Contracts Fall 2013 Prof. Houh Course Introduction & Syllabus Page 1 of 12

Contracts [24 BCL 501 • 4 credits]

Fall Semester 2013 Sections 1, 3, and 5 M 10:40am-12:05pm, T 11:10am-12:05pm, Th 10:40am-12:05pm Room 118

Room 118

Professor Emily Houh Email: emily.houh@gmail.com Tel: 513-556-0108 Office: 421 Office hours: TBD and by appointment

COURSE DESCRIPTION & OVERVIEW

Contracts, like all of your first-year courses, is one of the most important classes you will take in law school. It covers the law of exchange transactions – which is to say, in very simplistic terms, it covers just about everything for which you pay money, as well as many things for which you don’t. While a significant part of this course covers how contracts and other private agreements are formed, much of it is concerned with determining the obligations created by the many agreements people and businesses enter into, when and how those obligations are to be performed, and what should (and does) happen when those obligations are not performed. Additionally, and importantly, the study of contract law is also the study of the theory and history of American law and jurisprudence. In other words, this course is not only about learning contract doctrines, rules, and cases, but is also about learning to understand, appreciate, and critique contract law within the larger context of the American legal system and American society more generally.

STUDENT LEARNING OBJECTIVES

General goals. In part, this course aims to equip you to:

1. find and identify legal rules, standards, and doctrines in court opinions, statutes, and other legal texts;

2. distinguish and analogize, in connection with (potential) legal disputes and problems, different facts and the legal rules and standards that apply to them;

3. using 1 and 2 above, efficiently and accurately identify relevant issues in various types of contractual disputes and fact patterns, whether encountered in the course materials, in the classroom, on the bar exam, and/or in practice;

4. learn and understand the theoretical and policy implications of various legal rules, standards, and doctrines in both abstract and applied terms;

5. construct thorough and effective legal arguments from various perspectives through your mastery of 1 through 4 above; and

6. coherently and persuasively articulate thorough and effective legal analyses through your mastery of all of the above.

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STUDENT LEARNING OBJECTIVES, CONTINUED

Specific performance goals. If you do the work required of you, you’ll be able by the end of the term to find, learn, analyze, and apply contract law when you are presented with new, unique, and sometimes baffling legal questions. More specifically, you should be able to:

1. find, read, interpret, and use various and interrelated contract rules, standards, and doctrines, using as your primary and secondary sources legal opinions (cases) and statutes (e.g., the Uniform Commercial Code), as well as other legal texts such as the Restatement (Second) of Contracts;

2. understand how and why contract law has developed and changed as it has, and why different jurisdictions sometimes have adopted varying approaches to and positions on particular rules, standards, and doctrines;

3. appreciate the legal theory/ies and policy goals underlying and informing the different approaches and positions mentioned in 2 above;

4. apply the various rules, doctrines, and norms to different fact situations and problems, and justify and anticipate different outcomes and conclusions as part of your legal analysis; and

5. achieve a level of comfort with doing all of the above on your feet and in front of your peers when you are called on.

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REQUIRED TEXTS

You must purchase the following two texts, new or used. You MUST bring EACH of these texts—including the Rulebook—to EVERY class session.

1. Charles L. Knapp, Nathan M. Crystal, and Harry G. Prince, Problems in Contract Law: Cases and Materials (7th ed. 2012) (“Casebook” or “KCP7”); and

2. Charles L. Knapp, Nathan M. Crystal, and Harry G. Prince, Rules of Contract Law (2012-13 or 2011-12 statutory supplement) (“Rulebook” of “statutory supplement”).

NOTE that a new edition of the Rulebook is published every other year. You may use any edition from the past three years. However, do NOT use anything older than the 2009-2010 edition. You MUST bring the Rulebook with you to every class. Do NOT use substitutions or online editions, either for in-class or out-of-class use.

RECOMMENDED TEXTS

E. Allan Farnsworth, Contracts (4th ed. 2004) (Aspen Student Treatise Series) (“Farnsworth”). This is a staple and, in my opinion, an indispensable study aid. If you decide not to buy this treatise and find yourself in need of assistance as you prepare for class, I strongly suggest that you take a look at it in the library, where I have placed a copy on reserve. There are, of course, many other contracts study guides and hornbooks that might work well for you, but Farnsworth is my favorite.

E. Allan Farnsworth 1928-2005

A word about commercial outlines and casebriefs

While I don’t prohibit the use of commercial outlines and casebriefs, I strongly discourage it.

Students who rely too heavily on commercial outlines and briefs often gain only a superficial understanding of cases and doctrines and often have a difficult time synthesizing material in preparation for the final exam.

