COURSE SYLLABUS

CONTRACTS I
108/06 & 108/16
Auburn Hills Campus

PROFESSOR FLORISE NEVILLE-EWELL

Thomas M. Cooley Law School at Auburn Hills Campus

Michaelmas Term – 2008

Preliminary Information

MONDAY - 108/06
8:00 AM – 11:00 AM
Room 145
*******

WEDNESDAY - 108/30
11:00 AM – 2:00 PM
Room 145

*******

Contact Information
Professor Florise Neville-Ewell (nevillef@cooley.edu)
2630 Featherstone
Auburn Hills, MI 48326
248.751.7800, ext. 7761

INTRODUCTION

Welcome to Thomas M. Cooley Law School and Contracts I. The purpose of this
syllabus is to help you make the transition to law school and to introduce you to the
course. Please read it thoroughly.
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COURSE GOALS

This course has two main goals. The first is for you to begin developing proficiency in
sound legal analysis. A common mistake among first-term students is to assume that
familiarity with the subject matter is the only goal. Please don't make that mistake.
Developing proficiency in sound legal analysis is more important to your future success
as law students and, ultimately, as lawyers. The second goal is for you to begin to master
the subject of contracts.

Proficiency in Analysis: Proficiency in legal analysis involves many different analytical

thinking skills. The main ones that you will need to master for this course are:

Issue Spotting: the ability to read an unfamiliar fact situation and decide which of the
possible legal issues are reasonably in dispute (i.e. sufficiently debatable that they need to
be discussed);

Issue Prioritization: the ability to decide which of the disputed issues are more
important and deserve the most discussion;

Rule Identification: the ability to identify the particular legal rules (e.g. common law or
the Uniform Commercial Code), including any sub-rules or exceptions, that are relevant
to resolving disputed issues;

Fact Selection: the ability to select facts that are relevant to resolving the disputed
issues, from among the irrelevant facts and the misleading facts that may be present;

Fact Extrapolation: the ability to draw reasonable and relevant inferences from the
facts;

Factual Analysis: the ability to connect relevant facts, and reasonable inferences that
may be drawn from the facts, up to the appropriate rules, sub-rules or exceptions, and to
explain their legal significance;

Reasoning by Analogy or Distinction: the ability to resolve or to help resolve a legal

issue by comparing the facts given to other established legal benchmarks, such as the
cases and hypotheticals we will be discussing in class;

Policy/Rationale Driven Analysis: the ability to work from the underlying policies and
rationales behind the rules to resolve a legal issue for which the rules do not provide a
clear answer;

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Statutory Interpretation: the ability to read an unfamiliar statute that you have never
seen before and to apply it in the context of a concrete fact situation;

Organization: the ability to separate and thoroughly analyze the different legal issues
that are reasonably in dispute and to organize your thoughts in a logical and coherent
way.

These analytical thinking skills are an essential part of your legal training. Without them,
you will not be able to achieve your goals. You must work hard at developing them, just
as hard as you must work at developing sufficient familiarity with the subject matter.

FAMILIARITY WITH THE SUBJECT MATTER:

Sufficient familiarity with the subject matter involves much more than just memorizing
rules and definitions. It requires knowing and understanding any applicable threshold
triggering requirements that must be satisfied before the rules and definitions come into
play, as well as the rationales behind the rules and definitions and any limitations or
exceptions that apply. Further, it requires a deeper level of understanding that enables
you to use and apply rules and definitions in new and unfamiliar fact situations. The
main subjects that you will need to master and understand in this way are:

Offer and Acceptance: At its most fundamental level, Contract law requires an
expression of intent by one party to present an opportunity to another (offer) and a
response by the other party, which response reflects concurrence in that expression
(acceptance).

Consideration: This is the element that binds the parties’ expression of intent.

Remedies: This topic identifies the scope of recovery available to a party once the party
establishes that a valid contract existed and was breached or not performed.

Statute of Frauds: This body of law will examine types of contracts that must be in
writing in order to be enforced.

Remember that learning these subjects is just the beginning of your task, not the end.
You must also be able to use the knowledge you have learned together with the analytical
thinking skills described in the preceding section to solve particular, concrete legal
problems that you have not previously encountered.

