High Court Case Summaries On Contracts, Keyed To Farnsworth, 8th - Publisher's Editorial Staff

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HIGH COURT CASE SUMMARIES
CONTRACTS
Keyed to Farnsworth’s Casebook on Contracts, 8th

Edition
Mat #41596237
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The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute
for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a
competent attorney or other professional.
High Court Case Summaries is a registered trademark used under license. All rights reserved.
© West, a Thomson business, 2002

© 2009 Thomson Reuters
© 2014 LEG, Inc. d/b/a West Academic
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West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used
under license.
Printed in the United States of America
ISBN: 978-1-62810-002-0
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Table of Contents
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Chapter One. Bases for Enforcing Promises

Hawkins v. McGee
Bayliner Marine Corp. v. Crow
United States Naval Institute v. Charter Communications, Inc.
Sullivan v. O’Connor
White v. Benkowski
Hamer v. Sidway
Dyer v. National By-Products, Inc.
Feinberg v. Pfeiffer Co.
Mills v. Wyman
Webb v. McGowin
Harrington v. Taylor
Kirksey v. Kirksey
Lake Land Employment Group of Akron, LLC v. Columber
Strong v. Sheffield
Mattei v. Hopper
Structural Polymer Group, Ltd. v. Zoltek Corp.
Eastern Air Lines, Inc. v. Gulf Oil Corporation
Wood v. Lucy, Lady Duff-Gordon
Ricketts v. Scothorn
Wright v. Newman
Cohen v. Cowles Media Company
D & G Stout, Inc. v. Bacardi Imports, Inc.
Cotnam v. Wisdom
Callano v. Oakwood Park Homes Corp.
Pyeatte v. Pyeatte
Chapter Two. Creating Contractual Obligations

Lucy v. Zehmer
Specht v. Netscape Communications Corp.
Owen v. Tunison
Harvey v. Facey
Fairmount Glass Works v. Grunden [Crunden]-Martin Woodenware Co.
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Lefkowitz v. Great Minneapolis Surplus Store
International Filter Co. v. Conroe Gin, Ice & Light Co.
White v. Corlies & Tift
Ever-Tite Roofing Corporation v. Green
Allied Steel and Conveyors, Inc. v. Ford Motor Co.
Corinthian Pharmaceutical Systems, Inc. v. Lederle Laboratories
Dickinson v. Dodds
Drennan v. Star Paving Co.
United States Life Insurance Company v. Wilson
Dorton v. Collins & Aikman Corp.
C. Itoh & Co. (America) Inc. v. Jordan Int’l Co.
Bayway Refining Co. v. Oxygenated Marketing & Trading A.G.
Northrop Corp. v. Litronic Industries
Step-Saver Data Systems, Inc. v. Wyse Technology [and The Software Link, Inc.]
ProCD, Inc. v. Zeidenberg
Hill v. Gateway 2000, Inc.
Hoffman v. Red Owl Stores
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Dixon v. Wells Fargo, N.A.

Cyberchron Corp. v. Calldata Systems Development, Inc.
Channel Home Centers, Division of Grace Retail Corp. v. Grossman
Toys, Inc. v. F.M. Burlington Company
Oglebay Norton Co. v. Armco, Inc.
Chapter Three. Statutes of Frauds

C.R. Klewin, Inc. v. Flagship Properties, Inc.
Langman v. Alumni Association of the University of Virginia
Central Ceilings, Inc. v. National Amusements, Inc.
Crabtree v. Elizabeth Arden Sales Corp.
Beaver v. Brumlow
Monarco v. Lo Greco
St. Ansgar Mills, Inc. v. Streit
Chapter Four. Policing the Bargaining Process

Douglass v. Pflueger Hawaii, Inc.
Ortelere v. Teachers’ Retirement Bd.
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Cundick v. Broadbent
Kenai Chrysler Center, Inc. v. Denison
Alaska Packers’ Ass’n v. Domenico
Watkins & Son v. Carrig
Austin Instrument, Inc. v. Loral Corporation
Odorizzi v. Bloomfield School District
Swinton v. Whitinsville Sav. Bank
Kannavos v. Annino
Speakers of Sports v. ProServ
Vokes v. Arthur Murray, Inc.
Chapter Five. Determining the Parties’ Obligations under the Contract

Gianni v. R. Russell & Co., Inc.
Masterson v. Sine
Bollinger v. Central Pennsylvania Quarry Stripping and Construction Co.
Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co.
Delta Dynamics, Inc. v. Arioto
Greenfield v. Philles Records, Inc.
W.W.W. Associates, Inc. v. Giancontieri
Trident Center v. Connecticut General Life Ins. Co.
Frigaliment Importing Co. v. B.N.S. International Sales Corp.
Hurst v. W.J. Lake & Co.
Nanakuli Paving & Rock Co. v. Shell Oil Co.
Columbia Nitrogen Corp. v. Royster Co.
Raffles v. Wichelhaus
Oswald v. Allen
Colfax Envelope Corp. v. Local No. 458–3M
Koken v. Black & Veatch Construction, Inc.
Lewis v. Mobil Oil Corporation
South Carolina Electric and Gas Co. v. Combustion Engineering, Inc.
Henningsen v. Bloomfield Motors, Inc.
Chapter Six. Limits on the Bargain and its Performance
McKinnon v. Benedict
Tuckwiller v. Tuckwiller
Black Industries, Inc. v. Bush
O’Callaghan v. Waller & Beckwith Realty Co.
Graham v. Scissor-Tail, Inc.
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Doe v. Great Expectations
Williams v. Walker-Thomas Furniture Co.

Jones v. Star Credit Corp.
Scott v. Cingular Wireless
Dalton v. Educational Testing Service
De La Concha of Hartford, Inc. v. Aetna Life Insurance Company
Market Street Associates v. Frey [General Electric Pension Trust]
Bloor v. Falstaff Brewing Corp.
Bovard v. American Horse Enterprises, Inc.
X.L.O. Concrete Corp. v. Rivergate Corp.
Hopper v. All Pet Animal Clinic
Sheets v. Teddy’s Frosted Foods
Balla v. Gambro, Inc.
Simeone v. Simeone
In the Matter of Baby M
Chapter Seven. Remedies for Breach

Campbell Soup Co. v. Wentz
Klein v. PepsiCo
Morris v. Sparrow
Laclede Gas Co. v. Amoco Oil Co.
Northern Delaware Industrial Development Corp. v. E. W. Bliss Co.
Walgreen Co. v. Sara Creek Property Co.
Vitex Manufacturing Corp. v. Caribtex Corp.
Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc.
R.E. Davis Chemical Corp. v. Diasonics, Inc.
United States v. Algernon Blair, Inc.
Jacob & Youngs v. Kent
Plante v. Jacobs
Groves v. John Wunder Co.
Peevyhouse v. Garland Coal and Mining Co.
Rockingham County v. Luten Bridge Co.
Tongish v. Thomas
Parker v. Twentieth Century-Fox Film Corp.
Hadley v. Baxendale
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Delchi Carrier SpA v. Rotorex Corp.
Kenford Co. v. County of Erie
Fera v. Village Plaza, Inc.
Dave Gustafson & Co. v. State
Lake River Corp. v. Carborundum
Wasserman’s Inc. v. Township of Middletown
Chapter Eight. Performance and Breach
Luttinger v. Rosen
Internatio-Rotterdam, Inc. v. River Brand Rice Mills, Inc.
Peacock Construction Co. v. Modern Air Conditioning, Inc. [and Overly
Manufacturing]
Gibson v. Cranage
McKenna v. Vernon
Hicks v. Bush
Kingston v. Preston
Stewart v. Newbury
Bartus v. Riccardi
Gill v. Johnstown Lumber Co.
Britton v. Turner
Kirkland v. Archbold
Walker & Co. v. Harrison
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K & G Construction Co. v. Harris

Iron Trade Products Co. v. Wilkoff Co.
New England Structures, Inc. v. Loranger
Hochster v. De La Tour
Kanavos v. Hancock Bank & Trust Co.
Cosden Oil & Chemical Company v. Karl O. Helm Aktiengesellschaft
McCloskey & Co. v. Minweld Steel Co.
By-Lo Oil Co. v. ParTech, Inc.
Rocheux Int’l of N.J. v. U.S. Merchants Fin. Group
Chapter Nine. Basic Assumptions: Mistake, Impracticability, & Frustration

Stees v. Leonard
Renner v. Kehl
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Mineral Park Land Co. v. Howard
Taylor v. Caldwell
Transatlantic Financing Corporation v. United States
Selland Pontiac-GMC, Inc. v. King
Canadian Industrial Alcohol Co. v. Dunbar Molasses Co.
Krell v. Henry
Swift Canadian Co. v. Banet
Chase Precast Corp. v. John J. Paonessa Co.
Northern Indiana Public Service Co. v. Carbon County Coal Co.
Young v. City of Chicopee
Chapter Ten. Third Parties: Rights & Responsibilities

Lawrence v. Fox
Seaver v. Ransom
Detroit Institute of Arts Founders Society v. Rose
Sisney v. State
Sisney v. Reisch
Verni v. Cleveland Chiropractic College
Grigerik v. Sharpe
Sally Beauty Co. v. Nexxus Products Co.
Herzog v. Irace
Bel-Ray Company v. Chemrite (Pty) Ltd.
Delacy Investments, Inc. v. Thurman & Re/Max Real Estate Guide, Inc.
Chemical Bank v. Rinden Professional Association
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CHAPTER ONE
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Bases for Enforcing Promises
Hawkins v. McGee
Instant Facts: Dr. McGee (D) guaranteed that an operation would be “a hundred
percent” successful, but Hawkins (P) was permanently injured as a result of the
surgery.
Black Letter Rule: The question of whether a contract is formed is a factual
question and is to be decided based on the words spoken, as well as the context in
which they are spoken.
Instant Facts: Crow (P) purchased a boat manufactured by Bayliner (D) that did
not perform as well as Crow (P) expected.
Black Letter Rule: Statements that do not relate to the particular item purchased,
or that merely commend the quality of goods, do not create express warranties.
Instant Facts: Naval (P) bought an action against Charter Communications (D) and
Berkeley Publishing Group (D) for breach of licensing contract not to publish book
before the month of October.
Black Letter Rule: Courts will not grant punitive damages for a breach of
contract.
Instant Facts: Plastic surgeon disfigures patient in the course of performing a nose
job.
Black Letter Rule: Clear proof of a doctor’s promise of specific medical results
may give rise to an enforceable contract.
White v. Benkowski
Instant Facts: White (P) recovered a judgment against Benkowski (D) for breach
of a contract to supply water, and the court reduced the damages awarded by the
jury to one dollar in compensatory damages and no punitive damages.
Black Letter Rule: Punitive damages may not be recovered for breach of contract.
Hamer v. Sidway
Instant Facts: William E. Story Sr. (D) promised his nephew, William E. Story Jr.
(P), that he would pay William Jr. $5,000 if William Jr. would refrain from
drinking, using tobacco, swearing, and gambling, until William Jr. Was 21 years of
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age, which William Jr. did.
Black Letter Rule: The party who abandons some legal right in the present or
limits his legal freedom of action in the future as an inducement for a promise,
gives sufficient consideration to create a legally binding contract.
Instant Facts: Dyer (P) was injured on the job and claimed that his agreement not
to sue his employer was sufficient consideration for a lifetime employment
agreement.
Black Letter Rule: Forbearance to assert a claim or defense that proves to be
invalid is consideration if the forbearing party believes that the claim or defense
may fairly be determined to be valid.
Instant Facts: Pfelffer Co. (D) stopped making pension payments, pursuant to a
resolution adopted by the Board of Directors, to Feinberg (P) after she retired.
Black Letter Rule: Past services is not sufficient consideration to support a

promise.
Mills v. Wyman
Instant Facts: Seth Wyman (D) failed to pay Daniel Mills (P) as promised for the
expenses Mills (P) incurred from providing care for Wyman’s (D) ill son.
Black Letter Rule: Past expense is not sufficient consideration to support a later
promise to pay for the expenses.
Webb v. McGowin
Instant Facts: Joe Webb (P) saved Greeley McGowin (D) from death or serious
bodily harm during Webb’s (P) course of employment, for which McGowin (D)
agreed to pay Webb (P) $15 every two weeks for the remainder of Webb’s (P) life.
Black Letter Rule: Past act of saving a party from death or serious bodily injury,
that results in injuries to the saving party, is sufficient consideration for the saved
party’s subsequently induced promise to pay the saving party.
Instant Facts: Harrington (P) was injured while protecting Taylor (D) from an
assault by his wife, and Taylor (D) promised to pay her damages.
Black Letter Rule: A humanitarian act performed voluntarily is not sufficient
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consideration for a promise.
Kirksey v. Kirksey
Instant Facts: A widow attempts to impose contractual liability for a promise
made by her brother-in-law which induced her to leave her residence and move to
his estate.
Black Letter Rule: A bargained-for exchange is required for all contracts, and
merely changing position in reliance on a statement is insufficient to impose
contractual liability in absence of any bargain.
Instant Facts: Columber (D) worked for Lake Land (P) for several years before
signing an agreement not to compete with Lake Land (P) and later claimed that the
agreement was not supported by consideration.
Black Letter Rule: The continuation of an at-will employment relationship after
the employer imposes a new requirement on the employee is sufficient
consideration for the employee’s agreement to that requirement.
Strong v. Sheffield
Instant Facts: Strong (P) attempts to obtain payment for a note from the guarantor,
although Strong (P) convinced the guarantor to sign the note merely by promising
not to demand payment until he felt like it.
Black Letter Rule: In order to be legally binding, a promise must be supported by
consideration and cannot be illusory.
Mattei v. Hopper
Instant Facts: A seller attempts to back out of a real estate sale on the ground that
the buyer’s satisfaction clause rendered the buyer’s promise illusory.
Black Letter Rule: A contract that is dependent on one party’s subjective
satisfaction with related matters may nevertheless be enforceable.
Instant Facts: Zoltek (D) agreed to fulfill all of Structural Polymer’s (P)
requirements for a certain type of carbon fiber, but Zoltek (D) claimed the contract
lacked mutuality of obligation.
Black Letter Rule: The implied obligation of good faith in requirements contracts
is enough to avoid finding a contract null and void due to an illusory promise.
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Instant Facts: In the midst of an oil embargo, Eastern Air Lines (P) seeks an
injunction to prevent Gulf Oil (D) from breaching the requirements contract
between the parties.
Black Letter Rule: Requirements contracts are neither indefinite nor lacking in
mutuality.
Instant Facts: A famous fashion designer attempts to invalidate an exclusive-
dealing arrangement by arguing that the supplier never made any promise to market
her goods.
Black Letter Rule: Exclusive dealing arrangements impose an obligation by the
seller to use his best efforts to distribute and market goods.
Instant Facts: A woman who quit work in reliance on her grandfather’s promise to
support her sues when the executor of her grandfather’s estate fails to pay.
Black Letter Rule: Where a person changes position in detrimental reliance on a
promise, the promisor may be estopped from later denying the promise.
Instant Facts: Feinberg (P) retired from her employment, induced by her
employer’s promise to pay retirement benefits, and Feinberg (P) sues when the
payments are eventually discontinued.
Black Letter Rule: Retirement in reliance on pension benefits is sufficient
reliance to estop the employer from paying retirement benefits.
Wright v. Newman
Instant Facts: Wright (D) held himself out as the father of Newman’s (P) son, and
Newman (P) filed suit against him for child support.
Black Letter Rule: If the promises in or in connection with an invalid and
unenforceable contract wrongfully cause a party to forgo a valuable legal right to
his detriment, and the party who made the promises waives the right to repudiate
the contract, the contract is enforceable.
Instant Facts: Cohen (P), who leaked a newspaper story on the assurance that his
name would be kept confidential, sues when the newspaper editors publish his
identity.
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Black Letter Rule: Promissory estoppel is applicable only where enforcement of
a promise is required in order to prevent an injustice.
Instant Facts: A liquor distributor, who rejected a purchase offer in reliance on a
supplier’s promise not to terminate the relationship, sues the supplier after the
supplier withdrew its account.
Black Letter Rule: Promissory estoppel allows recovery of reliance damages and
not expectancy damages.
Cotnam v. Wisdom
Instant Facts: Wisdom (P) was a physician who responded to an emergency call
from a spectator to perform emergency surgery on Harrison (D), decedent, in an
effort to save Harrison’s life, but the operation was unsuccessful, and Harrison
died without regaining consciousness.
Black Letter Rule: When a physician renders emergency medical services to a

person, who due to his medical or mental condition is not capable of agreeing to the
treatment, the law will imply a contract for the reasonable value of the services.
Instant Facts: Operators of a nursery seek to recover payment for shrubbery from
the home builder, although a contract existed only with the now-deceased home
owner.
Black Letter Rule: Quasi-contractual recovery is not available when an
alternative remedy based on an actual contract exists.
Pyeatte v. Pyeatte
Instant Facts: After spouses agree to put each other through graduate school, the
husband uses the wife’s money to graduate law school, then divorces her.
Black Letter Rule: While ex-spouses are not entitled to restitution for performing
usual duties incidental to marriage, restitution is available if the spouses had an
agreement and one spouse made extraordinary efforts which benefited the other
solely.
Hawkins v. McGee
(Patient) v. (Surgeon)
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84 N.H. 114, 146 A. 641 (1929)
WORDS THAT CONSTITUTE A PROMISE MAY BE THE BASIS OF A

CONTRACT
INSTANT FACTS Dr. McGee (D) guaranteed that an operation would be “a

hundred percent” successful, but Hawkins (P) was permanently injured as a result
of the surgery.
BLACK LETTER RULE The question of whether a contract is formed is a

factual question and is to be decided based on the words spoken, as well as the
context in which they are spoken.
PROCEDURAL BASIS
Appeal from a judgment for Hawkins (P).
FACTS
McGee (D) performed surgery on Hawkins’s (P) hand. The surgery involved taking
skin from Hawkins’s (P) chest and grafting onto his hand, to replace scar tissue
from a burn. Before the surgery, McGee (D) stated that “I will guarantee to make
the hand a hundred per cent perfect hand or a hundred per cent good hand.” There
also was evidence that McGee (D) asked Hawkins’s (P) father repeatedly for
permission to perform the surgery, and the attorney for Hawkins (P) advanced the
theory that McGee (D) wanted to experiment with skin grafting, a field in which he
had little experience. In addition, there was testimony that Hawkins’s (P) father
asked how long Hawkins (P) would be in the hospital, and that McGee (D) replied
“[t]hree or four days, not over four; then the boy can go home and it will be just a
few days when he will go back to work with a good hand.”
McGee (D) argued that no reasonable man would understand his words as being
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used with the intention of entering into a contractual relationship. McGee (D)
claimed that it was common knowledge that the results of all surgeries are
uncertain, and that it was improbable that a surgeon would ever contract to make a
damaged body part “one hundred per cent perfect.” The trial court held that there
was a contract, and that McGee (D) breached that contract.
ISSUE
Did McGee’s guarantee constitute an inducement to make a contract?
DECISION AND RATIONALE
(Branch, J.) Yes. The question of whether a contract is formed is a factual question
and is to be decided based on the words spoken, as well as the context in which
they are spoken. The jury had a reasonable basis for determining that McGee (D)
intended that his words should be taken at face value, and that he meant them to be
an inducement to the granting of consent to the surgery.
The statement that Hawkins (P) would be home after three or four days in the
hospital can only be construed as an opinion, not as a guarantee. It is the promise
that Hawkins’s (P) hand would be “one hundred per cent perfect” that provides the
basis for the finding that McGee (D) made a guarantee. Reversed and remanded for
a new trial on the issue of damages.
Analysis:
This case is popularly known as the “Hairy Hand” case, and has a firm place in the
folklore of American legal education. The court emphasizes that it is merely
upholding the findings of the jury that McGee’s (D) statements, in their context,
created a binding promise. It can be inferred that, had the jury found there was no
guarantee, the court would have deferred to that finding as well. The question of
whether particular words are sufficient to form a contract is a question of law to be
decided by the court, but the ultimate question of whether the “sufficient” words do
in fact make a contract is a factual one for the jury.

(Boat Builder) v. (Buyer)
257 Va. 121, 509 S.E.2d 499 (1999)
WARRANTIES ARISE FROM STATEMENTS OF FACT
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INSTANT FACTS Crow (P) purchased a boat manufactured by Bayliner (D)
that did not perform as well as Crow (P) expected.
BLACK LETTER RULE Statements that do not relate to the particular item
purchased, or that merely commend the quality of goods, do not create express
warranties.
PROCEDURAL BASIS
Appeal from a judgment for Crow (P).
FACTS
Crow (P) purchased a “3486 Trophy Convertible,” a sportfishing boat
manufactured by Bayliner (D). He intended to use the boat for offshore fishing.
Before the purchase, Crow took an excursion of approximately twenty minutes on
the boat, and piloted the boat for a short period of time. There was no speed
measurement equipment onboard the boat during the test, so Crow (P) could not
determine its speed. A salesman told Crow (P) that he had no experience with that
particular model boat, and had no knowledge of its performance. He gave Crow (P)
copies of “prop matrixes,” documents that showed the recommended propeller and
engine sizes for each model made by Bayliner (D). The matrix showed that the
3486 Trophy Convertible had a top speed of thirty miles per hour with a “20×20”
propeller. The matrix also stated that the data was for “comparative purposes
only,” and did not account for variables such as weather conditions. The matrix
explained that testing was done with approximately 600 pounds of crew and
equipment weight. Crow (P) was also given a brochure showing a 3486 Trophy
Convertible fully rigged for offshore fishing. The brochure stated that the model
“deliver[ed] the kind of performance you need to get to the prime offshore fishing
grounds.”
The boat purchased by Crow (P) had a “20×17” propeller. Crow (P) also
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purchased various accessories, such as navigational and fishing equipment, covers,
an extra radio, an icemaker, and heating and air conditioning equipment, to be
installed by the dealer. The total weight of the additional equipment was
approximately 2,000 pounds. After Crow (P) took delivery of the boat, he found
that he could not reach a top speed of more than 13 miles per hour. He returned the
boat to the dealer, and various repairs and adjustments were made over the course
of the next twelve to fourteen months. Despite those repairs and adjustments, the top
speed reached by the boat was seventeen miles per hour, except for one time when
the boat reached twenty-four miles per hour. A representative of Bayliner (D) told
Crow (P) that the published figures he received were inaccurate, and that the
maximum speed the boat could reach was twenty-three to twenty-five miles per
hour.
Crow (P) brought suit against Bayliner (D), alleging breach of express and implied
warranties of merchantability and fitness for a particular purpose. Crow (P)
testified that the boat’s low speed made it worthless to him, and that he would not
have purchased it if he had known that the maximum speed was only twenty-three to
twenty-five miles per hour. He testified that he could not use the boat for offshore
fishing. Other witnesses testified that a typical offshore
fishing site in the area was approximately ninety miles offshore, and the speed at
which a boat could reach those fishing grounds had an impact on the amount of time
left for fishing. The trial court ruled in Crow’s (P) favor, and held that Bayliner (D)
breached express and implied warranties of merchantability and fitness for a
particular purpose.
ISSUE
Did Bayliner (D) make a warranty that was breached?

(Keenan, J.) No. Statements that do not relate to the particular item purchased, or
that merely commend the quality of goods, do not create express warranties.
Express warranties are created by affirmations of fact, and the question of whether
a particular statement creates a warranty is a factual question for the jury. A
statement relating to the quality of particular goods may create a warranty. In this
case, however, the statements in the prop matrix did not relate to the boat purchased
by Crow (P), or even to a similar boat. Crow’s (P) boat had a different propeller
from the one referred to in the matrix and was loaded with substantially heavier
equipment. The statements in the prop matrix could not constitute an express
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warranty with regard to Crow’s (P) boat.
Similarly, the statements in the brochure did not create a warranty. The brochure
was only a commendation of the boat’s performance, and was only Bayliner’s (D)
opinion. Statements of opinion cannot create a warranty. Reversed.
Analysis:
Why did Crow (P) think that the prop matrix contained anything about the
performance of his boat when, at the very least, the propellers were different?
Advertisements and marketing documents routinely carry disclaimers, so it should
have come as no surprise to him that there would be some limitations or
qualifications on the statistics set out. The case here concerns only Crow’s (P)
claim against Bayliner (D), but he also brought a claim against the dealer who sold
him the boat. The opinion—addressing as it does only the claims against Bayliner
(D)—does not say what, if anything, the dealer might have told Crow (P) when he
selected the propeller and ordered the additional equipment.
CASE VOCABULARY
EXPRESS WARRANTY: A warranty created by the overt words or actions of the
seller. Under the UCC, an express warranty is created by any of the following: (1)
an affirmation of fact or promise made by the seller to the buyer relating to the
goods that becomes the basis of the bargain; (2) a description of the goods that
becomes part of the basis of the bargain; or (3) a sample or model made part of the
basis of the bargain. UCC § 2–313.
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE: A
warranty—implied by law if the seller has reason to know of the buyer’s special
purposes for the property—that the property is suitable for those purposes—
sometimes shortened to warranty of fitness.
IMPLIED WARRANTY OF MERCHANTABILITY: A warranty that the property is
fit for the ordinary purposes for which it is used.

(Assignee of Copyright) v. (Publishing Lessee)
936 F.2d 692 (2nd Cir. 1991)
COURTS WILL NOT ALLOW PUNITIVE DAMAGES ON A BREACH OF

CONTRACT
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INSTANT FACTS Naval (P) bought an action against Charter Communications
(D) and Berkeley Publishing Group (D) for breach of licensing contract not to
publish book before the month of October.
BLACK LETTER RULE Courts will not grant punitive damages for a breach
of contract.
PROCEDURAL BASIS
Appeal following remand for relief for breach of contract.
FACTS
Naval (P), as the assignee of the author’s copyright of the book entitled “The Hunt
For Red October,” entered into a licensing agreement granting Charter
Communications, Inc. (D) and Berkeley Publishing Group (D) an exclusive license
to publish a paperback edition of the book not sooner than October 1985. But, the
retail sales of the paperback began September 15, 1985. Early sales were
sufficiently substantial that the book was near the top of the paperback best seller
lists before the end of September. Naval (P) learned of Berkeley’s (D) plans for
early shipments, but could not get a preliminary injunction. After the trial, the
District Court ruled that Berkeley (D) had not breached the contract because it was
to ship prior to the agreed publication date, in accordance with industry custom. On
appeal, the Circuit Court reversed the case holding that the contract was breached
because of the retail sales prior to October 1985. The Circuit Court remanded the
case back to the trial court for judgement and appropriate relief. On remand, the
trial court concluded that Naval (P) was entitled to recover actual damages for
copyright infringement and, in addition, profits wrongfully received by Berkeley
(D) for that infringement. Both parties appealed the relief.
ISSUE
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Will a court grant profits that are in addition to the actual damages on a breach of
contract?

(Kearsee). No. The purpose of damages for breach of contract is to compensate the
injured party for the loss caused by the breach. Those damages are generally
measured by the plaintiff’s actual loss. While on occasion a defendant’s profits are
used as a measure of damages, this generally occurs when those profits tend to
define the plaintiff’s loss. The central object behind the system of contract remedies
is compensatory, not punitive. Punitive damages are not recoverable for breach of
contract unless conduct constituting the breach is also a tort, for which such
damages are recoverable. Reverse the award for profits and affirm the award for
damages.
Analysis:
One fundamental assumption made by courts in enforcing promises is that the law is
concerned mainly with damages to redress the breach and not with the punishment
of a promisor by
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compelling performance of a promise. Here the inclusion of profits in the

calculation of damages was in addition to actual damages and thus equated to a
punitive recovery. Courts normally attempt to put the plaintiff in the position he
would have been in had the contract been performed, not a better one.
CASE VOCABULARY
ERRONEOUS: Groundless, characterized by error.
PUNITIVE: Relating to punishment; having the character of inflicting a punishment
or penalty.
REMAND: To send back; the sending by the appellate court of the case back to the
same court out of which it came, for the purpose of having some further action taken
on it there.
11
(Patient) v. (Plastic Surgeon)
363 Mass. 579, 296 N.E.2d 183 (1973)
26
SUPREME COURT OF MASSACHUSETTS ENFORCES A DOCTOR’S
PROMISE REGARDING A SUCCESSFUL NOSE JOB
INSTANT FACTS Plastic surgeon disfigures patient in the course of performing

a nose job.
BLACK LETTER RULE Clear proof of a doctor’s promise of specific

medical results may give rise to an enforceable contract.
PROCEDURAL BASIS
Appeal from a jury verdict for the plaintiff in a breach of contract action.
FACTS
Sullivan (P), a professional entertainer, want to O’Connor (D) to have plastic
surgery performed on her nose. O’Connor (D) promised to do the surgery. He also
promised that it would make Sullivan (P) more beautiful and would enhance her
appearance. In fact, the surgery was a disaster. O’Connor (D) told her the nose job
would only require two operations, but it required three. He told her she would be
more beautiful, but Instead, she was left with an asymmetrical nose which was flat
and broad in some places and bulbous in others [aren’t all noses?]. Her appearance
could not be improved by further surgery. Sullivan (P) subsequently sued O’Connor
(D) for malpractice. She also sued for breach of contract based on O’Connor’s (D)
representations prior to the surgery. It seems that O’Connor (D) never took this
claim seriously since it appeared to be without precedent in Massachusetts. The
jury ruled in Sullivan’s (P) favor on the breach of contract Issue and O’Connor (D)
appeals this verdict.
ISSUE
Can an agreement between a doctor and a patient for a specified medical result be
27
enforced?
(Kaplan) Yes. Courts have occasionally enforced agreements between doctors and
patients. However they generally enforce these agreements reluctantly and with
certain considerations in mind. Medical practice is inherently uncertain. The
physical needs and reactions to treatment vary from patient to patient. Doctors
cannot be liable for every optimistic opinion of a patient’s condition [not a problem
for Dr. Kevorklan]. Unfortunately, patients are likely to interpret these opinions as
promises, especially when things do not work out as planned. In addition, patients
must be protected from unscrupulous doctors who fraudulently promise miraculous
results. The difficulty lies in the grey area between optimistic opinions and
unfounded promises. It is necessary to balance the protection which individual
doctors require against the need to protect the integrity of the medical profession.
As a result, courts have required clear proof before considering a breach of
contract action in a doctor/patient relationship. In this case, no error in permitting
the breach of contract claim to go forward. Judgement Affirmed.
12
Analysis:
Justice Kaplan appears to support an Inquiry Into the patient’s subjective

interpretation of a doctor’s opinion in order to determine if a promise has been
made. This approach is not necessarily at odds with the objective intent theory.
Courts will frequently assume that parties to business contracts have a working
knowledge of the terms and conditions that are generally associated with their
business. In this case, the court is simply charging doctors with the knowledge that
their objectively harmless opinions may have a significant impact on a distraught or
confused patient. This seems reasonable, since doctors are sought out precisely
because they take control of situations that are beyond the abilities of their patients.
Another possible approach to this problem is used in Michigan, where agreements
regarding the success of medical treatment are now statutorily void unless signed
and in writing.
CASE VOCABULARY
BILL OF EXCEPTIONS: Formal written statement of the objections by a party
during trial to the trial judge’s decisions, rulings or instructions.
CASE AT BAR: Case before the court.
CHARLATAN: A quack or fraud; one who makes a noisy, showy pretense to
28
knowledge or ability.
COUNT: (n.) One of the plaintiff’s causes of action.
EXCEPT: (v.) To leave out of an account or consideration; to object.
EXPECTANCY: That which is expected or hoped for, sometimes conditioned on or
dependent on an expected event.
NONSUITED: A case that has a judgment given against it because plaintiff is
unable to prove his case (Involuntary nonsuit) or refuses or neglects to proceed to
trial (voluntary nonsuit).
SEDULOUS: Diligent in application or pursuit.
SPECIAL QUESTION: A point in dispute which is submitted for the decision of a
jury.
STATUS QUO ANTE: The state of things before.
13
White v. Benkowski
(Water Purchaser) v. (Water Supplier)
37 Wis.2d 285, 155 N.W.2d 74 (1967)
TEN DOLLARS IN DAMAGES IS NOT “NOMINAL”
INSTANT FACTS White (P) recovered a judgment against Benkowski (D) for
breach of a contract to supply water, and the court reduced the damages awarded by
the jury to one dollar in compensatory damages and no punitive damages.
BLACK LETTER RULE Punitive damages may not be recovered for breach of
contract.
29
PROCEDURAL BASIS
Appeal from an order reducing a jury award for White (P).
FACTS
The Whites (P) bought a house with no water supply of its own, but with a
connection to a well on Benkowski’s (D) property. The Whites (P) and Benkowskis
(D) entered into a written agreement under which the Benkowskis (D) agreed to
supply water to the Whites (P) for ten years. The Whites (P) agreed to pay three
dollars per month plus half the costs of future repairs or maintenance. Eventually,
the relationship deteriorated. On nine occasions, Benkowski (D) shut off the water
for periods of less than an hour. Benkowski (D) acknowledged shutting off the
water, and said it was done either to allow accumulated sand in the pipes to settle
or to remind the Whites (P) that their water usage was excessive. On one of these
occasions, the lack of water in the bathroom caused an odor, and on two other
occasions, the Whites (P) had to take their children to a neighbor’s house to bathe.
White (P) brought suit for breach of contract, asking for compensatory and punitive
damages. The trial court instructed the jury on nominal damages, telling the jury that
a nominal award was appropriate when the no pecuniary damages had been proven.
The court based this instruction on the calculation that the Whites’ (P) loss in
proportion to the contract price for their water was approximately twenty-five
cents. The jury awarded the Whites (P) compensatory damages of $10 and punitive
damages of $2,000. The trial court reduced the award to $1 in compensatory
damages and no punitive damages.
ISSUE
Are punitive damages available in breach of contract cases?

(Wilkie, J.) No. Punitive damages may not be recovered for breach of contract.
Punitive damages are permitted in some tort actions to punish, but, with the limited
exception of claims for breach of contract to marry, have never been allowed in
contract cases. Cases from other jurisdictions hold that punitive damages are
unavailable in breach of contract cases without exception. This is true even though
the breach, as it was here, is willful.
The trial court’s instruction on compensatory damages was erroneous. The
calculation of the amount of the Whites’ (P) loss did not consider the inconvenience
to them of the water shut-off. In viewing the evidence most favorable to the Whites
(P), there was some injury, and the
30
14
Whites (P) were not required to prove their damages with mathematical precision.
The jury found that the appropriate amount of damages was $10, which is more than
nominal. The trial court was in error when it reduced the compensatory damages
award, and that award should be reinstated. Reversed in part.
Analysis:
The court can give no stronger rationale for its refusal to allow punitive damages
than to say that it just isn’t done. The usual reasoning is that contract law does not
seek to punish, but to compensate. In this case, in which Benkowski (D) acted out
of malice (at least some of the time), the lines between tort and contract seem to
blur. Shutting off the water doesn’t fit into one of the traditional tort causes of
action, and the only legally recognized “wrong” done was to go against the terms of
the contract. This makes the action a contract action, even if it may seem tortious.
CASE VOCABULARY
NOMINAL DAMAGES: A trifling sum awarded when a legal injury is suffered but
when there is no substantial loss or injury to be compensated; a small amount fixed
as damages for breach of contract without regard to the amount of harm.
PECUNIARY DAMAGES: Damages that can be estimated and monetarily
compensated. Although this phrase appears in many old cases, it is now widely
considered a redundancy, since damages are always pecuniary.
PUNITIVE DAMAGES: Damages awarded in addition to actual damages when the
defendant acted with recklessness, malice, or deceit.
15
Hamer v. Sidway
(Assignee of Right of Nephew) v. (Executor of Uncle)
124 N.Y. 538, 27 N.E. 256 (1891)
FORBEARANCE OR GIVING UP SOME LEGAL RIGHT IS GOOD

CONSIDERATION TO SUPPORT A PROMISE
31
INSTANT FACTS William E. Story Sr. (D) promised his nephew, William E.
Story Jr. (P), that he would pay William Jr. $5,000 if William Jr. would refrain
from drinking, using tobacco, swearing, and gambling, until William Jr. Was 21
years of age, which William Jr. did.
BLACK LETTER RULE The party who abandons some legal right in the
present or limits his legal freedom of action in the future as an inducement for a
promise, gives sufficient consideration to create a legally binding contract.
PROCEDURAL BASIS
An appeal from the Supreme Court reversing the trial court judgment that awarded
judgment for Hamer (P), the assignee, against Sidway (D), the executor.
FACTS
On March 20, 1869, William E. Story, Sr.(D) promised William E. Story, Jr. (P)
that if William Jr. would refrain from drinking, using tobacco, swearing, and
playing cards or billiards for money until William Jr. became 21 years of age,
William Sr. would pay him $5,000. On January 31, 1875, after William Jr. (P) had
become 21 years old, William Jr. wrote his uncle, William Sr. (D), and informed
him that he had performed his part of the agreement and was entitled to the $5,000.
William Sr. (D) wrote his nephew back and stated that “I have no doubt but you
have, for which you shall have five thousand dollars as I promised you.” However,
William Sr. insisted that William Sr. continue to keep the money in the bank for
William Jr. until William Jr. was capable of making good decisions about the use of
the money, when he would then receive the $5,000 with interest. William Jr. (P)
agreed to these terms. On January 29, 1887, William Sr. (D) died without having
paid William Jr. (P) the $5,000 and interest. William Jr.’s right was subsequently
assigned to Hamer, the plaintiff, who sued William Sr.’s executor, Sidway, the
defendant in this action.
32
ISSUE
Is forbearance to do that for which one has a legal right to do sufficient
consideration to support a promise made to induce the forbearance?
(Parker) Yes. A valuable consideration in the sense of the law may consist either in
some right interest, profit, or benefit accruing to the one party, or some forbearance,
detriment, loss, or responsibility given, suffered, or undertaken by the other. The
forbearance does not have to benefit the promises or a third party, or have any
substantial value to any one. It is enough that something is promised, done,
forborne, or suffered by the party to whom the promise is made as consideration for
the promise made to him. William Jr. (P) used tobacco, occasionally drank liquor,
and he had a legal right to do so. He abandoned these rights for a period of years
upon the strength of William Sr.’s (D) promise that for such forbearance William
Sr. would give him
16
$5,000. It is not of any legal importance whether or not the forbearance benefitted
William Sr. (D). The judgment of the Supreme Court is reversed and the special
term judgment for plaintiff, Hamer, is affirmed.
Analysis:
The waiver of the legal right in this case was clearly induced by the promise of the
uncle. The court pointed out that the consideration given may in fact have benefitted
the nephew even more than the uncle. However, the degree of benefit is not
measured by the court to determine the validity of a contract. The determining
factor is that William Sr. (D) “bargained” for the surrender of William Jr.’s (P)
legal right to drink alcohol, use tobacco, and gamble. The abandonment of these
rights may have saved William Jr. (P) money or contributed to his health,
nevertheless this same abandonment, when bargained for, is sufficient consideration
to uphold the promise.
CASE VOCABULARY
MESNE ASSIGNMENT: An previous assignment of a right or interest that
occurred prior to the current assignment.
17

(Injured Employee) v. (Employer)
33
380 N.W.2d 732 (Iowa 1986)
COMPROMISE OF A DOUBTFUL RIGHT ASSERTED IN GOOD FAITH IS

SUFFICIENT CONSIDERATION
INSTANT FACTS Dyer (P) was injured on the job and claimed that his
agreement not to sue his employer was sufficient consideration for a lifetime
employment agreement.
BLACK LETTER RULE Forbearance to assert a claim or defense that proves

to be invalid is consideration if the forbearing party believes that the claim or
defense may fairly be determined to be valid.
PROCEDURAL BASIS
Appeal from an order granting summary judgment for National By-Products (D).
FACTS
Dyer (P) was an employee of National By-Products (D). In 1981 he lost his foot in
an employment-related accident. Dyer (P) was on a leave of absence with pay for
several months before he returned to his old position with National (D). He worked
for National (D) for approximately seven months, and then was laid off indefinitely.
Dyer (P) brought an action against National (D) for breach of an oral contract. Dyer
(P) claimed that he believed in good faith that he had a valid claim against National
(D) for his injury. He also claimed that his forbearance from litigating his claim
was made in exchange for a promise from National (D) of lifetime employment.
The district court sustained National’s (D) motion to dismiss. The court held that
there was no reciprocal promise from Dyer (P) to work for National (D) for life.
The court also held that there was no value to Dyer’s (P) promised forbearance,
because workers’ compensation was Dyer’s (P) sole remedy.
ISSUE
34
Could Dyer’s (P) forbearance be consideration for a lifetime employment
agreement?

(Schultz, J.) Yes. Forbearance to assert a claim or defense that proves to be invalid
is consideration if the forbearing party believes that the claim or defense may fairly
be determined to be valid. The law favors adjustment and settlement of
controversies without court action. Compromise of a doubtful right asserted in good
faith is sufficient consideration.
For purposes of this discussion, it is assumed that Dyer’s (P) claim is unfounded.
While forbearance to bring a claim is consideration for settlement of that claim,
difficulties arise when the claim is invalid. The view of Professor Corbin is that
forbearance to pursue an unfounded claim may be consideration if there is any
reasonable ground to assert the claim, or if the claim is asserted in good faith. In
this context, a claim is asserted in “good faith” if the claim is not made for
purposes of vexation, or in order to recover the claim’s “nuisance value.” The
Corbin view is supported by our case law and the Restatement. The Comment to
Restatement (Second) of Contracts § 74 states that even when the invalidity of a
claim later becomes clear, “the bargain is to be judged as it appeared to the parties
at the time.” Other jurisdictions do not adhere to this view. Many courts require that
the claim have some merit before it may be
18
consideration. Claims that are obviously invalid will not support an agreement.
This view is supported by some Iowa case law, and by Professor Williston. The
better rule is the rule of the Restatement. The policy favoring settlement of claims
would be defeated if a party could second-guess a settlement and litigate the
compromise. The requirement that the forbearing party assert the claim in good
faith sufficiently protects that policy.
The issue of Dyer’s (P) good faith must still be examined. The validity of his claim
should not be overlooked in that examination. Good faith generally requires
reasonable grounds for a belief. Evidence of the validity of Dyer’s (P) claim is
relevant to show a lack of honest belief in the validity of his claim. Reversed and
remanded.
Analysis:
Dyer (P) may fare no better on remand than he did on his first attempt. In most
states, it is axiomatic that an employee may not sue his or her employer in tort for
workplace injuries. There are very few exceptions to this rule; consequently, it may
35
be difficult for him to show a good faith belief that he had a valid claim.
CASE VOCABULARY
NUISANCE VALUE: A quick settlement offered to dispose of a meritless or
frivolous case.
WORKERS’ COMPENSATION: A system that allows employees who are injured
on the job to obtain compensation for their injuries, typically without regard to the
fault of either the employer or employee.
19

(Employee) v. (Employer)
322 S.W.2d 163 (Mo. App. 1959)
A PROMISE MADE IN CONSIDERATION OF A PRIOR PERFORMANCE IS

NOT SUFFICIENT TO CREATE A BINDING CONTRACT
INSTANT FACTS Pfeiffer Co. (D) stopped making pension payments, pursuant
to a resolution adopted by the Board of Directors, to Feinberg (P) after she retired.
BLACK LETTER RULE Past services is not sufficient consideration to

support a promise.
PROCEDURAL BASIS
An appeal from Circuit Court that rendered a judgment for Feinberg (P).
FACTS
In 1910, when Feinberg (P) was 17 years old, she begin working for Pfeiffer Co.
36
(D). She continued to work for Pfeiffer Co. (D), and by 1947, Feinberg (P) had
attained the position of bookkeeper, office manager, and assistant treasurer. On
December 24, 1947, the Board of Directors adopted the following resolution:
“Resolved, that the salary of Anna Sacks Feinberg be Increased from $350.00 to
$400.00 per month and that she be afforded the privilege of retiring from active
duty in the corporation at any time she may elect to see fit so to do upon retirement
pay of $200.00 per month, for the remainder of her life.” The Chairman stated that
the company desired to show its appreciation to Feinberg (P) for her many years of
long and faithful service, and that the resolution was to be adopted to afford Mrs.
Feinberg security for the future and in the hope that her active services would
continue with the corporation for many years to come. Feinberg (P) was notified of
the resolution the same day it was adopted. Feinberg continued to work for Pfeiffer
Co. (D) through June 30, 1949, on which date she retired. Pfeiffer Co. (D) made the
$200 payments to Feinberg (P) until April 1, 1956, at which time Pfeiffer reduced
the payment to $1.00. Feinberg (P) declined to accept the reduced amount, and
brought this action based on Pfeiffer Co.’s (D) agreement.
ISSUE
Is past performance sufficient consideration to support a promise?

(Doerner) No. A valid contract requires mutuality of obligation bargained for and
given in exchange for the promise. The consideration sufficient to support a
contract may be either a benefit to the promisor or a loss or detriment to the
promisee. There is nothing in the resolution adopted by Pfeiffer Co. (D) that made
its effectiveness conditional upon Feinberg’s (P) continued employment. Feinberg
(P) was not under contract to work for any length of time but was free to quit
whenever she wished. Feinberg (P) had no contractual right to her position and
could have been discharged at any time. Feinberg (P) made no promise or
agreement to continue in the employ of the Pfeiffer Co. (D) in return for its promise
to pay her a pension. The judgment of the Circuit Court is reversed.
20
Analysis:
The chairman stated that it was hoped that Feinberg would continue working in the
future (which she did). Arguably, she would have quit at that moment and may have
planned to do so, but continued on because of the pension. But Feinberg’s (P) past
years of faithful service were not bargained for in return for the promise to pay her
a retirement pension of $200. In reality, the pension was merely a present gift. If the
37
retirement plan existed prior to her employment, and she was notified of this plan
prior to accepting employment, then there is a strong argument that her long faithful
service with the company would have been bargained for. When the issue is
whether the performance was bargained for, the court does not have to consider the
issue of the degree of benefit given.
21
Mills v. Wyman
(Good Samaritan) v. (Father of III Person)
20 Mass. 207, 3 Pick. 207 (1825)
A PROMISE TO PAY FOR PAST EXPENSES IS NOT SUPPORTED BY

CONSIDERATION
INSTANT FACTS Seth Wyman (D) failed to pay Daniel Mills (P) as promised
for the expenses Mills (P) incurred from providing care for Wyman’s (D) ill son.
BLACK LETTER RULE Past expense is not sufficient consideration to support

a later promise to pay for the expenses.
PROCEDURAL BASIS
An appeal from a judgment granting nonsuit of Mills’ (P) claim.
FACTS
Mills (P) incurred expenses arising out of caring for Levi Wyman, who fell ill on
his return from a sea voyage. Mills (P) gave Levi Wyman shelter and comfort for
about two weeks until Wyman died. A few days later, after Mills’ (P) expenses had
been incurred, Levi Wyman’s father, Seth Wyman (D), promised in writing to pay
for the expenses. Seth Wyman (D) then decided not to pay.
38
ISSUE
Does a past expense incurred support a later promise to reimburse the expenses?

(Parker) No. It is only when the party making the promise gains something, or he to
whom it is made loses something, that the law gives the promise validity. Mills’s
(P) kindness and services towards Wyman’s (D) sick son were not given at
Wyman’s request. Wyman’s (D) promise to pay for the expenses incurred,
influenced by a transient feeling of gratitude, was made without any legal
consideration. Judgment ordered for nonsuit is affirmed.
Analysis:
This case stands for the principle that a “moral obligation” that motivates a promise
for some benefit previously received is not sufficient consideration to create a
binding contract. Exceptions to this rule are (1) a promise to pay a debt that is no
longer enforceable because the statute of limitations has run; and (2) a promise
made as an adult, subsequent to the same promise made as a minor, that was
avoided on the basis of the age of the party.
CASE VOCABULARY
NONSUIT: Judgment ordered on nonsuit results when the plaintiff has no legal
basis for his action based on the proof presented at trial.
23
Webb v. McGowin
(Life-Saving Employee) v. (Executor of Saved Person)
27 Ala. App. 82, 168 So. 196 (1935)
THE ACT OF SAVING A PARTY FROM DEATH OR GRIEVOUS BODILY

HARM IS SUFFICIENT CONSIDERATION TO SUPPORT A SUBSEQUENTLY
INDUCED PROMISE
39
INSTANT FACTS Joe Webb (P) saved Greeley McGowin (D) from death or
serious bodily harm during Webb’s (P) course of employment, for which McGowin
(D) agreed to pay Webb (P) $15 every two weeks for the remainder of Webb’s (P)
life.
BLACK LETTER RULE Past act of saving a party from death or serious
bodily injury, that results in injuries to the saving party, is sufficient consideration
for the saved party’s subsequently induced promise to pay the saving party.
PROCEDURAL BASIS
An appeal by Webb (P) from a judgment of nonsuit at trial court.
FACTS
Webb’s (P) work required him to clear the upper floor of a lumber mill by dropping
heavy pine blocks from the upper floor of the mill to the ground below. During one
such occasion, on August 3, 1925, while Webb (P) was working within the scope of
his employment, Webb (P) diverted a 75-pound block, that he was clearing, from
dropping on Greeley McGowin (D) below, by falling with the block to the floor
below. Webb (P) was successful in preventing any injuries to McGowin (D).
However, Webb (P) received serious bodily injuries, resulting in his right leg being
broken, the heel of his right foot tom off and his right arm broken. He was badly
crippled for life and rendered unable to do physical or mental labor. On September
1, 1925, McGowin (D) agreed to pay Webb (P) $15 every two weeks from the time
he sustained his injuries to and during the remainder of Webb’s life. It was agreed
that McGowin (D) would pay this amount to Webb (P) for Webb’s maintenance.
McGowin paid the sum so agreed up until McGowin’s (D) death on January 1,
1934, at which time they were discontinued. Webb (P) sued McGowin’s (D) estate
for the balance of the payments due.
ISSUE
40
Are past acts of saving a party from death or serious boldly injury sufficient
consideration to support a subsequently induced promise?

(Bricken) Yes. Any holding that saving a man from death or grievous bodily harm is
not a material benefit sufficient to uphold a subsequent promise to pay for the
service, necessarily rests on the assumption that saving life and preservation of the
body from harm have only sentimental value. Had McGowin been accidentally
poisoned and a physician, without his knowledge or request, had administered an
antidote, a subsequent promise by McGowin (D) to pay the physician would have
been valid. Likewise, McGowin’s (D) agreement to compensate Webb (P) for
saving him from death or grievous bodily injury is valid and enforceable. In the
business of life insurance, the value of a man’s life is measured in dollars and cents
according to his expectancy, soundness of his body, and his ability to pay
premiums. In the act of saving
24
McGowin (D) from death or grievous bodily harm, Webb (P) was crippled for life.
This was part of the consideration of the contract McGowin (D) made with Webb
(P). Benefit to the promisor or injury to the promisee is a sufficient legal
consideration for the promisor’s agreement to pay. The court below erred in
sustaining the demurrer, and for this error the case is reversed and remanded.
CONCURRENCE
(Sanford) Yes. “I do not think that law ought to be separated from justice, where it
is at most doubtful.” Chief Justice Marshall in Hoffman v. Porter, Fed Cas. 6,5777;
2 Brock, 156, 159.
CONCURRENCE
(Foster) Yes. McGowin (D) benefited substantially from the performance by Webb
(P), and when this is considered with the injuries to Webb (P), this constituted
sufficient consideration to support McGowin’s (D) subsequent promise to pay
Webb (P).
Analysis:
The court here discussed the value of a life and the severity of the injuries suffered
by Webb (P). Although the case is arguably a case where a “moral obligation” was
held to be sufficient consideration, the distinction in this case is the degree of the
injuries to Webb (P) and the act of saving a life. One of the concurring opinions
41
quoted Chief Justice Marshall as stating, “This case is about achieving justice.”
This type of rationale has been condemned by legal scholars, who claim that it is a
wanton departure from legal principles and replaces sound legal logic with
sentiment. New York is one jurisdiction that has given legal effect to promises
based on consideration consisting of a past performance, when the promise is in
writing and it meets other requirements.
CASE VOCABULARY
ASSUMPSIT: In contracts this refers to oral promises made without written record
as evidence of the promise.
DEMURRER: In court pleadings this is a claim that even if all of the allegations
are accepted as true, the party claiming the allegations still has not shown a legal
basis for recovery.
25
(Intervener) v. (Assailant)
225 N.C. 690, 36 S.E.2d 227 (1945)
A MORAL OBLIGATION IS NOT CONSIDERATION
INSTANT FACTS Harrington (P) was injured while protecting Taylor (D) from
an assault by his wife, and Taylor (D) promised to pay her damages.
BLACK LETTER RULE A humanitarian act performed voluntarily is not

sufficient consideration for a promise.
PROCEDURAL BASIS
Appeal from an order sustaining a demurrer.
42
FACTS
Taylor (D) assaulted his wife, who took refuge in Harrington’s (P) house. The next
day, Taylor (D) came to Harrington’s (P) house and started to assault his wife
again. Taylor’s (D) wife knocked him down with an axe. She was at the point of
cutting his head open or decapitating him when Harrington (P) intervened. She
caught the axe, and mutilated her hand doing so. Taylor (D) later made an oral
promise to pay Harrington’s (P) damages, but after paying a small sum, he failed to
pay more.
ISSUE
Was there sufficient consideration to support Taylor’s (D) promise?
(Per curiam.) No. A humanitarian act performed voluntarily is not sufficient
consideration for a promise. However much Taylor (D) should be impelled by
common gratitude to pay, Harrington’s (P) act was not sufficient consideration for
his promise. Affirmed.
Analysis:
After this appeal, Harrington (P) brought her suit again, this time suing in tort. Her
suit was once again unsuccessful. The court held that her injury was “not one which
the defendant could have reasonably foreseen or anticipated.” Harrington v. Taylor,
226 N.C. 769, 40 S.E.2d 367 (1946).
27
Kirksey v. Kirksey
(Widow) v. (Brother-in-Law)
8 Ala. 131 (1845)
RELIANCE DOES NOT IMPOSE CONTRACTUAL LIABILITY IN THE

ABSENCE OF A BARGAINED-FOR EXCHANGE
43
INSTANT FACTS A widow attempts to impose contractual liability for a
promise made by her brother-in-law which induced her to leave her residence and
move to his estate.
BLACK LETTER RULE A bargained-for exchange is required for all

contracts, and merely changing position in reliance on a statement is insufficient to
impose contractual liability in absence of any bargain.
PROCEDURAL BASIS
Appeal from judgment for damages for breach of contract.
FACTS
Antillico Kirksey (P) lived in a home approximately sixty miles away from her
brother-in-law, Mr. Kirksey (D). After Antillico’s (P) husband died, Mr. Kirksey
(D) wrote to Antillico (P) and expressed concern with her living situation. He
stated that if Antillico (P) would come down and see him, he would give Antillico
(P) a place to raise her family and some land to tend. He stated that, considering
her plight, he wanted Antillico (P) and her children to do well and have a nice
place to live. Within a month or two of receiving the letter, Antillico (P) abandoned
her home and moved to the residence of Mr. Kirksey (D). He gave Antillico (P) a
comfortable house and land to cultivate for two years, but then he forced Antillico
(P) to move into an uncomfortable house in the woods. Later, he even required
Antillico (P) to abandon this house. Antillico (P) sued, alleging that Mr. Kirksey
(D) had made a promise and that she had fulfilled her obligations under the
contract, but that he had breached. The trial court granted a $200 judgment for
Antillico (P). Mr. Kirksey (D) appealed.
ISSUE
Is a change of residence in reliance on a promise to provide a new residence
44
sufficient consideration to impose contractual duties upon the promisor?
(Ormond, J.) No. A change of residence in reliance on a promise to provide a new
residence is not necessarily sufficient consideration to impose contractual duties
upon the promisor. In this situation, the promise of Mr. Kirksey (D) has been
interpreted by the majority of the court as a mere gratuity. As such, Mr. Kirksey (D)
did not enter into a binding contract with Antillico (P). I tend to disagree. In my
mind, the loss and inconvenience that Antillico (P) suffered in moving to Mr.
Kirksey’s (D) land is sufficient consideration to support Mr. Kirksey’s (D) promise
to furnish her with a house and land to cultivate. However, my brothers on this
court disagree. Reversed.
Analysis:
This case is one of the prime examples of the difficulty of interpreting contractual
language and behavior. The central issue in this case is the intent of Mr. Kirksey
(D), the promisor. Was Mr. Kirksey (D) making a bargained-for exchange, in which
he promised to provide a house and
28
land in exchange for Antillico’s (P) action of moving to his estate? Or was Mr.
Kirksey (D) simply offering a gift to which no contractual duties attach? Sound
arguments can be made for each position. On one hand, it appears that Mr. Kirksey
(D) was bargaining for Antillico’s (P) performance. For example, he states that he
feels that he wants Antillico (P) and the children to do well, which seems to
indicate that he will obtain some psychological benefit from her performance. On
the other hand, it can be argued that this was clearly a gift, and that her moving
down to his estate was simply the condition that had to be met in order to obtain the
gratuity. In either case, Antillico (P) certainly relied on Mr. Kirksey’s (D) words,
and her actions seem to constitute valid consideration. But this consideration is
meaningless if, as the Court concluded, Mr. Kirksey (D) was not making a bargain,
but rather was simply offering a mere gratuity.
CASE VOCABULARY
GRATUITY: Something voluntarily given and acquired without a bargained-for
exchange.
29
45
(Former Employer) v. (Former Employee)
101 Ohio St. 3d 242, 804 N.E. 2d 27 (2004)
CONTINUED EMPLOYMENT IS SUFFICIENT CONSIDERATION FOR A

NON-COMPETE AGREEMENT
INSTANT FACTS Columber (D) worked for Lake Land (P) for several years
before signing an agreement not to compete with Lake Land (P) and later claimed
that the agreement was not supported by consideration.
BLACK LETTER RULE The continuation of an at-will employment

relationship after the employer imposes a new requirement on the employee is
sufficient consideration for the employee’s agreement to that requirement.
PROCEDURAL BASIS
Appeal from an order affirming a grant of summary judgment.
FACTS
Columber (D) began working for Lake Land (P) in 1988. In September 1991, he
signed a non-compete agreement with Lake Land (P) that provided that Columber
(D) would not, for a period of three years after termination of his employment with
Lake Land (P), engage in any competing business within a fifty-mile radius of
Akron, Ohio. Columber (D) received no additional pay or benefits in connection
with signing the non-competition agreement.
Columber’s (D) employment with Lake Land (P) ended in 2001, and Columber (D)
opened a business similar to Lake Land (P). Lake Land (P) brought suit against
Columber (D), and Columber (D) pleaded lack of consideration. He testified that
he remembered little about the noncompetition agreement, but admitted signing it.
He could not remember if he was told that his continued employment depended
46
upon his signing the agreement. The trial court granted Columber (D) summary
judgment, finding that there was no consideration for the agreement. The trial court
did not address the reasonableness of the time and geographic restrictions in the
agreement. The Ohio Court of Appeals affirmed.
ISSUE
Was the noncompetition agreement supported by consideration?
(Moyer, C.J.) Yes. The continuation of an at-will employment relationship after the
employer imposes a new requirement on the employee is sufficient consideration
for the employee’s agreement to that requirement. In an at-will employment
relationship, either the employer or the employee is free to propose changes in the
employment relationship at any time. The employee who is dissatisfied with an
employer’s proposal may quit. Similarly, the employer who does not agree to a
proposal from the employee may either negotiate a change or accept the loss of the
employee. Presentation of a noncompetition agreement is, in effect, a proposal to
renegotiate the terms of the at-will employment. Acceptance of the agreement is
accepting employment on new terms, and is supported by consideration. Assent to
the agreement is given in exchange for the forbearance from terminating the
employee.
30
Traditionally, courts have carefully scrutinized noncompetition agreements.

Restraints of trade were long disfavored, and restrictions on competition could
either destroy a person’s means of earning a livelihood or bind him to an employer
for life. Modern economic realities do not justify a strict prohibition on
noncompetition agreements. Noncompetition agreements allow the parties to work
together, without fear that one will leave with confidential information and secrets,
to engage in a competing business.
Jurisdictions that have held that continued employment is not sufficient
consideration have stressed that an employee has little bargaining power once
employed and is subject to coercion. By signing a noncompetition agreement, an
employee gets no more than he or she already has. The noncompetition agreement is
not a protection of the employer’s investment, but a barrier to the employee’s
mobility. Recently, however, some courts have found sufficient consideration when
there has been a substantial period of employment after the noncompetition
agreement is executed, particularly when continued employment is accompanied by
raises, promotions, or other tangible benefits. These courts have found, in effect,
47
that the employment relationship is changed from one purely at-will to employment
for an indefinite, but substantial, term.
Recognition that continued employment is sufficient consideration for a
noncompetition agreement does not preclude an inquiry into the reasonableness of
the agreement. Examination of the factors relating to the reasonableness of an
agreement should be separate from an inquiry into the adequacy of consideration.
Reversed and remanded.
DISSENT
(Resnick, J.) The only difference between the parties’ relationship after the
execution of the noncompetition agreement was the agreement itself. If the same
relationship continues, where is the consideration? The employer has relinquished
nothing, and the employee has gained nothing. The employer ends up with the
agreement and the continued right to terminate the employee. The majority’s opinion
would uphold a noncompetition agreement signed one day before the employee was
terminated.
DISSENT
(Pfeifer, J.) Continued employment in exchange for signing a noncompetition
agreement does not constitute consideration—it is coercion. Any promise of
continued employment makes the relationship something other than employment at
will, and imposes on the employer an obligation to continue employing the
employee for some period of time, but the majority does not define that time period.
Analysis:
The circumstances under which Columber (D) stopped working for Lake Land (P)
are not discussed, but it is stated that he was “discharged,” meaning that he did not
leave voluntarily. In a number of jurisdictions, noncompetition agreements are
unenforceable if the employee did not quit voluntarily. In other jurisdictions,
involuntary termination does not make a noncompetition agreement unenforceable
unless the termination was in “bad faith.” “Bad faith” is hard to define in this
context, but could include Judge Resnick’s scenario of an employee fired the day
after signing a noncompete agreement.
CASE VOCABULARY
AT WILL: Subject to one’s discretion; as one wishes or chooses; especially (of a
legal relationship), able to be terminated or discharged by either party without
cause.
31
48
Strong v. Sheffield
(Creditor) v. (Guarantor)
144 N.Y. 392, 39 N.E. 330 (1895)
ILLUSORY PROMISES DO NOT CREATE BINDING CONTRACTS
INSTANT FACTS Strong (P) attempts to obtain payment for a note from the
guarantor, although Strong (P) convinced the guarantor to sign the note merely by
promising not to demand payment until he felt like it.
BLACK LETTER RULE In order to be legally binding, a promise must be

supported by consideration and cannot be illusory.
PROCEDURAL BASIS
Appeal of reversal of judgment for payment of promissory note.
FACTS
Benjamin Strong (P) sold his business on credit to Louisa Sheffield’s (D) husband,
Gerardus. Strong (P) sought a promissory note from Gerardus for this antecedent
debt, and Strong (P) wanted Louisa (D), his niece, to endorse the note as security
for the debt. Strong (P) promised that he would not put the note away, but rather that
he would keep it until such time as he would demand payment. Strong (P) did not
promise to forbear on collection for any specific period of time. Based on this
promise from Strong (P), Louisa (D) endorsed the note. After the note was
executed, Strong (P) waited for two years before demanding payment. Louisa (D)
refused to satisfy her undertaking, and Strong (P) sued for payment on the note. The
trial court granted a judgment for Strong (P), and the New York Supreme Court
reversed. Strong (P) appeals.
ISSUE
49
Does a promise not to take some action for an unspecified period of time constitute
sufficient consideration to create a contract?

(Andrews, J.) No. A promise not to take some action for an unspecified period of
time does not constitute sufficient consideration to create a contract. Gerardus’
debt, secured by the promissory note, was already past due. The only possible
consideration for Louisa’s (D) endorsement was that Strong (P) promised to
forbear the collection of the debt, and that this promise was followed by a
forbearance of two years. However, at the time of making the promise, Strong (P)
did not promise to forbear for any specific period of time. The note did not extend
the period for paying the debt, as the note was payable on demand at any time.
Gerardus and Louisa (D) may have hoped that Strong (P) would forbear, and
indeed he did forbear for two years. However, there was no agreement to forbear.
Consideration must be tested by the agreement itself, not by what actually occurred
under the agreement. This was a case of mutual promises, with no consideration
exchanged for Louisa’s (D) endorsement. Accordingly, the endorsement on the note
did not create a valid contract. Affirmed.
32
Analysis:
Although a contract can be formed with a promise exchanged for a promise, both
promises must be valid. This case provides an example of an illusory promise.
Strong (P) made no promise of any substance to the Sheffields (P), because he
could demand payment on the note at any time. Likewise, Strong’s (P) “promise” to
forbear was not sufficient consideration for Louisa’s (D) endorsement, since Strong
(P) did not agree to any specific period of forbearance. If Louisa (D) had bargained
for a two-year forbearance, and Strong (P) had agreed in order to get Louisa (D) to
endorse the note, then a valid contract most likely would have been created. But
promises must have some substance; they cannot be illusory.
CASE VOCABULARY
ILLUSORY PROMISE: A purported promise that entitles the promisor to perform
or not perform, at his own choice and with no binding commitment either way.
NUDUM PACTUM: An illusory promise or agreement, not supported by any
consideration.
UNDERTAKING: A promise or security by one party which does not necessarily
imply any consideration.
50
33
Mattei v. Hopper
(Buyer) v. (Seller)
51 Cal.2d 119, 330 P.2d 625 (1958)
SATISFACTION CLAUSES DO NOT RENDER CONTRACTS ILLUSORY OR

LACKING IN MUTUALITY
INSTANT FACTS A seller attempts to back out of a real estate sale on the
ground that the buyer’s satisfaction clause rendered the buyer’s promise illusory.
BLACK LETTER RULE A contract that is dependent on one party’s subjective

satisfaction with related matters may nevertheless be enforceable.
PROCEDURAL BASIS
Appeal from judgment denying damages for breach of contract.
FACTS
Mattei (P), a real estate developer, and Hopper (D), a landowner, entered into a
written agreement for the sale of Hopper’s (D) property. The written agreement
was evidenced by a deposit receipt, under which Mattei (P) paid $1000 of the total
purchase price of $57,500. Mattei (P) was given 120 days to examine the title and
consummate the purchase, subject to Mattei’s (P) bank obtaining leases satisfactory
to Mattei (P). While Mattei (P) was in the process of securing the leases for this
commercial property, Hopper (D) notified Mattei (P) that he would not sell the
property. Thereafter, Mattei (P) offered to pay the balance of the purchase price,
but Hopper (D) failed to tender the deed as provided in the deposit receipt. Mattei
(P) sued for breach of contract. The trial court concluded that the agreement was
illusory and lacking in mutuality. Mattei (P) appeals.
51
ISSUE
Can a contract that is dependent upon one party’s satisfaction with a related matter
be enforceable?
(Spence, J.) Yes. A contract that is dependent upon one party’s satisfaction with a
related matter can be enforceable. Satisfaction clauses have been given effect and
do not necessarily render a contract illusory or lacking in mutuality of obligation.
Indeed, where parties attempt to make a contract with promises alone, the promises
must be mutual in obligation in order to be supported by valid consideration. In
other words, both parties must have assumed some legal obligations. The presence
of the satisfaction clause does not mean that Mattei (P) assumed no legal
obligations. There are two types of satisfaction clauses that have been given effect.
First, in contracts where commercial quality is at issue, the standard of a
reasonable person is used to determine whether the party judged satisfaction
properly. Second, where the question is one of judgment, the promisor’s good faith
determination of his satisfaction controls. However, the promisor must exercise his
judgment in good faith. The satisfaction clause at hand is of the latter variety. Mattei
(P) was legally obligated to make a good faith determination of the satisfactory
nature of the leases. Thus, Mattei (P) assumed a legal obligation, and his promise
was not illusory. Both Mattei (P) and Hopper (D) assumed legal obligations, and
their promises
34
thus had the required mutuality of obligation. Parties to a real-estate sales contract
may agree to make one party’s performance dependent on his good-faith satisfaction
with the leases obtained by him. Reversed.
Analysis:
Contracts containing satisfaction clauses, making one party’s performance

dependent on his good-faith satisfaction with a related matter, are neither illusory
not lacking in mutuality of obligation, Mattei (P) was legally bound to make a good-
faith determination. Suppose that Hopper (D) wanted to go forward with the sale,
but that Mattei (P) refused on the ground that the leases were not satisfactory. In this
case, Hopper (D) could call experts to testify to the satisfactory nature of the
leases, and he would have to prove that Mattei’s (P) dissatisfaction was not in good
faith. The court held that the satisfaction clause was an issue of judgment, not of
commercial value or quality, and therefore that Mattei’s (P) subjective good-faith
judgment controlled. Would it make more sense to require satisfaction based on
52
commercial value or quality? In such a case, a reasonable person standard is used.
The good-faith standard usually applies to something like a portrait painting, which
is inherently personal and cannot be judged on a reasonable person standard.
CASE VOCABULARY
MUTUALITY OF OBLIGATION: The requirement that, when parties exchange
promises in order to form a contract, both parties must have assumed some legal
obligations in executing their promises.
VITIATED: Made void; destroyed.
35

(Buyer) v. (Manufacturer)
543 F.3d 987 (8th Cir. 2008)
REQUIREMENTS CONTRACTS ARE SUPPORTED BY CONSIDERATION
INSTANT FACTS Zoltek (D) agreed to fulfill all of Structural Polymer’s (P)
requirements for a certain type of carbon fiber, but Zoltek (D) claimed the contract
lacked mutuality of obligation.
BLACK LETTER RULE The implied obligation of good faith in requirements

contracts is enough to avoid finding a contract null and void due to an illusory
promise.
PROCEDURAL BASIS
Appeal from an order denying a motion for a new trial and motion for judgment as a
matter of law, and cross-appeal from an order modifying a jury award.
FACTS
53
Zoltek (D) and Structural Polymer (P) entered into a supply agreement in
November 2000. That agreement provided that Zoltek (D) promised to manufacture
and sell to Structural (P) all of Structural’s (P) requirements for large tow carbon
fiber at the then-current market price. In return, Structural (P) promised to obtain
their total requirements for suitable carbon fibers from Zoltek (D). At the time the
agreement was entered into, most manufacturers used small tow carbon fiber, and
the purpose of the supply agreement was to develop a market for large tow carbon
fiber.
Structural (P) made purchases of carbon fiber from Zoltek (D) from 2000 through
2004, except that none was purchased in 2003. Orders for a total of 3,960,276
pounds of carbon fiber were placed in 2005 and 2006, but were never fulfilled.
Structural (P) sued Zoltek (D) for breach of contract alleging lost profits through
December 31, 2006, and future lost profits through December 31, 2010. Zoltek (D)
argued that the agreement was void for lack of mutuality of obligation. On
November 29, 2006, a jury awarded Structural (P) lost profits through December
31, 2006, but declined to award Structural (P) future lost profits. The final award
for Structural (P) was $21,138,518.
ISSUE
Was the agreement unenforceable for a lack of mutuality?
(Colloton, J.) No. The implied obligation of good faith in requirements contracts is
enough to avoid finding a contract null and void due to an illusory promise.
Zoltek’s (D) argument that the agreement was unenforceable due to a lack of
mutuality is an argument that Structural (P) failed to show that the agreement was
supported by valid consideration. Zoltek’s (D) three reasons for this argument are
based on an allegation that Structural’s (P) requirements under the agreement are
“hopelessly manipulable” and determined by Structural’s (P) subjective
preferences, rather than by objective criteria outside of Structural’s (P) control.
Specifically, Zoltek (D) argues that Structural (P) could have ordered or not
ordered carbon fiber as it wanted because (1) Structural (P) had zero requirements
for large-tow fiber when the contract was formed, (2) the price protection clause
gave Structural (P) the option to purchase carbon fiber from other producers
whenever Structural (P) wanted to, and (3) Structural (P) was free
36
to buy small-tow fiber, which Zoltek (D) alleges is interchangeable with large-tow
fiber, in place of large-tow whenever it chose.
54
The agreement bound Structural (P) to order carbon fiber from Zoltek (D) in good
faith. If Structural (P) failed to purchase anything from Zoltek (D) during the term of
the agreement, Zoltek (D) could allege that Structural (P) acted in bad faith by
failing to make purchases. An assertion of bad faith, however, is an argument that
Structural (P) breached the agreement, not that the agreement lacked mutuality or
consideration in the first place. The price protection clause in the contract did not
make Structural’s (P) obligation illusory. That clause gave Zoltek (D) a right of first
refusal to sell large-tow carbon fiber to Structural (P) for the same price as offered
by a third party seller. Zoltek (D) was not required to match the price offered by
another supplier, but if it did, Structural (P) was obligated to purchase from Zoltek
(D).
Zoltek (D)’s authorities demonstrate only that if Structural (P) had an unfettered
option to purchase from another supplier during the term of the contract, then this
option would destroy the exclusivity of the arrangement, and demonstrate lack of
consideration. We do not agree with Zoltek (D) that if small-tow and large-tow
fiber are “interchangeable,” the agreement lacked mutuality. There was a good deal
of evidence at trial that small-tow and large-tow fiber are distinct products. Even
assuming for the sake of argument that a jury could find that small-tow and large-
tow fibers to be “interchangeable,” the authorities cited by Zoltek (D) merely
illustrate that when a buyer contracts to purchase its requirements for a product
from a particular seller, but then purchases an interchangeable product from a third
party instead, the buyer may have breached the requirements contract. The jury
found that Structural (P) performed its obligations under the contract. Structural’s
(P) obligation to purchase in good faith all of its requirements for large-tow fiber
exclusively from Zoltek (D) was sufficient consideration to make the contract valid.
The district court properly amended the judgment entered in Structural’s (P) favor.
The jury’s award gave Structural (P) profits corresponding to 6,960,276 pounds of
large-tow carbon fiber when at most Structural (P) was entitled to buy 3,960,276
pounds. Therefore, the district court acted within its discretion when it determined
that the jury’s award under both counts was duplicative and altered the judgment
accordingly. Affirmed.
Analysis:
Contracts in which a purchaser agrees to purchase all of its requirements for a

product from a certain supplier carry inherent risks for suppliers. A buyer might not
need any of the product, or only a trifling amount. Similarly, the buyer could require
so much of the product that the supplier is overtaxed and unable to fulfill the order.
The implied obligation of good faith does not prevent these situations from
occurring, but it does ensure that if they arise, they are not conjured up to inflict
harm on the supplier.
55
37

(Airline) v. (Oil Supplier)
415 F.Supp. 429 (S.D. Fla. 1975)
COURT UPHOLDS REQUIREMENTS CONTRACT BASED ON GOOD-FAITH

LIMITATIONS
INSTANT FACTS In the midst of an oil embargo, Eastern Air Lines (P) seeks
an injunction to prevent Gulf Oil (D) from breaching the requirements contract
between the parties.
BLACK LETTER RULE Requirements contracts are neither indefinite nor

lacking in mutuality.
PROCEDURAL BASIS
Hearing on motion for permanent injunction.
FACTS
Eastern Air Lines, Inc. (P) and Gulf Oil Corporation (D) had a long-standing
contractual relationship involving the sale of jet fuel. Pursuant to their
“requirements” contract, Eastern (P) agreed to purchase any and all aviation fuel at
selected cities from Gulf (D), and Gulf (D) agreed to supply all of Eastern’s (P)
good-faith requirements. The relationship was, until 1974, beneficial to both
parties. Eastern (P) paid a reduced base price for oil, determined by the West Texas
Sour indicator. Gulf (D) had a long-term outlet for its jet fuel. In 1974 the Arab oil
embargo and resulting two-tier system of United States governmental price controls
caused chaos in the American oil market. The short supply of oil sent one tier of
56
prices to $11 per barrel, while government-controlled oil, which was very limited
in supply, was listed at the old price of $5 per barrel. The West Texas Sour index
listed the old price throughout this period. Gulf (D) demanded that Eastern (P) pay
a price increase in order to meet Gulf’s (D) increased costs. Eastern (P) filed a
complaint for a preliminary injunction, alleging that Gulf (D) had breached its
contract. A preliminary injunction was entered by stipulation of the parties, and a
motion for permanent injunction followed.
ISSUE
Are requirements contracts, in which the seller agrees to make a good-faith effort to
meet all of the buyer’s requirements, enforceable?

(King, J.) Yes. Requirements contracts, in which the seller agrees to make a good-
faith effort to meet all of the buyer’s requirements, are enforceable. Gulf (D) argues
that the contract is invalid because it is indefinite, lacks mutuality of obligation, and
renders Gulf (D) subject to Eastern’s (P) whims respecting the volume of jet fuel
Gulf (D) would be required to supply. We disagree and hold that requirements
contracts such as the one at issue are binding. Both parties have assumed some
legal obligation. Eastern (P) agreed to purchase all of its required oil at select
cities from Gulf (D), and Gulf (D) agreed to make good-faith efforts at meeting
these requirements. The contract is not indefinite, since a court can determine the
volume of goods provided for under the contract by reference to objective evidence
of the volume of goods required to operate the specified business. Furthermore, the
Uniform Commercial Code approves requirements contracts, such as the contract at
hand, that are based on the parties’
38
good faith. We therefore conclude that specific performance of the contract is

warranted, and Eastern (P) is entitled to Gulf’s (D) fuel at the prices agreed upon in
the contract. Permanent injunction entered.
Analysis:
In the typical market setting, requirements and output contracts provide insurance
and stability for both purchasers and sellers. In a requirements contract, the seller
agrees to provide whatever quantity the buyer requires. In an output contract, the
buyer agrees to purchase whatever quantity the seller produces. These contracts are
not indefinite or lacking in mutuality, because the U.C.C. imposes a good-faith
requirement on both parties. Suppose, in the instant action, that Eastern (P) wanted
to buy only 50% of its typical requirements from Gulf (D). If Eastern (P) were
57
simply unhappy with Gulf’s (D) prices and decided it wanted to purchase fuel from
another supplier, this would not be a good-faith alteration of the terms, and it would
not be allowed. Unless there was some good-faith basis other than simply finding a
better deal—such as Eastern (P) experiencing diminished requirements after it was
forced to close down certain non-profitable routes—Eastern (P) would have to stay
reasonably close to its stated, estimated requirements. Note that requirements
prices may be fixed price or variable. A seller would obviously want a variable
price contract in a time of rising prices, and Gulf (D) though it had structured its
agreement as a variable-price contract, based on a reliable oil index. Is it fair to
hold Gulf (D) responsible for the unprecedented “two-tier” pricing system and
Arab embargo which resulted in the West Texas Sour index being inaccurate?
CASE VOCABULARY
COMMERCIAL IMPRACTICABILITY: An excuse to contractual performance
when unforeseeable events alter the premise on which the contract was based.
REQUIREMENTS CONTRACT: A contract in which the seller agrees to make a
good-faith effort to meet the buyer’s requirements, and the buyer agrees to purchase
all of its requirements from the seller.
39

(Distributor) v. (Fashion Designer)
222 N.Y. 88, 118 N.E. 214 (1917)
COURT IMPLIES DUTY TO MAKE REASONABLE EFFORTS IN AN

EXCLUSIVE DEALING ARRANGEMENT
INSTANT FACTS A famous fashion designer attempts to invalidate an

exclusive-dealing arrangement by arguing that the supplier never made any promise
58
to market her goods.
BLACK LETTER RULE Exclusive dealing arrangements impose an obligation

by the seller to use his best efforts to distribute and market goods.
PROCEDURAL BASIS
Appeal from order reversing denial of demurrer to complaint for breach of
contract.
FACTS
Lucy, Lady Duff-Gordon (D) was a famous fashion designer. In order to profit from
her fame, Lucy (D) employed Wood (P). Wood (P) was granted the exclusive right
to endorse products using Lucy’s (D) famous name for one year. In return, Wood (P)
agreed to split the profits with Lucy (D). Wood (P) sued for breach of contract after
he discovered that Lucy (D) had endorsed products without his knowledge and
without splitting the profits. Lucy (D) demurred on the ground that a valid contract
never existed between the parties. In granting the demurrer and dismissing the
complaint, the Appellate division found that the contract lacked mutuality, as Wood
(P) never promised to do anything. Wood (P) appeals.
ISSUE
May a court imply a promise to make reasonable efforts in an exclusive-dealing
arrangement?

(Cardozo, J.) Yes. A court may imply a promise to make reasonable efforts in an
exclusive-dealing arrangement. Indeed, Wood (P) never expressly promised to use
reasonable efforts to endorse Lucy’s (D) products or to market her designs.
However, such a promise may be fairly implied by the court. Lucy (D) gave an
exclusive privilege to Wood (P), and his acceptance of the exclusive agency was an
assumption of its duties. To hold otherwise would be to undermine the purpose of
the agreement. Lucy’s (D) sole compensation for the grant of exclusive agency was
to receive one-half of all profits. He agreed to account monthly for all moneys
received, and to take out the necessary patents, copyrights, and trademarks. Unless
Wood (P) gave some reasonable effort, Lucy (D) could never get anything. In line
with the intention of the parties, we determine that Wood (P) made an implied
promise, and thus that the contract was not lacking in mutuality of obligation.
Reversed.
Analysis:
59
One of the fundamental bases of contract law is that the parties should be free to
establish the terms of the contract. Ordinarily a court will not interfere and create
implied promises or duties. For this reason, the holding of the Court of Appeals of
New York in this opinion is open to some criticism. Obligations should be created
voluntarily by contracting parties, not imposed by courts.
40
Although this opinion deviates from the typical “freedom of contract” analysis, it is
nevertheless supported by the U.C.C. According to § 2–306, exclusive dealing
contracts are valid and, unless otherwise agreed, impose an obligation on the seller
to use his best efforts to supply the goods. Thus, the court and legislature may step
in and alter the terms of a contract in some situations, typically where the interests
of justice so require.
CASE VOCABULARY
EXCLUSIVE DEALING ARRANGEMENT: An agreement whereby a distributor
expressly or implicitly contracts to supply all of a seller’s goods, using the
distributor’s best efforts.
41
(Grandfather) v. (Granddaughter)
57 Neb. 51, 77 N.W. 365 (1898)
COURT ADOPTS PROMISSORY ESTOPPEL AS ALTERNATIVE TO

BARGAINED-FOR EXCHANGE
INSTANT FACTS A woman who quit work in reliance on her grandfather’s

promise to support her sues when the executor of her grandfather’s estate fails to
60
pay.
BLACK LETTER RULE Where a person changes position in detrimental

reliance on a promise, the promisor may be estopped from later denying the
promise.
PROCEDURAL BASIS
Appeal from judgment for damages based on equitable estoppel.
FACTS
John C. Ricketts (D) executed a promissory note by which he promised to pay his
granddaughter, Katie Scothorn (P), $2000 per year at 6% interest on demand. After
Ricketts (D) died, Scothorn (P) sued his estate in order to recover payment on the
note. Scothorn (P) alleged that the consideration for this note was that Scothorn (P)
should surrender her employment and cease to work for a living, just like the rest of
Ricketts’ (D) grandchildren. Scothorn (P) also argued that Ricketts (D) was
equitably estopped from denying to pay the note, since the note was given to induce
her to abandon her occupation, and since she did give up her employment in
reliance on the note. Scothorn (P) remained unemployed for more than a year after
receiving the note, but she eventually went back to work with the consent of
Ricketts (D). Ricketts (D) died approximately two years later, having paid only one
year’s interest on the note. The trial court granted judgment for Scothorn (P), and
Ricketts’ (D) executor appeals.
ISSUE
Where a person intends to cause, and does indeed cause, another to change position
in reliance on a promise, can that person be estopped from denying the promise?

(Sullivan, J.) Yes. Where a person intends to cause, and does indeed cause, another
to change position in reliance on a promise, that person can be estopped from
denying the promise. We find that the note was not given in consideration of
Scothorn (P) pursuing any particular line of conduct. Scothorn never promised to
do, or refrain from doing, anything. Nevertheless, the doctrine of equitable
estoppel, or estoppel in pals, precludes Ricketts (D) from alleging that the note in
controversy is lacking one of the essential elements of a valid contract. Ricketts (D)
gave Scothorn (P) the note with the intent that she, like his other grandchildren, not
work any longer. Thus, Ricketts (D) induced Scothorn (P) to alter her position to
her detriment on the faith that the note would be paid on demand. It would be
grossly inequitable to permit Ricketts (D) to resist payment on the ground that the
61
promise was given without consideration. Affirmed.
42
Analysis:
The conventional equitable estoppel application precluded a party from alleging

facts that would contradict an earlier representation, if some other party had taken
action in reliance on the statement. The modern doctrine of promissory estoppel, by
contrast, as stated in the Restatement of Contracts, provides: (1) a promise that the
promisor should reasonably expect to induce action or forbearance, (2) and that
does induce such action or forbearance, (3) is binding if injustice can be avoided
only by enforcement of the promise. In the case at hand, the first two elements are
clearly satisfied. Ricketts (D) made a promise and executed a promissory note to
induce Scothorn (P) to quit work, and Scothorn (P) did indeed quit because of this
promise. Further, the court concludes that it would be unjust to permit Ricketts (D)
to escape his promise. Alternatively, in the instant case, the court could have
concluded that Ricketts (D) and Scothorn (P) made a bargained-for exchange, with
Ricketts (D) bargaining for the psychological comfort he would feel if Scothorn (P)
quit work, and with Scothorn (P) bargaining for the money. In the end, no matter
which theory is used, the courts seem to be placing a premium on doing the right
thing. It a result is equitable, the court usually finds some legal basis for reaching
that result.
CASE VOCABULARY
ESTOPPEL IN PAIS: The doctrine by which a person may be precluded from
asserting some right where his acts or words have induced another person to
change position in reliance; also known as equitable estoppel.
QUID PRO QUO: Something in exchange for something else, as in a bargained-for
exchange.
43

322 S.W.2d 163 (Mo. Ct. App. 1959)
RELIANCE MAY SUBSTITUTE FOR CONSIDERATION IN ORDER TO MAKE

PROMISES ENFORCEABLE
62
INSTANT FACTS Feinberg (P) retired from her employment, induced by her
employer’s promise to pay retirement benefits, and Feinberg (P) sues when the
payments are eventually discontinued.
BLACK LETTER RULE Retirement in reliance on pension benefits is

sufficient reliance to estop the employer from paying retirement benefits.
PROCEDURAL BASIS
Appeal from judgment awarding damages based on promissory estoppel.
FACTS
Anna Sacks Feinberg (P) was employed by Pfeiffer Co. (D) for 37 years. In view
of Feinberg’s (P) long service, Pfeiffer (D) promised to pay Feinberg (P) $200 per
month for life whenever Feinberg (P) decided to retire. Feinberg (P) continued to
work for Pfeiffer (D) for one-and-one-half years, at which point she decided to
retire. Pfeiffer (D) paid Feinberg (P) $200 per month for several years. However,
when new management took the helm at Pfeiffer (D), they decided not to pay
Feinberg (P) any more. Feinberg sued under two alternative theories: (1) that her
continued employment and eventual retirement was a bargained-for exchange for
the future retirement benefits; and (2) that Pfeiffer’s (D) promise was enforceable
because it induced Feinberg (P) to rely thereon. The trial court entered a judgment
for Feinberg (P), and Pfeiffer (D) appealed. On appeal, the Appellate Court held
first that there was no consideration sufficient to create a binding contract. The
Appellate Court then considered Feinberg’s (P) second purported basis of
recovery.
ISSUE
Is retirement from a lucrative position sufficient reliance to estop an employer from
denying the promise to pay retirement benefits?
63
(Doerner, J.) Yes. Retirement from a lucrative position is sufficient reliance to
estop an employer from denying the promise to pay retirement benefits. Feinberg
(P) clearly retired in reliance on Pfeiffer’s (D) promise to pay retirement benefits,
and this act was certainly anticipated by Pfeiffer (D). Following her retirement, and
after receiving years of retirement payments, Feinberg (P) was essentially
unemployable. Thus, great injustice would occur if Pfeiffer (D) was allowed to
renounce its promise to pay benefits to Feinberg (P). And even notwithstanding her
ability to be employed, the mere act of retiring based on Pfeiffer’s (D) inducement
is sufficient to impose a duty to pay on Pfeiffer (D). Affirmed.
Analysis:
This case provides interesting insight into the doctrine of promissory estoppel.
Feinberg’s (P) previous work, plus her continuation of employment after Pfeiffer
(D) made the promise, was
44
not sufficient consideration to form a binding contract. However, Pfeiffer’s (D)

promise clearly was made with the intent to induce reliance, and Feinberg (P) did
retire in detrimental reliance on the promise. The third prong of the promissory
estoppel analysis—that the promise is binding if injustice can be avoided only by
enforcement of the promise—seems to be an afterthought. The court essentially
holds that, where a promisor intends to induce and does induce detrimental
reliance, the promisor is estopped from later denying the obligation imposed by the
promise. But it is important to note that the act done must actually be in reliance on
the promise. If Feinberg (P) were planning on retiring anyway, promissory estoppel
would not apply.
45
Wright v. Newman
(Alleged Father) v. (Mother)
266 Ga. 519, 467 S.E.2d 533 (1996)
DETRIMENTAL RELIANCE SUPPORTS A FINDING OF PROMISSORY

ESTOPPEL
64
INSTANT FACTS Wright (D) held himself out as the father of Newman’s (P)
son, and Newman (P) filed suit against him for child support.
BLACK LETTER RULE If the promises in or in connection with an invalid

and unenforceable contract wrongfully cause a party to forgo a valuable legal right
to his detriment, and the party who made the promises waives the right to repudiate
the contract, the contract is enforceable.
PROCEDURAL BASIS
Appeal from a judgment in favor of Newman (P).
FACTS
Newman (P) brought an action against Wright (D) to recover child support for her
daughter and son. Wright (D) admitted his paternity only as to Newman’s (P)
daughter. DNA testing showed that he was not the father of Newman’s (P) son. The
trial court ordered Wright (D) to pay child support for both children. The court
ordered support for Newman’s (P) son based on Wright’s (D) actions in listing
himself on the child’s birth certificate, giving the child his surname, and
establishing a parent-child relationship. The trial court held that Wright (D) had
thereby allowed the child to consider Wright (D) as his father and in so doing
deterred Newman (P) from establishing the paternity of the child’s biological
father. The child was thus denied an opportunity to establish a parent-child
relationship with his biological father.
ISSUE
Was Wright’s (D) promise to pay support a legally enforceable contract?

(Carley, J.) Yes. If the promises in or in connection with an invalid and
unenforceable contract wrongfully cause a party to forgo a valuable legal right to
65
his detriment, and the party who made the promises waives the right to repudiate
the contract, the contract is enforceable. Wright is neither the biological nor the
formally adoptive father of Newman’s (P) son and the theory of “virtual adoption”
is inapplicable. It does not necessarily follow that, as a matter of law, he has no
legal obligation for child support. A legally enforceable obligation to provide child
support can be based upon parentage or contract. Wright (D) and Newman (P)
made no formal written contract regarding Wright’s (D) support for Newman’s (P)
son. Nevertheless, under Georgia’s contract law, a promise that the promisor
should reasonably expect to induce action or forbearance on the part of the
promisee or a third person and that does induce such action or forbearance is
binding if injustice can be avoided only by enforcement of the promise.
The evidence authorizes the finding that Wright (D) promised that he would assume
all of the obligations and responsibilities of fatherhood. Parents are legally
obligated to support their minor children, and Wright (D) accepted this support
obligation by acknowledging paternity. There is no dispute that Wright (D) knew
that he was not the biological father of the child at the time he made his
commitment, so he undertook this commitment knowingly and voluntarily. The
evidence also authorizes the finding that Newman (P) relied upon Wright’s (D)
promise to
46
her detriment. Newman (P) refrained from identifying and seeking support from the
child’s actual father, but if she had not refrained from doing so, she might now have
a source of financial support for the child and the child might now have a father to
provide emotional, as well as financial, support. If, after ten years of honoring his
voluntary commitment, Wright (D) were allowed to evade the consequences of his
promise, an injustice to Newman (P) and her son would result. Affirmed.
CONCURRENCE
(Sears, J.) It is an established principle in Georgia that a promise that the promisor
should reasonably expect to induce action or forbearance on the part of the
promisee and that does induce such action or forbearance is binding if injustice can
be avoided only by enforcement of the promise. Bearing this principle in mind,
Wright’s (D) commitment to Newman (P) to support her son is enforceable. It is
abundantly clear that Wright (D) should have known that Newman (P) would rely
upon his promise, especially after he undertook for ten years to fulfill the
obligations of fatherhood.
DISSENT
66
(Benham, C.J.) In addition to making a showing of expectation and reasonable
reliance, a person asserting liability on the theory of promissory estoppel must
show that she relied on the promise to her detriment. Newman (P) has not alleged
that she does not know the identity of the biological father, nor does she show that
he is dead or unable to be found. Consequently, Newman (P) has not shown that she
is now unable to seek support from him. Wright (D) contends that during the past
seven years he did not support the child. Any prejudice incurred by Newman (P)
because of the passage of ten years in time is not due to Wright’s (D) actions.
Newman (P) has failed to show that she or the child incurred any detriment by
Wright’s (D) failure to fulfill his promise made ten years ago.
Analysis:
The majority notes only briefly that Wright (D) knew he was not the father of
Newman’s (P) son when he made his promise. If he had not known he was not the
biological father of the child, his promise might still be enforceable if there were
reason for him to believe he was the father. Query whether the result would have
been the same if Newman (P) had misled him about the paternity of her son, and
Wright (D) did nothing on his own to verify the claim.
47

(Gubernatorial Aide) v. (Publisher)
479 N.W.2d 387 (Minn. 1992)
PROMISSORY ESTOPPEL APPLIES ONLY WHERE NECESSARY IN ORDER

TO PREVENT AN INJUSTICE
INSTANT FACTS Cohen (P), who leaked a newspaper story on the assurance
that his name would be kept confidential, sues when the newspaper editors publish
67
his identity.
BLACK LETTER RULE Promissory estoppel is applicable only where

enforcement of a promise is required in order to prevent an injustice.
PROCEDURAL BASIS
Appeal from judgment for $200,000, on remand from U.S. Supreme Court to apply
doctrine of promissory estoppel.
FACTS
Dan Cohen (P), an associate of a gubernatorial candidate, informed reporters of
newspapers owned by Cowles Media Company (D) of the arrests and conviction of
the opposing candidate for lieutenant governor. The reporters had promised to keep
Cohen’s (P) identity confidential. However, the editors overruled these promises
and printed Cohen’s (P) name. Cohen was fired by his firm, and he sued Cowles
(D) for breach of contract. The trial court awarded $200,000 in compensatory
damages. However, on Cowles’ (D) appeal, the Minnesota Supreme Court held that
the parties were not thinking in terms of a legally binding contract, and that
recovery based on promissory estoppel would violate the newspapers’ First
Amendment rights. The United States Supreme Court disagreed on the First
Amendment holding, and it remanded to the Supreme Court of Minnesota.
ISSUE
Is promissory estoppel applicable only where enforcement of a promise is required
in order to prevent an injustice?

(En banc) Yes. Promissory estoppel is applicable only where enforcement of a
promise is required in order to prevent an injustice. In the case at hand, both parties
have good moral arguments as to why Cowles’ (D) promise should or should not be
enforced. Neither side clearly holds the higher moral ground. However, the record
reveals that the harm to Cohen (P) requires a remedy in order to avoid injustice. At
trial, the newspapers themselves conceded that they generally keep the
confidentiality of any source. Cowles’ (D) editors conceded that they have never
since reneged on a promise of confidentiality. Other experts stressed the ethical
importance of keeping promises of confidentiality. Based on these representations,
we conclude that promissory estoppel should apply to prevent Cowles’ (D) from
reneging on their promise of confidentiality. Affirmed.
48
68
Analysis:
A promise that was intended to induce, and did indeed induce, reliance can be
enforced only where required in order to prevent injustice. Here, however, the
facts do not clearly state that Cohen (P) revealed the information only after being
assured that his name would remain confidential. If the promise was given by the
newspapers only after Cohen (P) supplied the information, promissory estoppel
would not apply. The court itself notes that both parties are on equal moral ground.
How, then, can the court be so sure that enforcement of the promise is required in
order to prevent injustice? Couldn’t the newspapers have validly argued that their
First Amendment rights are equally important, and that printing Cohen’s (P) name
was required in order to prevent injustice to the newspapers? This case
exemplifies the difficult balancing that must occur when considering the equitable
issues underlying promissory estoppel.
CASE VOCABULARY
COUNTERMANDED: Took an action inconsistent with an earlier action or
promise.
GUBERNATORIAL: Of or concerning an election for governor.
49

(Distributor) v. (Supplier)
923 F.2d 566 (7th Cir. 1991)
PROMISSORY ESTOPPEL ALLOWS RECOVERY FOR RELIANCE DAMAGES

ONLY, NOT EXPECTANCY DAMAGES
INSTANT FACTS A liquor distributor, who rejected a purchase offer in
69
reliance on a supplier’s promise not to terminate the relationship, sues the supplier
after the supplier withdrew its account.
BLACK LETTER RULE Promissory estoppel allows recovery of reliance

damages and not expectancy damages.
PROCEDURAL BASIS
Appeal from order granting summary judgment dismissing action for damages
based on promissory estoppel.
FACTS
D & G Stout, Inc. (P), operating under the name General Liquors, Inc. (“General”)
was distributing liquor in Indiana in 1987. During this time period, the liquor
suppliers in Indiana undertook an effort to consolidate their distribution. As a
result, two of General’s (P) suppliers canceled their contracts in early 1987.
General (P) began negotiating with another distributor, National Wine & Spirits, for
a potential sale of General (P). However, Bacardi Imports, Inc. (D), one of
General’s remaining suppliers, assured General (P) that it would continue to act as
its supplier for Indiana. Based on this promise, General (P) turned down National’s
offer to purchase General (P). One week later, Bacardi (D) withdrew its account.
General (P), after losing another major supplier and several employees, then
returned to its earlier negotiations, eventually selling the company to National for
$550,000 less than the original offer. General (P) sued Bacardi (D) in order to
recover this $550,000 difference. The district court entered summary judgment for
Bacardi (D), holding that General (P) could not recover based on promissory
estoppel because Bacardi’s (D) promise was not one on which it should have
reasonably expected General (P) to rely. General (P) appeals.
ISSUE
Does promissory estoppel allow recovery of reliance damages only and not
expectancy damages?

(Cudahy, J.) Yes. Promissory estoppel allows recovery of reliance damages and not
expectancy damages. Pursuant to Indiana law, promissory estoppel does not afford
recovery for an at-will employment relationship. Under such a relationship, any
promises of future employment are only expectancy damages, since the employment
relationship may be terminated by either party at any time. However, Indiana law
does allow for recovery of some reliance damages, even in the at-will employment
relationship. For example, where an at-will employee changes location in reliance
70
on continued employment, he may recover his moving expenses incurred if he is
later fired. This latter example is of reliance damages, since the employee moved
in reliance on continued employment. In the instant action, we must determine
50
whether General’s (P) damages were based on a mere expectancy that Bacardi (D)
would continue as supplier, or based on reliance in Bacardi’s (D) promise to
remain a supplier. While we do not need to decide the issue, we hold that General
(P) did have a reliance interest in Bacardi’s (D) promise. National never assumed
that Bacardi (D) would continue as a supplier if National purchased General (P).
Rather, General (P) was damaged because it relied on Bacardi’s (D) promise and
chose not to accept National’s original offer. All parties Involved, including
Bacardi (D), realized that General (P) could continue in business only if Bacardi
(D) remained one of General’s (P) suppliers. Thus, Bacardi (D), because of its
promise and its continuing reassurances to General (P) of its commitment, could
have reasonably expected General (P) to rely thereon. While we do not reach the
issue of whether General’s (P) reliance was reasonable—as this is an issue for the
trial court on remand—we hold that promissory estoppel may apply. Reversed and
remanded.
Analysis:
Promissory estoppel applies, of course, only to allow recovery of reliance

damages. Thus, where a party changes position based on the mere expectancy of a
continuing relationship, that party may not recover. In the case at hand, it is possible
to argue that General (P) did just that. It expected Bacardi (D) to continue as a
supplier, and therefore it rejected National’s offer. However, the conclusion
reached by the Court is more reasonable. General’s (P) rejection of National’s
offer was not based on any future income from Bacardl (D), but on the fact that it
could stay in business by having Bacardi (D) as a supplier. It was General’s (P)
reliance on the assurances, and not any future income, that induced General (P) to
reject the original bid. It is interesting to note that, on remand, the district court
found that Bacardi’s (D) commitment was conditional on future events, but
nevertheless that General’s (P) reliance was not unreasonable. Accordingly,
General (P) was awarded nearly $400,000 in damages.
CASE VOCABULARY
AT-WILL EMPLOYMENT: An arrangement whereby either the employer or
employee can terminate the relationship at any time, for any reason, without
liability.
71
QUANDARY: A logical predicament; a state of perplexity.
51
Cotnam v. Wisdom
(Administrator of Decedent-Patient) v. (Emergency Surgeon)
83 Ark. 601, 104 S.W. 164 (1907)
SERVICES PROVIDED BY A PHYSICIAN COMING TO THE EMERGENCY

AID OF PARTY CREATES A CONTRACT IMPLIED BY LAW FOR
REASONABLE VALUE OF SERVICES
INSTANT FACTS Wisdom (P) was a physician who responded to an emergency

call from a spectator to perform emergency surgery on Harrison (D), decedent, in
an effort to save Harrison’s life, but the operation was unsuccessful, and Harrison
died without regaining consciousness.
BLACK LETTER RULE When a physician renders emergency medical

services to a person, who due to his medical or mental condition is not capable of
agreeing to the treatment, the law will imply a contract for the reasonable value of
the services.
PROCEDURAL BASIS
An appeal from Circuit Court that awarded judgment for Wisdom (P).
FACTS
Harrison (D) was thrown from a street car and received serious injuries which
rendered him unconscious. While Harrison (D) was still unconscious, Wisdom (P),
a physician, was summoned to his assistance by some spectator. Wisdom (P)
performed a difficult operation in an effort to save Harrison’s (D) life, but the
72
operation was unsuccessful, and Harrison (D) died without regaining
consciousness. Wisdom (P) brought an action against Cotnam, administrator of
Harrison’s (D) estate, to recover for the services rendered to Harrison (D). The
trial court gave instructions to the jury that “(1) If you find from the evidence that
plaintiffs rendered professional services as physicians … in a sudden emergency
… then you are instructed that plaintiffs are entitled to recover … reasonable
compensation for the services rendered. (2) The character and importance of the
operation, the responsibility resting upon the surgeon … his experience and
professional training, and the ability to pay of the person operated upon, are
elements to be considered … in determining … reasonable charge….”
ISSUE
Is there an implied contract by law for the reasonable value of services rendered by
a medical professional giving emergency assistance to a party not physically
capable of agreeing to have the services performed?
(Hill) Yes. Contracts by implication of law are almost as old as the English system
of jurisprudence. They are usually called “implied contracts”. More properly they
should be called “quasi contracts” or “constructive contracts.” Contracts implied
by law contain no mutual understanding, and so no promise. It is a legal fiction,
invented and used for the sake of the remedy. Since implied contracts do not require
any evidence of mutual understanding, the fact that Harrison (D) was never
conscious after his accident, and therefore, could not expressly or impliedly, assent
to the action, is not determinative in finding the existence of a contract. The
52
legal fiction that creates an implied contract merely requires a reasonable

compensation for the services rendered. It was therefore error to instruct the jury in
the second instruction that in determining what was a reasonable charge, they could
consider the “ability to pay of the person operated upon.” The subsequent evidence
that Harrison (D) was a bachelor and that his estate was left to nieces and nephews
was admitted into evidence in error. This was relevant to no issue in the case, and
its effect might well have been prejudicial. Judgment is reversed, and the action is
remanded.
CONCURRENCE
(Battle and Wood) Yes. However, it was not error to admit evidence of the value of
the estate, and instructing that it might be considered in fixing the charge.
73
Analysis:
As the court pointed out, implied contracts (or quasi or constructive contracts) exist
only as a legal fiction. The courts apply the legal fiction only when one party has
substantially benefited another and justice requires that the benefited party
compensate the other party. In this case, the physician, Wisdom (P), was adhering to
his oath taken as a doctor by responding to the medical emergency of Harrison (D).
The general welfare of the public interest is furthered when physicians respond to
the emergency medical needs of the public. The court compares these occurrences
to physicians treating insane persons. The insane person needs medical assistance,
but is unable to contract for the treatment. The legal fiction creates the contract in
the interest of public welfare.
CASE VOCABULARY
ASSUMPSIT: A common law action to recover for nonperformance of some type of
contract.
EX CONTRACTU: Actions arising from a contract.
EX DELICTO: Actions arising from a tort.
53

(Nursery) v. (Home Builders)
91 N.J.Super. 105, 219 A.2d 332 (A.D. 1966)
QUASI-CONTRACTUAL RECOVERY IS AVAILABLE TO PREVENT UNJUST

ENRICHMENT ONLY IN LIMITED SITUATIONS
INSTANT FACTS Operators of a nursery seek to recover payment for shrubbery

from the home builder, although a contract existed only with the now-deceased
74
home owner.
BLACK LETTER RULE Quasi-contractual recovery is not available when an

alternative remedy based on an actual contract exists.
PROCEDURAL BASIS
Appeal from judgment based on quasi-contract.
FACTS
Oakwood Park Homes Corp. (D) contracted with Bruce Pendergast to sell a new
home which Oakwood was building. Prior to the completion of the house, Julia and
Frank Callano (P), the operators of a plant nursery, delivered and planted
shrubbery pursuant to a contract with Pendergast. An Oakwood representative had
knowledge of the planting. Pendergast failed to pay the Callanos (P) and Pendergast
died shortly after the shrubbery was planted. After the death, Oakwood (D) and
Pendergast canceled the house sale contract. Shortly thereafter, Oakwood (D) sold
the property (including the shrubbery) to a new buyer. The Callanos (P) sued
Oakwood (D) in order to recover payment for the shrubbery. Although no contract
existed between the Callanos (P) and Oakwood (D), the Callanos (P) argued that
Oakwood (D) would be unjustly enriched if it did not have to pay for the shrubbery.
The parties agreed that the shrubbery increased the value of the property by $475.
The trial court implied a quasi-contract and granted restitution, entering a judgment
in favor of the Callanos (P) in order to prevent unjust enrichment. Oakwood (D)
appeals.
ISSUE
May a party recover based on quasi-contract when an alternative remedy based on
an actual contract exists?

