Formation and interpretation of k 4 Statute of Frauds 4



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Amy Adler – Spring 2001

Contracts Checklist

Formation and interpretation of K 4

Statute of Frauds 4

(1)Is K within the statute? 4

(2)If so, are requirements of the statute satisfied? 4

(3)If not, what can we do now? 4



Cases 4

Marriage and Intent – Bader v. Hiscox 4

Year – Doyle v. Dixon 5

Parol Evidence Rule 5

(1)Is it final (integrated)? – RTT §209 5

(2)Is it a complete or partial integration? – RTT §210 5

(3)When PE is admissable – RTT §214 5



Cases 5

4-Corners Rule – Thompson v. Libby 5

Complete or Partial – Mitchell v. Lath 5

Farnsworth: 6

Zell v. American Seating/American Seating v. Zell 6

Excuses of Mistake, Impossibility, Impracticability & Frustration 7

Policy: Who should be excused and why? 7

Posner 7


(1)Who is in the better position to prevent the risk at lower cost? 7

(2)Who is the superior insurer? 7



Mistaken Assumptions About the Present 7

RTT §152 and §154: When does mistake void a K? 7

RTT §154: Bearing risk of Mistake 7

Cases 8

Mistake of Quality – Wood v. Boynton 8

Mistake of Nature – Sherwood v. Walker 8

Mistaken Assumptions About the Future 8

RTT 261 &265: Impracticability and Frustration 8

(1)Performance impracticable or principal purpose substantially frustrated 8

(2)Without parties’ fault 8

(3)By the occurrence of an event the non-occurrence of which was a Basic Assumption on which creation of the K was based. 8

(4)Unless language and circumstances indicate the contrary 9

UCC 2-615 : Void by Seller for Commercial Impracticability (see analysis under RTT) 9

(1)If he did not assume a greater obligation (by K) 9

(2)And his performance was made impracticable 9

(3)By the occurrence of a contingency, the non-occurrence of which was a Basic Assumption on which the K was made 9

Frustration at Common Law (Krell & Lloyd) 9

Cases 9

Absolute Liability – Paradine v. Jane: 9

Deposit – Savile v. Savile: 9

Personal Service – Hall v. Wright: 9

Implied Condition – Taylor v. Caldwell: 10

Corontion Frustration – Krell v. Henry: 10

Dificulty – School Trustees of Trenton v. Bennett: 10

Limits to Implied Condition– Canadian Industrial Alcohol v. Dunbar Molasses: 10

Foreseeable Frustration – Lloyd v. Murphy: 11

Posner applied – Printing Press Example 11



Incapacity, Misrepresentation and duress 12

Kronnmann – Efficiency 12

(1)Who is the cheaper information gatherer? 12

(2)Was information casually or deliberately acquired? 12



Nondisclosure and Misrepresentation 12

RTT §161 Nondisclosure 12

RTT §162 & §164 Fraudulent Misrepresentation 12

RTT §168 & §169 Reliance on Assertion of Opinion (Ad puff) 12



Cases 12

Silent Buyer – Laidlaw v. Organ: 13

Silent Seller – Swinton v. Whitinsville Savings 13

Duress & Undue influence 13

RTT §175 & §176: Duress by Threat 13

RTT §177: Undue Influence 13

Incapacity 13

RTT §14: Infants 13

RTT§15: Mental Illness or Defect 13

Unconscionability 15

Void for Unconscionability 15

(1)RTT §208 & UCC 2-302 15

(2)Procedural + Substantive 15

(3)Substantive Alone 15



Procedural Unconscionability – Lack of Meaningful Choice 15

(1)Inequality of bargaining power 15

(2)Reasonable opportunity to understand the terms 15

Substantive unconscionability – Unreasonable Terms 15

Tensions 15



Inalienable Entitlements – Warranty of Habitability 16

Cases 16

Usury or not – Embola v. Tuppela 16

Economic Duress – Bethlehem Steel 16

Substantive + Statute – American Home Improvement v. MacIver 17

Substantive + Procedural – Williams v. Walker Thomas 17

Price is not enough – Patterson v. Walker Thomas 17

Price is enough – Kugler v. Romain 17

Inalienable Entitlement – Fair v. Negley 18



Remedies 18

Equitable Remedies 18

Cases: 19

Personal Service – Lumley v. Wagner 19

K’ing for EQ– Stokes v. Moore 19

Definiteness – City Stores v. Ammerman 19

Unfairness – Campbell Soup v. Wentz 19

Expectation Damages 19

Cases 20

Certainty – Freund v. Washington Square Press 20

Substantial Performance – Jacob & Youngs 20

Diminution in Value – Peevyhouse v. Garland Coal 21



Cover under the UCC 21

UCC Seller’s Damages 21

UCC Buyer’s Damages 21

Cases 22

Pure K/Market Rule – Gainsford v. Carroll 22

UCC at work – Panhandle v. Becker 22

Consequential Damages 22

(1)Foreseeability 22

(2)Assumption of Risk 22

CASES 22

In Contemplation – Hadley v. Baxendale 22

Rejected “Tacit” Agreement Rule – Globe Refining v. Landa 23

Gloss on Hadley– The Heron II 23



Liquidated Damages 23

LD Rule – McCarthy v. Tally 24

Limitation of Liability – Klar v. H&M Parcel Room 24

Disclaimer of warranty – Hennigsen 24



Limits of Contract Law 25

Constitutional Limits – Lochner v. New York 25

Public Policy Limits – Baby M. 25


Formation and interpretation of K



Statute of Frauds


Definition: Certain types of agreements must be in writing to be enforceable

Purpose: Formalistic but intended to Prevent fraud, (and should be construed as such) cautionary device, rooted in fear of juries.
Analysis:
  1. Is K within the statute?


RTT §110 and UCC §2-201

  1. Marriage – (Bader)

  2. Year – cannot be fully performed within a year (Doyle )

  3. Land

  • except for <1yr leases

  • except when part of purchase price already paid b/c part-performance achieves same purpose. (Bader)

  1. Execution: when the E of an estate personally takes on liability for the debts of estate

  2. Goods: >$500

  3. Suretyship: a promise to answer for the debts of another if he fails to – “I promise to pay you the land my son has refused” (not Bader)



  1. If so, are requirements of the statute satisfied?


RTT §131 – Written acknowledgment to party to be charge (being sued) which

  1. reasonably identifies the subject matter of the K

  2. is sufficient to indicate that a K has been made and

  3. states with reasonable certainty the essential terms of the unperformed promises (need not be complete)

UCC §2-201 – Writing signed by party to be charged (or agent) which

  1. indicates a K of sale has been made

  2. only term required is quantity (limits recovery to this #)

  3. can omit or incorrectly state any other terms agreed upon (even price)



  1. If not, what can we do now?





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