Enforcing Promises: An Examination of the Basis of Contract

The obligation to keep promises is a commonly acknowledged moral duty. Yet not all promises – however solemnly vowed – are enforceable at law. Why are some promises legally binding and others not? Orthodox doctrinal categories provide only modest assistance in answering this persistent question. Conventional analysis, for example, has distinguished promises made in exchange for a return promise or performance from nonreciprocal promises. Indeed, common law bargain theory is classically simple: bargained-for promises are presumptively enforceable; nonreciprocal promises are presumptively unenforceable. But this disarmingly simple theory has never mirrored reality. Contract law has ventured far beyond such narrow limitations, embracing reliance and unjust enrichment as additional principles of promissory obligation. Thus, a promise may be enforceable to the extent that the promisee has incurred substantial costs, or conferred benefits, in reasonable reliance on the promise. Promissory estoppel under Section 90 of the Restatement of Contracts is the primary enforcement mechanism when action in reliance follows the promise. If the change of position by the promisee precedes the promise, its nexus with the promise is more subtle. For example, a promise is enforceable when it follows a non-donative material benefit conferred by the promisee. Unjust enrichment principles are typically invoked to enforce such past consideration promises. Despite this expansion of liability, gratuitous promises of gifts or unilateral pledges to confer benefits remain legally unenforceable

Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach

Part I of this Article examines the role of liquidated damage provisions and penalties in the context of a general theory of efficient breach of contract. The proof problems inherent in fully recovering idiosyncratic values within the context of operationally practical damage sanctions may prevent the non-breaching party from recovering his subjective expectations if recovery is limited to legally determined remedies. The expected cost of establishing true losses under conventional damage measures will thus induce parties who face uncertain or nonprovable anticipated losses to negotiate stipulated damage agreements. The current penalty rule subjects these agreements to costly review, based not on the fairness of the process, but on whether the initial estimate sufficiently mirrors the anticipated provable loss. Part II examines the hypothesis that, absent evidence of process unfairness in bargaining, efficiency will be enhanced by the enforcement of an agreed allocation of risks embodied in a liquidated damage clause. We argue that agreed damage measures and in terrorem provisions represent, under many circumstances, the most efficient means by which parties can insure against the otherwise non-compensable consequences of breach. Our hypothesis is then also tested against a series of conditions in order to identify alternative legal principles that may provide less costly means of avoiding the harmful effects whose perception apparently prompted the current penalty rule

Measuring Sellers\u27 Damages: The Lost-Profits Puzzle

A buyer repudiates a fixed-price contract to purchase goods, and the seller sues for damages. How should a court measure the seller\u27s loss? The answer seems simple: The seller should be awarded damages sufficient to place it in the same economic position it would have enjoyed had the buyer performed the contract. But the seductive conceptual simplicity of the compensation principle disguises substantial practical problems in measuring seller\u27s damages. Contract law has traditionally minimized measurement difficulties by basing damages in most cases on the difference between the contract price and market value of the repudiated goods. The common law courts generally limited the seller to such market damages whenever the seller had a resale market for the contract goods. These courts assumed that combining this damage award with proceeds from a resale would give the seller the profits that performance would have earned it

Enforcing Promises: An Examination of the Basis of Contract

The obligation to keep promises is a commonly acknowledged moral duty. Yet not all promises – however solemnly vowed – are enforceable at law. Why are some promises legally binding and others not? Orthodox doctrinal categories provide only modest assistance in answering this persistent question. Conventional analysis, for example, has distinguished promises made in exchange for a return promise or performance from nonreciprocal promises. Indeed, common law bargain theory is classically simple: bargained-for promises are presumptively enforceable; nonreciprocal promises are presumptively unenforceable. But this disarmingly simple theory has never mirrored reality. Contract law has ventured far beyond such narrow limitations, embracing reliance and unjust enrichment as additional principles of promissory obligation. Thus, a promise may be enforceable to the extent that the promisee has incurred substantial costs, or conferred benefits, in reasonable reliance on the promise. Promissory estoppel under Section 90 of the Restatement of Contracts is the primary enforcement mechanism when action in reliance follows the promise. If the change of position by the promisee precedes the promise, its nexus with the promise is more subtle. For example, a promise is enforceable when it follows a non-donative material benefit conferred by the promisee. Unjust enrichment principles are typically invoked to enforce such past consideration promises. Despite this expansion of liability, gratuitous promises of gifts or unilateral pledges to confer benefits remain legally unenforceable

