Preface |
||||
Acknowledgments |
||||
Chapter 1 |
The Meaning of “Contract” and the Basic Attributes of the Contractual Relationship |
|||
§1.1 |
Introduction |
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§1.2 |
The Legal Meaning of “Contract” |
|||
§1.2.1 |
An Oral or Written Agreement Between Two or More Persons |
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§1.2.2 |
An Exchange Relationship |
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§1.2.3 |
Promise |
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§1.2.4 |
Legal Recognition of Enforceability |
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§1.3 |
Contract as a General Body of Law Applicable to Diverse Transactions |
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§1.4 |
The Fundamental Policies and Values of Contract Law |
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§1.4.1 |
Freedom of Contract |
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§1.4.2 |
The Morality of Promise—Pacta Sunt Servanda |
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§1.4.3 |
Accountability for Conduct and Reliance |
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§1.4.4 |
Commercial and Social Values |
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Chapter 2 |
Facets of the Law of Contract and the Source of Its Rules, Processes, and Traditions |
|
||
§2.1 |
The Purpose of This Chapter |
|||
§2.2 |
The Historical Perspective of Contract Law |
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§2.3 |
Classical and Contemporary Contract Law |
|||
§2.3.1 |
Classical Contract Law |
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§2.3.2 |
Contemporary Contract Law |
|||
§2.4 |
The Meaning of “Common Law” |
|||
§2.4.1 |
“Common Law” Used to Designate Our Legal System as a Whole |
|||
§2.4.2 |
“Common Law” Used to Denote the Judge-Made Component of Our Legal System |
|||
§2.4.3 |
“Common Law” Used to Denote a Process or Approach to Legal Analysis |
|||
§2.5 |
The Distinction Between Law and Equity |
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§2.6 |
State Law Governs Contracts |
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§2.7 |
The Uniform Commercial Code (UCC) |
|||
§2.7.1 |
The UCC as a Uniform Model Statute and State Legislation |
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§2.7.2 |
The Use and Application of UCC Article 2 |
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§2.7.3 |
The Influence of Article 2 in Cases Involving Contracts Other Than Sales of Goods |
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§2.8 |
What Is the Restatement (Second) of Contracts? |
|||
§2.9 |
A Transnational Perspective on Contract Law |
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Chapter 3 |
The Doctrine of Precedent and a Contract Case Analysis |
|
||
§3.1 |
Studying Contract Law Through Appellate Cases |
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§3.2 |
How Judges Make Contract Law: Judicial Precedent |
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§3.2.1 |
What Is Precedent? |
|||
§3.2.2 |
Who Is Bound by Precedent? |
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§3.2.3 |
The Drawbacks of the System of Precedent |
|||
§3.3 |
The Anatomy of a Judicial Opinion |
|||
§3.3.1 |
Ratio Decidendi (Rule or Holding) and Obiter Dictum |
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§3.3.2 |
The Process of Inductive and Deductive Reasoning in the Creation and Application of Legal Rules |
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§3.3.3 |
The Use of Authority and Supporting Rationale in Judicial Opinions |
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§3.4 |
A Transnational Perspective on the Doctrine of Precedent |
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Chapter 4 |
The Objective Test and Basic Principles of Offer and Acceptance |
|
||
§4.1 |
Interpretation and the Objective Test |
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§4.1.1 |
Introduction |
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§4.1.2 |
The Communication of Contractual Intent |
|||
§4.1.3 |
Assent and Accountability: Subjective and Objective Tests of Assent |
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§4.1.4 |
The Substantive and Evidentiary Aspects of the Objective Test |
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§4.1.5 |
The Duty to Read |
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§4.1.6 |
Lack of Serious Intent: Jokes and Bluffs |
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§4.2 |
The Purpose and Application of the Rules of Offer and Acceptance |
|||
§4.2.1 |
Introduction |
|||
§4.2.2 |
When Are Offer and Acceptance Issues Presented? |
|||
§4.2.3 |
The Basic Offer and Acceptance Model at Common Law |
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§4.3 |
The Rules of Offer and Acceptance Applicable in Sales of Goods Under UCC Article 2 |
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§4.4 |
The Nature of an Offer, as Distinct from a Preliminary Proposal |
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§4.5 |
The Expiry of the Offer by Passage of Time |
