CHAPTER 1: INTRODUCTION (back to top)1.1 SOURCES AND ORGANIZATION OF CONTRACT LAW
1.101 Overview
1.102 Case Law
1.103 Virginia Statutes
1.104 Federal Statutes
1.105 United Nations Convention on Contracts for the International Sale of Goods
1.2 DEFINITIONS OF TERMS
1.201 Definition of a Contract
1.202 Glossary of Common Contract Terms
1.3 TYPES OF CONTRACTS
1.301 Voidable and Void Contracts
1.302 Express and Implied Contracts
1.303 Unilateral and Bilateral Contracts
1.304 Executory and Executed Contracts
1.305 Unenforceable Contracts
1.306 Entire and Severable Contracts
1.307 Oral and Written Contracts
1.308 Electronic Contracts
CHAPTER 2: FORMATION OF CONTRACTS (back to top)2.1 INTRODUCTION
2.2 THEORY OF MUTUAL ASSENT
2.3 MECHANICS OF ASSENT: OFFER AND ACCEPTANCE
2.301 Offer
2.302 Acceptance
2.303 Other Elements of Contract Formation
2.304 Termination of Offer
2.4 CONSIDERATION
2.401 In General
2.402 Adequacy of Consideration
2.403 Bargained-For Exchange
2.404 Requirement of Mutuality
2.405 Lack of Consideration
2.406 Types of Consideration
2.5 CONTRACTS WITHOUT CONSIDERATION
2.501 In General
2.502 Equitable Estoppel
2.503 Promissory Estoppel
2.504 Quasi-Contract
2.6 SEAL AND OTHER VIRGINIA FORMALITIES
2.601 Promises Under Seal
2.602 Notary Requirement
2.603 Witness Requirement
CHAPTER 3: STATUTE OF FRAUDS (back to top)3.1 INTRODUCTION
3.2 SCOPE OF THE STATUTE
3.201 In General
3.202 Representations as to Credit
3.203 Ratification of Contracts by Infants After Coming of Age
3.204 Promises by Executors or Administrators
3.205 Promises to Answer for the Debt, Default, or Misdoings of Another
3.206 Agreements in Consideration of Marriage
3.207 Contracts Relating to the Sale of Land
3.208 Agreements Not to Be Performed Within One Year
3.209 Contracts in the Aggregate of $25,000 or More
3.3 SATISFACTION OF THE STATUTE
3.301 Form of Writing
3.302 Essential Terms
3.303 Signatures
3.4 EXCEPTIONS
3.401 Parol Evidence
3.402 Full Performance
3.403 Part Performance
3.5 EFFECT OF NONCOMPLIANCE
3.6 ADDITIONAL VIRGINIA STATUTES REQUIRING AGREEMENTS TO BE IN WRITING
3.601 In General
3.602 Uniform Commercial Code
3.603 Promise After Bankruptcy
CHAPTER 4: DETERMINING CONTRACTUAL OBLIGATIONS (back to top)4.1 OVERVIEW
4.2 CONSTRUCTION AND INTERPRETATION
4.201 In General
4.202 Intent
4.203 Governing Law
4.204 Plain Meaning
4.205 Unambiguous Contracts
4.206 Ambiguous Contracts
4.207 Conclusion
4.3 THE PAROL EVIDENCE RULE
4.301 In General
4.302 Parties to Which the Rule Applies
4.303 Exceptions to the Parol Evidence Rule
4.304 Section 8.2-202 of the Virginia Code
4.4 SUPPLYING OMITTED TERMS
4.401 In General
4.402 Partial Integration Doctrine
4.403 Common Terms
4.404 Scrivener's Error
4.5 CUSTOM AND TRADE USAGE
4.501 Common Law
4.502 Knowledge
4.503 Common Trade
4.504 Effect on Contract Terms
4.505 Ambiguity
4.506 UCC Implications
4.6 CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS
4.601 In General
4.602 Parol Evidence Under the CISG
4.603 Course of Dealing, Custom, and Trade Usage
4.604 Merger Clauses and Exclusion of CISG Provisions
APPENDIX 4-1: CASES DISCUSSING STATUTORY CONSTRUCTION
CHAPTER 5: POLICING THE BARGAIN (back to top)5.1 MENTAL COMPETENCE
5.101 In General
5.102 Rebutting the Presumption of Competence
5.2 CONTRACTS OF MINORS
5.201 In General
5.202 Ratification and Disaffirmance
5.3 MISTAKE
5.301 In General
5.302 Mutual Mistake
5.303 Unilateral Mistake
