Contracts
Professor Helen Scott
Spring 1999

•	Is corporation involved?  If yes -
Agency: did agent have actual or apparent authority - always do first
•	Cashed the check? - powerful evidence of acceptance
•	Intrafamily dispute? - maybe not likely to be enforced
•	Between 2 commercial parties?  Or one commercial/seller, the other isn’t/buyer?
•	Goods (UCC) or Services (Rest)?
UCC 2-104  Merchant: person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to such practices or goods
UCC 2-105  Goods: all things which are movable at the time of K for sale (not money, securities, shares of stock, not services)
•	Employment relationship? - usu. not fiduciary, but can be (supervisor, friend)
•	Expert - special knowledge - termite inspector
•	Buyer/seller - adverse relationship
•	Courts don’t like forfeiture - equitable considerations
•	Close to bankruptcy?
•	One-time deal?
•	Long-term supply agreement? - risk of market shifts is contemplated
•	Event like Arab oil embargo? (Nanakuli v. Shell)
•	Equity: court might say it’s unfair
•	No mutuality of obligation? (Wood v. Lucy)
•	Is the business rare (like gas pipelines in IMC v. Llano)?  Is supply rare?  Can easily find substitute arrangements/alternatives?
•	Requirements/output K? (Eastern v. Gulf)
•	Take or pay K? (IMC v. Llano)
•	Is there a Release?  If yes, void it first to then void K (Totem v. Alyeska)

What are the client’s goals?  What are the preferred outcomes?
•	best case scenario; worst case scenario
•	as a legal matter v. as a practical matter - which claim is better
•	is settlement possible
•	what’s the objective - to retain friendship?

We need to see the K to see of the client has defenses under the K

Parol Evidence Rule
	can be oral or written
•	Common law position: if K is completely integrated, no oral evidence is admissible (Thompson v. Libby)
•	4 exceptions:
1. 	fraud
2. 	a writing that is incomplete on its face
3. 	parol evidence to explain the K, if not completely integrated
4. 	collateral on the subject matter
•	Rest 214  Exceptions: can admit evidence to establish	catch-all clause
(a) 	that the writing is or is not an integrated agreement
(b) 	that the integrated agr’nt, if any, is completely or partially integrated
(c) 	the meaning of the writing, whether or not integrated
(d) 	illegality, fraud, duress, mistake, lack of consideration, or other invalidating cause
(e) 	ground for granting or denying rescission, reformation, specific performance or other remedy
•	Extrinsic evidence not allowed: public interest in certainty and finality (Hershon v. Gibraltar - majority)
•	Purpose of PER is to further the intent of the parties (Hershon v. Gibraltar - dissent)
•	Argue that agr’nt is partially integrated, then admit evidence to add/supplement it
•	If merger/zipper clause - argue exceptions to PER + courts hate boilerplate clauses
•	Need PER for Substantive Unconscionability (because interpret the language of K - if K is one-sided) - See UCC 2-302(2)
•	Need PER for Mistake; maybe mistake pre-dates K (but see 214(d))
•	Nanakuli v. Shell: court allowed evidence of course of performance, course of dealing and usage of trade to come it to determine if K term was ambiguous; and then used the same evidence to interpret the term (and found that price protection was in K)
•	Under UCC, courts are encouraged to take trade practice to interpret the meaning of K

UCC 2-202:  Terms in a writing intended by the parties as final expression of their agreement may not be contradicted by extrinsic evidence, but may be supplemented
(a) 	by course of dealing (1-205(1) or usage of trade (1-205(2)) or
by course of performance (2-208); and
(b) 	by evidence of consistent additional terms unless the court finds completely integrated agreement.