CLASS PREPARATION

You are responsible for reading assigned cases and notes in the text. You do not need to
look up cases within the primary cases. All assigned cases should be fully briefed

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unless otherwise noted, and all statutes or sections of the Uniform Commercial Code
Restatement of Contracts Second should be thoroughly analyzed. In addition, from
time to time, I may incorporate additional materials if interesting cases arise during the
course of the semester.

Lawyers must be fully prepared each and every day. If they are not prepared, clients
suffer real consequences (e.g. deals don’t get well negotiated and litigation ensues),
thereby resulting in malpractice and/or unprofessional conduct. Accordingly, you should
prepare for each and every class as if you were scheduled to negotiate a major contract or
complete a trial.

Your presence signals your genuine commitment to this premise. Thus, I will assume that
everyone will enter the classroom prepared because so much is at stake. I will randomly
select and call on students without prior notice to discuss assigned material. Please note
that having been called on once does not exempt you from being called on again.

In law school, the classroom learning process is a cooperative effort. If you are well
prepared, the quality of our discussions will be significantly better and we will be able to
explore the material in more depth. If you are not well prepared, the quality of our
discussions and the educational experience for your classmates will suffer.

I stumbled and made many mistakes when I was first called on in law school, and I
expect and understand that you may do the same. So I will never belittle or demean any
of you for good faith, but mistaken efforts. But I do expect you to prepare thoroughly
and to do your best every day, starting in our first class and continuing throughout the
term.

I do not accept notes, passes, or explanations for unpreparedness at the beginning of

class. I expect you to be prepared for each class.

In the event of a true emergency (e.g. death in the family or serious illness), you may
contact me before class with an explanation. Depending on the circumstances you may
or may not be excused.

If you are unprepared, and fail to notify me before class begins, that will be
considered unprofessional conduct, and may result in probation, suspension or
dismissal from the class in accordance with the school’s policy.

To prepare for class, start by reading the subjects listed at the beginning of the assignment
to get an overview of the basic subjects we will be covering that class. Then read the
assignment from start to finish, without briefing, highlighting or taking any notes
whatsoever. This will give you a feel for the big picture and for how the different parts of
the assignment relate to each other. As you finish each individual part of the assignment,
ask yourself how it relates to the other parts. If the assignment includes hypothetical
problems, write out a complete answer to each problem, using the cases and other
materials assigned for that class.

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Learning to be a lawyer requires that you learn the specialized language of the law. So if
you don't understand a legal term that you run across during your preparation, start by
looking it up in a legal dictionary. But understand that even the definition in a legal
dictionary is not necessarily binding on a court or legislature. They may define a term
however they wish, and there are many legal terms known as "terms of art" that have a
special legal meaning different from the ordinary or dictionary meaning of the words.
This means that you can't always trust the definition in a legal dictionary, and you can't
assume that words mean the same thing in the law as they do in ordinary conversation.
Sometimes they do, but many times they do not.

Learning to be a lawyer also requires that you learn where to look for help on your own if
you don't understand a legal concept. So if you run across a concept that you don't
understand, or you don't understand one of the subjects for the class even after you have
read the assignment, hunt around and do some additional reading. The optional text
listed later in the syllabus (Murray on Contracts) is a good starting point. Use the table
of contents or the index to locate what you need.

All of this is hard, slow and frustrating work, particularly at the beginning. And you
won't see much in the way of visible results or progress for some time. But it will pay off
for you in the long run if you keep at it. Any shortcuts that you take may save you some
time in the short run, but they will ultimately hurt you down the road.

CASE BRIEFING

Case briefing is a particularly important legal skill that all lawyers must master. When
you stand up to argue in court, you can't bring all the books holding all the relevant cases
with you and waste everyone's time paging through them to find what you need. You
must learn how to read a case, and how to extract and summarize the essential points in a
useable form. Law school is the place to learn this skill.

You'll soon learn that you can buy canned summaries of the cases in our casebook that
were prepared by somebody else, and you'll be sorely tempted to do so. If you succumb
to this temptation, you'll hurt yourself in both the short and the long run. Case briefing is
one of the main ways that you learn the "Proficiency in Analysis" analytical thinking
skills described above.