(Collester, J.) No. A party may not recover based on quasi-contract when an
alternative remedy based on an actual contract exists. The law does recognize
contracts implied by law, also known as quasi-contracts, as a means to prevent
unjust enrichment in some situations. Pursuant to this theory, the Intention of the
parties is entirely disregarded, and the law imparts an implied promise to pay
where one party is enriched by benefits and the retention of the benefits without
payment would be unjust. A common thread runs through all such cases, namely,
that the plaintiff expected payment from the defendant at the time the benefit was
conferred. In other words, there must be some direct relationship or mistake on the
part of the person conferring the benefit. In the case at hand, there was no direct
75
relationship between the Callanos (P) and Oakwood (D). The Callanos (P) did not
expect remuneration from Oakwood (D) at the time they planted the shrubbery. In
this situation, we hold that it would be unjust to
54
hold Oakwood (D) liable. The Callanos (P) may seek recovery from Pendergast’s
estate based on the actual contract with Pendergast. Courts should not employ the
legal fiction of quasi-contract to substitute one promisor or debtor for another.
Reversed.
Analysis:
Restitution is recovery based on preventing unjust enrichment, not any actual

promise between parties. Thus, the law implies a promise (a quasi-contract) when
it would be unfair for one person to obtain certain benefits without having to pay
for them. Based on this framework, it would appear that the Callanos (P) could
recover from Oakwood (D), since Oakwood (D) was certainly enriched by the
increased value conferred on the land by the shrubbery. However, there are two
important twists. First, there must be some relationship or dealings between the
party seeking the quasi-contract and the party who was unjustly enriched. Second,
where the party seeking the quasi-contract has an alternative remedy available—
such as suing the original promisor for breach of contract—he cannot recover
based on unjust enrichment. Courts are cautious in employing unjust enrichment
theories, especially when alternative recovery based on actual contracts is
possible.
CASE VOCABULARY
QUASI-CONTRACT: A contract implied at law, in which obligations are imposed
not based on actual promises made but on the grounds of fairness and preventing
unjust enrichment.
UNJUST ENRICHMENT: The basis for restitution, in which a party who receives
benefits is required to pay for the benefits even if there was no actual contract.
55
Pyeatte v. Pyeatte
(Ex-Wife) v. (Ex-Husband)
135 Ariz. 346, 661 P.2d 196 (App. 1982)
EX-SPOUSES ARE NOT ENTITLED TO RESTITUTION FOR USUAL

MARITAL DUTIES, BUT MAY RECEIVE RESTITUTION FOR
76
EXTRAORDINARY CONTRACTUAL EFFORTS
INSTANT FACTS After spouses agree to put each other through graduate
school, the husband uses the wife’s money to graduate law school, then divorces
her.
BLACK LETTER RULE While ex-spouses are not entitled to restitution for
performing usual duties incidental to marriage, restitution is available if the
spouses had an agreement and one spouse made extraordinary efforts which
benefited the other solely.
PROCEDURAL BASIS
In contract action seeking damages, appeal from appellate affirmation of judgement
for plaintiff.
FACTS
Charles (D) and Margrethe (P) Pyeatte married. They agreed Margrethe (P) would
put Charles (D) through law school without his working, and that Charles (D)
would later pay for Margrethe’s (P) graduate school. Margrethe (P) paid Charles’s
(D) bills, enabling him to graduate, obtain work at a law firm, and divorce her soon
after. [Apparently, he learned the law too well.] Margrethe (P), who had not yet
started graduate school, sued Charles (D) for breach of contract. Charles (D)
defended, contending the agreement was too indefinite to be enforceable. At trial,
the court found the agreement was enforceable, and awarded Margrethe (P)
$23,000. On appeal, the Court of Appeal apparently found the contract was invalid,
but granted Margrethe (P) the same amount as restitutionary damages. Charles (D)
appeals.
ISSUE
77
If spouses agree to pay each other’s graduate schooling, and one does, may he or
she sue for restitution when the other leaves before performing?

(Corcoran) Yes. While ex-spouses are not entitled to restitution for performing
usual duties incidental to marriage, restitution is available if the spouses had an
agreement and one spouse made extraordinary efforts which benefited the other
solely. We find the agreement here was unenforceable. However, the agreement is
still relevant in considering Margrethe’s (P) claim of unjust enrichment, because it
evidences both Margrethe’s (P) expectation of compensation, and the injustice of
allowing Charles (D) to retain the benefits of Margrethe’s (P) extraordinary efforts.
We find that restitution is sometimes an appropriate remedy in divorce proceedings,
but only where there was a spousal agreement and one spouse made extraordinary
or unilateral efforts which inured to the other’s sole benefit. Where both spouses
perform the usual and incidental activities of the marital relationship, upon divorce
there can be no restitution. Reversed and remanded to recalculate restitutionary
damages.
Analysis:
Usually, inter-spousal restitution claims are dismissed on the premise that spousal
services are presumed gratuitous. This premise is still applied in the vast majority
of cases, since even under
56
Pyeatte, few spouses start off their marriage by making specific, legally valid
contracts. There seems to be no sound basis for such a policy, other than courts’
unwillingness to “denigrate” the marital relationship by admitting it is often partly a
financial arrangement. However, the court here clearly believed that to deny
Margrethe (P) any recovery at all would be a colossal injustice to her, and an
undeserved windfall to her husband.
78
57
79
80
CHAPTER TWO
81
Creating Contractual Obligations
Lucy v. Zehmer
Instant Facts: Two drunks agree to a farm sale written on the back of a bar bill.
Black Letter Rule: A contract is enforceable despite one party’s subjective belief
that the parties are joking.
Instant Facts: The terms of a software license included an arbitration clause, but
that clause was not visible without scrolling down on the computer screen past the
download button.
Black Letter Rule: An offeree is not bound by inconspicuous contractual
provisions of which he or she is unaware when they are contained in a document
whose contractual nature is not obvious, regardless of an apparent manifestation of
consent.
Owen v. Tunison
Instant Facts: Letters pass between a property owner and a prospective purchaser
as they haggle over the value of the property.
Black Letter Rule: An invitation to negotiate is not binding as an offer to contract.
Harvey v. Facey
Instant Facts: Prospective purchaser solicits Jamaican landowner by mail for
lowest sale price.
Black Letter Rule: Stating a possible sale price is not binding as an offer to sell at
that price.
Fairmount Glass Works v. Grunden [Crunden]-Martin Woodenware Co.
Instant Facts: Letters are exchanged between a mason jar manufacturer and a
prospective buyer.
Black Letter Rule: A price quote may give rise to an enforceable contract,
depending upon its language.
Instant Facts: A store refuses to sell a fur coat to a male buyer for the advertised
price of $1.
Black Letter Rule: An advertisement which is definite, explicit, and which leaves
nothing open to negotiation creates a binding contract upon the acceptance of a
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prospective purchaser.
Instant Facts: A water filter manufacturer refuses to cancel an ice company’s
order for a filter.
Black Letter Rule: The offeror controls the method and means of acceptance by
the language of the offer.
Instant Facts: A builder accepts a construction contract by beginning to purchase
lumber for the job.
Black Letter Rule: In the absence of express provisions in the offer, an acceptance
must be by reasonable means given the circumstances surrounding the offer.
Instant Facts: A roofing company arrives to start a job only to discover that their
prospective client has hired someone else.
58
Black Letter Rule: In the absence of specific language in an offer, the offeror must
allow a reasonable amount of time for acceptance.
Instant Facts: Ford sought to hold Allied to an indemnification agreement when an
Allied employee was injured at the Ford plant.
Black Letter Rule: An offer which suggests a means of acceptance may become
binding by performance by the offeree.
Instant Facts: A drug distributor sought to force a drug manufacturer to sell it a
vaccine at a certain price.
Black Letter Rule: If a seller ships to the buyer non-conforming goods and gives
notice that the shipment is an accommodation, the seller is not in breach of contract
and is not obligated to deliver goods that conform to the buyer’s order.
Dickinson v. Dodds
Instant Facts: An offeror gave an offeree until Friday to accept an offer to sell
property, but sold the property to someone else on Thursday.
Black Letter Rule: Without separate consideration, an offeror may revoke an offer
83
any time before the offeree’s deadline to accept the offer.
Instant Facts: Drennan (P) prepared a bid for a construction job, relying on a
subcontracting bid submitted by Star Paving (D), but Star Paving (D) claimed its
bid was revoked.
Black Letter Rule: A promise that the promisor should reasonably expect to
induce action or forbearance of a definite and substantial character and that does
induce such action or forbearance is binding if injustice can be avoided only by
enforcement of the promise.
Instant Facts: Griffith made an electronic payment of the premium necessary to
reinstate his life insurance coverage, but the payment was not received until after
Griffith died.
Black Letter Rule: The common-law rule providing that acceptance of an offer is
effective when it is sent will apply to electronic transactions that resemble
traditional paper transactions.
Instant Facts: A carpet manufacturer wants to hold a dissatisfied retailer to an
arbitration agreement pre-printed on the manufacturer’s sales forms.
Black Letter Rule: Under UCC § 2–207, if an arbitration provision materially
alters an existing agreement, it will not be incorporated into the contract unless
expressly agreed to by both parties.
Instant Facts: Jordan (D) sent an acknowledgement of a purchase order from Itoh
(P) and included an arbitration clause in the acknowledgement.
Black Letter Rule: The terms of a contract formed by the conduct of the parties
are those on which the writings of the parties agree, along with supplementary
terms incorporated by operation of law.
Instant Facts: Oxygenated (D) offered to purchase MTBE from Bayway (P), and
Bayway’s (P) acceptance included a clause requiring Oxygenated (D) to pay the
taxes on the transaction.
59
84
Black Letter Rule: The burden of proving that additional terms would be a
material alteration of the contractual obligation is on the party who objects to the
inclusion of the additional terms.
Instant Facts: Litronic’s (D) invoice provided for a ninety-day warranty period,
but Northrop’s (P) acceptance provided for an unlimited warranty period.
Black Letter Rule: If an offeree’s response is different from the offer, the different
terms drop out and are replaced by suitable U.C.C. gap-filler terms.
Step-Saver Data Systems, Inc. v. Wyse Technology [and The Software Link,
Inc.]
Instant Facts: A software dealer used a defective program in one of its
commercial systems and sought to enforce a warranty against the producer of the
program.
Black Letter Rule: UCC § 2–207 governs contracts for the sale of goods where
the parties have multiple agreements with additional or different terms.
Instant Facts: A purchaser of a computer software database resold the database on
the Internet in violation of the license included with the software.
Black Letter Rule: A license enclosed in a software package forms a binding
contract between the software seller and buyer if the package provides notice that
the purchase is subject to the license and the buyer can receive a refund if the buyer
does not agree to the license’s terms.
Instant Facts: Hill (P) purchased a computer from Gateway (D) and claimed that
the arbitration agreement included in materials enclosed inside the box, which
purported to govern unless the computer was returned within thirty days, was
unenforceable.
Black Letter Rule: A seller may provide that acceptance of an offer will be by
conduct, and the buyer accepts by performing the acts that the seller proposes to
treat as acceptance.
Instant Facts: A bakery owner wants to open a supermarket franchise but is
rejected by the franchiser after making preparations at their request.
Black Letter Rule: It is not necessary for an offer to address every detail of an
agreement in order to support a promissory estoppel claim.
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Instant Facts: Wells Fargo (D) induced the Dixons (P) to take steps to initiate a
modification of their mortgage, but then began foreclosure proceedings.
Black Letter Rule: The promise on which a claim for promissory estoppel is
based must be interchangeable with an offer, and must demonstrate an intention to
act or refrain from acting in a specified way.
Instant Facts: A computer hardware manufacturer produced equipment for a buyer
without entering into a contract, and sued for promissory estoppel.
Black Letter Rule: A party who relies on a promise that a contract is forthcoming
may recover under a promissory estoppel theory.
Instant Facts: A mall developer abruptly cancels lease negotiations with a
prospective tenant.
Black Letter Rule: An agreement to negotiate in good faith toward a prospective
contract may be binding if it satisfies the conditions to a binding contract.
60

Instant Facts: A lessor and lessee cannot reach an agreement when the lessee
attempts to exercise a renewal option.
Black Letter Rule: An option provision may be sufficiently definite to be binding
if it contains terms which enable the parties to satisfy their subsequent agreement.
Instant Facts: After about 25 years of doing business pursuant to a contract, the
parties could no longer agree on a price to be used.
Black Letter Rule: If parties to a contract have not agreed on the price, the court
can set a price so long as the parties intend to be bound by the contract.
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Lucy v. Zehmer
(Farm Buyer) v. (Farm Seller)
196 Va. 493, 84 S.E.2d 516 (1954)
86
SUPREME COURT OF VIRGINIA ENFORCES FARM SALE INTENDED AS A
JOKE
INSTANT FACTS Two drunks agree to a farm sale written on the back of a bar
bill.
BLACK LETTER RULE A contract is enforceable despite one party’s

subjective belief that the parties are joking.
PROCEDURAL BASIS
Appeal from a trial court judgement for the defendant in a breach of contract action.
FACTS
W.O. Lucy (Lucy) (P) and A.H. Zehmer (Zehmer) (D) were drinking at a bar when
Lucy (P) offered to buy Zehmer’s (D) farm for $50,000. Zehmer (D) thought it was
a joke. In fact, he said that he was “high as a Georgia Pine” at the time.
Nonetheless, he wrote up an agreement of sale on the back of a bar bill. Zehmer (D)
and his wife signed the agreement and left it on the bar. When Lucy (P) picked it up,
Zehmer (D) assured him that it was a joke. Lucy (P) insisted that he had purchased
the farm and then left the bar. Lucy (P) brought a breach of contract suit against
Zehmer (D), asking that the court enforce the sale of the farm by ordering specific
performance of the agreement. The trial court denied Lucy’s (P) request and this
appeal followed.
ISSUE
Will a contract be enforced despite one party’s subjective belief that the parties are
joking?
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(Buchanan) Yes. The objective intent of the parties is central to a determination of
their desire to be bound. This rule will be disregarded only when one party is
aware of the other party’s subjective intent not to be bound. In this case, Lucy (P)
and Zehmer (D) haggled over the price of the farm, the wording of the agreement,
and the need for a token payment to seal the deal. They appear to have dealt with
each other as reasonable parties to a genuine transaction [okay…reasonable drunk
guys]. Lucy (P) had no idea that Zehmer (D) was secretly joking and Zehmer’s (D)
behavior, judged objectively, gave no indication of this before the agreement was
delivered. As a result, the contract is enforceable and specific performance will be
ordered. Reversed and remanded.
Analysis:
The meeting of the minds doctrine, which required that each party to a contract have
a subjective desire to be bound, is no longer the litmus test for a valid contract. In
this case, a contract predicated on a joke remained enforceable even though Zehmer
(D) was subjectively disinterested in selling his farm. Several mistakes can lead to
the rescission of a contract, including transcription mistakes, jokes, ambiguities,
and other problems. According to the Restatement (Second) of Contracts, when
there is a mistake of fact that goes to a basic
62
assumption of the contract, the party seeking to be excused from performance must
show that they ought not to bear the risk of loss from the mistake. The analysis in
mistake cases frequently hinges on which party was best situated to avoid the
mistake. In this case, Zehmer (D) was best situated to avoid the confusion, because
he had not made it clear that he was joking. However, a modem court would be
unlikely to enforce the agreement under these circumstances.
CASE VOCABULARY
LAST CLEAR CHANCE: A doctrine usually associated with negligence law
which places liability for an injury on the person with the last opportunity to avoid
the accident by exercising reasonable care; it is not applied in every jurisdiction.
SPECIFIC PERFORMANCE: A contract remedy which provides for exact
performance on the contract when money damages would not adequately
compensate the injured party. It is most often available for the sale of real estate
and for the sale of unique goods, but it is not a commonly ordered remedy.
63
88
(Internet User) v. (Software Provider)
306 F.3d 17 (2d Cir. 2002)
CONTRACTS REQUIRE REASONABLY CONSPICUOUS NOTICE OF TERMS

AND UNAMBIGUOUS MANIFESTATION OF ASSENT TO THOSE TERMS
INSTANT FACTS The terms of a software license included an arbitration

clause, but that clause was not visible without scrolling down on the computer
screen past the download button.
BLACK LETTER RULE An offeree is not bound by inconspicuous contractual

consent.
PROCEDURAL BASIS
Appeal from a judgment denying a motion to compel arbitration.
FACTS
Specht (P) and the other plaintiffs downloaded free software, Communicator and
SmartDownload, from Netscape (D). Specht (P) and the other plaintiffs alleged
that, unknown to them, their installation of the software transmitted to Netscape (D)
private information about the downloading of files from the Internet. This allegedly
effected an electronic surveillance of their online activities in violation of federal
law. When installation of Communicator was initiated, a scrollable text of that
program’s license agreement appeared. Users were not permitted to complete the
installation until they had clicked on a “Yes” button to indicate that they accepted
all the license terms. The agreement further stated that disputes relating to the
agreement would be subject to “binding arbitration in Santa Clara County,
California.” When installation of SmartDownload was initiated, there was no
license agreement on the download screen. If a user scrolled down instead of acting
89
on Netscape’s (D) invitation to click on the “Download” button, he or she would
have encountered the following invitation: “Please review and agree to the terms of
the Netscape SmartDownload software license agreement before downloading and
using the software.” If a user did happen to scroll down past the download button,
SmartDownload’s license terms would not have been immediately displayed. A
user who saw the notice of SmartDownload’s terms and then clicked on the
underlined invitation to review and agree to the terms would then see a hypertext
link. That link would have taken the user to a separate webpage entitled “License &
Support Agreements.” The first paragraph on this page further directed the user to
click on the appropriate link to review the current license agreement for the product
of interest. If the user clicked on a link, he or she would be taken to yet another
webpage that contained the full text of a license agreement. Among the license
terms was a provision requiring virtually all disputes relating to the agreement to
be submitted to arbitration.
ISSUE
Was the arbitration clause an enforceable part of the license agreement?
64

(Sotomayor, J.) No. An offeree is not bound by inconspicuous contractual
consent. Arbitration agreements are no exception to this requirement. Clarity and
conspicuousness of arbitration terms are important in securing informed assent.
Netscape (D) argues that Specht (P) and the other plaintiffs must be held to a
standard of reasonable prudence. Notice of the existence of the license terms was
on the next scrollable screen, so Netscape (D) asserts that Specht (P) and the other
plaintiffs were on “inquiry notice” of those terms. We disagree with the proposition
that a reasonably prudent offeree would necessarily have known or learned of the
existence of the license agreement prior to acting. It is true that a party cannot avoid
the terms of a contract on the ground that he or she failed to read it before signing,
but there is an exception to this general rule when the writing does not appear to be
a contract and the terms are not called to the attention of the recipient. In that type of
case, no contract is formed with respect to the undisclosed term.
Most of the cases cited by Netscape (D) in support of its inquiry-notice argument
are drawn from the world of paper contracting. Receipt of a physical document
containing contract terms or notice thereof is frequently deemed, in the world of
paper transactions, a sufficient circumstance to place the offeree on inquiry notice
90
of those terms. These principles apply equally to the emergent world of online
product delivery, pop-up screens, hyperlinked pages, shrink-wrap licensing,
scrollable documents, and urgent admonitions to “Download Now!” What Specht
(P) and the other plaintiffs saw when they were being invited by Netscape (D) to
download the software was a screen containing praise for the product. At the very
bottom of that screen there was a “Download” button. Netscape (D) argues that a
“fair and prudent person using ordinary care” would have been on inquiry notice of
the license terms. We are not persuaded that a reasonably prudent offeree in these
circumstances would have known of the existence of license terms. The offer did
not carry an immediately visible notice of the existence of license terms or require
unambiguous manifestation of assent to those terms. The position of the scroll bar
on their computer screens does not mean that Specht (P) and the other plaintiffs
reasonably should have concluded that this portion contained a notice of license
terms. Specht (P) and the other plaintiffs testified, and Netscape (D) did not refute,
that they were in fact unaware that Netscape (D) intended to attach license terms to
the use of the software. In circumstances such as these, where consumers are urged
to download free software at the immediate click of a button, a reference to the
existence of license terms on a submerged screen is not sufficient to place
consumers on inquiry or constructive notice of those terms. Reasonably
conspicuous notice of the existence of contract terms and unambiguous
manifestation of assent to those terms by consumers are essential if electronic
bargaining is to have integrity and credibility. Affirmed.
Analysis:
As the court notes, “I didn’t read it” is not a defense to contractual liability. There
are a number of reasons for this, among them a general unwillingness to reward a
lack of diligence. A different situation exists in cases in which there was no
apparent reason to be diligent, as when the offeree does not know that he or she is
being given the opportunity to accept or reject an offer. That was the case here.
CASE VOCABULARY
ARBITRATION: A method of dispute resolution involving a neutral third-party
decision-maker agreed upon by the disputing parties whose decision is binding.
CLASS ACTION: A lawsuit in which the court authorizes a single person or a
small group of persons to represent the interests of a larger group. In order to
maintain a class action, (1) the class must be so large that individual suits would be
impracticable, (2) there must be legal or factual questions common to the class, (3)
the claims or defenses of the representative parties
65
91
must be typical of those of the class, and (4) the representative parties must
adequately protect the interests of the class.
CONSTRUCTIVE NOTICE: Notice presumed by law to have been acquired by a
person and that is thus imputed to that person.
INQUIRY NOTICE: Notice attributed to a person when available information
would have led an ordinarily prudent person to investigate further.
POINT-AND-CLICK AGREEMENT: An electronic version of a shrink-wrap
license in which a computer user agrees to the terms of an electronically displayed
agreement by pointing the mouse to a particular location on the screen and then
clicking on it.
SHRINK-WRAP LICENSE: A license printed on the outside of a software
package, advising the buyer that by opening the package the buyer becomes legally
bound to abide by the terms of the license. Shrink-wrap licenses usually seek to
prohibit users from making unauthorized copies of the software and modifications
to the software, limit use of the software to one computer, limit the manufacturer’s
liability, and disclaim warranties.
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Owen v. Tunison
(Prospective Purchaser) v. (Property Owner)
131 Me. 42, 158 A. 926 (1932)
SUPREME COURT OF MAINE DISTINGUISHES BETWEEN AN OFFER TO

CONTRACT AND AN OFFER TO NEGOTIATE
INSTANT FACTS Letters pass between a property owner and a prospective

purchaser as they haggle over the value of the property.
92
BLACK LETTER RULE An invitation to negotiate is not binding as an offer to
contract.
PROCEDURAL BASIS
Not stated.
FACTS
W.H. Owen (Owen) (P) wanted to purchase a piece of property owned by R.G.
Tunison (Tunison) (D). He wrote to Tunison (D), telling him that he would be
willing to pay $6,000 for the property. Tunison (D) wrote back, stating that he
would want at least $16,000 due to improvements which he had made to the
property. Owen (P) replied, accepting the “offer” and asking Tunison (D) to
forward the deed to Owen’s (P) bank. Tunison (D) wrote back, stating that he did
not want to sell the property. Owen (P) brought-suit and sought enforcement of the
alleged agreement of sale.
ISSUE
Is a statement of a desired price a binding offer to sell at that price?

(Barnes) No. In order for this contract to be valid, there must be an actual offer to
sell the property. In this case, Tunison (D) did not offer to sell his real estate. At
best, his letter indicated a willingness to negotiate towards a potential sale.
Judgement for Tunison (D). [You’re a man of few words, Justice Barnes.]
Analysis:
It can be difficult to determine whether a party’s communication is a potentially

binding offer to enter into a contract. The general rule is that a communication is an
offer if the person receiving the communication would be justified in thinking that
he or she had the power to bind the other party to a legally enforceable agreement.
In this case, the letter is phrased negatively—it would not be possible…unless.”
This language implies that Tunison (D) is not completely committed to the idea of
selling the property. In addition, Owen (P) initiated the communication between the
parties. As a result, a more affirmative response from Tunison (D) should be
required before binding him to a contract.
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CASE VOCABULARY
93
[SPOCK: A half-Vulcan, half-human member of the crew of the Starship Enterprise
capable of performing the creepy Vulcan mind meld. This would be a very useful
device for determining the subjective intent of the parties to a contract if courts took
this into account—which they don’t.]
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Harvey v. Facey
(Potential Purchaser) v. (Landowner)
[1893] A.C. 552 (Privy Council) (Jamaica)
PRIVY COUNCIL OF JAMAICA DISTINGUISHES BETWEEN AN OFFER TO

CONTRACT AND A STATEMENT OF A POSSIBLE SALE PRICE
INSTANT FACTS Prospective purchaser solicits Jamaican landowner by mail

for lowest sale price.
BLACK LETTER RULE Stating a possible sale price is not binding as an offer
to sell at that price.
PROCEDURAL BASIS
On appeal from the Supreme Court of Jamaica’s reversal of the trial court’s
dismissal of the breach of contract action.
FACTS
Harvey (P) wanted to purchase a piece of property owned by Facey (D). Harvey
(P) sent Facey (D) a telegram asking him if he would consider selling Harvey (P)
the property. He also asked Facey (D) to quote his lowest price. Facey (D)
responded that the lowest price was £900. Harvey (P) accepted this “offer.” When
Facey (D) refused to sell the land, Harvey (P) sued him for breach of contract and
94
requested specific performance on the contract. The trial court found that there was
no completed contract between Harvey (P) and Facey (D) and dismissed Harvey’s
(P) claim. The Supreme Court of Jamaica reversed and Facey (D) appeals.
ISSUE
Is a response to a request for a lowest price binding, an offer to contract?

(Morris) No. Harvey’s (P) initial telegram posed two distinct questions: 1) will
you sell this property? and 2) what is your lowest price? Facey (D) only answered
the second question. This is not tantamount to an offer to sell Harvey (P) the
property at this price. In fact, Facey’s (D) telegram requires a response from
Harvey (P), telling him whether he will pay £900 for the property. At that point,
Facey (D) is free to accept or reject Harvey’s (P) offer to buy at that price.
Analysis:
Consider the consequences if this case had come out against Facey (D), the
landowner. By simply asking what the sale price was, a potential purchaser could
obligate a landowner to sell the property. Looking at it this way, the court’s
decision is perfectly understandable. Also note that in offer and acceptance cases,
it is always important to analyze the communications between the parties in strict
chronological order. At every point, you should ask, “is this an offer?” As this case
demonstrates, there can be no contract without a valid acceptance following a valid
offer.
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Fairmount Glass Works v. Grunden [Crunden]-Martin Woodenware

Co.
(Jar Manufacturer) v. (Prospective Buyer)
106 Ky. 659, 51 S.W. 196 (1899)
KENTUCKY COURT OF APPEALS ENFORCES A CONTRACT BASED ON A

DETAILED PRICE QUOTE
95
INSTANT FACTS Letters are exchanged between a mason jar manufacturer and
a prospective buyer.
BLACK LETTER RULE A price quote may give rise to an enforceable

contract, depending upon its language.
PROCEDURAL BASIS
Appeal from a trial court judgment in favor of the plaintiff in a breach of contract
action.
FACTS
A number of letters were exchanged between Crunden-Martin Woodenware Co.
(Crunden) (P) and Fairmount Glass Works (Fairmount) (D). Crunden (P) was
interested in buying mason jars from Fairmount (D), the manufacturer. They sent
Fairmount (D) a letter asking them to quote a price for an order of ten car loads of
mason jars. Fairmount (D) responded with price quotes, by jar size, which would
be good for immediate acceptance on any shipment before May 15th, 1895.
Crunden (P) sent a telegram on April 24th, before the deadline, requesting ten car
loads at the quoted prices. They also sent a telegram detailing the specifications for
their order, including the number of jars they desired in each size and a request that
the jars be “strictly first-quality goods.” When Fairmount (D) replied, before they
received the specifications, they told Crunden (P) that they could not fill the order
because they had sold all of their stock [due to the current mason jar boom].
Crunden (P) then sued for breach of contract. They claimed that their April 24th
telegram closed the contract between Crunden (P) and Fairmount (D). Fairmount
(D) claimed that the contract had not closed because they had the right to decline
the order at any time. The trial court found for Crunden (P). Fairmount (D) appeals.
ISSUE
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Can a price quote be the basis for an enforceable contract?

(Hobson) Yes. Ordinarily, a contract does not close until the seller responds
affirmatively to an order from a buyer. This order must conform to the terms which
the seller has set for the buyer. However, the cases which support this view rely on
the language used by the parties in order to determine their intent. In this case, the
letters between Crunden (P) and Fairmount (D) gave rise to an enforceable contract
as soon as Crunden (P) accepted the terms set forth in Fairmount’s initial reply (D).
This is because Crunden’s (P) first letter made it clear that they were interested in
an actual price at which they could place their order. Fairmount (D) not only gave
them the price quotes, but told them that the prices were available for immediate
acceptance. As a result, they opened themselves up to a contract which could be
sealed by Crunden’s (P) acceptance. Fairmount (D) claims that Crunden’s (P)
letters fail to conform to
72
their stated terms because the language “strictly first-quality goods” was never
agreed to, and the language, “ten car loads” was too indefinite to constitute a viable
order. Both of these terms, however, have a commonly accepted trade meaning
which did not alter the terms of the offer, or subject them to any confusion.
Judgment affirmed.
Analysis:
Justice Hobson follows the trail of correspondence chronologically and with close
attention to the language of each letter. Note that this case comes out differently than
the earlier cases, because of the language of the letters and their precise sequence.
Crunden (P) made it clear that they were interested in buying mason jars from
Fairmount (D). Fairmount (D) not only stated a price, but said that it was available
for immediate acceptance and laid out a number of other detailed terms. In the
earlier cases, the sellers did not commit themselves with as much specificity as
Fairmount (D) did in this case. It is also worth noting that justice Hobson
Interpreted the correspondence with the assumption that Fairmount (D) is
conversant in the language commonly associated with the trade, which is a rule of
interpretation that is generally applied in commercial transactions.
CASE VOCABULARY
TRADE USAGE: The customary vernacular associated with a particular business.
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97
(Prospective Buyer) v. (Fur Seller)
251 Minn. 188, 86 N.W.2d 689 (1957)
MINNESOTA SUPREME COURT BINDS STORE TO AN ADVERTISED,

FIRST-COME FIRST-SERVED PRICE
INSTANT FACTS A store refuses to sell a fur coat to a male buyer for the
advertised price of $1.
BLACK LETTER RULE An advertisement which is definite, explicit, and

which leaves nothing open to negotiation creates a binding contract upon the
acceptance of a prospective purchaser.
PROCEDURAL BASIS
Appeal from a trial court judgement for the plaintiff in a breach of contract action.
FACTS
The Great Minneapolis Surplus Store (the Store) (D) published a newspaper
advertisement in which they offered a single black lapin stole for sale at a price of
$1 [the stole was a steal]. The stole would go on sale Saturday morning on a first
come, first served basis. Lefkowitz (P) was the first in line on Saturday morning but
the Store (D) refused to sell him the fur. They told him that they had a “house rule”
that the offer was intended for women only. Lefkowitz (P) sued for breach of
contract and sought damages for the full value of the stole, minus $1. The trial court
held for Lefkowitz (P) and the Store (D) appeals. They rely on the general rule that
advertisements are not offers to enter into a contract. They also claim that any offer
which they made was modified by the Store’s (D) house rule on selling only to
women.
98
ISSUE
Can an advertisement create an enforceable contract to sell a particular good at the
advertised price?
(Murphy) Yes. The Store (D) correctly states the general rule that advertisements
are merely offers to negotiate for the sale of an item at the advertised price.
However, when an offer is clear, definite and explicit, and leaves nothing open to
negotiation, then the advertiser can be bound by the acceptance of a prospective
purchaser. In this case, the Store’s (D) advertisement fits this description. Nor can
they use their house rule to escape liability. They cannot modify the advertised offer
after it has already been accepted. Judgement affirmed.
Analysis:
Justice Murphy believed that the “First Come-First Served” language was definite
and explicit enough to create a valid, binding offer. Recall that an offer is valid
only if the offeree is justified in thinking that he has the power to bind the offeror to
a legally enforceable agreement. An open-ended offer, like those in most
advertisements, does not justify this belief because the store might sell out of the
advertised product before the buyer gets there. However, in this case, the Store (D)
identified the first person there as the person who could accept. Lefkowitz (P)
74
was justified in thinking that the Store (D) must sell him the fur coat if he was the
first in line The Store’s (D) secret condition that it would sell only to women is
indeed invalid.
CASE VOCABULARY
CONDITION: A circumstance which must be satisfied before a contract, or a term
within it, will become binding.
75

(Filter Manufacturer) v. (Ice Manufacturer)
277 S.W. 631 (Tex. Com. App. 1925).
TEXAS APPEALS COURT AFFIRMS OFFEROR’S RIGHT TO CONTROL THE

METHOD OF ACCEPTANCE
99
INSTANT FACTS A water filter manufacturer refuses to cancel an ice
company’s order for a filter.
BLACK LETTER RULE The offeror controls the method and means of
acceptance by the language of the offer.
PROCEDURAL BASIS
Appeal from an affirmance of a trial court judgement for the defendant in a breach
of contract action.
FACTS
On February 10, 1920, the International Filter Co. (IFC) (P) made a written offer to
sell a water filter to the Conroe Gin, Ice & Light Co. (Conroe) (D). The offer was
subject to certain conditions including a set price. The offer also stated that it
would become a contract upon acceptance by Conroe (D) and approval by IFC’s
(P) executive officer in Chicago. Finally, the offer stated that It was “submitted for
prompt acceptance.” Conroe (D) accepted the offer the same day, in writing,
including a request for delivery by March 10th. This acceptance was approved by
IFC’s (P) president and vice-president [the same person] in Chicago. He wrote,
“O.K.” on Conroe’s (D) order and dated it. IFC (P) then sent an acknowledgment of
the order to Conroe (D) by mail, on February 14th. Conroe (D) subsequently sent
two letters to IFC (P) in an attempt to cancel the order. IFC (P) responded to the
first letter, refusing to do so. They then sued Conroe (D) for breach of contract. The
trial court found for Conroe (D). The Court of Civil Appeals affirmed and, as a
result, IFC (P) appeals.
ISSUE
Can the offeror control the method of acceptance with the language of the offer?
100
(Nickels) Yes. For instance, the offeror can dispense with the obligation to notify
the offeree that their acceptance has been approved. Whether this has been done can
be determined by the language of the offer. Conroe (D) argues that no contract was
created with IFC (P) for two reasons. First, they claim that their order was not
approved by IFC’s (P) executive officer in Chicago. They argue that the president’s
“O.K.” and the resulting acknowledgment letter do not constitute the required
approval. Alternately, Conroe (D) claims that IFC (P) took too long to notify them
that the order had been approved. They claim that a prompt response was required
by the terms of the offer and by a verbal agreement made between their respective
agents when the written order was placed. However, the offer explicitly states that
a contract will be formed when Conroe (D) accepts the offer and when IFC’s (P)
executive officer approves the acceptance. The offer would contradict itself if the
phrase “[t]his proposal is submitted for prompt acceptance” was interpreted as a
requirement for notification to Conroe (D) after IFC’s
76
(P) acceptance. This phrase simply puts the offeree on notice that IFC’s (P)
approval will follow promptly after Conroe’s (D) acceptance. It is not a further
requirement to the formation of a valid contract. As a result, a valid contract was
formed when Conroe (D) accepted the offer and IFC (P) approved. However, even
if notice were required, then IFC’s (P) acknowledgment letter was sufficient. There
are no requirements governing notification unless the parties agree to them. In this
case, that was not done. The contract is valid. Reversed and remanded.
Analysis:
The offeror can dictate the terms of the offer, the method and means of acceptance,
and the method and means of notification. Most cases deal with the method of
acceptance. There is no legal requirement that the offeror follow up with
notification that this acceptance has been approved. However, as the case indicates,
this requirement could have been written into the offer at IFC’s (P) discretion. At
times, it is possible for courts to resolve a contract dispute by relying solely on the
language of the contract. This is generally referred to as staying within the “four
corners” of the contract. However, it is not unusual for courts to arrive at different
legal conclusions while analyzing and re-analyzing the same contract language.
77

(Builder) v. (Prospective Client)
46 N.Y. 467 (1871)
101
NEW YORK COURT OF APPEALS REQUIRES ONLY A REASONABLE
MEANS OF ACCEPTANCE OF AN OFFER ABSENT SPECIFICATION OF
MANNER OF ACCEPTANCE BY THE OFFEROR
INSTANT FACTS A builder accepts a construction contract by beginning to

purchase lumber for the job.
BLACK LETTER RULE In the absence of express provisions in the offer, an

acceptance must be by reasonable means given the circumstances surrounding the
offer.
PROCEDURAL BASIS
Appeal from an affirmance of the trial court’s judgement for the plaintiff in a breach
of contract action.
FACTS
Corlies & Tift (D) (Corlies) asked White (P), a builder, for an estimate on
renovating a suite of offices for them. White (P) gave them an estimate, which he
later signed and returned to Corlies (D) after approving some changes in their
specifications. Corlies (D) sent White (P) a note telling him to start the job and
giving him two weeks to finish it. White (P) never responded to this note. The next
day, it was countermanded by a second note from Corlies (D) canceling White’s (P)
participation in the job. White (P) had already begun work, however, buying
lumber for the job. When White (P) received the cancellation letter he sued Corlies
(D) for breach of contract. The trial court instructed the jury that, in the judge’s
opinion, White (P) was not obligated to make a formal acceptance of Corlies’ (D)
first note in order for there to be an enforceable contract between them. According
to the trial judge, the contract became binding as soon as White (P) began working
on the job. The jury found for White (D). The intermediate appellate court affirmed
102
and, as a result, Corlies (D) appeals.
ISSUE
Is performance a sufficient means of acceptance if the offer is not specific on the
issue?

(Folger) That depends. After an offer is made, the offeree can only accept by some
affirmative act. This act need not be immediately communicated to the offeror. It
must, however, be a proper response, given the usual course of events, and be
communicated to the offeror within a reasonable amount of time. For instance, an
offer which is made by mail becomes binding when an acceptance is mailed, even
though the offeror will not learn of the acceptance until it is received [the mailbox
rule]. The importance lies in an affirmative act which is recognizable as an
acceptance of the offer. As a result, an offeree’s subjective desire to accept an offer
will not be binding. In this case, White (P) received a communication from Corlies
(D) which was an offer. This offer took the form of an acceptance of his bid and a
request that the work start immediately and be completed within two weeks. White
(P) had to accept this offer in order to create a binding contract. Indeed, he did
accept the offer in his mind [perhaps the voices in his
78
head weren’t speaking loud enough for anyone else to hear]. He also began working
on the job. However, Corlies (D) could not distinguish White’s (P) preparations for
their job from any other job for which he might be getting ready. As a result, his
acceptance was never communicated to them and they had a right to cancel the
offer. In contrast, the trial court instructed the jury that White (P) had accepted
Corlies’ (D) offer by starting work on the job. This instruction misled the jury and
constitutes error. Reversed and remanded for a new trial.
Analysis:
The old rule was that acceptance had to be made by the same method as the offer.
For instance, an offer made by mail could not be accepted by telegram. The
impracticality of this rule gave rise to the new rule, which is that, unless otherwise
specified, acceptance must be made by a reasonable means. Justice Folger hints at
this approach when he writes that an acceptance must be by a proper means, given
the circumstances, and communicated within a reasonable time. The circumstances
will determine the reasonableness of the method. Remember, however, that the
offeror can restrict the means of acceptance in the terms of the offer. If the offeror
states that acceptance will only be valid if received by carrier pigeon, then that is
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the only permissible means of acceptance.
CASE VOCABULARY
THE MAILBOX RULE: A rule which makes the acceptance of an offer effective as
soon as it is placed in the mail.
79

(Roofer) v. (Prospective Client)
83 So.2d 449 (La.App. 1955)
LOUISIANA COURT OF APPEALS ENFORCES A REASONABLE RESPONSE

TIME FOR AN OTHERWISE UNSPECIFIED OFFER
INSTANT FACTS A roofing company arrives to start a job only to discover that
their prospective client has hired someone else.
BLACK LETTER RULE In the absence of specific language in an offer, the

offeror must allow a reasonable amount of time for acceptance.
PROCEDURAL BASIS
FACTS
The Greens (D) wanted the Ever-Tite Roofing Corporation (Ever-Tite) (P) to do
some work on their house. They signed a document which detailed the work
desired and the price to be paid. An agent from Ever-Tite (P) also signed the
document, even though he had no authority to bind them to a contract. In fact, the
document contained a provision which stated that it became binding only upon
104
acceptance by an authorized agent of Ever-Tite (P) or upon commencement of the
work requested. The Greens (D) knew that the work could not start until a lender
approved their credit. This approval came nine days later. When Ever-Tite (P)
arrived to start the job, however, there was another company there which had
already been working for two days. Ever-Tite (D) was not permitted to do any
work, and, as a result, they sued the Greens (D) for breach of contract. The trial
court found for the Greens (D). Ever-Tite (P) appeals.
ISSUE
In the absence of specific provisions in an offer, must the offeror provide a
reasonable amount of time for acceptance?

(Ayres) Yes. An offeree has a reasonable amount of time to accept if the offer does
not specify a time by which it must be accepted. A reasonable amount of time can
be inferred from the circumstances surrounding the offer and the intent of the
parties. In this case, the trial court found that the Greens (D) had given Ever-Tite
(P) sufficient notice that they no longer wanted them to work on the house.
However, this notice did not come until Ever-Tite (P) was actually at the house.
This is not a reasonable amount of time based on the language of the contract and
the knowledge of the parties. The contract stated that it would become binding upon
acceptance by Ever-Tite’s (P) authorized agent or by commencement of the work
requested. In this case, the work began when Ever-Tite (P) loaded its trucks before
driving to the job site. In addition, the Greens (D) knew that it might take some time
for financing to come through. Given that this did not take an unreasonably long
time, the contract became binding when Ever-Tite (P) commenced performance.
80
Analysis:
In this case, the contract specifically provided that performance by Ever-Tite

would bind both parties. As a result, the Greens (D) were on notice that Ever-Tite’s
(P) acceptance might be unknown to them until the workers actually arrived. As in
White v. Corlies & Tift, Justice Ayres considers the amount of time it took for Ever-
Tite (P) to notify the Greens (D) of its acceptance. In this case, he found that the
amount of time was reasonable given the circumstances. Consider also that in
White v. Corlies & Tift, the unspecified contract term was the means of acceptance.
In this case, the unspecified term was the time allotted for acceptance. In both
cases, the courts fill in the blanks by looking at the language of the contracts and the
105
relationship of the parties. The yardstick for implied terms is, as always, a
reasonableness standard.
81

(Machinery Provider) v. (Auto Manufacturer)
277 F.2d 907 (6th Cir. 1960)
CIRCUIT COURT OF APPEALS ENFORCES PERFORMANCE AS AN

ALTERNATIVE MEANS OF ACCEPTING AN OFFER EVEN THOUGH THE
OFFER SUGGESTS OTHER MEANS
INSTANT FACTS Ford sought to hold Allied to an indemnification agreement

when an Allied employee was injured at the Ford plant.
BLACK LETTER RULE An offer which suggests a means of acceptance may

become binding by performance by the offeree.
PROCEDURAL BASIS
Appeal from a trial court judgement against an impleader defendant requiring
indemnification of the original defendant in a negligence action.
FACTS
The Ford Motor Co. (Ford) (3dP) [third party plaintiff—see vocabulary] ordered
machinery from Allied Steel and Conveyors, Inc. (Allied) (3dD) [third party
defendant—see vocabulary]. Ford (3dP) placed the order with their own purchase
order as well as another attached form. Both of these forms Included indemnity
provisions which made Allied (3dD) responsible for the negligence of their
employees while installing Allied (3dD) equipment on Ford (3dP) premises. In
106
addition, the attached form made Allied (3dD) responsible for the negligence of
Ford (3dP) employees in connection with Allied’s (3dD) work. This provision was
marked “VOID.” Allied (3dD) accepted the equipment order and the work was
performed. Subsequently, Ford (3dP) submitted an amendment to the original
purchase order, requesting additional machinery. The amendment stated that it was
not binding until it was accepted. It also stated that acceptance should be executed
on the acknowledgment copy and then returned to Ford (3dP). Finally, there was
another attached form, like the one attached to the original purchase order.
However, on this copy, the extended Indemnification provision was not marked
“VOID.” Allied (3dD) began Installation on the amended purchase order just over
a month later. They did not execute and return the acknowledgment copy of the
order until two months after that. During this time, between the beginning of the
work and the return of their formal acceptance, an Allied (3dD) employee was
injured as the result of a Ford (3dP) employee’s negligence. The employee sued
Ford (3dP) and Ford (3dP) subsequently Impleaded Allied (3dD) on the strength of
their indemnification agreement. The trial court ruled in favor of the injured
employee, and in favor of Ford (3dP) with regard to their indemnification claim
against Allied (3dD). Allied (3dD) appeals.
ISSUE
Does an offer which specifies a particular means of acceptance preclude other
possible methods of acceptance?
82

(Miller) No. Allied (3dD) argues that they were not bound by the indemnification
agreement at the time of the injury because they had not yet executed and returned
the acknowledgment copy of the amended purchase order. In support of this
argument, they claim that this was the only method of acceptance which was
approved by the amendment. This is not entirely correct. It is true that the offeror
controls the means of acceptance through the language of his offer. In addition, it is
true that the offeror, within this control, can prescribe a specific and exclusive
means of acceptance which cannot be circumvented by the offeree. However, if the
offeror merely suggests a means of acceptance, other methods of acceptance are not
precluded. More particularly, the offeror may request a promise in return for the
offer. Under these circumstances, the offeree may either make the return promise or
begin performance on whatever the return promise entailed. A binding contract
results if the offeree begins or completes performance during the period allotted for
the return promise. In this case, the purchase order amendment merely suggested a
means of accepting the order. This was for Allied’s protection. It was a way of
107
insuring that Allied (3dD) fully acknowledged their responsibilities before they
began working since the extended indemnification provision itself was clearly for
Ford’s (3dP) protection. Allied (3dD) chose to begin the installation of the
additional machinery before they returned the acknowledgment form. They did so
with Ford’s (3dP) acquiescence. Since Allied (3dD) was acting in accordance with
the terms of the equipment order, they cannot now claim that their subjective intent
was otherwise. Curiously, Allied (3dD) argues that despite the commencement of
performance, Ford (3dP) could have canceled their order with no recourse left to
Allied (3dD). This is also incorrect. Ford (3dP) would be estopped from claiming
that there was no contract if they had acquiesced in the face of Allied’s (3dD)
performance and accepted its benefit. Looking at the relationship of the parties from
both of their perspectives only serves to compel the conclusion that a binding
contract existed between Ford (3dP) and Allied (3dD). Judgement affirmed.
Analysis:
Judge Miller relied on the first Restatement of Contracts in his enunciation of the
law regarding performance as acceptance. His interpretation is still valid
according to Restatement (Second) of Contracts § 62. More importantly, his opinion
introduces the two most basic forms of acceptance: promise and performance. An
offeror can specify that acceptance come in the form of a return promise or in the
form of performance. The first exchange, a promise made in return for another
promise, gives rise to a bilateral contract. The second exchange, a promise made in
return for performance, gives rise to a unilateral contract. The reasons why an
offeror might prefer one type of contract over another vary from business to
business. Frequently, courts will blur the lines between bilateral and unilateral
contacts in order to avoid unfairness to a party. In this case, for instance, the court
permits what appears to be an ongoing business relationship to obliterate a fairly
clear acceptance requirement in the amended purchase order.
CASE VOCABULARY
ESTOPPEL: A doctrine which precludes a party from asserting a particular claim
or right due to some prior, disqualifying act on their part.
IMPLEAD: A measure under Federal Rule of Civil Procedure 14 by which a third
party can be brought into a civil action because, among other possibilities, they are
liable to the defendant for part or all of the damages which the defendant may be
required to pay the plaintiff.
INDEMNIFICATION: A defendant in a civil action is entitled to seek
compensation from a third party who is responsible to them for any damages the
defendant is required to pay. A claim for Indemnification can be predicated, as in
this case, on a prior agreement between the defendant and the third party.
108
THIRD PARTY DEFENDANT: A third party who is successfully brought into a
civil action by impleader is deemed a third party defendant with respect to the
original defendant.
83
THIRD PARTY PLAINTIFF: A defendant in a civil action who successfully

impleads a third party will be deemed a third party plaintiff with respect to the
impleaded party.
85

(Drug Distributor) v. (Drug Manufacturer)
724 F.Supp. 605 (S.D. Ind. 1989)
SHIPPING NON-CONFORMING GOODS MAY BE AN ACCOMMODATION,

NOT COUNTER-OFFER
INSTANT FACTS A drug distributor sought to force a drug manufacturer to sell

it a vaccine at a certain price.
BLACK LETTER RULE If a seller ships to the buyer non-conforming goods

and gives notice that the shipment is an accommodation, the seller is not in breach
of contract and is not obligated to deliver goods that conform to the buyer’s order.
PROCEDURAL BASIS
Motion for summary judgment in breach of contract action seeking specific
performance.
FACTS
109
Lederle Laboratories (“Lederle”) (D) manufactures the DTP vaccine. Corinthian
Pharmaceutical Systems, Inc. (“Corinthian”) (P) is a drug distributor that purchases
the vaccine from manufacturers and resells it to physicians and other providers.
Lederle (D) periodically sent a price list to its customers stating that the prices
shown were in effect at the time of publication but were subject to change without
notice. The price list also stated that changes in price take immediate effect and are
applied to unfilled orders. In 1985 and 1986, Corinthian (P) purchased often from
Lederle (D); the largest purchase was for 100 vials. In early 1986, product liability
lawsuits concerning DTP increased and insurance became difficult to procure.
Lederle (D) decided to self-insure and substantially increase the cost of DTP to
cover the cost of self-insurance. To communicate the price change to its sales
people, Lederle (D) prepared “Price Letter No. E-48.” The price letter was dated
May 19, 1986 and stated that effective May 20, 1986 the price of DTP would be
raised from $51 to $171 per vial. Corinthian (P) did not know of this internal price
letter until several weeks after May 20, 1986. Lederle (D) wrote a letter dated May
20, 1986 to its customers announcing the price increase. Corinthian (P) somehow
became aware of the letter on May 19, 1986, the day before the price increase was
to take effect. On May 19, Corinthian (P) ordered 1000 vials of DTP from Lederle
(P) through Lederle’s (P) telephone computer ordering system, “Telgo,” and
received a tracking number. Also on May 19, Corinthian (P) sent Lederle (D) two
written confirmations of its order stating that the order is to “receive the $64.32 per
vial price.” On June 3, 1986. Lederle (D) sent an invoice to Corinthian (P) for 50
vials of DTP vaccine at $64.32 per vial. Lederle (D) sent the 50 vials to Corinthian
(P) and Corinthian (P) accepted them. At the same time, Lederle (D) sent a letter to
Corinthian (P) stating that the enclosed is a partial shipment of DTP and that
Lederle’s (D) normal policy would be to invoice the order at the price in effect
when the shipment was made. However, because of the magnitude of the price
increase, Lederle (D) decided to ship a portion at the lower price. The letter stated
that the balance of the order would be priced at $171 per vial. The letter concluded
that if Corinthian (P) wished to cancel the balance of the order it should contact
Lederle (D) on or before June 13. Corinthian (P) sued Lederle (D) for specific
performance for the 950 vials of DTP that Lederle (D) did not deliver. Lederle (D)
moved for summary judgment arguing that no contract for the sale of 1000 vials was
formed. In the alternative, Lederle (D) argued that if a contract was formed, it was
86
governed by Lederle’s (D) terms and conditions, and that it sent Corinthian the 50
vials as an accommodation.
ISSUE
110
If a seller ships non-conforming goods to the buyer, is the seller obligated to
deliver goods that conform to the buyer’s order?

(McKinney, J.) No, not if the seller sends notice to the buyer that the shipment is an
accommodation. This action involves a sale of goods by merchants and is governed
by the Uniform Commercial Code [model approach to commercial law which has
been adopted, in whole or in part, by every state]. The first step here is to
determine where the first offer originated. An offer is the manifestation of
willingness to enter into a bargain, so made as to justify another person in
understanding that his assent to that bargain is invited and will conclude it.
Lederle’s (D) price lists were not offers. Quotations are merely Invitations to make
an offer. Lederle’s (D) internal price memorandum and its May 20 letter to
customers were not offers to sell the 1000 vials at the lower price. The letter was a
mere quotation, and there is no evidence that Lederle (D) intended Corinthian (P) to
receive the internal price memorandum. As a matter of law, Corinthian’s (P) May
19 order for 1000 vials at $64.32 was the first offer. The next question is whether
Lederle (D) accepted the offer. Lederle (D) did not communicate with Corinthian
(P) before shipping the 50 vials. When Corinthian (P) placed its order, it merely
received a tracking number from Telgo. An automated, ministerial act like that does
not constitute an acceptance. Thus, Lederle (D) did not accept Corinthian’s (P)
offer before shipping the 50 vials. Under UCC § 2–206(1)(b), a seller accepts the
offer by shipping goods, whether they are conforming or not, but if the seller ships
non-conforming goods and seasonably notifies the buyer that the shipment is a mere
accommodation, then the seller has not accepted the buyer’s offer. Lederle’s (D)
shipment to Corinthian (P) was non-conforming because it was only 1/20 of the
quantity Corinthian (P) requested. An accommodation is an arrangement or
engagement made as a favor to another. Consideration is not required. Lederle’s
(D) shipment of 50 vials was an accommodation because Lederle (D) had no
obligation to make the partial shipment and did so only as a favor to Corinthian (P).
Lederle (D) clearly informed Corinthian (P) that the 50 vials were being sent as an
exception to Lederle’s (D) general policy, that the balance of the offer would be at
the higher price, and that Corinthian (P) could cancel the rest of the order.
Therefore UCC § 2–206(1)(b) was satisfied. Where the notification is properly
made, the shipment of nonconforming goods is treated as a counter-offer, and the
buyer may accept or reject the counter-offer. Thus, there is no genuine issue of
material fact, and summary judgment is granted to Lederle (D).
Analysis:
UCC has made to the common law of offer and acceptance. UCC § 2–206(1)(b)
111
provides that “an order or other offer to buy goods for prompt or current shipment
shall be construed as inviting acceptance either by a prompt promise to ship or by
the prompt or current shipment of conforming or non-conforming goods, but such a
shipment of non-conforming goods does not constitute an acceptance if the seller
seasonably notifies the buyer that the shipment is offered only as an accommodation
to the buyer.” Thus, under the UCC, even if the seller sends non-conforming goods,
there is a contract. The non-conforming shipment is an acceptance of the offer and a
breach. However, if the seller “seasonably notifies the buyer that the shipment is
offered only as an accommodation to the buyer,” there is no contract and the
shipment is treated as a counter-offer. Here, Lederle (D) sent non-conforming
goods and notified Corinthian (P) that the shipment was an accommodation in light
of the magnitude of the price increase. Had Lederle (D) not sent that notice,
Corinthian (P) likely would have won the case.
CASE VOCABULARY
SELF-INSURANCE: The assumption of the risk of one’s own loss by one having
an insurable interest. However, in reality, a self-insurer does not provide any
insurance. That a company is
87
“self-insured” merely shows that it has the financial ability to satisfy a judgment
against it within statutory liability minimums.
89
Dickinson v. Dodds
(Offeree) v. (Offeror)
2 Ch. Div. 463 (1876)
DON’T WAIT UNTIL THE LAST MINUTE TO ACCEPT AN OFFER
112
INSTANT FACTS An offeror gave an offeree until Friday to accept an offer to
sell property, but sold the property to someone else on Thursday.
BLACK LETTER RULE Without separate consideration, an offeror may

revoke an offer any time before the offeree’s deadline to accept the offer.
PROCEDURAL BASIS
Appeal of Vice Chancellor’s decision granting specific performance in breach of
contract action.
FACTS
On June 10, 1874, Dodds (D) delivered a memo to Dickinson (P) stating that
Dodds (D) would sell certain real estate to Dickinson for £800. In a postscript, the
memo stated that the offer would be open until Friday, June 12, 1874 at 9:00 a.m.
Dickinson (P) alleged that he decided to accept the offer on the morning of June 11,
but did not communicate this to Dodds (D) because he believed he had the power to
accept until 9:00 a.m. the next day. In the afternoon of June 11, Dickinson (P) was
informed that Dodds (D) had been negotiating with Allan (D) to sell the property.
At about 7:30 that evening, Dickinson (P) went to Dodds’ (D) mother-in-law’s
house, where Dodds (D) was staying, and left her a written acceptance of the offer.
The mother-in-law forgot to give the note to Dodds (D). On Friday morning at 7:00,
Dickinson’s (P) agent found Dodds (D) and gave him a duplicate of Dickinson’s (P)
written acceptance. Dodds (D) replied that he had already sold the property. Soon
thereafter, Dickinson (P) found Dodds (D) and handed him another duplicate of the
acceptance [enough already!]. Dodds (D) told Dickinson (P) that it was too late,
that he already sold the property. Dodds (D) had sold the property to Allan (D) on
June 11 for £800. Dickinson (P) sued for specific performance of the sale of the
property and for damages. The Vice Chancellor held for Dickinson (P).
ISSUE
If an offeror states that an offer will be open for a certain period of time, may the
offeror accept another offer within that period?

(James, L J.) Yes, if no consideration is paid to keep the offer open. Dodds’ (D)
memo was only an offer, not a contract. Dickinson (P) did not give Dodds (D) any
consideration to keep the property unsold until June 12. Therefore, the promise to
keep the offer open until June 12 was not binding on Dodds (D). Furthermore,
before Dickinson (P) accepted the offer, he learned that Dodds (D) had changed his
mind about selling to Dickinson (P) and was going to sell the property to Allan (D).
113
Therefore, there was never a point in time where there was a meeting of Dodds’
(D) and Dickinson’s (P) minds. Thus, there was no binding contract between Dodds
(D) and Dickinson (P). Reversed.
90
CONCURRENCE
(Mellish, L J.) I am of the same opinion. Dodds’ (D) offer to keep the offer open
was not binding. Even if Allan (D) knew about Dodds’ (D) offer to Dickinson (P),
Allan (D) was not prevented from making a more favorable offer and entering into
an agreement with Dodds (D). Moreover, it would be absurd to allow an offeree to
accept an offer after learning that the offeror already sold the property to someone
else.
Analysis:
An offeror’s promise to keep an offer open is called an “option.” One way to create
an enforceable option is by giving consideration. Here, Dodds (D) terminated
Dickinson’s (P) ability to accept the offer to buy the property by revoking the offer.
Revocation is the manifestation of an intent not to enter into a proposed offer,
Dodds (D) manifested his intent not to enter into a contract with Dickinson (P) by
entering into an agreement with Allan (D). Dodds (D) revoked the offer indirectly.
He did not communicate the revocation directly to Dickinson (P), but the offer was
deemed revoked when Dickinson (P) received reliable information that Dodds (D)
had sold the property to Allan (D). This rule is set forth in Restatement (Second) §
43. Case law holds that to be reliable, information must be true and come from a
reliable source. The offeree may ignore the information. If the source is reliable,
the offeree has a duty to reasonably inquire about the accuracy of the information.
Here, Dickinson (P) heard that Allan (D) had accepted Dodds’ (D) offer. Dickinson
(P) should have thus concluded that Dodds (D) revoked the offer to Dickinson (P).
If Dickinson (P) had heard only that Dodds (D) made an offer to Allan (D).
Dickinson (P) could reasonably have reached two different conclusions. He could
have concluded that Dodds (D) would not want to make two offers to sell the same
property and, therefore, intended to revoke the offer to Dickinson (P). He could
also conclude that Dodds (D) was willing to run the risk of making two offers, and
that the offer to Dickinson (P) remained open. According to Corbin, a leading
contracts law scholar, the second conclusion is preferable.
CASE VOCABULARY
NUDUM PACTUM: A contract made without a consideration; it is called a nude or
naked contract because it is not clothed with the consideration required by law in
114
order to give an action.
91

(Contractor) v. (Subcontractor)
51 Cal. 2d 409, 333 P.2d 757 (1958)
PROMISES THAT REASONABLY INDUCE RELIANCE ARE IRREVOCABLE
INSTANT FACTS Drennan (P) prepared a bid for a construction job, relying on
a subcontracting bid submitted by Star Paving (D), but Star Paving (D) claimed its
bid was revoked.
BLACK LETTER RULE A promise that the promisor should reasonably

expect to induce action or forbearance of a definite and substantial character and
that does induce such action or forbearance is binding if injustice can be avoided
only by enforcement of the promise.
PROCEDURAL BASIS
State supreme court review of a trial court judgment in the plaintiff’s favor.
FACTS
On July 28, 1955, Drennan (P), a licensed general contractor, was preparing a bid
on a school job. Bids had to be submitted before 8:00 p.m., and it was customary in
that area for general contractors to receive the bids of subcontractors by telephone
on the day set for bidding and to rely on them in computing their own bids. A
contractor’s bid had to include the names of subcontractors who were to perform
one-half of one percent or more of the construction work. Late in the afternoon of
July 28, Johnson, Drennan’s (P) secretary, had a telephone conversation with an
estimator for Star Paving (D). The estimator stated that he was bidding on behalf of
115
Star Paving (D) for the paving work and that his bid was $7,131.60. Star Paving’s
(D) bid was the lowest bid for the paving. Drennan (P) computed his own bid
accordingly and submitted it with Star Paving (D) listed as the subcontractor for the
paving. When the bids were opened, Drennan’s (P) bid was the lowest, and he was
awarded the contract. The next morning, Drennan (P) stopped at Star Paving’s (D)
office. Star Paving’s (D) construction engineer, Oppenheimer, immediately told
Drennan (P) that Star Paving (D) had made a mistake in its bid, and that they could
not do the job for the price they had bid. Drennan (P) told Oppenheimer that
Drennan (P) expected Star Paving (D) to carry through with the original bid
because he had used it in compiling his bid. Star Paving (D) refused to do the
paving work for less than $15,000. Drennan (P) ultimately engaged another
subcontractor to do the work for $10,948.60.
Star Paving (D) claimed that there was no enforceable contract because they made
a revocable offer and revoked it before Drennan (P) communicated his acceptance.
The trial court found on substantial evidence that Star Paving (D) made a definite
offer to do the work for $7,131.60. The trial court also found that Drennan (P)
relied on Star Paving’s (D) bid in computing his own bid and naming Star Paving
(D) as the subcontractor for the paving work. Accordingly, the court entered
judgment for Drennan (P) in the amount of $3,817 plus costs.
ISSUE
Did Star Paving (D) make an irrevocable offer?
92

(Traynor, J.) Yes. A promise that the promisor should reasonably expect to induce
action or forbearance of a definite and substantial character and that does induce
such action or forbearance is binding if injustice can be avoided only by
enforcement of the promise. Star Paving’s (D) offer constituted a promise to
perform on such conditions as were stated expressly or by implication therein or
annexed thereto by operation of law. Star Paving (D) had reason to expect that if its
bid proved the lowest it would be used by Drennan (P). The bid induced action of a
definite and substantial character on the part of Drennan (P). It bears noting that a
general contractor is not free to delay acceptance after he has been awarded the
general contract in the hope of getting a better price, nor can he reopen bargaining
with the subcontractor and at the same time claim a continuing right to accept the
original offer.
Star Paving’s (D) bid was silent on revocation. The court must therefore determine
whether there are conditions to the right of revocation imposed by law or
116
reasonably inferable in fact. In the analogous problem of an offer for a unilateral
contract, the theory is now obsolete that the offer is revocable at any time before
complete performance. The main offer includes as a subsidiary promise,
necessarily implied, that if part of the requested performance is given, the offer
will not be revoked. Reasonable reliance resulting in a foreseeable prejudicial
change in position also affords a compelling basis for implying a subsidiary
promise not to revoke an offer for a bilateral contract. The absence of
consideration is not fatal to the enforcement of such a promise. Reasonable reliance
serves to bind the offeror.
Star Paving (D) contends that its bid was the result of mistake and that it was
therefore entitled to revoke it. The cases relied upon by Star Paving (D) are
distinguishable, in that the bidder’s mistake was known or should have been to the
offeree, and the offeree could be placed in status quo. Drennan (P) had no reason to
know that Star Paving (D) had made a mistake in submitting its bid, since there was
usually a variance of 160% between the highest and lowest bids for paving in the
desert around Lancaster. Drennan (P) committed himself to performing the main
contract in reliance on Star Paving’s (D) figures. Even had it been clearly
understood that Star Paving’s (D) offer was revocable until accepted, it would not
necessarily follow that Star Paving (D) had no duty to exercise reasonable care in
preparing its bid. It presented its bid with knowledge of the substantial possibility
that it would be used by Drennan (P), and it could foresee the harm that would
ensue from an erroneous underestimate of the cost. As between the subcontractor
who made the bid and the general contractor who reasonably relied on it, the loss
resulting from the mistake should fall on the party who caused it. Affirmed.
Analysis:
Local custom and practice play important roles in the court’s decision. Drennan (P)
received bids in the customary manner, and prepared his bid using the
subcontracting bids, per local custom. Star Paving’s (D) bid was low, but not out of
the usual range for subcontracting bids in the area. It made reasonable and practical
sense to hold Star Paving (D) accountable.
93

(Insurance Company) v. (Widow)
198 Md. App. 452 (2011)
THE MAILBOX RULE APPLIES TO SOME ELECTRONIC

COMMUNICATIONS
117
INSTANT FACTS Griffith made an electronic payment of the premium
necessary to reinstate his life insurance coverage, but the payment was not received
until after Griffith died.
BLACK LETTER RULE The common-law rule providing that acceptance of

an offer is effective when it is sent will apply to electronic transactions that
resemble traditional paper transactions.
PROCEDURAL BASIS
Appeal from an order granting summary judgment in favor of Wilson (P).
FACTS
Griffith, Wilson’s (P) husband, had a life insurance policy that lapsed due to non-
payment of the premiums. The insurer, U.S. Life (D), sent Griffith an application for
the reinstatement of coverage. The application stated that the policy could be
reinstated simply by paying the overdue premium. The last day for the reinstatement
was August 14, 2007. The application also stated that payment should be mailed to
the program administrator. On July 23, 2007, Griffith accessed his online bank
account and directed that payment of the full amount necessary to reinstate the
policy be made to U.S. Life’s (D) administrator. The electronic check was
delivered on July 30. Griffith had died in an accident on July 28. U.S. Life (D)
claimed that the policy had not been reinstated.
ISSUE
Did Griffith reinstate the life insurance policy?

(Per curiam.) Yes. The common-law rule providing that acceptance of an offer is
effective when it is sent will apply to electronic transactions that resemble
traditional paper transactions. At common law, the so-called “mailbox rule,” the
“dispatch rule,” or sometimes the “postal acceptance rule,” provides that an offer
118
for a unilateral contract that calls for performance by sending money through the
mail is effective when the check was dispatched. The transaction at issue in the
case at bar is not a wholly traditional one that involves a paper document mailed by
the offeree to the offeror. This transaction began electronically, as an on-line
banking directive. Bank documents in the record show, however, that the directive
was acted upon by preparation of a paper check drawn on an account under
Griffith’s name, and bearing his “Authorized Signature.” The paper check then was
“sent” to the administrator on July 25, 2007, coming into the administrator’s
physical possession on July 30, 2007. The transaction thus resembles a traditional
acceptance by writing, in that a writing was “sent,” even though its creation was
directed electronically and it was created not by the offeree but by his bank. The
nature of the transaction is not akin to those that have been determined to be outside
the sphere of the dispatch rule, such as communication by telephone or teletype, as
those methods do not resemble communication by mail.
Application of the mailbox rule to the undisputed material facts in this case
produces the legal conclusion that the date of payment of the overdue premium was
July 25, 2007. At that point,
94
the permissible means for acceptance was in motion and, so far as is established by
the common law mailbox rule, was beyond Griffith’s power to stop. Affirmed.
Analysis:
The application for reinstatement provided that payment should be mailed to U.S.
Life’s (D) administrator. In portions of the opinion not reproduced in the casebook,
the court discusses whether delivery of payment by a private delivery service
would suffice. The court quoted Professor Williston’s treatise on contracts to say
that a dispatch to a private delivery service would qualify for the “mailbox rule” if
it were “independent of the offeree, reliable both in terms of its delivery
obligations and record keeping, and of a type that would customarily be used to
communicate messages of this sort.” See 2 Richard A. Lord, Williston on Contracts
§ 6:37, at 486–87 (4th ed. 2007).
95

(Carpet Seller) v. (Carpet Manufacturer)
453 F.2d 1161 (6th Cir. 1972)
COURT OF APPEALS APPLIES UCC § 2–207 TO ARBITRATION PROVISIONS
119
IN A BATTLE OF FORMS
INSTANT FACTS A carpet manufacturer wants to hold a dissatisfied retailer to

an arbitration agreement pre-printed on the manufacturer’s sales forms.
BLACK LETTER RULE Under UCC § 2–207, if an arbitration provision

materially alters an existing agreement, it will not be incorporated into the contract
unless expressly agreed to by both parties.
PROCEDURAL BASIS
Appeal from the district court’s denial of a defense motion for a stay of
proceedings in a fraud action.
FACTS
Dorton, otherwise known as The Carpet Mart (TCM) (P), purchased carpets from
Collins & Aikman Corp. (C&A) (D) fifty-five times over a period of three years.
TCM (P) placed their orders buy phone with C&A (D). C&A (D) checked with
their credit department and then returned a pre-printed acknowledgment form with
the details of the order. Depending upon the form that was used, it stated that a
contract was created when it was signed and delivered by the buyer and accepted
in writing by the seller, or when the buyer received and retained the order for ten
days without objection, or when the buyer accepted delivery of any part of the
order or otherwise indicated acceptance of the terms of the acknowledgment form.
In addition, all of the forms stated that acceptance of the order was subject to the
terms and conditions on the face and reverse of the form. The reverse side of every
form contained a provision which obligated the buyer to submit to arbitration for
any claims arising out of the agreement. TCM (P) usually received one of these
forms before they received their carpets. They always took delivery and paid for
the carpets without objecting to the terms in the acknowledgment form. As it turned
120
out, TCM (P) discovered that some of C&A’s (D) carpets were made out of inferior
materials. They sued C&A (D) for fraud and misrepresentation regarding the
quality of the carpets. C&A (D) argued that they were entitled to a stay of
proceedings until TCM (P) submitted to arbitration. The district court denied the
stay and C&A (D) appeals.
ISSUE
Are the parties to an agreement bound by an arbitration clause which is not present
in both of their contracts?

(Celebrezze) Maybe. Article 2 of the Uniform Commercial Code [a model
approach to commercial law which has been adopted, in whole or in part, by every
state] applies to the sale of goods. In particular, UCC § 2–207, governs transactions
in which the parties have not expressly agreed to a particular written contract, and
the existing writings exchanged by the parties do not agree. It is not clear, however,
that UCC § 2–207 governs this case for two reasons. First the district court will
have to determine whether C&A’s (D) acknowledgment
96
forms were acceptances or confirmations. This will depend on whether TCM (P)
and C&A (D) reached an oral agreement before the acknowledgment forms were
sent. In either case, it is possible that an oral agreement between the parties
included an implied arbitration provision. In that case, the arbitration terms in the
acknowledgment forms would not be “additional” for the purposes of UCC § 2–
207. That said, if the arbitration provisions are found to be additional, UCC § 2–
207 would govern unless acceptance of the pre-printed form was expressly
conditioned on assent to the arbitration provision. It is difficult to see how this
could be the case. C&A’s (D) forms contained a wide range of approved methods
of acceptance. The methods requiring action by the buyer would create a valid
contract. The methods requiring inaction by the buyer, like retaining the carpets for
ten days without objection, would not constitute a valid acceptance. As a result, the
forms did not make it clear that their acceptance was expressly conditional on
assent to the arbitration terms. However, under § 2–207 (2), the terms may be
considered proposals for additional terms unless they materially alter the
agreement. This question can be answered by the district court when, after a full
trial, all of the facts of the case have been examined. Reversed and remanded.
Analysis:
Article 2 of the UCC governs the sale of goods. The section of the UCC that is
121
discussed in this case is a significant modification of the common law “mirror
image” rule. The mirror image rule states that in order for an acceptance to be
valid, it must exactly minor each of the terms of the offer. This rule was decidedly
unwieldy for commercial transactions, which frequently give rise to a battle of
forms. It was necessary to modify the rule in order to provide some stability in
transactions involving the sale of goods. By recognizing those terms on which the
parties agree, transactions can be facilitated rather than thwarted, contracts can be
recognized rather than disclaimed, and additional terms can be implied by the UCC
or struck out. Also, since the UCC recognizes that certain terms are common in
commercial contracts, its application prevents the recognition of highly unusual or
exploitative terms. In addition, § 207(3) will imply a contract between the parties if
their conduct recognizes one. In that event, the contract is comprised of the terms to
which the parties agree. The only other terms are those that other sections of the
UCC would imply.
CASE VOCABULARY
ARBITRATION: A form of alternative dispute resolution which may be court-
ordered or agreed to by the parties. Arbitration is done outside the courtroom and
without a jury.
STAY OF PROCEEDING: A court can grant a stay of proceedings in order to await
a decision or to enforce a rule which may affect the rights or duties of the parties.
The proceedings will usually resume without any change in procedural status at the
point where they left off.
97

(Buyer of Steel Coils) v. (Seller)
552 F.2d 1228 (7th Cir. 1977)
ADDITIONAL TERMS ARE NOT INCLUDED IF THE CONTRACT IS

PERFORMED WITHOUT AGREEMENT TO THOSE ADDITIONAL TERMS
122
INSTANT FACTS Jordan (D) sent an acknowledgement of a purchase order
from Itoh (P) and included an arbitration clause in the acknowledgement.
BLACK LETTER RULE The terms of a contract formed by the conduct of the
parties are those on which the writings of the parties agree, along with
supplementary terms incorporated by operation of law.
PROCEDURAL BASIS
Appeal from an order denying a motion to stay proceedings pending arbitration.
FACTS
Itoh (P) sent Jordan (D) a purchase order for steel coils. Jordan’s (D)
acknowledgement of that order stated that its acceptance of the order was
conditioned on Itoh’s (P) agreement to additional terms that were set out on the
reverse side of the acknowledgement. One of the additional terms was an
arbitration clause. Itoh’s (P) purchase order did not reference arbitration. After the
steel had been delivered and paid for, Itoh (P) claimed that it was defective and
brought suit against Jordan (D). Jordan (D) moved to stay the action pending
arbitration, and the motion was denied.
ISSUE
Was the arbitration clause part of the agreement between Itoh (P) and Jordan (D)?

(Sprecher, J.) No. The terms of a contract formed by the conduct of the parties are
those on which the writings of the parties agree, along with supplementary terms
incorporated by operation of law. There is no definition of “supplementary terms”
in the U.C.C. or in relevant case law. We are persuaded that the term does not
encompass those which are necessarily excluded from the contract by the language,
“terms on which the writings of the parties agree.” Accordingly, the “supplementary
terms” are limited to those supplied by the standard “gap-filler” provisions of
Article Two of the U.C.C. Arbitration is not a missing or necessary term that would
be supplied by Article Two, so the arbitration clause is not a part of the contract
created by the conduct of Itoh (P) and Jordan (D).
This conclusion is not unfair to the seller who inserts a statement in a sales
acknowledgement that acceptance is expressly conditioned on assent to additional
terms. That seller has the option of walking away from the transaction without
liability if the seller decides that the transaction is not in his best interest, so long
as the buyer has not agreed to the additional terms. Moreover, it is within the
123
seller’s control whether he is disadvantaged by inserting an “expressly
conditioned” clause. If the additional terms are not assented to, the seller can
protect himself by not delivering the goods until the buyer agrees to the condition.
While a seller may take advantage of an “expressly conditioned” clause when he
elects not to perform, the seller must accept the potential risk of not getting his
additional terms when he elects to proceed with performance without assent to
those terms. Since the seller in that situation
98
injected ambiguity into the transaction, he, and not the buyer, should bear the
consequences of that ambiguity. Affirmed.
Analysis:
Itoh’s (P) failure to object to the additional terms could be regarded as assent. The
court is placing the burden on Jordan (D)—the party who proposed the additional
clause—to establish that there was in fact assent. This keeps the burden of proof on
the party who is proposing a substantial change in the agreement between the
parties to show that there was mutual assent to the alteration.
99

(Seller of MTBE) v. (Buyer)
215 F.3d 219 (2d Cir. 2000)
A PARTY WHO OBJECTS TO ADDITIONAL TERMS MUST SHOW NON-

ASSENT
INSTANT FACTS Oxygenated (D) offered to purchase MTBE from Bayway

(P), and Bayway’s (P) acceptance included a clause requiring Oxygenated (D) to
pay the taxes on the transaction.
124
BLACK LETTER RULE The burden of proving that additional terms would be
a material alteration of the contractual obligation is on the party who objects to the
inclusion of the additional terms.
PROCEDURAL BASIS
Appeal from an order granting summary judgment for Bayway (P).
FACTS
Oxygenated (D) offered to buy 60,000 barrels of MTBE from Bayway (P).
Bayway’s (P) response, which acted as the acceptance, contained a term known as
a “Tax Clause.” This clause provided that Oxygenated (D) would pay Bayway (P)
the amount of any taxes incurred by Bayway (P) with respect to the MTBE sold.
Oxygenated (D) did not object to the additional term. Oxygenated (D) accepted
delivery of the MTBE, and Bayway (P) incurred a tax liability of $464,035.12.
Bayway (P) paid the taxes, and then demanded payment from Oxygenated (D).
Oxygenated (D) denied that it agreed to the Tax Clause and refused to pay. The
district court held that the Tax Clause was properly incorporated into the contract.
ISSUE
Was the Tax Clause incorporated into the contract?

(Jacobs, J.) Yes. The burden of proving that additional terms would be a material
alteration of the contractual obligation is on the party who objects to the inclusion
of the additional terms. A material alteration is one that would result in surprise or
hardship if it is incorporated without express awareness by the party who does not
propose the altering term. Certain additional terms—such as an arbitration clause
—are deemed material as a matter of law. Oxygenated (D) claims that the Tax
Clause is a broad-ranging indemnity clause, and is per se a material alteration. This
analogy is rejected. The Tax Clause allocates responsibility for the tax payable on a
specific sale of goods, and it is not per se a material alteration.
Oxygenated (D) has not shown surprise. To show surprise, a party must show that,
under the circumstances, it cannot be presumed that a reasonable merchant would
have consented to the additional term. Surprise has both the subjective element of
what a party actually knew and the objective element of what the party should have
known. Oxygenated (D) introduced evidence of subjective surprise, but no
evidence of objective surprise. Oxygenated (D) had no prior dealings with Bayway
(P), and offered no evidence regarding trade custom or practice. Bayway (P),
however, introduced evidence to show that the Tax Clause reflects custom and
125
practice in the petroleum industry. Oxygenated (D) argues that Bayway’s (P)
evidence shows a genuine issue of material fact, but Bayway’s (P) evidence is
conclusive. Moreover, common sense supports Bayway’s (P) evidence. Federal
excise taxes are payable when fuel is sold to an
100
unregistered person. The buyer controls when tax liability is incurred, and a trade
practice that reflects a rational allocation of incentives would place the tax burden
on the party who is in a position to obviate it. Given the trade practices in the
petroleum industry, Oxygenated (D) could not have been objectively surprised by
the inclusion of the Tax Clause.
We do not need to decide if hardship is an independent ground of material
alteration. Oxygenated (D) has shown no evidence of hardship other than that
payment of the taxes would cause it to suffer a loss it cannot afford. This does not
amount to hardship. Courts that have found hardship in this context have typically
done so when the additional terms create or allocate a prolonged or open-ended
liability. Any loss that the Tax Clause imposes on Oxygenated (D) is limited,
routine, and self-inflicted. Affirmed.
Analysis:
Tax Clauses are standard in the petroleum industry. Anyone who does business in
that industry does so subject to the established customs and practices. It is much
more challenging to show surprise when the proponent of additional terms is able
to make a strong showing of industry custom or usage.
101

(Buyer of Wire Boards) v. (Manufacturer)
29 F.3d 1173 (7th Cir. 1994)
ADDITIONAL TERMS IN AN ACCEPTANCE ARE REPLACED BY GAP-

FILLERS
126
INSTANT FACTS Litronic’s (D) invoice provided for a ninety-day warranty
period, but Northrop’s (P) acceptance provided for an unlimited warranty period.
BLACK LETTER RULE If an offeree’s response is different from the offer, the
different terms drop out and are replaced by suitable U.C.C. gap-filler terms.
PROCEDURAL BASIS
Appeal from a judgment for Northrop (P).
FACTS
Litronic (D) offered to sell printed wire boards to Northrop (P). Litronic’s (D)
offer contained a ninety-day warranty that was meant to be exclusive of other
warranties. Northrop’s (P) return invoice contained a warranty with an unlimited
duration. After the ninety-day period had elapsed, Northrop (P) attempted to return
some of the boards as defective. Litronic (D) refused to accept them, because the
warranty period had elapsed.
ISSUE
Was Northop’s (P) unlimited warranty period incorporated into the agreement
between the parties?

(Posner, C.J.) No. If an offeree’s response is different from the offer, the different
terms drop out and are replaced by suitable U.C.C. gap-filler terms. The U.C.C.
does not explain what happens if an offeree’s response contains different terms
(rather than additional ones) from the offer. There is no consensus on that question.
There is a contract, because an acceptance is effective even though it contains
different terms, but the question of what the terms of that contract are remains. One
view is that the discrepant terms in both the non-identical offer and the acceptance
drop out, and default terms found elsewhere in the U.C.C. fill the resulting gap.
Another view is that the offeree’s discrepant terms drop out and the offeror’s terms
127
become part of the contract. A third view, possibly the most sensible, equates
“different” with “additional” and looks at whether the new terms in the acceptance
are materially different from the terms in the offer. Terms that are materially
different would operate as proposals, and the offeror’s terms prevail unless he
agrees to the variant terms in the acceptance. Terms that are not materially different
would become part of the contract. This third view has been adopted only in
California.
In other U.C.C. cases, Illinois has tended to adopt majority rules, so we start with a
presumption that Illinois, whose position we are trying to predict, would adopt the
majority view. We do not find the presumption rebutted. The majority rule is that
the discrepant terms drop out and are replaced with neutral terms from the U.C.C.
The idea behind this rule is that the presence of different terms in the acceptance
suggests that the offeree didn’t really accede to the offeror’s terms, yet both parties
wanted to contract, so why not find a neutral term to govern the dispute that has
arisen between them? The offeree may not have had any serious objection to the
terms in the offer, but may have mailed a boilerplate form. It is just as likely that the
discrepant terms in the offer itself were the product of a thoughtless use of a
boilerplate form rather than a
102
considered condition of contracting. If the offeror doesn’t want to do business other

than on the terms in the offer, he can protect himself by specifying that the offeree
must accept all those terms for the parties to have a contract. Affirmed.
Analysis:
The majority rule adopted by the court has the advantage of being simple to apply.
The California rule advanced by Judge Posner would involve making a detailed
inquiry into the substance of the two different documents. Given that many
commercial transactions involve preprinted boilerplate forms, such an inquiry
would move away from an inquiry into the intention of the parties to a review of
who used which form.
103
Step-Saver Data Systems, Inc. v. Wyse Technology [and The Software

Link, Inc.]
(Software Dealer) v. (Software Producer)
939 F.2d 91 (3rd Cir. 1991)
128
COURT OF APPEALS APPLIES THE UCC TO MULTIPLE SALES
AGREEMENTS WITH DIFFERENT TERMS
INSTANT FACTS A software dealer used a defective program in one of its

commercial systems and sought to enforce a warranty against the producer of the
program.
BLACK LETTER RULE UCC § 2–207 governs contracts for the sale of goods
where the parties have multiple agreements with additional or different terms.
PROCEDURAL BASIS
Appeal from a trial court directed verdict for the defendant in a breach of warranty
[breach of contract] action.
FACTS
Step-Saver Data Systems, Inc. (Step-Saver) (P) purchased 142 copies of a
computer program called Multilink Advanced [also referred to as Advanced
Multilink] from an intermediate dealer, The Software Link, Inc. (TSL) (D2) over a
period of eight months. The program was produced by a company called Wyse
Technology (D1). Normally, Step-Saver (P) would place an order for twenty
copies of the program with TSL (D2) over the phone. TSL (D2) would accept the
order and promise to ship the goods promptly. Step-Saver (P) would follow up
with a purchase order detailing the goods ordered, along with the price, shipping,
and payment terms. TSL (D2) would then ship the order with an invoice which
essentially duplicated the terms of Step-Saver’s (P) purchase order. None of these
documents contained any provisions limiting the liability of Wyse Technology (D1)
or TSL (D2) for program defects. The program packaging did, however. The box-
top contained a licensing agreement which was alleged to be the complete
agreement between the parties. Among other provisions, it disclaimed all
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warranties except for a warranty against defective program disks. In addition, the
license agreement stated that opening the package constituted acceptance of the
agreement. Otherwise, it stated, the package should be returned unopened. Step-
Saver (P) purchased and incorporated the program into a larger system which it
sold to law and medical offices. However, at least twelve of these purchasers had
problems with the system and sued Step-Saver (P). Step-Saver, in turn, sued Wyse
Technology (D1) and TSL (D2) for breach of warranty and for indemnification
against the claims of their customers. The district court exonerated Wyse
Technology (D1) and granted TSL (D2) a directed verdict against Step-Saver (P).
Step-Saver (P) appeals.
ISSUE
Can the parties to a contractual relationship be bound by the terms of differing
agreements between them?

(Wisdom) Maybe. This case involves the sale of goods. As a result, Article 2 of the
Uniform Commercial Code [a model approach to commercial law which has been
adopted, in whole or
104
in part, by every state] applies. UCC § 2–207, in particular, governs transactions in

which the parties have not expressly agreed to a particular written contract, and the
existing writings exchanged by the parties do not agree. While there is no question
that there is a contract between Step-Saver (P) and TSL (D2), it is necessary to
determine by what terms that contract will be enforced. Under the common law, and
certain agreements not governed by the UCC, courts have followed the “last shot
rule.” This meant that parties to a sales transaction were bound by the terms of the
last form sent by one of the parties. The UCC rejected this approach, recognizing
that most parties to sales transactions are more concerned with the completion of
their transactions than the enforcement of specific provisions of their pre-printed
forms. The drafters of the UCC felt that it was unfair and arbitrary to bind both
parties to the last form sent. Consequently, UCC § 2–207 enforces those terms
which are in agreement, as well as any other terms implied by the UCC. TSL (D2)
begins by arguing that certain terms, particularly the warranty requirements, can
only be determined by the parties. TSL (D2) claims that the contract would be
insufficiently definite without these terms. However, the UCC would supply the
appropriate warranty in the absence of any agreement between the parties. As a
result, it is not necessary to enforce TSL’s (D2) limited box-top warranty in order
to create a binding contract. TSL (D2) also draws attention to the language of the
130
box-top license itself. The license warns that opening the package indicates
acceptance of its terms. Consequently, TSL (D2) argues that the warranty
provisions were conditional terms—essentially counter-offers the acceptance of
which was necessary to the formation of a contract. TSL (D2) supports this
argument with the license’s refund offer which states that the purchaser can return
the product if they do not accept its terms. However, the facts of the case do not
bear out TSL’s analysis [the court’s discussion of these facts is omitted from the
case—however, it is quite likely that the repeated dealings between the parties,
free of the constraints of the box-top license, indicated an implied waiver of the
“conditional” warranty provisions]. Finally, TSL (D2) argues that Step-Saver (P)
made successive orders for copies of Multilink Advanced when they were already
on notice of the warranty provisions. TSL (D2) argues that the repeated expression
of the provisions incorporates them into the agreement. This is not a generally
accepted approach. However, the behavior of the parties may be informative on
this issue. Step-Saver (P) repeatedly refused to sign the box-top license agreement,
and TSL (D2) spent a great deal of time trying to solve the problems with Multilink
Advanced. It seems that the parties continued to deal with each other regardless of
the warranty provisions. Consequently, there is no pattern of behavior which would
call for incorporating the provisions. This does not end the analysis, however. UCC
§ 2–207 also states that an additional term will not be incorporated if it would
materially alter the agreement. Step-Saver (P) claims that the parties agreed to
certain express warranties and that certain implied warranties were also part of
their contract with TSL (D2). These claims were never considered by the district
court. However, if they were proven to be true, then the addition of the limited
warranty provisions would materially alter the agreement between the parties. As a
result, the warranty provisions cannot be incorporated into the agreement. Further,
the district court must consider Step-Saver’s (P) claims in order to determine the
status of any express or implied warranties existing between the parties. Reversed
and remanded.
Analysis:
Note that if a new term is material, the party who proposed it must present
additional evidence, usually evidence of prior dealings between the parties, to
show that it was reasonable to infer that the other party consented to the new term.
If a new term is not material, the other party’s silence may constitute consent to the
term. In addition, the fact that a term is commonly used in a particular industry may
suggest that the other party consented to it. On the other hand, if a term diverges
from trade usage, there may be reason to doubt that the other party consented to it.
Justice Wisdom’s opinion deals with the most important elements of § 2–207. The
actual text and the commentary following the rule will help you appreciate the sheer
131
complexity of this particular UCC section.
105
CASE VOCABULARY
DIRECTED VERDICT: Governed by Federal Rule of Civil Procedure 50, a motion
for directed verdict, now referred to as a motion for judgement as a matter of law,
can be made at the end of a party’s presentation of their evidence. The moving party
asks the court to rule that their opponent has not met their burden of production. In
other words, the judge is asked to rule—without consulting the jury—that the
moving party is entitled to a judgement in their favor. A renewed motion for
judgement as a matter of law, formerly known as a judgement notwithstanding the
verdict, can be made after the jury has already reached a verdict and involves the
same analysis.
MIRROR IMAGE RULE: A common law rule which requires the terms of an
acceptance to match the terms of the offer in order to create a binding contract.
WARRANTY: Warranty doctrine covers a broad range of provisions by which, for
instance, a party guarantees the fitness of an article or indemnifies a party against
an undesirable event. Under the UCC, goods are subject to an implied warranty of
merchantability. This means, among other requirements, that the goods are fit for the
general purpose for which such goods are ordinarily used.
107

(Software Seller) v. (Software Buyer)
86 F.3d 1447 (7th Cir. 1996)
YOU CAN’T BUY SOFTWARE AND SELL IT OVER THE INTERNET
132
INSTANT FACTS A purchaser of a computer software database resold the
database on the Internet in violation of the license included with the software.
BLACK LETTER RULE A license enclosed in a software package forms a

binding contract between the software seller and buyer if the package provides
notice that the purchase is subject to the license and the buyer can receive a refund
if the buyer does not agree to the license’s terms.
PROCEDURAL BASIS
Appeal of district court decision for defendant in breach of contract action seeking
an injunction.
FACTS
ProCD, Inc. (ProCD) (P) sells a CD-ROM disk set called SelectPhone that
contains a database of information from more than 3000 telephone directories. The
database cost ProCD (P) more than $10 million to compile and is expensive to
keep current. ProCD (P) sold the database to the general public for about $150, and
it sold a slightly different product to commercial buyers for a higher price. Every
box containing its consumer product states that the software comes with restrictions
in an enclosed license. The license is encoded on the CD-ROM disks, printed in the
manual, and appears on the user’s screen every time the software runs. The license
limits the use of the program to non-commercial purposes. Zeidenberg (D) bought
several consumer packages of SelectPhone from a retail outlet. He resold the
SelectPhone database on the Internet for less than ProCD (P) charges its
commercial customers. ProCD (P) sued Zeidenberg (D) seeking an injunction
against further dissemination of the database in violation of the licenses. The
district court held the licenses were ineffectual because their terms did not appear
on the outside of the packages. The court held that a purchaser does not agree to and
cannot be bound by terms that were undisclosed at the time of purchase.
ISSUE
Does a license enclosed in a software package form a binding contract between the
software seller and buyer?

(Easterbrook, J.) Yes, if the software package provides notice that the purchase is
subject to a license and the buyer has the opportunity to return the software for a
refund if the buyer does not agree to the license’s terms. For purposes of this case,
licenses are ordinary contracts governed by the UCC and the common law.
Zeidenberg (D) argues that making the software package available for sale is an
133
“offer,” which the customer “accepts” by paying for the package. He argues that
hidden terms inside the box cannot be part of the contract. However, the outside of
the software box stated that the transaction was subject to a license. As a practical
matter, ProCD (P) could not have included all the terms of the license on the
outside of the box. However, providing notice of the license on the outside of the
box, the terms of the license inside the box, and the right to return the software for a
refund if the terms are unacceptable is
108
an acceptable way to do business. Standardized agreements save time and are

essential to a system of mass production and distribution. Transactions in which the
exchange of money precedes the communication of the details of the contract are
common. Examples include the sale of insurance, airline tickets, concert tickets,
warranties on consumer goods, and drugs. Purchases of software are often made by
phone or on the internet, where there is no box setting forth the terms. On
Zeidenberg’s (D) argument, the seller has made a broad warranty and must pay
consequential damages for any shortfalls in performance. This would drive the
price of software through the ceiling. UCC § 2–204(1) provides that “A contract for
sale of goods may be made in any manner sufficient to show agreement, including
conduct by both parties which recognizes the existence of such a contract.” Here,
ProCD (P) proposed a contract that a buyer accepts by using the software after
having an opportunity to read the license. Zeidenberg (D) agreed to the terms by
using the software. UCC § 2–606 reinforces our opinion. It states that a buyer
accepts goods when, after an opportunity to inspect, the buyer fails to reject the
goods. Here, Zeidenberg (D) inspected the license and the software, and did not
reject the goods. Reversed and remanded.
Analysis:
The court here distinguished Step-Saver Data Systems, Inc. v. Wyse Technology.
Step-Saver was a “battle-of-the-forms” case where the buyer and the seller sent
each other conflicting invoices and purchase orders and the court was left to sort
out the terms of the contract. In Step-Saver, the court applied UCC § 2–207, which
enforces those terms to which both parties agree. Here, there were not two forms.
ProCD (P) offered its license as part of the sales contract and Zeidenberg (D)
chose not to abide by its terms. Zeidenberg (D) never communicated his rejection
of the license agreement, unless breach is the same as rejection. Step-Saver also
involved a “box-top license” disclaiming certain warranties. The box-top license
stated that opening the package constituted acceptance of the agreement. Here, on
the other hand, a purchaser of the SelectPhone software was able to open the
package, review the license agreement, and choose whether to abide by it. By using
134
the software, Zeidenberg (D) was held to have accepted the license terms. Here the
court relied on UCC § 2–204(1) rather than § 2–207. Section § 2–204 provides that
“[a] contract for sale of goods may be made in any manner sufficient to show
agreement, including conduct by both parties which recognizes the existence of such
a contract.” This is also the rule at common law. It provides that a contract is
implied where the parties’ intention to contract is not manifested by explicit words
but by their conduct.
CASE VOCABULARY
LICENSE: Permission to do or omit an act, such as permission to use a copyrighted
work for specific purposes.
109

(Computer Buyer) v. (Computer Seller)
105 F.3d 1147 (7th Cir. 1997)
TERMS CONTAINED INSIDE A PACKAGE MAY BECOME PART OF THE

CONTRACT
INSTANT FACTS Hill (P) purchased a computer from Gateway (D) and
claimed that the arbitration agreement included in materials enclosed inside the
box, which purported to govern unless the computer was returned within thirty
days, was unenforceable.
BLACK LETTER RULE A seller may provide that acceptance of an offer will
be by conduct, and the buyer accepts by performing the acts that the seller proposes
to treat as acceptance.
135
PROCEDURAL BASIS
Appeal from an order denying a motion to enforce an arbitration clause.
FACTS
Hill (P) purchased a computer from Gateway (D). The computer was ordered over
the telephone and delivered to Hill (P). The box in which the computer was
shipped contained a list of contractual terms that would be effective unless Hill (P)
returned the computer to Gateway (D) within thirty days. One of those terms was an
arbitration agreement. Hill (P) kept the computer for more than thirty days, and then
began complaining about its components and performance. Hill (P) brought a RICO
suit against Gateway (D), and Gateway (D) moved for enforcement of the
arbitration clause. The district court refused to enforce the clause, finding that there
was no evidence of a valid arbitration clause or that Hill (P) had adequate notice of
the arbitration clause.
ISSUE
Was the arbitration clause part of the contract between Hill (P) and Gateway (D)?

(Easterbrook, J.) Yes. A seller may provide that acceptance of an offer will be by
conduct, and the buyer accepts by performing the acts that the seller proposes to
treat as acceptance. This case is governed by the rule in ProCD, Inc. v. Zeidenberg,
86 F. 3d 1447 (7th Cir. 1996), in which the court held that contractual terms inside
a box containing software bind consumers who use the software after an
opportunity to read the terms and to reject them by returning the product. Hill (P)
argues that the holding in ProCD should be limited to software. There is no logical
reason to do so. Payment before the full terms of a contract are revealed is common
in many industries, and practical considerations support allowing vendors to
enclose the full terms with their products. Cashiers cannot be expected to read the
full terms to customers before ringing up a sale, and customers cannot be expected
to listen to all of the terms as they are read to them. The approve-or-return device
is simple and benefits both parties. In addition, the computer box sent to Hill (P)
contained a lot of software. Limitation of the ProCD rule to software would not
help Hill (P).
Hill (P) also argues that ProCD should be limited to executory contracts, such as
licenses, and therefore does not apply because performance of the contract in this
case was complete when the computer arrived at his home. The question in this
case relates to contract formation, not
110
136
performance. ProCD was characterized as a case involving a sale of goods, not a
license. In addition, Gateway (D) did not complete performance with delivery. Part
of the agreement was the warranty for future service, which Hill (P) invoked.
Gateway (D) offered “lifetime service,” and the promises of future performance
bind Gateway (D) just as the arbitration clause binds Hill (P).
Hill (P) further claims that ProCD does not apply because Zeidenberg was a
merchant and Hill (P) is not. Section 2–207(2) of the UCC provides that, in a
transaction between merchants, additional terms after the acceptance of an offer are
construed as proposals for additions to a contract, and such terms become a part of
the contract unless the offer expressly limits acceptance to the terms of the offer, the
additional terms materially alter the contract, or notification of objection to the
terms has been given or is given within a reasonable time. Hill’s (P) argument is
that the result in ProCD was dictated by the fact that Zeidenberg was a merchant
and the additional terms were not excluded by § 2–207. The opinion in ProCD
concluded that § 2–207 was irrelevant, because there was only one set of terms.
The question was not whether additional terms were added after the contract was
formed, but how and when the contract was formed in the first place. In addition,
Zeidenberg in ProCD was not acting as a merchant: he bought the software at a
retail store and put it on the Internet for anyone to use.
Finally, Hill (P) attempted to distinguish ProCD by stating that the software box in
that case displayed a notice that there were additional terms inside, but the box
from Gateway (D) did not. This is a functional distinction, not a legal one.
Gateway’s (D) box is a shipping carton and has no information for the consumer.
Hill (P) may have had a better argument if he first knew of the additional terms
after opening the box but was dissuaded from returning it by the high cost of
shipping. In any event, Gateway’s (D) advertisements state that their products come
with limited warranties and lifetime support, but that does not describe the
warranties or support fully. Buyers have several methods for learning about the
terms, including inspecting the relevant documents after delivery of the product.
This is the option Hill (P) chose, and by keeping the computer more than thirty
days, Gateway’s (D) offer was accepted. Vacated and remanded, with directions to
compel Hill (P) to submit to arbitration.
Analysis:
The court emphasizes that this case is about contract formation, and the question
being addressed is, when was the contract formed? The court holds that the contract
is not formed until thirty days after delivery of the computer, but does that agree
with the expectations of most buyers? Critics of this case and the ProCD case have
posed the question of whether Gateway (D), after taking Hill’s (P) order, could say
that the price has gone up and the computer will not be delivered until Hill (P) pays
137
more. If the contract is not formed until a considerable time after delivery, it would
appear that there would be no reason why Gateway (D) could not change its terms
any time within thirty days.
CASE VOCABULARY
ARBITRATION: A method of dispute resolution involving one or more neutral
third parties who are usu. agreed to by the disputing parties and whose decision is
binding.
EXECUTORY: Taking full effect at a future time; to be performed at a future time;
yet to be completed.
RICO: Racketeer Influenced and Corrupt Organizations Act. A law designed to
attack organized criminal activity and preserve marketplace integrity by
investigating, controlling, and prosecuting persons who participate or conspire to
participate in racketeering. Enacted in 1970, the federal RICO statute applies only
to activity involving interstate or foreign commerce. 18 USCA §§ 1961–1968.
111

(Prospective Franchise) v. (Supermarket Chain)
26 Wis.2d 683, 133 N.W.2d 267 (1965)
WISCONSIN SUPREME COURT DISTINGUISHES PROMISSORY ESTOPPEL

FROM BREACH OF CONTRACT
INSTANT FACTS A bakery owner wants to open a supermarket franchise but is

rejected by the franchiser after making preparations at their request.
BLACK LETTER RULE It is not necessary for an offer to address every detail
of an agreement in order to support a promissory estoppel claim.
138
FACTS
Hoffman (P) was a bakery owner in Wisconsin who wanted to obtain a franchise
for a supermarket in the Red Owl Stores (Red Owl) (D) chain. He contacted Red
Owl (D) and, after a year and a half, they began working toward that goal. Red
Owl’s (D) representative, Lukowitz, advised Hoffman (P) to buy and operate a
small grocery store in order to get some experience. After three months, Lukowitz
advised him to sell the store, assuring him that Red Owl (D) would find him a
bigger store. Then Lukowitz advised him to put a security deposit down on a lot for
the proposed franchise. Soon after, Lukowitz told him that everything was ready to
go. In fact, he told Hoffman (P), “Get your money together and we are set.” He also
told Hoffman (P) to sell his bakery. Hoffman (P) sold the bakery and then moved
his family closer to the proposed store location. Red Owl (D) also asked him to
work at their nearest franchise but the job never came through. Hoffman (P) and
Red Owl (D) then began a complicated series of negotiations over the leasing of
the franchise site and Hoffman’s (P) financial contribution. They could not agree on
certain terms, however, including the status of a substantial loan which Hoffman (P)
arranged with his father-in-law. Finally, the negotiations fell through and Hoffman
(P) sued Red Owl (D) under a theory of promissory estoppel. Red Owl (D) argued
that the parties never reached an agreement on many of the specifics necessary to
establish a contract. Nonetheless, Hoffman (P) was awarded damages equal to the
value of the grocery store he sold, the loss he incurred in selling his bakery, the
costs of moving his family and renting a house near the new location, and the cost
of securing a lot for the new store. The trial court confirmed the verdict, with the
exception of the damages for selling the grocery store for which it ordered a new
trial. Red Owl (D) appeals.
ISSUE
Is it necessary for an offer to be specific enough to create a contract in order to
support a claim of promissory estoppel?

(Currie) No. Promissory estoppel was originally envisioned as a substitute for
consideration. In other words, the offeree’s reliance on the offeror’s promise
satisfied the need for consideration. However, a claim for promissory estoppel
need not meet the other requirements of a binding contract, for instance, the need for
an offer which is definite with respect to the details of the contract. As a result, a
claim under promissory estoppel is not equivalent to a breach of contract claim.
This interpretation is supported by the Restatement [First] of Contracts § 90. The
139
112
Restatement requires a promise which the promisor should reasonably expect to

induce action or forbearance of a definite and substantial character on the part of
the promisee. The Restatement also requires that the promise actually induce such
reliance. Finally, § 90 places the responsibility on the court to determine whether
injustice would result if the promise were not enforced. This is more discretion
than a court has in an ordinary breach of contract case. Accordingly, injustice
cannot be avoided in this case unless the court enforces the promises that Red Owl
(D) made to Hoffman (P). That said, the trial court correctly ordered a retrial on the
issue of damages associated with the sale of the grocery store which Hoffman (P)
bought at Red Owl’s urging. Since this is not a breach of contract action, it is not
appropriate to apply strict measures of contract damages, like lost profits, in order
to adequately compensate Hoffman (P) for this sale. He is only entitled to an
amount necessary to avoid injustice. Judgment is affirmed
Analysis:
Promissory estoppel is a purely equitable doctrine that entitles courts to ignore

most of the rules of contract formation in order to do justice in a particular case.
This approach seems antithetical to the notion of freedom of contract, which is
thought to be the bedrock of contract theory. However, as in the above case, there
ought to be a way of compensating parties like Hoffman (P) who are taken in by
offers that skirt the requirements for contracts but are nonetheless enough like offers
to induce reliance. This is the situation in which promissory estoppel functions
most effectively and in which the courts are in the greatest need of the discretion it
affords. Note, however, that along with that discretion comes the discretion to vary
the damages as justice demands. Some commentators argue that courts are granting
reliance damages in these cases, but doing so based on a measure of damages equal
to the plaintiff’s expectation interest. Other commentators argue that courts are
simply granting reliance damages based on the plaintiff’s reliance interest. Either
way, it appears that courts are able to arrive at a just resolution despite the legal
confines of contract damages.
113

(Homeowner) v. (Mortgage Company)
798 F. Supp. 2d 336 (D. Mass. 2011)
AN ACTION BASED ON PROMISSORY ESTOPPEL IS EQUIVALENT TO A

CONTRACT ACTION
140
INSTANT FACTS Wells Fargo (D) induced the Dixons (P) to take steps to
initiate a modification of their mortgage, but then began foreclosure proceedings.
BLACK LETTER RULE The promise on which a claim for promissory

estoppel is based must be interchangeable with an offer, and must demonstrate an
intention to act or refrain from acting in a specified way.
PROCEDURAL BASIS
Decision on a motion to dismiss for failure to sate a claim for which relief may be
granted.
FACTS
Wells Fargo (D) was the holder of a mortgage on the Dixons’ (P) home. In June
2009, the Dixons (P) orally agreed with Wells Fargo (D) to take the steps necessary
to enter into a mortgage loan modification. As part of this agreement, Wells Fargo
instructed (D) the Dixons (P) to stop making payments on their loan. It was
contemplated that the unpaid payments would be added to the note as modified.
Wells Fargo (D) also requested certain financial information, which the Dixons (P)
promptly supplied. Wells Fargo (D) effectively refused to abide by the oral
agreement to modify the loan. On or about December 8, 2010, the Dixons (P)
received notice from the court that Wells Fargo (D) was proceeding with a
foreclosure on their home. The Dixons (P) brought an action for a restraining order
to prevent the foreclosure. The Dixons (P) alleged that Wells Fargo’s (D) conduct
constituted promissory estoppel.
ISSUE
Did the Dixons’ (P) complaint state a claim for promissory estoppel?