The Mitigation Principle: Toward a General Theory of Contractual Obligation

The duty to mitigate is a universally accepted principle of contract law requiring that each party exert reasonable efforts to minimize losses whenever intervening events impede contractual objectives. Although applications of the mitigation principle pervade the specific rules of contract, it is startling how many questions remain unanswered as to precisely what efforts the mitigation duty requires and what point in time the obligation arises. For example, under what circumstances does mitigation require an injured party to deal with the contract breacher? Why does the duty to minimize losses mature only after the breach, even if the injured party became aware much earlier of a significant danger of breach and had a cost-effective opportunity to mitigate the prospective loss? Is the duty to communicate special or unforeseeable circumstances confined to the time of contracting, even where the communication of post-contract but pre-performance information might reduce costs? These and many similar questions remain unresolved because the relationship among the diverse rules of mitigation has not been systematically articulated. Recognizing that each party\u27s mitigation responsibility is inextricably linked to the performance obligation of his contracting partner is the key step in fitting the mitigation principle into a general theory of contractual obligation. In recent years, a maturing theoretical scholarship has furthered understanding of the performance and remedial obligations of contracting parties. By focusing on particular performance problems, this scholarship has not only uncovered further questions but also heightened interest in a theoretical formulation that weaves the performance and remedial rules of contract into a single fabric

The Limits of Expanded Choice: An Analysis of the Interactions between Express and Implied Contract Terms

Although trade and its defining terms lie at the very core of contract law, perceptions of the state\u27s involvement in the exchange process remain peculiarly incomplete. Everyone understands that the state supplies the fundamental property-defining rules for pre-trade endowments. For instance, governmentally provided rules of tort, nuisance, and civil rights establish basic boundaries of what initially belongs to an individual and, hence, what he has to offer in exchange. When an exchange subsequently takes place, however, the parties themselves assume an important part of the burden of communicating what rights are being given and received. Although the state\u27s general rules of contract provide a set of standard gap-filling assumptions or implied terms, almost every agreement requires the parties to provide some additional individualized content. At one level, the private and state-supplied terms of an executory contract represent an attempted interparty communication of the substantive entitlements intended to be exchanged. Since, however; the terms communicate evidence of the exchange\u27s content to the state as well, they also constitute the principal legal definition of the rights reallocation. Unfortunately, this definitional process requires parties to employ inherently error-prone signals – the formulations of their agreement. If the chosen combination of privately and publicly supplied terms results in an inappropriate formulation, a party may suffer a costly surprise when the contract is legally enforced. The disappointed party will frequently contend that the content of the contract, as ultimately interpreted, does not accurately describe the original intent or expectation. Many such complaints about the misformulation or misinterpretation of an agreement are rooted in tensions between implied and express terms and between standard and unconventional forms of expression. To the extent that these tensions have been understood at all, the major attempt to harmonize them relies on what we term the Expanded Choice postulate. The postulate maintains that implied terms expand contractors\u27 choices by providing standardized and widely suitable preformulations, thus eliminating the cost of negotiating every detail of the proposed arrangement. This Expanded Choice thesis implicitly presumes a neutral policy toward individualized agreements: atypical parties lose nothing, since they remain unrestrained from designing customized provisions to replace the state-supplied terms

How Accurately Can Parents Judge Their Children\u27s Boredom in School?

