The Story of Contract Law: Formation

The Story of Contract Law: Formation

Table of contents
Chapter One Consideration: Contract & Bargain
1.1 - A. Introduction
1.1.1 - Medieval Law of Promise Enforcement
1.1.2 - Changes in the Renaissance
1.2 - B. Consideration Theory and Policy
1.3 - C. Bargain
1.4 - D. Proper Form
1.4.1 - Benefit
1.4.2 - Detriment
1.4.3 - Mutual Promises
Chapter Two Assent-Based Niches of Promise Enforcement: Modification and Waiver
2.1 - A. Modification
2.1.1 - Modification of Judgment Liabilities
2.1.2 - Modification of Contractual Liabilities
2.2 - B. Waiver
Chapter Three Alternate Theories of Re-covery: Promissory Es-toppel & Unjust Enrich-ment
3.1 - A. Promissory Estoppel
3.2 - B. Unjust Enrichment
Chapter Four Limits on Bargains: De-fenses
4.1 - A. Introduction: Limits on Bargains?
4.2 - B. Duress
4.3 - C. Mutual Mistake
4.4 - D. Unilateral Mistake
4.5 - E. Misrepresentation
4.6 - F. Unconscionability
Chapter Five The Push Toward Assent
5.1 - A. A Seal or Writing
5.1.1 - Seals and Statutes
5.2 - B. Nominal and Recited Consideration Generally, and in Option Contracts
5.3 - C. Implied Inducement
5.4 - D. The Statute of Frauds
5.5 - E. The Final Push: When Does a Contract Form?
5.6 - F. What is Assent, Really, in Contract Law?
Chapter Six Offers
6.1 - A. What Is an Offer?
6.2 - B. Termination of the Power of Acceptance
Chapter Seven Acceptances
7.1 - A. Acceptances: What Are They?
7.2 - B. Choice of Promise or Performance
7.3 - C. Issues of Intent
7.4 - D. Notice
7.5 - E. Silence
7.6 - F. The Battle of the Forms
Chapter Eight Definiteness
8.1 - A. The General Principle
8.2 - B. The Preliminary Agreement
Chapter Nine Limits on the Reach of Contract Law
9.1 - A. Public Policy
9.2 - B. Plea Bargains
9.3 - C. Employment at Will
9.4 - D. Covenants Not to Compete
Chapter Ten Warranties
10.1 - Appendix—Answers to Problems 7-12
The Story of Contract Law: Formation
2nd Edition
Val Ricks
© 2018 CALI eLangdell Press, Subject to an Attribution-NonCommercial-ShareAlike CC BY-NC-SA
Table Of Contents
  • Introduction
  • 1. Consideration: Contract & Bargain
    • 1.1 - A. Introduction
      • 1.1.1 - Medieval Law of Promise Enforcement
      • 1.1.2 - Changes in the Renaissance
    • 1.2 - B. Consideration Theory and Policy
    • 1.3 - C. Bargain
    • 1.4 - D. Proper Form
      • 1.4.1 - Benefit
      • 1.4.2 - Detriment
      • 1.4.3 - Mutual Promises
  • 2. Assent-Based Niches of Promise Enforcement: Modification and Waiver
    • 2.1 - A. Modification
      • 2.1.1 - Modification of Judgment Liabilities
      • 2.1.2 - Modification of Contractual Liabilities
    • 2.2 - B. Waiver
  • 3. Alternate Theories of Re-covery: Promissory Es-toppel & Unjust Enrich-ment
    • 3.1 - A. Promissory Estoppel
    • 3.2 - B. Unjust Enrichment
  • 4. Limits on Bargains: De-fenses
    • 4.1 - A. Introduction: Limits on Bargains?
    • 4.2 - B. Duress
    • 4.3 - C. Mutual Mistake
    • 4.4 - D. Unilateral Mistake
    • 4.5 - E. Misrepresentation
    • 4.6 - F. Unconscionability
  • 5. The Push Toward Assent
    • 5.1 - A. A Seal or Writing
      • 5.1.1 - Seals and Statutes
    • 5.2 - B. Nominal and Recited Consideration Generally, and in Option Contracts
    • 5.3 - C. Implied Inducement
    • 5.4 - D. The Statute of Frauds
    • 5.5 - E. The Final Push: When Does a Contract Form?
    • 5.6 - F. What is Assent, Really, in Contract Law?
  • 6. Offers
    • 6.1 - A. What Is an Offer?
    • 6.2 - B. Termination of the Power of Acceptance
  • 7. Acceptances
    • 7.1 - A. Acceptances: What Are They?
    • 7.2 - B. Choice of Promise or Performance
    • 7.3 - C. Issues of Intent
    • 7.4 - D. Notice
    • 7.5 - E. Silence
    • 7.6 - F. The Battle of the Forms
  • 8. Definiteness
    • 8.1 - A. The General Principle
    • 8.2 - B. The Preliminary Agreement
  • 9. Limits on the Reach of Contract Law
    • 9.1 - A. Public Policy
    • 9.2 - B. Plea Bargains
    • 9.3 - C. Employment at Will
    • 9.4 - D. Covenants Not to Compete
  • 10. Warranties
    • 10.1 - Appendix—Answers to Problems 7-12

