Contracts Complete Outline Chapter 3: LIABILITY IN THE ABSENCE OF BARGAINEDFOR-EXCHANGE A.

Protection of Promise Reliance: Doctrine of Promissory Estoppel 1. Promises within the family a. Kirksey v. Kirksey b. Greiner v. Greiner c. Wright v. Newman 2. Charitable Subscriptions a. King v. Trustees of Boston University 3. Promises in a Commercial Context a. Katz v. Danny Dare, Inc.
Katz v. Danny Dare, Inc. Court left out the expectation of reliance from the elements Katz may/would have been fired if he did not retire

b. Shoemaker v. Commonwealth Bank
Shoemaker v. Commonwealth Bank No agreement or Modification clause Stops he/she said disputes, over the phone promises Not effective Status and Future of PE PE is a harm claim to win You cant reasonably rely unless you have a contract?

B. Liability for Benefits Received: The Principle of Restitution
Restitution/Quasi Contract Theory - unjust enrichment - an implied in law contract y Many different names for the same thing y Idea is that it is a compensation for unjust enrichment Is the party enriched? Is it a situation where it would be unjust without restitution?

1. Restitution in the Absence of a Promise a. Credit bureau Enterprises, Inc. v. Pelo
Credit Bureau Enterprises, Inc. v. Pelo Pelo ordered to go to Hospital and refused to sign form. Pelo signed form after property was threatened. Pelo received the benefit of the hospitalization, thus he was enriched.

Restitution is subject to restrictions Officiousness - interference in the affairs of others not justified by the circumstances Volunteerism - services without entitlement to compensation Restitution Justification for doctrine, 265, note 5 Posner y Allocation of costs to beneficiaries

b. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co.
Commerce Partnership 8098 Limited Partnership v. Equity Contracting Commerce has a building that needs work. Contracts to GC, Equity is a sub. Commerce has a punch list (more work needed). Commerce alleged payment to GC. Equity did not get payment from GC (filed bankruptcy). Equity did not expect original payment form Commerce. Equity filed suit for partial payment because Commerce benefitted. Equity filed under contract in fact; court said recovery should be based on Quasi-Contract. Elements of Quasi P conferred benefit to the D D has knowledge of the benefit D accepted or kept benefit conferred Under circumstances it would be inequitable for D to retain benefit without paying P fair value There was an initial problem with what theory to use, implied in-fact or in-law. Trial found for Equity. On appeal, burden shifts to Equity to prove no payment had been made (by Commerce) for benefit conferred. There cannot be unjust enrichment "where payment has been made for the benefit conferred." Statutory Recovery: Mechanics lien - to ensure you get paid cost of materials for a project. (some courts hold that only recovery is through statutory)

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Plaintiff must question, what is the value of the benefit conferred, did the D pay? Lease Improvements Lessee has renovations done on a property, and does not pay. Worker sues owner to recover, should he be allowed to recover? 1. Was there a benefit? 2. Should you impose a cost on a party who did not necessarily want/able to receive it? 3. Should a contractor take steps to assure payment, protections against lessee? Courts have had conflicting results, owner's wants or needs may be important factors.

c. Watts v. Watts
Watts v. Watts P and D lived together for 12 years, had two children and held themselves out to be a married couple (joint bank accounts, tax forms, etc.) P and D split but D would not give anything. P claims: D was unjustly enriched by their relationship. (Net worth increased by 1 mil +) D knew of benefit Implied in-fact contract - given the nature that a person had been given a benefit with the expectation of payment, you should reasonably be expected to pay for the benefits received y If they were married it would be against family to break the relationship under contract law. Implied in-law contract: Elements 1. Benefit conferred on D by P 2. Appreciation and knowledge of D of benefit 3. Acceptance/retention by D under circumstances making it inequitable for D to retain it Use of theory may lead to application problems How do you measure unjust enrichment in this case? Lost opportunity Taking care of kids

y y

2. Promissory Restitution a. Mills v. Wyman
Mills v. Wyman Levi Wyman while returning home from abroad fell ill in Hartford, CT. Mills took care of him until his death. Wyman (Father) agreed to pay for expenses. Can enforce a promise when there is some preexisting obligation. y Debts barred by statute of limitations y Debts incurred by infants y Debts discharged in bankruptcy (must be expressed in writing) A moral obligation to pay is not enforceable. Mills v. Wyman Can enforce a promise when there is some preexisting obligation. y Debts barred by statute of limitations y Debts incurred by infants y Debts discharged in bankruptcy (must be expressed in writing) A promise to pay will create an obligation based on the preexisting obligation A moral obligation to pay is not enforceable. A confirmation (say you want agreement) of an unenforceable agreement creates an enforceable agreement

