Half Title Page
Editorial Advisors
Title Page
Copyright Page
About Wolters Kluwer Legal & Regulatory Solutions U.S.
Dedication Page
Summary of Contents
Contents
Preface
Acknowledgments
Chapter 1 The Meaning of “Contract” and the Basic Attributes of the Contractual Relationship
§1.1 Introduction
§1.2 The Legal Meaning of “Contract”
§1.2.1 An Oral or Written Agreement Between Two or More Persons
§1.2.2 An Exchange Relationship
§1.2.3 Promise
§1.2.4 Legal Recognition of Enforceability
§1.3 Contract as a General Body of Law Applicable to Diverse Transactions
§1.4 The Fundamental Policies and Values of Contract Law
§1.4.1 Freedom of Contract
§1.4.2 The Morality of Promise—Pacta Sunt Servanda
§1.4.3 Accountability for Conduct and Reliance
§1.4.4 Commercial and Social Values
Chapter 2 Facets of the Law of Contract and the Source of Its Rules, Processes, and Traditions
§2.1 The Purpose of This Chapter
§2.2 The Historical Perspective of Contract Law
§2.3 Classical and Contemporary Contract Law
§2.3.1 Classical Contract Law
§2.3.2 Contemporary Contract Law
§2.4 The Meaning of “Common Law”
§2.4.1 “Common Law” Used to Designate Our Legal System as a Whole
§2.4.2 “Common Law” Used to Denote the Judge-Made Component of Our Legal System
§2.4.3 “Common Law” Used to Denote a Process or Approach to Legal Analysis
§2.5 The Distinction Between Law and Equity
§2.6 State Law Governs Contracts
§2.7 The Uniform Commercial Code (UCC)
§2.7.1 The UCC as a Uniform Model Statute and State Legislation
§2.7.2 The Use and Application of UCC Article 2
§2.7.3 The Influence of Article 2 in Cases Involving Contracts Other Than Sales of Goods
§2.8 What Is the Restatement (Second) of Contracts?
§2.9 A Transnational Perspective on Contract Law
Chapter 3 The Doctrine of Precedent and a Contract Case Analysis
§3.1 Studying Contract Law Through Appellate Cases
§3.2 How Judges Make Contract Law: Judicial Precedent
§3.2.1 What Is Precedent?
§3.2.2 Who Is Bound by Precedent?
§3.2.3 The Drawbacks of the System of Precedent
§3.3 The Anatomy of a Judicial Opinion
§3.3.1 Ratio Decidendi (Rule or Holding) and Obiter Dictum
§3.3.2 The Process of Inductive and Deductive Reasoning in the Creation and Application of Legal Rules
§3.3.3 The Use of Authority and Supporting Rationale in Judicial Opinions
§3.4 A Transnational Perspective on the Doctrine of Precedent
Chapter 4 The Objective Test and Basic Principles of Offer and Acceptance
§4.1 Interpretation and the Objective Test
§4.1.1 Introduction
§4.1.2 The Communication of Contractual Intent
§4.1.3 Assent and Accountability: Subjective and Objective Tests of Assent
§4.1.4 The Substantive and Evidentiary Aspects of the Objective Test
§4.1.5 The Duty to Read
§4.1.6 Lack of Serious Intent: Jokes and Bluffs
§4.2 The Purpose and Application of the Rules of Offer and Acceptance
§4.2.1 Introduction
§4.2.2 When Are Offer and Acceptance Issues Presented?