The purpose of the present study was to explore what parents know about their Children’s boredom in school; specifically, the frequency, intensity, and antecedents of their Children’s boredom, as well as how they cope with boredom. A questionnaire was administered to 437 grade 9 students (54% female, Mage = 14.82) and their parents (72% mothers, 14% fathers, 12% both parents, Mage = 45.26) measuring variables related to students boredom in mathematics class. Three different measurements were used to evaluate the accuracy of parents’ judgments: (1) the correlation between parents’ and students’ answers, (2) the mean differences between parents’ and students’ answers, and (3) the mean values of absolute differences of parents’ and students’ answers. The results suggest that parents generally have an informed knowledge about their child’s boredom and related facets. This is reflected by a mean correlation of medium size (r = 0.34) and a small mean effect size of the difference between parents’ and students’ judgments over all items (d = 0.20). Parents are also substantially better in judging their Children’s boredom compared to guessing for all variables (mean effect size of d = 0.65). They had the most precise judgments for the frequency and intensity of boredom. The antecedents of boredom (e.g., characteristics of instruction) were also well estimated by parents; specifically, parents tend to have a bias in favor for their children evidenced by overestimating antecedents that cannot be influenced by the students and underestimating those that can be influenced by the students. The least concordance was found between parents’ and Children’s perception of boredom coping strategies (e.g., accepting boredom), implying that parents lack information about how their children intentionally cope with boredom. Implications for research on student boredom are discussed as well as practical applications involving parents in boredom prevention

Diet and Foraging Behaviors of Timber Rattlesnakes, Crotalus horridus, in Eastern Virginia

During a 17-yr telemetry study, we examined the diet and ambush behavior of a population of Crotalus horridus in southeastern Virginia. Forty dietary items were identified from 37 fecal samples. We documented 722 instances of snakes in an ambush posture, 61 of which were in a vertical-tree posture, as if hunting arboreal prey at the base of a tree. The most common prey items were Eastern Gray Squirrels (Sciurus carolinensis), which accounted for 45 of all dietary items and represented an estimated 78 of total biomass consumed by C. horridus. Prey was not consumed in proportion to availability, based on small mammal surveys. Our analysis provides indirect evidence that the vertical-tree foraging behavior is adopted to target arboreal Eastern Gray Squirrels. Further, we provide support for the hypothesis that C. horridus alters ambush behavior to forage selectively for specific prey types

Diet and Foraging Behaviors of Timber Rattlesnakes, \u3ci\u3eCrotalus Horridus\u3c/i\u3e, in Eastern Virginia

During a 17-yr telemetry study, we examined the diet and ambush behavior of a population of Crotalus horridus in southeastern Virginia. Forty dietary items were identified from 37 fecal samples. We documented 722 instances of snakes in an ambush posture, 61% of which were in a vertical-tree posture, as if hunting arboreal prey at the base of a tree. The most common prey items were Eastern Gray Squirrels (Sciurus carolinensis), which accounted for 45% of all dietary items and represented an estimated 78% of total biomass consumed by C. horridus. Prey was not consumed in proportion to availability, based on small mammal surveys. Our analysis provides indirect evidence that the vertical-tree foraging behavior is adopted to target arboreal Eastern Gray Squirrels. Further, we provide support for the hypothesis that C. horridus alters ambush behavior to forage selectively for specific prey types

Spitzer, Near-Infrared, and Submillimeter Imaging of the Relatively Sparse Young Cluster, Lynds 988e

We present {\it Spitzer} images of the relatively sparse, low luminosity young cluster L988e, as well as complementary near-infrared (NIR) and submillimeter images of the region. The cluster is asymmetric, with the western region of the cluster embedded within the molecular cloud, and the slightly less dense eastern region to the east of, and on the edge of, the molecular cloud. With these data, as well as with extant H$\alpha$ data of stars primarily found in the eastern region of the cluster, and a molecular $^{13}$CO gas emission map of the entire region, we investigate the distribution of forming young stars with respect to the cloud material, concentrating particularly on the differences and similarities between the exposed and embedded regions of the cluster. We also compare star formation in this region to that in denser, more luminous and more massive clusters already investigated in our comprehensive multi-wavelength study of young clusters within 1 kpc of the Sun.Comment: 21 pages, 6 tables, 13 figures. Full resolution figures at: http://astro.pas.rochester.edu/~tom/Preprints/L988e.pd