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§4.5.1 |
The Specified or Reasonable Duration of the Offer |
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§4.5.2 |
The Effect of a Late Attempt to Accept |
|||
§4.6 |
Termination of the Offer for Reasons Other Than Expiry by Lapse of Time |
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§4.6.1 |
Rejection |
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§4.6.2 |
Counteroffer |
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§4.6.3 |
The Offeror’s Death or Mental Disability |
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§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 |
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§4.10.2 |
Acceptance by Silence or Inaction |
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§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 |
|||
Chapter 5 |
Standard Form Contracts and Contracts Through Electronic Media |
|
||
§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 |
|||
§5.8 |
Contracting by Automated Means |
|||
§5.9 |
Online Auctions |
|||
Chapter 6 |
Mismatching Standard Terms: The “Battle of the Forms” Under UCC §2.207 |
|||
§6.1 |
The Scope and Purpose of UCC §2.207 |
|||
§6.1.1 |
The Basic Purpose and Drafting Inadequacies of §2.207 |
|||
§6.1.2 |
The Two Distinct Issues Covered by §2.207: Formation and Confirmation |
|||
§6.1.3 |
The Application of §2.207 to Electronic Communications |
|||
§6.2 |
The Problem Tackled by §2.207: The Common Law “Mirror Image” and “Last Shot” Rules |
|||
§6.3 |
Offer and Acceptance Under §2.207 |
|||
§6.3.1 |
§2.207(1): Acceptance, Rejection, and Counteroffer |
|||
§6.3.2 |
§2.207(2): The Treatment of Proposals in an Acceptance |
|||
§6.3.3 |
§2.207(3): The Effect of Mutual Performance When No Contract Is Formed by the Parties’ Writings |
|||
§6.4 |
Written Confirmation Following an Oral or Informal Contract Under §2.207(1) and (2) |
|||
§6.5 |
A Transnational Perspective on the “Battle of the Forms” |
|||
Chapter 7 |
Consideration |
|||
§7.1 |
Consideration as the Basis of Contract Obligation |
|||
§7.2 |
The Essence and Scope of Consideration |
|||
§7.3 |
The Elements of Consideration: Detriment, Benefit, and Bargained-For Exchange |
|||
§7.3.1 |
What Is a “Detriment”? |
|||
§7.3.2 |
How Does Benefit to the Promisor Fit In? |
|||
§7.3.3 |
The Bargained-For Exchange |
|||
§7.3.4 |
The Distinction Between Bargained-For and Incidental Detriment |
|||
§7.3.5 |
The Distinction Between a Detriment and a Condition of Gift |
|||
§7.4 |
The Purpose and Function of Consideration Doctrine |
|||
§7.4.1 |
Consideration Doctrine in Common Law and Its Absence in Civil Law |
|||
§7.4.2 |
The Formal and Substantive Basis for the Doctrine in Relation to Gratuitous Promises |
|||
§7.4.3 |
Consideration Doctrine in the Commercial Context |
|||
§7.4.4 |
The Flexibility of Consideration Concepts and the Use of the Doctrine for Policing Purposes |
|||
§7.5 |
Detriment and “Pre-Existing Duty” |
|||
§7.5.1 |
The Basic Rule |
|||
§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 Pre-Existing Duty Rule in Relation to Modifications Under Article 2 |
|||
§7.5.4 |
Modifications in Light of Supervening Difficulty |
|||
§7.5.5 |
Pre-Existing 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 |
Promises of Alternative Performances |
|||
Chapter 8 |
Promissory Estoppel as the Basis for Enforcing Promises |
|
||
§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 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 |
|||
Chapter 9 |
Unjust Enrichment, Restitution, and “Moral Obligation” |
|
||
§9.1 |
Introduction |
|||
§9.2 |
Unjust Enrichment, the Basis for Restitution |
|||
§9.3 |
The Relationship Between Unjust Enrichment and Contract |
|||
§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, 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 |
|||
Chapter 10 |
Interpretation and Construction: Resolving Meaning and Dealing with Uncertainty in Agreements |
|||
§10.1 |
Ascertaining the Meaning of an Agreement: Interpretation and Construction |
|||
§10.1.1 |
Introduction to the Process of Interpretation and Construction |
|||
§10.1.2 |
Interpretation as a Question of Fact or Law |
|||
§10.1.3 |
The Sources of Evidence Used in Interpretation |
|||
§10.1.4 |
Some General Rules of Interpretation and Construction |
|||
§10.2 |
Gap Fillers Used to Effectuate the Parties’ Reasonable Intent |
|||
§10.2.1 |
Introduction |
|||
§10.2.2 |
Gap Fillers That Supply General Obligations |
|||
§10.2.3 |
Gap Fillers That Supply More Specific Rights and Duties |
|||
§10.3 |
Terms Construed as a Matter of Policy |
|||
§10.3.1 |
Supplementary Terms That Cannot Be Excluded by Agreement |
|||
§10.3.2 |
The General Obligation of Good Faith and Fair Dealing |
|||
§10.3.3 |
Construed Terms That Can Be Excluded Only by Express or Specific Language |
|||
§10.4 |
The Problem of Indefiniteness in an Agreement |
|||
§10.5 |
Different Causes and Forms of Indefiniteness |
|||
§10.5.1 |
Unclear Terms: Vagueness and Ambiguity |
|||
§10.5.2 |
Omitted Terms |
|||
§10.5.3 |
Terms Left for Future Determination |
|||
§10.6 |
Implication of an Agreement to Negotiate in Good Faith |
|||
§10.7 |
Agreements to Record in Writing |