§4.2.3 The Basic Offer and Acceptance Model at Common Law
§4.3 The Rules of Offer and Acceptance Applicable in Sales of Goods Under UCC Article 2
§4.4 The Nature of an Offer, as Distinct from a Preliminary Proposal
§4.4.1 Distinguishing an Offer from a Solicitation
§4.4.2 Offers or Solicitations to Multiple Parties and Advertisements
§4.5 The Expiry of the Offer by Passage of Time
§4.5.1 The Specified or Reasonable Duration of the Offer
§4.5.2 The Effect of a Late Attempt to Accept
§4.6 Termination of the Offer for Reasons Other Than Expiry by Lapse of Time
§4.6.1 Rejection
§4.6.2 Counteroffer
§4.6.3 The Offeror’s Death or Mental Disability
§4.6.4 Revocation
§4.7 The Nature and Effect of Acceptance
§4.8 The Effect of Inconsistency Between the Offer and the Response: Counteroffer
§4.9 The Mode of Acceptance
§4.10 Inadvertent Acceptance and Silence or Inaction as Acceptance
§4.10.1 Inadvertent Acceptance
§4.10.2 Acceptance by Silence or Inaction
§4.11 The Effective Date of Acceptance and the “Mailbox” Rule
§4.11.1 The Traditional Rule
§4.11.2 Application of the Rule to Electronic Media
§4.12 Acceptance by Promise or Performance: Bilateral and Unilateral Contracts
§4.12.1 The Distinction in Perspective
§4.12.2 The Offer for a Bilateral Contract
§4.12.3 The Offer for a Unilateral Contract
§4.12.4 When the Offer Does Not Clearly Prescribe Promise or Performance as the Exclusive Mode of Acceptance
§4.12.5 Acceptance by a Performance That Cannot Be Accomplished Instantly
§4.12.6 Notice When an Offer Is Accepted by Performance
§4.12.7 Reverse Unilateral Contracts
§4.13 Irrevocable Offers: Options and Firm Offers
§4.13.1 Introduction
§4.13.2 Options and Consideration
§4.13.3 The Effect of an Option
§4.13.4 Firm Offers Under UCC §2.205
§4.14 A Transnational Perspective on Offer and Acceptance
Chapter 5 Standard Form Contracts and Contracts Through Electronic Media
§5.1 Introduction
§5.2 The Process and Terminology of Standard Contracting
§5.3 Conspicuousness, Notice, and Reasonable Expectations
§5.4 The Problem of Adhesion and Unconscionability in Standard Contracts
§5.5 “Cash Now, Terms Later”: Deferred Communication of Terms and Rolling Contracts
§5.5.1 Deferred Communication of Terms
§5.5.2 Rolling Contracts
§5.6 Modification of Standard Terms
§5.7 Statutory Recognition of Electronic Contracting
§5.8 Contracting by Automated Means
§5.9 Online Auctions
Chapter 6 Mismatching Standard Terms: The “Battle of the Forms” Under UCC §2.207
§6.1 The Scope and Purpose of UCC §2.207
§6.1.1 The Basic Purpose and Drafting Inadequacies of §2.207
§6.1.2 The Two Distinct Issues Covered by §2.207: Formation and Confirmation
§6.1.3 The Application of §2.207 to Electronic Communications
§6.2 The Problem Tackled by §2.207: The Common Law “Mirror Image” and “Last Shot” Rules
§6.3 Offer and Acceptance Under §2.207
§6.3.1 §2.207(1): Acceptance, Rejection, and Counteroffer
§6.3.2 §2.207(2): The Treatment of Proposals in an Acceptance
§6.3.3 §2.207(3): The Effect of Mutual Performance When No Contract Is Formed by the Parties’ Writings
§6.4 Written Confirmation Following an Oral or Informal Contract Under §2.207(1) and (2)
§6.5 A Transnational Perspective on the “Battle of the Forms”
Chapter 7 Consideration
§7.1 Consideration as the Basis of Contract Obligation
§7.2 The Essence and Scope of Consideration
§7.3 The Elements of Consideration: Detriment, Benefit, and Bargained-for Exchange
§7.3.1 What Is a “Detriment”?
§7.3.2 How Does Benefit to the Promisor Fit In?
