The George Washington University Law School

Contracts
6202-13

Syllabus

Fall 2021

Blake. D. Morant
Robert Kramer Research Professor of Law
bmorant@law.gwu.edu

Administrative Assistant:
Ms. Delphine Harper
dharper@law.gwu.edu

Class Schedule: Mondays, Tuesdays and Wednesdays: 9:55 a.m. - 11:10 a.m.

Office Hours: Mondays, Noon - 1:30 p.m.

[Note: Office Hours are subject to change and may be virtual]

I. Course Description

The study of contract law comprises a fascinating and exciting inquiry into the legal rules
governing promises and agreements made among individuals within the free market context.
Aside from the legal rules gleaned from cases and legislative materials that you will read, the
dynamics of contract law emerge from the myriad of societal questions governing transactional
relationships. These questions include the purpose of those rules, the policy goals behind those
rules, and how those rules will influence the future conduct of parties. While we will actively
review the rules governing contracts, remember that cases and controversies involving these laws
include considerations of the societal, economic, political and ethical issues involved in these
transactions.

II. Course Materials

Scott & Kraus, Contract Law and Theory, 5th Ed. (hereinafter referred to as “casebook”); Scott
& Kraus, Selected Provisions:, 5th Ed. (hereinafter referred to as “supplement”). You should also
maintain a copy of the hypothetical problem, “The Case of the Classic Legend.”

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III. Conduct of the Course

A. This course includes active student engagement with the class divided into subgroups or “law
firms.” Each student will be pre-assigned to a specific firm and the firms will be responsible for
spearheading discussion of course materials for specific classes, as well as address issues and
discussion exercises assigned either from the hypothetical problem, “The Case of the Classic
Legend,” or other materials assigned by the professor.

B. All students in the class have been assigned to smaller groups or “law firms.” Each firm bears
the name of a historic U.S. Supreme Court justice. Assignments to groups have been arranged
alphabetically by the last name of students in the class. Members of the groups are as follows:

Brandeis Firm: From Adams to (and including) Block

Cardozo Firm: From Bogin to (and including) Choi
Ginsburg Firm: From Codiga to (and including) Gimbel
Harlan Firm: From Glueck to (and including) Herman
Holmes Firm: From Hyun to (and including) Kostick
Kennedy Firm: From Lerner to (and including) McWhorter
Marshall Firm: From Merkel to (and including) Palumbo
O’Connor Firm: from Punnoose to (and including) Schwarze
Powell Firm: from Scoliard to (and including) Takahara
Warren Firm: from Thomas to (and including) Zumwalt

C. Students must read all materials assigned and come prepared to discuss the assignments as
noted by the professor for each class. Firms will be responsible for and must be prepared to
discuss the assignments noted in the syllabus. That said, each student, regardless of their firm’s
assignment, should be prepared to discuss the materials assigned for each class.

D. There will likely be exercises that the firms must discuss among its members and prepare for
presentation to the class. The professor will provide this assignment in advance. Preparation of
the response to this exercise will require the firms to meet among themselves outside of class.
Members of the firms should also meet to prepare assignments for class.

E. This course includes an open-book final examination and a practice mid-term examination.

IV. Learning Outcomes

In general, legally trained individuals should understand and appreciate the rule of law and the
analytical and professional functions that contribute to the equitable manifestations of justice in a
democratic society. This course builds on this universal theme and exercise of skills that will
contribute the students’ ultimate function as ethical professionals and counselors of law.

Upon successful completion of this contracts course, students should: understand the rigors of
the rule of law as it pertains to the formulation of agreements, including the application of rules
to various factual situation and the deconstruction of the human relationships that impact the

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application of those rules; appreciate the complex dynamic of the bargaining process, including
interpretation of applicable statutory provisions; improve skills required for effective case
analysis; exercise communicative writing and oral skills; and appreciate and understand the
dynamics associated with group problem-solving.

