Contracts
Class Notes
More
on the handout problems
If
someone makes the illusion of a promise, but no promise, you can’t
enforce that promise against the promisor.
If only
one side makes a promise, that promise may be enforced if it is accompanied by
consideration. If you make a promise for
nothing, you won’t be bound to it.
Say
you have two unqualified promises: one oral, and one in writing. Sam promises to sell orally, while Betsey
promises to pay by a signed writing.
If
Sam repudiates, can Betsey get damages? No, because Sam has a
statute of frauds defense. The oral
promise is within the statute of frauds and the statute of frauds is not
satisfied. How can the statute of frauds
be satisfied? Betsey could sue him,
depose him, and somehow force him to admit in court that he made a
contract. That provision has been
difficult for courts to work with. Most
courts will allow a suit on an oral promise and the taking of a deposition on
the alleged promisor. However, if Sam is
willing to perjure himself, or Betsey doesn’t depose him, he can get off the
hook and he won’t have to pay.
If
Betsey repudiates, can Sam get damages?
Can Sam enforce her promise? Betsey made promise in
writing, and thus she has no statute of frauds defense. Does Betsey have a consideration
defense? If Sam’s promise was
unenforceable under the statute of frauds, is Betsey’s promise thus
unenforceable on consideration grounds?
Was Sam’s promise illusory? Yes,
and thus it cannot be consideration. In
turn, Betsey’s promise is unenforceable.
Restatement
§ 78
Just
because a promise is voidable or unenforceable by law doesn’t mean it’s not
consideration.
§ 78. Voidable And Unenforceable Promises
The fact that a rule of law renders a promise
voidable or unenforceable does not prevent it from being consideration.
Policy
can make one-sided enforcement appropriate in cases involving, for example,
minors or incompetent persons (a promise by a kid is not enforceable;
a promise to a kid may be enforceable). The policy behind the statute of frauds is to
prevent people from making up contracts that didn’t really exist. We think that is a considerable risk when
there’s no writing. We say that unwritten
agreements that fall within the statute of frauds are unenforceable. We thus deny the ability of Betsey to enforce
against Sam.
However,
we have every reason to believe that Betsey really did make a promise. Therefore, we let Sam recover from Betsey,
enforcing her promise.
Let’s
say, for the sake of problem 4, there’s no statute of frauds or other legal
rules that make promises unenforceable.
Let’s say both Betsey’s and Sam’s promises are in writing. Betsey has made an unqualified promise to buy
Sam’s boat for $5,000. Betsey
repudiates. Can Sam recover?
The
difference between this and problem 1 is that Sam conditions his performance
upon changing his mind and keeping his boat.
Sam has made a promise that it is possible to breach by selling the boat
to somebody else. He promises that he
will do one of two things: he’ll either sell Betsey the boat for $5,000 or keep
the boat for a reasonable amount of time.
During the time he’s promised to keep it, it would be a breach to sell
or give the boat to anyone else. Sam
doesn’t have a “non-onerous” alternative.
Sam has made a promise of substance; it’s a promise that forms
consideration and makes Betsey’s promise enforceable.
Restatement
§ 77(a)
§ 77. Illusory And Alternative Promises
A promise or apparent promise is not consideration
if by its terms the promisor or purported promisor reserves a choice of
alternative performances unless
(a) each of the alternative performances would have
been consideration if it alone had been bargained for; or
(b) one of the alternative performances would have
been consideration and there is or appears to the parties to be a substantial
possibility that before the promisor exercises his choice events may eliminate
the alternatives which would not have been consideration.
§
77(a) is the law of the land in most places; § 77(b) is far more doubtful.
In
the last problem, Sam commits himself of one of two possible actions, each of
which could constitute consideration for Betsey’s promise. Thus, Sam has made a promise that it is
possible to breach.
Obering v. Swain-Roach Lumber Co.
Swain
is in the lumber biz in southern
Before
the auction, Swain and the Oberings sign an agreement that says “if Swain buys
the land at the auction sale, Swain and the Oberings agree that Swain will sell
to the Oberings for $8,000, and the Oberings will give Swain four years to
remove the timber.” Is that a
contract? The court says no in
dicta. However, in its holding the court
says that it became a contract upon the Swain’s performance, that is, when they
bought the land at auction.
The
court views the writing from before the auction as an offer by the
Oberings to buy the property for $8,000.
This offer was accepted when Swain became the high bidder at the
auction. Until the auction, the Oberings
were free to withdraw the offer.
The
Oberings have two defenses: (1) they say the description of the land was
inadequate. This is silly! Both parties knew exactly what land they were
talking about. There was a perfect
meeting of the minds as to what land they were talking about. (2) The Oberings argue that Swain wasn’t
bound to do anything, however, Swain did perform, at which point a contract was
created.
Swain
made a promise that it is possible to breach.
They could decide (1) not to buy the land at auction, or they could (2)
go ahead and buy it and then turn around and sell it to the Oberings under the
agreed conditions. This suggests that
the court was wrong in its dicta: there was a contract from the signing
of the writing. It is argued that
foregoing buying the tract of land is a forbearance of enough significance to
independently constitute consideration for the Oberings’ promise.
Compare
the promise made by Swain to the promise of Sam in Problem 4.
Problems
on p. 293
Why
might the contract not be enforceable?
The seller has maintained certain controls over his promise.
In
the first situation, the seller has the right to cancel upon the buyer’s
default. Thus, the seller’s opportunity
to get out of the contract is not within the seller’s control, and the contract
is enforceable.