For example, if you don't brief your own cases, you won't become very proficient at issue
spotting and factual analysis. As a result, those tools won't be in your analytical toolbox
when you reach for them during the final examination. And they won't be there when
you reach for them later on in practice (since there are no canned summaries in the real
world for all of the tens of thousands of cases that exist). For these reasons, canned
case summaries that you have not prepared yourself are not permitted in our
classroom.

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Briefing cases will also provide you with much of the raw material you will need to
reason by analogy or distinction on the final examination. If you have briefed the cases,
you will have a concise study aid to help you prepare for this part of the exam.

Briefing is a mystery to most new students. So don't feel alone if you are foggy about
how to do it. I didn't feel like I had truly mastered this skill until well into my law school
career. There are many suggested ways to brief cases. Whatever format you use, your
goal for this course should be to extract the following basic information from each case
Note that the most common format for briefing known as IRAC (the acronym for Issue,
Rule, Analysis and Conclusion) has been integrated into the following checklist:

A. PARTIES

1. LITIGANTS

• Who is suing whom? Identify the plaintiff/defendant,

appellant/appellee, or petitioner/respondent, etc.

B. FACTS

1. PROCEDURAL: COURT’S JURISDICTION

• What is the lawsuit’s history? For example, who has

jurisdiction: is this the trial court or the appellate court (as a
result of an appeal from the trial court to the higher court)

2. HISTORICAL (PARTIES’ RELATIONSHIP AND/OR

CUSTOMS OF INDUSTRY, IF APPLICABLE)

• What happened between the parties that led to the alleged

breach that resulted in the lawsuit?

C. LEGAL ISSUE(S)

• What is the court being asked to decide given the parties’ arguments?
Also look at why this particular case is under the topic being addressed
for that class period?

D. PARTIES’ ARGUMENTS

• For each argument, what legal reasons are being offered to justify
plaintiff/appellant/petitioner’s request for relief?

• What counter arguments are being made by the

defendant/appellee/respondent against the request for relief?

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E. FORM OF RELIEF (DAMAGES OR EQUITABLE RELIEF)

• Money Damages or Equitable Relief (e.g. Specific Performance or

Injunction)

F. OUTCOME

1. RULE(S) APPLIED BY THE COURT

• What legal rule(s) of law did the Court apply to

arrive at its conclusion?

2. ANALYSIS or APPLICATION: COURT’S REASONING

• What reasons did the court offer for granting or denying

relief?

• Did the Court summarize these reasons as a basic principle

or holding?

3. CONCLUSION: RELIEF ORDERED BY COURT

• Who won?
• What, if any, relief did the Court order?

G. YOUR ANALYSIS

• Why do you think the parties behaved the way that they did?

• Do you agree with the outcome of the case, given who won?

• How would you have decided the case?

• Do you agree with the Court’s analysis?

• Can you give any other explanations for the outcome, such as
public policy or otherwise?

• How does this case relate or compare to other cases and materials
that you have read?

Because of the way that cases in our casebook have been edited, not all of these
things will be included in every opinion you read. So just extract what's there. One
exception to this is if the cases do not discuss policies and rationales behind the rules.
When that happens, think beyond the four corners of the opinions and see what you can
come up with. Ask yourself what the reasons for or the purposes of the rules might be.

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STATUTORY INTERPRETATION

Learning how to read and apply a statute is another essential skill that all lawyers must
learn. Statutes are often poorly drafted, and can be mind-numbing reading, but you've
got to learn how to figure them out if you hope to succeed. The key is to carefully read
each statute, noting the following:
1). read the statute carefully from start to finish without highlighting or taking
any notes;

2). read each paragraph or sub-section carefully, extracting the key elements, and
noting whether those elements are phrased in the conjunctive (and) or the
disjunctive (or);

3). analyze how the different elements or concepts relate to each other;

4). analyze the differences between different sections or sub-sections;

5). note any ambiguities or holes in the statutory language;

6). note any exceptions included within the statute;

7). think about the policies and rationales behind the statute; and

8). think about how the statute differs, if at all, from the common law.

PROMPTNESS AND ATTENDANCE

Promptness is a habit that all lawyers must learn. Few judges I know will wait for an
attorney who is late. Instead, they will either push that attorney's case to the end of the
docket and move on to the next one, or throw the case out of court altogether. Start
getting into good habits now by being on time for each class. And, be prepared to be
called on if you arrive late.

