ContractsProf Blog

New Topical Category: Limericks

Thanks to Joe Hodnicki of the Law Professors Blog Network and to Frank Snyder, whose limitless indulgence permits me to post here, we now have a new topical category for the Limericks fans out there.  It has not yet been fully populated, but I hope to do so over the next few weeks.  Then, those of you who want to gather the full collection of Limericks for Lawyers can do so by clicking on "Limericks" in our Topical Archive.  You can have a look at what's there now here.

[Jeremy Telman]

Limerick of the Week: Gorton v. Doty

After a long hiatus from Limerick posting, I have decided to share with the blog's readership a selection from Volume II of my collection of Limericks for Lawyers.  Volume II summarizes cases covered in my Business Associations course, but many of the cases for that course raise contractual issues, so I figure that's a sufficient hook to permit me to post them here.

I teach the course using Klein, Ramseyer and Bainbridge's casebook, so those of you familiar with that book will know the cases.  Volume I of the Limericks for Lawyers series was based on my first-year contracts course, in which I used Knapp, Crystal and Prince's casebook. For the coming year, I am switching to the Conracts: Law in Action book, which means new cases, and yes, new contracts Limericks coming in the Fall.  This is not a knock on the Knapp book, of course, which I have enjoyed using.  I just need to use some new materials so as to awaken from my dogmatic slumbers.

So, without further ado.  The first case I teach in Business Associations is Gorton v. Doty, in which a high school teacher (Doty) is repaid for her patriot efforts on behalf of her school (Soda Springs) football team with a tort claim.  She loaned her car to Coach Garst so that he could drive the team to a game.  The Gorton boy was injured when Coach Garst got into an accident, but Ms. Doty was held liable as the principal since the court found that she had effectively made Coach Garst her agent by conditioning the loan of her car on his agreement to be the sole driver.

Gorton v. Doty

The court made Ms. Doty the heavy
When Coach Garst demolished her Chevy.
When Soda Springs lost the game,
Coach accepted the blame,
But the principal pays the tort levy.

[Jeremy Telman]

Transactional Approaches to Teaching

I have been very impressed since (re)joining the teaching profession by the amount of time and energy that law professors devote to pedagogical concerns.  This devotion to teaching has been on display recently on the contracts profs listserv, based on a discussion initiated by Villanova's Chaim Saiman (left).  Professor Saiman asked the group if and how contracts profs incorporate transactionally oriented skills into final examinations.  The result was a broad-ranging and passionate discussion that could not possibly be summarized in this space.  Or so one would think.  Nonetheless, the most recent post on the thread attempts to do so.  It comes from the thread's initiator, Professor Saiman, who has given me permission to post an edited version here.  Summarizing the discussion and adding his own musings, Saiman writes:

Initially the question was a very limited one about test design. . . . The consensus from the list (which I agree with) appears to be as follows:

1. It would be a very hard idea to have students draft provisions free-formed.  They lack practice doing this, and it would advantage students with a business background. Moreover, the exercise is a bit sterile unless there is another party pushing back on the provisions, and I for one can't figure out a way to do this on a standard law school exam.

2. A more promising idea, thought not without its shortfalls, would be to describe some background and negotiations, and then have the "issue spotter" take the form of drafting a memo to the client commenting on contractual language that I would provide on the exam.  The goal would be to test if they can see what problems / risk this language might raise down the road and to see if they can identify whether the written contract conforms to what the client thinks he is signing.  I can imagine this method effectively testing what Farnsworth calls "the law of the contract," e.g., interpretation, parole evidence, conditions, performance and breach, implied terms, default rules and repudiation.

. . .

Invariably, this question about test design became a question of what do we teach in contract class (and law school) and why.  This is a large question worthy of much thought, and here at Villanova we are in the midst of undertaking a curriculum review so these issues are on our minds.

FWIW, my own view of the topic . . .

FWIW, my own view of the topic is that what we do in contracts depends on what we do in the first year as a whole.  In my vast experience of 19 months, I have concluded that sometimes we teach doctrines so that the students know the doctrines, and sometimes (especially in the first year) we teach doctrines as a way of teaching skills (e.g., rule against perpetuities).  I think this makes sense, but that we should identify which skills to teach and then distribute them across the courses in a more organized fashion.

As I see it, the main skills are:

1. Traditional common law case and conceptual analysis
2. Statutory interpretation
3. Advising, counseling and factual development
4. International and comparative aspects
5. Policy, theory, legal history and evoluation and acculturation into the profession
6. Understanding the procedural structure of federal/state law

I think each school needs to figure out which teachers / classes in the first year are best suited for each goal.

For example, I could imagine (and would love to teach) a Contracts course that stressed skills 1 and 5.  Then I would spend a lot of time on consideration, the emergence of reliance from equity and estoppel, the mailbox rule, the bargain theory, unconscionability, implied warranties, realism, formalism, law and economics etc.  These doctrines tend to make these points well.

But, if this was stressed in contracts, I would see no reason to repeat the same narrative with the rule against perpetuities, evolution of landlord/tenant law and marital/women's property in Property, or rise and fall of intentional torts, developments of negligence and products liability law in tort.

Alternatively, I could imagine teaching a contracts course that focused on skills 2, 3 & 4, which would place far more emphasis on the UCC & CISG.  Most of the course would be structured as problem sets raising issues of planning various sales of goods transactions to domestic and foreign markets.  In this course, I would spend much more time examing contracts as a tool of business planning in the B2B context and teaching how to examine statutory and regulatory texts and private international law issues.  However, I would relegate consideration/reliance/restitution and even offer and acceptance to 2 or 3 sessions.  Similarly, I would at least introduce the complexities that bankruptcy and Article 9 introduce to the damages and remedies issues.

