Contracts
Professor Helen Scott
Spring 1999

PAROL EVIDENCE RULE
Rest 210-217
UCC 2-202

•	Like S/F, evidentiary rule, rule of exclusion: cannot make K enforceable, but can make K unenforceable.
•	Rule that bars admission of evidence that otherwise would be admissible.
•	Rule limits the extent to which a party may establish that discussions or writings prior to the signed written K should be taken as part of the agr’nt.
•	Rule applies to oral agreements and discussions that occur prior to signing of an integration, and also to writings created prior to integration (draft agr’nts that were not intended to be final expressions of agr’nt)

Thompson v. Libby		common law position: if K is completely integrated, then nothing is allowed in - no oral evidence is admissible
P/seller of logs is suing for purchase price
D/buyer of logs says that breach of warranty excuses payment
But: warranty is not contained in writing
Issue: whether parol evidence rule excludes oral evidence
Whether K is completely or partially integrated:
	if completely integrated writing - no oral evidence is admissible
Held, the evidence of oral warranty is barred.
Court says: for the parol evidence rule to apply (i.e., to bar the introduction of extrinsic evidence), the parties must have intended to have their complete agreement embraced in writing.

Integration - a writing that is intended to be a final and complete expression of the agreement of the parties (Rest 210).
Partial integration - a writing that is intended to be final but not complete because it deals with some but not all aspects of a transaction between the parties.

Complete Integration (document that is not only a final expression of agr’nt, but that is also intended to included all details of the agr’nt)	Partial Integration (document that is intended to be final, but that is not intended to include all details of the agr’nt)	
writing may not be contradicted, 
may not be supplemented/added to	writing may not be contradicted by extrinsic evidence;
but writing may be supplemented by additional consistent terms	
Rest 213, UCC 2-202(b)	Rest 213, UCC 2-202	

Partial, complete, not at all integrated written agreement may always be explained by extrinsic evidence (Rest 214(c)).

Ks can be complete w/o being comprehensive

Even in 1885 there were 4 exceptions to parol evidence rule (court didn’t find in Thompson v. Libby):
1. 	fraud (recognized exception to any K obligation and parol evidence rule, because there is ineffective mutual assent)
2. 	a writing that is incomplete on its face: question of law - court decides first in a parol evidence case
3. 	parol evidence to explain the K (court won’t take evidence to explain meaning of K unless it’s ambiguous); whether there is any ambiguity
4. 	collateral on subject matter of the writing (if agreement covers more than one transaction, parol evidence rule doesn’t apply to ancillary, collateral transactions)

Exceptions to parol evidence rule (reasons why extrinsic evidence may be admitted):
explanation of the agreement
•	parol evidence rule does not apply to agreements, whether oral or written, made after the execution of the writing
•	does not apply to evidence offered to show that effectiveness of the agreement was subject to an oral condition precedent (Rest 217)
•	does not apply to evidence offered to show that agreement is invalid for any reason, such as fraud, duress, undue influence, incapacity, mistake, or illegality (Rest 214(d))
•	to evidence that is offered to establish a right to an equitable remedy such as “reformation” of K (Rest 214(e))
•	to evidence introduced to establish a “collateral” agr’nt between the parties (Rest 216(2))

Rest 214  Exceptions: can admit evidence to establish
(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

Policy
•	Lord Coke: “the uncertain testimony of slippery memory”: spoken words months/years later can be very unreliable - oral testimony is viewed with scepticism
•	mistrust of juries (juries are likely to favor the disadvantaged party that comes with oral evidence that contradicts written documents)
•	parol evidence rule favors status quo
Applicability of parol evidence rule is a matter of law
•	1st question - question of law - whether document is complete

Merger clause (zipper clause) - supposed to constitute evidence that writing is entire agreement - statement that K is fully integrated
•	to prevent oral variations
•	to make sure that parties understand and there is no dispute afterwards
•	to invoke parol evidence rule: states that the writing is intended to be final and complete; designed specifically to result in the application of the parol evidence rule if extrinsic evidence is offered

Hershon v. Gibraltar
Majority and Dissent represent 2 major views on parol evidence rule:
•	Majority: extrinsic evidence not allowed: public interest in certainty and finality (if you negotiated the K, you should be held to it); majority concedes that the result is harsh, but still
•	Dissent: purpose of parol evidence rule is to further intent of the parties; here - parties probably didn’t intend the release of all claims - lawyers’ mistake.
Disagreement over a poorly-drafted release agreement.  Court finds that the agreement unambiguously released and discharged all claims between the parties, including mortgages.  The court did not allow extrinsic evidence that contradicted the agreement’s clear language (releasing “all claims, whether known or unknown”) and plain meaning.

•	Hershon probably did not intend for the release to cover the mortgages, because even after the agreement, they kept making payments, and actually attempted to refinance.  But the court did not allow this evidence, and so Hershon was able to take advantage of the agreement and get out of its obligations.
•	The release, although releasing “any and all claims forever” is probably limited to the subject matter of the substance of the release; Hershon can’t go and punch out Goldstein.
•	If the parties got together 3 years later, the clause would not govern.
•	The release does not cover every event that will happen in the future.
•	Dissent: if the parties did not actually intend for the release to govern what they say it did, then there is an ambiguity (or even w/o the extrinsic evidence, the release is ambiguous), and extrinsic evidence should be allowed.  So, the dissent works to advance what the parties actually intended, while the majority is concerned with certainty and finality.
•	Here parties were of equal bargaining power, so both had counsel to look over the K, and are sophisticated enough to be held to its terms.

Nanakuli v. Shell	Parol Evidence Rule under UCC
Long-term supply K; Asphalt co/Nanakuli gets a price protection clause from Shell.
Supplier/Shell/D failed to price protect Nanakuli/P - raised the price
P claims that he was entitled to get old K price - price posted at the time of K, not time of delivery.  P says that acc to trade usage and course of performance, a price protection clause was incorporated into their agreement.  Trial court finds for D, saying that trade usage and course of performance are not admissible.  Appellate court found for P: parol evidence was consistent with the terms of the 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 or usage of trade (1-205) or
by course of performance (2-208); and
(b) 	by evidence of consistent additional terms unless the court finds completely integrated agreement.

Supplier is concerned about rice moving down - wants to protect itself against downward move of the market
Buyer - good for planning (knows what his costs are gonna be), wants fixed requirements K to protect itself if market price rises
Both want to strike a deal
	Here - fluctuating price requirements K

How did P establish trade usage and course of performance to make evidence admissible?
Trade usage:
•	what’s the trade
•	prove usage
•	Court: under UCC 1-205(2), parties can be bound by a usage common to the place they are in business, even if not the usage of their particular trade
•	UCC 1-205: P must prove regularity of observance of the practice or method - has to be sufficient regularity of trade usage; preponderance, has to be vast majority
•	Shell would be bound not only by usages of sellers of asphalt but by more general usages on Oahu, as long as those usages were so regular in their observance that Shell should have been aware of them
•	Shell had extensive prior dealings with members of the trade
•	Shell price protected twice before - 
	Shell then either knew or should have known about trade practice

Hierarchy of evidence (esp. in sales Ks under UCC)
1. 	express terms of K
2. 	course of performance (2-208) (the best evidence is what parties actually did under this very K) prevails over
3. 	course of dealing (1-205(1)) (what happened between these parties in other transactions, in past Ks) prevails over
4. 	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))
	But all this evidence of course of performance, course of dealing, and usage of trade is inadmissible to contradict express language of K under Parol Evidence Rule (UCC 2-202); it may be introduced to help interpret and explain the meaning of a writing even if the writing is completely integrated.

What did the court think was really going on here? -2 things happened to Shell:
1. 	management change - new management
2. 	Arab oil embargo - price of oil rose 
	Unforeseen circumstances - suddenly smth occurs which nobody could foresee - who is going to bear the risk
	In this case the court felt that Shell took the risk

IMPLIED TERMS

Implied in fact
•	Term becomes part of obligation of the parties, as if it is written
•	The court’s view of what parties agreed to; intention of the parties entering into K
•	Furthering intention of the parties
Implied in law
•	Regardless of the parties’ intentions
•	Can be imposed by the courts contrary to parties’ intentions, for public policy reasons
•	Most important such implied term - obligation of good faith
•	Other implied terms: requirement of reasonable notice prior to termination

Wood v. Lucy, Lady Duff-Gordon		implied in fact: implied obligation
to use reasonable efforts
P is fired by D/Lady Duff from their agency agreement.  P sues for breach.  D argues that K was illusory bec it was not supported by consideration.  That is, there is no mutual obligation on its face, bec P did not bind himself to anything, P did not have any duties.  Cardozo read an obligation of “reasonable efforts” into K, to find mutual obligation and bind D.  Held, for P.
P’s obligations under K:
•	to account on monthly payments for fees
•	to secure intellectual property protection
•	to split the profits with her on the 50-50 basis
Obligation that’s missing
•	to get any product placement at all
•	P has exclusive right to account for her - he has rights, but no obligations
•	D says - K fails for lack of consideration, mutuality of obligation
•	In classical K, this K would have been thrown out
•	Cardozo implied reciprocal obligation
	Parties should have made this K to work - therefore, there must have been this implied term - business efficacy
	It makes no sense for someone as successful as Lucy to place so much on this guy w/o his obligation - it couldn’t be what parties meant.
•	“it is true that he does not promise in so many words that he will use reasonable efforts to place D ‘s indorsements and market her designs.  We think, however, that such a promise is fairly to be implied”
•	“we are not to suppose that one party was to be placed at the mercy of the other”
•	“without an implied promise, the transaction cannot have such business “efficacy as both parties must have intended that at all events it should have’”

