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contracts

This is the page for Caroline Bradley’s Contracts Class at the University of Miami School of Law. In the Fall Semester 2019 we are using the following books: Macaulay, Whitford, Hendley & Lipson, Contracts: Law in Action: Volume I: The Introductory Course (4th Ed. 2016) (Carolina Academic Press (looseleaf edition $146.00) and Burton & Eisenberg, Contract Law, Selected Source Materials Annotated.

Classes are on Mondays, Wednesdays and Thursdays from 3.30-4.50 pm in F 109.

Dean’s Fellow Sessions with Cole Baldecchi: Tuesdays @ 4 – 4:50 in Room F200 and Thursdays @ 5:30 – 6:30 in Room F300.

I am in my office on Monday afternoons between 2pm and 3.20 pm if you want to drop in with questions. I am happy to speak with you at other times also but it would be a good idea to send me an email to arrange an appointment. After class is often a good time.

REVIEW SESSION MONDAY DECEMBER 9, 2-4PM IN F108

I plan to discuss the 2018 exam and your questions.

Appointments schedule: Dec 8-10  (Please contact me if you are unsure what time you signed up for). I am also available at other times before December 8th and am happy to answer questions by email.

Here are some examples of past policy/theory essays:  Fall 2013 certainty essay;  Fall 2013 good faith essay

Statutes List:
UCC SECTIONS
2-105
2-201
2-313, 2-314, 2-315, 2-508, 2-601, 2-602, 2-606, 2-608, 2-703, 2-704, 2-706, 2-708, 2-709, 2-710, 2-711, 2-712, 2-713, 2-714, 2-715, 2-716, 2-718, 2-719

In reviewing for the exam you may find it useful to read the following sections of the Restatement:
22, 45, 71, 72, 73, 77, 81, 87, 90, 344, 346, 347, 348, 349, 350, 351, 352, 370, 371.

Themes to focus on (numbers 1-3 are the same as last year’s themes, number 4 is new):

1. Contract law and fairness: how should contract law balance questions of fairness between contracting parties with more general systemic issues. Do the cases you have read suggest that contract law is about fairness or something else? In what cases do you think the results were unfair? And is this explained by some other operative principle? Would it be fair if contract law were more predictable and less uncertain so people could easily know how they should behave when making promises? The idea of a distinction between the idea of the result in a particular case and the rule the case establishes could be relevant to this set of questions. A court that focuses on doing justice in a particular case might reach different results than a court that focuses on establishing a rule that will work in all similar cases. In one sense this theme relates to the courts versus legislatures issues we have been thinking about: should courts behave more like legislatures in thinking that their role is to establish rules?

2. Freedom of contract. Do the materials you have read suggest that contract law really reflects the principle of freedom of contract or not? Freedom of contract is taken to mean freedom to contract and freedom from contract. What sorts of limits on these freedoms have you seen in the materials you have studied? Are there cases where you think that there is too much freedom of contract? Too little?

3. Courts and legislatures: to what extent should courts defer to legislatures? Deference might apply to the question whether courts should decline to develop the law in deference to the legislature. Marvin v Marvin and Hewitt v Hewitt (and Blumenthal v Brewer) illustrate different attitudes to this question. The legislative history of the Wisconsin Fair Dealership Law suggests that legislatures aren’t necessarily better at evidence gathering and negotiating than courts are. Deference might also refer to how courts should go about interpreting and applying statutes (e.g. illegality, regulation of non-competes in Wisconsin).

4. To what extent does contract law reflect a commitment to implementing public policy articulated in state and federal statutes? There’s some overlap perhaps with theme 2, but here I am interested in the extent to which contract law encourages compliance with the law. And there is a normative question about the extent to which contract law should focus on compliance with the law. The cases we read on illegality are relevant here, as well as Fullerton Lumber. And materials on arbitration (e.g. the Uber cases we began with) raise the question of how courts may deal with conflicting public policy concerns (support for arbitration as a dispute resolution mechanism versus antitrust law, anti-discrimination laws, consumer protection). In class I mentioned Patel v Mirza, a decision of the UK Supreme Court. In that case Lord Toulson wrote:

Bribes of all kinds are odious and corrupting, but it does not follow that it is in the public interest to prevent their repayment. There are two sides to the equation. If today it transpired that a bribe had been paid to a political party, a charity or a holder of public office, it might be regarded as more repugnant to the public interest that the recipient should keep it than that it should be returned.”

I think this is relevant to the issue of competing public policies which we also saw in the Coma Corporation case.