(Young, J.) Yes. The promise on which a claim for promissory estoppel is based
141
must be interchangeable with an offer, and must demonstrate an intention to act or
refrain from acting in a specified way. In addition to demonstrating a firm
commitment, the promise, like any offer, must be sufficiently definite and certain in
its terms to be enforceable. An action based on reliance is equivalent to a contract
action. A party who brings such an action must prove all the necessary elements of
a contract other than consideration.
Courts are reluctant to enforce an “agreement to agree.” Parties should be allowed
to walk away unscathed if they do not reach an agreement. Wells Fargo (D) alleges
that the complaint states that the parties had an agreement to enter into a loan
modification agreement, but as a matter of law, an agreement to reach an agreement
is a contradiction in terms and imposes no obligations. The Dixons (P), however,
have made it clear that they are not seeking specific performance of a promised
loan modification. They admit that Wells Fargo (D) made no guarantee of a
modification, only a verbal commitment to determine the Dixons’ (P) eligibility for
a modification if they followed the prescribed steps. There is no risk that upholding
the promissory estoppel claim would be “trapping” Wells Fargo (D) into a vague,
indefinite, and unintended loan modification masquerading as an agreement to
agree. Furthermore, because
114
the parties had not yet begun to negotiate the terms of a modification, Wells Fargo’s
promise is not a preliminary agreement to agree, but more closely resembles an
“agreement to negotiate.”
Massachusetts courts treat agreements to negotiate as variants of open-ended
agreements to agree. The view that such an agreement does not create a binding
contract reflects a concern that a promise of further negotiations is too indefinite
and too undefined in scope to be enforceable. This is particularly true where the
parties have not specified the terms on which they will negotiate. As with open-
ended agreements to agree, enforcement of vague agreements to negotiate would
risk imposing on parties obligations they had not taken on themselves. In this case,
Wells Fargo (D) and the Dixons (P) had not yet contemplated the terms of a loan
modification, but they had contemplated negotiations. Yet, Wells Fargo (D) made a
specific promise to consider the Dixons’ (P) eligibility for a loan modification if
they defaulted on their payments and submitted certain financial information.
Importantly, it was not a promise made in exchange for a bargained-for legal
detriment. The legal detriment that the Dixons (P) claim to have suffered was a
direct consequence of their reliance on Wells Fargo’s (D) promise.
Admittedly, the courts of Massachusetts have yet to formally embrace promissory
estoppel as more than a consideration substitute. Nonetheless, they have adopted
142
section 90 of the Restatement (Second) of Contracts, which reads, “A promise
which the promisor should reasonably expect to induce action or forbearance on the
part of the promisee or a third person and which does induce such action or
forbearance is binding if injustice can be avoided only by enforcement of the
promise.” There is no explicit requirement that the promise giving rise to the cause
of action must be so comprehensive to meet the requirements of an offer.
Massachusetts’s requirement that a promise be definite can be reconciled with the
Restatement’s more relaxed standard. Case law reveals a willingness to enforce
even an indefinite promise made during preliminary negotiations where the facts
suggest that the promisor’s words or conduct were designed to take advantage of
the promisee. Typically, where the Massachusetts courts have applied the doctrine
of promissory estoppel, there has been a pattern of conduct by one side which has
dangled the other side on a string.
In the present case, Wells Fargo (D) convinced the Dixons (P) that to be eligible for
a loan modification they had to default on their payments. It was only because they
relied on this representation and stopped making their payments that Wells Fargo
(D) was able to initiate foreclosure proceedings. There is no allegation that its
promise was dishonest, but Wells Fargo (D) distinctly gained the upper hand by
inducing the Dixons (P) to open themselves up to a foreclosure action. Wells Fargo
(D) not only should have known that the Dixons (P) would take these steps, but also
must have intended that the Dixons (P) do so. Wells Fargo’s (D) decision to
foreclose without warning was unseemly conduct at best. In the opinion of this
court, such conduct presents an identifiable occasion for applying the principle of
promissory estoppel.
There remains the concern that, by imposing precontractual liability for specific
promises made during preliminary negotiations, courts will restrict parties’
freedom to negotiate by reading in a duty to bargain in good faith not recognized at
common law. This concern can be effectively minimized by limiting the promisee’s
recovery to his or her reliance expenditures. Motion to dismiss denied.
Analysis:
Promissory estoppel is equitable in nature and provides a remedy through the

enforcement of a gratuitous promise. Promissory estoppel is distinct from equitable
estoppel, in that the representation at issue is promissory rather than a
representation of fact. Equitable estoppel, which is founded on principles of fraud,
does not require a promise. It is a defensive doctrine preventing one party from
taking unfair advantage of another when, through false language or conduct, the
person to be estopped induced another to act in a certain way, with the result being
that the other person suffers some injury. The five essential elements of equitable
estoppel are (1) a false representation or concealment of material facts; (2) the
143
representation
115
was known to be false by the party making it, or the party was negligent in not
knowing its falsity; (3) it was believed to be true by the person to whom it was
made; (4) the party making the representation intended that it be acted on, or the
person acting on it was justified in assuming such intent; and (5) the party asserting
estoppel acted on the representation in a way that would result in substantial
prejudice unless the claim of estoppel succeeds.
117

(Manufacturer) v. (Buyer)
47 F.3d 39 (2nd Cir. 1995)
PROMISSORY ESTOPPEL COVERS WORK DONE IN RELIANCE ON

PROMISES THAT THE PARTIES WILL ENTER INTO A CONTRACT
INSTANT FACTS A computer hardware manufacturer produced equipment for

a buyer without entering into a contract, and sued for promissory estoppel.
BLACK LETTER RULE A party who relies on a promise that a contract is

forthcoming may recover under a promissory estoppel theory.
PROCEDURAL BASIS
Appeal of district court judgment on a claim for damages based on promissory
estoppel.
144
FACTS
Cyberchron Corp. (Cyberchron) (P) provides customized computer hardware.
Calldata Systems Development, Inc. (Calldata) (D) is a subsidiary of Grumman
Data Systems Corp. (Grumman) (D). Grumman (D) had a contract with the U.S.
Marine Corps to provide a computer system called ATACC, which consisted of a
video processor, a work station, and a monitor (the “Equipment”). In 1989 and
1990, the parties were involved in extensive negotiations for Cyberchron (P) to
produce the Equipment. The parties were never able to agree on the weight of the
Equipment and the penalties to be assessed against Cyberchron (P) for delivering
Equipment that exceeded the agreed weight. After preliminary negotiations,
Grumman (D) delivered a purchase order dated May 15, 1990 to Cyberchron (P)
that set forth a total weight per unit of 145 pounds and provided for severe
penalties for exceeding that weight. Cyberchron (P) did not agree to those terms.
Cyberchron (P) had begun producing the Equipment, despite the absence of an
agreement. In a June 26, 1990 letter, Grumman (D) and Calldata (D) encouraged
Cyberchron (P) to continue to perform its “contractually binding obligations” under
the purchase order. Beginning in mid-July 1990, Grumman (D) directed Cyberchron
(P) to continue producing the Equipment, assuring Cyberchron (P) that the details of
the agreement would be resolved later. On July 30, Cyberchron (P) submitted a
payment request to Grumman (D). Grumman’s (D) business manager testified that
Grumman (D) would have paid the request but for a court order in another case
barring Grumman (D) from paying Cyberchron (P). That order was subsequently
vacated. On September 6, 1990, Calldata (D) directed Cyberchron (P) to show
cause why the purchase order should not be terminated. On September 25, 1990,
Calldata (D) rejected Cyberchron’s (P) detailed response and terminated the
purchase order effective immediately. In August 1990, Grumman (D) commenced
negotiations with other suppliers of Equipment. On September 26, Grumman (D)
entered into a contract with another supplier for inferior equipment that weighed
more. Cyberchron (P) sued for breach of contract, quantum meruit, and promissory
estoppel. The district court found that no enforceable contract existed, and
dismissed Cyberchron’s (P) breach of contract claim and Calldata’s (D) contract-
based counterclaim. The court dismissed the quantum meruit claim on the ground
that Calldata (D) did not receive any benefit. The court found for Cyberchron (P)
on its promissory estoppel claim and awarded $162,824.10 for labor and materials
incurred after July 15, 1990 and before September 25, 1990. The court denied
recovery for lost profits and
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for administrative and general overhead. Cyberchron (P) appealed, claiming it

should recover damages incurred before July 15, 1990 and for overhead. Calldata
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(D) appealed the promissory estoppel judgment.
ISSUE
May a party who relies on a promise that a contract is forthcoming recover under a
promissory estoppel theory?

(Mahoney, J.) Yes. Promissory estoppel has three elements: (1) a clear and
unambiguous promise; (2) reasonable and foreseeable reliance by the party to
whom the promise is made; and (3) an injury sustained by the party asserting the
estoppel by reason of the reliance. Sometimes an unconscionable injury is required
to fulfil the third requirement. Calldata (D) pressured Cyberchron (P) to produce
the Equipment and assured Cyberchron (P) that if it did the work, the negotiation
problems would be resolved. Therefore, we agree with the district court that
Cyberchron (P) reasonably relied on this promise and that Grumman’s (D) pressure
on Cyberchron (P) and abrupt termination of the transaction to buy inferior
Equipment from another company was unconscionable. However, we reject
Cyberchron’s (P) argument that its recovery should extend prior to July 15, 1990,
when Calldata (D) made the promises. Cyberchron (P) argues that it should have
been awarded overhead and “shutdown” expenses. We believe that recovery of
reasonable overhead costs is allowed when there is a demonstrable past history of
ongoing business operations. We do not believe proof that a specific alternative
project would have absorbed the overhead costs at issue is necessary. Recovery is
allowed as long as Cyberchron (P) normally allocates such expenses to specific
projects in accordance with its standard cost accounting practices. Affirmed, but
remanded for a redetermination of damages.
Analysis:
As an equitable doctrine, promissory estoppel can be used by courts to award what

seems like contract damages, even if no contract exists. Ordinarily, negotiations do
not constitute an offer. Here, however, Calldata (D) went beyond mere negotiations.
It made express promises to Cyberchron (P) that the parties would enter into an
agreement, presumably with terms acceptable to Cyberchron (P), if Cyberchron (P)
produced the Equipment. The key promise at issue here is Calldata’s (D) promise
to Cyberchron (P) that if Cyberchron (P) continued to produce the Equipment, the
parties could resolve the weight issue and enter into an enforceable contract.
Cyberchron (P) relied on this promise and expended considerable funds to build
the Equipment, only to have the rug pulled out from under it when Calldata (D)
contracted with someone else. While, as a legal matter, Cyberchron (P) did not
have to prove that Calldata (D) was negotiating in bad faith, Calldata’s (D) bad
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faith certainly helped Cyberchron’s (P) case.
CASE VOCABULARY
PROMISSORY ESTOPPEL: A cause of action available when no contract exists
between the parties, but one party has made a promise to the other party on which
the other party reasonably relied to its detriment.
QUANTUM MERUIT: A cause of action available when no express contract exists
between the parties, but one party confers a benefit on the other party; the courts
may imply a contract and impose a duty on the recipient of the benefit to pay for it
to prevent unjust enrichment.
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(Prospective Lessee) v. (Mall Developer)
795 F.2d 291 (3rd Cir. 1986)
COURT OF APPEALS APPROVES A CONTRACT TO NEGOTIATE TOWARDS

AN AGREEMENT
INSTANT FACTS A mall developer abruptly cancels lease negotiations with a

prospective tenant.
BLACK LETTER RULE An agreement to negotiate in good faith toward a

prospective contract may be binding if it satisfies the conditions to a binding
contract.
PROCEDURAL BASIS
Appeal from a district court judgment for the defendant in a breach of contract
action.
147
FACTS
Frank Grossman (Grossman) (D) is a real estate developer with ownership or
controlling interests in a number of firms. He was in the process of revitalizing a
mall in Pennsylvania when he contacted Channel Home Centers (Channel) (P)
through one of his firms, Tri-Star Associates (Tri-Star). Tri-Star wrote to Channel’s
(P) Director of Real Estate, Richard Perkowski, to see if Channel (P) would be
interested in leasing a site at the mall. Channel (P) ultimately expressed a desire to
lease the site after a preliminary tour and a meeting with Grossman (D) in which
some of the lease terms were discussed. Grossman (D), in turn, asked Channel (P)
to draft a letter of intent which might help him obtain financing for the project.
Channel (P) drafted the letter and Grossman (D) signed it. The letter contained a
number of lease terms including a provision requiring Grossman (D) to take the site
off the rental market and to negotiate with Channel (P) to completion. In addition,
Grossman (D) claims that Channel’s (P) president and vice-president agreed orally
that Channel (P) would submit a draft lease within thirty days. This agreement is
disputed by Channel (P). However, subsequent to the letter of intent, both parties
began making the necessary arrangements and acquiring the necessary approvals to
facilitate an agreement between the parties. Channel (P) also submitted a draft
lease about a month after signing the letter of intent. After some further
communications between the parties, Grossman (D) and Channel’s (P) lawyer
planned a conference call to discuss some of the issues concerning the lease. Both
parties thought that the other party was responsible for reinitiating contact between
them. [Here’s where it gets interesting] During this time, another retail chain, Mr.
Good Buys, contacted Grossman (D) about leasing a space at the mall. In fact,
Grossman (D) gave them a tour of the proposed Channel (P) site and discussed the
terms of a prospective lease with them. Soon after, Grossman (D) terminated their
negotiations with Channel (P), claiming that Channel (P) had failed to submit a
signed and mutually acceptable lease within the thirty day limit. The next day,
Grossman (D) executed a lease with Mr. Good Buys at a much higher rate than that
to which Channel (P) had agreed. Channel (P) subsequently sued Grossman (D) for
breach of contract. They claimed that the letter of intent was a binding agreement
between the parties to negotiate in good faith. The
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district court found for Grossman (D), holding that there was no binding agreement
between the parties. Channel (P) appeals.
ISSUE
Can a letter of intent bind the parties to a contract if an agreement has not yet been
reached?
148
(Becker) Yes. Channel (P) claims that the letter, along with the surrounding
circumstances, constituted an agreement to negotiate in good faith. Grossman (D)
claims that the letter is not binding since it was not backed by an agreement to the
underlying lease transaction. He claims that the letter is unenforceable evidence of
preliminary negotiations between the parties. In addition, Grossman (D) argues that
the letter would be unenforceable even if it was considered a contract because it
was not supported by consideration. Grossman’s (D) first argument misconstrues
Channel’s (P) claim, however. Channel (P) does not claim that Grossman (D)
breached an agreement to lease the mall site. They claim that Grossman (D)
breached an agreement to negotiate in good faith toward the desired goal of a
binding lease. Pennsylvania law sets the following requirements for an enforceable
contract: 1) both parties must manifest an intention to be bound by the terms of the
contract [offer and acceptance], 2) the terms of the contract must be sufficiently
definite, and 3) the contract must be supported by consideration. Consideration may
be a benefit granted to the promisor or a detriment suffered by the promisee. In
either case, consideration must be bargained for and granted in exchange for the
original promise. No Pennsylvania court has decided whether an agreement to
negotiate in good faith can be valid. However, other jurisdictions have approved
such agreements. As a result, we will consider whether this particular agreement
meets the requirements for a binding contract. First, the letter contains a promise by
Grossman (D) to take the property off the rental market and to negotiate in good
faith. After agreeing to the letter, both parties endeavored to satisfy the
contingencies which would enable them to sign a lease agreement. Channel (P)
began making the necessary administrative, architectural, and marketing
arrangements while Grossman (D) applied for the necessary zoning approvals. As a
result, both parties acted on the letter as if it were a serious manifestation of their
desire to enter into an agreement. Second, the letter itself-is-sufficiently definite to
constitute an agreement since it calls for the removal of the property from the rental
market and for the negotiations to continue to completion. However, the letter must
still be supported by consideration. In this case, Grossman (D) asked Channel (P)
to draft the letter so that he could show it to potential lenders. Grossman (D) was
hoping that a commitment from a large store like Channel (P) would help it to get
financing. Consequently, the execution and tender of the letter was of substantial
value to Grossman (D). Similarly, Channel (P) executed and tendered the letter in
order to garner Grossman’s (D) commitment to the terms of the negotiation. It was
of substantial value to Channel (P) to have a preliminary commitment, at the very
least, to a good faith negotiation over the lease agreement. As a result, each party
received a benefit which counted as consideration for their respective obligations.
With this in mind, there are two issues for the trial court to resolve on remand.
149
First, while the evidence permits the conclusion that there was a binding contract
between the parties, it does not require it. There must be a full trial on the merits in
order to-make this determination. Second, the issue of whether there was a time
limit on the parties’ negotiations is as yet unresolved since the district court never
reached the factual issues in the case. This issue must also be resolved at trial.
Reversed and remanded for further proceedings consistent with this opinion.
Analysis:
This opinion is another excellent review of many of the principles of contract

formation. The court notes early on that negotiations between parties or an
agreement to enter into a contract in the future are not contracts in themselves.
However, in this case, we see that while agreements to agree will generally not be
enforced, if they can be characterized as agreements to negotiate in good faith, and
the three requirements for a valid contract are present, the
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agreement will be enforced. An agreement to negotiate in good faith is an important

tool in business, where most contracts are skeletal in nature because of the fast-
paced world within which transactions are completed. Even though a formal
agreement on all essential terms is not reached, the parties are able to go forward
with the overall transaction confident in the knowledge that they have agreed to
negotiate in good faith a full-fledged agreement.
CASE VOCABULARY
LETTER OF INTENT: A letter of intent is exactly what it sounds like—it is a
preliminary communication between parties to a prospective agreement which
demonstrates their desire to do business with each other.
123

(Lessee) v. (Lessor)
155 Vt. 44, 582 A.2d 123 (1990)
VERMONT SUPREME COURT FINDS AN OPTION AGREEMENT

SUFFICIENTLY DEFINITE TO BIND THE CONTRACTING PARTIES
150
INSTANT FACTS A lessor and lessee cannot reach an agreement when the
lessee attempts to exercise a renewal option.
BLACK LETTER RULE An option provision may be sufficiently definite to be

binding if it contains terms which enable the parties to satisfy their subsequent
agreement.
PROCEDURAL BASIS
Appeal from a trial court grant of summary judgement for the plaintiff in a breach of
contract action.
FACTS
Toys, Inc. (Toys) (P) leased a space in a shopping mall from F.M. Burlington
Company (Burlington) (D). Toys (P) had a five-year lease with an option to renew
for another five years. If they chose to exercise the option, Toys (P) had to give
Burlington (D) one year’s notice. In addition, the option stated that the rental price
for the second five-year period would be renegotiated at the prevailing rate within
the mall when the option was exercised. Toys (P) notified Burlington (D), with one
year’s notice, that they wanted to renew their lease. Burlington (D) acknowledged
the renewal and quoted Toys (P) the prevailing lease rate at the mall. Toys (P)
responded with a letter which recounted a conversation they had with Burlington’s
(D) leasing agent. The leasing agent suggested that Toys (P) would be able to
negotiate their lease rate, regardless of the prevailing rate. This suggestion was
affirmed by Burlington (D) in their response. They sent Toys (P) a letter inviting
them to renegotiate their rate even though the prevailing rate was still binding. In
the ensuing negotiation, Toys (P) and Burlington (D) agreed on a rate and
Burlington (D) sent Toys (P) a letter describing the terms of the agreement and
giving them two weeks to accept. From this point on, the parties failed to come to
an agreement and Toys (P) ultimately moved out of the mall and sued Burlington
151
(D) for breach of contract. Burlington (D) claims, among other things, that the
option agreement was not sufficiently definite to be enforceable. He claims that it
was simply an agreement to agree. The trial court granted Toys’ (P) motion for
summary judgement on this issue. Burlington (D) appeals.
ISSUE
Can an option agreement be sufficiently definite as to bind the parties to its terms?
(Dooley) Yes. An option agreement can be binding if it contains all of the material
and essential terms to be incorporated in the subsequent agreement. At the very
least, it must contain provisions which will help the parties to arrive at these terms.
This is consistent with the Restatement (Second) of Contracts approach. The
Restatement notes that the terms of a contract may be sufficiently definite even if
they permit the parties to arrive at certain terms during the course of performance.
In addition, courts will interpret these provisions toward the
124
goal of preserving an enforceable agreement if possible. In this case, the option

agreement provided for a negotiation to take place over the new lease rate.
Burlington (D) claims that this provision is unenforceable because there was no
boundary to the parties’ negotiations. However, the agreement states that
negotiations will take place at the then prevailing market rate. This is the premise
upon which the parties actually negotiated when the time came. In addition, neither
party claims that the prevailing rate was miscalculated. If nothing else, any
ambiguities which the agreement did give rise to should be interpreted against
Burlington (D) since they drafted the document. The trial court judgement is
affirmed on this issue.
Analysis:
Note that this case was remanded for a determination as to whether Toys (P)
actually exercised the option and whether it later waived the right of renewal.
However, in this portion of the opinion, Justice Dooley applies the standard
methods of contract interpretation to an option agreement. He examines the terms of
the agreement as well as the behavior of the parties in order to determine whether
they had a binding contract. His subsequent interpretation stays true to his
announced goal of preserving the agreement despite its inherent defects. This goal
is also evident in the promissory estoppel cases, which look very much like the
court is finding a tacit agreement between the parties in order to compensate the
party who was wronged.
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125

(Shipping Company) v. (Iron Ore Producer)
52 Ohio St.3d 232, 556 N.E.2d 515 (1990)
COURT CAN DETERMINE CONTRACT PRICE WHEN PARTIES CAN’T

AGREE
INSTANT FACTS After about 25 years of doing business pursuant to a contract,

the parties could no longer agree on a price to be used.
BLACK LETTER RULE If parties to a contract have not agreed on the price,
the court can set a price so long as the parties intend to be bound by the contract.
PROCEDURAL BASIS
Appeal of action for declaratory judgment setting a shipping rate.
FACTS
Oglebay Norton Co. (Oglebay) (P) was a shipping company. In 1957, Oglebay and
Armco, Inc. (Armco) (D) entered into a contact requiring Oglebay to have adequate
shipping capacity and requiring Armco (D) to use that capacity to transport iron ore
on the Great Lakes. The contract provided for two price mechanisms. The primary
price mechanism was for Armco (D) to pay the regular net contract rates as
recognized by the leading iron ore shippers in that season. If there were no regular
net contract, under the secondary price mechanism, the parties were required to
mutually agree upon a rate, taking into consideration the rate being charged by the
leading independent vessel operators. During the next 23 years, the parties
modified the contract four times, requiring substantial capital investment by
153
Oglebay (P) to meet Armco’s (D) requirements. Until 1983, the parties established
the shipping rate by referring to a rate published in Skillings Mining Review. In
1984, after a downturn in the iron ore industry, the parties negotiated a mutually
satisfactory rate. However, after that the parties could not agree on a rate. Oglebay
(P) filed an action for declaratory relief asking the court to declare the contract rate
to be the correct rate or, in the absence of a contract rate, to declare a reasonable
rate. Armco (D) denied that the rate sought by Oglebay (P) was the contract rate
and denied that the court had jurisdiction to declare a rate. The parties continued to
perform. In 1987, Armco (D) filed a counterclaim seeking a declaration that the
contract was no longer enforceable because both the primary and the secondary
pricing mechanisms broke down. After 1985, Skillings Mining Review no longer
published a new rate and the rate charged by the leading independent vessel
operators was no longer publicly available. In 1987, the trial court issued a
declaratory judgment, ruling that $6.25 per gross ton was the rate for the 1986
season. The court further held that if the parties could not agree on a rate for
upcoming seasons, the court would appoint a mediator to help the parties agree.
The court of appeals affirmed.
ISSUE
(1) If parties to a contract have not agreed on the price, is the contract still binding?
(2) If so, can the court set a price?
126

(Per curiam) (1) Yes, if there is evidence that the parties intended to be bound by
the contract. Here, the district court properly concluded that the parties intended to
be bound by the 1957 contract even though the two pricing mechanisms were no
longer available. This is based on the parties’ long-standing close business
relationship, including joint ventures, interlocking directorates, and Armco’s (D)
ownership of Oglebay (P) stock. (2) Yes, the court may set the price if the parties
intended to be bound by the contract Restatement (Second) § 33, comment e
provides that where the parties intend to conclude a contract for the sale of goods
and the price is not settled, the price is a reasonable price at the time of delivery if
the price is to be fixed by some standard as set or recorded by a third person or
agency and it is not so set or recorded. Ordering specific performance of the
contract here was necessary because the dramatic changes in the shipping rates and
the length of the contract would make it impossible to award Oglebay (P) accurate
damages. Appointing a mediator neither added to nor detracted from the parties’
obligations under the contract and was within the court’s equitable jurisdiction.
Affirmed.
154
Analysis:
The court notes here that equity is available when legal damages are too
speculative, recovery of monetary damages is inadequate to compensate the
aggrieved party, and the parties intend to be bound by the contract. While ordinarily
price is a material term that would make a contract void if it is missing, here the
parties had been doing business pursuant to their contract for about twenty-five
years. If the two pricing mechanisms had failed back in 1957, the court likely
would not have ordered specific performance, but would have awarded damages
for breach of contract and declared that the contract was no longer enforceable. The
parties knew they left the price out of the contract, but formulated two ways in
which they would determine the price. Thus, they agreed to agree later about the
price. The common law rule is that an agreement to agree does not result in a
binding contract. Generally, because the parties intend to fill the gap themselves,
the court may not use a gap-filler. A gap-filler is a term courts supply either
because the parties would have agreed on the term or because the term seems fair
and reasonable. Here, the court used a gap-filler, a reasonable price, and ordered
the parties to negotiate further prices in good faith. UCC § 2–204(3) provides that
even if one or more terms are left open, a contract for the sale of goods does not
fail for indefiniteness if the parties have intended to make a contract and there is a
reasonably certain basis for giving an appropriate remedy.
CASE VOCABULARY
SPECIFIC PERFORMANCE: An equitable remedy that compels a party who has
failed or refused to perform a valid contractual obligation to fulfill that obligation
by performing the contract.
155
127
156
157
CHAPTER THREE
158
Statutes of Frauds

Instant Facts: Klewin (P) entered into an oral agreement with Flagship (D) to act
as construction manager on a project, and Flagship (D) claimed that enforcement of
that agreement was barred by the Statute of Frauds.
Black Letter Rule: An oral contract that does not contain an express term stating
that performance is to have a specific duration beyond one year is the functional
equivalent of a contract of an indefinite duration and is enforceable because it is
outside of the Statute of Frauds.
Instant Facts: Langman and Stowe gave some land to the Alumni Association
through a deed that provided for the Association to assume any debts on the
property.
Black Letter Rule: A grantee of a deed who assumes an existing mortgage is not a
surety because he or she does not make a promise to the mortgagee to pay the debt
of another, but instead promises the grantor to pay to the mortgagee the debt the
grantee owes to the grantor.
Instant Facts: Central Ceilings (P) obtained a promise from National Amusements
(D) that National (D) would pay Central (P) the amounts due from a contractor, and
National (D) claimed that the agreement was barred by the Statute of Frauds as a
promise to answer for the debt of another.
Black Letter Rule: A promise to pay a debt owed by another is not within the
Statute of Frauds if the leading object of the promise is to confer some benefit on
the promisor.
Instant Facts: Crabtree (P) sued Elizabeth Arden (D) for breach of contract, and
Arden (D) claimed that the Statute of Frauds barred enforcement of the contract.
Black Letter Rule: The Statute of Frauds does not require that the memorandum of
an agreement be in only one writing, provided that the multiple writings are linked
by a reference within them to the same subject matter or transaction.
Beaver v. Brumlow
Instant Facts: Brumlow (D) sought specific performance of an agreement to sell
real estate, and Beaver (P) claimed that enforcement of the agreement was barred
159
by the Statute of Frauds.
Black Letter Rule: When an oral contract that is not enforceable under the Statute
of Frauds has been performed to such an extent that it would be inequitable to deny
enforcement of the contract, the court may consider the contract removed from the
operation of the Statute of Frauds.
Monarco v. Lo Greco
Instant Facts: Christie orally agreed to work his parents’ farm in exchange for
having it passed on to him, but the father passed it to his grandson.
Black Letter Rule: The doctrine of estoppel can be applied to keep a party from
relying on the Statute of Frauds to block an oral contract when refusal to enforce a
given oral contract will result in fraud, as demonstrated by either unconscionable
injury after one party has been induced by the other to seriously change his or her
position in reliance on the contract, or by one party receiving unjust enrichment out
of reliance on the statute.
128

Instant Facts: St. Ansgar (P) failed to obtain written confirmation of an oral
agreement to buy grain, and then Streit (D) refused to accept delivery of the grain.
Black Letter Rule: The question of whether the written confirmation of an oral
contract was received in a reasonable time is a question of fact for the jury.
129

(Construction Manager) v. (Developer)
220 Conn. 569, 600 A.2d 772 (1991)
IF AN AGREEMENT COULD BE PERFORMED WITHIN A YEAR, IT DOES

NOT HAVE TO BE IN WRITING
160
INSTANT FACTS Klewin (P) entered into an oral agreement with Flagship (D)
to act as construction manager on a project, and Flagship (D) claimed that
enforcement of that agreement was barred by the Statute of Frauds.
BLACK LETTER RULE An oral contract that does not contain an express term
stating that performance is to have a specific duration beyond one year is the
functional equivalent of a contract of an indefinite duration and is enforceable
because it is outside of the Statute of Frauds.
PROCEDURAL BASIS
Certified question from the Second Circuit Court of Appeals.
FACTS
Flagship (D) was the developer of a large building project. At a meeting, Klewin
(P) quoted a percentage fee for acting as construction manager on the project, and
the meeting was concluded with a handshake and the words “we’ve got a deal.”
Flagship (D) and Klewin (P) made a written agreement for Klewin’s (P) services
for the first phase of construction, which began in May 1987. Flagship (D) became
dissatisfied with Klewin’s (P) services, and in March 1988 engaged another firm to
act as construction manager. Klewin (P) sued Flagship (D) for breach of contract.
Flagship (D) moved for summary judgment, alleging that enforcement of the
agreement with Klewin (P) was barred by the Statute of Frauds. The district court
granted summary judgment on the ground that the contract was not of indefinite
duration or open-ended, because full performance would take place when all the
phases of the project were completed. The court also held that, as a matter of law,
the contract could not possibly have been performed within one year. In making that
conclusion, the court focused on the size of the project and on Klewin’s (P)
admission that the entire project was intended to be constructed in three to ten
years.
161
ISSUE
Was enforcement of the contract barred by the Statute of Frauds?

(Peters, C.J.) No. An oral contract that does not contain an express term stating that
performance is to have a specific duration beyond one year is the functional
equivalent of a contract of an indefinite duration, and is enforceable because it is
outside of the Statute of Frauds. The Statute applies to contracts that have a time for
performance definitely fixed at more than one year. If no time is definitely fixed, but
full performance could occur within one year, the contract is not within the Statute.
The one-year provision has been much criticized. The rationale for the provision is
unclear. Some historians have suggested that the provision’s original inclusion was
to prevent the court
130
from having to rely on the memory of witnesses. Others have suggested that the
provision is intended to provide evidence of a continuing contract, or to prevent
perjury by witnesses who have forgotten the details of the contract. Whatever the
purpose, the one-year provision no longer serves any purpose well, and courts have
regarded it with disfavor. It is read narrowly and literally.
Connecticut courts have long held that the one-year provision does not apply unless
it appears from the agreement itself that it is not to be performed within one year.
The limitation does not apply to contracts that may be performed within the year.
The limitation does not turn on how subsequent events happen, or on the
expectations of the parties as to the probabilities. Contracts of an uncertain duration
are excluded, and only those contracts whose performance cannot possibly be
completed within one year are included. The Legislature’s repeated re-enactment of
the Statute of Frauds in substantially the same form suggests legislative approval of
this line of precedent and the restrictive interpretation of the one-year provision.
In the case at bar, the only question is what meaning to give the term “possibly” in
the application of the Statute of Frauds to contracts “whose contracts cannot
possibly be performed within a year.” The district court held that the term includes
contracts such as the one involved here, in which no definite time period is
specified, but it is realistically impossible for performance to be completed within
one year. The correct interpretation, however, is that “possibly” includes only those
contracts whose completion within a year would be inconsistent with the express
terms of the contract. Flagship (D) argues that this possibility must be a
“reasonable” one, but no case law has established a “reasonable possibility”
162
requirement. The one-year provision is an anachronism, and should not be
expanded. A collateral inquiry into the reasonable possibility of completion within
a year would be such an expansion, and would waste judicial time on an inquiry
that has nothing to do with the merits of the case. The answer to the certified
question is that the contract at issue is not within the Statute of Frauds.
Analysis:
The court dismisses a reading of the Statute that would require some reasonable
probability that performance could be completed within a year before the one-year
limitation would not apply. In this case, such a reasonableness requirement
probably would have put the contract within the Statute, since even Klewin (P)
acknowledged that the full project would take between three and ten years. The
court clearly does not approve of the one-year limitation, and that disapproval may
be what prevents it from recognizing a time limitation that clearly is implicit in the
agreement.
CASE VOCABULARY
CERTIFIED QUESTION: A point of law on which a federal appellate court seeks
guidance from wither the U.S. Supreme Court or the highest state court by the
procedure of certification.
131

(Previous Owner) v. (New Owner)
247 Va. 491, 442 S.E.2d 669 (1994)
A GRANTEE OF A DEED WHO ASSUMES AN EXISTING MORTGAGE IS

NOT A SURETY
163
INSTANT FACTS Langman and Stowe gave some land to the Alumni
Association through a deed that provided for the Association to assume any debts
on the property.
BLACK LETTER RULE A grantee of a deed who assumes an existing

mortgage is not a surety because he or she does not make a promise to the
mortgagee to pay the debt of another, but instead promises the grantor to pay to the
mortgagee the debt the grantee owes to the grantor.
PROCEDURAL BASIS
Appeal from judgment in action for damages.
FACTS
Dr. M.W. Langman (P) and Caleb Stowe were owners, in common, of a commercial
property in Maryland. Wanting to make a gift to the University of Virginia, Langman
(P) and Stowe conveyed the property to the Alumni Association (D) in 1986.
Earlier that year, the property had been appraised at $775,000. The deed to the
Association (D) stated that the property was subject to a lien. This lien resulted
from a $600,000 debt that Langman (P) and Stowe incurred in purchasing the
property. The deed also stated that “[t]he Grantee [namely, the Association (D)]
does hereby assume payment of such obligation and agrees to hold the Grantors
[Langman (P) and Stowe] harmless from further liability on such obligation.” While
the Association (D) did not sign this deed, it (D) did acknowledge the gift and have
the deed recorded. In a short time, the cost of operating the property exceeded the
income it generated. Stowe continued to manage the property, but only continued
payments on the outstanding loan until the summer of 1989. The lender then
demanded payments from Langman (P). She (P) cured this default and then sued the
Association (D), claiming that it was its (D) responsibility to reimburse her (P)
under the deed. The trial court held that the Association (D) “did not knowingly
accept the gift with contractual conditions.” Also, the court found that the
assumption clause was placed in the deed by mistake, and that the Association had
“sufficiently rejected the gift to require a finding by the court that the conveyance is
ineffective.” Thus, the assumption clause was unenforceable and the attempted
conveyance was a nullity. Langman (P) appealed.
ISSUE
Does a grantee who assumes an existing mortgage through a deed become a surety
falling under the suretyship clause of the Statute of Frauds?
164
(Keenan) No. A grantee of a deed who assumes an existing mortgage is not a surety
because he or she does not make a promise to the mortgagee to pay the debt of
another, but rather promises the grantor to pay to the mortgagee the debt the grantee
owes to the grantor. The trial court erred in holding that the Statute of Frauds does
not bar enforcement of an unsigned mortgage assumption clause. The Association
(D) claims that the “suretyship” provision of the
132
Statute requires that it (D) sign the agreement before assuming any debts. Further,
the Association (D) claims that Langman (P) would still remain secondarily liable
to the lender for the mortgage debt, even if there were an effective assumption by
someone else. Because of this, the Association (D) claims that its (D) agreement to
assume the mortgage was a “collateral” agreement falling within the Statute of
Frauds. Specifically, the state code equivalent of the Statute provides that “unless a
promise, contract, [or] agreement … is in writing and signed by the party to be
charged or his agent, no action shall be brought … [t]o charge any person upon a
promise to answer for the debt, default, or misdoings of another.” The Association
(D) is incorrect. A grantee that assumes an existing mortgage is not a surety. The
Association (D) did not promise the lender that it (D) would pay Langman’s (P)
debt. Instead, the Association (D) promised Langman (P) that it (D) would pay to
the lender whatever it owed to Langman (P). This is an original, not collateral,
undertaking. The Association (D) received a direct benefit and did not merely
serve as a surety for Langman (P) and Stowe. Thus, the Statute of Frauds did not
bar enforcement of the mortgage assumption clause, and the Association is
responsible for paying the debt. Trial court judgment affirmed.
Analysis:
There are two main, recurring situations in which courts have held that no
suretyship relationship exists. In both cases, the courts make their decisions on the
basis of a lack of a duty owed by a principal debtor. One situation involves the
circumstances found here, where the primary debtor (Langman (P)) renders
performance while relying on the promisor’s (Association’s (D)) credit. The other
situation involves a novation, or the adding of a new party to an earlier contract. In
both situations, the promisor is not a surety, so the promise in question falls outside
the Statute. There are, however, several more exceptions by which a promise falls
outside the suretyship provision, even though the promisor is a surety. One example
is where the debtor had no actual or constructive notice that the promisor was a
surety. Other examples include when the surety makes the promise to the principal
and not to the debtor, and when the promisor agrees to render performance that has
nothing to do with the promise he or she has just made.
165
CASE VOCABULARY
GUARANTOR: One who makes a promise or guarantee to become liable for the
debt of another.
NULLITY: That which is legally invalid.
PAROL: Oral or verbal.
SURETY: One who at another person’s request becomes responsible for the
performance by that other person of some act for the benefit of a third person; also,
a person who is primarily liable for the performance of another’s obligation or the
payment of another’s debt.
133

(Subcontractor) v. (Theater Owner)
70 Mass.App.Ct. 172, 873 N.E.2d 754 (2007)
A PROMISE TO PAY THE DEBT OF ANOTHER USUALLY FALLS WITHIN

THE STATUTE OF FRAUDS
INSTANT FACTS Central Ceilings (P) obtained a promise from National

Amusements (D) that National (D) would pay Central (P) the amounts due from a
contractor, and National (D) claimed that the agreement was barred by the Statute
of Frauds as a promise to answer for the debt of another.
BLACK LETTER RULE A promise to pay a debt owed by another is not

within the Statute of Frauds if the leading object of the promise is to confer some
benefit on the promisor.
PROCEDURAL BASIS
166
Appeal from a judgment for Central Ceilings (P).
FACTS
Old Colony Construction was the prime contractor on a theater complex project
owned by National Amusements (D). Old Colony subcontracted with Central
Ceilings (P) to perform carpentry work on the project. The project began to have
problems; there were delays project, and the deadline for completion passed. Old
Colony also had financial problems, and Central (P) became concerned about
whether it would receive payment. At a meeting of the three parties, Central’s (P)
representative said to National’s (D) representative, “You’ve got to guarantee me
the payment. You’ve got to guarantee me that I will get funded for this project.”
National’s (D) representative said that he would guarantee Central’s (P) payment.
Central (P) continued to work on the project. Some months later, National (D)
learned that it owed nothing more to Old Colony. National (D) resisted making any
payment to Central (P). Central (P) brought suit for breach of contract, and National
(D) claimed that enforcement of the guarantee promise was barred by the Statute of
Frauds.
ISSUE
Was enforcement of the promise to pay Central (P) barred by the Statute of Frauds?

(Peretta, J.) No. A promise to pay a debt owed by another is not within the Statute
of Frauds if the leading object of the promise is to confer some benefit on the
promisor. In such a case, the debt could be considered to be the debt of the
promisor. National (D) argues that the agreement is outside the Statute of Frauds
only if there was a novation; that is, if the agreement had released Old Colony from
its debt and substituted National (D). A novation is not required, however. The
“leading object” exception to the Statute of Frauds applies when there is a debt of a
third party, there is no novation, and the debt will be terminated by the performance
of the promise. An agreement made under those circumstances may be enforceable
if the facts and circumstances of the transaction show that the promise was given
primarily or solely to serve the promisor’s own interests. It has been recognized
that a property owner’s promise to pay subcontractors may, in the appropriate
circumstances, fall within the “leading object” exception.
134
There was evidence in this case that National (D) wanted to complete the theater
complex in time for it to be open on Labor Day; that the project was on a tight
167
schedule; and that Central (P) was one of the main subcontractors on the project
and had already started the work, and was one of the few, if not the only,
subcontractors capable of finishing the work on time. Under these circumstances,
the evidence was sufficient to conclude that National’s (D) promise was given to
secure Central’s (P) continued performance, and that satisfaction of Old Colony’s
obligation was incidental to the promise. Affirmed.
Analysis:
The court refers to the “leading object” rule as an “exception” to the Statute of
Frauds. It is probably more accurate to say that a promise that falls within the
leading object rule is not a “promise to answer for the debt of another,” and so not
subject to the Statute at all. In this case, Old Colony was essentially little more than
an intermediary between Central (P) and National (D). Central (P) did the work
that National (D) wanted, and National’s (D) payments to Old Colony were meant,
at least in part, to pay Central (P).
CASE VOCABULARY
NOVATION: The act of substituting for an old obligation a new one that either
replaces an existing obligation with a new obligation or replaces an original party
with a new party. A novation may substitute (1) a new obligation between the same
parties, (2) a new debtor, or (3) a new creditor.
135

(Former Employee) v. (Former Employer)
305 N.Y. 48, 110 N.E.2d 551 (1953)
THE STATUTE OF FRAUDS MAY BE SATISFIED BY MULTIPLE WRITINGS
INSTANT FACTS Crabtree (P) sued Elizabeth Arden (D) for breach of
contract, and Arden (D) claimed that the Statute of Frauds barred enforcement of
168
the contract.
BLACK LETTER RULE The Statute of Frauds does not require that the
memorandum of an agreement be in only one writing, provided that the multiple
writings are linked by a reference within them to the same subject matter or
transaction.
PROCEDURAL BASIS
Appeal from an order of the appellate division affirming a judgment for Crabtree
(P).
FACTS
Crabtree (P) began negotiations with Elizabeth Arden (D) for possible
employment. He told Elizabeth Arden (D) that he would require a three-year
employment agreement, with an annual salary of $25,000. Arden (D) countered
with an offer of a two-year contract, with an annual salary of $20,000 for the first
six months, $25,000 for the second six months, and $30,000 for the third year.
Under this proposal, Crabtree (P) would also receive $5000 per year for expenses.
Crabtree (P) replied that the offer was “interesting,” and Arden’s (D) secretary
prepared a memorandum. The memorandum was headed “EMPLOYMENT
AGREEMENT” with Crabtree (P), but was not signed. The memorandum read as
follows: “Begin 20000 … 6 months 25000 … 6 months 30000 … 5000 per year …
Expense money … (2 years to make good).” A few days later, Crabtree (D)
telephoned and telegraphed Arden (D) to accept the offer. When Crabtree (P)
reported for work, a payroll change card was made up and initialed by Johns, the
general manager of Arden (D). The payroll change card provided that Crabtree
would receive a salary of annual salary of $20,000 for the first six months, $25,000
for the second six months, and $30,000 for the third year. Crabtree (P) received the
scheduled salary increase after the first six-month period, but did not receive the
increase scheduled for the second year. Carstens, the comptroller of the
corporation, prepared and signed a payroll change card to effect the raise, but
Arden (D) refused to approve it. Crabtree (P) sued Arden (D) for breach of
contract. Arden (D) denied the existence of a contract and alleged that, even if a
contract existed, enforcement was barred by the Statute of Frauds. The court found
against Arden (D) and entered judgment for Crabtree (P). The judgment was
affirmed by the Appellate Division.
ISSUE
Was there a writing sufficient to constitute a memorandum of the agreement under
the Statute of Frauds?
169
(Fuld, J.) Yes. The Statute of Frauds does not require that the memorandum of an
agreement be in only one writing, provided that the multiple writings are linked by
a reference within them
136
to the same subject matter or transaction. Signed and unsigned writings may be read
together, provided that they clearly refer to the same subject matter or transaction.
Cases in which multiple writings have been signed by the party to be charged
present no difficulties. In cases such as the case at bar, when some writings have
been signed and some have not, there has been disagreement about what constitutes
a sufficient connection permitting the unsigned documents to be considered part of
the writing. Courts in some jurisdiction require that the signed writing contain some
reference to the unsigned. Without such a reference, the unsigned writing is not
considered. This requirement is based on the construction of the statute that
requires that the connection between the unsubscribed and signed writings appear
without reference to parol evidence. Courts in other jurisdictions state that a
sufficient connection is shown by a reference in them to the same subject matter or
transaction. This rule does not press the statute to an extreme of a literal and rigid
logic, and it is the rule we adopt. The danger of fraud and perjury usually attendant
upon the admission of parol evidence is at a minimum in this type of case. Parol
evidence will serve only to connect the documents. If that evidence does not
connect the documents, or suffice to show assent, the court may conclude that the
statute has not been satisfied.
In the case at bar, the Statute of Frauds applies because the contract would take
more than one year to perform. The unsigned office memo, the payroll change form
initialed by Johns, and the paper signed by Carstens all refer to the same
transaction, and all set out identical terms. The corroborative evidence as to
Arden’s (D) assent is also convincing. There also can be no doubt that the
documents contain all of the essential terms of the agreement. The only term in
dispute is the length of the contract, and the language “2 years to make good” can
have no purpose except to denote the length of the contract. Affirmed.
Analysis:
The Statute of Frauds is often looked at as a way of allowing a contracting party to

escape responsibility on a technicality. The formal requirements of the Statute of
Frauds are read flexibly in this case. A strict reading of the statute and the parol
evidence rules would allow Arden (D) to escape liability for breach of a
170
negotiated, bargained-for contract solely because the employees did not bother to
merge the various documents.
137
Beaver v. Brumlow
(Sellers of Real Estate) v. (Buyers)
231 P.3d 628 (N.M. Ct. App. 2010)
PART PERFORMANCE MAY BAR A STATUTE OF FRAUDS DEFENSE
INSTANT FACTS Brumlow (D) sought specific performance of an agreement to

sell real estate, and Beaver (P) claimed that enforcement of the agreement was
barred by the Statute of Frauds.
BLACK LETTER RULE When an oral contract that is not enforceable under
the Statute of Frauds has been performed to such an extent that it would be
inequitable to deny enforcement of the contract, the court may consider the contract
removed from the operation of the Statute of Frauds.
PROCEDURAL BASIS
Appeal from an order granting specific performance of an agreement to sell real
estate.
FACTS
Brumlow (D) worked for Beaver (P) in Beaver’s (P) horse transportation business.
Brumlow (D) asked Beaver (P) if he would sell some real estate Beaver (P) owned
to Brumlow (D). Beaver (P) agreed, and he and Brumlow (D) walked the
boundaries of the land that would be sold to Brumlow (D). No written agreement
was prepared. Beaver (P) allowed Brumlow (D) to rely on the representations that
Beaver (P) would sell the property. Brumlow (D) spent approximately $85,000
171
making improvements to the property, and Beaver (P) signed the
application/approval required for construction of a septic system. Brumlow (D)
and Beaver (P) met with Beaver’s (P) attorney to discuss the documentation of the
sale and a survey, but none was completed. Brumlow (D) asked repeatedly that the
transaction be formalized, but Beaver (P) responded, “We will work it out.”
Beaver’s (P) reluctance to formalize the sale may have been because the mortgage
encumbering the property had a “due on sale” clause. No agreement as to the price
for the property was ever finalized, and Brumlow (D) testified that he thought that
he would pay whatever the property was worth.
Four years after moving onto the property, Brumlow (D) quit working for Beaver
(P) and went to work for a competitor. Beaver (P) changed his mind about selling
the property to Brumlow (D) and attempted to restructure the agreement as a
“lease,” and then attempted to terminate the lease and evict Brumlow (D). Beaver
(P) prepared a document that called for Brumlow (D) to pay $400 per month. The
agreement did not contain the words “rent,” “rental,” “lease,” or “leasehold.”
Brumlow (D) paid, believing the money was payment for purchase of the property.
Beaver (P) refused to cash Brumlow’s (D) checks when he began writing “Land
Payment” on them. Brumlow (D) offered to pay the fair market value for the
property, but Beaver (P) refused and brought an action for ejectment against
Brumlow (D). Brumlow (D) counterclaimed for breach of contract and prima facie
tort.
The trial court found for Brumlow (D) on the prima facie tort claim. The court also
found that Beaver (P) had breached an agreement to sell the property, and held that
the Statute of Frauds did not apply. Brumlow (D) was given the choice between
money damages for the tort, or specific performance of the agreement to sell the
property. Brumlow (D) opted for specific performance.
138
ISSUE
Was Brumlow (D) entitled to specific performance?

(Vigil, J.) Yes. When an oral contract that is not enforceable under the Statute of
Frauds has been performed to such an extent that it would be inequitable to deny
enforcement of the contract, the court may consider the contract removed from the
operation of the Statute of Frauds. The main questions for a court faced with a case
such as this one are, was there actually an oral agreement such as that alleged by
the plaintiff, and if so would it be inequitable to deny enforcement to the
agreement? Beaver (P) concedes that proof of the oral contract is sufficient, and
172
Beaver (P) does not argue that the partial performance was insufficient to
overcome the Statute of Frauds. Beaver’s (P) sole argument is that the character of
Brumlow’s (D) performance was not sufficiently indicative of an oral agreement to
sell land to qualify as partial performance.
Part performance must be “unequivocally referable” to a contract in order to defeat
application of the Statute of Frauds. The part performance relied on to take a case
out of the Statute of Frauds should be of a character not only consistent with a
reasonable presumption that what was done was done on the faith of such a
contract, but also that it would be unreasonable to presume that it was done on any
other theory. The “unequivocally referable” concept does not mean that outside of
the contract there can be no other plausible explanation for the part performance.
The concept means that an outsider, knowing all of the circumstances of a case
except for the claimed oral agreement, would naturally and reasonably conclude
that a contract existed regarding the land, of the same general nature as that alleged
by the claimant. Two key specific factors in coming to such a conclusion are taking
possession of the property and making valuable, permanent, and substantial
improvements to it. Where these two factors coincide, specific performance will
usually result. In this case, Brumlow (D) went into possession of the specific land
Beaver (P) agreed to convey, with Beaver’s (P) consent. In reliance on the
agreement, Brumlow (D) spent approximately $85,000 in purchasing a home and
making improvements. We hold Brumlow’s (D) actions were sufficient part
performance in reliance on the oral agreement to take the agreement outside of the
Statute of Frauds.
Beaver (D) asserts that by ruling that the purchase price would be established by an
appraisal and that the terms of the payment would be in cash payable within thirty
days, the trial court formulated an agreement between the parties that never existed.
A claim for specific performance of a contract involving land will not fail for
failure to specify a price where the contract is otherwise complete and there has
been part performance of the contract by a transfer of possession. Price is a
material term in all contracts of sale, assignment, and the like. It must either be
fixed by the agreement itself, or means must be therein provided for ascertaining it
with certainty. Brumlow (D) proved to the satisfaction of the trial court by clear,
cogent, and convincing evidence that Beaver (P) entered into a contract to sell
specific land to Brumlow (D). In addition, there was significant specific part
performance by both Brumlow (D) and Beaver (P) in reliance on the contract they
made. Brumlow (D) assumed they would have to pay whatever the property was
worth, and Beaver (P) consulted an attorney to draft the sale documents. When
Brumlow (D) repeatedly asked that the contract be formalized, Beaver’s (P)
response was, “We will work it out.” It was through no fault of Brumlow (D) that
formal contract documents were not written with a set price and terms. Under these
173
circumstances, it was within the equitable jurisdiction of the trial court to set the
price at the fair market value as determined by an objective appraiser. We take
particular note that Beaver (P) does not dispute on appeal the fairness of the price
established by the trial court. Beaver (P) would have us invalidate what was
unquestionably a valid contract based on a mechanical application of contract law.
Affirmed.
139
Analysis:
Beaver’s (P) mistake was in not stopping the transaction as soon as it was learned
that there was a due on sale clause. Such a clause would not have prevented a sale,
or made it impracticable. Performance would, however, have been far less
attractive for Beaver (P). Stopping the transaction at an early date would have
prevented Brumlow (D) from engaging in such extensive performance.
CASE VOCABULARY
DUE ON SALE: A provision in a real property loan agreement that authorizes a
lender to accelerate the debt and declare the loan due and payable if all or any part
of the property, or an interest therein, is sold or transferred.
EJECTMENT: An action for recovery of physical possession of real estate.
PRIMA FACIE TORT: A tort action that allows the recovery of damages from a
person who does an otherwise lawful act, when the act was done with the intent to
injure the claimant and the reasons offered to justify the act are insufficient. The
primary purpose of prima facie tort is to provide a remedy when the alleged
tortfeasor’s conduct does not come within the definition of one of the established
classes of torts.
141
Monarco v. Lo Greco
(Owners’ Grandson) v. (Owners’ Son)
35 Cal.2d 621, 220 P.2d 737 (1950)
ONE CAN BE ESTOPPED FROM RELYING ON THE STATUTE OF FRAUDS

IF FAILING TO ENFORCE AN ORAL CONTRACT WILL RESULT IN FRAUD,
AS SHOWN BY UNCONSCIONABLE INJURY OR UNJUST ENRICHMENT
174
INSTANT FACTS Christie orally agreed to work his parents’ farm in exchange
for having it passed on to him, but the father passed it to his grandson.
BLACK LETTER RULE The doctrine of estoppel can be applied to keep a

party from relying on the Statute of Frauds to block an oral contract when refusal to
enforce a given oral contract will result in fraud, as demonstrated by either
unconscionable injury after one party has been induced by the other to seriously
change his or her position in reliance on the contract, or by one party receiving
unjust enrichment out of reliance on the statute.
PROCEDURAL BASIS
Appeal from judgment in action for partition and accounting after probate.
FACTS
Natale and Carmela Castiglia were married and lived in Colorado. Natale had a
grandson, Carmen Monarco (P). Carmela also had three children by a previous
marriage named John, Rosie and Christie (D). Rosie was married to Nick Norcia.
Mr. and Mrs. Castiglia moved to California and invested their assets, worth roughly
$4,000, in a half interest in agricultural property. Rosie and Nick Norcia acquired
the other half interest. Christie (D), a teenager at this time, moved with the family to
California. Monarco (P) stayed in Colorado. In 1926, Christie (D), then 18 years
old, decided to live on his own. Mr. and Mrs. Castiglia orally proposed to him that
if he stayed home and worked, then they would keep their property in joint tenancy
so that it would pass to the survivor. The survivor would then leave the property to
Christie (D) by will, only with some small devise to be made to John and Rosie.
Persuaded by this promise, Christie (D) stayed home and worked in the family
business, in exchange for room and board and some spending money. By doing this,
Christie (D) gave up any opportunity for further education or any chance of
accumulating property of his (D) own. After Christie (D) got married, Natale told
175
him (D) that he (D) would receive all the property when Mr. and Mrs. Castiglia
died. Mr. and Mrs. Castiglia placed all of their property in joint tenancy, and in
1941 they both executed wills according to their earlier agreement, with an
additional $500 to Monarco (P). While these wills did not refer to the earlier
agreement, Mr. and Mrs. Castiglia and Christie (D) all agreed to the terms. Natale
Castiglia eventually decided, however, to leave his half of the joint property to his
grandson, Monarco (P). Shortly before his death, Natale terminated the joint
tenancies and executed a will leaving all of his property to Monarco (P). Natale
died soon thereafter, with his and Carmela’s interest worth roughly $100,000. The
will was probated and the court distributed the property to Monarco (P). Monarco
(P) then filed for partition of the properties and an accounting. The trial court then
ordered a judgment for Christie (D), and Monarco (P) appealed.
142
ISSUE
Can a party be estopped from relying on the Statute of Frauds to block an oral
contract?

(Traynor) Yes. The doctrine of estoppel can be applied to keep a party from relying
on the Statute of Frauds to block an oral contract when refusal to enforce a given
oral contract will result in fraud. Such fraud can be demonstrated by either
unconscionable injury after one party has been induced by the other to seriously
change his or her position in reliance on the contract, or by one party receiving
unjust enrichment out of reliance on the statute. Here, both elements are present.
Christie (D) devoted his adult life to making the family business a success and gave
up the chance to accumulate property outside the family. He (D) did this in reliance
on Natale’s repeated assurances that he (D) would receive the property when
Natale and Carmela died. The fact that Christie (D) would be seriously prejudiced
if the oral contract were not enforced is clear. Rosie and Nick Norcia were able to
invest money when the family business was started. Their interest, now worth
$100,000, as well, is protected because of that investment. Christie (D), by
contrast, did not demand any present interest in the business because he (D) was
assured that he (D) would receive Natale’s and Carmela’s interest after they died.
Christie’s (D) twenty years of work should be just as important as the Norcias’
investment. Allowing Natale to escape his obligations to Christie (D) would
unjustly enrich Natale and his devisees. It is not the promise that the contract will
be put in writing or that the statute will not be invoked that is important, however.
What is important is the promise that a contract will be performed, and that a party
changes his or her position on the contract because of that promise. Affirmed.
176
Analysis:
This case signaled a new interrelationship between the Statute of Frauds and
promissory estoppel. Nearly all states have used promissory estoppel at one time
or another to thwart a Statute of Frauds defense against an otherwise fair and
proper claim. A few other jurisdictions, however, including New York and
Wisconsin, have shown the same tendency as the California court here to leave the
more narrow confines of the part performance doctrine. These courts have gone on
to use estoppel whenever a ruling against a plaintiff would be utterly
unconscionable. This tendency has resulted in the near-elimination of the doctrine
of part performance as a means of thwarting the Statute. Instead, part performance
has been incorporated into estoppel in those jurisdictions.
CASE VOCABULARY
UNCONSCIONABLE: Grossly unfair or unjust.
143

(Grain Dealer) v. (Farmer)
613 N.W.2d 289 (Iowa 2000)
WHAT IS “REASONABLE” IS GENERALLY NOT A QUESTION OF LAW
INSTANT FACTS St. Ansgar (P) failed to obtain written confirmation of an oral
agreement to buy grain, and then Streit (D) refused to accept delivery of the grain.
BLACK LETTER RULE The question of whether the written confirmation of

an oral contract was received in a reasonable time is a question of fact for the jury.
177
PROCEDURAL BASIS
Appeal from an order granting summary judgment in favor of Streit (D).
FACTS
St. Ansgar (P) was engaged in the business of selling corn to farmers for animal
feed. A normal transaction involved a farmer contacting St. Ansgar (P) and
requesting a quote for a cash price for grain for future delivery based on the
Chicago Board of Trade price. If the farmer accepted the price, St. Ansgar (P)
would obtain a hedge position, which obligated St. Ansgar (P) to purchase the grain
at the stated price at the time of the delivery.
Streit (D) and his father (D) were long-time customers of St. Ansgar (P). Streit (D)
frequently purchased grain by making an oral request; if he accepted the price, St.
Ansgar (P) would prepare a written confirmation. The confirmation was either
mailed to Streit (D) to sign and return, or was given to Streit (D) personally when
he stopped by the business. Streit’s (D) father regularly stopped by St. Ansgar (P)
during the first ten days of the month to pay the open account Streit (D) maintained.
If St. Ansgar (P) mailed the written confirmation, it was not unusual for Streit to
fail to sign the confirmation for a long period, or to fail to return contracts sent to
him.
On July 1, 1996, Streit’s (D) father telephoned St. Ansgar (P) and placed two
orders for 60,000 bushels of corn, one to be delivered in December 1996 (for
$3.53 per bushel), and the other to be delivered in May 1997 (for $3.73 per
bushel). The order confirmed an earlier conversation with Streit (D). St. Ansgar
(P) prepared a written confirmation for Streit’s (D) father to sign when he came in
to pay the open account. Streit’s (D) father did not come by St. Ansgar (P) in July,
and St. Ansgar (P) asked a local banker to have Streit’s (D) father stop in. Streit’s
(D) father did not go to St. Ansgar (P) until August 10, 1996, and the written
confirmation was given to him at that time. Streit (D) later refused delivery of the
corn. The price of corn had dropped drastically since July 1, and Streit (D) was
able to purchase corn much more cheaply on the open market. Streit (D) told St.
Ansgar (P) it should have followed up earlier with the written confirmation, and
that it had no excuse for not doing so.
St. Ansgar (P) brought suit against Streit (D) for breach of contract. Streit (D)
moved for summary judgment, claiming that the Statute of Frauds barred
enforcement of the agreement. Streit (D) argued that the written confirmation did
not meet the requirements of U.C.C. § 2–201 because Streit (D) was not a merchant,
and because the written confirmation was not delivered in a reasonable time after
the oral agreement. The trial court held that the question of whether
178
144
Streit (D) was a merchant was a jury question, but also held that the delivery of the
written confirmation did not occur within a reasonable time as a matter of law. The
court found that the size of the order, the volatility of the grain market, and the lack
of an explanation for St. Ansgar’s (P) failure to send the written confirmation made
the delay unreasonable as a matter of law.
ISSUE
Was the delay in delivering the confirmation unreasonable as a matter of law, so
that Streit (D) was entitled to summary judgment?

(Cady, J.) No. The question of whether the written confirmation of an oral contract
was received in a reasonable time is a question of fact for the jury. The
reasonableness of a party’s conduct must be determined according to all of the
circumstances of the case. Numerous cases from other jurisdictions have held that
the reasonableness of the time of the delivery of a confirmation is a jury question.
While some courts have ruled on the reasonableness question as a matter of law,
summary judgment on this issue is appropriate only when the evidence is so one-
sided that only one party must prevail at trial.
The Statute of Frauds is deeply engrained in the law, but many of the forces that
gave rise to the rule no longer prevail. Some of the rigid requirements of the Statute
have been modified. One of those modifications is the provision at issue in the case
at bar, which deems the writing requirement satisfied in a contract between
merchants if a confirmation of the contract is received and the merchant-recipient
knows of the contents of the confirmation, unless written notice of objection to the
confirmation is given within ten days. While the U.C.C. imposes a specific ten-day
requirement for objections, there is a flexible standard of reasonableness. Section
1–204 (2) of the Code [cited in the text as § 2–201 (2)] specifically states that a
reasonable time for taking action depends on “the nature, purpose and
circumstances” of the action. Thus, all relevant circumstances are to be considered.
The factors cited by the trial court—the volatility of the market conditions and the
high sale price—would normally narrow the amount of time considered reasonable.
There are other factors to consider, such as the custom or practice of the parties to
delay delivery of the confirmation, the long-standing amicable business relationship
between the parties, the numerous similar transactions that were completed without
incident, and the fact that St. Ansgar (P) did not suspect the failure of Streit’s (D)
father to stop by was a matter of concern. These factors show a genuine dispute
over the reasonableness of the delay. In addition, conduct is not rendered
179
unreasonable solely because there is no particular explanation for the conduct. The
reasonableness of conduct must be determined by the facts and circumstances
existing at the time the conduct occurred. Reversed and remanded.
Analysis:
Streit’s (D) claim that he should not be bound to the contract with St. Ansgar (P) is
based on St. Ansgar’s (P) failure to send written confirmation. Given the course of
dealing of the parties, particularly his occasional failure to send back the written
confirmations he did receive, this argument seems like a bit of a stretch. In effect,
Streit (D) is opting out of an agreement he does not deny making and relying on his,
or his father’s, inactions as justification. Even so, the outcome is not so clearly one-
sided that the case should be taken from the jury
180
145
181
182
CHAPTER FOUR
183
Policing the Bargaining Process

Instant Facts: Douglass (P) claimed that he was not bound by an arbitration
provision in an employee handbook because he was a minor when he started his
employment.
Black Letter Rule: The general rule that contracts entered into by minors are
voidable does not apply in the employment context.
Instant Facts: Ortelere was on leave for mental illness when she maximized her
retirement benefits during her lifetime, and left her family with nothing when she
died.
Black Letter Rule: A person’s contractual duties will be voidable if, by reason of
mental illness or defect, he or she is unable to act in a reasonable manner in
relation to the transaction, and the other party has reason to know of his or her
condition.
Instant Facts: Cundick sold his sheep ranching property to Broadbent at a low
price, and Cundick’s wife claimed he was mentally incompetent when making the
deal.
Black Letter Rule: Mental capacity to contract depends upon whether the
allegedly disabled person possessed sufficient reason at the time of entering the
contract to enable him or her to understand the nature and effect of the act in issue.
Instant Facts: A young man under his parents’ guardianship purchased a car using
his debit card, and the dealership refused to cancel the contract even after the
ward’s mother informed them of her son’s incompetency and the existence of the
guardianship.
Black Letter Rule: Guardianship proceedings are treated as providing public
notice of the ward’s incapacity and establish his status with respect to transactions
during the guardianship, even though the other party to a particular transaction may
have no knowledge or reason to know of the guardianship.
Instant Facts: After a cannery hired sailors for seasonal work, they refused to
work unless paid higher wages, knowing replacements are unavailable. When the
184
cannery promised a raise but never delivered, the workers sued.
Black Letter Rule: If a contractual party demands additional compensation to
perform a duty it is already contractually obligated to perform, any agreement to
pay more compensation is unenforceable as lacking consideration.
Instant Facts: Carrig hired Watkins & Son to dig a cellar, and agreed to pay nine
times more after learning they had to dig through solid rock.
Black Letter Rule: A new promise by the parties to an existing contract constitutes
a mutual rescission of the existing contract and the formation of a new one.
Instant Facts: Austin began delivering parts to Loral for one government contract,
but stopped delivery until Loral paid Austin for all the parts for a second contract.
Black Letter Rule: A contract is voidable on the ground of duress when it is
established that the party making the claim was forced to agree to it by means of a
wrongful threat precluding the
146
exercise of his free will; economic duress is demonstrated by proof that one party
to a contract has threatened to breach the agreement by withholding needed goods
unless the other party agrees to some further demand, that the threatened party could
not obtain the goods from another source, and that the ordinary remedy for breach
of contract would be inadequate.
Instant Facts: After a schoolteacher was arrested for homosexuality, the school
forced his resignation and threatened to fire him publicly.
Black Letter Rule: Contracts secured by excessively coercive persuasion are
voidable at the victim’s option, even if the victim was sane and independent, and
even if the threat was legal.
Instant Facts: Whitinsville Bank knew the house it sold to Swinton was infested
with termites, but did not tell him about it when making the sale.
Black Letter Rule: A party cannot be held liable for failing to disclose
information when there is no evidence of any special duty to disclose anything.
Kannavos v. Annino
185
Instant Facts: Mrs. Annino sold her apartment building to Kannavos without
telling him that the building was in violation of the local zoning ordinances.
Black Letter Rule: Although a party may be under no duty to disclose information
to another, if that party does speak with reference to a given point of information,
then that party is bound to speak honestly and to divulge all the material facts
bearing upon that point within that party’s knowledge.
Instant Facts: Rodriguez hired Speakers of Sports (P) to represent him, and then
switched to ProServ (D).
Black Letter Rule: A promise that is intended as aspirational, and that a
reasonable person in the position of the promisee would understand as an
expression of hope, is not an enforceable commitment.
Instant Facts: After a dance instructor induces a widow to buy numerous dance
lessons by overpraising her skill, she sues for misrepresentation.
Black Letter Rule: False statements of opinion by experts with superior
knowledge are actionable as misrepresentations.
147

110 Hawai’i 520, 135 P.3d 129 (2006)
MINORS’ EMPLOYMENT CONTRACTS ARE NOT VOIDABLE
INSTANT FACTS Douglass (P) claimed that he was not bound by an arbitration
provision in an employee handbook because he was a minor when he started his
employment.
186
BLACK LETTER RULE The general rule that contracts entered into by minors
are voidable does not apply in the employment context.
PROCEDURAL BASIS
Appeal from an order compelling arbitration.
FACTS
Pflueger (D) hired Douglass (P) as a lot technician at its car dealership when
Douglass (P) was seventeen years old (less than four months shy of the age of
majority). Approximately two weeks after he was hired, Douglass (P) attended an
employee orientation, where he received Pflueger’s (D) Employee Handbook. The
Handbook included Pflueger’s (D) anti-harassment/discrimination policies and
procedures and an arbitration provision. The arbitration provision provided that all
claims arising out of employment with Pflueger (D) would be settled by final
binding arbitration. At that September 13, 2001 meeting, Douglass (P) signed an
acknowledgment form stating that he had received the Handbook.
On or about November 29, 2001, Douglass (P) was injured on the job when a co-
worker sprayed him on the buttocks area with an air hose. Douglass (P) filed a
complaint with the Hawaii Civil Rights Commission, which issued a right-to-sue
letter to Douglass (P). Thereafter, on December 17, 2002, Douglass (P) filed an
action against Pflueger (D) in the circuit court. The complaint alleged five
employment law claims: (1) Hostile, Intimidating and/or Offensive Working
Environment; (2) Unsafe Working Environment; (3) Sexual Assault and Sexual
Discrimination; (4) Negligent Training (of its Supervisor); and (5) Negligent
Supervision. Pflueger (D) filed a motion to stay the action and compel arbitration.
The circuit court granted the motion, stating that it was “inappropriate” for a person
to accept the benefits of some of the contractual provisions and then try to disavow
one other contractual provision.
ISSUE
Did Douglass (P) have the right to disaffirm his employment contract?

(Moon, C.J.) No. The general rule that contracts entered into by minors are
voidable does not apply in the employment context. Hawaii has long recognized the
common law “infancy doctrine.” That doctrine states that contracts entered into by
minors are voidable. Under this doctrine, a minor may, upon reaching the age of
majority, choose either to ratify or avoid contractual obligations entered into during
his or her minority. The rule has traditionally been that the law shields minors from
187
their lack of judgment and experience and under certain conditions vests in them the
right to disaffirm their contracts. The right to avoid his contracts is conferred by
law upon a minor for his protection against his own improvidence and the designs
of others. Any loss occasioned by the disaffirmance of a minor’s contract might
have been
148
avoided by declining to enter into the contract. The rule that a minor’s contracts are
voidable, however, is not absolute. An exception to the rule is that a minor may not
avoid a contract for goods or services necessary for his health and sustenance.
None of the parties to this appeal contend that Douglass’s (P) employment was “a
necessary,” so it would appear that the infancy doctrine would allow Douglass (P)
to disaffirm his employment contract, including the purported arbitration agreement.
However, a review of Hawaii’s child labor law evinces the Legislature’s intent to
incorporate the rationale underlying the common law infancy doctrine into the
statutory scheme and impose upon the Department of Labor and Industrial Relations
the responsibility of promulgating rules and regulations to effectuate such intent. To
avoid violating child labor laws, employers and minors must meet certain
requirements. With respect to contracts of employment, the legislature viewed
minors who are sixteen and seventeen years old—being only one to two years from
adulthood—as capable and competent to contract for gainful employment and,
therefore, bound by the terms of such contracts. Consistent with the policy of
protecting minors until they attain the age of majority, the Legislature provided an
additional safeguard by authorizing the Department to “suspend, revoke or
invalidate” any certificate of employment if the minor’s employment is later found
to be detrimental to the minor. Based on the foregoing reasoning, we conclude that
the protections of the infancy doctrine have been incorporated into the statutory
scheme of Hawaii’s child labor law. The general rule that contracts entered into by
minors are voidable is therefore not applicable in the employment context.
In the instant case, even if the statutory requirements were not followed, Douglass
(P) should, nevertheless, be bound by the terms of his employment contract with
Pflueger (D). First, there is nothing in the statutory scheme of the child labor law
that renders Douglass’s (P) employment invalid or illegal. Second, it is undisputed
that Douglass (P) was, at the time he was hired, a seventeen-year-old high school
graduate, who was only four months away from majority. Third, there is nothing in
the record to suggest that the nature or condition of Douglass’s (P) employment was
such as to injuriously affect his health, safety, or well-being, or contribute towards
his delinquency so as to trigger action by the Department. In other words, whether
the legal requirements were followed is irrelevant. Hawaii’s child labor law
188
provides for the protections of the infancy doctrine and renders inapplicable the
general rule that contracts entered into by minors are voidable in the employment
context.
Enforcement of the arbitration provision, will, however, be denied. The location of
the provision in the Handbook did not alert Douglass (P) to its presence or scope.
The provision was therefore not assented to. Reversed.
Analysis:
The Hawaii Supreme Court held in this case that an arbitration provision is not a
valid and enforceable agreement if the provision fails the test of whether it
indicates an unambiguous intent to submit a dispute to arbitration. Here, the Court
found that the employment handbook’s language was “manifestly unambiguous in its
expressed intent” to use arbitration, but the Court said the surrounding
circumstances didn’t indicate mutual assent. Accordingly, the employment clause at
issue failed the test, and the court therefore reversed a trial court order compelling
arbitration and remanded the case for further proceedings.
CASE VOCABULARY
RIGHT TO SUE LETTER: Permission to proceed with a court action without
further involvement by the governmental agency responsible for enforcing civil
rights laws.
149

(Schoolteacher) v. (Retirement Board)
25 N.Y.2d 196, 303 N.Y.S.2d 362, 250 N.E.2d 460 (1969)
A PERSON IS MENTALLY INCOMPETENT TO ENTER A CONTRACT ONLY

IF A MENTAL ILLNESS OR DEFECT MAKES THE PERSON UNABLE TO
ACT IN A REASONABLE MANNER AND THE OTHER PARTY HAS REASON
TO KNOW OF SUCH A CONDITION
189
INSTANT FACTS Ortelere was on leave for mental illness when she
maximized her retirement benefits during her lifetime, and left her family with
nothing when she died.
BLACK LETTER RULE A person’s contractual duties will be voidable if, by

reason of mental illness or defect, he or she is unable to act in a reasonable manner
in relation to the transaction, and the other party has reason to know of his or her
condition.
PROCEDURAL BASIS
Appeal from judgment.
FACTS
Grace Ortelere was a sixty-year-old New York City schoolteacher who went on
leave for mental illness after suffering a nervous breakdown. Specifically, she was
diagnosed by her psychiatrist as having “involutional psychosis, melancholia type,”
and possibly cerebral arteriosclerosis. Her husband of thirty-eight years, Mr.
Ortelere (P) quit his (P) job to take care of her. Mrs. Ortelere had participated in a
public retirement plan administered by the Teachers’ Retirement Board (Board) (D)
for over forty years. As a result, she had accumulated a $70,925 reserve. In 1965,
she wrote a letter to the Board (D) asking several questions. One example of these
questions was an inquiry into what her monthly allowance would be if she were to
“take a loan of $5,000 before retiring and select option four-a on both the pension
and annuity…” Soon afterwards, she borrowed the maximum amount possible from
the fund, $8,760. She also made an irrevocable election to receive the maximum
benefits of $450 per month during her lifetime. She made these changes without
informing her husband (P). As a result, an earlier plan by which Mrs. Ortelere
would have received $375 per month, and her husband (P) would have taken the
remaining fund when she died, was revoked. This new plan left Mr. Ortelere (P)
190
and their two grown children with no benefits upon her death. Mrs. Ortelere died of
cerebral arteriosclerosis two months later. Mr. Ortelere (P) sued to set aside his
(P) wife’s modification of the retirement plan, claiming she was mentally
incompetent. Her psychiatrist testified that victims of involutional melancholia
“can’t think rationally…” and that “[e]verything is impossible [for them] to
decide.” The trial court judged for Mr. Ortelere (P), and the Board (D) appealed.
The Appellate Division reversed and dismissed the complaint, and Mr. Ortelere
appealed.
ISSUE
Is a person automatically considered mentally incompetent to enter contracts if he
or she has a mental illness and is incapable of making decisions?

(Breitel) No. A person’s contractual duties will be voidable if, by reason of mental
illness or defect, he or she is unable to act in a reasonable manner in relation to the
transaction, and the
150
other party has reason to know of his or her condition. Traditionally, this State and
others have measured a person’s mental capacity to enter contracts by a primarily
“cognitive” test. With such a test, the question is whether a person’s mind was “so
affected as to render [the person] wholly and absolutely incompetent to
comprehend and understand the nature of the transaction.” This test also required
that the person be capable of making a rational judgment regarding the particular
transaction. These standards were set when psychiatric knowledge was relatively
primitive, and when it was believed that all mental abilities were affected at the
same time by a mental illness. This belief no longer carries weight today.
Accordingly, the Restatement Second of Contracts states that: “(1) A person incurs
only voidable contractual duties by entering into a transaction if by reason of
mental illness or defect … (b) he is unable to act in a reasonable manner in relation
to the transaction and the other party has reason to know of his condition.” The
Board (D) knew, or should have known, of Mrs. Ortelere’s condition by virtue of
her leave of absence for medical reasons related to mental illness. It would not be
wise to allow a retirement fund that was accumulated over the course of forty years
to be completely emptied by a single act committed by a person known to be
mentally ill. New trial ordered, and judgment reversed.
DISSENT
(Jasen) The kind of detailed, explicit, and extremely pertinent questions posed by
191
Mrs. Ortelere in her letter to the Board (D) reveal a mind fully in command of the
more prominent features of the Retirement System. Certainly it could not be said
that she possessed sufficient capacity to write this letter, yet lacked the capacity to
understand the answers to her questions. The evidence shows that Mrs. Ortelere
made this decision to increase her monthly benefit payments was based on a need
for a higher income to support two people, namely her husband (P) and herself. Her
decision was both a rational and necessary one. Further, there is no evidence to
indicate that Mrs. Ortelere had any indication or warning that her life expectancy
would be reduced by her condition.
Analysis:
The court here describes the two main tests for mental capacity. The first, known as
the cognitive test, is the traditional one. This test focuses on the question of whether
the party in question lacked the capacity to understand the nature and consequences
of the particular contract. This test, though criticized as unscientific and too
ambiguous to be accurately defined, is nonetheless almost universally accepted by
the courts. The second test, known as the volitional test, weighs the question of
whether a mentally III person has effective control of his or her actions. The
Ortelere court adopted the Restatement Second’s compromise position. This test
combines a qualified volitional test with the traditional cognitive test. This modern
standard has met with increasing acceptance, but the cognitive test is still prevalent.
CASE VOCABULARY
ARTERIOSCLEROSIS: A chronic disease resulting in the abnormal hardening and
thickening of the arteries.
INVOLUTIONAL: Having to do with regression or decline characteristic of the
aging process.
MELANCHOLIA: A mental condition characterized by severe depression, and
often by hallucinations and delusions.
RUBRIC: An authoritative rule or doctrine.
151
(Sheep Rancher) v. (Sheep Buyer)
383 F.2d 157 (10th Cir. 1967)
A PERSON’S MENTAL CAPACITY TO ENTER A CONTRACT DEPENDS

UPON WHETHER THE PERSON CAN UNDERSTAND THE NATURE AND
EFFECT OF THE CONTRACT
192
INSTANT FACTS Cundick sold his sheep ranching property to Broadbent at a
low price, and Cundick’s wife claimed he was mentally incompetent when making
the deal.
BLACK LETTER RULE Mental capacity to contract depends upon whether the
allegedly disabled person possessed sufficient reason at the time of entering the
contract to enable him or her to understand the nature and effect of the act in issue.
PROCEDURAL BASIS
Appeal from dismissal of action.
FACTS
Darwin Cundick was a fifty-nine-year-old sheep rancher. He had received
psychiatric treatment in 1961, and his family doctor had seen him many times since
then for various ailments. In September 1963, Mr. Cundick and J.R. Broadbent (D)
signed a one-page, handwritten contract. By this contract, Mr. Cundick agreed to
sell all of his ranching properties to Broadbent (D). Mr. Cundick and his wife (P)
took the contract to their lawyer, who then converted it into an eleven-page
document. In October 1963, this agreement was amended so that the over 2,000
acres of range land would be sold for about $40,000. This land was later valued by
an expert at about $89,000. Also, Cundick’s interest in a development company
which employed Broadbent (D) as director was to be sold for $46,750. This
interest was valued by others to be between $73,000 and $184,000. As of February
1964, Mr. Cundick was executing documents to carry out the sale. By March,
however, after the price had already been paid by Broadbent (D), Mr. Cundick
tried to rescind the sale. Mrs. Cundick (P) filed suit against Broadbent (D) claiming
that Mr. Cundick had been mentally incompetent to contract, and that in any event he
was mentally infirm and Broadbent (D) knowingly took advantage of him. Nothing
was ever said about Mr. Cundick’s mental condition until this action was raised. In
193
court-ordered examinations, two neurosurgeons and a psychologist found that Mr.
Cundick had been a “confused and befuddled man with very poor judgment,” and
could not have conducted important business in September 1963. No contrary
medical evidence was presented. Still, the trial court found that Mr. Cundick’s
actions in these matters were those “of a person competent to manage his affairs
and cognizant of the effect of his actions.” The court dismissed the action, and Mrs.
Cundick (P) appealed.
ISSUE
Can a person be considered mentally incompetent to contract because he or she
made a seemingly unintelligent decision regarding the terms of a deal?

(Murrah) No. Mental capacity to contract depends upon whether the allegedly
disabled person possessed sufficient reason at the time of entering the contract to
enable him or her to
152
understand the nature and effect of the act in issue. The law used to be that if a
person was of such a confused or weak mind that he or she knew what he was
doing, yet was incapable of fully understanding the terms and effect of a particular
agreement, then the person could enter into a contract and render it voidable
whenever he or she chose to do so. The modem rule, however, has been different.
In cases where someone claiming to be mentally deficient is not under the
guardianship of another, and there is no evidence of fraud by the other party, or that
the other party knew of the mental deficiency, then the contract can only be voided
in accordance with certain equitable principles. The majority of courts find that
mental capacity to contract depends upon whether the allegedly disabled person
had sufficient reason to understand the contract. Average intelligence is not
essential to a valid contract. Weakmindedness may certainly be relevant in
determining whether a party was overreached and defrauded, but it does not
constitute mental incompetency under the law. Here, there is no record of any
discussion of Mr. Cundick’s mental condition among his friends and family. It
seems incredible that Mr. Cundick could have been mentally incapable of
conducting his business affairs without Mrs. Cundick (P) or anyone else realizing
such a condition. Further, there is no evidence that Broadbent (D) ever deceived or
overreached Mr. Cundick. While the final price for the ranching property was far
less than its value, Mr. Cundick did raise a complaint about the arrangement. An
agreement was reached to raise the price, and the contract was so modified.
Judgment affirmed.
194
DISSENT
(Hill) The evidence relied upon by the majority is trivial and inconsequential
compared to the undisputed medical testimony. It is inconceivable that any mentally
competent person, with a lifetime of experience as a successful rancher, would
dispose of his ranch interests for less than one-half their actual value.
Analysis:
The party who tries to assert incompetency as a basis for relief has the burden of
persuasion and can introduce a variety of circumstances surrounding the
transaction. These can include the party’s “normal” behavior in similar
transactions, the opinions of friends and family and psychiatric experts, and records
of anyone who has observed or treated the party in question. Still, more and more
experts are noting that the dominant factor is whether the court sees the given
transaction as one that a reasonably competent individual may take part in. This
inquiry can be very subjective, as it depends on an unscientific opinion of what a
reasonably competent person would do.
CASE VOCABULARY
GUARDIAN AD LITEM: A guardian appointed to prosecute or defend an action on
behalf of an infant or otherwise incapacitated party.
153

(Auto Dealership) v. (Legal Guardians of Car Buyer)
167 P.3d 1240 (Alaska 2007)
THE MERE EXISTENCE OF A LEGAL GUARDIANSHIP PROVIDES

CONSTRUCTIVE NOTICE OF THE WARD’S INCAPACITY TO CONTRACT
INSTANT FACTS A young man under his parents’ guardianship purchased a car
195
using his debit card, and the dealership refused to cancel the contract even after the
ward’s mother informed them of her son’s incompetency and the existence of the
guardianship.
BLACK LETTER RULE Guardianship proceedings are treated as providing

public notice of the ward’s incapacity and establish his status with respect to
transactions during the guardianship, even though the other party to a particular
transaction may have no knowledge or reason to know of the guardianship.
PROCEDURAL BASIS
State supreme court review of a trial court decision granting summary judgment in
the plaintiffs’ favor.
FACTS
The Denisons’ (P) son, who was developmentally disabled, purchased a car from
Kenai Chrysler Center (D) using his debit card. When his mother found out, she
contacted the dealership and told them her son did not have the capacity to enter
into a legal contract, and thus the contract was void. The dealership refused to
cancel the deal, saying that they sold cars to “a lot of people who aren’t very
smart.” The Denisons (P) sued, seeking a declaration that the contract was void by
virtue of their guardianship over their son and an injunction to prevent the
collection of further payments under the contract. The Denisons (P) moved for
summary judgment and the court granted the motion. Kenai Chrysler (D) appealed,
arguing that it was entitled to restitution because it did not know about the son’s
incompetency when the sale occurred.
ISSUE
Does the existence of a valid legal guardianship over a person preclude the
formation of a contract with that person?

(Bryner, C.J.) Yes. Guardianship proceedings are treated as providing public notice
of the ward’s incapacity and establish his status with respect to transactions during
the guardianship, even though the other party to a particular transaction may have no
knowledge or reason to know of the guardianship. Kenai Chrysler (D) argues that it
is at least entitled to restitution, and that a genuine issue of material fact exists as to
whether it should have known of David’s incapacity. But under the Restatement
view, which we adopt, the guardian is not required to give personal notice to
everyone who may deal with the ward. Since Kenai Chrysler (D) by virtue of the
legal guardianship had constructive notice of David Denison’s incapacity, it is not
196
entitled to restitution. Affirmed.
154
Analysis:
Several classes of persons lack the capacity to enter into a binding contract.
Whereas it may be easy to establish certain statuses—such as minority, which can
be verified by a driver’s license in questionable cases—incompetency is not so
clear cut. A seller who enters into a good faith transaction with one who seems
competent to make the deal, but is under a legal guardianship, has no recourse
under the approach adopted by the court in this case.
CASE VOCABULARY
CONSTRUCTIVE NOTICE: Notice arising by presumption of law from the
existence of facts and circumstances; notice presumed by law to have been
acquired by someone and thus imputed to that person.
GUARDIAN: One with the legal authority and duty to care for another’s person or
property based on the other’s infancy, incapacity, or disability, appointed either for
general or specific purposes.
RESTITUTION: A common law remedy by which the court can, in its discretion,
restore the injured party to a previous position, return something to the rightful
owner, or restore the status quo; the measure of actual damages.
WARD: A person under a guardian’s charge or protection.
155

(Employer) v. (Employees)
117 Fed. 99 (9th Cir. 1902)
CONTRACT PARTIES MAY NOT DEMAND INCREASED COMPENSATION

FOR PERFORMING PRE-EXISTING DUTY
197
INSTANT FACTS After a cannery hired sailors for seasonal work, they refused
to work unless paid higher wages, knowing replacements are unavailable. When the
cannery promised a raise but never delivered, the workers sued.
BLACK LETTER RULE If a contractual party demands additional

compensation to perform a duty it is already contractually obligated to perform, any
agreement to pay more compensation is unenforceable as lacking consideration.
PROCEDURAL BASIS
In admiralty action seeking damages, appeal from judgement for plaintiffs.
FACTS
Alaska Packers’ Association (D) recruited workers (P), including Domenico (P), to
sail from San Francisco to Alaska to work as fishermen/canners for $50. Once the
workers (P) arrived in Alaska, they stopped work and threatened to return to San
Francisco unless paid $100. Since it was impossible to get replacement workers
without notice, Alaska Packers’ (D) plant superintendent signed a promise to pay
them $100. However, Alaska Packers (D) paid them only $50. The workers (P)
sued in admiralty for the difference. At trail, the court found for the workers (P).
Alaska Packers (D) appeals.
ISSUE
If workers demand more compensation to perform the work they already contracted
to do, is a promised raise enforceable?

(Ross) No. If a contractual party demands additional compensation to perform a
duty it is already contractually obligated to perform, any agreement to pay more
compensation is unenforceable as lacking consideration. We assume Alaska
198
Packers’ (D) superintendent was authorized to contract with the workers (P), and
turn to whether this renegotiation was supported by sufficient consideration. Here,
the libelants (P) contracted to work for Alaska Packers (D) for a set wage. The
workers (P) stopped work for no good reason, knowing Alaska Packers (D) had
invested large amounts of money in the fishing operation, that the fishing season
was short, and that Alaska Packers (D) could not hire replacement workers once it
brought the workers (P) to Alaska. Under these circumstances, Alaska Packers’ (D)
superintendent’s consent to increased wages was without consideration, since it
was based solely on the workers’ (P) agreement to render the exact services they
were already obligated to perform, and no other. Here, the record shows the
workers (P) broke that obligation wilfully and arbitrarily. Further, there is no
indication Alaska Packers (D) voluntarily waived its original contract, since
Alaska Packers (D) knew nothing of the breach until the expedition returned to San
Francisco, and Alaska Packers’ (D) superintendent told the workers (P) he was
unauthorized to waive its contractual rights. The plain fact is that a party who
refuses to perform
156
and thus coerces a promise to pay increased compensation for doing that which he
is legally bound to do, takes an unjustifiable advantage of the other party’s
necessity. It would be a travesty to permit this, and if the other party agrees, there is
no consideration. To permit plaintiffs to recover would offer a premium on bad
faith, and invite men to profit by their own wrongs. Reversed.
Analysis:
Alaska Packers illustrates the prevailing “pre-existing duty” rule, its policy
justification, and potential exceptions. This rule prevents contractors from extorting
additional extra-contractual compensation by threatening to breach in the middle of
a contract’s performance, after the other party has expended money and effort in
reliance. Typically, such a threat at an inconvenient time would force the other party
to pay more than he would have agreed to pay prospectively. Here, had the workers
initially demanded $100, Alaska Packers (D) would no doubt have found other
sailors willing to accept $50. However, once Alaska Packers (D) hired them and
brought them to the cannery, replacing them would cost much more than an extra
$50 per person, since it would presumably force Alaska packers (D) to either miss
the short fishing season, or cause its already-caught fish to rot in storage. Thus,
Alaska Packers (D) was willing to promise $100 at that point, though it would not
have done so given a choice. Justice demands that contractual parties not be
allowed to profit from opportunistic breaches.
199
CASE VOCABULARY
ADMIRALTY: Branch of law which governs ships. Presumably, admiralty law
governed because the workers (P) were sailors as well as canners.
LIBELANTS: Here, “plaintiffs.” In admiralty, complaints are called “libels.”
157

(Excavation Company) v. (Client)
91 N.H. 459, 21 A.2d 591, 138 A.L.R. 131 (1941)
A NEW PROMISE BY PARTIES TO AN EXISTING CONTRACT RESULTS IN A

MUTUAL RESCISSION OF THE INITIAL CONTRACT AND THE CREATION
OF A NEW CONTRACT
INSTANT FACTS Carrig hired Watkins & Son to dig a cellar, and agreed to pay
nine times more after learning they had to dig through solid rock.
BLACK LETTER RULE A new promise by the parties to an existing contract

constitutes a mutual rescission of the existing contract and the formation of a new
one.
PROCEDURAL BASIS
Assumpsit for work done.
FACTS
Watkins & Son (P) agreed through a written contract to excavate a cellar for Carrig
(P) for a particular price. The contract provided that “all material” was to be
removed from the site, and there was no qualification as to the term “to excavate.”
200
After work began, the workers discovered solid rock at the digging site. The
manager for Watkins & Son (P) informed Carrig (D) of this. A meeting between the
manager and Carrig (D) followed, and, at Watkins & Son’s (P’s) Insistence, it was
orally agreed that Watkins & Son (P) would remove the rock at a higher unit price.
This new price would be about nine times greater than the unit price which served
as the basis for the gross amount to be paid under the original written contract. The
rock eventually amounted to two-thirds of the material that had to be excavated. A
referee found that the oral agreement “superseded” the written contract, and thus
reported a verdict for Watkins & Son (P). Carrig (D) took exception to the
acceptance of this report and a subsequent order of judgment.
ISSUE
Does a new promise by parties to an existing contract rescind the old contract?

(Allen) Yes. A new promise by the parties to an existing contract constitutes a
mutual rescission of the existing contract and the formation of a new one. The
referee’s finding that the written contract was “superseded” by a subsequent oral
contract apparently means that the parties (P and D) agreed to treat the written
contract as though it never existed, and the oral contract was the only one made.
Carrig (D) agreed to the new price for excavating the rock, and Watkins & Son (P)
proceeded on the strength of that promise. Carrig (D) granted relief for Watkins &
Son (P) from an unforeseen burden tied to the contract, and received reasonable
value for the higher price he (D) paid. The problem is whether this grant of relief
constituted a valid contract. The basic rule is that a promise without consideration
is invalid. From that rule comes the idea that a promise to pay for what the
promisor already has a right to receive is invalid. Watkins & Son (P) claims that
the original contract was rescinded by mutual consent, and that the idea that Carrig
(P) promised to pay for performance of a pre-existing duty is unfounded. Granted,
an agreement for rescission is still an agreement, and as such requires
consideration. There is,
158
however, an important distinction between a regular promise and a promise in

adjustment of an outstanding contractual promise. Parties to a valid contract
generally understand that their contract is subject to any mutual action they may take
in its performance. A rescission made interdependently with the formation of a new
contract is not invalid for lack of consideration. All Carrig (D) has done here is
intentionally and voluntarily yield to a demand for a special price for excavating
rock. In doing this, he (D) yielded his contractual right to the earlier price. If the
201
essence of this later transaction was Carrig’s (D) promise to pay more for the
excavation, then there was also, in its inherent makeup, a valid discharge of an
obligation by Carrig (D). Because Carrig (D) relinquished this right of price, he
(D) should, in fairness, be held to the new agreement. Exceptions overruled.
Analysis:
This case demonstrates an exception to the pre-existing duty rule. The Restatement
Second has taken on the spirit of this exception, having been influenced by the terms
of UCC § 2–209(1). The Restatement treats this exception as a fair and useful
device, because a modification is “ancillary” to the original contract. It goes on to
provide that an agreement to modify an existing contract that is not yet fully
performed by either side will be valid and binding if the proposed modification is
a fair and equitable one. The question of whether the modification is fair and
equitable will depend upon several factors, including circumstances not anticipated
when the contract was formed.
CASE VOCABULARY
ASSUMPSIT: Latin for “he promised”; a promise by which a person assumes the
responsibility of doing some act or paying some amount to another.
IMPROVIDENT: Not foreseeing and planning for the future.
159

(Parts Supplier) v. (Radar Set Manufacturer)
29 N.Y.2d 124, 324 N.Y.S.2d 22, 272 N.E.2d 533 (1971)
A PARTY WHO ENTERED A CONTRACT UNDER ECONOMIC DURESS CAN

VOID THAT CONTRACT
202
INSTANT FACTS Austin began delivering parts to Loral for one government
contract, but stopped delivery until Loral paid Austin for all the parts for a second
contract.
BLACK LETTER RULE A contract is voidable on the ground of duress when

it is established that the party making the claim was forced to agree to it by means
of a wrongful threat precluding the exercise of his free will; economic duress is
demonstrated by proof that one party to a contract has threatened to breach the
agreement by withholding needed goods unless the other party agrees to some
further demand, that the threatened party could not obtain the goods from another
source, and that the ordinary remedy for breach of contract would be inadequate.
PROCEDURAL BASIS
Appeal from judgment in action for economic duress for damages.
FACTS
In July 1965, the Navy awarded Loral Corporation (Loral) (D) a $6,000,000
contract for the production of radar sets. This contract included a schedule of
deliveries in the second half of 1966, a liquidated damages clause applicable to
late deliveries, and a cancellation clause in case Loral (D) defaulted. Loral (D)
then solicited bids for the roughly 40 precision gear components it (D) needed to
produce the radar sets. Austin Instrument, Inc. (Austin) (P) was awarded a
subcontract by Loral (D) to supply 23 of those parts. Austin (P) began delivery in
early 1966. In May 1966, Loral (D) was awarded a second Navy contract for the
production of more radar sets. Again, Loral (D) solicited bids for the needed
components. Austin (P) bid to produce all 40 components, but, on July 15, a Loral
(D) representative informed Austin’s (P) president that Austin (P) would only
receive the subcontract for parts that it (P) was the lowest bidder for. Austin (P)
refused to accept an order for less than the 40 parts. The next day, Austin (P)
Informed Loral (D) that it (P) would cease delivery of the parts from the first
subcontract unless Loral (D) agreed to increase the amount paid for those parts, and
order all 40 parts needed under the second contract from Austin (P). Soon
thereafter, Austin (P) did stop delivery. Loral (D) then contacted ten different
manufacturers, but could find none who could produce the parts in time for it (D) to
meet its (D) commitments to the Navy. In a letter dated July 22, Loral (D) accepted
Austin’s terms, saying that it (D) was “left with no choice or alternative but to meet
[Austin’s] conditions.” After the last delivery under the second subcontract in July
1967, Loral (D) notified Austin (P) of its (D) intention to seek recovery of the price
increases. On September 15, 1967, Austin (P) filed an action against Loral (D) to
recover over $17,750 which was still due on the second subcontract. That same
203
day, Loral (D) filed an action against Austin (P) for roughly $22,250, or the amount
of the price increases
160
under the first subcontract, on the ground of economic duress. Austin (P) was
awarded its (P) requested sum, while Loral’s (D) complaint was dismissed. The
Appellate Division affirmed.
ISSUE
Can a party who is threatened by another party’s withholding of required goods into
agreeing to a contract, later void that contract on duress grounds?

(Fuld) Yes. A contract is voidable on the ground of duress when it is established
that the party making the claim was forced to agree to it by means of a wrongful
threat precluding the exercise of his free will; economic duress is demonstrated by
proof that one party to a contract has threatened to breach the agreement by
withholding needed goods unless the other party agrees to some further demand,
that the threatened party could not obtain the goods from another source, and that the
ordinary remedy for breach of contract would be inadequate. The evidence here
makes out a classic case of duress. In July 1966, Loral (D) was concerned with
meeting deadlines for radar sets due later that year. For Loral (D), the threat of
paying the liquidated damages, as well as defaulting, were very real possibilities.
In addition, Loral (D) could not risk losing future contracts as a result of failure to
deliver for this first radar set contract. These factors made it perfectly reasonable
for Loral (D) to consider itself in an emergency, duress situation. While Austin (P)
argues that Loral (D) should have asked the Government for an extension, Loral (D)
had no way of knowing when substitute suppliers could have supplied it (D) with
the parts needed to complete its (D) orders. Loral (D) also had the burden of
demonstrating it (D) could not obtain the needed parts from other sources within a
reasonable time. In contacting ten different manufacturers of precision gears and
receiving no assurances that the parts could be delivered on time, Loral (D) met
this burden. Loral (D), having contracted to produce a sophisticated piece of
military equipment, did not need to contact suppliers that it did not believe to be
capable of making the required parts. These factors clearly demonstrate that Loral
(D) had no reasonable choice other than to accept Austin’s (P) demands and sue to
recover the excess price later. Loral (D) also had sufficient reason to wait until
after Austin (P) completed delivery before raising a complaint, considering
Austin’s (P) previous threats and behavior. Order modified so that dismissal of
Loral’s (D) claim is reversed, and, except as so modified, affirmed.
204
Analysis:
The test for whether a threat is serious enough to justify a party’s acceptance of
another party’s terms has changed over the years. The early common law imposed a
strict objective requirement that the threat be enough to “overcome mind and will of
a person of ordinary firmness.” After this period of strict objectivity, the courts
went to a more subjective standard, which required only that the alleged threat had
deprived the victim of his or her free will. As the Eighth Circuit described it in
Winget v. Rockwood, “the ultimate fact in issue is whether such person was bereft
of the free exercise of his will power.” The ambiguousness of the term “free will,”
however, caused judicial opinion to swing to another new standard. The alleged
threat must have left the victim with “no reasonable alternative.” This standard is
hinted at in the Austin opinion. Also, the Restatement (Second) adopted this
standard as § 175(1), providing that duress must leave “the victim no reasonable
alternative.”
CASE VOCABULARY
DURESS: Any unlawful threat or coercion made by one person to induce another
person to act in a manner against his or her free will.
LIQUIDATED DAMAGES: An expressly stipulated amount of damages to be
received by either party to a contract in the event of breach by the other.
161

246 Cal.App.2d 123, 54 Cal.Rptr. 533 (1966)
CONTRACTS OBTAINED THROUGH UNDUE INFLUENCE ARE VOIDABLE
205
INSTANT FACTS After a schoolteacher was arrested for homosexuality, the
school forced his resignation and threatened to fire him publicly.
BLACK LETTER RULE Contracts secured by excessively coercive

persuasion are voidable at the victim’s option, even if the victim was sane and
independent, and even if the threat was legal.
PROCEDURAL BASIS
In contract action seeking rescission, appeal from summary judgement for
defendant.
FACTS
Mr. Odorizzi (P), an elementary school teacher for the Bloomfield School District
(“School”) (D), was arrested for homosexual acts. The next day, School’s (D)
principal and superintendent told him that, unless he resigned, he would be fired
and the charges against him would be publicized. Odorizzi (P) resigned. Later, the
criminal charges against Odorizzi (P) were dropped. Odorizzi (P) sued to rescind
his resignation, contending it was obtained by duress and undue influence. At trial,
School demurred [moved to dismiss], and the judge dismissed Odorizzi’s (P)
complaint. Odorizzi (P) appeals.
ISSUE
Is a resignation secured by threat of firing and adverse publicity voidable for undue
influence?
(Fleming) Yes. Contracts secured by excessively coercive persuasion are voidable
at the victim’s option, even if the victim was sane and independent, and even if the
threat was legal. There was no duress here, since School’s (D) threat to fire
Odorizzi (P) was not just its legal right, but its positive duty, even if it would
damage his reputation. Undue influence is a legal phrase describing persuasion
which tends to be coercive in nature, which overcomes the will without convincing
the judgement. Its hallmark is high pressure which works on mental, moral, or
emotional weakness to such an extent it approaches coercion. It does not require
proving misrepresentations of law or fact, since a person’s will may be overborne
without misrepresentation. By California’s statutory definition, undue influence
includes “taking … unfair advantage of another’s weakness of mind, or … taking a
grossly oppressive and unfair advantage or another’s necessities or distress.”
While most decided cases of undue influence involve persons in a confidential or
authoritative relationship, this is unnecessary when the complaint alleges preying
206
on weakness or distress. All that is required is that the plaintiff have a lessened
capacity to make a free contract, or that the defendant used extraordinary force. If
will was overcome against judgement, consent may be rescinded. Undue influence
usually involves several of these elements: discussing the transaction at an
unusual/inappropriate time, executing it at an unusual place, insistent demands it be
executed immediately, extreme emphasis on the consequences of delaying, using
multiple persuaders against the victim, absence of advisors, and/or statements that
there is no time to consult financial advisors or
162
attorneys. Here, School (D) used undue influence to secure Odorizzi’s (P)
signature, assuring him he should trust them and rely on their advice, that there
wasn’t time to consult an attorney, and that failing to resign would generate
publicity which would jeopardize his career elsewhere. Thus, Odorizzi (P) stated
facts sufficient to raise a triable issue of fact and survive summary judgement. We
express no opinion on the merits of Odorizzl’s (P) case, the propriety of his
continued teaching, or the timeliness of his rescission. Reversed.
Analysis:
Courts will sometimes allow contractual parties to void agreements that were
secured by “excessive” pressure. However, the decision on whether any given
persuasion was “excessive” is a highly individualistic one, and courts use a fact-
specific case-by-case analysis. The court lists scenarios that may indicate undue
influence, but the list is neither determinative nor exhaustive. Most undue influence
suits involve either a defendant who had a close personal or fiduciary relationship
with the victim (e.g., attorney, ward, agent) or a victim whose physical/mental
condition made him unusually susceptible to pressure (e.g., old, sick, senile,
uneducated). However, undue influence may be present without such relationships
or weaknesses. Perfectly rational, independent plaintiffs may claim undue influence
if their counter party used extraordinarily coercive persuasion, though they may
bear a high burden of proof.
CASE VOCABULARY
DEMURRER: Archaic term superseded by “motion to dismiss for failure to state a
claim.” It argues that, even if the complaint’s facts are true as alleged, they do not
make out an actionable claim. [Here, School (D) effectively claims that, even if it
threatened to publicize Odorizzi’s (P) arrest, that still doesn’t constitute undue
influence or duress.]
163
207
(Home Buyer) v. (Home Seller)
311 Mass. 677, 42 N.E.2d 808, 141 A.L.R. 965 (1942)
THERE IS NO LIABILITY FOR BARE NONDISCLOSURE
INSTANT FACTS Whitinsville Bank knew the house it sold to Swinton was
infested with termites, but did not tell him about it when making the sale.
BLACK LETTER RULE A party cannot be held liable for failing to disclose
information when there is no evidence of any special duty to disclose anything.
PROCEDURAL BASIS
Appeal from demurrer in action for damages.
FACTS
On or about September 12, 1938, Whitinsville Savings Bank (Whitinsville) (D)
sold Swinton (P) a house. At the time of sale, the house was infested with termites.
Whitinsville (D) knew the house was infested, and did not inform Swinton (P) of
this fact. Swinton (P) could not readily observe this condition upon inspection, and
had no knowledge of the termites’ presence until August 30, 1940. Swinton (P)
spent considerable amounts of money in repairing the damage caused by the
termites and in installing termite control to prevent the loss and destruction of his
(P’s) house.
ISSUE
Can a party be held liable for nondisclosure of information when he or she is not
under a duty to disclose the information?
208
(Qua) No. A party cannot be held liable for failing to disclose information when
there is no evidence of any special duty to disclose anything. There is no evidence
that Whitinsville (D) made any false statements or representations to Swinton (P)
regarding termites in the house. Further, Whitinsville (D) did nothing to prevent
Swinton (P) from learning this information. Without anything to show a fiduciary
relationship between Swinton (P) and Whitinsville (D), characterizing
Whitinsville’s (D) actions as false and fraudulent does nothing to advance
Swinton’s (P) claim. If Whitinsville (D) were to be held liable in this matter, then
every party in a transaction, whether buyer or seller, could be held liable for failing
to disclose any nonapparent fact that he or she is aware of which would materially
affect the value of the item or property being sold. The rule of nonliability for bare
nondisclosure is binding in this matter. Order sustaining demurrer is affirmed, with
judgment for Whitinsville (D).
Analysis:
Courts are sometimes willing to hold that failure to disclose facts to remedy a
misapprehension, like a buyer’s belief that there is no termite problem in a house,
amounts to an assertion that the undisclosed fact does not exist. Swinton is the
leading case against this position, but even the Restatement (Second) recognizes
this growing trend. It provides, in general, that nondisclosure of a particular fact
constitutes an assertion that the fact does not exist, if the party knows “that
164
disclosure of the fact would correct a mistake of the other party as to a basic
assumption on which the party is making the contract.”
165
Kannavos v. Annino
(Apartment Buyer) v. (Apartment Owner)
356 Mass. 42, 247 N.E.2d 708 (1969)
A PERSON WHO DOES SPEAK IN REFERENCE TO A PARTICULAR PIECE

OF INFORMATION MUST SPEAK HONESTLY ABOUT THAT INFORMATION
AND DIVULGE ALL MATERIAL FACTS OF WHICH HE OR SHE IS AWARE
209
INSTANT FACTS Mrs. Annino sold her apartment building to Kannavos
without telling him that the building was in violation of the local zoning ordinances.
BLACK LETTER RULE Although a party may be under no duty to disclose

information to another, if that party does speak with reference to a given point of
information, then that party is bound to speak honestly and to divulge all the
material facts bearing upon that point within that party’s knowledge.
PROCEDURAL BASIS
Appeal from findings by master for bill in equity for rescission.
FACTS
In the early 1960’s, Carrie Annino (P) bought a one-family dwelling. Without
obtaining a building permit, and in knowing violation of the local zoning ordinance,
Annino (P) converted the eight-apartment, multi-family building. In 1965, she (P)
worked with a real estate broker, Foote, to sell the property. The broker placed ads
in the newspapers, Including one which read: “income gross $9,600 yr. In lg. single
house, converted to 8 lovely, completely furn. (includ. TV and china) apts. 8 baths,
ideal for couple to live free with excellent income. By apt. only. Foote Realty.”
Apostolos Kannavos (P) contacted Foote, who gave him (P) income and expense
figures supplied by Annino (D). Kannavos (P) contracted to buy the property.
Annino (P) and Foote knew that Kannavos’s (P) reason for buying the property was
to rent the apartments later. Kannavos (P) was unaware of any zoning or building
permit violations, and would not have bought the property if he (P) had known of
any such violation. The property was worth substantially more if operated as an
apartment building than if kept as a single-family dwelling. Shortly after the sale,
the city started legal proceedings to stop the non-conforming use of property.
Kannavos (P) brought a bill in equity against Annino (D) to rescind the purchase.
The trial court overruled a demurrer, and granted a rescission based on a master’s
210
findings. Annino (D) appealed.
ISSUE
Can a party to a contract be held liable for nondisclosure after partially disclosing
material information when that party was under no special duty to disclose in the
first place?