Second Edition

by Val Ricks


CALI eLangdell® Press 2017

About the Author

Val Ricks has taught Contracts since 1996. His scholarship on contract law appears in the Georgetown LJ, Indiana LJ, BYU LR, George Mason LR, Baylor LR, and U. Kan. LR. He claims the original discovery that Isaac Kirksey actually made a bargain with Antillico. Professor Ricks also teaches, and writes about, business associations and other intersections of law and business. Before teaching, he clerked for Judge Charles Wiggins of the 9th Circuit and practiced transactional and appellate law in Salt Lake City. Professor Ricks received a B.A. summa cum laude in Philosophy and a J.D. summa cum laude, both from BYU. He and his bride are the parents of seven beautiful children.


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Contract law is famously baffling—put together haphazardly, with no central theory or goal. Welfare theorists, Kantians, and moralists have been battling for decades over whose theory ought to trump, and some commentators have given up.

Sixteen years ago, I wondered whether teaching the materials chronologically would allow a better understanding. After some study, I composed a book that taught the doctrines of contract law from original materials, roughly chronologically, but confirmed and expanded on the way with contemporary cases and statutes. Teaching from this book revealed a remarkable coherence in contract doctrines, mostly centered around bargain, a concept that, in itself, is neither theory nor goal. The coherence is primarily doctrinal—it is legal coherence. The policies and goals of the law differ from judge to judge, lawyer to lawyer, and among litigants. But the doctrine remains coherent despite its ability to absorb and instantiate the various theories and ends of contracting parties, arguing lawyers, and opining judges. In this, contract law is an incredible achievement.

The issues contract law addresses have not changed in the nearly 500 years during which the doctrines have developed. These issues include which promises to enforce, how much evidence to require of a plaintiff before the defendant must answer, and what evidence of hard bargaining and hard bargain will suffice to unwind what would otherwise be a binding promise. Given the length of time we have addressed these issues, it is perhaps not surprising that the law has worked out a coherent structure. Given the length of time, however, it is also not surprising that parts of that structure remain obscure.

Thanks to Jody Pratt, Sarah Humphrey, Jeff Kaiser, John Bohannan, and Derick Lancaster for helping with the search for cases and reading the manuscript. And thanks also to the hundreds of law students who have already learned from its pages. Learning with you has been one of the delights of my life.

VDR, 2015

Sources of Contract Law

Before the American Revolution, the American states were British colonies. English law, including English contract law, applied in each of the thirteen colonies. The Revolutionary War freed the colonies from the British crown, but each of the new states continued to apply primarily English contract law. The federal government came into existence in the 1780s as a government of limited powers. Various attempts have since been made to promulgate a federal contract law, but none have as yet succeeded.

That means that states control contract law. Contract law is fashioned by state courts and state legislatures. The English law of contracts was created one case at a time in England's courts, and our states have generally carried on that tradition. Court-created law is usually called "common law" because English medieval royal courts supposedly adopted as law the common customs of the people, and also because that law applied nationally. The name stuck several hundred years ago. Now, our court-made law is called "common law" even if it is contrary to the customs of the people and applies only in a single jurisdiction within the United States. State legislatures also get in the act by passing statutes that codify or change the common law. Law promulgated by legislatures is called "statutory" law as opposed to "common law.” Most of the law we study will be common or statutory law, adopted or promulgated by state courts or state legislatures. Here and there a federal statute or regulation will intrude.