Using commercial outlines and casebriefs as a substitute for the hard work of careful reading and analysis of cases and text simply won’t get you to where you’ll want to be, either day-to-day or at the end of the semester. So, use these types of materials sparingly, and at your own risk.

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CLASS EXPECTATIONS AND GRADING

On class preparation:

“Professor Houh requires us to prepare in too much detail for class.”

“Sometimes too much time is spent on discussing policy and theory in class.”

The above quotes paraphrase comments that have appeared somewhat regularly in my course evaluations over the years. Although meant as complaints, these comments actually assure me that I am doing my job as a law teacher because when it comes to the law, details mean everything. Moreover, when facts are complicated and compelling on both sides, policy and/or theory often win the day. At the end of the day, a good lawyer is one who is, as the very minimum, detail-oriented and well-prepared; and an exceptional lawyer is one who is both of these things and who understands how her analyses and arguments are informed by and will impact the “bigger picture” of the law (context + history + theory + policy).

Because I want you all to be exceptional lawyers someday, I have high expectations when it comes to class preparation. Here are a few suggestions for what you should do, at a minimum, to prepare for my classes:

Read and brief the assigned cases thoroughly and carefully.

Read (don’t skim!) the assigned notes following the cases, and READ the assigned Casebook comments. These

materials usually contain invaluable information about doctrine, theory, and policy, and many of the questions I ask in class will be based on them.

READ all assigned provisions of the Restatement and UCC, both of which can be found in the Rulebook. If you have difficulty with the provisions, try diagramming or flowcharting them – you’ll be surprised at how well this works. Also, note that with respect to the UCC, we will focus on Revised Article 1 and (unamended) Article 2.

Get into a study group that actually studies, and then be accountable to one another for your work.

If you come across assigned material that simply makes no sense to you, go first to Farnsworth (or other hornbooks and/or treatises) and try to figure it out. This will serve two purposes: (1) you’ll often find concrete examples in treatises and hornbooks that will be quite helpful; and (2) you’ll learn how to use treatises and hornbooks, which are important legal research resources more generally. If at that point you are still perplexed, come to my office hours or make an appointment to see me. I welcome the opportunity to chat with students about the material, but if you want to talk to me about specific rules or cases you don’t understand, I expect that you already will have made a good faith effort to figure things out on your own and/or in your study group.

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CLASS EXPECTATIONS AND GRADING, CONTINUED

On Grading and Assessment:

Your grade in this class will be based on two written assignments worth 10 points each to be submitted during the course of the semester, and a four-hour final exam worth 80 points, for a total of 100 points. Additionally, excellent class participation, preparation, and attendance may, at my discretion, result in the raising of a final grade for the course as much as 1/3 of a letter grade (e.g., from a B to a B+). On the flipside, poor class participation, preparation, or attendance will lower final grades to varying degrees, at my discretion. Note in particular that excessive absences will result in a failing grade for this course.

Class participation, including attendance:

You are expected to attend every class session. If you must miss a class, please inform me ahead of time and obtain notes from your classmates. I will check attendance sporadically with sign-in sheets.

I am a heavy user of the Socratic Method and also cold-call on students for a couple of reasons. First, as mentioned on page 4 above, the key to good lawyering is to be thoroughly prepared. I find that cold-calling in combination with Socratic colloquy most effectively motivate the largest number of students to prepare adequately for class. Second, talking in class is good practice for what you’ll have to do in actual practice, whether before a judge, mediator, with a partner or client, or simply when brainstorming a problem with your peers. Having said that, please think carefully as you speak so as to avoid stream-of-consciousness, uninformed rambling (also known as “bulls----ing”).

Substantively, when preparing for class, keep in mind the student learning objectives set forth on pages 1 and 2 of this document and follow my suggestions on page 4.

Written assignments:

Each of the two, 10-point assignments will be based on a Problem from the Casebook (see below Schedule of Assignments for tentative due dates and discussion dates). As you will see, each chapter in the Casebook contains several Problems, which serve an important purpose. As stated by the authors in the Preface of the Casebook:

The Problems, which often cast the student in the role of an attorney at the predispute stage, also raise questions of both law and lawyering, but without the benefit of already-reached judicial outcomes. The Problems can serve a number of functions for the student, such as integrating various strands of doctrine and providing a useful preparation for law school examinations. Probably their most important purpose, however, is to suggest that in real life there is likely to be not just one answer to a client’s problem but a whole range of possible answers, some of which are clearly wrong, but many of which are at least plausibly right, in varying degrees. Living with ambivalence and uncertainty is not always pleasant, but the ability to do so is surely a more necessary lawyering skill than mastering the niceties of citation form. (p. xxii) (emphasis added).