§7.3.3 The Bargained-for Exchange
§7.3.4 The Distinction Between Bargained-for and Incidental Detriment
§7.3.5 The Distinction Between a Detriment and a Condition of Gift
§7.4 The Purpose and Function of Consideration Doctrine
§7.4.1 Consideration Doctrine in Common Law and Its Absence in Civil Law
§7.4.2 The Formal and Substantive Basis for the Doctrine in Relation to Gratuitous Promises
§7.4.3 Consideration Doctrine in the Commercial Context
§7.4.4 The Flexibility of Consideration Concepts and the Use of the Doctrine for Policing Purposes
§7.5 Detriment and “Preexisting Duty”
§7.5.1 The Basic Rule
§7.5.2 The Justification for the Rule Where the Duty Is Owed to the Promisor: Coerced Modifications
§7.5.3 The Abolition of the Preexisting Duty Rule in Relation to Modifications Under Article 2
§7.5.4 Modifications in Light of Supervening Difficulty
§7.5.5 Preexisting Duty to a Third Party
§7.6 Consideration in an Agreement to Settle a Disputed Claim or Defense
§7.7 The Measurement of Detriment: Adequacy of Consideration
§7.7.1 The General Rule: Courts Are Not Concerned with Adequacy of Consideration
§7.7.2 Inadequacy of Consideration as the Result of Unfair Bargaining
§7.7.3 Sham or Nominal Consideration
§7.7.4 Nominal Consideration in Options
§7.8 Past Performance
§7.9 The Quality of a Promise as Consideration: “Mutuality of Obligation,” Illusory, Conditional, and Alternative Promises
§7.9.1 Mutuality and Illusory Promises
§7.9.2 Interpretation and the Use of Implied Terms to Cure an Apparently Illusory Promise
§7.9.3 “Mutuality” in Requirements and Output Contracts Under UCC §2.306
§7.9.4 Conditional Promises
§7.9.5 Conditions of Satisfaction
§7.9.6 Promises of Alternative Performances
Chapter 8 Promissory Estoppel as the Basis for Enforcing Promises
§8.1 Introduction
§8.2 The Nature of Promissory Estoppel as an Independent Basis of Relief or as a Consideration Substitute
§8.3 The Difference in Remedial Emphasis Between Contract and Promissory Estoppel
§8.4 An Introduction to Equitable Estoppel and Its Link to Promissory Estoppel
§8.5 The Range of Promissory Estoppel: Gifts and Commercial Transactions
§8.6 The Elements of Promissory Estoppel
§8.6.1 Introduction and Overview of the Elements
§8.6.2 A Promise Must Have Been Made
§8.6.3 The Promisor Should Reasonably Have Expected the Promise to Induce Action or Forbearance by the Promisee
§8.6.4 The Promise Must Have Induced Justifiable Action or Forbearance by the Promisee
§8.6.5 The Promise Is Binding If Injustice Can Be Avoided Only by Its Enforcement
§8.7 The Remedy When Promissory Estoppel Is Applied
§8.8 Charitable Pledges and Promissory Estoppel
§8.9 Promissory Estoppel as a Means of Enforcing Promises Made in Negotiations
§8.10 Promissory Estoppel and At-Will Employment Agreements
§8.11 Reliance on an Option Without Consideration: The Application of Promissory Estoppel to Promises of Irrevocability
§8.12 A Transnational Perspective on Promissory Estoppel
Chapter 9 Unjust Enrichment, Restitution, and “Moral Obligation”
§9.1 Introduction
§9.2 Unjust Enrichment, the Basis for Restitution
§9.3 The Relationship Between Unjust Enrichment and Contract
§9.3.1 Restitution as an Alternative Remedy When a Valid Contract Has Been Breached
§9.3.2 Restitution When a Contract Has Been Rescinded
§9.3.3 Restitution When a Benefit Is Conferred Pursuant to an Invalid or Unenforceable Contract
§9.3.4 Restitution When a Benefit Is Conferred on the Strength of a Promise Without Consideration
§9.3.5 Restitution in Cases When No Contractual Interaction Occurred
§9.4 The Meaning of “Quasi-Contract”
§9.4.1 Quasi-Contract—a Contract “Implied in Law”
§9.4.2 Quasi-Contract Distinguished from a Contract Implied in Fact
§9.5 The Elements of Unjust Enrichment
§9.5.1 Enrichment
§9.5.2 When Is Enrichment Unjust?