Leibel v. Raynor Manufacturing Co.		UCC 2-309(3) reasonable notification
requirement
Garage door dealer-distributorship agreement: K of indefinite duration, terminable at will by either party.  The court holds that reasonable notification is required in order to terminate an on-going oral agreement for the sale of goods in a relationship of manufacturer-supplier and dealer-distributor or franchise.
P says: I’m entitled to reasonable notice before termination
•	*Does the UCC govern?
	*Is the K for services or the sale of goods? (like asphalt v. paving)
Court finds that distributorship agreement was for the sale of goods
•	This is a relationship K with the potential to be long-term, indefinite in duration, but no one knows what might happen.  So it is in the interests of both parties to keep the duration open-ended.
•	What are the interests of manufacturer in entering into franchise agreement? -
hopes to increase sales
•	it’s a way of sharing risk - it’s cheaper for manufacturer
•	can have more outlets
•	distributor may have reputation in the community - it will increase sales
•	quality control, protection of the mark
•	protecting the name, the brand (good will)
•	expertise
•	community knowledge
•	research on the site
•	What are the dealer’s or franchisee’s interests?
•	they get smth to sell
•	brand name/they want the brand - important to advertise as a brand name
•	support from the parent company
•	get a lot of services: all service and technical support
•	get combined purchasing power
•	get discount price
•	get tremendous advertising support, benefit of nationwide advertising program
•	get loans sometimes
•	maybe they share liability
•	To deal with indefiniteness problem - make the agreement terminable at will
•	What’s the problem with termination at will?
•	bad faith; opportunistic behavior by either party; possibility that one party will seek appropriating all benefits of the relationship to the detriment of the other party
•	dealer or franchisee is worried about: that he’ll have no business left; he sank a lot of human capital, cash, time - and now it’s taken by the manufacturer
•	manufacturer is worried about: distributor can shop around for a better deal, man’rer poured in much support or dist’ror to build a thriving business
•	There is risk on both sides

UCC 2-306 Output, Requirements and Exclusive dealings
UCC 2-309 Absence of Specific Time Provisions; Notice of Termination
•	2-309(3) reasonable notification requirement
•	agreement can dispense with notification and will be invalid only if it is unconscionable
Rest 205 Duty of Good Faith and Fair Dealing

In Leibel,
court finds an obligation of good faith and fair dealing - reasonable notice of termination (2-309(3)): reasonable notice constitutes fair dealing and is implied as a matter of law - doesn’t matter if parties intended it
Factors
•	amount of money dealer has to invest
•	no formal written agreement
•	termination at will - has to be made after a period of reasonable notice
“If the distributorship is terminated without allowing the dealer sufficient time to sell his remaining inventory, substantial damages may result, even if the manufacturer agrees to repurchase the inventory.  Reasonable notification should be the minimum amount of protection afforded to either party upon the termination of an ongoing sales agreement.”

Default rule - either party can terminate at will
Court shifts the burden to the party seeking termination w/o notice

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

THE IMPLIED OBLIGATION OF GOOD FAITH

1. Honesty in fact
UCC 1-201 (19): Good faith means honesty in fact in the conduct or transaction concerned.
UCC 1-203 Obligation of Good Faith: Every K or duty within this Act imposes an obligation of good faith in its performance or enforcement.
Rest 205 Duty of Good Faith and Fair Dealing: Every K imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.
•	Polices opportunistic behavior
•	Protects the reasonable expectation of the parties in light of the background practices and customs in which the agreement arose
•	Protects the benefit of the bargain
Efficiency rationale - lowering transaction costs
•	Reduces transaction costs: information costs (you don’t have to do due diligence, engage in investigation)
•	Otherwise you’d have to interact only w/parties that you know
•	Or you’d have to take insurance (insure against the other party’s dishonesty)
Moral and ethical value
•	K law is an enforcement system - enforcement mechanism for private arrangements; can demand certain standards of behavior (we don’t allow people to come to court to enforce illegal Ks, dishonesty)

2. For merchants honesty in fact
2-103(b): Good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.

Eastern Air Lines v. Gulf Oil Corp.		no breach of obligation of good faith
Requirements K: Gulf would sell the fuel that Eastern needs in certain cities, for a fixed price.  Due to the Arab oil embargo, prices went up, provision in K didn’t cover this price increase (K’s escalation clause was about domestic crude oil), so Gulf demanded a price increase from Eastern, or they would shut off supply.  Gulf argues that the requirements K is unenforceable do to lack of mutuality of obligation (because Eastern is not obligated to but any fuel), and even if K is found, Eastern breached its good faith obligation by “fuel freighting”.

Requirements K (here) - a K in which seller promises to supply all the goods or services that a buyer needs during a specific period and at a set price, and in which buyer promises (explicitly or implicitly) to obtain those goods or services exclusively from seller.
•	buyer is not free to deal with other sellers, seller can deal with other buyers (as long as it supplies buyer)
•	there must be some element of exclusivity: if there is no exclusivity, it’s not K at all, because there is no mutuality of obligation, no consideration - there is no obligation on the buyer (as in Shoney’s)
•	it need not be complete exclusivity: K can define the scope of the exclusivity obligation
•	minimum/maximum
•	locality (as in this case)

Output K - a K in which buyer promises to buy all the goods or services that seller can supply during a specified period and at a set price.
•	buyer agrees to buy all of the seller’s output; buyer can go to another supplier for excess of his needs
Very useful Ks for both parties: certainty, allocation of risks

Here, due to unforeseen events, K not only lost its usefulness to one of the parties, it’s onerous to one of the parties, it’s a burden; commercial impracticability for Gulf.
Should we let Gulf out?  What does Gulf have to show to prove impracticability?
Force Majeur clauses - essentially govern impracticability
	(Gulf is a big company, it can stand to lose some money)

Gulf is accusing Eastern of bad faith - fuel freighting: Eastern wasn’t purchasing its good faith requirements
Eastern is accusing Gulf of bad faith - breach of K

UCC 2-306 Output, Requirements and Exclusive Dealings
Good faith requirement makes this requirements K an enforceable K

Courts looks to
•	course of performance
•	course of dealing
•	trade usage
to establish commercial standards in the industry.
Court finds that fuel freighting is a very common practice + it happened between these parties, and Gulf never complained
UCC 2-208(1) Course of Performance or Practical Construction
Gulf had many occasions to object, but didn’t.

Bad faith on the part of Eastern?
•	Legitimate changes in requirements are contemplated (if they are not huge increases)
•	Comment 2 to 2-306: reasonable elasticity in the requirements and good faith variations from prior requirements are permitted
•	We accept variability, even downward, as long as it’s dependent on reasons other than price change.
•	But if Eastern started selling its excess cheap fuel for profit, that would be bad faith (even though K does not forbid it, because Eastern entered into K for the purpose of running an airline, not selling oil - undercut its function)

KMC v. Irving Trust		the bank was required to give reasonable notice before
refusing to extend funds
Bank is accused of putting grocery business out of business.
KMC had a $3.5 million line of credit from Irving Trust, in return Irving held a security right to KMC’s accounts receivable.  This was a demand loan - 
2 kinds of loans
1. 	term loan - say, for 5 years, co has to pay back in 5 years
2. 	demand loan - whenever creditor demands repayment, co should pay it - here
Blocked account - all accounts receivable and cash that came in went into this box, co could only get the line of credit (to prevent KMC from looking for another lender).  Irving is the only who has access to KMC’s accounts; KMC doesn’t have access to them.  
Bank says - notice requirement is contrary to the very nature of a demand loan.  KMC was a risky business; risky loan
KMC says - it’s a breach of obligation of good faith
•	The only source of cash KMC has is the line of credit with Irving.
•	KMC is entirely at Irving’s mercy, subject to Irving’s whim.
•	Strong element of exclusivity -nowhere else to go
•	Enormous power discrepancy
•	The law will imply an obligation of good faith on the whimor (to lessen the degree at which whimee is at whimor’s mercy).
•	Limits ability of the bank to suddenly, w/o notice terminate the agreement
Held, the bank was required to give reasonable notice before refusing to extend funds.
•	Absent valid business reason, termination w/o notice is bad faith
•	Court used objective test of reasonableness: what reasonable banker (loan officer) would have felt in this officer’s position - did he feel that security was so threatened that bank couldn’t go for few more days
•	Jury awarded KMC 7.5 million for 3 days w/o credit - punitive element
•	Burden of proof on KMC - party alleging bad faith
•	Merchant’s definition of good faith - reasonable commercial standards of fair dealing in the trade (although it’s not under Article II of the UCC - money here)
•	If K does not fall under UCC, go to Rest 205 to figure out good faith
•	Reasonable notice - to give KMC an opportunity to find another arrangement
•	These agreements - risk allocation mechanisms
•	But see UCC Comment to 1-208 - obligation of good faith has no application to demand instruments whose very nature permits call at any time with or w/o reason (ignored by the court)

IMPLIED WARRANTIES

•	Warranties can be express
•	Warranty - like guarantee for a promise
•	When would you ask for a warranty
•	when it’s really expensive
•	the risk of that thing failing is too great - you have some kind of insurance
•	When you don’t know about the product, you rely on seller’s expertise or you bring an expert (mechanic to a car)
•	Warranty - like an insurance
•	Warranty - like substitute for expertise
•	the costs of due diligence - obtaining info - way to minimize the risks is to ask for a warranty - you’ll get into discussion of what they want to warrant - gives you info
•	for you to acquire expertise is very expensive
•	Breach of warranty - guarantee - breach of K (you get whatever losses arose from the breach - liquidated damages, when parties negotiate an amount of damages that will satisfy their claims)
•	I promise to indemnify you if thing doesn’t perform as a promised; I promise that this state of facts is true, to relieve the other party from investigating if it’s true
•	Warranties can be viewed as response to caveat emptor - buyer beware
•	Caveat emptor was based on state of economy that no longer exists (where buyers knew as well as sellers)
•	Still obligation to find out lies more on the buyer than the seller
•	In ordinary buyer-seller situation - still caveat emptor - obligation on the buyer
•	There are some areas where seller has greater obligation
•	Now there are warranties implied by law
•	Shifting all risks from buyer to seller
•	Warranties - risk-shifting devices: full warranty works as full indemnification

UCC provides for both express and implied warranties
2-313 - express warranties
2-314 Implied Warranty of Merchandability
Unless excluded or modified, a warranty that the goods shall be merchandable is implied in a K for their sale if the seller is a merchant w/r/t goods of that kind (serving for value of food or drink either on the premises or elsewhere is a sale)
Comment 4.  Although a seller may not be a merchant as to the goods in question, if he states generally that they are “guaranteed” - warranty (second-hand sales + limiting the effect of fine-print disclaimer clauses where their effect would be inconsistent with large-print assertions of “guarantee”)
•	this is merchant’s warranty that the goods fit the description in the K, that they are of fair, ordinary quality and fit for the purpose of their use
•	this warranty is implied in every K for the sale of goods
2-315 Implied Warranty of Fitness for a particular Purpose (if the seller knows that purpose for which the goods are required and the buyer is relying on his skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods will be fit for such purpose)
2-316 - sellers can disclaim implied warranties (“as is”, but courts are divided)

Implied Warranty of Habitability
	fault is not an issue
	builder will be liable even w/o fault (it’s not defense to breach of warranty)
just allocates risk to builder-vendor

McDonald v. Mianecki	potability of the water supply is included in the 
implied warranty of workmanship and habitability
House got bad, non-drinkable water from a well.  This was not the builder’s fault (he tried to fix this).
Court finds implied warranty of habitatability w/r/t every buyer against every builder-vendor, no matter large or small.
Liability was based solely on breach of implied warranty of habitability.
Is it fair to D?  Why did the court impose liability on D?
•	Difference in expertise
•	Builder possesses greater expertise
•	The buyer is far less likely to have expertise
•	It’s cheaper for the builder to identify the problem and fix it
•	Builder is a repeat player - any cost that builder incurs in one transaction he will spread over multiple other transactions
•	Whereas for the buyer it’s a one in a lifetime transaction
•	the court is using adhesion K as a vehicle - here builder is small, but we have to adjust the field
•	builder has commercial incentive to induce people to rely on him
•	incentive on the builder to do better work, to police the construction better, which builder is in a far better position to do than the buyer
•	if they have warranty, in order to get out of it, they’ll have to disclose that there is a 
water problem - builder won’t warrant water
•	builder-vendor is a less innocent party
•	Arg’nt - Leg’re should do it, its not a judicial matter
•	Nat’l Ass’n of Homebuilders warranty program - you can buy a warranty

Doe v. Travenol Laboratories		blood shield statutes - cannot be breach 
of warranty by D/blood supplier
P is a hemophiliac, contracted HIV, sued on s/l, breach of warranty, negligent - lost.
Even w/o blood shield statute, the court would have come out the same way.
At that time, blood processors couldn’t test blood for 100% safety
Hemophiliacs depend on blood
Court found blood processors - services - so, no s/l
Warranty claims are s/l claims (liability w/o fault)
	either you’re liable or you’re not
	once there is a breach of warranty claim - it’s a s/l claim
Court: we can’t let blood suppliers go out of business
Market of blood suppliers is limited (in contrast to market of home builders)
•	The court didn’t want to shift all the costs on the manufacturer, but as a result all costs were placed on consumer
•	Blood shield provisions of state statutes have been used to limit application of warranty to blood products
•	Blood shield statutes - take all the risks from the manufacturer (removed all incentives and liability from the manufacturer)

AVOIDING ENFORCEMENT

MINORITY AND MENTAL INCAPACITY

•	K is voidable at their option - they can enforce the K or escape from it
•	Courts are willing to protect groups, which are thought not to be able to protect themselves - these individuals as a group are not capable of bargaining.
•	Model of bargaining is abused by bargaining with these parties
•	Has nothing to do with bad acts: no proof of abuse or misconduct is needed

Minority (Rest 14)
	Unless a statue provides otherwise, a natural person has the capacity to incur only voidable K-tual duties until the beginning of the day before the persons 18th birthday.

Dodson v. Shrader		new rule: reasonable compensation to seller for the use
				of the thing purchased by the minor
A minor brought suit to avoid K, to release from K; he bought a truck and paid $4,900, now it’s worth $500; now he wants to get refund of the purchase price.  The court holds that the seller is entitled to a setoff for the decrease in value of the truck while it was in the possession of the minor.
Before - irrebuttable presumption of the common law - 
•	doesn’t matter what the K is - minors are presumed irrebuttably not to know what K they are entering into
•	minor has right to rescind - get purchase price back, as long as minor gives back what he bought -doesn’t matter in what condition/state
•	there was exception of necessaries, but a pick u truck doesn’t count
Here, court - there should be an exception to this rule
Seller is blameless
New rule: reasonable compensation
•	Where the minor has not been overreached in any way, and there has been no undue influence, and the K is a fair and reasonable one, and the minor has actually paid money on the purchase price, and taken and used the article purchased, that he ought not to be permitted to recover the amount actually paid, without allowing the vendor of the goods reasonable compensation for the use of, depreciation, and willful or negligent damage to the article purchased, while in his hands.
•	If there has been any fraud or imposition on the part of the seller or if the K is unfair, or any unfair advantage has been taken of the minor inducing him to make the purchase, then the rule does not apply.
•	This rule will fully and fairly protect the minor against injustice or imposition, and at the same time it will be fir to a business person who has dealt with such minor in good faith.

Competing considerations
•	we don’t want minors to be taken advantage of - strong public interest
•	an absolute rule takes away the cost of uncertainty of litigation
•	on the other hand, we don’t want minors to take advantage of unsuspecting sellers (like Shraders here)
•	rule adopted by this rule can be seen as reconciling these competing consideration (is it effective)
•	maybe it’s a better subject for the legislature rather than judicial system

Mental Incapacity (Rest 15)

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)
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.

Once mental incapacity is found - K is voidable, subject to rescission
The burden is on the party claiming incompetence

Estate of McGovern v. State Employees Retirement Board		cognitive test
Old man can’t come to terms with his wife’s illness and elects her as beneficiary to his retirement fund.  His estate brings suit, claiming that election of this pension option is voidable.  The court uses the cognitive test, and finds no incapacity at the time he made the K: it may have been irrational to hope that his wife would recover, but it does not prove incompetence (dissent feels that this person could not act reasonably - volitional test).

DURESS
(Rest 174, 175, 176)

•	Can be used offensively or defenseively
•	The bargaining process was bad - agreement was obtained by abused bargaining process.
•	Honesty in fact is one of requirements
•	Another requirement - ability to bargain
•	What kind of abuse do you have to show that is outside the scope of permissible K
•	Abuse cuts against certainty of commercial dealings, finality of dispute resolution
•	Concept of duress - involuntariness
•	Parties enter into Ks voluntarily - voluntary commitment
•	Duress - absence of voluntary behavior
•	The defense of duress is available if D can show that he was unfairly coerced into entering into the K, or into modifying it - any wrongful act or threat which overcomes the free will of a party.

Rest 174  When Duress by Physical Compulsion Prevents Formation of a K
If conduct that appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.

Elements of duress
1. 	proof of wrongful behavior by D (improper threat)
2. 	absence of reasonable alternative by P

Rest 175 When Duress by Threat Makes a K Voidable
improper threat + no reasonable alternative
(1) 	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.
(2) 	If a party’s manifestation of assent is induced by one who is not a party to the transaction, the K is voidable by the victim unless the other party to the transaction in good faith and w/o reason to know of the duress either gives value or relies materially on the transaction.

Our interest in avoiding the cost of business failure
Punishing the wrong, bad party, whose wrongful conduct pushes the other party to bankruptcy (punitive element, although absent in K law), by letting the other party off the hook.

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 air 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
Duress - involuntariness: involuntary nature of the transaction, absence of free will.
Court identifies 2 major factors: to avoid K
1. 	a party must show that the other party by wrongful acts or threats, intentionally caused him to involuntarily enter into a particular transaction
2. 	a party must show that he had no reasonable alternative to agreeing to the other party’s terms, or that 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.
Here, P signed the release of claims against D; wants to invalidate the release
•	It’s a 2nd level K: the original transaction between Totem and Alyeska, then settlement and release of all claims
•	Release acts as a bar to litigation of any claims w/r/t original transaction
•	Totem has to void the release to then assert claims of original transaction
•	Totem wants to get more money owed by Alyeska under original transaction, but it has to void the release first
Court considers
•	certainty of K (parties signed the release)
•	finality of dispute resolution
Totem says: release was entered into under duress

To void the release, P has to prove that Alyeska deliberately withheld payment of an acknowledged debt, knowing that Totem had no choice but to accept an inadequate sum in settlement of that debt; that Totem was faced with impending bankruptcy; that Totem was unable to meet its pressing debts other than by accepting the immediate cash payment offered by Alyeska; and that through necessity, Totem thus involuntarily accepted an inadequate settlement offer from Alyeska and executed a release of all claims under the K.
•	Abuse of bargaining power
•	An intentional bringing of pressure by the stronger party
•	Creating extraordinary pressure on Totem (threat that Alyeska wouldn’t pay or wouldn’t pay fast enough)
•	You don’t even have time to sue, you’ll go bankrupt
•	What the other party (Alyeska) knew of the party’s (Totem’s) situation

•	Here: 176(1)(d): threat not to pay is a threat of breach of duty of good faith and fair dealing under K
•	Totem has to show prove that Alyeska knew that it owed Totem more like the amount that it actually owed Totem rather than settlement amount - acknowledged debt
•	knowing that you owe
•	and then deliberately threatening to breach
•	Totem would also have to prove that it was facing impending bankruptcy (not being able to pay your debts)
•	if there were any viable alternatives, Totem would lose the duress claim
•	here, Totem didn’t have the option to walk away from the threat
•	distinguish cases where autonomy of the parties doesn’t exist (as opposed to claims of duress when the party is just unhappy)
•	Totem has to prove that there were no alternative sources of funding available
•	Totem has to show that it had only 2 alternatives: either accepting this unfair settlement or bankruptcy
•	Losing money on K is not ground for rescission or breach

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
(2) 	If a party’s manifestation of assent is induced by undue influence by the other party, the K is voidable by the victim
(3) 	If a party’s manifestation of assent is induced by one who is not a party to the transaction, the K is voidable by the victim unless the other party to the transaction in good faith and w/o reason to know of the undue influence either gives value or relies materially on the transaction.

