Contracts: Cases, Discussion, and Problems [Connected eBook with Study Center]

Buy a new version of this textbook and receive access to the Connected eBook with Study Center on CasebookConnect, including: lifetime access to the online ebook with highlight, annotation, and search capabilities; practice questions from your favorite study aids; an outline tool and other helpful resources . Connected eBooks provide what you need most to be successful in your law school classes. Contracts: Cases, Discussion, and Problems is known for its strikingly clear, straightforward text that illuminates cases as well as concepts and theory. Carefully edited modern, engaging cases are presented in context along with classic older cases. Insightful questions draw attention to difficult and crucial aspects of the law and prompt vigorous class discussion. Manageable problems supplement cases and introduce topics taught most effectively through problems. The casebook’s traditional organization begins with formation and then corresponds to the sequence followed by the Restatement (2nd) of Contracts and treatises. Its concise, efficient presentation results in an optimum length for the course. Transactional issues such as drafting, client counseling, and negotiation are emphasized through the use of questions and small exercises throughout the text. Strengthening the text’s focus on contemporary methods of contracting, modern issues in standard contracts are explored along with contracts entered into electronically. International and comparative material offers alternative approaches for students to consider, such as those taken by the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts. New to the Fifth Edition: A continuing focus on contracting via electronic media. Fresh cases, problems, and text throughout the book to update the discussion and provide new perspectives on contemporary approaches to the law. An increase in the number of problems and the conversion of former case notes into problems. Revised multiple choice self-assessment questions for each chapter at the end of the book. Professors and students will benefit from: The most important feature of the book is its deliberate design to be accessible and interesting to students and to provide them with materials that are challenging and thought-provoking, but also coherent and carefully organized so as to avoid unnecessary confusion. The cases in the book are carefully edited and are selected for accessibility, interesting and attractive facts, and clear exposition. Modern cases, many of which are very recent, are emphasized, but the book contains a good selection of older cases that are iconic or continue to be the best cases for teaching a particular subject. The book adopts a multifaceted approach to learning, including textual exposition, case analysis, questions, and problems. While some problems are relatively simple others are more complex. Many problems are based on decided cases, which are summarized briefly in the text of the problem. Front Matter Editorial Advisors Title Page Copyright Page About Aspen Publishing Dedication Page Summary of Contents Contents Preface Acknowledgments Authors’ Note 1 INTRODUCTION TO CONTRACTS A. An Introduction to the Study of Contract Law 1. The Legal Definition of Contract 2. The Sources, Nature, and Traditions of Contract Law 3. The Doctrine of Precedent and Case Analysis 4. The Role of Scholarly Commentary 5. Theoretical Perspectives on Contract Law 6. Transnational Perspectives on Contract Law B. What Makes an Agreement into a Contract C. The Enforcement of Contracts: An Introduction to Remedies 1. Damages or Specific Performance: An Introduction to the Distinction Between Law and Equity Kakaes v. George Washington University Questions Problem 1.1 Problem 1.2 2. Expectation Damages Questions Problem 1.3 Problem 1.4 3. The Method of Enforcing an Award of Damages 2 SALES OF GOODS A. An Introduction to Article 2 1. The Creation of the Uniform Commercial Code 2. The UCC Provisions Covered in This Course: Articles 1 and 2 3. Revisions of the UCC 4. The Style and Jurisprudence of the UCC UCC 1-103(a). Construction of [Uniform Commercial Code] to Promote Its Purposes and Policies . . . 