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Elon University School of Law
Molony, Thomas J.

Molony Contracts 1 Outline
Wednesday, September 12, 2012
6:32 PM
                          I.            Introduction to Contracts
         I.            What is a contract?
o    “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”
o    Exchange relationship created by agreement between two or more parties, containing at least one promise, and recognized as enforceable by law
·         We get contract law primarily from state law
       II.            What Makes an agreement into a contract
There are two sources of contract law:
                         1.            Common law
o    This is primarily judicial made law
                         2.            Statutory Law
o    This is law from state and national legislatures
o    These don’t include everything so we rely on courts to interpret the statutes and to fill in the gaps
       C.            Enforcement of Contracts
          ·            Something in constitution called the Supremacy Clause
o    Said that federal laws of the US and treaties of the US supersede the state law if there was an inconsistency
·         Said this is known as preemptive
Restatement 2nd of Contracts
o    This is not law but courts consider it and it can be persuasive
o    It only shows what the drafters think should be law but it is not actual law
Uniform Commercial Code
·         To the extent that we look at the Uniform Act this is not law
·         What happens is that legislatures look at this and enact this code and then it becomes law
o    Various states make changes to this code and adopt it as their law
·         When a rule is necessary to decide a case then that is binding
o    If the court talks about different scenarios and what would happen then that is not law
·         This is known as Dicta
o    Not every promise has a legal remedy
·         Breaching a moral commitment does not necessarily create legal remedies
o    Without a legal remedy, the promise has no legal consequence
          ·            Sale of Goods
      A.            An Introduction to Article 2
1.      Creation of Uniform Commercial Code
·         Even where such statutes are enacted, the common law rules of contract law apply to the transactions in question to the extent that they are not displaced by the statutory provisions
·         If UCC provides for something then that applies in place of the common law
o    Common law fills in the gaps and helps to explain the meaning of the terms
·         Predominant Purpose Test
o    Language of K (Contract)
o    Nature of the business of the supplier of the goods

    Printing standard terms on the product's packaging
o    Printed on exterior of packaging and discernible before opening the package
·         Skrinkwrap Terms
o    Terms included inside the package (printed insert or manual packaged inside- or electronic copy on software)
o    Not apparent on package and only seen when opened
    o     Notice & the Duty to Read Standard Terms in a Web-Based Transaction: Clickwrap & Browsewrap Terms
                            ·            Clickwrap
o    When websites require customers to check that they have read terms and conditions before completing a purchase
o    Buyer has to indicate assent before purchase
                            ·            Browsewrap
o    Making terms available through a link (but clicking link is not required to purchase)
o    “may not require buyer to take any affirmative steps to indicate assent”
                            ·            Rule (from Supplements case)
o    Purchaser does not necessarily have to click a box saying they agree to terms and conditions in order to be bound to the terms