Outline for BEL

PART ONE- INTRODUCTION

I. Contract versus Tort
A. Central Issue for both: When should the court order one person to grant money
to another person?
B. Contract- Based on the breach of a duty that the parties have agreed and
theoretically consented to! Agreement is focus.
"amages- difference bet#een #here you are and position you #ould have
been in if the contract had been fully performed $%&' incidental costs #hat you #ere
promised-#here you ended up(e)pectation damages! put him in a position #here he
#ould have been had contract been performed. *)(breach of contract for goods car
e)ample! &sually monetary damages rather than specific performance
C. Tort- Based on breach of non-contractual duty that harms another+ measuring
positive ill-effects in,ury by another-s #rongful act. ! .eneral rules of tort emphasi/ed.
"amages- difference bet#een ho# you #ere and ho# much #orse you-ve
been made by someone-s act positive ill effects!(trial court-s error in 0a#1ins. $ain and
suffering(tort damages.
". 'ee Hawkins v. McGee 0airy hand!- 2inds that doctor-s promise to give a
34556 perfect hand7 #as not 3puffing7 because plaintiff #as induced to consent to
contractual agreement and accepted! but that plaintiff cannot collect for tort damages
difference bet#een hand before and hand no# 8 pain and suffering. $ain and suffering
#ere consideration on plaintiff-s part! because this is a contract case difference bet#een
hand no# and hand as promised! . Obecti!e T"eory of Contracts# Intent measured not
by sub,ective intent of party but by ob,ective reasonable person-s interpretation of #ords
and actions. $atient ,ustifiably9reasonably relied on contract. $uffing v. promise.
'hould the la#9ruling be different had the 0a#1inses actively sought out :c.ee to do
the procedure and he still made the guarantee!
II. Intro to Classical %egal Thought level ;!
$ENERAL !% &PECI'IC state(ent of RULE )rules *ere infused in t"e utopian
ideals of t"e syste( of CLT+
&ubstanti!e co((it(ent to freedo(
Rule for(alis( e(p"asi,ed
A. Hurley
4. No duty to contract )c"oose contractin- party one *is"es and
c"oose ter(s+UNLE&&.%% and no liability for failure to act
*)ception: Inn1eepers and Common Carriers9<uasi-$ublic.
$roperty limitation Boston ice!. =b,ective theory of contracts limiting
>. 'harp Public-Pri!ate Distinction
?ot on a spectrum+ so doctor-s clearly in private arena as opposed
to common carriers
;. .oal is to protect 'REEDO/ and LIBERT0 of individuals from
governmental interference and prevents government from imposing duties on individuals
@. Bri-"t Line Rules Bo)ed Categories!
*)! $ublic-private distinction
Aule vs. 'tandard- A "rive BB bright line speed limit protects
individual freedom more than a drive reasonably standard because there is less threat
from arbitrary discretion of the police9government9,udges
B. Lochner
4. 'tatute limiting ba1er-s hours to C59#1 held unconstitutional
>. Constitutionali/es freedo( of contract from governmental regulation
Dustification: purports to protect freedom of individual
*)ception: valid e)ercise of police po*er to protect health+
morals+ safety+ etc
;. &ses bright line rule to say legislation does not affect 3health7
@. &ses common la# definition of coercion to sho# contract 3free7 despite
potential uneEual bargaining po#er- uneEual po#er result in the mar1et!
B. Can-t have 3class7 legislation at this time benefiting only one faction!
C. 0olmes- "issent: Court ma1ing economic policy ,udgments that should
be left to the legislatureF foreshado#s Aealism policy analysis cannot be legitimate!
C. Coppage (essentially constitutionalized the common law of contracts)
4. 'tatute that prohibits employers ma1ing non-,oining of a union
reEuirement for employment held unconstitutional under freedo( of contract
>. *mployee doesn-t have to ta1e the ,ob+ so it still free to contract
;. &ses common la# definition of coercion and capacity not duress etc!
to sho# contract 3free7 despite potential uneEual bargaining po#er- uneEual po#er
inevitable and necessary result in the free mar1et!
@. $rivate individual! vs. $ublic distinction again
Part II- CONTRACT DOCTRINE UNDER CLT
Contract1le-ally enforceable a-ree(ent
I. No Duty to Contract
A. Cases
4. Hurley- No duty: "octor doesn-t have to contract to treat dying patient+
even if been his doctor for years
>. oston !ce- 'reedo( to C"ose *it" *"o( you contract+ Buyer didn-t
have to pay for the ice #hen party #hich he had refused to contract #ith earlier buys out
another ice company and starts delivery #ithout notice. W0AT I2 IC* W*A* 'TI%% I?
*GI'T*?C*
*)ception- I(plied Assu(psit <uasi-contract!: If there had been
notice or Citi/ens- Ice sold to different company+ then the acceptance9use of the ice #ould
have implied a contract
;. "oughkeepsie# ne#spaper doesn-t have to let company publish ads in its
ne#spaper even if it is the only ne#spaper in to#n case for in,unctive relief(eEuitable
remedy as distinguished from damages. %egal remedy considered inadeEuate!!
Court re,ects idea that ne#spaper is Euasi-public e)ception
B. *)ception for Inn1eepers9Common Carriers9<uasi-public institutions
C. %evel > Dustifications level ; #orldvie# as #ell?!
4. 2reedom of individual to determine #ith #hom to contract
>. "on-t #ant government creating obligations for doctors+ etc- give as
much liberty to as many people as possible
;. Contract based on consent on the individual
@. <uasi-public e)ceptions because #e don-t have to protect liberty of
public institutions+ #e are being protected from them
". $ost-Aealist Aeality- Courts can construct implied-in-la# contracts
*. Tort parallel: ?o "uty to Aid9Act
II. Contract "amages in Brief
A. Hadley v. a$endale- :achinery at mill shuts do#n and replacement
machinery delayed in arriving+ mill sues for lost profits
4. In general+ da(a-es difference bet#een status 2uo and state if
contract "ad been perfor(ed
>. Can only recover conse2uential da(a-es if they #ere in reasonable
contemplation of the parties #hen they made the contract
;. In this case+ not in the parties- contemplation
@. %evel >- If it #asn-t in the parties- contemplation+ then they did not
consent to it
III. C=?'*?T- Offer and Acceptance (ust de(onstrate e!idence of consent
A. Intent to be %egally Bound
4. Agreement in marriage and family relationships presumed not have to
have intent to be bound unless e)press- 'ee alfour and Hertzog
Dustification- These 1inds of agreements natural to family lifeF
#ould create too many la#suitsF $ublic-private distinction+ don-t #ant government
intruding into private life and creating contracts
>. =n the other hand+ intent to be legally bound is presumed in business
setting- 'ee %m&ry
;. Obecti!e T"eory of Contracts# Intent measured not by sub,ective
intent of party but by ob,ective reasonable person-s interpretation of #ords and actions
%m&ry- *mployee as1ed if contract #ould be rene#ed for year and
said if not+ he #ould stop #or1ing. Boss told him not to #orry about it and court says that
this is a contract #ith intent to be legally bound because reasonable person #ould see it
that #ay even if the boss sub,ectively did not
=b,ective theory: Consent is identified according to #hat =T0*A' thin1 you #ere
choosing B&T C%T emphasi/es individual rights!