K clauses

Force Majeur clause
•	expressly provides excuse from performance; where it exists, you don’t have to prove impracticability
•	but: general aversion to boilerplate clauses and the fear that enforcement would lead to inequitable results (Shore Builders)
•	was it reviewed, negotiated
•	was notice required under this clause; was it given
•	is the person still able to perform and not go bankrupt
•	was the event more like market shift or earthquake
•	can be specific circumstances (IMC v. Llano)
•	The impracticability of one alternative does not excuse promisor if performance by means of the other alternative is still practicable: take or pay K - can’t take, but can pay - force majeur clause is not applicable; + didn’t give adequate notice (IMC v. Llano)

“As is” clause? (Lenawee v. Messerly): has to say smth about the product, state of goods
Merger/zipper clause? - to apply PER
Acceleration clause?
Add-on clause? (Williams) - unconscionability
Express Conditions

•	Express conditions precedent - if not met, the K is terminated; the other party has no obligation to perform
•	Show that the client met the condition, and
•	Ask the court not to give strict interpretation to the condition
•	If express condition is not met, obligation to perform can be suspended, unless it was waived by the party who is benefited from it
•	Was the condition waived by the party who is benefited from it?
•	Common law view: express conditions are strictly enforced; court enforced literal terms of K (Inman v. Clyde)
•	Can interpret condition as a promise to say that the other party is not relieved: Promise (if some breach, but not total breach - damages for breached promise, but still perform/pay for non-breached promise) or condition precedent (if condition fails, the other party has no obligation at all)?  Where doubt, interpret as promise (Jones Associates)
•	Disproportionate forfeiture to one party if condition is enforced is balanced by harm suffered by the other party if condition is not enforced; here, tenant was negligent, court didn’t literally enforced the condition (J.N.A. Realty)
Rest 227(1)
(1) In resolving doubts as to whether an event is made a condition of an obligor’s duty, and as to the nature of such an event, an interpretation is preferred
that will reduce the obligee’s risk of forfeiture, unless
the event is within the obligee’s control or
the circumstances indicate that he has assumed the risk.
Show that
	1) it was not within the client’s control
	2) it would be a forfeiture if we enforce condition strictly (material to the client, not material to the other party
	3) whether or not she assumed the risk

Or Rest 229  Excuse of a Condition to Avoid Forfeiture (conditions are to be strictly enforced, but also there are excuses of a condition)
To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange.
1) 	disproportionate forfeiture: significance to the other party is minimal compared to consequences to the client
2) 	materiality: how important is strict adherence to condition to the parties

Rest 228  Satisfaction of the Obligor as a Condition
When it is a condition of an obligor’s duty that he be satisfied w/r/t the obligee’s performance or w/r/t smth else, and it is practicable to determine whether a reasonable person I the position of the obligor would be satisfied, and interpretation is preferred under which the condition occurs if such a reasonable person would be satisfied.

Implied terms - still do materiality factors under 241, 242, except for good faith (material)

Implied in fact reciprocal obligation to use reasonable efforts (to get product placement): to find mutual obligation and bind D; business efficacy; “we are not to suppose that one party was to be placed at the mercy of the other; furthering intention of the parties(Wood v. Lucy, Lady Duff-Gordon)
UCC 2-306(2)  In Output, Req’nts and Exclusive Dealings, unless otherwise agreed, imposes an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale.

Reasonable notice
Reasonable notification requirement to terminate K- implied in law; should be enough time to find substitute arrangement (Leibel v. Raynor)
UCC 2-309(3)  Reasonable notification requirement
Termination of a K by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agr’nt dispensing with notification is invalid if its operation would be unconscionable.
Comment 8 to 2-309: you must give the other party some time to minimize its loss from termination at will, to find another deal
Comment 9 to 2-309: if it’s material breach by the other party, you don’t have to give notice, you are relieved from any legal obligations
Reasonable notice is required before the bank can refuse to extend funds (KMC v. Irving Trust): absent valid business reason, termination w/o notice is bad faith + objective test of reasonableness