You will be required to submit your written assignments via TWEN, and we will discuss the details relating to format, etc., as we approach the due dates.

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Final exam:

The final exam, worth 80 points, will consist either entirely of essay questions, or of some combination of multiple choice and essay questions. The final exam will be graded anonymously. I will discuss the final exam in greater detail as the end of the semester draws closer.

Miscellaneous classroom management issues:

Laptops and technology: While in class, please refrain from emailing, IM-ing, g-chatting, shopping, playing games, watching videos, and engaging in all the other forms of distraction offered by your laptop, smart phone, iPad, tablet, and/or other electronic devices.

Also, I strongly discourage “scribing” as a form of note-taking. Though I realize laptops make transcription of lectures and discussion very easy, I think you’ll learn more from listening to class discussion, trying to follow along as best you can, and using your own developing judgment in taking notes about what is important (and accurate/correct). Keep in mind also that learning how to take discerning notes now will serve you well in your second and third years of law school.

Finally, you should note that every year, I seriously consider prohibiting the use of laptops in my classes because of the degree of distraction and disruption it so often produces in the classroom. However, because I think technology has such great potential as a teaching/learning tool—if used effectively—I’ve decided not to ban laptops. On that note, I may try, on occasion, to use an online polling site that enables you to respond to questions via either your cell phone or laptop. If I decide to use this polling site, I will let you know and instruct you on how to use it. Moreover, if I decide to use this site, please be patient with me – I’m of another generation and am not the most technologically savvy person in the world, but do want to try new things in the classroom that might be helpful to you.

Recording of class sessions: Recording of class sessions is NOT permitted unless specifically authorized by me upon individual request.

Academic dishonesty: At the risk of stating the obvious, the College of Law Honor Code applies to this course. Please be sure to read the entire Honor Code, which can be found here: http://www.law.uc.edu/current-students/resources/honor-council-and-honor-code.

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And finally, here is some unsolicited advice relating to law school generally (and the first year in

particular): while it’s necessary to take time for self-care and to keep it all in perspective,

remember this:

Go to the next page for the schedule of assignments.

(Published in The New Yorker, February 8, 1999, by Bruce Eric Kaplan)

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SCHEDULE OF ASSIGNMENTS

All assignments appearing below, unless otherwise indicated, refer to the 7th edition (2012) of the Knapp, Crystal, and Prince Casebook. Do not use prior editions of the Casebook! Relevant provisions of the UCC and the Restatement can be found in the Rulebook.

Please be advised that I may change, add, or drop topics/assignments as warranted via email, TWEN, and/or in-class announcements.

SESSION TOPIC AND ASSIGNMENT KCP7 PP

1 / M 8.19 Course Introduction and Syllabus • See “Assignment for First Day of Class,” which is posted on the UC Law website.

1-26

2 / T 8.20 Ch. 2 – Mutual Assent: Offer and Acceptance in Bilateral Ks • Ray v. William G. Eurice & Bros., Inc. • Lonergan v. Scolnick

31-48

3/ Th 8.22 Ch. 2 – Mutual Assent: Offer and Acceptance in Bilateral Ks, cont’d • Izadi v. Machado (Gus) Ford, Inc. • Normile v. Miller Ch. 2 – Mutual Assent: Offer and Acceptance in Unilateral Ks • Petterson v. Pattberg

48-60 61-67

4/ M 8.26 Ch. 2 – Mutual Assent: Offer and Acceptance in Unilateral Ks, cont’d • Cook v. Coldwell Banker/Frank Laiben Realty Co. • Comment: Remedies for Breach of Contract [skim] Ch. 2 – Mutual Assent: Postponed Bargaining: The “Agreement to Agree” • Walker v. Keith • Quake Construction, Inc. v. American Airlines, Inc.