What about reliance? Interest in being secure?
$remise: *mployer has not made choice to contract based on ob,ective theory!
RULE: No liability for econo(ic e3pectancy of anot"er unless consent in 4
a+intent to be le-ally bound
b+ (utual assent )obecti!e t"eory+
c+ definite
d+consideration
C=&?T*A A&%*: Euantum meruit9restitution ice still in *GI'T*?C*!
$A=T*CT A*%IA?C*9'*C&AITH I?T*A*'T'
one commitment to protect individual choice and autonomy B&T another commitment
to protect security of property!
!s market coherent &ut unfortunate' (%)*+* ,o coherence at all
*et of )ules determine ine-ualities of fortune

$otential Dustifications- 'ecurity in ones actions in the
mar1etplaceF people can-t 1no# one-s 3secret intentF7 in service of property interests
2undamental C%T Conflict bet#een property9security interests and
freedom of choice
@. Three types of Contracts- 'ee Hertzog
*)pressF Implied in 2actF Implied in %a# legal fiction+ imposing
contract-li1e duties #here no contract e)ists+ controversial in C%T!
In Hertzog+ found no constructive contract in family situation
Anti constructive contract- Court calls it a potential
despotic po#er+ can base it merely on sympathies of ,udge9,ury rather than consent
$ro-constructive contract- e)isted in C%T period in limited
sense in order to protect security9property interests+ prevent un,ust enrichment
Tension in C%T
B. /utual Assent
4. /irror Acceptance Rule- changes to offer are re,ection of offer
,ormile- Contract for a house includes offer to 1eep it open for a
time but then a counteroffer made+ #hich voids the original offer so it is no longer
e)clusively open. The couneroffer becomes the ne# offer+ but the seller can decide not to
assent to it and sell to someone else
Aealist Aesponse- rule limited by &CC and default provisions
>. &i-nature- A party is presumed to understand and agree to the contents
of any contract that he signs in the absence of fraud9misrepresentation.
.vie- person #ho didn-t 1no# *nglish and signed contract #ithout
as1ing #hat it meant can be held liable also+ failure to disclose is not fraud!
=ne #ho signs is presumed to 1no# its contents
C%T protects others- reliance! Was loan officer-s reliance reasonable? .enerally+
signature means assent &?%*'' you 1no# signer cannot read
'o+ rule that signature(assent should not apply bc more po#erful person is ta1ing
advantage of less po#erful person
4! Critici/e rule as formalism blind adherence to rule. ?ot loo1 past rule at reality!
'o+ move to standard?
>! W0AT I' C=?'*?T? Aules are for po#erful+ and standards are for
disempo#ered? ?=. no-means-no rule. Consent is socially constructed. !
:odern perspective: #as there a fiduciary relationship?
C%T: fiduciary relationship #as not available in this type of case
Basis of fraud rule? "id '1inner have a duty to as1 or did loan officer have duty to
disclose? Case turns on this Euestion+ even though contract la# could not ans#er such a
Euestion. C%T thought it #as obvious that '1inner had dutydisintegration of C%T
If he didn-t 1no# #hat he #as signing then he could not have assented---theory of
s1inner
Analogy to *mbry ob,ective theory of contracts-reasonable interpretation of ob,ective
manifestations!: signature(ob,ective manifestation of assent
B&T #hat about fraud or duress? ?ot possible in this case bc failure to disclose is not
fraud at this time
2raud(affirmative misstatement of material fact upon #hich another party relies. T#o
uses @ fraud 4!as defense for contract enforcement >!as tort intent #ould be reEuired
here!
0o# #ould you fight for '1inner #9o using fraud!? =n #hat theory? '1inner is an
incompetent party cannot contract! he is li1e a child
C%T: If '1inner did not understand+ then court says it is his o#n fault. %oan officer did
not have duty to ensure '1inner understood.
.eneral rules don-t(e)act results. $olicy al#ays involved.
If loan officer had reasonable belief to believe '1inner did not understand+ then li1e
Broomfield! #ould there have been a special relationship?
Any arguments that do not e)clude '1inner from the mar1et?
'1inner authori/ed loan officer to sign for him by touching the pen-
The signature is not even his+ he does not spea1 the language that the contract is inI..so
loan officer should have a duty to ma1e sure party understands i.e. standard! B&T
stability in the mar1et #ill be threatened by such a sub,ective standard
Could argue that rule is overinclusiveI.includes ppl #ho do not intend to contract
'hould '1inner have duty to as1 or should loan officer have duty to disclose?
Jelen1o analogy? If loan officer started to e)plain+ did he not have a duty to
finish9continue
In,ustice of result as attac1 on formalism?
=b,ective signals that no assent e)isted?
What about contemporary 3no-means-no7 rule?
2ormalism is not nec blind to social conte)t. Blindness can protect
Dustification- protect the security of mar1etplace and those relying
on contractF bright line rule.
'hould there be an e)ception for fairness9eEuality in mar1et?
C. Definiteness
4. C%T rule- Court #ill not enforce a contract #ith vague9indefinite terms
and *ill not i(pose t"e ter(s5*rite t"e contract for the parties
*un "rinting- parties have floating9shifting price- indefinite
$arties have not bound themselves in any #ay an agreement to agree is unenforceable!
Cardo/o(legal realist+ no contract bc it #as indefinite the period of time #as unclear!
Aealist Aesponse- similar to dissent vie# in 'un+ should facilitate
the parties- agreement by putting in default gap filler terms+ 'ee &CC later. Aeasonable
Interpretation. >. /avis v. General 0oods- #oman sends recipe to company even
though they say it-s their discretion #hether they #ill pay. They don-t pay and court can-t
find an implied contract because it #as unreasonable for her to e)pect to be paid. Also+
there #as no consideration no mutuality! 4! breach of contract claim: Illusory promise so
no breach of contract based on 'un $rinting! >! in absence of contract+ should be paid bc
provided something of value implied in la# contract!
<uantum meruit claim: davis benefitted financiall and should have to compensate her.
Court re,ects bc no reliance that other person #ould be e)pected to pay
". Counterrule: A Court :ay Construct an I(plied Contract In The Absence
of *vidence of Consent
4. Court #ill create constructive contract #hen necessities furnished to
non-competent party
>. Construct contract #hen any reasonable person #ho have entered into it
I.*. Cotnam case #here doctor treats unconscious and dying
patient+ there is a contract there even though unconscious person couldn-t consent to it
"octor #ants to recover economic e)pectancy
Want to encourage reliance that doctors #ill be paid for services
Aestitutionary recovery #hen one party has conferred a benefit on another party
and it #ould be un,ust for that person to 1eep the benefit #9o paying
But circumstances #ould not be un,ust if person did not have reasonable
e)pectation to be paid for benefit =A for gift =A family
Why in bet#een contract and tort? Contract bc remedy is contractual e)pectancy
damages! contractual interest compensated. Tort bc liability is provided #9o consent
;. (ickery v. )itchie- ?o contract on building of Tur1ish bath because of
fraud+ but court constructed contract for 3reasonable value7 because there has been a
service rendered that should be paid for
When #or1 has been performed according to contract later deemed
unenforceable+ then can collect for #or1
W0AT AB=&T B='T=? IC*? The only thing that prevented implied in la#
contract #as affirmative statement about not #anting to continue business on part of ice
buyer
$rinciple9,ustification behind the counterrule: #hen one person has
provided benefits to another in situation #here it #ould be un,ust for the person to 1eep
that benefit+ then it should be paid for prevent unust enric"(ent!