To prove undue influence, the victimized party must show:
1. 	undue susceptibility to pressure
2. 	excessive pressure was applied by the dominant party

Rest 177 - doesn’t require existence of fiduciary relationship
If there is fiduciary relationship - can be used instead of undue susceptibility

Differences between duress and undue influence:
1. 	duress requires a wrongful threat (imbalance arises from improper threat)
2. 	improper threat can be analogized to excessive pressure in undue influence claim
3. 	duress requires a showing that there was no reasonable alternative
	depending on the facts, either theory might be easier to prove

Rest 177(1)
1. 	was P justified in assuming that Ds won’t act in a manner inconsistent with is welfare
2. 	was their persuasion excessive or unfair
Bad faith is not an issue here

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
If a number of these elements are simultaneously present, the overpersuasion may be characterized as excessive.

Odorizzi v. Bloomfield School District	“Taking unfair advantage of another’s weakness of mind is undue influence, and the law will not permit the retention of an advantage thus obtained.” (statutory definition)
P/teacher gets arrested for homosexual acts; then principal and superintendent come to his house and persuade him to resign; but charges were dismissed; he wants to invalidate his resignation and seeks reinstatement; asserts duress, fraud, mistake, and undue influence.
Held, rescission is justified because of undue influence.

No duress (court uses narrow definition of duress)

No fraud: has to be scienter (prior knowledge or intention)
No constructive fraud - doesn’t depend on scienter: when you are beneficiar yof fiduciary relationship, that relationship replaces many elements that P has to prove
	Scienter:
1. 	intentional and knowing, willful (the worst)
2. 	recklessness - willfully disregarding the possibility that harm will result
3. 	negligence - falling below standard of reasonable care
Ordinarily to prove fraud:
•	inducement
•	made misrepresentation to induce you 
•	some level of knowledge
•	reliance - you relied on misrepresentation
•	your harm is proximately related to misrepresentation (you have to tie your injury to fraud)
But where relationship is characterized as fiduciary - it’s so unequal that you always rely on the fiduciary - you don’t have to prove most elements - we assume that you relied on it
•	disparity in bargaining power (beneficiary has to rely on trustee: doctor, lawyer)
•	disparity in knowledge and discretionary power

•	Here, highly coercive circumstances; Ds told P that there was not time to consult an attorney, there were 2 Ds, P was w/o sleep for 40 hours, just released from police.
•	What school should have done:
more time, orderly meeting, during business hours, on business premises, presentation of alternatives, saying that he is free to consult council - then he wouldn’t be able to show susceptibility
•	Employer-employee relationship is like buyer-seller relationship - adverse interests

MISREPRESENTATION AND NONDISCLOSURE
Rest 161-169
Party can use it in two ways:
1. 	as a defense in a breach of K action brought by the other party
2. 	as the grounds for rescission or damages in a suit in which he is the P

Misrepresentation
(1) 	statement: express or implied
•	whether an omission constitutes a statement
•	true but incomplete statement
•	non-disclosure + duty to speak (there is no generalized duty to speak)
(2) 	of fact
•	opinions are usually not statements of fact

(3)  that is false

(4)  Was misrepresentation fraudulent or material?  Rest 162

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,
(5)  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

Rest 164  When a misrepresentation makes a K voidable
(1) 	if a party’s manifestation of assent is induced by either fraudulent or a material misrepresentation b the other party upon which the recipient is justified in relying, the K is voidable by the recipient
(2) 	if a party’s manifestation of assent is induced by either a fraudulent or a material misrepresentation by one who is not a party to the transaction upon which the recipient is justified in relying, the K is voidable by the recipient, unless the other party to the transaction in good faith and without reason to know of the misrepresentation either gives value or relies materially on the transaction

Opinions  Rest 168, 169
Rest 168(1) Mere opinions are not actionable
Defense of puffing
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
To be actionable - opinion has to fit under 168(2) or 169
Rest 168(2)
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.
So
a) 	if opinion misrepresents the speaker’s state of mind, or
b) 	if opinion misrepresents that the speaker has enough facts/info to form an opinion
AND c) if it is objectively reasonable to so interpret an opinion
	If you can’t meet 168(2), you are left with mere opinion under 168(1), which is not actionable.  It is actionable only under Rest169.
Same analysis as to omissions under Rest 161
Unless for some reason the other party is obliged to tell you - it’s not actionable

Justifiable reliance is harder to prove with an opinion
Rest 169 Reliance on opinion is justified if the recipient
a) 	fiduciary: 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, or
b) 	expert: 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, or
c) 	is for some other special reason particularly susceptible to a misrepresentation o fthe type involved

Non-disclosure: omissions or partial statements
What if statement is true but incomplete (you neglect to mention smth) - is that actionable misrepresentation?
	Should be actionable - may create highly misleading impression
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
(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

•	Do you have to tell people everything you know before you enter the deal
•	Lawyers tell only literal truth and no more
•	Under what circumstances do we want to impose obligations on the parties to disclose info that is beyond what’s literally true
•	There is no general duty to disclose
•	Obligation to find out what you can about what is important to you
•	Cost of info: info is not free
•	Incentive rationale for non-disclosure: it would create tremendous disincentive to acquire info if you are required to give it away for free
•	What if disparity of info costs is huge: for one party it can once in a lifetime deal, very high costs of info
•	Why don’t people voluntarily disclose: people act in their rational self-interest, they don’t know what other people are going to do (prisoners’ dilemma)
•	Negotiation - tremendous info exchange setting
•	Psychological and emotional factors: uncomfortable about disclosing private facts
•	We assume that people are reasonably skeptical about what the other says
•	Lawyer cannot talk to the other party who has a lawyer is not present w/o lawyer’s permission
•	You are not permitted to give advice to the other side
•	Obligation to represent your client - you cannot walk out on your client
•	You must do everything to get the other lawyer here; if you tried, but couldn’t - you are not obliged to walk out on your client
•	169(b) - lawyer has special skill, expertise, professional responsibility
•	But lawyers have also been held liable for remaining silent - assumed to implicitly approve
•	Lawyers - credibility enhancers - when they say smth, it adds credibility to it - special fiduciary relationship (cannot commit fraud)

Syester v. Banta		Misrepresentation: dancing lessons case
Woman in her late 60’s purchased over $30,000 dancing lessons (3 lifetime memberships) because instructors told her she could be a professional.  P is trying to rescind a release and settlement to be able to get tort (punitive) damages for misrepresentation.  Held, for P.
•	Court thinks what D did was despicable
•	P has the burden of proof that release was not binding
•	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: D was only puffing; under common law, opinions were not actionable
•	But see Rest 168, 169: Rest 169 (b) or (c) might have been available to Ms. Syester
•	You might not want to make her argue undue influence, because that could make her look stupid

Hill v. Jones		Non-disclosure: termite case
Rule: seller has duty to disclose
	“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”
•	It’s a risk allocation rule: shifts risk of non-disclosure to the seller
•	Court asks 2 questions: (1) do the sellers have a duty to disclose, and (2) is termite damage material (yes)
•	Why wasn’t the case brought against termite inspector - Ps want rescission of K (get rid of the house) - can only be against the seller
•	We expect people to exercise ordinary care on their behalf: buyer has duty to investigate
•	Under Rest 161(a) there is a duty to correct - it is too costly to undertake investigation again
•	Arizona rule: duty to disclose may arise where the buyer makes an inquiry of the seller, regardless of whether or not the fact is material - should this be the rule?
•	If someone asks (as here) - should you be required to make disclosure?
•	If yes, is this obligation limited to material facts?
•	Is lie a material fact?
•	Certainty of commercial dealings, finality, but - honesty and fair dealing
•	The K here contained an integration clause, a general waiver of all liability for defects because the buyer has inspected.  The court held that it could not preclude a claim for fraud: “the clause could not shield sellers from liability should buyers be able to prove fraud.”  If the misrepresentation were innocent, however, it may be a valid waiver.
•	Sellers have duty to disclose more than buyers
•	Courts should draw a distinction between info that has been casually acquired and infor obtained through a deliberate and costly investigation

Professor Keeton’s probative factors for determining necessity of disclosure:
(1)	difference in the degree of intelligence of the parties; community sense of justice demands it
(2)	relation that the parties bear to each other
(3)	the manner in which the info is acquired: by chance, by effort, or by illegal act
(4)	nature of the fact not disclosed (more duty to disclose if intrinsic defect not discoverable by reasonable care, than when extrinsic defect that would affect market value)
(5)	general class to which the person who is concealing the info belongs: more likely that sellers must disclose than buyers
(6)	the nature of the K itself; in releases and insurance Ks practically all material facts must be disclosed
(7)	the importance of the fact not disclosed
(8)	any conduct of the person not disclosing smth to prevent discovery: the active concealment of any material fact - anything that might prevent the purchaser from buying at the price agreed on is fraudulent.

UNCONSCIONABILITY
UCC 2-302, Rest 208

•	Used as a defense
•	If K is rescinded on the basis of un’ty, the parties should be restored to their original positions
•	Maybe none of the pieces will be enough alone, but together they can establish un’ty
•	What is the comparative utility of the provision in question
•	Un’ty is used where K is “fishy”, but doesn’t fit into duress, misrepresentation, fraud
•	This K stinks so badly, that judge doesn’t want to enforce it -so one-sided, so unfair

Rest 208
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
(1) 	If the court as a matter of law finds the K or any clause of the K to have been unconscionable at the time it was made the court may refuse to enforce the K, or it may enforce the remainder of the K w/o the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
(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.
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
Both must exist for un’ty to be found, but can be less of one, more of the other:
1.  Procedural:
absence of meaningful choice on the part of one party
defects in the bargaining process (process is unfair and one-sided)
•	terms were buried in fine print, boilerplate
•	adhesion Ks (that contain non-bargained clauses that are in fine print, complicated and/or exceptionally favorable to the draftsmen)
•	seller’s sales tactics were insufficiently informative, he didn’t explain the consequences of her course of dealing with the co (duty to disclose); high-pressure salespeople who mislead the uneducated consuemmer
•	oppressive, high pressure sales tactics - duress, undue influence (same facts)
•	buyer had no reasonable alternative - she couldn’t go to another seller of the goods (duress atmosphere - doesn’t meet the duress test bec. Williams had reas alternative - not to buy the goods) - there are no other sellers, or if there are, they all use the same terms - industries with few players, all of whom offer the same unfair adhesion Ks

