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SUNY Buffalo Law School
Mensch, Betty

· Public v Private Law
o Public Law: about the ordering of the polity and the states relationship to the individuals
§ Examples
· Criminal law (Standard of Proof = beyond a reasonable doubt)
· Constitutional law (rights of individuals against state actors)
o Private Law: about the relation of individual to each other
§ Examples
· Tort Law (SOP = preponderance of the evidence)
· Property Law
· Contracts (some say most private of all the private laws)
o Because contract is the product of two individuals coming together on an agreement on their own
o Torts the standards are being argued as violations of what has been set up by the legislature
o Contracts the norms/standards don’t exist if not for the parties agreeing on them
· Hawkins v McGee
o Facts: Suit against a surgeon for breach of contract. Surgeon botched the surgery and surgeon made certain promises (health of hand/stay in hospital) that he failed to follow through on
o Procedure: Appeal brought from lower court. Case not brought as a malpractice case; why? Brought in two original suits (torts case (negligence) assumpsit (contract)). Torts case gets 12(b)(6) ed.
§ Allowed to be brought as a contracts case because it seems to be that certain promises were made.
§ Defendant moves to have verdict dismissed (excessive/against the weight of the law); then finally the D says we move the drop the motions to be dismissed if the excess damages (more than $500) is remitted. D finally wins this motion.
o Issues:
§ Was there a contract?
· Two big elements
o What was the promised stay/recovery time in hospital
o Was 100% perfect hand promised
o Problem – when a doctor makes a prognosis is it a guarantee or is it a best guess opinion made in the best interest of the patient

if the contract had actually been performed
§ As a result when measuring damages should look towards as if the hand was 100% perfect
o P gives up pain and suffering for perfect hand – nature of agreement
o Laws should be applied uniformly. But the particular facts must be taken into account
o Hold:
· Groves v Wunder
o Facts: Groves agreed to allow Wunder to use land. Wunder agreed to return the land in certain manner and when done would return the land in same condition. Land was returned jagged and uneven and as a result Groves sues Wunder.
o P sought cost of performance (value promised value delivered) & now the cost of what it would take to level the land (60K)
Problem is P only awarded 15K