Contracts Commons^™

Promise Fulfilled And Principle Betrayed, James J. White

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My responsibility in this paper is to address three questions. (1) How has the legal realist body of thought affected contract law and its application? (2) How will contract law and its application be affected in the future by realist thinking? (3) If the realist viewpoint were fully accepted, what kind of system would result and how would contract law be affected? Because my focus is upon a principal legislative monument to realism, Article Two of the Uniform Commercial Code (the "U.C.C."), and upon its drafter, Karl Llewellyn, I will not answer any of the three questions explicitly. By focusing …

Foresight And The Law Of Servitudes, Stewart E. Sterk

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The article explores the debate over party autonomy in the law of servitudes, particularly focusing on the role of foresight and transaction costs. It argues that while freedom of contract is a foundational principle, the limitations of human foresight and the potential for high transaction costs justify limited judicial intervention to modify or terminate servitudes when circumstances change. The author critiques Professor Epstein's argument that perfect foresight would obviate the need for intervention, emphasizing that real-world contracting parties often fail to anticipate future changes adequately. The article ultimately advocates for a balanced approach that enforces servitudes but allows for judicial …

Neighbors In American Land Law, Stewart E. Sterk

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The article critiques the foundational principle of land law known as the "geometric-box allocation," which assumes landowners have absolute control over their property within defined boundaries. While this model provides clarity and facilitates private bargaining, the analysis argues that it often fails to account for externalities, social norms, and bilateral monopoly situations, leading to inefficiencies. The author challenges the assumption that private bargaining will always produce efficient results, particularly in low-transaction-cost scenarios, and highlights the limitations of using intent as a justification for cross-boundary allocations. The article ultimately suggests that land law doctrine reflects and reinforces both individualist and non-individualist …

Text Into Theory: A Literary Approach To The Constitution, Richard H. Weisberg

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The article explores the evolving dialogue between legal scholars and literary theorists, particularly focusing on how judicial opinions can be viewed as narrative fictions. It challenges traditional notions of textual autonomy in legal interpretation, suggesting that meaning is not fixed but is shaped by subjective readings. The analysis critiques the dichotomy between interpretivism and noninterpretivism, arguing that both approaches are inherently subjective. Drawing on historical and structural interpretations of the Constitution, the article advocates for a balanced approach that considers both textual integrity and communal values, emphasizing that constitutional truths are embedded within societal ideas rather than being strictly majoritarian …

Use And Non-Use Of Contract Law In Japan, Whitmore Gray

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This article first defines the scope of enquiry, then surveys some of the existing literature, and finally, presents the results of my preliminary survey interviews and questionnaire. It is my hope that it will serve as a basis form discussion leading to better definition of the problems for research in this area, and will suggest ways to proceed to gather the information necessary for more sophisticated exposition and commentary.

Eight Cases And Section 251, James J. White

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[A] continuing sense of reliance and security that the promised performance will be forthcoming. . . is an important feature of the bargain-so states Comment 1 to section 2-609 of the Uniform Commercial Code. At common law, one party to a contract might suffer considerable and justifiable anxiety about the other party's willingness or ability to perform and yet have no legal basis for cancelling the contract or for procuring additional assurances from the other party. Section 251 of the Restatement (Second) of Contracts is designed to provide a remedy for one party's reasonable fears that the other party to …

Contract Law In Modern Commercial Transactions, An Artifact Of Twentieth Century Business Life?, James J. White

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Diligent first year law students study contract law with a passion previously reserved for romantic objects and religious idols. Their professors lead them in extensive and difficult intellectual explorations of the wilds of contract law. There are careful analyses of why damage recovery X will stimulate performance Y, why recovery A is appropriate to encourage the aggrieved party to return to the market, and so on and so forth. Lurking behind this year long analysis are several inarticulate hypotheses: that they make rational evaluations of the threat of legal sanctions; that they respond in other varied and subtle ways to …

Does The Constitution Mean What It Always Meant?, James W. Nickel, Stephen R. Munzer

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No abstract provided.

Enforcement Of A Promise In Modern American Law (Gendai Amerikaho Ni Okeru Yakusoku No Kyosei), Whitmore Gray

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A series of seminar lectures given by Whitmore Gray in Tokyo, Japan during October 1968. Six articles were subsequently published in “Kaigai Shojihomu” (The International Business Law Bulletin) between July 1969 and May 1970.

The sixth and final installment describes the history of contractual enforcement in the U.S. and highlights changes introduced through adoption of the UCC.

Contract Formation Under The Uniform Commercial Code (Ucc Ni Okeru Keiyaku No Seiritsu), Whitmore Gray

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A series of seminar lectures given by Whitmore Gray in Tokyo, Japan during October 1968. Six articles were subsequently published in “Kaigai Shojihomu” (The International Business Law Bulletin) between July 1969 and May 1970.