In the
second situation, the seller is not bound to do anything until there is less
than 10 days to go before performance.
This is a comment clause in employment contracts. The exchange here is unbalanced. Consider an employment contract constructed
this way: the employer might promise three years employment, while the employee
only really promises two weeks’ employment.
Usually, we’ll uphold this contract, especially if we’re within two
weeks of the employee’s start date.
Cancellation
requires giving notice. What is the
promise? “Either I’ll do it, or I’ll
give you notice that I won’t.” Giving
notice isn’t much, but it could be bargained for; it could be consideration.
In
the third situation, the seller agrees to give notice, but there is no
specified time period. The contract
can’t be enforced until at least some performance has occurred. Before performance occurs, it is uncertain as
to enforceability.
In
the second problem, the seller reserved the right to cancel at any time without
notice. Now, the seller’s promise is
clearly illusory. The buyer will have
both a statute of frauds and a consideration defense.
Suppose
that the seller shipped 100 sweaters and the buyer received and accepted the
100 sweaters. What will the situation
be? Can the seller collect damages for
the buyer’s refusal to accept the other 400 sweaters? No, because for those 400 sweaters, the buyer
has both a statute of frauds defense and a consideration defense. Can the seller recover the agreed price of
the 100 sweaters delivered to the buyer?
Yes, under § 2-201(3)(c), the statute of frauds is satisfied by goods
received and accepted. Is there any
consideration problem with respect to the 100 sweaters? No!
The consideration for the buyer’s promise to pay is the performance: he
got the sweaters!
Paul
v. Rosen
Here’s
a promise to sell a retail liquor store business for $25,000 plus what the
booze in the inventory is worth. The
contract is conditioned upon the buyer obtaining a new lease from the owner,
however the buyer is not bound to try to get such a lease. The court holds that this makes the buyer’s
promise illusory. Thus, there is no
consideration to support the seller’s promise and the seller can walk away from
the deal. This would not likely be the
case now. If there had been an express
promise on the part of the buyer to use reasonable efforts to obtain a lease,
then the seller’s promise would have been unenforceable. A majority of courts today would find an
implied promise on the part of the buyer to make such reasonable efforts.
Wood v. Lucy, Lady Duff-Gordon
This
is a Cardozo™ opinion! We have a big
agreement between Wood and Lucy. Lucy
promised Wood in writing the exclusive right to market her endorsements and
designs for a year. Lucy broke the
promise by marketing her stuff through Sears.
Lucy’s
defense is that her promise was unenforceable because she didn’t get anything
from Wood. She says Wood didn’t promise
her anything. That’s arguably a good
defense unless we find an implied promise within this agreement. Wood has not expressly promised to do
anything. He hasn’t promised to
market Lucy’s stuff. Thus, Lucy argues,
I didn’t make an enforceable promise, and I can do what I want, so there.
Cardozo
makes an argument that there is an implied promise on the part of Wood
to market Lucy’s stuff.
Why
does Cardozo imply a promise to use reasonable efforts? What facts does he use? Lucy has given Wood an exclusive right. If Wood doesn’t do anything, Lucy gets
nothing. It would seem that Lucy
wouldn’t have made this promise if she didn’t express Wood to do his
thing. Wood promised to account for the
profits so that Lucy could get her 50%.
It doesn’t mean anything if Wood doesn’t do anything, but it goes towards
proving an implied promise to use reasonable efforts to market Lucy’s
stuff. Cardozo also sort of says “it
looks like a contract, it quacks like a contract, and so it must be a
contract”. Cardozo also argues that Lucy
is to be paid a percentage of the revenue Wood receives. This helps to imply a promise the Wood will
go and make those revenues.
What
would happen if Wood had promised a flat $50,000 instead? We wouldn’t construe an implied promise; we
wouldn’t have to. There would also be no
question of consideration for Lucy’s promise.
Implying
a promise is distinctly to Wood’s benefit because it makes Lucy’s promise
enforceable and gives Wood a remedy.
Consequently,
if Wood failed to make a reasonable effort to sell Lucy’s stuff, Lucy would also
have a remedy against him.
“This
is a marvelous brief for implying a promise.”
However,
there are some facts that cut in the other direction. There was a wealth of recitals and tons of
lawyers working for both sides, yet there was no express promise included in
the agreement. Why might this be? Perhaps the lawyers intentionally made the
contract non-binding. Perhaps they
couldn’t figure out what kind of obligation they might impose on Wood in order
to protect Lucy. It would be hard to
define “reasonable efforts”, and thus hard for Lucy to prove that Wood isn’t
doing enough to market her designs.
So
it’s open to debate whether or not an implied promise can be construed from
this case. This is a hard case.
Wood
might have spent money in reliance on exclusively marketing Lucy’s
designs. On the other hand, if Wood
hasn’t relied upon Lucy’s promise, it might be better not to make it a binding
contract and let the parties just walk away.
A
hypothetical for tomorrow
Suppose
we have a deal between Ursula Ugly and Rick Rembrandt. Rick Rembrandt promises to paint Ursula Ugly’s
portrait (with sympathy) and Ursula promises to pay Rick $10,000 if she is
satisfied with the portrait. Say Rick
paints, and Ursula is dissatisfied. Or,
suppose Rick paints, and Ursula is too upset to even look at the painting and
won’t pay him. Or, suppose that before
Rick has begun to paint, Ursula finds that she can have Dave paint for
$5,000. Rick sues. Can he recover? Or, what if Rick repudiates? If Dave would do the portrait for $15,000,
can Ursula sue for the $5,000 difference?