@. The idea of constructive contract against freedom of choice principles
of C%T+ much more Aealist although fits in #ith C%T property principles
IK. Consideration Basics
A. Aule: Courts #ill not e3a(ine sufficiency of consideration
4. 1ood L Woman sells diamond for M4 not 1no#ing #hat it is there is no
fraud or mista1e! and court denies to invalidate contract because #on-t loo1 into
adeEuacy9fairness of consideration
%a# of property determines #hether possession is rightful
The buyer #ho is no# in possession acEuired title! cannot be divested of property unless
there #as fraud or mista1e abt identity! in the #ay he acEuired his possession. B&T no
fraud
Aestatement mista1e doctrine did not e)ist at the time of the case
Aecission not valid on basis of stone-s later learned value bc there #as adeEuate
consideration neither party 1ne# abt true value of stone!
Court does not ma1e inEuiries as to fairness
If ,e#eler did 1no#+ he did not have duty to disclose no special relationship!?
&nder property la#+ ,ust price doctrine something eEuivalent given for stone!? :utual
assent not enough B&T do not measure adeEuacy of consideration
What is consideration? Courts do not have po#er to decide value of things value of
things is uniEueIIli1e tastes and preferences. Kalue is sub,ective. ?o rule for
measuring it. ?ot desirable to measure value other#ise ppl #ould not be able to decide
for themselves in the mar1et ho# they value things.!
.ratuitous promise not enforceable via contract la# but by property la#
Contemp misa1e doctrine not in use at the time. &nder this doctrine+ it #ould not matter
b9c the party see1ing relief 1ne# she #as ma1ing it based on limited infor '= she too1
the ris1
>. Dustification- 2reedom of Contract but could ma1e property9security
argument to protect her interestF "emonstrates C%T tension bet#een freedom and
property9security
B. Counterrule: Courts #ill not enforce gratuitous promises
4. /avis v. Morgan- Consideration has to be something you-re not already
obligated to do+ so staying on in anticipation of end of year bonus is not enforceable
contract pre-e)isting duty rule?!
>. Hou-d have to submit a ne# agreement to replace the old one in order
for it to be enforceable+ although no# it-s much easier
*mployer on contract for specific amt for one yr. $romise made for e)tra money. 2ired
before contract over. *mployer sues employee
?o consideration for promiseNemployer did not gain anything in e)change
*mployer #as already obligated to #or1
Cannot give #hat u are already legally obligated to do(
$A* *GI'IT?. "&TH A&%*
A?H change in terms or conditions =A agreement to rescind and dra# up ne# contract
B&T a ne# deal #ould be made if change to hours or MM made involves change in #hat
the employer #ould have to do!
&nder #hat circumstances+ can there be agreement to end e)isting contract? If there is an
agreement evaluated by same standards! to get rid of the old agreement(A*CI''I=?
A.A**:*?T. In recission+ employer #ould give up right to have employee #or1 and
get paid. *mployee gives up right to receive payment and gains freedom from #or1ing
for hours
If agreement not e)ecutory both 'TI%% have to complete the contract obligations ! on
both sides+ no contract
Part III- TORT DOCTRINE UNDER CLT
I. No Duty to Act to assist9prevent harm9benefit another
A. Cases
4. uch- ?o liability for company #hen 1id enters #ithout permission and
is in,ured even if 1id doesn-t 1no# there-s a danger! because no duty to *arn%
?egligence(tort claim that allo#s in,ured party to recover for unreasonable conduct of
anther party. B&T no act by factory so no conduct! and one is not liable for failure to act.
?= "&TI*' T= TA*'$A''*A as lando#ner. What licensees? :ust #arn them of
hidden dangers. Business Invitees? :ust use reasonable care to ma1e premises safe for
them. A*A'=?' for no duty to act: The duty to protect against a wrong is a moral
obligation only, not recognized or enforced by law. Gulf between law and morals.
Gulf between cause and prevention (under private morality, not under law).
Exception to rule !intimate relations in the nature of a trust"#special relationships
(i.e. parent and child bc child is dependent on parent) Trust and dependence
create special relationship. $hat abt bf and gf who have lived together for years
and have children% $ould they have a special relationship% &unctionally, married
couple '(T not considered special relationship (bright lines impt.)
"ifferent rule if invited onto premises: see special relationships
>. 2ania- A Business Invitee highest duty of lando#ner(to invitee! ,umps
into a pump and dro#ns after taunting of defendant+ but no liability because there #as no
duty to act to save him
"efendant does have a duty to in!itees+ but that duty is to 1eep
premises in a reasonably safe condition or #arn if they are not. In this case not
unreasonable+ because anyone #ould have seen the danger of the cliff9pump
*)ception: There is duty to #arn mentally incompetent or duty to
act if you actively put them in danger
; theories of liability: 4! taunting(cause of harm bc loss of free #ill >!ha/ard on property
and failure to #arn(negligence ;! no rescue attempt no duty to act rule? Is this an
e)ception bc business invitee?!
B. %evel > Dustification
4. :ain one: 2reedom and %iberty- regulating people into ma1ing actions
curtails their freedom of choice
>. $eoples morals could be different+ shouldn-t sub,ect everyone to same
moral standard
C. The Act-=mission "istinction
4. /isfeasance !s% Nonfeasance
2ormer is negligent action+ latter is no action and does not allo#
for tort recovery e)cept in special relationship
"oesn-t matter if failure to act is because of desire to see victim
harmed
>. E3ception: When the danger is due to any active force under the
defendant-s control there is liability
Continuing to run machinery is no# an act
*)! ?ot stopping train #hen you #ould be able to
". Aealist response- brea1ing do#n of act-omission distinctionF not acting can be
an action
*. Contract $arallel: ?o "uty to Contract
II. Counterrule: "uties to Act can be created through &pecial Relations"ips
A. Business Aelationships
4. 2ormal partnerships may fall in this category+ but cases here impose
broader duties ?=T I? %I?* WIT0 C%T
>. Meinhard- Cardo/o legal realist! finds fiduciary relations"ip creates
duty
%evel ;- Aealist ta1e undermines C%T because violation of liberty
having duties imposed #hen haven-t agreed to.
Aeversion(#hat reverts to o#ner once tenancy is over.
"istinction b9t rene#al and reversionary interest.
"istinction b9t partners and co-adventurers
Bright line rule abt $AAT?*A' and rene#al
?=T T=%" W0AT T0* CA&'* =2 ACTI=? I' thin1 it is an action for un,ust
enrichment! A*:*"H: constructive trust Ocommonly used as remedy for fraud. O
Cardo/o opinion(consistent # Buch result
In this case+ economic loss from failure to act9disclose
OOOOOOOO$. ;@OOOOOOfollo#ing rule structure B&T #as the relationship an intimate or
special one i.e. fiduciary!?? 'imilar to Euestion posed in $ough1eepsie #as ne#spaper a
Euasi public entity?!
