1L Substantive Law Questions (Get your BLL on ITT) Forum

[Br3v]

Ugh, Gunner Force 5 has locked down professor, looks like you guys are getting all my questions today. Can anyone give some examples of the two exceptions for "illusory contract" under Restatement section 77?

A  promise  or  apparent  promise  is  not  consideration  if  by  its terms the promisor or  purported promisor 
reserves a choice of alternative performances unless 

(a)  each of the alternative performances would have been consideration if it alone had been bargained for; 

or
 
(b)  one of the alternative performances would have been consideration and there is or appears to the parties 
to be a substantial possibility that before the promisor exercises his choice events may eliminate the alternatives 
which would not have been consideration. 

If you paint my house I will either give you my car or paint you a picture, whichever I decide.

As a fire is rapidly approaching by barn. If you paint my house I will give you my car or I will do nothing except go back inside my beautiful barn.

[Easy-E]

Ugh, Gunner Force 5 has locked down professor, looks like you guys are getting all my questions today. Can anyone give some examples of the two exceptions for "illusory contract" under Restatement section 77?

A  promise  or  apparent  promise  is  not  consideration  if  by  its terms the promisor or  purported promisor 
reserves a choice of alternative performances unless 

(a)  each of the alternative performances would have been consideration if it alone had been bargained for; 

or
 
(b)  one of the alternative performances would have been consideration and there is or appears to the parties 
to be a substantial possibility that before the promisor exercises his choice events may eliminate the alternatives 
which would not have been consideration. 

If you paint my house I will either give you my car or paint you a picture, whichever I decide.

As a fire is rapidly approaching by barn. If you paint my house I will give you my car or I will do nothing except go back inside my beautiful barn.

Ohh makes sense. I get (a), just can't be anything like indefinite like "...I will give you my car or something else". Does (b) really only concern instances where other options are effectively "destroyed", like say "If you give me 100 dollars, you can have whichever car wins the demolition derby" (assuming only one can/will survive)?



Bonus question: Holding in the Kirksey v. Kirksey case said that "gratuitous promise is not an exchanged for bargain, even if relied upon". This is just an outdated case right? To show the injustice that occurs without promissory estoppel? Not sure who else read that one, but she pretty clearly relied on the promise.

[FKASunny]

Bonus question: Holding in the Kirksey v. Kirksey case said that "gratuitous promise is not an exchanged for bargain, even if relied upon". This is just an outdated case right? To show the injustice that occurs without promissory estoppel? Not sure who else read that one, but she pretty clearly relied on the promise.

Yep. Our contracts professor was pretty miffed that Antillico got so royally screwed.

[Easy-E]

Bonus question: Holding in the Kirksey v. Kirksey case said that "gratuitous promise is not an exchanged for bargain, even if relied upon". This is just an outdated case right? To show the injustice that occurs without promissory estoppel? Not sure who else read that one, but she pretty clearly relied on the promise.

Yep. Our contracts professor was pretty miffed that Antillico got so royally screwed.

Figured. So a promise to make a gift that is relied upon is enforceable then, assuming elements of promissory estoppel are all good? At that point, isn't that just a promise being exchanged for a performance (move up here girl)?

[Swimp]

Bonus question: Holding in the Kirksey v. Kirksey case said that "gratuitous promise is not an exchanged for bargain, even if relied upon". This is just an outdated case right? To show the injustice that occurs without promissory estoppel? Not sure who else read that one, but she pretty clearly relied on the promise.

Yep. Our contracts professor was pretty miffed that Antillico got so royally screwed.

Figured. So a promise to make a gift that is relied upon is enforceable then, assuming elements of promissory estoppel are all good? At that point, isn't that just a promise being exchanged for a performance (move up here girl)?

If you want to argue that the brother got some kind of benefit from her moving, and he was exchanging a promise for a performance, you're saying it was a contract. If you want to make a promissory estoppel argument, her moving was just something she had to do to to receive a gift. There was no consideration. Like "hey, come over here and I'll give you a piece of candy" --you coming over here isn't exactly something I'm bargaining for. It's just where you need to be to receive my gift.

There's no objectively right way to look at it, you just have to decide which perspective enables you to make the most persuasive argument that the promise should (or should not) be enforced.

[Br3v]

Ohh makes sense. I get (a), just can't be anything like indefinite like "...I will give you my car or something else". Does (b) really only concern instances where other options are effectively "destroyed", like say "If you give me 100 dollars, you can have whichever car wins the demolition derby" (assuming only one can/will survive)?

I dont think it applies to just destruction, but I couldn't think of a way where the other option would cease to exist without destruction. You could probably think of a hypo using a time limit of some sort.

Also, if your prof was like mine, I doubt this would be on the exam lol

[Br3v]

Do I understand damages? I am trying to figure out how the different types connect to each other.

Three different types of damage calculations
(1) Expectation: Put P in position if K performed
(2) Reliance: Give P what he spent in reliance
(3) Restitution: Give P the amount he spent in reliance that conferred an otherwise unjust enrichment on D

Restitution and Reliance are calculated pretty straightforward.

As far as expectation damages, there are a few things that could go into it.
(a) Direct Damages: The damages that came directly from the breach
(b) Consequential Damages: Damages resulting from the consequences of the breach; this is kept in like by Hadley. You cant get consequential damages in reliance or restitution.
(c) Incidental: Not really sure the difference between this and consequential, but roughly: The damages that arise from you trying to correct the breach

[Easy-E]

Bonus question: Holding in the Kirksey v. Kirksey case said that "gratuitous promise is not an exchanged for bargain, even if relied upon". This is just an outdated case right? To show the injustice that occurs without promissory estoppel? Not sure who else read that one, but she pretty clearly relied on the promise.

Yep. Our contracts professor was pretty miffed that Antillico got so royally screwed.

Figured. So a promise to make a gift that is relied upon is enforceable then, assuming elements of promissory estoppel are all good? At that point, isn't that just a promise being exchanged for a performance (move up here girl)?

If you want to argue that the brother got some kind of benefit from her moving, and he was exchanging a promise for a performance, you're saying it was a contract. If you want to make a promissory estoppel argument, her moving was just something she had to do to to receive a gift. There was no consideration. Like "hey, come over here and I'll give you a piece of candy" --you coming over here isn't exactly something I'm bargaining for. It's just where you need to be to receive my gift.

There's no objectively right way to look at it, you just have to decide which perspective enables you to make the most persuasive argument that the promise should (or should not) be enforced.

Makes sense. I think the latter argument seems like a better case, but I'd have to re-read the case to see if he incurred any benefit. I feel like I may be taking advantage of this thread, but here goes another one.

I know the common law doesn't allow a promise based on past consideration + moral obligation (Wills v. Wyman case), and I have in my notes that Restatement section 86 is an exception to this, but I'm not exactly sure how.

86 says: Promise made in recognition of benefit previously received by promisor from promisee is binding to the extent necessary to prevent injustice EXCEPT WHEN:
a. the benefit was a gift or for whatever reason promisor was not unjustly enriched
b. value of of promise is disproportionate to benefit received


I'm trying to come up with a hypo where the promisor was previously unjustly enriched by the promisee, but having trouble internalizing this rule.

[Easy-E]

Do I understand damages? I am trying to figure out how the different types connect to each other.

Three different types of damage calculations
(1) Expectation: Put P in position if K performed
(2) Reliance: Give P what he spent in reliance
(3) Restitution: Give P the amount he spent in reliance that conferred an otherwise unjust enrichment on D

Restitution and Reliance are calculated pretty straightforward.

As far as expectation damages, there are a few things that could go into it.
(a) Direct Damages: The damages that came directly from the breach
(b) Consequential Damages: Damages resulting from the consequences of the breach; this is kept in like by Hadley. You cant get consequential damages in reliance or restitution.
(c) Incidental: Not really sure the difference between this and consequential, but roughly: The damages that arise from you trying to correct the breach

Expectation - put P in position has K been performed (doesn't include pain/suffering or any out-of-pocket expenses like a doctors fee)
Reliance - Put P in position he would be in had the K never been made (pain/suffering, out-of-pocket expense)
Restitution - Any benefit given to D at P's expense

I'm trying to think of how to differentiate between consequential and incidental damages. Say I contracted to buy a truckload of corn from your farm, and for whatever reason you can't don't sell me the corn. I think incidental costs might be the cost of me sending the truck/driver to your farm, whereas consequential damages might be something like loss of another product I had that needed to be mixed up with the corn in a timely manner. If this is totally wrong someone tell me so I can get rid of it...

[Swimp]

I know the common law doesn't allow a promise based on past consideration + moral obligation (Wills v. Wyman case), and I have in my notes that Restatement section 86 is an exception to this, but I'm not exactly sure how.

86 says: Promise made in recognition of benefit previously received by promisor from promisee is binding to the extent necessary to prevent injustice EXCEPT WHEN:
a. the benefit was a gift or for whatever reason promisor was not unjustly enriched
b. value of of promise is disproportionate to benefit received


I'm trying to come up with a hypo where the promisor was previously unjustly enriched by the promisee, but having trouble internalizing this rule.

I don't know if this is a perfect example, but that's pretty much how I thought of Webb v. McGowin. A worker saves his boss from being killed by a falling block and in the process the worker is crippled. The benefit the boss got was his life, which we would probably say is worth an awful lot. The boss says he'll support the crippled worker for life. We might say that if the boss later tried to renege on that promise, we'd want to enforce it anyway b/c otherwise, the boss would have been unjustly enriched at the expense of the worker, who's now in a really bad position.

[Easy-E]

I know the common law doesn't allow a promise based on past consideration + moral obligation (Wills v. Wyman case), and I have in my notes that Restatement section 86 is an exception to this, but I'm not exactly sure how.

86 says: Promise made in recognition of benefit previously received by promisor from promisee is binding to the extent necessary to prevent injustice EXCEPT WHEN:
a. the benefit was a gift or for whatever reason promisor was not unjustly enriched
b. value of of promise is disproportionate to benefit received


I'm trying to come up with a hypo where the promisor was previously unjustly enriched by the promisee, but having trouble internalizing this rule.

I don't know if this is a perfect example, but that's pretty much how I thought of Webb v. McGowin. A worker saves his boss from being killed by a falling block and in the process the worker is crippled. The benefit the boss got was his life, which we would probably say is worth an awful lot. The boss says he'll support the crippled worker for life. We might say that if the boss later tried to renege on that promise, we'd want to enforce it anyway b/c otherwise, the boss would have been unjustly enriched at the expense of the worker, who's now in a really bad position.

That makes sense, the two bullet points I have under exceptions to the common law is the 86 and that case. I noted it's a difficult case to make as well, so my trouble in creating a hypothetical seems warranted. Basically it's a case by case thing then. Thanks.

[FKASunny]

That makes sense, the two bullet points I have under exceptions to the common law is the 86 and that case. I noted it's a difficult case to make as well, so my trouble in creating a hypothetical seems warranted. Basically it's a case by case thing then. Thanks.

The whole point of promissory estoppel and quasi-contract is to fill in the spaces where justice seems to require some kind of enforcement but the elements for a formal contract aren't there. My impression of it is that, because of the whole "in cases where injustice is only avoided by blah blah blah" thing, it's really up to the judge's discretion and difficult to predict exactly what and how much the court will enforce.

[Easy-E]

That makes sense, the two bullet points I have under exceptions to the common law is the 86 and that case. I noted it's a difficult case to make as well, so my trouble in creating a hypothetical seems warranted. Basically it's a case by case thing then. Thanks.

The whole point of promissory estoppel and quasi-contract is to fill in the spaces where justice seems to require some kind of enforcement but the elements for a formal contract aren't there. My impression of it is that, because of the whole "in cases where injustice is only avoided by blah blah blah" thing, it's really up to the judge's discretion and difficult to predict exactly what and how much the court will enforce.

Good point, I never thought to taking the "injustice avoided" thing as an issue for the judge to decide, and was having trouble quantifying that to any degree. This approach makes much more sense.

[romanticegotist]

Explain "narrow tailoring" like I'm five.

[Easy-E]

If you explicitly state the method of acceptance in the offer, and the acceptance does not use that method, is this no contract under Restatement? I know it isn't under UCC.

[sublime]

..

[Swimp]

Explain "narrow tailoring" like I'm five.

http://lmgtfy.com/?q=narrow+tailoring

[Easy-E]

If you explicitly state the method of acceptance in the offer, and the acceptance does not use that method, is this no contract under Restatement? I know it isn't under UCC.

I believe that you are correct. Offeror is the master of the offer and all that.

Okay good. Again, sorry I'm abusing the shit out of this thread this morning, I hope it's a good teaching experience for everyone who didn't have contracts first thing in the morning...

[iworkforlsac]

I would appreciate an answer for the following m/c question in property:

Which of the following property interests is revocable?
a. Lease
b License
c. Easement
d. Deed

[Presidentjlh]

I would appreciate an answer for the following m/c question in property:

Which of the following property interests is revocable?
a. Lease
b License
c. Easement
d. Deed

License. License isn't a real property interest per se, it's giving someone a right to come upon your land for a specific purpose, and can be revoked at any time.

[Easy-E]

Another one...for acceptance of a bilateral K, what's the deal for notice? "Must make reasonable attempt to give notice of acceptance but not required unless expressly dictated" sound right?

[Presidentjlh]

Are you talking like Mailbox rule or what?

[Swimp]

Another one...for acceptance of a bilateral K, what's the deal for notice? "Must make reasonable attempt to give notice of acceptance but not required unless expressly dictated" sound right?

I think your rule contradicts itself (see bold). Reasonable effort to notify offeror of acceptance is always required when you're accepting by promise, unless the offeror stipulates otherwise.

[Easy-E]

Another one...for acceptance of a bilateral K, what's the deal for notice? "Must make reasonable attempt to give notice of acceptance but not required unless expressly dictated" sound right?

I think your rule contradicts itself (see bold). Reasonable effort to notify offeror of acceptance is always required when you're accepting by promise, unless the offeror stipulates otherwise.

Whoops, good point. That makes much more sense.

[Easy-E]

Are you talking like Mailbox rule or what?

Nah, mailbox rule concerns when the acceptance becomes effective, correct? I mean the offeree's duty to notify offeror of acceptance. This is one of those things I'm making more complicated than it needs to be I'm guessing...