V. Evaluation of Student Performance

The following factors will be used to evaluate students’ performance in this course:

A. Class Engagement, which will likely include class attendance and substantive participation in
class (responses to questions posed by the professor, responses to problems, exercises, midterm
and substantive participation within groups).

B. Performance on the Final, Open–Book Examination.

VI. Attendance

As a professional trained in the law upon graduation, you will likely attend court hearings,
conferences and client meetings. Attendance and preparedness in every respect will paramount.

Similarly, you must be prepared for, arrive on time to and attend all sessions of this class, as well
as all other class related meetings. You must also complete all required course activities
assigned. Attendance requirements conform to the law school’s attendance policies and those
requirements for accreditation as prescribed by the American Bar Association. If you must miss
a class session or other class related meetings due to an unavoidably urgent matter, illness or
family care related reason, you should notify Ms. Delphine Harper, administrative assistant to the
professor. If you must be absent from class, you are responsible for learning the materials you
missed, including but not limited to course discussions, handouts, assignments or other materials,
as well as the completion of any written assignments.

VII. Academic Integrity

The George Washington University Law School takes academic honesty very seriously. You are
responsible for knowing and adhering to the details of the law school’s policies regarding truth
and honor.

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VIII. Right to Revise Syllabus

The professor reserves the right to modify the syllabus as the semester progresses in response to
the changing public health environment, University’s directives, or to advance the progress of
learning in the course.

IX. Schedule of Assignments

The assignment designated below comprise a general schedule of topics that we will cover this
semester. Notice of assignment changes will be given prior to the class in which they are
assigned. The amount of time devoted to each subject area and the order of coverage will vary.
Some materials may not be discussed in class at all; nonetheless, you will be responsible for all
of the assignments noted in class lectures and discussions.

The groups or “law firms” to which students have been pre-assigned will be responsible for
leading the discussion of materials in the assignments listed below. Each assignment has the
responsible firm or firms listed in brackets. Even though firms are assigned specific assignments,
every student in the class must be prepared to discuss the assignments for each class.

Each of the assignments presented below represents the total of intended subjects to be covered.
Note that page numbers provided refer to the casebook in hardcopy. Any other texts assigned
will be specifically designated.

Note that discussions of course materials will be slower and more deliberate at the beginning of
the semester to ensure comprehension of the intricacies and nuances of contractual analyses. As
the class progresses, coverage of material will likely accelerate.

**FIRST CLASS ASSIGNMENT:

Please note that the assignment for the first, second and third classes (August 23, 24 and
25) of the course includes number one below. While members of the Cardozo firm will lead
the discussion, all firms will be expected to contribute. Please note that much of the
discussion in the first three classes will also center on the hypothetical problem, “The Case
of the Classic Legend,” which is attached as an Appendix located at the end of the syllabus.

1.Introduction to Contract Law - The Bargaining Context - Assent

pp. 1-4; 203-207; 213-215; 14-23
Lucy v. Zehmer, Notes 2-4; Note 3 - Lefkowitz v. Greater Minneapolis Surplus;
Restatement secs. 1, 2, and 4
Note 5 - Self Service;
Hypothetical Problem: “The Case of the Classic Legend” – Question A
[CARDOZO (PRIMARY); ALL FIRMS]

2. Offer and Acceptance

pp. 217-220; 225-266 (Note 3); 230-233

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 Restatement sec. 24 (supplement)
Ever-Tite Roofing Corp. v. Green (Omit: Ciaramella v. Reader’s Digest Ass’n);
Note 3, Silence or Dominion as Acceptance; Mailbox Rule, Revocation of Offers
Hypothetical Problem: “The Case of the Classic Legend” – Questions B and C
[POWELL]

3. Revocation of Offers
pp. 233-236; 243-44; supplement
(Omit Pavel Enterprises , Inc. v. A.S. Johnson Co, Inc.; Note 2 – Baird and Drennan cases)
Hypothetical Problem: “The Case of the Classic Legend” – Questions D, E, F
[POWELL]

