April 28th, 2020

As the final draws ever closer, the class in general and myself specifically are uncertain about the standards you intend to hold us to. Most, but not all, of our other professors have stated that due to the current difficulties and the pass/fail nature of the class, they are not necessarily going into the grading process with the same standards as they would. In my discussions with my peers they are uncertain if you are expecting the same results from us after this remote learning as you would had our class continued to meet regularly. For example, Professor Gudridge stated that so long as we, “address the questions in some way that I can see relates to the substance of the questions and the materials of the course,” we will pass. Is this the standard you are holding us to? It would be a great burden off of our collective shoulders in this time of stress if you would just clarify this particular aspect of the exam. Your input is greatly appreciated.

—– It is strange to receive this question just before the exam. If you have not been studying, you are doing yourself a disfavor. You will need to know Contracts very often in your career. See post below. Go back to the “Introduction to the Course”, in which practicing lawyers are surveyed and reported that by far Contracts was the most important class they took in law school.

I will grade the exam using the same standard that I have used in the past. That said, you will not receive a grade.

Final Examination

April 15th, 2020

The final exam will be four hours and 15 minutes in length. It is scheduled for the time and date originally planned (4/29). If you will have difficulty taking the exam as scheduled, please contract the Registrar.

It is an open book examination. Exam4 will be in “Open” mode so that you can access your notes and outline on the computer.

Like the ones on this website, it will consist of three issue-spotter questions.

Other questions?

Studying: Foundational Material

April 9th, 2020

I have described the first year of law school as boot camp for a thirty-year hitch. You are supposed to work incredibly hard. Hence it is a boot camp. It’s material is foundational. The required courses were not chosen accidentally, but are foundational to the rest of your career. I have compared the first year of law school to the first year of medical school and that you should think of yourself in that manner. A doctor who doesn’t understand the fundamentals of anatomy or pathology will never master the courses that follow and will be a much poorer doctor as a result.

This year, you will not be studying for a grade. But this year, like every year, you are studying for your future clients. You want to be prepared to be able to help them. Keep your eye on them.

And remember that contracts are everywhere, from plea bargains, to wills, to family disputes to differing forms of business and have tax, immigration and other implications.

Stay well.

Syllabus 37: This is the End: A Duty to Communicate?

April 9th, 2020


Talk it out lyrics – Matt Corby & Tash Sultana – YouTube


Would the author (pg 588) say that a party is justified in suspending his performance in a situation like COVID-19? I don’t know. At 588, he is talking about importance of communication. The question regarding COVID-19 is whether it is a change in an assumption basic to the contract in question (and that the risk of which has not been allocated by the parties) (See Syllabus # 35).

Syllabus 36: Finger 4 (2): Good Faith

April 9th, 2020


Syllabus # 35: Finger 4 (1): Changed Circumstances

April 9th, 2020


Syllabus # 34 (2): Rescission, Modification and Waiver

April 9th, 2020


1. If there was a clause in the Clark v. West contract which said “No future modification of this contract would be permitted” would the court have decided differently? Such clauses and No Oral Modification clauses outside the sales of good (2-209(2)) are usually understood as not being enforceable under the logic that first, the parties agreed to rescind the contract with that clause, and second, they agreed on a modified contract.
2. What is the difference between illusory and conditional promises? — One cannot accept an illusory promise.What is there to accept? The promisor is supplying only the illusion of consideration. Most contracts have conditions (e.g., order of performances). The non-occurrence of a condition (that one party does not promise will occur)(or is not under the control of a party), relieves the obligation to perform the contract.

Syllabus #34 (1): Performance

April 9th, 2020


I understand that the test for breach under the UCC Perfect tender Rule is whether the goods fail in any respect. Under the common law for total breach it is when there is material failure. What I do not understand is how this works with the standard for acceptance of goods: whether the non-conformity substantially impairs value. Why is this third test being used? — The third standard applies after there has been an acceptance. It is the standard for the revocation of the acceptance. After having inspected the goods, and there has been an acceptance, the perfect tender rule no longer applies because the buyer has accepted them despite their non-conformity.

Syllabus # 33: Total Breach and Anticipatory Repudiation

April 9th, 2020


1. How do you obtain a statement of intent from a breaching party? And if these are hard to obtain, does that mean most people trying to sue end up relying on anticipatory repudiation? And how does the non-breaching party do these usually? Is it a conversation or a document asking the breaching party to admit whether they will materially breach or not? I guess I am confused as to how anticipatory repudiation looks like in real life. — If you are a client, your lawyer will advise you to send a letter (normally – in old days – return receipt requested), detailing grounds for insecurity and asking for assurances. In real life, people say, “Are you going to do what you promised?” Or “I’m insecure, can you convince me that you will perform?” Or, more often, a party says, “F U, I’m out of this contract. I don’t ever want to do anything with you ever again.” Or “You broke your promise. I’m not going to do what I promised”. This last one raises the question of who breached first. That person is the breaching party.
2. What is adequate assurance of due performance under RST 2nd section 251? Illustrations 7 and 8 are clear, but is the obligor’s word (over the phone) sufficient assurance that he will perform? — Like all determinations of whether facts are sufficient to support a legal conclusion, such as the finding of “adequacy,” the answer must be “it depends.” Given the situation, would a reasonable insecure party be assured?

The Battle of the Forms – Cases

March 31st, 2020