Fall 2019 Notes

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Syllabus

September 1st, 2019

(tentative, August 30, 2019)

Professor Velikonja

Fall 2019

Class Meetings : Monday, Wednesday: 11:10 a.m. – 1:10 p.m. (Room 206).

Office Hours : TBD, [tentative after class on Mondays (1:20 p.m.)] and at other times by appointment. My office is in Hotung 5010. I will also usually be in my office before class and am happy to stay and talk after class. Please e-mail me at urska.velikonja@georgetown.edu or let me know before or after class to make an appointment.

Required texts:

TraceyE. George and Russell Korobkin, K: A Common Law Approach to Contracts (2d ed. 2016).

TraceyE. George and Russell Korobkin, Selections from the Restatement (Second) and Uniform Commercial Code for First-Year Contracts.

Additional material: I may occasionally post additional material on Canvass and indicate whether it's a must-read or just an interesting read. Most, if not all of the cases in the textbook are excerpted. You will only read a small part of the entire opinion (which might at times be over a hundred pages long). If you are interested in learning more about the background of certain famous cases, you are encouraged to read Contracts Stories (Douglas G. Baird, ed.) (2007). Our library has a copy.

Course Objectives

The course covers the legal rules governing the law of contracts. We will learn both, the common law of contracts and contract law as codified in the Uniform Commercial Code. We will begin the course by learning about when and how are contracts made. We will continue by studying defenses to enforcement of a valid contract, i.e., under what circumstances are obligations either fully or partially discharged because of defects at the time of contracting (e.g., a party is a child or incapacitated) or at the time of performance (e.g., performance becomes impossible because). We will then turn our attention to the interpretation of contact terms, whether or not the parties performed as promised, and what remedies may be available for non-performance.

The size of our section makes it challenging to spend much time drafting contracts. We will, however, come across many contractual provisions and will highlight when those were drafted poorly, and explain why. Contract drafting workshops will cover those skills, as well as advanced contracts and business law classes, such as Mergers and Acquisitions.

If there is one lesson that I hope you will take from this class is to understand that we write contracts not for performance, but for breach. As you think about writing a contract, consider the many possible ways in which the contract might fall apart or parties will want to refuse performance. Sometimes, you or your client will want to include provisions that enable the party to terminate a contract or refuse to perform. At other times, you will want to write the contract in such a way as to make it difficult for the other party to terminate the contract or refuse to perform. That skill—limiting the other side's ability to avoid performance while leaving your own options open—is an art perfected over a decades-long career.

Attendance, Preparation and Class Participation:

Academic rules require regular class attendance. Unlike in college, the casebook will not give you all the answers that you need in order to understand the material. Please prepare for each and every class, including thinking through the problems at the end of each chapter and subchapter, and participate regularly.

If in an exceptional case you know that you cannot attend or prepare for a particular class, you may "opt out" by giving me advance notice (i.e., before class). If you do so, I will not call on you in that particular class. Repeated absences or consistent lack of preparation may result in an incomplete grade for the course.

If I call on you, make a good faith effort to answer my questions. Do not be afraid of making mistakes: often the best learning results from exploring uncertainties or analyzing the misconceptions that led to a particular (wrong) answer. Moreover, "mistakes" are often insights, or can provide the basis for clearing up misunderstandings shared by other students in the class.

Examination and Grading:

Your grade in this course will be based on your performance on the final examination. Success on the examination will depend on your analytical abilities together with your knowledge of the substantive law covered in the casebook and class discussions. The exam will be "open book." You will be permitted to use your textbook, statutory supplement (also acceptable are printed or downloaded copies of statutes and regulations), materials distributed in class, as well as notes and outlines prepared by you (either alone or with your classmates). I use regular and valuable class participation to assign grades when exams are close to the grade cutoff (i.e., B+ to A-).

Laptops and Recordings

Classes will be recorded and recordings made available for viewing. The recordings are designed to encourage active class participation in lieu of note-taking, not a substitute for class attendance. Laptops are permitted to take notes.