(Cutter) Yes. Although a party may be under no duty to disclose information to
another, if that party does speak with reference to a specific point of information,
then he or she is bound to speak honestly and to divulge all the material facts
bearing upon that point within his or her knowledge. The court in Swinton applied
the longstanding rule of nonliability for bare nondisclosure. The present case,
however, differs from Swinton in two important respects. The first is that the
statements of Annino (D) and Foote went beyond the “bare nondisclosure” that
166
occurred in Swinton. Fragmentary Information, such as that provided in the ads for
the property, can be as misleading as active misrepresentation, and half-truths can
be just as valid causes of actions as total lies. Annino (D) and Foote knew that
Kannavos (P) was interested in using the building for apartments. Furnishing
Kannavos (P) with income and expense figures demonstrates this knowledge, as
does the sale of multiple refrigerators, stoves, and pieces of furniture that were
appropriate for use in a multi-apartment building to Kannavos (P). In addition,
although Kannavos (P) did not diligently research the public records to learn of the
zoning violations, previous cases have not barred recovery for those who did not
use due diligence. The ads used in selling the property effectively stated that the
property was multi-family housing suitable for investment, and that the housing
could continue to be used for that purpose. Because Annino (D) went so far as to
say this, she (P) was required to say more about the property. By failing to mention
the zoning problems, Annino (D) was responsible for misrepresentation. Decree
overruling demurrer affirmed. Final decree reversed to allow further consideration
of relief, due to fire that occurred on property.
Analysis:
In this case, partial disclosure results in misrepresentation, and the court finds an
exception to the general rule of no liability for nondisclosure where no duty exists.
There are several other exceptions to this rule as well. For example, disclosure
may be required by statute or regulation. Also, positive action intended to hamper
another party’s investigation into the facts of a transaction can result in liability for
211
misrepresentation. Another exception involves a party making a statement in good
faith, but then later learning facts that prove the earlier statement was not true, or
having that earlier statement rendered false by subsequent events. Such party would
have to disclose the new information if he or she knew that the other party was
acting in reliance upon that original statement.
167

(Athletes’ Rep) v. (Competing Agency)
178 F.3d 862 (7th Cir. 1999)
ASPIRATIONAL PUFFING IS NOT FRAUD
INSTANT FACTS Rodriguez hired Speakers of Sports (P) to represent him, and
then switched to ProServ (D)
BLACK LETTER RULE A promise that is intended as aspirational, and that a

reasonable person in the position of the promisee would understand as an
expression of hope, is not an enforceable commitment.
PROCEDURAL BASIS
Appeal from an order granting summary judgment for ProServ (D).
FACTS
Rodriguez, a professional baseball player, signed a series of one-year, terminable-
at-will contracts with Speakers of Sports (P). ProServ (D), another agency,
attempted to lure Rodriguez from Speakers (P) by promising to get him between $2
and $4 million in endorsements if he switched to ProServ (D). Rodriguez signed
with ProServ (D), but switched to another agency when ProServ (D) failed to get
him any significant endorsements. Speakers (P) brought an action against ProServ
212
(D), alleging that ProServ’s (D) promise of endorsements was fraudulent and
induced Rodriguez to terminate his contract with Speakers (P). The trial court
granted ProServ’s (D) motion for summary judgment.
ISSUE
Was ProServ’s (D) promise of endorsements fraudulent?

(Posner, C.J.) No. A promise that is intended as aspirational, and that a reasonable
person in the position of the promisee would understand as an expression of hope,
is not an enforceable commitment. The endorsements that were promised would be
paid for by other companies, not ProServ (D). It is not contended that ProServ (D)
warranted a minimum level of endorsements, and it is not plausible that ProServ
(D) was making such a warranty. The only reasonable meaning to attach to
ProServ’s (D) so-called promise is that ProServ (D) would try to get as many
endorsements for Rodriguez as possible, and that ProServ (D) was optimistic that
there would be at least $2 million worth of endorsements.
In general, there is nothing wrong with one sports agent trying to take a client from
another, as long as it can be done without a breach of contract. That is known as
competition. Speakers (P) argues that ProServ (D) may not compete by fraud, by
making a promise they know they can’t fulfill. But the promise in this case was not
a promise at all. Affirmed.
Analysis:
Speakers (P) has a particularly weak position. The contracts with Rodriguez were
terminable at will, so he could have left Speakers (P) any time he felt like it. The
“at-will” characterization of the contracts would seem to limit any inquiry as to his
motive for terminating the agreement.
169

(Dance Student) v. (Dance School)
212 So.2d 906 (Fla. Distr. Ct. App. 1968)
EXPERTS’ OPINIONS MAY BE ACTIONABLE AS MISREPRESENTATION
213
INSTANT FACTS After a dance instructor induces a widow to buy numerous
dance lessons by overpraising her skill, she sues for misrepresentation.
BLACK LETTER RULE False statements of opinion by experts with superior

knowledge are actionable as misrepresentations.
PROCEDURAL BASIS
In contract action seeking rescission, appeal from summary judgement for
defendant.
FACTS
Dance school Arthur Murray, Inc.’s (D) owner Davenport (D) encouraged lonely
widow Vokes (P) to take dance classes. Davenport (D) constantly told Vokes (P)
she was an excellent dancer, with great potential for learning through additional
instruction, and flattered and cajoled her. Over 16 months, Vokes (P) bought 14
dance lesson packages, entitling her to 2302 hours of instruction, for $31K. Later,
when Vokes (P) realized she had no talent and could not even hear the rhythm, she
sued Arthur Murray (D) for misrepresentation. Davenport (D) and Arthur Murray
(D) defended, contending such talk was permissible sales puffery or non-actionable
opinion. At trial, the court dismissed for failure to state a claim. Vokes (P) appeals.
ISSUE
May a contractual party rescind if the contract was induced by an expert’s falsely
optimistic opinions?

(Pierce) Yes. False statements of opinion by experts with superior knowledge are
actionable as misrepresentations. Assuming Vokes’ (P) complaint’s allegations are
true, they state a claim for misrepresentation. Vokes’ (P) complaint alleges she
214
embarked on an almost endless pursuit of the terpsichorean art, influenced by a
continuous barrage of flattery, false praise, panegyric encomiums, overreaching
blandishment and cajolery. [See definitions below. And be sure to fill out the
attached petition to censure Judge Pierce.] Her purchases of dance lessons were
procured by Davenport’s (D) and Arthur Murray’s (D) false representations that
she had excellent potential, and was improving. Vokes (P) alleges their
representatives were knowingly false. Vokes (P) also alleges she relied on
Davenport’s (D) opinion as an expert judge of dancing ability. Generally,
misrepresentations must be factual rather than opinion to be actionable. But this
rule is inapplicable when a fiduciary relationship exists between the parties, or
where the representor employed some artifice or trick, or where the parties do not
deal at “arm’s length,” or where the victim lacks equal opportunity to learn of the
represented facts’ truth/falsity. Statements by parties having superior knowledge
may be regarded as statements of fact, even though they would be considered
opinions coming from non-experts. Here, it is conceivable Davenport (D) and
Arthur Murray (D) had “superior knowledge” of whether Vokes (P) had “dance
potential.” Even where a party owes no duty to disclose known information or
170
answer inquiries, if he undertakes to do so, he must disclose the whole truth. Here,
it is possible the defendants acquired a duty to tell Vokes (P) her slow and
awkward progress did not justify her vast outlay for hundreds of hours of additional
instruction. We repeat that, where parties contract at arms’ length without inequities
or inherently unfair practices, courts generally will leave the parties where they
find themselves. But we cannot say as a matter of law that these elements were
present here. Reversed.
Analysis:
Vokes provides a rare example of sales “puffery” being actionable as

“misrepresentation.” Puffery is a salesperson’s exaggerated opinion of his or her
products’ worth or potential, e.g., “This is the hottest stock I’ve ever seen! It’s
poised to really take off!” Usually, courts tolerate it on the basis that it involves no
false factual statements, just unjustified optimism and boundless enthusiasm. Vokes
takes the unusual position that an opinion, when delivered by an expert as his
professional opinion, may be equivalent to a statement of fact. Here, it is likely that
Vokes (P) continued her dance training because she believed Davenport’s (D)
estimation of her skill, though it also seems she was just lonely and likely to
believe similar flattery from anyone. Vokes’ s holding is still the exception rather
than the rule.
215
CASE VOCABULARY
BLANDISHMENT: Praise; flattery.
ENCOMIUM: Praise, especially in an official commendation.
PANEGYRIC: Praise, especially in a eulogy.
PUFFERY: Salesmen’s inflated overestimation of their products’ worth. Since
puffery does not involve factual statements, it is usually not actionable as
“misrepresentation.”
TERPSICHOREAN: Relating to dancing. In Greek myth, Terpsichore was Muse
(angel) of dance.
216
171
217
218
CHAPTER FIVE
219
Determining the Parties’ Obligations under the Contract

Instant Facts: A store owner tries to hold his landlord to an oral agreement which
conflicts with their written lease.
Black Letter Rule: An oral agreement cannot be considered a separate,
breachable contract if it falls within the scope of a contemporaneous, completely
integrated written agreement.
Masterson v. Sine
Instant Facts: A married couple takes possession of their in-laws’ ranch, but
refuses to honor their in-laws’ option to buy it back.
Black Letter Rule: A court, when considering a disputed contract, may consider
evidence of a collateral agreement if it is of a sort that would naturally be made
separately from the disputed contract.
Bollinger v. Central Pennsylvania Quarry Stripping and Construction Co.
Instant Facts: A property owner discovers a missing term in their contract with a
construction company.
Black Letter Rule: A court of equity is permitted to reform a contract in response
to a mutual mistake which rendered the contract’s terms incomplete.
Instant Facts: The parties to a turbine repair contract dispute the interpretation of
an indemnification clause in the agreement.
Black Letter Rule: Extrinsic evidence of a party’s Intent is admissible to assist in
the interpretation of a disputed contract term.
Instant Facts: Pixey (D) agreed to sell a minimum of 50,000 trigger locks per year,
but Delta (P), the distributor, terminated the contract and sued for damages when
the minimum number of units was not sold.
Black Letter Rule: Extrinsic evidence will be admitted to explain an ambiguous
contract term.
Instant Facts: Greenfield (P) signed an agreement that transferred her ownership
rights in her singing group’s recordings to Philles Records (D), but claimed that
relicensing for use by new technologies was not covered by the agreement.
220
Black Letter Rule: The court may not consider extrinsic evidence to interpret a
contract or add terms if the agreement on its face is reasonably susceptible of only
one meaning.
Instant Facts: An Integrated real estate contract gave either party the option to
cancel. When the seller unexpectedly cancels, the buyer demands specific
performance, contending the option was intended for his benefit alone.
Black Letter Rule: An unambiguous and final contract may not be reformed based
on parol evidence.
172

Instant Facts: A loan document between Trident Center (P) and Connecticut
General (D) prohibited prepayment before a certain date, but Trident (P) argued
that extrinsic evidence should be admitted to show that prepayment was in fact
permitted.
Black Letter Rule: Under California law, relevant, extrinsic evidence may be
always admitted to show the intent of the parties to a written agreement.
Instant Facts: An importer and an exporter dispute the meaning of the word
“chicken” in their supply contract.
Black Letter Rule: The subjective interpretation of a contract term must be
coupled with objective evidence supporting that Interpretation.
Instant Facts: The parties to a transaction involving horse meat scraps dispute the
practical interpretation of the terms of their contract.
Black Letter Rule: If appropriate, a court may rely on trade usage to inform its
interpretation of a seemingly unambiguous contract term.
Instant Facts: Nanakuli Paving & Rock Co. (P) sued Shell Oil Co. (D) for breach
of their 1969 contract based on Shell’s (D) failure to protect Nanakuli (P) against
increases in asphalt prices.
Black Letter Rule: A court may use evidence of standard industry practices and
prior performance of parties to the contract to interpret the contract, if such
221
evidence is not inconsistent with the terms of the contract.
Instant Facts: Royster (D), seller of phosphate, who had a contract with Columbia
Nitrogen Corp. (P) for sale of phosphate, sued the latter for damages for breach of
contract when Columbia (P) failed to buy the amount of phosphate agreed upon
under their contract.
Black Letter Rule: Evidence of custom and usage or course of dealings is not
admissible where it contradicts the express, plain, and unambiguous terms of a
validly written and fully integrated contract.
Instant Facts: Two parties to a cotton transaction disagree as to the exact identity
of a ship named in their contract.
Black Letter Rule: A contract can be voided if it contains an ambiguous term
which was, in fact, interpreted differently by the parties.
Oswald v. Allen
Instant Facts: Two coin collectors each have a different interpretation of a
contract for the sale of Swiss coins.
Black Letter Rule: A contract should be voided if the parties each held different
understandings of an ambiguous term and neither party should have been aware of
the other’s understanding.
Instant Facts: Colfax (P) signed a collective bargaining agreement that had an
erroneous term in it, and when the corrected agreement was sent to it, Colfax (P)
tried to renegotiate, saying that it had no contract with Local 458–3M.
Black Letter Rule: A party to a contract who agrees to a term knowing that the
term is ambiguous may not obtain rescission of the contract based on the ambiguity
of that term.
173

Instant Facts: A fire blanket manufactured by Auburn Manufacturing (D) did not
prevent a fire, and Black & Veatch (P) brought a claim for breach of the warranty of
merchantability.
Black Letter Rule: A breach of the warranty of merchantability is shown when a
222
product does not perform according to the reasonable expectations of an ordinary
user or consumer.
Instant Facts: Lewis (P) purchased oil recommended by Mobil (D) for use in
hydraulic machinery, but the oil did not function properly and Lewis’s (P)
machinery was damaged.
Black Letter Rule: An implied warranty of fitness arises when the seller has
reason to know of the use for which goods are purchased and the buyer relies on the
seller’s expertise in supplying the proper product.
Instant Facts: South Carolina Electric and Gas (P) brought a breach of warranty
claim against Combustion (D), and Combustion (D) claimed that the warranties of
merchantability and fitness had been disclaimed.
Black Letter Rule: A disclaimer of warranties will be effective if the
circumstances surrounding the sale are sufficient to draw the buyer’s attention to the
exclusion of warranties.
Instant Facts: Henningsen sued Bloomfield for breach of warranty after the
steering in his new car failed, and Bloomfield countered with a disclaimer written
in fine print.
Black Letter Rule: Disclaimers and attempted limitations of warranties or
liability, whether in a public, quasi-public, or private contract, are not enforceable
unless the limitation is fairly and honestly made and understandingly entered into.
175

(Store owner) v. (Landlord)
281 Pa. 320, 126 A. 791 (1924)
PENNSYLVANIA SUPREME COURT APPLIES THE PAROL EVIDENCE RULE

TO AN ORAL AGREEMENT THAT FALLS WITHIN THE SCOPE OF A
CONTEMPORANEOUS WRITTEN CONTRACT
223
INSTANT FACTS A store owner tries to hold his landlord to an oral agreement
which conflicts with their written lease.
BLACK LETTER RULE An oral agreement cannot be considered a separate,

breachable contract if it falls within the scope of a contemporaneous, completely
integrated written agreement.
PROCEDURAL BASIS
FACTS
Gianni (P) owned a small store inside an office building that was taken over by R.
Russell & Co., Inc. (Russell) (D). The parties negotiated a new lease for Gianni
(P), agreeing on its terms. Gianni (P) was permitted to sell fruit, candy and soda,
among other items, but he was not allowed to sell tobacco. Gianni (P) claims,
however, that he and Russell’s (D) agent came to a separate oral agreement during
the course of lease negotiations. This agreement, he alleges, gave him the exclusive
right to sell soft drinks in the building. This provision does not appear in the
written agreement. Russell (D) subsequently rented space to a drug company,
permitting it to sell soft drinks as well. Gianni (P) then sued Russell (D) for breach
of the oral agreement. He presented a witness who heard Russell’s (D) agent agree
to the exclusivity provision. In addition, Gianni (P) testified that the oral agreement
was mentioned again at the signing of the written lease. Indeed, he claims that he
signed the new lease in reliance on the oral agreement. Russell (D) denies the
existence of any agreement other than the written lease. Nonetheless, the trial court
found for Gianni (P). Russell (D) appeals.
ISSUE
Is an oral agreement which conflicts with a contemporaneous written agreement
224
enforceable?
(Schaffer) No. Gianni (P) argues that he and Russell (D) had an oral agreement
which was completely independent of their written agreement. This is not the case.
Once the parties to a negotiation arrive at a written contract, it is presumed to be
the best and only evidence of their obligations. At this point, all of their preliminary
negotiations are merged with the written contract. The court will not consider
evidence of other agreements which would alter the contract’s terms, otherwise
known as parol evidence, unless a party alleges fraud, accident or mistake. That
said, it is still necessary to examine the contract itself in order to determine
whether it constitutes the entire agreement between the parties. If the contract’s
terms appear to satisfy its goals, without any uncertainty, then the contract is
presumed to be the complete agreement between the parties. In that event, the court
must determine whether the oral agreement falls within the field of the written
contract. If it does, then they cannot be considered
176
separate agreements and the written contract will govern the parties’ relationship.
However, if the oral agreement does not fall within the field of the written contract,
it may be considered a wholly separate contract. In order to make this
determination, the court must decide whether the parties would naturally have
included the oral agreement within the written lease. In other words, we must
decide whether the subject matter of the two agreements is so interrelated that they
would normally be contained in a single contract. In this case, the terms of the
written contract control Glanni’s (P) ability to sell certain items in the store. He is
permitted to sell soda, candy and other items, but is not permitted to sell tobacco.
These terms would naturally cover an agreement that granted Gianni (P) the
exclusive right to sell soft drinks in the building. In fact, Gianni (P) claims that he
agreed not to sell tobacco as consideration for this right. This makes it more
difficult to interpret the oral agreement as a distinct contract. Normally, the
consideration for a promise and the promise itself are contained in a single
contract. With that in mind, we find that the subject matter of Glanni’s (P) written
contract encompasses the alleged oral agreement. That being the case, we cannot
recognize an action on the oral contract as a separate agreement. We are also
precluded from considering it as evidence of the terms of the written contract since
it would alter those terms. The judgement of the trial court will be reversed and
entered, Instead, in Russell’s (D) favor.
Analysis:
225
According to the Restatement, two types of agreements are subject to the parol
evidence rule integrated agreements and completely integrated agreements. An
integrated agreement discharges prior agreements to the extent that it is inconsistent
with them. This rule precludes consideration of prior agreements that would alter
the terms of a current agreement. A completely integrated agreement, on the other
hand, discharges prior agreements to the extent that they fall within its scope. A
completely integrated agreement is usually identified as such by a merger clause. A
merger clause might read, “This agreement is the complete and final statement of
any and all rights and obligations of the parties.” Interestingly, judge Schaffer
applies the law concerning both types of agreements to Glanni’s (D) lease. This
should not be surprising since a completely integrated agreement is, necessarily, an
integrated agreement. More often than not, though, he treats the lease as a
completely integrated agreement. He refers to this agreement as the “entire
agreement” or the “complete agreement” between the parties. Judge Schaffer then
goes on to determine whether the exclusivity agreement falls within the “field” or
scope of the written lease. However, it is more important to keep in mind the policy
behind the parol evidence rule. The rule is intended to preserve the integrity of
written contracts. Courts do not look favorably on a party’s efforts to circumvent a
written agreement by alleging other communications that would alter its terms. In
fact, the rule is so commonly applied that it exists, in substantially the same form, in
the Uniform Commercial Code as in the Restatement (Second) of Contracts.
CASE VOCABULARY
MERGER: A term which describes the integration of prior agreements into a
completed written contract
PAROL EVIDENCE RULE: The simplest version of this rule can be found in the
Uniform Commercial Code. The rule renders an earlier or contemporaneous oral
agreement unenforceable if it contradicts the terms of a current written agreement.
The same rule can be found, albeit in a slightly more complicated form, in the
Restatement (Second) of Contracts.
177
Masterson v. Sine
(In-Laws) v. (Ranch Owners)
68 Cal.2d 222, 65 Cal.Rptr. 545, 436 P.2d 561 (1968)
CALIFORNIA SUPREME COURT DISTINGUISHES BETWEEN A GRANT

DEED OPTION AND A SEPARATE CONTRACT LIMITING ITS
ASSIGNABILITY
226
INSTANT FACTS A married couple takes possession of their in-laws’ ranch,
but refuses to honor their in-laws’ option to buy it back.
BLACK LETTER RULE A court, when considering a disputed contract, may

consider evidence of a collateral agreement if it is of a sort that would naturally be
made separately from the disputed contract.
PROCEDURAL BASIS
Appeal from a trial court judgement in favor of the plaintiff in an action for
declaratory relief.
FACTS
The Mastersons (P) owned a piece of property as tenants in common [the actual
plaintiffs in this case were Mrs. Masterson and her husband’s trustee in
bankruptcy]. They transferred this property to Mr. Masterson’s (P) sister and her
husband, Lu Sine (D). The Mastersons (P) retained an option in the grant deed to
buy back the land within ten years. If they exercised the option, the Mastersons (P)
were obligated to pay an amount equal to “the same consideration as paid
heretofore,” plus the depreciation value of any improvements that the Sines (D)
made to the property after two and a half years. These confusing payment terms
were part of the subsequent litigation between the parties. The litigation was
sparked by the Masterson’s (P) desire to repurchase the property. At the time, Mr.
Masterson (P) was bankrupt. His trustee in bankruptcy and Mrs. Masterson (P)
brought an action for declaratory relief. They sought an interpretation of the
agreement which would secure their right to exercise the repurchase option. During
the trial, the court admitted extrinsic evidence which resolved the confusing
payment terms. The court found that the parties intended “the same consideration as
paid heretofore” to equal $50,000. In addition, the parties intended the depreciation
value of any improvements to be measured by United States income tax regulations.
The Sines (D), however, wanted to present extrinsic evidence that the option
227
provision was nonassignable because it was intended to keep the property in the
family. As a result, the Sines (D) argued that the option could not be exercised by
Masterson’s (P) trustee in bankruptcy. The trial court rejected this evidence as a
violation of the parol evidence rule and found for the Mastersons (P). The Sines
(D) appeal. Rather than dispute the exclusion of their own evidence, they claim that
the trial court erred in admitting extrinsic evidence to clarify the option payment
terms.
ISSUE
Can extrinsic evidence be used to clarify the terms of an agreement which would
otherwise remain too uncertain to be enforceable?

(Traynor) Yes. The trial court was justified in admitting extrinsic evidence in order
to further the goals of the parties by clarifying the terms of their agreement. The
trial court erred, however, in refusing to admit any evidence regarding the
Mastersons’ (P) right to assign the option. The
178
crucial question in this case is whether the agreement between the Mastersons (P)
and the Sines (D) was an integration. By this, we mean a contract which the parties
intended to be their final and exclusive agreement. There are two ways to
determine whether a contract is an integration. First, a court can rely on the
language of the contract itself. Frequently, a contract will contain language which
identifies it as an integration. If so, the parol evidence rule precludes the
consideration of evidence which would alter the contract’s terms. Without this
language, a court can either find that the contract is not an integration, or it can look
at the circumstances surrounding the transaction to make its determination.
However, even if the contract states that it is an integration, it may be necessary to
look at other agreements between the parties in order to decide whether they fall
within its scope or whether they are separate agreements. This is particularly
necessary when a contract is silent on a point which is disputed by the parties. As a
result, it has proven impossible to rely solely on the language of the contract in
order to determine its status. This does not obviate the need for the parol evidence
rule, however. Several policies have been advanced for the preservation of the
rule. First, the written word may be inherently more reliable than a party’s memory
of contract negotiations. Second, courts are afraid that witnesses will be
encouraged to manufacture contract terms which are favorable to the respective
parties. Finally, courts fear that juries may be overly sympathetic to parties who
seek the introduction of parol evidence, since they are usually the underdogs in the
228
dispute. All of these policies reflect a desire to ensure the credibility of evidence
in contract disputes. The Restatement and the Uniform Commercial Code take two
different approaches to this evidence. The Restatement admits evidence of
collateral agreements only if the parties would naturally have made them as
separate agreements from the contract in question. The UCC excludes this evidence
only if the parties would certainly have made the agreements part of the contract. In
this case, the contract does not state that it is an integration. It is also silent on the
question of assignability. However, a deed, by its very nature, is unlikely to
embody all of the rights and obligations of the parties. The Mastersons (P) may
have included the option provision to put potential buyers on notice of their
reserved rights. There is no evidence to suggest that the parties understood the
danger of not including the entire agreement in the deed. As a result, the
Restatement-and the UCC tests are both satisfied. The assignment provision would
naturally be agreed to in a separate document, calling for its admission under the
Restatement. Similarly, under the UCC, it cannot be said that the parties would
certainly have included the assignment provision in the grant deed since it was not
the proper document in which to place such a provision. The Mastersons (P), on the
other hand, claim that option provisions are presumptively assignable regardless of
the language of the contract. This does not prevent the court from considering parol
evidence which might defeat this presumption, however. As a result, the trial court
erred in excluding evidence on the assignment provision and its judgement must be
reversed.
DISSENT
(Burke) I dispute the majority’s findings on virtually every issue in this case. First,
the majority violates the spirit of the parol evidence rule by permitting evidence of
a collateral agreement to obliterate an existing written agreement. This
compromises the reliability of many transactions, including conveyances and
debtor/creditor relationships. The central problem with the majority’s approach is
its failure to acknowledge the strength of option agreements in general, and the
nature of the option in this case, in particular. Options are, by nature, assignable
property rights. The only way to limit an option is by specific language in the
agreement. If this rule were otherwise, a party to a contract could always find a
way out of an unfavorable option by fabricating an agreement which limited its
effect. In this case, the Mastersons’ (P) creditor is deprived of a valid property
right as a result of this approach. The majority invites this result by characterizing
the parol evidence rule as a rule of credibility. The parol evidence rule is
specifically designed to exclude any extrinsic evidence of a contract’s terms, not
just evidence which might be unreliable. This is because extrinsic evidence is
presumed to be unreliable. In addition, the majority favors the Restatement’s
approach to the parol evidence rule. California courts must now determine whether
229
an agreement would naturally be arrived at separately from
179
the disputed contract. Courts might easily disagree as to whether an agreement was
naturally separate or not, however. Finally, the majority relies on the fact that the
agreement is a deed in order to determine that the absence of the assignment
provision is to be expected. This is absurd. If the option itself is contained in the
deed, why would the parties have shrunk from including one more line, limiting the
option’s assignability. For all of these reasons, I would affirm the judgement of the
trial court.
Analysis:
Justice Traynor is willing to look at all aspects of the parties’ transaction in order
to determine whether the parol evidence rule applies here. Justice Burke is clearly
uncomfortable with this approach. He is more likely to favor the “four comers”
approach to contract interpretation. This approach limits the court’s attention to the
language of the contract. However, Justice Burke loses sight of the fact that deeds
and contracts are not equivalent documents. Indeed, he berates the majority for
resting its interpretation on this distinction. However, parties do not usually put the
details of a real estate transaction in the deed. In this case, the Mastersons (P) were
obviously concerned with securing their right to repurchase the property. They
might have put this provision in the deed in order to avoid fighting a future
purchaser for the return of the property after it was already sold. Once they added
the provision, however, they invited the difficulties that arose in this case—namely,
that any caveats that might limit their repurchase option would normally be in the
contract of sale, another legally enforceable document. Think of the deed as a
declaration of rights and the contract of sale as an agreement regarding those rights.
The majority relies on this distinction as the key to its analysis.
181
Bollinger v. Central Pennsylvania Quarry Stripping and Construction

Co.
(Property Owner) v. (Construction Company)
425 Pa. 430, 229 A.2d 741 (1967)
PENNSYLVANIA SUPREME COURT AFFIRMS THE EQUITABLE

REFORMATION OF A CONTRACT TO CONFORM TO THE PARTIES’
INTENT
230
INSTANT FACTS A property owner discovers a missing term in their contract
with a construction company.
BLACK LETTER RULE A court of equity is permitted to reform a contract in

response to a mutual mistake which rendered the contract’s terms incomplete.
PROCEDURAL BASIS
Appeal from an equity court decree in favor of the plaintiff in an action for contract
reformation.
FACTS
The Central Pennsylvania Quarry Stripping Construction Company (Central) (D)
had an agreement permitting it to deposit construction waste on the Bollingers’ (P)
property. Central (D) was working on the Pennsylvania Turnpike and the
Bollingers’ (P) property was conveniently nearby. The Bollingers (P) thought the
parties had a mutual understanding regarding the disposition of the waste. They
were under the impression that Central (D) would remove the topsoil from their
property before depositing the construction waste. Central (D) was then supposed
to restore the topsoil, covering whatever waste they deposited on the property. In
fact, Central (D) followed this plan at the beginning of the job. After a while they
stopped removing and replacing the topsoil. When the Bollingers (P) complained,
Central (D) told them there was nothing they could do. In fact, the agreement
between the Bollingers (P) and Central (D) did not contain any provisions
regarding the removal and replacement of topsoil. The Bollingers (P) sued for
reformation of the contract to include their original understanding. The equity court
granted their request. Central (D) now appeals.
ISSUE
Can a court of equity add terms to a written contract on the basis of a
contemporaneous oral agreement?
231
(Musmanno) Yes. A court of equity has the power to amend a written contract in
order to make it conform to the understanding of the parties. The need for
reformation might arise from a mistake which led to an incomplete statement of the
parties rights. This mistake must have been mutual in order for reformation to be
proper. This does not mean that both parties must admit to the mistake. It simply
means that the court must determine that a mutual mistake has been made. Normally,
a party is bound by the terms of a completed, signed contract. In the case of mutual
mistake, though, it is appropriate for an equity court to acknowledge the original
intent of the parties. In this case, the Chancellor was satisfied that the parties had
agreed to the topsoil provisions. Indeed, Central (D) began performance as if it
were bound by those provisions. It removed and replaced the Bollingers’ (P)
topsoil as they went along. They also provided a
182
similar service to the Bollingers’ (P) neighbors. Despite the Chancellor’s findings,
Central (D) tried to garner a rehearing based on newly discovered evidence. This
evidence is not at odds with the Chancellor’s findings, however. As a result, the
equity court’s decree is affirmed.
Analysis:
It is important to recall the special role that courts of equity play in the legal
system. They are specifically empowered to resolve disputes according to
principles of fairness, as opposed to strict rules of law. Even though most equity
courts have been merged with courts of law, a plaintiff may still request equitable
relief if the circumstances call for it. In this case, the evidence was sufficient for
the Chancellor to determine that it would be unfair to hold the Bollingers (P) to the
written contract. This may have been an easy case, considering that Central (D)
acted according to the terms of the topsoil provisions despite their absence in the
contract. However, the same result would almost certainly have been unavailable in
a breach of contract action, because the topsoil provisions were not the sort of
terms that would be found anywhere but in the written agreement.
CASE VOCABULARY
REFORMATION: An equitable remedy which permits the court to reinterpret a
contract in conformance with the demonstrated intent of the parties.
183
232
(Turbine Owner) v. (Turbine Repairmen)
69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641 (1968)
CALIFORNIA SUPREME COURT ADMITS EXTRINSIC EVIDENCE TO

SETTLE A DISPUTE OVER A CONTRACT TERM
INSTANT FACTS The parties to a turbine repair contract dispute the

interpretation of an indemnification clause in the agreement.
BLACK LETTER RULE Extrinsic evidence of a party’s Intent is admissible to

assist in the interpretation of a disputed contract term.
FACTS
G.W. Thomas Drayage & Rigging Co. (Thomas) (D) agreed to replace the cover on
Pacific Gas & Electric Co.’s (PG&E) (P) steam turbine. The agreement required
Thomas (D) to indemnify PG&E (P) against any property damage resulting from
Thomas’s (D) work. To that end, Thomas (D) was obligated to purchase an
insurance policy with more than $50,000 liability coverage for property damage.
PG&E (P) was to be listed as an additional insured. In addition, PG&E (P) was
supposed to be specifically covered for damage to its property. Thomas (D)
subsequently damaged PG&E’s (P) engine in the course of its work. PG&E (P) then
sued Thomas (D), requesting the cost of repairs under the indemnification clause.
Thomas (D) argued that the indemnification clause only covered damage to
property owned by third parties. The trial court rejected its proof on this issue,
however. The judge acknowledged that the indemnification clause was of a sort
which normally covered only the property of third parties. Nonetheless, he decided
that the plain language of the contract indemnified against damage to PG&E’s (P)
property as well. The trial court then found in favor of PG&E (P). Thomas (D)
appeals.
233
ISSUE
Is a court required to admit extrinsic evidence which may assist in the
interpretation of a disputed contract term?
(Traynor) Yes. It is not appropriate for a judge to presume that his interpretation of
particular contract language is so secure that it could not be swayed by relevant
evidence to the contrary. The judge’s own linguistic ability is not infallible, nor is
the language in the contract likely to be free from any ambiguities. We understand
that many judges rely on particular language to give rise to certain contractual
obligations. However, California courts should not rely on the magical incantation
of special phrases in order to create and destroy contract rights. Contractual
obligations are created by the intent of the parties. If a court can determine this
intent from the language of the contract, then it need not admit any further evidence.
However, language is seldom so clear as to warrant this approach. Ordinarily, the
court must admit any evidence which is “relevant to prove a meaning to which the
language of the instrument is reasonably susceptible.” This rule does not
compromise the parol evidence rule, which still precludes the consideration of
evidence which would add to or vary the terms of a contract. Instead, the rule
protects the parties’ intent by using the circumstances surrounding the transaction as
a guide to
184
the meaning of their contract. The judge must at least take a preliminary look at the
parties’ evidence in order to determine if it should be admitted. He should
endeavor to place himself in the circumstances in which the parties found
themselves at the time of contracting. The judge can do this through the
consideration of evidence regarding the contract’s object, nature and subject matter,
among other things. If the court cannot settle on a single interpretation of the
contract’s language at this point, then extrinsic evidence should be admissible to
further its interpretation. In this case, the trial court erred in two ways. First, the
court refused to consider extrinsic evidence which was relevant to the
determination of whether the Indemnification clause covered PG&E’s (P) property.
Second, the court failed to admit this evidence even though the indemnification
clause was equivocal on this point. As a result, the trial court’s judgement must be
reversed.
Analysis:
Chief Justice Traynor’s views are controversial. Some commentators feel that his
234
approach subverts the parol evidence rule to the point where there is little left to
enforce. He does walk a fine line between admitting evidence of subjective intent
and permitting that intent to govern and change the contract in a way that violates
the parol evidence rule. He defends this approach as a means of protecting the
intent of the parties. There is validity in this defense. Contracts are supposed to
reflect the common intent of the parties. When the language of the contract itself
fails to make this intent clear, a court must resort to other evidence of the parties’
intent in order to preserve the enforceability of the contract. As shown in Oswald v.
Allen, there is a point at which this evidence fails to yield a consensus and the
contract is unenforceable. Chief Justice Traynor tries to avoid this result rather than
surrender to it without a fight.
185

(Supplier) v. (Distributor)
69 Cal. 2d 525, 446 P.2d 785, 72 Cal. Rptr. 785 (1968)
AMBIGUOUS TERMS MAY BE EXPLAINED BY PAROL EVIDENCE
INSTANT FACTS Pixey (D) agreed to sell a minimum of 50,000 trigger locks
per year, but Delta (P), the distributor, terminated the contract and sued for damages
when the minimum number of units was not sold.
BLACK LETTER RULE Extrinsic evidence will be admitted to explain an

ambiguous contract term.
PROCEDURAL BASIS
Appeal from a judgment for Delta Dynamics (P).
FACTS
235
Pixey (D), a partnership of which Arioto (D) was a member, entered into a
distributorship agreement with Delta Dynamics (P). The agreement provided that
Pixey (D) would sell trigger locks provided by Delta (P). Pixey (D) agreed to sell
a minimum of 50,000 units the first year, and 100,000 units in each of the following
four years. If Pixey (D) failed to meet the minimum sales, the agreement was
“subject to termination.” In case of breach by either party, “the party prevailing in
any action for damages or enforcement of [the] Agreement shall be entitled to
reasonable attorneys’ fees.”
During the first year, Pixey (D) took only 10,000 units. Delta (P) terminated the
contract and sued Pixey (D) for damages. Pixey (D) argued that the termination
provision was the sole remedy, but the trial court would not allow Pixey (D) to
introduce evidence to prove that meaning.
ISSUE
Should Pixey (D) have been allowed to introduce the extrinsic evidence?

(Traynor, C.J.) Yes. Extrinsic evidence will be admitted to explain an ambiguous
term. The termination clause may have been intended to set out the exclusive
remedy for failure to meet the sales quota, to state the condition under which Delta
(P) would be excused from the contract, or for both purposes. The clause is
reasonably susceptible to the meaning advanced by Pixey (D), and there is nothing
in the contract that precludes that meaning. The provision allowing attorneys’ fees
for a breach of contract is not rendered meaningless, as that provision would still
apply to other breaches of the contract. Reversed.
Analysis:
The termination provision in the contract is clear about the grounds for termination.
The ambiguity arises when the question is whether that clause makes termination
the exclusive remedy for failure to meet the minimum quota. The clause does not
require termination, but says that the agreement is “subject to” termination.
186
CASE VOCABULARY
PAROL EVIDENCE: Oral or verbal evidence; that which is expressed by speech,
and not by writing.
187
236
(Singer) v. (Record Producer)
98 N.Y.2d 562, 780 N.E.2d 166, 750 N.Y.S.2d 565 (2002)
CALIFORNIA AND NEW YORK LAW DIFFER ON CONTRACT

INTERPRETATION
INSTANT FACTS Greenfield (P) signed an agreement that transferred her

ownership rights in her singing group’s recordings to Philles Records (D), but
claimed that relicensing for use by new technologies was not covered by the
agreement.
BLACK LETTER RULE The court may not consider extrinsic evidence to
interpret a contract or add terms if the agreement on its face is reasonably
susceptible of only one meaning.
PROCEDURAL BASIS
Appeal from an order affirming a judgment for Greenfield (P).
FACTS
Greenfield (P) was a member of a singing group, “The Ronettes.” In 1963,
Greenfield (P) and the other members of the group signed a recording contract with
Philles Records (D). The contract provided that Greenfield (P) and her group
would perform exclusively for Philles (D), and that Philles (D) would acquire an
ownership right to the recordings of the Ronettes’ musical performances. The
ownership provision stated that “[a]ll recordings made hereunder … shall be
entirely [Philles’s] property …. [Philles] shall have the right to make phonograph
records, tape recordings or other reproductions of the performances embodied in
such recordings by any method now or hereafter known, and to sell and deal in the
237
same….” The agreement also provided for royalties for the Ronettes. Greenfield
(P) and the other members of the group shared a $15,000 advance from Philles (D),
but received no further payments.
The Ronettes recorded several songs for Philles (D). In 1967, the group disbanded,
and Philles (D) eventually went out of business. Greenfield (P) married Phil
Spector, the owner of Philles, in 1968, but they separated and ultimately divorced
in 1974. As a part of the divorce settlement, Spector and Greenfield (P) executed
mutual releases that purported to resolve all claims and obligations between them,
including those between Spector’s companies and Greenfield (P).
Some years after the Ronettes disbanded, Philles (D) began to license recordings of
the Ronettes’ performances for use in movie and television productions (a process
called “synchronization”). Philles (D) also licensed master recordings to third-
parties for production and distribution in the United States, and sold compilation
albums containing performances by the Ronettes. Philles (D) paid no royalties to
Greenfield (P) or any of the other members of the group. Greenfield (P) brought a
breach of contract action against Philles (D), alleging that the 1963 agreement did
not grant the right to license recordings for synchronization or domestic
redistribution. The trial court entered judgment for Greenfield (P). The appellate
court affirmed, holding that the 1963 agreement did not specifically transfer the
right to issue synchronization or third-party distribution licenses.
ISSUE
Did the absence in the contract of a specific reference to new media or markets
prohibit the exploitation of the recordings in those new media or markets?
188

(Graffeo, J.) No. The court may not consider extrinsic evidence to interpret a
contract or add terms if the agreement on its face is reasonably susceptible of only
one meaning. Contracts are to be construed according to the intent of the parties,
and the best way of determining that intent is to consider what is said in writing.
Extrinsic evidence of the parties’ intent may be considered only when a contract is
ambiguous, and the existence of an ambiguity is a question of law. Here, the
contract’s silence on synchronization and domestic licensing does not create an
ambiguity. Because there is no ambiguity, Philles (D) is entitled to exercise
complete ownership rights, subject to the payment of royalties to Greenfield (P).
Philles (D) also argued that Greenfield’s (P) suit is barred by the divorce
settlement agreement between her and Spector. The release was executed in
238
California, so California law will be considered to determine the validity of the
release. California courts consider all credible evidence of the parties’ intent, and
do not limit the inquiry to the four corners of the agreement. The trial court in this
case ruled that Greenfield’s (P) right to compensation under the 1963 agreement
was not an intended subject of the release. There is no reason to reverse that
determination. The case is affirmed as modified.
Analysis:
The court’s opinion validates the “catch-all” clause (“any method now or hereafter
known”) used in many licensing agreements. A catch-all clause is a way of
expressing the parties’ intentions regarding uses of a property that are not
envisioned at the time the licensing agreement is made. The absence of such a
clause has often cost performers or writers a substantial amount of royalties when
entirely new uses are made of their work. For example, the lack of a “catch-all”
clause has been held to deprive performers of royalties when a theatrical film is
reissued on home video, even when the home video version proves more profitable
than the original release.
189

(Real Estate Buyer) v. (Real Estate Seller)
77 N.Y.2d 157, 565 N.Y.S.2d 440, 566 N.E.2d 639 (1990)
COURTS WILL NOT DISTURB COMPLETE AND UNAMBIGUOUS

CONTRACTS FOR PAROL EVIDENCE
INSTANT FACTS An Integrated real estate contract gave either party the option
to cancel. When the seller unexpectedly cancels, the buyer demands specific
performance, contending the option was intended for his benefit alone.
239
BLACK LETTER RULE An unambiguous and final contract may not be
reformed based on parol evidence.
PROCEDURAL BASIS
In real estate contract action seeking specific performance, appeal from reversal of
judgment for defendant.
FACTS
W.W.W. Associates, Inc. (“W.W.W.”) (P) contracted to buy real estate from
Glancontieri (P). During negotiations, Giancontieri (D) learned that a lawsuit
against W.W.W. (P) had resulted in a lis pendens filing against the property.
Giancontieri (D) feared the suit might impair his ability to obtain title insurance and
construction loans. Thus, the contract included a reciprocal cancellation clause,
which read: “Sellers have been served with process instituting an action
concerning the real property …. In the event the closing of title is delayed by …
such litigation [then] closing … will … be adjourned until after the conclusion of
such litigation provided, in the event such litigation is not concluded, by … 6–1–
87 either party shall have the right to cancel this contract whereupon the down
payment shall be returned and there shall be no further rights hereunder.” Also,
the contract had a merger clause disclaiming all prior agreements. The litigation
was still pending on that date and the closing was postponed, but Giancontieri (D)
later canceled for unrelated reasons (allegedly, it believed it could obtain a better
price elsewhere). W.W.W. (P) sued Giancontieri (D) for specific performance,
contending the cancellation clause was Intended only to benefit it in the event the
litigation interfered with its plans to build on the land, and that Giancontieri (D)
breached in bad faith in the hope of obtaining a higher price. Giancontieri (D)
moved for summary judgment, contending the contract as written allowed both
parties to cancel, and that contrary parol evidence is inadmissible. At trial, the
court dismissed the complaint, finding the right to cancel was mutual. On appeal,
the appellate division reversed and ordered specific performance.
ISSUE
May a clear and final contract be modified based on 1 party’s parol evidence?

(Kaye) No. An unambiguous and final contract may not be reformed based on parol
evidence. The law’s policy is that, when parties record their agreement in a clear,
complete document, their writing should generally be enforced according to its
terms. Usually, evidence outside the document’s four corners, regarding what was
really Intended but unstated/misstated, is inadmissible. This rule imparts stability to
240
commercial transactions by preventing fraudulent
190
claims, perjury, mistaken recollections, and jury error. This policy is most
compelling in real property transactions, where certainty is paramount. Whether a
contract is ambiguous is a question of law for the courts. Here, the contract plainly
manifests that both parties have the option to cancel. In addition, the merger clause
states this contract expresses the parties’ full agreement. Further, there is a logical
reason why Giancontieri (D) would want to retain the option’s protection: a seller
taking back a purchase-money mortgage might well wish to reserve its option to
sell the property if litigation affecting the property continues past a certain date.
Thus, the contract contains no ambiguity. It is settled that extrinsic and parol
evidence is inadmissible to create ambiguities in written agreements that are
complete, clear, and unambiguous on their face. Here, the written contract is clear
and unambiguous, and should be enforced as written. There is no evidence of bad
faith. Reversed.
Analysis:
Under the “plain meaning” approach, courts evaluating whether to admit extrinsic
evidence in a completely integrated contract follow a two stage process. First, the
court decides whether the contract’s language is “ambiguous.” Generally, judges
will analyze only the “four corners” of the document (i.e., only the document itself,
without regard to the circumstances or extrinsic claims). Legally, “ambiguous”
means that the words may reasonably be interpreted in more than one way. Next, if
the contract is ambiguous; the court will admit extrinsic evidence relevant to the
question of what the words mean, or which of several meanings was the intended
one. Needless to say, judges are widely divided on how much ambiguity is
necessary before extrinsic evidence becomes admissible, and the outcome of any
given case is often unpredictable.
CASE VOCABULARY
LIS PENDENS: “Pending lawsuit.” A court-issued notice that some property
(personal property or land) is subject to a lawsuit, and may be confiscated if the
plaintiff wins. The notice is not itself a lien, but potential purchasers are put on
notice, and will be unwilling to buy land which may later be turned over to a
plaintiff.
MERGER CLAUSE: A contractual provision stating the contract represents the
final agreement reached by the party, intended to preclude parol evidence. It is
called a “merger” agreement because it often states that the written agreement
241
“merges” (incorporates and supersedes) all prior agreements.
TITLE INSURANCE: Landowner’s policy insurance which reimburses the
landowner, or a later purchaser which buys from the landowner, for the cost and
loss from another claimant’s suit contending another person has title to (true legal
ownership of) the land.
191

(Building Partnership) v. (Lender)
847 F.2d 564 (9th Cir. 1988)
THE PARTIES’ INTENT CONTROLS OVER THE WRITTEN WORD
INSTANT FACTS A loan document between Trident Center (P) and Connecticut
General (D) prohibited prepayment before a certain date, but Trident (P) argued
that extrinsic evidence should be admitted to show that prepayment was in fact
permitted.
BLACK LETTER RULE Under California law, relevant, extrinsic evidence

may be always admitted to show the intent of the parties to a written agreement.
PROCEDURAL BASIS
Appeal from an order dismissing a complaint and sanctioning Trident (P) for
bringing a frivolous lawsuit.
FACTS
In 1983, Trident Center (P), a partnership made up of an insurance company and
two large law firms, negotiated a loan from Connecticut General (D) to finance
242
construction of an office building complex. The written loan agreement provided
for an interest rate of 12–¼% for a term of fifteen years. The agreement also
provided that the loan could not be prepaid “in whole or in part” for the first
twelve years of the agreement. In the event of a default, the agreement gave
Connecticut General (D) the option of accelerating the note and adding a ten-
percent prepayment fee.
In 1987, interest rates were lower, and Trident (P) sought to refinance the loan to
take advantage of the lower interest rates. Connecticut General (D) was unwilling
to allow refinancing, insisting that the loan could not be prepaid until 1996. Trident
(P) brought suit, seeking a declaration that it was entitled to prepay the loan.
Connecticut General (D) moved for dismissal of the suit, claiming that the loan
agreement clearly and unambiguously precluded prepayment. The trial court
dismissed Trident’s (P) complaint, and also sanctioned Trident (P) for filing a
frivolous complaint. Trident (P) appealed, arguing that the written agreement was
ambiguous. Trident (P) also argued that, under California law, written contracts are
subject to modification by parol or extrinsic evidence.
ISSUE
Is parol evidence admissible to show the parties’ intent?

(Kozinski, J.) Yes. Under California law, relevant, extrinsic evidence may be
always admitted to show the intent of the parties to a written agreement. The
traditional rule is that extrinsic evidence may not be used to alter or contradict the
terms of a written agreement; however, the California Supreme Court, in the case of
Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal. 2d
33, 442 P. 2d 641 (1968), ruled that extrinsic evidence is admissible even if the
written contract is not ambiguous. According to the court, contractual obligations
flow from the intention of the parties, not from the words of the contract. Words do
not have absolute and constant referents, so it is not possible to discern contractual
intention in the words or the
192
arrangements of the words themselves. The belief in the possibility of perfect

verbal expression is a remnant of the primitive faith in the potency and inherent
meaning of words.
Pacific Gas casts a long shadow of uncertainty over all agreements negotiated and
drafted under California law. No contract is impervious to attack by parol
evidence. If one party to a contract is willing to claim that the parties intended
243
something other than what is stated in the contract, the court must consider evidence
of possible ambiguity. If the evidence discloses an ambiguity where there was none
before, the contract language is displaced and the intention of the parties must be
discerned through the testimony of witnesses. The witnesses may have a stake in the
litigation, or their memories may be made hazy by the passage of time or colored by
their own self-interest. It is questionable whether this approach is more likely to
reveal the true intention of the parties than reliance on the written language agreed
upon at the time the contract was made.
Pacific Gas also chips away at the foundation of the legal system. If courts are
unwilling to enforce language arrived at by parties dealing face-to-face, how can
courts send anyone to jail for violating statutes that consist of “mere words”? How
can courts enforce decrees, or carry out the mandate of higher courts, if “perfect
verbal expression” is impossible? But still, that is the law.
Trident (P) also claims that the contract in the instant case is ambiguous because a
prepayment penalty is imposed in the event of acceleration due to default. Trident
(P) claims that this clause gives it the right to prepay. This argument is rejected out
of hand.
The trial court’s decision is reversed, and the case remanded to allow Trident (P)
to introduce extrinsic evidence as to the intention of the parties in drafting the
contract.
Analysis:
Courts nationwide have moved away from the traditional absolute prohibition
against extrinsic evidence, but the California courts have gone farther than most, by
imposing virtually no restrictions on the situations in which extrinsic evidence may
be introduced. It is perhaps going too far to say that written contracts have no
significance in California law, but the legal certainty of a written agreement is
unquestionably diminished. While as a matter of linguistic theory there may be no
reason to prefer written language over other expressions of intent, the written
document does give the parties to a contract a clear, definite statement of their
rights and obligations. Such a definite statement makes enforcement of the parties’
intent easier, even if less accurate in the abstract.
193

(Chicken Importer) v. (Chicken Exporter)
190 F.Supp. 116 (S.D.N.Y. 1960)
244
DISTRICT COURT APPLIES THE CANONS OF INTERPRETATION TO A
CHICKEN CONTRACT
INSTANT FACTS An importer and an exporter dispute the meaning of the word
“chicken” in their supply contract.
BLACK LETTER RULE The subjective interpretation of a contract term must

be coupled with objective evidence supporting that Interpretation.
PROCEDURAL BASIS
District court judgement on a breach of warranty action.
FACTS
B.N.S. International Sales Corp. (B.N.S.) (D) is an exporting firm based in New
York. Frigaliment Importing Co. (Frigaliment) (P) is a Swiss import firm
represented by its agent, Mr. Stovicek. B.N.S. (D) had two contracts to supply
Frigaliment (P) with frozen chickens. The first contract called for 25,000 Ibs. of
1½- to 2-pound chickens at $36.50 per 100 Ibs. It also listed 75,000 Ibs. of 2½- to
3-pound chickens at $33.00 per 100 Ibs. The second contract called for different
quantities of each weight and listed the 1½- to 2-pound chickens at $37.00 per 100
Ibs. The two contracts had delivery dates of May 2, 1957 and May 30, 1957,
respectively. The problem arose when the first delivery arrived. Frigaliment (P)
was expecting the 2½- to 3-pound chickens to be broiler/fryers. As it turns out,
B.N.S (D) shipped 2½- to 3-pound stewing chickens, which are older than
broiler/fryers. Frigaliment (P) complained about the mix-up but accepted the
second shipment. This shipment also contained stewing chickens instead of
broiler/fryers. It then sued B.N.S. (D) for breach of warranty, claiming that B.N.S.
(D) delivered goods that did not correspond to the description in the contract.
ISSUE
245
Can a court resolve a dispute based on differing interpretations of contract
vocabulary?

(Friendly) Yes. The parties urge different interpretations of the word “chicken”. In
order to resolve this dispute, the court will look at the contract itself, the actual and
trade usage of the word, and the behavior of the parties. In this case, the contract
provides some guidance. Frigaliment (P) claims that since 1½- to 2-pound chickens
are necessarily young chickens, the 2½- to 3-pound chickens should have been
young as well. This argument begs the question, since it has been established that
the 2½- 3-pound chickens come in two types. B.N.S. (D), on the other hand, argues
that the contract incorporated the Department of Agriculture’s regulations because
Frigaliment (P) requested “US Fresh Frozen Chicken, Grade A, Government
Inspected.” The USDA regulations refer to “chickens” as broilers, fryers, and
stewing chickens (also known as fowl). As a result, the regulations favor B.N.S.’s
(D) interpretation of the contract, permitting the shipment of any type of chicken.
Indeed, Stovicek’s first communication with B.N.S. (D) also referred, generically,
to chickens. Finally, at least one food industry witness
194
for B.N.S. (D) relies on the Department of Agriculture’s guidelines in his work.
These circumstances, together, suggest that the USDA guidelines were intended to
govern the contract definition of “chicken.” In actual usage, the parties repeatedly
used the word chicken during their negotiations. Frigaliment (P) claims that this
was because most of the negotiations were in German and they wanted to avoid any
confusion between the German word for chicken, “huhn,” and the English word
“chicken.” They thought that “chicken” meant “young chicken” and avoided using
the word “huhn” because it included both broilers and stewing chickens. However,
when B.N.S. (D) asked Stovicek to be more specific, he told them that any type of
chicken would do. The trade usage of the word chicken” is also at issue in this
case. Frigaliment (P) contends that “chicken” means “young chicken” in the poultry
trade. Since B.N.S. (D) is new to the poultry trade, it is not charged with this
knowledge unless Frigaliment (P) can demonstrate that the definition is so
prevalent as to create a “violent” presumption that B.N.S. (D) was aware of it.
Frigaliment (P) failed to demonstrate this level of use in the industry. Its own
witnesses frequently confirm the types of chicken in business transactions by asking
whether the parties are talking about broilers or stewing chickens. Other
Frigaliment (P) witnesses were more certain that chicken” refers to “young
chickens” in the trade, but they were countered by witnesses for B.N.S. (D) that
support the contrary conclusion. As noted above, some of B.N.S.’s (D) witnesses
246
rely on the USDA regulations that categorize many types of poultry under the word
“chicken.” The conduct of the parties further supports our conclusion in favor of
B.N.S. (D). First, the market rate for broilers was higher than the rate that B.N.S.
(D) was charging Frigaliment (P) for the 2½- to 3-pound chickens. The market rate
for stewing chickens was lower. The only way for B.N.S. (D) to make a profit on
this transaction was to supply Frigaliment (P) with stewing chickens. B.N.S (D)
claims that Frigallment (P) should have known this and we agree. In addition,
Frigaliment (P) accepted the second shipment of chickens even though B.N.S. (D)
did not acknowledge their complaint about the first shipment. While it might have a
claim for damages due to a nonconforming shipment of chickens, its behavior
supports the conclusion that the contract called for the shipment of any type of
chicken. Taking into account all of the arguments above, one thing is clear.
Frigaliment (P) harbored a subjective belief that the contract called for the
shipment of 2½- to 3-pound broiler/fryers, but failed to demonstrate an objective
meaning of the word “chicken” that supports their interpretation. B.N.S. (D), on the
other hand, demonstrated a subjective belief that is consistent with a number of
objective circumstances that favor its definition. As a result, the term “chicken” in
the contract will be interpreted broadly. Frigaliment’s (P) claim is dismissed.
Analysis:
Judge Friendly’s opinion is well known for a variety of reasons, not the least of
which is his comprehensive approach to contract interpretation. He uses every trick
in the book to resolve a seemingly easy question of interpretation that becomes
more complicated at every turn. Much of the opinion implicitly relies on objective
intent. In other words, the court asks how a reasonable person would interpret the
language and behavior of the parties. This approach should be familiar, since it
also used in determining the existence of a contract. Judge Friendly also relies on
trade usage to determine the definition of “chicken.” Even this approach is fraught
with complications, however, since B.N.S. (D) was new to the poultry Industry.
Finally, Judge Friendly interprets certain ambiguities in the parties’
communications against Frigaliment (P). This is a less common device that is used
to allocate the burdens of poor contract drafting. In this case, Stovicek’s first
cablegram referred ambiguously to “chickens.” Judge Friendly’s analysis shows the
variety of ways that a simple contract term can be interpreted and how difficult the
analysis can be when two parties approach a contract from different cultural,
professional, and linguistic backgrounds.
195

(Meat Scrap Seller) v. (Meat Scrap Buyer)
247
141 Or. 306, 16 P.2d 627 (1932)
OREGON SUPREME COURT INTERPRETS A SEEMINGLY UNAMBIGUOUS

CONTRACT TERM ACCORDING TO THE TRADE USAGE OF THE PARTIES
INSTANT FACTS The parties to a transaction involving horse meat scraps

dispute the practical interpretation of the terms of their contract.
BLACK LETTER RULE If appropriate, a court may rely on trade usage to

inform its interpretation of a seemingly unambiguous contract term.
PROCEDURAL BASIS
Appeal from a trial court judgement on the pleadings in favor of the defendant in an
action to recover payments withheld under a contract.
FACTS
Hurst (P) was a horse meat trader who agreed to sell W.J. Lake & Co. (Lake) (D)
350 tons of horse meat scraps at $50 per ton. The parties agreed that the scraps
would be over 50% protein [doesn’t everyone like their horse meat lean?]. If Lake
(D) discovered, after testing, that the scraps were less than 50% protein, they could
deduct $5 from each ton which did not measure up. Lake (D) ultimately deducted
$5 from each of 140 tons that did not meet the 50% protein minimum. The
nonconforming scraps measured anywhere from 49.53% to 49.96% protein. Hurst
(P) sued to recover the deductions for these scraps. He claimed that both parties
were experienced horse meat traders [not to be confused with snake oil salesmen].
Apparently, it was understood in the trade that a contract calling for no less than
50% protein was satisfied by scraps which measured over 49.5% protein. The trial
court found for Lake (D), despite Hurst’s (P) allegations. Hurst (P) appeals.
ISSUE
248
Can trade usage govern the interpretation of a seemingly unambiguous contract
term?

(Rosman) Yes. A court cannot limit its consideration to the plain language of a
contract when the trade usage of the parties is relevant to a determination of their
Intent. Lake (D) argues that courts will not admit extrinsic evidence of party intent
when the language of a contract is unambiguous. He claims that courts will rely.
Instead, on the common meaning of the words in order to determine the parties’
intent. This approach has simplicity as its advantage. It protects every contract
against the occasional perjurer who would testify to bogus industry custom in order
to subvert an unfavorable contract. This rule goes too far, however. Many trades
make specific allowances for measurements which would not be understood by
outsiders. Bricklayers, lumbermen, and rabbit traders are just a few of the
tradespeople who subject commonly understood measurements to an arcane
understanding observed only within their industries. In addition, familiar terms may
be transformed by statute, local usage, or dialect, among other influences. As a
result, the court is not persuaded that it should ignore these influences when
196
they are relevant, despite the seeming clarity of the contract. The judgement of the
trial court is reversed.
Analysis:
Justice Rosman makes a case against the plain meaning rule with regard to the
interpretation of contracts between tradespeople. In fact, this approach is ratified in
UCC § 1–205. Section § 1–205 states that custom and trade usage can govern the
interpretation of contract terms. This approach may even supplement or qualify the
terms of an agreement based on the parties’ custom or usage. However, if the
custom or usage between the parties is not reasonably consistent with the contract,
the Code requires that the contract terms govern their relationship. In this case, the
UCC rule would lead to the same result. The members of the meat scrap trade
loosely interpret the 50% minimum rule. This custom is not inconsistent with the
parties’ agreement. In fact, it brings the agreement closer to its likely intent. As a
result, the court should defer to the parties’ trade over the “obvious” meaning of the
terms of their agreement.
197
249
(Buyer) v. (Seller)
664 F.2d 772 (9th Cir. 1981)
THE UCC LOOKS AT THE ACTUAL PERFORMANCE OF A CONTRACT IN

ORDER TO DETERMINE THE PARTIES’ INTERPRETATION OF THE TERMS
OF THE CONTRACT
INSTANT FACTS Nanakuli Paving & Rock Co. (P) sued Shell Oil Co. (D) for
breach of their 1969 contract based on Shell’s (D) failure to protect Nanakuli (P)
against increases in asphalt prices.
BLACK LETTER RULE A court may use evidence of standard industry

practices and prior performance of parties to the contract to interpret the contract, if
such evidence is not inconsistent with the terms of the contract.
PROCEDURAL BASIS
Appeal in action for breach of contract.
FACTS
Nanakuli Paving and Rock Co. (P), a large asphaltic paving company, had two
contracts with Shell Oil Co. (D) under which it bought all its asphalt requirements
from Shell (D). In 1974, Nanakuli (P) sued Shell (D) for breach of its 1969
contract on the ground that Shell (D) had failed to price-protect Nanakuli (P)
against price increases for asphalt. Nanakuli (P) claimed that price protection was
included in its 1969 agreement with Shell (D), and that this was demonstrated by
the routine use of price protection by suppliers in the trade and by Shell’s (D)
actual performance of the contract from 1969 until 1974. At the trial level, the jury
returned a verdict in favor of Nanakuli (P). The trial court set aside the verdict and
granted Shell’s motion for judgment n.o.v. Nanakuli (P) appeals.
250
ISSUE
May a court use evidence of the routine use of price protection in a trade, and prior
performance of parties to the contract, in order to interpret the price terms of a
contract, if such evidence is not inconsistent with the terms of the contract?

(Hoffman, J.) Yes. A court may use evidence of standard industry practices and
prior performance of parties to the contract to interpret the contract, if such
evidence is not inconsistent with the terms of the contract. In this case, Nanakuli (P)
argues that all material suppliers in the paving industry followed the trade usage of
price protection, and that as such, under the U.C.C., it should be assumed that the
parties intended to Incorporate price protection into their contract. Additionally,
Nanakuli (P) argues that Shell (D) had price-protected it on two prior occasions;
thus price protection was a commercially reasonable standard for fair dealing
between the parties. Shell (D), on the other hand, argues that 1) “trade,” for the
purposes of trade usage, should be limited to the buying and selling of asphalt,
rather than to the whole asphaltic and paving industry, 2) the two prior occasions
on which Shell (D) price-protected Nanakuli (P) constituted waivers of terms of
the contract rather than a course of performance between the parties, and 3) price
protection, even if used in the industry, is not consistent with the express price term
in the contract. It is this court’s opinion that the “trade” applicable to the parties in
this case is the whole paving industry. Under the UCC, “trade” need not necessarily
198
be one practiced by members of a party’s own trade to be binding if it is so

commonly practiced in a locality that a party should be aware of it. In this case,
while Shell (D) did not regularly deal with aggregate supplies in the business, it
had dealt constantly with one asphalt paver, and thus should have been aware of the
asphaltic pavers’ need for price protection. Nanakuli (P), in this case, has proven
that price protection is probably universal in the asphaltic paving industry, and that
it has therefore reached the regularity necessary for trade usage. Additionally,
Shell’s (D) price protection on prior occasions could reasonably be construed by a
jury as a course of performance and not a waiver of the express terms of the
contract between the parties. Under the UCC, the preference for waiver only
applies where the terms of the contract are ambiguous. Whether terms of a contract
are ambiguous or not is a question for the jury, and it was not unreasonable for the
jury in this case to find that Shell’s (D) price protection on the two prior occasions
constituted a course of performance and not a waiver. This is true especially in
light of the fact that Shell (D) also price-protected Nanakuli (P) on two other
occasions after 1974. Further, although at first glance, the express price terms of the
251
contact seem inconsistent with the trade usage of price protection, a jury could have
reasonably construed price protection as consistent with the terms of the contract. A
commercial agreement is broader than the express terms of the agreement and it
should be interpreted in light of commercial practices and other surrounding
circumstances. Performance by the parties, trade usages and prior dealings are very
important and can be used to supplement the contract. They should be excluded,
only if they can not be reasonably reconciled with the express terms of a contract.
In this case, there is overwhelming evidence that suppliers in the industry price
protected customers under circumstances and contracts similar to the one in this
case. Here, the express price term of the contract makes no mention of price
protection, including an express negation of price protection. Based on these facts,
this court holds that it was reasonable for a jury to find that price protection, being
of such wide and broad usage, was included in the parties contract and that it was
not inconsistent with the express price terms of the contract. Additionally, in setting
its price Shell (D) should have acted with good faith. That is not to say that it could
not increase its price with the increase in the market price. However, it should have
given prior notice of the increase, which was a long-time trade usage in the
industry. In this case, Shell (D) gave no notice. Thus, a jury could reasonably find
that its conduct did not conform with commercially reasonable standards in the
industry. Further, Shell (D) failed to protect Nanakuli (P) for work which the latter
had already bid at the old price. (Judgment of District Court reversed and jury
verdict reinstated.)
Analysis:
Usage of trade only applies to any practice or method of dealing that has a
regularity of observance in a place, or trade, as to justify an expectation that it will
be observed with respect to the contract and parties in question. Note that this court
indicates that the “trade” need not be a party’s exact vocation. It is enough that the
party deals with the trade in question constantly enough to be aware of its practices.
Evidence of usage in trade can be admitted to supplement the terms of a contract
even though the contract is fully integrated. Determination of trade usage and course
of performance are questions of fact for the jury.
199

(Nitrogen Producer) v. (Nitrogen Buyer)
451 F.2d 3 (4th Cir. 1971)
UNDER THE UCC, EVIDENCE OF USAGE OF TRADE AND COURSE OF

DEALING SHOULD BE EXCLUDED WHENEVER IT CANNOT BE
252
REASONABLY CONSTRUED AS CONSISTENT WITH THE TERMS OF THE
CONTRACT
INSTANT FACTS Royster (D), seller of phosphate, who had a contract with
Columbia Nitrogen Corp. (P) for sale of phosphate, sued the latter for damages for
breach of contract when Columbia (P) failed to buy the amount of phosphate agreed
upon under their contract.
BLACK LETTER RULE Evidence of custom and usage or course of dealings

is not admissible where it contradicts the express, plain, and unambiguous terms of
a validly written and fully integrated contract.
PROCEDURAL BASIS
Appeal from action for damages for breach of contract.
FACTS
In 1966, Royster (D) negotiated with Columbia Nitrogen Corp. (P) to sell to
Columbia (P) a minimum of 31,000 tons of phosphate per year for three years, with
an option to extend the contract. The price of phosphate per ton was stated in the
contract and was subject to an escalation clause dependent on the cost of producing
the phosphate. The contract also contained a merger clause. Due to a plunge in
phosphate prices, Columbia (P) was unable to resell phosphate competitively and
ordered less than one tenth of the tonnage required under its contract with Royster
(D). Royster (D), having sold the phosphate below contract price, sued Columbia
(P) for damages. At trial, Columbia (P) sought to show that due to the uncertainty in
crop and weather conditions, and other factors, price and quantity terms in
contracts in the industry were mere speculations, subject to change based on market
conditions. Additionally, Columbia offered evidence to show that in its prior
dealings with Royster (D), where Columbia (P) sold nitrogen to Royster (D), there
253
was always substantial deviation from price terms stated in contracts. The trial
court excluded this evidence on the ground that it was in contradiction to the
express terms of the contract. Columbia (P) appeals the ruling of the trial court.
ISSUE
Is evidence of custom and usage or course of dealings admissible where it
contradicts the express, plain, and unambiguous terms of a validly written and fully
integrated contract?
(Butzner, J.) Yes. Evidence of custom and usage or course of dealings is not
admissible where it contradicts the express, plain, and unambiguous terms of a
validly written and fully integrated contract. In this case, Royster (D) contends that
the evidence offered by Columbia (P) should be excluded as inconsistent with the
terms of the contract because the contract itself has detailed provisions regarding
price, its escalation, and quantity of the phosphate to be bought by Columbia (P).
This court believes that such a broad exclusionary rule is not within the language of
the UCC rule. The test of admissibility is not whether the contract appears on its
face to be
200
complete in every detail, but whether the proffered evidence of course of dealing
and trade usage reasonably can be construed consistent with the express terms of
the agreement. In this case, it is reasonable to construe the terms of the contract
with evidence of usage and course of dealings. In the first place, the contract does
not expressly state that course of dealings and usage of trade can not be used to
explain or supplement the written contract. Additionally, the contract is silent about
adjusting prices and quantities to reflect a declining market. Thus, in such a
situation it is reasonable to rely on course of dealing and usage to supplement the
contract and explain its terms. Finally, the default clause of the contract refers only
to the failure of the buyer to pay for delivered phosphate. Both parties during the
contract negotiations failed to state any consequences for Columbia’s (P) refusal to
take phosphate deliveries, for which Royster (D) is now suing. However, unlike
what Royster (D) contends, before allowing damages for Columbia’s (P) failure to
accept the phosphate deliveries, this court must determine that Columbia (P) has in
fact defaulted on its contract. This must be done by reliance on evidence of custom
and usage and course of dealing that is consistent with the contract’s express terms.
The contract also states that verbal agreements of the parties will not be recognized
because the contract expresses all the terms and conditions of their contract
completely. However, evidence of custom and usage and course of dealing is not
254
the same as verbal agreements or understandings between the parties. While
evidence of additional terms should be excluded where the contract is complete, no
such rule applies to evidence of custom and usage and course of dealings. The
official comment to the UCC notes that contracts are to be read on the assumption
that evidence of custom and usage and course of dealings were taken for granted
when the contract was phrased, unless the terms of the contact carefully negate
them. Consequently, such evidence can not be conclusively rejected. (Reversed and
remanded.)
Analysis:
Under the UCC, evidence of custom and usage and course of dealings between the
parties can be used to supplement and explain the terms of a contract where it is
reasonable. In this case, the contract expressly includes price and quantity
requirements. However, the court indicated that this still does not allow per se
exclusion of such evidence. It appears from this court’s broad interpretation of
UCC § 2–202 that evidence of custom and usage and course of dealings can be
admitted to interpret contracts under all circumstances, except where the contract
clearly negates custom and usage and course of dealing. Remember that under the
parol evidence rule, where a contract is fully integrated, and it is complete (such as
in this case), evidence of prior or contemporaneous oral agreements or
understandings of the parties is not admitted into evidence. However, evidence of
custom and usage and course of dealings can be admitted whenever it is reasonably
consistent with the terms of a contract, regardless of whether the contract is fully
integrated.
201
(Cotton Seller) v. (Cotton Buyer)
2 H. & C. 906, 159 Eng.Rep. 375 (Court of Exchequer 1864)
EXCHEQUER COURT VOIDS A CONTRACT THAT HINGED ON AN

AMBIGUOUS TERM
255
INSTANT FACTS Two parties to a cotton transaction disagree as to the exact
identity of a ship named in their contract.
BLACK LETTER RULE A contract can be voided if it contains an ambiguous

term which was, in fact, interpreted differently by the parties.
PROCEDURAL BASIS
Decision of the Court of Exchequer on a breach of contract action.
FACTS
Raffles (P) agreed to sell Wichelhaus (D) 125 bales of cotton which were
supposed to arrive in England by ship. Wichelhaus (D) agreed to pay for the cotton
after it arrived from Bombay on a ship called Peerless. Neither party to the contract
knew it at the time, but there were two ships called Peerless which sailed from
Bombay. One ship sailed in October. The second ship sailed in December.
Unfortunately, each party had a different ship in mind for the transaction. Raffles
(P) thought that the Peerless which sailed in December was the agreed upon ship.
When that ship arrived in England, Raffles (P) attempted to complete the
transaction. Wichelhaus (D), however, refused to accept delivery or to pay for the
cotton since he had expected the other Peerless. Raffles (P) subsequently sued
Wichelhaus (D) for breach of contract. Wlchelhaus’s (D) plea followed and Raffles
(P) demurred. The court then rendered its opinion.
ISSUE
Can a specific contract term be interpreted according to a party’s subjective
interpretation of that term?

(Mellish) Yes. Raffles (P) and Wichelhaus (D) did not make it clear that the
256
Peerless was a particular ship sailing on a particular date. When it turned out that
there were actually two different ships named Peerless, a latent ambiguity was
exposed in the contract. In that event, the court can hear parol evidence in order to
establish that there was an actual subjective disagreement between the parties.
Since there was no consensus ad litem, there is no contract. Since there is no
contract, Raffles (P) has no right to sue for its breach. The action will be dismissed
and judgement entered in favor of Wichelhaus (D).
DISSENT
(Milward) I dissent for the following reason. A party’s subjective intent is
irrelevant to the interpretation of a contract term unless that intent is communicated
to the other party at the time of contracting. In this case, Wichelhaus’s (D) intent is
irrelevant. He never made it clear to Raffles (P) that he wanted the cotton to be
delivered on the Peerless sailing in October. The contract appears to name the ship
only as a convenience in the event that the Peerless was lost at sea. The identity of
the exact ship might be important if the parties were contracting for the
202
sale of the ship itself, but they were not. As a result, it should not matter which
Peerless delivered the cotton so long as the contract was fulfilled. In fact, Raffles
(P) was not shipping any cotton on the other Peerless—the one that Wichelhaus (D)
thought was carrying the cotton. For all of these reasons, Raffles’s (P) demurrer
should be granted [in other words…he should win].
Analysis:
Note that the opinions of judges Mellish and Milward appear in the reverse order
in your book. Nonetheless, Mellish’s opinion is the decision of the court and
Milward’s opinion is, in essence, the dissent. Second, note that the rule of law
announced by the court is meant for the exceptional case. Usually, courts require the
objective intent of the parties to govern the interpretation of a contract.
Occasionally, though, a crucial term in the contract is subject to differing
interpretations. If the parties actually interpreted an ambiguous term in different
ways, the contract can be voided. Much of the debate regarding this case centers on
the importance of the ship’s identity to the contract. It has been argued that Judge
Milward’s approach was actually contrary to trade practice at the time. He suggests
that the identity of the ship was unimportant as long as the cotton arrived as
promised. However, it was apparently common practice for parties to identify a
particular ship and a particular arrival date in order to secure a favorable market
rate for goods during the latter part of the 1800s. More generally, the case is a
novelty because of the peculiar circumstances that led to the dispute. The court was
257
forced to test the adequacy of traditional interpretation doctrine, which was
unsuited for such an unlikely controversy.
CASE VOCABULARY
AD LITEM: Ad litem means “for the purposes of the suit.” However, the majority
most probably meant “ad idem.” A consensus ad idem is a meeting of the minds. It
is this which the majority claims did not exist between the parties.
COURT OF EXCHEQUER: A trial level court which existed until 1873. Its
jurisdiction was subsequently turned over to the Exchequer Division and then the
Queen’s Bench Division of the High Court of Justice.
DEMURRER: A demurrer is a means of attacking a party’s pleading. In essence,
the attacker argues that the pleading need not be answered because it is insufficient
or defective in some manner. There are a variety of different demurrers, some of
which are still recognized. The modem equivalent of a general demurrer is a
request for dismissal under Federal Rule of Civil Procedure 12 (b) (6). A request
under 12 (b) (6) alleges that the opposing party fails to state a claim for which
relief can be granted.
203
Oswald v. Allen
(Coin Buyer) v. (Coin Seller)
417 F.2d 43 (2d Cir.1969)
COURT OF APPEALS AFFIRMS THE MODERN APPLICATION OF RAFFLES

V. WICHELHAUS
INSTANT FACTS Two coin collectors each have a different interpretation of a

contract for the sale of Swiss coins.
258
BLACK LETTER RULE A contract should be voided if the parties each held
different understandings of an ambiguous term and neither party should have been
aware of the other’s understanding.
PROCEDURAL BASIS
Appeal from a district court post-trial dismissal of the plaintiff’s complaint in an
action for specific performance.
FACTS
Oswald (P) was a Swiss coin collector who arranged to view Allen’s (D) Swiss
coin collection in New York. As it turns out, Allen (D) had two different
collections in separate bank vaults, each of which contained Swiss Coins. The two
collections were called the Swiss Coin Collection and the Rarity Coin Collection.
During his visit, Oswald (P) was inadvertently shown coins from both collections.
Oswald (P) did not speak much English, but arranged through his brother to
purchase Allen’s (D) Swiss coins for $50,000. Allen (D) thought she was selling
the Swiss Coin Collection. Oswald (P) thought he was buying all of Allen’s (D)
Swiss coins. In fact, he sent Allen (D) a letter, confirming the sale of “all of [her]
Swiss coins.” Allen (D) realized that the parties were each laboring under a
misconception when she met with Oswald’s (P) agent. At this point, she balked at
the coin sale and Oswald (P) brought suit for specific performance. The district
court dismissed Oswald’s (P) claim after trial.
ISSUE
Can a contract be enforced despite both parties failure to interpret a term in the
same manner?

(Moore) No. This case is very much like Raffles v. Wichelhaus [a contract can be
voided if it contains an ambiguous term which was, in fact, interpreted differently
by the parties]. The rule in Raffles has since been adopted by the Restatement
[First] of Contracts. A contract should not be enforced when each party has
interpreted an ambiguous term differently, unless one party should have been aware
of the other’s understanding. Ordinarily, a contract is enforceable despite the
parties failure to come to a subjective understanding over its terms. This is a rare
case, however, where there is no reason to enforce one party’s interpretation over
the other. In this case, neither Oswald (P) nor Allen (D) knew that they were each
contemplating a different coin collection. In fact, Oswald (P) never knew that he
had seen coins from two separate collections. There is no reason to burden Oswald
(P) and Allen (D) with a contract which was in neither party’s contemplation.
259
Consequently, the district court’s dismissal of Oswald’s (P) complaint is affirmed.
204
Analysis:
This case resembles Raffles v. Wichelhaus and Frigaliment Importing Co. v.

B.N.S. International Sales Corp. The parties in both cases suffered from a
language barrier that was partly responsible for their confusion. As Raffles
demonstrates, confusion can result just as easily between parties who speak the
same language. This case represents a modern affirmation of the rule recognized in
Raffles. The rule is still reserved for exceptional cases, however. Here, neither
party would get what they bargained for if the contract were enforced according to
its terms. On a wholly different note, if the contract had not been voided, this would
have been a perfect case for specific performance. The coin collection is just the
sort of unique item for which specific performance would be the appropriate
remedy.
205

(Employer) v. (Union)
20 F.3d 750 (7th Cir. 1994)
RESCISSION MAY BE BASED ON MUTUAL MISUNDERSTANDING
INSTANT FACTS Colfax (P) signed a collective bargaining agreement that had
an erroneous term in it, and when the corrected agreement was sent to it, Colfax (P)
tried to renegotiate, saying that it had no contract with Local 458–3M.
BLACK LETTER RULE A party to a contract who agrees to a term knowing
260
that the term is ambiguous may not obtain rescission of the contract based on the
ambiguity of that term.
PROCEDURAL BASIS
Appeal from an order granting summary judgment for Local 458–3M (D).
FACTS
Colfax Envelope (P) was engaged in the printing business and had seventeen
employees who were represented by Local No. 458–3M (D). Because Colfax (P)
had so few employees, it did not actively participate in the bargaining between
Local 458–3M (D) and the Chicago Lithographers Association, an association that
represented other area employers in the printing industry. When a new collective
bargaining agreement was reached, Local 458–3M (D) sent a summary of the
changes to Colfax (P), and Colfax (P) signed and returned the agreement. If Colfax
(P) disagreed with the terms negotiated, it was free to bargain with Local 458–3M
(D) on its own.
The collective bargaining agreement in force between 1987 and 1991 set out
minimum manning requirements for printing presses. Colfax (P) operated one
seventy-eight-inch press that printed in four colors and one that could print in five
colors but that was usually used to print in four colors, and it was generally
required to man the presses with four employees (five employees were required on
the rare occasions that printing was done in five colors). In 1991, Local 458–3M
(D) negotiated a new agreement with the Lithographers Association and sent a
summary of the changes to Colfax (P). Colfax (P) was asked to indicate whether it
agreed to the terms in the summary. The section on manning requirements listed “4C
60 Press–3 Men” and “5C 78 Press–4 Men.” Colfax (P) interpreted this language to
mean that only three employees would be required to operate all four-color
presses, regardless of size. Based on this interpretation, Colfax (P) approved the
terms in the summary. A copy of the full agreement was sent to Colfax (P), but it
contained a typographical error that supported Colfax’s (P) interpretation. A
corrected copy of the agreement was sent out, and it set out the manning
requirements as requiring four employees on every four-color press over sixty
inches. Colfax (P) wanted to renegotiate the agreement, but Local 458–3M (D) took
the position that Colfax (P) was bound by its acceptance of the summary.
Colfax (P) brought suit for a declaration that it had no collective bargaining
agreement because the parties never agreed on an essential term; namely, the
staffing requirements. Local 458–3M (D) counterclaimed for arbitration, claiming
that Colfax (P) had accepted the new agreement and was therefore bound by the
arbitration clause, which required arbitration of disputes arising out of the
261
interpretation of the contract. The district court granted summary judgment for
Local
206
458–3M (D), holding that the staffing requirements in the summary referred
unambiguously to sixty-inch presses and had no application to seventy-eight-inch
presses.
ISSUE
Was Colfax (P) entitled to rescind the collective bargaining agreement?

(Posner, C.J.) No. A party to a contract who agrees to a term knowing that the term
is ambiguous may not obtain rescission of the contract. A contract should be
terminable without liability, however, when there is no sensible basis for choosing
between conflicting understandings of the language of the contract. If neither party
has the greater blame for the misunderstanding, there is no non-arbitrary basis for
deciding which understanding to enforce, and the parties are allowed to abandon
the contract without liability.
The clearest cases in favor of rescission are those in which an offer is garbled in
transmission. The case at bar is, at least superficially, one such case. Colfax (P)
believes that the term “4C 60 Press–3 Men” means four-color presses printing
sheets sixty inches and over, while Local 458–3M (D) believes that it means
presses sixty inches and under, down to forty-five inches. The previous agreement
allowed the use of three-man crews on four-color presses between forty-five and
fifty inches, and Local 458–3M (D) interpreted the change as extending the three-
man range to sixty inches. In this case, though, Colfax (P) should have realized that
the meaning of the contract was unclear. The expression “4C 60 Press” does not, on
its face, refer to a seventy-eight-inch press. The interpretation of Local 458–3M
(D) may or may not be the correct one. Although the summary is the contract
between the parties, the corrected agreement should have made Colfax (P) certain
that its interpretation was not the only plausible one.
Colfax (P) could hope that its interpretation was the correct one, but it could not
accept the offer in the summary on the premise that, if its interpretation was not
correct, it could walk away. When parties agree to a patently ambiguous term they
submit to have any dispute over it resolved by interpretation. The possibility of
rescission due to a mutual misunderstanding arises only when parties agree to terms
that appear clear to each of them. Affirmed.
262
Analysis:
In this case, Colfax (P) was put on notice of a crucial omission when the contract
summary did not make any reference to four-color seventy-eight-inch presses.
Colfax’s (P) unreasonable behavior was in assuming that this omission had any
substantive meaning. Prudence should have led Colfax (P) to make inquiries as to
the staffing requirements for the larger presses. As the court notes, the summary is
the contract in this case, and the corrected copy of the agreement is only
confirmation of the existence of the mistake. The result here may well have been
different if Colfax (P) had made inquiries before signing the summary and was
given the copy of the final agreement with the typo in response to those inquiries.
207

(Insurance Company Liquidator) v. (Contractor)
426 F.3d 39 (1st Cir. 2005)
“REASONABLE EXPECTATIONS” IS AN OBJECTIVE STANDARD
INSTANT FACTS A fire blanket manufactured by Auburn Manufacturing (D)

did not prevent a fire, and Black & Veatch (P) brought a claim for breach of the
warranty of merchantability.
BLACK LETTER RULE A breach of the warranty of merchantability is shown

when a product does not perform according to the reasonable expectations of an
ordinary user or consumer.
PROCEDURAL BASIS
Appeal from an order granting summary judgment for Auburn (D).
263
FACTS
A fire blanket manufactured by Auburn (D) was used to protect the area underneath
a torch-cutting welding operation at a construction project. A fire broke out, and the
blanket started melting and did not stop the fire. Although the fire was extinguished
quickly, the chemicals in the fire extinguisher damaged a generator. The damage to
the generator caused approximately $9 million in repair and delay costs.
Black & Veatch (P) brought suit against Auburn (D) and Inpro (D), the distributor,
alleging breach of the warranty of merchantability. A witness testified that he was
“surprised” that the blanket melted. Other witnesses testified that the blanket
performed as expected and that burn-through holes were common. There was no
testimony regarding industry standards. The district court granted summary
judgment for Auburn (D) and Inpro (D) on the breach of warranty claim.
ISSUE
Did Black & Veatch (P) establish a claim for breach of the warranty of
merchantability?

(Dyk, J.) No. A breach of the warranty of merchantability is shown when a product
does not perform according to the reasonable expectations of an ordinary user or
consumer. The standard is objective rather than subjective. The question thus does
not turn on the subjective expectations of a particular user, but the reasonable
expectations of an ordinary user or purchaser. Relevant evidence on the question
includes testimony regarding customs of the trade, industry standards, and
professional literature.
In this case, there was no evidence that an ordinary user of the fire blanket
reasonably expected a fire blanket to prevent the type of melting observed here.
Black & Veatch (P) produced evidence only regarding the subjective views of one
individual. In fact, there was other testimony that the blanket performed as
expected. Summary judgment on the breach of warranty claim is affirmed.
Analysis:
The excerpt discusses the warranty in terms of the reasonable expectations of

consumers. In a portion of the court’s opinion not reproduced in the text, it is noted
that marketing materials for
208
the type of fire blanket probably involved (the actual blanket was destroyed)
264
cautioned that it should not be used in the horizontal position, as it was in this
situation. Auburn (D) manufactured another fire blanket recommended for such
applications. While there are some products whose misuse is so common as to be
part of the “normal expectations of a consumer (e.g. using a screwdriver to open a
paint can),” it probably would be considered unreasonable for a user to expect a
product to perform in a manner specifically warned against by the manufacturer.
209

(Sawmill Operator) v. (Oil Seller)
438 F.2d 500 (8th Cir. 1971)
IF THE SELLER KNOWS HOW THE BUYER WILL USE A PRODUCT, A

WARRANTY MAY ARISE THAT THE PRODUCT CAN BE USED IN THAT
WAY
INSTANT FACTS Lewis (P) purchased oil recommended by Mobil (D) for use
in hydraulic machinery, but the oil did not function properly and Lewis’s (P)
machinery was damaged.
BLACK LETTER RULE An implied warranty of fitness arises when the seller
has reason to know of the use for which goods are purchased and the buyer relies
on the seller’s expertise in supplying the proper product.
PROCEDURAL BASIS
Appeal from a judgment after a jury verdict for Lewis (P).
FACTS
In 1964, Lewis (P) installed hydraulic equipment in his sawmill. The system was
265
purchased used but was in good operating condition when Lewis (P) purchased it.
After the equipment was installed, Lewis (P) asked Rowe, a local dealer for Mobil
(D), for the right hydraulic fluid to operate the machinery. Rowe did not know the
proper lubricant, but said he would find out. Rowe may have contacted another
Mobil (D) representative, but this point is unclear. Rowe sold Lewis (P) a product
known as Ambrex 810, a mineral oil with no additives.
Lewis (P) began having trouble with the operation of the equipment soon after he
started to use it. The oil changed color, foamed over, and got hot. The oil was
changed several times, but there was no improvement. The system completely
broke down approximately six months after it was installed, and there was some
suspicion that the oil being used caused the breakdown. Lewis (P) asked Rowe to
be sure he was supplying the correct oil, and he continued to supply Ambrex 810.
Lewis (P) had problems with the system from 1965 to 1967. Six new pumps were
installed during this time. In April 1967, Lewis (P) began to use a different kind of
pump. Ambrex 810 was also recommended by Mobil (D) for this pump, and the
pump broke down three weeks after it was installed. Another representative of
Mobil (D) and a representative of the pump manufacturer visited Lewis (P). A new
pump was installed and, on the recommendations of the manufacturer’s
representative and the representative from Mobil (D), a different lubricant was
used. The new lubricant had additives including a defoamant. The new pump
worked satisfactorily.
Lewis (P) brought suit against Mobil (D), alleging a breach of the warranty of
fitness. Mobil (D) claimed that there was no warranty of fitness, and that there was
no proof of a breach of the warranty of merchantability, because there was no proof
that Ambrex 810 was not fit to use in hydraulic systems generally.
ISSUE
Did Lewis (P) establish a breach of the warranty of fitness?
210

(Gibson, J.) Yes. An implied warranty of fitness arises when the seller has reason
to know of the use for which goods are purchased and the buyer relies on the
seller’s expertise in supplying the proper product. Both of these requirements are
met in this case. The existence of a warranty of fitness is a question of fact to be
determined by the circumstances of the contract.
Lewis (P) had been a longtime customer of Mobil (D) and dealt exclusively with
Rowe. It was common knowledge in the community that Lewis (P) planned to
266
install hydraulic equipment, and Rowe had visited Lewis’s (P) business several
times during the installation. Lewis (P) asked Rowe for the correct hydraulic fluid,
and Rowe knew nothing more specific about Lewis’s (P) requirements than the type
of pump he had. Rowe did not know what type of oil to use, and referred the
question to a superior. The superior recommended Ambrex 810. Lewis (P) also
testified that he asked Rowe to make sure that he was using the proper oil when he
had problems. Rowe asked a Mobil (D) engineer for a recommendation for oil
when the new pump was installed in 1967, and the engineer recommended Ambrex
810. When the new pump failed, the engineer inspected the pump and recommended
a different oil.
Mobil (D) argued that there was no warranty of fitness for Lewis’s (P) use, because
he did not tell them that he needed an oil with particular specifications. The
existence of a warranty is a question of fact, to be determined by the circumstances
of the contract. Lewis (P) made it clear that he did not know what oil to use, and
that he was relying on Mobil (D) to supply the appropriate product. If Mobil (D)
needed further information, it was Mobil’s (D) obligation to get it before it made its
recommendation. The fact that Mobil (D) could easily have obtained the
information is demonstrated by the fact that Mobil’s (D) engineer visited Lewis’s
(P) sawmill and changed the previous recommendation. Affirmed on the issue of
the existence of a warranty; remanded for a recalculation of damages.
Analysis:
The warranty of fitness comes from the idea that a merchant has some expertise
with regard to the goods being sold. Buyers are entitled to rely on this expertise
when receiving a recommendation for a particular item. In situations such as the
one presented by this case, the assumption of expertise is not an unreasonable one
—Rowe had dealt with Lewis (P) for some time, and knew about his business and
why he wanted to buy the oil. Most consumer purchases of goods, while governed
by the same rule, might cast doubt on that assumption. Is the expertise the same
when the sale is of one of thousands of products carried by a “big box” retail
chain?
211

(Utility Company) v. (Boiler Manufacturer)
283 S.C. 182, 322 S.E.2d 453 (1984)
BUYERS MUST HAVE NOTICE OF WARRANTY DISCLAIMERS
267
INSTANT FACTS South Carolina Electric and Gas (P) brought a breach of
warranty claim against Combustion (D), and Combustion (D) claimed that the
warranties of merchantability and fitness had been disclaimed.
BLACK LETTER RULE A disclaimer of warranties will be effective if the

circumstances surrounding the sale are sufficient to draw the buyer’s attention to the
exclusion of warranties.
PROCEDURAL BASIS
Appeal from an order granting summary judgment to Combustion Engineering (D).
FACTS
In 1970, South Carolina Electric and Gas (P) purchased a boiler manufactured by
Combustion Engineering (D). The boiler was installed in March 1973, and in May
1975, a hose attached to the boiler ruptured and sprayed heated fuel oil on the
boiler, allegedly starting a fire that caused South Carolina Electric (P) to sustain
damages in excess of $350,000.
The sales contract for the boiler contained an express warranty that the boiler
would be free of defects in material and workmanship for one year. The warranty
also stated there were no other express or implied warranties, other than the
warranty of title. The disclaimer of warranties was on page seventeen of a twenty-
two page document, in an item headed “WARRANTY,” and it was the last sentence
of a two-paragraph section. The disclaimer did not mention “merchantability,” and
the type face and color of the disclaimer were not different from the rest of the text.
A proposal Combustion (D) sent to South Carolina Electric (P) in August 1968
contained the same disclaimer at issue here. South Carolina Electric (P) replied to
that proposal in January 1969. The reply stated that the proposal was unacceptable
in certain respects, and that any purchase order would have to meet certain
268
conditions. One of the conditions was that Combustion (P) would agree to be bound
by the “warranties implied by the laws of the State of South Carolina.” Combustion
(D) replied that it would not agree to that condition, and also stated that the
agreement must have a limitation on the warranty period and a limitation on the
available remedies. South Carolina Electric (P) replied and stated that it agreed
that the “warranties implied by [the] laws of South Carolina shall be limited” to the
warranty item included in the original proposal.
South Carolina Electric (P) brought suit against Combustion (D) for breach of the
warranties of fitness for a particular purpose and merchantability, and for negligent
design. Combustion (D) moved for, and was granted, summary judgment.
ISSUE
Was the language in the sales agreement sufficient to limit the warranty on the
boiler?
212

(Goolsby, J.) Yes. A disclaimer of warranties will be effective if the circumstances
surrounding the sale are sufficient to draw the buyer’s attention to the exclusion of
warranties. The warranty language did not meet the requirements for a disclaimer
or limitation of warranty set out in U.C.C. § 2–316 (2), in that it did not mention
“merchantability,” it was not conspicuous, and it was misleading in that it was
placed in a section labeled “WARRANTY.” However, the U.C.C. provides an
exception to the statutory requirements for disclaimers when the circumstances
show that the buyer’s attention was drawn to the disclaimer.
The correspondence preceding the agreement is not a part of the agreement, but is
considered in order to determine whether the disclaimer was unbargained for and
unanticipated by South Carolina Electric (P). Herr, the disclaimer is clear and
unambiguous. The language of the disclaimer came as no surprise to South Carolina
Electric (P). There was no factual showing to the contrary. In addition, South
Carolina Electric (P) is commercially sophisticated and has bargaining power
relatively equal to that of Combustion (D). The size of the transaction and the length
of the negotiations show as much. It is not credible that a business like South
Carolina Electric (P) would not be aware of the language disclaiming implied
warranties. The disclaimer here was effective, notwithstanding its failure to
comply with the formal requirements. Affirmed.
Analysis:
269
This case is an appeal from a grant of summary judgment, so all the court is saying
is that South Carolina Electric (P) did not raise an issue of material fact regarding
the disclaimer. In other words, the court is not saying that, as a matter of law, the
type of disclaimer used by Combustion (D) will always be sufficient, or even that a
large business such as South Carolina Electric (P) will not be able to avoid a
disclaimer that is legally insufficient. The court is merely holding that South
Carolina Electric (P) did not rebut evidence showing that it had actual notice of the
disclaimer. The result of this case could well have been different if there had been
no proof that the warranty disclaimer language was discussed before the sales
agreement was signed.
213

(Car Buyer) v. (Car Dealer)
32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960)
DISCLAIMERS OR OTHER STATEMENTS LIMITING A PARTY’S LIABILITY

UNDER A PRIVATE CONTRACT ARE BINDING ONLY IF SUCH LIMITATION
IS UNDERSTANDINGLY ACCEPTED BY THE PARTIES
INSTANT FACTS Henningsen sued Bloomfield for breach of warranty after the
steering in his new car failed, and Bloomfield countered with a disclaimer written
in fine print.
BLACK LETTER RULE Disclaimers and attempted limitations of warranties

or liability, whether in a public, quasi-public, or private contract, are not
enforceable unless the limitation is fairly and honestly made and understandingly
entered into.
270
PROCEDURAL BASIS
Appeal from judgment in action for breach of implied warranty of merchantability.
FACTS
Claus Henningsen (P) bought a new car from Bloomfield Motors, Inc. (Bloomfield)
(D). Claus’ (P) wife, Helen (P), drove the car ten days later and was injured when
the steering mechanism failed. The Henningsens (P) sued Bloomfield (D) and the
car’s manufacturer, Chrysler Corporation (Chrysler) (D), for breach of an implied
warranty of merchantability established by the Uniform Sales Act. Both Bloomfield
and Chrysler (D) argue that the warranty had been properly disclaimed under the
Act. They (D) pointed to a provision of the purchase contract which provided for a
limit on the liability for breach of warranty. Under this provision, liability was
limited to replacement of defective parts for up to 90 days after delivery or 4,000
miles of driving, whichever came first. This warranty is a standard one used by car
dealers. The provision was contained in an eight-and-a-half point section of fine
print on the back of the contract. While most of the contract was printed in twelve-
point type, this provision was referred to on the front of the contract by statements
printed in six-point type just above the space for signatures. In particular, the
contract incorporated the following reference: “I have read the matter printed on
the back hereof and agree to it as part of this order the same as if it were printed
above my signature.” The trial court ruled for the Henningsens (P), and Bloomfield
and Chrysler (D) appealed.
ISSUE
Is a standardized contract with a disclaimer or limitation of warranty automatically
enforceable once both parties sign it?

(Francis) No. The traditional contract is the product of free bargaining between
parties that meet on roughly the same economic level. In present-day commercial
life, however, the standardized mass contract has emerged, used primarily by
enterprises with strong bargaining power and position. Weaker parties that need
goods or services without the ability to “shop around for better terms, either
because the one using the form contract has a monopoly or because all competitors
use the same kind of contracts. Here, the warranty at issue is imposed on the car-
buying customer, who must accept its terms in order to make the purchase. This
warranty is
214
271
used by all the major car manufacturers. Thus, customers like the Henningsens (P)
cannot find any better protection than this. Indeed, with the car manufacturers not
competing with each other in terms of customer protection, there is no incentive for
them to provide better warranties to the customers. Several cases have shown that
disclaimers and their resulting limitations of liability will not be given effect if
unfairly procured or if not made clear and explicit to the buyer. Disclaimers and
attempted limitations of warranties or liability, whether in a public, quasi-public,
or private contract, are not enforceable unless the limitation is fairly and honestly
made and understandingly entered into. While this rule has usually been applied to
cases involving services of a public or semi-public nature, more and more recent
cases have applied the rule to private contract disputes. Here, the specific warranty
imposed by Bloomfield (D) provided that it (D) would replace defective parts
during the first 90 days or 4,000 miles of operation. This apparently served as a
remedy for physical deficiencies in the car. Only by abandoning all sense of justice
would a court hold that this warranty would indicate that a person accepting it
would relinquish any personal injury claim that would result from a defect of the
automobile. The court must protect consumers like the Henningsens (P) from such
unilateral acts by larger entitles like this disclaimer of liability by Bloomfield and
Chrysler (Ds). Judgment affirmed.
Analysis:
Remember that the court in O’Callaghan stated that the “use of a form contract
does not of itself establish disparity of bargaining power,” and that the subject of
addressing the dangers of exculpatory clauses “is appropriate for legislative rather
than judicial action.” Here, the court expressly assumes the role of protecting the
“ordinary layman … [because] … there can be no arms length negotiating” between
the customer and the manufacturer. It should be noted that since 1960, when
Henningsen was decided, automobile manufacturers began to extend and advertise
their warranties in order to gain a competitive advantage.
CASE VOCABULARY
INIMICAL: Unfriendly, hostile, or opposed to.
SIGNATURE ELEMENTS: Designated area on contract where parties place their
signatures.
272
215
273
274
CHAPTER SIX
275
Limits on the Bargain and its Performance
Instant Facts: McKinnon loaned the Benedicts $5,000 to purchase their
campground, and in return, restricted the Benedicts from making improvements near
his property for 25 years.
Black Letter Rule: A contract which is harsh, oppressive, and unconscionable
may still be enforceable at law, but it is within a court’s discretion to not enforce
equitable remedies against a party who suffers from such harshness and oppression
under the contract.
Instant Facts: Ruby Tuckwiller contract to take care of her husband’s aunt in
exchange for the aunt’s farm, but the aunt died shortly after signing the contract.
Black Letter Rule: The court should look at a transaction prospectively, from the
viewpoint of the parties at the time at the time of the agreement, to determine the
fairness of the transaction and the sufficiency of its consideration; once the essential
fairness of a contract for real property and the adequacy of its consideration are
found, a court of equity can decree specific performance of it.
Instant Facts: Black claimed that Bush failed to deliver parts according to their
contract, while Bush claims that Black would receive excessive profits on its
government contracts.
Black Letter Rule: It is not the function of the court to interfere in the contractual
relationship of two ordinary businessmen dealing at arm’s length by trying to
determine the validity of the contract on the basis of the adequacy of the
consideration.
Instant Facts: O’Callaghan sued her landlord for negligence after falling in the
building courtyard, and her landlord claimed an exculpatory clause in the lease
barred the action.
Black Letter Rule: Contracts by which one tries to relieve himself or herself from
liability for negligence are generally enforced unless it would be against the settled
public policy of the State to do so, or there is something in the social relationship
of the parties militating against upholding the agreement.
276
Instant Facts: After a music promoter signed a mandatory form contract requiring
arbitration before a biased panel and then loses his case, he sues to void the
contract as unconscionable.
Black Letter Rule: Adhesion contracts are enforceable, except for provisions
which contradict adherents’ reasonable expectations, or are unconscionable.
Instant Facts: Doe (P) signed up with Great Expectations (D) for dating and
introduction services, but she met no one through the service.
Black Letter Rule: A consumer injured by a contract that violates statutory
requirements may collect actual damages, to be set at the face amount of the
contract.
Instant Facts: Williams bought furniture and a stereo on credit from Walker-
Thomas while on welfare, and Walker-Thomas repossessed the items when
Williams defaulted.
216
Black Letter Rule: A contract is unenforceable if its terms, when considered in

light of the circumstances existing when the contract was made, are so extreme as to
appear unconscionable according to prevailing mores and business practices.
Instant Facts: While on welfare, the Joneses agreed to buy a $300 freezer on
credit, with additional credit and fees running the purchase price up to $1,234.80.
Black Letter Rule: A court may find that an entire contract, and not just a
particular clause of it, is unconscionable as a matter of law and thereby
unenforceable.
Instant Facts: Scott (P) filed a class action suit against Cingular (D) to challenge
the legality of certain charges, and Cingular (D) moved to enforce the arbitration
clause in its standard contract.
Black Letter Rule: An arbitration clause that prohibits consumer class actions is
substantively unconscionable in that such a clause undermines enforcement of
consumer protection laws, and because such a clause severely limits the remedies
of only one side.
277
Instant Facts: The SAT’s administrator reserves the right to cancel disputed
scores, but allows test-takers to present evidence proving validity. When the
administrator decided a test-taker had an impostor write his test, it ignored the test-
taker’s proffered evidence.
Black Letter Rule: When a contract allows parties to present evidence disputing
the other’s discretionary determinations, the determiner must review proffered
evidence in good faith, and otherwise perform its obligations fairly and faithfully.
Instant Facts: De La Concha (P) claimed that Aetna (D) acted in bad faith when it
stopped promoting a retail development in which De La Concha (P) was a tenant.
Black Letter Rule: A breach of the implied covenant of good faith and fair dealing
implies actions involving actual or constructive fraud, a design to mislead or
deceive, or a neglect or refusal to fulfill a contractual obligation that was prompted
by an interested or sinister motive.
Instant Facts: A leaseholder tries to exercise an option which enables him to buy
the leased property from its owner.
Black Letter Rule: The duty of good faith precludes a party from taking deliberate
advantage of an oversight by the other party concerning its rights under the contract.
Instant Facts: A brewery fails to use best effort to continue the sales of an
acquired label.
Black Letter Rule: A contract clause requiring best efforts to ensure profits does
not require the promisor to spend itself into bankruptcy in the course of
performance.
Instant Facts: A businessman sued to recover payment for selling a business which
made drug paraphernalia.
Black Letter Rule: Courts cannot hear disputes about contracts which violate
public policy by being illegal, or tending to promote illegality.
Instant Facts: Rivergate refused to pay XLO an outstanding balance for work XLO
had done, claiming that the contract was part of an organized crime racket.
217
278
Black Letter Rule: A contract will be considered unenforceable if it is so
integrally related to the agreement, arrangement or combination in restraint of
competition that its enforcement would result in compelling performance of the
precise conduct made unlawful by antitrust laws.
Instant Facts: Hopper opened her own veterinary clinic near All Pet after All Pet
fired her, and All Pet claimed she violated an agreement not to compete.
Black Letter Rule: A covenant not to compete is valid and enforceable only if it is
shown that the covenant is (1) in writing; (2) part of a contract of employment; (3)
based on reasonable consideration; (4) reasonable in duration and geographical
limitation; and (5) not against public policy.
Instant Facts: An employee is fired for warning his company that they are
violating a food labeling statute.
Black Letter Rule: An employee who is fired for reasons in contravention of
public policy can sue in tort for wrongful termination.
Instant Facts When a dialysis machine marketer fired its general counsel for
threatening to report its illegal sale of tampered machines, the counselor sued for
wrongful discharge.
Black Letter Rule If an attorney is fired for reporting clients’ misconduct which
the attorney is ethically obligated to report, the attorney has no claim for retaliatory
discharge.
Simeone v. Simeone
Instant Facts: An ex-wife sued to void her prenuptial agreement, contending her
husband presented it right before the wedding and forced her to sign without
opportunity to consult a lawyer.
Black Letter Rule: Prenuptial agreements are enforceable as written if they were
made after fair financial disclosure.
Instant Facts: Stern (P) paid Whitehead (D) $10,000 to bear a child conceived by
artificial insemination, and Whitehead (D) refused to relinquish the child to Stern
(P) and his wife after Whitehead (D) gave birth.
Black Letter Rule: Surrogacy contracts that involve the payment of money to a
woman who irrevocably agrees to bear a child and turn it over to another party are
279
illegal and invalid.
219
(Homeowner) v. (Campground Owners)
38 Wis.2d 607, 157 N.W.2d 665 (1968)
A COURT CAN DECIDE WHETHER TO ENFORCE A CONTRACT THAT

APPEARS TO BE HARSH AND OPPRESSIVE AGAINST ONE OF THE
PARTIES TO IT
INSTANT FACTS McKinnon loaned the Benedicts $5,000 to purchase their

campground, and in return, restricted the Benedicts from making improvements near
his property for 25 years.
BLACK LETTER RULE A contract which is harsh, oppressive, and

unconscionable may still be enforceable at law, but it is within a court’s discretion
to not enforce equitable remedies against a party who suffers from such harshness
and oppression under the contract.
FACTS
Roderick McKinnon (P) owned a tract of land consisting of over one thousand
acres near a forest lake. In 1960, McKinnon (P) helped Mr. and Mrs. Roy Benedict
(D) buy a nearby resort known as Bent’s Camp. This camp consisted of about
eighty acres, with a lodge and several cabins on the property. This camp was
enclosed by the lake and by McKinnon’s (P) property. While McKinnon (P)
promised to help the Benedicts (D) obtain business, his help came mainly in the
form of a $5,000 loan. Only one group occupied the resort as a result of
McKinnon’s (P) efforts, and that group stayed for less than a week. The Benedicts
280
(D) used this loan as part of its down payment for purchasing the camp from its
previous owners. In return for this loan, the Benedicts (D) promised to cut no trees
between McKinnon’s (P) property and the camp, and to make no improvements
“closer to [McKinnon’s] property than the present buildings.” These restrictions
were to remain in effect for 25 years. McKinnon (P) spent his winters out of the
state. The Benedicts (D) were able to repay the loan in about seven months, but the
resort was not successful. In 1964, they (D) made plans to add a trailer park and
tent camp. From the fall of 1964 to the spring of 1965, they invested roughly $9,000
in bulldozing the property and installing utilities. That summer, McKinnon (P)
returned, and he (P) later filed suit against the Benedicts (D). The trial court
enjoined the Benedicts (D) from continuing work on the additions to the resort. The
Benedicts (D) appealed.
ISSUE
Can a court choose not to enforce a contract when it appears that the contract is
unfairly harsh or oppressive for one party?
(Heffeman) Yes. A contract which is harsh, oppressive, and unconscionable may
still be enforceable at law, but it is within a court’s discretion to not enforce
equitable remedies against a party who suffers from such harshness and oppression
under the contract. Generally, contracts that are oppressive will not be enforced in
equity. Also, restrictions on land use are not traditionally favored in the law, and so
disputes over such restrictions should normally be resolved in favor of the free use
of the property. The great hardship that McKinnon (P) would impose on the
Benedicts (D) is clear. The only monetary consideration McKinnon (D) ever
provided was a $5,000 loan, interest free, for a period of seven months. Also,
McKinnon (P) stated that he would help generate business for the Benedicts (D),
but, in the end, his (P)
220
efforts have resulted in only one group’s attendance at the resort. For all this, the
Benedicts (D) have sacrificed their (D) right to make lawful and reasonable use of
their (D) property. Granted, the Benedicts (D) could not have obtained the property
without the $5,000 loan. This fact nonetheless demonstrates how the Benedicts (D)
were unable to deal at arm’s length with McKinnon (P). The Benedicts (D) need for
the loan was apparently so great that they (D) were willing to enter a contract that
resulted in gross inequities. The benefits that McKinnon (P) would enjoy from this
agreement are more than outweighed by the burdens imposed on the Benedicts (D).
McKinnon (P) cannot see the proposed trailer camp from his (P) home, and neither
281
can the campsite be seen from that location during the summer, when the leaves are
on the trees. Thus, the damage to McKinnon (P) would be minimal. Moreover,
McKinnon (P) was a well-established businessman, as well as a former
government official, at the time he (P) entered the contract. Mr. Benedict (D), by
contrast, was a retail jeweler with limited financial ability. These factors further
demonstrate the unfairness of the transaction. Judgment reversed
Analysis:
A court is generally given discretion to deny specific performance. In withholding

this remedy, the courts find justification in the fact that such a decision does not
leave a claimant without any remedy at all if the claimant can still make a claim for
damages. With a case like McKinnon, however, that remedy could be essentially
meaningless. Here, the damages suffered by McKinnon (P) would be almost
impossible to quantify.
CASE VOCABULARY
SINE QUA NON: Latin for “without which not”; used to describe a necessary
precondition.
221
(Niece) v. (Aunt’s Executor)
413 S.W.2d 274 (Mo. 1967)
A COURT SHOULD LOOK AT A TRANSACTION PROSPECTIVELY, NOT

RETROACTIVELY, TO DETERMINE ITS FAIRNESS AND THE ADEQUACY
OF ITS CONSIDERATION
INSTANT FACTS Ruby Tuckwiller contract to take care of her husband’s aunt
282
in exchange for the aunt’s farm, but the aunt died shortly after signing the contract.
BLACK LETTER RULE The court should look at a transaction prospectively,

from the viewpoint of the parties at the time at the time of the agreement, to
determine the fairness of the transaction and the sufficiency of its consideration;
once the essential fairness of a contract for real property and the adequacy of its
consideration are found, a court of equity can decree specific performance of it.
PROCEDURAL BASIS
Appeal from judgment in action for injunctive relief.
FACTS
John and Ruby Tuckwiller (P) lived on the Hudson family farm. John’s aunt, Metta
Hudson Morrison, lived in New York and owned 160 acres of the farm property.
When she was about 70 years old, Morrison contracted Parkinson’s disease.
Morrison had been educated at several schools, including Columbia, and had been
a teacher for many years. After learning of her condition, Morrison returned to the
Hudson farm in early 1963. Around this time, Morrison first asked Ruby (P) to quit
her (P) job and care for her the rest of her life. In April 1963, Morrison had to be
hospitalized for about a week. She was thought to have had a stroke, but on May
1st, her doctor found her mental state to be as “clear as a bell.” The doctor also
said that Morrison was aware that Parkinson’s disease is a progressive condition
which leaves its victims completely dependent on outside care. After Morrison was
released from the hospital, she and Ruby (P) again discussed the possibility of
Ruby Tuckwiller (P) providing care for her. On May 3, Morrison signed a paper
written by Ruby (P) in which Ruby (P) offered to provide food and nursing care to
Morrison during her lifetime. In exchange, Morrison would pass the family farm to
her by will when she died. On May 6, Ruby (P) resigned from her job, and
Morrison made an appointment with her lawyer to change her will. Later that day,
however, Morrison had to be taken to the hospital. Before leaving for the hospital,
Morrison had the aforementioned paper dated and signed by the two ambulance
attendants as witnesses. Ruby (P) spent much time with Morrison at the hospital,
even though Morrison was attended by special nurses. Except for four days,
Morrison stayed at the hospital until she died on June 14. Morrison’s will,
prepared in 1961, was never changed. It provided for the sale of the farm, with the
proceeds going into a student loan fund at Davidson College (Davidson) (D). Ruby
(P) sued Davidson (D) and Marion Tuckwiller (D), Morrison’s executor, for
specific performance of her contract with Morrison. The trial court ruled for Ruby
(P), and Davidson and Marion (D) appealed.
283
222
ISSUE
Can a court decree specific performance of a contract if it is unfair or has
inadequate consideration?

