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Contracts II
University of Dayton School of Law
Kreutzer, Jacob R.

Contracts II Kreutzer Spring 2015

I. Remedies for Breach of Contract

A. Three Damage Interests

1. Expectancy — Hawkins v. McGee

a. Gross

b. Net

2. Reliance

a. Essential

b. Incidental — Nurse v. Barnes

3. Restitution

B. Limitations

1. Foreseability – Nurse v. Barnes (limited) and Hadley v Baxendale 2. Certainty – Dempsey

3. Avoidability

a. Mitigation

b. Lost volume rule (boat seller)

c. Personal Services

C. Contracting around Default Rules

D. Specific Performance

1. Land

2. Goods

3. Personal Services

a. Lumley Doctrine

b. Moral Concerns



c. Economic Concerns


d. Modern Application

E. Restitution

1. For Breach

2. To Party in Breach

3. Cause of Action

II. Contract Formation

A. Objective Theory of Assent

1. Requirements for Contract

a. Manifestations of Mutual Assent

b. Consideration (“something else”)

2. Offer and Acceptance

a. Offer – Willingness to conclude and invites acceptance to conclude

b. Options – Firm Offers (limitations of offeror to revoke)

3. Objectivity – Embry Standard

B. Offer

1. Defined

2. Problem with Intent/Interpretation

3. Role of Certainty or Definiteness

Nebraska Seed

Table legs example (Price, Quantity, Time, Place, Manner, Quality) – Indicators of offer to show definiteness.

C. Acceptance

1. Correspondence

a. Dispatch

b. Manner

i. Invited

ii. Of offer

c. Can be limited by offer

d. Options – Why is there a different rule?

2. Silence

3. Performace – White v. Corlies and Tifft

D. Filling Gaps

E. Subjectivity v. Objectivity


1. Contract

2. Performance

3. Dealings

4. Trade

F. Parol Evidence

1. Extrinisic – spectrum

2. Integration

3. Ambiguity and Vagueness

G. Battle of Forms

H. Statute of Frauds

I. Consideration

J. Adequacy of Consideration

III. Enforceability

A. Promissory Estoppel as Consideration Substitute

1. Family Promises – Ricketts v. Scothorn

2. Land – Greiner v. Greiner

3. Charities – Allegheny College

4. Pensions – Feinberg v. Pfeiffer

5. Construction Bids – Baird v. Gimbel

B. Promissory Estoppel as a cause of action

IV. Performance and Breach

Skip material breach and contract conditions

V. Defenses to Contract

A. Incapacity

1. Incompetence

2. Infancy

3. Intoxication

B. Improper Measure

1. Misprepresentation

2. Duress

a. Improper Threats

b. Economic Duress

3. Under influence

4. Unconsciability

C. Incorrect Assumptions

1. Mistakes

a. Mutual

b. Unilateral and duty to disclose

2. Changed circumstances

a. Impossibility

b. Frustration of Purposes

Contracts Outline

Introduction to Contract:

1. Prima facie case of breach of contract –

a. Elements of mutual assent

b. Enforceability

c. Breach

2. Three dimensions of the law (three levels of


Holding: Up until the time of conception. Agreement was valid and enforeceable, not invalid for public policy – doesn’t fall under adoption law. Whitehead breached by failing to give up kid and renounce parental rights. Order special performance to give the kid over and give up her parental rights. The case then went to the Sup Ct.

In re: Baby M Take II – NJ Supreme Court – ’88.

Facts: Same, except Whitehead contends that contract was illegal and unenforeceable.

Issue: Was the K illegal and invalid based on statutory law and public policy.

Holding: Yup. They said that it should come under adoption provisions and that it violated them. Danger that consent was not well informed or even voluntary – all public policy. Not into parents having to give up rights because of contract. They also worried that she was not as competent or well situated to make such a deal, being poor and uneducated.

“The Surrogacy contract is based on principles that are directly contrary to the objectives of our laws. It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and her maternal fitness; and it does all of this; it accomplishes all of its goals, through the se of money.” P. 47 à benefits rich and price of poor.