§9.6 Measurement of Benefit
§9.6.1 The Remedial Aim of Restitution
§9.6.2 Alternative Methods for Measuring Enrichment
§9.6.3 Market Value
§9.6.4 The Recipient’s Net Gain
§9.6.5 Choosing Among Market Value, Objective Net Gain, or Subjective Net Gain
§9.7 “Moral Obligation” and the Material Benefit Rule
§9.7.1 Introduction
§9.7.2 The Role of the Doctrine of “Moral Obligation” and the Development of the Material Benefit Rule
§9.7.3 The Traditional Scope of the Doctrine of “Moral Obligation”
§9.7.4 The Broad “Material Benefit” Rule
Chapter 10 Interpretation and Construction: Resolving Meaning and Dealing with Uncertainty in Agreements
§10.1 Ascertaining the Meaning of an Agreement: Interpretation and Construction
§10.1.1 Introduction to the Process of Interpretation and Construction
§10.1.2 Interpretation as a Question of Fact or Law
§10.1.3 The Sources of Evidence Used in Interpretation
§10.1.4 Some General Rules of Interpretation and Construction
§10.2 Gap Fillers Used to Effectuate the Parties’ Reasonable Intent
§10.2.1 Introduction
§10.2.2 Gap Fillers That Supply General Obligations
§10.2.3 Gap Fillers That Supply More Specific Rights and Duties
§10.3 Terms Construed as a Matter of Policy
§10.3.1 Supplementary Terms That Cannot Be Excluded by Agreement
§10.3.2 The General Obligation of Good Faith and Fair Dealing
§10.3.3 Construed Terms That Can Be Excluded Only by Express or Specific Language
§10.4 The Problem of Indefiniteness in an Agreement
§10.5 Different Causes and Forms of Indefiniteness
§10.5.1 Unclear Terms: Vagueness and Ambiguity
§10.5.2 Omitted Terms
§10.5.3 Terms Left for Future Determination
§10.6 Preliminary Agreements
§10.6.1 The Categorization of Preliminary Agreements
§10.6.2 Nonbinding Preliminary Agreements
§10.6.3 Preliminary Agreements That Bind the Parties to Their Ultimate Objective, So That the Final Memorandum of Agreement Is a Formality
§10.6.4 Preliminary Agreements That Bind the Parties to Negotiate in Good Faith
§10.7 Misunderstanding: Total Ambiguity
§10.8 A Transnational Perspective on Interpretation
Chapter 11 The Statute of Frauds
§11.1 Introduction
§11.2 The First Inquiry: Is the Contract of a Type That Falls Within the Statute?
§11.2.1 Contracts for the Sale of Land or an Interest in Land
§11.2.2 Contracts That Cannot Be Performed Within a Year
§11.2.3 Contracts for the Sale of Goods
§11.2.4 Contracts to Answer for the Debt or Obligation of Another
§11.2.5 Contracts of Executors or Administrators to Answer for the Duty of Their Decedents
§11.2.6 Contracts upon Consideration of Marriage
§11.3 The Second Inquiry: If the Statute Applies, Is the Contract Reflected in a Writing That Satisfies Its Requirements?
§11.3.1 A Written (Recorded) Memorandum
§11.3.2 The Content of the Memorandum
§11.3.3 Signature
§11.4 The Third Inquiry: If the Statute Applies and Is Not Complied with, Does the Oral Contract Fall Within Any of Its Exceptions?
§11.4.1 The Part Performance Exception
§11.4.2 The Judicial Admission Exception
§11.4.3 The Protection of Reliance: Estoppel and Promissory Estoppel
§11.5 The Impact of Noncompliance with the Statute
§11.6 The Effect of the Statute of Frauds on Modifications of a Contract
§11.7 A Transnational Perspective on the Statute of Frauds
Chapter 12 The Parol Evidence Rule
§12.1 The Application and Basic Purpose of the Parol Evidence Rule
§12.1.1 A Written or Recorded Agreement
§12.1.2 The Relationship Between the Parol Evidence Rule and Interpretation
§12.2 A Basic Statement of the Rationale and Content of the Rule
§12.3 What Is Parol Evidence?
