Contracts Outline

Contracts-Assignment 1-Sept. 3, 2013
Tuesday, September 03, 2013
8:23 AM
 
A. Contract- “a promise or a set of promises for the breach of which the law gives a remedy” (2).
     -a legally binding obligation arising from a promise. 
 
     -Focus on what obligations arise from a promise and under what circumstances the law will recognize and enforce, and what remedies/consequences are available.
At the end of the course you will be able to answer: “Do the circumstances presented create enforceable contractual obligations, and who will be responsible for what?” 
 
These issues matter for the purposes of contract drafting and planning, as well as for litigating contract claims:
     What kind of promises will the law enforce –> How do parties demonstrate assent to a contract? –> What defenses to enforcement exist? –> Is a writing required for enforcement? if so, what kind? –>How is the content of a contract ascertained? –> What are parties' rights and duties after breach? –> What situations lead to excusing contract performance? –> What remedies are available for breach of contract? –> What contractual rights and duties do non-parties to a contract have? 
 
B. Underlying Principles and Assumptions that are the foundations of Contract Law (and US law in general)-PG4.
 
     1. Freedom of contract:
     2. Predictability and security:
     3. Commercial reasonableness:
     4. Fairness:
 
C. Reason for Conflict among competing Principles:    
 
     Contract law purports to provide general principles to govern agreement without acknowledging that the rules may operate differently depending on:
          1. The nature of the parties
          2. the nature of the transactions
          3. the relationship among the parties
          4. The economic landscape
Assumpsit: (M-W Definition)
-A promise by which someone assumes or undertakes an obligation to another person.
-An action to recover damages for breach of contract
Writ-a formal written document–today it would be the complaint
Name
Hawkins v. McGee
When/Where
Supreme Court of New Hampshire 1929
Facts
-The operation in question consisted in removing a considerable quantity of scar tissue from P's right hand and grafting of skin taken from P's chest in place of the scar tissue.
-The scar was the result of an electoral burn from 9 years previous
-P and his father went to D's office before the procedure and asked how long P would be in the hospital. D replied “3 or 4 days; then the boy can go home and it will be a few days when he will go back to work with a good hand.”
-P claimed that D said before the operation was decided upon, “I will guarantee to make a hand a hundred percent perfect or a hundred percent good hand.
-Evidence that D solicited from P
-Evidence that D repeatedly solicited from P's father for the opportunity to perform this operation. -D had very little skin grafting experience **This may be an assumption of the court:
Plaintiff's Counsel advanced the proposition that D wanted to perform the operation to experiment on skin grafting—Not evidence (P's counsel would have asked: D, isn't it true that you wanted to perform this operation to experiment on skin grafting?)
Allowed to go to the jury because there was language of commitment
Procedure
1. Trial court (jury)-Verdict for P-count in negligence against D
2. D moved to set aside/ overturn the verdict upon the grounds that it was 1) contrary to evidence 2) against the weight of the evidence 3) against the weight of the law and evidence 4) because the damages were awarded in excessive
3. Court denied motion on first three, but found that the damages were excessive and made an order that the verdict be set aside, unless P remit all in excess of $500
4. P refused to remit and the verdict was set aside and P excepted.
5. Supreme Court of NH moved for a new trial.
(if P remits all damages exceeding 500, then verdict will not be set aside. P did not accept this, so a new trial was granted)
 
Issue
 
Holding
-Did D's statement establish the giving of a warranty/promise for the procedure or was it D's optimistic opinion?
(Most times times you are reading appellate court decisions, the apeal has to say that the trail court did something wrong bc you are
-The trial court erred in submitting the count of assumpsit to the jury because no reasonable person could take those as words of promise.
**The court should never have allowed the jury to consider the breach of contract….
 -Plaintiff filed a complaint for…negligence and assumpsit (breach of contract)
Was D's statement an opinion or a promise?
-Court decided it was a promise/warranty
Rules
If the defendant spoke the words attributed to him, he did so with the intention that they should be accepted at their face value, as an inducement for the granting of consent to the operation by the plaintiff and his father, and there was ample evidence that they were so accepted by them.
When someone says something, it should be judged by what is external–not internal.  
Reasoning
There were other factors in the case the supported P's contention of D's statement (e.g. D repeatedly solicited from).
The standard by which conduct is to be judged is not internal, but external.
Damages were excessive–new trial
Application
See pg. 142 in Contracts Book
   -“Doctors can seldom in good faith promise specific results. Therefore, it is unlikely that physicians of even average integrity will in fact make such promises” (142)
   -“Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic promises” (142).
 
*Read cases critically! Be careful of the writer's persuasive techniques
*Court will write their opinion persuasively to back up their holding/finding
      Two potential claims:
1) Negligence