(Welborn) No. A transaction must be viewed prospectively, from the standpoint of
the parties at the time of the agreement, in order to determine whether a contract is
so unfair or inequitable so that its specific performance should be denied. This
same test applies when determining the adequacy of the consideration involved.
Once the essential fairness of a contract for real property and the adequacy of its
consideration are found, then a court of equity can decree specific performance of
it. Here, Ruby (P) gave up her employment and undertook an obligation which, at
the time the contract was made, was of an unknown and uncertain duration. Further,
this obligation would have entailed duties which would have been more
burdensome as Morrison’s condition worsened. From Morrison’s perspective, the
contract was not unfair. Morrison appreciated the care and attention that Ruby (P)
had provided her before the contract was ever made. Such prior services and the
past relationship between Ruby (P) and Morrison may properly be considered in
connection with the fairness of the contract and adequacy of the consideration.
Morrison was understandably appreciative of the care Ruby (P) provided her, and
was concerned with having long-term, impersonal care for the rest of her life.
Morrison’s insistence that the contract be signed and witnessed before she was
hospitalized demonstrates her satisfaction with the agreement. Her attempt to
change her will is further proof of this. Thus, from the standpoint of the parties
when the agreement was made, the contract was fair and supported by an adequate
consideration. Once the essential fairness of a contract is found and its
consideration is held to be adequate, a court can decree specific performance of it.
This is true even where the contract involves real property. Judgment affirmed.
Analysis:
The courts are split over the question of awarding specific performance in the event
of a change of circumstances after the contract is made. In Bergstedt v. Bender, the
court denied specific performance of a contract that would have allowed a party to
purchase a $4,900 homestead for $1,500 and would have given the seller the right
to use it for life. The court found that the seller’s death soon after the contract
rendered it “harsh and inequitable.” A number of courts, including those in Kansas
and New York, agree with this reasoning and find that an otherwise fair and
conscionable contract will not be specifically performed when subsequent events
284
make the contract so unfair that it shocks the conscience.
CASE VOCABULARY
PARKINSON’S DISEASE: A chronic, progressive disease affecting the nervous
system and causing weakness in certain muscles.
223

(Manufacturer) v. (Subcontractor)
110 F.Supp. 801 (D.N.J. 1953)
THE COURT WILL NOT INTERFERE IN A CONTRACT BETWEEN

ORDINARY BUSINESSMEN BY TRYING TO DETERMINE ITS VALIDITY
BASED ON THE ADEQUACY OF THE CONSIDERATION INVOLVED
INSTANT FACTS Black claimed that Bush failed to deliver parts according to
their contract, while Bush claims that Black would receive excessive profits on its
government contracts.
BLACK LETTER RULE It is not the function of the court to interfere in the
contractual relationship of two ordinary businessmen dealing at arm’s length by
trying to determine the validity of the contract on the basis of the adequacy of the
consideration.
PROCEDURAL BASIS
Motion for summary judgment in action for breach of contract.
FACTS
Black Industries, Inc. (Black) (P) manufactures drills and machine parts and
285
components, and also purchases subcontract work from other suppliers. Black (P)
was invited to bid upon certain contracts with the Hoover Company to provide
three types of parts. These parts were anvils, holder primers, and plunger supports.
On March 22, 1951, George F. Bush, doing business as G.F. Bush Associates
(Bush) (D), agreed to provide Black (P) with 1,300,000 anvils at $4.40 per
thousand; 750,000 holder primers at $11.50 per thousand; and 700,000 plunger
supports at $12 per thousand. Black (P) would take responsibility for all dealings
with The Hoover Company and be entitled to the difference between Bush’s (D)
quotations and the final prices for the parts. The Hoover Company eventually
agreed to pay Black (P) significantly higher prices for these parts: $8.10 per
thousand anvils, $16 per thousand holder primers, and $21.20 per thousand plunger
supports. Black (P) claims that Bush (D) failed to complete this order, causing it
(P) to incur a $14,625 loss. In addition, Bush (D) had agreed to produce other
quantities of parts for a re-sale contract Black (P) had with Standby Products
Company. Black (P) claims that Bush (D) failed to comply with this contract as
well, resulting in a loss of $4,460.95. Bush (D) argues that these contracts were
void because they were against public policy. Both contracts were for parts that
The Hoover Company and Standby Products Company were to use in fulfilling
government contracts during the Korean War. Bush (D) claims that Black (P) stood
to make a “profit” of roughly 84% on anvils, 39% on holder primers, and 68% on
plunger supports. These profits, according to Bush (D), were to be passed on to the
government and the public in the form of increased prices, which is why Bush (D)
claims the contracts violate public policy.
ISSUE
Can a court decide whether a contract between two businesses is valid in light of
the consideration involved?
224

(Forman) No. It is not the function of the court to interfere in the contractual
relationship of two ordinary businessmen dealing at arm’s length by trying to
determine the validity of the contract on the basis of the adequacy of the
consideration. To declare a contract void against public policy, the contract must be
invalid on the basis of recognized legal principles. The contract here does not fit
that description. It is not a contract to pay one of the parties for inducing a public
official to act in a certain way; it is not a contract to commit an illegal act; nor is it
a contract which refers to collusive bidding on a government contract. The
contract’s only effect on the government was that Bush’s (D) goods were to be used
in products that the government would ultimately buy. Thus, the contract cannot be
286
declared void as against public policy as Bush (D) contends. Granted, Black (P)
would very likely have received a very high profit on the sale of the parts.
Nonetheless, relative values of the consideration in a contract between
businessmen, without any evidence of fraud, will not affect the validity of the
contract. The mere fact that the government is the ultimate purchaser of the parts
involved does not change this standard. To find that this contract would violate
public policy solely because of the profit Black (P) could make would needlessly
burden the courts with an extremely heavy regulatory function. Bush’s (D) motion
for summary judgment denied.
Analysis:
Courts are reluctant to police contracts on the basis of their substance. In his 1958
work, An Apology for Consideration, Edwin Patterson suggested three reasons for
such reluctance. One is that preventing the courts from setting fair prices makes the
efficient administration of the law of contracts possible. A second reason is that
ambiguous terms like “fair” and “reasonable” make it difficult to establish a bright-
line test for enforceability. The third reason rests on the idea that mature and
competent persons should have the freedom to make both wise and unwise
contracts.
CASE VOCABULARY
COLLUSIVE: Performing toward a secret agreement, usually for an illegal or
dishonorable purpose.
225

(Tenant) v. (Landlord)
15 Ill.2d 436, 155 N.E.2d 545 (1958)
AN EXCULPATORY CONTRACT WILL NOT BE ENFORCED IF SUCH

ENFORCEMENT WOULD VIOLATE THE PUBLIC POLICY OF THE STATE OR
IF THE NATURE OF THE RELATIONSHIP OF THE PARTIES JUSTIFIES NO
ENFORCEMENT
287
INSTANT FACTS O’Callaghan sued her landlord for negligence after falling in
the building courtyard, and her landlord claimed an exculpatory clause in the lease
barred the action.
BLACK LETTER RULE Contracts by which one tries to relieve himself or

herself from liability for negligence are generally enforced unless it would be
against the settled public policy of the State to do so, or there is something in the
social relationship of the parties militating against upholding the agreement.
PROCEDURAL BASIS
Appeal from judgment in negligence action for damages.
FACTS
Ella O’Callaghan (P) was a tenant in a large apartment building maintained and
operated by Waller & Beckwith Realty Co. (Waller & Beckwith) (D). O’Callaghan
(P) was injured when she (P) fell while crossing the paved courtyard between the
garage and her apartment. O’Callaghan (P) sued Waller & Beckwith (D) for
negligence, claiming that her (P’s) injuries were caused by defective pavement in
the courtyard. Before the case was tried, O’Callaghan (P) died. Her (P)
administrator was substituted as plaintiff in this action. The jury returned a verdict
for $14,000 for O’Callaghan (P) and judgment was entered on the verdict. Waller
& Beckwith (D) appealed. The Appellate Court held that the action was barred by
an exculpatory clause in O’Callaghan’s (P) lease, and that a verdict should have
been directed for Waller & Beckwith (D). The trial court judgment was then
reversed and the cause was remanded with directions to enter a judgment
accordingly. Leave to appeal was granted.
ISSUE
Can a contract which contains a clause allowing one party to relieve itself of
288
liability for negligence be valid and enforceable?
(Schaefer) Yes. Contracts by which one tries to relieve himself or herself from
liability for negligence are generally enforced unless it would be against the settled
public policy of the State to do so, or there is something in the social relationship
of the parties militating against upholding the agreement. O’Callaghan (P) argues
that the exculpatory clause at issue here is contrary to public policy when included
in a lease of residential property and invalid. Freedom of contract is basic to our
law. If that freedom, however, is used to absolve one party from the consequences
of his or her own negligence, then the standards of conduct which have developed
for the protection of others may be diluted. The courts have refused to enforce
exculpatory contracts between common carriers and freight companies or
passengers, and
226
between telegraph companies and those sending. There is an obvious public

interest involved in those transactions. Here, however, an essentially private
transaction involving a lessor and lessee is involved. Clauses that exculpate the
landlord from the consequences of his or her negligence have been sustained in
residential as well as commercial leases. Contracts with such clauses can benefit
both landlords and tenants. The risk of potential financial burden becomes widely
dispersed among many tenants, and the impact of sanctions against a landlord to
induce adherence to certain standards of care is lessened. O’Callaghan (P) claims
that the shortage of housing has led to a disparity of bargaining power between
lessors and lessees, with landlords receiving an unconscionable advantage over
tenants. In pointing to a housing shortage through the existence of rent controls and
numerous statutes, O’Callaghan (P) asks that the court augment a presumably
inadequate response to this problem by the legislature. The relationship of landlord
and tenant, however, does not have the same monopolistic characteristics as other
relationships where exculpatory clauses have been considered invalid. There are
thousands of landlords in competition with one another. The use of a form contract
does not automatically establish disparity of bargaining power between landlord
and tenant. Housing shortages are temporary, transitory events. The legislature, not
the court, should be responsible for making policy decisions regarding such
matters. Judgment of Appellate Court affirmed.
Analysis:
Most states have laws that provide that statements or clauses in residential leases
that allow a landlord to escape liability to the tenant for negligence are ineffective.
289
In other states, common law rules produce a similar result. Still other states have
adopted variant statutory rules. For example, a tenant in Maine may enter into a
written agreement by which the tenant will accept specific conditions that violate
the warranty of fitness for human habitation. In return, the tenant can receive fair
consideration, such as a written reduction in rent. Also, a tenant in Texas may
waive certain responsibilities owed to him or her by the landlord, provided the
waiver meets certain statutory form requirements for knowledge, voluntariness, and
consideration. Moreover, several states, including Illinois, have enacted statutory
limitations on exculpatory provisions in commercial leases.
CASE VOCABULARY
ADMINISTRATOR: A person legally responsible for overseeing an estate after its
owner’s death.
EXCULPATORY: That which tends to clear someone from liability or guilt.
INDEMNIFY: To compensate for injury or loss.
227

(Music Promoter) v. (Musician’s Corporation)
28 Cal.3d 807, 171 Cal.Rptr. 604, 623 P.2d 165 (1990)
ADHESION CONTRACTS ARE ENFORCEABLE UNLESS

UNCONSCIONABLE
INSTANT FACTS After a music promoter signed a mandatory form contract

requiring arbitration before a biased panel and then loses his case, he sues to void
the contract as unconscionable.
BLACK LETTER RULE Adhesion contracts are enforceable, except for
290
provisions which contradict adherents’ reasonable expectations, or are
unconscionable.
PROCEDURAL BASIS
In contract arbitration seeking damages, appeal from appellate affirmation of award
for defendant.
FACTS
Graham (P), an experienced music promoter and producer, contracted with singer
Leon Russell’s corporation Scissor-Tail, Inc. (D) to promote Russell’s multi-city
concert tour. The contract was an industry-standard form promulgated by the
American Federation of Musicians (“A.F. of M.”) and provided any disputes would
be arbitrated by the A.F. of M’s executive board. A.F. of M. required its producer-
members to use only its form contract, and membership was virtually required to
work in the industry. Some of Russell’s concerts proved unprofitable, and disputes
arose about whether losses could be applied to offset lucrative concerts’ profits.
Graham (P) sued for contract breach, but Scissor-Tail, Inc. (D) moved to compel
arbitration, and won. At arbitration, the board found for Scissor-Tail (D). Graham
(P) appealed, contending the agreement was unenforceable as an adhesion contract,
and the arbitration clause was unconscionable. The appellate court affirmed the
arbitrators’ award. Graham (P) appeals again.
ISSUE
Is a standard form contract requiring disputes to be arbitrated before an industry
panel void?

Yes. Adhesion contracts are enforceable, except for provisions which contradict
adherents’ reasonable expectations, or are unconscionable. Adhesion contracts are
a familiar part of the modern legal landscape, and an inevitable fact of life for
businessmen and consumers alike. Here, Graham’s (P) contract was adhesive;
despite Graham’s (P) prominence, he was required to be an A.F. of M. member, and
thus obligated to use its form contracts, which reduced him to a humble adherent.
However, adhesion contracts are generally enforceable, except for provisions
which contradict adherents’ reasonable expectations, or are unconscionable in
context. Here, the arbitration clause was not contrary to Graham’s (P) reasonable
expectations, since he previously used such contracts. [However, the clause
requiring arbitration before the A.F. of M. was unconscionable, since the A.F. of M.
is presumably biased by reason of its status and identity.] Reversed.
291
228
Analysis:
Form contracts offer some efficiency gains by reducing the need to hire lawyers to
draft individualized contracts. Adhesion contracts are unenforceable, however,
when they undermine adherents’ “reasonable expectations,” which often happens
when a contract that ostensibly confers some boon whittles away most of the
expected benefit. Further, clauses that are “unconscionable” are unenforceable.
Courts evaluating unconscionability use a process akin to measuring the sufficiency
of consideration, deciding whether the contract mostly benefits one side. However,
the standard of review is much higher. Unequal contracts are not unconscionable
unless the inequality “shocks the conscience,” or the terms are so oppressive that
no reasonable person would knowingly and willingly assent.
CASE VOCABULARY
ADHESION CONTRACT: Standard form contract usually promulgated by parties
with superior bargaining power. The counterparty must accept the contract as is,
without the opportunity to negotiate terms.
UNCONSCIONABLE: Contracts are “unconscionable” when they are too
favorable to one side to enforce against the other. A common test mandates that
contracts should be voided as unconscionable, in whole or part, if they are so
oppressive that no free and reasonable person would have consented to them freely.
229

(Customer) v. (Dating Service)
10 Misc.3d 618, 809 N.Y.S.2d 819 (N.Y.City Civ. Ct. 2005)
DATING CONTRACTS MUST COMPLY WITH THE LAW
292
INSTANT FACTS Doe (P) signed up with Great Expectations (D) for dating
and introduction services, but she met no one through the service.
BLACK LETTER RULE A consumer injured by a contract that violates

statutory requirements may collect actual damages, to be set at the face amount of
the contract.
PROCEDURAL BASIS
Decision after a small claims court hearing.
FACTS
Doe (P) and Roe (P) signed form contracts for services to be rendered by Great
Expectations (D). Doe (P) paid $1,000 for a six-month contract, and Roe (P) paid
$3,790 for a thirty-six month contract that was eventually extended to a total
duration of fifty-four months. The contracts stated that Great Expectations (D)
would provide photo shoots and dating advice, but would provide no social
referrals. The contracts also stated that Doe (P) and Roe (P) did not wish to
receive referrals from Great Expectations (D). Roe’s (P) contract included a
handwritten notation indicating that she was informed orally that she would be
introduced to twelve people through Great Expectations (D). Doe (P) met no one
through Great Expectations (D), but at some point stopped checking with the
service. Roe (P) received no introductions, but met one person who approached her
after seeing her information.
ISSUE
Are Doe (P) and Roe (P) entitled to collect damages from Great Expectations (D)?

(Lebedeff, J.) Yes. A consumer injured by a contract that violates statutory
293
requirements may collect actual damages, to be set at the face amount of the
contract. The contract here is subject to the New York Dating Services Law, N.Y.
Gen. Bus. Law § 394–c, which applies to all services “providing matching of
members of the opposite sex … for the purpose of dating and general social
contact.” The law has been held to apply to services that match members by
creating a location and mechanism for members to assess one another.
There are two principal departures from the requirements of the law in this case.
First, the charges are excessive. When no assurances are provided that a service
will furnish a client with a specified number of referrals per month, the maximum
charge is twenty-five dollars. Roe (P) was told that she would get twelve
introductions over the course of thirty-six months, but that is not an assurance of a
specified number each month. The second departure is that the form contract
violates every provision of the Dating Services Law, with the exception of the
mandatory three-day cooling-off period. The provisions omitted include stating a
“specified number of social referrals per month,” disclosure of the option to cancel
and obtain a refund, a statement that personal information will not be revealed
without consent, the client’s right to place a membership on hold for a year, the
return of personal information at the end of the
230
contract, the maximum distance for a face-to-face meeting, and the policy to be
applied if the customer moves out of the service area. Great Expectations (D) also
failed to provide written notice of the mandatory “Dating Service Consumer Bill of
Rights.”
The Dating Service Law provides that a person injured by a violation of the law
may bring an action to recover his or her actual damages or fifty dollars, whichever
is greater. In this case, the actual damages include the difference between each
contract price and the maximum twenty-five dollar fee permitted. Doe (P) and Roe
(P) seek restitution of the full balance paid, including the twenty-five dollars. The
court finds that they would not have signed contracts violating the applicable laws
if they had known of their rights, so they are also entitled to a refund including the
twenty-five dollar balance. The statutory language regarding actual damages was
added along with a provision authorizing the Attorney General to bring enforcement
actions and seek civil penalties. Consumers were offered a single remedy of
restitution, available through a private lawsuit or through an enforcement action by
the Attorney General. The addition of “actual damages” to the law does not erode
the commitment to protect consumers from price-gouging by dating services.
The contracts of Doe (P) and Roe (P) are terminated, Doe’s (P) by expiration and
Roe’s (P) by reason of this action. Great Expectations (D) may wish to return
294
personal material to them, or face adverse consequences outside the scope of this
litigation. The court has the discretion to report unlawful conduct to the appropriate
authorities. This matter impacts the public interest in that it violates the rules of a
regulated industry, and a similar course of conduct by Great Expectations (D) has
previously been litigated. In addition, the court’s truth-determining function will not
be impacted by a report. Accordingly, the court will report this matter to the
appropriate officials. Judgment ordered in favor of Doe (P) and Roe (P).
Analysis:
Did the court award Doe (P) and Roe (P) damages, or did it impose a penalty on
their behalf? If the case is looked at strictly as a breach of contract matter, without
reference to the Dating Services Law, there is no proof that Great Expectations (D)
breached the contract. From a strictly contractual point of view, there are no
damages. The court, however, presumes damage from the statutory violations. Doe
(P) and Roe (P) would not, in the court’s reasoning, have signed the contract in the
first place if they knew the contract was illegal, and the full contract price is,
therefore, the amount by which they were damaged.
231

(Welfare Customer) v. (Furniture Store)
350 F.2d 445, 18 A.L.R.3d 1297 (D.C. Cir. 1965)
CONTRACTS WITH APPARENTLY UNCONSCIONABLE TERMS ARE

UNENFORCEABLE
INSTANT FACTS Williams bought furniture and a stereo on credit from

Walker-Thomas while on welfare, and Walker-Thomas repossessed the items when
Williams defaulted.
295
BLACK LETTER RULE A contract is unenforceable if its terms, when
considered in light of the circumstances existing when the contract was made, are
so extreme as to appear unconscionable according to prevailing mores and business
practices.
PROCEDURAL BASIS
Appeal from judgment in action for replevin.
FACTS
Walker-Thomas Furniture Company (Walker-Thomas) (D) runs a retail furniture
store. From 1957 to 1962, Williams (P) and others (P) bought several household
items from Walker-Thomas (D). Payments for these items were to be made through
installment plans. The terms of each purchase were contained in a printed form
contract which stated the value of the purchased item and the amount of monthly
rent payment to be made by the customer. The contract also provided that Walker-
Thomas (D) would remain the owner of the purchased item until all monthly
payments were made. At that point, the customer could take title to the goods. In the
event of a default in the payment of any monthly installment, Walker-Thomas (D)
could repossess the item. Moreover, under the contract, any payments made would
be credited pro rata on all outstanding balances. In other words, if a customer had
bought more than one item on installments, his or her payments would be credited
to all the debts for all the different items. This overall balance would then exist
until all balances due were paid in full. On April 17, 1962, Williams (P) bought a
stereo set for $514.95. By that point, Williams had an outstanding balance of about
$164 for previously purchased goods. Her (P) new balance thus increased to $679.
Williams (P) was receiving a $218 stipend from the government every month.
Walker-Thomas (D) was aware of Williams’ (P) financial status when selling the
stereo to her (P), and Williams’ (P) social worker’s name was even written on the
back of the contract. Williams (P) eventually defaulted on her (P) payments shortly
thereafter, and Walker-Thomas (D) sought to replevy all the items she (P)
purchased after December 1957. The Court of General Sessions granted judgment
for Walker-Thomas (D). The District of Columbia Court of Appeals affirmed, and
leave to appeal was granted.
ISSUE
Can a contract which appears unconscionable at the time it is made be enforceable?

(Wright) No. A contract is unenforceable if its terms, when considered in light of
the circumstances existing when the contract was made, are so extreme as to appear
296
unconscionable according to prevailing mores and business practices. Congress
should consider enacting corrective legislation to protect the public from such
exploitative contracts as
232
were used by Walker-Thomas (D) in this case. In fact, Congress has recently
enacted the Uniform Commercial Code, which specifically provides that the court
may refuse to enforce a contract which it finds to be unconscionable at the time it
was made. This court now holds in accordance with this position.
Unconscionability has generally been considered as including the absence of
meaningful choice for one party combined with contract terms which are
unreasonably favorable to the other party. Whether a party has a meaningful choice
may depend on several factors, including the manner in which the contract was
entered, or the disparity of bargaining power. Granted, a party that signs a contract
without full knowledge of its terms may often be assumed to have entered a one-
sided bargain. It is unlikely, though, that a party with little bargaining power or
choice when entering such a contract could give his or her consent to all the terms
of the contract. In determining the reasonableness or fairness of a contract, the
primary concern must be with the terms, considered in light of the circumstances
existing when the contract was made. This test cannot be mechanically applied.
Case remanded to trial court for further proceedings.
DISSENT
(Danaher) There must be thousands upon thousands of this kind of transaction
occurring every day. Because the law has long allowed parties such latitude in
making contracts, any approach to this problem should be a cautious one. Here,
Williams (P) apparently knew precisely where she (P) stood in this contract. The
District of Columbia Court of Appeals was correct in its disposition of the issues.
Analysis:
As it turned out, Williams (P) had bought about sixteen items from Walker-Thomas
(D) between 1957 and 1962. She owed only twenty-five cents on the first item,
three cents on the second item, and similarly trivial amounts on the other items,
except for the stereo. Thus, if Walker-Thomas (D) had applied Williams’s (P)
payments in relation to the original debt for each item, she would have paid in full
for about a dozen of the sixteen items she bought. The manner of apportioning
payments has been widely prescribed by various statutes. A broad consumer-
protection rule of the Federal Trade Commission applied in this case, would have
limited Walker-Thomas (D) to reserving an interest in any items it sold so that only
the unpaid price of the item or items subject to that transaction would be secured. In
297
other words, the stereo could only serve as collateral for the outstanding balance on
the stereo alone. This kind of regulation would offer far more protection to
Williams (P) than the original plan.
CASE VOCABULARY
LOAN SHARK: One who lends money to others at extremely high rates of interest,
often threatening violence against the borrower if he or she defaults.
PRO RATA: At a proportional rate.
REPLEVIN: An action to recover taken property, and not the value of the property.
233

(Welfare Customer) v. (Credit Company)
59 Misc.2d 189, 298 N.Y.S.2d 264 (Sup.Ct. 1969)
AN ENTIRE CONTRACT, NOT JUST A CLAUSE OF A CONTRACT, CAN BE

CONSIDERED UNCONSCIONABLE AND THEREBY UNENFORCEABLE BY
THE COURT
INSTANT FACTS While on welfare, the Joneses agreed to buy a $300 freezer
on credit, with additional credit and fees running the purchase price up to
$1,234.80.
BLACK LETTER RULE A court may find that an entire contract, and not just a
particular clause of it, is unconscionable as a matter of law and thereby
unenforceable.
PROCEDURAL BASIS
298
Breach of contract action for damages.
FACTS
The Joneses (P) are welfare recipients. On August 30, 1965, the Joneses (P) agreed
to buy a home freezer unit for $900 as the result of a visit from a salesman from
Your Shop at Home Service, Inc. The purchase price, including credit charges,
credit life insurance, credit property insurance, and sales tax, totaled $1,234.80. By
the time this action commenced, the Joneses (P) had paid $619.88 toward their (P)
purchase. Star Credit Corp. (D) argues that, with additional charges for an
extension of the plan, the Joneses (P) still owe a balance of $819.81. The
uncontroverted proof at the trial established that the freezer unit had a maximum
retail value of about $300 at the time of purchase.
ISSUE
Can a contract be declared unenforceable if only one term of it, such as its price,
can be considered unconscionable?

(Wachtler) Yes. A court may find that an entire contract, and not just a particular
clause of it, is unconscionable as a matter of law and thereby unenforceable. The
poorer members of the community, often uneducated and illiterate, should be
protected from overreaching by those with greater bargaining power. Common law
and statutory law have recognized the importance of free enterprise and yet have
provided legal armor to protect customers from unconscionable contracts. Section
2–302 of the Uniform Commercial Code allows a court to manipulate fluid rules of
contract law and determinations based upon a presumed public policy. There is no
reason to doubt that this section was also intended to cover the price term of an
agreement. The statutory language itself makes clear that not only a clause of the
contract, but the contract in its entirety, may be found unconscionable as a matter of
law. No other provision of an agreement affects the question of unconscionability
more that those affecting price. There is no fraud in this case, but fraud is not
necessary. The sale of a $300 freezer for over $1,400 is unconscionable as a matter
of law. This does not mean that § 2–302 should be reduced to a solely mathematical
formula. Limited financial resources of the customer, as was the case with Jones
(P), should also be considered. Indeed, a gross inequality of bargaining power can
negate any meaningfulness of choice. Granted, Installment payment plans and
extensions of
234
credit are often desirable, even necessary, for people to obtain the most basic
299
conveniences. A merchant may also charge additional costs above the retail value
of an item to protect against those who may default on such arrangements. Neither
of these premises, however, can validate this arrangement. Star Credit (D) has
already been amply compensated for the freezer. The payment provision should be
limited to amounts already paid by the Joneses (P) and the contract should be
reformed and amended to only call for the amount already paid by the Joneses (P).
Analysis:
The courts have generally been more hesitant to determine the fairness of the price
term of a contract than the fairness of other clauses. The price term is special,
because a party can rarely claim surprise regarding price. Indeed, the price is often
a negotiable term. Further, evaluating the fairness of the price term is not easy for
the courts. Most courts have been satisfied with relatively crude, simple
calculations in price unconscionability cases. There are questions regarding how
much weight should be given to certain factors, including a seller’s markup, any
difference between the seller’s price and that of other sellers and the potential
profit for a seller. For these and other reasons, most courts have avoided ruling that
an unfair price, without other evidence of unfairness, is unconscionable.
CASE VOCABULARY
CAVEAT: A warning against performing a certain act.
INTRINSIC: Having to do with the essential nature of something.
OVERREACHING: Taking unfair advantage of another through abuse of one’s
superior bargaining power or through fraud.
235

(Telephone Customer) v. (Telephone Service Provider)
160 Wash.2d 843, 161 P.3d 1000 (2007)
CLASS ACTIONS VINDICATE CONSUMER RIGHTS
300
INSTANT FACTS Scott (P) filed a class action suit against Cingular (D) to
challenge the legality of certain charges, and Cingular (D) moved to enforce the
arbitration clause in its standard contract.
BLACK LETTER RULE An arbitration clause that prohibits consumer class

actions is substantively unconscionable in that such a clause undermines
enforcement of consumer protection laws, and because such a clause severely
limits the remedies of only one side.
PROCEDURAL BASIS
Appeal from an order granting a motion to compel arbitration.
FACTS
Scott (P) and other plaintiffs purchased cellular telephones and calling plans from
Cingular (D). The contracts were all standard preprinted agreements that contained
a clause requiring mandatory arbitration. The arbitration clause prohibited
consolidation of cases, class action suits, and class arbitration. Cingular (D) also
reserved the right to unilaterally revise the agreement.
The agreement was modified in July 2003 by a monthly “bill stuffer.” The revised
agreement continued to prohibit class actions, and it also provided that arbitration
would be conducted according to the rules of the American Arbitration
Association. The agreement further provided that Cingular (D) would pay the fees
associated with the arbitration unless the customer’s claim was frivolous, that
Cingular (D) also would pay the customer’s attorney’s fees and expenses if the
customer received at least the demanded amount, and that arbitration would take
place in the county of the customer’s billing address. Limitations on punitive
damages were removed.
Scott (P) brought suit against Cingular (D), claiming that customers were
301
overcharged for long distance and out-of-network roaming calls. Customers were
overcharged up to approximately $45 per month, according to the suit. Scott (P)
admitted that the loss to each individual customer was small, but in the aggregate,
Cingular (D) overcharged the public by a significant amount. Cingular (D) moved
to compel individual arbitration. Scott (P) argued that the class action waiver was
substantively and procedurally unconscionable. The trial court granted Cingular’s
(D) motion to compel, finding that although the contract was a contract of adhesion,
it was not sufficiently complex, illegible, or misleading to be procedurally
unconscionable.
ISSUE
Was the class action waiver clause unconscionable?

(Chambers, J.) Yes. An arbitration clause that prohibits consumer class actions is
substantively unconscionable in that such a clause it undermines enforcement of
consumer protection laws, and because such a clause severely limits the remedies
of only one side. An agreement is against public policy if it is against the public
good or is injurious to the public. Washington law authorizes class actions and
shows a state policy of favoring the aggregation of small claims for
236
efficiency, deterrence, and the access to justice. When consumer claims are small
but numerous, a class-based remedy is the only effective way to vindicate the
public’s rights. Individual actions by defrauded consumers are often impracticable
because the amount of an individual’s recovery may be too small to justify bringing
a separate suit. Class remedies not only resolve the claims of the individual class
members, but can also deter future similar conduct. Consumers who bring actions
under the Consumer Protection Act do not merely vindicate their own rights, they
represent the public interest. Courts have held that class actions are a critical part
of the enforcement of the consumer protection laws. Without class actions, many
meritorious claims would never be brought, and there would be far less opportunity
to vindicate the Consumer Protection Act. The class action waiver in the instant
case is a substantively unconscionable violation of the state’s policy, because it
drastically forestalls attempts to vindicate consumer rights. It is unnecessary to
address the claims of procedural unconscionability.
The class action waiver is also unconscionable for effectively exculpating Cingular
(D) for a large class of wrongful conduct. Contract provisions that exculpate the
drafter for wrongdoing undermine the public good, especially when the drafter is
302
exculpated for intentional wrongdoing. Exculpation for unfair or deceptive acts or
practices in commerce clearly violates public policy. On its face, the class action
waiver does not exculpate Cingular (D) from anything. The waiver merely channels
disputes into individual arbitration or small claims court. But in effect, the waiver
does exculpate Cingular (D) whenever the cost of pursuing a claim outweighs the
potential of recovery. The realistic alternative to a class action, as Judge Posner
points out, is not millions of individual suits, but zero individual suits “as only a
lunatic or a fanatic sues for $30.” In cases involving smaller claims, the ability to
proceed as a class transforms a merely theoretical remedy into a real one. Without
a class action, many consumers may not even realize that they have a claim, but
class actions have a mechanism to alert potential claimants.
Shifting the arbitration cost to Cingular (D) does not seem likely to make it worth
the time, expense, and effort to pursue individual small claims. Scott (P) presented
evidence that the cost does prevent claims. It appears that no claims from
Washington customers have been brought to arbitration against Cingular (D) in the
past six years. Cingular (D) claims that its promise to pay the costs associated with
arbitration removes any concerns about access to a remedy. This promise, however
laudable, does not ensure that a remedy is practically available. Attorney’s fees are
awarded only if the consumer recovers at least the full amount of his or her
demand. A consumer could recover ninety-nine percent of a claim and still be
denied attorney’s fees. In addition, the arbitrator still may consider the amount in
controversy when awarding fees. Although customers are not barred from hiring an
attorney, it is made impracticable for them to do so. The class action waiver thus
prohibits one party to the contract, the consumer, from pursuing small claims. It is
therefore substantively unconscionable for denying any meaningful remedy.
The class action waiver states that if it is found to be unenforceable, the entire
arbitration clause is null and void. There is thus no basis on which to compel
arbitration. Reversed and remanded.
DISSENT
(Madsen, J.) If there is a public policy forbidding class action waivers, it should
come from the legislature, not the court. The new policy of the majority disfavors
arbitration, contradicting the strong public policy favoring arbitration embodied in
the Federal Arbitration Act. Under the Act, every arbitration agreement is
presumed valid. This policy is of particular force where, as here, the arbitration
agreement includes significant financial protections for consumers. If this
arbitration clause violates “public policy,” then it is difficult to imagine any in the
consumer context that would not.
The majority also departs from the usual case-by-case analysis for determining
303
contract unconscionability in favor of a sweeping rule. This rule will invalidate
thousands of arbitration contracts without regard to the specific terms of those
contracts.
237
Analysis:
In a footnote, the majority says that, contrary to the claims of the dissent, it is not
holding that the Consumer Protection Act invalidates all class action waivers, but
only those that effectively prohibit enforcement of the Consumer Protection Act. It
is not clear when the waivers would be permitted, as the majority’s language seems
absolute. The case cited as an example in the footnote, Hangman Ridge Training
Stables, Inc. v. Safeco Tit. Ins. Co., 105 Wash. 2d 778, 719 P. 2d 531 (1986), does
not mention arbitration or class actions. Interestingly, the court’s opinion in the
instant case also specifically states that “class-wide” arbitration would not be
prohibited under its ruling.
CASE VOCABULARY
CLASS ACTION: A lawsuit in which a single person or small group of people
represents the interests of a larger group. Federal procedure has several
requirements for maintaining a class action: (1) the class must be so large that
individual suits would be impracticable, (2) there must be legal or factual
questions common to the class, (3) the claims or defenses of the representative
parties must be typical of those of the class, and (4) the representative parties must
adequately protect the interests of the class. Fed. R. Civ. P. 23.
PROCEDURAL UNCONSCIONABILITY: Unconscionability resulting from
improprieties in contract formation (such as oral misrepresentations or disparities
in bargaining position) rather than from the terms of the contract itself.
SUBSTANTIVE UNCONSCIONABILITY: Unconscionability resulting from actual
contract terms that are unduly harsh, commercially unreasonable, and grossly unfair
given the existing circumstances.
UNCONSCIONABILITY: 1. Extreme unfairness. Unconscionability is normally
assessed by an objective standard: (1) one party’s lack of meaningful choice, and
(2) contractual terms that unreasonably favor the other party. 2. The principle that a
court may refuse to enforce a contract that is unfair or oppressive because of
procedural abuses during contract formation or because of overreaching contractual
terms, especially terms that are unreasonably favorable to one party while
precluding meaningful choice for the other party. Because unconscionability
depends on circumstances at the time the contract is formed, a later rise in market
304
price is irrelevant.
UNCONSCIONABLE: Showing no regard for conscience; affronting the sense of
justice, decency, or reasonableness.
239

(SAT Test-Taker) v. (SAT Test Administrator)
87 N.Y.2d 384, 639 N.Y.S.2d 977, 663 N.E.2d 289 (Ct. App. 1995)
ALL CONTRACTS IMPLY A DUTY TO PERFORM OBLIGATIONS FAIRLY

AND IN GOOD FAITH
INSTANT FACTS The SAT’s administrator reserves the right to cancel disputed
scores, but allows test-takers to present evidence proving validity. When the
administrator decided a test-taker had an impostor write his test, it ignored the test-
taker’s proffered evidence.
BLACK LETTER RULE When a contract allows parties to present evidence

disputing the other’s discretionary determinations, the determiner must review
proffered evidence in good faith, and otherwise perform its obligations fairly and
faithfully.
PROCEDURAL BASIS
In contract action seeking specific performance, appeal from appellate affirmation
of judgement for plaintiff.
FACTS
Student Dalton (P) registered to take the Scholastic Aptitude Test (SAT),
305
administered by Educational Testing Service (“ETS”) (D). In registering, Dalton
(P) signed ETS’ (D) standard agreement, allowing ETS (D) “the right to cancel any
test score … if ETS believes … there is reason to question the score’s validity.”
The agreement also provided that, if “the validity of a test score is questioned
because it may have been obtained unfairly, ETS [will notify] the test taker or the
reasons for questioning the score” and giving the test taker the option of either
providing an explanation, taking a free retest, canceling the score and obtaining a
refund, appealing to the college receiving the score, or arbitrating. Since Dalton’s
(P) score on his second attempt rose substantially over his first, ETS (D) flagged
his exam. ETS’ (D) officials and handwriting experts analyzed Dalton’s (P) test,
opining someone else had written Dalton’s (P) second test for him. ETS (D)
decided preliminarily to cancel his second score unless he provided explanation.
Dalton (P) offered evidence that he was sick with mononucleosis (a lingering,
fatigue-inducing infection) the first time, and witness testimony confirming he was
present at the testing center the second time. However, ETS (D) merely submitted
Dalton’s (P) 2 exams to another handwriting analyst, who again opined they were
discrepant. [Meaning ETS (D) ignored Dalton’s (P) explanations.] Dalton (P) sued
ETS (D) for breach of contract, demanding ETS (D) release his score and
contending ETS’ (D) dispute-resolution procedures implied an obligation to review
evidence in good faith. ETS (D) defended, contending Dalton’s (P) proof of illness
and presence were irrelevant to the disparate handwriting. [Huh? And ETS (D) is
testing our abstract reasoning ability?] At trial, the judge held for Dalton (P),
finding ETS (D) breached by failing to investigate Dalton’s (P) furnished
information, and ordered ETS (D) to release his score. On appeal, the Appellate
Division affirmed. ETS (D) appeals.
ISSUE
When a contract allows parties to present evidence disputing the other’s
discretionary determinations, must the determiner review proffered evidence?
240

(Kaye) Yes. When a contract allows parties to present evidence disputing the
other’s discretionary determinations, the determiner must review proffered
evidence in good faith, and otherwise perform its obligations fairly and faithfully.
Implicit in all contracts is a covenant of good faith and fair dealing in performing
the contract. Good faith implies any promises a reasonable promisee would
reasonably understand were included in the contract. This embraces the pledge that
neither party shall do anything which destroys or injures the other’s right to receive
the fruits (benefits) of the contract. Where the contract contemplates the exercise of
306
discretion, this pledge includes a promise not to do so arbitrarily or irrationally.
Here, ETS (D) breached its contractual obligations by ignoring Dalton’s (P)
explanation. However, the duty of good faith and fair dealing has limits, and no
obligation can be implied that would be inconsistent with the contract’s other terms.
Here, the contract explicitly allowed ETS (D) to cancel scores it had “reason to
question,” and never required ETS (D) to prove test takers cheated. Nor did the
invitation to furnish relevant information translate into an obligation by ETS (D) to
conduct a field investigation or gather evidence to prove/disprove test-takers’
documentation. Indeed, the contract specified that test-takers bore the burden of
overcoming ETS’ (D) findings. The contract did require ETS (D) to consider
evidence supplied by Dalton (P), which is germane to whether an impostor
completed the exam. When ETS (D) fulfills its contractual obligation to consider
relevant evidence provided by test-takers and otherwise acts in good faith, ETS
(D) and not the courts must be the final arbiter of test scores’ validity. This court
will not interfere with that determination, unless it is formed arbitrarily or
Irrationally. We agree Dalton (P) is entitled to specific performance, but the
“performance” specified by the contract is merely that ETS (D) must reconsider
Dalton’s (P) proffered evidence in good faith. We conclude this affords Dalton (P)
a meaningful remedy, since we cannot assume ETS (D) will merely rubber-stamp
its prior decision. Modified and affirmed.
Analysis:
At first glance, it seems the court below exceeded its mandated remedy (specific
performance) by ordering ETS (D) not just to re-evaluate its decision in light of his
explanations, but to bypass its evaluation and release Dalton’s (P) score to colleges
as valid. The court probably granted this drastic remedy because it believed that
ETS (D), if ordered to reconsider, would just reaffirm its decision automatically.
Indeed, this is exactly what happened. ETS (D) refused to release Dalton’s (P)
score, and he was apparently forced to apply to colleges using his old, lower score.
Dalton (P) was accepted to a college. Technically, Dalton (P) was allowed to sue
ETS (D) for damages. However, note that his case is still in the discovery stage six
years after the event. Further, since Dalton (P) attended college and grad school, it
may be impossible to prove any loss from the lowered test score. Thus, the New
York Court of Appeals effectively denied Dalton (P) an effective remedy, and could
have reached a much fairer result had it independently evaluated the facts of his
exam.
241

307
269 Conn. 424, 849 A.2d 382 (2004)
“BAD FAITH” INVOLVES A DISHONEST PURPOSE
INSTANT FACTS De La Concha (P) claimed that Aetna (D) acted in bad faith
when it stopped promoting a retail development in which De La Concha (P) was a
tenant.
BLACK LETTER RULE A breach of the implied covenant of good faith and
fair dealing implies actions involving actual or constructive fraud, a design to
mislead or deceive, or a neglect or refusal to fulfill a contractual obligation that
was prompted by an interested or sinister motive.
PROCEDURAL BASIS
Appeal from a judgment for Aetna (D).
FACTS
Aetna Life Insurance (D) owned the Hartford Civic Center, an enclosed mall with
retail stores. In 1975, De La Concha (P) leased space in the Civic Center to sell
tobacco products. Interdependency of the retailers was important, as customers
who came in to make a purchase at one store frequently made impulse purchases at
other stores. The Civic Center was fully occupied when it opened, but no anchor
tenant was ever found. Occupancy rates fluctuated with the local economy. The
Civic Center lost money even when it was fully occupied. Eventually, low
occupancy of the Civic Center gave it a deserted feeling that depressed sales. In
1995, Aetna (D) concluded that the Civic Center was losing money. Aetna (D)
explored several options for the Civic Center, and concluded that the most likely
alternative was to sell it. The future use of the Civic Center could not be foreseen,
so Aetna (D) entered into short-term leases or leases that gave Aetna (D) the right
to recapture the premises. Aetna (D) essentially stopped its efforts to promote the
Civic Center. For the next three years, capital expenditures were limited to safety
308
measures and maintenance.
Aetna (D) decided to sell the Civic Center in 1998. De La Concha (P) continued in
business, but started to default on its rent. In 1999, Aetna (D) agreed to sell the
Civic Center for redevelopment into a residential complex with some retail stores.
In 2000, De La Concha (P) sought to exercise its option to renew its lease for five
years. De La Concha (P) was then behind in rent and had failed to maintain its
annual sales of at least $262,500, a condition for renewal of the lease. Aetna (P)
rejected De La Concha’s (P) option to renew. De La Concha (P) brought an action
against Aetna (D) for breach of the implied covenant of good faith and fair dealing,
and for violations of the Connecticut Unfair Trade Practices Act. The trial court
rendered judgment for Aetna (D).
ISSUE
Did Aetna (D) breach an implied covenant of good faith and fair dealing?

(Palmer, J.) No. A breach of the implied covenant of good faith and fair dealing
implies actions involving actual or constructive fraud, a design to mislead or
deceive, or a neglect or refusal to fulfill a contractual obligation that was prompted
by an interested or sinister motive. The duty of
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good faith and fair dealing is implied in every contract, and requires that neither
party do anything that injures the right of the other party to receive benefits under
the agreement. A breach of the duty involves actions undertaken in bad faith that
impede a party’s right to receive benefits he or she reasonably expects under the
contract. Bad faith is more than mere negligence.
De La Concha (P) argued that Aetna (D) had an obligation to make good faith
efforts to promote the Civic Center because the economic viability of a retail tenant
in an enclosed mall depends upon the occupancy rate of the entire mall. De La
Concha (P) claimed that the evidence established that Aetna (D) engaged in a
scheme to starve out the tenants once it decided to sell the Civic Center, in order to
give potential purchasers more flexibility in deciding how to manage profitability.
De La Concha (P) further claimed that Aetna (D) failed to promote the Civic
Center, or obtain new tenants, in furtherance of this scheme. De La Concha (P) also
alleged that Aetna’s (D) failure to renew its lease was unreasonable, largely
because De La Concha’s (P) failure to attain its annual sales was due to Aetna’s
(D) failure to promote the Civic Center.
The evidence supported the trial court’s finding that Aetna’s (D) actions to sell the
309
Civic Center were undertaken reasonably and in good faith. Those steps were
undertaken for the purpose of getting out from an unsuccessful business venture that
resulted in the loss of more than $50 million over the course of approximately
twenty years. Aetna (D) went to considerable lengths to retain existing tenants and
to attract new ones. With respect to Aetna’s (D) decision to enter into short-term
leases with recapture provisions, a number of tenants or potential tenants insisted
on such terms in light of the precarious state of the Hartford economy. There was no
decision to empty out the Civic Center. Some tenants refused to renew their leases,
not because of the terms offered by Aetna (D), but because of the bleak retail
climate in downtown Hartford. The weak economy also made it difficult, if not
impossible, to attract new tenants to the Civic Center.
The trial court also reasonably concluded that Aetna’s (D) conduct had no material
bearing on De La Concha’s (P) gross sales. The weak Hartford economy and the
end of the cigar boom combined to cause the reduction in De La Concha’s (P) sales.
De La Concha (P) cannot prevail on its claim that Aetna’s (D) policies
demonstrated that Aetna’s (D) conduct was motivated by bad faith. Aetna (D) was
free to take appropriate action to reduce the losses it had incurred for many years.
The evidence supported the conclusion that Aetna’s (D) actions were reasonably
designed to achieve that end. Affirmed.
Analysis:
The plaintiff in this case also asserted claims for breach of contract, promissory
estoppel, tortious interference with business expectancies, and negligent
misrepresentation. With respect to the claims of breach of contract, promissory
estoppel, and tortious interference with business expectancies, the plaintiff failed to
address them in its post-trial brief and the trial court therefore deemed them
abandoned. With respect to the negligent misrepresentation claim, the trial court
concluded that the plaintiff had not established such a claim. At the time of this
decision, the plaintiff had not appealed from that part of the trial court’s judgment
concerning those four claims. This appeal, therefore, was limited to the trial court’s
rejection of the plaintiff’s Connecticut Unfair Trade Practices Act claim and, as
discussed herein, the defendant’s alleged breach of the implied covenant of good
faith and fair dealing.
243

(Lessee) v. (Property Owner)
941 F.2d 588 (7th Cir. 1991)
310
COURT OF APPEALS DESCRIBES THE BOUNDARIES OF AN IMPLIED
DUTY OF GOOD FAITH
INSTANT FACTS A leaseholder tries to exercise an option which enables him

to buy the leased property from its owner.
BLACK LETTER RULE The duty of good faith precludes a party from taking
deliberate advantage of an oversight by the other party concerning its rights under
the contract.
PROCEDURAL BASIS
Appeal from a trial court judgement for the defendant in an action for specific
performance on a lease option.
FACTS
J.C. Penney entered into a fairly complicated financial arrangement with General
Electric Pension Trust (GE) (D). Under the resulting agreement, J.C. Penney sold
its property to GE (D) and then leased it back from them. This transaction was
supposed to provide J.C. Penney with capital for growth enhancement. Paragraph
34 of the agreement required GE (D) to give reasonable consideration to any
requests from J.C. Penney for the financing of improvements. In addition, paragraph
34 gave J.C. Penney the right to buy back its property if negotiations for
improvements broke down, and if J.C. Penney’s property had an average annual
appreciation over 6%. A successor of J.C. Penney’s under one of its leases, Market
Street Associates (Market Street) (P), was interested in buying the property back
from GE (D). GE’s (D) representative, Erb, did not respond to inquiries. Market
Street (P) subsequently sent two letters to Erb, requesting financing for
improvements. They never mentioned paragraph 34 in these letters. Erb denied
Market Street’s (P) request because they asked for an amount less than the minimum
311
loan of $7 million. Market Street (P) then tried to exercise the buyback option
under paragraph 34. GE (D) refused this request as well, forcing Market Street (P)
to sue for specific performance. The district court granted summary judgement to
GE (D), finding that Market Street (P) violated its duty of good faith under the
agreement. Market Street’s (P) representative. Orenstein, admitted that he did not
think Erb knew about paragraph 34 when it made its request for financing. The
district court decided that Market Street (P) had deliberately manufactured the
circumstances which triggered the buyback option. Market Street (P) appeals this
determination.
ISSUE
Does the duty of good faith require a party to protect against another party’s
ignorance of a contract term?

(Posner) Yes. The district court felt that Market Street (P) had an obligation to
remind GE (D) of paragraph 34, even though GE (D) was likely to discover the
paragraph when it processed Market Street’s (P) request for financing. It was
correct, but this approach has its limits. The
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duty of good faith does not require parties to look out for each other’s financial
well-being. In fact, a party to a contract is fully entitled to take advantage of its
superior knowledge or financial position when dealing with another party. A party
cannot, however, take advantage of an oversight by the other party which affects its
rights under the contract. In this case, it is not clear whether Orenstein took
advantage of Erb’s lack of knowledge regarding paragraph 34, or if he simply
assumed that GE (D) would discover the paragraph on its own. This question
cannot be answered on summary judgement. Instead, it requires an inquiry into
Orenstein’s state of mind at the time. As a result, the district court’s grant of
summary judgement is reversed and the case is remanded for trial.
Analysis:
Judge Posner’s opinion in this case is interesting because it demonstrates that law
and economics are not ruthless, but simply appreciate efficiency. In other words,
there are limits to the sort of behavior that can be tolerated and still maintain a
healthy market for contracts. Judge Posner and Judge Easterbrook, his fellow judge
on the Seventh Circuit, are respected for their cohesiveness and their clarity, if not
yet fully embraced by the entire legal establishment. On a separate note, the district
court ultimately found for GE (D) on remand. As it turns out. Orenstein knew that
312
GE (D) was unaware of paragraph 34, but continued to write letters that failed to
clarify the parties’ respective rights. This was a violation of the duty of good faith,
as described by Judge Posner, and led the district court to deny its request for
specific performance.
245

(Reorganization Trustee) v. (Brewery)
601 F.2d 609 (2nd Cir. 1979)
COURT OF APPEALS PERMITS A FACT-SPECIFIC INQUIRY TO DETERMINE

A PARTY’S OBLIGATIONS UNDER A BEST EFFORTS CLAUSE
INSTANT FACTS A brewery fails to use best effort to continue the sales of an
acquired label.
BLACK LETTER RULE A contract clause requiring best efforts to ensure

profits does not require the promisor to spend itself into bankruptcy in the course of
performance.
PROCEDURAL BASIS
Appeal by both parties from a district court judgement for the plaintiff in a breach
of contract action.
FACTS
Falstaff Brewing Corporation (Falstaff) (D) bought the rights to produce and market
beer which formerly produced by P. Ballantine & Sons (Ballantine). The contract
required Falstaff (D) to use best efforts to promote Ballantine’s labels and to
maintain a high volume of sales. In addition, Falstaff (D) was supposed to pay
313
Ballantine $.50 per barrel in royalties for six years. If Falstaff (D) ever
substantially discontinued the sale of Ballantine beer, it would trigger an onerous
liquidated damages clause. The Ballantine label had been in trouble for years
before Falstaff (D) stepped in. Ballantine had already been taken over once and had
failed to turn a profit. Falstaff (D) continued the effort, but Ballantine performed
more poorly than any of Falstaff’s (D) other beers. In fact, Falstaff (D) was
approaching the point where it would be unable to meet their payroll or other credit
obligations. A change in Falstaff’s (D) corporate control, however, resulted in a
healthy infusion of cash and a subsequent reduction in its effort to market Ballantine
beer. It reduced the advertising budget for Ballantine from $1,000,000 to $115,000
and closed or restructured the distribution centers which handled Ballantine beer.
This caused a drop in Ballantine sales which was, again, far worse than that
suffered by Falstaff’s (D) other brands. Ballantine’s reorganization trustee, Bloor
(P), ultimately sued Falstaff (D) for breach of contract, making two claims. First,
Bloor (P) claimed that Falstaff (D) failed to use best efforts to maintain
Ballantine’s sales. As a result, Bloor (P) claimed that Falstaff (D) also triggered
the liquidated damages clause by substantially discontinuing the distribution of
Ballantine beer. The district court found for Bloor (P) on the first claim and for
Falstaff (D) on the second claim. Both parties appeal this result. Falstaff’s (D)
arguments are the focus of the decision.
ISSUE
Does a best efforts clause require the promisor to satisfy its contractual obligations
at any expense?

(Friendly) No. Falstaff (D) argues that the district court held it to a “best efforts”
standard which required it to continue marketing Ballantine beer regardless of the
consequences. This is not
246
true. The district court did cite to a case which required performance even to the
point of financial difficulty or economic hardship. Falstaff (D) cites an alternative
case, Feld v. Henry S. Levy & Sons, Inc. [performance is not required to result in
bankruptcy] which held that a party would be excused from performance if its
losses were more than trivial. The dispute over precedent is unnecessary, however,
because the district court did not apply the rule it cited. Instead, the court examined
the evidence to determine whether Falstaff (D) used its best efforts to “promote and
maintain a high volume of sales” for Ballantine. This evidence did not favor
Falstaff (D). In fact, it was not until after Falstaff (D) returned from the brink of
314
insolvency that its controlling shareholder, Kalmanovitz, announced a policy which
abandoned any efforts to resuscitate Ballantine. Falstaff (D) closed key Ballantine
distributorships and, at times, placed Ballantine’s distribution in the hands of its
competitors. It also rejected other offers to distribute Ballantine, focused attention
on their own beers—which were free of the $.50 per barrel royalty—and adopted a
general policy favoring profit over volume. In essence, it violated its duty of good
faith by preferring its own interests to Ballantine’s, well beyond the point necessary
to preserve its survival. The only excusable act which Falstaff (D) committed was
spending more to advertise its beers than Ballantine’s in regions which were
traditionally Falstaff (D) territory. Otherwise, it demonstrated a lack of attention to
Ballantine which was not consistent with its duty to maintain a high volume of
sales. This duty was linked to the royalty payments, which were such an
inextricable part of the purchase price for Ballantine that they were protected by a
liquidated damages clause. As a result, the district court correctly found for Bloor
(P) and calculated Ballantine’s damages against the sales of comparable northeast
beers. The judgement of the district court is affirmed [including the rejection of
Bloor’s (P) liquidated damages claim—presumably to avoid giving Bloor (P)
double damages for the same breach].
Analysis:
Judge Friendly’s opinion follows a familiar theme in contract law that requires a
case-by-case analysis under certain circumstances. However, he never really
announces a rule of law that governs this case. Instead, he relies on the findings of
the district court, implicitly endorsing a factual inquiry rather than a bright line rule.
Judge Friendly may have followed this approach because, as he notes, the specific
language in the contract called for a high volume of sales. In other words, the
contract itself set a standard for Falstaff’s (D) best efforts. The contract also
contained a notable synergy between the purchase price for Ballantine and the best
efforts clause. In essence, Falstaff (D) ignored an implied obligation to supply
Ballantine with royalties that were an intended part of Ballantine’s consideration
for the right to promote its beers. It not only breached its duty, but circumvented the
intent of the agreement and gained a windfall in the process. On a separate note, the
opinion places the burden of proof on Falstaff (D) to show that there was nothing it
could have done to avert Ballantine’s difficulties. Judge Friendly does not say so,
but the disposition of the case presumes that Falstaff (D) failed to meet this burden.
CASE VOCABULARY
REORGANIZATION TRUSTEE: A reorganization trustee holds title to and is
responsible for protecting the fiduciary interests of a corporation which is
undergoing bankruptcy, merger, or a variety of other possible organizational or
315
financial changes.
247

(Business Seller) v. (Business Buyer)
201 Cal.App.3d 832, 247 Cal.Rptr. 340 (1988)
COURTS MUST REFUSE TO HEAR DISPUTES ABOUT CONTRACTS WHICH

ARE ILLEGAL OR IMMORAL, ON POLICY GROUNDS
INSTANT FACTS A businessman sued to recover payment for selling a

business which made drug paraphernalia.
BLACK LETTER RULE Courts cannot hear disputes about contracts which
violate public policy by being illegal, or tending to promote illegality.
PROCEDURAL BASIS
In contract action seeking damages, appeal from dismissal.
FACTS
American Horse Enterprises, Inc.’s (D) owner Bovard (P) sold the corporation to
Ralph (D), in exchange for Ralph’s (D) promissory notes. When Ralph (D)
defaulted, Bovard (P) sued Ralph (D) and American Horse (D) for breach of
contract. At trial, testimony revealed American Horse (D) manufactured jewelry,
and also drug paraphernalia (bongs and roach clips) used to smoke marijuana. At
the time of the contract, manufacturing drug paraphernalia was legal, though later it
was criminalized. The trial court held the contract was illegal and void for public
policy (because it aided drug abuse), and denied restitution. Bovard (P) appeals,
contending the corporation’s business was perfectly legal.
316
ISSUE
May a court mediate a contractual dispute involving the sale of a corporation which
manufactures drug paraphernalia?
(Puglia) No. Courts cannot hear disputes about contracts which violate public
policy by being illegal, or tending to promote illegality. Whether a contract
contravenes public policy is a question of law for the court. Whenever a court
becomes aware a contract is illegal, it has a duty to refrain from enforcing it.
Furthermore, the court will not permit the parties to maintain, settle, or compromise
claims based on an illegal contract. Courts should not refuse enforcement unless it
is entirely plain the contract violates public policy. The burden is on defendants to
prove that enforcement would violate the state’s settled policy or injure the
people’s morals. Bovard (P) cites Moran v. Harris, wherein we held 2 lawyers’
fee-splitting agreement was enforceable, even though the bar association later
prohibited such arrangements. Unlike in Moran, here there was a positive law
effective on the transaction date, which prohibited using marijuana. Applying the
standards of Restatement 2d § 178, we conclude the interest in enforcing this
contract is tenuous. Neither party was reasonably justified in expecting the
government would not effectively geld American Horse (D), a business harnessed
to the production of paraphernalia used to facilitate use of illegal drugs. Though
voiding this contract imposes a forfeiture on Bovard (P), it is mitigated because he
may still recover the only asset usable for lawful purposes, i.e., the machinery used
to manufacture jewelry. Finally, there is no
248
special public interest in enforcing this contract, only the general interest in
preventing contractual parties from avoiding debts. On the other hand, the public
policy factors against enforcing this contract are strong. The statutory prohibition of
marijuana use and possession implies a policy against manufacturing paraphernalia
which facilitates its use. It is immaterial that American Horse’s (D) business was
not expressly banned when Bovard (P) and Ralph (D) contracted, since both knew
the corporation’s product would be used for illegal purposes. Affirmed.
Analysis:
Bovard illustrates the question of a contract that was not illegal in itself, but
nevertheless was sufficiently related to proscribed crimes to be deemed corrupting.
Criteria for evaluating whether contracts should be enforced are found in
Restatement (Second) of Contracts § 178, which urges courts to weigh (i) parties’
317
reasonable expectations that the contract’s subject would remain legal, (ii) whether
non-enforcement would impose an unfair forfeiture on one party, (iii) whether
enforcing the contract furthered some special public interest, and (iv) statutes and
legislative policy statements indicating the desire to restrict such related activities.
While courts are understandably unenthusiastic about enforcing illegal contracts,
the refusal to do so may have arguably unfair distributive effects between two
equally dishonest parties. Here, presumably both Bovard (P) and Ralph (D) knew
equally well that American Horse (D) was semi-legal, but Ralph (D) is allowed to
keep his ill-gotten gains, and Bovard (P) bears all of the loss.
CASE VOCABULARY
GELD: To castrate, as done to horses and cattle.
249

(Subcontractor) v. (General Contractor)
83 N.Y.2d 513, 611 N.Y.S.2d 786, 634 N.E.2d 158 (1994)
A CONTRACT WILL BE UNENFORCEABLE IF IT IS SO RELATED TO AN

AGREEMENT THAT RESTRAINS COMPETITION THAT ITS ENFORCEMENT
WOULD COMPEL CONDUCT THAT VIOLATES ANTITRUST LAWS
INSTANT FACTS Rivergate refused to pay XLO an outstanding balance for

work XLO had done, claiming that the contract was part of an organized crime
racket.
BLACK LETTER RULE A contract will be considered unenforceable if it is

so integrally related to the agreement, arrangement or combination in restraint of
competition that its enforcement would result in compelling performance of the
precise conduct made unlawful by antitrust laws.
318
PROCEDURAL BASIS
Appeal from dismissal of complaint in action for breach of contract and unjust
enrichment.
FACTS
In New York City, there was [is???] a criminal operation in effect known as the
“Club.” This “Club” was an arrangement between a ruling body consisting of four
of the city’s five major organized crime family bosses known as the “Commission,”
seven concrete construction companies operating in the city, and the District
Council of Cement and Concrete Workers, Laborers International Union of North
America. The Commission decided which concrete companies would take on
construction jobs in the city that were worth over two million dollars. The
Commission also fixed the bidding to ensure that their chosen company for a given
job would submit the lowest bid. Any contractors who took on such jobs had to pay
the Commission two percent of the contract price to guarantee “labor peace.” This
system was enforced through threatened or actual labor unrest or violence. In May
1981, X.L.O. Concrete Corp. (XLO) (P) became the last concrete contractor in
New York City to join the Club. In May 1983, XLO (P) later entered into a written
contract with Rivergate Corporation (Rivergate) (D) for construction work on a
project in Manhattan. XLO (P) was to be the subcontractor, and Rivergate (D) was
to be the general contractor. The Commission gave this project to XLO (P) on the
assumption that it would not exceed $15 million. XLO (P) and Rivergate (D)
agreed on a figure of $16,300,000. This price exceeded the amount approved by the
Commission, prompting the Commission to request that XLO (P) abandon the
project. XLO (P) refused, claiming that the Commission had not designated XLO
(P) for any work for over 18 months. The Commission decided to allow XLO (P)
to work on the project, which led XLO (P) to give a $50,000 gift to a Commission
representative for speaking on XLO’s (P) behalf. Rivergate (D) negotiated the
contract with full knowledge of the Club and its rules. XLO (P) completed its
performance of the contract, but Rivergate (D) refused to pay the full balance,
claiming that the contract was an integral feature of the Club’s bribery and extortion
operations, and thus violated antitrust laws. XLO (P) sued for breach of contract
and unjust enrichment. The Supreme Court dismissed the complaint and certain
counterclaims. The Appellate Division modified the judgment.
250
ISSUE
Should a contract be considered unenforceable if it is integrally related to another
319
agreement which if complied with, would violate antitrust laws?
(Ciparick) Yes. A contract will be considered unenforceable if it is so integrally
related to the agreement, arrangement or combination in restraint of competition that
its enforcement would result in compelling performance of the precise conduct
made unlawful by antitrust laws. Generally, the use of antitrust defenses in contract
actions is not encouraged, out of fear that one who successfully uses such a defense
will reap the benefits of a contract while escaping the corresponding burdens of it.
Still, antitrust defenses will be upheld in cases where judicial enforcement of a
contract would result in enforcement of the exact kind of conduct an antitrust act
forbids. Likewise, a contract which is legal on its face and does not call for
unlawful conduct in its performance is not voidable simply because it resulted from
an antitrust conspiracy. The key issue is whether the given contract is so integrally
related to the agreement in restraint of competition that its enforcement would result
in compelling performance of the precise conduct made unlawful by the antitrust
laws. Here, that question cannot be answered without further development at trial.
The extent to which the contract price is excessive and fails to reflect fair market
value at the time the contract was made should be determined. In addition, the
potentially unlawful use of market power to inflate the contract price and eliminate
competition should also be developed. The equities, relative culpability, bargaining
power, and knowledge of the parties should all be considered, as well, along with
the public policy interest in discouraging such unlawful schemes as the Club. In
light of this analysis, Rivergate’s (D) remaining contention that the contract is per
se illegal is rejected. Order affirmed, with costs.
Analysis:
In this case, the parties were “in part delicto” (of equal fault), since Rivergate (D)
was fully aware of X.L.O.’s (P) illegal involvement with the Club’s extortion and
bid-rigging racket. In cases of equal fault, courts often automatically hold for
defendants, under the maxim “in pari delicto potior est condition defendantis” (in
[case of] equal fault, the stronger position is that of the defendant). Of course, this
motto is arbitrary, and if literally enforced would often have the dubious effect of
unjustly enriching one crook at the expense of another who is no more
reprehensible. The rule seems to be a reflection of courts’ unwillingness to lend
official auspices to mediating disputes between crooks, and their preference for
leaving the parties as they found them (with the defendant presumably in possession
of the money). The courts’ “hands-off” policy in shady contracts is debatable, since
the upshot is that Mafiosos and semi-legitimate businesses are left to “self-help,”
often through violence or further wrongdoing.
320
CASE VOCABULARY
DEPRECATE: To disapprove of.
QUANTUM MERUIT: An action for recovery of the reasonable value of services
rendered on the basis of an implied contract or promise.
251

(Veterinarian) v. (Former Employer)
861 P.2d 531 (Wyo. 1993)
A COVENANT NOT TO COMPETE WILL BE VALID AND ENFORCEABLE IF

IT IS REASONABLE GIVEN THE CIRCUMSTANCES OF THE PARTICULAR
CASE
INSTANT FACTS Hopper opened her own veterinary clinic near All Pet after
All Pet fired her, and All Pet claimed she violated an agreement not to compete.
BLACK LETTER RULE A covenant not to compete is valid and enforceable

only if it is shown that the covenant is (1) in writing; (2) part of a contract of
employment; (3) based on reasonable consideration; (4) reasonable in duration and
geographical limitation; and (5) not against public policy.
PROCEDURAL BASIS
Appeal from action for damages and injunctive relief.
FACTS
After completing her (D) education, Dr. Glenna Hopper (D) started working part-
time at the All Pet Animal Clinic, Inc. (All Pet) (P) in Laramie, Wyoming. She (D)
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eventually began full-time work at All Pet (P). Hopper (D) and All Pet (P)
executed an agreement, effective March 1989, which provided, in part, that “[u]pon
termination, Dr. Hopper [(D)] agrees that she will not practice small animal
medicine for a period of three years from the date of termination within 5 miles of
the corporate limits of the City of Laramie, Wyoming.” In addition, the provision
also expressed Hopper’s (D’s) agreement that “the duration and geographic scope
of that limitation is reasonable.” After this agreement was executed, All Pet’s (P)
president, Dr. R.B. Johnson, heard a rumor that Hopper (D) was considering buying
a competing practice. When Johnson suggested to Hopper (D) that she (D) buy her
way out of the agreement, she (D) replied that she (D) could do whatever she (D)
wanted. Hopper (D) was then discharged. In July 1991, having bought the other
practice, she (D) began operating the Gem City Veterinary Clinic. In November, All
Pet (P) sued Hopper (D) for an injunction and also for damages. Alpine Animal
Clinic, Inc. (Alpine) (P), another practice in which Johnson and Hopper (D) had
also been associated, joined All Pet (P) in this action. The case came to trial
almost two years after Hopper (D) was actually discharged. All Pet and Alpine (P)
did not seek a temporary injunction. The evidence showed that a little more than
half of Hopper’s (D) practice came from small animal medicine, and that there was
a substantial overlap of about 187 clients between Hopper’s (D) current and former
practices. The trial court granted the injunction, but concluded that damages were
too speculative to be awarded. Hopper (D), All Pet (P), and Alpine (P) all
appealed.
ISSUE
Can an agreement not to compete with a previous employer for a given period of
time and within a certain distance of the employer be considered enforceable?

(Taylor) Yes. The common law policy against contracts made in restraint of trade is
very old and very firmly established. The initial burden is on the employer to prove
the agreement is fair
252
and reasonable, and that is necessary for the protection of his or her business
interests. While an employer can make such an agreement to protect from unfair and
improper competition, no such protection can be sought for normal competition. A
covenant in restraint of trade will only be enforced if there is a proper balance
between the interests of the employer and those of the employee. Thus, a covenant
not to compete is valid and enforceable only if it is shown that the covenant is (1)
in writing; (2) part of a contract of employment; (3) based on reasonable
322
consideration; (4) reasonable in duration and geographical limitation; and (5) not
against public policy. The reasonableness of the covenant must be determined in
relation to all the facts and circumstances of the particular case. Here, Hopper (D)
moved to Laramie right after completing her education and had no professional
contacts. In working for All Pet (P), she (D) gained valuable exposure to All Pet’s
and Alpine’s (D) clients and client records, as well as knowledge of their (D)
pricing policies and practice development techniques. The knowledge that she (D)
acquired through working at these two clinics (P) clearly had monetary value. All
Pet and Alpine (D) are entitled to reasonable protection from irreparable harm that
could result from Hopper’s (D) use of this information. The established loss of 187
clients to Hopper’s (D’s) practice sufficiently demonstrated the actual loss suffered
as a result of this unfair competition. Enforcement of the practice restrictions in
Hopper’s (D) agreement with All Pet (P) not to compete does not result in an
unreasonable restraint of trade. Hopper (D), working in Wyoming, could have
earned a living practicing large animal medicine without relocating. The public
would not have suffered injury from enforcement of this agreement. The five mile
limit was also reasonable, considering the distribution of clients throughout the
county, and not just within the boundaries of Laramie. A one-year limit, however,
would be sufficient to protect All Pet and Alpine (P) from unfair competition. Case
remanded for modification of judgment.
DISSENT
(Cardine) Hopper (D) has essentially beaten the system with this ruling. The
majority has decided that as a matter of law that a one-year non competition
restriction is reasonable, and that a longer period is unreasonable. Hopper (D)
should be enjoined from that part of the practice of veterinary medicine specified in
the covenant starting from the date the trial court, on remand, enters its modified
judgment, and for at least the one-year period set by this court.
Analysis:
Generally, post-employment restraints are sustained only if, like Hopper (P) did
here, an employee acquires confidential information, or a “trade secret,” regarding
some process or method involved in the operation of the business, or if the
employee acquires information that could be used to lure away existing clients.
Such information could consist of customer name lists, mailing lists, client histories
and financial records, and other forms of data. Typically, these kinds of restraints
are justified by the public interest in a smooth, efficient employer-employee
relationship. This interest in a workable relationship is balanced by the public
interest in individual economic autonomy, free dissemination of ideas and
information, and the shifting of labor to areas with the greatest productivity. These
323
restraints invariably involve a larger, employer-entity that can subject employees to
unanticipated hardship. Because of this, the agreements are more closely
scrutinized than those creating other restraints of trade, like those for the sale of a
business.
CASE VOCABULARY
DE NOVO: Latin for “new,” or a “second time”; in a hearing of this kind, the
reviewing court acts as though it were the court where the case originated, and the
findings of the lower courts are used only if they are helpful to the reviewing court.
253

179 Conn. 471, 427 A.2d 385 (1980)
CONNECTICUT SUPREME COURT RECOGNIZES TORT REMEDY FOR

VIOLATION OF EMPLOYMENT CONTRACT RIGHTS
INSTANT FACTS An employee is fired for warning his company that they are
violating a food labeling statute.
BLACK LETTER RULE An employee who is fired for reasons in

contravention of public policy can sue in tort for wrongful termination.
PROCEDURAL BASIS
Appeal from a trial court judgement for the defendant in a wrongful termination tort
action [yes, you’re still in the right casebook].
FACTS
324
The following facts are based on the allegations in Sheets’ (P) complaint. Sheets
(P) worked for Teddy’s Frosted Foods (TFF) (D) for four years. He began as its
quality control inspector and later, took on the job of operations manager as well.
Sheets (P) received several raises and bonuses during his employment. However,
trouble began when he noticed that the labels on some of TFF’s (D) foods did not
correspond to the quality and weight of the ingredients. This was a violation of the
Connecticut Uniform Food, Drug and Cosmetic Act. Sheets (P) warned TFF (D) of
the problems and suggested changes which might have corrected the situation. TFF
(D) ignored his warnings. In fact, it fired Sheets (P) six months later, claiming that
his performance was unsatisfactory. However, he was actually fired in retaliation
for trying to bring TFF (D) into compliance with Connecticut’s food labeling laws.
Sheets (P) subsequently sued TFF (D) for wrongful termination. He claimed that
TFF (D) breached an implied contract for employment, violated public policy, and
was guilty of malicious discharge. TFF (D) made a motion to strike Sheets’ (P)
pleadings and he declined to amend them. The trial court then found for TFF (D).
Sheets (P) appeals. In his appeal, Sheets (P) concedes that indefinite employment
contracts are terminable at will. He similarly concedes that TFF (D) was not
required to fire him for just cause. Connecticut has not placed such a requirement
on employment contracts, in any event. Instead, he relies almost exclusively on the
claim that TFF (D) terminated his employment in violation of public policy. If this
were so, he would be entitled to tort damages for wrongful termination. It is this
argument which the court addresses on appeal.
ISSUE
Can the firing of an at-will employee give rise to a tort action for wrongful
termination?

(Peters) Yes. An employee who is fired for reasons in contravention of public
policy can sue in tort for wrongful termination. This is not unusual. Certain contract
rights give rise to tort remedies, while certain tort principles have found their way
into contract claims. Wrongful termination is a tort claim which stems from the
improper violation of an employee’s contract
254
rights. This claim has generally been recognized when the termination of an
employee violates public policy. For instance, courts have found termination to be
wrongful when employees were fired for refusing to commit perjury, for filing a
workman’s comp claim, for engaging in union activity, or for serving on a jury.
More importantly, courts have recognized claims for retaliatory discharge when an
325
employee’s responsibilities were linked to the public interest and they were fired
under circumstances which were similar to this case. Sheets (P) worked in an area
which was regulated by statute. That statute, prohibiting the mislabeling of food, is
intended to protect the public health and welfare. In fact, TFF’s (D) violations
could have subjected Sheets (P) to criminal liability. In essence, Sheets (P) was
forced to choose between possible criminal prosecution or the loss of his job. This
is a situation for which the law has increasingly recognized a remedy, a tort action
for wrongful termination. Considering the burgeoning acceptance of this remedy
and the facts of the case, the trial court inappropriately ruled for TFF (P). The
court’s decision is reversed and the case is remanded for further proceedings.
DISSENT
(Cotter) I dissent from the court’s opinion for the following reasons. First, the facts
of the case are not sufficient to support an action for wrongful discharge. The
alleged public policy concerns are limited to frozen food entrees which may not
measure up to their purported quality. This is not the same as depriving an
employee of his right to file a workman’s compensation claim o?? his right to
engage in union activity. In those cases, the employer actually violated a statute in
the termination itself. In this case, the statutory violation is only tangential to the
firing. In addition, Sheets (P) need not have lost his job over the statutory violation.
He could have informed the commissioner of consumer affairs anonymously and
never faced the prospect of termination. The second problem with the court’s
opinion is the danger it creates by relying on such meager facts to satisfy a claim
for wrongful termination. Other jurisdictions have been far more careful in
recognizing this claim. The court’s lack of caution will lead to a flood of cases
whose nuisance value alone will negatively impact employers. In addition, ill-
intentioned employees can now file suit despite the absence of a direct statutory
violation. They will bring suit for any statutory violation which can be linked, no
matter how distantly, to their termination in the hopes that the alleged infraction
will satisfy a particular court’s definition of public policy. Because of the factual
insufficiency of this case and the expansion it permits of a previously limited
doctrine, I would deny Sheets’ (P) claim and affirm the decision of the trial court.
Analysis:
Justice Peters alludes to a longstanding synergy between contract doctrine and tort
doctrine. For instance, a tort action for misrepresentation may be available even if
an action for breach of an implied warranty is not. In this case, Sheets (P) did not
have a strong argument for breach of an employment contract because he was an at-
will employee. However, he did have at least a colorable claim for wrongful
termination since he was fired not long after he warned TFF (D) of its statutory
326
violations. The most generally accepted claim for wrongful discharge results from
termination for an employee’s refusal to engage in illegal activity. In strict at-will
jurisdictions, however, an employee can be fired for virtually any reason, including
his or her refusal to break the law. A plaintiff can, and should, pursue every
relevant theory of recovery for a particular harm, including remedies in tort and
contract if the case warrants that approach. However, the plaintiff can only recover
damages under one type of claims.
CASE VOCABULARY
JUST CAUSE: Another limitation on at-will employment doctrine. A state may
create a statutory exception which requires employers to terminate workers for just
cause. In other words, the employer must advance a proper, good-faith reason for
the firing.
WRONGFUL TERMINATION: A tort cause of action which is generally brought
for the termination of an employee for refusing to break the law. In essence, a state
that recognizes wrongful termination claims creates a public policy exception to at-
will employment doctrine.
255

(In-House Counsel) v. (Employer)
145 Ill.2d 492, 164 Ill.Dec. 892, 584 N.E.2d 104 (1991)
LAWYERS FIRED FOR WHISTLE-BLOWING CANNOT SUE FOR

WRONGFUL DISCHARGE
INSTANT FACTS When a dialysis machine marketer fired its general counsel
for threatening to report its illegal sale of tampered machines, the counselor sued
for wrongful discharge.
327
BLACK LETTER RULE If an attorney is fired for reporting clients’
misconduct which the attorney is ethically obligated to report, the attorney has no
claim for retaliatory discharge.
PROCEDURAL BASIS
In wrongful discharge suit seeking damages, appeal from appellate reversal of
summary judgement for defendant.
FACTS
Attorney Balla (P) was in-house counsel and “manager of regulatory affairs” at
Gambro, Inc. (“Gambro”) (D), a distributor of kidney dialysis equipment. When
Gambro (D) agreed to Import German equipment which failed to comply with FDA
regulations, Balla (P) protested its resale plan was illegal, in vain. When Balla (P)
insisted the purchase be stopped, Gambro (D) fired him. Balla (P) complained to
the FDA, which seized the shipment and found it adulterated. Balla (P) then sued
Gambro (D) for retaliatory discharge. Gambro (D) moved for summary judgement,
contending it had an absolute right to fire Balla (P). At trial, the judge granted
Gambro’s (D) motion. On appeal, the Court of Appeals reversed and remanded,
holding Balla (P) may sue for retaliatory discharge. Gambro (D) appeals.
ISSUE
If a firm fires its attorney for threatening to report its dangerous illegal misconduct,
may the attorney sue for retaliatory discharge?
(Clark) No. If an attorney is fired for reporting clients’ misconduct which the
attorney is ethically obligated to report, the attorney has no claim for retaliatory
discharge. Generally, in-house counsel do not have tort claims for retaliatory
discharge, which is a narrow exception to the general rule of at-will employment.
Here, the public policy—protecting citizens’ lives—is adequately safeguarded
without extending the tort of retaliatory discharge. Balla (P) was subject to the
Code of Professional Responsibility, which states “A lawyer shall reveal
information about a client to the extent it appears necessary to prevent the client
from committing an act that would result in death or serious bodily injury.” Thus,
Balla (P) was obligated professionally to report Gambro’s (D) intent to sell
misbranded or adulterated dialyzers, which could cause serious injury. Balla (P)
contends that not permitting suits for retaliatory discharge would present attorneys
with a “Hobson’s choice” of either violating the law and risking professional and
criminal sanctions, or losing their jobs, but we find no such dilemma, since lawyers
are ethically obligated to report such conduct. [Misses the point, doesn’t it?]
328
Additionally, we believe that restricting employers’ rights to fire counselors at will
encourages employers to be less than candid in revealing their questionable
conduct to their counselors. Also, we believe it
256
inappropriate for employer-clients to bear the cost of their in-house counsel’s

adherence to their ethical obligations, since the employer would be forced to
mitigate the attorney’s harm suffered for having to adhere to professional conduct
codes. We believe all attorneys should know that, in their professional careers, they
sometimes must forego economic gains to protect the legal profession’s integrity.
[Remember, a judge is only some lawyer who knew a Senator.] Balla (P) argues
that, since he learned of Gambro’s (D) violation in his capacity as manager of
regulatory affairs, he should be allowed to sue as a mere “employee” (rather an as
its “attorney”), but we find Balla (P) learned this information from working as its
lawyer. Reversed.
Analysis:
Apparently, the law in Illinois was that ordinary “employees” could sue for
wrongful discharge, but whistle-blowing “lawyers” could not. Thus, Balla (P)
attempted to portray himself as Gambro’s (D) compliance officer employee rather
than its lawyer, but the court rejected this concocted duality. For no apparent
reason, Justice Clark decides that, when clients violate the law, their lawyers
should lose their jobs without compensation for doing the right thing; he forgets that
it is Gambro (D), not Balla (P), who committed the violation. Needless to say, this
discourages attorneys from reporting misconduct by effectively allowing criminals
to punish whistle blowers. Fortunately, Balla’s reasoning was rejected three years
later.
257
Simeone v. Simeone
(Ex-Wife) v. (Ex-Husband)
525 Pa. 392, 581 A.2d 162 (1990)
PRENUPTIAL AGREEMENTS ARE ENFORCEABLE IF SIGNED AFTER FAIR

FINANCIAL DISCLOSURE
329
INSTANT FACTS An ex-wife sued to void her prenuptial agreement,
contending her husband presented it right before the wedding and forced her to sign
without opportunity to consult a lawyer.
BLACK LETTER RULE Prenuptial agreements are enforceable as written if

they were made after fair financial disclosure.
FACTS
Catherine Walsh (“Catherine”) (P) was engaged to Dr. Frederick Simeone
(“Frederick”) (D). On the eve of their wedding, Frederick (D) presented Catherine
(P) with a prenuptial agreement limiting her alimony to $25K. Catherine (P) signed,
without consulting an attorney or seeking explanation from Frederick’s (D) lawyer.
They married the next day, but separated 7 years later. Catherine (P) sued for
divorce and alimony pendente lite. Frederick (D) defended, contending he had
already paid support payments of $25K after they separated. At trial, the master
upheld the prenuptial agreement. On appeal, the appellate court affirmed. Catherine
(P) appeals again, contending the payment cap was unreasonable, and that she was
not properly informed of her rights before signing.
ISSUE
Is a prenuptial agreement void if the signatory did not understand its terms or have
opportunity to consult an attorney?

(Flaherty) No. Prenuptial agreements are enforceable as written if they were made
after fair financial disclosure. Catherine (P) relies on Estate of Geyer, which held
a prenuptial agreement is valid if either it made reasonable provisions, or was
entered after full and fair disclosure of the parties’ general finance positions and the
statutory rights being relinquished. However, we reject Geyer, which was founded
330
on outdated assumptions that women are of inferior status and unable to understand
contractual terms. Since then, society has advanced to the point where women are
no longer uneducated and “weaker” partners in marriage; they may well be
sophisticated breadwinners. Thus, paternalistic presumptions and protections are
no longer necessary to shelter women from supposed inferiorities. Furthermore,
Geyer inappropriately allowed courts to consider parties’ knowledge and the
sufficiency of consideration in deciding whether to enforce contracts. Prenuptial
agreements are just contracts, and should be evaluated similarly. Normally,
contracting parties are bound by their agreements, regardless of whether they read
or understood them, or whether the bargain was good or reasonable. To impose a
requirement that parties entering a prenuptial agreement consult independent
counsel would interfere with freedom of contract. Furthermore, permitting courts to
investigate prenuptial agreements’ reasonableness would undermine such contracts’
reliability. But we do not retreat from the principle that parties must make full and
fair disclosure of their financial positions, and that material misrepresentations may
void the agreement, because at that moment the parties
258
are in a relationship calling for mutual trust and disclosure. Catherine (P) claims
duress, contending Frederick (D) presented the agreement on the eve of her
wedding, when she could not consult counsel, but the master found Catherine (P)
had previously discussed prenuptial agreements and expressed no reluctance.
Affirmed.
CONCURRENCE
(Papadakos) I believe the majority prematurely presumes that gender inequality has
been erased. I view prenuptial agreements as adhesion contracts, where one party
is subservient. The law should protect the subservient party, regardless of sex, to
ensure equal protection.
DISSENT
(McDermott) Prenuptial agreements should be void if they are inadequate,
especially since the state has a paramount interest in preventing underpaid
divorcees from becoming wards of the state.
Analysis:
Simeone is a case decided on policy grounds, where the correct policy is not at all
clear. There is no law criminalizing prenuptial agreements, and no indication the
legislature either approves or disapproves of them. Thus, judges wishing to decide
whether to enforce them are forced to make their own policy choice, often selecting
331
between several competing policies. Here, majority judge Flaherty believes the
most important policy is to protect freedom of contract, preserve parties’
contractual expectations, and affirm gender equality, Concurrer Papadakos
predicates his opinion on the assumption that rich men force such contracts on poor
women; in his view, the prevalent policy should be to protect weaker parties from
overreaching. For dissenter McDermott, the important policy is to ensure divorcees
are paid enough to support them, in order to protect the state from having to support
them.
CASE VOCABULARY
MASTER: In litigation, a court-appointed fact-finder, usually an expert on
calculating damages.
PENDENTE LITE: “While the action is pending.” A claim for an immediate award
of damages, contingent on winning the suit.
259

(Child Conceived by Surrogacy)
109 N.J. 396, 537 A.2d 1227 (1988)
CONTRACTS THAT PAY FOR CHILDBEARING ARE ILLEGAL
INSTANT FACTS Stern (P) paid Whitehead (D) $10,000 to bear a child
conceived by artificial insemination, and Whitehead (D) refused to relinquish the
child to Stern (P) and his wife after Whitehead (D) gave birth.
BLACK LETTER RULE Surrogacy contracts that involve the payment of

money to a woman who irrevocably agrees to bear a child and turn it over to
another party are illegal and invalid.
332
PROCEDURAL BASIS
Appeal from an order upholding the validity of a surrogacy contract and terminating
the parental rights of Whitehead (D)
FACTS
Stern (P) and Whitehead (D) entered into a written surrogacy contract. The contract
provided that, in return for payment of $10,000, Whitehead (D) would be
inseminated with Stern’s (P) sperm. Any child conceived as a result of the
insemination would be turned over permanently to Stern (P), and Whitehead (D)
would voluntarily relinquish her parental rights.
Whitehead (D) delivered a baby girl, Baby M, but she refused to turn the child over
to Stern (P). Stern (P) brought an action for specific enforcement of the contract.
The trial court upheld the validity of the contract, and awarded custody of Baby M
to Stern (P). The trial court also terminated Whitehead’s (D) parental rights.
ISSUE
Was the surrogate parenting agreement enforceable?

(Wilentz, C.J.) No. Surrogacy contracts that involve payment of money to a woman
who irrevocably agrees to bear a child and turn it over to another party are illegal
and invalid. The conclusion that these contracts are invalid is based on their direct
conflict with existing statutes, and on a conflict with the public policy of the state,
as expressed in statutory and case law. The monetary inducement is unlawful in and
of itself. Moreover, the irrevocable agreement made before birth or conception to
surrender the child would be unenforceable in a normal private placement
adoption. The agreement not to contest termination of parental rights and the
contractual concession that the child’s best interests would be served by adoption
by the natural father and his wife are equally invalid.
The contract conflicts with statutory provisions prohibiting the use of money in
connection with adoptions, requiring proof of parental unfitness or abandonment
before termination of parental rights or adoption is granted, and making the
surrender of custody and consent to adoption revocable in private placement
adoptions. Although private placement adoptions are allowed in New Jersey, they
are disfavored. Paying or accepting money in connection with a private placement
adoption is a high misdemeanor. The evils inherent in baby-bartering are loathsome
for many reasons. The child is sold without regard to whether the purchasers will
be suitable
333
260
parents, the birth mother does not receive the benefit of counseling and guidance to
assist her in making the decision, and the monetary incentive may make her decision
less voluntary. Although the surrogacy contract in the instant case was carefully
structured to avoid the statutory prohibition, it seems clear that money was paid and
accepted in connection with the adoption. The provision in the contract, agreed to
before conception, requiring Whitehead (D) to surrender custody without any right
of revocation is a further indication that the essential nature of this transaction is to
create a contractual system of termination and adoption that circumvents the
statutes.
The surrogacy contract is also invalid as against the public policy of New Jersey.
The premise of the contract, that the natural parents can decide in advance of a
child’s birth which one of them is to have custody, bears no relationship to the
settled law that custody is determined by the best interests of the child. Under the
contract, Whitehead (D) is irrevocably committed to surrender Baby M before she
knows the strength of her bond with the child. She does not make a totally
voluntary, informed decision, because any decision before birth is uninformed and
any decision after that is compelled by a pre-existing contractual commitment, the
threat of a lawsuit, and payment of $10,000, all of which make the decision less
than totally voluntary.
Worst of all is the contract’s total disregard of the best interests of the child. There
is no suggestion that any inquiry will be made to determine the fitness of Stern (P)
or his wife to be parents, their superiority to Whitehead (D), or the effect on Baby
M of not living with her biological mother. This is the sale of a child, or at least the
sale of a mother’s right to her child. The only mitigating factor is that one of the
purchasers is the father.
Almost every evil that prompted the prohibition on the payment of money in
connection with adoptions exists here. First, and perhaps most important, all of the
parties concede that it is unlikely that surrogacy will survive without money. If
there are no payments, there will be few, if any, surrogates. In an adoption, the
adoption itself relieves the mother of the financial burden of supporting an infant
and is in some sense the equivalent of payment. Second, the use of money in
adoptions does not produce the problem. Conception and, usually, birth occur
before the illicit funds are paid. With surrogacy, the problem—the purchase of a
woman’s procreative capacity, at the risk of her life—is caused by, and originates
with, the offer of money. Third, the prohibition of using money in connection with
adoptions means that the financial pressure of an unwanted pregnancy and the
resulting support obligation will not lead the mother to the highest-paying, yet ill-
suited, adoptive parents. She is just as well-off surrendering her child to an
334
approved agency. In surrogacy for money, the highest bidders become the adoptive
parents, regardless of their suitability. Fourth, in an adoption, a mother’s consent to
surrender her child is revocable. If the surrender is to an approved agency, there
are protections against an ill-advised surrender. In surrogacy, the consent is
irrevocable, and it occurs so early that no amount of advice would be sufficient.
In the surrogacy transaction, the predominant motive is profit. A middleman
promoted the sale, and he was propelled by profit. There is a shortage of infants
available for adoption, and that makes the situation ripe for middlemen who will
bring some equilibrium into the market by increasing the supply through the use of
money. It is irrelevant that Whitehead (D) agreed to the transaction, supposedly
with a full understanding of the consequences. In a civilized society, there are some
things that money cannot buy. A surrogacy contract guarantees the separation of a
child from its mother, it looks to adoption regardless of suitability, it completely
ignores the child, it takes the child from his or her mother without regard to her
wishes and her maternal fitness, and all of this is accomplished through the use of
money. The court cannot say whether this principle recommends a prohibition of
surrogacy. It is merely noted that Whitehead’s (D) consent here is irrelevant.
Beyond the other policy considerations is the potential degradation of women that
may result from these arrangements. The fact that some women may see surrogacy
as an opportunity does not diminish its potential for devastation of other women.
The unregulated use of surrogacy can bring suffering to all involved, including the
surrogate mother and her family, the
261
biological father and his wife, and, most importantly, the child. Although the
present law prohibits surrogacy for pay, there is nothing that prohibits voluntary
surrogacy when there is no payment and the mother is given the right to change her
mind and to assert her parental rights. Moreover, the legislature is free to deal with
this issue as it sees fit, subject only to constitutional constraints. Reversed and
remanded to determine Whitehead’s (D) visitation rights with Baby M.
Analysis:
When this case was pending, Whitehead (D) received public support from all parts
of the political spectrum. Some prominent feminists, as well as some conservative
commenters, criticized the trial court’s apparent rejection of the mother-child bond.
Liberal supporters often noted the class distinctions—Whitehead (D) was a high-
school dropout married to a sanitation worker, and Stern (P) was a physician
married to a biochemist. In 2004, Baby M turned eighteen. She filed court
proceedings to terminate Whitehead’s (D) parental rights and formalize her
335
adoption by Stern’s (P) wife.
CASE VOCABULARY
PRIVATE ADOPTION: An adoption that occurs independently between the
biological mother (and sometimes the biological father) and the adoptive parents
without the involvement of an agency. Also called private-placement adoption.
336
263
337
338
CHAPTER SEVEN
339
Remedies for Breach

Instant Facts: Wentz (D) refused to sell carrots to Campbell Soup Co. (P) as
agreed, and Campbell’s (P) brought suit to compel specific performance of the
contract.
Black Letter Rule: The test for whether goods are “unique” is not always
determined by objective standards, but may be based on the value of the item to the
party requesting relief.
Klein v. PepsiCo
Instant Facts: PepsiCo (D) agreed to sell a Gulfstream corporate jet to Universal
Jet Sales (“UJS”) (P) for resale to Klein (P), but before the airplane could be
delivered to UJS (P), PepsiCo (D) reneged and Klein (P) and UJS (P) sued for
Black Letter Rule: Specific performance cannot be granted where damages are
recoverable and adequate.
Morris v. Sparrow
Instant Facts: Sparrow (P) sought specific enforcement of an agreement by Morris
(D) to give him a horse as part of the consideration for working on Morris’s (D)
ranch.
Black Letter Rule: Equity will grant specific performance of a contract for the
sale of chattels if there are special and peculiar reasons that make it impossible for
money damages to provide relief to the injured party.
Instant Facts: Laclede (P) sought injunctive relief when Amoco (D) unilaterally
terminated an agreement with Laclede (P) to supply propane gas distribution
systems to various residential developments.
Black Letter Rule: Specific performance will not be ordered when the party
claiming the breach of contract has an adequate remedy at law.
Instant Facts: The court denied Northern (P) an order of specific performance of a
contract to compel E.W. Bliss (D) to add workers, for the period that one of
Phoenix Steel’s (P) mills had to be shut down, because of a delay of the work.
Black Letter Rule: With regard to a construction contract, a court should not order
340
specific performance which would be impractical to enforce and supervise.
Instant Facts: Walgreen (P) sought to enjoin Sara Creek (D) to enforce the
exclusivity clause in their lease in which Sara Creek (D) promised not to lease
space in a mall to another store that has a pharmacy.
Black Letter Rule: In making a decision about injunctive relief, a judge should
balance the cost and benefits between the injunctive relief and damages.
Instant Facts: Caribtex breached a contract to supply Vitex with woolen material,
and Vitex sued to recover for its lost profits.
Black Letter Rule: When overhead expenses are not affected by the performance
of a particular contract, such expenses should not constitute a performance cost to
be deducted when computing lost profits.
264

Instant Facts: Laredo Hides had to buy hides on the open market to fulfill another
contract with a tannery when H & H breached its contract with Laredo Hides.
Black Letter Rule: Under UCC § 2–712, when a seller refuses to acknowledge a
contract or refuses to deliver the goods under contract, a buyer may “cover by
making in good faith and without unreasonable delay any reasonable purchase of or
contract to purchase goods in substitution for those due from the seller,” and
recover damages in the form of “the difference between the cost of cover and the
contract price together with any incidental or consequential damages.”
Instant Facts: Davis (P) had to breach a purchase contract with Diasonics (D),
and when Diasonics (D) resold the equipment, Davis (P) sued to get its full deposit
back.
Black Letter Rule: A seller who wishes to resell goods after a buyer breaches a
given contract can seek damages equal to the difference between the contract price
and market price at the time and place for tender under UCC § 2–708; but to
receive lost profits, the seller must establish both that he or she would have been
able to produce the breached goods and the resold goods and that it would have
been profitable to produce and sell both sets of goods.
341
Instant Facts: When Blair refused to pay crane rental costs, Coastal Steel
terminated its performance and sued to recover for labor and equipment it had
already furnished.
Black Letter Rule: The measure of recovery for quantum meruit is the reasonable
value of the performance, and recovery is undiminished by any loss which would
have been incurred by complete performance.
Instant Facts: Jacob & Youngs (P) constructed a house using two types of pipe,
and Kent (D) refused to make full payment because the contract called for the
exclusive use of pipe manufactured by Reading.
Black Letter Rule: Insubstantial departures from express contract language may
be remedied by damages based on the diminution in market value rather than the
cost of replacement.
Plante v. Jacobs
Instant Facts: Homeowners refuse to make their final payment to the contractor
who built their house.
Black Letter Rule: Substantial performance on construction contracts may be less
than perfect, but recovery will be reduced by the diminished value of the project or
the cost of completion of the unfinished work.
Instant Facts: John Wunder Co. agreed to remove sand and gravel from the Groves
land and keep the land level when finished, but later breached this agreement.
Black Letter Rule: When a party willfully fails to perform under a contract, the
other party will be entitled to damages equal to the reasonable cost of having
performance carried out, and not the difference in value resulting from non-
performance.
Instant Facts: The Peevyhouses (P) leased their farm to Garland (D) for strip
mining, but Garland (D) failed to do specific remedial work at the end of the lease.
Black Letter Rule: The measure of damages in an action by a lessor against a
lessee for breach of contract is ordinarily the reasonable cost of performance of the
work; however, if the
265
breached provision is merely incidental to the main purpose of the contract, and the
342
economic benefit to be gained by the lessor from full performance is grossly
disproportionate to the cost of performance, then the damages which may be
recovered are limited to the diminution of value to the property caused by non-
performance.
Instant Facts: Luten Bridge Co. continued building a bridge even after
Rockingham County notified the company not to proceed with the work.
Black Letter Rule: A plaintiff must, so far as he or she can without loss to himself
or herself, mitigate the damages caused by a defendant’s wrongful act; a plaintiff
cannot hold a defendant liable for damages which need not have been incurred.
Tongish v. Thomas
Instant Facts: Tongish contracted to sell his sunflower seed crop to the Coop
Association, but repudiated that contract when the market price for seeds went up.
Black Letter Rule: If a seller breaches a contractual obligation to deliver goods,
and the buyer fails to go into the market and “cover,” the buyer’s damages will be
measured by the difference between the market price and the contract price
according to UCC § 2–713.
Instant Facts: Parker contracted to act in a musical in California, but Fox
abandoned the musical and offered her a role in a western in Australia.
Black Letter Rule: A wrongfully discharged employee’s rejection of or failure to
seek other available employment of a different or inferior kind cannot be used by
the employer as a means of mitigating damages.
Hadley v. Baxendale
Instant Facts: Baxendale failed to deliver a broken mill shaft for Hadley on time,
and the delay prevented Hadley from reopening the mill on time.
Black Letter Rule: A party injured by another party’s breach of contract can only
recover those damages that may fairly and reasonably be considered either as
arising naturally, or as may reasonably be supposed to have been in the
contemplation of both parties, at the time the contract was made, as the probable
result of such a breach of the contract.
Instant Facts: A parts supplier refused to ship conforming goods to a buyer.
Black Letter Rule: Under international commercial law, a buyer may recover lost
profits and other incidental damages caused by the seller’s breach of contract if
343
those lost profits were foreseeable.
Instant Facts: A company bought land, anticipating it would substantially
appreciate due to a stadium being built nearby, and sued when the stadium was not
built.
Black Letter Rule: An injured party is not entitled to recover damages that the
parties did not contemplate the breaching party would assume.
Instant Facts: After the Plaza refused to give Fera the store space they had agreed
upon, Fera sued and tried to claim lost profits as damages.
Black Letter Rule: Future lost profits are allowed as an element of damage in any
case where, by reason of the nature of the situation, the profits may be established
with reasonable certainty.
266

Instant Facts: The State withheld part of the payment owed to Gustafson & Co. as
liquidated damages under the contract after a job was delayed 67 days.
Black Letter Rule: A provision for payment of a stipulated sum as a liquidation of
damages will be sustained if it appears that 1) at the time the contract was made the
damages in the event of breach were incapable or very difficult of accurate
estimation, 2) there was a reasonable endeavor by the parties to fix fair
compensation, and 3) the amount stipulated bears a reasonable relation to probable
damages and is not disproportionate to any damages reasonably to be anticipated.
Lake River Corp. v. Carborundum Co.
Instant Facts: Carborundum (D) entered into a distributorship agreement with
Lake River (P) that included a minimum-quantity requirement, as well as a damages
formula that applied if the minimum requirement was not satisfied; when
Carborundum (D) failed to ship the contractual minimum quantity of its product to
Lake River (P) for distribution, Lake River (P) sued and attempted to collect
damages calculated according to the contractual formula.
Black Letter Rule: A clause in a contract that is designed to assure that the non-
breaching party receives more than its actual damages is a penalty clause, not a
liquidated damages clause, and will not be enforced under Illinois law.
344
Instant Facts: The Township canceled a lease with Wasserman’s but refused to
pay the damages outlined in the cancellation clause of the lease.
Black Letter Rule: Provisions for liquidated damages are enforceable only if the
amount fixed for damages is a reasonable forecast of just compensation for the
harm that is caused by the breach and that harm is incapable or very difficult of
accurate estimate.
267

(Buyer of Carrots) v. (Grower)
172 F.2d 80 (3d Cir. 1948)
UNIQUENESS OF GOODS DEPENDS ON VALUE TO PURCHASER
INSTANT FACTS Wentz (D) refused to sell carrots to Campbell Soup Co. (P)
as agreed, and Campbell’s (P) brought suit to compel specific performance of the
contract.
BLACK LETTER RULE The test for whether goods are “unique” is not
always determined by objective standards, but may be based on the value of the
item to the party requesting relief.
PROCEDURAL BASIS
Appeal from judgments for Wentz (D) and Lojeski (D).
FACTS
Campbell Soup (P) contracted to buy all of the Chantenay red cored carrots to be
grown on fifteen acres of the farm owned by Wentz (D) during the 1947 season.
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Campbell’s (P) used large quantities of the Chantenay carrots because of the
uniformity of their appearance, and because their blunt shape made them easier to
handle and process. The price for the carrots was $30 per ton for deliveries made
in January 1948, and Campbell’s (P) furnished the seeds to the growers.
In early January 1948, Wentz (D) informed Campbell’s (P) that the carrots would
not be delivered at the contract price. The market price at the time was at least $90
per ton, and Chantenay carrots were virtually unobtainable. Wentz (D) sold
approximately sixty-two tons of carrots to Lojeski (D). Lojeski (D) resold
approximately fifty-eight tons of the carrots, half to Campbell’s (P) and half to other
buyers. Campbell’s (P) suspected that Lojeski (D) was selling its “contract
carrots,” and refused to buy any more. Campbell’s (P) brought actions against
Wentz (D) and Lojeski (D), seeking specific performance.
The trial court denied relief, noting that Campbell’s (P) had not proved what
proportion of its carrots was used to make stock, and what proportion was used as
identifiable ingredients in soups. The court concluded that Campbell failed to
establish that the carrots, “judged by objective standards,” were unique goods.
ISSUE
Did Campbell’s (P) establish that it was entitled to equitable relief?

