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contracts

This is the page for Caroline Bradley’s Contracts Class at the University of Miami School of Law. For the Fall Semester 2015 we will be using the following books: Macaulay, Braucher, Kidwell & Whitford, Contracts: Law in Action: Volume I: The Introductory Course (3rd. Ed. 2010) (Matthew Bender) and Burton & Eisenberg, Contract Law, Selected Source Materials Annotated (Selected Statutes) (July 19, 2015) (West Academic).

WEEK 3: August 31-September 4:
On Monday we will begin with any questions you have about the questions on page 50 of the Casebook. The last hypothetical we looked at on Thursday involved a resale arguably not in compliance with § 2-706, and the question was whether the seller should be able to recover damages based on market price, which would allow for higher recovery than if the seller’s damages would be fixed by reference to the resale price. In Coast Trading Company v Cudahy Company (9th Cir. 1979) the Court said:

..as noted in White and Summers’ treatise, the plaintiff-seller should not be allowed to obtain a greater amount in Section 2-708 damages than the seller actually lost..

In contrast, in Peace River Seed Co-op v Proseeds Marketing (Supreme Court of Oregon 2014) the court said that the plaintiff seller was entitled to recover damages based on market price even if those damages exceeded damages based on its resale price. The court’s analysis was based on the statutory text, the context and legislative history and the court referred to the official comment to UCC §2-703 which rejects the doctrine of election of remedies.

The hypotheticals allowed us to begin to think about expectation damages and to notice that the UCC emphasizes compensation to the disappointed seller (whose expectation interest in the contract is protected) but that this does not necessarily mean that the breaching buyer has to be put in the position he/she would have been in had the contract been performed. As we move through the material on remedies we will see that variations in circumstances make a difference to how we think about the remedies.

Think about this hypothetical (which we can discuss on Monday):

Alpha, a painter, contracts to sell a painting to Beta for $10,000. The painting is to be delivered to Beta on September 30th and Alpha has hired Deltaco, a firm which specializes in fine art deliveries, to carry out the delivery for $500 (the terms of the delivery contract allow Alpha to cancel delivery on 48 hours’ notice). On September 20th Beta calls Alpha and says that the client who had been intending to buy the painting from Beta had changed her mind because she was getting divorced. Beta did not have any other clients who would be interested in buying Alpha’s painting and therefore did not want Alpha to deliver the painting. Alpha cancels the delivery contract. On September 22nd Gamma offers to pay Alpha $9,500 for the painting. If Alpha accepts Gamma’s offer what damages can Alpha obtain from Beta?

For Monday’s class please also prepare to discuss Parker v Twentieth Century Fox (read to page 64). And I am reproducing here what I wrote with respect to this case last week:
Here is a link to the wikipedia page for Shirley Maclaine. And at this point I would like to encourage you to think about the Casebook. The authors spend a lot of time explaining their perspective on contract law. Here is another take on why the perspective a casebook adopts matters. It is from Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 Am. U. L. Rev 1065 (1984-5) at p. 1069:

I do not believe that a casebook is simply a neutral reflection of what students need to know to practice law, to pass the bar, to think like lawyers, or to become law teachers. I maintain that, even within the constraints of professional necessity,’ editors have a wide range of choice in their case selections, their comments, their notes, their problems, and their questions, and the choices they make are not inevitable. The choices could be different and, indeed, choices about content do differ among casebooks within particular subject areas. I also believe that a casebook is a powerful document. The editorial choices within a casebook determine how many readers think about the law of a doctrinal area, about lawyering in that field, about clients, and about legal reasoning… Because a casebook has such power, and because its contents are subject to editorial choice, analyzing the biases of a particular casebook could challenge the effect of the casebook on its readers.

In the article, Frug critiques the treatment of the Parker case in the casebook she is discussing (not the one we are using) because it does not encourage the reader to think about the issues the authors of our casebook raise with respect to Shirley Maclaine’s likely preference for the Bloomer Girl project. At p. 1125 of the article, Frug writes:

Understanding MacLaine as a powerful actress whose feminist politics are respected by the California Supreme Court could also stimulate readers to draw connections between social contexts and legal decisions, between the experiences of parties in a case and the experiences of readers themselves.

In A Theory of Self-help Remedies in Contract (89 B.U.L. Rev. 1397 (2009)), Mark Gergen writes (at page 1403):

The interest in remedial simplicity explains why the law tolerates waste and windfall in this situation. There is reason to believe that MacLaine genuinely preferred the role in Bloomer Girl to the role in Big Country, Big Man. To protect MacLaine from a loss in performing the less desired role, while avoiding waste, the law might require her to take the role in the Western while giving her damages for her loss. This the law does not do. Had MacLaine taken the role, she would have been denied damages for her artistic, political, or reputational loss, as any estimate of the loss would be speculative. The only way MacLaine could avoid suffering an uncompensated loss was to do what she did, which was to reject the role in Big Country, Big Man and get a judgment for the contract price.

For Tuesday’s class please read Neri v Retail Marine Corporation (to page 77) and for Thursday please read In Re Worldcom (to page 89). In thinking about Neri you should focus on the interaction of UCC §2-718 and §2-708. How these provisions fit together is not obvious so please read the provisions very carefully.

Have a good weekend!

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