Implied obligation of good faith
	breach of good faith = material, but rare + can be cured (can be rescission, can be damages)
Rest 205 Every K imposes upon each party Duty of Good Faith and Fair Dealing
UCC 1-203 Every K or duty imposes Obligation of Good Faith
UCC 1-201(19) Good Faith means honesty in fact in the conduct or transaction concerned
UCC 2-103(b) For Merchant good faith means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade
Eastern v. Gulf:  To establish whether one party breached its obligation of good faith (fuel freighting), the court looks at
course of performance (2-208) (the best evidence is what parties actually did under this very K) prevails over
course of dealing (1-205(1)) (what happened between these parties in other transactions, in past Ks) prevails over
usage of trade (1-205(2)) (such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed w/r/t the transaction in q’n))
UCC 2-306(1) A term which measures the quantity by the output of seller or the req’nts of buyer means such actual output or req’nts as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate or in the absence of a stated estimate to any normal or otherwise comparable prior output or req’nts may be tendered or demanded.
Comment 2: reasonable elasticity of req’nts; good faith variations are permitted, even when may result in discontinuance; sudden expansion of the plant by which req’nts are to be measured would not be included in the scope of the K, unless normal expansion in good faith
Comment 5: implied obligation to use reasonable diligence as well as good faith

Damages: benefit of the bargain; (may get rescission, but it occurs in the perf’ce of K)

Implied warranties
2-313  Express warranties
(1)(a) Any affirmation of fact or promise made by seller to buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(1)(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(1)(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” and “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.
2-314  Implied Warranty of Merchandability
2-315  Implied Warranty of Fitness for a Particular Purpose
2-316  sellers can disclaim implied warranties, but courts are divided
“as is” clauses: “Purchaser has examined this property and agrees to accept same in its present condition.  There are no other additional written or oral understandings” (Lenawee v. Messerly: risk allocated to buyer despite mutual mistake)
	same as merger clause, disclaimer

Implied Warranty of Habitability w/r/t every buyer against every builder-vendor, no matter large or small (McDonald v. Mianecki): potability of water supply is included in the imp warr of workmanship and habitability; builder will be liable even w/o fault; like insurance; just allocates risk to builder-vendor; for buyer it’s a one in a lifetime transaction

Cannot be breach of warranty on the part of blood supplier - blood shield statutes (Doe v. Travenol Laboratories); warranty is s/l claim; market of blood suppliers is limited; we can’t let them go out of business - Public Policy

Almost always get damages; replacement of the goods - difference in quality of the goods

Material Breach: say that your client’s obligation under K was discharged by total breach by the other party (Sackett v. Spindler); or argue that it was partial breach, not total breach by your client, and so the other party still has to perform
	you are not entitled to terminate K unless it’s uncured material breach

Rest 241  When breach is material
In determining whether a failure to render or to offer performance is material, the following cir’ces are significant:
(a) 	the extent to which the injured party will be deprived of the benefit which he reasonably expected
(b) 	the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived (if can be compensated - ag. materiality)
Sackett v. Spindler: if you know you’ll get interest, then delay is not material
(c) 	the extent to which the party failing to perform or offer to perform will suffer forfeiture
(d) 	the likelihood that the party failing to peform or to offer to perform will cure his failure, taking account of all the cir’ces including any reasonable assurances
(e) 	the extent to which the behavior of the party failing to perform or offer to perform comports with standards of good faith and fair dealing

Rest 242  When breach is uncured - when breach is material for sufficiently long time: how long you reasonably should give the other party before you can make substitute arrangements
•	look at reasonable period of time in transactions of the same sort (trade practice)
•	court will look at how you attempted to get cure: contact the other party
•	Sackett v. Spindler: can be long time before breach will be uncured
Cir’ces significant in determining when remaining duties are discharged:
(a) 	factors stated in Rest 241
(b) 	the extent to which it reasonably appears to the injured party that delay may prevent or hinder him in making reasonable substitute arrangements
does the breach affect the party’s finding a substitute arrangement; whether delay created an additional hardship on the party
(c) 	the extent to which the agr’nt provides for performance without delay, but a material failure to perform or to offer to perform on a stated day does not of itself discharge the other party’s remaining duties unless the circumstances including the language of the agr’nt, indicate that performance or an offer to perform by that day is important
the degree of importance that the terms of the agreement attach to performance w/o delay

Total breach: material and uncured; Spindler was justified in terminating K and treating Sackett’ nonperformance as breach (Sackett v. Spindler).  Damages awarded to Spindler: K price minus market value of the goods.

