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CONTRACTS
What Is a Contract?



A contract is a legally enforceable promise
or set of promises
Contract law is state law and is generally
found in the Common Law.
With some contracts, the Uniform
Commercial Code may apply.
The Uniform Commercial Code

Had its beginning in the Law Merchant.


Principles eventually became part of the
Common Law.
Prior uniform laws:


Uniform Negotiable Instruments Act 1896
Uniform Sales Act 1906
The Uniform Commercial Code


Created by American Law Institute and the
National Conference of Commissioners on
Uniform State Laws (1952)
Purposes:


Promote fair dealing and higher standards of
behavior in the marketplace
Establish a uniform law to govern commercial
transactions that take place across state lines
UCC has 11 Articles




Art 1 General Provisions and Definitions
Art 3 Negotiable Instruments
Art 4 Banking
Art 9 Secured Transactions
Article 2 of the UCC

Article 2 applies to Contracts for the Sale of Goods

Goods are



Creation of Practical Contract Rules


Tangible
Moveable
UCC is more flexible than contract law
Good Faith and Fair Dealing



All parties must act in good faith
Implied Warranties
Merchant
U.C.C.
Not all contracts
Supercedes C.L.
if it applies
Does not have a rule
for every C.L. rule
COMMON LAW
OF CONTRACTS
Case law rules
State law-may
disagree
May be changed
by statutes
SPECIAL STATE
STATUTE
Not uniform
Supercedes C.L.
RESTATEMENT OF THE LAW OF CONTRACTS
Not “law,” only a private summary
Generally followed by most courts
ELEMENTS OF A VALID
CONTRACT






Offer + acceptance = agreement
Consideration
Competent parties
True assent
Legality
Form required by law
Types of Contracts

Valid, Unenforceable, Voidable and Void




Valid contracts meet all legal requirements
Unenforceable contracts meet basic legal
requirements but will not be enforced due to
some other legal rule
Voidable contracts may be canceled by one or
both of the parties
Void contracts lack one or more of the basic
requirements for a contract
Types of Contracts

Unilateral and Bilateral Contracts

In a unilateral contract, only one of the parties
makes a promise


The other party performs an act in exchange for
the promise
In a bilateral contract, both parties make a
promise
Introduction




Offer + Acceptance = Agreement
Did one of the parties indicate to the other party
that he or she was willing to enter into an
agreement on certain terms and conditions?
Did the other party indicate that he or she was
willing to agree to those terms and conditions?
Courts look at the intent of the parties
objectively
PROBLEM





Over the phone, Mr. Smith, of Smith Builders, Inc,
offers to build Mr. Jones a new garage for
$30,000.
Mr. Smith says that they can begin work on June
15. Mr. Jones says he needs time to think about
it, and will call back.
Mr. Jones never calls back, but on June 15,
Smith Builders arrive to begin construction.
Did they have a valid contract? Why or why not?
Does it matter that any agreement was verbal?
AGREEMENT



Express
Implied in fact
Implied in law/Quasi-contract
What Is an Offer?

An offer is the manifestation of a willingness to enter
into a contract if the other person agrees to the terms



Offeror - party makes the offer
Offeree - party to whom the offer has been made
Intent


Objective
Present intent to contract



Not: preliminary negotiations, offers made in jest, anger,
undue influence
How definite the supposed offer is
Whether the offeror has communicated it to the offeree
Definiteness




Did the offeror specifically indicate what he was
willing to do and what he wanted the offeree to do
or agree to do in return?
The more specific the proposal, the more likely
the court will call it an offer
Under UCC 2-204, if the parties are acting as
though they have a contract, that is enough to
create a binding agreement
Gap filling provisions in the UCC fill in the blanks
for price, quantity, delivery, and time for payment
Communication to the Offeree



Act of communicating the offer indicates
that the offeror is willing to be bound by its
terms
Failure to communicate offer may be
indication that offeror has not yet decided
to enter into a binding agreement
Example: private reward
Advertisements

Advertisements
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

Rewards
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
Unilateral Contracts
Auctions


Courts generally hold that ads for the sale of goods at a
specified price are not offers, but are invitations to
negotiate or to make an offer
Specific ads are considered offers under certain
circumstances
Invitation to offer
Bids

Invitation to offer
TERMINATION OF OFFER


How can an offer terminate?
These are not the same as the ways in
which a contract terminates. A contract
does not exist yet.
TERMINATION OF OFFER