(Goodrich, J.) Yes. The test for whether goods are “unique” is not always
determined by objective standards, but may be based on the value of the item to the
party requesting relief. The goods contracted for here were unavailable on the open
market. Campbell’s (P) had contracted to purchase them well in advance of its
needs. The uniformity of the appearance of carrots in soups marketed and sold
under the Campbell’s (P) name is a matter of considerable commercial
significance, and one that should be taken into account when determining whether a
substitute ingredient will be just as good. Campbell’s (P) has built up a general
reputation for its products, and the uniformity of the appearance of those products is
important.
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There is no reason why a court should be reluctant to grant specific relief when it
can be given without supervision of the court or other time-consuming processes.
There is considerable authority showing liberality in the granting of an equitable
remedy. Affirmed.
Analysis:
346
Although the court agreed with Campbell’s (P) contention that equitable relief was
appropriate, enforcement of the contracts was denied as unconscionable. The
unconscionable provision was one that prevented Wentz (D) from selling the
carrots to anyone else if, due to circumstances beyond the control of either party,
Campbell’s (P) could not take possession of them. The court did not analyze this
provision in detail, but said it was “carrying a good joke too far.” Although Wentz’s
(D) conduct was a breach of the contract, equity would not enforce an
unconscionable bargain. 172 F. 2d at 83
CASE VOCABULARY
EQUITABLE REMEDY: A remedy, usually a nonmonetary one such as an
injunction or specific performance, obtained when available legal remedies,
usually monetary damages, cannot adequately redress the injury.
SPECIFIC PERFORMANCE: The rendering, as nearly as practicable, of a
promised performance through a judgment or decree; specifically, a court-ordered
remedy that requires precise fulfillment of a legal or contractual obligation when
monetary damages are inappropriate or inadequate, as when the sale of real estate
or a rare article is involved. Specific performance is an equitable remedy that lies
within the court’s discretion to award whenever the common-law remedy is
insufficient, either because damages would be inadequate or because the damages
could not possibly be established.
269
Klein v. PepsiCo
(Buyer) v. (Seller of Plane)
845 F.2d 76 (4th Cir. 1988)
IF GOODS THAT ARE FOR SALE ARE UNIQUE, IT IS OKAY TO GRANT

SPECIFIC PERFORMANCE
347
INSTANT FACTS PepsiCo (D) agreed to sell a Gulfstream corporate jet to
Universal Jet Sales (“UJS”) (P) for resale to Klein (P), but before the airplane
could be delivered to UJS (P), PepsiCo (D) reneged and Klein (P) and UJS (P)
sued for specific performance.
BLACK LETTER RULE Specific performance cannot be granted where

damages are recoverable and adequate.
PROCEDURAL BASIS
Appeal from ruling of specific performance for breach of contract.
FACTS
PepsiCo (D) agreed to sell a Gulfstream corporate jet (G-II’s) to UJS (P) for resale
to Klein (P) for $4.6 million. The plane was flown to Savannah, Georgia for an
inspection and was to be flown to New York for specific repairs promised by
PepsiCo (D) representatives. However, the plane was sent to pick up a stranded
PepsiCo (D) Chairman of the Board from Dulles airport, who decided that PepsiCo
(D) should not sell the plane. The Chairman told PepsiCo (D) representatives to
withdraw the plane from the market. Klein (P) and UJS (P) sued and the district
court granted specific performance.
ISSUE
Can specific performance be granted where damages are recoverable and
adequate?
(Ervin) No. Specific performance cannot be granted where damages are
recoverable and adequate. The State of Virginia has adopted the Uniform
Commercial Code which permits a jilted buyer of goods to seek specific
performance of the contract if the goods sought are unique, or in other proper
circumstances. In this case, there was testimony that twenty-one G-II’s were on the
market, three of which were roughly comparable. It is noted that subsequent to the
PepsiCo (D) deal falling through, UJS (P) purchased two other G-II’s and Klein (P)
made bids on them. Because of price, Klein (P) decided to purchase a G-III aircraft
instead. Price Increases alone are no reason to order specific performance and,
given these facts, it is very difficult to support a ruling that the aircraft was so
unique as to merit such an order. Reversed and remanded as to the specific
performance.
Analysis:
348
In order to get equitable relief, damages must be an inadequate remedy. Under the
UCC, the sale of goods generally must be unique (i.e., rare or of sentimental value)
in order to be subject to specific performance. The UCC provides that even if not
unique, other proper circumstances may arise in which specific performance can be
granted. The Fourth Circuit did not see such circumstances in this case. Klein (P)
could have bought another G-II from UJS (P) for more money, and in fact had that
opportunity. Money damages were therefore adequate.
270
CASE VOCABULARY
ABROGATE: To annul, cancel, repeal or destroy.
EXTRINSIC EVIDENCE: External evidence, or that which is not contained in the
body of an agreement, contract, and the like; may also refer to evidence not
legitimately before the tribunal in which the determination is made.
MAXIM: An established principle or proposition; a principle of law universally
admitted as being a correct statement of the law, or as agreeable to reason. Maxims
are but attempted general statements of rules of law and are law only to the extent
of application in adjudicated cases.
271
Morris v. Sparrow
(Rancher) v. (Cowboy)
225 Ark. 1019, 287 S.W.2d 583 (1956)
A TRAINED HORSE HAS UNIQUE VALUE TO THE TRAINER
INSTANT FACTS Sparrow (P) sought specific enforcement of an agreement by
349
Morris (D) to give him a horse as part of the consideration for working on Morris’s
(D) ranch.
BLACK LETTER RULE Equity will grant specific performance of a contract

for the sale of chattels if there are special and peculiar reasons that make it
impossible for money damages to provide relief to the injured party.
PROCEDURAL BASIS
Appeal from a decree of the chancery court.
FACTS
Morris (D), a rancher who participated in rodeos, met Sparrow (P) at a rodeo in
Florida. The two agreed that Sparrow (P), a cowboy who was experienced in
training horses, would stay at Morris’s (D) ranch in Arkansas and do the necessary
work while Morris (D) travelled to Canada. Sparrow (P) was to work sixteen
weeks and receive $400. Sparrow (P) also alleged that he was to receive a brown
horse named Keno. When Sparrow (P) arrived at Morris’s (D) ranch, Keno was
practically unbroken. During his spare time, Sparrow (P) trained the horse so that,
with a little additional training, Keno would be a first class roping horse.
Morris (D) paid Sparrow (P) the agreed-upon money. He refused to turn Keno over
to him, claiming that Sparrow (P) was to get the horse only if his work was
satisfactory, and that Sparrow (P) did not do a good job.
ISSUE
Was Sparrow (D) entitled to specific enforcement of the agreement?

(Robinson, J.) Yes. Equity will grant specific performance of a contract for the sale
of chattels if there are special and peculiar reasons that make it impossible for
money damages to provide relief to the injured party. Sparrow (P) made a roping
horse out of a green, unbroken pony. Such a horse would have a peculiar and unique
value. If Sparrow (P) is to prevail, he has a right to the horse instead of its market
value in money.
Morris (D) contends that Sparrow’s (P) right to receive Keno was conditioned
upon doing a satisfactory job at Morris’s (D) ranch. Both parties were in the
chancery court, and the chancellor had a better opportunity to evaluate the testimony
regarding the quality of Sparrow’s (P) work. Affirmed.
Analysis:
350
Sparrow (P) cannot adequately be compensated by money damages, not because
Keno has some intrinsic value, or because he is a trained and broken horse. Keno’s
unique quality is that he was trained and broken by Sparrow (P) over the course of
sixteen weeks. The implication is that the quality that makes Keno special makes
him special only to Sparrow (P). If Morris (D)
272
had promised the horse to someone else, that other party might not be able to make
the same claim for specific performance that Sparrow (P) does.
CASE VOCABULARY
CHANCERY: A court of equity, or, collectively, the courts of equity; the system of
jurisprudence administered in courts of equity.
273

(Distributing Utility) v. (The Supplier)
522 F.2d 33 (8th Cir. 1975)
COURT WILL UPHOLD SPECIFIC PERFORMANCE IF PUBLIC INTEREST IS

DIRECTLY INVOLVED
INSTANT FACTS Laclede (P) sought injunctive relief when Amoco (D)
unilaterally terminated an agreement with Laclede (P) to supply propane gas
distribution systems to various residential developments.
BLACK LETTER RULE Specific performance will not be ordered when the
party claiming the breach of contract has an adequate remedy at law.
351
PROCEDURAL BASIS
Appeal from denial of breach of contract and injunctive relief.
FACTS
Laciede (P) and Amoco (D) entered into a long term agreement whereby Amoco
would supply propane gas distribution systems to various residential developments
until such time as natural gas mains were extended into those areas. The contract
gave Laclede (P) broad cancellation rights. However, Amoco (D) could not cancel
the contract unless the subdivisions subsequently converted to natural gas. After
performing under the contract for some time, Amoco (D) notified Laclede (P) that
the price of propane had increased by three cents per gallon and subsequently
terminated the agreement, telling Laclede (P) that the agreement lacked mutuality.
The district court ruled in favor of Amoco (D), agreeing that the contract was
invalid because of a lack of mutuality. The district court denied injunctive relief.
On appeal, the Circuit Court ruled that there was a contract and that the contract had
been breached by Amoco (D).
ISSUE
Will specific performance be ordered when the party claiming the breach of
contract has an adequate remedy at law?

(Ross) No. Specific performance generally will not be ordered when the party
claiming breach of contract has an adequate remedy at law. The remedy at law must
be certain, prompt, complete and efficient to attain the ends of justice as in a decree
of specific performance. The contract between Laclede (P) and Amoco (D) is for a
long-term supply of propane to the subdivisions of the development and there was
uncontradicted expert testimony that Laclede (P) probably could not find another
supplier of propane willing to enter into such a long-term contract. Even if Laclede
(P) could obtain supplies of propane for the affected developments, there is no
guarantee that Laclede (P) would be able to find propane in the future years, in
which case the damages could not be estimated in advance. Specific performance is
the proper remedy in this situation and it should be granted by the district court.
Analysis:
Generally, the determination of whether to order specific performance of a contract

lies within the sound discretion of the trial court. The Eighth Circuit in this case
held that the remedy at law
352
274
was not adequate in part because it believed money could not purchase a substitute
performance (i.e., future propane gas) for the subdivisions of the development. The
court noted that there was a public interest directly involved in supplying customers
with the propane. It should also be noted that the court dismissed Amoco’s (D)
contention that the remedy of specific performance would be difficult for the court
to administer without constant and long-continued supervision. The court stated that
this is merely a discretionary rule that is frequently ignored when the public interest
is involved, and noted that the public interest in providing propane to retail
customers is manifest, while any supervision required will be far from onerous.
CASE VOCABULARY
ARBITRARY: Not done according to reason or judgement; depending on will
alone; failure to exercise honest judgement.
MUTUALITY OF REMEDY: The right to performance must be mutual to grant
ONEROUS: Unreasonably burdensome or one-sided.
REPUDIATE: To put away, reject, disclaim, or renounce a right, duty, obligation or
privilege.
275

(Development Corporation) v. (General Contractor)
245 A.2d 431 (Del.Ch.1968)
A COURT GENERALLY WILL NOT GRANT EQUITABLE RELIEF IN

CONSTRUCTION CONTRACTS WHERE ENFORCEMENT AND
SUPERVISION BY THE COURT IS IMPRACTICAL
353
INSTANT FACTS The court denied Northern (P) an order of specific
performance of a contract to compel E.W. Bliss (D) to add workers, for the period
that one of Phoenix Steel’s (P) mills had to be shut down, because of a delay of the
work.
BLACK LETTER RULE With regard to a construction contract, a court should

not order specific performance which would be impractical to enforce and
supervise.
PROCEDURAL BASIS
Appeal from denial of specific performance for breach of contract.
FACTS
E.W. Bliss (D) contracted to modernize Phoenix Steel’s (P) plant, which was
spread over a 60-acre site, for $27,500,000. Work did not progress as rapidly as
expected in the contract and Phoenix (P) sought a court order of specific
performance to compel E.W. Bliss (D) to add 300 more workmen, to make up a full
second shift during the period that one of the mills had to be shut down, because of
a delay of the work. The court denied specific performance.
ISSUE
Should a court grant specific performance of any building contract in a situation in
which it would be impractical to carry out such an order?

(Marvel) No. The court of equity should not order specific performance of any
building contract in a situation in which it would be impractical to carry out such an
order unless there are special circumstances or public interest is directly involved.
To grant specific performance in this case would be inappropriate in view of the
imprecision of the contract provision relied upon and the impracticability if not
impossibility of effective enforcement by the Court of a mandatory order designed
to keep a specific number of men on the job at the site of a steel mill which is
undergoing extensive modernization and expansion. If Northern (P) has suffered
loss as a result of actionable building delays, they may, at an appropriate time,
resort to law for fixing of their claimed damages. Affirmed.
Analysis:
Here, the court did not find special circumstances or an important public interest.
For the Northern court, the problems of supervising the performance of the
354
complex work involved in construction contracts and assessing the adherence to an
order were deemed greater than the benefits to be gained by specific performance.
Although equitable relief is now considered more
276
often than in the past with regard to construction contracts, the difficulties in
enforcement and supervision generally outweigh the benefits of specific
performance.
CASE VOCABULARY
COURT OF EQUITY: Court which administers justice according to the system of
equity, using well-settled and well-understood rules, principles and precedents.
MINISTERIAL ACT: Act performed in obedience to mandate of legal authority,
without regard to one’s own judgment upon the propriety of the act being done.
277

966 F.2d 273 (7th Cir.1992)
INJUNCTIVE RELIEF IS APPROPRIATE WHEN THE CALCULATION OF

DAMAGES IS UNCERTAIN
INSTANT FACTS Walgreen (P) sought to enjoin Sara Creek (D) to enforce the
exclusivity clause in their lease in which Sara Creek (D) promised not to lease
space in a mall to another store that has a pharmacy.
BLACK LETTER RULE In making a decision about injunctive relief, a judge
355
should balance the cost and benefits between the injunctive relief and damages.
PROCEDURAL BASIS
Appeal from award of permanent injunction for breach of contract.
FACTS
Walgreen (P) is a discount chain store that has a pharmacy. As part of its lease with
Sara Creek (D), Sara Creek (D) agreed not to lease a space in the mall to another
store operating a pharmacy. In 1990, fearful that its largest tenant was about to
close its store, Sara Creek (D) Informed Walgreen (P) that it intended to buy out
that tenant and install in its place a “deep discount” store that would contain a
pharmacy. Walgreen (P) sought an injunction against Sara Creek (D) until its
contract expired in ten years. The Court entered a permanent injunction against Sara
Creek (D).
ISSUE
In making a decision about injunctive relief, should the judge balance the cost and
benefits between the injunctive relief and damages?

(Posner) Yes. In deciding whether to grant injunctive relief, a judge should weigh
the cost and benefits of granting damages versus an injunction. The district judge
did not exceed the bounds of reasonable judgement in concluding that the costs of
the damages remedy would exceed the cost of injunctive relief. The determination
of Walgreen’s (P) damages would have been costly in forensic resources and
inescapably inaccurate. The lease had ten years to run. Walgreen (P) would have
had to project costs over the next ten years, and then project the impact on those
figures of its new competitor, and then discount that impact to present value. All but
the last step would have been fraught with uncertainty. Affirmed.
Analysis:
The court here went into a lot of detail regarding weighing the cost and benefits of
damages versus an injunction. The appellate court was comfortable that the district
court at least had this analysis in mind when granting the injunction and did not
question it further. However, the Seventh Circuit found that the calculations of
damages were at best “fraught with uncertainty.” The result may have been different
if the contract was for a shorter term, or involved a different industry. Nevertheless,
judges do engage in such balancing and use their discretion. The goal is to
determine if the plaintiff’s damages remedy is inadequate.
356
278
CASE VOCABULARY
DIMINUTION IN VALUE: Rule of damages which provides for difference between
“before” and “after” value of property which has been damaged or taken.
PREMISE: A proposition antecedently supposed or proved as a basis of argument
or inference.
PREMISES: The real property in question; the site occupied by a party.
279

(Wool Processor) v. (Wool Seller)
377 F.2d 795 (3rd Cir. 1967)
IN DETERMINING LOST PROFIT DAMAGES, FIXED COSTS AND

OVERHEAD COSTS SHOULD NOT BE DEDUCTED FROM GROSS PROFIT
INSTANT FACTS Caribtex breached a contract to supply Vitex with woolen

material, and Vitex sued to recover for its lost profits.
BLACK LETTER RULE When overhead expenses are not affected by the
performance of a particular contract, such expenses should not constitute a
performance cost to be deducted when computing lost profits.
PROCEDURAL BASIS
Appeal from judgment in action for breach of contract and award for loss of profits.
FACTS
357
At the time of this dispute, the importation of foreign wool products into the United
States was met with high tariff barriers. These high tariffs would be avoided under
statute if such wool products were imported into the Virgin Islands and processed
in some way that their finished value exceeded their importation value by 50%. The
Virgin Islands Legislature imposed quotas to limit the output of businesses engaged
in such wool processing. Vitex Manufacturing Company, Ltd. (Vitex) (P) chemically
shower-proofed imported doth so that it could be imported duty-free into the United
States. To this end, Vitex (P) operated a processing plant in the Virgin islands, but
had closed it when there was a lack of customers. Carlbtex Corporation (D)
imported cloth into the islands, secured its processing, and exported it to the United
States. In the fall of 1963, the two companies (P and D) entered into a contract in
which Vitex (P) agreed to process 125,000 yards of Carlbtex’s (D’s) material at a
price of 25 or 26 cents per yard. Vitex (P) re-opened its Virgin Islands plant,
recalled its employees, and ordered the necessary chemicals so it (P) could comply
with the contract. Caribtex (D) did not deliver the material, however, because it
(D) feared the wool would not be entitled to duty-free treatment by customs
officials. Vitex (P) sued to recover its (P’s) lost profits resulting from Caribtex’s
(D’s) breach. The trial court found that Vitex’s (P’s) gross profits for processing the
woolen material would have been $31,250 and that its (P’s) costs would have been
$10,136. Thus, Vitex’s (P’s) damages for loss of profits were set at $21,114.
Caribtex (D) appealed, claiming in part that the trial court erred in disregarding
Vitex’s (P’s) overhead expenses, including those continuous expenses of the
business like employee salaries, purchasing chemicals, etc., in determining lost
profits.
ISSUE
Should constant overhead expenses be deducted from gross proceeds when
computing lost profits?

(Staley) No. Despite the presence of contrary authority, as a general rule, it would
be better that overhead be treated as a part of gross profits and be recoverable as
damages. Overhead should not be considered as part of the seller’s costs. When
overhead expenses are not
280
affected by the performance of a particular contract, such expenses should not

constitute a performance cost to be deducted when computing lost profits. In other
words, because overhead is fixed and nonperformance of the contract would
produce no overhead cost savings, no deduction from profits should result. Here,
358
Vitex (P) had closed its plant when business activity had temporarily slowed down.
If Vitex (P) had entered no other contracts for the rest of the year, Vitex’s (P’s)
profits would have been determined by deducting its production costs and overhead
from gross profits resulting from previous transactions. When Vitex (P) contracted
to process Caribtex’s (D’s) wool, the only new costs that Vitex (P) would incur
would be those of reopening its (P’s) plant and the direct costs of processing, such
as labor, chemicals, and the like. Overhead costs would have been constant,
regardless of whether Vitex (P) contracted with Caribtex (D) or Vitex (P) actually
processed Caribtex’s (D’s) wool. Because overhead remained constant and was
totally unaffected by the Caribtex (D) contract, it would be improper to consider it
as a cost of Vitex’s (P’s) performance and deduct it from the gross proceeds of the
Caribtex (D) contract. Carlbtex (D) may argue that this position is incorrect, as
overhead is as much a cost of production as other expenses. Granted, successful
businessmen do set prices at a level high enough to recoup all expenses, including
overhead, and reap profits. Still, this does not automatically mean that fixed
overhead costs, even when allocated in part to each transaction, should be
considered a cost factor when computing lost profits on individual transactions.
While overhead is paid for by the proceeds of the business, such costs generally do
not bear a direct relationship to individual transactions to be considered a cost in
determining lost profits. Moreover, with fewer transactions, overhead is spread out
to a far lesser degree; these overhead costs would then lead to a loss of
profitability for each existing transaction. This loss should thus be considered a
compensable item of damage. The UCC provides that, if the difference between the
contract price and market price is insufficient to put a seller in as good a position
as if the contract had been fully performed, a different measure of damages should
be used. The measure of damages should then be the profit, including reasonable
overhead which the seller would have received from the buyer. Judgment of district
court affirmed.
Analysis:
UCC § 2–708(2) states that the measure of damages is “the profit (including
overhead) which the seller would have made from full performance by the buyer.”
In the case of Universal Power Sys. v. Godfather’s Pizza, 818 F.2d 667 (8th Cir.
1987), the Eighth Circuit gave a ruling similar to that of the Third Circuit in Vitex,
holding that the measure of damages under § 2–708(2) should be read as not
subtracting fixed costs when calculating profit. Instead, only variable overhead
costs, such as those for electrical power or heat that can be turned off once a breach
occurs, were to be considered in such calculations. Thus, when overhead costs are
variable, they should be included in the general formula for measuring damages,
which finds damages equal to the loss in value plus any other loss, minus any cost
359
avoided and loss avoided as a result of the breach. When the overhead is a fixed
cost, as was the case here, it makes no sense to include the overhead in the formula.
Costs like insurance premiums, property taxes, and the like cannot be avoided
simply by having one party breach the contract.
CASE VOCABULARY
DUTY-FREE: Term to describe goods which are free from customs payments when
imported into a county.
TARIFFS: A list of articles which outlines the rates of duties, or taxes, that are to
be imposed upon goods imported into a country.
281

(Cattle Hide Buyer) v. (Cattle Hide Seller)
513 S.W.2d 210 (Tex. Civ. App. 1974)
UCC § 2–712 PROVIDES THAT IF A SELLER BREACHES A CONTRACT, A

BUYER MAY “COVER” AND BE ENTITLED TO DAMAGES BY MAKING A
REASONABLE PURCHASE OF SUBSTITUTE GOODS
INSTANT FACTS Laredo Hides had to buy hides on the open market to fulfill
another contract with a tannery when H & H breached its contract with Laredo
Hides.
BLACK LETTER RULE Under UCC § 2–712, when a seller refuses to

acknowledge a contract or refuses to deliver the goods under contract, a buyer may
“cover by making in good faith and without unreasonable delay any reasonable
purchase of or contract to purchase goods in substitution for those due from the
seller,” and recover damages in the form of “the difference between the cost of
360
cover and the contract price together with any incidental or consequential
damages.”
PROCEDURAL BASIS
Appeal from take nothing judgment in action for breach of contract.
FACTS
H & H Meat Products Company, Inc. (H & H) (D) is a Texas meat processing and
packing corporation. H & H (D) also sells cattle hides as a side business. Laredo
Hides Company, Inc. (Laredo) (P) is a Texas corporation which purchases cattle
hides from various meat packers in the United States and ships them to tanneries in
Mexico. On February 29, 1972, the two companies (P and D) executed a contract
by which Laredo (P) agreed to buy all of H & H’s (D’s) cattle hide production from
March through December, 1972. On March 3, 1972, Laredo (P) contracted to sell
all the hides it would purchase from H & H (D) to a Mexican tannery. A
disagreement over payment for the second shipment resulted in H & H (D) stating it
(D) would deliver no more hides. [The appellate court held that H & H’s (D’s)
refusal to deliver more hides was unjustified as it amounted to a breach by
repudiation of the contract. Thus, Laredo (P) was not obligated to fulfill the
remaining months of the contract.] To fulfill its (P’s) contract with the tannery,
Laredo (P) was forced to purchase hides on the open market in substitution for the
H & H (D) hides. Unfortunately for Laredo (P), the market price for cattle hides
had steadily increased after Laredo (P) contracted with H & H (D). Laredo’s (P’s)
total additional cost of purchasing substitute hides from other suppliers was
$142,254.48. Further, the transportation and handling costs which resulted from
having to deal with additional suppliers was $3,448.95. The Texas Business and
Commerce Code, mirroring the UCC, provides guidelines for fixing a buyer’s
remedies when a seller breaches a contract for the sale of goods. When a seller
repudiates the contract or refuses to deliver the contracted goods, a buyer may
cover under § 2–711. The seller could be entitled to damages under § 2–712 “by
making in good faith and without unreasonable delay any reasonable purchase of or
contract to purchase goods in substitution for those due from the seller.” The seller
could thus recover damages under this section in the amount of the difference
between the cost of cover and the contract price, plus incidental damages. Laredo
(P) began this action in May 1972, requesting specific performance, or in the
alternative, damages equaling at least $100,000. This figure constituted
282
the rough amount of damages caused by H & H’s (D’s) breach. A take nothing
361
judgment was rendered in favor of H & H (D). Laredo (P) appealed.
ISSUE
Is a buyer entitled to damages if he or she “covers” himself or herself by
purchasing substitute goods when a seller breaches a contract for a sale of goods?

(Bissett) Yes. Under UCC § 2–712, when a seller refuses to acknowledge a
contract or refuses to deliver the goods under contract, a buyer will be entitled to
damages if he or she covers “by making in good faith and without unreasonable
delay any reasonable purchase of or contract to purchase goods in substitution for
those due from the seller.” The buyer can then recover damages in the form of “the
difference between the cost of cover and the contract price together with any
incidental or consequential damages.” Here, Laredo (P) offered evidence of H &
H’s (D’s) hide production from April to December, 1972. Laredo (P) also
demonstrated the price for the hides it had to buy elsewhere and the fact that it (P)
had to buy them often, as the hides would decompose if allowed to age. A certified
public accountant also demonstrated the costs of buying the substitute hides based
on purchase invoices. It is clear that Laredo (P) opted to pursue the remedy
provided by § 2–712. Its (P’s) pleadings and evidence also brings Laredo (P) under
the “cover” provisions of that section of the Code. Also, if the buyer complies with
the requirements of § 2–712, any purchase by the buyer is presumed to be proper.
The seller bears the burden of proof to show that “cover” was not properly
obtained. Here, H & H (D) offered no evidence to counter this presumption. The
difference between the contract price and the cover price for the steer hides has
thus been shown to be $134,252.82; the difference for the bull hides has been
shown to be $8,001.66. The total contract/cover difference, then, is $142,254.48.
Further, Laredo (P) offered evidence of $1,435,77 in increased transportation
costs, and $2,013.18 in increased handling charges. These costs are certainly
recoverable as incidental damages where a buyer elects to “cover.” There is no
evidence that Laredo (P) tried to increase its damages after H & H (D) refused to
deliver the contracted hides. By purchasing the other hides, Laredo (P) acted
promptly and in a reasonable manner. The record does not support the trial court’s
decisions of fact and of law. Laredo (P) is entitled to $152,960.04 in damages plus
interest. Judgment reversed and rendered.
Analysis:
Generally speaking, a buyer’s damages when a seller fails to deliver goods is equal
to the amount of the replacement price (the “cover” price) minus the contract price,
plus the cost of any other loss incurred because of the breach. According to the
362
Code commentary, though, the replacement transaction must be an appropriate one,
according to the aforementioned requirements of good faith and reasonableness, for
this formula to apply. Still, the Code suggests that it is immaterial whether later
information proves the resale transaction was “not the cheapest or most effective.”
Also, cover does not have to be identical to the breached goods, but can be goods
that are “commercially usable as reasonable substitutes under the circumstances.”
Quality is also not a major factor. If the goods for cover are in any way superior or
inferior, this discrepancy can be compensated for in a separate monetary award
between the parties. It is important to note, though, that cover is not mandatory. If a
replacement transaction is not conducted, or is insufficient for cover under the
Code, the buyer’s damages will simply be calculated without regard to such a
transaction.
CASE VOCABULARY
TAKE NOTHING JUDGMENT: Judgment which provides that one party is not
entitled to certain damages.
TANNERY: A place where animal hides are converted into leather.
283

(Equipment Buyer) v. (Equipment Manufacturer)
826 F.2d 678 (7th Cir. 1987)
A SELLER WHO WISHES TO RESELL GOODS AFTER A BUYER BREACHES

A CONTRACT CAN BE ENTITLED TO DAMAGES AS CALCULATED UNDER
UCC § 2–708
INSTANT FACTS Davis (P) had to breach a purchase contract with Diasonics
(D), and when Diasonics (D) resold the equipment, Davis (P) sued to get its full
363
deposit back.
BLACK LETTER RULE A seller who wishes to resell goods after a buyer
breaches a given contract can seek damages equal to the difference between the
contract price and market price at the time and place for tender under UCC § 2–
708; but to receive lost profits, the seller must establish both that he or she would
have been able to produce the breached goods and the resold goods and that it
would have been profitable to produce and sell both sets of goods.
PROCEDURAL BASIS
Appeal from order denying motion for summary judgment in action for restitution.
FACTS
On or about February 23, 1984, R.E. Davis Chemical Corporation (Davis) (P)
contracted to purchase a piece of medical diagnostic equipment from Diasonics,
Inc. (Diasonics) (D), a manufacturer and seller of such equipment. In accordance
with this agreement, Davis (P) paid Diasonics (D) a $300,000 deposit on February
29, 1984. Before making this agreement with Diasonics (D), Davis (P) had
contracted with Dobbin and Valvassori to establish a medical facility where the
Diasonics (D) equipment was to be used. Sometime after the Diasonics (D)
contract was made, however, Dobbin and Valvassori breached their contract with
Davis (P). Davis (P) then breached its contract with Diasonics (D) by refusing to
take delivery of the equipment and withholding payment of the rest of the balance
due under the agreement. Diasonics (D) eventually resold the equipment to a third
party for the same price at which it was to be sold to Davis (P). Davis (P) sued
Diasonics (D), asking for restitution of its $300,000 down payment under UCC § 2–
718(2). Diasonics (D) counterclaimed, arguing that it (D) was entitled to an offset
under § 2–718(3). Diasonics (D) claimed it was a “lost volume seller,” and thus
lost one sale’s worth of profit when Davis (P) breached. To be put in as good a
position as it would if Davis (P) had performed, Diasonics (D) claimed, it (D)
should be entitled to recover its lost profits under UCC § 2–708(2). The district
court held that lost volume sellers were limited to recovering only the difference
between a resale price and a contract price, plus incidental damages, under UCC §
2–706(1). Davis (P) was awarded $322,656, which represented Davis’ (P’s) down
payment plus pre-judgment interest, minus Diasonics’ (D’s) incidental damages.
Diasonics (D) appealed.
ISSUE
Can a lost volume seller wishing to resell goods after a buyer breaches a contract
of sale seek lost profits under UCC § 2–708?
364
284

(Cudahy) Yes. A seller who wishes to resell goods after a buyer breaches a given
contract can seek damages under UCC § 2–708, but to receive lost profits, the
seller must establish, not only that he or she would have been able to produce the
breached goods and the resold goods, but also that it would have been profitable to
produce and sell both sets of goods. Two measures of damages are provided by §
2–708. The first, in § 2–708(1), calculates damages by subtracting the market price
at the time and place of tender from the contract price. Diasonics (D) is requesting
the second, in § 2–708(2), which is a profit measure of damages. This should only
be applied when the former measure of damages is inadequate to put the seller in as
good a position as performance of the contract would have done. Diasonics (D)
claims that § 2–708(1) provides only inadequate damages for lost volume sellers.
The breach would have effectively cost the seller a “profit,” and thus the seller can
only be made whole again by receiving damages equal to its “lost profit.”
Diasonics (D) is correct that the measure provided by 2–708(1) will not put a
reselling seller in as good a position as it would have been in had the buyer
performed; this is because the breach resulted in the loss of sales volume for the
seller. Whether a person is a lost volume seller, however, should depend on two
questions. The first is whether the seller could have produced the breached units in
addition to its actual volume; the second is whether it would have been profitable
for the seller to produce both units. This position reflects the economic law of
diminishing returns: as a seller’s volume increases, at some point the cost of selling
each additional item will be so high that it is unprofitable to make another sale.
Thus, it is possible that granting a lost volume seller its presumed lost profit would
overcompensate the seller. The measure of damages of 2–708(2) would not take
effect because the damage formula in 2–708(1) would place the seller in as good a
position as if the buyer had not breached. On remand, then, Diasonics (D) must
prove not only that it (D) had the capacity to produce the breached unit in addition
to the unit resold, but also that it would be profitable to have produced and sold
both. Dlasonics (D) carries this burden because it generally falls on the party
claiming injury to establish the amount of damages, and this issue is raised by
Diasonics’ (D’s) counterclaim. If Diasonics (D) successfully establishes these
facts, then the district court will calculate damages under 2–708(2). Summary
judgment reversed and remanded with instructions.
Analysis:
On remand, the district judge ruled that Diasonics (D) had demonstrated lost profit
damages equaling $453,050. Judgment was then entered for that sum, minus the
365
$300,000 deposit that Diasonics (D) kept for the equipment. Davis (P),
unsurprisingly, appealed this judgment as well. The court of appeals upheld this
judgment, noting the evidence was undisputed that Diasonics (D) could produce
one more piece of the diagnostic equipment. Also, Diasonics (D) had shown it was
“beating the bushes for all possible sales.” In reality, a decision on lost volume in a
given case will likely turn on who has the burden of proof on that issue. Most
jurisdictions place that burden on the seller, as was done here. The Ninth Circuit,
however, in Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279 (9th Cir. 1985),
rejected the idea of imposing a “rigid and complex” burden of proof on a seller
under UCC § 2–708(2), instead, the Court held that a seller only needs to show that
it could have supplied both the breaching buyer and the resale buyer, and not that it
could have made a profit from both sales.
285

(Owner of Naval Hospital) v. (Construction Company)
479 F.2d 638 (4th Cir. 1973)
THE MEASURE OF RESTITUTION IN THE FORM OF QUANTUM MERUIT

RECOVERY IS THE REASONABLE VALUE OF THE PERFORMANCE
RENDERED, AND CANNOT BE DIMINISHED BY ANY LOSS THAT WOULD
HAVE RESULTED FROM COMPLETE PERFORMANCE
INSTANT FACTS When Blair refused to pay crane rental costs, Coastal Steel
terminated its performance and sued to recover for labor and equipment it had
already furnished.
BLACK LETTER RULE The measure of recovery for quantum meruit is the
reasonable value of the performance, and recovery is undiminished by any loss
366
which would have been incurred by complete performance.
PROCEDURAL BASIS
Appeal from award of damages in action for breach of contract.
FACTS
Algernon Blair, Inc. (Blair) (D) entered a contract with the United States (U.S.) (P)
for the construction of a naval hospital. Blair (D) then contracted with Coastal
Steel Erectors, Inc. (Coastal) (P) to conduct steel erection operations and supply
equipment as part of Blalr’s (D’s) contract with the U.S. (P). Coastal (P) began
performing its obligations and supplied its own cranes for handling and placing the
required steel. Blair (D) claimed that the cost of crane rental was not its (D’s)
responsibility under its (D’s) subcontract with Coastal (P), and refused to pay those
costs. Because of this refusal to pay, Coastal (P) terminated its performance. This
occurred after Coastal (P) had completed roughly 28 percent of its subcontract.
Blair (D) went ahead and completed its contract with the U.S. (P) with a new
subcontractor. Coastal (P) sued in the name of the United States (P) under the
Miller Act to recover damages for labor and equipment already furnished. The
district court found that Blair (D) was required under the subcontract to pay for
crane use. Also, the refusal to pay was a material breach and justified Coastal’s
(P’s) termination of performance. This finding is not questioned on appeal, but the
court also found that Coastal (P), less what it (P) was already paid, was owed
roughly $37,000. Moreover, the court found that Coastal (P) would have actually
lost $37,000 (as compared to making $37,000) if performance was completed. The
court thus denied recovery to Coastal (P), finding that any amount due would have
to be reduced by any loss that would have resulted from complete performance of
the contract.
ISSUE
Should a subcontractor who justifiably ceases work after the main contractor
breaches the contract be entitled to restitution based on the value of the services
already rendered?

(Craven) Yes. The measure of recovery for quantum meruit is the reasonable value
of the performance, and recovery is undiminished by any loss which would have
been incurred by complete performance. In United States for Use of Susi
Contracting Co. v. Zara Contracting Co., 146 F.2d 606 (2d.Cir.1944), the Second
Circuit faced a similar situation involving a prime
367
286
contractor who had unjustifiably breached a subcontract after partial performance

by a subcontractor. There, the court stated that the subcontractor could choose not to
file suit based on the contract, and instead could make a claim for the reasonable
value of his or her performance. Here, Coastal (P) paid for the costs of labor and
equipment that Blair (D) has used. Blair (D) then breached the subcontract and
retained the benefits of this labor and equipment without having fully paid for them.
Based on these facts, it is clear that Coastal (P) is entitled to restitution in quantum
meruit. As Fuller & Perdue wrote in their piece on The Reliance Interest in
Contract Damages, 46 Yale L.J. 52, 56 (1936), “if A not only causes B to lose one
unit but appropriates that unit to himself, the resulting discrepancy between A and B
is not one unit but two.” Quantum meruit allows a promisee to recover the value of
services he or she gave to the promisor. This recovery is possible regardless of
whether the promisee would have lost money on the contract and been unable to
recover in a suit on the contract. The standard measuring the reasonable value of
the services rendered is the amount for which such services could have been
purchased from one in the plaintiff’s position at the time and place the services
were rendered. The district court must determine the reasonable value of the labor
and equipment that Coastal (P) provided for Blair (D). This amount should then be
awarded to Coastal (P), minus any payment Blair (D) may have already made under
the contract. Decision reversed and remanded with instructions.
Analysis:
Many courts have made similar rulings on questions of this nature. In addition to the
Fourth Circuit here, the Second Circuit in Scaduto v. Orlando, 381 F.2d 587 (2d
Cir. 1967), and in the afore mentioned Zara Contracting case, ruled that the
subcontractor should recover the “actual value of labor and materials” from the
contractor in the event of the contractor’s breach. Generally, the courts that follow
this reasoning must face the minor problem of measuring the benefit received by the
breaching party. This difficulty is greatly eased by relying on the reasonable value
of the services rendered, as trying to measure the benefit based on the other party’s
expectation interest will be far more difficult. Indeed, the use of the reasonable
value standard is favorable, for even if the party in breach abandons the contractual
enterprise entirely, any performance taken by the nonbreaching party will be,
presumably, for the benefit of the party in breach. This was certainly the case here,
as the steel erection and crane usage provided by Coastal (P) certainly helped
Blair’s (D’s) construction work.
CASE VOCABULARY
SURETY: A person or entity who is held liable for the payment of a debt or
368
performance of an obligation by another person or entity.
287

(Contractor) v. (Homeowner)
230 N.Y. 239, 129 N.E. 889, 23 A.L.R. 1429 (1921)
FREEDOM OF CONTRACT BATTLES EQUITY IN DETERMINING THE

APPROPRIATE MEASURE OF DAMAGES
INSTANT FACTS Jacob & Youngs (P) constructed a house using two types of
pipe, and Kent (D) refused to make full payment because the contract called for the
exclusive use of pipe manufactured by Reading.
BLACK LETTER RULE Insubstantial departures from express contract

language may be remedied by damages based on the diminution in market value
rather than the cost of replacement.
PROCEDURAL BASIS
Appeal from reversal of directed verdict that denied damages for failure to pay on
a contact.
FACTS
Jacob & Youngs (“Jacob”) (P) contracted to build a country residence for Kent (D).
The express terms of the contract required Jacob (P) to use only pipes
manufactured by Reading. However, Jacob (P) used Reading pipes for less than
half of the plumbing. Upon discovering this defect, Kent (D) withheld the final
payment of over $3000, and Jacob (P) sued for payment. At trial, Jacob (P)
attempted to enter into evidence the fact that the non-Reading pipes were identical
369
in quality and price to the Reading pipes. The trial court excluded the evidence and
directed a verdict for Kent (D). The appellate division reversed and granted a new
trial. In order for Jacob (P) to remedy the defect, he would have been required to
tear down most of the house, as almost all of the pipes were encased within the
walls. Thus, the cost of replacing the non-Reading pipes would have been
tremendous, especially in comparison to the negligible decrease in value caused by
using non-Reading pipes. Kent (D) appealed the appellate division’s decision.
ISSUE
Where the cost of replacement is grossly disproportionate to the good to be
attained, may diminution in value constitute the appropriate measure of damages?

(Cardozo, J.) Yes. Where the cost of replacement is grossly disproportionate to the
good to be attained, diminution in value may constitute the appropriate measure of
damages. Thus, the trial court erred in not admitting evidence of the relative quality
of the non-Reading pipes. The evidence, if admitted, would have supplied some
basis for the inference that the defect was insignificant in relation to the project. A
trivial and innocent omission will sometimes be atoned for by allowance of the
resulting damage, and will not always constitute a breach of contract. Indeed, in
some situations, substitution of equivalents will have great significance. Departure
from the strict terms of the contract will not be tolerated if it is so dominant and
pervasive so as to frustrate the purpose of the contract. However, in the instant
situation, the triers of fact should have been allowed to determine the significance
of Jacob’s (P) use of non-Reading pipe. Where the performance has been
substantial, an equitable remedy exists where the defects are trivial. We think that
the measure of damages must be shaped to the same end. Although cost
288
of replacement is typically the appropriate measure of damages, we think the

correct measure in this case should have been the difference in value. The cost of
replacement was grossly and unfairly out of proportion to the good to be attained,
i.e. the construction of adequate plumbing in the residence. Affirmed.
DISSENT
(McLaughlin, J.) Jacob (P) contracted to construct the residence out of Reading
pipe, and Jacob (P) failed to comply with this express contractual mandate. Thus,
Jacob (P) failed to perform its contract. Kent (D) had the right to contract for what
he wanted, and Kent (D) clearly bargained for the exclusive use of Reading pipes
in the building. His reason for requiring this kind of pipe is of no importance. Thus,
370
the rule of substantial performance, with damages for unsubstantial omissions, has
no application.
Analysis:
This case involves the determination of appropriate measure of damages. As a note

following the case recommends, it may be easier to assume that Kent (D) had paid
Jacob (P) full price and that Kent (D) was suing for damages. In this scenario, it is
easy to see that Kent (D) would be arguing for the “cost of replacement” measure of
damages, whereas Jacob (P) would be pushing for the lower “diminution in value”
measure. If diminution in value was the appropriate measure, then Jacob (P) should
have been allowed to enter evidence of the relative quality of the non-Reading
pipes. The majority opinion attempts to achieve a just result. It makes sense that
Jacob (P) should not be forced to tear down the building and reconstruct it using
only Reading pipes, if the non-Reading pipes were just as good. On the other hand,
Kent (D) did expressly contract for the exclusive use of Reading pipes. As the
dissent contends, a party has the right to expect the performance that he bargained
for at the contract-formation stages. All in all, the case presents an interesting
example of competing forces in the law of contracts: the principle of freedom of
contract versus the ability of a court to achieve a more equitable result that
contradicts express contractual language.
CASE VOCABULARY
MINUTIAE: Litte, insignificant details.
MULTIFARIOUS: Having great variety and diversity.
289
Plante v. Jacobs
(General Contractor) v. (Homeowners)
10 Wis.2d 567, 103 N.W.2d 296 (1960)
WISCONSIN SUPREME COURT APPLIES DIMINISHED-VALUE RULE TO

SUBSTANTIALLY PERFORMED CONSTRUCTION CONTRACT
371
INSTANT FACTS Homeowners refuse to make their final payment to the
contractor who built their house.
BLACK LETTER RULE Substantial performance on construction contracts

may be less than perfect, but recovery will be reduced by the diminished value of
the project or the cost of completion of the unfinished work.
PROCEDURAL BASIS
Appeal from a trial court judgement for the plaintiff in a suit to establish a lien on
the defendant’s property.
FACTS
Plante (P) a contractor, agreed to build a house for the Jacobs (D) for $26,765.
After $20,000 worth of work was paid for, the parties had a falling out which
resulted in Plante (P) walking off of the job. He had not completed the house. In
fact, there was at least $1601.95 worth of work to be completed. Despite this, he
sued to establish a lien on the Jacobs’ (D) property in order to recover the
remainder of the construction price. He admits that he is not entitled to
compensation for the uncompleted work. The Jacobs’ (D) complain that, among
other defects, Plante (P) misplaced the wall between their living room and kitchen
by a foot. As a result, they claim that he is not entitled to compensation because he
has not substantially performed the contract. It would cost roughly $4000 to tear
down and rebuild the wall. However, the placement of the wall has no effect on the
market value of the house. The trial court found for Plante (P). The Jacobs (D)
appeal.
ISSUE
Can performance be considered substantial despite mistakes which will be costly
to correct?
372
(Hallows) Yes. The first question is whether substantial performance has been
tendered. This cannot be answered according to precise formulae, especially with
regard to construction contracts. In other cases, substantial performance was denied
because performance was useless to the other party or a total failure with regard to
the object of the contract. In construction cases, the rule is that something less than
perfection will count as substantial performance unless the parties indicate
otherwise in the contract. In this case, Plante (P) was not given any blueprints for
the house. He built it based on standard floor plans, resolving problems by
practical experience. Given the circumstances surrounding construction, and
notwithstanding the Jacobs’ (D) unhappiness with the job, the trial court did not err
in finding substantial performance. However, this is not the end of our inquiry. The
house was still left uncompleted. The next question which must be answered is how
to measure the damages owed to Plante (P). Normally, he would receive the full
contract price, minus the damages caused by incomplete performance. The damages
caused by incomplete performance should be
290
determined by comparing the diminution in value of the house, against the cost of
completing the work. When the cost of completion is prohibitive, the diminution in
value should be applied. The trial court parsed out the defects, applying the
diminished-value rule to some defects, and the cost of completion rule to others.
While the trial court applied cost of completion to some defects which this court
may not have, we cannot say that their judgement was so erroneous as to require
reversal. In particular, the trial court measured the misplaced wall by the
diminished-value rule. This was appropriate. The Jacobs (P) never made it clear
that the wall was being built in the wrong place. In addition, replacing the wall
would require substantial demolition of the existing structure. This would be
economically wasteful and unreasonable. Since the trial court did not err in its
measure of damages, the judgement will be affirmed.
Analysis:
Justice Hallows’s approach in this case is not wholly different from Justice
Cardozo’s approach in Jacob & Youngs. Both justices realize that a mathematical
formula is unsuited … determining substantial performance in construction cases.
The work is simply too complicated and unpredictable to give rise to exact
measurements regarding performance. On the other hand, Justice Hallows has
broader concerns in the apportionment of damages than are evident in Jacob &
Youngs. While both courts desired an equitable result, Justice Hallows is more
373
explicitly concerned with efficiency than fairness. In fact, the diminished-value rule
is a rule of efficiency. It is wasteful, albeit also unfair, to force parties to pay for
defects that would be costly to repair, but have little impact on the value of the
house.
CASE VOCABULARY
COST OF COMPLETION: A measure of damages, frequently present in
construction cases, which compensates the injured party for the cost of repairing or
completing defective or unfinished work. This measure of damages will be granted
unless it is grossly disproportionate to the value which is produced by the work. If
it is grossly disproportionate, damages will be measured by the diminution in
value.
DIMINUTION IN VALUE: As it sounds, the diminution in market value of a
construction project is one possible measure of damages resulting from defective or
incomplete performance by the builder. The court determines the market value of
the project as completed per the contract and subtracts the value of the structure as
it stands.
291

(Land Owner) v. (Land User)
205 Minn. 163, 286 N.W. 235 (1939)
A DELIBERATE BREACH OF A CONTRACT BY A PARTY WILL LEAD TO

DAMAGES EQUAL TO THE COST OF REMEDYING THE FAILURE IN
PERFORMANCE
INSTANT FACTS John Wunder Co. agreed to remove sand and gravel from the
Groves land and keep the land level when finished, but later breached this
374
agreement.
BLACK LETTER RULE When a party willfully fails to perform under a

contract, the other party will be entitled to damages equal to the reasonable cost of
having performance carried out, and not the difference in value resulting from non-
performance.
PROCEDURAL BASIS
Appeal from judgment in action for breach of contract.
FACTS
S.J. Groves & Sons Company (Groves) (P) owned a 24-acre tract of land which
contained a significant deposit of sand and gravel. Groves (P) operated a plant on
this land for excavating and screening the gravel. John Wunder Co. (Wunder) (D)
owned and operated a similar plant nearby. In August 1927, Groves (P) and
Wunder (D) entered a contract by which Groves (P) would lease its (P) land to
Wunder (D) for seven years. Wunder (D) agreed to remove the sand and gravel, and
also to leave the property “at a uniform grade, substantially the same as the grade
now existing at the roadway … on said premises…” The lease also provided that
Wunder (D), in clearing away any of the materials covering the sand and gravel,
would use such materials “for the purpose of maintaining and establishing said
grade.” Further, Wunder (D) would acquire the Groves (P) screening plant on the
property and eliminate Groves (P) as a competitor. Groves (P) was paid $105,000
under the lease. Wunder (D) breached this contract deliberately, removing only “the
richest and best of the gravel” from the land and leaving the property “broken,
rugged, and uneven.” Groves (P) sued Wunder (D) for breach of contract. The
lower court found that, to leave the property at the required uniform grade, 288,495
cubic yards of material would have to be excavated and deposited elsewhere. The
cost of doing this would be over $60,000. If Wunder (D) did leave the land at a
uniform grade, however, the reasonable value of the property would have been only
$12,160. The lower court awarded damages to Groves (P) for approximately
$15,000, measuring them by the difference between the market value of the land in
the condition it was in when the contract was made and the condition the land
would have been in had Wunder (D) performed. Groves (P) appealed the amount of
damages.
ISSUE
Should a party injured by another party’s willful failure to perform under a contract
be entitled to damages based on the cost of performance?
375
(Stone) Yes. When a party willfully falls to perform under a contract, the other
party will be entitled to damages equal to the reasonable cost of having
performance carried out, and not the
292
difference in value resulting from non-performance. Wunder’s (D) breach of

contract was certainly willful in this case, with nothing of good faith about it. The
lower court’s decision to award damages for only $15,000 effectively rewards bad
faith and the deliberate breach of a contract. That outcome is unacceptable. A
contractor who willfully and fraudulently varies from a contract cannot sue based
on the contract and expect to have the benefit of the doctrine of substantial
performance. Here, there is not even substantial performance on the part of Wunder
(D). As Justice Cardozo wrote in Jacob & Youngs v. Kent, change will not be
tolerated “If it is so dominant or pervasive as in any real or substantial measure to
frustrate the purpose of the contract.” Clearly, Wunder (D) acted against Groves’
(P) explicit wish to improve the land after the lease was concluded. Further, it
would be wrong to measure damages according to the difference in value of the
land if the contract were fulfilled and the value of the land without performance.
Value of the land is no proper part of any measure of damages for willful breach of
a building contract. Previous cases have never suggested that the lack of value in
land furnished to a contractor who had promised to improve it allows the
contractor to breach such a contract without harsh consequences. Here, the
contractor, Wunder (D) was paid in advance and refused to improve the land as it
(D) promised. Groves’ (P) desire to see its (P) land improved should not be
impaired by the small value of the land itself. Instead, Groves (P) is entitled to
compensation for the work it (P) has been promised by Wunder (D), yet been
deprived of by Wunder (D) after payment has already been made. Groves (P)
would not be unjustly or unconscionable enriched by forcing Wunder (D) to give
what it (D) had already promised and received payment for. Judgment reversed and
new trial ordered.
DISSENT
(Olson) The diminished value rule should be applied here because of the lack of
evidence to show that the completed performance would satisfy the personal taste
of Groves (P). The willfulness of Wunder’s (D) breach should have no effect on the
measure of damages.
Analysis:
376
The court’s focus on the willfulness of the breach in justifying a higher award of
damages should be noted. Remember that the cost of performance, namely the cost
of leaving the land at the required grade, would be roughly $60,000. Also, the
potential increase in the market value of the land would be only $12,160, barely
one-fifth of the cost. From these facts alone, it seems that Wunder’s (D) decision
not to leave the property at a uniform grade was the only economically sensible
decision that that company (D) could make. Had Groves (P) attempted to show
there was some special value to the land that was not necessarily reflected in its
market value, then perhaps the award would not seem too excessive. For instance,
if Groves (P) owned adjacent land that could only be used productively if the land
in question were restored, then the award would possibly make better sense.
Without such an indication of special value, however, one may find difficulty
justifying a large award of damages, like the one here, solely because the breach
was willful. After all, there was no evidence that the breach was necessarily
malicious, accompanied by the intent to cause harm to Groves (P). As it stands,
defining “willfulness” in this context may be difficult, as it is unclear whether
purposeful intent to commit the act, or purposeful intent to commit the act in a
harmful way, would satisfy the definition.
CASE VOCABULARY
GRADE: The degree of slope or inclination for a road or other segment of land.
OVERBURDEN: Dirt and other unimportant materials that cover a deposit of more
useful geological materials or bedrock.
293

(Farm Owners) v. (Coal Miners)
382 P.2d 109 (Okla.1962), cert. denied, 375 U.S. 906 (1963)
THE AMOUNT OF DAMAGES AWARDED WHEN A CONTRACT PROVISION

IS BREACHED WILL DEPEND ON THE IMPORTANCE OF THE PROVISION
TO THE CONTRACT’S OVERALL PURPOSE AND THE RELATION OF THE
COST OF PERFORMANCE TO THE BENEFIT OF PERFORMANCE
377
INSTANT FACTS The Peevyhouses (P) leased their farm to Garland (D) for
strip mining, but Garland (D) failed to do specific remedial work at the end of the
lease.
BLACK LETTER RULE The measure of damages in an action by a lessor

against a lessee for breach of contract is ordinarily the reasonable cost of
performance of the work; however, if the breached provision is merely incidental
to the main purpose of the contract, and the economic benefit to be gained by the
lessor from full performance is grossly disproportionate to the cost of performance,
then the damages which may be recovered are limited to the diminution of value to
the property caused by non-performance.
PROCEDURAL BASIS
Appeal from judgment in action for damages for breach of contract.
FACTS
In 1954, Willie and Lucille Peevyhouse (P) leased their farm to Garland Coal &
Mining Co. (Garland) (D). The lease was for a five-year term, and would allow
Garland (D) to strip mine for coal. As part of this lease, Garland (D) agreed to
perform specific kinds of restorative and remedial work on the land at the end of
the lease. Garland (D) failed to do this work, which would have involved moving
many thousands of cubic yards of dirt. This operation would have cost Garland (D)
roughly $29,000, but would have only increased the market price of the farm by
about $300. The Peevyhouses (P) sued for $25,000 in damages, The trial court
awarded $5,000 in damages. Both the Peevyhouses (P) and Garland (D) appealed.
ISSUE
Should a party injured by another party’s failure to perform automatically be
allowed to recover damages equal to the cost of performance when the cost of
378
performance is disproportionate to the end to be attained by performance?
(Jackson) No. The measure of damages in an action by a lessor against a lessee for
damages for breach of contract is ordinarily the reasonable cost of performance of
the work. If, however, the breached provision is merely incidental to the main
purpose of the contract, and the economic benefit to be gained by the lessor from
full performance is grossly disproportionate to the cost of performance, then the
damages which may be recovered are limited to the
294
diminution of value to the property caused by non-performance. The Peevyhouses

(P) point to the decision in Groves v. John Wunder Co. [when a party willfully fails
to perform under a contract, the other party will be entitled to damages equal to the
reasonable cost of having performance carried out, and not the difference in value
resulting from non-performance] to justify their (P) claim. It should be noted that
that particular case is the only one in which the cost of performance rule was
followed where the cost of performance greatly exceeded the decrease in value
caused by the breach of contract. Moreover, that case was decided by a mere
plurality of the court. Here, unlike previous cases, a “building and construction” or
“grading and excavation” contract is not at issue. The contract was meant to
accomplish the economical recovery and marketing of coal from the property for
the benefit of all the parties. The provisions of the lease contract relating to the
remedial work were incidental to this main purpose. In McCormick, Damages,
Section 168, it is said with regard to building and construction cases that “… in
cases where the defect is one that can be repaired or cured without undue expense,”
then damages should be measured by the cost of performance. If, however, “… the
defect in material or construction is one that cannot be remedied without an
expenditure for reconstruction disproportionate to the end to be attained,” then the
value rule should be allowed. This idea was also conveyed in Jacob & Youngs,
Inc. v. Kent [substantial performance on a contract will outweigh trivial variations
in performance which might ordinarily cause the failure of a condition]. Thus,
because of the disproportion between the potential $300 increase in the value of the
land and the enormous, $29,000 cost of remedial work, damages should be limited
to the difference in value. Judgment reduced to $300 and affirmed.
DISSENT
(Irwin) The Peevyhouses (P) had insisted that the provisions for the remedial work
be included in the contract, and they (P) would not agree to the lease unless those
provisions were included. The Peevyhouses (P) were entitled to specific
379
performance of the contract, and because Garland (D) failed to perform, damages
should be awarded according to the cost of performance. Any other measure of
damages would ignore the express provisions of the contract and nullify Garland’s
(D) obligations. Thus, a new contract would be made, for the benefit of Garland
(D) and to the detriment of the Peevyhouses (P).
Analysis:
The Restatement (Second) does not take willfulness into consideration in its
damages formulation. Following the Groves rule here would lead to a damages
award of nearly one hundred times the potential effect on the Peevyhouses’ (P)
land. Such an award would be quite unfair to some and economically ridiculous to
others. Looking back at an earlier case, a $29,000 award here would lead to the
same kind of economic waste that would have resulted had Jacob & Youngs been
forced to demolish the walls in Kent’s home in order to replace the pipes.
Admittedly, this is a case that pits a farm couple (P) against a larger coal mining
company (D), and strip mining is particularly damaging to surface land, with large
expanses of earth being excavated a layer at a time. Still, the cost of restoring the
land could have been mitigated, perhaps if Garland (D) agreed, as a term of its (D)
lease, to allot a small percentage of profits over the five years to the Peevyhouses
(P) for the purpose of funding the remedial work at the end of the lease.
295

(County) v. (Bridge Building Company)
35 F.2d 301, 66 A.L.R. 735 (4th Cir. 1929)
A PLAINTIFF CANNOT HOLD A DEFENDANT LIABLE FOR DAMAGES

WHICH NEED NOT HAVE BEEN INCURRED
380
INSTANT FACTS Luten Bridge Co. continued building a bridge even after
Rockingham County notified the company not to proceed with the work.
BLACK LETTER RULE A plaintiff must, so far as he or she can without loss
to himself or herself, mitigate the damages caused by a defendant’s wrongful act; a
plaintiff cannot hold a defendant liable for damages which need not have been
incurred.
PROCEDURAL BASIS
Appeal from action at law for damages.
FACTS
The Board of County Commissioners of Rockingham County, North Carolina (D)
entered a contract with Luten Bridge Company (Luten) (P) on January 7, 1924 to
build a bridge within the county limits. A significant amount of the public opposed
the building of the bridge. On February 21, 1924, the Board (D) notified Luten (P)
that the County (D) was refusing to recognize the contract as valid and that Luten
(P) should not proceed with further work. [The appellate court eventually held that
this refusal to recognize the contract was unjustifiable.] By this point, Luten (P) had
already spent about $1900 for labor and materials for the bridge. After receiving
notice from the Board (D), Luten (P) continued to build the bridge according to the
terms of the contract. Luten (P) filed suit to recover $18,301.07, which Luten (P)
claimed it (P) was owed for work done before November 3, 1924. The trial court
directed a verdict for Luten (P) for this amount. The County (D) appealed.
ISSUE
If one party unjustifiably rescinds a contract, is the other party entitled to recover
damages if he or she continues performance under the contract?

(Parker) No. A plaintiff must, so far as he or she can without loss to himself or
herself, mitigate the damages caused by a defendant’s wrongful act; a plaintiff
cannot hold a defendant liable for damages which need not have been incurred.
Granted, the County (D) had no right to rescind the contract, and its notice to Luten
(P) constituted a breach of the contract by the County (D). Once Luten (P) received
this notice of the breach, however, it was Luten’s (P’s) duty to do nothing to pile up
damages flowing from this breach. Luten (P) should have treated the contract as
broken at that point and simply sued for any damages resulting from that breach, as
well as any profits that would have resulted from performance, and any losses that
were incurred. The bridge involved here was to have been built in the forest as part
381
of a future roadway. The County (D) later decided not to build the road, and thus
the bridge would have been of no value to the County (D). Luten (P) had no right to
pile up damages by continuing to build a useless bridge. Judgment reversed.
296
Analysis:
The ruling here does not mean that a party who has notice of another party’s breach
of their contract is automatically barred from continuing performance. For example,
it may still be reasonable for an injured party to perform if the breach comes with
assurances that the breaching party will still perform. In addition, UCC § 2–704(2)
provides that a seller who was also supposed to manufacture the contracted goods
may finish manufacturing them when the buyer repudiates the contract. This
provision is meant to save the seller/manufacturer the cost of stopping production
and salvaging the goods and materials, on the belief the seller/manufacturer will
exercise “reasonable commercial judgment” to avoid such loss.
297
Tongish v. Thomas
(Sunflower Seed Farmer) v. (Second Seed Buyer)
251 Kan. 728, 840 P.2d 471 (1992)
MARKET DAMAGES SHOULD BE AWARDED IN THE EVENT OF A

SUPPLIER’S BREACH OF ITS CONTRACTUAL OBLIGATION TO DELIVER
GOODS
INSTANT FACTS Tongish contracted to sell his sunflower seed crop to the
Coop Association, but repudiated that contract when the market price for seeds
went up.
382
BLACK LETTER RULE If a seller breaches a contractual obligation to
deliver goods, and the buyer fails to go into the market and “cover,” the buyer’s
damages will be measured by the difference between the market price and the
contract price according to UCC § 2–713.
FACTS
Tongish (D) was a farmer who grew sunflower seeds. Tongish (D) contracted with
the Coop Association (Coop) (P) to grow 116.8 acres of sunflower seeds and sell
the seeds to Coop (P) at $13 per hundredweight for large seeds and $8 per
hundredweight for small seeds. The seeds were to be delivered in thirds by
December 31, 1988, March 31, 1989, and May 31, 1989. Coop (P) also contracted
to deliver these seeds to Bambino Bean & Seed for the same price it (P) paid to
Tongish (D), minus a 55 cent per hundredweight handling fee as profit. In January
1989, the market price of sunflower seeds had risen to double the price named in
the Tongish (D) contract. This was the result of a small seed crop, bad weather, and
other factors. Tongish (D) notified Coop (P) that he (D) would end deliveries and
sold his (D’s) remaining seed crop to Danny Thomas for about $20 per
hundredweight. Thomas’ total purchase price amounted to $14,714, which was
$5,153 more than the Coop (P) contract price. Coop (P) sued Tongish (D) and was
awarded $455 in damages for its (P’s) loss of handling charges. Coop (P)
appealed, and the Court of Appeals reversed so that damages could be measured
according to the market price under UCC § 2–713. Tongish appealed, claiming that
the trial court ruling was correct under UCC § 1–106, which was intended to place
an injured party “in as good a position as if the other party had fully performed.”
ISSUE
If a seller fails to deliver goods under a contract, can the buyer recover the
difference between the market price and the contract price of goods under UCC §
2–713, even if such an award will be greater than the buyer’s loss under the terms
of the contract?

(McFarland) Yes. In Allied Canners & Packers, Inc. v. Victor Packing Co., 162
Cal.App.3d 905, 209 Cal.Rptr. 60 (1984), the court faced a somewhat similar
situation of a farmer being unable to deliver a crop to a buyer. There, the court
noted that where a seller knows a buyer has a resale contract for goods, and the
seller has not breached the contract in bad faith, then the buyer is limited to actual
loss of damages under § 1–106. The farmer in the earlier case, however, could not
deliver the crop because it had been destroyed by heavy rains. Here, Tongish (D)
did have a crop to deliver, but instead took advantage of the sunflower seed market
383
and sold it to Thomas. The trial court found there was no valid reason for this kind
of breach. Thus, the breach in Allied is much different than the breach found here.
Granted, the
298
market damages remedy conflicts with the idea that contract damages should only
make the injured party whole, and not penalize a breaching party. Still, the Allied
decision has been sharply criticized for its rejection of market damages. The rule of
market damages under UCC § 2–713 is the more reasonable standard, for while it
may not reflect the buyer’s actual loss, it encourages efficiency in the market and
guards against the breach of contracts. While this solution may seem unfair,
allowing damages under § 1–106 would allow Tongish (D) to consider the contract
price with Coop (P) as a mere “floor” price for the seeds, ignore his (D’s)
obligation to Coop (P) and take the seeds out on the market to sell to the highest
bidder. In other words, this would encourage Tongish (D) to breach the contract.
Using market damages would encourage market stability and the honoring of
contracts. Judgment of Court of Appeals affirmed.
Analysis:
The courts have been split for over sixty years on the measure of damages when a
supplier breaches delivery obligations. The majority of courts award damages in
the amount of the difference between the market price and the contract price, even
when it would be in excess of a plaintiff’s actual loss under the contract. A strong
minority would limit market damages to actual loss, however, even if the defendant
would have a relative windfall because of it. Most experts still favor the market
damages rule, because it effectively penalizes parties for violating their own
agreements for the sake of their own profits from the market. At least one scholar,
Schneider, in a 1986 article mentioned in the opinion, criticized the Allied decision
as ignoring the intent behind § 2–713 to “award expectation damages in accordance
with the allocation of risk as measured by the difference between contract price and
market price on the date set for performance.” Another scholar, Scott, argued in the
University of Chicago Law Review that the lost profits rule of Allied encourages
parties to break agreements if the market changes to their advantage, thereby
creating instability in the market and in the agreements themselves.
CASE VOCABULARY
HUNDREDWEIGHT: A unit of weight equaling one hundred (100) pounds.
299
384
(Actress) v. (Film Studio)
3 Cal.3d 176, 89 Cal.Rptr. 737, 474 P.2d 689 (1970)
AN ACTRESS’ REFUSAL TO TAKE A DIFFERENT KIND OF ROLE IN A

DIFFERENT PRODUCTION CANNOT BE USED AS A REASON FOR
MITIGATING DAMAGES IN A BREACH OF CONTRACT DISPUTE
INSTANT FACTS Parker contracted to act in a musical in California, but Fox

abandoned the musical and offered her a role in a western in Australia.
BLACK LETTER RULE A wrongfully discharged employee’s rejection of or

failure to seek other available employment of a different or inferior kind cannot be
used by the employer as a means of mitigating damages.
PROCEDURAL BASIS
Appeal from summary judgment in breach of contract action for damages.
FACTS
Mrs. Parker (P), known professionally as Shirley MacLaine, was [and still is,
“Mrs. Winterbourne” notwithstanding] a prominent film actress. Under a contract
with Twentieth Century-Fox Film Corporation (Fox) (D), dated August 6, 1965,
Parker (P) was to play the female lead in Fox’s (D’s) proposed production of a film
entitled “Bloomer Girl.” Fox (D) agreed to pay Parker (P) a total of $750,000 over
a period of 14 weeks, beginning May 23, 1966. This contract also provided Parker
(P) with certain rights of approval regarding the choice of director and content of
the screenplay. Before May 1966, however, Fox (D) decided not to produce the
film. In a letter dated April 4, 1966, Fox (D) notified Parker (P) of this decision,
and with the express purpose “to avoid any damage to you,” offered Parker (P) the
385
leading female role in another film, tentatively entitled “Big Country, Big Man.”
(“Big Country”) The monetary compensation for this new role was to be identical
to the amount offered previously. “Big Country,” however, was a dramatic
“western” movie, while “Bloomer Girl” was to have been a musical production.
Also, “Big Country” was to be filmed in Australia, while “Bloomer Girl” had been
set for production in California. Moreover, Parker (P) was not given director and
screenplay approval by the “Big Country” contract. Parker (P) was given a week to
accept this second contract. She (P) did not accept Fox’s (D’s) offer, and then filed
suit seeking recovery of the agreed guaranteed compensation. She (P) set forth a
cause of action under the contract itself, and another for damages from the breach of
the contract. Fox (D) admitted the existence and validity of the contract, and that it
(D) had breached and repudiated the contract. Fox (D) denied, however, that Parker
(P) was entitled to any money under the contract or as a result of the breach. Fox
(D) claimed, as an affirmative defense, that Parker (P) deliberately failed to
mitigate her (P’s) damages by unreasonably refusing to accept the role in “Big
Country.” Parker (P) moved for and was granted summary judgment, with an award
of $750,000 plus interest. Fox (D) appealed.
ISSUE
Should a wrongfully discharged employee’s rejection of an offer of different and
inferior employment by his or her employer be considered when measuring
damages for the employer’s breach?
300

(Burke) No. A wrongfully discharged employee’s rejection of or failure to seek
other available employment of a different or inferior kind cannot be used by the
employer as a means of mitigating damages. Generally, a wrongfully discharged
employee is entitled to recover the amount of salary he or she was promised. This
amount is to be reduced by the amount that the employer affirmatively proves the
employee has earned or could have earned with reasonable effort since being
discharged. The employer must show, however, that any job opportunities that the
employee rejected were comparable, or substantially similar, to the original job
that the employee had agreed to perform. Here, Fox (D) has raised no issue as to
the reasonableness of Parker’s (P’s) efforts to gain other employment. The only
issue is whether her (P’s) refusal of the “Big Country” role may be used to mitigate
her (P’s) damages. It is clear that Parker’s (P’s) refusal to accept the latter role
offered by Fox (D) should not be applied in mitigation of damages. This is because
the “Big Country” lead was different from and inferior to the role offered for
“Bloomer Girl.” The female lead as a dramatic actress in a western style motion
386
picture cannot be considered substantially similar to a female lead in a song-and-
dance production. In addition, no expertise is required to see that the “Big Country”
offer, which proposed to eliminate or impair Parker’s (P’s) director and screenplay
approval rights under the “Bloomer Girl” contract, was an offer of inferior
employment. Parker’s (P’s) rejection of the role in “Big Country” should not be a
means of mitigating damages. Judgment affirmed.
DISSENT
(Sullivan) Only in California is there a rule that an employee is only required to
accept employment that is “substantially similar.” There is no historical or
theoretical justification for adopting a standard regarding employment of a
“different or inferior kind.” It has never been the law that the mere existence of
differences between two jobs in the same field is sufficient to excuse an employee
from accepting an alternative offer of employment in order to mitigate his or her
own damages. All the majority has done is attempt to prove their proposition that
the two roles offered by Fox (D) were different by repeating the idea that they were
different. The relevant question is not whether one offer of employment is different
from the other, but whether there are enough differences in the kind of employment,
or whether one offer is truly inferior to the other. These questions are part of the
ultimate issue, which is whether or not the employee in question has acted
reasonably. Summary judgment should be withheld.
Analysis:
The question of what is an appropriate substitute offer of employment will depend

greatly on the facts and circumstances of each case. Factors may include the work
the injured party is to perform, the time and place at which the performance is to be
rendered, and the compensation to be given for the work. The cases where latter
offers of employment have not been found to be appropriate have tended to involve
very vivid situations. The Eighth Circuit in Jackson v. Wheatley School Dist., 464
F.2d 411 (8th Cir. 1972), for example, held that a job that would require a teacher
to live apart from her husband was not an appropriate substitute for a job in the
same school where the husband also worked as a teacher. In addition, the court in
State ex rel. Freeman v. Sierra County Bd. of Educ., 49 N.M. 54, 157 P.2d 234
(1945), found that a principal and teacher in a school could not be required to
accept a job as fourth-grade teacher in the same school.
301
Hadley v. Baxendale
(Mill Operators) v. (Delivery Service)
387
9 Ex. 341, 156 Eng.Rep. 145 (1854)
A PARTY INJURED BY A BREACH OF CONTRACT CAN ONLY RECOVER

THOSE DAMAGES THAT MAY REASONABLY BE CONSIDERED AS
ARISING NATURALLY FROM THE BREACH, OR AS HAVING BEEN
CONTEMPLATED BY THE PARTIES IN ADVANCE AS A LIKELY RESULT OF
THE BREACH
INSTANT FACTS Baxendale failed to deliver a broken mill shaft for Hadley on
time, and the delay prevented Hadley from reopening the mill on time.
BLACK LETTER RULE A party injured by another party’s breach of contract

can only recover those damages that may fairly and reasonably be considered either
as arising naturally, or as may reasonably be supposed to have been in the
result of such a breach of the contract.
PROCEDURAL BASIS
Rule nisi for new trial in action for damages for breach of contract of carriage.
FACTS
The Hadleys (P) operated a mill in Gloucester. This mill had to be shut down on
May 11, 1854, when the crankshaft of the steam engine which ran the mill became
broken. The Hadleys (P) arranged to have the manufacturers of their (P) engine
make a replacement one based on the pattern of the broken shaft. To accomplish
this, a representative of the Hadleys (P) went to Baxendale (D) at Pickford & Co.,
a well-known carrier [delivery and transport] business, on May 13. This
representative told the Baxendale’s (D) clerk that the Hadleys’ (P) mill was
stopped, and that the shaft must be sent immediately to the manufacturers at
Greenwich. The clerk assured the Hadleys’ (P) servant that it could be delivered in
388
a day. The next morning, Baxendale (D) took the shaft and was paid to deliver it to
Greenwich. This delivery was delayed by Baxendale’s (D) neglect. As a result, the
completion of repairs and the reopening of the mill were delayed by five days. In
that time, the Hadleys (P) were compelled to pay wages. The Hadleys (P) claimed
they (P) also lost wages totaling 300£ [pounds] and sought judgment for that
amount. Baxendale (D) claimed these damages were too remote, and that liability
should not be found. The jury awarded 25£ in damages to the Hadleys (P).
Baxendale (D) appealed.
ISSUE
Should the measure of damages awarded to a party who is injured by a breach of
contract be limited to only those damages that are not considered remote by the
parties?

(Alderson) Yes. A party injured by another party’s breach of contract can only
recover those damages that may fairly and reasonably be considered either as
arising naturally, or as may reasonably be supposed to have been in the
result of such a breach of the contract. In other words, if the special circumstances
under which a contract is made are described by one party to another, it follows
that both sides are aware of these special circumstances. Thus, any damages
302
caused by a breach would have been reasonably contemplated by the parties. The
measure of those damages would be the amount of injury which would ordinarily
follow from such a breach under these circumstances. If, however, a party that
breaches the contract did not know of these special circumstances, then he or she
could only be presumed to have knowledge of the kind of injury that would result
generally from a breach. This is because parties with knowledge of special
circumstances regarding a contract could very well provide for them. It would be
unfair for this advantage to be taken away from such parties by presuming
otherwise. Here, the Hadleys’ (P) servant only told Baxendale’s (D) clerk at the
time the contract was made that the mill shaft was broken, and that the Hadleys (P)
operated that mill. It is unclear how these circumstances could reasonably show
that the mill’s profits would be stopped if the delivery of the shaft to the
manufacturer were unreasonably delayed. Baxendale (D) had no idea of whether
the Hadleys (P) had an extra shaft at the mill, or whether the steam engine was
otherwise defective, etc. Ordinarily, a miller sending an engine shaft to a third
person by a common carrier would not result in a loss of profits and a stopped mill.
389
The special circumstances here that would lead to such a situation were never
communicated to Baxendale (D). Therefore, the loss of profits in this case cannot
reasonably be considered such a consequence of the breach of the contract as could
have been fairly and reasonably contemplated by both parties when they made this
contract. The jury should not have taken the loss of profits into consideration when
measuring damages. A new trial is necessary in this case. Rule absolute.
Analysis:
Consequential damages are affected by the circumstances under which the contract
was made, such as the amount of information provided by one party to another. The
court here said the loss of profits for the mill could not have been in Baxendale’s
(D) “contemplation” because he (D) did not know if Hadley (P) had an extra mill
shaft, if the mill engine was otherwise faulty, etc. This “contemplation” requirement
imposed on the recovery of breach of contract damages was more severe than the
test for substantial or proximate cause used in actions for tort or breach of
warranty. Shortly after the Hadley decision, it appeared that both English and
American courts would transform this contemplation test into an even stricter one.
Some courts supported the idea that a party could not be held liable for
consequential damages unless that party had made a “tacit agreement” to assume
that particular risk when making the contract. Fortunately, this restrictive test has
not survived to this day, and is explicitly rejected in the comments to the UCC. The
modern trend has been to define the test as one of “foreseeability.” A party must
only have been given notice of facts that made a loss foreseeable to be held liable.
Both the Restatement (Second) and the UCC have adopted this standard.
CASE VOCABULARY
COMMON CARRIER: A business that offers its services to the public for
transportation of people, goods, or messages.
CRANK SHAFT/CRANKSHAFT: Shaft which drives the main moving parts of an
engine.
NISI: Latin for “unless”; denotes a ruling that will be declared final unless the party
adversely affected by it can show cause as to why the ruling should not take effect.
NOLLE PROSEQUI: A formal declaration that a prosecutor or plaintiff will “no
longer prosecute” a particular case.
RULE ABSOLUTE: A rule which commands that an order be forthwith enforced.
303
390
(Manufacturer) v. (Parts Supplier)
71 F.3d 1024 (2nd Cir. 1995)
DAMAGED PARTY MAY RECOVER FORESEEABLE DAMAGES, EVEN

UNDER INTERNATIONAL LAW
INSTANT FACTS A parts supplier refused to ship conforming goods to a buyer.
BLACK LETTER RULE Under international commercial law, a buyer may

recover lost profits and other incidental damages caused by the seller’s breach of
contract if those lost profits were foreseeable.
PROCEDURAL BASIS
Appeal of district court judgment on breach of contract action for incidental and
consequential damages.
FACTS
Rotorex Corp. (Rotorex) (D) agreed to supply three shipments of compressors to
Delchi Carrier SpA, (Delchi) (P), an Italian air conditioner manufacturer. When the
second shipment was en route, Delchi (P) discovered that the compressors in the
first shipment were not the kind the contract required. Delchi (P) asked Rotorex (D)
to supply conforming compressors, but Rotorex (D) refused. Delchi (P) canceled
the contract and sought another source. As a result, Delchi’s (P) plant was shut
down for four days. Delchi (P) also incurred expenses shipping the nonconforming
goods back to Rotorex (D). Delchi (P) sued Rotorex (D) for incidental and
consequential damages. The judgment was for Delchi (P) for $1,248,332. The
damages included lost profits for unfilled orders from Delchi (P) affiliates in
Europe and from sales agents in Italy. The damages did not include consequential
and incidental damages for shipping, customs, and related matters for the two
returned shipments. Both parties appealed.
391
ISSUE
Under international commercial law, may a buyer recover lost profits and other
incidental damages caused by the seller’s breach of contract?
(Winter, J.) Yes, if the damages are foreseeable. This case is governed by the
Convention for the International Sale of Goods (CISG), an international treaty
between the United States and other countries, including Italy. The CISG has
virtually no case law interpreting it, but it directs that its interpretation should be
informed by the need to promote uniformity and good faith. Case law interpreting
the UCC may inform the court where the language of the CISG tracks the UCC.
Article 74 of the CISG provides that damages for breach of contract may not
exceed the loss that was foreseeable at the time of the conclusion of the contract, in
light of the facts and matter of which the breaching party knew or ought to have
known as a possible consequence of the breach. Rotorex (D) argues that the district
court improperly awarded Delchi (P) lost profits. We disagree. The CISG requires
that damages be limited by foreseeability as established in Hadley v. Baxendale
[landmark English case holding that party injured by breach of contract may
recover damages that were reasonably foreseeable at the time the contract was
made]. Here, it
304
was reasonably foreseeable that Delchi (P) would take orders for sales based on
the number of compressors it had. On Delchi’s (P) appeal of the district court’s
denial of damages for shipping, customs, and storage charges for the two returned
shipments, we hold that these expenses were reasonably foreseeable. They are
legitimate consequential damages that do not duplicate lost profits damages.
Delchi’s (P) labor expenses incurred as a result of the shutdown of its production
line are also a reasonably foreseeable result of Rotorex’s (D) shipment of
nonconforming goods. We remand to the district court to determine whether
Delchi’s (P) labor costs during this four-day period were variable or fixed.
Affirmed in part, and reversed and remanded in part.
Analysis:
Where a seller delivers goods to a manufacturer knowing they are to be used in the
manufacturing process, the seller has reason to know that nonconforming goods may
disrupt production and result in lost profits. Therefore, the foresee ability rule
allowed Delchi (P) to recover its lost profits from lost sales due to Rotorex’s (D)
breach and the costs Delchi (D) Incurred to return the shipments to Rotorex (D).
392
This case demonstrates the universal acceptance of Hadley v. Baxendale. It remains
the leading case on contract damages, even when international law is at issue. Note
that Delchi holds that where the language of the CISG tracks the UCC, case law
interpreting the UCC may be relevant However, Article 74 of the CISG provides
that a party injured by a breach of contract may recover foreseeable possible
consequences of the breach. UCC § 2–715(2) provides that consequential damages
Include any loss resulting from general or particular requirements and need of
which the seller at the time of contracting had reason to know and that could not
reasonably be prevented by cover or otherwise. Thus, the language of the CISG
would allow for broader damages than the UCC. Note that both § 351 of the
Restatement and Hadley v. Baxendale refer to the probable results of the breach.
CASE VOCABULARY
SELF-EXECUTING AGREEMENT: An international treaty that does not require
enabling legislation from Congress to be implemented.
305

(Land Owner) v. (County)
73 N.Y.2d 312, 540 N.Y.S.2d 1, 537 N.E.2d 176 (1989)
NEW YORK HIGH COURT LIMITS CONTRACT DAMAGES TO THOSE

WHICH THE BREACHING PARTY ASSUMED
INSTANT FACTS A company bought land, anticipating it would substantially

appreciate due to a stadium being built nearby, and sued when the stadium was not
built.
BLACK LETTER RULE An injured party is not entitled to recover damages

that the parties did not contemplate the breaching party would assume.
393
PROCEDURAL BASIS
Appeal of breach of contract action for specific performance, or in the alternative,
damages.
FACTS
In 1968, the County of Erie (the County) (D) passed a law authorizing it to finance
and construct a domed sports stadium near Buffalo. The County (D) authorized a
$50 million bond issue to finance the stadium construction. Kenford Co. (Kenford)
(P) offered to donate to the County (D) the land upon which to build the stadium if
the County (D) would allow Dome Stadium, Inc. (DSI) (P) to lease or manage the
stadium. The County (D) accepted Kenford’s (P) offer and the parties engaged in
contract negotiations. During this time, Edward Cottrell, Kenford’s (P) president
and sole shareholder, purchased land in Lancaster. In 1969, the County (D),
Kenford (P), and DSI (P) entered into an agreement whereby Kenford (P) would
donate land in Lancaster to the County (D) for the stadium, the County (D) would
begin construction within 12 months, and the County (D) would agree to negotiate a
40-year lease with DSI (P) through which the County (D) would receive lease
revenues of at least $63.75 million. The revenues included increased real property
taxes resulting from the increased value of peripheral lands. “Peripheral lands”
was defined in the contract as land owned by Cottrell or Kenford (P) located in
Lancaster. If DSI (P) and the County (D) could not agree on the lease terms, DSI (P)
and the County (D) were to enter into a 20-year management agreement. When the
County (D) learned that the stadium would cost about $72 million to build
[shouldn’t it have gotten an estimate before issuing the bonds?], it terminated the
contract. Kenford (P) and DSI (P) sued. The jury awarded Kenford (P) $18 million
for its lost appreciation in its property located near the proposed stadium site, and
$6 million for out-of-pocket expenses. DSI (P) was awarded $25.6 million in lost
profits under the 20-year management contract. On appeal, the Appellate Division
reversed the award to DSI (P) for lost profits and a portion of the award to Kenford
(P) for out-of-pocket expenses. The Appellate Division also held that Kenford (P)
could recover for lost appreciation of its property, but remanded the case to obtain
proper appraisal evidence. DSI (P) appealed the reversal of its damages to the
Court of Appeals [New York’s highest court]. The Court of Appeals affirmed the
Appellate Division’s ruling on the basis that the County’s (D) liability for DSI’s (P)
lost profits was not in the contemplation of the parties when the contract was
executed and the damages were too speculative. On retrial of Kenford’s (P)
damages for loss of anticipated land appreciation, the jury awarded Kenford (P)
$6.5 million, and the Appellate Division affirmed. The County (D) appealed.
394
306
ISSUE
May an injured party recover damages that the parties did not contemplate the
breaching party would assume?

(Mollen, J.) No. A nonbreaching party may recover general damages that are the
natural and probable consequences of the breach. Unusual damages are recoverable
only if they were within the contemplation of the parties as the probable result of a
breach at the time of the contract. Here, at the time of contracting, the parties
expected that the stadium would result in increased land values and increased
property taxes. However, this expectation does not necessarily lead to the
conclusion that the parties contemplated that the County (D) would assume liability
for Kenford’s (P) loss of anticipated appreciation if the stadium were not built. The
contract did not provide this remedy and there is no evidence that the parties
contemplated it. This is supported by the fact that Kenford (P) had no contractual
obligation with the County (D) to acquire land near the stadium. Kenford (P) bought
the land with the hope that it would benefit from the stadium. Kenford (P)
voluntarily and knowingly assumed the risk that if the stadium were not built, it
would not realize a financial gain. To hold otherwise would lead to the irrational
conclusion that the County (D) provided a guarantee that if the stadium were not
built, Kenford (P) would still receive a financial benefit from the peripheral lands.
Kenford (P) argues that it should realize all of its anticipated gains with or without
the stadium. Clearly this is illogical. Law dating back to Hadley v. Baxendale
[landmark English case holding that party injured by breach of contract may
recover only those damages that were reasonably foreseeable at the time the
contract was made] provides that damages are limited to those that were
reasonably foreseen or contemplated at the time the parties executed the contract.
This limits liability for unassumed risks, and diminishes the risks of entering into a
business enterprise. Reversed.
Analysis:
The court here went beyond Hadley v. Baxendale and limited breach of contract
damages even more. It relied on Globe Refining Co. v. Landa Cotton Oil Co., in
which Justice Oliver Holmes proposed the “tacit agreement” test, holding that
contract damages are limited to “the liability the defendant fairly may be supposed
to have assumed consciously, or to have warranted the plaintiff reasonably to
suppose that it assumed, when the contract was made.” Thus, the court looked not at
what damages were objectively foreseeable, but at what the defendant subjectively
395
contemplated. This test is not widely used and, in fact, was expressly rejected by
the UCC. It is interesting to wonder whether Kenford (P) could have recovered
under the objective test of foreseeability in Hadley v. Baxendale. All the parties
expected and anticipated that Kenford’s (P) land would appreciate in value after
the stadium was built. There was no way that Kenford (P) could “cover” its loss,
i.e., find some other way to cause its land to appreciate in value, and this inability
to cover was reasonably foreseeable to the County (D).
307

(Store Operator) v. (Plaza Operator)
396 Mich. 639, 242 N.W.2d 372 (1976)
EVEN A NEW BUSINESS CAN RECOVER DAMAGES FOR FUTURE LOST

PROFITS PROVIDED IT CAN ESTABLISH THOSE PROFITS WITH
REASONABLE CERTAINTY
INSTANT FACTS After the Plaza refused to give Fera the store space they had
agreed upon, Fera sued and tried to claim lost profits as damages.
BLACK LETTER RULE Future lost profits are allowed as an element of

damage in any case where, by reason of the nature of the situation, the profits may
be established with reasonable certainty.
FACTS
On August 20, 1965, Fera (P) and Village Plaza, Inc. (VPI) (D) entered into a ten-
year lease for a new “book and bottle” shop to be located in VPI’s (D) proposed
shopping center. This shop was not part of a continuing business. Fera (P) paid a
$1,000 deposit according to the lease. In addition, the lease provided for a
396
minimum $1,000 monthly rent plus 5% of annual receipts in excess of $240,000 to
be paid to VPI (D). After the lease was executed, Fera (P) agreed to give up 600
square feet of its leased space to another tenant. In exchange, VPI (D) agreed to
exclude Fera’s (P) liquor sales from the 5% rent provision of the lease. Numerous
work stoppages occurred afterwards, and VPI (D) ended up transferring the deed to
Bank of the Commonwealth in lieu of foreclosure after defaulting. When the space
was finally ready for occupancy, Fera (P) was told that the lease had been
misplaced and that the space had been rented to other tenants. Fera (P) refused an
offer of alternative space, saying the alternative space was unsuitable for the
intended business. Fera (P) filed suit in Wayne Circuit Court, alleging, among other
things, a claim for anticipated lost profits. The jury returned a verdict for Fera (P)
against VPI (D) and those managing the property for the Bank (D) for $200,000.
The Court of Appeals reversed and remanded for new trial on the issue of damages,
holding that the trial court was wrong to allow lost profits to be used as the
measure of damages for breach of the lease.
ISSUE
Can future lost profits be considered as an element of damages?

(Kavanagh) Yes. Future lost profits are allowed as an element of damage in any
case where, by reason of the nature of the situation, the profits may be established
with reasonable certainty. Some cases have held that prospective profits are so
uncertain that they cannot be included when measuring damages. This rule is simply
an application of the general doctrine that a plaintiff must be able to provide a
sufficient basis for a reasonable estimate of the degree of harm he or she has
suffered in order to be entitled to a verdict or judgment for damages for breach of
contract. Future profits should not be excluded from the measure of damages simply
because they are profits. If the profits can be established with reasonable certainty,
they should be allowed in setting damages. When an already established business is
interrupted, a reasonable prediction can often be made as to its future profits based
on its past profits. Granted, a new business will not have the kind of financial
history to prove its future profits with
308
reasonable accuracy through the use of facts. Still, such future profits would not
necessarily be too uncertain to allow recovery in the case of new businesses. In this
case, the trial judge stated that the issue of the speculative nature of future profits
was probably the most completely tried issue in the entire dispute. Days of direct
and cross-examination were devoted to the topic, with proofs of damage ranging
397
from zero to $270,000. In the end, the jury set damages for Fera (P) at $200,000, a
figure well within the range provided by the evidence. The jury apparently chose to
believe Fera (P), and it was well within its rights to make such a choice. Also,
there was no evidence of abuse of discretion by the trial judge in denying VPI’s (D)
motion for a new trial. Court of Appeals reversed and trial court judgment
reinstated.
Analysis:
The element of certainty as a limit on damages was introduced by American Judges

at around the same time that English judges introduced foreseeability. As outlined
in a leading New York case, Griffin v. Colver, the doctrine of certainty originally
required that damages “be shown, by clear and satisfactory evidence, to have
actually been sustained” and “be shown with certainty, and not left to speculation or
conjecture.” This is the “general doctrine” mentioned by the court here. It resulted
in a widespread reluctance on the part of the judges to recognize interests that were
too difficult to measure in monetary terms. This certainty requirement has been
greatly relaxed in recent years, however. The Restatement (Second) for example,
bars recovery “for loss beyond an amount that the evidence permits to be
established with reasonable certainty.” The comments to the Uniform Commercial
Code also note that damages are “at best approximate,” and do not have to be
completely mathematically accurate. Instead, the UCC allows damages to be set
with “whatever definiteness and accuracy the facts permit.” In addition, the courts
are less demanding with this certainty requirement when a party willfully breaches
a contract. Moreover, the courts ease this standard in cases where precise proof of
damages is inherently impossible, as in claims for loss of “good will.”
CASE VOCABULARY
INTER ALIA: Latin for “among other things.”
309

(Road Construction Company) v. (State)
83 S.D. 160, 156 N.W.2d 185 (1968)
THE PARTIES TO A CONTRACT WITH A LIQUIDATED DAMAGES

PROVISION MAY ALSO BE REQUIRED TO SHOW A REASONABLE
ATTEMPT TO FIX FAIR COMPENSATION FOR THAT PROVISION TO BE
SUSTAINED
398
INSTANT FACTS The State withheld part of the payment owed to Gustafson &
Co. as liquidated damages under the contract after a job was delayed 67 days.
BLACK LETTER RULE A provision for payment of a stipulated sum as a

liquidation of damages will be sustained if it appears that 1) at the time the contract
was made the damages in the event of breach were incapable or very difficult of
accurate estimation, 2) there was a reasonable endeavor by the parties to fix fair
PROCEDURAL BASIS
Appeal from judgment in action for damages.
FACTS
Dave Gustafson & Co. (Gustafson) (P) contracted with the State (D) to surface a
new state highway which ran parallel to an older road. Gustafson (P) was to
receive $530,724.14 for the work. The State (D), however, withheld $14,070 as
liquidated damages after completion was delayed by 67 days. The contract
included a graduated scale of liquidated damages per day. Under this scale, a
contract in an amount from $500,001 to $1,000,000 would be accompanied by
damages of $210 per day. This rate over 67 days amounted to $14,070. When
Gustafson (P) sued for this remaining amount, the trial court upheld the State’s (D)
claim. Gustafson (P) appealed.
ISSUE
Can a contract provision for liquidated damages be sustained if it employs a
graduated scale of liquidated damages per day?
399
(Hanson) Yes. A provision for payment of a stipulated sum as a liquidation of
damages will be sustained if it appears that: 1) at the time the contract was made
the damages in the event of breach were incapable or very difficult of accurate
estimation, 2) there was a reasonable endeavor by the parties to fix fair
The recent trend has been to enforce liquidated provisions in contracts when they
amount to fair and reasonable attempts to fix just compensation for anticipated loss
resulting from a breach of contract. Such provisions are especially useful when
damages are uncertain or immeasurable. Here, the provision at issue is not a
penalty, but rather
310
a valid damages clause. The exact damages for delays in constructing a new
highway are immeasurable. Further, the amount stated in the clause demonstrates an
attempt to set a fair level of compensation for the loss, inconvenience, extra costs,
and deprivation of use of the road that are all caused by such a delay. Indeed, the
daily amount of damage is dependent on the overall size of the work to be
performed; smaller projects presumably incur smaller damage costs, while larger
projects incur larger damage costs. Therefore, the amount stipulated in the contract
bears a reasonable relation to probable damages. Moreover, the amount is not
disproportionate to the damage reasonably to be anticipated from this unexcused
delay in performance. Judgment affirmed.
Analysis:
The liquidated damages for government contracts described here have widespread
practical effects. As at least one scholar has noted, high levels of liquidated
damages can make contractors and others who perform construction work for the
government rather “jittery.” For instance, the potential threat of significant penalties
for delays in performance can leave companies open to pressure from labor groups.
Unions and other workers’ organizations can employ considerable leverage in
persuading employers to comply with their demands, whether such demands are
reasonable or not. Such negotiations for benefits or other working conditions
between labor and individual government contractors can, in turn, affect other
contractors. Businesses outside these isolated transactions may feel pressured to
give the same benefits to their employees or face the same type of labor pressure,
and thus may not have the security to take on lucrative public projects.
311
400
Lake River Corp. v. Carborundum
(Distributor of Ferro Carbo) v. (Seller of Ferro Carbo)
769 F.2d 1284 (7th Cir. 1985)
LIQUIDATED DAMAGES CLAUSES ARE ENFORCED, BUT PENALTY

CLAUSES ARE NOT
INSTANT FACTS Carborundum (D) entered into a distributorship agreement

with Lake River (P) that included a minimum-quantity requirement, as well as a
damages formula that applied if the minimum requirement was not satisfied; when
Carborundum (D) failed to ship the contractual minimum quantity of its product to
Lake River (P) for distribution, Lake River (P) sued and attempted to collect
damages calculated according to the contractual formula.
BLACK LETTER RULE A clause in a contract that is designed to assure that

the non-breaching party receives more than its actual damages is a penalty clause,
not a liquidated damages clause, and will not be enforced under Illinois law.
PROCEDURAL BASIS
Federal appellate court review of a federal district court decision finding in favor
of both the plaintiff on its claim and the defendant on its counterclaim.
FACTS
Carborundum (D) manufactured “Ferro Carbo,” an abrasive powder used in making
steel. To better serve its Midwest customers, Carborundum (D) contracted with
Lake River (P) to distribute the product. Lake River (P) received Ferro Carbo in
bulk, bagged it, and sent it to the customers. The product remained Carborundum’s
(D) property until it was delivered. In order to fulfill the distribution agreement,
Carborundum (D) insisted that Lake River (P) install a new bagging system. In
return, Lake River (P) insisted on a minimum-quantity guarantee, which provided
that over the next three years Carborundum (D) had to ship at least 22,500 tons of
401
Ferro Carbo to Lake River (P). If Carborundum (D) failed to do so, Lake River (P)
would invoice Carborundum (D) at the then-prevailing rates for the difference
between the quantity bagged and the minimum guaranteed. Carborundum (D)
shipped only 12,000 tons of the product so Lake River (P) billed Carborundum (D)
for $241,000—the contract price of $533,000 if the full amount of Ferro Carbo had
been shipped minus what Carborundum (D) had paid Lake River (P) for bagging
the quantity that it had shipped. Carborundum objected, (D) arguing that payment of
that amount would impose a penalty. Lake River (P) refused to turn over the 500
tons of bagged Ferro Carbo it had in its warehouse until Carborundum (D) paid the
$241,000. The parties were unable to resolve the dispute, and Lake River (P) sued
for the $241,000, claiming that that amount was liquidated damages. Carborundum
(D) counterclaimed for the value of the bagged Ferro Carbo in Lake River’s (P)
warehouse and the additional costs it had incurred in serving the customers affected
by Lake River’s (P) impounding of the product. The court granted judgment to both
parties, but Carborundum (D) actually ended up about $42,000 to the good. Both
parties appealed.
312
ISSUE
Did the damages formula in the minimum guarantee clause impose an impermissible
penalty for breach of contract?

(Posner, J.) Yes. A clause in a contract that is designed to assure that the non-
breaching party receives more than its actual damages is a penalty clause, not a
liquidated damages clause, and will not be enforced under Illinois law. Illinois
courts resolve doubtful cases in favor of classifying such clauses as impermissible
penalties. While we question the judgment of refusing to enforce penalties against
sophisticated commercial parties who entered into the contract willingly, it is not
up to the federal courts to alter existing state law. In this case, most of Lake River’s
(P) costs would be saved if the contract were breached, but these savings are not
reflected in the damage formula. At whatever point in the life of the contract a
breach were to occur, the damage formula would give Lake River (P) more than its
lost profits—dramatically more if the breach is at the beginning of the contract. We
find that the damage formula is invalid, but that conclusion does not leave Lake
River (P) without a remedy. The victim of a breach is still entitled to its common
law damages, even when the contract does not set the measure of damages. In this
case, that would be the unpaid contract price of $241,000 minus the costs that Lake
River (P) saved by not having to complete the contract. The case is remanded to the
district judge to fix the damages.
402
Analysis:
The court provides several illustrative examples of how damages would be

calculated under the formula set out in the contract. If the breach occurred the day
after Lake River (P) bought its new bagging system but before Carborundum (D)
shipped any Ferro Carbo, Carborundum (D) would owe Lake River (P) $533,000,
resulting in a net gain to Lake River from the breach of $444,000. This amount is
more than four times the profit of $107,000 that Lake River (P) expected to make
from the contract if it had been performed, which would have been a huge—and
unacceptable—windfall.
CASE VOCABULARY
LIQUIDATED DAMAGES: An amount of money specified in a contract to
compensate a party for injuries suffered because of a breach of contract by the other
party to the agreement; the amount agreed to in advance of a breach of contract to
serve as compensation for any injury or damage suffered, thereby precluding any
liability in excess of the amount stipulated in the contract.
PENALTY CLAUSE: A clause in a contract requiring one who defaults to pay a
specific sum to the other party or parties to the contract. Such clauses are common
in loan agreements and savings instruments, among others.
WINDFALL: An unanticipated benefit, often in the form of a profit and not
precipitated by the recipient.
313

(Store Operators) v. (Township)
137 N.J. 238, 645 A.2d 100 (1994)
A LIQUIDATED DAMAGES PROVISION WILL ONLY BE ENFORCED IF ITS

LEVEL OF DAMAGES IS A REASONABLE FORECAST OF JUST
COMPENSATION FOR A POTENTIAL BREACH AND THE POTENTIAL
HARM IS TOO DIFFICULT TO ESTIMATE
403
INSTANT FACTS The Township canceled a lease with Wasserman’s but
refused to pay the damages outlined in the cancellation clause of the lease.
BLACK LETTER RULE Provisions for liquidated damages are enforceable

only if the amount fixed for damages is a reasonable forecast of just compensation
for the harm that is caused by the breach and that harm is incapable or very difficult
of accurate estimate.
PROCEDURAL BASIS
Appeal from summary judgment in action for breach of contract for damages.
FACTS
The Township of Middletown (Township) (D) owned a section of land in one of its
commercial areas. From 1948 to 1968, Wasserman’s, Inc. (Wasserman’s) (P)
leased the property from the Township for a 3,200-square-foot store. In 1969 and
1970, the Township (D) accepted bids to lease the property, which the Township
(D) had evaluated at $47,500. Wasserman’s (P) submitted the only bid each time.
Eventually, a new lease was approved on September 22, 1970 and signed on May
21, 1971. The thirty-year lease set a constant monthly rental rate. A cancellation
clause also stated that if the Township (D) canceled the lease, it (D) would pay
Wasserman’s (P) a pro-rata reimbursement of Improvement costs. This
reimbursement would be based on the total value of the improvements, and the
proportion of time remaining in the lease. In addition, the Township (D) would
have to pay damages equal to twenty-five percent of Wasserman’s (P) average
gross receipts for one year. Wasserman’s (P) eventually spent $142,336.01 in
renovating and expanding the store. In August 1973, Wasserman’s (P) apparently
sold its (P) corporate assets and sublet the premises to Jo-Ro, Inc. (Jo-Ro) (P). The
sublease provided that Jo-Ro (P) would pay Wasserman’s (P) a monthly rent, and
that any payments made by the Township (D) if the lease were canceled would be
404
split between the two (P). By a December 7, 1987 letter, the Township (D)
canceled the lease effective December 31, 1988. In June 1989, the Township (D)
sold the property at auction for $610,000, but refused to pay damages for canceling
the lease. Wasserman’s and Jo-Ro (Ps) filed for summary judgment, as did the
Township (D). The Law Division held that the lease and cancellation clause were
enforceable, requiring the Township (D) to pay $346,058.44 plus interest in
damages. The Appellate Division affirmed.
ISSUE
Is a liquidated damages clause in a contract automatically enforceable once the
parties to a contract agree to adopt it?

(Pollock) No. Provisions for liquidated damages are enforceable only if the amount
fixed for damages is a reasonable forecast of just compensation for the harm that is
caused by the
314
breach and that harm is incapable or very difficult of accurate estimate.

