Table of Contents. CHAPTER 1 INTRODUCTION by Eugenia G. Carter. I. Scope [ 1.1]

Transcription

1 Table of Contents CHAPTER 1 INTRODUCTION by Eugenia G. Carter I. Scope [ 1.1] II. Background [ 1.2] A. Definition of a Contract [ 1.3] B. Freedom of Contract [ 1.4] III. Sources of Contract Law [ 1.5] A. Common Law [ 1.6] B. Uniform Commercial Code [ 1.7] C. Other Statutory Sources [ 1.8] 1. In General [ 1.9] 2. Regulation of Formation and Formalities [ 1.10] a. Statutes of Frauds [ 1.11] (1) In General [ 1.12] (2) Chapter 241 [ 1.13] (3) Writing Requirements for Specific Types of Contracts [ 1.14] b. Contracts Declared Void by Statute [ 1.15] 3. Regulation of Specific Kinds of Contracts [ 1.16] D. United Nations Convention on Contracts for the International Sale of Goods [ 1.17] IV. Classification of Contracts [ 1.18] A. In General [ 1.19] B. Formal and Informal [ 1.20] C. Unilateral and Bilateral [ 1.21] D. Enforceable and Unenforceable [ 1.22] E. Void and Voidable [ 1.23] F. Express and Implied [ 1.24] G. Exculpatory Contracts [ 1.25] H. Divisible and Indivisible [ 1.26] March 2013, State Bar of Wisconsin PINNACLE TOC-3

2 V. Choice of Law [ 1.27] A. Clause in Contract [ 1.28] B. Choice Imposed by Statute [ 1.29] C. Conflicting Choice-of-Law Provisions [ 1.30] D. Absence of Statute or Contract Clause [ 1.31] VI. Statutes of Limitation [ 1.32] A. Six-Year Limitation Period [ 1.33] B. Limitation Period for Contracts Subject to U.C.C. [ 1.34] C. When Cause of Action Accrues [ 1.35] VII. Conclusion [ 1.36] CHAPTER 2 FORMATION ESSENTIALS by Michael D. Stotler I. Scope [ 2.1] II. First Element: Offer [ 2.2] A. In General [ 2.3] B. What Constitutes Offer? [ 2.4] 1. In General [ 2.5] 2. Special Cases [ 2.6] a. Letter of Intent [ 2.7] b. Bids [ 2.8] c. Price Quotation or Proposal [ 2.9] d. Advertisement in Newspaper or Circular [ 2.10] e. Rewards [ 2.11] C. To Whom Has Offer Been Communicated? [ 2.12] D. Termination of Offer [ 2.13] 1. End of Offer s Duration [ 2.14] 2. Revocation by Offeror [ 2.15] a. In General [ 2.16] b. When Does Revocation by Mail, Fax, or Occur? [ 2.17] c. Is Indirect Communication of Revocation Effective? [ 2.18] TOC-4 March 2013, State Bar of Wisconsin PINNACLE

3 3. Rejection by Offeree [ 2.19] a. In General [ 2.20] b. When Does Rejection by Mail Occur? [ 2.21] 4. Consequences of Counteroffer [ 2.22] 5. Consequences of Offeror s Death or Incapacity [ 2.23] E. Option: Standing or Continuing Offer [ 2.24] 1. In General [ 2.25] 2. Is Consideration Necessary? [ 2.26] 3. What Is Duration? [ 2.27] III. Second Element: Acceptance of Offer [ 2.28] A. In General [ 2.29] B. What Constitutes Acceptance? [ 2.30] 1. In General [ 2.31] 2. Acceptance on Terms Varying from Offer [ 2.32] a. In General [ 2.33] b. Contracts Subject to U.C.C. [ 2.34] C. What Are Valid Methods of Acceptance? [ 2.35] 1. When Method Prescribed [ 2.36] 2. When Method Not Prescribed [ 2.37] 3. Consequences of Silence, Inaction, or Partial Performance [ 2.38] a. Silence or Inaction [ 2.39] b. Partial Performance [ 2.40] (1) In General [ 2.41] (2) Contracts Subject to U.C.C. [ 2.42] D. Has Acceptance Been Communicated? [ 2.43] 1. By Mail [ 2.44] a. In General [ 2.45] b. Deposited Acceptance Rule [ 2.46] c. Consequences of Party s Death After Mailing [ 2.47] 2. By Telephone [ 2.48] 3. By Telegraph [ 2.49] 4. By [ 2.50] IV. Third Element: Consideration [ 2.51] A. In General [ 2.52] B. What Constitutes Consideration? [ 2.53] March 2013, State Bar of Wisconsin PINNACLE TOC-5

4 C. Is Consideration Effective? [ 2.54] 1. When in Form of Promise [ 2.55] a. In General [ 2.56] b. May Promise Be Contingent or Conditional? [ 2.57] 2. When Promise Is Detriment in Form of Waiver or Forbearance [ 2.58] a. In General [ 2.59] b. Extension of Payment Time [ 2.60] c. Withholding from Competition [ 2.61] 3. When Consists of Benefit to or from Third Person [ 2.62] 4. Potentially Ineffective Consideration [ 2.63] a. Moral Obligation [ 2.64] b. Love and Affection [ 2.65] c. Impossible Acts [ 2.66] d. Unenforceable Promises [ 2.67] e. Past Consideration [ 2.68] f. Promise of Performing Legal or Contractual Obligation [ 2.69] g. Continued Employment [ 2.70] h. Effect of Seal [ 2.71] D. Adequacy of Consideration [ 2.72] V. Promissory Estoppel: Substitute for Contract Elements [ 2.73] A. In General [ 2.74] B. Elements of Definition [ 2.75] 1. In General [ 2.76] 2. Promise [ 2.77] 3. Induces Action or Forbearance [ 2.78] 4. Injustice Avoided Only by Enforcement of Promise [ 2.79] TOC-6 March 2013, State Bar of Wisconsin PINNACLE

5 CHAPTER 3 PROBLEMS IN FORMATION by James E. Bartzen I. Scope [ 3.1] II. General Concepts [ 3.2] III. Misrepresentation [ 3.3] A. General Rule and Effect [ 3.4] B. Elements Required to Establish Misrepresentation Sufficient for Contract Avoidance [ 3.5] 1. In General [ 3.6] 2. Must Have Been Misrepresentation of Fact [ 3.7] 3. Fact Must Have Been Material or Fraudulent [ 3.8] 4. Must Have Been Reliance upon Representation [ 3.9] 5. Reliance Must Have Been Justified [ 3.10] IV. Mistake [ 3.11] A. In General [ 3.12] B. Mistake of Fact vs. Mistake of Law [ 3.13] 1. In General [ 3.14] 2. Mistake of Fact [ 3.15] 3. Mistake of Law [ 3.16] C. Mutual Mistake [ 3.17] 1. General Rule and Effect [ 3.18] 2. Insurance Policies [ 3.19] D. Unilateral Mistake [ 3.20] V. Illegality and Unconscionability [ 3.21] A. Contracts in Violation of Statute or Rule [ 3.22] 1. General Rule and Effect [ 3.23] 2. Contracts Illegal in Formation [ 3.24] 3. Contracts Illegal in Performance [ 3.25] B. Contracts Contrary to Public Policy [ 3.26] 1. General Rule [ 3.27] 2. Exculpatory Contracts [ 3.28] a. In General [ 3.29] b. Grounds for Refusal to Enforce [ 3.30] (1) In General [ 3.31] March 2013, State Bar of Wisconsin PINNACLE TOC-7

6 (2) Restatement Provisions [ 3.32] (3) Misrepresentation of Fact [ 3.33] (4) Insufficient Expression of Parties Intent [ 3.34] C. Unconscionable Contracts [ 3.35] 1. In General [ 3.36] 2. Contracts Subject to U.C.C. [ 3.37] VI. Duress [ 3.38] A. In General [ 3.39] B. Duress by Physical Force [ 3.40] C. Duress by Improper Threat [ 3.41] 1. General Rule and Effect [ 3.42] 2. Elements Required to Establish [ 3.43] a. In General [ 3.44] b. Improper Threat [ 3.45] c. No Reasonable Alternative [ 3.46] VII. Undue Influence [ 3.47] VIII. Incapacity of Parties [ 3.48] A. General Rule and Exceptions [ 3.49] B. Minors [ 3.50] 1. General Rule and Effect [ 3.51] 2. Fraud by Minor [ 3.52] C. Persons Under Guardianship [ 3.53] D. Mentally Incompetent Persons [ 3.54] CHAPTER 4 STATUTES OF FRAUDS by Jessica Hutson Polakowski, Joshua D. Taggatz, and Lewis W. Beilin I. Scope [ 4.1] II. Defining a Statute of Frauds [ 4.2] A. Background and Purpose [ 4.3] B. General Requirements for Compliance [ 4.4] III. Adequacy of Writing [ 4.5] A. In General [ 4.6] B. As to Signature [ 4.7] TOC-8 March 2013, State Bar of Wisconsin PINNACLE