§12.3.1 The Meaning of “Parol”
§12.3.2 Terms Allegedly Agreed to Prior to the Written Contract
§12.3.3 Terms Allegedly Agreed to Contemporaneously with the Written Contract
§12.3.4 Evidence of Subsequent Agreement
§12.3.5 Summary of the Scope of the Parol Evidence Rule
§12.4 A Closer Look at the Purpose and Premise of the Parol Evidence Rule
§12.5 The Degree of Finality of the Writing: Total and Partial Integration
§12.6 The Process of Dealing with Parol Evidence
§12.7 Determining the Question of Integration
§12.8 Ambiguity or Indefiniteness in an Integrated Writing
§12.9 Distinguishing Consistency from Contradiction
§12.10 The Effect of the Rule on Evidence of Course of Performance, Course of Dealing, and Trade Usage
§12.11 The Collateral Agreement Rule
§12.12 Exceptions to the Parol Evidence Rule: Evidence to Establish Grounds for Avoidance or Invalidity or to Show a Condition Precedent
§12.12.1 The Exception Relating to the Validity or Voidability of the Contract
§12.12.2 The False Recital Exception
§12.12.3 The Condition Precedent Exception
§12.13 Restrictions on Oral Modification
§12.14 A Transnational Perspective on the Parol Evidence Rule
Chapter 13 The Judicial Regulation of Improper Bargaining and of Violations of Law and Public Policy
§13.1 Introduction
§13.2 The Objective Test and the Viability of Apparent Assent
§13.3 General Note on Remedy: Avoidance and Restitution, Adjustment of the Contract, or Damages
§13.4 The Nature and Relationship of the Doctrines Regulating Bargaining
§13.5 Misrepresentation Generally: The Meaning of “Misrepresentation” and the Distinction Between Fraudulent and Nonfraudulent Misrepresentations
§13.5.1 The Distinction Between Fraudulent, Negligent, and Innocent Misrepresentations
§13.5.2 The Application of the Parol Evidence Rule to Misrepresentations Made Outside a Written Contract
§13.6 Fraudulent Misrepresentation
§13.6.1 Introduction
§13.6.2 Fact, Opinion, Prediction, and Promise
§13.6.3 Types of Fraudulent Misrepresentation: Affirmative Statements, Concealment, and Nondisclosure
§13.6.4 Knowledge of Falsity and Intent to Induce the Contract
§13.6.5 Materiality
§13.6.6 Justifiable Inducement
§13.6.7 Injury and Remedy
§13.7 Negligent or Innocent Misrepresentation
§13.8 Duress
§13.8.1 The Nature of Duress
§13.8.2 The Threat
§13.8.3 Impropriety
§13.8.4 Inducement
§13.8.5 Remedy
§13.9 Duress in the Modification of an Existing Contract
§13.9.1 Consideration Doctrine
§13.9.2 Common Law Duress Doctrine in Relation to Modifications
§13.9.3 Modification Under UCC Article 2
§13.9.4 The Enforcement of Modifications Despite an Absence of Consideration
§13.10 Undue Influence
§13.11 Unconscionability
§13.11.1 The Role of Unconscionability
§13.11.2 The Nature and Origins of Unconscionability
§13.11.3 The Elements of Unconscionability
§13.11.4 Procedural Unconscionability
§13.11.5 Substantive Unconscionability
§13.11.6 The Remedy for Unconscionability
§13.11.7 A Final Note on the Temptation to Overuse Unconscionability Doctrine
§13.12 Unconscionability and Adhesion in Standard Contracts
§13.12.1 The Role of Adhesion in Unconscionability Analysis
§13.12.2 Terms Made Available Only After the Contract Has Been Entered
§13.12.3 Adhesion and Unconscionability in Relation to Arbitration Provisions
§13.13 Policing Contracts for Illegality or Contravention of Public Policy
§13.13.1 Illegality, Public Policy, and Freedom of Contract
§13.13.2 Illegal Contracts
§13.13.3 Contracts Contrary to Public Policy
§13.14 A Transnational Perspective on Policing Doctrines
Chapter 14 Incapacity
§14.1 The Scope and Focus of the Doctrines Discussed in This Chapter