Substantial Performance: the other party will argue as a defense

Whether breach is material or non-material; same factors under Rest 241

Measure of damages: not the replacement costs, but the difference in value with the Reading pipe in it and the other pipe in it; different view of what the bargain was: owner wanted the pipe of Reading quality (Jacob v. Kent)
Cardozo: Considerations of partly of justice and partly of presumable intention
Justice
1. equity doesn’t like forfeiture
	not every loss is forfeiture; only dramatic, disproportionate loss from perceived harm
	punitive aspect
	relative harms and benefits for 2 parties
2. party seeking relief has to have clean hands
	when fault can be found on the part of the party seeking relief, can’t invoke equity
	to invoke equity, party has to be either wholly innocent or mere negligent
here, the omission of the prescribed brand of pipe was neither fraudulent nor willful; was the result of the oversight and inattention of the P’s subcontractor
	mens rea: intentional (the worst); willful; reckless; negligent (mere negligence - little mistakes)
Presumable intention of the parties to K: what the court thinks the bargain really was between the parties

Defenses to K: try to void the K

Minority
•	can be used offensively (to rescind an otherwise valid K) or defensively (to non-performance of an otherwise valid K)
•	Rest 14  Voidable K-gual duties until 18th birthday - irrebutable presumption
•	New rule: reasonable compensation to seller for the use of the thing purchased by the minor (Dodson v. Shrader)

Mental Incapacity
•	can be used offensively or defensively
•	Once mental incapacity is found - K is voidable, subject to rescission
•	The burden is on the party claiming incompetence
Rest 15(1) A person incurs only voidable K-tual duties by entering into a transaction if by reason of mental illness or defect
Rest 15(1)(a) Cognitive test (very restrictive) + Estate of McGovern
he is unable to understand in a reasonable manner the nature and consequences of the transaction, or
Rest 15(1)(b) Volitional test
he is unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his condition
Rest 15 (2) Where the K is made on fair terms and the other party is w/o knowledge of the mental illness or defect, the power of avoidance under (1) terminates to the extent that the K has been so performed in whole or in part or the cir’ces have so changed that avoidance would be unjust.  In such a case a court may grant relief as justice requires.

Duress
can be used offensively or defensively

Rest 175(1) When Duress by Threat Makes a K Voidable
improper/wrongful threat + no reasonable alternative
If a party’s manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the K is voidable by the victim.
Rest 176 When a threat is improper
(1) 	A threat is improper if
(a) 	what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property
(b) 	what is threatened is a criminal prosecution
(c) 	what is threatened is the use of civil process and the threat is made in bad faith, or
(d) 	the threat is a breach of the duty of good faith and fair dealing under a K with the recipient (often threat of breach of K)
(2) 	A threat is improper if the resulting exchange is not on fair terms, and
(a) 	the threatened act would harm the recipient and would not significantly benefit the party making the threat
(b) 	the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or
(c)  what is threatened is otherwise a use of power for illegitimate ends

Totem v. Alyeska: economic duress; void the Release first, then assert claims under original K
Elements (Totem v. Alyeska + Rest 175): to void the Release, the P has to show
1. 	proof of wrongful behavior by D (improper threat): D by wrongful acts or threats intentionally caused him to involuntarily enter into transaction
2. 	absence of reasonable alternative by P: P had no reasonable alternative to agreeing to D’s terms, or he had no adequate remedy if the threat were to be carried out - the victim must have no choice but to agree to the other party’s terms or face serious financial hardship; Totem has to show that it had only 2 alternatives: either accepting this unfair settlement or bankruptcy

