their Decedents
§11.2.6 Contracts upon Consideration of Marriage
§11.3 The Second Inquiry: If the Statute Applies, Is the Contract Reflected in a Writing
That Satisfies Its Requirements?
§11.3.1 A Written (Recorded) Memorandum
§11.3.2 The Content of the Memorandum
§11.3.3 Signature
§11.4 The Third Inquiry: If the Statute Applies and Is Not Complied with, Does the
Oral Contract Fall Within Any of Its Exceptions?
§11.4.1 The Part Performance Exception
§11.4.2 The Judicial Admission Exception
§11.4.3 The Protection of Reliance: Estoppel and Promissory Estoppel
§11.5 The Impact of Noncompliance with the Statute
§11.6 The Effect of the Statute of Frauds on Modifications of a Contract
§11.7 A Transnational Perspective on the Statute of Frauds
§12.1 The Application and Basic Purpose of the Parol Evidence Rule
§12.1.1 A Written or Recorded Agreement
§12.1.2 The Relationship Between the Parol Evidence Rule and Interpretation
§12.2 A Basic Statement of the Rationale and Content of the Rule
§12.3 What Is Parol Evidence?
§12.3.1 The Meaning of “Parol”
§12.3.2 Terms Allegedly Agreed to Prior to the Written Contract
§12.3.3 Terms Allegedly Agreed to Contemporaneously with the Written
Contract
§12.3.4 Evidence of Subsequent Agreement
§12.3.5 Summary of the Scope of the Parol Evidence Rule
§12.4 A Closer Look at the Purpose and Premise of the Parol Evidence Rule
§12.5 The Degree of Finality of the Writing: Total and Partial Integration
§12.6 The Process of Dealing with Parol Evidence
§12.7 Determining the Question of Integration
§12.8 Ambiguity or Indefiniteness in an Integrated Writing
§12.9 Distinguishing Consistency from Contradiction
§12.10 The Effect of the Rule on Evidence of Course of Performance, Course of Dealing,
and Trade Usage
§12.11 The Collateral Agreement Rule
§12.12 Exceptions to the Parol Evidence Rule: Evidence to Establish Grounds for
18
Avoidance or Invalidity or to Show a Condition Precedent
§12.12.1 The Exception Relating to the Validity or Voidability of the Contract
§12.12.2 The False Recital Exception
§12.12.3 The Condition Precedent Exception
§12.13 Restrictions on Oral Modification
§12.14 A Transnational Perspective on the Parol Evidence Rule
Chapter 13 The Judicial Regulation of Improper Bargaining and of Violations of Law and Public Policy
§13.1 Introduction
§13.2 The Objective Test and the Viability of Apparent Assent
§13.3 General Note on Remedy: Avoidance and Restitution, Adjustment of the Contract,
or Damages
§13.4 The Nature and Relationship of the Doctrines Regulating Bargaining
§13.5 Misrepresentation Generally: The Meaning of “Misrepresentation” and the
Distinction Between Fraudulent and Nonfraudulent Misrepresentations
§13.5.1 The Distinction Between Fraudulent, Negligent, and Innocent
Misrepresentations
§13.5.2 The Application of the Parol Evidence Rule to Misrepresentations
Made Outside a Written Contract
§13.6 Fraudulent Misrepresentation
§13.6.1 Introduction
§13.6.2 Fact, Opinion, Prediction, and Promise
§13.6.3 Types of Fraudulent Misrepresentation: Affirmative Statements,
Concealment, and Nondisclosure
§13.6.4 Knowledge of Falsity and Intent to Induce the Contract
§13.6.5 Materiality
§13.6.6 Justifiable Inducement
§13.6.7 Injury and Remedy
§13.7 Negligent or Innocent Misrepresentation
§13.8 Duress
§13.8.1 The Nature of Duress
§13.8.2 The Threat
§13.8.3 Impropriety
§13.8.4 Inducement
§13.8.5 Remedy
§13.9 Duress in the Modification of an Existing Contract
§13.9.1 Consideration Doctrine
§13.9.2 Common Law Duress Doctrine in Relation to Modifications
§13.9.3 Modification Under UCC Article 2
§13.9.4 The Enforcement of Modifications Despite an Absence of
19
Consideration
§13.10 Undue Influence
§13.11 Unconscionability
§13.11.1 The Role of Unconscionability
§13.11.2 The Nature and Origins of Unconscionability
§13.11.3 The Elements of Unconscionability
§13.11.4 Procedural Unconscionability
§13.11.5 Substantive Unconscionability
§13.11.6 The Remedy for Unconscionability
§13.11.7 A Final Note on the Temptation to Overuse Unconscionability
Doctrine
§13.12 Unconscionability and Adhesion in Standard Contracts
§13.12.1 The Role of Adhesion in Unconscionability Analysis
§13.12.2 Terms Made Available Only After the Contract Has Been Entered
§13.12.3 Adhesion and Unconscionability in Relation to Arbitration Provisions
§13.13 Policing Contracts for Illegality or Contravention of Public Policy
§13.13.1 Illegality, Public Policy, and Freedom of Contract
§13.13.2 Illegal Contracts
§13.13.3 Contracts Contrary to Public Policy
§13.14 A Transnational Perspective on Policing Doctrines
Chapter 14 Incapacity
§14.1 The Scope and Focus of the Doctrines Discussed in This Chapter
§14.2 Minority
§14.2.1 The Basis and Nature of a Minor’s Contractual Incapacity
§14.2.2 Situations in Which a Minor May Incur Legal Liability
§14.2.3 Restitution or Other Relief Following Disaffirmation
§14.2.4 Minors’ Internet Contracts
§14.3 Mental Incapacity
§14.3.1 The Basis and Nature of Avoidance Due to Mental Incapacity
§14.3.2 The Test for Mental Incapacity: Cognitive and Motivational Disorders
§14.3.3 Proving Mental Incapacity
§14.3.4 Distinguishing Actionable Mental Incapacity from Nonactionable
Incompetence or Infirmity
§14.3.5 Avoidance and Its Consequences
§14.3.6 Incapacity Induced by Alcohol or Drug Abuse
§15.1 The Common Themes and the Differences Between Mistake, Impracticability, and
20
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FINIS
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AN ANALYSIS OF FEVER;
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A LIST OF ABERNETHY'S WORKS.
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November 1856.
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