Contracts - University of Cincinnati College of · PDF fileContracts Fall 2015 ... much of it is concerned with determining the obligations created by the many ... on the bar exam,

Contracts Fall 2015 Prof. Houh Course Introduction & Syllabus Page 1 of 15

Contracts [24 BCL 501 • 4 credits]

Fall Semester 2015 Section 2 M & T 10:40am-12:05pm Th 11:10am-12:05pm Room 100A

Professor Emily Houh Email: [email protected] 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 will 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.

mailto:[email protected]








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 or rent 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 (2015-16) (“Rulebook” of “statutory supplement”).

NOTE that a new edition of the Rulebook is published periodically but not annually. If you do not want to purchase this newest 2015-16 edition, you may use the 2012-13 edition, but nothing older than that. 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, in my opinion, an indispensable resource and 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 treatises and hornbooks that might work well for you, but Farnsworth is my favorite. Brian A. Blum, Examples & Explanations: Contracts (6th ed. 2013). The “E&E” series of study aids, of which this book is a part, is excellent. The Contracts E&E covers essential contract doctrines and provides hypos you can work through, either on your own or with your study group, to test your understanding of specific rules and doctrines. Clear explanations of answers also are provided. While I do not recommend that you learn contract law through the Contracts E&E, I highly recommend it as a study aid.

A word about commercial outlines and canned briefs

While I don’t prohibit the use of commercial outlines and canned case briefs, 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 case briefs 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.


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, at 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 (doctrine + 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 provisions of the Restatement and UCC, both of which can be found in the Rulebook, that are discussed in the reading assignments. 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/or 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:

(1) several written assignments over the course of the semester, ranging in type and length, together worth a total of 200 points; and

(2) a four-hour final exam worth 400 points.

Thus, your final grade for the course will be based on the available total of 600 points.

Additionally, excellent class participation, preparation, and attendance may, at my discretion, result in the raising of a final grade for the course by 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 and/or lateness 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 check attendance frequently.

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 of this document, 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 rambling.

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:

You will be given a range of different writing assignments over the course of the semester, which I will discuss in further detail in class. Note that the first of these written assignments is due in class on the first day of class (August 24). Please see the “First Assignment” that has been posted both on the UC Law website and TWEN for details about this written assignment.

Final exam:

The final exam, worth 400 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 nearer.


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.

I strongly discourage “scribing” as a form of note-taking. Though 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, using your own judgment in taking notes about what is important (and accurate/correct), and then reviewing and discussing your notes after class in study groups or with classmates. Keep in mind that learning how to take good law school notes now will serve you well in the remainder of your time here.

Finally, please know that I have seriously considered 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 online polling tools that enable you to respond to questions via either your cell phone or laptop. If I decide to use these tools, I will let you know and instruct you on how to use them. Moreover, if I decide to use them, please be patient, as I don’t have much expertise when it comes to new technologies.

For discussion of why taking longhand notes is better than doing so on a laptop with respect to long-term and conceptual learning, see the short article posted on the TWEN site under “Course Materials.”

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

Academic dishonesty: At the risk of stating the obvious, the UC 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.

http://www.law.uc.edu/current-students/resources/honor-council-and-honor-code


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)


SCHEDULE OF ASSIGNMENTS

All assignments appearing below, unless otherwise indicated, refer to the 7th edition (2012) of the Knapp, Crystal, and Prince Casebook (“KCP”). 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, WITH CASE NAMES KCP7 PP

1 / M 8-24 Course Introduction • See “Assignment for First Day of Class,” posted on both the UC Law website and the TWEN website for this course.

Supp. Reading Packet #1, pp. 1-40 (skipping parts as marked)

2/ T 8-25 Finish Principles of Contract Law • Reliance / Ricketts v. Scothorn • Restitution / Cotnam v. Wisdom et al. • The [3] Principles in Action / Allison v. J.P. Morgan Chase Bank

Supp. Reading Packet #1, pp. 40-58

3 / Th 8-27 Ch. 2: The Basis of Contractual Obligation: Mutual Assent and Consideration A. Mutual Assent (stop at “1. Intention to be Bound …” – skip this section) 2. Offer and Acceptance in Bilateral Ks • Lonergan v. Scolnick • Izadi v. Machado (Gus) Ford, Inc.

KCP 31-33 KCP 43-53

4/ M 8-31 2. Finish Offer and Acceptance in Bilateral Ks • Normile v. Miller 3. Offer and Acceptance in Unilateral Ks • Petterson v. Pattberg • Cook v. Coldwell Banker Comment: Remedies for Breach of Contract

KCP 54-60 KCP 61-71 KCP 71-73


5/ T 9-1 4. Postponed Bargaining: The “Agreement to Agree” • Walker v. Keith • Quake Construction, Inc. v. American Airlines, Inc. B. Consideration (KSN) 1. Defining Consideration • Hamer v. Sidway

KCP 73-92 KCP 97-102

6/ Th 9-3 1. Defining KSN, cont’d. • Pensy Supply, Inc. v. American Ash Recycling Corp. of PA 2. Applying the KSN Doctrine • Dougherty v. Salt

KCP 104-13 KCP 113-16

M 9-7 NO CLASS – HAPPY LABOR DAY!