5. Working with Article 2 6. The Organization of Article 2 and the Citation of Code Sections 7. The Official Comments to the UCC B. The Scope of Article 2 1. The Scope of Article 2 Generally 2. The Scope of Article 2 in Hybrid Transactions Suntrust Bank v. Venable Questions Problem 2.1 3. The Applicability of Article 2 to Sales of Intangible Rights, Especially Software and Other Intellectual Property Pain Center of SE Indiana LLC v. Origin Healthcare Solutions LLC Questions Problem 2.2 C. Merchants and Article 2 UCC 2-104(1). Definitions: “Merchant” . . . Zaretsky v. William Goldberg Diamond Corp. Problem 2.3 D. International Sales of Goods and the CISG 3 CONTRACTUAL ASSENT AND THE OBJECTIVE TEST A. The Objective Standard for Determining Assent and the Reasonale Person Construct 1. The Objective Test of Assent Morales v. Sun Constructors, Inc. 2. The Relevance of Subjective Evidence Under the Objective Test SR International Business Insurance Co. v. World Trade Center Properties, LLC Problem 3.1 3. The Determination of Objective Meaning by the Reasonable Person Construct Problem 3.2 B. The Duty to Read 1. The Duty to Read Standard Terms James v. McDonald’s Corp. Questions 2. Arbitration and Forum Selection Provisions in Standard Contracts 3. Boxtop and Shrinkwrap Terms Problem 3.3 Problem 3.4 4. The Duty to Read Standard Terms in a Web-Based Transaction: Clickwrap, Browsewrap, and Hybrid (Sign-in) Terms Nguyen v. Barnes & Noble Inc. Questions Feldman v. Google, Inc. Problem 3.5 Meyer v. Uber Technologies, Inc. C. Manifestations of Apparent Intent Not Meant Seriously — Bluffs, Hyperbole, and Jokes Lucy v. Zehmer Leonard v. PepsiCo, Inc. Kolodziej v. Mason Question 4 THE OFFER A. The Process of Contract Formation 1. The Offer and Acceptance Model 2. An Overview of the Process of Contract Formation B. The Nature and Qualities of an Offer 1. The Definition of “Offer” at Common Law 2. Offers Under UCC Article 2 UCC 1-103(b). . . . Applicability of Supplemental Principles of Law UCC 2-204. Formation in General 3. Interpreting the Intent of a Communication to Determine Whether It Is an Offer Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc. Babcock & Wilcox Co. v. Hitachi America, Ltd. Questions Problem 4.1 Problem 4.2 C. Is an Advertisement an Offer or a Solicitation? Sateriale v. R.J. Reynolds Tobacco Co. Problem 4.3 D. The Remedies Illustrated by the Cases in Section C Question E. Offer and Acceptance Through Electronic Media, Especially by Automated Means (Electronic Agents) F. Offers Under the UNIDROIT Principles and CISG 5 ACCEPTANCE A. General Principles of Acceptance Restatement, Second §30. Form of Acceptance Invited UCC 2-206(1)(a). Offer and Acceptance in Formation of Contract B. Communication of Acceptance, the Effective Date of Acceptance, and the Mailbox Rule Trinity Homes, LLC v. Fang C. The Acceptance Must Be in Compliance with Any Instructions in the Offer Relating to the Manner and Method of Acceptance D. The Acceptance Must Not Vary the Terms of the Contract Proposed in the Offer Roth v. Malson Questions Problem 5.1 E. The Acceptance Must Occur While the Offer Is Still in Effect: Lapse or Revocation of an Offer 1. Lapse of an Offer Problem 5.2 2. Revocation of an Offer Hendricks v. Behee Problem 5.3 Dickinson v. Dodds Questions Problem 5.4 F. Inadvertent Manifestation of Acceptance Anderson v. Douglas & Lomason Co. Questions G. Silence or Inaction as Acceptance Pride v. Lewis Gupta v. Morgan Stanley Smith Barney, LLC H. Acceptance by Performance: Unilateral Contracts 1. The