2007.11.26 Commercial Outline

2007.11.26 Commercial Outline - BASIS FOR ENFORCING...

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BASIS FOR ENFORCING PROMISES 1) Contract a) Definition: a promise or set of promises, the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. b) 2 nd R § 1. c) A promise does not have to be in writing in order to be a contract unless it falls under the "Statute of Frauds," discussed below. 2) Applicable Law. a) "Common law" means judge-made law. i) Relies on precedent and a court's notions of sound policy. ii) Some decisions are thoughtful articulations of doctrinal analysis, while others are seemingly instances of mindless obedience to old cases and "majority rules". b) Article 2 of the Uniform Commercial Code ("UCC"). i) Special case of applicable law is transactions in goods. ii) The UCC is a statute that has been enacted in every state except Louisiana. iii) The rules are thus uniform--this is one of the main reason for the statute's development and enactment--but may be interpreted differently from state to state. iv) Where Article 2 does not have a rule to cover an issue, the common law applies. UCC § 1-103. v) The "comments" to each section of the Code are quite important. They are often more clearly written than the sections themselves. However, they are not part of the enacted UCC, serving as legislative history. 3) Types of Contracts. i) Contracts are frequently described as express, implied, or quasi. Only the first two are actually contracts, and they only differ in the manner in which they are formed. b) Express Contract. i) Formed by language, oral or written. c) Implied Contract. i) Formed by manners of assent other than oral or written language, i.e., by conduct. d) Quasi-Contract. i) Quasi-contracts are not contracts at all. ii) The doctrine is used by courts to avoid unjust enrichment in a variety of contexts. One such context is where the contract is for some reason unenforceable, but where something of value has changed hands. iii) Example. I agree to paint your house for $4,000 but we have no written agreement. I paint the house but your lawyer says the deal is unenforceable because it is not in writing. If you have to pay me for the reasonable value of the painting, the doctrinal category would be quasi-contract. (1) Alternative terms are quantum meruit and restitution. 4) Bilateral and Unilateral Contracts. a) A bilateral contract is a promise for a promise. b) A unilateral contract is a promise for a performance. c) Executory Contract or Promise. i) An executory contract is one in which neither party has yet performed. ii) An executory promise is a promise that has not yet been performed. 5) Promisors and Promisees. a) The party making a promise is the promisor, and the party receiving a promise is the promisee. In a bilateral contract, each party is both a promisor and a promisee. ECONOMIC ANALYSIS OF CONTRACT LAW
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2007.11.26 Commercial Outline - BASIS FOR ENFORCING...

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