I will either circulate a class list for you to sign or I'll ask you to sign a seating chart in
our first class, and after that I'll take attendance based on the chart promptly at the
beginning of class. Please be in your seat at least five minutes before class starts so
we can begin promptly. If you must leave after the class begins, it's your
responsibility to let me know at the break. It's also your responsibility to keep track
of your total absences. Lateness will result in absences in half-hour increments.

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CLASS DISCUSSIONS

Our class discussions will take different forms. Sometimes we will go through cases
individually, separately analyzing each one. Other times I'll pose a hypothetical or a
series of hypotheticals based on the assigned reading, and I'll ask you how you think the
hypo(s) should be resolved. So be flexible when I call on you, and follow my lead.

What you do while your classmates are talking is also very important. You should be
actively listening to the discussion and asking yourself how you would respond to
questions. And please, feel free to raise your hand if you can't hear, don't understand
something or have a relevant point to contribute. If you switch your mind off when
someone else is talking, you'll miss a big part of the classroom learning process.

WEEKLY STUDY QUESTIONS

Study questions may be posted on my TWEN page. You should read these questions and
look for answers to these questions as you work your way through the assignment. The
legal concepts, principles, and definitions that I test on the mid-term and final
exams may be drawn from material covered by these questions.

LAB SESSIONS

I will also hold optional lab sessions that I will announce in class. We will use these
sessions to work on developing proficiency in analytical skills, with the emphasis on
reviewing practice exam questions like those you will see on the mid-term and final
exams.

In addition, at your request, I am happy to hold a special review session for the entire
class before the mid-term and the final exam. Please let me know if you are interested
and we will find a mutually convenient time.

OFFICE HOURS

You are free to drop-in my office anytime. If additional students are waiting or have
scheduled appointments during that time, I will limit the time of unscheduled visits so
that I can meet with as many students as possible. In addition, I am happy to meet with
you by appointment. Please send an e-mail so that we can set up a mutually convenient
time or talk to me after class.

Please take advantage of these opportunities. Meeting and talking with you outside of
class helps me better understand where you and your classmates are having difficulties. I
look upon this as a teaching opportunity, not as an imposition.

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MID-TERM AND FINAL EXAMINATIONS

Your grade will be based on one mid-term examination in week six and a final
examination at the end of the term. The mid-term will be worth 10% of your grade and
the final will be worth 90%. The mid-term will consist entirely of multiple choice
questions and the final will consist of a combination of multiple choice, short answer and
essay questions.

The multiple choice questions will consist primarily of multistate bar exam style
questions testing your ability to apply the law you have learned to an unfamiliar fact
pattern that you have never seen before.

The short answer questions will consist of short hypotheticals or direct questions that
should be answered succinctly.

On the essay questions, I will be testing your problem solving ability in the context of a
concrete factual situation, not your ability to simply memorize and regurgitate the so-
called blackletter rules. Recognizing the ultimate goal, please note that you may be able
to memorize "the rules" by cramming them into your head during the last few weeks of
the term, but the analytical thinking skills you will need to survive cannot be learned that
way.

My best advice to you is to work hard from the very beginning, spending as much of your
time mastering the necessary thinking skills as you do on learning "the rules." And don't
look for shortcuts or the easy way out. The law is a demanding discipline, and it will take
a lot of effort on your part to succeed. But don't just listen to me. Talk to a successful
second year student. They will probably say:

"Brief every case, do every problem, never miss a class, and do your own outline."

TAPE RECORDING

Tape recording of class is allowed. If you tape class as a way of checking your notes to
make sure they are complete and accurate, or to listen to the tapes in your car while
commuting back-and-forth, I see no great harm in that. But taping and transcribing class
into a verbatim transcript, or simply listening to tapes repeatedly, is not a very cost-
effective use of your time.

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SURFING, GAMING, MESSAGING, AND ELECTRONIC DEVICES

Surfing the web, playing computer games, and e-mailing or instant messaging not only
distract you from what we are covering in class, either one will distract those around you.
Ultimately, they are disrespectful to the entire class. As a result, these activities are
absolutely prohibited during class time. For the same reasons, please turn off all cell
phones and pagers or set them to vibrate. As an incentive for you to police each other,
I reserve the right to ultimately ban all students from bringing laptops to class for
individual violations of these rules.

REQUIRED AND OPTIONAL TEXTS

Required:

Crandall & D. Whaley, Cases, Problems, and Materials on Contracts (Current

Edition)

Farnsworth & Young, Selections for Contracts (2008)

Optional:

Murray on Contracts (4th Edition)

Please note that there are many sources available to you related to the study of Contracts.
The sources referenced above will be the exclusive ones used in class. Thus, additional
sources will not be discussed; unless, as indicated earlier, I find an article or case worth
mentioning. In that event, it will be distributed to you or shown in class.

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COURSE ASSIGNMENTS
Week Pages
Subject
Introduction; Mutual Assent; The Offer
xxix-xxxiii
1 [Omit Leeds case (pp. 16-24)]; begin Lefkowitz v. Greater
1-15; 24-28
Minneapolis
Written Contract to Follow; Acceptance; Manifesting Assent;
2
Silence as Acceptance; Motive; Mode of Acceptance. 28-34; 40-57
[Omit ProCD case (pp. 34-40) and Problem 11 (p. 52)]

3 Termination of Power of Acceptance 57-82

Lapse of time [Omit Phillips case (pp. 86-89)]; Termination by

Death or Incapacity; Termination by Rejection; Mailbox Rule;
4 82-86; 89-118
Termination by Counteroffer [Omit problems 30, 32, 33 and 34
(p. 101, 109 and 118)]; mid-term review.

Indefiniteness [Omit problems 35, 36 (p. 130)]

(END OF MATERIAL COVERED ON MID-TERM) 118-130
5 (Review Session for Mid-Term; Date and Time T/B/A)

Post Mid-Term Subject:

Consideration: The Basic Concept 131-144

Mid-Term Exam followed by coverage of:

6 Forbearance as Consideration; The Illusory Promise; Pre-Existing 144-162; 177-179

Duty Rule [Omit for now Past Consideration & Moral
Obligation (pp. 162-176)]
7 Preexisting Duty Rule (continued); Past Due Monetary Debts;
179-189; 162-167
Past Consideration
Promissory Estoppel; [Omit Problem 62 (p.197)];
189-225; 168-177
8
Moral Obligation [Omit Problems 48-50 (pp. 172,176, 177)]

Remedies; Measuring Expectation Damages; Reliance Interest

9 227-256
[Omit Sea Colony case (pp. 240-247) and Problem 67 (p. 256)]

Limitations on Recovery: Certainty, Foreseeability,

10 256-286
Avoidability [Omit problem 73 (p. 286)]

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COURSE ASSIGNMENTS
Week Pages
Subject

Avoidability continued; [Omit Schurtz (pp. 302-311); Punitive

Damages (pp. 311-317) and Damages Under the UCC (pp. 317- 286-302; 311;
11 325)] NOTE: Read Restatement II, Section 355, p. 311. Read 325-340
Restitution (p.325-340)

Restitution; Equitable Remedies [Omit Rosenberg case (pp. 340-

346-350, 351-359,
12 346); Problem 86 (p. 347); Problem 88 (p. 350); and City Centre
363-368
case (pp. 359-363)]

The Statute of Frauds. Read the Introduction (369-375); for

pages between pages 375-414, prepare only the following
Problems and accompanying text to the Problems:
Problem 90 (p. 375); Problem 91 (p.375); Problem 92 (p. 376);
Problem 93 (p. 376), Problem 94 (p. 380); Problem 95 (p. 380);
13 Problem 96 (p. 385); Problem 97 (p. 390); Problem 98 (p. 390); 369-412
Problem 99 (p. 391); Problem 100 (p. 398); Problem 101 (p.
398); Problem 102 (p. 399); Problem 103 (p. 403).

Do not read or prepare any of the cases or problems not

indicated above.

Wrap-up – NOTE: The Week 14 class period will be used to

Complete and
14 complete the material assigned above (if necessary), and to
review your outline
review briefly the material covered through the term.

15
Final Exam : Monday, December 8, 2008, 9:00 A.M.

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