READING ASSIGNMENTS AND ISSUES TO CONSIDER

WEEKS 1-3

All assignments below refer to ROBERT E. SCOTT AND JODY S. KRAUS, CONTRACT LAW AND THEORY (5th ed.
2013) (“Casebook”) and the SELECTED PROVISIONS: RESTATEMENT OF CONTRACTS, UNIFORM COMMERCIAL
CODE, AND CISG (5TH ED.). Students generally find it useful to read the discussion notes following
each case. We will discuss many of those notes. The professor suggests that you read all the notes
unless he states otherwise in the syllabus.

Make sure that you also read the sections of the Restatement (2nd) of Contracts (“R2K”), the
Uniform Commercial Code (“UCC”), and the United Nations Convention on Contracts for the
International Sale of Goods (“CISG”) when noted in the text, but especially when noted in the
assignment schedule below. You may need to refer to cases, the R2K, the UCC, and the CISG in
your final exam.

The professor expects to cover the following material from the Casebook this semester, in the
following order:

• Module 1: Introduction (Chapter 1 of the Casebook)

• Module 2: Bargained for Exchange (Consideration) and Reasonably Relied Gift Promises
(Promissory Estoppel) (Chapter 2 of the Casebook)
• Module 3: Offer and Acceptance (Chapter 3 of the Casebook)
• Module 4: Relational Contracts (Chapter 4 of the Casebook)
• Module 5: Performance and Breach (Chapter 7 of the Casebook)
• Module 6: Contract Defenses (Chapters 5 and 8 of the Casebook)
• Module 7: Identifying and interpreting the terms of the agreement (Chapter 6 of the
Casebook)
• Module 8: Remedies (Chapter 10 of the Casebook)

Below are the tentative reading assignments for the semester. The professor will very likely
modify this schedule depending on the real pace of our class. Use this schedule as a rough
guideline of what the course may cover during the semester.

Also, the professor suggests that you stay one case beyond what he required you to read for that
day. For example, for Week 1, Class 2, read Trimmer v. Van Bommel in case our pace is faster
than what the professor expected. The professor is quite good in keeping with the pace laid out
in the schedule below, but sometimes the class does go a bit slower or faster than expected.

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WEEK 1

No class on Aug. 21, 2023.

Class 1 (Aug. 22, 2023)

MOD1: Introduction: The Edges Around the Contracts Law Jigsaw Puzzle

Issue:
• What is a contract?

Read:
• Casebook pages 5-10. (Bailey v. West). Read notes 1 and 2 on pages 9-10, but there is no
need to read the potato farmer/Five Guys problem on page 10.

Sources of Law:
Bailey v. West

Also, consider the following definition of “contract” in Blacks Law Dictionary: “an agreement
between two or more parties creating obligations that are enforceable or otherwise recognizable
at law.”

Class 2 (Aug. 23, 2023)

Issues:
• What is a contract? (cont.)
• What are promises?
• The reasonable person standard: Do the parties’ words and conduct reasonably show
intent to contract?

Read:
• Casebook pages 1-5; 10-12. Omit note 7 on pages 12-13.
• Casebook pages 14-23. Omit note 3 on pages 19-20 and note 5 on page 23.

Sources of Law:
Bailey v. West
R2K §§ 2, 4

Lucy v. Zehmer
R2K § 2, Comment B

Also consider the following:

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1. Emile Durkheim, one of the parents of sociology, developed in the early 1900s the concept
of the “non-contractual elements of contract.” This is how he defined the concept in his
important work, Division of Labor in Society:

For in a contract not everything is contractual. The only undertakings worthy of

the name are those that are desired by individuals, whose sole origin is this free
act of the will. Conversely, any obligation that has not been agreed by both sides
is not in any way contractual. Wherever a contract exists it is submitted to a
regulatory force that is imposed by society and not by individuals….

Considering the passage above and Bailey v. West’s assertion that contracts can be
implied in fact, evaluate Bailey’s argument on appeal:

West, through his authorized agent, Kelly, made a promise to pay for
Bascom’s Folly by delivering and unloading the horse from the van at my
stables.

I, in turn, by my conduct in taking control of the horse promised to provide

usual and ordinary services associated with my business.

Since this conduct is the normal and typical way in which I enter into
engagements to care for horses in my business, the reciprocating conduct
meets the definition of “promise” in Restatement Section 2 and a contract
is formed through the exchange of conduct promises.

Should Bailey have prevailed? Could there have been terms implied in fact – “non
contractual elements of contract” – that could have gap-filled and helped Bailey
argue that West was contractually bound to him?

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WEEK 2

Class 1 (Aug. 28):

Issues:
• Definite terms: Are the terms of the promises complete and clear?
• Does the UCC apply? (Is the contract one for the sale of goods?)
• Does the CISG apply? (Is the contract for the sale of goods by parties in two signatory
states of the CISG?)

Read:
Casebook pages 30-42
Watch:
Goods Tutorial (in ICON)

Sources of Law:
Trimmer v. Van Bomel
Wagner Excello Foods, Inc. v. Fearn Int’l, Inc.
R2K § 33
UCC §§ 2-102, 2-105(1), 2-204, 2-305
CISG Art. 1(1), 14, 55

Class 2 (Aug. 29):

Issue:
• Consideration doctrine: Were the promises exchanged “bargained for”?