7/ T 9-8 2. Applying KSN, cont’d. • Batsakis v. Demotsis • Comment: Option Contracts, Consideration, and Limiting the Power to Revoke an Offer • Plowman v. Indian Refining Co. • Comment: The Power of Agents to Bind Their Principals C. K Formation under Art. 2 of the UCC 1. Mutual Assent under the UCC

KCP 119-34 KCP 142-44 (top)

8/ Th 9-10 1. Mutual Assent under the UCC, cont’d. • Jarmusch v. Naffziger • E.C. Styberg Engineering Co. v. Eaton Corp. • Comment: Introduction to the CISG 2. Irrevocable by Statute: The “Firm Offer”

KCP 144-55 KCP 155-56


9/ M 9-14 2. Finish Firm Offers, as necessary (see above)

3. Qualified Acceptance: The “Battle of the Forms” • Review slides posted on TWEN (“UCC 2-207 Battle of the Forms” and “UCC 2-207 Flowchart”) • Princess Cruises, Inc. v. General Electric Co. • Brown Machine, Inc. v. Hercules, Inc. • Notes following Paul Gottlieb & Co., Inc. v. Alps South Corp. but not case itself

KCP 159-78, 184-86

10/ T 9-15 3. Finish “Battle of the Forms,” as necessary (see above) D. Electronic and “Layered” Ks • Hines v. Overstock.com, Inc. • DeFontes v. Dell, Inc.

KCP 188-206

11/ Th 9-17 Finish Electronic and Layered Ks, as necessary – see above. Ch. 3: Liability in the Absence of Bargained-for Exchange: Promissory Estoppel and Restitution A. Protection of Promise Reliance: The Doctrine of Promissory Estoppel 1. Promises within the Family • Harvey v. Dow

KCP 209-11 (top); 212-18

12/ M 9-21 3. Promises in a Commercial Context • Katz v. Danny Dare, Inc. • Aceves v. U.S. Bank, N.A. (skim) • Comment: The Status and Future of Promissory Estoppel 4. Limiting the Offeror’s Right to Revoke: The Effect of Pre-Acceptance Reliance • James Baird Co. v. Gimbel Bros., Inc.

KCP 228-47 KCP 247-51

13/ T 9-22 4. Pre-Acceptance Reliance, cont’d. • Drennan v. Star Paving, Inc. • Comment: Contract Law and Business Practice • Berryman v. Kmoch

KCP 251-66


14/ Th 9-24 B. Liability for Benefits Received: The Principle of Restitution 1. Restitution in the Absence of a Promise • Credit Bureau Enterprises, Inc. v. Pelo

KCP 276-88

15/ M 9-28 1. Restitution in the Absence of a Promise • Commerce Partnership 8098 Ltd. Partnership v. Equity Contracting, Inc. • Watts v. Watts 2. Promissory Restitution • Mills v. Wyman

KCP 288-308 KCP 308-13

16 / T 9-29

2. Promissory Restitution, cont’d. • Webb v. McGowin Ch. 4 – The Statute of Frauds (SoF) A. General Principals: Scope and Application • Crabtree v. Elizabeth Arden Sales Corp.

KCP 313-21 KCP 325-36

17/ Th 10-1

A. SoF Scope and Application, cont’d. • Beaver v. Brumlow • Comment: The Historical Development of Law and Equity • Alaskan Democratic Party v. Rice

KCP 336-56

18/ M 10-5

A. Finish SoF Scope and Application, as necessary (see above) Ch. 5 – Meaning of the Agreement: Principles of Interpretation and the Parol Evidence Rule A. Principles of Interpretation • Joyner v. Adams • Frigaliment Importing Co. v. BNS International Sales Corp.

KCP 373-93

19/ T 10-6

B. The Parol Evidence Rule (PER) • Thompson v. Libby • Taylor v. State Farm Mutual Automobile Insurance Co. • Notes following Sherrod v. Morrison-Knudsen, but not case itself

KCP 405-30, 436-39

20/ Th 10-8

B. PER, cont’d. • Nanakuli Paving & Rock Co. v. Shell Oil Co.

KCP 439-53


Week of 10-12

HAPPY FALL BREAK – NO CLASS!

21/ M 10-19

Ch.6 – Supplementing the K: Implied Terms, Good Faith, and Warranties A. Rationale for Implied Contract Terms • Wood v. Lucy, Lady Duff-Gordon • Leibel v. Raynor Manufacturing Co. B. The Implied Obligation of Good Faith • Seidenberg v. Summit Bank

KCP 457-67 KCP 468-81

22/ T 10-20

B. The Implied Obligation of Good Faith, cont’d. • Locke v. Warner Bros., Inc. C. Warranties • Notes following Bayliner Marine Corp. v. Crow, but not case itself • Caceci v. DiCanio Construction Corp.