This case #as a controversial application of the special relationship rule.
$AAT?*A'0I$(association of indiv in #hich they agree to act for the common benefit
share the proceeds! Interdependent.
Andre#s formalist!+ suggests case should turn on definitional roles
4. They-re co adventurers+ not partners
>. ?o rene#al reversion!(no obligation to share
Cardo/o-s ,ustifications
4. *Euity is not formalistic. Coadv(functional partners shared goals+
interdependence+ trust!
A?TI cordo/o: they chose ?=T to contract. They chose not to become partners.
freedom9liberty emphasi/ed by formalism. 'o the e)ception threatens freedom!
;. roomfield# finds a fiduciary relationship #hen the plaintiff relies on
the defendant and the defendant 1no#s they are in a position of trust
Why should there be no liability here? Business person+ not a child. 0e signed a contract.
Business relationship(self-interested9in free mar1et+ everyone loo1s out for himself
Why does Poso# deserve money? 0e #as li1e a general contractor9in charge of
everything not 3charitable7 #or1! paradigm of business relationship+ not intimate one
BA==:2I*%" A?" :*I?0AA" '**: T= D&'T B* A$$%HI?. T0* A&%*+
WIT0 *GC*$TI=?' W0*A* C%T W=&%" 0AK* ?*K*A 2=&?" A '$*CIA%
A*%ATI=?'0I$! *GTA*:* CA'*'. CA'*-BH-CA'* A?A%H'*'
2ACT=A' T0AT %*A" A C=&AT T= 2I?" T0AT T0*A* I' A '$*CIA%
A*%ATI='0I$:
4! "*$*?"*?CH
>! TA&'T
T0* AB=K* 2ACT=A' AA* :I?I:A%I'T
;! =T0*A $AATH 'TA=?. $AATH! P?=W%*".*
BA=A" A?" "A?.*A=&' *G$A?'I=? =2 '$*CIA% A*%ATI=?'0I$' I2 H=&
T0I?P IT T0A*AT*?' A&T=?=:H
W0H ?=T '&* @ 2AA&" I2 T0*A* WA' 2AA&"? T0*A* WA' ?= 2AA&"
reEuires statement of fact!. D&'T puffing.
The #ritten agreement(#hat the parties agreed to
$arole *vidence Aule:
*vidence demonstrates dishonesty or fraud
%evel ;- Another Aealist infringement on C%T vie# of liberty
B. Assumption of "uty
4. 3elenko: If be-in to "elp+ #ill be liable for negligently failing to
continue aid not acting reasonably!. Therefore+ o#ner held liable for ta1ing sic1 patient
to bac1room but not helping further inivitee9invitor relationship as #ell as
rescuer9rescue!
Dustification- Hou freely chose to assume the duty+ so it doesn-t
violate liberty to hold liable
$olicy argument9,ustification: by underta1ing+ he made it less li1ely that others #ill help
Aule #ill apply even #hen ,ustification is not present
>. .yres: "uty to aid #hen person is (aster or controls instru(entality
Boy falls on escalator and gets arm caught
?o negligence in causing the action not responsible+ no 3#rongful7 act! B&T there #as a
duty once the accident happened to come to the rescue. 0o# much damage? *nhanced
in,ury from failure to rescue!
If u create the peril another is in+ then you have a duty to aid
'pecial relationships: instrumentality+ master9servant+ invitor9invitee
In this case+ invitor Controlled machinery
BA'*' for legit imposition: C=?'*?T and 2A&%T
Torts(divided into ; parts defined by level of culpability
I?T*?TI=?A%+ negligence+ strict liability
2or unintentionalII#hat should be the level?
C. Inn1eepers9Common Carriers9<uasi-public
4. Lopez Case- Bus driver9company held liable for not brea1ing up fight
"uty imposed: :ust ta1e reasonable action to try to prevent harms
>. Dustification- We-re not trying to protect liberty of public sphere+ so
they don-t get the benefit of the ruleF 'ecurity interest
". =ther 'pecial Aelationships- 2amily9:arriage bright line rule for marriage!
*. Aealist response- *)pand the special relationship categories li1e business
relationship!+ demonstrating analytic indeterminacy of #here lines dra#n in C%T
III. Intentional Torts
A. Battery
4. *lements- a! ?ot consented to physically touching the body of another
in an offensive or harmful manner b! #ith intent to do t"e act not to cause the harm
necessarily! c! causes d! the in,ury9harm
?=:I?A% "A:: *K*? I2 ?= 0AA:
$unitive: for intentional+ harm demonstrated
"&TH not toII.
O#ater-do#ned intent
A*A'=?AB%*?*'' 'TA?"AA" "=*' ?=T A$$%H %IP* IT "=*' 2=A P
T=AT': %IAB%* 2=A A%% 0AA: C=::ITT*"
>. (os&erg- Liable for da(a-es5inuries e!en if t"ey are not reasonably
foreseeable strict liability type damage rule!
Child liable for damages after lightly 1ic1ing other child even
though the e)tent of damage #as because of pre-e)isting in,ury that child didn-t 1no#
about Ta1e $laintiff as you found him even if didn-t 1no# he #as vulnerable: T"in-
&6ulled Plaintiff Rule!
Argument based on 0adley for defendant?
?o liability if damges ?=T reasonably forseeable
v. %iability even if
If had been on the playground+ might have been an implied license
consent presumed! to 1ic19roughhouse etc+ but there #as not in this case
%evel > Dustification- As Bet*een T*o Innocents+ %et the one
#ho acted pay. Pic1ee did not ma1e choice to suffer harm #9o redress "A:?I2I*" BH
?= 2A&%T =2 0I' =W?!. 'hould he not be secure from in,ury? Core $rinciple
supporting 'trict %iability type arguments! vs. core principle supporting negligence type
argument- No Liability 7it"out 'ault
7"y s"ould 6ic6er be liable8 No reasonable person *ould foresee suc" "ar(% 9e
did not (a6e c"oice to cause "ar(% T"e decision ta6es a*ay "is autono(y%
I(position of c"oice on "i(
;. Mohr v. 1illiams- "octor had consent to operate on one ear but
operated on other because found it #as in #orse conditionF Court found a battery because
there is an intrinsic harm to bodily integrity- even if touching beneficial there is battery
#ithout consent
?o malpractice here
?o emergency
'he has a right to decide #ho and #hen her body is touched
3beneficial7 as measured ob,ectively medical care+ etc.!
@. %evel Three in C%T: =ne #ould thin1 strict liability rule here #ould
impinge on freedom of choice because you are not necessarily choosing to in,ure the
plaintiffF ho#ever+ again there is a conflict #ith property9security interests to give
freedom from in,ury
B. "octrine of Transferred Intent for all intentional torts- e)! shooting
someone and miss and hit someone else+ it transfers their intent to be to shoot the person
they ended up hitting
C. &ubstantial Certainty for all Torts- e)! if shoot gun into a cro#d+
reasonably certain it might hit someone
B. Assault
4. *lements- a! duty not to put someone in reasonable apprehension of
imminent battery b! present ability to breach by act #ith intent to cause apprehension or
to commit battery reEuired c! causes d! harm is the apprehension+ not an in,ury per se!