Distinction Between Unilateral and Bilateral Contracts Problem 5.5 Carlill v. Carbolic Smoke Ball Co. Leonard v. PepsiCo, Inc. Question Problem 5.6 Problem 5.7 Wayment v. Schneider Automotive Group LLC Question Problem 5.8 Problem 5.9 2. Performance as an Exclusive or Permissive Method of Acceptance Problem 5.10 3. Shipment as Acceptance of an Offer to Buy Goods UCC 2-206(1)(b). Offer and Acceptance in Formation of Contract Problem 5.11 4. Communication of Acceptance by Performance 5. Acceptance of an Offer by an Act That Cannot Be Accomplished Instantaneously Restatement, Second §45. Option Contract Created by Part Performance or Tender Restatement, Second §62. Effect of Performance by Offeree Where Offer Invites Either Performance or Promise Problem 5.12 I. The Offer and Acceptance Model in Perspective J. Acceptance Under the UNIDROIT Principles and the CISG 6 CONFLICTING STANDARD TERMS, THE BATTLE OF THE FORMS, AND LATE NOTICE OF STANDARD TERMS A. The Common Law Approach to Conflicting Standard Terms in the Parties’ Communications B. The UCC’s Approach to Conflicting Standard Terms in the Parties’ Communications: The Battle of the Forms Under UCC 2-207 1. The Rationale and Aim of UCC 2-207 UCC 2-207. Additional Terms in Acceptance or Confirmation 2. Some General Observations on Dealing with Offer and Acceptance Under UCC 2-207 3. UCC 2-207(1): The Determination of Whether the Response Is or Is Not an Acceptance Problem 6.1 Problem 6.2 Problem 6.3 4. UCC 2-207(2): The Treatment of Additional and Different Terms in an Acceptance Ridgelawn Cemetery Ass’n v. Granite Resources Corp. Problem 6.4 5. UCC 2-207(3): Conduct Recognizing a Contract in the Absence of a Contract Formed By Communications Niagara Bottling, LLC v. Rite-Hite Co. Problem 6.5 Problem 6.6 6. Confirmation Distinguished from Acceptance in UCC 2-207 Lively v. IJAM, Inc. Questions Problem 6.7 C. Standard Terms Revealed After Goods or Services Are Ordered: Shrinkwrap Terms, Rolling Contracts, and Unilateral Postcontractual Amendments 1. Shrinkwrap Terms and Rolling Contracts ProCD, Inc. v. Zeidenberg Dye v. TAMKO Building Products, Inc. Questions 2. Unilateral Postcontractual Amendments D. The UNIDROIT Principles and CISG Provisions on the Battle of the Forms 7 PRELIMINARY, INCOMPLETE, AND INDEFINITE AGREEMENTS A. The Scope of This Chapter B. Binding and Nonbinding Preliminary Agreements and Agreements to Continue Bargaining in Good Faith Brown v. Cara Questions Problem 7.1 C. Unenforceable Agreements to Agree: Deferred Agreement on Essential Contract Terms Alaska Fur Gallery, Inc. v. Tok Hwang Questions Problem 7.2 D. The Problem of Indefiniteness or Vagueness in an Agreement Baer v. Chase Questions Problem 7.3 E. The Tort of Interference with Contract Relations: Liability for Enticing a Party to Breach a Contract or a Preliminary Agreement 8 THE STATUTE OF FRAUDS A. The Basic Principle B. The Requirements of the Statute Restatement, Second §131. General Requisites of a Memorandum 1. Writing or Record 2. Signature 3. Content 4. The Consequences of Failure to Comply With the Statute C. The Methodology of Applying the Statute D. The Statute of Frauds Relating to Sales and Transfers of Land Problem 8.1 St. John’s Holdings, LLC v. Two Electronics, LLC E. The Statute of Frauds Relating to Contracts Not Performable Within a Year of Execution Holloway v. Bucher Problem 8.2 F. The Statute of Frauds Relating to the Sale of Goods UCC 2-201. Formal Requirements; Statute of Frauds Problem 8.3 Vanguard Energy Services, LLC v. Shihadeh Problem 8.4 Problem 8.5 G. The Approach of the CISG and UNIDROIT Principles to the Statute of Frauds 9 CONSIDERATION A. Consideration — The Basic Doctrine 1. Introduction Hamer v. Sidway Questions Restatement, Second §71. The Requirement of Exchange; Types of Exchange Problem 9.1 2. The Distinction Between “Bargained for” Exchanges and Gratuitous Promises