REVOCATION BY OFFEROR
REJECTION BY OFFEREE
COUNTEROFFER
LAPSE OF TIME
DEATH OF DISABILITY OF EITHER
PARTY
DESTRUCTION OF SUBJECT MATTER.
OPERATION OF LAW
LAPSE OF TIME




I offer to sell you my home
for
$100,000. I will keep the offer open until
October 15.
On September 20, someone makes me an
offer of $120,000.
I accept the $120,000 offer, and revoke the
offer I made to you.
Can I do that?
OPTION CONTRACT

Consideration is paid to keep an option
open.
But consider…



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
I am an antique car dealer, and you are a
customer.
I send you a letter in which I offer to sell you a
particular car for $100,000. I will keep the offer
open until October 15.
On September 20, someone makes me an offer of
$120,000.
I accept the $120,000 offer, and revoke the offer I
made to you.
Can I do that? What is different about this
example?
Under the UCC, you can create a
FIRM OFFER



If the seller is a MERCHANT (someone in
the business of selling the product. Not a
casual seller.)
The offer is made in writing AND
It will be kept open for up to 3 months.
A FIRM OFFER is enforceable w/o any
consideration being paid.
What Is an Acceptance?

Present intent to contract on the part of the
offeree


Assent may be express or
implied
Offeree must accept offer
offeror’s terms
on
What Is an Acceptance?

Accepting an Offer for a Unilateral Contract


Accepting an Offer for a Bilateral Contract
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
Make promise requested in offer
Silence as Acceptance


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Performance of requested act or making the requested
promise
The law generally requires some affirmative indication of
assent
In some cases, silence is viewed as acceptance
Who Can Accept an Offer?

Original offeree or agent
MIRROR IMAGE RULE

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Acceptance must “mirror” the offer.
Offeree must accept the offeror’s
terms exactly.
UCC Exception: The Battle of the Forms
MANNER OF ACCEPTANCE:
Offeror can specify the manner of
acceptance, and offeree must use.
 If don’t use offeror’s terms – becomes a
counteroffer.
 Acceptance by Shipment


An order requesting prompt or current shipment
of goods impliedly invites acceptance by a
promise to ship or by prompt shipment of the
goods
WHEN IS ACCEPTANCE
EFFECTIVE?

When parties negotiate by correspondence,
communications have crossed in the mail.
So the courts developed the MAILBOX
RULE.
MAILBOX RULE.


Acceptance takes place at the time the
message is given to the transmitting
agency for delivery.
Acceptance is effective when mailed, so a
K is formed at that time
See Morrison v. Thoelke, 155 So. 2d 889;
1963 Fla. App. LEXIS 3084 (1963).


B.s (of real estate) made a written offer (by
signing a K) and mailed it to S.s in another
state.
S.s signed it and mailed it back. Before the
K is received, the S.s called and canceled.
Can they do that?
Another Example:
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12/23
S, by letter, through his attorney, offered to
sell B property for $240,000
1/10
B, by his attorney, sent a written reply
offering $230,000
Same day… B’s attorney phoned S’s attorney
and in the course of the conversation, informed him
of B’s reply
Later the same day… B sent a telegram purporting
to accept S’s original offer of $240,00
Telegram was delivered the same day, prior to the
receipt of the reply offering $230,000.
Was a contract formed?
EXCEPTIONS TO MAILBOX RULE.
(Acceptance will not be effective when mailed,
but only if and when it is received.)
1.
2.
Incorrect address or insufficient postage.
Offeror protects him/herself – Say in offer:
Acceptance is not effective until it is
received.
EXCEPTIONS

3. Offeree doesn’t use proper form
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
If offeror specifies means, and offeree doesn’t
use it, response is not an acceptance but a
counteroffer.
If offeror hasn’t specified means, offeree can
use any reasonable means.


