Contracts
Class Notes
Who
sued whom? Hawkins sued McGee. Why? Because Hawkins was unhappy with the result of the operation. So what do we do when we’re not happy with a
situation like this? We go to
court. What we don’t do is go beat up
Dr. McGee.
The
most important thing that our civil law does is avoid civil war…we settle our disputes
in the courthouse.
We
have a lawsuit here because Hawkins is seriously disappointed in the results of
the operation. What’s the first thing
you do when you’re going to file a lawsuit?
You hire a lawyer. What does the
lawyer do? He/she thinks up theories
that the lawyer can use to turn the plaintiff’s hurt into a remedy. What remedy does Hawkins want? He wants the big bucks. (The damage cannot be undone, apparently.) That’s overwhelmingly the remedy we’ll deal
with contracts, torts, and most other civil lawsuits.
What
theories does the lawyer come up with?
The lawyer sues for negligence and breach of contract. What’s a synonym for negligence in this
context? Malpractice. That’s another way to say professional
negligence. If you allege negligence,
you allege a want of ordinary care.
What’s
another theory the lawyer comes up with?
“A lawyer feels more comfortable when they have both a belt and
suspenders.”
What
happened to the negligence claim in the lawsuit? It was thrown out. A nonsuit was ordered on the writ of
negligence.
We
are going to learn about the roles of the trial judge, jury, and appellate
court in contract cases.
The
trial judge orders a nonsuit. The trial
judge takes the negligence claim away from the jury. They’re not allowed to think about it. On what basis does the judge do that? The judge can find that no reasonable person
could find negligence. The judge
believes it would be irrational for the jury to find negligence. The plaintiff has a loser on this count and
it never goes to the jury.
The
jury could come out with an irrational verdict if they’re swayed by
emotional attachment to one the parties.
What
do we mean by “without exception”? It
means that the plaintiff’s lawyer did not object and did not reserve the right
to challenge the nonsuit on appeal. So
the theory of negligence has dropped out of the case. The appellate court doesn’t need to say
anything more about it.
One theory down, one to go. The second
theory is that Dr. McGee breached a contract with Hawkins.
What’s
a contract?
-
A
contract between two or more individuals?
-
Some
things are not a contract. Some things
are just statements of opinion or predictions.
The
court said that Dr. McGee’s statements about the “three or four days” were clearly
not a contract. Why? They are expressions of opinion or
predictions. These don’t amount to a
contract, in broad terms.
But…what
is a contract? “A
promise that can be enforced by law.”
Check out the Restatement, §1.
“A
contract is a promise the law will enforce.”
“This
course could be called ‘Promises’ instead of ‘Contracts’.”
A
promise is a commitment. X or Y will
happen – that’s just an opinion. There’s
no engagement that you can count on X or Y happening.
The
weatherman doesn’t promise it will rain tomorrow, the weatherman predicts
that it will rain tomorrow.
When
doctors talk to patients about the results that they will obtain when a
procedure is finished, they will rarely promise a specific result. To do so would be “dippy”. If they make such a promise, the law will
hold them to it.
Why
does this appellate court say that it was right for the trial judge to let the
question of contract formation go to the jury?
-
There
was a solicitation of the operation.
That’s significant.
What
words came out of Dr. McGee’s mouth? The
jury decides this question of fact. The
jury seems to have believed Hawkins over McGee.
This opinion is written on the basis of the facts as the jury saw them.
Some
contracts are wholly unwritten.
This was an oral contract.
What
about hearsay? This is something you
learn about in evidence. A quick answer:
hearsay is A testifying as to what B says. We don’t allow hearsay to prove facts, but
you can prove what somebody said.
If
this were, for example, a negligence case involving a traffic accident and the
question is whether the traffic light was red or green, you can’t have A
testify that B said it was red.
You have to call B to testify directly.
But
that doesn’t hold here.
First
question with respect to contraction formation: did Dr. McGee say this? The jury decided that he did say this.
Did
Dr. McGee mean what he said? Did he have
reservations? Did he mean to promise
100%? If he says words that can be
interpreted as doing that, and Hawkins interprets those words reasonably as
making a guarantee, then you have a contract.