>. "on-t have to actually commit battery to commit assault-
'ee ! /e *4 clock stopped working
/uty4 ,egated &y defense of not &eing a&le to reach across the counter
;. /ere 7ords Doctrine- Insufficient to constitute assault but slightest
accompanying overt act9conte)t i.e. #agging fist menacingly! can suffice #ords $%&'
overt act reE-d!
@. Conditional Threats generally not assault+ although if as1ing to give up
a right+ then it can be fear not actionable+ only reasonable apprehension!
"octrine of respondeat superior: employer liable for employee #ithin scope of
employment but for using the matters of employment+ could not have furthered his
personalI..!
C. Trespass
4. *lements- a! duty not to violate o#ner-s right of e)clusive possession b!
breach by act+ intend to do act that causes trespass+ doesn-t have to 1no# about o#nership
c! causes d! harm damages to blades of grass for real property!
>. There doesn-t have to be a physical in,ury to the land- the in,ury is to
the o#ner-s right to e)clude bro1en blade of glass theory! 'ee *tepp Case#5ustification
for nominal damages (e-uivalent to Mohr) dignitary6 intangi&le freedom to e$clude was
violated like freedom from &odily intrusion. )ight of e$clusion &reached &y watered#down
intent
;. .enerally 'trict %iability here- 'ee Gil&ert even though trespass #as
to save himself from being harmed!
@. *)ception: If not voluntary i.e. dragged onto property+ not trespass bc
he did not ACT to go onto the land!
B. Contemporary: can have trespass that is not physical but an intangible
force. 'ee Mock even though doesn-t apply in that case!(#rin1le in trespass
IK. &nintentional ?egligence! Torts
A. ?egligence vs. 'trict %iability ?egligence as basic standard for liability!
4. The general rule in C%T period and today is Ne-li-ence
rown v. 7endall- Kictory for the ?egligence 'tandard
!ves Case- Constitutionali/es although not federally! ?egligence
as standardF can-t ma1e company strictly liable for in,uries in #or1place
$rinciple- sees as violation of due process because
presuming fault and not giving a chance to argue against itF could argue that employee
assumed ris1 of non-negligent in,ury by agreeing to #or1
'LETC9ER# reservoir brea1s and floods another-s property! =pinions: :artin- 2act
#e impose strict liability for Euasi-public institutions proves the rule public-private
dichotomy!
.iven: reasonable land o#ner #ould not have 1no#n about previous underground mine
'hould there be civil liability in the absence of reasonable care '%!? =r should there be
civil liability for failure to e)ercise reasonable care?
Aights discourse cannot resolve issue--al#ays in conflict so can never arrive at result
$olicy reE-d
:ediating principles? 2irst-in-time+ first-in-right?
A&%*: 'trict %iability
Ar-u(ents for &trict Liability
ramwell- $rotecting defendants- property and security rights negligence should only be
rule #hen #e don-t 1no# #ho acted9caused the harm- collision cases are e)cepted bc
don-t 1no# #ho is at fault9cannot apply '% ruleF inn1eepers and common carriers have
contracted to accept liability for other people! 2=A $%AI?TI22
lack&urn- In,ured $arty is not consenting to in,ury. 2I?A% "*CI'I=?- imposes strict
liability in narro# category: bring something on land that-s not natural+ liable for mischief
#hen it escapes 2=A $%AI?TI22
$laintiff has right to be free from harm9in,ury
$rinciple: let the one #ho acted pay
$olicy: "on-t #ant to deter people from acting9good
behavior 0olmes- stay in bed problem!
0olmes: 'ince tort isn-t based on consent li1e contract!+
negligence most closely appro)imates C%T free c"oice5consent idea because based on
acting according to the foreseeability of the in,ury not negligent if in,ury not
foreseeable!
'trict %iability #ould ma1e everyone an insurer of others-
in,uries and #ould be a form of regulation and 0olmes doesn-t #ant that
Proble(: "oesn-t ta1e into account choice9consent of the
victim
Ar-u(ents for ne-li-ence
:artin: 2=A "*2*?"A?T #ho has right to freedom of action9to utili/e land
$rinciple: ?o %iability Without 'ault bc ppl "a!e ri-"t to act
$olicy: Want to deter bad9dangerous behavior
@. %evel Three
$arallel to consent in contract
2reedom v. 'ecurity contradiction arises again: Hou should have
freedom of action and not be liable for every unforeseeable in,uryF ho#ever+ there is a
security interest in victim that should be protected
?either party is actually 3passive7- victim could conceivably have
duty to put fence rather than be free from having others- cattle enter land
B. Aeasonableness 'tandard
4. 0o# do #e come up #ith this standard?
2irst+ 0olmes9C%T pic1ed the sub,ective standard of negligence
'econd+ they pic1 the ob,ective standard based on a reasonable
person and re,ecting the idea of sub,ective intent9honest belief! for determining #hether
or not someone has acted negligently
Arguments for ob,ective9reasonable person standard #ill be
similar to strict liability arguments on the previous level
>. Aeasonable $erson Test- When do you subcategori/e to determine
reasonableness?
'ee *mith v. Lampe- defendant blo#s horn in fog+ not 1no#ing
#hat it means+ boat crashes+ but he is not held liable because reasonable non-maritime
person #ould not 1no# #hat it meant
2or each category+ the same negligence v. strict liability arguments
#ill be used again for #hether each group determined by ob,ectivity or sub,ectivity
'tupidity- ?o+ ob,ectiveF 'ee (aughn #here defendant held liable
for burning hayric1 even though he didn-t thin1 it #as negligent
Insanity9'evere mental disability- Hes+ sub,ective
"run1enness- ?o+ ob,ective chose to ma1e this a disability!
Blindness- Hes+ turns standard into sub,ective one of reasonable for
a blind person
Children: Hes+ turns standard into sub,ective one of reasonable
child that age e)cept #hen doing things that should be done by an adult!
'pecial '1ills9Pno#ledge- Hes+ as is doctor held to a higher
standard
;. %earned 0and Calculus
2ormula: B:P)L+- Action negligent #hen the burden of ta1ing
precautions is less than the probability of in,ury times the cost of the loss9in,ury
Carroll 8owing- Barge o#ners acted negligent by not hiring
bargees because cost of hiring less than in,ury times probability
Dustification- %a# and *conomics *fficiency and encouraging
action rather than staying in bed
$roblem: What if the custom is not using bargees? Then isn-t it
reasonable not to?
@. %evel Three
As1ing sub,.9ob,. Euestion again and again and C%T
Arbitrary9Inconsistent in pic1ing sub,ective standards in some cases and ob,ective
standards in others
Indeterminate: There is really no absolute reasoning for pic1ing
one over the other
%oo1ing at reasonable man doesn-t protect the consent of the
individual because courts are not loo1ing to individual intent- It is a regulationQ
$art IK- Aealist CritiEue of Classical %egal Thought
I. Boundaries
A. C%T Boundaries discretionary and indeterminate
B. They #ere engaging in policy ,udgments #hen they #ere ma1ing these
decisions about #hat should go into #hat categoryF they #eren-t 3finding7 the la#
II. Identifying Consent
A. C%T ,ustifying self on the grounds that it protects liberty+ consent+ free-#ill
B. 0o#ever+ uses an ob,ective standards i.e. ob,ective theory of contracts+
reasonable person in tort! to determine #hat consent is big internal contradictionQ!