Usually, same form as the offer was in, or
anything faster.
(But if offer was by mail, and the acceptance
cannot be mailed and received within the time
limit, that form is not reasonable.)
EXCEPTIONS

4. §40 of the Restatement of Contracts

If offeree first mails a rejection & then tries to
accept, the 2nd response is a counteroffer
unless it is received first.
PROBLEM
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1/1Tom mails an offer
1/3 Mary receives the offer
1/5 Mary mails a rejection
1/6 Mary mails an acceptance
1/7 Tom receives the rejection
1/8 Tom receives the acceptance
PROBLEM
1.
Apply the Mailbox Rule as if the
Restatement exception did not exist.
1.
2.
3.
4.
2.
Is there a contract?
When is the rejection effective?
When is the acceptance effective?
Apply the Restatement exception.
Apply the Restatement exception.
1.
Is there a contract?
PROBLEM


(Over the phone, Mr. Smith, of Smith Builders, Inc,
offers to build Mr. Jones a new garage for $30,000.
Mr. Smith says that they can begin work on June 15.
Mr. Jones says he needs time to think about it, and
will call back. Mr. Jones never calls back, but on
June 15, Smith Builders arrive to begin construction.
Did they have a valid contract? Why or why not?)
Mr. Jones is at home when Smith Builders arrive. He
knows he has never authorized the work, but
decides he will say nothing until the garage is
completed. Then he hopes he will not have to pay.
PROBLEM
When Ms. Williams is 12 years old, her
wealthy uncle gives her a document in
which he promises to transfer to her
Blackacre estate when she turns twentyone. She accepts his offer. Ms. Williams
turns twenty-one, but her uncle refuses to
give her the property.
Was there a valid contract?
1.
The Idea of Consideration

Legal Value


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Promisee does or agrees to do something he or
she had no prior legal duty to do in exchange for
the promisor’s promise
Promisee agrees not to do something he or she
has a legal right to do in exchange for the
promisor’s promise
Adequacy of Consideration
Bargained for and Given in Exchange
Valid Consideration

There is valid consideration if there is:
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A bargained for exchange
Of a promise, act, or forbearance
That had legal value
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Not preexisting duty
Not past consideration
Not illusory promise or
A recognized exception
Rules of Consideration
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Preexisting Duties
Promises to Discharge Debts for Part
Payment
Past Consideration
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Moral Obligations
Forbearance to Sue
Mutuality of Obligation
COMPETENT PARTIES

Capacity
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Ability of a person to do a legally valid act
Three major classes of persons with limited capacity
include:
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Minors
People who are mentally impaired
Intoxicated persons
Contracts are VOIDABLE by the incompetent
Minors’ Contracts
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The Reason for Minors’ Incapacity
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Ability To Disaffirm
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May not be able to bargain effectively with older, more
experienced persons
Minors may disaffirm their contracts at any time during
their minority and for a reasonable time after attaining
majority
Ratification

A minor who does not disaffirm within a reasonable time
after attaining majority is held to have ratified the contract
and loses the right to disaffirm
Minors’ Contracts
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The Consequences of Disaffirming


Minors who successfully disaffirm a contract are
entitled to the return of any consideration they
have given the adult party to the contract
Barriers to Disaffirmance

Because of potential unfairness to adults, some
courts have created exceptions to the general
rule that minors can disaffirm their contracts
Minors’ Contracts
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Emancipation
Misrepresentation of Age by Minors
Necessaries
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Things essential to a minor’s continued existence
and general welfare
Minors are generally liable on a quasi contract
basis for the reasonable value of necessaries
furnished to them
Contracts of Mentally Impaired and
Intoxicated Persons


Theory of Incapacity
The Test of Incapacity


Whether the party at the time the contract was
entered into, had sufficient mental capacity to
understand the nature and effect of the contract
The Effect of Incapacity

Contract is voidable at the election of that person
Contracts of Mentally Impaired and
Intoxicated Persons

Necessaries
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The Right to Disaffirm
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Liability is for the reasonable value of necessities
People lacking mental capacity can disaffirm their
contracts, and on disaffirmance, must return any
consideration they received that they still have
Ratification

People who regain their capacity can ratify their contracts
PROBLEM
1.
Attorney White has been the wealthy Widow
Black's financial advisor for years. Attorney
White has recently gone into the real estate
development business and persuades Widow
Black that it would be a wise investment to
purchase from him, land in Florida that he is
planning to develop into a resort area. Two
years later, when no work is even begun, Widow
Black discovers that the land is unfit for such a
development.
TRUE ASSENT/GENUINESS OF
ASSENT/REAL CONSENT

The Need for Real Consent
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The Parties’ Duty of Care


Parties who enter into contracts are required to exercise
reasonable caution and judgment
The Remedy