Thanks to Professor Saiman for giving me permission to share his thoughts with readers of our blog.  I apologize for any typos I have introduced in the transcription process.

[Jeremy Telman]

Teaching Transactional Contracts Law

Our faculty, like the faculty at many law schools, is engrossed in the Carnegie report on legal education.  Meanwhile, the contracts law professors listserv is bubbling with interesting ideas about integrating practical drafting and transactional skills training into the first-year contracts curriculum.  The result is a doubled heightening of my awareness of my own inadequacies as a contracts professor.  Oh well.

As long as I'm wallowing . . . . I came across Eric Goldman's recent publication "Integrating Contract Drafting Skills and Doctrine."  It's short enough that even I can read it.  Here's the abstract:

This Essay is based on my remarks at the "Teaching Writing and Teaching Doctrine: A Symbiotic Relationship?" conference at Brooklyn Law School, February 2006. The Essay discusses the benefits and challenges of integrating the teaching of contract drafting skills and doctrine. The Essay then discusses some ways I have accomplished this integration.

[Jeremy Telman]

The Mortgage Contingency Clause: A Nice Example of a Condition

When teaching the law of contract conditions, I find that the mortgage contingency clause contained in most residential real estate contracts is a palpable example.  A simple and recent New York Supreme Court case provides a ready illustration.

Plaintiffs/sellers contracted with defendant/buyer for the purchase of real estate.  Buyer deposited $35,000 in escrow with the sellers' attorney.  Sellers were ready, willing, able to close on the date provided in the contract.  However, buyer's attorney informed the sellers that the buyer would not be appearing at the closing because the buyer did not have a valid mortgage commitment in place.  The buyer requested return of the down payment.

Sellers brought suit seeking summary judgment in lieu of complaint, relying on the contract of sale.  Buyer cross-moved for summary judgment, pointing to the contract's mortgage contingency clause.  The clause provided that the obligations of the buyer were conditioned upon the issuance of a written commitment on or before "45 days from date hereof."  The paragraph provided that, if the commitment was not issued within that time,"then either party may cancel this contract by giving notice to either party . . ., in which case the contract shall be deemed canceled. . . ."

The court granted the buyer's cross-motion for summary judgment, holding:

[T]he defendant, has demonstrated that she made a good faith attempt to obtain a written commitment. The mortgage contingency clause contained in the contract provides that the purchaser shall (a) make prompt application to a lender for a mortgage loan, (b) furnish accurate and complete information as required, (c) pay all fees related to the application and loan, (d) pursue such application with due diligence, (e) cooperate in good faith with the lender, and (f) promptly give notice to the seller of the name and address of each lender that the purchaser has made an application to. The defendant has demonstrated compliance with such terms.

* * *

As the defendant was unable to obtain a mortgage commitment with due diligence, and notified the plaintiff accordingly prior to the closing date, the contract was deemed canceled and therefore, the defendant is entitled to a full refund of her down payment.

Buyer was awarded the return of her down payment.

Schwiesow v. Werner (NY Supreme Court, Nassau County) (Friedman, J.)

[Meredith R. Miller]

Syllabi as Contracts

I have often considered beginning my Contracts course by insisting that students sign and return a copy of a mock syllabus containing unreasonable terms on the first day of class.  My favorite unreasonable term:

If a student's cell phone goes off during class, the instructor may confiscate it for the remainder of the semester.  If the student takes the call, the instructor may confiscate the cell phone and smash it with a hammer, unless it's one of those iphones, in which case the instructor will simply confiscate it.

There would be other standard form contract stuff of course -- an arbitration clause, choice of law, merger, integration, etc.  I expect that if I did this, most of the students would immediately sign and a few would hold out, and I would make a big show of putting pressure on them to sign or leave.  I've never done it because I don't want to start the semester off on an adversarial note. 

Still, I do think of my syllabus as an implied contract.  I am mostly concerned that the syllabus sets forth my expectations regarding attendance and participation.  Some students regard the syllabus as a binding contract that I will cover all of the assigned materials (despite express language to the contrary), and thus there are a few, isolated howls of protest if I suggest that, becasue we are behind, we will skip a case or two. It appears that my students and I are not alone in considering a syllabus as akin to a contract, according to this article in the March 14, 2008 issue of The Chronicle of Higher Education. 

HT: Penny Andrews

[Jeremy Telman]

Media Finally Recognize Prawfs' Rock Star Status

Talk about burying the lead!  National Public Radio's report, "Singing Law Professor Rocks the Classroom" begins by noting that Contracts "can be one of the most tedious, dry and dreaded classes that first-year law students have to take."  Well, Contracts probably ranks in the top ten of such classes, but since students only take about eight classes in the first year, and all of them are more tedious, dry and dreaded than contracts, NPR is hardly going to win a Pulitzer for its reporting.  And then, next to a photo of Boston University's Mark Pettit "channel[ing] his inner Tom Petty," the report describes Professor Pettit as a "tweedy, balding buttoned-up kind of guy."  I smell a set-up.

Returning to reality, NPR's coverage then goes on to explain how Pettit wins hearts and minds by performing various contracts-themed compositions to the tune of popular songs.  Pettit thus wins accolades as students' favorite professor and contributes to Boston University's reputation as a great teaching law school because of its "quirky professors who make class more interesting." 

The website linked to above also includes a link to recordings of some of Professor Pettit's contracts songs.  An exclusive release of his complete oeuvre through K-Tel records is in the works, according to my sources.

By the way, lest you think Professor Pettit is a Dance 10, Looks 3 type, we remind our readers that the Blog has also recently noted his quality scholarship.