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Where do we find a promise/did you make a promise? Affirmative representation (I will pay you) Implied promise (I owe you money/acknowledgement of the debt) Acknowledgment of an obligation (an unqualified payment) Making the revival of debts (bankruptcy) in writing serves as a warning and as evidence Warning - do you really want to do this? Evidence - what did you actually promise? ~ a partial payment may be viewed as a written agreement to pay Minors Failure to disaffirm/disavow once the age of majority is reached is an implied affirmation/ratification of the promise

b. Webb v. McGowin
Webb v. McGowin Demur sustained by trial court Was a challenge to the adequacy of the allegations Is there an adequate claim? Problem is there was a promise for services already rendered; no consideration. One foot in Contracts and one in Restitutiond There is not a good restitution claim. (benefit but a lack of expectation of payment) No contract claim (promise, but no consideration) Restatement Sec. 86: Promise for Benefit Received (pg 187) 1. A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice y An enforceable promise for a benefit received Sec 86.2(a) A gift is not a material benefit to support a promise No third party beneficiary, benefit must go to the promisor

Chapter 4: THE STATUTE OF FRAUDS A. General Principles: Scope and Application
a. b. c. d. e. Statue of Frauds (R. CH5 pg 188) Executor-administrator provision Suretyship provision Marriage provision Land contract provision One year provision

1. Is the alleged contract within the S.F. (Restatement Sec. 110 pg 188)? Yes 2. Does the writing satisfy the statue (Pg 189)? Yes

No 3. Is it enforceable under some exception?

a. Crabtree v. Elizabeth Arden Sales Corp.
Crabtree v. Elizabeth Arden Sales Co. Fell under the 1 yr provision y Was not performable within a year y Death discharges duty, not within the statute Did it satisfy the statute a. Sec. 131 - An assigned writing state the essential terms Was there a signed memorandum? Yes, the memorandum may be pieced together by both signed and unsigned writings. The memorandum evidences the contractual relationship. There must be a reference to the unsigned writing in the signed writing. They must refer to the same subject matter or transaction. May supplement with parole evidence.

b. Winternitz v. Summit Hills Joint Venture
Winternitz v. Summit Hills Joint Venture 1. Is it within the statute, yes. 2. Does it satisfy by writing, no. 3. Is it otherwise enforceable, no. Sec. 129 Like promissory estoppel - only in for specific enforcement a. Is there a part performance? b. Not applicable The court enforced under Tort Section 767 Business Tort - intentional interference in an economic relationship

c. Alaska Democratic Party v. Rice
Alaska Democratic Party v. Rice 1. Within the statute, yes. 2. Does it satisfy by writing, no. 3. Is it otherwise enforceable, yes. Sec. 139 Enforcement by virtue of action in reliance Limitations: (employment) Clear and convincing evidence Definite 129 reliance is in regards to a transfer in interest of land.

B. The Sale of Goods Statute of Frauds: UCC § 2-201
2-201 1. $5,000+, must be a record, may incorrectly or omit a term agreed upon 2. Merchant's confirmation exception - 10 days to object to a confirmation in writing 3. Exceptions: enforceable if a. Specially manufactured goods (specialty items) b.Admission of a contract (get passed SF)

c. Goods payment have been paid and accepted, received and accepted

a. Buffaloe v. Hart
Buffaloe v. Hart Tobacco barns Moveable barns = goods P: Handshake deal, insurance paid, attempt to settle up, D received and tore check Handshake deal is unenforceable under Statute of Frauds Under UCC if you admit the facts and the facts lead to the conclusion there was a contract then there was and SF is satisfied.

Chapter 5: MEANING OF THE AGREEMENT A. Principles of Interpretation
Raffles v. Wichelhaus - Peerless Case Two ships named Peerless which left at different times. Cotton prices dropped, the buyers wanted to back out. Claimed that the shipment was not on time. Court held that if they attached 2 equally reasonable meanings to a term then no contract existed. y There was no meeting of the minds y Subjective theory of contracts Objective Theory of contracts y The words show the intention y Use a reasonable person standard, what would they think y If there are 2 reasonable meanings  If a party knew or had reason to know the other's meaning, the others meaning applies  Knowledge loses to reason to know

a. Joyner v. Adams
Joyner v. Adams Contract for real property Adams was substituted for original party. Original Amendment: Suspend lease increases for the new party. If the land wasn¶t developed then the increases would be paid retroactively. P Claim: D did not developed as defined in the terms of the lease. The term was "ambiguous" so there is a question of fact. Ambiguity must be construed against the drafter of the contract. y Only with adhesion contracts or unequal bargaining power or other situations Here both parties were sophisticated business entities engaged in arms length discussions.

b. Frigaliment Imporeting Co. v. B.N.S. International Sales Corp.