AND
2.  Substantive:
	K terms which are unreasonably favorable to the other party
oppressive nature of the terms of K (clause or K itself is unfair and one-sided)
•	substantive harm resulting from K
•	a clause unduly unfair and one-sided
•	wild disproportion: this clause gives only marginal additional protection to the seller compared with coercive effect that it has on the buyer
•	excessive price
•	unfair modification of either the seller’s or the buyer’s remedies
•	this clause hits hardest on this population and benefits the most these sellers
•	public utility determinations
•	more question for legislature: Consumer Protection statutes - substantive regulation (people don’t read clauses, don’t understand them; high level of uncertainty of un’ty doctrine; regulation discourages litigation; and as it is, probability of litigation is small, costs are high)
•	common law in this country is very conservative and very supportive of the status quo
•	certainty of commercial dealing
•	autonomy

Williams v. Walker-Thomas Furniture Co.
Rule:
“Unconsionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party”
Action was brought by P/furniture store against D/Ms. Williams and others.  Williams uses unconscionability as a defense.  K - lease - has add-on clause: “payments will be credited pro rata on all outstanding bills.”; Williams does not own any piece of furniture until every piece is paid off, the store owns the title..  She bought a stereo set, fell behind on payments, and the store sued to replevy all the items.  The court held that she was not barred from introducing evidence of un’ty and remanded the case to trial court.
	Should we have such a rule that the store should not sell the stereo to welfare mother with many kids just because it’s not fair

Factors relevant to determination of unconscionability (Wille v. Southern Bell Telephone Co.):
1.	the use of printed form or boiler-plate Ks drawn skillfully by the party in the stronget economic position, which establish industry-wide standards offered on a take it or leave it basis to the party in a weaker economic position
2.	a significant cost-price disparity or excessive price
3.	a denial of basic rights and remedies to a buyer of consumer goods
4.	the inclusion of penalty clauses
5.	the circumstances surrounding the execution of the K, including its commercial setting, its purpose and actual effect
6.	the hiding of clauses which are disadvantageous to one party in a mass of fine print or in places which are inconspicuous to the party signing the K
7.	phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them
8.	an overall imbalance in the obligations and rights imposed by the bargain
9.	exploitation of the underprivileged, unsophisticated, uneducated and the illiterate
10.	inequality of bargaining or economic power

Here - (9)
•	Purpose of add-on clause: security against default in a high risk market(seller knows that there is enhanced possibility of default)
•	Value of items that D purchased is going to depreciate rapidly (once she uses them)
•	One alternative for seller is to charge more - increase the price
•	Another alternative for seller is to increase the size of downpayment
•	Here, the seller chose add-on clause
•	Why couldn’t D go to department store - she probably doesn’t have good credit
•	D is a high risk purchaser (risk goes up - seller seeks compensation)
•	Add-on clause has economic value
•	Arg’nt: imposing liability on stores like P may be depriving customers like Williams of these products (we have no generalized rule saying stores have to deal w/someone, only like phone co’s, public utility co’s)
•	Court is paternalistic here (you can’t sell furniture to welfare mothers)
•	This clause doesn’t end the inquiry:  “In determining reasonableness or fairness, the primary concern must be with the terms of the K considered in light of the circumstances existing when the K was made.  The test is not simple, nor can it be mechanically applied.  The terms are to be considered in the light of the general commercial background and the commercial needs of the particular trade or case.”
•	Test: “whether the terms are so extreme as to appear unconscionable according to the mores and business practices of the time and place”.

For procedural un’ty, Williams would have to prove a lack of meaningful choice
For substantive un’ty, she has to show that the clause means very little to the seller, while it is oppressive to her
a) 	the clause gave only marginal benefit to the seller because getting the furniture back is no big deal, he is only marginally secured
b) 	there is a less oppressive way to get security
c) 	economic value to the seller is so small that it can’t be an adequate remedy for breach, and is instead just a penalty

Ahern v. Knecht	excessive price - unconscionable
Air conditioning repair; excessive price.  The court found the price to be grossly disproportionate to the services rendered
Substantive un’ty: “Where the amount of consideration is so grossly inadequate as to shock the conscience of the court, the K will fail”
Procedural un’ty: pressure on the bargaining process
•	guy came to her home
•	he held himself out as an expert
•	emergency nature of the repair
•	take it or leave it circumstances
But arg’nt - she could always ask him to leave
Price is not hidden, all parties are aware of it - against finding of un’ty

AVOIDING Ks AS AGAINST PUBLIC POLICY
Rest 178, 181

•	State/public interest in making the machinery of enforcement unavailable
•	Another way to prevent enforcement
•	Doesn’t turn on finding any defects
•	The easy cases - when the subject matter of K is illegal (K to pay bribe for a favor)

Revenue raising statutes
•	if the purpose of the statute is to provide revenue - K is not void
•	allow anyone to be able to engage in an activity if they pay a fee (fishing license)
Regulatory statutes
•	if the purpose of the statute is to benefit the public, and not for the raising of revenue only- K that does not comply with the statute is void
•	provide an ongoing governmental review: enforcement is through governmental oversight scheme

Balancing approach
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
D repaired homes and refinanced mortgages - gave mortgage loans on residential houses (he’ll put all their debts as a single mortgage that they’ll owe to him at a higher interest rate).  He violated a statute: mortgage lending for which he had no license.
The statute did not say that Ks made in violation of it are void, so the court applied the traditional rule, finding that the statute was regulatory, and so the court voided the part of K which was in violation of the statute: the court only voided the mortgage indebtedness, not the construction debt.

•	Here, purpose of the legislation was to limit and police the population who can engage in this business
•	Why judicial enforcement is good here: it furthers policy of the statute by penalizing
•	non-compliance
•	Easy to administer
•	But: may result in forfeiture to innocent party (repairs have already been made, refinancing also)
•	There is no determination of fault being made here
•	However, even if statute is regulatory, court will not necessarily refuse to enforce K made in violation of the statute:
1. 	If legislature wanted Ks in violation of the statute voided, it would have said so:  “The statute fixes its own penalties.  The additional penalty of non-enforceability of agreements is a judicial engraftment wwe know expressly reject as unduly harsh and unsound”.
2. 	Equities between the parties might be in favor of enforcement:  “Why should one party to a K be allowed to avoid the payment of debts he has contracted to pay and thus gain an unconscionable advantage because the other party deliberately, or through inability or mere oversight, has failed to discharge an obligation to the city”
3. 	There may be a public remedy available to the city
4. 	This doesn’t fit with our other concepts of K law:  “Such a rule, allowing one party to penalize another for his own benefit for an act which occasioned him no loss would seem to be exotic to the jurisprudence of this state.”
•	Court had 2nd alt’ve: refuse to make K void, but wait for legislative declaration
•	Court could not declare K void, but provide a restitutionary remedy
•	Or, court could do a balancing test under Rest 178, on case by case basis (but creates uncertainty)

COVENANTS NOT TO COMPETE

2 situations where covenants not to compete arise:
1. sale of business
	I want to sell retail business, you want cov not to compete from me: part of what you’re buying is my not competing directly with your business
2. entry into employment relationship
you agree not to compete with your employer for a certain time if you leave him.
•	Limits consumer choice
•	Restrains competition
•	Competition is a valuable good in our economy
•	We don’t like things that discourage competition - why - 
•	Choice
•	Raising quality and lowering price
•	In California covenants not to compete are unenforceable
•	NY is hospitable to covenants not to compete, as long as they are carefully drafted
•	Should covenants not to compete be unenforceable per se? - courts are reluctant to adopt per se rule, because there are values on both sides (for both e’er and e’ee)
•	Arguments in favor of covenants not to compete:
•	we want new associates trained: encourage older doctors to take younger doctors to their practices to train them, give them opportunity to learn
•	value to the employer (but bad: allows an e’er to exert monopoly power by preventing e’ee from competing; monopolies - bad)
•	make sure that the value inherent in the business will be preserved from attack by younger doctors
•	younger doctor wants cov not to compete if he wants to work with that particular doctor
•	younger doctor will be more thoroughly incorporated into the practice: he’ll get more info, he’ll get to treat more patients
•	protects trade secrets, info, good will
•	serious economic benefit of cov not to compete is that they give people who want to give them opportunity to create credible belief that they won’t compete
•	Inventions: if you invent smth, it belongs to your e’er

Karlin v. Weinberg		no per se rule for doctors
Young doctor left old doctor, stole some of his patients.
Doctors, lawyers - public concerns in most dramatic form
This court didn’t adopt per se rule for doctors: restrictive covenants between physicians are not per se unreasonable
Scott: doctors are distinguished from lawyers on 2 bases
1. Lawyers have ABA Code of Professional Responsibility: lawyer cannot enter into cov not to compete, whereas under the principles of medical ethics such agreements are not forbidden
2. Until recently doctors only had small practices, small partnerships, lot’s of ind’l practices, whereas lawyers have large firms: potential for young associate stealing a client is small; differences between attorneys’ and doctors’ codes rest solely on the economics of the practices: lawyers have less economic stake in preserving cov not to compete

Court: an e’ee’s post-employment restrictive covenant is enforceable to the extent that is reasonable under all the circumstances of the case.
It is reasonable when it
1. 	protects the “legitimate” interests of the e’er,
a) 	covenant will be unenforceable beyond the period of time which e’er needs to protect his practice (period needed to demonstrate his effectiveness to the patient)
b) 	geographical area needed to protect e’er’s practice
c) 	covenant will be unenforceable if it restricts the e’ee from engaging in activities not in competition with those of his former e/er
2. 	imposes no undue hardship on the e’ee, and
a) 	likelihood of e’ee finding work in his field elsewhere
b) 	reason for termination of relationship between the parties to employment K:
	breach by e’er or e’ee (brought hardship on himself)
c)  personal hardship w/o more is not undue hardship
3. 	is not injurious to the public: effect that enforcement of cov would have on the public interest
a) 	demand for services rendered by e’ee
b) 	likelihood that those services could be provided by other physicians already practicing in the area
Here, P had legitimate interest entitled to protection and this interest was recognizable absent a showing of detriment to the public; such detriment has not been established.