[Jeremy Telman]

Teaching Assistants: Alan M. White

If you are looking for a clear, concise, well-written review of rational choice theory as it relates to consumer contracts, as well as a critique of that theory from the perspective of behavioral economics, the rational choice is to read Behavior and Contract, written by my new colleague, Alan White (pictured at left).

Alan's key observation, it seems to me, is that while law and economics has incoporated many of the insights of behavioral scientists, "behavioral law and economics has clung stubbornly to goals of efficiency and autonomy."  (3)  In order to advance these goals, rational choice theorists, who have come to influence legislators and government agencies empowered to implement consumer protection laws, advocate deregulation, which, according to Alan, "produces significant consumer harm, exploitation and rent-seeking, and does not necessarily increse consumer welfare." (5)  Orthodox law and economics scholarship thus fails to achieve its stated goals and that failure, Alan urges, ought to cause us to question "the impoverished norm of efficiency."  (6) 

This is all quite provocative stuff, and there are of course articles on the other side (for example, this one).  But the great advantage of Alan's piece (and the reason why I recommend it as a teaching assistant) is that he clearly and succinctly: (1) summarizes the rational choice model; (2) introduces the major insights from behavioral law and economics that undermine the rational choice model; and (3) reviews various attempts by both scholars and regulators to operationalize the insights of behavioral law and economics so as to provide better consumer protections in the contractual realm.  Alan provides a menu of options and acknolwedges that none fully addresses the various issues raised by the behavioral sciences.  Ultimately, Alan would replace the norm of efficiency with a trio of utliitarian sufficiency, autonomy and equity. (50-51)  The competing norms complicate the task of consumer regulation, as Alan's model is not nearly as parsimonious as the rational choice model.  But Alan is willing to trade parsimony for a model that more accurately reflects the circumstances in which consumers make choices.  He advocates a return to regulation and rejects accusations of paternalism: "Consumer's choices will be framed either by sellers or by legal rules.  Allowing the consumers the freedom and autonomy to be manipulated and exploited does not promote autonomy." (50)

[Jeremy Telman]

Teaching Assistants: Geoffrey R. Watson

We broke some hearts in last week's post on Kirksey v. Kirksey, as several generations of contracts profs and students were forced to part with their fantasies regarding Isaac and Antillico (Angelico) Kirksey.  Well, this week we have very good news.  Levi Wyman lived!  And his father may even have loved him!!  Or so says Geoffrey R. Watson (left) in In the Tribunal of Conscience: Mills v. Wyman Reconsidered, 71 Tulane L. Rev. 1749 (1997).

Like Kirksey, Mills v. Wyman is a familiar case, involving a Good Samaritan (Mills) who cared for the dying Levi Wyman, estranged son of Seth Wyman.  Mills wrote to Seth to inform him of his son's condition and to invite Seth to visit his son.  According to the case, Seth replied that he could not come but would cover any costs Mills incurred in caring for Levi.  Levi Wyman died, despite Mills' ministrations, and Seth's promise was not kept.  Mills sued to enforce the promise.  The Supreme Judicial Court of Massachusetts concluded that Seth Wyman had a moral obligation to pay Mills but no legal one and ruled for Wyman.

Watson finds fault with everything about the Massachusetts' court's opinion.  Seth Wyman never promised to pay Mills, and Levi Wyman did not die until many years later.  Moreover, if the facts were as the court construed them, Watson thinks the "court missed an opportunity to shape a more sensible doctrine of promissory liability."  Id. at 1752.  Unlike those killjoys, Casto and Ricks, who sucked all the joy and mystery out of Kirksey, Watson leaves some of the mysteries of Mills unresolved.  For example, Watson's exhaustive historical research did not enable him to explain why the court treated Levi Wyman as a corpse in 1825 when as late as 1829 he was engaged in spending and wasting "his estate by excessive drinking and idleness."  Id. at 1757.  We do learn some dramatic details of Levi's illness, however.  For example, his symptoms included bouts of delirium during which "he leaped out of a chamber window to the immminent hazard of his life" and for which he was treated by a "prominent Hartford physician" with "1 gallon spirits" and pills.  Perhaps the Massachusetts court simply indulged the safe assumption that in the 1820s medical treatment for an illness such as Levi's was little more than an unpleasant prelude to death.

In any case, while Mills clearly thought he had received a promise from Seth to pay for services rendered, Watson views Seth's letter as far more equivocal, suggesting at best an intention to pay for future services.  Id. at 1761.  Watson suggests that Seth's failure to visit his dying son is best explained by Seth's advanced age (63) and frail health rather than by lingering ill-will towards Levi.  Id. at 1762-63.  In large part, Watson's critique of the Massachusetts court turns on his conviction that Seth made no promise.  While the court viewed Seth as a man "willing to have his case appear on record as a strong example of particular injustices sometimes necessary resulting from the operation of general rules," Watson paints a different picture of Seth:

Wyman did not make the promise and thus never "determined" to break any promise.  Wyman's "transient feeling of gratitude" might have been a sincere expression of willingness to pay for Levi's future expenses, but not his past ones.  Wyman's "willingness" to stand as an example of "injustice" was more likely a determination to fight for his rights. 

Id. at 1781.  Hmmm.  Do we like Seth better if we think he went to the Massachusetts Supreme Court to fight for his right not to pay a penny to the man who nursed his ill son back to health and then sought full reimbursement and not only reimbursement starting from the moment of the promise?

As to the doctrine of moral consideration, Watson thinks the law was much less clear than the court suggests, as Lord Mansfield had declared in a 1785 case that where there is a moral obligation and a promise, "the honesty and rectitude of the thing is a consideration."  Id. at 1783.  Lord Mansfield's position met with resistance in England, but was viewed sympathetically in America.  In the 1813 case, Bowers v. Hurd, the same Chief Justice Parker who decided Mills, enforced a moral obligation, even where no antecedent debt was found.  Id. at 1784-85. Reminded of Bowers in the context of Mills, Justice Parker remarked that the case "has been doubted."  Id. at 1786.