The second installment discusses issues related to requirements compelling completion of a contract or pushing the issue to court.

Contract Interpretation Under The Uniform Commercial Code (Ucc Ni Okeru Keiyaku No Kaishaku), Whitmore Gray

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A series of seminar lectures given by Whitmore Gray in Tokyo, Japan during October 1968. Six articles were subsequently published in “Kaigai Shojihomu” (The International Business Law Bulletin) between July 1969 and May 1970.

The fourth installment discusses further considerations and principles that impact contract interpretation.

Contract Interpretation And The Uniform Commercial Code (Ucc Ni Okeru Keiyaku No Kaishaku), Whitmore Gray

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A series of seminar lectures given by Whitmore Gray in Tokyo, Japan during October 1968. Six articles were subsequently published in “Kaigai Shojihomu” (The International Business Law Bulletin) between July 1969 and May 1970. The third installment introduces the basic principles of contract interpretation.

Remedies For Breach Under The Uniform Commercial Code (Ucc Ni Okeru Keiyaku Furiko Ni Taisuru Kyusai), Whitmore Gray

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A series of seminar lectures given by Whitmore Gray in Tokyo, Japan during October 1968. Six articles were subsequently published in “Kaigai Shojihomu” (The International Business Law Bulletin) between July 1969 and May 1970. The fifth installment discusses the difficulty of remedies and various methods of enforcement.

Washington Timber Deeds And Contracts, Ralph W. Johnson

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The law of Washington concerning the interests conveyed by timber deeds and contracts is foggy. Many vital questions are still totally unanswered, or have been left in confusion, by the cases in point. The principal area of doubt revolves around the question of whether standing timber, which has been sold separately from the land on which it stands, is realty or personalty. The answer is vital for many reasons. It determines whether a husband has power as manager of the community to convey community-owned timber without his wife's signature, which statute of frauds applies to a timber transaction, which recording …

Commercial Instruments, The Law Merchant And Negotiability, Ralph W. Aigler

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“Until recently apparently no serious attempt had been to make a comprehensive examination into the origins and history of commercial instruments or to explain the special doctrines attached to negotiability….

“The bill of exchange, it is said, developed as a bit of machinery to give effect to the medieval contract of cambium which was concerned with the special case of the exchange of money for money. With the growth of foreign trade the difficulties and dangers of payments multiplied. Naturally those whose business it was to exchange monies were resorted to in this connection. They, in turn, out of necessities …

Privity Of Contract And Tort Liability, Herbert F. Goodrich

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Two parties, A and B, make a contract whereby B undertakes to perform certain services for A. He performs his task in a negligent manner, and as a consequence C, a third party, suffers injury. Has C rights against B?

Mutuality In Specific Performance, Edgar N. Durfee

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Prior to the present century, the subject of mutuality in specific performance was an unsolved puzzle. The decisions of the courts were in the main wise, but the attempts both of courts and text writers to formulate a statement of the principle governing these decisions were far from happy. After two centuries of litigation and discussion, the current formula was that the remedy must be mutual, must be equally available to both parties. The worst fault of this formula was its plausibility. Equality is equity, and perfect equality between the parties to a contract is not attained unless remedies are …

Gratuitous Partial Assignments, Edwin D. Dickinson

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Is it possible to make an effective and irrevocable assignment by way of gift of part of a chose in action? There are no obvious reasons why it should not be possible. Gifts of a great variety of valuable rights are favored and protected by the law. Why not a gift of part of a chose in action? An answer deduced from the decided cases is not in all respects as certain and satisfactory as one might anticipate. Perhaps it is not too much to say that the answer is problematical. The problem invites interest, not only because it appears …

Is The Assignee Of A Contract Liable For The Non-Performance Of Delegated Duties?, Grover C. Grismore

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IT is an oft recurring statement that "rights arising out of a contract cannot be transferred if they are coupled with liabilities." It is such obscure statements as this which give rise to and perpetuate error, and an examination of the cases will show that this one has been responsible for no little confusion in regard to the matter of assignment in the law of Contract. Our courts, under the pressure of a well filled docket, are prone to seize upon a broad generalization of this kind without examining its true meaning or defining its proper limitations. It is high …

Conflict Of Laws--The Law Controlling The Validity Of A Married Woman's Contract, Victor H. Lane

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The case of Poole v. Perkins (Va.), IO S. E. 240, involves that troublesome question of whether the validity of a contract is to be ruled by the law of the place where made, or by that of the place of performance.