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

JUSTIFICATION FOR NONPERFORMANCE:
Mistake, Changed Circumstances, and Contractual Modifications

•	These doctrines are a safety valve for when there is such a huge imbalance that it goes well beyond expectations of the parties.
•	Smth has changed, so that obligation to perform should be lifted
•	Conflict with common law
•	Courts don’t like to get into K itself; courts are very good at policing process, not substance of K
•	All these doctrines make court look at what K is about
•	All require very high burden of proof on the party seeking relief
•	Primary function of Ks - allocation of risks
•	You have to prove (like in Totem case) that your choice was between economic life and death (close to insolvency)

MISTAKE
Rest 152, 153, 154

Mutual mistake
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, 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
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
	if find all these factors, K is voidable by him IF
	he does not bear the risk of the mistake under Rest 154.

Lenawee v. Messerly		mutual mistake; “as is” clause of the K
Buyers bought tract of land with defective sewage system; seek rescission of K
Both parties had mistaken belief that house was suited for habitation, was income producing rental property
This property could not be used for its purpose at the time K was entered into (mistake is measured when K is entered into, time of execution; if it sewage problem happens later - it’s a changed circumstances doctrine)
Old distinction between mistake as to value or quality and very nature of the thing
Ps say: mistake as to very nature of K - rescission
Ds say: mistake relates only to the quality or value - collateral to agreement - does not justify rescission
Court says: under Rest 152, mistake relates to basic assumption and has serious material adverse effect on the exchange of performances of the parties
However, court denies relief to P under 2nd part of the test (as in Rest 154(a)):
“As is” clause of the K (merger clause, disclaimer)
Under this clause, buyer bears the risk of mistake

•	Raises the question of treatment of boilerplate clauses
•	We would want to know:
•	who drafted K?
•	form K?
•	negotiation history (revised, argued)? (if there was bargaining - the risk should go as specified in the “as is” clause, here - to the buyer)
•	Court may deny effect to “as is” clause (saying that buyer inspected the property and was not relying on any representations made by seller), because of general aversion to boilerplate clauses and the fear that enforcement would lead to inequitable results; although courts will enforce provisions that result from honest bargaining, which allocate the risk of unforeseen risks, such all-purpose boilerplate provisions should be regarded as ineffective because they lack adequate notice of what is being bargained for (Shore Builders case)
•	What buyer should do: hire experts to inspect the soil before you buy property; force a condition subsequent (make agreement subject to favorable zoning laws, regulations, etc.), try to get warranties from seller; buy an option K (consideration is much cheaper than the full K price, and if you don’t want the property, you can let it expire)

Wil-Fred’s v. Metropolitan Sanitary District		unilateral mistake
Construction case: subcontractor makes a mistake, which would result in $150,000 loss and the sub going out of business.  Wil-Fred’s sues for preliminary injunction (if it waited, equities would shift - District would rely on its performance).  The court allows the general contractor to rescind his K/bid with the District.
The court uses the Illinois test - conditions required for rescission are:
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)

Here
1.  Yes, error was material- $150,000 mistake; 17% of W-F’s bid
3.  P/Wil-Fred’s (gen K’tor) says that is will go bankrupt either by performing and losing $150,000 or by not-performing and losing deposit of $100,000 (would lose bonding capacity)
4.  District knew about Wil-Fred’s mistake before it accepted the bid - adequate notice by Wil-Fred’s; District could still award K to the next lowest bidder - so it suffered not change in position (also, disparity in the bids might have given notice to District that there was a mistake)
Court focuses on
2.  Whether error occurred despite the exercise of reasonable care by W-F: experience and preparations of subcontractor; prior business dealings between 2 co’s; high quality of subcontractor’s past performance - yes, W-F exercised reasonable care.
Here, W-F didn’t force subcontractor to perform, sub would go bankrupt.

CHANGED CIRCUMSTNACES:
IMPOSSIBILITY, IMPRACTICABILITY,
AND FRUSTRATION OF PURPOSE
Rest 261-265, UCC 2-613, 2-615

•	Changed circumstances after K was entered into
•	K is valid, but party who has breached claims that it’s not breach, but excuse - puts all risks on the non-breaching party; allows breach of K without paying damages
•	K law - strict liability; fault concepts have little importance
•	Absence of scienter requirements - any failure to perform - willful, negligent, or innocent- should give rise to cause of action
•	Tension between using fault concepts and not using them as in old common law (where there were no issues of fault)
•	2 schools
1.	Law and economics school - no fault: efficiency determines where liability should be placed
2.	Notions of autonomy - moral and behavioral content; sense of societal expectations
•	Impossibility starts from no-fault premise

The parties may be discharged from performing the K if
(1) 	performance is impossible
(2) 	because of new events, the fundamental purpose of one of the parties has been frustrated
(3) 	performance is not impossible, but is much more burdensome than was originally expected - impracticable
If a party is discharged from performing for such reason, he is not liable for breach of K
Always ask:  Did the parties expressly allocate the risk?  If they did, this allocation controls - these doctrines don’t apply.

Rest 261  Discharge by Supervening 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
If the existence of a particular person is necessary for the performance of a duty, his death or such incapacity as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the K was made.

Rest 263  Destruction, Deterioration or Failure to Come into Existence of Thing Necessary for Performance
If the existence of a specific thing is necessary for the performance of a duty, its failure to come into existence, destruction or such deterioration as makes performance is impracticable is an event the non-occurrence of which was a basic assumption on which the K was made.

Rest 264  Prevention by Governmental Regulation or Order
If the performance of a duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the non-occurrence of which was a basic assumption on which the K was made.

Rest 265 Discharge by Supervening Frustration
•	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.

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.

Taylor v. Caldwell		exception to the rule of strict liability
English case: D agreed to rent music hall to P for musical performances, but music hall burned down.  Without fault of either party, specific performance is impossible, and money damages won’t cure the problem.  So, insufficiency of damages + unavailability of specific performance mean that K should be voided: non-fungible, specific, unique goods (like paintings).  Here, burning music hall was not voluntary act.

Karl Wendt Farm Equipment v. International Harvester		Unless a party can show some extraordinary cause, market downturn does not render K impracticable and is not justification for lift of K
D/IH goes out of farm equipment business after a dramatic downturn on the market for farm equipment.  Wendt - dealer of IH goods - wasn’t offered franchise; Wend sued for breach of K/franchise agreement; IH defended on the basis of impracticability.  Held, for Wendt: IH’s franchise agreement with Wendt was not allowed to be voided due to impracticability.

Impracticability (for Wendt - not defense for IH)
•	Mere market shifts do not render K impracticable
•	Mere lack of profit is insufficient
•	Non-occurrence of even must have been a basic assumption on which both parties make the K
•	Market shifts or financial inability of one of the parties are not such assumptions
•	Impracticability means more than impracticality
•	Examples: shortage of raw materials due to war, embargo, local crop failure, unforeseen shutdown of major sources of supply
•	IH had other alternatives which could have precluded unilateral termination of the K (an alternative would have been to terminate its Dealer Agreements by mutual assent under termination provision of K and share the proceeds of sale to another co with its dealers)
•	This is the risk that was contemplated in K (not an unanticipated happening)
•	Even though specific performance isn’t available, damages certainly are as a remedy
•	Impossibility doctrine means that obligation is lifted - no money damages
•	How to make IH fit under Rest 261: basic assumption was that farm equipment business will at least continue for significant period of time, that market wouldn’t decline
•	Can market downturn ever give rise to impracticability claim?  (It’s very hard to prove that change in the market is so abnormal, because market fluctuates)  Unless a party can show some extraordinary cause - market downturn is not justification for lift of K
•	Should we require co’s to declare bankruptcy before we lift Ks? - Transaction costs of bankruptcy are very high (so, almost bankruptcy)
•	Could either party insure against this risk: termination provision of K was insurance against his risk (Wendt took the risk of termination for any or no reason during 6-month notice period)

Frustration of purpose (for Wendt - not defense for IH)
3 elements (Grozeth case: defense of frustration requires the establishment of 3 factors)
(1) 	purpose frustrated by supervening event must have been principal purpose
(2) 	frustration must be substantial (so severe that it is not fairly to be regarded as within the risks assumed under K)
(3) 	frustrating even must have been a basic assumption of the K
Doctrine of frustration - equitable doctrine - to fairly apportion risks between parties in light of unforeseen circumstances
Here - frustrating event was IH’s decision to sell its farm equipment and go out of that line of business

Opera Co. of Boston v. Wolf Trap	who has better expertise to prevent the risk
Scott - wrongly decided case.  The court relieved an outdoor facility from its K obligation of providing lighting for Opera Co’s outdoor performance on the basis of impracticability, when thunderstorm knocked out power.  But: summer, there are always thunderstorms, it’s predictable and foreseeable.  This holding allows Wolf to shift the risk of thunderstorms entirely onto Opera Co, but Wolf had expertise and knowledge to insure or provide alternative arrangements (power source) to minimize damages.

International Minerals & Chemical v. Llano		take or pay K
P/Mining co/IMC buys its natural gas from D/Llano’s pipeline.  Pipelines are rare - monopolies.  The gov’nt environmental agency forced IMC to stop using machines that need natural gas, IMC stopped taking gas and sued, after 18 months of non-performance, seeking declaratory judgment 
(choice of forum, which law will be applied, judge or jury: NY law is very tough commercial law, courts don’t like to get people out of Ks; P wants to bring suit in New Mexico, because environmental regulation is in New Mexico - so it will be more hospitable to P)
Held, for IMC:  “Through no fault of its own, a basic assumption of K changed.”
Rest 261: basic assumption - that mining co will continue its method of mining in the future - is now changed

Here, take or pay K
•	Why would anybody enter into take or pay K?
•	buyer doesn’t thinks it’s gonna go under the minimum
•	benefit of the stable price, stable source of supply (outweighs the risk of not meeting the requirements
•	it’s beneficial to seller (K (buyer either take and pays the minimum, or just pays)
•	compensates seller for being ready at all times to meet buyer’s maximum req’nts
•	Not many industries work like this: like gas pipelines - monopolists (very difficult to get natural gas through spot market because it’s very hard to deliver - through pipelines)
•	Very supply-short situation
•	Take or pay K is a naked exercise of market power by seller
•	Court upholds take or pay K (even though it is only imposed by a monopolist or a seller who wants to squeeze a buyer)

Force majeur clause of K didn’t apply:
(1) 	IMC could have paid for its requirements, even if environmental regulation wouldn’t let it take the gas (when promisor can perform K in either of 2 alternative ways, the impracticability of one alternative does not excuse promisor if performance by means of the other alternative is still practicable)
(2) 	Force majeur clause required notice, and adequate notice by IMC wasn’t given
•	When does it become impracticable for mining co to perform when it cannot pay
•	As long as you are solvent - can make payments - no impracticability
•	Force majeur clauses - specific allocation of risk devices (cover things that area of impracticability may or may not cover)
•	They are often ignored as boilerplate, but they are very important: was such clause reviewed, negoiated? (here - probably yes)
•	IMC probably should have foreseen such environmental regulation (why isn’t it in force majeur clause, it’s been going on for 5 years - poor lawyering?)

Should environmental regulation be viewed more as market change or an earthquake?
•	Here, mining co worked closely w/environmental board - court wants co’s to cooperate with gov’nt
•	But you cannot generate impracticability and then go to court and ask for excuse of performance: under UCC - it’s breach of good faith

Short outline
On whom do you place the risk
1. 	who had the most knowledge that the even might happen
2. 	ability to avoid or insure against
3. 	ability to find alternative remedies, sources of supply

Market shifts
1. 	risk of market changes is inherent in long term Ks
2. 	normal business cycle
3. 	Ks are risk shifting devices
4. 	shift caused by cataclysmic event

Foreseeability
1. 	still have to negotiate terms
2. 	too costly to insure against every event
3. 	so foreseeable that it must be included among the business risks (in force majeur clause)

The nature of the event matters
1. 	business downturn is not an excuse
2. 	acts of nature might be excuse
3. 	change in background law is a basic assumption of K

MODIFICATION
UCC 2-209, Rest 73, 89

Under common law, modification needs additional consideration to be enforceable.

UCC 2-209
(1) An agreement modifying a K within this Article needs no consideration to be binding.
(2) “No oral modification clause”:  If the original written agr’nt states smth to the effect that “this K may not be subsequently modified except in writing,” that clause will be enforced, and any subsequent oral modification is not binding (but except as between merchants such a req’nt on a form supplied by the merchant must be separately signed by the other party).
You can modify K simply by saying it, unless K requires amendment in writing or unless the other party’s attempt is to extort more money in bad faith.
(3) The requirements of the statute of frauds must be satisfied if the K as modified is within its provision (St of F UCC 2-201)

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)

Austin Instrument
Economic duress may also be employed against a coerced modification.  Economic duress needs (1) improper threat (of breach), and (2) the lack of any reasonable alternative

If UCC doesn’t apply - Rest 73, 89

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
	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)

Alaska Packers	pre-existing duty rule
Held, against fishermen.  The agreement to pay the extra money was w/o consideration, since by agreeing to work on the way back to SF, Ps were simply agreeing to do what they were already bound to do under K.  Also, Ps’ conduct was coercive (D had no alternative).

Schwartzereich v. Bauman-Basch
•	Rescission of the first employment K was effective, since it was mutually assented to.
•	The time of rescission, whether a moment before or at the same time as the new K, is unimportant.
•	Any change in an existing K, such as a modification of the rate of compensation, must have a new c’n to support it.  Where, however, an existing contract is terminated by consent of both parties and a new one is executed in its place and stead, the mutual promises are again a c’n.
•	The determining factor is the rescission by consent.

Crane v. Progressive
•	The parties must be able to rely on objective, unequivocal manifestations of assent.
•	The secret intention of Progressive never to pay the higher price is not keeping with good faith requirement of the UCC of honesty in fact.
•	The buyer must display some protest against the higher price in order to put seller on notice that the modification is not freely entered into.

JUSTIFICATION FOR NON-PERFORMANCE:
EXPRESS CONDITIONS AND MATERIAL BREACH

EXPRESS CONDITIONS
Rest 227, 229

•	If express condition is not met, obligation to perform can be suspended, unless the condition was waived by the party who is benefited from it
•	Conditions enable you to enter into binding Ks at the outset even if performance is not guaranteed
•	Ideal position - never be bound yourself, bind the other party
•	Here, express conditions built into Ks create limit on the other party’s obligation to perform
•	Conditions can be waived by the party who is benefited by the condition
•	Courts don’t like forfeiture - 227(1) - mechanism for courts to interpret the language of conditions and give relief to the party seeking excuse; the court will take evidence if the intent of the parties was different
•	You can enter into conditional K: obligations are only subject to conditions in K, but obligations are not certain - less strong form of K, bec it can be terminated - more risky than K, but less risky than option (party that has option may or may not exercise it - risk to the other party - but expense/money is supposed to offset the risk)
•	The least enforceable - most risky - letter of intent
•	Strict compliance with an express condition is ordinarily required
•	In some instances, the non-occurrence of a condition can be excused, so that the other party nonetheless must perform

Inman v. Clyde	express conditions are strictly enforced; court enforced literal terms of K, written K is the first place to look - traditional common-law view

Jones Associates	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)
•	The provision “Engineer shall be responsible for obtaining King County approval for all platting” is a promise, rather than condition precedent
•	Condition precedent: is an event occurring after the making of valid K which must occur before right to immediate performance arises; nonoccurrence of condition prevents the promisee from acquiring a right or deprives him of one but subjects him to no liability
•	Breach of promise: subjects the promisor to liability for damages but does not necessarily discharge the other party’s duty of performance
•	Where doubt - interpret as promise
•	Where K-tual language is ambiguous, search out the parties’ intent
•	Ambiguous K language is strictly construed against the drafter
•	Held, obtaining approval was intended to be P’s duty under K, but not a condition precedent to performance
•	Since obtaining approval was not w/n P’s control, it was unusual for it to assume the risk of forfeiture

US Fidelity v. Bimco		waiver
A waiver may be effective after expiration of the time of performance of a condition has expired, if the condition which is assented to have been waived is not a material part of the agreed equivalent of the obligor’s promise and its nonperformance does not materially affect the value received by the obligor.

J.N.A. Realty		Rest 229  Disproportionate forfeiture to one party if condition is enforced balanced by harm suffered by the other party if condition is not enforced
Here, equitable claim
Substantial forfeiture to tenant, no loss to landlord
Tenant was merely negligent in that it was not aware of 6-month notice for renewal period; landlord strategically took advantage of it, while knowing that tenant was doing substantial improvements to the property

Problem 10-1

Residence agr’nt contains 2 express conditions
4.  that Dandy be examined by physician of Valley’s choosing (she was examined and approved)
6.  probationary period of 90 days during which the agr’nt can be canceled, before obligations become fully binding on both parties (here, from Jan’9 to Apr’9)
Dandy paid $125,000 Accommodation Fee, but from Apr’5 till Apr’11 she was unconscious and till Apr’14 in the hospital, heart disease, want to get out of K.
If she was fine, but collapsed after Apr’9, the claim that she met condition wouldn’t be available
Her request for refund in writing was denied by Vintage Valley.
She wants to know if she can get out of agr’nt.
What do you tell her and why?

1.  What are her goals?  What are her preferred outcomes?
	To get refund of all or as much as she can of the Accommodation Fee paid by her.

2.  We need to see the K to determine if she has defenses under the K

There are 2 express conditions in K: can she say that those conditions are met/not met and so be excused from performance?

1st condition: notice of termination w/n 90-day period
Does she still retain her power to terminate?  Show that she met condition under K (not in express terms): we want her to retain the power to revoke even though she didn’t revoke strictly w/n 90 days (her failure to give notice w/n 90 days does not terminate her power to revoke)
Can we interpret this condition precedent, excuse it, extend it?
Is letter of Apr’16 an effective notice of termination?

•	K is not under UCC.
•	Originally under common law express conditions were strictly enforced (Inman case)
•	language of K is best evidence (Parol Evidence Rule)
•	parties had ability, time, choice to make and read K, and if they didn’t want K, could refuse to enter into K
•	in Inman, court enforced literal terms of K: written K is the first place to look

Literally, probationary period expired on Apr’9.  Can we argue against that under the K?
We are asking the court to not give strict interpretation to condition precedent, we ask that 90-day period be suspended for the time she was incapable of giving notice
	Dandy was unconscious when probationary period expired (in J.N.A. Realty somebody was allowed to ignore the condition when it was neg, but here she wasn’t neg, she was unconscious)
	She wrote the letter right after she returned from hospital: notice was timely
	Under common law, unconsciousness matters

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.
(2) Unless the K is of a type under which only one party generally undertakes duties, when it is doubtful whether
(a)	a duty is imposed on an obligee that an event occur, or
(b)	the event is made a condition of the obligor’s duty, or
(c)	the event is made a condition of the obligor’s duty and a duty is imposed on the obligee that the event occur,
the first interpretation is preferred if the event is within the obligee’s control.
(3) In case of doubt, an interpretation under which an event is a condition of an obligor’s duty is preferred over an interpretation under which the nonoccurrence of the even is a ground for discharge of that duty after it has become a duty to perform.

Here, in resolving doubts whether strict 90-day limit should be excused because we prefer interpretations that reduce her risk of forfeiture unless she was in control of condition or assumed the risk.  Valley is the obligor (has duty to return the money), she is the obligee

1) 	it was not within her control (she was unconscious)
2) 	it would be forfeiture if we enforce condition strictly
3) 	whether or not she assumed the risk

•	What was the purpose of 90-day probationary period - to let her look at the place or for Valley to see if she is suitable for residence
•	the purpose of condition will be defied if less than 90 days; she was hospitalized, so she is still entitled to 3 full months of residence there
•	condition would cause disproportionate forfeiture
•	materiality of exchange: Valley would say that it is material to exchange that we get notice by Apr’9; our response - we’re asking for just 1 week in a situation when she was incapacitated
•	there is a wait list to get residence in this nursing home, so they’ll be able to get another resident right away
•	so, it’s not material to nursing home, whereas it is material to her
•	balance between losing half of her life savings v. Valley loosing nothing - disproportionate forfeiture
•	Valley would say that she understood the risk when she signed K, so this is exactly the risk that she undertook, including the risk of forfeiture, and the fact that she collapsed on Apr’5 is a fortuitous circumstance

Another claim

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.