In the final section of the essay, Watson summarizes theoretical approaches to the moral obligation doctrine, including: the revival or waiver theory, which seems to have informed the Mills decision (id. at 1790-93); the promissory restitution theory embodied in R.2d s. 86 (id. at 1793-95); Duncan Kennedy's concerns about the "legalization" of family relations (id. at 1795-96); and Richard Posner's economic defense of the moral obligation doctrine. (Id. at 1796).  Watson finds all of these approaches inadequate in terms of explaining the behavior of courts.  For example, theoretical approaches call for the enforcement of either a pre-existing obligation or of the subsequent promise, but courts do not consistently enforce either.  The Restatement approach, as well as Posner's, suggest where the law ought to go rather than to describing the law as it is.

Watson has his own ideas for reform that draw on the doctrine of restitution.  Watson argues that "[o]ur society suffers more from apathy than from altruism" (id. at 1801) and therefore proposes that the law create incentives to encourage Good Samaritans, like Mills and Joe Webb of Webb v. McGowin.  Watson acknowledges that an expanded restitutionary doctrine would impose considerable judicial costs of enforcement.  Id.  The solution is simple, however. 

A promise to fulfill a moral obligation should be binding regardless of whether it is supported by consideration.  It should be enough for the plaintiff to prove that the defendant's promise was made with intent to be legally bound.  The existence of a past "moral obligation" should be treated as prima facie evidence that the moral obligor does intend to be bound.

Id. at 1801. Intent to be bound would be evidenced, says Watson, not by the bizarre rigamarole of the consideration doctrine but by formal mechanisms, such as a writing or a seal.  Id. at 1802.  Watson concludes by predicting the ultimate demise of consideration doctrine: "Consideration doctrine, if indeed it was ever useful, has outlived its utility.  The next century will see the end of consideration as we know it."  Id. at 1804.  With the end of the consideration doctrine, Watson foresees a future in which legal liability will be more closely linked to moral responsibility -- and the proposed reform would also enhance efficiency by making promises "more valuable at relatively little social cost."

The rule in Mills v. Wyman, says Watson is "eminently forgettable;" it is both "incoherent and inefficient."  Id. at 1806.  The facts of Mills -- from which we can create competing narratives -- are what remains.

[Jeremy Telman]

Limerick of the . . . Month

It is great fun to teach Greiner v. Greiner as a companion case to Kirksey v. Kirksey.  Vive le difference! 

Still, I didn't teach the case last year, perhaps because I had not written a Limerick for it.  This year, I have attempted to correct that slight to this most deserving case.  I'm not all that happy with the Limerick.  The Limerick is true to the decision, in that it treats it as a promissory estoppel case, but it's hard to see why the court did not simply find a binding promise supported by consideration. 

Greiner v. Greiner

At wheat-sowing time, in a bank,
Maggie promised some acreage to Frank.
"He did nothing for me!"
Averred Maggie, with glee.
For his land Frank has Corbin to thank.

[Jeremy Telman]

Teaching Assistants: William S. Dodge

One of the most useful pieces of legal scholarship I have ever read is William S. Dodge's Teaching the CISG in Contracts, 50 J. Legal. Educ. 72 (2000).  At the time I came across Dodge's essay, I had just completed teaching a four-credit contracts class.  I attended an AALS session on introducing international and comparative perspectives into the first-year curriculum with two thoughts in my mind:

1. As a student, I took a five-credit contracts course and I don't recall any mention of the CISG.

2. There was absolutely no way I was going to cram more material into my contratcs course.

Well, I attended the session, read the article, and the scales fell from my eyes.  Moreover, with the assistance of Dodge's article, working a few key provisions from the CISG into a first-year contracts course -- and vitally, putting students on notice that the CISG exists and will govern international commercial agreements involving the sale of goods if not contratced around -- is really as easy as UCC 2-207.  Easier even, perhaps.

Each section of the article focuses on a different doctrinal area in which the CISG differs from the UCC.or the common law, but the parts of the article that I have basically just plugged into my course are its discussions of the S.D.N.Y.'s handling of the CISG's version of the Battle of the Forms in Filanto, S.p.A. v. Chilewich Int'l Corp. (789 F.Supp. 1229 (1992) and of the Eleventh Circuit's treatment of the non-existence of the parol evidence rule in MCC-Marble Cermaic Cneter, Inc. v. Ceramica Nuova D'Agostino, S.p.A. (144 F.3d 1384 (1998).  I highly recommend this readable and immensely useful introduction to the CISG.

Now, there's no way I'm going to try to discuss the new UCC in my contracts course . . . .

[Jeremy Telman]

Teaching Assistants: Douglas Baird

Douglas Baird (at left) has an engaging historical essay, Reconstructing Contracts: Hamer v. Sidway, in Foundation Press's Contracts Stories, pp. 160-185, which Baird also edited.  The essay does far more than provide a narrative background (actually several narrative backgrounds) on what Frank Snyder has called "the granddaddy of all unilateral contracts cases."   The case involves a pledge by William E. Story, Sr. ("William") to his nephew, William E. Story, 2d ("Willie") that William would give Willie $5000 if Willie abstained from drinking, smoking and gambling until his 21st birthday.  Judge Parker's decision for the N.Y. Court of Appeals articulates the doctrine that forebearance from engaging in activities in which one has a legal right to engage suffice as consideration.  Parker's opinion reduces the facts of the case in a way that render it ideal for teaching that particular doctrine.  Baird's essay complicates the facts and illustrates how they can be spun to justify any number of rulings on different legal grounds. 

