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.
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.
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. Kirksey, Ricketts 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.
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.
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.
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.
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.
December 21st, 2020 · Comments Off on Agreements Lacking Consideration: Past Consideration and Moral Obligation – Discussions in Contracts · Contracts, Lawdibles Audio
This podcast by Professor Jennifer S. Martin explains when agreements are not enforceable as contracts because they are not supported by consideration due to the fact that the promise is based on past action or a moral obligation. It also presents common situations involving past consideration, including the exception provided under the material benefit rule. The cases Mills v. Wyman and Webb v. McGowin are discussed.
Learning Outcomes On completion of the podcast, the student will be able to: 1. Explain that for there to be a contract, there must be consideration or another justification for enforcing the agreement. 2. Explain and apply the rule for bargained-for exchange. 3. Explain and apply the rule that promises that are based on a benefit previously received are not supported by consideration but are referred to as having “past consideration” or “moral obligation.” 4. Identify situations where there is no consideration because of the past nature of the benefit, but that the promise may nevertheless be enforceable under the material benefit rule where a promise is made after the promisee conferred a benefit on the promisor and it would be unjust not to enforce the promise.
December 14th, 2020 · Comments Off on Agreements Lacking Consideration: Gift Promises – Discussions in Contracts · Contracts, Lawdibles Audio
This podcast by Professor Jennifer S. Martin considers when agreements are not enforceable as contracts because they are not supported by consideration due to the fact that the promise is a gift. Analyzing hypotheticals, the podcast examines common situations involving gift promises, including conditional gifts, and charitable promises. Cases discussed include Schnell v. Nell, 17 Ind. 29 (1861) and Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (1891).
Learning Outcomes On completion of the podcast, the student will be able to: 1. Explain why for there to be a contract, there must be consideration or another justification for enforcing the agreement. 2. Explain why promises to make a gift are not supported by consideration. 3. Apply the rule for bargained-for exchange. 4. Identify situations where there’s no consideration because there is a promise of a gift.
December 7th, 2020 · Comments Off on Modifications and the Pre-existing Duty Rule: Discussions in Contracts · Contracts, Lawdibles Audio
The topic of this podcast by Professor Jennifer S. Martin is when contract modifications are not enforceable due to the pre-existing duty rule. Consideration is required to support enforcement of an agreement, including a modification to an agreement. In this podcast, we will look at when the pre-existing duty rule renders modifications unenforceable and when the modern common law rule and the rule of UCC § 2-209 permit enforcement of some modified agreements in the absence of new consideration.
Learning Outcomes
On completion of the podcast, the student will be able to:
1. Explain that a modification of a contract has to be agreed to by the parties.
2. Explain that modifications follow the same rules of assent as apply to the formation of contracts.
3. Identify and apply the pre-existing duty rule that requires modifications to be supported by new consideration to be binding.
4. Explain and apply the modern common law rule that permits modification without new consideration if there are unforeseen circumstances, and the modification is fair and equitable.
5. Explain and apply the rule of UCC § 2-209, which also validates contracts as modified without new consideration.