4. Offer and Counteroffer

pp. 246-255
Mirror Image Rule
Last Shot Doctrine
U.C.C. sec. 2-207 (supplement)
Ionics, Inc. v. Elmwood Sensors
[CARDOZO]

5. Enforcing Promises (Quasi-Contract)

pp. 4-11
Bailey v. West
Notes 1, 4, 5
[WARREN]

6. Outputs and Requirements Contracts

pp. 316 – 335
Eastern Airlines v. Gulf Oil Corp.
(Omit: Empire Gas Corp. v. American Bakeries Co.)
Notes 1-4
[BRANDEIS]

7. Exclusive Dealings
pp. 341-354
Read: Wood v. Lucy Lady, Duff-Gordon
Read: Bloor v. Falstaff Brewing Corp.
Skim: Essay: Optimal Output in Relational Contracts
Notes 1-4
[O’CONNOR]

8. Termination Clause and Employment at Will

pp. 356-370
Read: Wagenseller v. Scottsdale
Omit: Consumers Int’l & Sysco Corp.

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 Notes 2-4
[MARSHALL]

9. Consideration – Which Promises Should We Enforce?

pp. 42-44; 132-138
Read: Hamer v. Sidway
Read: Kirksey v. Kirksey
Read: In Re Green
Omit: St. Peter v. Pioneer Theatre Corp.
[GINSBURG]

10. Consideration – Adequacy

pp. 143-151
Read: Batsakis v. Demotsis
Read: Wolford v. Powers
Notes 1, 3, 5
[HARLAN]

11. Modification of Existing Agreements; Preexisting Duty Rule

pp. 380-389
Read: Alaska Packers’ Ass’n v. Domenico
Notes 1-5, 8
[KENNEDY]

12. Promissory Estoppel

pp. 152-161; 166-171; 173-177; 186-189
Read: Congregation Kadimah Toras-Moshe v. DeLeo
Read: Ricketts v. Scothorn, Notes 3-5
Read: Feinberg v. Pfeiffer Co.
Read: East Providence Credit Union v. Geremia
[HOLMES]

13. Material Benefit Rule

pp. 193-200
Notes 2,3
[BRANDEIS]

14. Regulating the Bargaining Process

A. Introduction
pp. 401-403
B. Duress
pp. 403-417
Read: Wolf v. Marlton Corp.
Read: Austin Instrument, Inc. v. Loral Corp.

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 Notes: 1-4
[WARREN]

C. Fraud
pp. 421-427; 432-433
Read: Spiess v. Brandt, Note 1
[O’CONNOR]

D. Capacity to Contract
pp. 464-474
Read: Kiefer v. Fred Howe Motors, Inc., Notes 1-7
[O’CONNOR]

E. Public Policy Limitations – Illegality

pp. Watts v. Malatesta, Notes 1-3
[HARLAN]

F. Immorality
pp. 487-497
Read: In Re Baby M, Notes 1, 2
[HARLAN]

G. Unconscionability
pp. 501; 52-65
Read: Williams v. Walker-Thomas Furniture Co. I
Read: Williams v. Walker-Thomas Furniture Co. II, Notes 1-6, 8, 10
pp. 511-512
Note 7: Contracts Limiting Liability (Ciafalo v. Tanney Gyms, Inc.)
[MARSHALL]

H. Statue of Frauds
pp. 514-524
McIntosh v. Murphy
Notes 1-3
[MARSHALL]

15. Interpretation of Contract Language

pp. 537-542; 585-592
Introduction
Read: Frigaliment Importing Co. v. B.N.S. International Sales Corp.
Notes: 1,2
[HOLMES]

16. Interpretation (Objectivism and Contextualism) Under the U.C.C.

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 pp. 593-609
Read: Columbia Nitrogen Corp. v. Royster Co.
Read: Southern Concrete Services, Inc. v. Mableton Contractors, Inc.
Notes 1-5
[KENNEDY]