Baird begins with a fascinating account of the role Hamer v. Sidway has played in legal education right from the time it was decided.  He then proceeds to a number of "reconstructions" of the facts of the case. In various versions of the case, Willie can come off as a "wayward adolescent" or as "a responsible adult who . . . has to care for an elderly parent."  (161)  Baird expresses skepticism about courts' abilities to sort out family relationships -- which may be both intimate and commercial -- and to determine which promises made in the family context ought to be enforced.  While Judge Parker's opinion in Hamer reduces the focus of the narrative to the relationship between William and Willie, Baird suggests that the conflict had at least as much to do with William's relationship to his older brother, Willie's father, and with William's concerns about making sure his neices were cared for after his death.

In the formalist version of the facts of Hamer, Willie bargains with his uncle, reserving for himself the right to play cards and billiards, "so long as it was not for money." (164)  In formalist hands, the case served to limit the number of enforceable promises, becasue the facts of Hamer could be contrasted with other familial promises in which the elements of a bargain were not present.  Hamer is thus a very satisfying case from the formalist, doctrinal perspective, but Baird notes that formalists such as Langdell and Holmes did not provide -- and did not care to provide -- any justification for the principle of bargained-for exchange as a means of determining which promises ought to be enforced.  (165)

Focusing on different facts, Corbinian Legal Realists questioned whether Hamer involved a bargain at all.  They saw William's statements as adding a condition (Willie needed to straighten up and fly right) to a pre-existing gratuitous pledge William had made repeatedly since Willie was a boy. (166)  Still, Legal Realists could live with the result in Hamer because it protected Willie's reasonable reliance on his uncle's promise.

Baird next reconstructs the facts from the perspective of William's executor, Franklin Sidway (at left). From this perspective, it is not hard to see why New York's intermediate appellate court refused to enforce William's promise.  William had already given Willie and his father $5000 to start up a business.  That business failed, leading Willie into bankruptcy.  Later, William again set up Willie and his father in a business, at which time Willie executed a release discharging William from any claims Willie might have against him.  (176)  There were also good grounds for believing that Willie's assignment of his claim against his uncle was a fraudulent transfer. (177)  From this perspective, it seems that the promise, if there was one, was either already fulfilled (perhaps twice) or excused.  It must have been surprising to Sidway that the court even reached the issue of consideration.

Baird then reconstructs the facts of Hamer again, this time from the perspective of Willie's father, James.  Here Baird assembles from the court record evidence of the complex financial arrangements between the brothers.  Apparently William provided for James, both by paying him to care for their demented father and by allowing him to live in properties that William owned provided that James contributed to the renovations of such homes.  William might have viewed these arrangments as a form of charity.  James more likely viewed the arrangements as just compensation.  In any case, Baird speculates that William's sudden death may have deprived James of a home.  Willie may have pursued his claim (through his mother-in-law) against his uncle in order to procure the means to house his father.

In his conclusion, Baird reminds us that whether or not a promise should be enforceable turns "on whether enforcing that promise will make the society in which it operates a better place."  (185)  I have a hard time deriving that lesson from the conflicting narratives that Baird reconstructs.  If by "that promise" Baird means William's specific promise to Willie, his multiple narratives suggest that courts are ill-equipped to decide the question.  Should a court be deciding whether society benefits from favoring James Story over William Story, Sr.'s nieces? 

If by "that promise" Baird means "that kind of promise" -- or "that category of promises," one's answer will depend on what sort of promise one thinks William made to Willie.  Choosing which category fits the promise will also turn on one's preferred reading of the facts, and once again, Baird seems to think courts are not well-positioned to make such choices.  Perhaps Baird is advocating placing William's promise in the category of "familial promises," a category of promises that we know should rarely be enforced. But some such promises clearly should be enforced, and it would be helpful to be able to identify that sub-category.

[Jeremy Telman]

Teaching Assistants: Mark Pettit, Jr.

In this second installment of our new feature, Teaching Assistants, we have a look at Mark Pettit, Jr.'s essay, Modern Unilateral Contracts, 63 B.U. L. Rev. 551 (1983).  This is an especially useful piece of contracts scholarship for instructors and students who wonder why casebooks and hornbooks usually treat the distinction between unilateral and bilateral contracts as fundamental while the Restatment (Second) on Contracts (R.2d) tries to will unilateral conracts out of existence.  Pettit's article provides useful insights into the development of unilateral contract doctrine.  In so doing, he also provides challenging scenarios in which we can test our instincts about the most fundamental question in contracts theory -- what sorts of promises should be enforceable at law?

Although Pettit eschews provocative language, one gets the sense that this is one area where Karl Llewellyn's faith in his own ability to devise legal doctrines appropriate to the real needs of commerce was sadly misplaced.  Llewellyn believed that real, unilateral contracts (as opposed to what he termed "pseudo-unilaterals") tend to involve improbable scenarios about walking across the Brooklyn Bridge or climbing greased flagpoles.  Id. at 551.  The R.2d's solution is to turn pseudo-unilaterals into bilateral contracts by implying a promise to perform wherever possible.  Still troubled by what Llewellyn called "unjust and inequitable" results that flow from the rare, true unilateral contract, the R.2d's drafters permit acceptance of a unilateral contract through tender of part performance in s. 45.  Id. at 551. 