Effect Of An Agreement By One Person To Supply Another's 'Requirements' Of A Given Commodity, Grover C. Grismore

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The cases show that the kind of agreement indicated by the heading of this note has become an established part of business usage. In normal times such an agreement is likely to be carried out to the entire satisfaction of both parties, without question, but, in a period of changing business conditions and abnormal price flctuations such as we have witnessed during the last few years, nice questions of interpretation are likely to arise, as is well illustrated by the recent case of Oscar Schlegel Mfg. Co. v. Peter Coopers Glue Factory, (1920) 179 N. Y. S. 271.

Contracts For The Benefit Of A Third Person In Michigan, Grover C. Grismore

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In the recent case of Preston v. Preston the supreme court of Michigan had occasion to consider the question as to whether or not one for whose benefit a contract is made has any enforcible rights. The suit was one 'in Chancery, the donee plaintiff was an invalid, and every consideration of justice and equity demanded that she be given relief. The court had, however, to face the fact that in recent cases it had indicated its opinion to be that the third party beneficiary has no rights. In Modern Maccabees v. Sharp, (1910) 163 Mich. 449, 456 the court …

The Seller's Action For The Price, John B. Waite

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WHEN a contract of sale has been broken by the buyer, before title has passed according to the usual rules of presumption, there arises the very practical question whether the seller can sue him for the purchase price, as such, or is limited to a suit for damages only. In the latter case his damage may happen to equal the purchase price, but it is usually considerably less than that amount. If the seller can recover the purchase price, as such, it must be because that price is legally due him as a consequence of the contract. The ultimate inquiry …

Subsequent Impossibility As Affecting Contractual Obligations, Ralph W. Aigler

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Where the law creates a duty or charge and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. * * * But where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Paradine v. Jane, Aleyn, 26, a case not really involving a question of impossibility. Most discussions of the effect of subsequent impossibility of performance …

Implied Condition Involving Impossibility Of Performance, Edson R. Sunderland

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Early in 1914 the defendants contracted to sell to the plaintiffs a quantity of Finland birch timber. The practice was to send the timber direct by sea from Finnish ports. Before any timber was delivered the war broke out and the presence of German warships in the Baltic made the direct shipment by water impossible. The contract contained no war, force majeure or suspension provision. Held, that the contract was not dissolved, and the defendants were liable for damages for non-delivery of the timber. Blackburn Robbin Co., Lim. v. Allen & Sons, Lim. (1918) 87 L. J. K. B. 1085. …

Contract Of Infant--Evidence, Competency Of Witness Under Survivorship Statute, Victor H. Lane

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Two questions are presented by the case of Sigiaigo v. Signaigo, (Mo. 1918), 205 S. W. Rep. 23: First, the enforcibility of the contract of an infant, fully performed by her, to live with a man and his wife as their adopted child so long as they should live, in consideration that the infant should have all the property of the foster parents upon their death; and Second, the competency of the consenting mother of the infant to testify in support of the infant's claim.

Re-Writing The Statute Of Frauds: Part Performance In Equity, Willard T. Barbour

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One of the most striking examples of judicial legislation is that process whereby courts of equity, from the end of the seventeenth century onwards, have in no small measure re-written the Statute of Frauds. Exception was added to exception until the doctrine kmown as "part performance" became firmly established. The doctrine was not evolved consistently and the basis of some applications of it is obscure. One who follows Sir Edward Frys admirable but futile attempt (Fry, SPECIFIC PERFORMANCE (ed. 5) §§ 580, ff.) to systematize the variant decisions of the English courts must feel doubtful whether any single theory will …

Performance Of An Existing Obligation As Consideration For A Promise, John B. Waite

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The dictum that if there be nothing in a rule flatly contradictory to reason the law will presume it to be well founded, and that the office of the judge is "jus dicere and not jus dare", is responsible for much agony of construction and tortious logic on the part of courts torn by desire to evade it in the interest of modern ideas of right. There is a trilogy of accepted legal principles which it has been particularly difficult for the courts to adhere to in spirit or to repudiate in letter. They are the propositions, that for a …

Effectiveness Of Oral Contracts, Within The Statute Of Frauds, John B. Waite

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In Morris v. Baron and Co., (House of Lords, 1917), 87 L. J. R. (K. B.) 145, plaintiff and defendant had entered into a contract of sale and plaintiff, as vendor, had delivered part of the goods agreed upon. Delivery of the remainder would have been a condition precedent to any recovery by the plaintiff. This contract, however, was followed by a second one, not in writing, whereby plaintiff was absolved from delivering the rest of the goods, but by which he agreed that he would deliver them if the defendant should so request. Thereafter plaintiff brought this action for …

The 'Right' To Break A Contract, Willard T. Barbour

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It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …