Lawdibles

Lawdibles: Your Audio Law Professor. A law professor explaining a narrow area of law understandably and accurately in less than ten minutes.

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Express Conditions: Discussions in Contracts

March 9th, 2021 · Comments Off on Express Conditions: Discussions in Contracts · Contracts, Lawdibles Audio

The topic of this podcast by Professor Scott J. Burnham is when language in a contract is an express condition, such that failure to satisfy the condition results in a performance not being due. A condition can be a good way to hedge in case a party is concerned that it can’t meet its commitments and wants to avoid being in breach of contract. This podcast is related to the discussion of conditions in two other podcasts: Excuse of Conditions and Implied Conditions. This podcast discusses Clark v. West Publishing Company, and explains why drafters should use terms such as “if” or “on condition that” to make it clear that a term is a condition.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Define a condition.
2. Distinguish between a promise and a condition.
3. Provide an example of an express condition.
4. Explain why an express condition is an exception to the parol evidence rule.
5. State what the remedy is when a promise is breached and when a condition is not satisfied.

A transcript of this podcast is here.

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Mitigation: Discussions in Contracts

March 2nd, 2021 · Comments Off on Mitigation: Discussions in Contracts · Contracts, Lawdibles Audio

This podcast by Professor Scott J. Burnham explores the basic concept of mitigation, or, as it is sometimes called, avoidable consequences, which is used in computing damages. Mitigation is a principle that can limit a plaintiff’s recovery in a claim for breach of contract. The principle is stated in Restatement (Second) of Contracts § 350(1). The podcast also discusses Rockingham County v. Luten Bridge Co. and the twist on the common law rule of mitigation found in U.C.C. § 2-704.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Explain the limitation that mitigation puts on the non-breaching party’s recovery.
2. State examples of mitigation from both the common law and the sale of goods under the U.C.C.

A transcript of this podcast is here.

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Tortious Interference: Discussions in Torts

February 22nd, 2021 · Comments Off on Tortious Interference: Discussions in Torts · Lawdibles Audio, Torts

The topic of this podcast by Professor Scott J. Burnham is Tortious Interference – when one of the parties to a contract claims that a third party wrongfully interfered with the contract by inducing the other party to breach. The rule for when tortious interference arises after a contract can be found in Restatement (Second) of Torts § 766. Tortious interference can also arise before the contract is formed, when the third party is claimed to have interfered with the formation of a contract. The podcast includes a discussion of defenses to a claim of tortious interference, and examines the fine line between unlawful and permissible interference per Restatement (Second) of Torts § 767. The cases Texaco, Inc. v. Pennzoil Co. and Phillips v. MEA are covered, as is the movie The Insider which was based on a real tortious interference case.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Identify when a party to a contract may have a claim against a third party for tortious interference.
2. Discuss defenses to a tortious interference claim.

A transcript of this podcast is here.

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Certainty: Discussions in Contracts

February 17th, 2021 · Comments Off on Certainty: Discussions in Contracts · Contracts, Lawdibles Audio

The topic of this podcast by Professor Scott J. Burnham is the basic concept of certainty in computing damages. Certainty is a principle that can limit a plaintiff’s recovery in a claim for breach of contract. According to Restatement (Second) of Contracts § 352, “Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.” The podcast discusses what certainty requires and the purpose behind certainty. It further discusses when certainty might apply – such as in cases involving a new business or lost royalties – methods of proving certainty, and how certainty is treated in the courts. Several hypotheticals are explored, as is the case Freund v. Washington Square Press.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Explain the concept of certainty in computing contract damages.
2. Identify when certainty is applicable.
3. Apply the certainty requirement.

A transcript of this podcast is here.

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Foreseeability: Discussions in Contracts

February 9th, 2021 · Comments Off on Foreseeability: Discussions in Contracts · Contracts, Lawdibles Audio

The topic of this podcast by Professor Scott J. Burnham is when consequential damages can be recovered for breach of contract because they are foreseeable. The podcast examines the rules established in Hadley v. Baxendale to determine if a loss is foreseeable and therefore recoverable as a consequential damage, as well as some practical effects of those rules. It also looks at how Article 2 of the UCC handles disclaimers for liability for consequential damages.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Apply the Hadley rules to determine whether the party in breach is liable for consequential damages.
2. Explain how a party can avoid liability for consequential damages.

A transcript of this podcast is here.

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Reliance (Promissory Estoppel): Discussions in Contracts

February 2nd, 2021 · Comments Off on Reliance (Promissory Estoppel): Discussions in Contracts · Contracts, Lawdibles Audio

The topic of this podcast by Professor Jennifer S. Martin is when agreements that are not enforceable as contracts because they are not supported by consideration are nevertheless enforceable due to reliance on the promise, often referred to as promissory estoppel. It discusses reliance as it pertains to gift promises, including charitable donations. The podcast examines the rule for promissory estoppel, as set forth in Restatement (Second) of Contracts § 90, as well as the form of remedy permitted in cases based upon reliance. To illustrate, the podcast uses several hypotheticals and looks at the following cases: Kirksey v. KirkseyRicketts v. Scothorn, and Bouton v. Byers.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Describe the basic requirements of a contract.
2. Recognize when promises may be enforceable based upon reliance when consideration is lacking.
3. List the requirements of promissory estoppel.
4. Apply the rule for promissory estoppel.
5. Discuss the remedy in promissory estoppel cases.

A transcript of this podcast is here

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UCC § 2-206, Offer and Acceptance in Formation of Contract: Discussions in Contracts

January 25th, 2021 · Comments Off on UCC § 2-206, Offer and Acceptance in Formation of Contract: Discussions in Contracts · All Posts

The topic of this podcast by Professor Scott J. Burnham is how an offeree can accept an offer for the sale of goods under UCC § 2-206. The podcast considers examples of the application of subsections (1)(a) and (b).

Learning Outcomes
On completion of the podcast, the student will be able to:
1. State the default rules under UCC § 2-206(1).
2. Explain when an offeror can vary the default rules.
3. Give an example of “the unilateral contract trick.”
4. Apply the UCC rules to the shipment of conforming and non-conforming goods.

A transcript of this podcast is here.

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Discharge of Duties: Discussions in Contracts

January 19th, 2021 · Comments Off on Discharge of Duties: Discussions in Contracts · Contracts, Lawdibles Audio

This podcast by Professor Jennifer S. Martin discusses a discharge of duties such that parties do not have to perform their contractual obligations and cannot demand performance under the other party’s contract. Consideration is required to support enforcement of an agreement, including a modification of a contract resulting in a discharge of duties. This podcast will look at discharge by rescission, substituted performance, substituted contract, novation, and accord and satisfaction. We will also look at when a discharge is enforceable where it is supported by consideration, including where there is the use of an instrument under U.C.C. § 3-311. The podcast steps you through analyzing numerous hypos.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Explain, identify, and apply each of the methods by which parties may seek discharge to contractual duties: rescission, substituted performance, substituted contract, novation, and accord and satisfaction.
2. Explain when attempts to discharge duties using one of these methods are not enforceable due to lack of consideration for the discharge.

A transcript of this podcast is here

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Assignment and Delegation: Discussions in Contracts

January 12th, 2021 · Comments Off on Assignment and Delegation: Discussions in Contracts · Contracts, Lawdibles Audio

The topic of this podcast by Professor Scott J. Burnham is when rights under a contract may be assigned to third parties, and when duties may be delegated to third parties. Using hypotheticals to illustrate, it discusses the exceptions that limit the transfer of rights and duties to a third party. The assignability of the right to receive money, and the liability involved with the delegation of a duty to pay money, are also covered. Finally, it examines prohibitions of assignment of rights or delegation of duties, including what it means to enforce such a prohibition. UCC Article 9, UCC § 2-210(5), and UCC § 2-210(6) are discussed.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Explain when contract rights may be assigned and when contract duties may be delegated.
2. Recognize an effective prohibition of assignment of rights or delegation of duties.

A transcript of this podcast is here.

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Silence as Acceptance: Discussions in Contracts

January 4th, 2021 · Comments Off on Silence as Acceptance: Discussions in Contracts · Contracts, Lawdibles Audio

The topic of this podcast by Professor Jennifer S. Martin is when silence itself can be acceptance of an offer. Acceptance is simply the name given to an offeree’s action in making the offeror’s promise enforceable. This podcast looks at the exceptional cases where notification of the intention to accept an offer is accomplished by silence.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Explain that silence is almost never acceptance and that the presumption is against silence is being acceptance.
2. Identify and apply the exceptions to this rule whereby silence can be acceptance:
A. The offeree takes a benefit with the reasonable opportunity to reject it and an expectation of compensation.
B. Where there is prior conduct indicating an offeree should be bound by silence.
C. Where the offeror indicates silence can be acceptance and the offeree intends to accept.
D. Where there is an exercise of dominion by the offeree of the offeror’s property.

A transcript of this podcast is here

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