However, as Pettit explains, while Llewellyn sought to banish unilateral contracts to a "freak tent," courts continue to welcome them into the Big Top.  Id. at 552.  Pettit gives two reasons for this.  First, while Llewellyn sought to limit unilateral contracts to situations where an offeror would not be satisfied by promissory acceptance, courts recognize the formation of a unilateral contract whenever an offeree makes no promise.  Id. at 573-74.  Second, modern unilateral contratcs arise in non-commercial contexts that tend to pit an individual against a large and perhaps powerful organization. Id. at 574.  Thus lines of cases involving unilateral contracts ome in the empoyment context (commissions or benefits -- id. at 559-67); in cases seeking to enforce plea bargains and other contexts in which citizens attempt to hold the state to a unilateral promise (id. at 568-72); in cases in which students sue educational institutions (id. at 572-73); and even in civil rights cases.  Id. at 574-75.  Ironically, although Llewellyn disliked unilateral contracts as an obstacle to the enforcement of promissory obligations, they are now invoked in order to expand the scope of enforceable promises.

Pettit thus notes that while defendants used to rely on unilateral contract theory to avoid liability, in modern cases, plaintiffs rely on unilateral contracts theory in order to enforce promises in situations where plaintiffs themselves are not bound to do anything.  As Pettit puts it,

the defendant's alleged promise is a promise to maintain the status quo, and the plaintiff's peformance is simply continuing the status quo. 

Id. at 576.  For example, an employer who offers a bonus to her sales force if they achieve certain performance targets can be held to her promise to pay that bonus if the employees achieve such targets, even if they achieve such targets by performing their ordinary duties. 

Pettit notes a problem with modern unilateral contracts in the employment context.  Courts have enforced promises to provide insurance or retirement benefits even when the employer went out of its way to stress that it was not guaranteeing the continuation of such benefits and when the employee did not rely on their continuation.  Id. at 579-80.  Such unilateral contracts, it would seem, protect neither an expectation nor a reliance interest.  Pettit also notes with alarm a tendency to use the unilateral contract concept to expand liability in personal injury cases.  Id. at 584-87.  For example, victims of a collapse of stands at a high school football game were allowed to pursue a claim of liability against the local board of education based on unilateral contract, where an ordinary tort claim was barred under immunity doctrine.  The court enforced an implied promise by the board of education that the viewing premises were reasonably safe.  Id. at 584.

Finally, Pettit considers promissory estoppel as an alternative to unilateral conract theory as an avenue of recovery.  Id. at 591-93.  He concludes that specifying the extent of reliance is problematic in such cases.  Still, in some unilateral contracts cases, awarding full expectation damages seems excessive, especially if plaintiff has neither offered new consideration in return for the unilateral promise or relied on that promise.

[Jeremy Telman]

Teaching Assistants: Oliver Wendell Holmes

In his brief essay, The Theory of Legal Interpretation (12 Harv. L. Rev. 418 (1899)), Oliver Wendell Holmes endorses the objective theory of contract formation and justifies his preference as follows:

For each party to a contract has notice that the other will understand his words according to the usage of the normal speaker of English under the circumstances, and therefore cannot complain if his words are taken in that sense.  Id. at 419. 

This is an important and probably a sound conclusion, but Holmes arrives at it by means of reasoning that might well lead one to a very different conclusion.

Holmes first notes that while serious documents might "in theory" have one meaning and no other, "in practice" it is simply not the case that individual words or "a given collocation of words" has one meaning and no other.  Id. at 417.  Even dictionaries provide multiple definitions, and Holmes suggests, words taken in their context often depart subtly from the connotations assigned to them in dictionaries.  Holmes thus arrives at a shocking interim conclusion:

What happens it this.  Even the whole document is found to have a certain play in the joints when its words are translated into things by parol evidence, as they have to be.  It does not disclose one meaning conclusively according to the laws of language.  Id.

How does Holmes avoid following this reasoning into the dark corners explored by the likes of Stanley Fish -- or worse Jacques Derrida?  Well, it turns out, we don't care what the words meant to the person or people who drafted them.  We care only about what those words "would mean in the mouth of a normal speaker of English."  Id.  Although he accepts that proper names, such as Peerless, can create an irresoluble ambiguity, Holmes is for some reason convinced that we are otherwise usually able to understand what contractual language would mean to a "normal speaker of English." 

Holmes' reasoning here eludes me, but it seems to turn on notice, as indicated in the first quotation above.  But if the meaning of words is subject to "a certain play in the joints," and if this play is inescapable, and Holmes suggests that it is, how can one know in advance what meaning a normal speaker of English will attach to contractual language?

Holmes concludes by noting that "practical men prefer to leave their major premises inarticulate, yet even for practial purposes theory generally turns out the most important thing in the end."  Holmes begins his essay by contrasting "theory," which holds that words have one meaning, with "practice" which reveals that they have multiple meanings.  Practice, 1; Theory, 0.  In his conclusion, Holmes evens the score and defies the "practical men" who refuse to articulate the theoretical underpinnings of their practices.  Unfortunately, at least in this essay, Holmes' theoretical defense of the practice is incomplete.

[Jeremy Telman]

New Feature: "Teaching Assistants"

This week, we are introducing a new weekly (we hope) feature on the blog.  "Teaching Assistants" will summarize and discuss a piece of scholarship that is useful in the contracts classroom.  The target audience for this column will be contracts profs who, like your humble author, do not specialize in contracts scholarship and are still working their way through the literature, as well as students and other devotees of the blog.

The idea is to highlight some scholarship, mostly not of recent vintage, that shows up in the "for more on this topic" notes that follow cases in our casebooks.  The columns will summarize the content of this scholarship, and discuss how it might be used in class or what students might get out of wading into the deep end of contracts scholarship.

While the column will likely focus on well-known and older essays, readers who are also authors and think their work relevant and useful in the first-year contracts setting should feel free to send offprints my way. 