Historically, courts have been reluctant to enforce penalty clauses of contracts. This
stems from the use of early penalty clauses as a means of oppression or extortion,
as debtors would be bound for twice the amount of their actual debts. Over the
years, courts have distinguished nonenforceable penalty clauses from enforceable
provisions for “liquidated damages.” Liquidated damages are the result of a good
faith effort to estimate in advance the actual damages that would probably result
from a breach. A penalty, by contrast, is intended to serve as a punishment for a
breaching party, and thus deter a future breach. It is settled in this State that a
contract which fixes penalties for breach is unlawful. As the law has evolved, the
reasonableness standard has been used to determine the validity of stipulated
damages clauses. Accordingly, the New Jersey courts have viewed enforceability
of such clauses as depending on whether the fixed amount is a reasonable forecast
of just compensation for the harm caused by the breach and whether that harm is too
difficult or impossible to be estimated accurately. Likewise, the greater the
difficulty of estimating or proving damages, the more likely the stipulated amount
will be considered reasonable. In addition, the New Jersey courts have long relied
on the circumstances of each case, and not the words of the parties, to determine
enforceability. Both the Uniform Commercial Code and the Restatement (Second)
of Contracts allow for the liquidation of damages within a contract at an amount
that is reasonable in light of the actual or anticipated harm from a breach, as well.
Following this trend, most courts today have held that liquidated damages clause:
405
are presumptively reasonable, and anyone challenging such a clause bears the
burden of proving otherwise. It should be noted that such a clause is unreasonable
if it does more than compensate injured parties for the actual damages from a
breach. Also, damages based on gross receipts run the risk of being found
unreasonable, due to the uncertainty involved and the possibility of a windfall.
Here, the 25% of Jo-Ro’s (P) average gross receipts that the Township (D) would
presumably have to pay would be nearly $300,000. This figure, however, would
not represent the actual losses of Jo-Ro and Wasserman’s (P) through operating
expenses or relocation costs and the like. The Township (D) is liable to
Wasserman’s and Jo-Ro (P) for terminating the lease, and they (P) should be
awarded $55,748.27 for renovation costs. The Law Division, however, should
determine whether the gross receipts clause of the contract is a reasonable one, and
as such a valid liquidated damages clause. Judgment of Appellate Division
affirmed in part, reversed in part, and matter remanded to Law Division.
Analysis:
There are policy considerations on both sides of the question of stipulated damages
clauses. Proponents of stipulated damages claim the clauses allow parties to
control their exposure to risk by setting payments for a potential breach well in
advance. In addition, the judicial process is avoided in setting damages, saving the
parties a great deal of time and expense. Moreover, stipulated damages clauses
allow the parties to set a damage formula that can include elements not otherwise
considered by most courts in their rules of damages. Such clauses are not
universally praised, however. Stipulated damages go against the ordinary practice
of allowing public law, not private law, to define contract remedies. Courts must
thus be involved in order to prevent private parties from exceeding the principle of
allowing compensatory damages. A minority of courts treat these provisions as
unconscionable if the amount of liquidated damages is clearly disproportionate to
actual damages. The Uniform Commercial Code follows the reasonableness
standard mentioned above.
CASE VOCABULARY
PRO RATA: According to a certain rate or percentage.
406
315
407
408
CHAPTER EIGHT
409
Performance and Breach
Luttinger v. Rosen
Instant Facts: The prospective buyers of a piece of real estate try to get their
deposit back after failing to get a mortgage.
Black Letter Rule: The failure of a condition precedent renders a contract
unenforceable.
Instant Facts: A rice processor refuses to complete the delivery of a shipment of
rice to an exporter when a contract condition fails.
Black Letter Rule: A condition whose satisfaction is “of the essence” must be
performed by the date specified in the contract in order to bind the parties.
Peacock Construction Co. v. Modern Air Conditioning, Inc. [and Overly
Manufacturing]
Instant Facts: A general contractor did not make final payments to two of his
subcontractors after he failed to receive payment from the owner of the project.
Black Letter Rule: A contract condition may be interpreted as a question of law
when the circumstances are so common that the parties’ intent can be gleaned from
their relationship.
Gibson v. Cranage
Instant Facts: A parent refuses to pay for a satisfaction-guaranteed photograph of
his daughter.
Black Letter Rule: A contract condition which guarantees the satisfaction of a
party grants that party complete discretion with regard to their approval over
performance.
McKenna v. Vernon
Instant Facts: A movie theater owner refuses to make final payment to the theater’s
builder.
Black Letter Rule: Waiver of a contract condition may be inferred from the
conduct of the parties.
Hicks v. Bush
Instant Facts: The parties to a failed merger agreement dispute the existence of a
parol condition on that agreement.
410
Black Letter Rule: Evidence of an oral condition to a written contract will be
admissible so long as it does not contradict the express terms of the agreement.
Kingston v. Preston
Instant Facts: A silk mercer refuses to turn over his business, as promised, to his
apprentice.
Black Letter Rule: A contract for the exchange of promised performances may
give rise to an implied condition on that exchange, making each party’s
performance dependent on the others.
Stewart v. Newbury
Instant Facts: A builder walks off of a construction job after the client refuses to
pay his first installment bill.
Black Letter Rule: In the absence of agreement to the contrary, a court cannot
imply a condition to make payments at reasonable intervals rather than upon
completion of the contract.
Instant Facts: A general contractor installed the wrong kind of pipe in a newly
constructed house and refused to tear out the walls in order to remove it.
316
Black Letter Rule: Substantial performance on a contract will out-weigh trivial

variations in performance which might ordinarily cause the failure of a condition.
Bartus v. Riccardi
Instant Facts: A hearing aid buyer rejected a different model hearing aid than he
had ordered, even though it was a better version of the old model, and then, even
when the seller offered the older model as a replacement the buyer refused to
accept anything from the seller; the seller sued under the sales contract.
Black Letter Rule: Even when the contract period has expired and the buyer has
rejected a nonconforming tender or has revoked an acceptance, the seller may
substitute a conforming tender if he had reasonable grounds to believe that the
nonconforming tender would be accepted and he seasonably notifies the buyer of
his intention to substitute conforming tender.
Instant Facts: A lumber driver requests full payment for his work, despite losing a
percentage of his client’s logs.
411
Black Letter Rule: If a contract is severable, as opposed to entire, then payment
may be requested for the measure of performance which was completed.
Britton v. Turner
Instant Facts: An employee breaks a one-year contract with his employer after ten
months, suing to recover wages for that period.
Black Letter Rule: A party may recover in quantum meruit [restitution] despite
being in breach of their contract.
Instant Facts: A homeowner refuses to pay the contractor who has been working
on her house for two months.
Black Letter Rule: A court may grant recovery in quantum meruit to a party,
despite their being in breach of contract and without interpreting the contract as
severable.
Instant Facts: A dry cleaner stops making rental payments on his neon sign when
the sign company refuses to clean it according to routine maintenance.
Black Letter Rule: A party may discontinue performance on a contract which has
been materially breached by the other party.
Instant Facts: A general contractor stops paying his subcontractor after the
subcontractor refuses to pay for damage that an employee did at the job site.
Black Letter Rule: A party who materially breaches a contract may not respond to
non-breacher’s cessation of performance by repudiating the contract.
Instant Facts: A rail supplier cannot find enough rails to satisfy a contract because
his buyer has purchased a significant portion of the available rails.
Black Letter Rule: Performance on a contract may be excused if one party
intentionally makes the other party’s performance impossible.
Instant Facts: A general contractor fires his roofing subcontractor on narrower
grounds than he alleges in court.
317
412
Black Letter Rule: A party who terminates an agreement is not restricted at trial to
the claims made at the time of termination unless the other party has relied on the
earlier claims to his detriment.
Instant Facts: A prospective employer cancels a contract to hire a courier before
their contract was due to be performed.
Black Letter Rule: A party who announces its intention to breach a contract
releases the other party from any obligations under the contract.
Instant Facts: A stockholder violated a right of first refusal granted to a
prospective buyer by selling their stock to a third party.
Black Letter Rule: A contract party cannot recover damages for repudiation if
they were unable to perform their own obligations under the contract.
Instant Facts: A polystyrene supplier is taken to court when they fall to meet their
obligations to their buyer.
Black Letter Rule: A buyer’s damages for anticipatory repudiation are measured
by the difference between the contract price and the market price at a commercially
reasonable time after the repudiation.
Instant Facts: A subcontractor is accused of repudiating a contract despite their
difficulty in getting supplies due to market and governmental forces beyond their
control.
Black Letter Rule: Anticipatory repudiation can only be demonstrated by an
absolute and unequivocal refusal to perform or a distinct and positive statement of
an inability to do so.
Instant Facts: By-Lo (P) claimed that it did not receive sufficient assurances from
ParTech (D) that its software would be Y2K compliant.
Black Letter Rule: The mere fact that performance is to become due is not
reasonable grounds for insecurity.
Instant Facts: U.S. Merchants (D) failed to pay for raw plastic provided by
Rocheux (P), claiming that it was defective, but Rocheux (P) argued that U.S.
413
Merchants (D) had not complained about the defects in a timely manner and had
admitted it owed the money; both parties moved for summary judgment in their
favor.
Black Letter Rule: Whether one party repudiated a contract or provided adequate
assurance of future performance are questions of fact that must be decided by the
trier of fact based on commercial standards.
319
Luttinger v. Rosen
(Prospective Purchasers) v. (Landowner)
164 Conn. 45, 316 A.2d 757 (1972)
CONNECTICUT SUPREME COURT EXPLAINS THE CONSEQUENCES OF A

FAILED CONTRACT CONDITION
INSTANT FACTS The prospective buyers of a piece of real estate try to get
their deposit back after failing to get a mortgage.
BLACK LETTER RULE The failure of a condition precedent renders a

contract unenforceable.
PROCEDURAL BASIS
Appeal from a trial court judgement for the plaintiffs in a breach of contract action.
FACTS
The Luttingers (P) contracted to purchase an $85,000 property owned by Rosen
(D). They also paid him an $8500 deposit on the property. In addition, the purchase
contract was subject to a condition that the Luttingers (P) obtain a mortgage from a
414
bank or lending institution for $45,000. The mortgage would have to be for a term
of at least twenty years and financed at no more than 8½ percent. The Luttingers
(P), in turn, agreed to use due diligence to acquire the mortgage. The parties also
agreed that the Luttingers’ deposit would be refunded if they could not satisfy the
mortgage condition. Unfortunately, the Luttingers (P) were unable to get a mortgage
for less than 8¾ percent. Their lawyer knew the rates being offered by the various
local banks and applied to the one bank that he knew might make the loan. Rosen
(D) offered to finance the extra ¼ percent in order to meet the contract condition,
but he refused to return the Luttingers’ (P) deposit. The Luttingers (P) declined his
offer and sued him for breach of contract. Rosen (D) claimed that the Luttingers (P)
failed to use due diligence in obtaining a mortgage because they did not apply to
other lenders. The trial court ruled for the Luttingers (P). Rosen (D) appeals.
ISSUE
Is it necessary for a party to follow every possible course of action in order to
satisfy a contract condition requiring due diligence?
(Loiselle) No. Rosen (D) claims that the Luttingers did not try hard enough to get a
qualifying mortgage. However, it is not necessary to perform futile acts in order to
satisfy a condition requiring due diligence. In this case, the Luttingers’ (P) lawyer
knew that no other lending institution would make the loan that they needed. It
would have been pointless to apply to those banks under the circumstances. Rosen
(D) also claims that the mortgage condition was satisfied, obviating the need to
return the Luttingers’ (P) deposit, because he offered to make the additional loan
necessary to bring the mortgage down to 8½ percent. However, the condition states
that the loan must come from a bank or another lending institution. The Luttingers
(P) were under no obligation to accept Rosen’s (D) offer. As a result, the condition
failed and the Luttingers were entitled to the return of their deposit. Affirmed.
320
Analysis:
The mortgage condition in the Luttingers’ (P) contract is referred to as a “condition

precedent.” The court defines a condition precedent as a fact or event that must
exist or take place before there is a right to performance. In other words, the parties
agree to a set of circumstances that must exist before they will be bound by their
contract. This case deals with an agreement requiring the Luttingers’ (P) due
diligence in trying to satisfy the contract conditions. The agreement only binds the
Luttingers (P) to their precontractual behavior. However, as this case demonstrates,
415
if the Luttingers failed to exercise due diligence, they might have forfeited their
deposit. As a result, the failure of a condition can have a significant impact on the
parties to an agreement.
CASE VOCABULARY
CONDITION PRECEDENT: A condition precedent is a circumstance which must
exist before the parties to a contract will be bound. Similarly, a condition
subsequent voids an already binding contract depending upon circumstances not
existing at the time of contracting.
321

(Exporter) v. (Rice Processor)
259 F.2d 137 (2nd Cir. 1958), cert. denied, 358 U.S. 946 (1959)
COURT OF APPEALS VOIDS A CONTRACT AFTER A CONDITION FAILS

WHICH WAS “OF THE ESSENCE”
INSTANT FACTS A rice processor refuses to complete the delivery of a

shipment of rice to an exporter when a contract condition fails.
BLACK LETTER RULE A condition whose satisfaction is “of the essence”

must be performed by the date specified in the contract in order to bind the parties.
PROCEDURAL BASIS
Appeal from the district court’s dismissal of the plaintiff’s complaint.
FACTS
River Brand Rice Mills, Inc. (River Brand) (D) agreed to supply Internatio-
416
Rotterdam, Inc. (Internatio) (P), an exporter, with a large quantity of rice. Their
agreement stated the amount of rice for delivery, the price, the delivery instructions,
and the payment arrangements. Among other terms, 95,600 pockets of rice were to
be delivered during the month of December and within two weeks of Internatio’s
(P) request. The rice was to be delivered to either of two ports: Lake Charles or
Houston. In addition, payment for the shipment was to be secured by a letter of
credit on Internatio’s behalf (P). When December arrived, Internatio (P) was still
trying to get an export license approved for the rice. To make matters worse,
December is a peak shipping month for rice and the ports were getting crowded.
River Brand (D) finally received their shipping instructions on December 10th and
began delivery of 50,000 pockets of rice at Lake Charles. The remainder was to be
delivered to Houston. However, if the Houston delivery did not start by the 17th,
River Brand (D) would not be able to complete delivery within the two-week
window provided by the purchase agreement. Unfortunately, Internatio (P) was not
able to secure a dock in Houston by this date. On the morning of the 18th, River
Brand (D) rescinded the contract for the Houston shipment. They continued making
the Lake Charles deliveries and completed them on December 31st. It is quite
likely that River Brand’s (D) quick recision of the Houston contract was due to a
sharp rise in the market price of rice from $8.25 per pocket to $9.75 per pocket.
River Brand (D) had agreed to sell the rice to Internatio (P) for $8.25 a pocket and
stood to make a large profit from other buyers if they voided that agreement.
Internatio (P) subsequently sued River Brand (D) for breach of contract. The trial
court dismissed their complaint, however, and Internatio (P) appeals.
ISSUE
Can a condition to an agreement extend beyond the date specified for its
performance?

(Hincks) Potentially. Internatio (P) concedes that they were obligated to supply
River Brand (D) with complete shipping instructions for both ports by December
17th. Otherwise, River Brand (D) would not be able to complete delivery within
the two weeks allotted and still deliver in December. Nonetheless, Internatio (P)
claims that River Brand (D) had a duty to make delivery
322
within two weeks of receiving their instructions, even if those instructions did not
arrive until after the 17th. Regardless of the date, it is clear that Internatio’s (P)
obligation to notify River Brand (D) was a condition precedent to River Brand’s
(D) duty to deliver the rice. The question is whether this condition had to be
417
satisfied in December or if River Brand (D) was obligated to perform even if
notice was too late to complete delivery in December. Under the circumstances, it
appears that the condition had to be satisfied by December 17th, allowing for
delivery in December. In other words, delivery in December was of the essence.
First, the contract states that delivery was requested for December. Second, the
parties each had obligations in December which militated against delivery
stretching into January. Third, the rice market was fluctuating at the time. Internatio
(P) could potentially delay delivery and then breach the contract in order to take
advantage of a favorable drop in prices. River Brand (D) would not have a similar
option since they could not delay delivery once it was requested by Internatio (P).
Finally, Internatio’s (P) letter of credit only extended through December. River
Brand (D) would have no security if delivery were postponed until January. As a
result, delivery in December was of the essence and Internatio (P) was required to
provide River Brand (D) with sufficient notice to complete their deliveries by
December 31st. Internatio (P) failed to do so and this released River Brand (D)
from any further obligations on the contract due to the failure of a condition
precedent. Their December 18th recision was valid since they had no obligations at
that point. Internatio (P) makes two further arguments, however. First, they claim
that they provided substantial part performance by securing a letter of credit for the
Houston shipments. However, this was merely preparation for performance which
was of no benefit to River Brand (D). Second, Internatio (P) claims that River
Brand (D) indicated their willingness to perform on the entire contract by
continuing shipments to Lake Charles. Every aspect of the two shipments was
severable, however. This includes the contract, the shipments themselves, and the
letters of credit. Considering the fluctuation in rice prices, River Brand (D) would
never have obligated themselves to an agreement so much against their interest.
Given the failure of these two final arguments, the judgement of the trial court is
affirmed.
Analysis:
This case introduces several concepts that may not be familiar to the reader. First,
the term “recision” defines the moment when a party declares that it is no longer
bound by the agreement. Announcing that you are rescinding an agreement can have
a significant impact on your liability if it turns out that you wrongly judged the other
party’s behavior as constituting a breach of contract. Ordinarily, it is a good idea to
continue performance until it is clear that a breach has occurred. Otherwise, it may
turn out that you breached the contract by announcing its recision. Another term that
is introduced in this case is “of the essence.” The court strictly construes the
requirement of notification in this case since delivery in December was “of the
essence. Finally, the court examines a number of complicated aspects of
418
commercial relationships. It is vitally important, particularly in contracts cases, to
understand the business relationship between the parties. This includes an
understanding of the documents they use to bind each other and the ways in which
they finance their transactions. It also includes the role that third parties play in
these transactions, particularly with regard to banks and other creditors.
CASE VOCABULARY
LETTER OF CREDIT: A letter of credit is a means of securing a transaction
through a bank which pays for goods on behalf of a creditworthy buyer. The seller
collects their payment from the bank. The bank then releases the goods to the buyer
after he reimburses them for the transaction.
RECISION (OR RESCISSION): Recision describes the process by which a
contract is voided. This is generally due to the actions of one of the parties as in
this case.
TIME IS OF THE ESSENCE: “Time is of the essence” is a concept which governs
the extent to which contract terms regarding time and date will be liberally or
conservatively interpreted. If a contract explicitly states that time is of the essence,
then its completion will may be limited to
323
the period set out in the contract. If not, then surrounding circumstances or trade
custom may govern the extent to which those terms are strictly binding. There is, as
always, some debate as to whether these words are given any more weight than
other contract terms which are subject to judicial interpretation.
325
Peacock Construction Co. v. Modern Air Conditioning, Inc. [and

Overly Manufacturing]
(General Contractor) v. (Subcontractors)
353 So.2d 840 (Fla. 1977)
SUPREME COURT OF FLORIDA INTERPRETS CONTRACT CONDITIONS AS

A QUESTION OF LAW
419
INSTANT FACTS A general contractor did not make final payments to two of
his subcontractors after he failed to receive payment from the owner of the project.
BLACK LETTER RULE A contract condition may be interpreted as a question

of law when the circumstances are so common that the parties’ intent can be
gleaned from their relationship.
PROCEDURAL BASIS
Two cases, both joined on appeal by the state supreme court after successful
motions for summary judgement by the plaintiffs in breach of contract actions which
were affirmed by the court of appeals.
FACTS
Modern Air Conditioning, Inc. (Modern Air) (P) and Overly Manufacturing
(Overly) (P) were hired by Peacock Construction Co. (Peacock) (D) as
subcontractors on a condominium construction project for which Peacock (D) was
the general contractor. Modern Air (P) was hired to install the heating and air
conditioning. Overly (P) was hired to install a rooftop swimming pool. Both of
their contracts indicated that-final-payment would arrive within thirty days of the
completion of their work. The payment clause concluded with the phrase, “written
acceptance by the Architect and full payment therefor by the Owner.” This clause
provides the central controversy for the actions for breach of contract which both
subcontractors brought after the Peacock (D) failed to pay them. Peacock (D)
claimed that he never received full payment from the Owner. He argues that the
payment clause is a condition precedent to his obligation to pay the subcontractors
—a condition which failed. In each case, the trial court granted the subcontractors’
motions for summary judgement. Peacock (D) appealed both judgements. The
judgements were affirmed by the court of appeal. Peacock (D) now appeals to this
court.
420
ISSUE
Is it appropriate for a court to grant summary judgement, ruling as a matter of law
on an ambiguous condition to a contract?
(Boyd) Yes. The trial court’s grant of summary judgement implies that the payment
clause was not a condition on Peacock’s (P) obligation to pay his subcontractors.
Similarly, the court of appeals follows the majority rule which interprets
provisions like the one at issue here as “absolute promises to pay.” Consequently,
the owner’s payment to the general contractor merely sets a reasonable time limit
on the general contractor’s payment to the subcontractors. Both of these opinions
conflict with Florida precedent which calls for an interpretation consistent with the
intent of the parties to the contract. This is potentially a factual determination which
would be inappropriate for a grant of summary judgement. Peacock (P) argues that,
at best, the trial
326
court must hear evidence before granting a directed verdict on the issue. However,
this outcome is not required. The general rule is that the interpretation of a
document is a question of law rather than a question of fact. It is quite possible for
the court to determine the parties’ intent from the language of the contract. This is
particularly so when the relationship between the parties, like the one between
general contractors and subcontractors, is so common that their intent rarely varies
from transaction to transaction. In most cases, the subcontractor would not willingly
assume the risk of the owner’s nonpayment. This is a burden that the general
contractor must bear unless the risk is unambiguously shifted in the agreement with
the subcontractor. As a result, the trial court and the court of appeals ruled correctly
in this matter. To the extent that Florida precedent is at odds with this outcome it is
overruled.
Analysis:
Justice Boyd’s approach to this case should seem familiar. The canon of contract
interpretation is brought to bear on one more element of contracts: the condition. As
in the cases dealing with the construction bidding process, the courts have found
ways of dealing with certain familiar business transactions. Judges can apply a
single rule that is based on the most common dealings between parties. As Justice
Boyd notes, the parties can always contract around the application of this rule, but
they must do so unambiguously. This protects subcontractors, who are the most
likely parties to suffer from a misapplication of the rule. In the bidding cases, it
421
seemed as if the subcontractors were being short changed because the general
contractors were not obligated to hire them even if they used their bids. Here,
Justice Boyd recognizes that it may seem as if general contractors are unfairly
bearing all of the risk of non-payment. However, in both cases the court understood
that an equitable allocation of risk between the parties demanded the particular
outcome.
CASE VOCABULARY
QUESTION OF FACT: Questions of fact are classically the province of the jury.
They involve the interpretation of evidence against everyday experience. This is
particularly well-suited to the role of the jury as members the general community.
QUESTION OF LAW: Questions of law are the province of the judge. The judge
rules on the interpretation and application of legal rules and may, if necessary,
determine the outcome of a case as a matter of law.
327
Gibson v. Cranage
(Photographer) v. (Parent)
39 Mich. 49 (1878)
MICHIGAN SUPREME COURT GRANTS COMPLETE DISCRETION TO A

PARTY WITH APPROVAL UNDER A SATISFACTION CLAUSE
INSTANT FACTS A parent refuses to pay for a satisfaction-guaranteed

photograph of his daughter.
BLACK LETTER RULE A contract condition which guarantees the

satisfaction of a party grants that party complete discretion with regard to their
approval over performance.
422
PROCEDURAL BASIS
Appeal from a trial court judgement for the defendant in an action in assumpsit.
FACTS
Gibson (P) offered to have an enlarged photograph made of Cranage’s (D)
deceased daughter. He told Cranage (D) that he would not have to pay for the
enlargement if it was not “perfectly satisfactory to [him] in every particular.” As it
turns out, Cranage (D) was not happy with the finished photograph and refused to
accept it. Gibson (P) sent it back for refinishing and presented it to Cranage (D) a
second time after it returned. Cranage (D) refused to look at the photograph and,
again, refused to accept it. Gibson (P) subsequently brought an action in assumpsit
for payment on the contract. The trial court ruled for Cranage (D). Gibson (P)
appeals.
ISSUE
Is an express condition enforceable which relies solely on the satisfaction of one
party to an agreement?

(Marston) Yes. An agreement to perform a service at the complete discretion and
satisfaction of one party is perfectly enforceable. This may be difficult for an artist
or a photographer to accept since they have a more sophisticated view of their own
work which may be at odds with the person who ordered it. However, the contract
was agreed to by both parties and, as such, it will be enforced. Judgement affirmed.
Analysis:
This is a rare contract case in which the reasonable man standard does not apply
because of the personal nature of the contract. There is nothing by which to judge
Cranage’s (D) satisfaction with a deeply personal item like a portrait of his
deceased daughter. On the other hand, a satisfaction-guaranteed contract that takes
place in a commercial setting might be subject to an implied range of
reasonableness, since there will be objective standards by which to measure the
quality of the goods. Ordinarily, this type of guarantee is referred to as a
satisfaction clause. This kind of agreement can have an enormous impact on the
allocation of risk between the parties by requiring one of them to run the risk of
forfeiture.
328
CASE VOCABULARY
423
ASSUMPSIT: An action for recovery of money owed on a contract. Frequently an
equitable action but also available at law.
FORFEITURE: Forfeiture occurs when one party has performed but their
performance does not meet the satisfaction of the other party. There is no remedy
for this if the refusing party’s decision falls within the scope of the satisfaction
clause.
SATISFACTION CLAUSE: A contract condition which gives one party the right to
judge the acceptability of the other’s performance. This clause may explicitly limit
the discretion of that party. If it does not, it may be interpreted to grant complete
discretion, or require an honest or reasonable refusal of performance depending
upon the circumstances.
329
McKenna v. Vernon
(Builder) v. (Theater Owner)
258 Pa. 18, 101 A. 919 (1917)
PENNSYLVANIA SUPREME COURT IMPLIES WAIVER OF A CONDITION

FROM THE CONDUCT OF THE PARTIES
INSTANT FACTS A movie theater owner refuses to make final payment to the
theater’s builder.
BLACK LETTER RULE Waiver of a contract condition may be inferred from

the conduct of the parties.
PROCEDURAL BASIS
Appeal from a trial court judgment for the plaintiff in a breach of contract action.
424
FACTS
McKenna (P) contracted to build a movie theater for Vernon (D). The contract
called for several installment payments during the course of the work and final
payment within 30 days of completion. In addition, the work was to be supervised
by an architect whose certificate was a required condition on all of the payments.
However, upon completion, Vernon (D) had not paid more than $6000 on an $8750
job. He had made almost all of the installment payments without requiring
McKenna (P) to produce the architect’s certificate. McKenna (P) subsequently sued
for breach of contract. Vernon (D) claimed that the work was defective and,
therefore, payment was not required. The architect, however, had no complaints
about McKenna’s (P) work. The trial court held for McKenna (P). Vernon (D)
appeals.
ISSUE
Can a party waive a contract condition by ignoring it?

(Stewart) Yes. Vernon (D) claims that he was not required to pay McKenna (P)
because McKenna (P) never secured a certificate from the architect. However,
Vernon (D) did not require the builder to produce the certificate for six out of seven
installment payments. As a result, they waived the right to request the certificate for
final payment. In addition, they are estopped from claiming that failure of the
certificate condition relieved them of their contractual obligations.
Analysis:
A party who, by its behavior, waives the obligation that a condition places on the
other party, cannot later complain that the contract is void for failure of that
condition. This concept is referred to as estoppel. Estoppel precludes a party from
making a particular claim due to its own conduct. For instance, once a condition
has been waived, it can only be reinstated if the other party has not relied to its
detriment on the waiver. In this case, the builder presumably continued on with his
work under the assumption that the architect’s certificate was no longer required for
payment. It would be unfair to let Vernon (D) out of the contract, since he induced
McKenna’s (P) reliance by ignoring the conditions for payment.
330
CASE VOCABULARY
ESTOPPEL: Once a party has waived a contract condition, they may not reinstate
425
that condition once the other party has relied to an extent that it would be unfair to
release the waiving party from their obligations.
WAIVER: A party may waive the enforcement of a condition. As above, conduct
alone may be sufficient to constitute waiver. When in doubt, courts will lean
towards enforcing the overall contract at the expense of a condition whose waiver
may be implied.
331
Hicks v. Bush
(Merging Company) v. (Non-Merging Company)
10 N.Y.2d 488, 225 N.Y.S.2d 34, 180 N.E.2d 425 (1962)
NEW YORK COURT OF APPEALS APPLIES THE PAROL EVIDENCE RULE

TO A CONDITION PRECEDENT
INSTANT FACTS The parties to a failed merger agreement dispute the

existence of a parol condition on that agreement.
BLACK LETTER RULE Evidence of an oral condition to a written contract

will be admissible so long as it does not contradict the express terms of the
agreement.
PROCEDURAL BASIS
FACTS
Hicks (P) agreed to a merger with the Clinton G. Bush Company (Bush) (D) [don’t
ask]. Each party was supposed to transfer their current shares to a third holding
426
company. Hicks (P) transferred his shares but the other parties did not. As a result,
the merger never happened. When Hicks (P) sued Bush (D) for specific
performance, Bush (D) claimed that the parties had agreed to a parol condition
which made the contract ineffective until they had raised a certain amount of money
to fund the merger. Hicks (P) denies that this condition ever existed. Despite this,
the trial court found for Bush (D). Hicks appeals.
ISSUE
Can a condition which is agreed to orally be admitted as evidence to question the
existence of a written contract?

(Fuld) Yes. Parol testimony is admissible to prove a condition precedent to the
existence of a contract if the condition does not contradict the express terms of the
contract. The question in this case is whether the condition contradicts the contract.
It does not. In fact, there is no mention in the contract of the need to raise funds to
support the merger. Hicks (P) claims that the condition contradicts a term which
would annul the merger if the new corporation does not accept any of their stock
within 25 days. However, these conditions can coexist without negating each other.
They are simply complementary conditions which bear on the viability of the
merger. The oral condition, in particular, is not the sort of condition which would
be included in a written agreement to which the public has access. Consequently,
the trial court did not err in admitting evidence of the extra condition. Bush (D) was
perfectly justified in not transferring their stock until it was satisfied. Judgement
affirmed.
Analysis:
The normal rules of contract interpretation apply to conditions. Although conditions

are not binding promises, they are interpreted as ordinary promises due to their
potential to vitiate a contract, leaving the parties with heavy losses. This is
especially true with regard to the parol evidence rule. It would be easy for a party
who wanted to get out of a contract to claim that a
332
condition that was agreed to, orally, failed, leaving them without obligations, which
is why Justice Fuld notes that the funding condition on the merger contract is not the
sort that would be put in writing. In a sense, he was testing the condition against
common sense: is this the sort of condition that parties would deliberately leave
out of a written agreement? In this case, it might be. The merging companies would
not want a public document, intended to attract investors, to reflect the potential
427
instability of their merger. Since the condition had some semblance of rationality,
and since it did not contradict the written agreement, it supplemented that
agreement, voiding it when it failed.
CASE VOCABULARY
HOLDING COMPANY: As it sounds, a holding company can be used to hold the
stock of other companies. In this case, the holding company was probably a form of
security for the two merging companies—a neutral entity to hold their stock during
the merger process.
MERGER: As opposed to a takeover, a merger is generally a friendly, negotiated
agreement between two companies to combine their assets. Only one of the merging
companies survives as a legal entity. In addition, mergers require approval by the
board of directors as well as the shareholders.
PAROL EVIDENCE RULE: A longstanding rule of evidence which is found in the
Uniform Commercial Code as well in the Restatement (Second) of Contracts. The
basic rule is that an oral agreement which contradicts the terms of a current written
agreement is not admissible into evidence. If it does not contradict the written
agreement, the oral agreement may be used to supplement the terms of the written
agreement.
333
Kingston v. Preston
(Apprentice) v. (Silk Mercer)
Lofft 194, 2 Doug. 689, 99 Eng.Rep. 437 (King’s Bench 1773)
KING’S BENCH IMPLIES A CONDITION PRECEDENT ON A CONTRACT TO

PROTECT A PARTY FROM THE OTHER’S NONPERFORMANCE
INSTANT FACTS A silk mercer refuses to turn over his business, as promised,
428
to his apprentice.
BLACK LETTER RULE A contract for the exchange of promised

performances may give rise to an implied condition on that exchange, making each
party’s performance dependent on the others.
PROCEDURAL BASIS
Arguments before the King’s Bench, the trial court in this case.
FACTS
Kingston (P) apprenticed himself to Preston (D) a silk mercer (a textile merchant).
They agreed that after a year and three months, Kingston (P) would take over the
business with a partner appointed by Preston (D). Kingston (P) was supposed to
pay for his share of the business in 250£ installments after the business changed
hands. He was required to provide Preston (D) with security for the debt at that
time. However, after a year and three months, Preston (D) refused to turn over the
business. Kingston (P) sued Preston (D) for breach of contract. Preston (D)
defended his actions, claiming that Kingston (P) had not provided him with
sufficient security. A trial ensued.
ISSUE
Can a party to a contract be required to perform despite nonperformance by the
other party?

(Mansfield) Potentially. There are three kinds of covenants: 1) mutual and
independent, 2) conditional and dependent, and 3) mutual conditions. In the first
instance, if a party breaches an independent covenant, the plaintiff can recover
damages regardless of whether he has performed his end of the contract. In the
second instance, if a party causes a condition to fall, the other party is excused from
performance altogether. Finally, if parties agree to mutual conditions, they must
both be prepared to perform at the same time. If one party is prepared to perform
and the other party is not, the prepared party can sue for the other’s breach. In order
to determine which of the above covenants applies to a particular case, the court
must look at the language of the agreement. By looking at the agreement, the court
can determine what the order and status of performance should be in order to best
fulfill its language. In this case, the agreement between the parties was subject to a
dependent condition, as in example two above, which required the apprentice to
produce sufficient security before Preston (D) was required to turn over his
business. Since the security was insufficient, Preston (D) was under no further
429
obligation. Judgement for the Preston (D).
334
Analysis:
Consider Lord Mansfield’s three categories of covenants with regard to the cases
from the first section of this chapter. All of these cases fit under the rubric of
dependent conditions. In fact Lord Mansfield refers to the security agreement in this
case as a condition precedent—a form of dependent condition. The first types of
conditions, mutual and independent conditions, are now discussed with regard to
material or immaterial breaches. If a party’s breach of a promise to perform is
material, the other party is excused from performance. If the breach is immaterial,
then the other party’s performance is not excused. The second type of condition, a
condition dependent, has already been discussed as the implied condition in this
case. The third type of condition, mutual condition, is also referred to as concurrent
condition and is discussed more fully in your casebook. It should also be noted that
Lord Mansfield implied a condition that did not exist in the contract between
Kingston (P) and Preston (D). This is called a constructive condition. In some
cases, courts will subject an agreement to a constructive condition in order to
excuse a party’s performance when the other party fails to perform.
CASE VOCABULARY
CONCURRENT CONDITIONS: Concurrent conditions govern an agreement
between parties which requires that they each be prepared to perform obligations
which are mutually dependent. Performance does not actually need to be
concurrent, but there must at least be the ability to satisfy the obligation when
required.
CONSTRUCTIVE CONDITIONS: Also referred to as constructive conditions of
exchange. If a party fails to perform on a bilateral contract—an exchange of
promised obligations, the court may imply a condition on their exchange in order to
protect the non-breaching party from having to perform.
KING’S BENCH: Until 1875, England’s trial court was called the King’s (or
Queen’s) Bench. This court also handled certain appeals. From the court’s
discussion in this case, it appears that this was a first adjudication of the parties
dispute.
335
Stewart v. Newbury
(Builder) v. (Client)
430
220 N.Y. 379, 115 N.E. 984 (1917)
NEW YORK COURT OF APPEALS REJECTS AN IMPLIED CONDITION OF

REASONABLE PROGRESS PAYMENTS FOR LARGE CONSTRUCTION JOBS
INSTANT FACTS A builder walks off of a construction job after the client
refuses to pay his first installment bill.
BLACK LETTER RULE In the absence of agreement to the contrary, a court

cannot imply a condition to make payments at reasonable intervals rather than upon
completion of the contract.
PROCEDURAL BASIS
Appeal to the state supreme court from an intermediate appellate affirmance of the
trial court’s judgment for the plaintiff in a breach of contract action.
FACTS
Stewart (P), a builder, agreed to do the excavation work for Newbury’s (D)
building. Stewart (P) contends that Newbury (D) agreed, in a subsequent telephone
conversation, to make periodic payments for the work in progress, reserving a
percentage for security. He claims that this is standard construction industry
practice. Newbury (D) denies these payment terms. Instead, he claims that he was
not required to pay for the work until it was completed. Stewart (P) submitted his
first installment bill which Newbury (D) refused to pay. As a result, Stewart (P)
stopped work on the project. A subsequent exchange of phone calls and letters
failed to clear up the parties’ difference of opinion on the payment terms. In fact, the
parties also differed on who was responsible for Stewart’s (P) leaving the job.
Stewart (P) claimed that he was terminated in a letter from Newbury (D) and sued
for breach of contract. Newbury (D) defended on the ground that Stewart (P)
abandoned the project of his own free will. A jury trial resulted in a judgement for
431
Stewart (P) for the unpaid bill, but not for damages for breach of contract. The
judge had instructed the jury that Newbury (D) would be responsible for making
payments at reasonable intervals if the jury found that the parties had not otherwise
agreed to payment terms. The intermediate court of appeals affirmed. Newbury
appeals to this court.
ISSUE
In the absence of any agreement to the contrary, can a contract condition be implied
which requires payments at reasonable intervals?

(Crane) No. The default rule states that a contract must be substantially performed
before payment can be requested. The parties to a contract can circumvent this rule
by agreeing to whatever payment terms they choose. As a result, the trial court
wrongly instructed the jury on this issue. However, this was not the only question in
this case. The jury was also required to determine whether Newbury (D) breached
his contract by refusing to allow Stewart (P) to continue working on the job.
Newbury (D) alleges that the builder’s work was not up to specifications and there
is evidence to support this claim. However, the jury’s findings on this issue are not
clear. They obviously thought Stewart (P) was entitled to damages for the unpaid
336
bill. On the other hand, they did not grant him damages for breach of contract. It
appears that the jury found that Stewart (P) left the job justifiably after he was not
paid. If this is the case, then the jury reached this conclusion in reliance on the
judge’s erroneous instructions. Alternatively, they may have believed that the
parties did have an agreement which was made during the disputed telephone call.
It also appears that the jury found, since Stewart was already off the job, that
Newbury (D) did not breach their contract by then firing him. While these are
reasonable explanations for the jury’s findings, they are not as apparent as they
should be. Given the confusion surrounding the improper jury instructions and the
uncertainty of their findings, this case must be reversed and remanded for further
proceedings.
Analysis:
Consider in each case whether a party has substantially or materially breached its
contractual obligations. If not, the party walking away may turn out to be the
breacher. In this case, it is not clear whether the jury found that Stewart (P) and
Newbury (D) had agreed to payment terms. They might have found that there were
no agreed terms and then applied the default terms. While Stewart (P) did not make
432
out badly on these terms, the new default terms will not be as attractive on remand.
As a result, he should have been more careful when dealing with Newbury (D). For
instance, he could have stayed on the job until the dispute was resolved in order to
protect himself. It should be noted that most contractors now explicitly agree to
terms that include progress payments for large jobs. These agreements should help
circumvent the effects of the rule announced in this case.
337

(General Contractor) v. (Homeowner)
230 N.Y. 239, 129 N.E. 889, 23 A.L.R. 1429 (1921)
NEW YORK COURT OF APPEALS UPHOLDS COMPENSATION DESPITE

PERFORMANCE WHICH DIFFERS FROM THE CONDITIONS OF THE
CONTRACT
INSTANT FACTS A general contractor installed the wrong kind of pipe in a

newly constructed house and refused to tear out the walls in order to remove it.
BLACK LETTER RULE Substantial performance on a contract will out-weigh

trivial variations in performance which might ordinarily cause the failure of a
condition.
PROCEDURAL BASIS
Appeal from an intermediate appeals court reversal and grant of a new trial after a
trial court judgment for the defendant in a breach of contract action.
FACTS
Jacob & Youngs (J&Y) (P) was the general contractor on a home construction job
433
for Kent (D), the homeowner. The parties had an agreement which stated, among
other things, that Kent (D) would make monthly progress payments provided that
J&Y (P) produced an architect’s certificate each month. In addition, any brand
name material listed in the agreement could not be substituted without the
architect’s consent, final decisions regarding construction were to be made by the
architect, and any non-conforming work would have to be torn out and replaced.
Kent (D) also had the right to accept non-conforming work but to be paid the
difference in value by J&Y (P). During the course of construction, Kent (D)
discovered that J&Y (P) had installed pipes in the house that did not conform to the
brand specified in the construction agreement. It was an oversight which escaped
even the attention of the architect. Kent (D) asked J&Y (P) to replace the pipes. In
order to remove them, however, J&Y (P) would have to destroy a great deal of
completed work. They refused. Ultimately, J&Y (P) were denied an architect’s
certificate for final payment and sued Kent (D) to recover. The trial court found for
Kent (D), refusing to allow J&Y (P) to introduce evidence that the installed pipes
were virtually the same in every significant respect as the ones specified in the
agreement. The intermediate court of appeals reversed and granted a new trial.
Kent (D) now appeals.
ISSUE
Can a potentially trivial discrepancy in performance give rise to a forfeiture of the
performer’s right to compensation?

(Cardozo) Yes. However, the court must determine just how trivial the failure of
performance was. If the failure was trivial, then it will not be allowed to void a
condition upon which compensation for substantial performance rests. The
difference between a trivial and a non-trivial failure of performance is similar to
the difference between independent and dependent promises. Independent promises
are not conditions of each other. In other words, the performance of one promise
does not depend on the performance of a return promise. Dependent promises,
however, can never exist without each other. They are, thus, conditions
338
on each other. Finally, some promises are dependent on each other, but would not
be substantially compromised if performance on one of the promises varied to an
insignificant degree. Only a court can determine the degree to which performance
has varied in order to decide whether to grant recovery. The court is guided by
principles of fairness which are not subject to exact measurement. By the same
token, the court will not interpret a deviation in performance so as to frustrate the
434
purpose of the contract. In fact, the parties to a contract are entitled to circumvent
this process by drafting an agreement which makes every aspect of performance
vital to compensation. These parties did not do so, and as a result, the court must
step in. In this case, J&Y (P) was precluded from presenting evidence which would
have shown that the difference in performance was insubstantial. As a result, the
measure of damages should reflect the triviality of this difference. Kent (D) is
entitled to the difference in value between the house with the specified pipe, and
the house as it stands with the unspecified pipe. This difference is admittedly small,
but it reflects the degree of the contractor’s error. This error was not significant
enough to cause the conditions of performance to fail and thus, J&Y (P) is entitled
to compensation for the work done. Judgement affirmed and directed for J&Y (P).
DISSENT
(McLaughlin) This court applies a rule which has no application to this case: the
rule of substantial performance. To put it simply, J&Y (P) did not perform their end
of the contract. For whatever reason, they installed the wrong pipe in the house. In
fact, two-fifths of the pipe was non-conforming. This amounts to 1000 to 1500 feet
of pipe which was of a brand not specified in the contract. This is not a minor
omission, and if this omission is to be excused by the doctrine of substantial
performance, it can only be done so by showing good faith on the part of the
contractor. Unfortunately, good faith is lacking here. It is not important why Kent
(D) selected the pipe that he did. It is enough to know that wrong pipes were
installed. Recovery for J&Y (P) should be denied and a verdict should be directed
for Kent (D).
Analysis:
Justice Cardozo is clearly worried about forfeiture—the result of a failed condition

that denies payment to a party even though it has tendered substantial performance.
In this case, denying the contractor recovery for work done because of a mix-up in
the use of virtually identical pipes seems arbitrary and unfair. Justice McLaughlin
is far more worried about the letter of the contract than about overarching fairness.
He measures J&Y’s (P) mistake in pipe feet and brand names. Compare this case to
the satisfaction clause cases. In those cases, there were times when satisfaction was
measured according to a reasonable person standard. In the same way, Kent’s (D)
desire for a specific brand of pipe is measured against a standard that has
reasonableness written all over it. The difference between Justice Cardozo and
Justice McLaughlin, thus, comes down to a fundamental conflict over the
interpretation of contracts, Justice Cardozo is willing to bring fairness concerns to
bear on the contract while trying to maintain its integrity.
CASE VOCABULARY
435
SUBSTANTIAL PERFORMANCE: A doctrine which permits recovery for
performance which, while not perfect, is substantial. The inquiry into substantiality
is heavily dependent on the facts of the case and subject to the discretion of the
court and the dictates of fairness.
339
Bartus v. Riccardi
(Hearing Aid Seller) v. (Hearing Aid Buyer)
284 N.Y.S.2d 222 (New York City Court 1967)
STRICT CONFORMANCE CAN ONLY BE COMMANDED IF THE

CONTRACT SPECIFICALLY CALLS FOR IT
INSTANT FACTS A hearing aid buyer rejected a different model hearing aid
than he had ordered, even though it was a better version of the old model, and then,
even when the seller offered the older model as a replacement the buyer refused to
accept anything from the seller; the seller sued under the sales contract.
BLACK LETTER RULE Even when the contract period has expired and the
buyer has rejected a nonconforming tender or has revoked an acceptance, the seller
may substitute a conforming tender if he had reasonable grounds to believe that the
his intention to substitute conforming tender.
PROCEDURAL BASIS
Trial court consideration of the plaintiff’s claim.
FACTS
Riccardi (D) signed a contract to purchase a hearing aid from Bartus (P), an
Acousticon franchisee. Riccardi (D) ordered model A-660 per his hearing clinic’s
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advice, but Acousticon sent Model A-665, a newer and improved model. Riccardi
(D) tried out the new hearing aid for the next few days and then returned to the
hearing clinic, where he was informed that his hearing aid was not the model he
had been advised to buy. Riccardi (D) returned the hearing aid to Bartus (P), who
contacted Acousticon about the complaint. Acousticon contacted Riccardi (D)
directly and explained that the A-665 was an improved version of Model A-660,
but it offered him his choice between the two models. Riccardi (D) chose neither.
Bartus (P) then sued Riccardi (D) to obtain the balance due on the contract.
ISSUE
Can the plaintiff, having delivered a product that was not in exact conformity with
the sales contract, recover the balance due in view of the subsequent tender of a
product that met the terms of the agreement?

(Hymes, J.) Yes. Even when the contract period has expired and the buyer has
rejected a nonconforming tender or has revoked an acceptance, the seller may
substitute a conforming tender if he had reasonable grounds to believe that the
his intention to substitute conforming tender. Section 2-508 of the Uniform
Commercial Code permits a seller to cure a nonconforming delivery before the
expiration of the contract time by notifying the buyer of the intention to cure and
making a delivery within the contract period. Subparagraph (2) of that section—the
rule
340
applied in this case—in effect extends the contract period beyond the date set forth
in the agreement unless the buyer requires strict performance, and a specific clause
to that effect is the contract. Here, the plaintiff had reasonable grounds to believe
that a newer model would be acceptable to the defendant buyer, and he acted within
a reasonable time to notify the defendant that a conforming model was available.
Judgment is granted to the plaintiff.
Analysis:
The provision of the Uniform Commercial Code regarding cure by the seller of an
improper tender or delivery requires that the seller provide the buyer with
seasonable notice of its intention to cure. A letter stating generally that the seller
desires to fulfill all of its obligations is not a notice of intent to cure a particular
defect. Because notifying the buyer of an intention to cure is required under the
Code, the seller must allege the giving of notice in its complaint or answer.
437
CASE VOCABULARY
CURE: The seller’s right under the U.C.C. to correct a nonconforming delivery of
goods.
NONCONFORMING GOODS: Goods that fail to meet contractual specifications,
in which case the buyer may reject the tender of the goods or revoke their
acceptance.
341

(Lumber Driver) v. (Lumber Mill)
151 Pa. 534, 25 A. 120 (1892)
PENNSYLVANIA SUPREME COURT PERMITS RECOVERY ON A

SEVERABLE DELIVERY CONTRACT
INSTANT FACTS A lumber driver requests full payment for his work, despite
losing a percentage of his client’s logs.
BLACK LETTER RULE If a contract is severable, as opposed to entire, then

payment may be requested for the measure of performance which was completed.
PROCEDURAL BASIS
Appeal from a trial court directed verdict for the defendant in a breach of contract
action.
FACTS
Gill (P), a lumber driver, had an agreement with Johnstown Lumber Co.
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(Johnstown) (D) to deliver a load of logs and cross-ties to a variety of locations,
Including Johnstown’s (D) mill. The delivery was to be made by river from certain
specified points of departure to specified locations. In addition, Johnstown (D)
promised to pay Gill (P) rates which varied according to the types of logs and the
delivery destinations. Unfortunately, a flood hit while Gill (P) was delivering the
logs and he permitted a large percentage of them to float past Johnstown’s (D) mill.
Undaunted, he sued Johnstown (D) in assumpsit for the money he was owed under
the contract. The trial court directed a verdict for Johnstown (D), holding that the
contract was entire—in other words, not subject to a disaggregation of obligations
and payment that would permit partial recovery. Gill (P) appeals.
ISSUE
Can a contract which is “entire” give rise to a recovery for a party tendering
incomplete performance?

(Heydrick) No. However, the contract in this case is not entire. A contract is entire
if only one payment is made for the completion of performance. It does not matter
whether a single act is promised, or If several distinct acts make up the completed
performance. On the other hand, a contract is severable if it divides payment up
among several distinct acts which constitute performance. The contract is also
severable if it does not specify how payment is to be made for these distinct acts. In
this case, Gill (P) had a variety of responsibilities. He had to deliver logs made of
different woods to different locations. He also had to deliver cross-ties to varying
locations. The contract specifically apportioned payment among the types of wood,
cross-ties, and shipping locations. As a result, the agreement is severable, not
entire. Accordingly, Gill (P) is entitled to payment for the work completed. He is
not, however, entitled to payment for the logs which were lost. Johnstown (D)
promised to pay for all of the lumber which was delivered. They should not have to
pay for lumber which was not delivered. However, since Gill (P) is otherwise
entitled to compensation, the judgement of the trial court is reversed and a venire
facias de novo is ordered.
342
Analysis:
A court’s interpretation of a contract as divisible is much like the determination of

substantial performance in that there is no set rule determining the outcome.
According to the Restatement, courts should determine whether the elements of
performance can be paired up with a promise of payment. For instance, in the
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above case, Johnstown (D) promised to pay one dollar per thousand feet of oak
logs delivered. Gill (P) promised to deliver the logs for that amount. It is easy to
see each pair of promises functioning as an individual mini-agreement within the
contract. In addition, the court must determine whether it is appropriate to treat the
pair of promises as “agreed equivalents.” This means that the promises that were
exchanged are worth the same to the parties regardless of the rest of the contract. If
Johnstown’s (D) oak logs, for instance, were worthless to them if the pine logs
were not delivered, then it seems unfair to make them pay for the delivery of the
oak logs. This item is not severable because Johnstown’s (D) promise to pay for
the delivery is now worth more to Gill (P) than his promise to deliver the
remaining logs—they are no longer agreed equivalents.
CASE VOCABULARY
ASSUMPSIT: An action for the recovery of damages due to a breach of contract.
ENTIRE: A contract is “entire” when a single payment is promised for the
performance of all of its terms.
SEVERABLE: A contract is “severable” when payment is divided among the terms
of the contract. In that event, a party can recover payment for part performance.
This rule is subject to the limitations which are discussed above.
VENIRE FACIAS DE NOVO: An order for a new jury. This order may be given
after some irregularity or impropriety in the original jury’s conduct or verdict. A
court ordering a new jury is, in essence, ordering a new trial.
343
Britton v. Turner
6 N.H. 481 (1834)
NEW HAMPSHIRE SUPREME COURT GRANTS RESTITUTION TO A PARTY

IN BREACH
440
INSTANT FACTS An employee breaks a one-year contract with his employer
after ten months, suing to recover wages for that period.
BLACK LETTER RULE A party may recover in quantum meruit [restitution]

despite being in breach of their contract.
PROCEDURAL BASIS
Appeal from a trial court jury verdict for the plaintiff in an action for assumpsit and
quantum meruit.
FACTS
Britton (P) had an employment contract with Turner (D) for a period of one year.
Turner (D) promised to pay Britton (P) $120 for the year. However, Britton (P)
quit, without reason, after ten months. He then sued Turner (D) in assumpsit, adding
a count of quantum meruit for $100. The $100 was intended to compensate him for
the time that he worked. The trial court instructed the jury that if they accepted all
of the facts as alleged, Britton (P) was entitled to reasonable compensation for his
ten months work. The jury subsequently awarded Britton (P) $95 [minimum wage
must have been a fantasy back then]. Turner (D) appeals.
ISSUE
Can a party recover in quantum meruit for part performance despite being in breach
of contract?

(Parker) Yes. It goes without saying that a party who breaks a contract cannot
recover on the contract itself. Similarly, courts have held that a party who breaches
a contract for labor promised at a specific rate cannot recover for part performance
of that labor. The effects of this rule can be harsh. For instance, a party may be
441
liable for damages to their employer for breaching a contract before performance
begins. By the same token, a party who performs nearly all of their contract, but
falls short of complete performance, may be subject to the same damages in
addition to the loss of their contribution to complete performance. This puts the
performing breacher in a worse position than the non-performing breacher. In this
case, Britton (P) worked for nearly ten months on a one-year contract. The jury
valued this work at $95. If the rule of recovery is applied as above, he would
forfeit that compensation, and the value of his performance, to Tumer (D). In
addition, he might still be liable to Turner (D) for damages for breach of contract.
However, this case should be considered in light of rules which are applied in
other contexts. Specifically, when a party contracts for the construction of a home,
he need not accept the home if it does not conform to his requested specifications. If
he does accept the home, he must pay for the construction, minus an offset for any
defects. Similarly, when a buyer receives and makes use of defective goods, he may
be able to return the unused goods to the seller. Nonetheless, the seller is entitled to
recover the value of the goods which
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the buyer used. The principle of these cases is that a party cannot accept the benefit
of performance on a contract without compensation. This principle can be applied
to the current dispute. An employer receives a benefit every moment of his
employee’s labor. The employer knows this, regardless of whether the contract
calls for periodic compensation, or for compensation at the end of the employee’s
term. The employer also knows that the employee may fail to complete this term.
Despite this, he accepts the benefit of performance on a daily basis and should have
to compensate the employee for this benefit. This result would relieve the unfair
effect of forfeiture, plus the danger of breach of contract damages, which faces an
employee who cannot complete his contract. Consequently, we announce a rule
which covers two types of cases. First, no compensation will be required for part
performance on a special contract [see vocabulary below] which explicitly states
that payment is not due until performance is complete. However, if a party receives
a benefit from performance on an ordinary contract, the court may imply a
provision which grants compensation for that performance. In a sense, part
performance counts as consideration for a new, implied subsidiary agreement for
which compensation may be ordered. This rule does not affect those occasions
when the non-breaching party can refuse the object of performance, like a
defectively built house, and thereby derive no benefit from it. Nor does this rule
affect contracts which are entire, and therefore not subject to an apportionment of
performance and compensation. Employment contracts, on the other hand, are
inherently divisible unless they specifically state that the employee forfeits any
442
right to compensation if he fails to complete his term. Otherwise, in the event of a
breach, the employer should be entitled to the damages resulting from the breach,
minus the value of the benefit he received from part performance. This rule can be
applied without hesitation in this case. Britton (P) worked for a period of time
under a contract which did not include a forfeiture provision as above. As a result,
the trial court correctly instructed the jury that he was entitled to a share of the total
contract price. While Turner (D) raised a defense of breach of contract, he did not
allege any damages. As a result, the judgement of the trial court is affirmed,
notwithstanding Turner’s (D) right to bring a separate suit for breach of contract.
Analysis:
Remember that restitution is a separate cause of action, not a form of recovery on

the contract. A party who is in breach is not entitled to sue on the contract.
However, that does not mean that they surrender all of their rights to compensation.
Restitution, divisibility, and substantial performance provide the primary means by
which the harsh effects of forfeiture can be avoided in the event of a breach of
contract. Justice Parker does an excellent job of surveying the entire landscape of
remedies and bringing them to bear on the dispute between Britton (P) and Turner
(D). He traces a line of cases from substantial performance, through a common law
modification on the perfect tender rule, and ends by distinguishing entire from
divisible employment contracts. In doing so, he wrote a landmark opinion that set
the stage for a reversal of the traditional doctrine, which denied compensation to
parties in breach.
CASE VOCABULARY
QUANTUM MERUIT: Literally, “as much as deserved.” Quantum meruit is the
precursor to the modern cause of action for restitution. It was generally a specific
count which was added to a cause of action in assumpsit [an action for contract
damages]. See RESTITUTION below.
RESTITUTION: Technically, restitution is a separate cause of action in equity
based on the concept of unjust enrichment. The complainant must show that they
conferred a benefit on the other party and that it would be unjust to permit that party
to retain the benefit. If this test can be met, the complainant is entitled to the
reasonable value of the benefit conferred.
SPECIAL CONTRACT: [A special contract is…uh…well…special.] It is a
contract which contains specific terms detailing the obligations of the parties. In
addition, the contract may have an unusual objective which is not easily subject to
judicially implied terms.
345
443
(Contractor) v. (Homeowner)
113 N.E.2d 496 (Ohio App. 1953)
OHIO COURT OF APPEALS GRANTS RECOVERY TO A BUILDER DESPITE

HIS BREACH OF CONTRACT
INSTANT FACTS A homeowner refuses to pay the contractor who has been
working on her house for two months.
BLACK LETTER RULE A court may grant recovery in quantum meruit to a

party, despite their being in breach of contract and without interpreting the contract
as severable.
PROCEDURAL BASIS
Appeal from the plaintiff after a trial court judgment which limited the requested
damages in a breach of contract action.
FACTS
Kirkland (P), a contractor, agreed to make some repairs on a home owned by
Archbold (D). Their contract stated, among other things, that Archbold (D) would
pay Kirkland (P) $1000 after ten days of satisfactory work, $1000 after twenty days
of work, $1000 after thirty days of work, $1000 upon completion of the job, and
$2000 within thirty days of completion. Kirkland (P) worked for two months before
Archbold (D) asked him to stop. During this time, Kirkland (P) had only been paid
$800. His expenses, up to this point, were $2985. He sued Archbold (D) for the
difference in a breach of contract action. The trial court found that Kirkland (P)
himself was in breach of contract by ignoring certain contract specifications for
work that he completed. As a result, the court found that Archbold (D) fired him
444
justifiably. However, since Archbold (D) had already paid Kirkland (P) $800, she
was deemed to have accepted his first ten days work as satisfactory. The trial court
granted Kirkland (P) the $200 difference. Kirkland (P) now appeals.
ISSUE
Can a party who is in breach of contract bring an action to recover for part
performance?
(Skeel) Yes. Traditionally, a plaintiff could not sue on a contract that he had
breached unless he had substantially performed. However, this rule has changed
over time. Beginning with Britton v. Turner [permitting a party to recover in
quantum meruit despite being in breach of their contract], courts began allowing
contractors to recover in quantum meruit for work which bestowed a benefit on the
other party. Recovery was based on the concept of unjust enrichment, and
represented a quasi-contract in which one party promised to pay for a benefit
received from the other. Generally, the plaintiff’s recovery was reduced by the
amount of damages which resulted from the breach of contract. This doctrine is not
the same as substantial performance even though courts use substantial performance
to protect builders against the same result—the forfeiture of work without
compensation after a breach. However, even if a builder has not substantially
performed, there is no justice in forcing him to forfeit compensation for work which
benefited his client. In this case, Kirkland (P) never claimed that
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he had substantially performed. He only sought compensation for the work that he
completed. Unfortunately, the trial court interpreted the contract as severable
[divisible], denying Kirkland (P) compensation for work which was done after the
first ten day period. A court should deny compensation only when the owner
received no benefit from the work, or the work was entirely nonconforming to the
contract, or the builder left the work unfinished. Finally, recovery should not be
granted to a contractor who willfully, as opposed to negligently, abandons his
contract. In this case, Kirkland’s (P) claim does not violate any of these caveats. He
was fully entitled to compensation for the work that he completed, minus any
damages which resulted from his breach of contract. As a result, the judgement of
the trial court should be reversed and the cause remanded for further proceedings.
Analysis:
Quantum meruit was generally added as a count to a claim in assumpsit essentially

a breach of contract action. Currently, however, restitution is a more common off-
445
the-contract remedy for these sorts of cases. A party who willfully breaches his
contract is frequently not entitled to recover in restitution, but a party who
intentionally breaches a contract does not necessarily do so “willfully.” In the
context of breaches, the word “willful” connotes a more malevolent, craven reason
for breaching the contract. For Instance, a party who breached a contract because it
was financially advantageous for it to do so might be seen as having done so
willfully. Considering that this language is fairly slippery, it is understandable that
the Restatement (Second) of Contracts abandoned the concept of willfulness as an
absolute bar to recovery.
CASE VOCABULARY
QUASI-CONTRACT: A quasi-contract is no different from an implied contract. In
the context above, a court may find an implied or quasi-contract to pay for services
which benefited one of the parties to an existing agreement.
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(Sign Company) v. (Dry Cleaner)
347 Mich. 630, 81 N.W.2d 352 (1957)
MICHIGAN SUPREME COURT HOLDS REPUDIATING PARTY LIABLE FOR

CONTRACT WHICH WAS NOT MATERIALLY BREACHED BY THE OTHER
PARTY
INSTANT FACTS A dry cleaner stops making rental payments on his neon sign
when the sign company refuses to clean it according to routine maintenance.
BLACK LETTER RULE A party may discontinue performance on a contract

which has been materially breached by the other party.
446
PROCEDURAL BASIS
Appeal from a trial court judgement for the plaintiff in an action for assumpsit.
FACTS
Walker & Co. (Walker) (P) agreed to provide Harrison (D) with a neon sign for his
dry cleaning business. Walker (P) rented the sign to Harrison (D) subject to a
number of terms contained in the lease. These included a rental price of $148.50
per month, a term of 36 months, and a maintenance clause which required Walker
(P) to clean and repaint the sign whenever necessary to keep it in “first class
advertising condition.” The sign was installed in July. Soon after, it began to fall
into disrepair. Someone had thrown a tomato at it, and it was also covered with
graffiti, cobwebs, and rust. Harrison (D) complained again and again but Walker
(P) never serviced the sign. Consequently, Harrison (D) only made one rental
payment. Finally, in October, Harrison (D) sent Walker (P) a telegram, renouncing
their contract and any further obligations to pay rent for the sign. Walker (P)
responded with a letter, drawing Harrison’s (D) attention to a Breach of Agreement
clause in the contract. This clause stated that, in the event of the lessee’s failure to
pay rent, Walker (P) could remove the sign and demand the remainder of the rental
payments. Harrison (D) never responded, so Walker (P) sued in assumpsit for the
entire balance due under the contract, $5197.5. Harrison (D) claimed that Walker
(P) had already materially breached their agreement by the time he stopped paying
rent. He claims that his repudiation was justifiable under the circumstances.
Nonetheless, the trial court found for Walker (P). Harrison (D) appeals.
ISSUE
Can a party cease performance on a contract once the other party has materially
breached the agreement?

(Smith) Yes. A material breach by one party entitles the other party to discontinue
performance on the contract. However, a party who responds to a material breach
in this manner does so at his own peril. It is difficult to determine the point at which
a breach becomes material. The Restatement [First] of Contracts provides some
criteria which are helpful to this end. A court engaged in this analysis should
examine the extent to which the non-breaching party will obtain the substantial
benefit from the contract which they reasonably anticipated, the extent to which
damages can adequately compensate the non-breacher, the extent to which the
breacher has
348
447
performed or prepared to perform, the hardship on the breacher of terminating the
contract; the willful, negligent, or innocent behavior of the breacher; and the
likelihood that the breacher will complete performance. Taking these elements
together, it is clear that Walker (P) did not materially breach their obligations under
the lease. First, Harrison (D) is unclear on the number of times he actually
complained to Walker (P). In addition, it appears that some of the problems with
the sign, notably the cobwebs and rust, were easily within Harrison’s (D) reach. He
could have taken care of those problems himself. The rust, itself, could not have
been very severe since the sign had only recently been installed. Finally, Walker
(P) repaired the sign within a week of Harrison’s (D) telegram. Given Harrison’s
(D) complaint, which can be reduced to a stain from a thrown tomato, it cannot
fairly be said that Walker (P) was guilty of a material breach in not repairing the
sign sooner. The trial court did not err in its analysis. As a result, their judgment
will be affirmed.
Analysis:
Many people think that any deviation from the terms of an agreement gives them the
right to stop paying the landlord, the plumber, or any other party with whom they
have a disagreement. Since this is not the case, it is one of the most dangerous
misconceptions. While this case makes it clear that a material breach is difficult to
quantify, it is always necessary to analyze a breach according to the criteria that the
court outlines. At the very least, this analysis will provide some indication of the
breach’s magnitude and suggest an outcome in one party’s favor.
CASE VOCABULARY
MATERIAL BREACH: If one party to a contract materially (or substantially, or
totally) breaches the contract, the other party may be excused from performance. In
this event, the non-breaching party may still sue on the contract to recover damages
due to lack of performance. In order to determine whether a breach is material, a
court is likely to consider the elements outlined by Justice Smith, above.
349

(General Contractor) v. (Subcontractor)
223 Md. 305, 164 A.2d 451 (1960)
MARYLAND COURT OF APPEALS SORTS OUT COMPLICATED BREACH

AND REPUDIATION CONSTRUCTION DISPUTE
448
INSTANT FACTS A general contractor stops paying his subcontractor after the
subcontractor refuses to pay for damage that an employee did at the job site.
BLACK LETTER RULE A party who materially breaches a contract may not
respond to non-breacher’s cessation of performance by repudiating the contract.
PROCEDURAL BASIS
Appeal from a trial court judgement on a counterclaim, in favor of the defendant in
a breach of contract action.
FACTS
K & G Construction (K&G) (P) hired Harris and Brooks (Harris) (D) as the
excavation and earth-moving subcontractors on a construction job. The agreement
required K&G (P) to make monthly progress payments to Harris (D) on the
submission of requisitions which were due by the 25th of each month. In addition,
Harris (D) promised to perform his work in a “workmanlike manner, and in
accordance with the best practices.” Finally, Harris (D) was required to carry
liability insurance for any property damage which occurred on the job. On August
9th, one of Harris’s (D) bulldozer drivers inadvertently demolished a wall and
some other portions of a house under construction. Despite the insurance
provisions, Harris (D) refused to pay for the damage. He submitted a requisition
the following day for work that was done in July. K&G (P) refused to pay the bill
since Harris (D) refused to pay for the bulldozer damage. Harris (D) continued on
the job until September 12th. At this point, he stopped work because of the unpaid
requisition. Up until this time, K&G (P) was satisfied with Harris’s (D) work with
the exception of the bulldozer accident. Nevertheless, after Harris (D) quit, K&G
(P) hired another subcontractor to complete the excavation work for an extra $450.
They subsequently sued Harris (D) for breach of contract and for negligence in the
bulldozer accident. Harris (D) counterclaimed for the payment due on their
449
excavation, and for lost profits associated with not being permitted to finish the job.
A jury found in K&G’s (P) favor on the negligence claim. The judge found in
Harris’s (D) favor on the breach of contract claim. K&G (P) appeals this ruling.
ISSUE
Can a party to a contract suspend performance if the other party materially breaches
the contract?
(Prescott) Yes. Ordinarily, contracts give rise to two types of promises:
Independent and mutually dependent. Independent promises are exchanged for
nothing more than a return promise. They are not exchanged for immediate
performance. Mutually dependent promises, on the other hand, are exchanged only
on the condition of performance by the other party. These promises may be
precedent, subsequent, or concurrent. In other words, either a party must
350
perform before the other party will be bound, after the other party becomes bound,
or the parties must perform simultaneously. Courts used to presume that contract
promises were independent. However, this trend was reversed when Lord
Mansfield developed the concept of constructive conditions in Kingston v. Preston
[a contract for the exchange of promised performances may give rise to an implied
condition on that exchange, making each party’s performance dependent on the
other’s]. Now, contract promises are presumed to be mutually dependent. This does
not leave courts free to ignore the intentions of the parties or the good sense of the
case, however. In this case, for instance, mutually dependent conditions could work
to K&G’s (P) disadvantage as they try to cope with the poor workmanship of their
subcontractor. K&G (P) would be required to pay for the subcontractor’s work, in
order not to breach the contract, before suing for the damage done. Instead, we find
that Harris’s (D) failure to correct the damage done by the bulldozer to be a
material breach of the construction contract. Harris (D) agreed to perform his work
in a workmanlike manner, in accordance with the best practices. Yet, his negligence
led to property damage which was double the value of their final requisition. This
clearly amounted to a material breach. The law is settled that if a subcontractor
fails to tender substantial performance [another way of describing material breach],
the general contractor is entitled to withhold their progress payments. If the general
contractor is justified in withholding payment, then a subcontractor’s subsequent
refusal to work constitutes a wrongful repudiation of the contract. On the other
hand, the general contractor may keep the subcontractor on the job and treat the
failure of performance as a partial breach. This is what K&G (P) did by keeping
450
Harris (D) on the job despite withholding their payment. However, Harris (D)
breached their contract a second time by walking off the job. This breach led to
$450 in damages for which K&G (P) is entitled to repayment. Consequently, the
judgement of the trial court is reversed and entered in favor of K&G (P).
Analysis:
Judge Prescott appears to see the doctrines of mutually dependent promises and
material breach at odds with each other. This need not be the case. Using the
doctrine of mutually dependent promises could have led Judge Prescott to the same
conclusion—i.e., that Harris’s (D) lack of workmanship relieved K&G’s (P)
obligation to pay him. The lack of workmanship could either be phrased as the
failure of a constructive condition on payment or a material breach of the contract.
Either way, these doctrines need not be seen as competing, but rather
complementary solutions to a difficult problem of mutual performance.
351

(Rail Buyer) v. (Rail Supplier)
272 Pa. 172, 116 A. 150 (1922)
PENNSYLVANIA SUPREME COURT REJECTS A BREACHER’S CLAIM THAT

THE NON-BREACHER INTERFERED WITH HIS PERFORMANCE
INSTANT FACTS A rail supplier cannot find enough rails to satisfy a contract
because his buyer has purchased a significant portion of the available rails.
BLACK LETTER RULE Performance on a contract may be excused if one

party intentionally makes the other party’s performance impossible.
451
PROCEDURAL BASIS
FACTS
Wilkoff Co. (Wilkoff) (D) contracted to supply Iron Trade Products Co. (Iron
Trade) (P) with 2600 tons of relaying rails at $41 per ton. While Wilkoff was trying
to amass the necessary rails, however, Iron Trade (P) was also buying rails on the
open market. In fact, Iron Trade’s (P) rail purchases were so large—and from the
same supplier with which Wilkoff (D) was dealing—that the price rose to a point
where Wilkoff (D) could no longer afford them. Iron Trade (P) did not know that
rail supplies were limited, nor did they intend to interfere with Wilkoff’s (D)
ability to buy rails. In any event, Wilkoff (D) was unable to deliver any rails to Iron
Trade (P) in the time allotted. Iron Trade (P) was then forced to buy the rails from
other suppliers at the current market price of roughly $50 per ton. They sued
Wilkoff (D) for breach of contract, requesting damages for the difference in price
which they were forced to pay. The trial court ruled in favor of Iron Trade (P).
Wilkoff (D) appeals.
ISSUE
Is a party excused from performance on a contract if the other party interferes with
its performance?

(Walling) Yes. However, a party cannot be excused from a contract simply because
the other party’s interference made performance more difficult. Performance must
actually be made impossible before its failure can be excused. The true facts of this
case reveal that Wilkoff (D) was capable of buying the necessary rails at all times.
If nothing else, Iron Trade’s (P) ability to buy up large amounts of rails, including
the rails that Wilkoff (D) failed to provide, indicates that rails were readily
available. In addition, Iron Trade (P) did not know that they were interfering with
Wilkoff’s (D) ability to buy rails. More importantly, they never intended to make it
difficult for him to do so. As a matter of fact, the negotiator with whom both parties
were dealing offered Wilkoff (D) a better price than he gave Iron Trade (P).
Wilkoff (D) cannot claim, under these circumstances, that it was truly impossible
for him to buy enough rails to meet his obligations. However, Wilkoff (D) also
claims that he should not be held liable because Iron Trade (P) made a deal to sell
Wilkoff’s (D) rails even before the parties made their contract. Even if this were
true, it represents a transaction which is distinct from the contract between Wilkoff
(D) and
452
352
Iron Trade (P). As a result, it will not be considered in this proceeding. Since there
is no excuse for Wilkoff’s (D) failure to provide Iron Trade (P) with the necessary
rails, the judgement of the trial court is affirmed.
Analysis:
It can be difficult to determine whether one party has sufficiently interfered with the
other party’s ability to perform such that performance should be excused. The
inquiry is heavily dependent on the facts of the case, and subject to the court’s
interpretation of those facts. One way of looking at a party’s interference is to
consider whether the other party would have agreed to that sort of behavior in the
contract. For instance, would Wilkoff (D) have agreed to allow Iron Trade (P) to
continue looking for rails while Wilkoff (D) was trying to satisfy its order? Again,
the answer to this question depends upon the facts of the case, the circumstances
surrounding the transaction, and the relationship of the parties. It is important to this
case that Iron Trade (P) did not intend to interfere with Wilkoff’s (D) ability to
fulfill his obligations. If Wilkoff (D) could have demonstrated malice on Iron
Trade’s (P) part, he might have been more successful in being excused from
performance.
CASE VOCABULARY
MALICE: You may recall, if you have had Criminal Law, that malice does not mean
ill will. The term “malice” usually represents a party’s intent to cause a predicted
result.
353

(Subcontractor) v. (General Contractor)
354 Mass. 62, 234 N.E.2d 888 (1968)
MASSACHUSETTS SUPREME COURT PERMITS A PARTY TO MAKE

ARGUMENTS AT TRIAL WHICH DIFFER FROM THOSE ADVANCED
DURING THE ORIGINAL DISPUTE
453
INSTANT FACTS A general contractor fires his roofing subcontractor on
narrower grounds than he alleges in court.
BLACK LETTER RULE A party who terminates an agreement is not restricted

at trial to the claims made at the time of termination unless the other party has relied
on the earlier claims to his detriment.
PROCEDURAL BASIS
Appeal from a trial court jury verdict in favor of New England as plaintiff and
defendant in two different actions joined for trial.
FACTS
Loranger (P), a general contractor, hired New England Structures (New England)
(R) as the roofing subcontractor on a construction job. Their agreement stated that
New England (R) was required, among other things, to provide enough skilled
workmen to complete the job according to the pace set by Loranger (P). Loranger
(P) was entitled to fire New England (R) with five days written notice if they failed
to live up the agreement. In fact, Loranger (P) sent New England (R) a notice of
termination after they had been on the job for barely a month. Loranger (P) stated in
the notice that New England (R) consistently refused or failed to provide enough
skilled workman to maintain satisfactory progress. New England (R) sent back a
telegram, claiming that Loranger (P) had been slow in providing approved
drawings from which New England (R) could do their work. Despite this, Loranger
(P) hired another subcontractor to complete the job. They then sued New England
(R) for breach of contract, claiming damages for the payments made to the new
subcontractor. New England (R) in turn, sued Loranger (P) for breach of contract
resulting from their termination. [??This case arose from two distinct actions. In
one action, Loranger sued New England. In another, New England sued Loranger.
Since each party is a plaintiff and a defendant, they will be referred to as
454
(P)etitioner and (R)espondent for the purposes of this brief.] The two actions were
joined for consideration by the trial court. A jury found for New England (R) in
both of the predicate actions. Loranger (P) does not challenge the result in New
England’s (R) claim for breach of contract. The jury found that Loranger (P)
violated the provisions of the termination clause by preventing New England’s (R)
welders from working for five days after they received the notice of termination.
However, Loranger (P) does challenge the judge’s instructions regarding his claim
against New England for breach of contract. At trial, the parties disputed several
defects in New England’s (R) performance apart from the failure to provide
sufficient workman. Nevertheless, the judge told the jury that Loranger (P) could
not argue that he fired New England (R) for reasons other than those stated in the
notice of termination. The jury was permitted to consider only the evidence which
was relevant to these reasons. Loranger (P) argues that this instruction was
improper. He appeals the jury’s verdict on this issue.
354
ISSUE
Can a party who terminates a contract justify the termination at trial on grounds
other than those given to the employee at the time of termination?

(Cutter) Yes. The trial court relied on precedent which states that a party cannot
advance arguments during litigation which were not made at the time of the dispute.
However, the greater weight of precedent requires this result only when the other
party has relied on the earlier representations. This is especially true if the
terminating party explicitly reserves their right to raise other grounds for
termination at a later date. As long as the terminating party does not act dishonestly
and the other party is not misled, then there is no estoppel on future arguments. In
this case, the judge should not have precluded Loranger (P) from raising other
grounds for New England’s (R) termination. New England (R) was similarly
entitled to defeat this approach by presenting evidence that they relied on the
original notice to their detriment. The jury should have determined both of these
issues. Since this case will be remanded for a new trial, we should address one
other point. The termination notice in the parties’ agreement does not appear to give
New England (R) a right to cure the defects in performance during the five day
termination period. As a result, they cannot argue that they relied on the complaints
in the termination notice by attempting to correct the specific problems which were
brought to their attention. Judgment reversed and new trial ordered.
Analysis:
455
Generally, a party is not estopped from raising a claim or defense unless a prior act
on its part induces reliance in another party. This is where estoppel gains its moral
force. A party should not be allowed to continually change position when its
behavior directly affects that of another party. However, without reliance, there is
no reason to enforce this rule. In this case, New England (R) did not place any
weight on the allegations in the notice of termination. Consider how the parties
might have drafted their agreement to avoid the difficulties that landed them in
court.
355
(Courier) v. (Prospective Employer)
2 E. & B. 678, 118 Eng. Rep. 922 (Queen’s Bench 1853)
QUEEN’S BENCH EQUATES ANTICIPATORY REPUDIATION WITH A

BREACH OF CONTRACT
INSTANT FACTS A prospective employer cancels a contract to hire a courier

before their contract was due to be performed.
BLACK LETTER RULE A party who announces its intention to breach a

contract releases the other party from any obligations under the contract.
PROCEDURAL BASIS
Appeal from a trial court jury verdict for the plaintiff in an action for assumpsit.
FACTS
Hochster (P) agreed to act as a courier for De La Tour (D) during a three month trip
to Europe which was to begin on June 1st, 1852. The agreement required Hochster
456
(P) to be prepared to leave on the date specified. In addition, De La Tour (D)
promised to pay Hochster (P) £10 per month while they traveled the continent.
Hochster (P) remained ready to perform up until the agreed date of departure.
However, De La Tour (D) cancelled the agreement before that date arrived.
Hochster (P) subsequently sued De La Tour (D) in assumpsit [breach of contract].
De La Tour (D) disputed the terms of the contract. In addition, he argued that the
contract could not actually be breached before the time for performance on June
1st. The jury found for Hochster (P). De La Tour (D) appeals.
ISSUE
Can a contract be breached before the time for performance arrives?

(Lord Campbell) Yes. The question in this case is whether Hochster (P) can
maintain an action for damages due to the breach of a contract for which
performance was not yet due. De La Tour (D) argues that Hochster (P) cannot sue
until the date for performance passes. Until then, Hochster (P) must remain ready
and willing to perform on the contract. However, this is not the law. Actions can be
brought in many other circumstances where contracts are breached, although
performance was due at a future date. A party can face liability for breaching a
marriage contract before the wedding takes place, a party can be sued for breaking
a prospective lease agreement, and a party can be sued for selling goods which he
promised to deliver to another buyer at a later date. There is a reasonable
explanation that binds these examples. When two parties agree to a contract that
will not be performed until some future date, they impliedly promise to avoid
actions which would be inconsistent with their agreement. Ordinarily, a party
breaches this promise, as above, by some affirmative act which makes it
impossible for them to perform the contract. However, it would be unreasonable to
allow a party’s words to carry less force than their actions. This approach would,
as De La Tour (D) suggests, require Hochster (P) to wait until June 1st in order to
find out whether De La Tour (D) actually intends to breach the contract. This is
insupportably unfair. Hochster (P) would be
356
required to forego other employment and remain ready to act on a contract which is
likely to be breached. Under this analysis, Hochster (P) would be precluded from
mitigating the damages which are certainly approaching. Instead, we hold that De
La Tour’s (D) repudiation releases Hochster (P) from his obligations as surely as a
breach of contract. We further hold that a party in Hochster’s (P) position may sue
either at the time of repudiation, or at the time for performance called for in the
457
contract. De La Tour (D) argues that it would be impossible for the jury to
determine the appropriate measure of damages if Hochster (P) were allowed to sue
before June 1st. However, it would be just as difficult for the jury to determine the
damages if Hochster (P) waited until September 1st, or if he sued immediately. In
either event, the jury may consider the present and future circumstances which will
exacerbate or mitigate Hochster’s (P) damages. Since there is no reason which runs
counter to our holding, we affirm the jury verdict and judgement of the trial court in
Hochster’s (P) favor.
Analysis:
Lord Campbell holds that Hochster (P) is entitled to bring his suit immediately
because he would otherwise remain uncertain as to whether to take another job
while waiting for De La Tour (D) to actively breach the contract. This is not a
necessary result, however. Even if De La Tour’s (D) repudiation released Hochster
(P) from his contractual obligations, the suit itself serves no purpose during the
waiting period. Critics argue that an early suit only compounds the difficulty of
determining damages and raises an unanswerable philosophical question about the
nature of anticipatory statements about future acts. On the other hand, supporters of
anticipatory repudiation doctrine rely on the notion that parties to a contract
impliedly promise not to do anything in opposition to future performance.
Regardless of the difficulties with either side’s argument, anticipatory repudiation
is now accepted doctrine in most jurisdictions.
CASE VOCABULARY
ANTICIPATORY REPUDIATION: A party’s definite and unequivocal
announcement of an intended breach is equal to an actual breach. This doctrine
encourages mitigation in the face of an intended breach of contract. The only time a
party cannot sue for anticipatory repudiation is when they have fully performed. In
this event, the opportunity to mitigate damages has passed and the party must wait
for an actual breach in order to bring an action for damages.
357

(Prospective Buyer) v. (Stockholder)
395 Mass. 199, 479 N.E.2d 168 (1985)
MASSACHUSETTS SUPREME COURT REJECTS REPUDIATION CLAIM BY

NON-BREACHER WHO WAS, HIMSELF, INCAPABLE OF PERFORMANCE
458
INSTANT FACTS A stockholder violated a right of first refusal granted to a
prospective buyer by selling their stock to a third party.
BLACK LETTER RULE A contract party cannot recover damages for

repudiation if they were unable to perform their own obligations under the contract.
PROCEDURAL BASIS
Appeal from a trial court jury verdict for the plaintiff in a breach of contract action.
FACTS
Hancock Bank & Trust Co. (Hancock) (D) held all of the stock in a corporation
which, in turn, owned an apartment building. Hancock (D) granted a right of first
refusal on this stock to Kanavos (P). This meant that if Hancock (D) offered to sell
the stock to a third party, that Kanavos (P) had a right to purchase the stock first.
However, he was obligated to pay the price at which the stock was offered to the
third party. Hancock (D) also promised Kanavos (P) $40,000 if he would surrender
his option. As it turns out, Hancock (D) sold the stock to a third party without
Kanavos’ (P) knowledge. Kanavos (P) then sued Hancock (D) for breach of
contract. He requested damages equaling the $40,000 surrender payment plus the
lost profit from the failed stock transaction. The lost profit was calculated by
subtracting the stock price and the remaining mortgage payments from the actual
value of the apartment building. This amount, plus the $40,000, was awarded to
Kanavos’ (P) by the jury. Hancock (D) argued that Kanavos (P) could not have
afforded to purchase the stock and thus, was not entitled to damages for the failed
transaction. The trial court overruled Hancock’s (D) objection, stating that
Kanavos’ (P) ability to pay for the stock was immaterial.
ISSUE
Can the complaining party to a contract repudiation recover damages despite being
459
unable to perform on the contract regardless of the repudiation?
(Wilkins) No. The following propositions are settled law. The first party to an
agreement containing concurrent obligations cannot place the second party in
default unless he, the first party, is prepared to perform on the contract. He can also
place the second party in default by showing that the second party substantially
prevented his performance. In this case, the contract between Hancock (D) and
Kanavos (P) was a bilateral contract with concurrent obligations. Hancock (D)
promised to notify Kanavos (P) of an impending sale and to deliver the stock to
Kanavos (P) if he so desired. Kanavos (P) agreed to pay for the stock if he
exercised his option to purchase it. Kanavos (P) did not have to demonstrate his
ability to pay for the stock at the time since Hancock (D) repudiated their agreement
without his knowledge. However, Kanavos’ (P) inability to complete the
transaction is material, as above, to his right to recover
358
damages. Kanavos (P) relies on case law which states that a real estate purchaser
may recover damages for breach of contract, under circumstances similar to this
case, regardless of their ability to carry out their end of the contract. However, this
approach is no longer taken by the courts, the Restatement (Second) of Contracts,
the UCC or the relevant treatises. This does not end our inquiry, however. The
question remains as to which party bears the burden of proof on Kanavos’ (P)
ability to complete the stock purchase. The law is not settled in cases of this type.
However, it is our conclusion that Kanavos (P) should bear the burden of proof on
this issue because he is better informed regarding his financial state than Hancock
(D). This may seem unfair considering that Hancock (D) was responsible for
repudiating the contract between the parties. However, this is not a sufficient
reason to require that they disprove a fact which is part of Kanavos’ (P) case. That
said, Kanavos (P) presented evidence from which the jury could have determined
his ability to complete the transaction. While he was experiencing some difficulty
at the time of the sale, he may have been able to raise the necessary financing
through other parties. In addition, he argues that he could have made the necessary
arrangements if Hancock (D) had given him notice of the transaction. With that in
mind, the trial court erred in overruling Hancock’s (D) objection. The only issue
for retrial is whether Kanavos (P) would have been financially able to exercise his
option if he had received sufficient notice of the pending sale from Hancock (D).
Case is remanded for a determination on this issue.
Analysis:
460
In a sense, the court here implied a condition to the option contract that required
Kanavos (P) to demonstrate his financial ability to perform. Otherwise, Hancock
(D) is released from their obligation to pay damages. This seems reasonable,
especially if you were to change the facts of the case slightly. Suppose Hancock (D)
warned Kanavos (P) of the impending sale. In order to exercise his option he
would have to fulfill his promise to meet the bank’s asking price. If he could not do
so, his option would lapse and Hancock (D) would be released from any further
obligations. Kanavos (P) could not claim damages on a contract for which the
condition would have failed regardless of Hancock’s (D) behavior. The second
part of the court’s opinion deals with the burden of proof on the issue presented.
The party who has the best information on a particular fact frequently bears the
burden of proof associated with that fact. This is particularly relevant in this case,
where the determination of that fact is a prerequisite to Kanavos’ (P) ability to
recover damages for Hancock’s (D) repudiation.
CASE VOCABULARY
RIGHT OF FIRST REFUSAL: As it sounds, a right of first refusal grants the holder
an option which is superior to any other buyer. Once an offer is made to sell the
relevant property, the holder can purchase the property ahead of any other
prospective buyer, as long as he can meet the asking price of the seller.
359

(Polystyrene Supplier) v. (Buyer)
736 F.2d 1064 (5th Cir. 1984)
COURT OF APPEALS ANNOUNCES THE APPROPRIATE MEASURE OF A

BUYER’S DAMAGES RESULTING FROM A SELLER’S ANTICIPATORY
REPUDIATION
461
INSTANT FACTS A polystyrene supplier is taken to court when they fall to
meet their obligations to their buyer.
BLACK LETTER RULE A buyer’s damages for anticipatory repudiation are

measured by the difference between the contract price and the market price at a
commercially reasonable time after the repudiation.
PROCEDURAL BASIS
Appeal from a district court valuation of damages resulting from a jury verdict for
the plaintiff in a breach of contract action.
FACTS
Cosden Oil & Chemical Company (Cosden) (P) had a contract to supply Karl O.
Helm Aktiengesellschaft [gesundheit] (Helm) (D) with two different grades of
polystyrene. Helm (D) ordered a large amount of the product in response to an
impending shortage due to political problems in Iran, a major petroleum producer.
The bulk of Helm’s (D) order was high impact polystyrene. They also ordered a
small amount of less expensive general purpose polystyrene. In addition, Helm (D)
had four options on future purchases, represented by four confirmation numbers
from 04 through 07. Numbers 04 and 06 designated the high impact polystyrene.
Cosden (P) began delivery on contract 04 in January of 1979. Shortly thereafter,
they began experiencing difficulties which forced them to cancel delivery on
contracts 05, 06, and 07. One of Cosden’s (P) plants had to shut down after the
Illinois River froze, suspending barge traffic to the plant. Another plant was shut
down after a defect was discovered in its production machinery. Cosden (P) made
one more delivery on contract 04 and was soon forced to cancel the remainder of
that contract as well. To make matters worse, Helm (D) never paid for any of the
polystyrene that they received. As a result, Cosden (P) sued them for breach of
contract. Helm (D) counterclaimed, alleging that Cosden (P) failed to fulfill their
end of the contract. The jury sided with Helm (D), finding that Cosden (P)
anticipatorily repudiated orders 05 through 07. In addition, they found that Cosden
(P) cancelled order 04 before Helm (D) repudiated by nonpayment. The judge then
fixed the damages as the difference between the contract price of the polystyrene
and the market price at a commercially reasonable time after repudiation. He then
permitted Cosden (P) to deduct the amount they were owed for deliveries under
contract 04. Both parties appeal the judge’s determination of damages.
ISSUE
Should the valuation of damages under a repudiated sales contract be made at a
commercially reasonable time after repudiation?
462
360

(Reavley) Yes. Texas adopted the Uniform Commercial Code as Title 1 of their
Business and Commerce Code. All further references to “the Code” refer to the
Texas code. According to section 2.713, a buyer is entitled to recover damages for
a seller’s breach as measured by the difference between the contract price and the
market price at the time the buyer learned of the breach. The buyer is also entitled
to any incidental or consequential damages. This measure is easily applied when
the breach takes place at or after the time for performance. However, courts have
disagreed over when to measure the damages after anticipatory repudiation. In that
event, courts have interpreted “the time the buyer learned of the breach” to mean 1)
when the buyer learns of the repudiation, 2) when the buyer learns of the
repudiation plus a reasonable commercial time, or 3) when performance is due
under the contract. Code section 2.610 on anticipatory repudiation, on the other
hand, permits buyers to wait a commercially reasonable time before suing for
breach. They cannot recover additional damages incurred after that point.
Consequently, this Code section marks the outer boundaries of a buyer’s recovery
at a commercially reasonable time after learning of the repudiation. Any
interpretation of section 2.713 which limited this range of recovery would be at
odds with the buyer’s rights under 2.610. Both parties rely on these rights to guide
their behavior in the event of a breach. It may be more profitable for a seller to
breach the contract and pay damages than to continue performance. This cannot be
done if the seller is unsure of how the buyer’s damages will be measured.
Similarly, the buyer needs time to determine whether to cover [see vocabulary
below]. If the buyer chooses not to cover, the court will still determine damages by
the point at which the buyer could have covered. Our conclusions are further
supported by the courts of appeals for the 3rd and 10th circuits and the Code’s
reliance on commercial reasonableness in a variety of contexts. As a result, we
uphold the district court’s determination of damages at a commercially reasonable
time after Helm (D) learned of Cosden’s (P) breach. Nevertheless, Cosden (P)
challenges the valuation of damages, arguing that Helm (D) attempted to cover after
Cosden (P) breached and that the price that Helm (D) paid for polystyrene should
mark the ceiling for their damages. However, the jury found that Helm’s (D)
purchases during this period did not count as cover. As a result, we cannot follow
Cosden’s (P) suggestion. We affirm the trial court’s determination as to when to
measure the damages, but remand for a recalculation based on other issues [Cosden
(P) was not entitled, as the jury found, to a set-off for impracticability because they
failed to meet the demands of the doctrine]
Analysis:
463
A buyer’s remedies for a seller’s breach are codified in UCC § 2–712 through § 2–
715. The Texas code does not differ markedly from the UCC. You can tell from
looking at the Texas code that the rights of the buyer with regard to recovery and
cover closely resemble the expectation measure of damages. Under the expectation
measure, buyers are entitled to damages that place them in the position they would
have occupied if the contract had been performed as promised. Similarly, a buyer is
entitled to damages that reflect the expected price of the goods that he sought to
purchase. This purchase price fluctuates, however, with the market. In addition, this
measure of damages is subject to the buyer’s mitigation by way of cover. As is the
case with the expectation measure, if the buyer does not cover, he suffers the
consequences of his failure to mitigate. According to UCC § 2–713, the court will
calculate the damages at the time of the breach if the buyer chooses not to cover.
This rule may be a blessing or a curse depending upon how the market functions
after the breach
CASE VOCABULARY
CONSEQUENTIAL DAMAGES: Consequential damages represent costs which
are not associated with an attempt to cover, but which still result from the seller’s
breach. These are typically late fees associated with the buyer’s inability to satisfy
subsequent commitments to other clients after the seller’s breach.
361
COVER: In the event of a seller’s breach, the buyer has a right to cover “with
reasonable goods in substitution.” Essentially, the buyer is entitled to investigate
alternatives to the seller’s failed performance. The buyer is under no obligation to
cover, however. If the buyer chooses not to cover, the measure of damages will be
the market price at the time of the breach minus the contract price. The buyer will
also recover for incidental and consequential damages as below.
INCIDENTAL DAMAGES: Incidental damages represent the costs associated with
the buyer’s attempt to cover. For instance, the buyer might incur extra shipping or
warehousing costs as a result of trying to replace the original seller’s undelivered
goods.
363

(General Contractor) v. (Subcontractor)
220 F.2d 101 (3rd Cir. 1955)
COURT OF APPEALS DISTINGUISHES BETWEEN ANTICIPATORY
464
REPUDIATION AND STATEMENTS EXPRESSING DOUBT ABOUT
PERFORMANCE
INSTANT FACTS A subcontractor is accused of repudiating a contract despite

their difficulty in getting supplies due to market and governmental forces beyond
their control.
BLACK LETTER RULE Anticipatory repudiation can only be demonstrated by

an absolute and unequivocal refusal to perform or a distinct and positive statement
of an inability to do so.
PROCEDURAL BASIS
Appeal from a district court judgement for the defendant in a breach of contract
action.
FACTS
McCloskey & Co. (McCloskey) (P), a contractor, hired Minweld Steel Co.
(Minweld) (D) as the steel subcontractor on a construction job. Minweld (D)
agreed to supply and erect all of the structural steel for two buildings on which
McCloskey (P) was working. The parties’ contract stated that Minweld (D) could
be terminated if they failed to supply enough materials for the job. Minweld (D)
agreed to provide samples, drawings, and work schedules when they received the
contract drawings or at McCloskey’s (P) request. They further acknowledged that
the delivery and installation of the steel was of the essence. The trouble began
when McCloskey (P) sent the contract drawings to Minweld (D) In May of 1950.
McCloskey (P) wanted to know how long it would take them to supply and erect the
steel. Minweld (D) sent him a letter stating that the work would take until
November 15th. As early as July, however, McCloskey (P) threatened to fire
Minweld (D) if they did not assure him that they would have the necessary
465
materials within thirty days. Minweld (D), unfortunately, was having problems
buying steel. None of the major steel companies could fill their orders. In addition,
the President of the United States further constricted the domestic steel market due
to the outbreak of the Korean War in June. Minweld (D) informed McCloskey (P)
of these problems and requested their help in lobbying the General State Authority
for the necessary steel. McCloskey (P) took this as a repudiation of Minweld’s (D)
ability to perform their obligations and sued them for breach of contract. The
district court found for Minweld (D). McCloskey (P) appeals.
ISSUE
Can a party be guilty of anticipatory repudiation for announcing difficulties which
might preclude them from performing on the contract?

(McLaughlin) No. This case is in federal court by way of diversity jurisdiction.
Pennsylvania state law applies since the contract was executed there. In that regard,
in order for a repudiation to rise to the level of breach of contract, there must be an
“absolute and unequivocal refusal to perform or a distinct and positive statement of
an inability to do so.” Even if a party does nothing in preparation for performance
which is due at a later date, it is not tantamount to a repudiation of the contract. In
this case, Minweld (D) simply explained the difficulties that they
364
were having. At no time did they refuse to perform the contract or suggest that
performance would be impossible for them. They justifiably looked to McCloskey
for help and were denied. In fact, McCloskey (P) was able to procure the necessary
steel from two different manufacturers in order to have the work completed. One of
their suppliers, Bethlehem Steel, was actually in competition with Minweld (D) for
the original contract and refused to supply Minweld (D) with steel when they
requested it. Nonetheless, McCloskey (P) argues that Minweld (D) specifically
repudiated the deadline that McCloskey (P) announced in his July letter. Suffice it
to say that Minweld (D) no more repudiated that deadline than they did the entire
contract. In any event, there is nothing in the contract which entitles McCloskey (P)
to set a deadline for Minweld’s (D) assurance of completion. As a result,
Minweld’s (D) letter does not constitute an anticipatory repudiation of their
contract with McCloskey (P). The judgement of the district court will be upheld.
Analysis:
Pennsylvania’s law regarding anticipatory repudiation is typical of most states.

Generally, repudiation cannot be assumed from comments that merely place the
466
party’s performance in doubt. In fact, the repudiation must be so far-reaching as to
offer the injured party a remedy for a total breach of contract. McCloskey (P) took
the first sign of trouble as an excuse to discontinue his own performance. This
approach does not advance the goal of securing transactions in a competitive
marketplace. On the contrary, it would unleash the worst behavior of the parties,
each seeking to cut and run whenever a contract became the least bit burdensome or
unprofitable. Restatement (Second) of Contracts § 251, however, permits a party to
demand assurances of performance from the other party. If the other party does not
respond within a reasonable time, the failure may constitute a repudiation of the
contract.
CASE VOCABULARY
TOTAL BREACH: This is a phrase which is used interchangeably with the terms
“substantial breach” or “material breach” and which carries the same connotation
of a breach serious enough to result in legal liability and to release the other party
from their obligations.
365

(Convenience Store Owner) v. (Software Supplier)
11 Fed. Appx. 538 (6th Cir. 2001)
ADEQUATE ASSURANCES ARE REQUIRED WHEN A PARTY HAS

REASONABLE GROUDS TO BE INSECURE ABOUT THE OTHER PARTY’S
PERFORMANCE
INSTANT FACTS By-Lo (P) claimed that it did not receive sufficient
assurances from ParTech (D) that its software would be Y2K compliant.
BLACK LETTER RULE The mere fact that performance is to become due is
not reasonable grounds for insecurity.
467
PROCEDURAL BASIS
Appeal from an order granting summary judgment in favor of ParTech (D).
FACTS
By-Lo (P) purchased software from ParTech (D) to assist in managing its
convenience stores. In September 1997, By-Lo (P) wrote to ParTech (D) to ask
about “software and hardware options.” The letter also inquired about concerns
regarding the software’s performance in the year 2000. ParTech (D) did not
respond to this letter. On January 7, 1998, By-Lo (P) wrote to ParTech (D) and
demanded a written response, no later than January 31, 1998, of ParTech’s (D)
commitment that the software supplied to By-Lo (P) would function after December
31, 1999 with no problems. The January 7 letter also threatened a lawsuit if a
response was not received.
ParTech (D) responded on January 30, 1998. The response stated that answers to
By-Lo’s (P) questions could not be provided, because the decision on whether to
change the software would have to be made by upper management. By-Lo (P)
would be informed, once a decision was made. By-Lo (P) was dissatisfied with
this response, so a representative of By-Lo (P) traveled to ParTech’s (D)
headquarters, where he was again told that he would be informed once a decision
was made. By-Lo (P) remained concerned about the Y2K problem, so in June
1998, By-Lo (P) purchased a new computer system for over $175,000. ParTech (D)
was unaware of this purchase. On November 20, 1998, ParTech (D) sent By-Lo (P)
a letter saying that the needed software would be supplied without cost, and that the
software needed to be installed prior to January 1, 1999. The software was sent on
December 18, 1998, but was not installed because By-Lo (P) had purchased its
new system.
By-Lo (P) brought suit against ParTech (D), claiming that its conduct amounted to
an anticipatory breach of contract. ParTech (D) moved for summary judgment,
claiming that it never made an overt communication of an intent to repudiate the
contract. ParTech (D) also argued that By-Lo (P) did not have reasonable grounds
for insecurity necessary to seek assurance, and that the assurance ParTech (D) gave
was adequate. The district court granted ParTech’s (D) motion.
ISSUE
Did By-Lo (D) have reasonable grounds for insecurity?
366
468
(Kennedy, J.) No. The mere fact that performance is to become due is not
reasonable grounds for insecurity. The U.C.C. allows a party to a sales contract to
demand adequate assurance that the contract will be performed only when one party
has reasonable grounds for insecurity about the other party’s performance. The
grounds need not be actions of the contracting party—outside circumstances may be
sufficient. Between merchants, the reasonableness of the grounds will be
determined by commercial standards. As a general rule, the inquiry as to whether
grounds were reasonable is a question of fact.
By-Lo’s (P) argument is that it had reasonable grounds for insecurity regarding
ParTech’s (D) performance because ParTech (D) was due to perform the contract in
two years, and if it did not, it would be costly to By-Lo (P). This is generally the
case in any contract. The possibility that the software might not function, coupled
with ParTech’s (D) alleged failure to communicate with By-Lo (P), might have
given rise to reasonable insecurity at some point. The question remains whether
January 7, 1998 was that point. That question is analyzed by looking to (1) whether
time was running short for By-Lo (P) to make other arrangements, (2) whether it
would take By-Lo (P) nearly that amount of time to install updates or modifications
from ParTech (D), (3) whether ParTech (D) had proven unreliable in the past, and
(4) whether By-Lo (P) had reason to believe that ParTech (D) would be unable to
perform. Looking at these factors, it is clear that By-Lo (P) had no reason to feel
insecure on January 7, 1998. By-Lo (P) had made no previous complaints about
ParTech’s (D) previous service, nor was there any indication that By-Lo (P) would
not have enough time to obtain a new system if ParTech (D) did not respond. By-Lo
(P) presented evidence that, as of May 1998, it had little time to obtain a new
system, but that is of no consequence in evaluating whether By-Lo (P) had
reasonable grounds for insecurity in January of 1998. By-Lo (P) also introduced
evidence that it would have found it difficult to install new software in December,
but that also had no relation to By-Lo’s (P) insecurity in January. By-Lo’s (P) only
grounds for insecurity was ParTech’s (D) alleged failure to respond.
The question of whether adequate assurances were given is evaluated in terms of
the reputation of the promisor, the grounds for the insecurity, and the kinds of
assurance available. With those factors in mind, the district court was correct in
concluding that ParTech’s (D) assurances were sufficient as a matter of law. The
assurances were adequate even if they were less than what By-Lo (P) wanted.
Affirmed.
Analysis:
There is often some question about whether a contracting party will actually
perform. The right to demand reasonable assurances is not meant for the garden
variety uncertainty that is inherent in any thoughts about the future. Before a party
469
can demand assurances, the party must be able to articulate why it is insecure about
future performance. Those reasons should be specific to the other party, or the other
party’s performance to date.
367

(Plastics Distributor) v. (Product Packager)
741 F. Supp. 2d 651 (D.N.J. 2010)
A SELLER WHO REASONABLY BELIEVES THE BUYER MAY NOT PAY FOR
THE GOODS MAY DEMAND ASSURANCE OF PAYMENT
INSTANT FACTS U.S. Merchants (D) failed to pay for raw plastic provided by
Rocheux (P), claiming that it was defective, but Rocheux (P) argued that U.S.
Merchants (D) had not complained about the defects in a timely manner and had
admitted it owed the money; both parties moved for summary judgment in their
favor.
BLACK LETTER RULE Whether one party repudiated a contract or provided

adequate assurance of future performance are questions of fact that must be decided
by the trier of fact based on commercial standards.
PROCEDURAL BASIS
Federal district court consideration of the parties’ cross-motions for summary
judgment.
FACTS
U.S. Merchants (D), a provider of plastic product-packaging services, ordered a
large quantity of raw plastic from Rocheux (P), a plastics distributor. Rocheux (P)
delivered some of the plastic, but U.S. Merchants (D) paid for little if any of it.
470
Rocheux (P) sought to recover the amount due, minus what it recovered by selling
some goods that were warehoused for U.S. Merchants (D). U.S. Merchants (D)
argued that the delivered goods were defective and that it had told Rocheux (P) so,
but got no response. Rocheux (P) countered that it had heard little in the way of
complaints from U.S. Merchants (D), and that U.S. Merchants (D) had previously
acknowledged that it owed the payments. Rocheux (P) said that if had known about
the alleged defects, it would have inspected the goods and returned any defective
goods to the manufacturer for credit. Not until September 6, 2006, did the company
receive an email from U.S. Merchants (D) notifying Rocheux (P) of the problem,
and by that time the vast majority of the goods had been discarded by U.S.
Merchants (D) as scrap. Rocheux (P) sued for breach of contract and U.S.
Merchants (D) counter-sued. Rocheux (P) argued that U.S. Merchants (D) was
liable for the deficiency between the original purchase price and the subsequent
resale value of the warehouse goods, as well as the costs Rocheux (P) incurred by
storing and re-selling the same. U.S. Merchants (D) argued that the plaintiff could
not recover these sums as a matter of law because Rocheux (P) improperly
repudiated its contracts with the defendant without demanding adequate assurance,
and despite having received such assurance from the defendant. The parties cross-
moved for summary judgment.
ISSUE
Was either party entitled to judgment in its favor as a matter of law?

(Brown, C.J.) No. Whether one party repudiated a contract or provided adequate
assurance of future performance are questions of fact that must be decided by the
trier of fact based on
368
commercial standards. The September 2006 letter from Rocheux (P) to U.S.
Merchants (D) indicated that Rocheux (P) would dispose of the warehouse goods if
the defendant did not pay its past-due invoices. Although the message did not
include the term “adequate assurance,” such formalistic requirements do not apply.
Nor must the repudiator’s lack of security arise from the contract in question; a
buyer who falls behind in his account with the seller, even though the items
involved are part of a separate and legally distinct contract, impairs the seller’s
expectation of due performance. The parties’ course of dealings in this case also
included multiple in-person meetings concerning the defendant’s failure to pay its
accounts on time. We cannot say as a matter of law that the correspondence
between the parties did not constitute a demand for adequate assurance.
471
With regard to the assurances purportedly provided, the defendant argues that its
October 4, 2006 letter disputing the amount owed but indicating a willingness to
purchase the quantities not yet delivered at the contract price constituted adequate
assurance of its continued performance. Rocheux (P) responded by conditioning
further deliveries on a letter of credit in favor of Rocheux (P) in the amount of the
open invoices. The defendant did not provide the letter of credit. Given the
defendant’s continued failure to pay the outstanding invoices, the court cannot say
as a matter of law that the demand for a letter of credit was unreasonable.
However, nor can this court determine as a matter of law that the defendant’s
October 4 letter seeking to change the terms of delivery of the warehouse goods
constituted repudiation or provided inadequate assurance. These issues present
questions of fact to be determined according to commercial standards. The court
finds that a reasonable jury could conclude that the defendant’s October 4 letter
provided adequate assurance and did not repudiate the parties’ contracts.
Accordingly, the court denies both parties’ cross-motions for summary judgment.
Analysis:
Anticipatory repudiation of a contractual duty before the time performance is

required will give the injured party an immediate right to damages for breach, as
well as discharging its remaining duties of performance. This kind of repudiation
occurs when the promisor unequivocally disavows any intention to perform when
the time for performance comes. Once repudiation occurs, the non-repudiating party
has three options: it may (1) treat the repudiation as an immediate breach and sue
for damages; (2) ignore the repudiation, urge the repudiator to perform, wait for the
specified time of performance, and sue if the repudiating party does not perform; or
(3) cancel the contract. The Restatement (Second) of Contracts lists three actions
that constitute anticipatory repudiation: “(a) a positive statement to the promisee or
other person having a right under the contract, indicating that the promisor will not
or cannot substantially perform his contractual duties; (b) transferring or
contracting to transfer to a third person an interest in specific land, goods, or in any
other thing essential for the substantial performance of his contractual duties; [and]
(c) any voluntary affirmative act which renders substantial performance of his
contractual duties impossible, or apparently impossible.”
CASE VOCABULARY
ADEQUATE ASSURANCE: A circumstance or act that gives one party to a
contract reason to be confident that the contract will be duly performed by the other.
If the obligee has good reason to feel insecure and demands assurance, the other
contracting party’s failure to provide adequate assurance may constitute a
repudiation
472
ANTICIPATORY BREACH: The breaking of a contract after it has been entered
into but before the actual time of performance arrives. In some jurisdictions, the
aggrieved party has a right to sue for breach once the repudiating party states his
intention not to perform.
REPUDIATE: An unequivocal declaration before performance is due that
performance will not be made.
473
369
474
475
CHAPTER NINE
476
Basic Assumptions: Mistake, Impracticability, and Frustration
Sumerel v. Goodyear Tire & Rubber Co.

Instant Facts: Goodyear (D) sent Sumerel (P) a settlement proposal based on an
erroneous calculation, and Sumerel (P) claimed that proposal created an
enforceable agreement.
Black Letter Rule: If an offer contains a material mistake that was known by the
other party, or was of such character and accompanied by such circumstances that
the other had reason to know of it, the party who made the mistake has the power to
avoid the contract.
Stees v. Leonard
Instant Facts: Stees (P) contracted with Leonard (D) to complete a building on
Sees’s (P) lot, but because the ground was composed of quicksand, Leonard (D)
refused to complete the contract.
Black Letter Rule: If a person binds himself to a contract, mistake is no reason for
rescission, and nothing short of “absolute impossibility” will excuse that party from
fulfilling his duties.
Renner v. Kehl
Instant Facts: A purchaser of real estate leases sought to rescind the sales contract
on the ground that, although the parties were under the belief that the land was
suitable for farming, the water wells on the land proved inadequate.
Black Letter Rule: A party who rescinds a contract based on mutual mistake is not
entitled to recover consequential damages.
Instant Facts: Mineral Park (P) contracted with Howard (D) for Howard (D) to
buy as much gravel from Mineral Park (P) as Howard (D) would need to build a
bridge.
Black Letter Rule: Even though there is an existing impracticality, as opposed to a
supervening one, at the time of entering the contract, the court can excuse a buyer
from his duties if he can’t perform them in an ordinary manner and without paying
prohibitive cost.
Taylor v. Caldwell
Instant Facts: Taylor (P) entered into a contract with Caldwell (D) to rent
Caldwell’s (D’s) music hall, but the music hall burned down before Taylor (P)
could use it.
477
Black Letter Rule: A promisor is excused from contract performance if such
performance is made impractical because the subject matter of the contract is
destroyed prior to such performance and the promisor wasn’t responsible for such
destruction.
Instant Facts: Transatlantic (P) contracted with the United States (D) to deliver
cargo to Iran, but contrary to usual practice, it sailed around the Cape of Good
Hope instead of the Suez Canal.
Black Letter Rule: A court won’t grant a party additional costs other than that
agreed in the contract if the party relies on a theory of quantum meruit (under this
equitable doctrine, the court will imply a promise to pay for labor and goods if a
party stands to unjustly enrich himself on the labor and gods of another) and the
party cannot show that its contract performance was impractical.
370

Instant Facts: A company which contracted to buy bodies for several school
busses brought an action for breach of contract, claiming that the seller was not
excused from performance simply because its supplier went into receivership and
ceased to continue manufacturing the bodies.
Black Letter Rule: A seller’s duty to perform under a contract may be excused
when unexpected events render the seller unable to obtain supplies from a source
expressly identified in the contract.
Instant Facts: Canadian (P) entered a contract with Dunbar (D) to purchase a
supply of Dunbar’s (D’s) molasses, but Dunbar (D) failed to deliver the agreed
amount because the sugar company didn’t produce enough sugar to supply Dunbar
(D).
Black Letter Rule: If a seller fails to take all due precautions to ensure a steady
supply of raw materials to complete his goods, then the court will not excuse his
performance when such raw materials run out.
Instant Facts: In the midst of an oil embargo, Gulf Oil attempts to get out of its
requirements contract with Eastern Air claiming the increased cost of oil made
performance impracticable.
Black Letter Rule: The party seeking to establish commercial impracticality bears
478
the burden to show that the events causing impracticality were not foreseeable and
that the cost increase complained of was unjust.
Krell v. Henry
Instant Facts: Krell (P) rented a room in his hotel to Henry (D) and both believed
that the room would be used to watch the King’s coronation.
Black Letter Rule: Even though performance isn’t Impractical, a court can still
excuse performance on the basis of frustration of purpose as long as there is a non-
existence of events which both parties considered as the foundation of the contract.
Instant Facts: Banet (D) contracted with Swift (P) to buy lamb pelts from Swift
(P) but a government regulation prevented their importation into America.
Black Letter Rule: A buyer cannot claim frustration of purpose—and thus be
excused from performance—even if a supervening event prevents him from
receiving his goods, as long as a free on board term (F.O.B.) allows the seller to
complete his duties simply by delivering the goods to a carrier, and the seller then
actually delivers the goods to that carrier.
Instant Facts: Chase (P) contracted with Paonessa (D) to supply concrete dividers
but a supervening event obviated the need for Paonessa (D) to buy more dividers
from Chase (P).
Black Letter Rule: A court can excuse performance on the basis of frustration of
purpose only if the contract didn’t allocate to one of the parties the risk of a
supervening event.
Instant Facts: Northern Indiana Public Service Company (P) (NIPSCO) entered a
contract with Carbon (D) which was a long-term contract that didn’t allow
NIPSCO (P) to renegotiate its terms.
Black Letter Rule: Even though there is a force majeure clause (a clause which
lists certain events that are beyond the control of the parties and thus excuses
performance), a party has assumed the risks for market fluctuations if that party has
agreed to a fixed-priced contract.
371

Instant Facts: Young (P) contracted with Chicopee (D) to repair Chicopee’s
479
bridge, but a fire burned and destroyed the bridge.
Black Letter Rule: If a supervening event renders performance impractical for a
repair contract, the owner must compensate the repairer only to the extent of actual
repair done on the owner’s property.
373
Sumerel v. Goodyear Tire & Rubber Co.