17. Parol Evidence Rule

pp. 542-551
Read: Mitchill v. Lath
Read: Masterson v. Sine
Notes 1,2
[HOLMES]

18. Parol Evidence Rule Under the U.C.C.

pp. 561-566
Read: Hunt Foods & Industries Inc. v. Dolinger
Notes 1-3
[HOLMES]

19. – 20. Conditions – Implied, Express and Allocation of Risk

pp. 613 – 615; 74-81; 619-620; 631-632
Read: Stees v. Leonard
Notes 1,4,5
Notes 1-4 (Stewart v. Newbury; Anticipatory Repudiation)
Note 4 (Inman v. Clyde)
[BRANDEIS]
21. Waiver, Election and Estoppel of Conditions
pp. 636-639; 646-647
Read: Clark v. West
Notes 1,2
[BRANDEIS]

22. Divisibility
pp. 620-624
Read: John v. United Advertising, Inc.
Notes 1-3
[WARREN]

23. Substantial Performance and Perfect Tender

pp. 670-673; 674-677
Read: O.W. Grun Roofing & Construction Co. v. Cope
Notes 1-3 (Plant v. Jacobs)
[O’CONNOR]

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24. Mistake in the Context of the Bargain
pp. 694-709
Read: Sherwood v. Walker
Read: Anderson Bros. Corp. v. O’Meara
Notes 1,2, 4-7
[MARSHALL]

25. Impossibility and Commercial Impracticability

pp. 727-736; 85-88
Read: Taylor v. Caldwell
Notes 1,2
Omit: Howell v. Coupland
Read: Seitz v. Mark-O-Lite Sign Contractors, Inc.
Notes 1,3
[GINSBURG]

26. Frustration of Purpose

pp. 759-771
Read: Krell v. Henry
Read: Lloyd v. Murphy
Notes 1-3, 5
[POWELL]

27. Breach
pp. 775-778
A. Anticipatory Repudiation
pp. 779-781; 787-793
Read: Hochster v. De La Tour
Notes 1,2,4-6
B. Foreseeability – Limitations on Compensation
pp. 115-123
Read: Hadley v. Baxendale
Notes 1,2,6-8
[HARLAN]

28. Remedies for Nonperformance

pp. 94-96
[KENNEDY]

29. Alternative Measures – The Compensation Puzzle

pp. 96-102
Read: Freud v. Washington Square Press, Inc.
Notes 1,3-5
[KENNEDY]

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30. Remedies – Expectancy Damages
pp. 841—854
Read: Peevyhouse v. Garland Coal & Mining Co.
Notes 1,2
[HOLMES]

31. Specific Performance

pp. 857-862
Read: Sedmak v. Charlie’s Chevrolet, Inc.
Notes 1-4
[HOLMES]

32. Reliance
pp. 865-871
Read: Sullivan v. O’Connor
Notes 1,2
[CARDOZO]

33. Restitution
pp. 4-11
Bailey v. West
Notes 1, 4, 5
[WARREN]

34. Limitation on Compensation

A. Mitigation
pp. 931-938
Read: Parker v. Twentieth Century-Fox Film Corp.
Notes 1,2
[CARDOZO]

B. Liquidated Damages
pp. 941-947
Read: Lake River Corp. v. Carborundum Co.
[BRANDEIS]

Review
File: Contracts.Syllabus.Fall 2021

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 APPENDIX
HYPOTHETICAL PROBLEM:

“The Case of the Classic Legend”

Contracts
Professor Morant

In the early ‘90s, Professor Morant owned a trusty Honda Accord. Although the vehicle
had many features including a premium stereo/tape player, leather seats and automatic moonroof,
he always wanted more in an automobile. His Accord provided reliable transportation, including
a smooth ride and superior gas mileage. While the vehicle met fundamental expectations,
Professor Morant clamored for an Acura Legend, Honda’s luxurious counterpart to the Accord.

In 1997, Professor Morant joined the faculty at the Washington and Lee University
School of Law in Lexington, Virginia. The law school hired him with tenure, which brought
greater academic recognition and a commensurate bump in salary. During a customary shopping
visit in neighboring Roanoke, Virginia, Professor Morant stumbled upon Brambleton Imports, an
independent dealer in high-end, pre-owned imported vehicles.

During the fall of 1997, John Howling, a very affable salesperson at Brambleton Imports,
approached Professor Morant, who had been browsing several Acuras on the lot of the
dealership. Morant shared with Mr. Howling the narrative about his dream car, explaining that he
had coveted the Acura Legend for years. He stated that while he was satisfied with the
performance of his Honda Accord, he would prefer to have the Legend, which had greater
horsepower, larger cabin size and overall better finishes. He further observed that Acura stopped
manufacturing the Legend in 1995, and though the vehicle’s popularity was as high as ever, it
was becoming increasingly more difficult to find one for purchase. 1

Seeing the passion with which Professor Morant expressed his appreciation for the
Legend, Mr. Howling said, “Man, do I have the car for you.“ Howling asked Morant to stay put
while he retrieved a vehicle from the back of the dealership’s lot. Within five minutes, Howling
returned with a vintage, pre-owned, 1995 Acura Legend SE (Special Edition).2 This sparkling
vehicle, with a white body and silver trim, looked brand new and had every luxurious feature one
would expect. It had been leased when brand new, but for only two years. It had 22,000 miles as
shown on the odometer. It also came with a full and complete power train warranty that would
not expire for another seven years or an accumulation of 50,000 miles. Mr. Howling quoted a
retail price for this Legend at $20,100.

1
Acura replaced the Legend with the RL, the production of which was discontinued in 2020.
2
Acura made a limited number of “Special Edition” Legends, which included a signature two-toned color pattern
and certain exclusive, high end features.

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 On October 1, 1997, Professor Morant test drove the Legend for about an hour and
instantly fell in love. He then negotiated with Mr. Howling a deal that included a sales price of
$19,199, and $5200 trade in value for his Honda Accord. Morant’s deal resulted in a final price
of $14,599 for the 1995 Legend. Morant agreed to apply for financing of the $14,599 with his
credit union. Mr. Howling said that he thought the terms Morant described seemed fair and the
two men shook hands.

Class Question A:
At this point in their dealing, have Professor Morant and Mr. Howling entered into a binding
contract for the sale of the 1995 Acura? Why or why not?

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 On October 12, 1997, Mr. Howling prepared the necessary paperwork, including a sales
agreement pending credit approval for $14879, trade of Professor Morant’s Honda for $4,889,
and finalization of vehicle registration. Professor Morant signed the documents on October 5,
1997. After his credit rating was verified the next day, Morant drove away in his coveted 1995
Acura Legend, complete with temporary tags and additional registration paperwork to be
finalized.

On October 12, 1997, the credit union confirmed Professor Morant’s worthiness for a
loan, finalized the necessary paperwork, and sent the contract amount of $14,599 to Brambleton
Imports. Morant later that day received confirmation that title to his prized vehicle had been duly
executed and sent to the credit union, which held a lien on the car. Professor Morant’s rightful
possession of an Acura Legend had been affirmed and he held the vehicle as a great source of
pride.

Class Question B:
Noting the events from October 2-12, 1997, has Professor Morant entered into a binding
contract to purchase the 1995 Acura Legend, thereby confirming Brambleton Import’s right
to full payment?

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 For over 20 years, Professor Morant maintained his Acura Legend as if it were a
Lamborghini. He ensured that it received regular maintenance exactly as recommended by the
manufacturer. Documentation of this maintenance was scrupulously maintained. Morant kept the
Legend garaged and had it detailed every year.

