Embed Size (px)
DESCRIPTION
Lecture notes for students in the University of Münster's foreign law program.
Citation preview
19 March 2012 1
The Essentials
➲ Common Law of Contract
➲ Freitag, 12:00 to 13:30
➲ Matt LeMieux
➲ Contact● [email protected]
19 March 2012 2
The Essentials
➲ Common Law of Contract
➲ Freitag, 12:00 to 13:30
➲ Matt LeMieux
➲ Contact● [email protected]
19 March 2012 3
The Website
➲ Syllabus, readings, lecture notes, additional material can be found here.
➲ Password Protected
➲ http://class.mblemieux.com● Username = commonlaw
● Password = ffa
19 March 2012 4
Subject and Purpose
➲ Subject● title: common law of contract
● principles of contract law common to common law jurisdictions
➲ Purpose● familiarize students with the basic principles and
● to enable them to apply the law to factual situations
19 March 2012 5
Reading Material
➲ Common Law Tort & Contract by Prof. Thomas Lundmark
● assignments by page will be listed on class website.
➲ Also occasional case posted on class website as pdf. or link to external site.
19 March 2012 6
Klausur
➲ Wörterbuch NICHT erlaubt, keine Bücher bzw. Unterlagen
➲ 90 Minuten (sind mehr als genug)
➲ Klausurvorbereitung● an der Vorlesung teilnehmen
● Vor- und Nachbearbeiten
➲ Termine: TBA
19 March 2012 7
Common Law of Contract
The Meaning of Contract and the Basic Attributes of the Contractual
Relationship
19 March 2012 8
Contract Defined
➲ Oxford Dictionary of Law:● “a legally binding agreement”
➲ Black’s Law Dictionary:● “An agreement between two or more persons which
creates an obligation to do or not to do a particular thing”
19 March 2012 9
Contract Defined
➲ Restatement (Second) Contracts, § 3:
● “A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty”
19 March 2012 10
Contract Defined: Traditional Approach
➲ A contract contains the following three elements:
● Offer
● Acceptance
● Consideration
19 March 2012 11
The Legal Meaning of Contract
Contract may be defined as an:
➲ exchange relationship
➲ created by an oral or written agreement
➲ between two or more persons
➲ containing at least one promise
➲ and recognized in law as enforceable
19 March 2012 12
An Oral or Written Agreement
➲ Voluntary and consensual relationship.
● As opposed to other relationships created by law
➲ What is a legally sufficient Agreement?
● Object test
➲ Volition – does it have to be totally voluntary?
19 March 2012 13
The Involvement of Two or More Persons
➲ One doesn't really make a contract with oneself.
➲ NOTE – there can be as many parties to a contract as the needs of the trans-action dictate.
19 March 2012 14
An Exchange Relationship
➲ Relationships can vary in length of time
➲ Essential purpose is an exchange
➲ Reciprocal relationship
➲ Tangible things and/or intangible rights.
➲ basic formula = bargain reached leading to exchange for betterment of both parties.
19 March 2012 15
Promise
➲ Must have at least one outstanding prom-ise.
➲ No promises = nothing to enforce = no K
➲ Promise = undertaking to act or refrain from acting in a specified way at some future time.
● This can be expressed or implied
19 March 2012 16
Bilateral vs. Unilateral
➲ Only need one promise for K to exist.
● But what about “reciprocal relationship”?
➲ Unilateral = at instant of contracting, one party completes performance & all that remains is promise of the other.
➲ Bilateral = both parties have outstanding promises when contract is formed.
19 March 2012 17
Instantaneous Exchange
➲ No Contract!
Eddy Rockykayak “as is”
$400
19 March 2012 18
Promissory Exchange: Bilateral Contract
Eddy Rocky
kayakwith
promise
promiseto pay$400
19 March 2012 19
Unilateral Contract
Eddy Rocky
kayak“as is”
delivered
check--promise of
payment
executed
promiseoutstanding
19 March 2012 20
To Sum Up
➲ Valid K must have at least one outstanding promise.
➲ The promise can be expressed or implied.
➲ NOTE – today a truly instantaneous exchange is rare.
● What about when I sold my cars in St. Louis?
19 March 2012 21
Legal Recognition of Enforceability
➲ Goal of contract law is to ensure the promise is upheld.
➲ Contracts are an act of private law making.
➲ Role of the Court:
● Determine whether there is a contract.
● Resolve disputes over the terms/breach.
● Enforce the promise by giving a remedy.
19 March 2012 22
Enforceability Example
➲ Eddy's promises to give Rocky the kayak tomorrow in exchange for $400.
➲ The next day Rocky arrives with $400 but Eddy has changed his mind. He won't hand over the kayak.
➲ If Rocky sued Eddy, what is the remedy?
19 March 2012 23
World Series of Poker Example
➲ Is there a contract?
➲ What is Mr. Leyser's best arguments?
➲ What are Mr. Gold's best arguments?
Jamie Gold 2006 WorldSeries of Poker Champion
19 March 2012 24
➲ Questions concerning formation or contents of contract are resolved using the rules of offer and acceptance.
➲ These are not firm rules. ● There are sometimes statutes or court ruling that
provide guidance, but often courts must apply these rules to new facts and come up with new rules.
Introduction to Offers
19 March 2012 25
When are Questions Presented?
● Was a K formed?
● What terms are included in the K?
● Which Jurisdiction Governs?
19 March 2012 26
The Basic Modelwithout revocation
Offer
Acceptance Rejection Counteroffer
OfferorAccepts
OfferorRejects
offerormakes c-offer
Contract formedon terms of offer No Contract
K on terms ofcounteroffer
No Contract
and so on
= rejection+ new offer
19 March 2012 27
Next Week
➲ pp. 124-129● Carbolic Smokeball Case
● Livingstone v. Evans
➲ Lucy v. Zehmer – please come prepared to tell me about:● The facts
● The Legal Issue
● The Rule Applied by the Court
● The Result