[Jeremy Telman]

Limerick of the Week

Parker v. 20th Century Fox is certainly a fun case to teach, and it raises all sorts of interesting policy questions.  In my class, I show a sequence of Shirley MacLaine images purporting to illustrate the facts of the case.  Unfortunately, copyright concerns prevent me from posting them here.  The image at left (available from the Wikipedia commons) hardly reflects her success in the case. 

Anyway, here it is, the last (for now) in my collection of contracts Limericks:

The studio's conduct was terrible,
And the actress's damage repairable
Only with a lead part
In a great work of art:
A film that is at least comparable.

[Jeremy Telman]

Limerick of the Week

Nora Ephron feels bad about her neck, and I feel bad that I can't come up with a better Limerick for Hadley.

Hadley v. Baxendale

Foresee that things can end badly
And keep that in mind, or else sadly,
A life of regret
Is all you will get
If your harm's consequential -- poor Hadley!

[Jeremy Telman]

Limerick of the Week

Through some incomprehensible oversight, I forgot to include Limericks commemorating these old chestnuts.

James Baird Co. v. Gimbel Bros.

When they offered a bid to James Baird,
The Brothers egregiously erred.
They were in deep shinoleum
For not laying linoleum,
But Judge Hand, their bottoms he spared.

Drennan v. Star Paving

After reading the views of Judge Hand,
Star Paving could not understand
What the fuss was about.
Bidders used to bail out;
Now all bow to estoppel's command.

[Jeremy Telman]

Limerick of the Week

In rejecting Mama Rizzo, Inc.'s arguments in Brookside Farms v. Mama Rizzo, Inc., Judge Kent wrote as follows:

"For the Court to allow Defendant to invoke the no-oral-modification clause after MRI itself induced and participated in the extended course of action it now complains of would be to convert the sale of basil leaves into a 'basil sale carcinoma' that would devour all reasonable commercial standards of behavior between merchants" (emphasis added).

Now I have my own standards for reasonable behavior, and I just didn't find the case Limerick-worthy.  But some of my students felt the phrase "basil sale carcinoma" needed to be memorialized in verse.  Facing an inevitable student rebellion, I composed the following in self-defense:

Brookside Farms v. Mama Rizzo's, Inc.

Addressing the judge as "Coxcomb-a,"
Mama Rizzo flew back to Roma.
In rejecting her Answer,
This judge has cured cancer,
The dread basil sale carcinoma.

[Jeremy Telman]

Limerick of the Week

As I said before, my casebook does not include the classic coronation cases, arising out of the postponed coronation King Edward VII, pictured at left.  I therefore expect my students to learn the history of the frustration of purpose doctrine solely by studying Limericks.  It's a very rigorous curriculum, and I still get complaints that some contracts doctrine is easily reduced to Haiku.

Krell v. Henry

Was Henry's whole purpose frustrated
When the King burst appendix dictated
That the crown must delay
It's coronation day?
Yes! So contract doctrine's updated.

[Jeremy Telman]

Limerick of the Week

This case may be so well known as to need no introduction, but if people are in the market for visual aids, at left are public domain images of the Surrey Music Hall and Gardens, the former of which was the music hall that burnt down in Taylor v. Caldwell.

Since neither this nor the coronation cases are included in the casebook that I use, and since I am usually way behind by the time I get to this subject matter, this is a portion of the course that I teach entirely through Limericks. 

Taylor v. Caldwell

• Taylor rented a hall like the Met's
  For the purpose of concerts and fetes
  When fire the hall downed,
  The court wisely found
  A way to excuse Taylor's debts.

[Jeremy Telman]

Limerick of the Week

I always have a hard time teaching Donahue v. FedEx, in which an employee-at-will is terminated after attempting to blow the whistle on his corrupt boss.  The court recognizes that there is a public-policy exception to the at-will doctrine but states that there is no public policy protecting whistle blowers.  There isn't?

Plaintiff, an employee at will,
Thought his boss had a hand in the till.
FedEx is correct;
"Bad faith" won't protect
Where policy contentions are nil.

I also have a problem because I can't get the last line of my Limerick to scan.

[Jeremy Telman]

Limerick of the Week

The end is near!!  Not only is the semester (and for some readers, the first year of law school) nearly over.  But I am almost out of Limericks.  Contracts Limericks, that is.  I still have a boatload of business associations Limericks (bwahaha!), but those will have to appear on a different blog, I suppose.

So, where would contracts profs be without celebrity contracts?  I mean, is there anything more certain to promote student interest than a law suit featuring Clint Eastwood?  Can any contract prof resist inviting Sondra Locke to ask herself, "Do I feel lucky?"  And then add, "Well do ya, punk?"  Now that's educatin'!  Of course, the time may eventually come when referencing "Dirty Harry" is about as hip as referencing "True Grit."  It's already quite hard to get students to care much about Shirley MacLaine.  And I think this is one reason why Sullivan v. O'Connor has dropped out of most casebooks.  On the other hand, in a few years, it should be possible to build an entire curriculum around Anna Nicole Smith.

Locke v. Warner Brothers

There once was an actress named Locke
Whose Ratboy is said to be schlock
Old Clint and Warner
Thought they could scorn her
In bad faith.  Now they're in hock.

[Jeremy Telman]

Limerick of the Week

Sherrodd, Inc. v. Morrison-Knudsen is a great teaching case.  It never ceases to outrage at least some students and thus leads to a very fruitful discussion of the pitfalls of the parol evidence rule.  In addition, it shows that a formal approach to contracts law is still with us, as the following Limerick illustates:

Sherrodd, Inc. v. Morrison-Knudsen

Behold, parol's bitter fruit:
Sherrodd's claim was deemed moot!
If he'd only known,
The great Corbin would groan
To see Williston's rule win repute.