7 1. Form and Location [ 4.8] 2. When Not All Parties Have Signed [ 4.9] C. As to Terms [ 4.10] D. As to Integration of Multiple Documents [ 4.11] E. When Orally Modified [ 4.12] IV. Enforcement of Nonexistent (or Inadequate) Writing [ 4.13] A. Generally Unenforceable [ 4.14] B. Equitable Exceptions [ 4.15] 1. Under U.C.C. [ 4.16] 2. Under Real Estate Statute of Frauds [ 4.17] a. In General [ 4.18] b. Circumstances Justifying Enforcement [ 4.19] c. Proof of Elements by Clear and Satisfactory Evidence [ 4.20] 3. Under Leasehold Statutes of Frauds [ 4.21] 4. Under Common Law [ 4.22] a. In General [ 4.23] b. Judicial Admission [ 4.24] 5. Tort Actions [ 4.25] V. Equitable Remedies [ 4.26] A. In General [ 4.27] B. Under U.C.C. [ 4.28] C. Under Real Estate Statute of Frauds [ 4.29] D. Under Common Law [ 4.30] VI. Asserting a Statute of Frauds as a Defense [ 4.31] VII. The Wisconsin Statutes of Frauds and Their Requirements [ 4.32] A. Contracts Involving Real Estate [ 4.33] 1. Conveyances: Section [ 4.34] a. Requirements [ 4.35] (1) In General [ 4.36] (2) Regarding Multiple Documents [ 4.37] (3) Identification of Real Estate and Interest Conveyed [ 4.38] (4) Signature [ 4.39] March 2013, State Bar of Wisconsin PINNACLE TOC-9

8 b. Applicability [ 4.40] c. Effect [ 4.41] 2. Leases [ 4.42] a. Requirements and Applicability [ 4.43] b. Effect [ 4.44] 3. Real Estate Commissions: Section [ 4.45] a. Requirements [ 4.46] b. Effect [ 4.47] B. Contracts Calling for Performance Beyond One Year: Section (1)(a) [ 4.48] 1. Requirements [ 4.49] 2. Applicability [ 4.50] C. Contracts to Pay Third Party s Debt: Section (1)(b) [ 4.51] 1. Requirements [ 4.52] 2. Applicability [ 4.53] 3. Effect [ 4.54] D. Contracts for Sale of Goods: Section (1) [ 4.55] 1. Requirements [ 4.56] 2. Applicability and Effect [ 4.57] E. Trust Conveyances: Section [ 4.58] 1. Requirements [ 4.59] 2. Effect [ 4.60] F. Assignment of Wages: Section [ 4.61] 1. Requirements [ 4.62] 2. Applicability [ 4.63] G. Marital Property Agreements: Sections (1) and (1)(c) [ 4.64] 1. Requirements [ 4.65] 2. Applicability [ 4.66] H. Arbitration Clauses: Section [ 4.67] TOC-10 March 2013, State Bar of Wisconsin PINNACLE

9 CHAPTER 5 CONTRACT INTERPRETATION AND THE PAROL EVIDENCE RULE by Richard J. Sankovitz I. Scope [ 5.1] II. Choice-of-Law Considerations: What Law Governs Contract Interpretation? [ 5.2] A. When Is Choice of Law an Issue? [ 5.3] B. Law Governing Dispute [ 5.4] 1. When Choice-of-Law Clauses Exist [ 5.5] a. In General [ 5.6] b. Contracts Subject to U.C.C. [ 5.7] 2. When Choice-of-Law Provisions Conflict [ 5.8] 3. When Contract Is Silent as to Choice of Law [ 5.9] a. In General [ 5.10] b. Contracts Subject to U.C.C. [ 5.11] III. What the Contract Means: Who Decides? [ 5.12] A. In General [ 5.13] B. Issues Decided as Matter of Law [ 5.14] C. Issues Decided as Matter of Fact [ 5.15] 1. In General [ 5.16] 2. Contracts Subject to U.C.C. [ 5.17] D. Standards of Review on Appeal [ 5.18] IV. Rules for Interpreting Contracts: What Does the Contract Mean? [ 5.19] A. Purpose of Interpretation Is Determining and Enforcing Parties Intent [ 5.20] B. Best Evidence of Parties Intent Is Contract Itself [ 5.21] C. Plain and Ordinary Meaning Precedes Others [ 5.22] D. Parties Knowledge at Time of Contracting Is Considered [ 5.23] E. Maxims That Guide Construction of Disputed Contractual Terms [ 5.24] 1. Read Contract as a Whole [ 5.25] 2. Give Meaning and Effect to All Terms [ 5.26] March 2013, State Bar of Wisconsin PINNACLE TOC-11