(Injured Party) v. (Manufacturer)
232 P.3d 128 (Colo. Ct. App. 2009)
CONTRACTS BASED ON A UNILATERAL MISTAKE MAY BE VOIDABLE
INSTANT FACTS Goodyear (D) sent Sumerel (P) a settlement proposal based
on an erroneous calculation, and Sumerel (P) claimed that proposal created an
enforceable agreement.
BLACK LETTER RULE If an offer contains a material mistake that was

known by the other party, or was of such character and accompanied by such
circumstances that the other had reason to know of it, the party who made the
mistake has the power to avoid the contract.
PROCEDURAL BASIS
Appeal from an order upholding the validity of a settlement agreement.
FACTS
In 2002, Sumerel (P), Berzin (P), Dicke (P), and Kaufman (P) obtained a verdict of
approximately $1.3 million in a products liability action against Goodyear (D). The
verdict included “other costs and losses” incident to having to repair and replace
heating systems. The jury found that Goodyear (D) was responsible for 36% of
such “other costs and losses” suffered by Berzin (P) and Dicke (P), and 48% of
480
those incurred by Sumerel (P) and Kaufman (P). Sumerel (P) and the others
appealed the court’s decision not to award prejudgment interest with respect to the
“other costs and losses,” and Goodyear (D) appealed, among other things, the
award of the “other costs and losses.” The award was upheld on appeal, and the
case was remanded to calculate the correct amount of prejudgment interest.
After the remand, counsel for Goodyear (D) and counsel for Sumerel (P) and the
others discussed a compromise on the dates on which the interest began to accrue.
Goodyear’s (D) counsel proposed accrual dates, and advised regarding the amount
of prejudgment interest that would result from each date. The prejudgment interest
figures were calculated taking into account the 36% and 48% allocation of fault.
Goodyear’s (D) counsel advised Sumerel’s (P) attorney of that fact. The parties
were able to agree on the accrual date, but could not get their calculations of
interest to match. Brooks, an attorney for Goodyear (D), suggested to Gray (P), an
attorney for Sumerel (P) and the others, that the discrepancies may have resulted
from a failure to include the full amount of the interest due to Kaufman (P). Gray
responded that indeed that could have been the source of the discrepancy, but
neither party had seen the other’s calculations.
Brooks sent Gray a chart setting out the numbers Goodyear (D) believed
appropriate for the interest. The charts were accompanied by an e-mail asking Gray
to review them, and then discuss them with Brooks. Sumerel’s (P) counsel noted
that the calculations used to determine the numbers did not reduce the damages for
“other costs and losses” to reflect the jury’s allocation of fault. Goodyear’s (D)
calculations were erroneously based on an allocation of 100% of the costs and
losses to Goodyear (D). This was in contrast with the other categories of damages
in Goodyear’s (D) charts, which correctly applied the fault allocations. Goodyear’s
error overstated the damages due by more than $550,000. Sumerel’s (P) attorneys
did not
374
call this error to the attention of any representative of Goodyear (D). One of them
testified that he thought that Goodyear (D) may have concluded that it was solely
responsible for the “other costs and losses,” despite the jury’s allocation of fault.
Another attributed the overstatement to a possible desire on Goodyear’s part to
“sweeten the pot.”
The offer was accepted by telephone and fax messages to an attorney for Goodyear
(D) who was not directly involved with the calculations. Brooks, who prepared the
figures, was not copied on either message. Brooks prepared a satisfaction of
judgment and sent a draft to Sumerel’s (P) attorney. Before the satisfaction was
signed, Brooks noticed his error and notified Sumerel’s (P) attorney. The attorneys
481
for Sumerel (P) demanded that the erroneous settlement be honored. The district
court granted Sumerel’s (P) motion to enforce the settlement.
ISSUE
Was the erroneous settlement agreement enforceable?

(Gabriel, J.) No. If an offer contains a material mistake that was known by the other
party, or was of such character and accompanied by such circumstances that the
other had reason to know of it, the party who made the mistake has the power to
avoid the contract. Avoidance is available even if the offeree neither knew of nor
had reason to know of the mistake, if enforcement of the contract would be
oppressive to the mistaken party and relief from the contract would impose no
substantial hardship on the other party. The rule set out by Restatement (Second) of
Contracts §§ 153 and 154 provides that a contract is voidable if, at the time the
contract was made, one party makes a material mistake as to a basic assumption on
which the contract was made, if the mistaken party does not bear the risk of the
mistake and the effect of the mistake is such that enforcement of the contract would
be unconscionable, or the other party had reason to know of the mistake or his fault
caused the mistake. A party bears the risk of a mistake when the risk is allocated to
that party by agreement of the parties, or if that party is aware, at the time the
contract is made, that he has only limited knowledge regarding the facts to which
the mistake relates but treats that limited knowledge as sufficient, or the risk is
allocated to him by the court.
There was no enforceable agreement here, because the e-mail and charts sent by
Brooks did not constitute an offer. The charts were sent in a context in which the
parties were attempting to reconcile their mathematical calculations, and they
included qualifying language. Furthermore, they were accompanied by language that
asked for further discussion, not an acceptance. An offeree cannot snap up an offer
that is, on its face, manifestly “too good to be true.” The jury had allocated fault,
and the parties had agreed on the accrual dates. All that was left was a simple
calculation. When Sumerel’s (P) counsel received the calculations, they
immediately recognized the erroneous assumption. The e-mail and charts raised a
presumption of error because they were inconsistent with the jury’s award, prior
discussions, and other calculations in the same charts.
Even if an agreement was formed, that agreement was voidable under the
circumstances. It cannot reasonably be disputed that Goodyear’s (D) calculations
were mistaken, and Sumerel (P) and the others admit that they knew or should have
known of the error. The purported agreement would be oppressive and
unconscionable by granting to Sumerel (P) a windfall, and relief from the
482
agreement would pose no substantial hardship on Sumerel (P) and the others. The
risk of the mistake did not rest with Goodyear (D). There is no basis for a
determination that Goodyear (D) acted in bad faith, and it is unusual for a party to
bear a risk that the other party had reason to know about. Brooks did not choose to
charge ahead in conscious ignorance, believing his limited knowledge was
sufficient. Reversed and remanded.
375
Analysis:
Despite what one might think, there was no professional ethical obligation to
inform Goodyear’s (D) counsel of his mistake. Attorneys are prohibited from
“engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation,”
see, Rule 8.4 (c), Model Rules of Professional Conduct). On the other hand, an
attorney “generally has no affirmative duty to inform an opposing party of relevant
facts,” Rule 4.1, comment 1. An active misstatement would likely be an ethical
violation, but not speaking up and correcting an error in one’s client’s favor
probably is not.
377
Stees v. Leonard
(Lot Owner) v. (Construction Company Owner)
20 Minn. 494, 20 Gil. 448 (1874)
PARTIES TO A CONTRACT ARE BOUND TO COMPLY WITH THE TERMS

UNLESS IT IS ABSOLUTELY IMPOSSIBLE TO PERFORM
INSTANT FACTS Stees (P) contracted with Leonard (D) to complete a building
on Sees’s (P) lot, but because the ground was composed of quicksand, Leonard (D)
483
refused to complete the contract.
BLACK LETTER RULE If a person binds himself to a contract, mistake is no

reason for rescission, and nothing short of “absolute impossibility” will excuse that
party from fulfilling his duties.
PROCEDURAL BASIS
Appeal from judgment in favor of Stees (P) on an action for negligence.
FACTS
Stees (P) contracted with Leonard (D) to complete a building on Sees’ (P’s) lot.
But Leonard (D) refused to complete the building because he (D) discovered that
the ground was composed of quicksand.
ISSUE
May a party refuse to fulfill his contractual duties because of a mistake of fact?

(Young) No. If a person binds himself to a contract, nothing short of “absolute
impossibility” will excuse that party from fulfilling his duties. In this case, Leonard
(D) discovered a mistake of fact when he discovered after making the contract that
the ground was composed of quicksand. However, because Leonard (D) promised
Stees (P) that he (D) would fulfill his duties, Leonard must use all necessary means
to overcome this problem. Leonard (D), for example, can use stronger footings or
even drain the land. Either way, Leonard (D) must fulfill his contractual promise
because there isn’t any “absolute impossibility” preventing him. Judgment affirmed.
Analysis:
Is the court in Stees being unfair? Think about policy. On the one hand, the law of
contracts, like law in general, encourages predictability. When people sign a
contract, they should feel confident that promises will be fulfilled. Is the standard
of “absolute impossibility too high? Consider what might be a possible result if
Stees (P), and not Leonard (D), had specified all the material provisions, including
for the foundation. If Leonard (D) fails to complete his duties, should the court
refuse to excuse him? Isn’t Stees (P) responsible for having drafted inaccurately? In
United States v. Spearin, 248 U.S. 132, 136–37 (1918), the Court stated that,
although “one who undertakes to erect a structure upon a particular site, assumes
ordinarily the risk of subsidence of the soil,” nevertheless, “if the contractor is
bound to build according to plans and specifications prepared by the owner, the
484
contractor will not be responsible for the consequences and defects in the plans and
specifications.”
378
CASE VOCABULARY
MISTAKE: According to the Restatement Second § 151, a “mistake” in contract
law occurs when a party’s beliefs contradict the facts.
PAROL AGREEMENT: An oral or verbal agreement outside of the written contract
itself.
379
Renner v. Kehl
(Jojoba Farmer) v. (Seller of Land)
150 Ariz. 94, 722 P.2d 262 (1986)
A CONTRACT MAY BE RESCINDED IF THE PARTIES WERE BOTH

MISTAKEN AS TO A BASIC ASSUMPTION UPON WHICH THE CONTRACT
WAS FORMED
INSTANT FACTS A purchaser of real estate leases sought to rescind the sales
contract on the ground that, although the parties were under the belief that the land
was suitable for farming, the water wells on the land proved inadequate.
BLACK LETTER RULE A party who rescinds a contract based on mutual

mistake is not entitled to recover consequential damages.
PROCEDURAL BASIS
485
Appeal to the Supreme Court of Arizona to review the decision of the appellate
court affirming the judgment of the trial court, which rescinded a real estate
contract on the ground of mutual mistake.
FACTS
The Kehls (D) and Moyles (D) sold to Roy Renner (P) certain leases of
unimproved land for about $100 per acre for over two thousand acres. Renner (P)
had made dear to the Kehls (D) and Moyles (D) that he was interested in the land
only for the cultivation of jojoba and that he required adequate supply of water for
that purpose. After making a down payment, taking the conveyance and undertaking
some test drills, Renner (P) abandoned the project due to an insufficient supply of
water. Renner (P) brought an action to rescind the sales contract on the ground of
mutual mistake of the parties. After finding that the sale would not have taken place
if the parties involved did not believe the land was suitable for commercial
cultivation of jojoba, the trial court concluded that Renner (P) was entitled to a
rescission of the contract. The trial court ordered the Kehls (D) and Moyles (D) to
reimburse Renner (P) the amount of the down payment and the expenses incurred in
developing the land and conducting drilling tests. The court of appeals affirmed.
ISSUE
When seeking to rescind a contract on the basis of mutual mistake is a party entitled
to recover consequential damages?

(Gordon, V.C.J.) No. A party who rescinds a contract based on mutual mistake is
not entitled to recover consequential damages. Since both parties were mistaken as
to a basic assumption upon which the contract was based—i.e. that the land
contained a suitable quantity of water—the contract was voidable and Renner (P)
was entitled to a rescission. However, mutual mistake implies freedom of fault on
the part of both parties. Thus, the trial court improperly awarded Renner (P) the full
cost of his expenses. When a party rescinds a contract in the absence of fraud or
misrepresentation, he is entitled only to restitution for any benefit conferred on the
other party by way of part performance or reliance. In this case, Renner (P) was
entitled to the down payment and the value of any improvements made to the land.
However, the Kehls (D) and Moyles (D) were entitled to the fair rental value of
their land during the time it was
380
occupied by Renner (P). Additionally, Renner (P) is not entitled to development

expenses because that would shift the entire risk of mistake onto the Kehls (D) and
486
Moyles (D), an allocation of risk which is incompatible with equitable rescission.
Analysis:
Traditionally, the analysis employed by courts confronted with a case of mutual

mistake involved an abstract inquiry into whether the mistake involved the
substance of the contract or a only a quality or value thereof. The court here holds
that rescission is proper where the parties’ mistake concerns “a basic assumption”
upon which the contract was formed. The “basic assumption” formulation used in
the Second Restatement is the more modern approach. After a court determines that
the parties have made a mistake as to a basic assumption of fact, the court should go
on to ask which party is in the best position to bear the risk. However, the court
here appears to assume that the sellers bore the risk. This assumption may be
questioned in light of two facts. First, because Renner (P) was the person
proposing the farming, he was in the best position to determine which land was
most suitable for his needs. The second, and most important, fact that leads to a
conclusion that Renner (P) should have borne the risk was that he conducted the
water drilling test after purchasing the land. If Renner (P) wanted to assure himself
of the quality of the land, he should have made the purchase contingent on the tests
providing satisfactory results.
CASE VOCABULARY
JOJOBA: An evergreen shrub (pronounced “ho ho buh”).
MUTUAL MISTAKE: Courts will excuse a party’s contractual obligation where the
parties entered into a contract on mistaken assumption as to a basic fact.
RESCISSION: A contractual remedy where courts nullify a contract.
381

(Gravel Owner) v. (Gravel Purchaser)
172 Cal. 289, 156 P. 458 (1916)
AN IMPRACTICALITY EXISTING AT THE TIME A CONTRACT IS MADE

MAY EXCUSE PERFORMANCE
487
INSTANT FACTS Mineral Park (P) contracted with Howard (D) for Howard
(D) to buy as much gravel from Mineral Park (P) as Howard (D) would need to
build a bridge.
BLACK LETTER RULE Even though there is an existing impracticality, as

opposed to a supervening one, at the time of entering the contract, the court can
excuse a buyer from his duties if he can’t perform them in an ordinary manner and
without paying prohibitive cost.
PROCEDURAL BASIS
Appeal from judgment on an action for breach of contract.
FACTS
Mineral Park (P) contracted with Howard (D) for Howard (D) to buy as much
gravel from Mineral Park (P) as Howard (D) would need to build a bridge. But
Howard (D) discovered that only a certain amount of Mineral Park’s (P) gravel
was above water. Because getting the underwater gravel would be too much
trouble. Howard (D) decided to buy the rest of the gravel from someone else.
Mineral Park (P) claims that Howard breached the contract.
ISSUE
Even though there is an existing impracticality, as opposed to a supervening one, at
the time of entering the contract, can the court excuse a buyer from his duties if he
can’t perform them in an ordinary manner and without paying prohibitive cost?

(Sloss) Yes. Even though there is an existing impracticality, as opposed to a
supervening one, at the time of entering the contract, the court can excuse a buyer
from his duties if he can’t perform them in an ordinary manner and without paying
488
prohibitive cost. Here, the impracticality existed at the time Mineral Park (P) and
Howard (D) entered the contract: Some of the gravel was already underwater.
Howard (D) couldn’t remove the underwater gravel by resorting to ordinary means
and without paying prohibitive costs. The difference in cost between using Mineral
Park’s (P) underwater gravel and someone else’s gravel is so high that forcing
Howard (D) to do so would be impractical. Judgment reversed.
Analysis:
In Mineral Park, the court stressed the differences in costs in deciding to excuse
the buyer, Howard (D). In fact, it seems to be the only justification for excusing
performance on the basis of impracticality. But for impracticality cases in general,
courts very rarely rely on price differentials to excuse performance. Another thing
to consider with regard to Mineral Park is the difference between supervening
impracticality and existing impracticality. Supervening impracticality occurs when
an event occurs after two parties enter into contract. But an existing impracticality
already exists even before the parties enter the contract. A party arguing existing
382
impracticality may also have a claim of mistake. The two doctrines are similar. For
the doctrine of mutual mistake, a court is likely to consider the effect upon both
parties in deciding to enforce performance. But for impracticality, the court tends to
concentrate only on the burdens of the party that must perform.
CASE VOCABULARY
PROHIBITIVE COST: An unreasonably high cost.
REQUISITE QUANTITY: The amount of stuff that the buyer agreed to purchase.
383
Taylor v. Caldwell
(Renter of Music Hall) v. (Music Hall Owner)
3 B. & S. 826, 122 Eng.Rep. 309 (1863)
A COURT WILL EXCUSE CONTRACT PERFORMANCE IF THE SUBJECT OF

SUCH PERFORMANCE IS IMPRACTICAL
489
INSTANT FACTS Taylor (P) entered into a contract with Caldwell (D) to rent
Caldwell’s (D’s) music hall, but the music hall burned down before Taylor (P)
could use it.
BLACK LETTER RULE A promisor is excused from contract performance if

such performance is made impractical because the subject matter of the contract is
destruction.
PROCEDURAL BASIS
Appeal from judgment in favor of Caldwell (D) on an action for breach of contract.
FACTS
Taylor (P) entered a contract with Caldwell (D) to rent Caldwell’s (D) music hall,
but the music hall burned down before Taylor (P) could use it. Neither party was
responsible for having burned down the hall. Taylor (P) claimed that he had spent
money advertising his music hall concerts and also for preparing for the concerts.
Taylor (P) wanted Caldwell (D) to reimburse him for such costs now that the
concerts were made impossible. Taylor (P) claimed that Caldwell (D) breached his
contract duties in failing to provide a music hall as promised.
ISSUE
Is a party excused from contract performance if such performance is made
impractical because the subject matter of the contract is destroyed prior to such
performance and neither party was responsible for such destruction?

(Blackburn) Yes. The promisor is excused from contract performance if such
performance is made impractical because the subject matter of the contract is
490
destruction. We will imply that such an exception exists even though the contract
itself says nothing explicitly about what to do in the event that the subject matter of
the contract is destroyed. Here, the subject matter of the contract was the music
hall. And because it was burned down, the subject matter was destroyed. Neither
party was responsible for burning down the building. Thus, both parties are
excused from their contract performances. Judgment affirmed.
Analysis:
In Stees, the court stated that a party won’t be excused from performance unless
there’s “absolute impossibility.” However, in Taylor, the court stated a party will
be excused from performance if such performance is made “impractical.”
According to the Uniform Commercial Code, impracticability is a defense for
performance in the sale of goods (UCC § 2–215). Moreover, today courts tend to
adopt the impracticability test for contract cases in general. UCC § 2–613 states: A
seller is excused from his duty if “the contract requires for its performance
384
goods identified before the contract is made, and the goods suffer casualty without
fault of either party before the risk of loss passes to the buyer.” Would Stees come
out differently under the UCC?
CASE VOCABULARY
BAILEE: This is the person who accepts the goods in a bailment.
BAILMENT: A type of delivery of property where the acceptee promises to use the
property for a particular purpose as explained by the owner. After using the
property, the acceptor must deliver the property back to the owner or use it in a
manner told to him by the owner.
CHATTEL: Personal property, not real property.
385

(Ship Operator) v. (Cargo Owner)
363 F.2d 312 (D.C. Cir. 1966)
UNDER A THEORY OF QUANTUM MERUIT A COURT WILL NOT GRANT

ADDITIONAL EXPENSES OVER AND ABOVE WHAT WAS AGREED TO IN A
CONTRACT
491
INSTANT FACTS Transatlantic (P) contracted with the United States (D) to
deliver cargo to Iran, but contrary to usual practice, it sailed around the Cape of
Good Hope instead of the Suez Canal.
BLACK LETTER RULE A court won’t grant a party additional costs other
than that agreed in the contract if the party relies on a theory of quantum meruit
(under this equitable doctrine, the court will imply a promise to pay for labor and
goods if a party stands to unjustly enrich himself on the labor and gods of another)
and the party cannot show that its contract performance was impractical.
PROCEDURAL BASIS
Appeal from dismissal of a libel (in admiralty law, this used to be the equivalent of
a complaint) on an action for quantum meruit resulting from impracticability.
FACTS
Transatlantic (P) contracted with the United States (D) to deliver cargo to Iran.
Both parties intended that Transatlantic (P) would go through the Suez Canal. But
because of military unrest, this wasn’t an option. So Transatlantic (P) sailed around
the much longer route of the Cape of Good Hope. The United States (D) never
promised Transatlantic (P) that it (D) would reimburse Transatlantic (P) for the
extra costs of going around the Cape. Transatlantic (P) safely delivered the cargo to
Iran. The United States (D) paid Transatlantic (P) the contract price. Transatlantic
(P) then demanded that the United States (D) reimburse Transatlantic (P) for the
extra costs of having to go around the Cape instead of through the Suez.
ISSUE
Will a court grant a party additional costs other than that agreed in the contract if
the party relies on a theory of quantum meruit and the party cannot show that its
contract performance was Impractical?
492
(Wright) No. A court won’t grant a party additional costs other than that agreed in
the contract if the party relies on a theory of quantum meruit and the party cannot
show that its contract performance was impractical. Here, Transatlantic (P) relied
on a theory of quantum meruit in order to collect the additional cost of going around
the Cape. Was Transatlantic (P) able to show that its contract performance was
impracticable? To be impracticable, all three of the following conditions must be
met: 1) something unexpected must have occurred; 2) the risk of the unexpected
occurrence must not have been allocated either by agreement or by custom; and 3)
occurrence of the unexpected event must have rendered performance commercially
impracticable. Here, the first requirement was met when the Suez was blocked off
because of political unrest. The second requirement wasn’t met. Transatlantic (P)
assumed the risk.
386
Transatlantic (P) like most commercial shippers knew that the Suez could become a
dangerous place. It (P) nonetheless entered the contract. The third requirement
wasn’t met either. Transatlantic’s (P) performance wasn’t commercially
impractical. Transatlantic (P) was financially and physically able to sail around the
Cape without problems. This is a generally used alternative course on which ships
rely if the Suez is blocked. Granted, Transatlantic (P) incurred extra expenses of
$43,972 beyond the contract price. Still, to show impracticability, there must be a
greater difference between the contract price and the actual costs incurred to
perform the duties. Thus, Transatlantic (P) wasn’t faced with impracticability, and
accordingly, it (P) can’t receive through the theory of quantum meruit any additional
costs incurred outside of the contract price.
Analysis:
Transatlantic focuses on the issue of foreseeability. Citing Uniform Commercial

Code § 2–615, the court stated that foreseeability alone doesn’t necessarily mean
that a party has assumed the risks. However, it is one factor that the court will
consider in deciding whether there was legal impossibility. Consider the
Restatement (Second), Introductory Note to Chapter 11: “The fact that the event
was unforeseeable is significant as suggesting that its nonoccurrence was a basic
assumption. However, the fact that it was foreseeable, or even foreseen, does not,
of itself, argue for a contrary conclusion, since the parties may not have thought it
sufficiently important a risk to have made it a subject of their bargaining.”
CASE VOCABULARY
493
LIBEL: In admiralty law, this used to be the equivalent of a complaint.
QUANTUM MERUIT: Under this equitable doctrine, the court will imply a
promise to pay for labor and goods if a party stands to unjustly enrich himself on
the labor and goods of another.
387

(Buyer) v. (Seller of School Bus Bodies)
384 N.W.2d 490 (Minn. App. 1986)
IN DECIDING A CASE OF IMPRACTICABILITY, SOME COURTS WILL

FOCUS ON THE LANGUAGE OF THE CONTRACT TO DETERMINE
WHETHER THE RISK WAS SOMEHOW ALLOCATED TO EITHER PARTY
INSTANT FACTS A company which contracted to buy bodies for several

school busses brought an action for breach of contract, claiming that the seller was
not excused from performance simply because its supplier went into receivership
and ceased to continue manufacturing the bodies.
BLACK LETTER RULE A seller’s duty to perform under a contract may be

excused when unexpected events render the seller unable to obtain supplies from a
source expressly identified in the contract.
PROCEDURAL BASIS
Appeal to the Minnesota Court of Appeals to review the decision of the trial court
denying the plaintiff’s motion of a new trial and/or amended findings of fact and
conclusions of law.
FACTS
494
In May of 1983, Selland Pontiac-GMC, Inc. (Selland) (P) contracted to buy four
school bus bodies from King (D). The contract expressly stated that the bodies
were to be manufactured by Superior Manufacturing (Superior). The contract
contained no clause which excused King’s performance should he no longer have a
viable supply. In reliance on the contract with King (D), Selland (P) purchased four
chassis upon which the bodies were to be built. In early July, Superior went into
receivership. Although the parties disputed their respective reactions to the news of
Superior’s condition, the trial court found that Selland (P) decided to wait and see
if Superior would come out of receivership. Superior never fully recovered. In
December, Selland (P) canceled their order and sold the chassis at a loss.
ISSUE
May a seller’s contractual obligation be excused if his source of supply terminates
even if the contract does not provide for that contingency?

(Randall, J.) Yes. A seller’s duty to perform under a contract may be excused when
unexpected events render the seller unable to obtain supplies from a source
expressly identified in the contract. Section 2–615(a) of the U.C.C. provides, in
pertinent part, that a seller is not in breach of his duty to sell if “performance as
agreed has been made impracticable by the occurrence of a contingency the non-
occurrence of which was a basic assumption on which the contract was made….”
The trial court found that the contract between Selland (P) and King (D) expressly
identified Superior as King’s (D) supplier and that the bodies were to be
manufactured by Superior. Accordingly, the supply of bus bodies made by Superior
was a basic assumption upon which the contract was made. The supply of Superior
bodies became impracticable when Superior ceased manufacturing. Although § 2–
615(c) goes on to require the seller to give notice of non-delivery, Selland (P)
canceled the contract before such notice could
388
be given. Thus, Selland (P) cannot avoid its loss by claiming it did not receive
notice as required by statute.
Analysis:
As judicial adherence to the requirement of physical impossibility began to wane,

courts developed the doctrine of impracticability, which has been adopted by the
U.C.C. and the Restatement impracticability has changed the objective, albeit often
harsh, rule of impossibility into a subjective analysis with few guiding principles.
Under the impracticability standard, some courts choose to focus on how closely
495
the facts come to the common law categories of excusable cases. Other courts,
however, undertake an equitable weighing of the hardships to determine which
party should bear the loss. This court adopts yet a third common approach, which
focuses on the language of the contract to determine if the risk of impracticability
was allocated in some fashion. Although most courts do not excuse performance on
the basis of a loss of a supplier, the court here found that because. Superior was
expressly mentioned in the contract, the risk of loss was allocated to Selland (P).
CASE VOCABULARY
IMPRACTICABILITY: A doctrine courts use to excuse a party’s performance
under a contract when an unexpected event makes such performance impossible or
extremely difficult.
389

(Buyer of Molasses) v. (Seller of Molasses)
258 N.Y. 194, 179 N.E. 383 (1932)
A COURT WON’T EXCUSE CONTRACT PERFORMANCE IF THE SELLER

FAILS TO TAKE REASONABLE MEASURES TO ASSURE PERFORMANCE
INSTANT FACTS Canadian (P) entered a contract with Dunbar (D) to purchase
a supply of Dunbar’s (D’s) molasses, but Dunbar (D) failed to deliver the agreed
amount because the sugar company didn’t produce enough sugar to supply Dunbar
(D).
BLACK LETTER RULE If a seller fails to take all due precautions to ensure a
steady supply of raw materials to complete his goods, then the court will not excuse
his performance when such raw materials run out.
496
PROCEDURAL BASIS
Appeal from judgment for Canadian (P) on an action for breach of contract.
FACTS
Canadian (P) entered into a contract with Dunbar (D) to purchase a supply of
Dunbar’s (D’s) molasses, but Dunbar (D) failed to deliver the agreed amount
because the sugar company didn’t produce enough sugar to supply Dunbar (D).
Dunbar (D) never made nor attempted to make a contract with the sugar company.
ISSUE
If a seller falls to take all due precautions to ensure a steady supply of raw
materials, will the court excuse his performance when such raw materials run out?
(Cardozo) No. If a seller fails to take all due precautions to ensure a steady supply
of raw materials to complete his goods, then the court will not excuse his
performance when such raw materials run out. Here, Dunbar (D) never made a
contract with the sugar company to ensure a steady stream of raw materials that
were necessary to make the molasses. Furthermore, Dunbar (D) never even tried to
make such a contract. Such a contract would’ve helped to avoid the damages
suffered by Canadian (P). Judgment affirmed.
Analysis:
The UCC states that a seller’s performance is excused if (1) the buyer and seller
considered the supplier of raw materials as being the exclusive supplier of such
materials; and (2) the seller has taken all due precautions to make sure that the
supply of raw materials will be sufficient. Do you think the court would’ve changed
its mind had it known that Dunbar (D) had a long-lasting relationship with the sugar
company, such that Dunbar (D) had always received a sufficient and steady supply
of sugar? Perhaps Dunbar (D) naturally and perhaps even reasonably assumed that
it (D) would again receive the same, dependable service without having to bother
with a contract. Consider how to balance ideas of fairness with the law’s general
emphasis on predictability.
390
CASE VOCABULARY
ALEATORY ELEMENT: This means the existence of uncertainty or fortuitous
events.
497
CONTRIBUTORY FAULT: This means that plaintiff was partly at fault for his own
injuries or damages.
IMPLIED TERM: This is a term of a contract but it is not made explicit in the
contract; nonetheless, it still exists.
391

(Airline) v. (Fuel Supplier)
415 F.Supp. 429 (S.D. Fla. 1975)
THOSE WHO ASSERT THE DEFENSE OF COMMERCIAL IMPRACTICALITY

BEAR THE BURDEN OF SHOWING THAT THE CIRCUMSTANCES ARE
UNJUST AND UNFORESEEABLE
INSTANT FACTS In the midst of an oil embargo, Gulf Oil attempts to get out of
its requirements contract with Eastern Air claiming the increased cost of oil made
performance impracticable.
BLACK LETTER RULE The party seeking to establish commercial

impracticality bears the burden to show that the events causing impracticality were
not foreseeable and that the cost increase complained of was unjust.
PROCEDURAL BASIS
Judgment of district court in breach of contract action, following entry of a
preliminary injunction against defendant.
FACTS
Please see facts as summarized on page 19 of this book.
498
ISSUE
May a seller be excused from supplying goods under a requirements contract when
the cost of raw materials to the seller dramatically increases to the point where the
seller claims the contract is no longer profitable?

(King) No. To excuse a seller from performing a contract because costs have
unforeseeably increased, the unforeseen costs “must be more than merely onerous
or expensive. It must be positively unjust to hold the parties bound.” A mere
showing of unprofitability, without more, will not excuse the performance of a
contract. Gulf (D) contends that the escalator indicator did not work as intended by
the parties because of the advent of the two-tier pricing of government controls. It
also argues that crude oil prices increased substantially without a similar rise in the
pricing indicator. But, the language of the contract is clear and unambiguous. It is
clear that the parties intended to be bound by the specified entries in Platt’s which
has been published at all times material here, and which is still published. With
regard to Gulf’s contention that the contract has become “commercially
impracticable” within the meaning of U.C.C. § 2–615 because of the increase of the
market price of foreign crude oil, the court finds that the tendered defense has not
been proved. On this record the court cannot determine how much it costs Gulf (D)
to produce a gallon of jet fuel for sale to Eastern, whether Gulf (D) loses money or
makes a profit on its sale of jet fuel to Eastern, either now or at the inception of the
contract, or at any time in between. The party undertaking the burden of establishing
“commercial impracticability” by reason of allegedly increased raw material costs
undertakes the obligation of showing the extent to which he has suffered, or will
suffer, losses in performing his contract. The record here does not substantiate
Gulf’s contention on this fundamental issue. Gulf (D) transfers oil from one
subsidiary to another. Each of the various subsidiaries charges the buyer subsidiary
different prices. As a result, Gulf (D) is able to shift the tax consequences of the
profits it earns
392
from one subsidiary to another. But because of the use of such accounting practices,
it is impossible to determine Gulf’s actual costs for fuel sold to Eastern. This is
especially true in light of the fact that Gulf (D) earned substantial profits during the
periods in question. Under no theory of law can it be held that Gulf (D) is
guaranteed preservation of its intra-company profits. The burden is upon Gulf (D)
to show what its real costs are, not its “costs” inflated by its internal profits at
various levels of the manufacturing process. But, even if Gulf (D) had established
great hardship under U.C.C. § 2–615, which it has not, Gulf (D) would not prevail
499
because the events associated with the so-called energy crisis were reasonably
foreseeable at the time the contract was executed. If a contingency is foreseeable, it
and its consequences are taken outside the scope of U.C.C. § 2–615 because the
party disadvantaged by fruition of the contingency might have protected himself in
his contract. The record is replete with evidence of the volatile situation in the
Middle East, and Gulf (D) assumed the risk that the OPEC nations would do
exactly what they have done. With respect to Gulf’s argument that “two-tier” was
not “foreseeable,” the record shows that domestic crude oil prices were controlled
at all material times, that Gulf (D) foresaw that they might be de-controlled, and
that Gulf (D) was constantly urging the Government that they should be de-
controlled.
Analysis:
A mere increase in the expense of performing does not give rise to a defense of
impossibility. Consider an official comment to the UCC, which states that
“increased cost alone does not excuse performance unless the rise in cost is due to
some unforseen contingency which alters the essential nature of performance.” It
goes on to say that “a severe shortage of raw materials or of supplies due to a
contingency such as war, embargo, local crop failure, unforseen shutdown of major
sources of supply or the like, which causes a marked increase in cost is within the
contemplation of this section.” On the surface, it seems that Gulf’s (D) position fell
squarely within the contemplation of the UCC and it was entitled to the defense.
Ultimately, however, Gulf (D) lost because of a failure of proof; it could not prove
its increased cost to supply Eastern (P). Moreover, due to its own efforts to alter
price controls, the court decided that the risk of a change in such controls was
foreseeable by Gulf (D) and, accordingly, should have been addressed in the
contract. The law was on Gulf’s (D) side; the facts were not.
CASE VOCABULARY
U.C.C. § 2–615 (in pertinent part): “Except so far as a seller may have assumed a
greater obligation …. (a) Delay in delivery or non-delivery in whole or in part by a
seller … is not a breach of his duty under a contract for sale if performance as
agreed has become impracticable by the occurrence of a contingency the non-
occurrence of which was a basic assumption on which the contract was made ….”
393
Krell v. Henry
(Hotel Owner) v. (Hotel Renter)
2 K.B. 740 (1903)
500
A COURT CAN EXCUSE PERFORMANCE EVEN THOUGH IT’S NOT
IMPRACTICAL BUT MERELY DUE TO FRUSTRATION OF PURPOSE
INSTANT FACTS Krell (P) rented a room in his hotel to Henry (D) and both
believed that the room would be used to watch the King’s coronation.
BLACK LETTER RULE Even though performance isn’t Impractical, a court

can still excuse performance on the basis of frustration of purpose as long as there
is a non-existence of events which both parties considered as the foundation of the
contract.
PROCEDURAL BASIS
Appeal from judgment for a breach of contract.
FACTS
Krell (P) announced on his window that his hotel would rent rooms to see the
King’s coronation. Henry (D) saw this written announcement and paid Krell (P) a
deposit in advance for those days when the King would have his coronation
ceremony. But the King got really sick, and the ceremonies were canceled. Krell
(P) demanded the balance of the hotel rent-Henry (D) refused. Krell (P) claimed
breach of contract.
ISSUE
Even though performance isn’t impractical, can a court still excuse performance on
the basis of frustration of purpose as long as there is a non-existence of events
which both parties considered as the foundation of the contract?

(Vaughn Williams) Yes. Even though performance isn’t impractical, a court can still
501
excuse performance on the basis of frustration of purpose as long as there is a non-
existence of events which both parties considered as the foundation of the contract.
Here, performance wasn’t impractical. Nothing in the written contract stated that
the room was rented to view the coronation. Thus, Henry (D) could still use the
room even though the coronation didn’t occur. But the purpose of renting the room
was frustrated because the coronation was canceled. moreover, both Krell (P) and
Henry (D) had assumed that the coronation was the foundation of the contract.
Without the coronation, there was no purpose for Henry (D) to have rented the
room, and as evidenced by his (P) announcement of the event, Krell (P) knew it.
Appeal dismissed.
Analysis:
The Uniform Commercial Code hasn’t explicitly recognized the doctrine of

frustration. However, most American courts, like the English court in Krell have
adopted the doctrine of frustration. The first and second Restatements have also
adopted it. The Restatement lists four requirements to show frustration of purpose:
(1) the event must have substantially frustrated the party’s main purpose; (2) the
nonoccurrence of the event must have been a basic assumption of the contract; (3)
the frustration must not have occurred by the party seeking to be excused;
394
and (4) the party seeking excuse must not have assumed a greater obligation than the
law imposed. Notice that the four requirements in the Restatement are very similar
to its requirements for impracticability of performance.
CASE VOCABULARY
AFFIDAVIT: This is statement made under oath.
DISCHARGE: To “discharge” performance means basically the same thing as to
“excuse” performance.
395

(Lamb Pelt Seller) v. (Lamb Pelt Buyer)
224 F.2d 36 (3rd Cir. 1955)
FREE ON BOARD DESIGNATION CAN DEFEAT A CLAIM OF

FRUSTRATION OF PURPOSE
502
INSTANT FACTS Banet (D) contracted with Swift (P) to buy lamb pelts from
Swift (P) but a government regulation prevented their importation into America.
BLACK LETTER RULE A buyer cannot claim frustration of purpose—and

thus be excused from performance—even if a supervening event prevents him from
receiving his goods, as long as a free on board term (F.O.B.) allows the seller to
complete his duties simply by delivering the goods to a carrier, and the seller then
actually delivers the goods to that carrier.
PROCEDURAL BASIS
Appeal from granting of summary judgment for Banet (D) on an action for breach of
contract.
FACTS
Banet (D) contracted with Swift (P) to buy lamb pelts from Swift (P). Their
contract contained the following words: “F.O.B. Toronto.” Toronto was Swift’s (P)
working plant. There was also the provision that “when pelts are sold F.O.B.
seller’s plant, title and risk of loss shall pass to buyer when product is loaded on
cars at seller’s plant.” Swift (P) loaded the lamb pelts on a train in Toronto and
shipped them to Banet (D) in America. But the U.S. government passed regulations
which in effect prevented Banet (D) from importing the pelts. Because he couldn’t
import the pelts, Banet (D) claims frustration of purpose and wants to be excused
from performance of having to pay Swift (P).
ISSUE
Can a buyer claim frustration of purpose—and thus be excused from performance—
even if a supervening event prevents him from receiving his goods, as long as an
F.O.B. clause in the contract allows the seller to complete his duties simply by
delivering the goods to a carrier, and the seller then actually delivers the goods to
503
that carrier?
(Goodrich) No. A buyer cannot claim frustration of purpose—and thus be excused
from performance—even if a supervening event prevents him from receiving his
goods, as long as an F.O.B. clause in the contract allows the seller to complete his
duties simply by delivering the goods to a carrier, and the seller then actually
delivers the goods to that carrier. Here, the government regulation was definitely a
supervening event which neither party contemplated while entering the contract. But
there was an F.O.B. designation in the contract. This F.O.B. designation allowed
Swift (P) to complete his duties simply by delivering the goods to the train. Once
they were on the train, Banet (D), according to the F.O.B. clause, assumed all
responsibility, including the consequences of a supervening event. Judgment
reversed with instructions to enter judgment for Swift (P).
396
Analysis:
What would happen if the contract provided “F.O.B. Philadelphia,” which is

Banet’s (D) home? For the obligations of the seller, see Uniform Commercial Code
§ 2319(1)(b). Here, the judge discussed the F.O.B. clause basically to determine
the intent of the parties. The bigger picture illustrated by this case is that parties are
free to allocate the risk of frustration of purpose. When such risk is allocated
between the parties, the doctrine of frustration will not be used to defeat their
intent.
CASE VOCABULARY
FREE ON BOARD (F.O.B.): This clause means that the seller will pay for all
shipping and handling costs to the destination indicated.
397

(Producer of Dividers) v. (General Contractor)
409 Mass. 371, 566 N.E.2d 603 (1991)
FRUSTRATION OF PURPOSE CAN EXCUSE PERFORMANCE AS LONG AS

THE CONTRACT DIDN’T ALLOCATE RISK TO A PARTY
504
INSTANT FACTS Chase (P) contracted with Paonessa (D) to supply concrete
dividers but a supervening event obviated the need for Paonessa (D) to buy more
dividers from Chase (P).
BLACK LETTER RULE A court can excuse performance on the basis of

frustration of purpose only if the contract didn’t allocate to one of the parties the
risk of a supervening event.
PROCEDURAL BASIS
Appeal from judgment on an action for breach of contract.
FACTS
Massachusetts contracted with Paonessa (D) for some street construction, including
putting in concrete dividers. The contract was a standard one offered by
Massachusetts. In the contract, Massachusetts reserved the right to delete any
portions of work found unnecessary. Paonessa (D) then contracted with Chase (P)
to provide Paonessa (D) with concrete dividers. In Paonessa’s (D) contract with
Chase (P), there was no provision which allowed Paonessa (D) to delete any
portions of work found unnecessary. In the subsequent months, angry residents
protested the use of the concrete dividers instead of grass dividers. Massachusetts
told Paonessa (D) to stop installation of the concrete dividers. Remember:
according to its contract with Paonessa (D), Massachusetts could delete
unnecessary work. But by this time, Chase (P) had already produced about one-half
of its production order for such dividers. Paonessa (D) paid Chase (P) for
everything that it produced. But Chase (P) wanted Paonessa (D) to pay for even the
future production of dividers. Paonessa (D) claims frustration of purpose and wants
to be excused from its duties.
ISSUE
505
Can a court excuse performance on the basis of frustration of purpose if the contract
didn’t allocate to one of the parties the risk of a supervening event?

(Lynch) Yes. A court can excuse performance on the basis of frustration of purpose
even if the contract didn’t allocate to one of the parties the risk of a supervening
event. Chase (P) argues that Paonessa (D) had assumed the risk of the supervening
event, and therefore, it (D) has no excuse for nonperformance. Chase (P) points to
Paonessa’s (D) contract with Massachusetts as the main evidence. In that contract,
Massachusetts reserved the right to delete any work which was unnecessary. Chase
(P) argues that Paonessa (D) was fully aware of this provision and nonetheless still
assumed the risk of a reduction in work orders. But Chase (P) was also aware of
such risks. Chase (P) had contracted with Massachusetts in the past and signed
contracts which contained the same standard provision as in Paonessa’s (D)
contract.
398
Analysis:
The court states here that frustration of purpose and impossibility both involve a
supervening event, and they differ only in the effect of the supervening event.
Assuming neither party caused the supervening event and neither party assumed the
risks, under impossibility, both parties are excused from performance if a
supervening event occurs that undermines a basic foundation of the contract. In
other words, performance is basically impractical. But for frustration of purpose,
the effect of the supervening event is less significant. Performance is still possible,
but the value of the performance has been destroyed by the supervening event. The
court in Chase Precast also compared the definition of frustration of purpose in
Restatement (Second) of Contracts § 265 with the definition of “commercial
impracticability” in Uniform Commercial Code § 2615, noting that they both were
nearly identical.
CASE VOCABULARY
DOCTRINE OF IMPOSSIBILITY: This is a defense to a charge of breach of
contract. If one succeeds with the argument of impossibility of performance, the
party is excused from performance without being liable for damages.
399
506
(Electric Company) v. (Owner of Coal Mine)
799 F.2d 265 (7th Cir. 1986)
BY AGREEING TO A FIXED-PRICED CONTRACT, THE PARTIES ASSUME

THE RISKS OF MARKET PRICE CHANGES
INSTANT FACTS Northern Indiana Public Service Company (P) (NIPSCO)

entered a contract with Carbon (D) which was a long-term contract that didn’t
allow NIPSCO (P) to renegotiate its terms.
BLACK LETTER RULE Even though there is a force majeure clause (a clause
which lists certain events that are beyond the control of the parties and thus excuses
performance), a party has assumed the risks for market fluctuations if that party has
agreed to a fixed-priced contract.
PROCEDURAL BASIS
Appeal from judgment on an action for court declaration excusing performance.
FACTS
NIPSCO (P) is an electric company. It (P) contracted with Carbon (D) to buy
Carbon’s (D) coal which would be used to run NIPSCO’s (P) electric plant. The
contract stated that NIPSCO (P) would buy 1.5 million tons every 20 years. The
contract wasn’t a requirements contract (a type of contract where seller agrees to
furnish everything that buyer needs and where buyer agrees to buy exclusively all of
his goods from the particular seller), and so NIPSCO (P) was bound to buy all 1.5
million tons no matter how much it actually needed. Moreover, the contract didn’t
allow NIPSCO (P) to renegotiate the terms. The contract also contained an
“elevation clause” (this allows a party to raise the contract price from time to time
according to provisions of the contract) such that Carbon (D) could raise the price.
Finally, the contract contained a force majeure clause which excused NIPSCO from
507
accepting and paying for Carbon’s (D) coal for “any cause beyond [its] reasonable
control…. which wholly or partly prevented…the utilizing…of the coal.” About
five years after NIPSCO (P) and Carbon (D) entered the contract, a state
commission regulating NIPSCO (P) issued an order preventing NIPSCO (P) from
shifting its (P) costs to its (P) customers. So when NIPSCO (P) entered a long-term,
nonnegotiable, restrictive contract with Carbon (D), it (P) bore the risk of being
unable to purchase at lower prices elsewhere and not being able to shift the costs to
its (P) customers. NIPSCO (P) discovered that Carbon’s (D) competitors were
offering lower prices. NIPSCO (P) wanted to exercise its force majeure clause and
sought excuse of performance from the court.
ISSUE
Even though there is a force majeure clause, has a party assumed the risks for
market fluctuations if that party has agreed to a fixed-priced contract?

(Posner) Yes. Even though there is a force majeure clause, a party has assumed the
risks of market fluctuations if that party has agreed to a fixed-priced contract. Here,
there was a force majeure clause excusing performance if there are certain
supervening events. But the clause was never triggered. NIPSCO (P) claims that it
was triggered because the state commission’s orders prevented NIPSCO (P) from
shifting the costs to its (P) consumers. But obviously, this
400
doesn’t prevent NIPSCO (P) from actually performing its duties—accepting the
coal and paying for it. Moreover, NIPSCO (P) had explicitly assumed the risks for
market fluctuations by signing a fixed-priced contract. NIPSCO (P) gambled that
the fuel costs would rise over the life of the contract. If the gamble paid off,
NIPSCO (P) would save money through this fixed-priced contract. If the gamble
didn’t pay off, NIPSCO (P) agreed to live with the consequences. Thus, NIPSCO
(P) is bound to perform its duties because NIPSCO (P) explicitly agreed to assume
the risks of market fluctuations and because the force majeure clause was never
triggered. Judgment affirmed.
Analysis:
The force majeure clauses. Specifically, the force majeure clause is a response by
contract drafters to overcome the inadequacies in the substantive law. For quite a
while, the law didn’t recognize the ideas of legal impossibility, impracticability, or
frustration of purpose. Thus, contract drafters included these force majeure clauses
in order to protect the parties from supervening events that rendered performance
508
onerous. Now, this effort by the contract drafters has of course found its way into
the substantive law. Judges are likely to infer the presence of force majeure clauses
in those contracts that lack them. The Uniform Commercial Code and the
Restatement (Second) of Contracts have adopted the purpose behind force majeure
clauses. See UCC § 2–615 and Restatement § 265, comment a.
CASE VOCABULARY
ELEVATION CLAUSE: This allows a party to raise the contract price from time to
time according to provisions of the contract.
FORCE MAJEURE CLAUSE: A clause which lists certain events that are beyond
the control of the parties and thus excuse performance.
REQUIREMENT CONTRACT: A type of contract where seller agrees to furnish
everything that buyer needs and where buyer agrees to buy exclusively all of his
goods from the particular seller. Elevation clause: This allows a party to raise the
contract price from time to time according to provisions of the contract.
401

(Bridge Repairer) v. (Bridge Owner)
186 Mass. 518, 72 N.E. 63 (1904)
A PERSON WHO AGREES TO DO A REPAIR JOB BEARS THE RISK OF THE

LOSS OF THE ITEM BEING REPAIRED
INSTANT FACTS Young (P) contracted with Chicopee (D) to repair

Chicopee’s bridge, but a fire burned and destroyed the bridge.
BLACK LETTER RULE If a supervening event renders performance

impractical for a repair contract, the owner must compensate the repairer only to
509
the extent of actual repair done on the owner’s property.
PROCEDURAL BASIS
Appeal from judgment on an action to recover for work and materials furnished
under a repair contract, not for repairer’s supplies.
FACTS
Young (P) contracted with Chicopee (D) to repair Chicopee’s (D) bridge. The
contract stated that Young (P) couldn’t begin his work until material for one-half of
the repair is on the job site. After Young (P) had done some repair, but prior to his
completion, a fire burned and completely destroyed the bridge. The fire also burned
and destroyed the wood that Young (P) had brought onto the job site near the
bridge. Young (P) now wants compensation for the wood that was merely resting on
the job site.
ISSUE
If a supervening event renders performance impractical for a repair contract, must
the owner compensate the repairer only to the extent of actual repair done on the
owner’s property?

(Hammond) Yes. If a supervening event renders performance impractical for a
repair contract, the buyer must compensate the repairer only to the extent of actual
repair done on the buyer’s property. Here, Young (P) had actually done some repair
on Chicopee’s (D) bridge. For the actual work done, Chicopee (D) properly
compensated him even though a supervening event completely destroyed it.
However, Chicopee (D) doesn’t need to compensate for Young’s (P) supplies—the
wood that merely rested on the job site near the bridge. This is because such wood
was never used as part of the repair. Nor did Young (P) ever give Chicopee (D) the
right to use the wood. The wood was entirely Young’s (P) and never constituted a
part of the repair work. Thus, Chicopee (D) doesn’t need to compensate Young (P)
for this wood on the job site.
Analysis:
Young (P), as the repairman, seems to have really “burned his bridges” in this case.
Would he have been better off if he had the job of erecting the bridge, instead of
merely repairing it? Probably not. If a contractor agrees to build something (like a
bridge), and a supervening event destroys it prior to completion, then the contractor
is bound to rebuild it! The court will not let him use the defense of impracticability
510
because the contractor is still able to rebuild it. Yes,
402
rebuilding will cost money, and yes, the obligation seems unfair. But that’s what
insurance is for. The policy reason for such law is that predictability is essential.
CASE VOCABULARY
IMPLIED ASSUMPSIT: This is Latin for implied agreement. It is also a common
law form of action available for a party to recover for damages for breach of
contract.
IMPLIED CONTRACT: This is not an explicit verbal or written contract. It is an
agreement that is implied from the circumstances surrounding the contract.
MATERIALS WROUGHT: This is a phrase we don’t see often these days. It
basically means the materials that were actually built into the bridge, not just sitting
on the ground next to it.
511
403
512
513
CHAPTER TEN
514
Third Parties: Rights & Responsibilities
Lawrence v. Fox
Instant Facts: Fox (D) fails to fulfill his promise to Holly to pay off a loan which
Holly owes to Lawrence.
Black Letter Rule: Privity is not needed to recover damages by a third party
creditor beneficiary.
Seaver v. Ransom
Instant Facts: Judge Beman fails to fulfill his wife’s deathbed wish, as he
promised, giving the house or an equivalent amount to their niece, Marion Seaver.
Black Letter Rule: Any third party beneficiary donee has the right to bring an
action on a contract made specifically for his/her benefit.
Instant Facts: Rose (D) agreed with NBC that he would donate the “Howdy
Doody” puppet in his possession to the Detroit Institute of Arts (P), but did not
make the donation.
Black Letter Rule: A contract may create an obligation to a third-party without
containing express language creating that obligation.
Sisney v. State
Instant Facts: An inmate sued the government and the company that contracted
with it to provide kosher meals to prisons, arguing that the food was inadequate; the
trial court dismissed the case, concluding that the inmate was not a third-party
beneficiary of the contract so he could not sue to enforce it.
Black Letter Rule: A contract made expressly for the benefit of a third person may
be enforced by that person, but only when the intent to make the contract inure to the
benefit of the third party is clearly manifest.
Sisney v. Reisch
Instant Facts: An inmate sued the Secretary of the DOC (D) and the Director of
Prison Operations (D) claiming to be a third-party beneficiary of an earlier
settlement agreement reached with another inmate, in which the DOC (D) agreed to
provide inmates with prepackaged and certified kosher meals.
Black Letter Rule: A contract made expressly for the benefit of a third person may
be enforced by him at any time before the parties thereto rescind it.
515
Instant Facts: Verni (P) sued Makarov (D), claiming he was a third-party
beneficiary of Makarov’s (D) employment contract with Cleveland Chiropractic
College (D).
Black Letter Rule: There is a strong presumption that a contract was executed for
the sole benefit of the parties, and a third-party is not a beneficiary of the contract
unless the terms of the contract directly and clearly express the intent to benefit the
third-party or any class of which the third-party is a member.
Grigerik v. Sharpe
Instant Facts: Claiming status as a third-party beneficiary, a buyer of a tract of
land filed suit against the sewage engineer hired by the seller to develop a drainage
plan which would be approved by the town sanitarian.
404
Black Letter Rule: The intent of both, not just one, of the parties to a contract
determines whether a third party is to be afforded third party beneficiary status
under a contract.
Instant Facts: The exclusive distributor of beauty products delegates his best
effort obligations to the subsidiary of direct competitor.
Black Letter Rule: The duty of performance under a “best efforts” exclusive
distributorship may not be delegated to a competitor without the obligee’s consent.
Herzog v. Irace
Instant Facts: As consideration for a doctor’s promise to perform surgery for no
up-front payment, Gary Jones assigned his payment rights under a pending personal
Injury action to the doctor, but Jones later attempted to revoke the assignment.
Black Letter Rule: An assignor must dearly demonstrate his intent to relinquish
any rights to the assignee, and thus an assignor may not retain a power of
revocation.
Instant Facts: A company which had assigned to it a contract for the rights to
distribute certain chemical products sought to avoid arbitration as required by the
contract on the ground that the assignment made to it was void because consent was
not obtained from the obligor.
Black Letter Rule: Contractual provisions limiting or prohibiting assignments
operate only to limit a parties right to assign the contract, but not their power to do
516
so, unless the parties’ clearly manifest an intent to the contrary.
Delacy Investments, Inc. v. Thurman & Re/Max Real Estate Guide, Inc.
Instant Facts: Thurman (D) assigned his unpaid real estate commissions to Delacy
(P), but Re/Max (D) refused to pay Delacy (P).
Black Letter Rule: An assignee’s rights are subject to the terms of any contract
that creates the rights of the assignor.
Instant Facts: Rinden Professional Association (D), the buyer in a lease-purchase
agreement, waived all warranties when the right to receive payments was assigned
to Chemical Bank.
Black Letter Rule: When the right to receive payments on a sales contract is
assigned, the original buyer may waive all warranties on the products.
405
Lawrence v. Fox
(Promisor) v. (Third Party Beneficiary)
20 N.Y. 268 (1859)
PRIVITY FOUND UNNECESSARY FOR THIRD PARTY CREDITOR

BENEFICIARIES
INSTANT FACTS Fox (D) fails to fulfill his promise to Holly to pay off a loan
which Holly owes to Lawrence.
BLACK LETTER RULE Privity is not needed to recover damages by a third

party creditor beneficiary.
517
PROCEDURAL BASIS
Appeal from the Superior Court affirming trial court judgment for the plaintiff for
legal damages.
FACTS
Holly lent $300 to Fox (D); Holly already owed $300 to Lawrence. So in order to
pay back Holly, Fox promised Holly to repay the $300 debt that Holly owed
Lawrence (P), directly to Lawrence (P). Fox (D) failed to pay Lawrence (P) the
$300, as Fox (D) had promised Holly. Lawrence (P) brought this action against Fox
(D). Fox (D) claimed that his agreement with Holly lacked consideration. Fox (D)
further claimed that since there was no privity between Fox (D) and Lawrence (P),
there was no basis for a suit. The trial court overruled the motion and the jury found
in favor of Lawrence (P).
ISSUE
Whether a lack of privity prevents a third party beneficiary from recovering
damages?

(Gray) No. First of all, Fox (D) received sufficient consideration from Holly in
exchange for his promise to pay Lawrence (P) the agreed to sum. This was the sole
reason that Holly lent Fox (D) the money. Fox (D) then had a duty to remit the
money to Lawrence (P) following the principle, “that a promise made to one for the
benefit of another…” is actionable if the promise is breached. Fox (D) was in the
same position as if he were the holder of a trust fund, rather than the holder of a
short term loan. The $300 which Holly lent to Fox (D) was intended to, eventually,
benefit Holly’s creditor, Lawrence (P), and relieve Holly of the task of repaying the
loan to Lawrence (P) himself. Fox (D) promised Holly to relieve him of that task in
exchange for the $300 loan. Since the intent of the contract between Holly and Fox
(D) was to benefit Lawrence (P), the lack of privity between Lawrence (P) and Fox
(D) has no relevance. Lawrence (P) is entitled to damages for the breach of
contract.
DISSENT
(Comstock) Since Lawrence (P) was neither the promisee, nor the provider of
consideration, and was therefore not in privity, he is unable to maintain an action
against Fox (D). Only a promisee or someone with a legal interest in the agreement
has privilege to bring a suit.
406
518
Analysis:
Few contract cases are as significant as Lawrence v. Fox. Here, the court
establishes the principle of a creditor beneficiary. A promise made to a promisee
does not necessarily have to benefit the promisee directly. Any promise made in
exchange for an act, a forbearance, or a return promise will provide sufficient
consideration, if that is the intent of the promisee. When there is an underlying
promise and the promisee receives the indirect benefit of the promise, the primary
intent to benefit the third party would appear to make the argument of privity seem
virtually irrelevant. The fact that someone other than a promisee benefits from the
execution of a contract cannot mitigate the promisor’s obligations.
CASE VOCABULARY
ANNUL: To make empty or void of meaning.
BENEFICIARY: One who receives some benefit as the result of another’s acts or
promises.
CESTUI QUE TRUST: Benefitor of a trust which has vested in another.
COUNTERMAND: To change orders that were already given.
DISCHARGE: Performance by one of the principal parties in a contract, of an act
which relieves that party of further contractual obligations.
INURE: Conclude or result
PRIVITY: The relationship of two parties as a result of an agreement between them.
PRIVY: The intimate knowledge that one has of thoughts or actions of any person or
thing.
TRUST: The holding of property for the benefit of another.
TRUSTEE: The person who holds property for the benefit of another.
407
Seaver v. Ransom
(The Niece) v. (Judge Beman’s Executor)
224 N.Y. 233, 120 N.E. 639, 2 A.L.R. 1187 (1918)
ANY THIRD PARTY BENEFICIARY DONEE MAY MAINTAIN AN ACTION

AGAINST THE BREACHING PARTY
519
INSTANT FACTS Judge Beman fails to fulfill his wife’s deathbed wish, as he
promised, giving the house or an equivalent amount to their niece, Marion Seaver.
BLACK LETTER RULE Any third party beneficiary donee has the right to
bring an action on a contract made specifically for his/her benefit.
PROCEDURAL BASIS
Appeal from the affirming judgment of the appellate court for plaintiff for recovery
of damages.
FACTS
Shortly before her death, Mrs. Beman requested that her husband, Judge Beman,
make out her will. In the will she left $1000 to Seaver (P), the use of the house to
her husband for life and small amounts to various relatives and the ASPCA. Mrs.
Beman then decided to change the will and give the house to her niece, Seaver (P),
and leave the rest of the will unchanged. Mrs. Beman didn’t believe she would live
long enough for her husband to draw and execute a new document. But her husband,
Judge Beman, swore an oath to leave Seaver (P) a sufficient amount in his own will
to make up the difference. However, when Judge Beman died, his will made no
provision for Seaver (P) as promised, and Seaver (P) brought suit. Ransom (D) is
one of the executors of Judge Beman’s estate.
ISSUE
Whether a third party beneficiary, who is neither a creditor nor a member of the
immediate family, may maintain an action for damages without privity?

(Pound) Yes. The trial court found for Seaver (P), based on the theory that Mrs.
Beman was fraudulently induced to execute the will by her husband. But Seaver’s
520
(P) action is maintainable on grounds defined in Lawrence v. Fox [supra] “… the
right of the beneficiary to sue on a contract made expressly for his benefit….” Such
a right is “just and practical” since it allows the party who is benefiting from the
contract to enforce it against the party who is in breach. The right of a third party to
enforce a contract, to which he/she is the intended beneficiary, has been upheld in
various situations. This case presents a category of beneficiary that is yet to present
itself. The Bemans were childless and Seaver (P) was, virtually, the daughter they
never had. The contract between Judge and Mrs. Beman was for the sole benefit of
Seaver (P) and she is the only person “substantially damaged by its breach.” The
fact that Seaver was not a member of the immediate family in no way should
prevent her from seeking recovery. The personal relationship between the Bemans
and Seaver (P) is certainly worthy of consideration. It defines the moral obligation
that the law seeks in establishing the intentions of the parties in a contract. An
arbitrary line of demarcation between members of a family, based merely on
marital status and lineage, fails to account for relationships that develop over a
period of time,
408
without a traditional legal status. The fact that Judge Beman, intentionally or
unintentionally, failed to redraw the will as promised, does not change the promise
or the intent Mrs. Beman had to give the house to Seaver (P), as a third party
beneficiary. Seaver (P) was the intended beneficiary donee of the contract between
the Bemans and is, therefore, entitled to recover damages. The judgment, with
costs, is affirmed.
Analysis:
Writing for the lower court, Kellogg, P.J., wrote, “The doctrine of Lawrence v. Fox
is progressive not retrograde. The course of the late decisions is to enlarge, not
limit, the effect of that case.” The New York court truly takes this language to heart
in reaching its decision in Seaver. Although the case involved a family member, it
is clear that a familial tie is no longer necessary. The court recognizes the legal
rights of a third-party beneficiary donee in order to enforce the intent behind a
contract. The court abandons any prior legal pretense that prevents the intent of a
contracting party to give a benefit to whomever he/she pleases, as an intended
recipient donee. Furthermore, the court forcefully concludes that the intended donee
has the legal right to enforce such contracts without the need to demonstrate
justifiable reliance on the promise. An intended beneficiary, according to Seaver,
has greater legal authority than the common law legal authority once granted
children and spouses. Such is the power of a valid contract.
521
CASE VOCABULARY
AVOUCH: To guarantee
BEQUEATH: Usually the giving of personal property by will rather than real
property
COLLATERALS: Relatives not directly related for purposes of inheritance, such as
cousins.
EQUITY: Fairness
EXECUTOR: Someone who is appointed to act in the place of the deceased in
order to carry out their wishes as expressed in their will.
INTESTATE: Dying without leaving a will
LEGACY: Refers to a general legacy, providing a gift of personal property or
money by means of a will.
PECUNIARY: Concerning money or its equivalent.
RESIDUARY LEGATEE: a person who gets whatever is left over after the specific
gifts have been given.
TESTAMENTARY: Refers to any sort of document which fails to take effect until
after the death of the individual who is making it.
TESTATOR: Anyone who leaves a will and is now dead.
TESTATRIX: Specifically, a dead woman who has left a will.
409

(Museum) v. (Puppeteer)
127 F. Supp. 2d 117 (D. Conn. 2001)
THIRD-PARTY BENEFICIARIES NEED NOT BE EXPLICITLY RECOGNIZED

IN THE CONTRACT
522
INSTANT FACTS Rose (D) agreed with NBC that he would donate the “Howdy
Doody” puppet in his possession to the Detroit Institute of Arts (P), but did not
make the donation.
BLACK LETTER RULE A contract may create an obligation to a third-party

without containing express language creating that obligation.
PROCEDURAL BASIS
Decision on the Detroit Institute of Arts’ (P) motion for summary judgment.
FACTS
Rose (D) had physical possession of the puppets used on the “Howdy Doody”
television show after the show went off the air. Rose (D) agreed with NBC, the
owner of the puppets, regarding the disposition of the puppets. The agreement was
contained in several letters between Rose (D) and the NBC legal department. One
of those letters stated that Rose (D) would inform NBC which puppets would be
“going into the PUPPET MUSEUM.” Rose (D) testified that the reference was to
the puppetry museum at the Detroit Institute of Arts (P).
ISSUE
Was the Detroit Institute of Arts (P) a third-party beneficiary of the agreement
between Rose (D) and NBC?

(Droney, J.) Yes. A contract may create an obligation to a third-party without
containing express language creating that obligation. It is not enough that the
contract confer some incidental benefit on the third-party. It must be shown that both
parties to the contract intended to create a direct obligation from the promisor to the
third-party. The intent of the parties is to be determined from the terms of the
contract read in light of the circumstances surrounding the making of the contract.
The motives and purposes of the parties are part of the circumstances to be
523
considered. Partial summary judgment granted.
Analysis:
Rose (D) had sent the original Howdy Doody puppet to the star of the television
show, “Buffalo Bob” Smith. Smith used the puppet in personal appearances for
several years. Rose (D) advised him of his agreement with NBC, but Smith wanted
to sell the puppet. Rose (D) and Smith eventually agreed to sell the puppet and split
the proceeds, and the puppet was placed with an auction house a few days before
Smith’s death. The proposed auction prompted this lawsuit.
411
Sisney v. State
(Inmate) v. (Government)
754 N.W.2d 639 (S.D. 2008)
NOT EVERY MEMBER OF THE PUBLIC CAN SUE TO ENFORCE A PUBLIC

CONTRACT
INSTANT FACTS An inmate sued the government and the company that
contracted with it to provide kosher meals to prisons, arguing that the food was
inadequate; the trial court dismissed the case, concluding that the inmate was not a
third-party beneficiary of the contract so he could not sue to enforce it.
BLACK LETTER RULE A contract made expressly for the benefit of a third
person may be enforced by that person, but only when the intent to make the
contract inure to the benefit of the third party is clearly manifest.
PROCEDURAL BASIS
State supreme court review of the circuit court decision dismissing the plaintiff’s
complaint.
524
FACTS
Sisney (P), a Jewish inmate in a state penitentiary, sued the state (D) and CBM Inc.
(D) alleging that CBM (D) breached a contract with the state (D) in which CBM
(D) agreed to provide kosher foods to Department of Correction (DOC) facilities.
The contract required CBM (D) to provide services to the state in a manner that
would meet the needs and concerns of the inmates and staff. Sisney (P) sought
damages as a third-party beneficiary of that contract. Sisney (P) alleged that the
kosher diet provided by CBM (D) consisted of too few calories and did not meet
the dictates of his religious beliefs. The trial court concluded that even if the facts
alleged by Sisney (P) were true, he was not a third-party beneficiary of the contract
between CBM (D) and the state (D), so it dismissed Sisney’s (P) case for failure to
state a claim. Sisney (P) appealed.
ISSUE
Was Sisney (P) a third-party beneficiary of the state’s (D) contract such that he had
standing to sue for breach of that contract?

(Zinter, J.) No. A contract made expressly for the benefit of a third person may be
enforced by that person, but only when the intent to make the contract inure to the
benefit of the third party is clearly manifest. In other words, at the time the contract
was executed, it must have been the contracting parties’ intent to expressly benefit
the third party. The party claiming third-party beneficiary status must show that the
contract was entered into by the contracting parties directly and primarily for his
benefit. The benefit to the third party must be more than merely incidental to the
agreement. Government contracts are unique in that to some extent every member of
the public is intended to benefit from them. But a private third-party right of
enforcement is not properly inferred with regard to such contracts because of the
potential liability of private parties who contract with the government.
Consequently, when a public contract is involved, private citizens are presumed
not to be third-party beneficiaries. Under these rules, it is generally held that
inmates lack standing to enforce public contracts. The
412
contract in this case did not expressly indicate that it was intended for Sisney’s (P)
direct benefit or enforcement. To the contrary, it reflects that it was made for the
express benefit of the state. Affirmed.
Analysis:
525
Many government benefits are administered by private parties. Health care under
Medicaid and Medicare is provided by hospitals, nursing homes, doctors, and
managed care organizations, and federal housing benefits are often delivered by
private landlords. In addition, as this case shows, private contractors frequently
provide services to prisoners. When private parties that are not state actors fail to
provide the benefits mandated by government contracts, contract law may or may
not provide an avenue for relief. Unlike in this case, some courts have held that
injured individuals may be able to sue the private party to enforce the contract as a
third-party beneficiary. The core of such claims is that the government and the
private party have entered into a contract for the benefit of the individuals for
whom the government program was designed, and as a result those individuals may
seek to enforce the contract if it is breached. Contract claims based on third-party
beneficiary status have been successful in Medicaid and Medicare, housing, and
prisoner cases, but such claims generally fail when the contract contains an express
provision disavowing an intention to confer third-party rights, or when applicable
state law utilizes a presumption against third-party beneficiary status.
CASE VOCABULARY
STANDING: The right to bring a suit or other legal action before a court of justice
(i.e., having a stake in the outcome).
413
Sisney v. Reisch
(Inmate) v. (Secretary of Department of Corrections)
754 N.W.2d 813 (S.D. 2008)
THE COURT REACHED A DIFFERENT CONCLUSION WITH REGARD TO

SISNEY’S THIRD-PARTY BENEFICIARY STATUS IN THIS DECISION
INSTANT FACTS An inmate sued the Secretary of the DOC (D) and the
Director of Prison Operations (D) claiming to be a third-party beneficiary of an
526
earlier settlement agreement reached with another inmate, in which the DOC (D)
agreed to provide inmates with prepackaged and certified kosher meals.
BLACK LETTER RULE A contract made expressly for the benefit of a third
person may be enforced by him at any time before the parties thereto rescind it.
PROCEDURAL BASIS
State supreme court review of a circuit court decision dismissing the plaintiff’s
complaint.
FACTS
Sisney (P), a Jewish inmate in a state penitentiary, filed a pro se complaint alleging
that he was a third-party beneficiary of a settlement agreement between the
Department of Corrections (DOC) and a former inmate. The agreement with the
other inmate, Heftel, provided that the DOC (D) would provide a kosher diet to all
Jewish inmates who requested it, to include prepackaged noon and evening meals
that were certified kosher. Sisney (P) alleged that the DOC (D) breached the
settlement agreement when they did not provide him with such prepackaged,
certified kosher meals. CBM Inc., the new food service provider, served a new
kosher diet that was cooked oon-site in the prison kitchen. Sisney (P) claimed that
the new diet violated the Heftel Agreement and his religious beliefs. The trial court
dismissed the suit, concluding that Sisney’s (P) claim was barred by statutory
immunity, and that the complaint did not contain sufficient factual assertions
supporting an inference that either Secretary Reisch (D) or the Director of Prison
Operations (D) was responsible for enforcing the settlement agreement. The circuit
court did not reach the issue of whether Sisney (P) had third-party standing to
enforce the Heftel Agreement. Sisney (P) appealed. The appellate court first
concluded that Sisney (P) was entitled to an inference that it was the defendants’
responsibility to enforce the Heftel Agreement, and then moved on to consider the
standing issue.
ISSUE
Did Sisney (P) have third-party standing to enforce the settlement agreement?

(Zinter, J.) Yes. A contract made expressly for the benefit of a third person may be
enforced by him at any time before the parties thereto rescind it. Before the third
party can adopt the agreement and recover thereon, he must show clearly that it was
entered into with the intent on the part of the contracting parties that the third party
should be benefited thereby. Standing to enforce an agreement as a third-party
527
beneficiary may be conferred upon a class of individuals. In such cases, the terms
of the contract must clearly express an intent to benefit an identifiable class of
which the third party is a member. Here, the Heftel Agreement clearly expressed
that the DOC (D) agreed to provide a kosher diet to an identifiable class of which
Sisney (P) was a
414
member: all Jewish inmates who requested it. The agreement expressly reflected an
intent to benefit all members of that class, stating, for instance, that inmates who
request a kosher diet will receive kosher meals regardless of their custody status.
At the pleading stage, this explicit contractual language reflects the signatories’
intent to provide more than an incidental benefit to inmates like Sisney (P). An
inference arises from the contract language that the Heftel Agreement was intended
to expressly benefit all Jewish inmates who requested a kosher diet. Because
Sisney (P) alleged he was a member of that class, Sisney’s (P) complaint was
sufficient to state a claim that he is a third-party beneficiary with standing to
enforce the Heftel Agreement. Reversed and remanded.
Analysis:
It may seem that the first Sisney decision, discussed just prior to this case, conflicts
with the conclusion reached here. In fact, the decisions are compatible, and turn on
the language used in each of the subject contracts to describe the party or parties to
whom the contractual benefits inure. In the first Sisney case, the contract at issue
expressed an intent to benefit the state, not inmates in state penitentiaries. In this
case, the settlement agreement expressly stated that it was intended to benefit all
inmates who requested kosher diets—a class that Sisney (P) claimed to be a part
of. Therefore, while he did not have standing to contest the contract between the
state and the new food service provider, he did have standing to enforce a contract
between the DOC and a former inmate.
CASE VOCABULARY
PRO SE: For himself or herself, without formal legal representation.
415

(Former Student) v. (School)
212 S.W.3d 150 (Mo. 2007)
THIRD-PARTY BENEFICIARIES ARE NOT PRESUMED
528
INSTANT FACTS Verni (P) sued Makarov (D), claiming he was a third-party
beneficiary of Makarov’s (D) employment contract with Cleveland Chiropractic
College (D).
BLACK LETTER RULE There is a strong presumption that a contract was

executed for the sole benefit of the parties, and a third-party is not a beneficiary of
the contract unless the terms of the contract directly and clearly express the intent to
benefit the third-party or any class of which the third-party is a member.
PROCEDURAL BASIS
Appeal from an order of the Western District Court of Appeals reversing an order
granting Cleveland Chiropractic College’s (D) motion for judgment notwithstanding
the verdict, and denying Verni’s (P) motion for additur or a new trial.
FACTS
Verni (P) was a student at the Cleveland Chiropractic College (D). He was
dismissed for selling advance copies of an exam given by Makarov (D), a member
of the faculty at the College (D). After his dismissal, Verni (P) sued Makarov (D),
claiming that Makarov’s (D) dealings with him violated the provisions in the
faculty handbook that required faculty members to observe standards of decency in
dealing with students. Verni (P) claimed that the faculty handbook was a part of the
employment contract, and that Verni (P) was a third-party beneficiary of that
contract. The jury found in favor of Verni (P).
ISSUE
Was Verni (P) a third-party beneficiary of the contract between Makarov (D) and
Cleveland Chiropractic (D)?
529
(Wolff, C.J.) No. There is a strong presumption that a contract was executed for the
sole benefit of the parties, and a third-party is not a beneficiary of the contract
unless the terms of the contract directly and clearly express the intent to benefit the
third-party or any class of which the third-party is a member. A mere incidental
benefit to the third-party is not sufficient to make him or her a beneficiary.
The question is resolved by looking at the language of the contract. Makarov’s (D)
employment contract was a one-page document that required him to be on campus
for a certain amount of time every week and that outlined his teaching duties. The
contract also set out Makarov’s (D) salary and benefits. There was no clear
expression of intent that Makarov (D) was undertaking any duty to benefit Verni (P)
or a class of students. The contract also required Makarov (D) to comply with the
policies and procedures in the College’s (D) faculty handbook. The handbook
required faculty members to treat students with courtesy, respect, fairness, and
professionalism. The handbook also stated that students were entitled to expect
such treatment. Assuming that
416
the faculty handbook is a part of Makarov’s (D) employment contract, there is still
nothing that overcomes the strong presumption that the contract was executed solely
for the benefit of Makarov (D) and the College (D). Because Verni (P) was not a
third-party beneficiary, he had no standing to raise the breach of contract issue.
Standing issues are reviewed by the court de novo. Reversed.
Analysis:
In his suit, Verni (P) denied that he sold advance copies of Makarov’s (D) exam.
His claim against Makarov (D) was based on Verni’s (P) contention that Makarov
(D) had asked students to draft the exam questions, and the exam was ultimately
based mostly on questions drafted by Makarov (P). An anonymous informant
allegedly saw discarded copies of the questions, and falsely reported Verni (P) as
selling the questions
CASE VOCABULARY
ADDITUR: (Latin, “it is added to.”) A trial court’s order, issued usually with the
defendant’s consent, that increases the damages awarded by the jury to avoid a new
trial on grounds of inadequate damages. The term may also refer to the increase
itself, the procedure, or the court’s power to make the order.
417
Grigerik v. Sharpe
530
(Buyer of Land) v. (Drainage Engineer)
247 Conn. 293, 721 A.2d 526 (1998)
THE INTENT OF BOTH CONTRACTING PARTIES DETERMINES WHETHER

A THIRD PARTY MAY BE DESIGNATED AS A BENEFICIARY TO A
CONTRACT
INSTANT FACTS Claiming status as a third-party beneficiary, a buyer of a tract

of land filed suit against the sewage engineer hired by the seller to develop a
drainage plan which would be approved by the town sanitarian.
BLACK LETTER RULE The intent of both, not just one, of the parties to a
contract determines whether a third party is to be afforded third party beneficiary
status under a contract.
PROCEDURAL BASIS
Appeal to the Connecticut Supreme Court to review the decision of the Appellate
Court, which, partly on the ground that jury was incorrectly charged as to third
party beneficiaries, reversed the trial court’s judgment entered after the jury
returned a verdict for the plaintiff.
FACTS
Joseph Grigerik (P) contracted to buy a tract of land from Edward Lang for
$16,000. As part of the sale Lang agreed to get the approval for the tract as a
building lot. To that end, Lang hired Gary Sharpe (D) to prepare a site plan for
drainage that would be approved by the town sanitarian. Although evidence
showed that Sharpe (D) was told the plan was necessary to obtain town approval
and effect the sale to Grigerik (P), Sharpe (D) denied having been so informed.
Nevertheless, Sharpe (D) prepared the plan, which was approved by the town
sanitarian, and the sale went through. When Grigerik (P) applied for a building
531
permit, a new town sanitarian and state authorities claimed the tract was unsuitable
for a septic system. Grigerik (P) filed suit against Sharpe (D), claiming, in addition
to negligence, his entitlement as a third party beneficiary of the services contract.
ISSUE
Is only the intent of the promisee to be considered when determining whether a
person not a party to the contract is entitled to status as a third party beneficiary?
(Borden, J.) No. The intent of both, not just one, of the parties to a contract
determines whether a third party is to be afforded third party beneficiary status
under a contract. We disagree with those commentators which argue that the
concept of intent is too “obscure and elusive” to determine the rights of third
parties. If the intent of the parties can serve to determine the inception and meaning
of a contract, it certainly may determine whether a third party should be granted
rights under a contract. Furthermore, § 302 of the Restatement (Second) states, in
essence, that a beneficiary is an intended beneficiary if recognizing him as such
effectuates the “intention of the parties.” Applying this standard to these facts lead
us to conclude that Grigerik (P) cannot prevail on his breach of contract claim.
Although the jury found that Grigerik (P) was a foreseeable beneficiary, that fact is
insufficient to grant him rights as a third party beneficiary. Application of the
foreseeability concept to the law of contracts would severely limit the power of the
parties to control the scope of their contractual duties. Reversed and remanded.
418
Analysis:
The existence of an intent to confer a benefit is often the critical inquiry in the area
of third-party beneficiaries. The test of intent differs significantly among
jurisdictions. Some courts hold that only the intent of the promisee (the seller Lang
in this case) is dispositive. However, other courts recognize that the intent of the
promisee should carry more weight, but make the promisor’s intent a factor in the
total inquiry. The court here adopts a test that requires consideration of the intent of
both contracting parties to determine whether a third person is entitled to third-
party beneficiary rights. The court here also rejects the concept of the foreseeable
third party beneficiary, reasoning that giving merely foreseeable parties
enforceable rights may take the contract out of the contracting parties’ hands. In a
jurisdiction that recognizes foreseeable beneficiaries, the parties are forced to
include a provision in their contract denying such party any enforceable rights. In
Connecticut, however, the foreseeable (but not intended) beneficiary is
532
automatically denied third-party beneficiary rights, unless the parties include a
provision providing otherwise.
CASE VOCABULARY
FORESEEABLE BENEFICIARY: A person who is not a party to the contract, but
which the contracting parties could have foreseen would directly benefit from the
contract.
INTENDED BENEFICIARY: A person to whom the parties to a contract intend to
confer a benefit arising from the contract.
419

(Assignee-Competitor) v. (Obligee)
801 F.2d 1001 (7th Cir. 1986)
PERFORMANCE MAY NOT BE DELEGATED TO A DIRECT COMPETITOR

WITHOUT OBLIGEE’S CONSENT
INSTANT FACTS The exclusive distributor of beauty products delegates his

best effort obligations to the subsidiary of direct competitor.
BLACK LETTER RULE The duty of performance under a “best efforts”

exclusive distributorship may not be delegated to a competitor without the
obligee’s consent.
PROCEDURAL BASIS
Appeal of summary judgment by the District Court for a breach of contract.
FACTS
533
The Best Barber Beauty & Supply Company was acquired by the Sally Beauty
Company (P). Sally (P) succeeded to Best’s rights and interests, in all of Best’s
contracts, including an agreement to exclusively distribute Nexxus Products (D) in
Texas. Nexxus (D) renounced all of its obligations, upon the occurrence of the
merger, because Sally Beauty (P) was a wholly-owned subsidiary of Alberto-
Culver, a direct competitor of Nexxus (D). Nexxus (D) held “great reservations
about a competitor acting as a distributor of Nexxus (D) products. Nexxus (D)
claimed its agreement with Best was based upon “personal trust and confidence
which precluded an assignment to Sally (P) absent Nexxus’ consent. Sally Beauty
(P) argued that the contract was between corporations and the expected
performance would not be altered by Sally Beauty (P). The trial court affirmed a
motion for summary judgment, brought by Nexxus (D), “based upon a relationship
of personal trust and confidence.
ISSUE
Whether an exclusive distributorship contract may be assigned to a direct
competitor of the assignee without the obligee’s consent?

(Cudahy) No. The exclusive distribution agreement called for Best’s “best efforts
to distribute Nexxus (D) products. Nexxus (D) refused to accept that Sally (P), the
subsidiary of a direct competitor, Alberto-Culver, could carry out its “best efforts”
In good faith. The “… duty of performance under an exclusive distributorship may
not be delegated to a competitor… without the obligee’s consent.” It is reasonable
that Nexxus (D) believed that the “best efforts” it had bargained for would be
different under the control of a competitor, Alberto-Culver. Sally’s (P) contention,
that it should be allowed to proceed to trial to prove that it could perform with
“best efforts to Nexxus’ (D) satisfaction, is not consistent with a “best efforts
contract, which is nondelegable, without Nexxus’ (D) consent. An obligee cannot
be forced to accept a delegation of a performance in which the obligee cannot have
full confidence in the best efforts of the assignee. Sally (P) has an obvious conflict
of interest as a wholly-owned Alberto-Culver subsidiary. Therefore, the contract
between Nexxus (D) and Best was not assignable to Sally (P), absent Nexxus’
consent. Summary judgment affirmed.
420
DISSENT
(Posner) Since General Motors sells cars manufactured by Isuzu, why couldn’t
Sally (P) be expected to perform with “best efforts” to distribute Nexxus’ (D)
534
products? In the long run it would appear to be an incredibly poor business
decision to sabotage Nexxus’ (D) products, in a futile effort to monopolize the
market. Not only would that violate federal antitrust acts but also create unwanted
negative publicity. Furthermore, there is no reason to think that the one-year
obligation to promote their competitor’s products would so seriously injure Sally
(P) that they would violate their assigned contract for a risky competitive
advantage. If Nexxus (D) had any concern over Sally’s (P) best efforts, they should
have “demanded assurance of due performance.”
Analysis:
“Best efforts” contracts are generally non-delegable since they are generally based
on a personal relationship or personal knowledge that one party has with another.
“Best efforts implies a subjective standard for judging the adequacy of another
party’s abilities to perform to the satisfaction of the obligee. The technical skills
that might be required for the particular performance are secondary to the good
faith efforts that are expected by the obligee. Good faith or best efforts are not
measurable quantities, but qualities that can only be assessed in the most subjective
fashion. An obligee who “feels” uncomfortable with the best efforts of an assignee
cannot be expected simply to accept the delegation of a performance to that
assignee. And despite the logic of the dissent, it would truly be odd to expect one
corporation to accept categorically that a direct competitor would give its best
efforts to promote and distribute a product that would damage the competitor’s own
profit margin.
CASE VOCABULARY
ANTITRUST ACTS: Statutes that prevent unlawful price fixing and monopolies.
DELEGATE: To transfer a duty to perform from one party to another.
MERGE: The absorption of one company by another causing the loss of the
absorbed company’s identity.
MONOPOLY: Total control by one company over a particular supply of goods or
services.
OBLIGEE: A party to whom a promise to perform is made per se, by itself, in and
of itself
RENOUNCE: Absolute and unequivocal rejection or abandonment
SUBSIDIARY: A company that is under the control of another company.
421
535
Herzog v. Irace
(Surgeon) v. (Attorney)
594 A.2d 1106 (Me. 1991)
AN ASSIGNOR RETAINS NO POWER OF REVOCATION AFTER MAKING

AN ASSIGNMENT
INSTANT FACTS As consideration for a doctor’s promise to perform surgery

for no up-front payment, Gary Jones assigned his payment rights under a pending
personal Injury action to the doctor, but Jones later attempted to revoke the
assignment.
BLACK LETTER RULE An assignor must dearly demonstrate his intent to

relinquish any rights to the assignee, and thus an assignor may not retain a power of
revocation.
PROCEDURAL BASIS
Appeal of order affirming judgment for breach of assignment of personal injury
settlement proceeds.
FACTS
Gary Jones needed surgery to fix a shoulder injury, but he could not afford to pay.
However, Jones was expecting to receive a substantial amount of money in
settlement of a personal injury action he had instituted earlier. Thus, in lieu of
payment, Jones attempted to assign his right to the settlement monies to the surgeon,
Dr. Herzog (P). Dr. Herzog (P) notified Jones’s attorneys, Anthony Irace (D) and
Donald Lowry (D), regarding the assignment. Nevertheless, after Jones received a
$20,000 settlement award, Jones instructed Irace (D) and Lowry (D) not to pay Dr.
Herzog (P). Thereafter, Dr. Herzog (P) filed a complaint in an attempt to enforce
536
the assignment. The trial court rendered a judgment in favor of Dr. Herzog (P), the
Superior Court affirmed, and Irace (D) and Lowry (D) appealed again.
ISSUE
Does an assignor retain a power of revocation of an assignment?

(Brody, J.) No. An assignor retains no power of revocation over an assignment. In
an assignment, the assignor transfers some right to the assignee. For an assignment
to be valid and enforceable, the assignor must make clear his intent to relinquish the
right to the assignee and must not retain any control over the right assigned or any
power of revocation. In the case at hand, Jones validly assigned his right to a
portion of the pending settlement to Dr. Herzog (P), demonstrating an intent to
permanently relinquish all control over the assigned funds. He therefore had no
right to revoke the assignment by instructing Irace (D) and Lowry (D) not to pay Dr.
Herzog (P). Furthermore, Irace (D) and Lowry (D) were under no ethical
obligation to honor Jones’s instruction in disbursing the funds. Maine’s Bar Rules
say nothing about a client’s power to assign his rights to proceeds from a pending
lawsuit to third parties. Affirmed.
Analysis:
An assignments essentially a transfer of some right from one party (the assignor) to
some third party (the assignee). All that is required is a clear intent for the assignor
to relinquish his right.
422
And while the party who must perform to the assignee (the obligor) need not
consent to the assignment to render it valid, the assignment must not significantly
alter the burden imposed on the obligor. While each of these rules is important, the
only one essential to this case is the notion that an assignor may not revoke the
assignment after it has been made. Perhaps this rule is overly general. Suppose
Jones executed a written assignment to Dr. Herzog (P), but that Dr. Herzog (P) had
a change of heart and agreed to perform the operation for free. Wouldn’t it make
sense to allow Jones, the assignor, to revoke the assignment since Dr. Herzog (P)
had not detrimentally relied on it? Perhaps the better rule is based on an estoppel
theory, namely that an assignor may not revoke an assignment after the assignee has
materially changed position in justifiable, detrimental reliance on the assignment.
CASE VOCABULARY
ASSIGNEE: A third party to whom some contractual right is transferred.
537
ASSIGNMENT: An action demonstrating an intent to transfer a contractual right to
a third party.
ASSIGNOR: A party who transfers his rights under a contract to a third party.
OBLIGOR: A party who, following an assignment, must render performance to the
assignee rather than the assignor.
423

(Patent Licensor) v. (Assignee)
181 F.3d 435 (3d Cir. 1999)
CONTRACTS ARE FREELY ASSIGNABLE AND COURTS WILL INTERPRET

PROVISIONS RESTRICTING ASSIGNMENT NARROWLY SO AS TO
FURTHER THE POLICY FAVORING FREE ASSIGNABILITY
INSTANT FACTS A company which had assigned to it a contract for the rights
to distribute certain chemical products sought to avoid arbitration as required by
the contract on the ground that the assignment made to it was void because consent
was not obtained from the obligor.
BLACK LETTER RULE Contractual provisions limiting or prohibiting

assignments operate only to limit a parties right to assign the contract, but not their
power to do so, unless the parties’ clearly manifest an intent to the contrary.
PROCEDURAL BASIS
Appeal to the Third Circuit Court of Appeals to review an order of the district
court, which compelled a foreign party to submit to arbitration.
538
FACTS
The Bel-Ray Company (P) entered into a series of agreements (“Agreements”) with
Chemrite Ltd. (D), a South African corporation, giving Chemrite (D) the right to
blend and distribute certain lubricants. When Lubritene Ltd. (D) acquired Chemrite
(D), Lubritene (D) had assigned to it all of the rights under the Agreements. Bel-
Ray (P) was informed of the transfer and it continued to do business with Lubritene
(D). Bel-Ray (P) then filed an action against Lubritene (D) in federal District Court
in New Jersey, alleging fraud and violations of the Agreements. Bel-Ray (P) sought
and was granted an order compelling Lubritene (D) to submit to arbitration on the
ground that the Agreements contained valid and enforceable arbitration clauses.
Lubritene (D) appealed the order. Lubritene (D) argued that it was not required to
submit to arbitration because the rights under Agreements were assigned to
Lubritene (D) without Bel-Ray’s (P) consent, which was expressly required by the
language of the Agreements. Hence, Lubritene (D) argued, there was no written
agreement to arbitrate between it and Bel-Ray (P).
ISSUE
Is an assignment of contractual rights automatically voided when it is in breach of a
provision restricting the assignment of such rights?

(Stapleton, Cir. J.) No. Contractual provisions limiting or prohibiting assignments
operate only to limit a parties right to assign the contract, but not their power to do
so, unless the parties clearly manifest an intent to the contrary. This rule mirrors §
322 of the Restatement (Second) of Contracts, which provides that, unless a
contrary intent is manifested, a contract term prohibiting the assignment of rights
under the contract gives the obligor a right to damages for breach of the terms
forbidding assignment but does not render the assignment ineffective. An
assignment made contrary to the terms of the contract will be voided only where the
parties expressly provide that such is to be the consequence of such assignment.
The Agreements at issue here
424
contain no language which would suggest an intent to void assignments made

without the consent of Bel-Ray (P). Accordingly, the assignment made by Chemrite
(D) to Lubritene (D) is enforceable and Lubritene(D) is required to submit to
arbitration. Affirmed.
Analysis:
539
This case illustrates the majority rule regarding the contractual provisions that
purport to restrict the assignment of rights accruing under the contract. Although
early cases suggested that such terms effected an unlawful restraint on alienation,
the rule that prevails today is that restrictions on the assignment of rights are to be
construed only as promises. Unless the contracting parties clearly state otherwise,
an assignment of rights made contrary to the terms of the contract will give rise only
to a claim for damages, and will not act to negate the assignment. Since the
damages that would usually flow from an extra-contractual assignment are likely to
be minimal, anti-assignment clauses are practically ineffective if they are phrased
improperly. Article 9 of the Uniform Commercial Code makes ineffective all
clauses that purport to prohibit the assignment of an “account”, as that term is
defined by the UCC Article 2 has a similar provision regarding the assignment of a
right to damages, a right to payment for goods delivered, and a right to the receipt
of goods already paid for.
CASE VOCABULARY
ANTI-ASSIGNMENT PROVISION: A contractual term which is aimed at
restricting the parties from assigning their rights accruing under the contract.
425
Delacy Investments, Inc. v. Thurman & Re/Max Real Estate Guide,

Inc.
(Lender) v. (Real-Estate Agent) & (Real Estate Brokerage)
693 N.W.2d 479 (Minn. Ct. App. 2005)
AN ASSIGNEE HAS NO GREATER RIGHTS THAN THE ASSIGNOR
INSTANT FACTS Thurman (D) assigned his unpaid real estate commissions to
Delacy (P), but Re/Max (D) refused to pay Delacy (P).
540
BLACK LETTER RULE An assignee’s rights are subject to the terms of any
contract that creates the rights of the assignor.
PROCEDURAL BASIS
Appeal from an order granting summary judgment for Re/Max (D).
FACTS
On November 11, 2001, Thurman (D), a real-estate agent, entered into an
agreement with Delacy Investments (P), d.b.a. Commission Express (P), called a
“master repurchase and security agreement.” The agreement provided that Thurman
(D) granted to Commission Express (P) a security interest in all of his current and
future accounts receivable. In exchange for the assignment, Thurman (D) would
receive immediate funds from Commission Express (P). Commission Express (P)
duly perfected its security interest by filing a financing statement.
On February 25, 2003, Thurman (D) entered into an independent contractor
agreement with Re/Max (D). The agreement provided that Thurman (D) would pay
certain overhead expenses to Re/Max (D). The agreement also provided that
Thurman (D) would be entitled to receive only that part of his commissions that
exceeded his past-due obligations for overhead expenses. The portion of Thurman’s
(D) commissions that did not exceed his past-due obligations was deemed to
belong to Re/Max (D), to be used to offset arrearages. The legal relationships of
the parties made Commission Express (P) the “assignee,” Thurman (D) the
“assignor,” and Re/Max (D) the “account debtor.”
In April 2003, Re/Max (D) executed an acknowledgment of Commission Express’s
(P) security interest in Thurman’s (D) commission from the sale of a home on
Javelin Avenue. Re/Max (D) directed that Thurman’s (D) commission be paid
directly to Commission Express (P). Later that month, Commission Express (P) and
Thurman (D) entered into an agreement whereby Commission Express (P) agreed to
purchase a $10,000 receivable related to Thurman’s sale of a property on Keller
Lake Drive. On June 7, Re/Max (D) terminated Thurman (D) for poor performance,
failure to deposit earnest-money payments on time, and customer complaints.
Re/Max (D) claimed that Thurman (D) owed Re/Max (D) $11,126.38 in overhead
debts. Re/Max (D) refused to pay Commission Express (P), saying that Thurman
(D) was not entitled to be paid because his past-due overhead obligations exceeded
his commission.
Commission Express (P) brought suit against Thurman (D) and Re/Max (D).
Thurman (D) did not plead, so judgment by default was entered against him. The
trial court granted Re/Max’s (D) motion for summary judgment, holding that
Thurman (D) was not entitled to receive a
541
426
commission from the sale of the Keller Lake Drive property, and that it was
impossible for Commission Express (P) to obtain a greater right in the commission
than Thurman (D) had.
ISSUE
Was Commission Express (P) entitled to receive the commission?
(Halbrooks, J.) No. An assignee’s rights are subject to the terms of any contract that
creates the rights of the assignor. Section 9–404(a)(1) provides that the rights of an
assignee are subject to the terms of the agreement between the assignor and the
account debtor. A valid assignment grants the assignee the same rights that the
assignor had in whatever was assigned. Thurman (D) was not entitled to collect a
commission while he owed Re/Max (D) for overhead expenses. There is no
question that Thurman (D) was in arrears on his payments to Re/Max (D), and he
was therefore not entitled to collect a commission on the Keller Lake Drive sale.
Because the rights of Commission Express (P) were subject to the agreement
between Thurman (D) and Re/Max (D), Commission Express (P) was not entitled
to collect the commission from Re/Max (D). It was impossible for Commission
Express (P) to obtain a greater right in the commission than Thurman (D) had in the
commission. Commission Express (P) could have contracted so that it was not
bound by the agreement between Thurman (D) and Re/Max (D), but it did not do so.
Commission Express (P) argues that U.C.C. § 9–404(a)(2) bars Re/Max (D) from
refusing to pay, because it had notice of a previously executed assignment.
Commission Express (P) further argues that there are limits to the setoffs an account
debtor, such as Re/Max (D), may assert against payment to an assignee after notice
of the assignment. Commission Express (P) says that Re/Max (D) had notice of the
assignment from the filing of the financing statement, and that it had actual notice
from the delivery of the notice regarding the Javelin Avenue property, as well as the
notice of the assignment of the Keller Lake Drive receivable. But U.C.C. § 9–
404(a)(1) provides an exception to the general rule. Although Re/Max (D) had
notice of the assignment between Thurman (D) and Commission Express (P) before
the independent contractor agreement was entered into, the independent contractor
agreement limited payment to Thurman (D) to the commissions that exceeded his
past-due financial obligations to Re/Max (D). Commission Express (P) could take
no greater rights than Thurman (D) had. Affirmed.
Analysis:
542
The court notes that Commission Express (P) could have, if it had chosen to do so,
negotiated its contract so that its right to receive payment would not be subject to
Re/Max’s (D) right to withhold commissions for unpaid overhead. An easier course
of action may have been to make inquiries before advancing any money. It appears
that there was no blanket agreement that automatically obligated Commission
Express (P) to advance commissions, as the court refers to separate agreements
made for each transaction. Commission Express (P) could have avoided the whole
issue by verifying with Re/Max (D) whether Thurman (D) owed Re/Max (D) any
money before agreeing to advance commissions
CASE VOCABULARY
INDEPENDENT CONTRACTOR: One who is hired to undertake a specific
project but who is left free to do the assigned work and to choose the method for
accomplishing it. Unlike an employee, and independent contractor who commits a
wrong while carrying out the work does not create liability for the one who did the
hiring.
PERFECTED SECURITY INTEREST: A security interest that has completed the
statutory requirements for achieving priority over other security interests that are
subject to the same requirements.
427

(Institutional Lender) v. (Law Firm)
126 N.H. 688, 498 A.2d 706 (1985)
A BUYER MAY WAIVE ANY CLAIM FOR BREACH OF WARRANTY ON A

PRODUCT WHEN THE OBLIGATION TO PAY FOR THE PRODUCT IS
ASSIGNED
543
INSTANT FACTS Rinden Professional Association (D), the buyer in a lease-
purchase agreement, waived all warranties when the right to receive payments was
assigned to Chemical Bank.
BLACK LETTER RULE When the right to receive payments on a sales

contract is assigned, the original buyer may waive all warranties on the products.
PROCEDURAL BASIS
Appeal of master’s favorable report in action seeking to enforce waiver-of-
warranties provision.
FACTS
Rinden Professional Association (D), a law firm, entered into a lease-purchase
agreement with Intertel for the installation of a telephone system, Intertel assigned
its rights to the lease payments to Chemical Bank (P). Rinden’s (D) office manager
assented to the terms of the assignment, which required Rinden (D) to continue
making payments to Chemical Bank (P) regardless of any claims they might have
against Intertel. However, after the phone system began to malfunction, Rinden
refused to make further payments to the bank. Intertel had gone bankrupt at the time,
and Chemical Bank (P) brought suit to enforce the waiver clause. A master issued a
report favoring the bank, and Rinden appealed on grounds that the waiver clause
was unenforceable.
ISSUE
When the right to receive payment for an installment-sale transaction is assigned,
may the purchaser validly waive the sales warranties?

(Douglas, J.) Yes. When the right to receive payment for an installment-sale
transaction is assigned, the purchaser may validly waive the sales warranties. In
order for the waiver to be valid, pursuant to the UCC and Massachusetts law, there
must be an agreement by the buyer, who is not a consumer, to waive defenses
against an assignee. Furthermore, the assignment must have been made for value, in
good faith, and without notice of a claim or defense. In the case at hand, Rinden (D)
agreed to the waiver-of-defenses clause, and Rinden (D) did not claim to be a
consumer. In addition, the assignment to Chemical Bank (P) was made for value, as
the bank paid Intertel over $8,800. There is no basis for concluding that Chemical
Bank (P) was not acting in good faith, or that it took the assignment with notice of
Rinden’s (D) claim or defense. Moreover, there is no validity to Rinden’s (D)
argument that consideration was required to make Rinden’s (D) waiver valid, as
544
modifications under the UCC need no consideration. Finally, this decision is in
accord with the general policy of encouraging the supply of credit and insulating the
lender from lawsuits over the quality of goods. Affirmed.
428
Analysis:
While the court’s analysis, upholding the validity of the waiver, appears to be
consistent with the relevant statutes, it certainly leaves Rinden (D) in an unenviable
position. Rinden (D) was unfortunate enough to foolishly assent to a waiver of
defenses (gaining nothing in return), and now the law firm is paying the price. Thus,
even though the leased phone system was a complete dud, Rinden (D) had to
continue making payments to Chemical Bank (P) because it effectively agreed not to
complain about any defects. This clause certainly seems harsh and oppressive, but
apparently neither the master nor the state supreme court believed that it was
unconscionable. Nevertheless, the powerful Chemical Bank (P) seems to
completely take advantage of Rinden (D) in this case. Although Rinden (D) was a
professional law firm, it could make a valid claim that it was an inexperienced
“consumer” of telephone services. If this were so, then the statute at hand would not
apply. Unfortunately for Rinden (D), it failed to prove this point.
CASE VOCABULARY
MASTER: A judicial officer appointed to assist courts with specific duties,
including making preliminary findings of fact and conclusions of law.
545

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Keyed to Farnsworth’s Casebook on Contracts, 8th

© West, a Thomson business, 2002

Printed in the United States of America

Chapter One. Bases for Enforcing Promises

Chapter Two. Creating Contractual Obligations

Dixon v. Wells Fargo, N.A.

Chapter Three. Statutes of Frauds

Chapter Four. Policing the Bargaining Process

Chapter Five. Determining the Parties’ Obligations under the Contract

Williams v. Walker-Thomas Furniture Co.

Chapter Seven. Remedies for Breach

K & G Construction Co. v. Harris

Chapter Nine. Basic Assumptions: Mistake, Impracticability, & Frustration

Chapter Ten. Third Parties: Rights & Responsibilities

Black Letter Rule: Past services is not sufficient consideration to support a

Black Letter Rule: When a physician renders emergency medical services to a

WORDS THAT CONSTITUTE A PROMISE MAY BE THE BASIS OF A

INSTANT FACTS Dr. McGee (D) guaranteed that an operation would be “a

BLACK LETTER RULE The question of whether a contract is formed is a

Bayliner Marine Corp. v. Crow

WARRANTIES ARISE FROM STATEMENTS OF FACT

DECISION AND RATIONALE

United States Naval Institute v. Charter Communications, Inc.

COURTS WILL NOT ALLOW PUNITIVE DAMAGES ON A BREACH OF

DECISION AND RATIONALE

compelling performance of a promise. Here the inclusion of profits in the

INSTANT FACTS Plastic surgeon disfigures patient in the course of performing

BLACK LETTER RULE Clear proof of a doctor’s promise of specific

Justice Kaplan appears to support an Inquiry Into the patient’s subjective

TEN DOLLARS IN DAMAGES IS NOT “NOMINAL”

DECISION AND RATIONALE

FORBEARANCE OR GIVING UP SOME LEGAL RIGHT IS GOOD

Dyer v. National By-Products, Inc.

COMPROMISE OF A DOUBTFUL RIGHT ASSERTED IN GOOD FAITH IS

BLACK LETTER RULE Forbearance to assert a claim or defense that proves

DECISION AND RATIONALE

Feinberg v. Pfeiffer Co.

A PROMISE MADE IN CONSIDERATION OF A PRIOR PERFORMANCE IS

BLACK LETTER RULE Past services is not sufficient consideration to

DECISION AND RATIONALE

A PROMISE TO PAY FOR PAST EXPENSES IS NOT SUPPORTED BY

BLACK LETTER RULE Past expense is not sufficient consideration to support

DECISION AND RATIONALE

THE ACT OF SAVING A PARTY FROM DEATH OR GRIEVOUS BODILY

DECISION AND RATIONALE

A MORAL OBLIGATION IS NOT CONSIDERATION

BLACK LETTER RULE A humanitarian act performed voluntarily is not

RELIANCE DOES NOT IMPOSE CONTRACTUAL LIABILITY IN THE

BLACK LETTER RULE A bargained-for exchange is required for all

Lake Land Employment Group of Akron, LLC v. Columber

CONTINUED EMPLOYMENT IS SUFFICIENT CONSIDERATION FOR A

BLACK LETTER RULE The continuation of an at-will employment

Traditionally, courts have carefully scrutinized noncompetition agreements.

ILLUSORY PROMISES DO NOT CREATE BINDING CONTRACTS

BLACK LETTER RULE In order to be legally binding, a promise must be

DECISION AND RATIONALE

SATISFACTION CLAUSES DO NOT RENDER CONTRACTS ILLUSORY OR

BLACK LETTER RULE A contract that is dependent on one party’s subjective