C. Any particular choice here turns out to be a regulation+ despite #hat C%T says
about trying to avoid regulations
III. :ar1etplace
A. All policy decisions+ so should be decided by the legislatures rather than by the
courts i.e. anti-%ochner!
B. ?o #ay to ,ustify putting limits on the mar1etplace li1e unfair competition! by
free mar1et ideology because free mar1et ideology can potentially support both sides
C. 0ale- every mar1et transaction is coercive
IK. %egally $rotected Interests vs. $rivilege
A. Whether to ma1e something a legally protected interest or not cannot be
dictated by property rules alone other#ise #ould be circular!
B. Whether or not to recogni/e a harm is a po#erful form of regulation+ and it
also affects the distribution of #ealth in the society
C. These are social values9social choices+ not preordained decisions
K. Third $arty *ffects
A. ?othing is completely 3private7 because every transaction bet#een t#o people
also have a broader effect on others
B. Then+ it becomes a policy decision rather than a matter of principle
KI. Aeverses the $ublic-$rivate "istinction
A. %egally protected interests- every decision not to recogni/e one is an action by
the government granting a privilege
B. Boundaries- indeterminate+ these are all public decisions
C. "ecisions made about consent ob,ectively are all state regulations
$art K- T=AT' post-C%T9*volution of ?e# Torts
I. *volution of ?e# Torts- Aecogni/ing that failure to recogni/e a legal protected interest
is a privilege to harm
A. Intentional Infliction of 'evere *motional "istress
4. *lements Aestatement @C!- a! duty not to engage in e)treme and
outrageous conduct b! breach- Intended+ 1ne# or 3rec1less7 about ris1 c! causes d! harm-
severe emotional distress some ,urisdictions reEuire manifest of bodily in,ury!
>. ;
rd
$arty claims- can recover even if not directed at them if it-s directed
at a member of immediate family and they #ere present =A if it results in bodily in,ury
;. 'tarted #ith parasitic recovery- 'ee 1ilkinson deceit! and Gaslight
nominal trespass!
@. Independent Aecognition- 'ee George v. 9ordan Marsh6 Court decides
since that it-s allo#ed parasitic recovery in other cases then there-s no reason they can-t
establish a separate tort
*ither #ay you-re ma1ing a decision+ either to privilege the harm
or not "oesn-t have to be a physical in,ury
B. %imits on %iability-
Gomez v. Hug: AeEuires 3e)treme and outrageous conduct7 and
use of ethnic slurs and found #as not e)treme and outrageous
Case also e)ample of "efamation Tort- $er se doesn-t
reEuire proof of an actual harm but per Euod does
Harris v. 9ones- *motional "istress has to be '*K*A* even if not
necessarily accompanied by physical in,ury
B. &nfair Competition
4. Initially &nrecogni/ed
Mogul Case- ?o tort of predatory pricing+ accompanying privilege
of competitionF by not recogni/ing harm+ they are privileging the harm
>. Tort Becomes Aecogni/ed to some e)tent
8uttle v. uck- :ight be #illing to ,ustify a tort of predatory
pricing running barber out of business! in limited case if it is not based on anything in
the mar1et but instead on ,ust the defendant-s ill #illF *ee also I?' v. A$
In the end+ federal government codifies protection from harm in
'herman Anti-Trust Acts
;. %evel ;- :ar1et ideology supports both sides of this issueF therefore
C%T mar1et theory9reliance doesn-t give the ans#er conflict bet#een freedom to act and
security from unfair competition in business! and every choice not to act is a choice for
privilege brea1ing do#n act-omission distinction!.
C. Arguments about Aecognition of Tort of 'e)ual 0arassment it is not
recogni/ed outside of title R and S at the moment!
4. $recedent
Against- It hasn-t been recogni/ed before
2or- Title R and S sho# an emerging social policy that this 1ind of
behavior should not be toleratedF $recedent for recogni/ing ne# torts and the la# needs
to be fle)ibleF 1hen someone intentional harms another there is a remedy in tort unless
harm is 5ustified and e$cused central principle in most tort cases- see 8uttle!
>. $rinciple
Against- 'ecurity- If someone has been harmed by another+ there
should be compensation #ithout good reason #omen shouldn-t have to put up #ith thisQ!
2or- 2reedom of e)pression of courseF 2reedom to progress
beyond cultural norms
;. $olicy
Against- rules against harassment might chill social relations:
se)ual freedom and therefore less ,oy 0olmes stay in bed argument!. "on-t #ant to deter
action9good behavior
2or- Want to deter bad behavior.
%a# and *conomics $olicy arguments
Against- not #orth it for the victim-s to 3purchase7 the
right in the mar1et pay off the harassers! and therefore #ould be inefficient to have the
role. If they #ant it they #ould have paid for it.
2or- Transaction costs prevented them from having their
#ishes accurately reflected in the mar1et
@. Administerability
Against- Impossible to come up #ith reasonable person standard
and also diversity of #hat is appropriate
2or- We-ve identified it before in terms of statutory anti-
discrimination cases so #hy can-t #e do so here?
B. Institutional Competence
Against: ?o value-free #ay to determine #hat is reasonable
interaction bet#een people so the proper venue for this is a legislature in the democratic
sphere Brandeis argument from I?'!
2or: ?ot deciding #ould still be ma1ing a decision i.e. :iller v.
'choene! and privileging the behavior of se)ual harassment
". %evel Three point- decision about #hether or not to recogni/e legal harm is
going to affect the distribution of #ealth
II. "efenses to Intentional Torts- allo#ing a defense to an intentional tort also creates a
privilege
A. Consent
4. ?ot defense per se but destroys the prima facie case because destroys
#rongfulness of the action
>. Based on a reasonable person standard- can be inferred+ implied and
also constructed in an emergency circumstance
;. *)ceptions to consent- incapacity+ coercion+ mista1e about the nature of
the invasion+ consent to something one cannot sometimes criminal action!