In the last hundred years, two groups of lawyers have somewhat successfully influenced the process of contract-law-making in America. The first is the National Conference of Commissioners on Uniform State Laws (NCCUSL). The Conference includes 50 state-appointed commissioners who draft and recommend legislation to state legislatures. Please look over NCCUSL's website at

The second group is the American Law Institute (ALI). The ALI is an organization of lawyers, judges, and legal academics dedicated to clarifying, simplifying, and reforming law. Please look at the ALI website also, at (The "About ALI" link is especially helpful.) The ALI's primary vehicle for accomplishing its mission is to "restate" the common law; that is, to boil down all the common law from court opinions into black letter rules that lawyers can better understand. The first Restatement of Contracts was published in 1932. The Restatement (Second) of Contracts was published in 1981. Sometimes the ALI merely restates the common law. The first Restatement of Contracts tried to do that. But often the ALI "restates"(?) as law what isn't yet law, in the hope that courts will adopt the ALI position. The Restatement (Second) (affectionately referred to as “R2K”) proposed more of this reforming than did the first Restatement. But courts have drawn (and will draw) on the wisdom of both documents. The Restatement and Restatement (Second) are not law but only commentary, unless something in them has been adopted by courts. The common law comes from decided cases, as it always has. Sections and comments of the R2K are sometimes referred to in bold in this book. When you find a reference in bold (for examples, see pages listed with a R2K section in the Table of Contents), please find the materials referred to in the statutory supplement recommended by your teacher and study them as if they were written out in this book itself.

Between 1940 and 1952, NCCUSL and the ALI teamed up to draft the Uniform Commercial Code (UCC), which they then proposed to state legislatures. This statute has been wildly successful: eventually all fifty state legislatures passed it, with only some local variation (though Louisiana did not pass Article Two). The result is that for most commercial transactions, the law of all fifty states is uniform. The UCC governs such things as sales of goods (Article 2), negotiable instruments (Article 3), and secured transactions (Article 9). Excerpts from the UCC are included in your statutory supplement. When you see an excerpt from the UCC referred to in bold in this book (for examples, see pages listed with a UCC section in the Table of Contents), please find it in the statutory supplement and study it as if it were written out in this book.

The rest of contract law is unspoken. It exists in the practices, morals, prejudices, theories, and goals of the lawyers, judges, litigants, and facts involved in its making and application. In this course you will study not only the rules themselves, which make up the body of contract law proper, but also the culture in which contract law exists, is applied, and is a part.

How this Book Is Organized

To understand the materials that follow, you must first know something about the history of American contract law. Our law of contracts includes (1) several hundred rules, formulated in both case law and statutes (I estimate we will study roughly 350 in this book, depending on what one counts as a rule); (2) the application of those rules in many thousands of cases (of course we won’t read all of them, just those in the Table of Contents); and (3) a good deal of theory and culture.

The rules, applications, theory, and culture of contract law have developed over roughly four and a half centuries. The aim of this text is to provide the material necessary for you to (a) develop some understanding of contract law rules as they originally developed, and (b) confirm and expand that understanding with examples from the twentieth and twenty-first centuries. Most of our common law of contract is traceable to one of two sources: (1) English common law developed from the practices of the English royal courts between 1500 and 1800, and (2) the combination of Roman law and Aristotelian personality theory worked out by sixteenth century scholars in Spain and later adopted as an overarching legal theory by European scholars in the 1600s and 1700s. These two sets of authority were then combined in the 1800s as judges in the new American republic gathered what they thought was the best in legal wisdom from around the world.