[Jeremy Telman]

Limerick of the Week

This is a pretty poor Limerick, I admit it.  But let's face it: the facts of Thompson v. Libby are not such as to inspire great art.  In order to have anything to work with here, I had to make up some facts and pretend that the logs at issue in the case were defective because they were intended for the Christmas hearth but were not as fragrant as promised. 

In addition, this is one of several Limericks in which I defy conventional wisdom and employ the poetic device of enjambment in a Limerick.  Consider this an example of why conventional wisdom prevails.  But you see, that's what makes this Limerick so gosh darn funny!!

Thompson v. Libby

A plan to buy logs fit for Yule
Met up with the "four-corners" rule.
The parties, they feuded,
But the court, it excluded
Parol.  How Grinchy!  How cruel!

[Jeremy Telman]

Limerick of the Week

In a recent post, I complained about the difficulty of rhyming estoppel.  To my surprise, nobody wrote in to offer suggestions.  Very disappointing.  So this is what I'm left with:

Alaska Democrats v. Rice

This just in from our anchor, Ted Koppel:
The Statute of Frauds may just topple!
Politicians are snarky,
And yet their malarchy
Is binding if backed by estoppel.

Todd van Poppel is in the on-deck circle.  Be thee warned!!

[Jeremy Telman]

Limerick of the Week

Winternitz v. Summit Hills is a useful case for illustrating why the difference between law and equity might still matter in a modern court.  It is also a useful case for illustrating why tort law might matter in a modern court, if anyone is interested in such things.  The interplay between the real and the imaginary in the case gives it the feel of a Dr. Seuss book, and so this Limerick has a bit of a Seussical feel to it:

Winternitz v. Summit Hills

Hard cases result in bad laws.
But there's a solution because
The court can resort
To a sort of a tort
To remedy equity's flaws.

[Jeremy Telman]

Limerick of the Week

Sometimes you really can sum up a case in five lines:

Normile v. Miller

As if sensing what lay ahead,
The counterofferor said,
You snooze, you lose!"
That's enough to excuse
Her for selling to Segal instead.

[Jeremy Telman]

From the Shameless Commerce Division . . .

A shameless plug for a new teaching supplement in which one of our members had a hand, Global Issues in Contract Law.  The book is sending shockwaves across the legal academy, as contracts professors succumb to its moral and intellectual force.  Many of us have long known that we have a duty to incorporate more international and comparative perspectives into our first-year contracts courses.  Now, professors are acknowledging that we no longer have an excuse for not doing so.

The first time I taught conracts, I made no attempt to incorporate international or comparative perspectives.  But after attending an all-day session at the AALS in January 2006 on Integrating Transnational Perspectives into the First-Year Curriculum, I have become a true-believer.  The key to my conversion was the materials shared with us at the panels, including edited cases and lecture notes from William S. Dodge (for references, look here) that made incorporating the new material into my course very easy.

[Jeremy Telman]

Limerick of the Week

I know I'm a bit ahead of schedule, but I will be traveling on Monday and unable to post.

The best scenarios out there for explaining the doctrine of restitution are provided, IMHO, by Seinfeld and The Incredibles.  In a late Seinfeld episode, the Elaine character, suffering from back pain, offers to give anything to anyone who could relieve her of the pain.  Kramer grabs Elain's head, and as she objects, proceeds to twist it until her neck cracks.  Elaine feels immediate relief and thanks Kramer, at which point he demands payment for his services.  In my book, he was an officious intermeddler who deserved no payment for his services.  In any case, Elaine's pain soon returned with a vengeance.  But Elaine didn't ask my advice.  I believe the dispute was settled by Newman.

The Incredibles provides two illustrations of the doctrine.  In the first, Mr. Incredible saves the life of a suicide, but in so doing causes some bodily harm to the man.  The would-be suicide then files suit for damages, and the improbable success of this suit is then the vehicle for the film's premise -- a world in which plaintiffs' attorneys destroy the entire culture of the superheroes.  But if Mr. Incredible were simply in the habit of demanding payment for his good deeds, he would have a slam dunk defense, just as a doctor who causes some injuries in reviving an unconscious patient could not be sued for assault. Inded, rather than being sued, Mr. Incredible would likely succeed on a restitution claim.

In the second, Edna Mode, having prepared a new supersuit for Mr. Incredible, prepares matching clothing for the rest of the family.   Mr. Incredible's wife, Helen (aka Elastigirl), at first expresses shock and outrage that Edna would make such a presumption, but then, for reasons that need not concern us here, ends up using Edna's supersuits.  This may well illustrate ratification, but it can also be a basis for a good discussion of restitution. 

Alas, I have yet to find a casebook that includes discussions of these scenarios, perhaps because Newman does not publish his opinions and it is not clear whether Helen paid Edna for the supersuits or if Edna needed to bring suit to collect.  So, I am left teaching the Pelo case, which is not nearly as entertaining. 

Credit Bureau Enterprises, Inc. v. Pelo

Does the doctrine of restitution
Provide a fair resolution?
It keeps doctors secure
When consent is obscure
And thus prevents self-execution.

[Jeremy Telman]

Limerick of the Week

As Frank Snyder put it in the early days of this Blog:

[On] December 2, 1980, the Missouri Court of Appeals decided Katz v. Danny Dare, Inc.,  610 S.W.2d 121 (Mo. Ct. App.1980), a popular casebook follow-up to Feinberg v. Pfeiffer Co. in the promissory estoppel part of the course.  In the case, the president of the company wanted to get his brother-in-law to resign instead of having to fire him (thus ticking off his sister) so he promised him a pension.  After the man retired, the company reneged on the promise, claiming that there was no consideration for the promise because the employee would have been fired anyway.  The court's holding -- that there was no consideration but that there was reliance -- is just off base enough to make for great class discussion.

And also off-base enough to inspire a Limerick: