I. Introduction to Ks: pps: 3-7
a. What is a K? pps: 7-18
i. A contract is an exchange of promises supported by consideration. There are different rationales for enforcing some Ks but not others such as efficiency and morality. For a breach of K, courts can award monetary damages or specific performance, but the preferred remedy is monetary damages.
ii. Exchange of promises, consideration
iii. Promises to give= not enforceable, but promises supported by exchange = contract
iv. Theory of Obligation: Why enforce some K’s but not others?
v. Preferred remedy is monetary damages
vi. Wholly executory contracts: neither party has done anything
vii. Shaheen v. Knight (1957)
1. pays doctor for sterilization, wife has another child, wants monetary damages, last thing you want is specific performance in doctor cases
2. Is there an enforceable K? Is there a remedy?
3. Defendant argues: against Public policy to encourage sterilization and “no warranty of cure”
4. Dr. wants to recharacterize the suit as a torts suit, which he would win because there is no allegation of negligence.
5. no injury from a healthy birth, purpose of marriage is to have children
b. What can be a K? : PP: 18-45; 55-57; skim 45-55
i. Restatement Section 1: Contract Defined
1. A contract is 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.
2. Section 4: How a promise may be made
a. A promise may be state in words either oral or written, or may be inferred wholly or partly from conduct
c. Why so much litigation?
i. Unequal bargaining power
ii. Transaction cots
iii. No meeting of the minds
iv. Incomplete Ks raise costs of courts, saves contractees money at the time, might not occur
d. IN the matter of Baby M Case
i. Sometimes public policy is the reason Courts choose not to enforce Ks.
ii. Trial Court (1987)
iii. Whether adoption laws
l parents should keep their children
b. Statutes govern
i. only terminate parental rights when evidence of negligence, abuse, abandonment
ii. best interests analysis
iii. cannot contract to terminate parental rights, must be done under family law
4. need legislation on surrogacy
5. Custody to father, but surrogate mother still has parental rights
x. Restatement Section 178: When a term is unenforceable on grounds of public policy
a promise or other term of an agreement is unenforceable on grounds of public policy is legislation provide that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstance by a public policy against the enforcement of such terms