You must read carefully what is here. Most of it is case law, but some is statutes. You will be unable to understand the materials adequately unless you ask and answer questions of the material. For instance, for both cases and statutes you will have to ask such questions as “What is the issue here?” “What rule is the court following?” “Which facts determine the result under this rule?” “How can I change the facts so that the rule does not (or does) apply?” These kinds of questions will guide your learning so that the knowledge you take from the materials will be useful to you on the class exam, on the bar exam, and in practice. I have listed questions below many items in the reading, also. These are questions that I ask in class, and they are the kinds of questions that a lawyer should be able to answer from the materials. Near the beginning of the semester, I would expect some of you to need help determining the answers to these questions from the materials. As the semester progresses, however, you should become able to answer these questions from the materials yourself. If you cannot, you have missed something and you should study harder (or smarter?) for the next assignment so that you can.

The organization of the casebook reflects the way that contract law developed. Chronological development is actually the only way to make complete sense of contract law. But the law of contract formation breaks down into different but easy (though slightly false) categories around which you can begin to build an outline of the law. (These categories did not develop chronologically, so your outline of the law should not follow the Table of Contents exactly.) First, three different theories of liability exist: I. Consensual Contract (often called simply “Contract”), II. Promissory Estoppel, and III. Unjust Enrichment. I suggest you begin your outline of the course as soon as possible, with these three general categories.

Second, I suggest you have two main categories under Consensual Contract: A. Elements, and B. Defenses to Formation. A consensual contract has at least five elements, all of which are necessary for a binding contract. Four of these regularly appear in lists in judicial opinions. For example: “The fundamentals of a legal contract are competent parties, legal subject-matter, valuable consideration, and mutual assent.” Virginian Export Coal Co. v. Rowland Land Co., 131 S.E. 253 (W.Va. 1926) (italics added). To these four, I would add definiteness (or specificity), a topic we will study near the end of the semester. You also need to fit defenses in your outline. Sometimes things happen to prevent a contract from coming into existence even when the elements of a contract exist, and rules that capture these facts are called defenses to formation. Nearly every rule we study will fit in your outline if it includes all of these categories. The Table of Contents may help you place the rule in the right category, though this will not always be true.

Contract Law Theories

I always wonder just how much theory to push on first-semester students. I propose to give you just a little theory here so that you can discuss it occasionally as we move along through the course. For the most part, contract law decisions can be theorized as applications of three sets of ideas:

1) Autonomy

Autonomy theorists propose that the exercise of human will is a good in itself and that enhancing the ability of individuals to determine their own future is a worthy goal of law. Contract law, under this view, is an attempt to aid individuals in their attempt at self-determination. Liability is based on individuals’ consent. The Kantian is an example of an autonomy theorist, who believes that all reasoning beings are inherently deserving of the respect that we ourselves desire.

2) Welfare

Welfare theorists are not content to spend public resources on contract enforcement solely for the benefit of individuals and their autonomy. They believe that only a public benefit can justify action by the state. Adam Smith, the founder of classical economics, posited a relationship between the individual pursuit of self-interest and the public welfare under certain conditions:

Every individual necessarily labours to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. ... [B]y directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was in no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need to be employed in dissuading them from it.

ADAM SMITH, An Inquiry into the Nature and Causes of the Wealth of Nations 423 (1776).

The primary conclusion of classical economics is that "there is a sort of pre-established harmony between the good of all and the pursuit by each of his own selfish economic gain."1   Neo-classical economists in the last century have retained this central conclusion of Smith's argument, then examined it in detail to show that it rests on five premises:

1) people act in their own self-interest;

2) in the pursuit of self-interest, people act rationally;

3) people have access to perfect information (meaning the information necessary to act rationally);

4) people and resources are freely moveable;

5) there are no artificial restrictions on entry to the marketplace.2 

If all of these assumptions hold in a transaction or set of transactions, neo-classical economists conclude that such transactions will put resources (including labor) to their most efficient use, generating greatest overall wealth in the economy. That does not mean that both or even either party will gain from any individual transaction. Nor does it mean that the smarter will get richer faster: it assumes all parties are rational and have access to perfect information. The current distribution of wealth and resources is taken as a given. The theory does not try to change that distribution. Thus, the theory does not mean that anyone gets a bigger slice of the pie. Instead, it means that the pie itself gets bigger. That is the public benefit.