Read:
Casebook pages 42-52. Read notes 1, 3, 4, and 5.

Sources of Law:
Hamer v. Sidway
R2K §§ 71, 79
St. Peter v. Pioneer Theatre Corp.

After reading Hamer v. Sidway and subsequent notes, consider the following words from the
Scottish philosopher Adam Smith:

It is not from the benevolence of the butcher, the brewer, or the baker that we
expect our dinner, but from their regard to their own self-interest. We address
ourselves not to their humanity but to their self-love, and never talk to them of our
own necessities, but of their advantages. Nobody but the beggar chooses to
depend chiefly upon the benevolence of his fellow-citizens.

1. If benevolence is akin to gift, is Adam Smith saying that gift exchanges are asymmetric
exchanges between unequal parties, i.e., between those who can give (the rich, or the

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 nobleman) and those who can only receive (the poor, or the plebian)? Additionally, is
he equating gift as some sort of degrading and undignified exchange, while “self-
interest”, “self-love,” and “advantages,” all aspects of “bargained for exchange,” are
for those individuals ranked higher than a “beggar” – e.g., the middle and upper
classes?

2. Might Adam Smith also suggest that bargained for exchange, concerned with
individual self-interest, not only best fulfills human needs for “meat, drink, and
bread,” but is also a leveling, or equalizing institution where human beings can find
dignity?

3. The feudal European nobility was known to transact with the merchant class, at times,
by setting “their own low prices for everything,” paid suppliers with “crappy gifts” and
“gestures,” not with money, and oftentimes “at their own leisurely pace,” if they paid
at all (See LAURENCE FONTAINE, THE MORAL ECONOMY). To the extent the nobility widely
acted in this fashion, can we understand why Scottish Enlightenment thinkers like
Adam Smith idealized the market?

4. If Adam Smith’s positive view of bargained for exchange resonates widely among
some sectors of societies, do you think that those sectors would like to extend
contract-like exchanges widely? Can this idealized view of contract help explain the
importance that the law gives to contract, and especially a view of contract as
bargained for exchange?

Class 3 (Aug. 30):

Issue:
• Unconscionable contracts: Should courts enforce contracts that “shock the conscience”?

Read:
Casebook pages 52-66 (Omit note 7 on pages 62-63).

Legal Sources
Williams v. Walker-Thomas I and II
R2K§ 208
UCC § 2-302

When you finish reading the material on unconscionability, including all notes, consider the
following segment of Karl Marx’s Capital:

“[The] sphere … within whose boundaries the sale and purchase of labour-power
goes on, is in fact a very Eden of the innate rights of man. There alone rule
Freedom, Equality, Property and Bentham. Freedom, because both buyer and
seller of a commodity, say of labour-power, are constrained only by their own free
will. They contract as free agents, and the agreement they come to, is but the form

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 in which they give legal expression to their common will. Equality, because each
enters into relation with the other, as with a simple owner of commodities, and
they exchange equivalent for equivalent. Property, because each disposes only of
what is his own. And Bentham, because each looks only to himself.… On leaving
this sphere of simple circulation or of exchange of commodities, which furnishes
the “Free-trader Vulgaris” with his views and ideas, and with the standard by
which he judges a society based on capital and wages, we think we can perceive a
change in the physiognomy of our dramatis personae. He, who before was the
money-owner, now strides in front as capitalist; the possessor of labour-power
follows as his labourer. The one with an air of importance, smirking, intent on
business; the other, timid and holding back, like one who is bringing his own hide
to market and has nothing to expect but—a hiding. (Anderson 2017: 2-3, citing
Marx [1867]1912: 195-96).

If Adam Smith perceived a capitalist “dream” stemming from individualism and self-
interest, Karl Marx perceived a “nightmare” for workers, who had nothing to sell but their
labor power (capacity to work) and owned little to no money or property. Can you see a
link between inequality and the importance of the unconscionability doctrine? Do you
think that law should provide alternatives to contract to provide fairness to economically
subordinated groups such as workers who contract with employers? Consumers?
Tenants? Small businesses? Children?

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WEEK 3
No class on Monday, Sept. 4 (Labor Day)

Class 1 (Sept. 5):

Issues:
• How do we articulate rules to deal with cases when the law is vague, ambiguous, or has
missing or contradictory rules?
• Do we apply normative theories that treat promises as:
o moral obligations that safeguard individual autonomy?
o tools that makes contracting cheaper, promoting efficiency, and maximizing
societal welfare?
o enforceable only if doing so would result in fair outcomes, promoting equity?
Read :
Casebook pages 23-30

Consider: How do contract law theories manifest themselves in:

• Bailey v. West?
• Lucy v. Zehmer?
• Wagner Excello Foods, Inc. v. Fearn Int’l, Inc. ?
• Williams v. Walker-Thomas II?

Class 2 (Sept. 6):

Issues:
• Substantial performance: Should courts merely require “substantial performance” and
not “perfect tender” from promisees?
• Performer’s risk rule: Who bears the risks associated with contract performance?

Read:
Casebook pages 66-84.

Legal Sources
Jacob & Youngs, Inc. v. Kent
R2K §§ §§ 228, 229, 235, 236, and 241
UCC §§ 2-601

Stees v. Leonard
R2K §§ 261 – 263
UCC § 2-615