Agreement must be voluntary to be enforceable
Contracts entered into as a result of misrepresentation,
fraud, duress, undue influence, and certain kinds of
mistake are voidable: RECISSION
Ratification

One who waits too long to complain has indicated
satisfaction with the agreement despite the initial lack of
consent
Misrepresentation

Knowledge of Falsity


Materiality


An actionable misrepresentation must concern a present or
past fact
Justifiable Reliance


A material fact is one that would contribute to a reasonable
person’s decision to enter the contract
Fact versus Opinion


Misrepresentation can result from an honest mistake or
negligence
Reliance must be justified
Detriment

Party was harmed by reliance
Fraud


What is a “Knowingly Made” Misstatement?
Intent to Deceive
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
Fraud by Silence



Scienter refers to the mental state of the
defendant
caveat emptor
Fraud in the Execution
The Remedy for Fraud
Duress and Undue Influence

General Nature
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
Duress
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

One party to an agreement interfered with the other
party’s ability to resist entering into the agreement
Wrongful threat
Plaintiff’s free will was overcome
Undue Influence
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
Confidential relationship
Plaintiff was induced to make an unfavorable agreement
Mistake


The Nature of Mistake
Mutual Mistake
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
Untrue belief by both parties about a material fact
Either party can rescind
Unilateral Mistake


Mistaken party may be able to rescind if meets
certain conditions, or
If other party knew or should have known of the
mistake and is trying to take unfair advantage of
it
PROBLEM

Washington hires Jefferson to kill his
(Washington's) wife. They execute a formal
written agreement, which indicates that
Washington will pay Jefferson $5,000 down and
$10,000 when the job is done. Jefferson has
until September 18 to complete the job.
September 18 comes and goes, and
Washington's wife is still very much alive.
Jefferson has gotten cold feet, but has spent the
$5,000. Washington comes to Attorney Ogden,
and wants to sue Jefferson for breach of
contract.
LEGALITY OF THE SUBJECT
MATTER

Illegality


Types of Illegality





Agreement is unenforceable if either its formation or its
performance is illegal or contrary to public policy
Requires commission of an illegal act
Made illegal by statute
Contrary to public policy
Unconscionable
The Presumption of Legality

Doubts are resolved in favor of legality unless parties clearly
intended an illegal bargain
Contracts to Commit Illegal Acts

Agreements to Commit Crimes


An agreement that calls for the commission of a
crime is illegal
Agreements to Commit Torts

A contract that cannot be performed without
committing a tort is illegal
Contracts Made Illegal by Statute

Wagering Statutes



Most states prohibit or regulate gambling
Agreements in violation of these are illegal
Statutes Declaring Bargains Void or
Voidable

Examples of statutes passed by states making
certain agreements void or voidable are usury
laws and Sunday laws
Contracts Made Illegal by Statute

Regulatory Statutes


Agreements by unlicensed persons to perform
regulated services or engage in regulated
businesses are illegal and unenforceable
The failure to obtain a license required by a
statute whose sole purpose is to raise revenue
does not affect the legality of unlicensed persons’
agreements
Contracts Contrary to Public Policy

The Idea of Public Policy


Contracts Injurious to Public Service


What courts believe is in the best interest of
society
Bribes
Contracts to Influence Fiduciaries


Prizes, rewards, or other inducements
May be enforced if full disclosure to, and
agreement of beneficiary
UNCONSCIONABLE CONTRACTS



Parties possess severely unequal
bargaining power
The dominant party unreasonably uses its
unequal bargaining power to obtain
oppressive or manifestly unfair contract
terms
Adhering party has no reasonable
alternatives
Examples


Fine print that hides oppressive contract
terms.
Standard pre-printed contracts that are
used industry-wide that contain oppressive
terms.


