Contracts - wheres the forest? Forum

[abudaba]

So far I'm really comfortable with all of my classes and feel that I have a grasp on the small and big picture.

But

Contracts just isnt clicking into place. I can follow the class discussions fine and the "trees" make sense. But when I sit down to outline I feel like I'm not seeing the big picture of how it all fits. So far we have covered mutual assent, consideration, and promissory estoppel (class moves slow) but I'm still waiting for some sort of epiphany.

Am I alone? When does Contracts generally start to "click?"

[General Tso]

run Forrest run

[Wavelet]

Very broadly speaking, the contracts forest looks like:

1. Is there a valid, enforceable contract?
2. If there is a valid, enforceable K, how do we interpret its terms?
3. Given this interpretation, has there been a breach, and if so, by whom?
4. If there has been a breach, what is the law going to do about it (remedies)?

All the "trees" you've covered so far address Question #1, so it's perfectly normal that the forest seems out of sight. It'll get better once you talk about breach of K and remedies.

[abudaba]

run Forrest run

lol spell check fail. must be a habit from writing my Forrest Gump essay - I miss being able to write about w/e you want like in college

[abudaba]

Very broadly speaking, the contracts forest looks like:

1. Is there a valid, enforceable contract?
2. If there is a valid, enforceable K, how do we interpret its terms?
3. Given this interpretation, has there been a breach, and if so, by whom?
4. If there has been a breach, what is the law going to do about it (remedies)?

All the "trees" you've covered so far address Question #1, so it's perfectly normal that the forest seems out of sight. It'll get better once you talk about breach of K and remedies.

Okay good to know - ty for the feedback. Guess I'll just ride it out but man is it uncomfortable

[vanwinkle]

I had a really great Contracts professor who explained the ultimate theme of the class in this way:

There's a continuum of how enforceable contracts should be. On one end, no contracts are enforceable at all; this would be complete and total anarchy, and nobody would even bother making agreements because they wouldn't mean anything. On the other end, you'd have the Mad Max scenario of total adherence with strict consequences: "Break a deal, face the wheel!" As a society that values both stability and fairness, the real-world answer must lie in the middle, but where?

Because we follow legal rules, saying something is so makes it so not just for that contract but future contracts, so it's important when you're applying the rules to think about what incentives your decision will have not just on this contract holder but the next hundred of them. You have to balance the interests of the individual parties at hand with how the rule you're making will change the way people make contracts in the future.

As such, the forest is, "When should we, as a society, enforce a contract?" Understand the rules not just as they exist individually, but as they represent an attempt to balance competing concerns. Everything you're learning is related to this question in some way.

[abudaba]

I had a really great Contracts professor who explained the ultimate theme of the class in this way:

There's a continuum of how enforceable contracts should be. On one end, no contracts are enforceable at all; this would be complete and total anarchy, and nobody would even bother making agreements because they wouldn't mean anything. On the other end, you'd have the Mad Max scenario of total adherence with strict consequences: "Break a deal, face the wheel!" As a society that values both stability and fairness, the real-world answer must lie in the middle, but where?

Because we follow legal rules, saying something is so makes it so not just for that contract but future contracts, so it's important when you're applying the rules to think about what incentives your decision will have not just on this contract holder but the next hundred of them. You have to balance the interests of the individual parties at hand with how the rule you're making will change the way people make contracts in the future.

As such, the forest is, "When should we, as a society, enforce a contract?" Understand the rules not just as they exist individually, but as they represent an attempt to balance competing concerns. Everything you're learning is related to this question in some way.

tyty just started in on the Chirelstein supplement and I'm gonna keep this in mind while i read.

[LoriBelle]

Do not try to [fathom] the [forest] - that's impossible. Instead, only try to realize the truth: there is no [forest].

[rdcws000]

after our midterm 2 weeks ago I was beginning to think I may have a faint vision of the Contracts forest. It was somewhat coming together using a summary very similar to Wavelet's above.

Then we got into Promissory Estoppel and I took a couple steps back. It seems like the basic gist of this doctrine is: enforce a contract if it follows all these rules you have already discussed, OR if it's the RIGHT thing to do! Now I'm back to being a little bit confused. I'm sure I'll pick it up, but I'd really like to read some cases where it might have been the right thing to do to enforce a promise but P.E. did not apply, because right now it seems like it would cover almost any broken promise that creates some small sense of injustice.