There’s
often at least some failure of communication involved in these cases, whether
the communication is written or oral. We
are going to decide what the words mean based on what interpretation is most
reasonable under the circumstances.
When
you put it all together, the appellate court finds the trial court was right to
let the question of contract formation go to the jury.
To
prove a breach of contract, the plaintiff must prove three things:
1.
Must
prove contract formation
2.
Must
prove breach
3.
Must
prove damages
Contract
damages
Meaning:
intended compensation for a breach.
Compensatory damages – we focus on the party aggrieved by the
breach. We ask the plaintiff, “What
injury did you suffer?” We try to
compensate the injury as best we can.
But there are no punitive damages.
We
are compensating the plaintiff’s loss.
How do we do that?
There
are two approaches: the trial judge’s approach and the appellate court’s
approach. What the trial court do
wrong? It gave incorrect instructions to
the jury.
The
plaintiff started with a scarred hand.
He burned it on an electric wire.
The idea of the procedure was to correct the scar. They took skin from his chest and grafted it
onto his palm. It resulted in a hairy
palm. So there was positive harm done by
the operation.
What’s
the value of a scarred hand minus the value of the hairy hand? That should be part of the damages, according
to the trial court. Plus, pain and
suffering damages should be awarded.
The
appellate court says that the major damages should be the value of the 100%
hand minus the value of the hairy hand.
Which gives you the most money? It’s
hard to tell, because there’s the difference in pain and suffering.
How
do you value a hand? The value of the
hand turns on whose hand it is. E.g. Tim
Couch’s hands are valuable, though not as valuable as a few weeks ago when he
was the starter. Or e.g. concert
violinists. But lawyers don’t have very
valuable hands.
What
else can you do to determine the value of a hand? It could be non-professional. Maybe you’re embarrassed of your bad
hand. You can put a dollar value on it.
It’s
relatively easy to say that we’re going to give the difference between what was
promised and what was produced, but applying it is considerably more difficult.
When
we look at the case tomorrow with bushels of wheat, it will be far easier to
compute exactly how much the loss is worth.
Maybe
your age can affect the value of your hand.
If you’re young, it’s worth more over the course
of your life than if you’re about to die.
Worker’s
Comp is a situation where we’ve taken certain matters away from courts and
jurists and handled them in a regulatory system. This is very different than an ordinary tort
or contract case. It has its advantages
and disadvantages, but you can find out more in another course.
What
interest was the trial court protecting when he came up with the “scar minus
hairy” formula? The trial court was
protecting the reliance interest. If we
give him his cash, we’re in large part restoring him to the position he
occupied before the contract was made, so far as is possible.
The
appellate court is protecting the expectation interest. This is the standard remedy in
contracts. The idea is to put the
plaintiff in the position he/she would have been in if the contract had
been carried out.
The
expectation interest is the weakest…it has the least “tug on our
heartstrings”. The strongest interest is
the restitution interest, where the plaintiff has a “minus” and the defendant
has a “plus”.
What
is Hawkins’s restitution interest in this case? It’s the fee that he paid to Dr. McGee. Hawkins would have a very strong claim. Example: you go put a down payment on a
car. You come back the next day to pick
up the car, and the dealer says you can’t have the car, and you can’t have the
down payment back either. We wouldn’t
have much trouble determining that you should get your down payment back.
Reliance
interest: it’s a cost that came out
of the plaintiff’s pocket but didn’t go into the defendant’s pocket. It might have gone to a third party, for
example, Hawkins’s hospital fees. With
restitution you’re merely taking the benefit away from the defendant that the
plaintiff gave him/her.
Expectation
interest: this is the value the
plaintiff hoped for, but it’s not something that is in the defendant’s
pocket. Why is this
the typical remedy in contract enforcement?
Hours last 53 minutes in Contracts. But most
classes will run to 55-56 minutes. We’ll
have to miss a class at some point, but we won’t have to make up classes.
For
tomorrow, the assignment is to start on p. 23 and do Acme v. Johnson for
tomorrow.
Pick
up three things before you leave: the assignment sheet, the six problems, and
Harvard Law Record bit about H v. McG. Interesting stuff that’s
not in your casebook.
Keep
in mind that every case you read has human beings in tough situations; lawsuits
are unfriendly things and don’t occur unless something bad is happening.