Undue Influence

Rest 177
(1) 	Undue influence is unfair persuasion of a party who is under the domination of the person exercising the persuasion or who by virtue of the relation between them is justified in assuming that that person will not act in a manner inconsistent with his welfare
•	was P justified in assuming that Ds won’t act in a manner inconsistent with is welfare
•	was their persuasion excessive or unfair
•	Bad faith is not an issue here
(2) 	If a party’s manifestation of assent is induced by undue influence by the other party, the K is voidable by the victim
To prove undue influence, the victimized party must show:
1. 	undue susceptibility to pressure
•	if there is fiduciary relationship - can be used instead of undue susceptibility
2. 	excessive pressure was applied by the dominant party (coercive behavior)

Elements of overpersuasion, coercive situation (Odorizzi)
1. 	discussion of the transaction at an unusual or inappropriate time
2. 	consummation of the transaction in an unusual place
3. 	insistent demand that the business be finished at once
4. 	extreme emphasis on untoward consequences of delay
5. 	the use of multiple persuaders by the dominant side against a single servient party
6. 	absence of third-party advisers to the servient party
7. 	statements that there is no time to consult financial advisers or attorneys

Fraud
•	Scienter (prior knowledge or intention) by the party who uses fraud
•	Inducement: use of fraud to make party to enter into K
•	Reliance by victim on misrepresentation
•	Harm is proximately related to misrepresentation (tie injury to fraud)
Constructive Fraud: doesn’t depend on scienter; fiduciary relationship replaces many elements that P has to prove; we assume reliance

Misrepresentation  164(1), 162, can be 169

Rest 164(1)  When a misrepresentation makes a K voidable
If a party’s manifestation of assent is induced by either fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the K is voidable by the recipient

Rest 162  Was misrepresentation fraudulent or material

Fraudulent if - Rest 162(1)
1. Maker intends his assertion to induce assent AND
2. (a) knows or believes that the assertion is not in accord with the facts, or
    (b) does not have the confidence that he states or implies in the truth of the assertion, or
    (c) knows that he does not have the basis that he states or implies for the assertion

Material if - Rest 162(2)
1. 	likely to induce a reasonable person to manifest his assent (objective), or
2. 	the maker knows that it would be likely to induce the recipient to do so (subjective)

Did misrepresentation induce the victim’s assent
Inducement (objective) - causation-based concept
•	misrepresentation was causally related with the injury - reasonable person would be induced; reasonable person would act as you did

If there was fraudulent or material misrepresentation,
Was the victim justified in relying on misrepresentation
Reliance (subjective)
•	misrepresentation did in fact cause her injury (she in fact relied and was justified to do so); particular person did it
•	if you’re in special relationship under Rest 169, the court will say that you were justified in relying

Syester v. Banta: P has to show (1) that there was fraudulent or material misrepresentation in connection with the release, and, if so, (2) that she was justified in relying on it; defense of puffing

Opinions  168(1), 169, 168(2), 164(1), 162

Rest 168(1) Opinion is an assertion that 
a) 	is a belief, without certainty, as to the existence of a fact, or
b)  a judgment as to quality, value, authenticity, or similar matters
Mere opinions are not actionable (defense of puffing), unless
Rest 169 Reliance on opinion is justified if the recipient
a) 	stands in such a relation of trust and confidence to the person whose opinion is asserted that the recipient is reasonable in relying on it (fiduciary), or
b) 	reasonably believes that, as compared with himself, the person whose opinion is asserted has special skill, judgment or objectivity with respect to the subject matter (expert), or
c) 	is for some other special reason particularly susceptible to a misrepresentation of the type involved

If no Rest 169, then Rest 168(2) - very difficult to prove
If it is reasonable to do so, the recipient of an assertion of a person’s opinion as to facts not disclosed and not otherwise known to the recipient may properly interpret it as an assertion
(a) 	that the facts known to that person are not incompatible with his opinion, or
(b) 	that he knows facts sufficient to justify him in forming it.