Oh, and another thing... Why does Microsoft Word change the word estoppel to estoppels everytime? I thought I was going crazy. Microsoft Word does not otherwise correct my spelling on words, if it thinks something is spelled wrong it just underlines it in red. WTH?

[Wavelet]

after our midterm 2 weeks ago I was beginning to think I may have a faint vision of the Contracts forest. It was somewhat coming together using a summary very similar to Wavelet's above.

Then we got into Promissory Estoppel and I took a couple steps back. It seems like the basic gist of this doctrine is: enforce a contract if it follows all these rules you have already discussed, OR if it's the RIGHT thing to do! Now I'm back to being a little bit confused. I'm sure I'll pick it up, but I'd really like to read some cases where it might have been the right thing to do to enforce a promise but P.E. did not apply, because right now it seems like it would cover almost any broken promise that creates some small sense of injustice.

Oh, and another thing... Why does Microsoft Word change the word estoppel to estoppels everytime? I thought I was going crazy. Microsoft Word does not otherwise correct my spelling on words, if it thinks something is spelled wrong it just underlines it in red. WTH?

Yeah, it might be hard to fit promissory estoppel neatly into the forest.

It evolved as an equitable remedy when not enforcing a contract seemed unfair, and so some professors teach it under remedies and some people fit it into that part of their forest.

Although that is probably correct from a legal evolution/theory standpoint, I find it a lot more helpful to think of promissory estoppel as an exception to the consideration requirement (and in some jurisdictions, the requirements for satisfying the statute of frauds). I have never seen promissory estoppel used to revive an invalid or unenforceable contract except when the invalidity/unenforceability is due to lack of consideration or a statute of frauds bar. Thus, I fit promissory estoppel into Issue #1 of my forest above.

[dakatz]

after our midterm 2 weeks ago I was beginning to think I may have a faint vision of the Contracts forest. It was somewhat coming together using a summary very similar to Wavelet's above.

Then we got into Promissory Estoppel and I took a couple steps back. It seems like the basic gist of this doctrine is: enforce a contract if it follows all these rules you have already discussed, OR if it's the RIGHT thing to do! Now I'm back to being a little bit confused. I'm sure I'll pick it up, but I'd really like to read some cases where it might have been the right thing to do to enforce a promise but P.E. did not apply, because right now it seems like it would cover almost any broken promise that creates some small sense of injustice.

Oh, and another thing... Why does Microsoft Word change the word estoppel to estoppels everytime? I thought I was going crazy. Microsoft Word does not otherwise correct my spelling on words, if it thinks something is spelled wrong it just underlines it in red. WTH?

Yeah, it might be hard to fit promissory estoppel neatly into the forest.

It evolved as an equitable remedy when not enforcing a contract seemed unfair, and so some professors teach it under remedies and some people fit it into that part of their forest.

Although that is probably correct from a legal evolution/theory standpoint, I find it a lot more helpful to think of promissory estoppel as an exception to the consideration requirement (and in some jurisdictions, the requirements for satisfying the statute of frauds). I have never seen promissory estoppel used to revive an invalid or unenforceable contract except when the invalidity/unenforceability is due to lack of consideration or a statute of frauds bar. Thus, I fit promissory estoppel into Issue #1 of my forest above.

I think of promissory estoppel in much the same way. In my mental "roadmap" of contracts, I first have the old view of consideration as either a detriment to promisee or benefit to promisor. I then transition to the newer "bargained for" theory and how it cuts out certain exchanges (particularly gratuitous ones), because conditions of acceptance could no longer be called consideration. The scope of consideration has narrowed itself down.

But there are still many situations of detrimental reliance that do not constitute consideration in the modern "bargained-for" sense. (Ex. I say I have a TV I would like to give to you. But you live a great distance away and have to make a long drive to pick it up. The drive is not consideration because that is not what I am bargaining for. It is merely a condition of my gift. Yet it is clear that my promise reasonably lead to a great detrimental reliance on your part. This is where promissory estoppel comes in).

The old view of consideration as benefit/detriment was overarching and broad. The modern view narrowed the score of consideration. Yet there is still a firm place in the law for recovery stemming from detrimental reliance based on promises without consideration.

[Na_Swatch]

I had a really great Contracts professor who explained the ultimate theme of the class in this way:

There's a continuum of how enforceable contracts should be. On one end, no contracts are enforceable at all; this would be complete and total anarchy, and nobody would even bother making agreements because they wouldn't mean anything. On the other end, you'd have the Mad Max scenario of total adherence with strict consequences: "Break a deal, face the wheel!" As a society that values both stability and fairness, the real-world answer must lie in the middle, but where?