5.304 Misunderstanding
5.305 Mistake in Transcription
5.306 Mistake in Transmission by Intermediary
5.4 FRAUD AND MISREPRESENTATION
5.401 In General
5.402 Elements of Actual Fraud
5.403 The Doctrine of Caveat Emptor
5.404 Constructive Fraud
5.405 Duty of Prompt Disaffirmance
5.406 Statutory Protections
5.5 DURESS AND UNDUE INFLUENCE
5.6 MODIFICATION OF CONTRACTS
5.601 In General
5.602 Effect of Modification
5.603 Applicability of the Statute of Frauds
5.604 No Oral Modification Clauses
5.7 WARRANTIES AND DISCLAIMERS
5.701 In General
5.702 Warranties, Representations, and Covenants Distinguished
5.703 Warranties under the UCC
5.704 Implied Duty to Indemnify
5.705 Disclaimers and Modifications of Warranties
5.706 Modification or Limitation of Remedies
5.8 PUBLIC POLICY AND ILLEGALITY
5.9 UNCONSCIONABILITY
5.901 In General
5.902 Proof of Unconscionability
5.903 Unconscionability Under the UCC
5.904 Duty of Good Faith
5.10 ACCORD AND SATISFACTION
5.1001 In General
5.1002 Joint Tortfeasors
5.1003 Use of Instrument
5.1004 Burden of Proof
5.1005 Effect of UCC Section 1-207
CHAPTER 6: PERFORMANCE AND NONPERFORMANCE (back to top)6.1 OVERVIEW
6.101 Importance of Performance Issues
6.102 Scope of this Chapter
6.2 CONDITIONS
6.201 Overview
6.202 Conditions Based Upon Time
6.203 Implied Conditions
6.3 ORDER OF PERFORMANCE
6.4 ANTICIPATORY BREACH
6.401 In General
6.402 What Constitutes Repudiation
6.403 The Right to Demand Assurances
6.404 Repudiation Must Be Clear, Unequivocal, and Material
6.5 BREACH: TYPES AND EFFECTS
6.501 Overview
6.502 Making Performance Impossible
6.503 Failure of Performance
6.6 SUBSTANTIAL PERFORMANCE
6.601 Overview
6.602 The UCC and Substantial Performance
6.7 RESPONSES TO BREACH
6.701 Overview
6.702 Permissible Actions
6.703 Waiver
6.704 Tips for the Practitioner
6.8 EXCUSE FOR NONPERFORMANCE: IMPOSSIBILITY AND FRUSTRATION
6.801 Overview
6.802 Impossibility
6.803 Frustration of Purpose
6.804 Tips for the Practitioner
CHAPTER 7: THIRD-PARTY BENEFICIARY LAW (back to top)7.1 INTRODUCTION
7.2 DISTINGUISHING BETWEEN INTENDED AND INCIDENTAL BENEFICIARIES
7.201 The "Clearly and Definitely Intended" Standard
7.202 The Federal "One Overriding Intent" Standard
7.203 Eligibiity of Class Members to be Third-Party Beneficiaries
7.204 Requirement That Parties Contemplate a Third-Party Benefit at the Time of Contracting
7.205 Mere Receipt of Benefit or Harm Under Contract Distinguished
7.3 PAROL EVIDENCE RULE
7.301 In General
7.302 Applicability of the Parole Evidence Rule
7.303 Application in Various Contexts
7.4 DEFENSES TO THIRD-PARTY BENEFICIARY CLAIMS
7.5 CASES BY SUBJECT MATTER AREA
7.501 Accounting and Auditing Services
7.502 Arbitration Provisions
7.503 Attorney-Client Contracts
7.504 Banking
7.505 Bankruptcy
7.506 Disability Benefits/IDEA Contracts
7.507 Health Care
7.508 Insurance
7.509 Labor and Employment Contracts
7.510 Materialmen Under a Contractor's Bond
7.511 Owner-Architect Contracts
7.512 Product Liability
7.513 Product Warranties
7.514 Public Finance
7.515 Real Estate
7.516 Releases
7.517 Shipping Contracts
7.518 Stock Purchase Agreement
7.519 Wills
CHAPTER 8: ASSIGNMENT AND DELEGATION (back to top)8.1 TERMINOLOGY
8.101 Definitions
8.102 Illustrations
8.2 ASSIGNMENT OF RIGHTS
8.201 Assignable Rights
8.202 Requirements for Effective Assignment
8.203 Effect of Assignment
8.3 DELEGATION OF DUTIES
8.301 Duties that May Be Delegated