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§10.8 |
Misunderstanding: Total Ambiguity |
|||
§10.9 |
A Transnational Perspective on Interpretation |
|||
Chapter 11 |
The Statute of Frauds |
|
||
§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 |
|||
§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 |
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§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 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 |
|||
Chapter 12 |
The Parol Evidence Rule |
|||
§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 Avoidance or Invalidity, or to Show a Condition Precedent |
|||
§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 |
What Is a “Fact”? 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 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 |
|||
§13.13.4 |
The Effect of Contracts That Are Illegal or Contrary to Public Policy and the In Pari Delicto Rule |
|||
§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 |
|||
§14.3 |
Mental Incapacity |
|||
§14.3.1 |
The Basis and Nature of Avoidance Due to Mental Incapacity |
|||
§14.3.2 |
The Test for Mental Incapacity |
|||
§14.3.3 |
Avoidance and Its Consequences |
|||
§14.3.4 |
Incapacity Induced by Alcohol or Drug Abuse |
|||
Chapter 15 |
Mistake, Impracticability, and Frustration of Purpose |
|||
§15.1 |
The Common Themes and the Differences Between Mistake, Impracticability, and Frustration of Purpose |
|
||
§15.2 |
The Meaning of Mistake and the Distinction Between Mutual and Unilateral Mistake |
|
||
§15.2.1 |
The Legal Meaning of Mistake: An Error of Fact |
|
||
§15.2.2 |
Mutual and Unilateral Mistake |
|
||
§15.3 |
The Elements of Mutual Mistake |
|
||
§15.4 |
The Elements of Unilateral Mistake |
|||
§15.5 |
Relief for Mistake |
|
||
§15.5.1 |
Avoidance and Restitution |
|
||
§15.5.2 |
Other Relief, Including Reformation |
|
||
§15.6 |
Mistake in Transcription |
|
||
§15.6.1 |
Reformation to Correct Mistakes in Transcription |
|
||
§15.6.2 |
Reformation to Rectify the Unintended Legal Effect of Language |
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§15.7 |
Impracticability of Performance |
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§15.7.1 |
The Nature of Impracticability Doctrine, Contrasted with Mistake |
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§15.7.2 |
The Early Form of the Doctrine: Impossibility of Performance |
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§15.7.3 |
The Contemporary Doctrine of Impracticability of Performance |
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§15.7.4 |
Relief for Impracticability |
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§15.8 |
Frustration of Purpose |
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§15.9 |
A Transnational Perspective on Mistake, Impracticability, and Frustration |
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Chapter 16 |
Conditions and Promises |
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§16.1 |
The Structure of a Contract: An Introduction to Promises and Conditions |
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§16.2 |
The Meaning and Scope of “Uncertain Event” |
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§16.3 |
The Intent to Create a Condition: Express, Implied, and Construed Conditions |
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§16.3.1 |
Express Conditions |
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§16.3.2 |
Conditions Implied in Fact |
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§16.3.3 |
Construed Conditions (Constructive Conditions of Exchange) |
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§16.4 |
A Condition of One Party’s Performance, as Distinct from a Condition of the Contract as a Whole |
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§16.5 |
Pure Conditions and Promissory Conditions |
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§16.5.1 |
The Distinction Between Pure and Promissory Conditions |
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§16.5.2 |
A Pure Condition Subject to an Ancillary Promise |
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§16.6 |
The Time Sequence: Conditions Precedent and Concurrent Conditions |
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§16.7 |
The Confusing Distinction Between Conditions Precedent and Subsequent |
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§16.8 |
The Purpose of Using Conditions in a Contract |
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§16.8.1 |
The Use of a Condition as a Complete or Partial “Escape Clause” |
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§16.8.2 |
Conditions of Satisfaction: The Use of a Condition to Permit the Exercise of Judgment by One of the Parties or a Third Party |
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§16.8.3 |
The Use of a Condition to Provide for Alternative Performances |
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§16.8.4 |
The Use of a Condition to Regulate the Sequence of Performance |
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§16.9 |
The Doctrine of Substantial Compliance in Construed Promissory Conditions |