§14.2 Minority
§14.2.1 The Basis and Nature of a Minor’s Contractual Incapacity
§14.2.2 Situations in Which a Minor May Incur Legal Liability
§14.2.3 Restitution or Other Relief Following Disaffirmation
§14.2.4 Minors’ Internet Contracts
§14.3 Mental Incapacity
§14.3.1 The Basis and Nature of Avoidance Due to Mental Incapacity
§14.3.2 The Test for Mental Incapacity: Cognitive and Motivational Disorders
§14.3.3 Proving Mental Incapacity
§14.3.4 Distinguishing Actionable Mental Incapacity from Nonactionable Incompetence or Infirmity
§14.3.5 Avoidance and Its Consequences
§14.3.6 Incapacity Induced by Alcohol or Drug Abuse
Chapter 15 Mistake, Impracticability, and Frustration of Purpose
§15.1 The Common Themes and the Differences Between Mistake, Impracticability, and Frustration of Purpose
§15.2 The Meaning of Mistake and the Distinction Between Mutual and Unilateral Mistake
§15.2.1 The Legal Meaning of Mistake: An Error of Fact
§15.2.2 Mutual and Unilateral Mistake
§15.3 The Elements of Mutual Mistake
§15.4 The Elements of Unilateral Mistake
§15.5 Relief for Mistake
§15.5.1 Avoidance and Restitution
§15.5.2 Other Relief, Including Reformation
§15.6 Mistake in Transcription
§15.6.1 Reformation to Correct Mistakes in Transcription
§15.6.2 Reformation to Rectify the Unintended Legal Effect of Language
§15.7 Impracticability of Performance
§15.7.1 The Nature of Impracticability Doctrine, Contrasted with Mistake
§15.7.2 The Early Form of the Doctrine: Impossibility of Performance
§15.7.3 The Contemporary Doctrine of Impracticability of Performance
§15.7.4 Relief for Impracticability
§15.8 Frustration of Purpose
§15.9 A Transnational Perspective on Mistake, Impracticability, and Frustration
Chapter 16 Conditions and Promises
§16.1 The Structure of a Contract: An Introduction to Promises and Conditions
§16.2 The Meaning and Scope of “Uncertain Event”
§16.3 The Intent to Create a Condition: Express, Implied, and Construed Conditions
§16.3.1 Express Conditions
§16.3.2 Conditions Implied in Fact
§16.3.3 Construed Conditions (Constructive Conditions of Exchange)
§16.4 A Condition of One Party’s Performance, as Distinct from a Condition of the Contract as a Whole
§16.5 Pure Conditions and Promissory Conditions
§16.5.1 The Distinction Between Pure and Promissory Conditions
§16.5.2 A Pure Condition Subject to an Ancillary Promise
§16.6 The Time Sequence: Conditions Precedent and Concurrent Conditions
§16.7 The Confusing Distinction Between Conditions Precedent and Subsequent
§16.8 The Purpose of Using Conditions in a Contract
§16.8.1 The Use of a Condition as a Complete or Partial “Escape Clause”
§16.8.2 Conditions of Satisfaction: The Use of a Condition to Permit the Exercise of Judgment by One of the Parties or a Third Party
§16.8.3 The Use of a Condition to Provide for Alternative Performances
§16.8.4 The Use of a Condition to Regulate the Sequence of Performance
§16.9 The Doctrine of Substantial Compliance in Construed Promissory Conditions
§16.10 The Excuse of Conditions: Wrongful Prevention, Waiver or Estoppel, and Forfeiture
§16.10.1 The Party Favored by the Condition Wrongfully Prevents or Hinders Its Fulfillment
§16.10.2 Estoppel or Waiver
§16.10.3 Unfair Forfeiture
§16.11 A Transnational Perspective on Conditions and Promises
Chapter 17 Breach and Repudiation
§17.1 The Scope of This Chapter: Nonfulfillment of a Promise
§17.2 The Nature of Breach
§17.3 The Significance of a Breach: Material Breach or Substantial Performance, and Total or Partial Breach
§17.3.1 Introduction to the Distinction
§17.3.2 What Makes a Breach Material?
