Select Page

Wayne State University Law School
Hammer, Peter J.

Contract = law
§1 Restatement: 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.
Sources: judicial decisions (common law), statutes (UCC), Restatements, Legal commentary.
Legal agreement between two or more parties that is a common understanding of something that is going to be done in the future by either one or both.
Temporal: Future performance of past expectations.
Relational: Contracts allow us to take legal public laws and apply them to our private relationships to maintain order in our personal relationships. By taking the public laws and applying them to private relationships we make our relationships available and susceptible to public judgment.
Circular: A contract is an agreement that has a legal effect. An agreement that has a legal effect is a contract – the definition is circular.
What is a promise vs. what is a statement of present intent, a statement of present intent is NOT a promise.
Restatement §1,2,5. What qualifies as a promise. Need NOT actually say the word “promise.” Generally any manifestation, by words or conduct or both, which the promise is justified in understanding as an expression of intention to make a promise.
Implied promise
§4 Restatement 2nd: a promise may be stated in words either oral or written, or may be inferred wholly or partly from the conduct.
Going FROM express TO implied; If they did NOT expressly state the promise DID they still IMPLY the promise?
Infer by implicationàwhat a reasonable 3rd party would have thought
Looking at words, conduct, and context, the intent from the actual agreement. Trying to infer intentà the intent may come from a variety of places
Cardozo was readily implying things
Found MORE in Modern Regime than in the classical
Found mostly in Implied in Fact
Lon Fuller: The Functions Performed by Legal Formalities:
i.      Seal is the best example
ii.      Provides evidence of the existing contract
iii.      Evidentiary security may be secured in a number of ways: writing, attestation, certification of a notary
iv.      Makes finding proof and court easier

i.      deliberation (in bargain for exchange)

nctions that the seal used to serve.
Classical = formalism:
1.      1850-1920; Williston, Holmes, Lyndell
2.      First Restatement
3.      Channeling the common law and applying those rules to case.
4.      Objective, rigid rules not afraid to punish people.
5.      You sign it you’re bound.
6.      Fairness is determined by symmetry, the mirror image rule applies.
7.      Issues of law, less govt., indifferent to issues of morality or social policy.
8.      Mechanical black letter law.
9.      What promises should the law enforce: promises under the seal that have remedies.
10. Theoretical applications to the “real world” do not always work. (business settings)
11. An attempt to develop reasonably clear rules on the various issues the courts faced in contract cases. Concern with the impact of these rules on commercial behavior, or with reform of the needs of businesses and consumers, was NOT considered to be an issue for contract law to address.
12. Result = fundamental gap between law and the way the world actually works.