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§16.10 |
The Excuse of Conditions: Wrongful Prevention, Waiver or Estoppel, and Forfeiture |
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§16.10.1 |
The Party Favored by the Condition Wrongfully Prevents or Hinders Its Fulfillment |
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§16.10.2 |
Estoppel or Waiver |
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§16.10.3 |
Unfair Forfeiture |
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§16.11 |
A Transnational Perspective on Conditions and Promises |
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Chapter 17 |
Breach and Repudiation |
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§17.1 |
The Scope of This Chapter: Nonfulfillment of a Promise |
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§17.2 |
The Nature of Breach |
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§17.3 |
The Significance of a Breach: Material Breach or Substantial Performance, and Total or Partial Breach |
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§17.3.1 |
Introduction to the Distinction |
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§17.3.2 |
What Makes a Breach Material? |
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§17.3.3 |
Substantial Performance |
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§17.3.4 |
Relief for Substantial Performance and Adjustment to Avoid Unfair Forfeiture |
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§17.3.5 |
Partial Breach and Cure |
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§17.4 |
A Summary of the Relationship Between the Materiality of Breach and the Nonfulfillment of a Condition |
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§17.5 |
Substantial Performance Under UCC Article 2: Perfect Tender and Cure |
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§17.5.1 |
Perfect Tender |
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§17.5.2 |
Cure Under UCC Article 2 |
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§17.6 |
The Breaching Party’s Recovery Following Material Breach and the Concept of Divisibility |
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§17.6.1 |
The Forfeiture of Contractual Rights by a Party Who Breaches Materially |
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§17.6.2 |
Restitution in Favor of a Party Who Has Breached Materially |
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§17.6.3 |
The Enforcement Rights of a Material Breacher When the Contract Is Divisible |
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§17.7 |
Anticipatory Repudiation |
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§17.7.1 |
The Distinction Between Breach and Repudiation |
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§17.7.2 |
The Purpose and Value of the Doctrine of Anticipatory Repudiation |
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§17.7.3 |
The Elements of Repudiation |
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§17.7.4 |
The Response to a Repudiation |
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§17.7.5 |
Prospective Nonperformance and Assurance of Performance |
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§17.7.6 |
Transactions Involving Installments |
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§17.8 |
A Transnational Perspective on Breach and Repudiation |
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Chapter 18 |
Remedies for Breach of Contract |
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§18.1 |
The Scope of This Chapter |
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§18.2 |
The Basic Goal of Remedies for Breach: Enforcement of the Expectation Interest |
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§18.2.1 |
The Nature of the Expectation Interest |
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§18.2.2 |
An Introduction to the Means of Enforcement: The Primacy of Monetary Compensation over Specific Relief |
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§18.2.3 |
Fundamental Principles of Expectation Relief |
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§18.2.4 |
The Enforcement of a Damage Award |
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§18.3 |
The Calculation of Expectation Damages |
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§18.4 |
An Overview of Expectation Damages Under UCC Article 2 |
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§18.4.1 |
The Basic Principles |
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§18.4.2 |
The Seller’s Remedies |
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§18.4.3 |
The Buyer’s Remedies |
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§18.5 |
The Distinction Between Direct and Consequential Damages |
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§18.6 |
Limitations on Expectation Recovery |
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§18.6.1 |
The Nature and Goals of the Limitations |
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§18.6.2 |
Foreseeability |
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§18.6.3 |