Driving satisfaction remained high in all of the years he owned the vehicle and seldom
had there been a malfunction. The one exception to the Legend’s reliability was its transmission.
That major component failed in 2008, prompting speculation that the vehicle’s useful life had
dissipated. A service manager at the Acura dealership in Winston-Salem, NC, however,
convinced Morant that with a brand-new transmission, his Legend would be as good as new and
retain its value. The service manager’s persuasiveness swayed Professor Morant, who agreed to
have a new transmission installed. After installation, his Acura Legend ran brilliantly. He
continued to pamper the vehicle.

Professor Morant continually received unsolicited offers to purchase his prized Acura
Legend. Whenever he left the car at the dealership for maintenance or in a public parking lot,
passersby would ask Professor Morant if he would sell the vehicle to them. Professor Morant
spurned all of these inquiries due to his attachment to the vehicle, to which he always referred as
his “tenure car.”3

In September 2020, Trey Manning, a student in Professor Morant’s administrative law

class at the University of California Irvine, heard Morant speak so warmly about his Legend.
Trey told his dad, Bob Manning, about Professor Morant’s vehicle. Apparently, Bob Manning
enthusiastically collected Acura Legends. He owned three and wanted to add to his collection.
He did not have a 1995 Acura Legend SE, which rarely available on the market.

Bob Manning emailed Professor Morant on September 10, 2020, stating, “My name is
Bob Manning and my son, Trey, who is a student in your class, informed me that you own a
1995 Acura Legend SE. I am a huge fan of Legends and often try to collect the most vintage of
the make. Having heard that you speak so highly of your vehicle, I wonder if you would consider
selling it to me?”

Class Question C:
Is Bob Manning‘s email to Professor Morant an offer to purchase Professor Morant’s 1995
Acura Legend SE?

3
Professor Morant purchased his prized Acura Legend in 1997, right after receiving notice of his successful
attainment of tenure at Washington and Lee University School of Law.

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 Professor Morant responds in a September 11, 2020 email stating, “Very nice to hear
from you Mr. Manning, however, I had not been in the market to sell my prized Acura Legend.
That said, I would consider a sale for the right price.“

Class Question D:
At this point and if Bob Manning’s September 10 email is found to be a valid offer, is
Professor Morant’s September 11 email to Bob an enforceable acceptance?

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 Bob Manning then responded to Professor Morant‘s message on September 13, stating,
“Fantastic. Would you mind sending a picture of your Legend and any documentation of its
maintenance history?” Responding to this latest communication from Bob Manning, Professor
Morant sent to Bob Manning by first class mail posted on September 15, 2020, a picture of his
1995 Acura Legend and PDF copies of the maintenance records.

In an October 15 email, Mr. Manning responds by email to Professor Morant’s

September 15 mailing as follows: “Thanks so much for this great information. I am definitely
interested in purchasing your Acura Legend. I plan to travel to Northern Virginia for business
very soon. If at all possible, I would love to see your Acura Legend in person.“ Professor Morant
then emailed, “Yes, I would be happy to show my Acura Legend to you. I’m sure you’d love it.”

On October 25, Bob Manning traveled to Virginia and arranged to see Professor Morant’s
1995 Acura Legend SE. Mr. Manning loved what he saw and asked if he could drive the car.
Professor Morant agreed.

Mr. Manning test drove Professor Morant’s Legend for about an hour. When he returned
the vehicle, he said to Morant, “I love this car. I’ll give you $18,000 for it.“

Class Question E:
Is Bob Manning’s October 25 statement to Professor Morant an enforceable offer?

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Responding again to Mr. Manning’s October 25 statement, Professor Morant said, “Wow, I
never suspected that I would get so much for my vehicle. Thank you for such a flattering
proposal.”

Class Question F:
With Professor Morant’s October 25 statement, is there a binding agreement for Professor
Morant to sell his 1995 Acura Legend SE to Mr. Manning?

File: Contracts.Syllabus.Fall 2021

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