Tuesday, August 18, 2009
In his first post as guest blogger, Alan White explained his reasons for starting with Peevyhouse. Alan's arguments were enough to persuade me to move Peevyhouse into the number 2 spot, but I try to ease the students into the study of contracts with a set of concepts that I think most students find less challenging than damages. The contracts course I took as a law student began with damages, and there is not a thing I would have changed about my experience with that course (other than my grade). Nonetheless, in retrospect I must confess that I was bewildered for the longest time as to what exactly it was that we were studying. It was a pleasant bewilderment for me, but I know that some of my fellow students were not as appreciative. And I have a sense that my own students grasp the material more easily if we take the typical contractual transaction through from beginning to end, with many gestures toward the end along the way.
So, I begin not with Peevyhouse, but with Hurley v. Eddingfield. The case hails from Indiana, which is a good reason to start with it if you teach in Valparaiso. It also gets across a simple point, which was my no means intuitive to me when I was a law student: the concept of freedom of contract includes the principle that there is no freestanding duty to enter into contractual relations with others. From there, I confront my students with the opposite end of the specturm: the law is relatively indifferent to our actual intentions when determining intent to be bound. I illustrate this with a case, Ray v. William G. Eurice Bros. in which a small construction company is bound to a perhaps unreasonable building contract that the builders did not read with any attention. The case also illustrates expectation damages and I make the most of that. My students are often unsympathetic to the builders in Ray, so I have them look at an earlier version of the Google terms of service, included in the Farnsworth (ed.) Selections for Contracts, which serves as my statutory supplement. We then talk about the frequency with which they (and I) download software subject to license agreements that they (and I) do not read and thus become bound by terms that we would not have agreed to if we 1) read them; 2) understood them; and 3) had any bargaining power.
So, while Alan begins with a case that illustrates the limitations of standard remedies for contract breach, I begin with cases that illustrate other ways in which contracts doctrine refuses to protect those who will not or cannot protect themselves.