Frigliment Importing Co. v. B.N.S. International Sales Corp. Is there an ambiguity? y Trade language y Four corners of the document If there is an ambiguity how do we resolve it? y Look to outside information y What was said between parties y Parole Evidence - preliminary negotiations Plaintiff has the burden to show that the meaning of the term is construed narrowly.

c. C & J Fertilizer, Inc. v. Allied Mutual Insurance Co.
C & J Fertilizer, Inc. v. Allied Mutual How to determine what language means C & J Fertilizer, Inc. v. Allied Mutual Plaintiff was burglarized. The insurance company said they would not pay Trial court found the language was unambiguous and found for the Defendant. Court invoked the Reasonable Expectations Doctrine y Was an adhesion contract y Terms that are unambiguous if they are beyond a reasonable expectation

B. The Parole Evidence Rule
Parol Evidence Rule - informal evidence (usually oral) Writing may not be what the parties were really communicating about. y Should we listen to what the parties allegedly said If the writing is intended to be the complete contract it is referred to as fully integrated. When the writing was executed, by intending it to be the contract, you intend it to be fully integrated and exclude the informal (outside the contract) communications.

a. Thompson v. Liby
Thompson v. Libby Claim of warranty, the logs did not meet the specifications. Court held they could not prove warranty because it was not contained in the written contract, it's in the writing or it's not. The writing was a complete agreement, cannot supplement (no direct contrary language). How do we decide if the agreement is complete: y Look within the four corners of the document Collateral- the contract is not fully integrated Exceptions to Parol Evidence Rule: can present evidence

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The document is not fully integrated Offered to explain the meaning of the agreement Does not exclude subsequent agreements (only exclude prior agreements) Oral condition precedent to the agreement Any factor that would make the contract invalid (fraud, duress, incapacity, etc.)

b. Taylor v. State Farms Mutual Automobile Insurance Co.
Taylor v. State Farm Mutual Automobile Taylor signed a release relating to his own insurance company in order to be paid for personal property loss as the result of an accident. (Wiliston)Restrictive View v. Corbin View Parol Evidence creates instability. Arguments can be made that oral agreements were made, undercutting the written document

c. Sherrod, Inc. v. Morrison-Knudsen Co.
Sherrodd, Inc. v. Morrison-Knudsen Co. Merger Clause - states this is the entire agreement; merges all previous discussions The goal is commercial stability Does the parol evidence rule apply? Is the contract integrated?

d. Nanakuli Paving & Rock Co. v. Shell Oil Co.
Nanakuli Paving & Rock Co. v. Shell Oil Co. Question is the meaning of the contract; Nanakuli sued for lack of price protection, not included in the contract. There was more than just the writing, price protection was an expectation. There is more to the contract than just the writing. UCC 2-208 1. Expressed words/discussions 2. Course of performance Action of the parties carrying out the contract at issue P: Price protection in the past D: Waiver of terms Court: let the jury decide 3. Course of dealing 4. Trade usage Typically what is done.

Chapter 6: SUPPLEMENTING THE AGREEMENT A. The Rationale for Implied Terms a. Wood v. Lucy, Lady Duff-Gordon

Wood Implication of terms and the possibility a court will do it to save the agreement.

b. Leibel v. Raynor Manufacturing
Leibel It was desirable to bring more, not less agreements under the UCC Requriment of reasonable notice Imply a term for fairness To protect reliance interests Franchisees, the quality of reliance is much higher Reasonable notice - required for fairness Implied obligation of good faith

B. The Implied Obligation of Good Faith a. Eidenberg v. Summit Bank
Seidenberg 1. Honesty in fact 2. Observance of reasonable commercial standards Defined by it's opposite, bad faith Parties had sold their interests in business and gotten bankcorp shares; at least for a time they would be retained as managers Seidenberg v. Summit Bank An integrated agreement There is an ambiguous clause y Exception to Parol Evidence, give content to the good faith clause that is there What is bad faith? y Lack of honesty in fact y You cant mislead the other party Act in a way which is commercially reasonable? Problems/threats: y potentially opens up the written contract y Jury's will second guess a party's business judgment Implied term of Good Faith: Some say enforce the contract as written Some say they must comply with good faith Requirements and Output Contracts Does having such agreements as contracts facilitate commerce (public interest) Yes - people get into these agreements N o - these are illusory contracts Without exclusivity there is no consideration.

Is there a limitation on what a party can order? Good faith comes into play;

b. Morin Bldg. Prods. Co. v. Baystone Const. Inc.
Morin Building Products Co. v. Baystone Construction Inc. Baystone is the GC Morin is the Sub GM hired Baystone to give aluminum siding on the factory. Morin put up walls, which were rejected, another party put up new walls. Morin did not get paid and sued. Morin claims it fulfilled it's duties under the contract, did not breach, and is entitled to payment. D claims it did not meet the "aesthetic" specification. There is a commercial definition of Mill Finish. The contract: all work subject to approval of the agent. A satisfaction clause, the owner is satisfied with the work, subject to approval P argues they performed reasonably within the requirements of the contract. D argues they contracted for a satisfaction clause. 1. Term "aesthetic effect" is ambiguous 2. Was a form contract Satisfaction Clause: Satisfaction is objective; would a reasonable person, in this setting, be satisfied? Satisfaction is subjective, when the contract is about personal taste or judgment Objective/Subjective is a matter of intent, what did the parties objectively intend? What is the language of the contract? Chose a material that did not have a uniform finish. P conformed with the language of the writing. What is the purpose of the contract? A commercial building, it has a utilitarian purpose.

c. Locke v. Warner Bros., Inc.
Locke v. Warner Bros., Inc. Option terms in a contract, does this create an option without reviewable discretion Option v. Subjective

d. Donahue v. Federal Express Corp.
Donahue v. Fedex What is the employment relationship here? A long term contractual relationship (20 yrs.) What obligations does the employer have? At Will - termination for cause

y y y

Implicit duties Express Additional consideration

Donahue v. Fedex What is the employment relationship here? A long term contractual relationship (20 yrs.) What obligations does the employer have? At Will - termination for cause 1. Implicit duties 2. Express 3. Additional consideration How do we treat employment contracts? Courts have rejected any broad requirement of good faith; employment at will. For express term (of years) employment, then there is termination only for cause. At will restrictions: Earned Benefit 1. Discharged to avoid paying benefit 2. contractual commissions, firing to preclude commission Express Grant 0. Uphold rights expressly given 1. Can be Substantive or Procedural Reliance Based 0. Substantial reliance on employment 1. Hardship - moved to get job, etc. 3. Substantial consideration (not doing a good job) - bargained for something more i. Loss of investments ii. Bringing more to the table Public Policy 1. Under public policy it is improper to terminate a person for that reason 2. Whistle blowing 3. Cannot require them to commit a crime 4. Statutory requirements

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C. Warranties
Waranties 1. Express Warranty (UCC 2-313) y A description of goods that forms a basis of bargain y Statements that are merely the sellers opions or commendations of the goods are not warranties 2. Implied Warranty of Merchantability (UCC 2-314) y A merchant who sells these goods y Goods must pass without objection in the trade and are fit for the ordinary purposes for which the goods are used

Would a significant portion of the population object to buying the goods? And Are the goods capable of performing their ordinary function? Complaining party must establish the standard of merchantability of the trade Implied Warranty of Fitness for Purpose (UCC 2-315) The seller has reason to know any particular purpose for which the goods are required and The buyer is relying on the seller's skill or judgment to select or furnish suitable goods
y y y

a. Bayliner Marine Corp. v. Crow
Bayliner Marine Corp v. Crow Express Warranty: There was a representation about the speed, but it was not in regards to the boat that crow purchased. Merchantability: Fitness for Purpose:

Chapter 10: CONSEQUENCES OF NONPERFORMANCE A. Express Conditions
Constructive conditions relate the actions of the two parties together. How are they connected. Express Conditions Obligor is the person is from whom performance is sought Obligee is person who receives the performance A term in a contract may not be an expressed condition GC says I will pay when paid If the GC is not paid, does he still owe? Yes, it is a timing of payment clause You owe the Sub within a reasonable time Must look to the context of the term; if it is intended to protect a party, that party may waive that condition

a. Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co.
Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co. Language used has that effect; must be performed without deviation Literal performance Limitations? Waiver Estoppel

b. J.N.A. Realty Corp. v. Cross Bay Chelsea, Inc.
J.N.A Realty Corp v. Cross Bay Chelsea Inc. Problem of a Condition: On an Option is the timing an express condition? Party did not exercise a renewal lease on time.

B. Material Breach a. Jacob & Youngs, Inc. v. Kent b. Sackett v. Spindler
Sackett v. Spindler Each would be right if the other breached First party to totally breach must pay Total breach or partial breach or material breach? If a party significantly breaches: The other party may: Suspend performance Communicate problems Give opportunity to correct If no response, then contract may repudiate and recover damages If total breach repudiation is justified, if partial, you may not break transaction Sackett was in total breach Spindler was justified in selling business to another You may terminate the relationship only if the other party is in total breach. To act too precipitously may lead to being found in breach.

C. Anticipatory Repudiation
What is the significance of an anticipatory repudiation? It places a party in breach. Why allow anticipatory repudiation? Unfair to wait for a breach that will occur in the future To mitigate damages/limit the amount of harm If you avoid losses you don¶t have to make the other party pay

a. Truman L. Flatt & Sons Co. v. Schupf
Truman L. Flatts & Sons Co. v. Schupf Action for specific performance. Buyer wanted to buy land and rezone. Couldn¶t get rezoning Asked for price reduction Seller said no price reduction Buyer wanted original terms Seller said no Buyer filed suit. Seller said Buyer repudiated. Buyer retracted before Seller acted or manifested acceptance of repudiation. Court held the Plaintiff could sue and win.

Normally there is a repudiation of a duty, in this case there is a failure of a condition. There was no reasonable reliance on the alleged repudiation. In order to be a repudiation it must be clear and unequivocal. Repudiation can be read out of conduct (unambiguous) What if there is a great risk of breach? If there is not a repudiation there is still a contract

b. Hornell Brewing Co. v. Spry
Hornell Brewing Co. v. Spry Factor bought Buyer's debt Once debt paid, buyer placed new order Seller would not deliver Buyer seemed to be a sham operation Seller/Plaintiff: tried to get the buyer to sign a document stating there is no contract. There was no response. Spry/Defendant never indicated nonperformance. Court held the contract was repudiated by Spry, no contract, no duty to deliver goods ordered. UCC 2-609 When reasonable grounds for insecurity arises (after contract), may demand adequate assurances, if the other party does not deliver/respond within 30 days it can be treated as repudiation. Seller wanted proof of a line of credit, no response. If there were reasonable grounds for demands and there were no assurances, then repudiation Once assurances are asked for and met, others cant be requested. Unless additional reasonable grounds for insecurity arise.

Chapter 11: EXPECTATION DAMAGES A. Computing the Value of Plaintiff¶s Expectation a. Roesch v. Bray b. Handicapped Children¶s Education Board v. Lukaszewski c. American Standard, Inc. V. Schectman B. Restrictions on the Recovery of Expectation Damages: Foreseeability, Certainty, and Causation a. Hadley v. Baxendale

C. Restrictions on the Recovery of Damages: Mitigation of of Damages a. Rockingham County v. Luten Bridge Co. b. Havill v. Woodstock Soapstone c. Jetz Service Co. v. Salina Properties Chapter 12: ALTERNATIVES TO EXPECTATION DAMAGES A. Reliance Damages a. Wartzman v. Hightower Productions, Ltd. b. Walser v. Toyota Motor Sales, U.S.A., Inc. B. Restitutionary Damages a. United States ex rel. Coastal Steel Erectors, Inc. v. Algernon Blair, Inc. b. Lancellotti v. Thomas c. Ventura v. Titan Sports, Inc. C. Specific Performance a. City Stores Co. v. Ammerman b. Reier Broadcasting Company, Inc. v. Kramer D. Agreed Remedies a. Westhaven Associates, Ltd. v. C.C. of Madison, Inc. Chapter 7: Avoiding Enforcement A. Minority and Mental Capacity
In the cases of minors/infants the capacity is restricted on the ground they did not have the judgment to protect themselves in the marketplace Limits on contractual capacity. a. Dodson v. Shrader Dodson (16) purchased a truck from Shrader Shrader assumed Dodson was in the age of majority Nine months after purchase the truck developed problems Dodson did not attempt to rectify problem; leading to the engine blowing up. Dodson tried to rescind contractual obligation and recover purchase price. Shrader refused tender of vehicle without compensation for depreciation. Shrader was order to, upon tender of truck, reimburse 4,900 purchase price Shrader appealed Problem of balancing the rights of minors against those of innocent merchants. Result is Two minority rules:

1. Benefit rule: upon rescission, recover of the full purchase price is subject to a deduction for the minor's use of the merchandise. 2. The minor's recovery of the full purchase price is subject to a deduction for the minor's use of the consideration he/she received under the contract, or for the "depreciation" or "deterioration" of the consideration in his/her possession. Where the minor has not been overreached in any way, an there has been no undue influence, and the contract is a fair and reasonable one, and the minor has actually paid money on the purchase price, and taken and used the article purchased ,that he ought not to be permitted to recover the amount actually paid, without allowing the vendor of the goods reasonable compensation for the use of, deprecation, and willful or negligent damage to the article purchased while in his hands. If there has been any fraud or imposition on the part of the seller or if the contract is unfair, or any unfair advantage had been taken of the minor inducing him to make the purchase, then the rule does not apply. The amount of the damage and the liability for the amount between the purchaser and the vendor, as well as the fair market value of the vehicle at the time of tender, is an issue for the trier of fact.

b. Hauer v. Union State Bank of Wautoma
Hauer suffered brain injuries after a motorcycle accident She was adjudicated to be incompetend and a guardian was appointed by the court. Eilbes (third party) told Hauer if she lent him money he would giver her a job, pay her interest and pay the loan when it came due; she agreed. Eilbes met up with Schroeder (bank) and discussed the potential loan to Hauer. The date the loan matured, Hauer filed suit. Allege 1. Bank knew or should have known that she lacked the mental capacity to understand the loan 2. The bank intentionally misrepresented, negligently misrepresented, or misrepresented the circumstances surrounding the loan on which she relied 3. Bank breached a fiduciary duty owed to her. 12 person jury found Hauer lacked the mental capacity to enter the loan and the Bank acted in bad faith. The incompetent has the power to void the contract entirely; a cause of action to rescind a contract or conveyance based on lack of mental capacity at the time of the transaction. The law presumes every adult is fully competent until satisfactory proof to the contrary is presented; the burden lies on the one seeking to void the act. Test is whether the person involved had sufficient mental ability to know what he/she was doing and the nature and consequences of the transaction. Competency must be determined on the date the instrument was executed. There was credible evidence that Hauer was incompetent.