Congregation Kadimah Toras-Moshe v. DeLeo Questions Pennsy Supply v. American Ash Recycling Corp. Questions Carlisle v. T&R Excavating, Inc. Questions Problem 9.2 B. What Suffices as Consideration 1. Adequacy of Consideration Kessler v. National Presto Industries 2. Preexisting Duties Restatement, Second §73. Performance of Legal Duty White v. Village of Homewood Questions Problem 9.3 Problem 9.4 Problem 9.5 3. Agreements to Settle Disputed Claims or Defenses Holt v. Holt Questions Problem 9.6 Problem 9.7 C. The Doctrine of Mutuality of Obligation and Its Application to Illusory Promises 1. Performance as Consideration Problem 9.8 2. Promises as Consideration National Federation of the Blind v. Container Store, Inc. Wood v. Lucy, Lady Duff-Gordon Questions D. Consideration in the International Context 10 PROMISSORY ESTOPPEL A. An Overview of Promissory Estoppel 1. The Origins and Nature of Promissory Estoppel as a Theory of Recovery Restatement, Second §90. Promise Reasonably Inducing Action or Forbearance Problem 10.1 2. The Theoretical Context of Promissory Estoppel and Why It Matters Cohen v. Cowles Media Co. Questions B. Use of Promissory Estoppel to Enforce Promises in the Absence of a Clear Bargain Conrad v. Fields Questions Problem 10.2 In re Morton Shoe Co. Questions Thomas v. Archer Questions C. Promissory Estoppel in the Broader Context of a Bargain Problem 10.3 1. Promissory Estoppel in Commercial Negotiations Problem 10.4 Garwood Packaging, Inc. v. Allen & Co. Question 2. Promissory Estoppel and the Statute of Frauds DK Arena, Inc. v. EB Acquisitions I, LLC Questions D. Remedies in Promissory Estoppel Actions Tour Costa Rica v. Country Walkers, Inc. Questions Problem 10.5 11 OPTIONS AND FIRM OFFERS A. Option Contracts Problem 11.1 B. Promissory Estoppel and Offers LAHR Construction Corp. v. J. Kozel & Son, Inc. Questions C. Firm Offers Under the UCC UCC 2-205. Firm Offers Problem 11.2 Problem 11.3 D. Provisions in the UNIDROIT Principles and CISG on the Revocability of Offers Question 12 OBLIGATION BASED ON UNJUST ENRICHMENT AND MATERIAL BENEFIT A. Unjust Enrichment 1. The Relationship Between Unjust Enrichment and Contract 2. The Elements of Unjust Enrichment 3. Terminology 4. The Distinction Between Factually and Legally Implied Contracts Martin v. Little, Brown & Co. Questions Problem 12.1 Problem 12.2 Feingold v. Pucello Questions 5. Volunteers and Intermeddlers Birchwood Land Co. v. Krizan Problem 12.3 B. The Application of Unjust Enrichment Principles to Promises for Past Benefits: The “Moral Obligation” and “Material Benefit” Doctrines Restatement, Second §86. Promise for Benefit Received Questions Problem 12.4 13 IMPROPER BARGAINING A. General Introduction to the Doctrines in This Chapter B. Fraudulent Misrepresentation 1. The Nature of Misrepresentation and the General Principles and Elements of Fraud Restatement, Second §162(1). When a Misrepresentation Is Fraudulent . . . 2. Affirmative Fraud Hodge v. Craig Questions Problem 13.1 3. Silence as Fraud: Fraudulent Nondisclosure and the Duty to Speak Problem 13.2 Kaloti Enterprises, Inc. v. Kellogg Sales Co. Milliken v. Jacono Questions Problem 13.3 4. Misrepresentation of Fact, Opinion, or Prediction Rodi v. Southern New England School of Law Problem 13.4 5. Misrepresentation of Intent Problem 13.5 6. Disclaimers and Contracting Out of Fraud Psenicska v. Twentieth Century Fox Film Corp. Questions 7. Remedies for Fraud: Rescission or Damages 8. Fraud in the Inducement Distinguished from Fraud in the Factum Question C. Duress 1. The Elements of Duress Germantown Manufacturing Co. v. Rawlinson Questions 2. Distinguishing Hard Bargaining and External Pressures from Duress Zuckerman v. Metropolitan Museum of Art D. Duress and Bad Faith in Relation to Contract Modification 1. The Interaction of Consideration and Duress Doctrines City of Scottsbluff v. Waste Connections