If opinion fits under 168(2) or 168
go to 164(1) and 162 to void K

Nondisclosure  161, 164(1), 162, can be 169

Rest 161  Non-disclosure is equivalent to an assertion that the fact does not exist in the following cases only (duty to disclose in the following cases only)
(a) 	where he knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation or from being fraudulent or material (duty to correct)
(b) 	where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the K and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing (very high standard, same proof as for other elements)
(c) 	where he knows that disclosure of the fact would correct a mistake of the other party as to the contents or effect of a writing, evidencing or embodying an agreement in whole or in part
(d) 	where the other person is entitled to know the fact because of a relation of trust and confidence between them

If found an assertion,
go to 164(1) and 162 to void K, and maybe 169 for reliance

Hill v. Jones: termite case - “where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer”
but: buyer has duty to ask, to investigate

Unconscionability	AT THE TIME THE K WAS MADE

Rest 208, UCC 2-302 (1)  If a K or term thereof is unconscionable at the time the K is made a court may refuse to enforce the K, or may enforce the remainder of the K w/o the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.
UCC 2-302(2)  When it is claimed or appears to the court that the K or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination - Parol Evidence Rule
Comment 1
•	The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the K.
•	The principle is one of the prevention of oppression and unfair surprise and not of disturbance of allocation of risks because of superior bargaining power.
	Distinguish between superior bargaining power and oppressive behavior (disparities in bargaining power are not enough, has to be unfairness)
Comment 3
Unconcsionability - legal issue, to be decided by the court.

2 elements (Williams v. Walker-Thomas)
1. 	Procedural: absence of meaningful choice on the part of one party; defects in the bargaining process - unfair, one-sided (can show duress, undue influence)
2. 	Substantive: K terms which are unreasonably favorable to the other party; oppressive nature of the terms of K (clauses such as “as is”, merger, take or pay K, adhesion K); use PAROL EVIDENCE RULE to admit such evidence

Excessive price - unconscionable (Ahern v. Knecht)

Avoiding Ks as against Public Policy

Rest 178  When a Term is Unenforceable on Grounds of Public Policy
(1) 	A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.
(2) 	In weighing the interest in the enforcement of the term, account is taken of 
(a) 	the parties’ justified expectations,
(b) 	any forfeiture that would result if enforcement were denied, and
(c) 	any special public interest in the enforcement of the particular term.
(3) 	In weighing a public policy against enforcement of a term, account is taken of
(a) 	the strength of that policy as manifested by legislation or judicial decisions,
(b) 	the likelihood that a refusal to enforce the term will further that policy,
(c) 	the seriousness of any misconduct involved and the extent to which it was deliberate, and
(d) 	the directness of the connection between that misconduct and the term.

Rest 181  Effect of Failure to Comply with Licensing or Similar Requirement
If a party is prohibited from doing an act because of his failure to comply with a licensing, registration or similar requirement, a promise in consideration of his doing that act or of his promise to do so it is unenforceable on grounds of public policy if
(a) 	the requirement has a regulatory purpose, and
(b) 	the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement.

Derico v. Duncan: violation of regulatory statute makes K void (purpose of the statute is to benefit the public)
If violation of Revenue raising statute - K is not void

Covenants not to compete
per se rule for lawyers - injurious to the public and so unreasonable per se, but no per se rule for doctors - enforceable to the extent that it is reasonable (Karlin v. Weinberg)

Restraints on Alienation
Rest 187 Non-Ancillary Restraints on Competition: allows restraint of trade only where the restraint is ancillary to an otherwise valid transaction
Rest 188 Ancillary Restraints on Competition:
188(1) balances validity of ancillary restraints against promisee’s and public’s interests
A promise to refrain from competition that imposes a restraint that is ancillary to an otherwise valid transaction or relationship is unreasonably in restraint of trade if
(a) 	the restraint is greater than is needed to protect the promisee’s legitimate interest, or
(b) 	the promisee’s need is outweighed by the hardship to the promisor and the likely injury to the public
188(2) gives examples of ancillary restraints
(a) 	a promise by the seller of a business not to compete w/the buyer in such a way as to injure the value of the business sold
(b) 	a promise by an e’ee or other agent not to compete with his e’er or other principal
(c) 	a promise by a partner not to compete w/the partnership