67-73 73-92

5/ T 8.27 Ch. 2 – Mutual Assent: Postponed Bargaining: The “Agreement to Agree,” cont’d • Finish Quake Construction, Inc., as necessary • Comment: The Pennzoil/Texaco Case [skim] Ch. 2 – Consideration: Defining Consideration • Hamer v. Sidway • Comment: History of Consideration [skim]

92-94 97-104

6/ Th 8.29 Ch. 2 – Consideration: Defining Consideration, cont’d • Finish Hamer, as necessary • Pensy Supply, Inc. v. American Ash Recycling Corp. of PA Ch. 2 – Consideration: Applying the Consideration Doctrine • Dougherty v. Salt • Comment: The Lawyer’s Role in Counseling for Legal Effect [READ] • Batsakis v. Demotsis • Comment: Option Contracts, Consideration, and Limiting the Power to Revoke an Offer [READ]

104-13 113-26

M 9.2 HAPPY LABOR DAY – NO CLASS

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7/ T 9.3 Ch. 2 – Consideration: Applying KSN, cont’d • Plowman v. Indian Refining Co. • Comment: The Power of Agents to Bind Their Principals [READ] • Marshall Durbin Food Corp. v. Baker

126-42

8/ Th. 9.5 Ch. 2 – Mutual Assent Under the UCC • Jarmusch v. Naffziger • E.C. Styberg Engineering Co. v. Eaton Corp. • Comment: Introduction to the CISG [READ] Ch. 2 – Firm Offers • Irrevocability by Statute: The “Firm Offer” (skip Problems 2-4 & 2-5 for now] Ch. 2 – Qualified Acceptance: The “Battle of the Forms” • Introductory text in KCP7 • See TWEN posting for materials.

142-55 155-56 159-60

9/ M 9.9 Ch. 2 – The Battle of the Forms, cont’d • Princess Cruises, Inc. v. General Electric Co. • Brown Machine, Inc. v. Hercules, Inc. • Paul Gottlieb & Co., Inc. v. Alps South Corp.

160-86

10/ T 9.10 Ch. 2 – Electronic and “Layered” Contracting • Hines v. Overstock.com, Inc. • DeFontes v. Dell, Inc.

188-206

11/ Th 9.12 Ch. 3 – Promissory Estoppel • Kirksey v. Kirksey • Harvey v. Dow • King v. Trustees of Boston University • Katz v. Danny Dare, Inc.

209-35

12/ M 9.16 Ch. 3 – PE: The Effect of Pre-Acceptance Reliance • James Baird Co. v. Gimbel Bros., Inc. • Drennan v. Star Paving, Inc. • Comment: Contract Law and Business Practice [skim] • Berryman v. Kmoch • Pop’s Cones, Inc. v. Resorts International Hotel, Inc.

247-74

13/ T 9.17 Ch. 3 – PE: Review Problem • Problem 3-2 (10 points) – submit via TWEN no later than 9am on T 9.17.; also be prepared to discuss Problem in class. Further details about this assignment will be discussed in class before this problem is due.

274-76

14/ Th 9.19 Ch. 3 – Liability for Benefits Received: The Principal of Restitution – Restitution in the Absence of a Promise • Credit Bureau Enterprises, Inc. v. Pelo • Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting, Inc. • Watts v. Watts

276-308

5/ M 9.23 Ch. 3 – Liability for Benefits Received: The Principal of Restitution – Promissory Restitution • Mills v. Wyman • Webb v. McGowin Ch. 4 – The Statute of Frauds: Scope and Application • Crabtree v. Elizabeth Arden Sales Corp.

308-21 325-36

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16/ T 9.24 Ch. 4 – SoF: Scope and Application, cont’d • Beaver v. Brumlow • Comment: The Historical Development of Law and Equity [READ] • Alaskan Democratic Party v. Rice

336-56

17/ Th 9.26 Ch. 4 – SoF: UCC 2-201 • Buffaloe v. Hart • Comment: The Merchant Confirmation Exception [READ] Ch. 5 – Principles of Interpretation • Joyner v. Adams, and text following Joyner

359-70 373-85

18/ M 9.30 Ch. 5 – Principles of Interpretation, cont’d • Finish Joyner v. Adams, as necessary • Frigaliment Importing Co. v. BNS International Sales Corp. Ch. 5 – The Parol Evidence Rule • Thompson v. Libby • Taylor v. State Farm Mutual Automobile Insurance Co.

385-93 405-30

19/ T 10.1 Ch. 5 – PER, cont’d • Finish Taylor v. State Farm, as necessary • Sherrod, Inc. v. Morrison-Knudson Co.

431-39

20/ Th 10.3 Ch.6 – Implied Contract Terms • Wood v. Lucy, Lady Duff-Gordon • Leibel v. Raynor Manufacturing Co. Ch. 6 – Implied Obligation of Good Faith • Seidenberg v. Summit Bank

457-67 468-81

Week of 10.7 HAPPY FALL BREAK – NO CLASS

21/ M 10.14 Ch. 6 – Implied Obligation of Good Faith, cont’d • Locke v. Warner Bros., Inc. Ch. 6 – Implied Warranties • Bayliner Marine Corp. v. Crow • Caceci v. DiCanio Construction Corp.