As you might expect, others raise a number of objections to this paradigm:

• No one can agree on what counts as wealth (though the theory is useful in practice only if it rests on something quantifiable; most law and economics scholars agree that ability and willingness to pay in money is the most useful surrogate for expression of preferences; most decision makers are greedy enough or wealthy enough not to care if other ends are not served; also, other ends are frequently served by other areas of law than transactional law).

• If all of the assumptions of neo-classical economics were true, the courts would have no role to play at all. Parties would maximize wealth without government intervention, and that is all anyone would care about. In some ways the very existence of contract law is contrary to neo-classical economics. (The rebuttal to this objection is that sometimes one or more of the assumptions listed above do not hold, and that contract law's purpose is to correct such failures in order to ensure efficiency.)

• No one has access to perfect information. Therefore, neither courts nor parties to transactions can decide clearly whether a transaction (or a rule employed in a decision) promotes wealth or not. Other assumptions may also break down: people may not act rationally, or people and resources may not be freely moveable. Artificial restrictions on the market may exist, and some participants may begin with less wealth or information than others, creating inequalities in the marketplace that inhibit free bargaining.

• Occasionally, especially given that information is not perfect, people act opportunistically, meaning that they try to take advantage of others' lack of perfect information, failure to act rationally, inability to move, artificial restrictions on the marketplace, or poorer distribution of wealth.

Economic theories of contract law are called “consequentialist,” meaning that they seek a public benefit beyond a benefit to the contracting parties, and if one is not obtained by a law, the law is not justified under the theories.

3) Justice/Morality

A common and ancient meaning of the term justice is giving to each according to his due. This very unhelpful definition has been augmented to include a number of moral rules that reflect ways in which a person might fail to give another her due. For instance, the first, “keep your promises,” reflects that failure to keep a promise might do real harm to another. That harm should be remedied by requiring the person who caused harm and perhaps gained by breaking a promise to recompense the person harmed. This is a just result. Consider the following:

  • Keep your promises.
  • Do not deceive.
  • Do not coerce.
  • Protect reasonable reliance. Ensure that no one is enriched unjustly (which means roughly that A gets something for nothing from B and B did not intend to give it to A as a gift).
  • Have concern for the other party’s interest.
  • Do not cheat: Do not violate a rule of any social practice that you are engaged in, unless the rule has been clearly waived by the other party.
  • Communicate before taking action that may impair the other party’s interests.
  • Compromise disputes; acknowledge that the other party may have a differing but reasonable interpretation.
  • Follow contractual intent.

Can you think of any others?

Ready, Set . . .


Supreme Court of the State of Relative Clarity

65 R.C.Rptr. 67 (2017)

[1]      Attorney Timothy Mann was driving his longtime friend, orthopedic neurosurgeon Dr. Sandra Byrnes, in a very fast boat along one of our rockier coastlines. The boat hit an unexpectedly large wave and flipped over. The boat was wrecked. Both Mann and Byrnes were thrown from the boat.  Byrnes skidded across the water and landed where it was deep; though shaken, she was essentially unharmed. Mann was thrown high into the air and landed in a shallow section.  Passing quickly through the water, Mann’s body hit sharp rocks. The impact severed Mann’s spinal cord in two places, and he suffered multiple lacerations and contusions. The accident immediately paralyzed him from the chest down.

[2]      Amazingly, both Byrnes and Mann remained conscious.  Both were wearing flotation devices. Byrnes, emerging from the water, quickly found Mann floating face down about twelve feet away. The shallow rocks under the water were keeping Mann’s flotation device from flipping his face above water. Swimming toward Mann then climbing over the rocks, Byrnes gently turned Mann face up. He sputtered, saw Byrnes, and said, “Thanks.  Please help me.  Please he . . . .”  Mann then lost consciousness.

[3]      By this time, passersby had noticed the accident and called for help. Within 30 minutes, an emergency crew arrived, and Byrnes and EMTs carefully lifted Mann from the water. Within another 45 minutes, Mann had arrived at the operating room at St. Matthews, the nearest hospital offering neurosurgical services, and Dr. Byrnes and a team of doctors set about doing what they could to treat Mann’s injuries.  After four hours of procedures, the team moved Mann to post-op and later to intensive care.