8.302 Requirements for Effective Delegation
8.303 Effect of Delegation
8.4 LIMITATIONS ON ASSIGNMENT AND DELEGATION
8.5 EFFECTS OF MODIFICATION OR DISCHARGE
8.6 PRIORITIES BETWEEN CLAIMANTS
8.601 General Rule
8.602 Exceptions to the Rule
APPENDIX 8-1: ASSIGNMENT CLAUSE
CHAPTER 9: JOINT AND SEVERAL CONTRACTS (back to top)9.1 OVERVIEW
9.2 MULTIPLE OBLIGORS
9.201 In General
9.202 Several Liability
9.203 Joint Liability
9.204 Joint and Several Liability
9.205 Liability of Unnamed Signer
9.206 Promises of the Same Performance
9.207 Partnership Obligations
9.208 Negotiable Instruments
9.209 Form Provisions
9.3 MULTIPLE OBLIGEES
9.4 EFFECTS OF PERFORMANCE, BREACH, AND DISCHARGE
9.401 Effects of Performance
9.402 Effects of Breach
9.403 Effects of Discharge
9.5 SURVIVAL OF RIGHTS OR DUTIES
APPENDIX 9-1: JOINT AND SEVERAL LIABILITY PROVISION--NOTE
APPENDIX 9-2: JOINT AND SEVERAL LIABILITY PROVISION--GUARANTY
APPENDIX 9-3: JOINT AND SEVERAL LIABILITY PROVISION--LEASE
APPENDIX 9-4: JOINT AND SEVERAL LIABILITY PROVISION--LEASE (ANOTHER FORM)
APPENDIX 9-5: SEVERAL LIABILITY PROVISION--LOAN AGREEMENT
APPENDIX 9-6: SEVERAL LIABILITY PROVISION--STOCK PURCHASE AGREEMENT
CHAPTER 10: SPECIAL TYPES OF CONTRACTS (back to top)10.1 COMMERCIAL CONTRACTS
10.101 Introduction
10.102 Creating the Contract
10.103 The Parol Evidence Rule
10.104 Performance
10.105 Warranties
10.2 CONSTRUCTION CONTRACTS
10.201 Introduction
10.202 American Institute of Architects Form Contracts
10.203 Provisions Common in Owner-Contractor Contracts
10.204 Subcontractor Provisions
10.205 Delay in Performance
10.206 Conclusion
10.3 CONSUMER CONTRACTS
10.301 Introduction
10.302 Common Law
10.303 Statutes Affecting Consumer Contracts
10.304 Virginia Recovery Funds
10.305 Consumer-Related Business Promotions
10.306 Contractual Merger and Disclaimer
10.307 Misrepresentations and Other Offenses
10.308 Collections
10.309 Residential Leases
10.310 Residential Real Estate Contracts
10.311 Real Estate Settlement Procedures Act
10.312 Mortgage Lending Contracts
10.313 Real Estate Foreclosures
10.4 ELECTRONIC CONTRACTS
10.401 Introduction
10.402 "Writing" Defined
10.403 Uniform Electronic Transactions ACT (UETA)
10.404 The Statute of Frauds
10.405 Clickwrap Contracts
10.406 Browsewrap Contracts
10.407 Uniform Computer Information Transactions Act
10.408 Proposed Revisions to Article 2 of the Uniform Commercial Code
10.409 Electronic Signatures in Global and National Commerce Act
10.5 EMPLOYMENT CONTRACTS
10.501 At-Will Doctrine
10.502 Exceptions to the At-Will Doctrine
10.503 Employment Agreement Drafting Tips
10.6 GOVERNMENT CONTRACTS
10.601 Introduction
10.602 Federal Government Contracting
10.603 Virginia Public Contracts
10.7 INTELLECTUAL PROPERTY CONTRACTS: A BRIEF OVERVIEW
10.701 Introduction
10.702 License Agreements--Common Elements
10.703 Evaluation Agreements
10.704 Employee Invention and Nondisclosure Agreements
10.705 Uniform Computer Information Transactions Act
10.706 Patentability and Protection of Business Method Processes
10.8 LENDING AGREEMENTS
10.801 Introduction
10.802 Interest and Usury
10.803 Lending Agreements as Negotiable Instruments
10.804 Security Interests
10.805 Guarantors and Co-Obligors
10.806 Seals
10.9 REAL ESTATE CONTRACTS
10.901 Introduction
10.902 Formation and Validity of the Contract
10.903 Consideration
10.904 Description of Real Property