489-99 515-25, 526-32

22/ T 10.15 Ch. 7 – Avoiding Enforcement: Minority • Dodson v. Shrader Ch. 7 – Avoiding Enforcement: Duress • Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline

533-42 553-63

23/ Th 10.17 Ch. 7 – Avoiding Enforcement: Undue Influence • Odorizzi v. Bloomfield School District Ch. 7 – Avoiding Enforcement: Misrepresentation and Nondisclosure • Syester v. Banta • Hill v. Jones

563-71 571-93

24/ M 10.21 Ch. 7 – Avoiding Enforcement: Misrepresentation and Nondisclosure, cont’d • Comment: Lawyers’ Professional Ethics [READ] • Park 100 Investors, Inc. v. Kartes Ch. 7 – Avoiding Enforcement: Unconscionability • Williams v. Walker-Thomas Furniture Co. • Comment: Consumer Protection Legislation [skim]

593-99 599-612

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25/ T 10.22 Ch. 7 – Avoiding Enforcement: Unconscionability, cont’d • Finish Williams v. Walker-Thomas, as necessary • Higgins v. Superior Court • Comment: Mandatory Arbitration and Unconscionability [READ]

613-26

26/ Th 10.24 Ch. 7 – Avoiding Enforcement: Public Policy • Valley Medical Specialists v. Farber [skip Problem 7-2] • R.R. v. M.H. & another

638-63

27/ M 10.28 Ch. 8 – Justified Nonperformance: Mistake • Lenawee Country Board of Health v. Messerly • Wil-Fred’s, Inc. v. Metropolitan Sanitary District

667-88

28/ T 10.29 Ch. 8 – Justified Nonperformance: Impossibility, Impracticability, and Frustration • Karl Wendt Farm Equipment v. International Harvester

688-704

29/ Th 10.31 Ch. 8 – Contract Modification • Alaskan Packers’ Association v. Domenico • Problem 8-3 (10 points) – submit via TWEN no later than 9am, Th 10.31, and prepare for class discussion. Further details about this assignment will be discussed in class before this problem is due.

717-27

30/ M 11.4 Ch. 10 – Express Conditions • Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co. Ch. 10 – Nonperformance: Material Breach • Jacob & Youngs, Inc. v. Kent • Comment: The Doctrine of Constructive Conditions [READ] • Sackett v. Spindler

787-800 809-27

31/ T 11.5 Ch. 10 – Nonperformance: Material Breach – finish, as necessary Ch. 10 – Nonperformance: Anticipatory Repudiation • Truman L. Flatt & Sons Co. v. Schupf

828-36

32/ Th 11.7 Ch. 11 – Computing Expectation Damages • Crabby’s Inc. v. Hamilton • Handicapped Children’s Education Board v. Lukaszewski

847-67

33/ M 11.11 Ch. 11 – Computing Expectation Damages, cont’d • American Standard, Inc. v. Schectman Ch. 11 – Restrictions on Expectation Damages: Foreseeability and Certainty • Hadley v. Baxendale • Florafax International, Inc. v. GTE Market Resources, Inc.

867-73 874-97

34/ T 11.12 Ch. 11 – Restrictions on Expectation Damages: Mitigation • Rockingham County v. Luten Bridge Co. • Maness v. Collins

891-909

35/ Th 11.14 Ch. 11 – Expectation Damages: Nonrecoverable Damages • Zapata Hermanos Sucesores, SA v. Hearthside • Erlich v. Menezes Ch. 12 – Alternatives to Expectation Damages: Reliance Damages • Wartzman v. Hightower Productions, Ltd.

916-37 971-80

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36/ M 11.18 Ch. 12 – Alternatives to Expectation Damages: Reliance Damages, cont’d • Walser v. Toyota Motors Sales, USA, Inc. Ch. 12 – Alternatives to Expectation Damages: Restitutionary Damages • US ex rel. Coastal Steel Erectors, Inc. v. Algernon Blair, Inc. • Lancellotti v. Thomas

981-88 989-1000

37/ T 11.19 Ch. 12 – Alternatives to Expectation Damages: Specific Performance • City Stores Co. v. Ammerman

1013-27

38/ Th 11.21 Ch. 12 – Alternatives to Expectation Damages: Agreed Remedies • Barrie School v. Patch • Problem 12-2 or 12-3, TBD – prepare for class discussion only; submission not required

1037-1053

39/ M 11.25 Catch-up, as necessary

40/ T 11.26 Catch-up, as necessary