@. Canter&ury v. *pence: In order to achieve informed consent in trust
relationship+ one must give #hat reasonable person #ould need to 1no# to ma1e a
decision. *)ceptions are emergency and cra/y patient. *ven if the individual patient
#ould have not consented under the circumstances+ it is a reasonable person standard
%evel Three: ?ot respecting individual choice
B. 'elf-"efense
4. :ust have reasonable belief in i((inent peril
>. $rivilege is limited to the use of force that is+ or reasonably appears to
be+ necessary for protection against the threatened in,ury
;. In using deadly force to protect oneself+ one must be in danger of death
of serious bodily harm and has a duty to retreat if it is a safe retreat! unless no possibility
or in one-s home
@. =ne has privilege to defend others and one-s property as long as fulfills
these other reEuirements
C. :ista1en 'elf-"efense
4. *ven if you are mista1en that the situation is an imminent threat+ you
are still privileged to act in self-defense so long as the (ista6en belief is reasonable
'ee Courvoisier- store o#ner shoots a police officer during
robbery thin1ing that he is one of the assailants and this is privileged
>. If a third-party is mista1enly in,ured #hen someone is legitimately
using privilege of self-defense then there is no liability as long as not negligent
'ee Morris v. "latt- Innocent bystander hit by stray bullet as
defendant tries to protect himself from attac1 from a mob
;. %evel T#o arguments for and against this standard
2or ?egligence Arguments!- $eople #on-t defend themselves if
they-re #orried about ma1ing mista1e don-t #ant to deter good behavior!F ?o liability
#ithout fault+ #e #ant to protect freedom of individual #ho made reasonable choice
Against 'trict %iability!- As bet#een t#o innocentsIF
". ?ecessity
4. $rivileges trespass #hen there is an i((inent need and the !alues to
be preser!ed -reater t"an t"e !alues t"reatened no other reasonable #ay to save
property9person?!
>. $eople are not allo#ed to stop others untie boat from doc1! from using
their property in case of necessityF 'ee "loof
;. Inco(plete Pri!ile-e- have to pay for the damages to the property they
are using even though they have the privilege to do so
*. Why is self-defense a complete privilege and necessity incomplete?
4. 0olmes: "on-t #ant to deter people from ta1ing self-defensive action if
they need to
>. In necessity+ people are still going to tie up #hether or not they have to
pay
$art KI- C=?TAACT in the A*A%I'T *AA9post-C%T
'or a contract to be le-ally bindin- it (ust "a!e:
4! Intent to be legally bound
>! %egally binding offer
;! Kalid acceptance
@! Consideration
I. "efining 3:eeting of the :inds7
A. Obecti!e T"eory of ContractsQ
4. Lucy v. 3ehmer- *ven though defendant had secret intent that he didn-t
mean agreement to be contract+ the out#ard manifestation #ould cause a reasonable
person to find a contract
Can be voided by incapacity or if both parties 1no# that it-s a ,o1e
>. Dustification- O$rotects security of transactions+ other#ise people
couldn-t depend on agreements and contract la# #ould fall apartF reasonable e)pectation
created in other party
B. :ista1e
4. Traditional Aule- :ista1e on a material term the thing itself! of the
contract and a basic assumption involved+ but couldn-t be a mista1e about a mista1e in
,udgment or degree of ris1+ and the other side can-t have assumed the ris1
>. &nilateral :ista1e- If one party should have reasonably 1no#n about
the mista1e+ then the contract is unenforceableF ho#ever+ it is enforceable if the other
party bears the ris1 by going ahead #ithout sufficient information
;. :utual :ista1e- 'imilar to the traditional rule
II. "efining =ffers and their Acceptances
A. Ad!ertise(ent not a le-ally bindin- offer- 'ee Craft v. %lder
4. Dustification- ,ust an invitation to negotiate+ can-t interpret as offer
because send it out to everyone and #ill not have enough inventory for all
>. Counterrule: When advertisement clear about e)actly #hat #ill trigger
performance and #ho it-s directed toF 'ee Leftkowitz clear and definite+ offering first
come-first served!
B. &ilence cannot constitute acceptance- 'ee "rescott
4. Counterrule: &nless the circumstances indicate it should be so
understoodF 'ee %hrlich6 #here there #as an ongoing relationship and buyer didn-t say
anything #hen sent a rene#al notice
"rescott introduces idea of promissory estoppel but doesn-t apply
because can-t rely on merely a statement of intent
>. Another *)ception- undue delay in communication action9decision
about acceptance of a contract can amount to an acceptanceF 'ee Cole6 #hen item #ill
become unmar1etable by delay
'eems to be focusing on the reliance of the buyer+ li1e promissory
estoppel #ill eventually do
C. %evel Three- The ne# counterrules are based on Conte)t and create additional
subcategories+ #hich is #hat Aealists #ant+ they don-t #ant to be relying on the formal
rules #hen they get in the #ay of the security of transactions and the #ay real people act
III. Contracts by Correspondence
A. /ailbo3 Rule: Acceptance effective upon dispatchF 'ee .dams
$otential Dustifications- seller has appointed postal service as agentF need
some 1ind of rule+ other#ise there can be infinite regression of #hen acceptance effective
B. Aetraction of an offer+ on the other hand+ has to reach the other party
C. $rice <uotes are not an offer unless circumstances9conte)t dictate it should be
". 0airmount also reects t"e (irror acceptance rule in this case by appealing
to trade usage and saying t#o terms that #ere different actually meant the same thing
4. &CC T >->5R- even if terms different+ still an acceptance unless made
e)plicitly conditional on those termsF terms are added to the contract unless materially
alters it or an ob,ection is made remember this applies to merchants not necessarily to
all!
>. %evel Three: This is e)ample of post-Aealist Contract doctrine-s
reliance on conte)t and also trying to ma1e it easier to find a transaction and provide
disincentive for last shot doctrine #here parties try to get in last version of contract
before performance begins
IK. Parol E!idence Rule
A. $urpose- to protect #ritten agreement from being corrupted by outside
evidence because #orried about per,ury and fraud
B. Traditional Aule: Complete and Integrated 2inal Agreement or partial
integrated agreement! can-t be varied or added to by e)trinsic evidence
4. Collateral Agreement *)ception- outside evidence allo#ed to establish
this outside agreement that isn-t part of actual sub,ect matter of agreement but collateral
to it Gianni Test- applies if ppl #ouldn-t e)pect that issue9term to be part of the topic
covered by original #ritten agreement!
>. *)ception to determine meaning of ambiguities
;. *)ception for evidence to prove contract invalid i.e. fraud+ duress!
@. 'ee others on %arry-s Chart- condition precedent
C. Can you use e)trinsic evidence to see if there is an ambiguity that needs
interpreting or #hether or not the agreement #as complete and integrated?
4. =ld approach- ?oF 'our-Corners Approac"- Dust loo1 at the #riting
on the page and ta1e it at face value 'ee Li&&y v. 8hompson! still the approach in some
,urisdictions!
>. ?e# approach- HesF Writing still ta1es the highest priority but you loo1
outside of the document to get a full understanding of conte)t+ and &CC says that you
al#ays consider:
Course of Perfor(ance- 0o# the parties have behaved #ith
respect to this particular agreement
Course of Dealin-- 0o# the parties have behaved #ith each other
in similar transactions
Usa-e of Trade- What meanings different fields bring to #ords
see Hurst and 0rigaliment Cases #here meaning of B56 and chic1ens in dispute!
". Aamification: Hou can almost al#ays find an e)ception or #ay around the rule
to introduce e)trinsic evidence
*. Dustifications- 2or the $arol *vidence Aule is to prevent fraud etc+ but the ne#
approach ,ustified by idea that sometimes e)cluding parol evidence can facilitate fraud as
#ell 'ee Mitchell v. Lath+ #here they got out of an agreement to tear do#n icehouse!