Confession of judgment clauses
Contracts that exploit underprivileged,
unsophisticated, uneducated, or illiterate
consumers
Examples (cont’d)


Contracts written in language
incomprehensive to laypersons
Contracts that deny rights and remedies to
consumers

Exculpatory clauses
PROBLEM


Mr. Thomas and Mr. Johns agree orally that Mr.
Thomas will build a new warehouse for Mr.
Johns at a cost of $100,000. Construction is set
to begin in three years with no payment due until
the construction is completed.
Two days before the three years is up, Mr.
Johns changes his mind and indicates that he
will not pay for the warehouse.
FORM REQUIRED BY LAW :
The Statute of Frauds

The Effect of Failure to Comply

In most states, the statues of frauds makes oral
contracts that come within its provision
unenforceable
Contracts Covered by the Statute of
Frauds



Contracts to Answer for the Debt of Another (cosignor)
Contracts Transferring an Interest in Land
Bilateral Contracts Not Capable of Being
Performed within One Year


Construe as possible to perform within a year
UCC: contracts for sale of goods where price is
$500 or more
Contracts Covered by the Statute of
Frauds


UCC: contracts for sale of goods where
price is $500 or more
The Code’s Statute of Frauds




Specially manufactured goods
Admission
Part performance
Merchant’s failure to object to memo within 10
days
Interpreting Contracts

The Necessity of Interpretation


Interpretation of uncertain or ambiguous terms is
a question for the jury
Courts attempt to give the agreement the
meaning that a reasonable person would be
expected to give it in light of the surrounding
facts and circumstances
Interpreting Contracts

Rules of Construction




The court attempts to determine the principal
objective of the parties
If parties are both members of the same trade,
courts presume the parties intended words’
meanings to be controlled by trade usage
Written terms control over printed terms
Ambiguities are resolved against the party who
drafted the contract
4 Corners Rule



The writing constitutes the entire
agreement
The contract is “integrated.”
It may contain a merger
clause.
The Parole Evidence
Rule

The Purpose of the Rule


Writing it the best evidence of
intent
Exceptions to the Parole Evidence Rule





Lack of Voluntary Consent
Ambiguous Contracts
Incomplete Writings
Subsequent Oral Contracts
Conditions Precedent
PROBLEM


(Mr. Thomas and Mr. Johns agree orally that Mr.
Thomas will build a new warehouse for Mr.
Johns at a cost of $100,000. Construction is set
to begin in three years with no payment due until
the construction is completed. Two days before
the three years is up, Mr. Johns changes his
mind and indicates that he will not pay for the
warehouse.)
What if Mr. Thomas had already purchased all
the supplies needed to build the warehouse?
PROMISSORY ESTOPPEL
(DETRIMENTAL RELIANCE)



Promise induces action on the part of
another in reliance of that promise
Reliance must be reasonable and
foreseeable under the circumstances
Promissor is “estopped” from denying the
existence of a contract.
See SUN-PACIFIC ENTERPRISES, INC. v.
GIRARDOT, 251 Ga. App. 101; 553 S.E.2d
638; 2001 Ga. App. LEXIS 932 (2001)
PROBLEM



Mr. Simpson purchases a
fire insurance policy on his home for 3 years at a
cost of $300.
At the end of 3 years, his house has not caught
fire, but the insurance company still has his
$300.
He feels that the insurance company should
have to reimburse him the $300, since they
have paid nothing on the policy.
Conditions

Definition


Party’s duty to perform is qualified by the
happening of some event or condition
Types of Conditions

Condition Precedent


Condition Subsequent


Performance excused unless condition occurs
Performance excused if condition occurs
Concurrent Conditions

Tender of performance precedes right to demand
performance
Conditions

The Creation of Conditions

Express Conditions


Created by oral or written statements in the
contract
Implied Conditions (Constructive)

Nature of parties’ contract lead courts to imply a
condition on the parties’ duties of performance
Standards of Performance

Complete or Satisfactory Performance

Some kinds of contractual duties can be completely and
perfectly performed


Substantial Performance


Payment of money
Performance that falls short of complete performance in
minor respects but does not deprive the promisee of a
material part of the consideration that was bargained for
Material Breach

Performance fails to reach the degree of perfection the
other party is justified in expecting under the
circumstances
Standards of Performance

Anticipatory Breach

Promissor, prior to the time for performance, indicates an
intent not to perform his or her duties under the contract
PROBLEM
1.
Mr. Brown enters into an agreement with Mr.
Green in which Mr. Green will supply him with
specially treated siding Mr. Brown uses in his
construction business. Despite the existence
of an alarm system and security guards, an
arsonist burns Mr. Green’s warehouse to the
ground destroying his supply of the siding.
When Mr. Green fails to perform, can Mr.
Brown recover from him in a breach of
contract action?
Excuses for Nonperformance

Prevention


Promisee who causes promisor’s failure of performance
cannot complain about the failure
Impossibility