10.905 Description of Personal Property
10.906 Contract Conditions
APPENDIX 10-1: EXCLUSIVE PATENT LICENSE AGREEMENT
APPENDIX 10-2: LICENSE AGREEMENT
APPENDIX 10-3: SOFTWARE LICENSE AGREEMENT
APPENDIX 10-4: TECHNOLOGY DEVELOPMENT AGREEMENT
APPENDIX 10-5: CONFIDENTIALITY AGREEMENT FOR PRODUCT EVALUATION
APPENDIX 10-6: PROPRIETARY INFORMATION, INVENTIONS, AND NON-SOLICITATION AGREEMENT
INDEX
Volume II
CHAPTER 11: GENERAL DRAFTING PRINCIPLES (back to top)
11.1 GOALS AND STRATEGIES
11.101 Environmental Conditions
11.102 Zoning
11.103 Foundation
11.104 Local Design Approval
11.105 Choice of Building Materials
11.106 Form
11.107 Function
11.2 FUNCTION
11.201 Identification of the Parties
11.202 Clearly Stated Mutual Obligations
11.203 Allocation of Risk
11.3 TOP TEN DRAFTING TECHNIQUES
11.301 Active Voice
11.302 Remedies Other than Termination
11.303 Inconsistencies
11.304 Whether Multiple Parties' Responsibilities Are Joint or Several
11.305 Exhibits When Client Input Is Needed
11.306 Successors and Assigns
11.307 Notice, Notice, Notice
11.308 Choice of Law and Choice of Forum Provisions, Especially in International Contracts
11.309 Written Amendments
11.310 Defined Terms
APPENDIX 11-1: SAMPLE INTERNATIONAL DISTRIBUTION AGREEMENT WITH COMMENTARY
APPENDIX 11-2: STOCK PURCHASE AGREEMENT
APPENDIX 11-3: REAL ESTATE PURCHASE AGREEMENT
APPENDIX 11-4: PURCHASE AND SALE AGREEMENT
APPENDIX 11-5: SAMPLE OPERATING AGREEMENT WITH COMMENTARY FOR A LIMITED LIABILITY COMPANY
APPENDIX 11-6: EMPLOYMENT AGREEMENT
APPENDIX 11-7: SAMPLE SHAREHOLDERS' AGREEMENT WITH COMMENTARY
APPENDIX 11-8: PROMISSORY NOTE
APPENDIX 11-9: GUARANTY
APPENDIX 11-10: SECURITY AGREEMENT
APPENDIX 11-11: STOCK PLEDGE AGREEMENT
APPENDIX 11-12: LIQUIDATED DAMAGES PROVISION (CONSTRUCTION CONTRACT)
APPENDIX 11-13: LIMITATION OF THIRD-PARTY BENEFIT PROVISION
APPENDIX 11-14: SEVERABILITY PROVISION
APPENDIX 11-15: MERGER PROVISION
APPENDIX 11-16: SURVIVAL PROVISION
CHAPTER 12: REMEDIES FOR BREACH OF CONTRACT (back to top)
12.1 INTRODUCTION
12.2 ELECTION OF REMEDIES
12.201 Tort Versus Contract
12.202 Law Versus Equity
12.203 Cases Decided Under Former Bifurcated System of Law and Equity
12.204 Irreconcilable Claims and Double Recovery
12.3 DAMAGES
12.301 In General
12.302 Direct Damages
12.303 Consequential Damages
12.304 Damages Under the Virginia Uniform Commercial Code
12.305 Lost Profits
12.306 Nominal Damages
12.307 Contractual Modification, Limitation, or Exclusion of Damages and Remedies
12.308 Liquidated Damages Clauses
12.309 Mitigation of Damages and the Doctrine of Avoidable Consequences
12.310 Punitive Damages
12.311 Purely Economic Losses and the "Economic Loss Rule"
12.312 Contract Provisions Permitting Recovery of Attorney Fees and Litigation Expenses
12.313 The "First in Fault Rule" as a Bar to Recovery of Damages for Breach
12.4 SPECIFIC PERFORMANCE
12.401 In General
12.402 Specific Performance Under the UCC
12.403 Specific Performance of Real Estate Contracts
12.404 Specific Performance of Other Types of Contracts
12.405 Establishing the Right to Specific Performance
12.406 Effect of Agreement That Specific Performance Is Appropriate Remedy
12.407 Effect of Liquidated Damages Clauses on Right to Demand Specific Performance
12.5 INJUNCTIONS
12.501 In General
12.502 Statutory Authority to Award Injunctions
12.503 Temporary and Permanent Injunctions
12.504 Standards for Granting Injunctive Relief
12.505 Procedural Issues in Obtaining Injunctive Relief
12.506 Injunctions Under Specific Statutes
12.507 Injunctions to Enforce Non-Competition Agreements in Employment Contracts
12.6 RESCISSION
12.601 In General
12.602 Rescission Versus Specific Performance
12.603 Grounds for Rescission
12.604 Rescission of Sales Contracts Under the UCC
12.605 Rescission as a Remedy for Creditors
12.606 Rescission of Settlement Agreements
12.607 Rescission as a Remedy for Breach of Contract
12.608 Relief Awarded When Rescission Is Granted
12.609 Waiver of Right to Seek Rescission
12.7 RESTITUTION
12.701 In General
12.702 Return of Specific Property or Money Held by the Defendant
12.703 Payment of Money Damages as Compensation to the Plaintiff
12.704 Return of the Full Value of the Unjust Benefit Gained by the Defendant
12.705 Imposition of a Constructive Trust
12.8 REFORMATION
12.801 In General
12.802 Standard of Proof
12.803 Ambiguity and the Parol Evidence Rule
12.804 Pleading
12.805 Parties
12.806 The Doctrine of Laches
12.9 DECLARATORY JUDGMENTS
12.901 In General
12.902 Right to Seek Additional Relief
12.903 Right to a Jury Trial
12.10 INDEMNITY
12.11 ARBITRATION AGREEMENTS
12.12 DAMAGES FOR TORTIOUS INTERFERENCE WITH A CONTRACT
12.13 ACTUAL AND CONSTRUCTIVE FRAUD IN THE INDUCEMENT
12.1301 In General
12.1302 Elements of a Claim for Actual Fraud
12.1303 Elements of a Claim for Constructive Fraud
12.1304 Damages
CHAPTER 13: RESOLVING CONTRACT DISPUTES THROUGH ALTERNATIVE DISPUTE RESOLUTION (back to top)
13.1 AN OVERVIEW OF ALTERNATIVE DISPUTE RESOLUTION
13.101 In General
13.102 The Problem With Litigation
13.103 The Case for ADR
13.2 ADR PROCESSES
13.201 Primary, Hybrid, and Other ADR Processes
13.202 Primary ADR Processes
13.203 Comparison of Litigation and the Primary ADR Processes
13.204 Hybrid ADR Processes
13.205 Other ADR Processes
13.3 REASONS TO INCLUDE A PREDISPUTE ADR CLAUSE
13.301 More Effective Dispute Resolution Processes
13.302 The Fear Factor
13.303 The Inevitability of Conflict
13.4 CHECKLIST FOR DRAFTING AN ADR CLAUSE
13.401 Is the ADR Clause Enforceable?
13.402 Should a Standard Boilerplate ADR Clause Be Used?
13.403 Should a Multi-Step ADR Process Be Used?
13.404 What Are the Key Issues in Drafting an ADR Clause?
CHAPTER 14: LITIGATING A CONTRACT CASE (back to top)
14.1 INTRODUCTION
14.2 ESTABLISHING A LITIGATION FILING SYSTEM
14.3 DRAFTING INITIAL PLEADINGS
14.301 In General
14.302 The Plaintiff's Initial Pleadings
14.303 Causes of Action
14.304 The Defendant's Responsive Pleadings
14.305 Pretrial Motions
14.4 THE DISCOVERY PROCESS
14.401 In General
14.402 Requests for Admissions
14.403 Requests for Stipulations
14.404 Rule Revisions Relating to Discovery
14.5 NECESSARY OR INDISPENSABLE PARTIES
14.6 TRIAL PREPARATION
14.601 Creating a Working Narrative
14.602 Applying the Evidence to the Narrative
14.603 Using Enlargements
14.604 Creating Trial Preparation Checklists
14.605 Compiling Bench Books
14.7 TRIAL
14.701 In General
14.702 Opening Statement
14.703 Witnesses
14.704 Introduction of Documents
14.705 Objections
14.706 Closing Argument
14.8 CLOSING ARGUMENT
APPENDIX 14-1: FILE MANAGEMENT
APPENDIX 14-2: TRIAL CHECKLIST
APPENDIX 14-3: SECOND CHAIR TRIAL CHECKLIST
APPENDIX 14-4: COMPLAINT--NOTE AND GUARANTY
APPENDIX 14-5: COMPLAINT--SPECIFIC PERFORMANCE AND DAMAGES
APPENDIX 14-6: COMPLEX CONTRACT ACTION
TABLE OF AUTHORITIES
INDEX