[4]      Mann regained consciousness two days later. Dr. Byrnes was in the room at the time. The following conversation occurred:

Mann: “Sandra?”

Byrnes: “Tim? You’re awake!”

Mann: “I’m so sorry.” (Tears welled up in Mann’s eyes.)

Byrnes: “Tim, no! Please don’t! This is not your fault! I’d do anything to help you.”

Mann: “I’m so sorry.” (He began to sob.) “I will make this up to you. You must have saved me. I will make this up to you!  I’ll repay you!  I am so sorry!”

[5]      As Mann began to sob uncontrollably, Byrnes leaned over and gently put her arms around Mann. 

[6]      Five seconds later, Mann’s body went limp, his heart stopped, and he passed away. Byrnes and her team later determined that the cause of death was subarachnoid hemorrhage in the brain stem area that developed after the surgery but was worsened by Mann’s sobbing.

[7]      Some weeks later, Byrnes’s office billed Mann’s estate for his medical bills.  Mann’s insurance covered everything in excess of $45,000, but the $45,000 remains unpaid. Mann’s executor is Mann’s widow, Amanda Allan. Allan refused to pay the bill. When Byrnes sued, Allan moved to dismiss under Rule 12(b)(6) for failure to state a claim.  The trial court granted the motion. Byrnes has appealed. We reverse.

CALEB, Justice.

[1]      On waking, Mann recognized his friend; appeared to recall the accident; acted as if he were at fault (he was driving at the time, after all); seemed to recall Byrnes’s role in flipping him over; and appeared to feel the moral pull of gratitude for Byrnes’s help.  All of these facts suggest Mann understood his situation.  Despite Mann’s injuries, that he had just awakened from a coma, and his obvious vulnerability—all of which limited his capacity to act, he volunteered a promise to Byrnes that he would pay her. This promise, moreover, followed his two-day-old request for help. Mann had plenty of motive to promise. Enough evidence exists, therefore, to allow a jury to decide whether Mann, an adult citizen, exercised his autonomy to express an intent to be bound.  Mann (through his estate) has wealth; he can do with it as he pleases. Our respect for his dignity as a fellow citizen requires us to respect that right.

[2]      Mr. Mann owns his own property. He earned it. Mr. Mann through his own initiative bartered his natural talents and hard work for the wealth he accumulated.  It was not given to him, not discovered in or leveraged from some other property other than his own person—it was earned by him in free exchange with others who deemed his services worth their money.  Autonomous decisions with regard to this kind of wealth above all others deserve our respect. For all of these reasons, the decision of the trial court should be reversed.

DUNN, Justice.

[1]      Dr. Byrnes was Mann’s friend, but she was also a doctor, granted a license to practice medicine by the state. Though under the law she was not required to assist the injured Mann, our laws should encourage licensed medical persons to do so. The law shields from civil damages any person who in good faith administers emergency care during an emergency.  R.C. Civ. Prac. & Rem. Code § 74.151. But the law has an additional interest in encouraging the medically trained and licensed to assist. We are all better off if doctors trained and licensed to help with medical emergencies actually do so. Dr. Byrnes was a licensed physician and Mann was in obvious need of services she could render. Mann himself recognized Dr. Byrnes’s power to assist him when he asked for her help.

[2]      When a medically trained and licensed individual assists another who reasonably appears to require her professional skills, under the law she has a reasonable expectation of compensation for the service rendered and therefore the right to that compensation. See Cotnam v. Wisdom, 104 S.W. 164 5-6 (Ark. 1907). Dr. Byrnes was medically trained and licensed. Mann reasonably appeared to require her professional skills. This is true even though Mann did not ask for any particular care and was unconscious during all of it. The source of Dr. Byrnes’s right is not Mann’s promise or the exercise of his will but the law’s desire to encourage physicians to assist and the justified assumption that a reasonable person in need of medical assistance would ask for it. See id. 6.

[3]      After such medical services were provided, who should pay for them?  As between the doctor and the patient, the burden should fall on the patient if he has the assets. To place the burden on the doctor when the patient has the means to pay would discourage doctors from assisting and encourage the ill to manipulate the medically-trained.