The court must accept the inference that favors the jury's verdict when the evidence permits more than one inference. Infancy doctrine does not apply in cases of mental incompetence. The jury's finding that the Bank failed to act in good faith in the loan transaction distinguished this case form the "general rule" which provides that the person seeking relief from a contract must return the consideration paid. If the other party knew of the incompetency or took unfair advantage of the incompetent, consideration dissipated without benefit to the incompetent need not be restored. Inherent in the finding the bank acted in bad faith is inseparable from the fact they knew or should have known that Hauer was incompetent at the time the loan was entered. On the record: there were flags that would prompt a reasonable banker to move more slowly. Bank testified that the Hauer's stockbroker told him not to use Hauer fund as collateral because she needed the fund to live on and could not afford to lose it. The evidence and reasonable inferences can be drawn from the evidence to support the jury's conclusion that the Bank had failed to act in good faith.

B. Duress and Undue Influence
Threat of improiosnment or physical harm = duress Threat to property = duress of goods Economic duress a. Totem Marine Tug & Barge v. Alyeska Pipeline Service Co Totem entered contract with Alyeska to transport construction materials from Texas to Alaska with 1 or 2 cargo stops. Terms stated Totem would complete by 8/15/75; problems at the start. Totem was supposed to pick up 6,000-7,000 tons of pipe. It found however, 6,700 - 7,200 tons of pipe were improperly piled in the loading yard. This extra weight and sloppy stacking led to delays and hiring of another tug. Following the termination of the K, Totem submitted termination invoices, 260,000300,000 Totem was in need of urgent cash and the invoices represented the debts the company had incurred. Without immediate cash, Totem would go bankrupt. Totem settled for 97,500 and signed a release after Alyeska said it would take some time to get the money. Totem sought to rescind the settlement and release on the ground of economic duress and to recover the balance allegedly due on the original contract. Superior court granted Alyeska's motion for summary judgment; Totem appealed The test of undue influence: whether the will of the person induced by the threat was overcome rather than that of a reasonably firm person. Duress exists when: 1. One party involuntarily accepted the terms of another 2. Circumstances permitted no other alternative

3. Such circumstances were the result of coercive acts of the other party. a. The assertion of duress must be proven by evidence that the duress resulted from defendant's wrongful and oppressive conduct and not by the plaintiff's necessities. Economic duress does not exist merely because a person has been the victim of a wrongful act; in addition the victim must have no choice but to agree to the other party's terms or face serious financial hardship. A party must also show that he had no reasonable alternative to agreeing to the other party's terms; that he had no adequate remedy if the threat were to be carried out. The availability on the market of similar goods and services or of another source of funds may provide and alternative to succumbing to the other party's demands. At trial it is necessary for Totem to produce this evidence if it is to prevail on a claim of duress; to support a claim, Totem need not prove it's allegations Trial court erred in granting summary judgment b. Odorizzi v. Bloomfield School District Odorizzi contract with the District to teach for the following 10 years as a permanent employee. Odorizzi was arrested and the next day signed and delivered a resignation to his supervisors. The criminal charges were dismissed and he sought reinstatement. District refused and Odorizzi filed suit. A demur was sustained; Appeal Superintendent and Principle came to his apartment after release and stated that if he did not resign, the District would suspend and dismiss him from his position and publicize the proceedings; causing him to suffer embarrassment and humiliation. 1. No Duress or Menace: there was no unlawful confinement of another's person, or relatives, or property, which caused him to consent to a transaction through fear. 2. No Fraud, actual or constructive: Actual Fraud involves conscious misrepresentation, or concealment, or non-disclosure of a material fact which induces the innocent party to enter the contract. Constructive Fraud arises on a breach of duty by one in a confidential or fiduciary relationship or another which induces justifiable reliance by the latter to his prejudice. Confidential relationship may exist whenever a person with justification paces trust and confidence in the integrity and fidelity of another. 3. No Mistake: the complaint failed to disclose any facts which would suggest that the consent had been obtained through a mistake of fact or of law. Both parties knew the material facts of the transaction. 4. Undue Influence: Undue influence is persuasion which tends to be coercive in nature, persuasion which overcomes the will without convincing the judgment.

The hallmark is high pressure, a pressure which works on mental, moral, or emotional weakness to such an extent that it approaches the boundaries or coercion; in a word overpersuasion. Undue influence involves unfair advantage take of another's weakness or distress. Undue influence involves the use of excessive pressure to persuade one vulnerable to such pressure, pressure applied by a dominant subject to a servient object. Undue susceptibility may consist of total weakness of mind which leaves a person entirely without understanding; or a lesser weakness which destroys the capacity of a person to make a contract even though he is not totally incapacitated Involves a second aspect of excessive strength used by a dominant subject against a servient object. Undue influence occurs whenever there results "that kind of influence or supremacy of one mind over another by which that other is prevented from acting according to his own which or judgment, and whereby the will of the person is overborne and he is induced to do or forbear to do an act which he would not do, or would do, if left to act freely. Overpersuasion is generally accompanied by certain characteristics which tend to create a pattern. Discussion of the transaction at an unusual or inappropriate time Consummation of the transaction in an unusual place Insistent demand that the business be finished at once Extreme emphasis on untoward consequences of delay Use of multiple persuades by the dominant side against a single servient party Absence of third-party advisors to the servient party Statemnts that there is not time to consult financial advisors or an attorney If a number of these elements are simultaneously present, the persuasion may be characterized as excessive. Cause of action was properly stated; reversed and remanded.

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A. Misrepresentation and Non-Disclosure a. Syester v. Banta b.Hill v. Jones c. Lawyer¶s Professional Ethics B. Unconscionability
A grossly unfair bargain should be unenforceable. Standard form contract contains numerous "boilerplate" provisions that are extremely favorable to the drafting party and are often offered on a "take-it-or-leave-it" basis. Unconscionablilty is codified in UCC 2-302 Designed to let the courts examine contracts for bargaining unfairness. Provides fro avoidence or reformation if, at the time of making, the contract or a term unjustifiably gave an excessive advantage to one party. The courts should have regard for "the fact that the other party has taken advantage of the first party's dependence, economic distress or urgent needs, or of its improvidence, ignorance, inexperience or lack of bargaining skills."

a. Williams v. Walker-Thomas Furniture Co. Each appellant purchased a number of household items from Walker. The terms of each purchase were contained in a printed form contract which set forth the value and purported to leave the item to the appellant for a stipulated monthly payment. In the event of a default of a monthly payment, Walker could reposses the item. Record was insufficient to determine fairness, remanded. Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. The meaningfulness of the choice is negated by a gross inequality of bargaining power. In determining reasonableness or fairness, the primary concern must be with the terms of the contract considered in light of the circumstances existing when the contract was made.

b. Consumer Protection Legislation
Consumer protection legislation has aimed at accomplishing three goals: 1. Disclosure legislation is based on the theory that increased information gives consumers an opportunity to avoid entering into an unfair contract a. To require commercial parties to disclose information to consumers s in a meaningful fashion 2. Substantive regulation a. Particular contractual provisions thought to be unfair are declared unlawful 3. Improve enforcement

A. Public Policy
Although a contract may have been formed correctly it may still be unenforceable because the contract itself violates or runs directly contrary to some public policy. a. Valley Medical Specialists v. Farber Whether a restrictive covenant between Dr. Farber and Valley is enforceable. IT IS NOT Public policy outweighs Valley's protectable interest in enforcing the agreement. Given public interest in doctor-patient relationships it has been analyzed for some time. Whether the restraint is such only as to afford a fair protection to the interest of the party in favor of whom it is given, and not so large as to interfere with the interest of the public. A covenant not to compete is invalid unless it protects some legitimate interest beyond the employer's desire to protect itself from competition. Public policy concerns outweigh any protectable interest the remaining firm members may have had. AMA recognizes that free choice of doctors is the right of every patient, and free competition among physicians and is a prerequisite of optimal care and ethical practice. Reasonableness is a fact-intensive inquiry that depends on the totality of the circumstances. Unreasonable if: 1. The restraint is greater than necessary to protect the employer's legitimate interest, or 2. If that interest is outweighed by the hardship to the employee and the likely injury to the public.

Must balance the competing interests. Here, the public policy implications are enough to invalidate the particular agreement. The burden is on the party wishing to enforce the covenant to demonstrate that the restraint is no greater than necessary to protect the employer's legitimate interest, and that such interest is not outweighed by the hardship to the employee and the likely injury to the public.

b. R.R. v. M.H. & another
Enforceability of a surrogacy agreement. Compensated surrogacy arrangements raise the concern that, under financial pressure, a woman will permit her body to be used and her child to be given away. There is nothing inherently unlawful in a surrogacy arrangement. Any custody agreement is subject to a judicial determination of custody based on the best interest of the child. This surrogacy agreement is not enforceable.

Chapter 8: Justification for Nonperformance
Excuses from performance here are those arising from the changes in circumstance that either occurred or come to light since the original agreement was made. Contract law is generally resistant to the suggestion that a contractual obligation might be avoided just because of unforeseen or un-provided for circumstance. There are a variety of established legal categories that hold out the possibility of such and excuse from performance, in appropriate cases. a. Mistake b. Impossibility c. Impracticability d. frustration A. Mistake Parties make contracts with the aim of binding each other despite the myriad changes of circumstance that may occur before the time for performance arrives. Sometimes the court finds that a more particular type of mistake has been made, beyond the ordinary run. a. Lenawee Country Board of Health v. Messerly Purchaser bought property with a three unit apartment building After purchase County Board condemned the property and obtained a permanent injunction preventing human habitation After inspecting the property, purchasers executed a new land contract. Clause added: agreed to accept in current condition A contractual mistake "is a belief that is not in accord with the facts." Must relate to a fact in existence at the time the contract is executed. The septic system was defective prior to execution of the contract. Division of a parcel of land made it impossible to remedy the septic problem A contract may be rescinded because of a mutual misapprehension of the parties, but this remedy is granted only in the sound discretion of the court.