Mistake	AT THE TIME THE K WAS MADE

Mutual mistake  152, 154
Rest 152 When mistake of both parties makes a K voidable
a) 	mistake of both parties at the time K was made
b) 	as to a basic assumption on which the K was made
c) 	has a material effect on the agreed exchange of performances
	if find a, b, and c, then K is voidable UNLESS
	he bears the risk of the mistake under Rest 154

Rest 154 A party bears the risk of a mistake when
a) 	the risk is allocated to him by agreement of the parties (“as is” clause), or
b) 	he is aware, at the time the K is made, that he has only limited knowledge with respect to the facts on which the mistake relates but treats his limited knowledge as sufficient, or
c) 	the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so

Unilateral mistake  153, 154
Rest 153 When mistake of one party makes a K voidable
•	mistake of one party at the time a K was made
•	as to basic assumption on which he made the K
•	has a material effect on the agreed exchange of performances
•	that is adverse to him, AND
a) 	the effect of the mistake is such that enforcement of the K would be unconscionable (procedural + substantive un’ty), OR
b) 	the other party had reason to know of the mistake or his fault caused the mistake
Rest 154 if find all these factors, K is voidable by him IF he does not bear the risk of the mistake under Rest 154.

•	Use PAROL EVIDENCE RULE to admit evidence: maybe mistake pre-dates K
•	Basic assumption: factual, like sewage; not market shifts or that market won’t move (but see Rest 214(d)
•	Lenawee v. Messerly: mutual mistake that house was suited for habitation, was income producing rental property, but it had defective sewage system - at the time K was entered into; but “as is” clause allocates risk to buyer
•	but see Shore Builders - aversion to boilerplate clauses and fear that enforcement would lead to inequitable results
•	Wil-Fred’s: unilateral mistake; subcontractor made a mistake, court allowed general contractor to rescind his bid with the District; the Illinois test
1. 	mistake relates to material feature of K
2. 	it occurred notwithstanding the exercise of reasonable care (risk allocation factor)
3. 	it is of such grave consequences that enforcement of K would be unconscionable
4. 	the other party can be placed in status quo (risk allocation factor)

Changed Circumstances	after K was entered into
	If a party is discharged from performing for such reason, he’s not liable for breach

Rest 261 Impracticability
•	after a K was made
•	a party’s performance is made impracticable
•	without his fault
•	by the occurrence of an even
•	the non-occurrence of which was a basic assumption on which the K was made
•	then his duty to render that performance is discharged
•	UNLESS the language or the circumstances indicate the contrary
Considerations
a) 	Can damages rectify the breach
b) 	Is the “going out of business” voluntary or some act of nature
c) 	Can any form of performance still be given
d) 	Was the event foreseeable at the time K was made

Rest 262 Death or Incapacity of Person Necessary for Performance
Rest 263 Destruction, Deterioration or Failure to Come into Existence of Thing Necessary for Performance
Rest 264 Prevention by Governmental Regulation or Order
	after 262, 263, 264 go to 261

Rest 265 Frustration of Purpose
•	after K is made
•	a party’s principal purpose is substantially frustrated
•	without his fault
•	by the occurrence of an event
•	the non-occurrence of which was a basic assumption on which the K was made
•	his remaining duties to render performance are discharged
•	UNLESS the language or the circumstances indicate the contrary

UCC 2-615  Excuse by Failure of Presupposed Conditions
1.	Delay in delivery or non-delivery in whole or in party by a seller is not a breach of his duty under a K for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the K was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.
2.	Seller may allocate production and deliveries in any manner fair and reasonable
3.	Seller must notify buyer seasonably about impracticability
UCC 2-615  Comment 4
•	Increased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency which alters the essential nature of the performance.
•	Neither is a rise or a collapse in the market in itself a justification, for that is exactly the type of business risk which business Ks made at fixed prices are intended to cover.
•	But a severe shortage of raw materials or of supplies due to a contingency such as war, embargo, local crop failure, unforeseen shutdown of major sources of supply, which either causes a marked increase in cost or altogether prevents seller from securing supply necessary for his performance, is w/n contemplation of this section.
UCC 2-615  Comment 10
Governmental interference cannot excuse unless it truly “supervenes” in such a manner as to be beyond the seller’s assumption of risk.  And any action by the party claiming excuse which causes or colludes in inducing the governmental action preventing his performance would be in breach of good faith and would destroy his exemption.