[4]      These laws encourage us to treat each other fairly and to work together to flourish. For these reasons, the trial court’s judgment should be reversed and Byrnes’s case should go forward.

[5]      Justices Caleb, Fadel, and Gonzalez concur in this opinion.

ELLIOTT, Justice.

[1]      I am sympathetic to the policies Justice Dunn celebrates, but I believe in the principles Justice Caleb articulates, too. In a clash, Caleb’s principles destroy Dunn’s, for what if the ill person wakes and says not, “I will repay you” but “why did you not let me die?” Cotnam overrides basic autonomy. We are presuming a lot when we presume that everyone wants a doctor to save her life; that presumption cannot help but override the autonomy of the patient from time to time. I would overrule Cotnam.

[2]      Justice Dunn, on the other hand, would give people what he thinks they want. But it is very difficult to say with any certainty what Mr. Mann wanted, given his ambiguous statements and state of mind. That is flimsy evidence on which to order the payment of $45,000.  Moreover, as much as we like to think of ourselves as free people, we do not have unfettered autonomy. We especially do not have the right to law backing up our unfettered autonomy. The mere evidence that a person made a promise has never, by itself, warranted a recovery under the common law.  A mere promise does not give the state any reason to interfere with private persons’ lives.

[3]      Unlike Justice Fadel, I believe that neither judges nor litigants can say whether a transaction is, on net, beneficial. The litigants will say in litigation what is in their favor legally, and a judge’s imagining that he can tell what the litigant valued is just that—imagination. Relying solely on evidence of a party’s assent at the time of the transaction collapses analysis of utility into an examination of autonomy.  Besides, this transaction impacted not just the parties but also the public.  To examine the true cost of the transaction, the judge must know all of its impacts, including its true effects on Mann’s physical well-being, but that is something no judge could know. The judge should also take into account the cost of emergency services that rescued Mann and Byrnes, the cost of transporting him to the hospital, the cost imposed on other medical persons and facilities, and the opportunity costs of whatever else all of those other persons would be doing if they were not caring for Mr. Mann, and that is just a beginning. Facts introduced in litigation between two individuals do not begin accurately to catalog these costs. Absent this information, there is no way to discover whether the persons involved were made better off and no one else was made worse off.

[4]      I would affirm.  Byrnes would have helped Mann even had he never asked for help.  She was his friend. He did not offer to pay her when he asked for help. She offered the help without any promise of reward, and he received it without ever promising one.  Generally, contract law is about trust.  When a promise is made under circumstances that justify a costly response to it, the law should protect that reliance. In this case, however, Byrnes helped her friend regardless, and the promise was not made until after the services were given.  The law should encourage trust (and encourage doctors to assist), but the law also should encourage friendship, not cheapen it by encouraging friends to sue each other over payment for gifts freely given.

[5]      I am somewhat sympathetic to Justice Gonzalez’s argument, but I believe the ground of that line of cases is that the request and later promise induce the action just as much as a promise made at the time of the action taken in reliance.  In this case, however, Byrnes had already begun to help her friend when he asked for help, and she would have helped him, anyway.  No one, I think, would or should assume that Byrnes suddenly was induced to help her friend only by his pleading and her anticipation that he might later promise to repay.  His request played no role at all in inducing her actions; she would have done just the same.  Because nothing here was done in reliance on a request or a promise that needs the law’s support, there should be no recovery.

[6]      I am authorized to say that Justices Hagopian and Jurgens concur in this opinion.

FADEL, Justice.

[1]      I vote to reverse, but I lack the moral intuitions of my fellow judges.  Enforcement is best when a transaction is beneficial—specifically, when the transaction, here the provision of medical services, benefits one party and at least does not make anyone else worse off.

[2]      Obviously Mann meant for Byrnes to assist him in a medical emergency, and he intended to pay her. Byrnes, for her part, meant to assist and charge Mann.  As they said it, Byrnes was to do what was necessary to help Mann, as she saw fit, and Mann was to compensate Byrnes. Though Mann’s judgment on the value of the benefits he would receive is expressed only in his request for assistance and in his promise to pay after assistance was received, this is sufficient to raise the issue.  That Byrnes’s efforts benefitted Mann are suggested by his waking up to thank her and by the assistance of so many other medical professionals who concurred implicitly in her decisionmaking. The transaction as contemplated would benefit each. As between the parties and the government, the parties know best whether their own transactions benefit them, and the expressions of Mann and Byrnes are sufficient to show that judgment.