Both parties mistakenly believed that the property would generate renal income. "the thing sold and bought [income generating rental property] had in fact no existence." Rescission is not available to relieve a party who has assumed the risk of loss in connection with the mistake. The "as is" clause assigned the risk to the purchaser.

b. Wil-Fred¶s, Inc. v. Metropolitan Sanitary District
Wil-Fred's made a bid and submitted a security deposit. Bid was made in error and Wil-Fred attempted to retract and get return on bid deposit A subcontractor made an error Can Wil-Fred obtain rescission because of a unilateral mistake?

A. Impossibility, Impracticability, and Frustration
Changes in circumstance that occur between making the K and the time set for performance

a. b.

Karl Wendt Farm Equipment Co. v. International Harvester Co. Mel Frank Tool & Supply, Inc. v. Di-Chem Co.

B. Modification
a. Alaska Packer¶s Association v. Domenico Libelants entered into a written K with appellant to work during the fishing season of 1900. Agreed to do "regular ship's duty, both up and own, discharging and loading; and to do any other work whatsoever when requested to do so by the captain or agent of Alaska Packers Assoc." Liblants began to unload the vessel, a few days after, they stopped work as a body and demanded pay different from that stipulated in the K. It was impossible for the appellant to get other men to take the places of the libelants. The superintendent told the libelants that he was without authority to enter into any such contract, or in any way alter the K made between them and the company in San Francisco. The company denied its validity and refused to pay other than as provided for by the K The libelants willfully and arbitrarily broke their obligations. There is no record that there was any voluntary on the part of the appellant of the breach of the original K. A party cannot lay the foundation of an estoppel by his own wrong, where the promise is simply a repetition of a subsisting legal promise. Under the new promise, he was not to do anything more or different. He was to receive the same served under the new, the party was bound to tender under the original K. A promise to pay a man for doing what he is already under contract to do is without consideration.

When a party merely does what he has already obligated himself to do, he cannot demand an additional compensation therefor; and although, by taking advantage of the necessities of his adversary, he obtains a promise for more, the law will regard it as nudum pactum, and will not lend its process to aid in the wrong. Judgment must be reversed, and the case remanded, with directions to the court below to enter judgment for the respondent, with costs.

a. Kelsey-Hayes Co. v. Galtaco Redlaw Casting Corp.
Kelsey-Hayes alleges Galtaco breached a 3 year agreement for the purchase of castings. Kelsey-Hayes asserts the 1989 K modifications containing price increases were: 1. Agreed by Kelsey-Hayes under duress 2. Were unconscionable 3. Demanded by Galtaco in bad faith 4. Constitute unjust enrichment of Galtaco Galtaco says Kelsey-Hayes waived its breach of K claims Kelsey-Hayes makes brake assemblies that it sells to auto manufactures (Chrysler and Ford) Galtaco supplied castings to Kelsey-Hayes Galtaco and Kelsey-Hayes signed a 3 year requirements K (1987) Galtaco was to be the sole source of certain types of castings, through 1990 Galtaco was to charge fixed prices for 1987, and scheduled price reductions for 1988 and 1989 Galtaco had been experiencing monetary loss for several years Board of directors decided to discontinue its foundry operation and cease production of castings Offered an agreement to its foundries operating for several months in exchange for a price increase of 30 percent effective shipments of May 1989 Kelsey-Hayes concluded it would not be able to obtain a sufficient supply of castings from other sources for 18-24 weeks Declining Galtaco's offer would have meant shutting down assembly plants for its major clients Any interruption of supply of brake assemblies longer than 5-10 days would halt Ford's production of a vehicle line Before entering the 1989 agreement, Kelsey-Hayes did not reserve any rights under the 87 contract when it accepted the offer. Subsequent contract or modification is invalid and therefore does not supersede an earlier contract within the subsequent contract was entered into under duress Sufficient evidence for a fact finder to find duress Economic duress can exist in the absence of an illegal threat; the threat must merely be wrongful. Even acts lawful may be wrongful depending on the circumstances. A company in this position was deprived of free will and had no alternative other than acquiescing to the demands of the party threatening to breach the contract.

y

y y

y y

y y

y y

y

In order to state a claim of economic duress a buyer coerced into executing a modification to an existing agreement must "at least display some protest against the higher price in order to put the seller on notice that the modification is not freely entered into." Kelsey-Hayes did not expressly reserve the right to sue, but a reasonable trier of facts could determine its protests effectively put Galtaco on notice the 89 agreements were agreed to under duress.

a. Brookside Farms v. Mama Rizzo¶s, Inc.
K where MRI would purchase 91,000 lbs of Basil Leaves V.P. of MRI

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