If the parties have formed an enforceable contract and no grounds exist to excuse performance, then a promisor who fails to perform breaches a contractual obligation. Recall that Restatement (Second) § 1 defined a contract as “a promise or a set of promises for the breach of which the law gives a remedy….” We turn […]

When contractual relations break down, parties frequently discover that they disagree both about which terms have become part of their agreement and about how to interpret those terms. We have already seen how the common law last shot rule and UCC § 2-207 determine whose terms govern after a “battle of the forms.” In this section, […]

1. Unconscionability Consider for a moment what might justify using the coercive power of the state to enforce private promises. From a moral perspective, we might think that choosing to make a promise creates a duty to perform. Imagine that Cheryl promises Albert that she will prepare his tax return in exchange for $200. The […]

We have thus far focused on the rules that determine whether the parties have made an enforceable contract. Our attention now shifts to the question of performance. What conduct will be sufficient to fulfill each party’s obligation under the contract? Are there circumstances that might excuse performance? 1. Excuse When we make or receive promises, […]