of Nebraska, Inc. 2. Supervening Difficulties as a Basis for Upholding a Modification Without Consideration 3. Contract Modifications Under UCC Article 2 Problem 13.6 E. Undue Influence Moore v. Moore F. Unconscionability 1. The Derivation and Meaning of “Unconscionability” UCC 2-302. Unconscionable Contract or Clause Restatement, Second §208. Unconscionable Contract or Term 2. The Remedy Where a Contract or Term Is Found to Be Unconscionable 3. The Elements of Unconscionability Problem 13.7 Feldman v. Google, Inc. Lhotka v. Geographic Expeditions, Inc. Zuver v. Airtouch Communications, Inc. Questions 4. The Range of Unconscionability Doctrine Problem 13.8 5. Unconscionability and the Prohibition of Class Actions G. An International Perspective 14 ILLEGALITY, VIOLATION OF PUBLIC POLICY, AND LACK OF CONTRACTUAL CAPACITY A. Introduction B. Illegality Problem 14.1 Problem 14.2 Danzig v. Danzig Questions C. Contracts in Violation of Public Policy Brigance v. Vail Summit Resorts, Inc. Problem 14.3 Problem 14.4 Syncom Industries, Inc. v. Wood Questions Problem 14.5 D. Incapacity Based on Minority 1. General Principles 2. Disaffirmance and Ratification I.B. v. Facebook, Inc. Problem 14.6 3. Misrepresentation Topheavy Studios, Inc. v. Doe 4. Contracts Entered into by a Minor with Parental Assistance or Executed by a Parent on Behalf of a Minor Woodman v. Kera LLC 5. Exceptions to a Minor’s Lack of Capacity, Especially Contracts for Necessaries Problem 14.7 6. Restitution on Disaffirmance E. Incapacity Based on Mental Illness or Defect In re Seminole Walls & Ceilings Corp. Spangler v. Spangler Question 15 CONTRACT INTERPRETATION AND CONSTRUCTION A. The Content of Contractual Obligations B. Interpretation 1. Sources of Contract Meaning Problem 15.1 Problem 15.2 Terry Barr Sales Agency, Inc. v. All-Lock Co. Questions 2. Interpretation of Written Agreements Right Field Rooftops, LLC v. Chicago Baseball Holdings, LLC Questions Problem 15.3 Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co. Questions White City Shopping Center, LP v. PR Restaurants, LLC Questions Problem 15.4 3. Interpretation of Standard Contracts Atwater Creamery Co. v. Western National Mutual Insurance Co. Questions Hahn v. Geico Choice Insurance Co. C. Construction of Contract Obligations 1. Gap Fillers UCC 2-311. Options and Cooperation Respecting Performance Family Snacks of North Carolina, Inc. v. Prepared Products Co. Questions 2. The Example of Exclusive Dealings and Output and Requirement Contracts UCC 2-306. Output, Requirements and Exclusive Dealings Problem 15.5 Problem 15.6 3. The General Obligations of Good Faith and Fair Dealing United Airlines, Inc. v. Good Taste, Inc. Questions D. The Doctrine of Misunderstanding and Its Relation to Contract Interpretation and Construction Konic International Corp. v. Spokane Computer Services, Inc. Questions 16 THE PAROL EVIDENCE RULE A. Introduction to the Parol Evidence Rule B. Application of the Parol Evidence Rule Masterson v. Sine Questions Myskina v. Condé Nast Publications, Inc. Questions Problem 16.1 C. Application of the Parol Evidence Rule Under the UCC UCC 2-202. Final Written Expression: Parol or Extrinsic Evidence Segal Wholesale, Inc. v. United Drug Service Questions Problem 16.2 D. The Scope of the Parol Evidence Rule Problem 16.3 Sound Techniques, Inc. v. Hoffman Problem 16.4 E. Contract Interpretation and Parol Evidence Under the UNIDROIT Principles and the CISG Problem 16.5 17 MISTAKE AND EXCUSE DUE TO CHANGED CIRCUMSTANCES A. Mistake 1. Mutual Mistake SCI Minnesota Funeral Services, Inc. v. Washburn-McReavy Funeral Corp. Questions Problem 17.1 Problem 17.2 Restatement, Second §154. When a Party Bears the Risk of a Mistake Estate of Nelson v. Rice Problem 17.3 Cherry v. McCall Questions 2. Unilateral Mistake Bert Allen Toyota, Inc. v. Grasz Problem 17.4 3. Mistake in Expression and Reformation B. Excuse