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List the things you think you would need to
have in a contract for it to be valid.
Describe a contract that you have been in, or
one that you have heard about. What made it
a contract?
What we have done: Constitutional Law,
Criminal Law, Domestic Violence.
Today: Contracts
Next 2 Sessions: Family Law, Torts/Quiz
Mock Trial- Last 5-6 classes will focus on
preparing for mock trial where you will either
prosecute or defend an alleged murderer.
Students will be able to list and describe the
elements of a contract.
Students will be able to draft versions of
written and oral contracts.
• Restatement of Contracts definition: A contract is a promise
or a set of promises for the breach of which the law gives a
remedy, or the performance of which the law in some way
recognizes as a duty.
• We will focus on 4 topics:
 Offer and acceptance
 Consideration
 Duties and enforcement
 Defenses
Offer: Showing a willingness to enter into a
bargain in such a way that another person
would interpret that they could accept and it
would conclude the negotiations.
Can be through words or actions.
Advertisements can be offers.
Negotiations are not offers. Buyers have to
be able to walk away from estimates or price
Acceptance- once an offer has been made,
the other party can accept the offer in any
reasonable way, including starting
The party who accepts can back out up until
performance begins.
Factors include:
 Were terms finalized? Did performance begin?
Discuss whether there was a valid offer and
acceptance with your group.
Explain your answers on your handout. 8
1. Ever-tite v. Green- The court ordered that
the homeowner pay for transporting the
materials, but not for the roofing itself.
2. Ciaramella v. RDASince the settlement was
just an outline and there were uncertain
terms, the court did not enforce it.
3. Carlil v. Carbonic Smoke Ball- The company
did not say the person had to notify of
acceptance, so the person’s performance was
Consideration: A contract must include a
promise and a return promise.
It cannot only go in one direction. Both
parties have to get something valuable (a
good or service).
A promise of a gift is not enforceable because
one party gets nothing.
The exchange doesn’t have to be equal- one
person may value something more than
someone else.
Substantial Performance- Doing exactly what
is in the contract is not always possible, but
the parties have to reasonably live up to the
If one party does not materially perform, the
other party no longer has to perform.
Failure to perform is called “breach.”
What happens when one party breaches?
Damages- The party who is harmed can
request money from the other party equal to
the loss from the breach.
Specific performance- If it is still possible to
perform the contract, the court can require
the party to perform.
Read the fact pattern on your work sheet to
yourself, then spend about 3 minutes
explaining whether you think one party
breached the contract, and what the court
should do, if anything.
Then, you will share with your group for
about 5 minutes.
Hawkins v. McGee- The court said that you
can recover damages for the difference
between what you expected to get in the
contract and what you actually got.
In this case, Sam would be able to recover the
difference in value between a good hand and
a hairy hand.
Doctors and lawyers would work together to
determine that value.
Certain things can make contracts void even though
both parties agreed on the terms and there was
valuable consideration.
Unconscionability- If one party tricked
another party into agreeing to an unfair
contract, the court may not enforce it.
 Often comes up when businesses try to trick poor
or uneducated clients.
Fraud or Duress- Lying or misrepresenting
something in negotiations can make a
contract void.
 Also, taking advantage of someone in a bad
situation can make a contract void.
 If a company knows about a flaw in a product and
covers it up, the contract to buy it is void.
Criminality/Public Policy- If the terms of a
contract require illegal behavior, or if they go
against Congress’ stated goals, it will be
declared void.
Practice- Have one member of your table
read the following facts out loud, then discuss
whether the contract should be declared void
for any of the reasons discussed above. 5
Discuss the issues, but you are not required to
write them down. We will hear each group’s
opinion at the end of 5 minutes.
We will divide into 6 groups. You will have the
rest of class to draft a contract.
Each group will get a sample contract, a fact
pattern, and will have the choice to draft
either an oral or written contract.
For an oral contract, write a dialogue
between the parties that would create a valid
For a written contract, use the sample written
contract for suggestions.