•	W/o fault of either party, specific performance is impossible, and money damages won’t cure the problem - K should be voided (non-fungible, specific, unique goods) (Taylor v. Caldwell: music hall burned down)
•	Unless a party can show some extraordinary cause, market downturn does not render K impracticable and is not justification for lift of K (Karl Wendt v. Int’l Harvester); market shifts or financial inability are not basic assumptions; IH had other alternatives; has to be almost bankruptcy to lift K
•	If predictable and foreseeable, party should be held to K when it has expertise and knowledge to provide alternative arrangements (not like in Opera Co. v. Wolf Trap)
•	Environmental reg’n - basic assumption, held - impracticability: “through no fault of its own, a basic assumption of K changed”(IMC v. Llano); here - take or pay K - if can still pay, no impracticabity; + as long as you still solvent - no impracticability; is envir. reg’n more like an earthquake or market shift

Damages: K is terminated; equitable measure of damages

Modification: if can’t get K rescinded, try to modify it
	better to say that there is c’n for modification

Common law: modification needs additional c’n to be enforceable
Rest 73  Pre-existing duty rule (+Alaska Packers)
Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance is consideration, if it differs from what was required by the duty in a way which reflects more than a pretense of bargain.
•	If you owe someone legal duty, performance of that duty is not consideration; modification to existing K requires new consideration; but if you change smth - the number of people, time when to do it, etc. - make it consideration
•	Agreement to pay more money is not consideration:
	to prevent extortion, to prevent the other party to coerce

Rest 89  Exceptions to pre-existing duty rule
A promise modifying a duty under a K not fully performed on either side is binding
(a) 	if the modification is fair and equitable in view of circumstances not anticipated by the parties when the K was made; or	unanticipated difficulties exception
(b) 	to the extent provided by statute; or
(c) 	to the extent that justice requires enforcement in view of material change of position in reliance on the promise		detrimental reliance on the validity of modification

The determining factor is the rescission by consent; the time of rescission is unimportant; where an existing K is terminated by consent of both parties and a new one is executed in its place, the mutual promises are again a c’n (Schwartzereich)

UCC 2-209(1)
An agreement modifying a K within this Article needs no consideration to be binding

The Roth 2-part test

1. 	a party may in good faith seek a modification when unforeseen economic exigencies existed which would prompt an ordinary merchant to seek a modification in order to avoid a loss on the K (less than impracticability)
2. 	even where circumstances justify asking for a modification, it is bad faith conduct to attempt to coerce one by threatening a breach (wrongful threat of breach)
	inference of bad faith may be rebutted by a showing that the party threatening not to perform did honestly believe it had a legal defense to the duty of performance (burden shifts)
•	good faith is required: at least honesty in fact, and for merchants reasonable standards of fair dealing
•	threatening breach is bad faith
•	how unforeseen these exigencies have to be
•	does it have to be bankrupt (lost profits are not enough)

The secret intention never to pay the higher price is not keeping with good faith req’nt of the UCC of honesty in fact; you can’t promise to pay price increase and then back down because there is no c’n (bad faith + reliance by the party seeking price increase (Crane v. Progressive)

What are the client’s best claims?
What remedies can the client get?
•	Rescission: restore parties to the status quo, where they were if the K had not been performed; may take form of damages or exchange/re-exchange
•	Benefit of the bargain/expectation damages: put P in the position he would have been had the K been performed
•	Specific performance
•	If substantial performance - difference in value
What is my advice to the client?
negotiate, don’t start litigation - adversary
try to modify K
	try to find alternative source of supply
	try to get some security for the K (in the form of collateral, or letter of credit)
	maybe the client doesn’t want to make some claim, because it would make him look stupid: Ms. Syester would want to make undue influence claim, bec she’d have to testify that she was unduly susceptible