KCP 489-99 KCP 515-17, 522-25, 526-32

23/ Th 10-22

Ch. 7: Avoiding Enforcement: Incapacity, Bargaining Misconduct, Unconscionability, and Public Policy A. Minority and Mental Incapacity • Dodson v. Shrader

KCP 533-43

24/ M 10-26

A. Minority and Mental Incapacity, cont’d. • Hauer v. Union State Bank of Wautoma B. Duress and Undue Influence • Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline • Odorizzi v. Bloomfield School District

KCP 542-53 KCP 553-71

25/ T 10-27

B. Duress and Undue Influence, cont’d. • Finish Odorizzi v. Bloomfield School District, see above C. Misrepresentation and Nondisclosure • Syester v. Banta • Hill v. Jones • Comment: Lawyers’ Professional Ethics • Park 100 Investors, Inc. v. Kartes

KCP 571-99


26/ Th 10-29

D. Unconscionability • Williams v. Walker-Thomas Furniture Co. • Brower v. Gateway 2000 • Brooklyn Union Gas Co. v. Jimeniz

Supp. Reading Packet #2, pp. TBA

27/ M 11-2

Finish Unconscionability, as necessary (see above) E. Public Policy • Valley Medical Specialists v. Farber [skip Problem 7-2] • R.R. v. M.H. & another

KCP 638-63

28/ T 11-3

Ch. 8: Justification for Nonperformance: Mistake, Changed Circumstances, and Contractual Modifications A. Mistake • Lenawee Country Board of Health v. Messerly • Wil-Fred’s, Inc. v. Metropolitan Sanitary District

KCP 667-88

29/ Th 11-5

B. Changed Circumstances: Impossibility, Impracticability, and Frustration • Karl Wendt Farm Equipment v. International Harvester C. Modification • Alaskan Packers’ Association v. Domenico

KCP 688-704 KCP 717-27

30/ M 11-9

C. Finish Modification, as necessary (see above) Ch. 10 – Consequences of Nonperformance: Express Conditions, Material Breach, and Anticipatory Repudiation A. Express Conditions • Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co. B. Material Breach • Jacob & Youngs, Inc. v. Kent

KCP 787-800 KCP 809-18


31/ T 11-10

B. Material Breach, cont’d. • Comment: The Doctrine of Constructive Conditions • Sackett v. Spindler C. Anticipatory Repudiation • Truman L. Flatt & Sons Co. v. Schupf

KCP 818-27 KCP 828-36

32/ Th 11-12

Ch. 11 – Expectation Damages: Principles and Limitations A. Computing the Value of P’s Expectation Damages • Crabby’s Inc. v. Hamilton

KCP 847-62

33/ M 11-16

A. Computing P’s Expectation Damages, cont’d. • Finish Crabby’s Inc. v. Hamilton, as necessary (see above) • Handicapped Children’s Education Board v. Lukaszewski B. Restrictions on the Recovery of Expectation Damages: Foreseeability, Certainty, and Causation • Hadley v. Baxendale

KCP 853-67 KCP 874-79

34/ T 11-17

B. Foreseeability, Certainty, and Causation Restrictions, cont’d. • Florafax International, Inc. v. GTE Market Resources, Inc. C. Restrictions on the Recovery of Expectation Damages: Mitigation of Damages • Rockingham County v. Luten Bridge Co.

KCP 879-91 KCP 891-95

35/ Th 11-19

C. Mitigation of Damages, cont’d. • Maness v. Collins

KCP 895-909

36/ M 11-23

D. Nonrecoverable Damages: Items Commonly Excluded from Plaintiff’s Damages for Breach of Contract • Zapata Hermanos Sucesores, SA v. Hearthside • Erlich v. Menezes • Comment: Recovery of Punitive Damages for Bad Faith Breach of Contract (skim)

KCP 916-41 (top)


37/ T 11-24

Ch. 12 – Alternatives to Expectation Damages A. Reliance Damages • Wartzman v. Hightower Productions, Ltd. • Walser v. Toyota Motors Sales, USA, Inc.

KCP 971-88

Th 11-26

HAPPY THANKSGIVING – NO CLASS!

38/ M 11-30

B. Restitutionary Damages • US ex rel. Coastal Steel Erectors, Inc. v. Algernon Blair, Inc. • Lancellotti v. Thomas C. Specific Performance • Notes following City Stores Co. v. Ammerman, but not case itself

KCP 989-1000 KCP 1013-15

39/ T 12-1

C. Specific Performance, cont’d. • Reier Broadcasting Company, Inc. v. Kramer D. Agreed Remedies • Barrie School v. Patch

KCP 1023-36 KCP 1036-52

40/ Th. 12-3

Wrap-up

Documents

Contracts - University of Cincinnati College of · PDF fileContracts Fall 2015 ... much of it is concerned with determining the obligations created by the many ... on the bar exam,