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 […]

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, […]

The first semester of law school is mostly about learning to speak a new legal language (but emphatically not “legalese”), to formulate and evaluate legal arguments, to become comfortable with the distinctive style of legal analysis. We could teach these skills using almost any legal topic. But we begin the first-year curriculum with subjects that […]

We turn our attention now to a closer study of the process by which parties form a contract. In the sections that follow, we will learn how to identify an offer and what constitutes an acceptance. We will examine the special rules for offers of a unilateral contract and for firm offers. Finally, we will […]

We began by asking whether the parties have made a promise. Did West give Bailey sufficient reason to believe that he wished to board Bascom’s Folly at Bailey’s farm? Was Lucy justified in taking seriously Zehmer’s decision to sign the contract for the sale of the Ferguson Farm? Our two most recent principal cases explored […]

The goal of this chapter is to introduce you to some of the fundamental questions that organize our study of contract law and theory. At least initially, we will focus exclusively on the judge-made rules of the “common law.” Prior judicial decisions—often referred to as “precedents”—comprise the only legally authoritative source of the common law. […]