Due to Changed Circumstances 1. Impracticability CNA International Reinsurance Co. v. Phoenix Questions UCC 2-615. Excuse by Failure of Presupposed Conditions Clark v. Wallace County Cooperative Equity Exchange Questions Problem 17.5 2. Frustration of Purpose Lindner v. Meadow Gold Dairies, Inc. Questions 1600 Walnut Corp. v. Cole Haan Company Store Questions 18 CONDITIONS AND PROMISES A. The Components of a Contract: Conditions and Promises 1. Identification of Promises and Conditions 2. The Requirement That the Event Must Be Uncertain 3. The Reasons for Including Conditions in a Contract 4. The Sequencing of Performance: Conditions Precedent and Concurrent Conditions 5. The Arcane Distinction Between Conditions Precedent and Conditions Subsequent 6. The Distinction Among Express Conditions, Implied Conditions, and Construed Conditions Medical Recovery Services, LLC v. Neumeier 7. Promises, Conditions, and Terms That Are Both Conditions and Promises (Promissory Conditions) 8. Problems on the Classification and Function of Conditions and Promises Problem 18.1 Problem 18.2 Problem 18.3 Problem 18.4 Problem 18.5 Problem 18.6 9. Interpretation to Determine if an Event Referred to in a Contract Is Intended as a Condition Problem 18.7 B. A Promise to Take Action to Try to Satisfy a Condition Problem 18.8 Problem 18.9 C. Strict Compliance with Express Conditions and the Substantial Compliance Doctrine Where a Condition Is Construed Problem 18.10 Jacob & Youngs, Inc. v. Kent Questions D. Conditions of Satisfaction Problem 18.11 E. The Use of Conditions to Provide for Alternative Performances Problem 18.12 F. The Use of Conditions to Sequence Performances Where the Performance of the Parties Will Not Be Instantaneous and Simultaneous Problem 18.13 Problem 18.14 G. Excuse of Conditions 1. Waiver Problem 18.15 2. Estoppel Problem 18.16 3. Obstructive or Uncooperative Conduct Sullivan v. Bullock 4. Unfair Forfeiture United Properties Ltd. v. Walgreen Properties, Inc. 19 MATERIAL BREACH, SUBSTANTIAL PERFORMANCE, AND ANTICIPATORY REPUDIATION A. Material Breach, Total Breach, and Cure Al Hirschfeld Foundation v. Margo Feiden Galleries Ltd. Questions Raymond Weil, S.A. v. Theron Questions Problem 19.1 Problem 19.2 B. Substantial Performance and Its Consequences 1. The Distinction Between Material Breach and Substantial Performance Problem 19.3 2. The Measure of Relief for Substantial Performance Landis v. William Fannin Builders, Inc. Problem 19.4 C. The Recovery of the Breaching Party: Unjust Enrichment or Recovery Under the Contract Menorah Chapels at Millburn v. Needle Questions D. Breach and Substantial Performance Under UCC Article 2: The Perfect Tender Rule 1. Perfect Tender Under Article 2 UCC 2-601. Buyer’s Rights on Improper Delivery Problem 19.5 2. Limitations on the Perfect Tender Rule Problem 19.6 E. Anticipatory Repudiation and Prospective Nonperformance 1. Anticipatory Repudiation UCC 2-610. Anticipatory Repudiation Princes Point LLC v. Muss Development LLC Question Problem 19.7 2. Retraction of Repudiation 3. Prospective Inability to Perform UCC 2-609. Right to Adequate Assurance of Performance Problem 19.8 Problem 19.9 20 INTRODUCTION TO CONTRACT DAMAGES AND THE “BENEFIT OF THE BARGAIN” A. The Goal and Fundamental Principles of Contract Damages 1. The Distinctions Among the Expectation, Reliance, and Restitution Interests Restatement, Second §344. Purposes of Remedies Questions Problem 20.1 Problem 20.2 2. Theoretical Perspectives on “Benefit of the Bargain” Damages B. The “Benefit of the Bargain” at Common Law 1. Components of Expectation Damages 2. Introduction to Measurement of the Expectation Interest Restatement, Second §347. Measure of Damages in General 3. Measurement of the Expectation Interest When Neither Party Performs Handicapped Children’s Education Board v. Lukaszewski Questions Problem 20.3 Problem 20.4 Problem 20.5 