§17.3.3 Substantial Performance
§17.3.4 Relief for Substantial Performance and Adjustment to Avoid Unfair Forfeiture
§17.3.5 Partial Breach and Cure
§17.4 A Summary of the Relationship Between the Materiality of Breach and the Nonfulfillment of a Condition
§17.5 Substantial Performance Under UCC Article 2: Perfect Tender and Cure
§17.5.1 Perfect Tender
§17.5.2 Cure Under UCC Article 2
§17.6 The Breaching Party’s Recovery Following Material Breach and the Concept of Divisibility
§17.6.1 The Forfeiture of Contractual Rights by a Party Who Breaches Materially
§17.6.2 Restitution in Favor of a Party Who Has Breached Materially
§17.6.3 The Enforcement Rights of a Material Breacher When the Contract Is Divisible
§17.7 Anticipatory Repudiation
§17.7.1 The Distinction Between Breach and Repudiation
§17.7.2 The Purpose and Value of the Doctrine of Anticipatory Repudiation
§17.7.3 The Elements of Repudiation
§17.7.4 The Response to a Repudiation
§17.7.5 Prospective Nonperformance and Assurance of Performance
§17.7.6 Transactions Involving Installments
§17.8 A Transnational Perspective on Breach and Repudiation
Chapter 18 Remedies for Breach of Contract
§18.1 The Scope of This Chapter
§18.2 The Basic Goal of Remedies for Breach: Enforcement of the Expectation Interest
§18.2.1 The Nature of the Expectation Interest
§18.2.2 An Introduction to the Means of Enforcement: The Primacy of Monetary Compensation over Specific Relief
§18.2.3 Fundamental Principles of Expectation Relief
§18.2.4 The Enforcement of a Damage Award
§18.3 The Calculation of Expectation Damages
§18.4 An Overview of Expectation Damages Under UCC Article 2
§18.4.1 The Basic Principles
§18.4.2 The Seller’s Remedies
§18.4.3 The Buyer’s Remedies
§18.5 The Distinction Between Direct and Consequential Damages
§18.6 Limitations on Expectation Recovery
§18.6.1 The Nature and Goals of the Limitations
§18.6.2 Foreseeability
§18.6.3 Mitigation
§18.6.4 Causation
§18.6.5 Reasonable Certainty
§18.6.6 Unfair Forfeiture
§18.7 Reliance and Restitution as Alternatives to Expectation
§18.8 Reliance Damages
§18.8.1 The Distinction Between Essential and Incidental Reliance
§18.8.2 Essential Reliance Damages
§18.8.3 Incidental Reliance Damages
§18.9 Restitutionary Damages
§18.10 Equitable Remedies: Specific Performance and Injunctions
§18.10.1 Specific Performance
§18.10.2 Injunctions
§18.11 Liquidated (Agreed) Damages
§18.11.1 The Test for Enforcing a Liquidated Damages Provision
§18.11.2 The Evaluation of the Parties’ Forecast of Harm
§18.11.3 Damage Limitation Provisions
§18.12 Incidental Damages, Attorney’s Fees, and Interest
§18.12.1 Interest
§18.12.2 Incidental Damages
§18.12.3 Attorney’s Fees
§18.13 Noneconomic and Punitive Damages
§18.13.1 Mental Distress and Other Noneconomic Loss
§18.13.2 Punitive Damages
§18.14 A Transnational Perspective on Remedies
Chapter 19 Assignment, Delegation, and Third-Party Beneficiaries
§19.1 Introduction
§19.2 Third-Party Beneficiaries
§19.2.1 The Distinction Between Intended and Incidental Beneficiaries
§19.2.2 The Essence of Intended Beneficiary Status: The Right of Independent Enforcement
§19.2.3 The Intent to Confer an Independent Right of Enforcement
§19.2.4 The Relevance of the Relationship Between the Promisee and the Beneficiary: Creditor and Donee Beneficiaries
§19.2.5 Vesting of the Benefit and the Parties’ Power to Modify or Terminate It
§19.2.6 The Promisee’s Parallel Rights of Enforcement Against the Promisor
§19.2.7 The Promisor’s Ability to Raise Defenses Against the Beneficiary
§19.2.8 The Beneficiary’s Rights Against the Promisee in the Event of the Promisor’s Nonperformance
§19.2.9 Citizens’ Claims as Intended Beneficiaries of Government Contracts
§19.2.10 A Nonclient’s Claim as an Intended Beneficiary of an Attorney-Client Contract
§19.3 Assignment and Delegation
§19.3.1 The Basic Concept and Terminology
§19.3.2 The Nature of an Assignment
§19.3.3 Restrictions on Assignment
§19.3.4 The Effect of Assignment
§19.3.5 Defenses Against the Assignee
§19.3.6 Delegation
§19.3.7 “Assignment” of the Contract: The Assignment of Rights and Delegation of Duties
§19.3.8 Grounds for Insecurity Following Assignment or Delegation
§19.4 A Transnational Perspective on Third-Party Beneficiaries, Assignment, and Delegation
Glossary
Table of Cases
Table of Statutes
Index