If it is impossible to perform, the duty to perform is
discharged and the promissory is not liable for material
breach
Intervening Illegality
Destruction of Subject Matter
Commercial Impracticability
Commercial Frustration
Commercial Impracticability



Due to something unforeseeable
More than just an increase in prices
See SWIFT TEXTILES, INC. v. LAWSON,
135 Ga. App. 799; 219 S.E.2d 167; 1975
Ga. App. LEXIS 1831 (1975)
Discharge and Rescission

The Nature of Discharge





Parties are released from their obligations under
a contract
Discharge by Agreement
Discharge by Waiver
Discharge by Alteration
Discharge by Statute of Limitations
Remedies

The Theory of Remedies

If a party does not perform as promised under
the contract, and performance has not been
excused or discharged, then the other party is
entitled to a remedy for the breach of the
contractual promise
Remedies at law

Damages in Contract Cases

Compensatory Damages


Consequential Damages


Award for purely technical breach of contract
Liquidated Damages


Foreseeable losses from special circumstances of
particular contract
Nominal Damages


Loss in value of promised performance
Damages specified in contract for breach
Punitive Damages

Damages to punish, usually unavailable
Remedies

The Duty to Mitigate Damages
PROBLEM
1.
(Mr. Brown enters into an agreement with Mr. Green in which Mr.
Green will supply him with specially treated siding Mr. Brown
uses in his construction business. Despite the existence of an
alarm system and security guards, an arsonist burns Mr. Green
warehouse to the ground destroying his supply of the siding.)

Suppose Mr. Brown later discovers that Mr.
Green burned his own warehouse. Additionally,
Mr. Green is the only one in the country that
manufactures this specially treated siding, and
he has ample supplies and facilities to
manufacture more. Can Mr. Brown now sue for
breach of contract? If so, what might be an
appropriate remedy?
Equitable Remedies
Specific Performance
 Promissor ordered to perform contract
where subject matter is unique
 Injunctions
 Ordered to prevent irreparable injury
See QUADRON SOFTWARE INTERNATIONAL

CORPORATION v. PLOTSENEDER. 256 Ga. App.
284; 568 S.E.2d 178; 2002 Ga. App. LEXIS 890
(2002)
Third-Party Beneficiary Contracts

Donee Beneficiaries


Creditor Beneficiaries


Promisee’s primary purpose is contracting was to
make a gift of the contracted performance to the
third party
Promisor’s performance will satisfy a legal duty
that the promisee owes to a third party
Donee and Creditor Beneficiaries can
enforce the contract
A contracts with B to put a roof on B’s house upon B’s promise
to pay C $5000 (because A owes C $5000).
K
(Obligor)
Promise
To
Pay
$5000
B
C
3rd Party
Beneficiary
(Assignee)
Roof on house
A
(Assignor)
Assignment of
Rights
Third-Party Beneficiary Contracts

Incidental Beneficiaries



Performance of contract intended solely for the
benefit of the promisee also incidentally benefits
a third person
Incidental beneficiaries acquire no rights under
the contract
Incidental beneficiaries cannot enforce rights
even though they benefit from another’s contract
Assignment of Contracts

Definitions



An assignment is a transfer of rights under a
contract
The assignor is the person who makes an
assignment
The assignee is the person who accepts the
assignment
Assignment of Contracts

What Contracts Are Assignable?

Assignments that do not involve personal
relationships or increase the promisor’s burden
are enforceable

Contracts that are nonassignable include:
 Contracts that expressly forbid assignment
 Assignments contrary to public policy
 Contracts involving personal rights
The Consequences of Assignment

The Rights and Duties of Assignees



An assignee is entitled to all the rights his or her
assignor had under the assigned contract
Assignee can enforce implied guarantees against
assignor
Assignee may be liable for duties expressly or
impliedly delegated with the assignment
The Consequences of Assignment

The Rights and Duties of Assignees

Assignors who are paid for making an
assignment are potentially liable to assignees for
certain implied guarantees




The assigned claim is valid
The assignor has good title to the rights assigned
The assignor will not do anything to impair the
value of the assignment
Any written instrument representing the assigned
claim is genuine
The Consequences of Assignment

Delegation of Duties


When a promisor appoints another to perform his
duties under a contract, this is called a
delegation
Duties cannot be delegated if the performance
depends on the personal skill, character, or
judgment of the promisor