Problem 20.6 4. Measurement of the Expectation Interest When the Breaching Party Performs in Part Problem 20.7 Problem 20.8 Problem 20.9 C. “Benefit of the Bargain” Damages Under the UCC UCC 1-305(a). Remedies to be Liberally Administered 1. Buyer’s Damages Under the UCC UCC 2-712. “Cover”; Buyer’s Procurement of Substitute Goods UCC 2-713. Buyer’s Damages for Non-delivery or Repudiation UCC 2-714. Buyer’s Damages for Breach in Regard to Accepted Goods 2. Seller’s Damages Under the UCC UCC 2-706. Seller’s Resale Including Contract for Resale UCC 2-708. Seller’s Damages for Non-acceptance or Repudiation 3. Some Problems Relating to “Benefit of the Bargain” Damages Under the UCC Problem 20.10 Problem 20.11 Problem 20.12 Problem 20.13 Problem 20.14 Problem 20.15 D. Limitations on Recovery of “The Benefit of the Bargain” 1. Reasonable Certainty of Damages Rancho Pescado, Inc. v. Northwestern Mutual Life Insurance Co. Hollywood Fantasy Corp. v. Gabor Questions 2. Foreseeability of Damages Hadley v. Baxendale Problem 20.16 McNaughton v. Charleston Charter School for Math & Science, Inc. Questions 3. The Mitigation Principle DeRosier v. Utility Systems of America, Inc. UCC 2-710. Seller’s Incidental Damages UCC 2-715. Buyer’s Incidental and Consequential Damages Problem 20.17 21 CONTRACT REMEDIES IN THE BROADER CONTEXT A. Noneconomic and Noncompensatory Damages 1. Damages for Pain, Suffering, and Emotional Distress Erlich v. Menezes Lane v. Kindercare Learning Centers, Inc. Questions Problem 21.1 2. Punitive Damages Problem 21.2 B. Agreed Remedies 1. The Distinction between Unenforceable Penalties and Enforceable Liquidated Damages Clauses Kent State University v. Ford Problem 21.3 2. Contractual Limitations on and Modifications of Remedy Wedner v. Fidelity Security Systems, Inc. Questions C. Specific Performance and Injunctions 1. The Common Law’s Preference for Damages 2. Inadequacy of Damages Van Wagner Advertising Corp. v. S&M Enterprises Questions Problem 21.4 Problem 21.5 Problem 21.6 3. The Discretionary Nature of the Remedy Campbell v. Carr Questions Problem 21.7 4. Injunctive Relief as an Alternative to Specific Performance Systems & Software, Inc. v. Barnes Questions Problem 21.8 D. Restitution as a Remedy upon Breach of Contract Worcester Heritage Society, Inc. v. Trussell Questions Problem 21.9 22 THE RIGHTS OF NONPARTIES A. Third-Party Beneficiaries 1. Intended and Incidental Beneficiaries: The Intent to Confer Power of Enforcement on the Third Party Restatement, Second §302. Intended and Incidental Beneficiaries Restatement, Second §304. Creation of Duty to Beneficiary Taylor v. Honda Motorcars, Inc. Question Oliverio v. Transdev Services, Inc. Question Problem 22.1 2. Nonclients as Third-Party Beneficiaries of a Contract Between an Attorney and a Client Problem 22.2 3. Vesting of Rights in the Beneficiary and the Power of the Original Parties to Modify the Contract Restatement, Second §311. Variation of a Duty to a Beneficiary Problem 22.3 4. Defenses Available to the Promisor Against the Beneficiary Problem 22.4 5. The Promisee’s Rights of Enforcement B. Assignment and Delegation 1. The Transfer of Contract Rights and Duties 2. Assignment: General Principles Restatement, Second §317. Assignment of a Right UCC 2-210(2) . . . Assignment of Rights Problem 22.5 3. Assignments That Violate Public Policy Gurski v. Rosenblum & Filan, LLC Questions 4. Anti-Assignment Clauses Problem 22.6 5. The Effect of Assignment, Notice of Assignment, and the Obligor’s Defenses Against the Assignee Problem 22.7 6. The Delegation of Contractual Duties Restatement, Second §318. Delegation of Performance of Duty UCC 2-210(1) and (6). Delegation of Performance . . . Bakke v. Magi-Touch Carpet One Floor & Home, Inc. Problem 22.8 Self-Assessment Questions Table of Cases Table of Secondary Sources Table of Laws, Regulations, and Model Statutes Index