Revocation w/n 90 days would cause disproportionate forfeiture unless its occurrence was a material part of the agreed exchange.

1) disproportionate forfeiture
	significance of the lateness of the notice to Valley is minimal, compared to consequences to her of losing half of her life savings

2) materiality
	how important is this strict adherence to the parties

For whose benefit does this condition exist - benefit to both parties
But arg’nt: she has to have full 90 days in order to make up her mind, time when one party was out should not be counted; so restriction should be lifted

2nd condition: that she be examined by Valley’s physician and be found in satisfactory health
She was approved, but in fact she wasn’t in satisfactory health; to Valley her health could be satisfactory
Valley would argue that this condition was to their benefit, so they could waive it
	party to whose benefit condition is can waive it
But arg’nt: this condition was also to her benefit
Valley would say: she could consult her own physician independently
(If doctor was ethically obliged to reveal to her what her health was, and he did discover that she was ill, she would have a claim against the doctor for fraud and non-disclosure).

Defenses to K

1. Mistake - so she still has right not to accept the K
	made about her health; existed at the time of K (assuming that what her doctor told her was correct)
If Valley’s doctor didn’t know about it - 
	
Mutual Mistake  Rest 152, 154
1. it is a basic assumption that she would be in good health for some reasonable time: to her - yes
2. does she bear the risk of mistake
	Valley would argue that she does - it’s in K; her failure to get her own physical exam - she accepted limited knowledge as sufficient under Rest 154(b)
	She would argue: she didn’t accept this limited knowledge, she should have been told about her condition (doctor was negligent or didn’t tell her on purpose) - Valley should bear the risk

Unilateral Mistake  Rest 153, 154
Valley know about her condition, but she didn’t know about it at the time of K
(a) the effect of the mistake is such that enforcement of the K would be unconscionable
	she can show disproportionate forfeiture, materiality, or
(b) the other party had reason to know of the mistake

2. Impracticability or Frustration of Purpose

K is still practicable - both parties can still perform
Frustration of Purpose: her purpose was long-term care (but K hasn’t lost all its value to her); she can argue that price of $125,000 was excessive for about 9 months, but courts don’t like these claims

3. Fraud or Non-disclosure

Probably no active misrepresentation - we need more factual information
Wrongful non-disclosure  Rest 161(b)
Rest 169(a): relationship of trust and confidence; doctor’s obligations to her (Valley doesn’t have obligations until she lives there)
Rest 169(b): special skill
Rest 164: it induced her assent not to cancel K (not to revoke after the medical exam)

Advice to the client: have her lawyer contact Valley; not so strong claims, but Valley wouldn’t want this story to be known; maybe it’s in Valley’s interest to give her the money and give her slot to someone else.

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.

MATERIAL BREACH

If one party says you breached, say - no, my client didn’t breach, you breached

Rest 235  Grounds for suspending your performance
(1) 	Full performance of a duty under a K discharges the duty.
(2) 	When performance of a duty under a K is due any non-performance is a breach.
	Any non-performance is a breach, but it may not be a big enough breach: has to be material and uncured - total 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
(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 (how long breach has to be uncured before deal can be called off)
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	Partial breach	
relieves/discharges the nonbreaching party from his duties under K; he is justified in refusing to perform his obligations and may enter into alternative Ks (like Spindler)	doesn’t discharge the other party, who must continue to perform his obligations under K	
the injured party is entitled to recover not only actual damages accrued as a result of the breach, but also any future damages that will reasonably flow from the breach	right to damages only for the actual harm that has resulted to date, not for future harm	

Sackett v. Spindler		total breach: material and uncured breach
•	Acquisition agr’nt: purchase of corp’n.  Sackett was supposed to buy stock of Spindler’s corp’n.  Stock purchase agr’nt.  Sackett/defaulting buyer brings suit against Spindler/seller.
•	Issue:  Whether Sackett’s duty to consummate the K or to respond to Spindler in damages for the former’s failure to perform was in any way discharged by Spindler’s conduct.
•	Sackett says: Spindler’s letter of Oct’5 repudiated K, Spindler breached, so Sackett is entitled to specific performance or substantial damages
•	Spindler’s action is justifiable only if Sackett’s breach was total, not partial.
•	Whether breach is total or partial depends on materiality.
•	Held, Spindler was justified in terminating K on Oct’5 and treating Sackett’s nonperformance as total breach.
•	What is Sackett doing?
	Trying to get Spindler to breach
	He doesn’t have money and is trying to stall the time
	Strategy to re-negotiate the price
	Trying to keep Spindler believing that the deal will be done
Spindler ultimately treats K as completely breached and finds an alternative buyer for some of the stock

What could Spindler’s lawyers put in K?
1.	interest assessed on late payment
2.	banks put acceleration clauses - if you miss a month’s payment, so long as you can still cure by paying late with interest, they can’t call off the loan; at the end of grace period, the entire debt is due and owing; bank can waive it
3.	cross-default clause - if you default on smth else, this debt is due also
4.	drop-dead date: date when breach becomes material (as long as you don’t waive it by words or action; can say I’m willing to listen to you, but I’m not waiving my rights); lawyer can make an exploratory call (say I don’t know how my client will react, but I think it’ll be best for him)
5.	time is of the essence clause: real estate usu. have it (can be waived)
6.	try to get some security for the K
•	in the form of collateral (one way to secure payment)
•	letter of credit (letter from you to credit co/bank that it will hold some money on your account open)
7. 	parties can make performance by a stated date a condition to their agreement, in which case delay beyond that date (unless the condition is excused) will result in discharge
Damages awarded to Spindler here: K price minus market value of the goods

Jacob & Youngs v. Kent	substantial performance
•	Contractor contracts to build a house for the owner.  A construction K calls for the installation of Reading pipe.  Contractor installs only 1 mile of this pipe, and the rest is the other pipe of same quality.  Owner objects and refuses to pay the remaining K amount unless contractor installs the Reading pipe.  K-tor doesn’t want to replace the pipe, because he’d have to rip out the whole house; says there was no breach, sues the owner.
•	Cardozo: K was breach, but the breach was insufficient to excuse payment.  K-tor substantially performed, and the defect was trivial.
•	Here, expectations damages - benefit of the bargain
•	Measure of damages is “not the cost of replacement, which would be great, but the difference in value, which would be either nominal or nothing”: not the replacement costs, but the difference in value of the house with the Reading pipe in it and the other pipe in it
•	To hold otherwise would cause K-tor to suffer a forfeiture, w/o any correspondingly great benefit to owner; “the cost of completion is grossly and unfairly out of proportion to the good to be attained.”
•	Dissent: K called for Reading pipe only
•	Cardozo: different view of what the bargain was: owner wanted the pipe of Reading quality, not the particular Reading pipe - proof of quality, cost, fungibility of pipe

•	Substantial performance: not uniformly adopted in the states.  Many Ks are complex; usu. there are mistakes: the more complex the K is, the more likely some slippage, some changes along the way
•	Usu. quality is a real issue in these Ks, and here quality was met - equivalent was provided
•	We like objective use of Ks to avoid forfeiture, not subjective: here, one party almost entirely performed in good faith
•	Parties can make express conditions to obligations of K to provide notice to the other party that this is really important
•	Traditionally, we try to respect express terms of K and we don’t inquire into relative value, as long as there is consideration
•	Sub. perf’ce: courts get around express language of K, where other defenses are available

Sub. perf’ce relates to material breach: whether breach is material or non-material - same factors under Rest 241
“Considerations partly of justice and partly of presumable intention are to tell us whether this or that promise shall be placed in one class or another”
Courts use 2 tools to decide if sub’l perf’ce is applicable: it’s an equitable doctrine: allows court to move away from express language of K
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

REMEDIES

Equitable remedies

Specific performance (sale of goods: in output and requirements Ks, where the item is not in ready supply; no other vendor will enter a similar fixed-price, long-term K; so court may grant specific performance ordering D to continue with the K)

Injunction

Reformation: an equitable remedy by which a court will modify a written agr’nt to reflect the actual intent of the parties, usu. to correct fraud or mutual mistake.

Limits on the willingness of the court to grant them:
•	Equitable relief will not be granted unless damages are not adequate to protect the injured party
•	K terms have to be definite enough to enable to court to frame an adequate order
•	Court will not grant equitable relief where there are likely to be significant difficulties in enforcing and supervising the order

Terms like:
	forfeiture
	gross disproportionality
	fair
	reasonable
	justice
Claims like:
	unconscionability
	duress
	undue influence
	mistake (who bears the risk)

Not impracticability and frustration of purpose

Liquidated damages clause: provision in K specifying the consequences of breach.
Consequential damages: the profits which the buyer could have made by reselling the contracted-for goods had they been delivered (but these profits have to be reasonably foreseeable at the time of K) (not sellers)
Incidental damages: transportation expenses, storage expenses and other small but direct expenses associated with the breach and buyer’s attempts to cover it.

Rescission - put parties back where they were before
1.	a party’s unilateral unmaking of a K for a legally sufficient reason, such as the other party’s material breach; restores parties to their precontract positions
if the other party materially breached, you don’t owe anything, you get to keep what the other party gave you
2.	an agreement by contracting parties to discharge all remaining duties of performance and terminate the K

Damages
Expectation/benefit of the bargain - to put P in the position he would have been had the K been performed
Restitution - value of the benefit conferred (value of the services rendered)
Reliance - out of pocket damages (what you spent in reliance on the other party’s words or action)

Substantial performance: where one party sub’ly performs (i.e. doesn’t materially breach), the other is not relieved of his duties.  If the latter refuses to perform, the sub’ly performing party has an action for breach of K.  A party who sub’ly performs may sue for ordinary expectation damages for breach of K, if the other party fails to perform.  The other party can counterclaim for damages he has suffered from the P’s failure to completely perform.

Nominal damages: where a right of action for breach of K exists, but no harm has been done or is provable, P may get a j’nt for nominal damages - recover a small sum that is fixed s/o regard to the amount of harm he has suffered.