Readings: Please read the assignment for each class. If we fall behind, please re-read the material we did not get to in the preceding class.

Class 1, Wednesday, 9/4

  1. Introduction
  2. Sources and Purposes of Contract Law (1-8) 1. Definition of Contract (Rest.)
  3. What Is a Legally-Enforceable Promise? (9-14)
  4. Contract Formation
  5. Theory of Mutual Assent (50-54)

Class 2, Monday, 9/9

Theory of Mutual Assent (54-73)

Offer (74-78)

Class 3, Wednesday, 9/11

Offer (74-78, 80-95, 99-100- problems) Cont’d

Acceptance (100-113)

Class 4, Monday, 9/16

Acceptance (100-113)

Termination of Offers (114-125)

Class 5, Wednesday, 9/18

Consideration

Bargained-for Exchange vs. Gift (15-26)

Conditional Promises (32-35)

Illusory Promises (40-50)

Class 6, Monday, 9/23

III. Affirmative Defenses to Contract Enforcement a. The Statute of Frauds (127-139, 148-153)

Class 7, Wednesday, 9/25

b. Statute of Frauds cont’d (153-56)

c. Infancy (156-168)

d. Incapacity (168-183, 187-188 – problems)

Class 8, Monday, 9/30

e. Duress (188-198, 28-31)

Class 9, Wednesday, 10/2

  1. Misrepresentation (199-216)

Class 10, Monday, 10/7

  1. Unconscionability (216-227)
  2. Public Policy (229-240, 246-255)

Class 11, Wednesday, 10/9

IV Contract Interpretation

a. Standard Form Contracts (257-295)

Class 12, Tuesday, 10/15

a. Standard Form Contracts (295-297)

b. The Battle of the Forms (297-309)

Class 13, Wednesday, 10/16

c Parol evidence Rule (309-326)

Class 14, Monday, 10/21

d. Interpretation (327-355)

Class 15, Wednesday, 10/23

V. Implied Duty of Good Faith and Fair Dealing (355-379)

VI. Conditions and Excuses a. Conditions i. Identifying Conditions (383-389)

Class 16, Monday, 10/28

  1. Substantial Performance and Material Breach (389-392, 393-395, 395-396, 398-409, problems at 412-13)
  2. Excusing Conditions: Prevention, Waiver, Divisibility, Restitution (413-429)

Class 17, Wednesday, 10/30

ii. Excusing Conditions: Prevention, Waiver, Divisibility, Restitution (413-429)

1.

  1. Excuses 1. Mistake (431-452)

Class 18, Monday, 11/4

  1. Continue: Mistake
  2. Impracticability (452-464)
  3. Frustration of Purpose (465-474, 477-479)

Class 19, Wednesday, 11/6

  1. Remedies
  2. Punitive Damages (481-487, 497)
  3. Specific Performance vs. Damages (498-514)

NO CLASS on Monday, 11/11 on Wednesday, 11/12

MAKE UP CLASSES will be scheduled

Class 20, Monday, 11/18

1.

  1. Expectation Damages (516-536)

Class 21, Wednesday, 11/20

  1. Mitigation (538-542, 546-556)
  2. Foreseeability (558-560)

Class 22, Monday, 11/25

  1. Foreseeability (561-583)
  2. Reasonable Certainty (583-595)
  3. Stipulated (or Liquidated) Damages (597-605)

Class 23, Monday, 12/2

  1. Non-Contract Claims
  2. Promissory Estoppel (657-678)

Class 24, Wednesday, 12/4

  1. Pre-contractual Negotiations Liability (678-692)
  2. Quasi Contract (Restitution) (694-709)

CLASS TO BE RESCHEDULED:

VII. Contract Rights of Non-Parties

  1. Third Party Beneficiaries

  2. Status as Third-party Beneficiary (607-618)

  3. Rights of a Third-party Beneficiary (626-630)

  4. Assignment and Delegation (637-642, 652-654)