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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Thursday, January 28, 2010

1 - The Order of Contracts

THE ORDER OF CONTRACTS

Academically, contracts is best taught in the following order:

1. Contract Formation. In formation, we look at mutual assent (offer and acceptance), consideration and defenses to formation. Typically, you don’t see “revocation” in the definition of formation, but the student should remember that revocation should be discussed between offer and acceptance.

2. Contract Performance. In performance, we look at conditions, discharge and breach of contract.

3. Contract Remedies. In contract remedies, we look at remedies at common law and remedies under the UCC.

I have already made a number of posts regarding contract remedies that I won’t repeat, but in coming posts, we will look at formation and performance.

Stand by.

Professor Doug Holden
© 2010 Douglas S. Holden. All Rights reserved.

9 comments:

  1. Hello Professor Holden:

    In class you stated that the "fill in" of missing material terms was only under UCC but in another lecture (recorded) it was stated that terms other than price & description could be filled in by the courts.

    Thank you for your clarification.

    ReplyDelete
  2. Thanks for the Question. If you will tell me what lecture and where in the lecture you heard that, I will be glad to check it out. At common law, there were no gap fillers. Either you have the terms or your don't. Some jurisdictions, by analogy, will do that, but academically, if you just tell your grader that courts will fill some terms in, without talking about the difference between C/L and the UCC regarding gap fillers, your grader will believe that you don't know the difference.

    Professor Holden

    ReplyDelete
  3. Professor Holden: Is the following correct:

    Agreement to Agree (regarding a material fact)
    makes the contract invalid.

    Agreement to negotiate in good faith (regarding a material fact makes the contract valid.

    Thank you.

    ReplyDelete
  4. Professor Holden:
    During your lecture for Module 3&4 time: 47.43
    "The general rule is that I can revoke that at anytime before full performance, but once performance has begun, then that offer becomes irrevocable for a reasonable period of time."

    Should this state: "I can revoke that offer at anytime before "performance has begun rather than before "full performance?" Just trying to get the rules down accurately.

    Thank you.

    ReplyDelete
  5. The GENERAL Rule is that an offeror can revoke at any time before full performance. Most jurisdictions now hold that once the offeree to a unilateral contract COMMENCES performance, she will have a reasonable time to complete performance.

    On and essay, always start with the general rule.

    Professor Holden

    ReplyDelete
  6. At C/L, we mean by essential terms, Price, quantity, time for performance, etc. All the terms we need in the formation of every contract. If it is not in the writing, it probably cannot be enforced against the other party.

    Under the UCC there is one that cannot be filled in: Quantity. The UCC has "gap fillers" for every other term but this one. We can use a market price, a reasonable time for delivery, merchantable quality, etc., but if we don’t know how many, we cannot enforce the agreement.

    Professor Doug Holden

    ReplyDelete
  7. An Agreement to Agree means that there has been no meeting of the minds an thus the attempted contract is not enforceable.

    An Agreement to negotiate in good faith, as a term to a contract, would still have to establish a reasonable mechanism to determine how to do that in order for a contract to be enforceable. IOW, a contract that says "We don't know what the price, quantity or time will be, but we agree at a later date to negotiate it in good faith" would render the proposed contract unenforceable because essential terms are missing and there is no reasonably defined mechanism to determine the terms.

    Professor Holden

    ReplyDelete
  8. Thank you. I think the confusion I had was when the recorded lecturer spoke of courts imposing "marketable title" and "reasonable closing dates" in CL on a real estate transaction. These are not "material terms" he is talking about.

    I do have another question regarding a comment made by the recorded lecturer regarding acceptance by performance. He used the sale of his laptop as an example and stated the only acceptable acceptance of his offer would be if the offeree wore a yellow shirt to law class on Friday. If the person did not want to accept, but wore a yellow shirt on Friday for one of many reasons, would there be a breach? Certainly the offeror is the master of the offer, but is he the master of someone's wardrobe choice?

    ReplyDelete
  9. The offeree must have an intent to accept. If he doesn't, then there is no agreement.

    Professor Holden

    ReplyDelete