1L - First Year Lesson Topics

The topic of this podcast is when language in a contract is an express condition, such that failure to satisfy the condition results in a performance not being due. A condition can be a good way to hedge in case a party is concerned that it can’t meet its commitments and wants to avoid being in breach of contract. This podcast is related to the discussion of conditions in two other podcasts: Excuse of Conditions and Implied Conditions. This podcast discusses Clark v. West Publishing Company, and explains why drafters should use terms such as “if” or “on condition that” to make it clear that a term is a condition. 

This podcast discusses the topic of Third Party Beneficiaries. When can a person who is not party to a contract sue to enforce the contract? While the rule can be found in Restatement (Second) of Contracts § 302, it can be difficult to apply. This podcast explains how to determine the intent of the parties when considering whether the third party is a third party beneficiary. Concepts covered in this podcast include an incidental beneficiary, creditor beneficiary, and an intended beneficiary. The podcast includes the analysis for several hypotheticals and Lawrence v. Fox, 20 N.Y. 268 (1859). 

The topic of this podcast is the basic concepts related to acceptance of an offer. Acceptance is simply the name given to the action of an offeree in making the offeror’s promise enforceable. This podcast will look at the basic attributes of acceptance, as well as specific issues related to the mirror image rule, the permitted method and manner of acceptance, and acceptance by silence.

This podcast explains the concept of Accord and Satisfaction, with a focus on when an accord is formed and when performance under the accord results in a satisfaction. This concept differs from modification. With accord and satisfaction, one party has completed performance and the other party’s only obligation is to render its performance -- usually the payment of money. So the party who has performed is in the position of a creditor and the party who has not performed is in the position of a debtor.

This podcast explains when agreements are not enforceable as contracts because they are not supported by consideration due to the fact that the promise is based on past action or a moral obligation. It also presents common situations involving past consideration, including the exception provided under the material benefit rule. The cases Mills v. Wyman and Webb v. McGowin are discussed. 

The topic of this podcast is when rights under a contract may be assigned to third parties, and when duties may be delegated to third parties. Using hypotheticals to illustrate, it discusses the exceptions that limit the transfer of rights and duties to a third party. The assignability of the right to receive money, and the liability involved with the delegation of a duty to pay money, are also covered. Finally, it examines prohibitions of assignment of rights or delegation of duties, including what it means to enforce such a prohibition. UCC Article 9, UCC § 2-210(5), and UCC § 2-210(6) are discussed. 

The topic of this podcast is the basic concept of certainty in computing damages. Certainty is a principle that can limit a plaintiff's recovery in a claim for breach of contract. According to Restatement (Second) of Contracts § 352, "Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty." The podcast discusses what certainty requires and the purpose behind certainty. It further discusses when certainty might apply - such as in cases involving a new business or lost royalties - methods of proving certainty, and how certainty is treated in the courts. Several hypotheticals are explored, as is the case Freund v. Washington Square Press.  

Choice of law occurs when there is an issue of which jurisdiction’s law the courts will apply to a substantive issue. Choice of law is not a question of where a case will be heard, but instead what law applies when hearing the case. Prof. Burnham discusses how parties can influence what law will apply as well as what restrictions apply when doing so.

The topic of this podcast is an introduction to defenses to enforcement of a contract based upon defects in the bargaining process, capacity of one of the parties, or public policy. There are three sets of defenses to enforcement of a contract which is otherwise valid. The first set of defenses relate to capacity to contract. There are three capacity related defenses: (i) infancy (where a party is a minor, meaning below the age of majority), (ii) mental illness or defect; and (iii) intoxication.

The topic of this podcast is Disclaimer of Warranty and Limitation of Remedies. Warranties provided by the default rules of Article 2 are covered in a different podcast. This podcast will provide a basic overview of how the seller may disclaim warranties or limit the remedies for their breach. Topics covered include express warranties, the implied warranty of merchantability,  and disclaiming liability for consequential damages. Examples include an analysis of sections 2-312 and 2-316.

The topic of this podcast is how to determine the duration of the power of acceptance in the offeree and whether that power of acceptance has been terminated. Recall that a contract is a promise or set of promises which the law enforces. Ordinarily, the manifestation of mutual assent takes place by virtue of an offer by the offeror, which is then followed by an acceptance by the offeree. Once an offer is terminated, the power of acceptance is no longer present unless the offeror revives the offer at a later time.

There are three sets of defenses that might be used to avoid enforcement of a contract which is otherwise valid. The topic of this podcast is the basic concepts related to two of the assent related defenses, duress and undue influence. The defense of duress exists to protect against contracts that are obtained by some type of threat or coercion. The defense of undue influence exists for a more specialized role, to protect against assent obtained by unfair persuasion.