K. &tatute of 'rauds
A. 'ummary: AeEuires certain 1inds of agreements to be in #riting and signed by
the party against #hich enforcement is sought
B. $urpose- reEuire that certain 1inds of contracts be in #riting to prevent fraud
4. *videntiary- Written contract best form of evidence+ prevents lying
>. Cautionary- $eople #ill thin1 about decisions more if they have to put
them into #riting
;. Channeling- 2or public policy reasons i.e. uniformity!+ #e #ant certain
1inds of transactions to have forms
C. What 1ind of agreements are sub,ect to the 'tatute of 2rauds?
Contracts that cannot be in any #ay performed #ithin a yearF Aeal *stateF
?ot performable #ithin lifetime of promisorF Contracts for paying debts of anotherF
:arriageF 'ale of goods over MB55 B+555 ne# &CC!
". *)ceptions to 'tatute of 2rauds
4. If contract is admitted by both sides &CC! or you get someone to admit
it in deposition #hich then becomes a signed #riting 'ee Cohn v. 0ischer!
>. "etrimental Aeliance- this is promissory estoppel type idea+ contract
should be enforced #hen ,ustice so reEuires
;. $art $erformance
@. =ne year rule ta1en very broadly to get around 'tatute of 2rauds
*. What is an enforceable signed #riting under 'tatute of 2rauds?
4. "oesn-t have to be official contract- 'ee Aestatement 4;4+ 4;>
>. Cra&tree Case- Timecard is signed agreement and because it is of the
same sub,ect matter as an unsigned agreement memorandum that relates
2. Aamification: a lot of the e)ceptions and the court-s hesitancy to apply it even
#hen it applies undermines the basic premise. %ots of #ays around it.
KI. Curing Indefiniteness by Implying Terms
A. .ap 2illers in &CC that imply meanings
4. Implied Warranty of :erchantibility &CC >-;4@? have to e)plicitly
state if you #ant to get rid of it
>. Implied terms about price and timing+ place of delivery-default
provisions if issue not e)plicitly stated in contract &CC >-;5B-;5S
Ae,ects "efiniteness reEuirement in many cases
This is a Aealist reversal of the idea that courts #ill not #rite
contracts for the parties
B. All Contracts as Implied-in-la# Contracts
4. *very contract includes the body of la# that came before it+ so the idea
of a #arranty of merchantability as necessary for contract la# is ,ust loo1ing at the
conte)t9bac1ground. This means that implying terms isn-t such a stretch
>. %evel Three: If this is true+ it means that contracts only have meaning
#ithin our social conte)t. Contract is not a 3meeting of the minds7 but rather a creature of
legal doctrine that attaches meanings to certain #ords and actions+ and all of these
meanings and actions come from our social conte)t. This means contract is really a mode
of public regulation+ rather than a mode of individual choice and consent
KII. C=?'I"*AATI=?
A. "efinition of Consideration
4. =ldest "efinition- Benefit or Burden
>. 0olmes 1isconsin )aildroad- Bar-ained-for consideration+ 3promise
and the detriment are the conventional inducements each for the other7
'ee if the detriment #as #hat induced the promisor to ma1e the
promise
This actually narro#ed definition of consideration at the time+ but
remember anything can be consideration so long as it-s bargained for
B. "istinguishing Types of $romises
4. $ratuitous Pro(ise- promise to ma1e a gift+ nothing given in support
of it+ not enforceable
>. *)ecuted .ift- enforceable through property la#
;. Conditional .ratuitous $romise- If something is a condition of the
promise to ma1e a gift+ then it is not consideration if condition is not a benefit to
promissor it-s usually not consideration- tramp e)ample!
@. Pro(ise &upported by Consideration- 'ee Maughs #oman induced
to come to land auction by promise of a lottery! If promisee induced to act+ then it-s
considerationF ho#ever+ contracts founded on illegal consideration lottery! void
'ee Harris v. 8ime- Consideration found by person opening piece
of ,un1 mail that offered pri/e because person induced and Time gets a benefit from it!F
ho#ever+ la# does not deal #ith trifles
B. Unilateral !% Bilateral Contract
2ormer accepted by doing the reEuired performance also has to
give notification #ithin reasonable time! and latter accepted by a return promise
C. 'ub-rule for Consideration in bailment-bailee trust relationship:
*)ecutory gratuitous trust in unenforceable+ but once trust relationship starts to be
fromed+ then promises involved become enforceableF 'ee *eigel v. *pear
Aemember in general+ starting to perform a promise does not
constitute consideration
'ounds a lot li1e detrimental reliance+ signpost for the beginnings
of promissory estoppel
C. Al#ays $ossible to Imply Counter-promises to find Consideration
4. Consideration reEuires /utuality of Obli-ation
:eans that if one party doesn-t really seem to be ma1ing a promise
or can change the terms at #ill+ then there isn-t any consideration and hence no contract-
'ee "aul v. )osen and ernstein Case
>. Counterrule in post-Aealist era: $romises not supported by
consideration on their face :AH be enforceable if you can provide a counterpromise that
provides consideration for the promise
'ee .lleghany College- Woman agrees to donate MB+555 upon
death to college and #ants her name on memorial fund. 'he gives 4+555 before death but
also reneges before death. Cardo/o finds valid contract #ith consideration even though it
seems li1e a gift #ith no mutual obligation. 'ays consideration9obligation on the other
side is the promise to name the fund after her
Ra(ification: We could find a valid counter-promise in A%% cases
#here consideration not found and reverse it
AA"ICA% A*A%I'T "*$AAT&A*Q
;. *ven though it is al#ays possible to imply a counterpromise+ it doesn-t
mean the court #ill al#ays do so. Compare 1ood v. Lucy #ith "aul v. )osen
@. %evel > Arguments for and against need for consideration
2or: Bargained-for consideration assures that the transaction is
going to be value-enhancing for all %a# and *conomics!. C%T vie# #ould be that it
protects liberty9consent
Against: %a# should be adopted to #hat-s going on in the real
#orld+ other#ise efficiency #ill be stunted
B. %evel Three: Indeterminacy: Both formal definition of consideration
and ne# implying counter-promise approach can be ,ustified as protecting the stability of
the mar1etplace. Aealists argue rigidity of formal approach out of touch #ith real #orld
and #e need to protect business peoples- e)pectations in mar1etplace
7irskey as e)ample of danger9indeterminacy of C%T approach because
reduces to semantics the Euestion of #hether or not the #oman leaving her home to move
in #ith her brother is consideration or not
". $romissory *stoppel- Implying "uties #ithout Contracts
4. $rotects individuals from detrimental reliance see 0ried)4 substantial
and reasonably foreseeable reliance on a pro(ise (ay be enforceable as ustice so
re2uires
>. Aemedy- different from contract remedy because it-s not actually a
contract: Aemedy is as ,ustice so reEuires rather than contract e)pectation damages 'ee
Hoffman+ #here damages are costs of reliance rather than full contract damages!
;. .ilmore- This demonstrates merging of contract and tort- it-s li1e
creating a tort for negligent use of #ords+ because it-s based on the loss9harm
Also+ creates a sort of strict liability in contract #orld
@. %evel Three: C%T #ould ob,ect to idea because it re,ects the freedom of
choice idea behind a contract