[3]      The evidence is not conclusive.  After all, Mann is dead from a cause Byrnes did not see, and Mann in the ocean and in the hospital was hardly in the state of mind or with the necessary information to judge conclusively whether the transaction provided a benefit to him, particularly before it had occurred. Having wrecked the boat he was driving in a spectacular crash that broke his own back in two places, only to be barely rescued from certain drowning, Mann was probably not able to make a difficult decision about his own medical care. His instability was only confirmed by the emotional upheaval displayed when he awoke two days later. 

[4]      Mann’s knowledge is also questionable. When he was rolled over in the water, he could obviously sense his helplessness, though what else is unclear.  Later, when he awoke in the hospital, it was obvious something had been done to him, though he remained helpless and could have had no awareness of the care given him other than his transport to the hospital. We might strongly suspect Mann lacked knowledge to judge the value of what was given him. It is possible Byrnes made Mann worse off, overall. We might know how we would value Byrnes’s services, but our preferences are less reliable than Mann’s in determining whether he was made better or worse off. 

[5]      The inconclusivity of the evidence regarding Mann’s expressed preferences creates an issue for the finder of fact. Mann’s estate can certainly try to prove the transaction made him worse off, or even that it was, on net, negative. But Byrnes has shown enough to get a hearing.

[6]      In short, we have sufficient reasons to believe that Mr. Mann was not made worse off by this transaction, though the issue is not free from doubt. If no one was made worse off by this voluntary transaction, then it should be enforced. But that is an issue ultimately for the factfinder.

For these reasons, and because I concur with Justices Dunn and Gonzalez, I vote to reverse.

GONZALEZ, Justice.

[1]      I would reverse. I also concur in Justice Dunn’s opinion but write to add another line of cases in support.

[2]      For nearly five hundred years, a prior request to do something, followed by the requestee’s fulfillment of the request, followed by the requestor’s promise to the requestee to pay for the action taken in fulfillment has by law been the equivalent of promise and consideration. See Hunt v. Bate, 3 Dyer 272a (C.P. 1568). This is clear precedent. In this case, Mr. Mann requested his friend, a doctor, to help.  He was in obvious medical need. She helped as best she knew how. When he later awoke, found his friend, and realized she had fulfilled his request, he promised to pay her for it. The law requires that we grant her a recovery. 

[3]      Some on this court act as if this case presents an open question. It does not.  Moreover, we are not legislators. Our constitution requires that legislative power rest with the Legislature. Nor are we Platonic philosopher-kings paid to impose our wisdom on the unlearned masses. We are judges in a republic, and we took an oath to uphold the laws of this state. There are certainly times when we must call on our learning, experience, and judgment to fill in the interstices of the common law and even of statutes and constitutional provisions, but this is not one of them.

[4]      The law requires reversal, so I vote to reverse.

The judgment is reversed.



1. With which opinion do you most agree?

2. Please pick out what you believe is the main theme of each opinion—the motivating idea, the "big" idea that causes each judge who wrote to vote for the result that judge chooses. Please be prepared to report for each opinion.

3. Do you find in any of the opinions a statement that looks like a rule of law?  I can find at least two in particular.

4. If a judge does not decide according to law (in other words, if the judge in making a decision is not following a rule), then how is the judge deciding?  Do you think it more appropriate for the judge to follow the law or something else?

5. Why do the facts identify Mann as an attorney? Byrnes as an orthopedic neurosurgeon?

6. Why does Justice Dunn refer to Byrnes as "Dr. Byrnes"?

7. From what sources did the law cited by the judges come? Where did it come from before that? Where do legal arguments come from before they become law?

  • 1 Morris Cohen, The Basis of Contract, 46 Harv. L. Rev. 553, 558 (1933).
  • 2 Robin Paul Malloy, Law and Economics: A Comparative Approach to Theory and Practice 54-55 (1990).

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