Mitigation |
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§18.6.4 |
Causation |
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§18.6.5 |
Reasonable Certainty |
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§18.6.6 |
Unfair Forfeiture |
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§18.7 |
Reliance and Restitution as Alternatives to Expectation |
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§18.8 |
Reliance Damages |
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§18.8.1 |
The Distinction Between Essential and Incidental Reliance |
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§18.8.2 |
Essential Reliance Damages |
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§18.8.3 |
Incidental Reliance Damages |
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§18.9 |
Restitutionary Damages |
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§18.10 |
Equitable Remedies: Specific Performance and Injunctions |
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§18.10.1 |
Specific Performance |
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§18.10.2 |
Injunctions |
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§18.11 |
Liquidated (Agreed) Damages |
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§18.11.1 |
The Test for Enforcing a Liquidated Damages Provision |
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§18.11.2 |
The Evaluation of the Parties’ Forecast of Harm |
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§18.11.3 |
Damage Limitation Provisions |
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§18.12 |
Incidental Damages, Attorney’s Fees, and Interest |
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§18.12.1 |
Interest |
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§18.12.2 |
Incidental Damages |
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§18.12.3 |
Attorney’s Fees |
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§18.13 |
Noneconomic and Punitive Damages |
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§18.13.1 |
Mental Distress and Other Noneconomic Loss |
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§18.13.2 |
Punitive Damages |
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§18.14 |
A Transnational Perspective on Remedies |
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Chapter 19 |
Assignment, Delegation, and Third-Party Beneficiaries |
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||
§19.1 |
Introduction |
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||
§19.2 |
Third-Party Beneficiaries |
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§19.2.1 |
The Distinction Between Intended and Incidental Beneficiaries |
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||
§19.2.2 |
The Essence of Intended Beneficiary Status: The Right of Independent Enforcement |
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||
§19.2.3 |
The Intent to Confer an Independent Right of Enforcement |
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||
§19.2.4 |
The Relevance of the Relationship Between the Promisee and the Beneficiary: Creditor and Donee Beneficiaries |
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||
§19.2.5 |
Vesting of the Benefit and the Parties’ Power to Modify or Terminate It |
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||
§19.2.6 |
The Promisee’s Parallel Rights of Enforcement Against the Promisor |
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||
§19.2.7 |
The Promisor’s Ability to Raise Defenses Against the Beneficiary |
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||
§19.2.8 |
The Beneficiary’s Rights Against the Promisee in the Event of the Promisor’s Nonperformance |
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||
§19.2.9 |
Citizens’ Claims as Intended Beneficiaries of Government Contracts |
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||
§19.3 |
Assignment and Delegation |
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||
§19.3.1 |
The Basic Concept and Terminology |
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||
§19.3.2 |
The Nature of an Assignment |
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||
§19.3.3 |
Restrictions on Assignment |
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||
§19.3.4 |
The Effect of Assignment |
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||
§19.3.5 |
Defenses Against the Assignee |
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||
§19.3.6 |
Delegation |
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||
§19.3.7 |
“Assignment” of the Contract: The Assignment of Rights and Delegation of Duties |
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||
§19.3.8 |
Grounds for Insecurity Following Assignment or Delegation |
|
||
§19.4 |
A Transnational Perspective on Third-Party Beneficiaries, Assignment, and Delegation |
|
||
Glossary |
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|||
Table of Cases |
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|||
Table of Statutes |
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|||
Index |
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