Because we follow legal rules, saying something is so makes it so not just for that contract but future contracts, so it's important when you're applying the rules to think about what incentives your decision will have not just on this contract holder but the next hundred of them. You have to balance the interests of the individual parties at hand with how the rule you're making will change the way people make contracts in the future.

As such, the forest is, "When should we, as a society, enforce a contract?" Understand the rules not just as they exist individually, but as they represent an attempt to balance competing concerns. Everything you're learning is related to this question in some way.

This sounds pretty good... or, even shorter, our prof says:

"What contracts should the law enforce?"

[kurla88]

Oh, and another thing... Why does Microsoft Word change the word estoppel to estoppels everytime? I thought I was going crazy. Microsoft Word does not otherwise correct my spelling on words, if it thinks something is spelled wrong it just underlines it in red. WTH?

Okay I am a ridic nerd so I am going to answer your MS word question. If you are in 2007 - go into spellcheck, click on options, click on proofing, and then click on AutoCorrect options. You will see a list of the words that Word has listed to AutoCorrect, probably including estoppel. You can delete it from the list, and in the future it will do the red squiggly instead of AutoCorrecting!

Win.

To the OP - I think there's been some good answers already. Wavelet's response was what our Contracts prof taught us. vanwinkle also raises a good point.

I don't know how your final is structured (might be a little different) but for us it was a giant issue spotter. We were looking for all the places that one of the Contracts rules was being broken or there was a promissory estoppel issue, listing those off and comparing them to caselaw and the UCC to see whether the court would recognize them, and then talking about what the remedies/damages might be. I thought it was one of our most straightforward exams.

HTH.

[rdcws000]

Great thread!

Some good points on a Contracts Forest and where Promissory Estoppel fits in, very helpful.

Perhaps more importantly, a solution to my stupid estoppel/estoppels Microsoft problem.

Thank you all.

[Nicholasnickynic]

Do not try and understand the contracts forest.
That's impossible. Instead... only try to realize the truth-that there is no contracts forest
Then you'll see, that it is not the contracts forest that is understandable, it is only yourself.

Edit: I see I was beat to it. nicely done.

[klussy]

I have never seen promissory estoppel used to revive an invalid or unenforceable contract except when the invalidity/unenforceability is due to lack of consideration or a statute of frauds bar. Thus, I fit promissory estoppel into Issue #1 of my forest above.

well, there is Pop's Cones. [ignore if your class did not cover that case]. but true otherwise.

[rbgrocio]

I have a good Ks outline, if anyone is interested. I got an A, and my outline is thirty something pages, if I remember correctly. Ks was my favorite class from first semester. Civ. Pro favorite class second semester. Evidence favorite class this semester.

[rbgrocio]

sent to all who requested and gave their email address

[firebreathingliberal]

Some people just don't get it until the end. My Ks prof said she had an "Ah ha" moment in the waning days of the semester and everything came into focus. So I wouldn't stress Ks now especially since the most ambiguity exists in Ks. There is never a right answer...

[GeePee]

Some people just don't get it until the end. My Ks prof said she had an "Ah ha" moment in the waning days of the semester and everything came into focus. So I wouldn't stress Ks now especially since the most ambiguity exists in Ks. There is never a right answer...

This is what bugs me the most about my class. My professor teaches Ks like there is a right answer to every hypothetical. In class, when cold called, I'll often give more or less an accurate assessment of the doctrine and application to the facts. Then, I come out deciding the issue (when asked) in the opposite way my professor would, only to be told that I'm somehow wrong, and then given the exact same rationale leading to the other conclusion. WTF.

Hopefully the dispositive decisions don't play a huge factor in grades on the final...

[abudaba]

until the Contracts Gods decide to pass down their "ah-ha" moment to me Gilberts (supplemented by the Restatements) is saving my life right now

[rbgrocio]

To all of you requesting to see the outline, I am tooooooo busy right now. Will email you when I have a chance

[wcl2013]

tagged

[jdubb990]

My notes say Promissory estoppel is only enforced in rare circumstances. Is this true? Seems like many agreements between parties in the real world could end up being enforced with P.E..

[prezidentv8]

When does Contracts generally start to "click?"

When you reach the top of the mountain, obvs.