10 3. Avoid Leaving Any Term Unreasonable or Unconscionable [ 5.27] 4. Avoid Unlawful Performance [ 5.28] 5. Give Greater Weight to Specific Than to General Language [ 5.29] 6. Construe Ambiguities Against Drafter [ 5.30] F. Consulting Extrinsic Evidence [ 5.31] 1. Requirement That Contract Be Ambiguous [ 5.32] a. In General [ 5.33] b. What Constitutes Ambiguity? [ 5.34] 2. Types of Extrinsic Evidence Recognized by Courts [ 5.35] a. Circumstances of Contracting [ 5.36] b. Construction by Parties [ 5.37] c. Other Contracts Between Parties [ 5.38] d. Custom and Usage [ 5.39] (1) In General [ 5.40] (2) Contracts Subject to U.C.C. [ 5.41] e. Course of Dealing [ 5.42] G. Canons of Construction Specific to Insurance Contracts [ 5.43] H. Canons of Construction Specific to Government Contracts [ 5.44] V. What Is in Contract and What Is Not: Parol Evidence Rule, Battle of the Forms, and Supplying Omitted Terms [ 5.45] A. Parol Evidence Rule [ 5.46] 1. Purpose [ 5.47] 2. Debilitation of Parol Evidence Rule [ 5.48] 3. Elements [ 5.49] a. Summary of Elements [ 5.50] b. Is Agreement in Writing? [ 5.51] c. Is Agreement Integrated? [ 5.52] (1) Integration Defined [ 5.53] (2) Fully vs. Partially Integrated Agreements [ 5.54] (3) Value and Use of Merger and Integration Clauses [ 5.55] TOC-12 March 2013, State Bar of Wisconsin PINNACLE

11 4. Effect on Agreements and Expressions of Intent Outside Contract [ 5.56] a. Contradictory or Substitute Agreements or Intentions [ 5.57] b. Consistent Additional, Supplemental, or Side Agreements [ 5.58] 5. Effect on Negotiations Relating to Contract [ 5.59] 6. Exceptions to Applicability [ 5.60] a. To Establish Integration and Intent [ 5.61] b. To Resolve Ambiguity [ 5.62] c. To Show Contract Invalid [ 5.63] d. When Contract Is Subject to U.C.C. [ 5.64] 7. Tactical Use [ 5.65] B. Battle of the Forms [ 5.66] 1. The Problem [ 5.67] 2. A Partial Solution: Contracts Subject to U.C.C. [ 5.68] 3. Counseling Clients on Use of Form Contracts [ 5.69] C. Supplying Omitted or Implied Terms [ 5.70] 1. In General [ 5.71] 2. Duration of Contract [ 5.72] 3. Time and Other Details of Performance [ 5.73] 4. Price [ 5.74] VI. Appendix 5A Checklist of Rules of Contract Construction CHAPTER 6 WARRANTIES, DISCLAIMERS, AND LIMITATIONS OF REMEDY by Brody C. Richter and Bradley W. Raaths I. Scope [ 6.1] II. Warranties in General [ 6.2] A. Elements of a Warranty [ 6.3] B. Effect of a Warranty [ 6.4] 1. In General [ 6.5] 2. Reliance Without Confirmation [ 6.6] March 2013, State Bar of Wisconsin PINNACLE TOC-13

12 3. Remedies for Breach [ 6.7] a. In General [ 6.8] b. Effect of Time of Breach [ 6.9] c. Damages [ 6.10] d. Rescission and Restitution: Simple Promise or Condition Precedent? [ 6.11] e. Distinguished from Action in Tort [ 6.12] C. Warranty Distinguished [ 6.13] 1. From Statement of Opinion or Puffing [ 6.14] a. In General [ 6.15] b. Development of Distinction Between Opinion and Warranty [ 6.16] c. U.C.C.: Part of Basis of Bargain [ 6.17] (1) In General [ 6.18] (2) Test for Determining Part of Basis of Bargain [ 6.19] (3) Summary [ 6.20] (4) Application to Contracts Not Subject to U.C.C. [ 6.21] 2. From Remedies [ 6.22] D. Beneficiaries of a Warranty [ 6.23] 1. Privity Requirement [ 6.24] 2. Sale of Goods Under U.C.C. [ 6.25] III. Express Warranties [ 6.26] A. No Particular Language Required [ 6.27] B. Creation Outside Face of Contract [ 6.28] 1. Oral Statements [ 6.29] 2. Advertising [ 6.30] IV. Implied Warranties [ 6.31] A. In General [ 6.32] B. Warranties Implied in Fact [ 6.33] 1. Course of Conduct [ 6.34] 2. Trade Practice [ 6.35] C. Warranties Implied by Law [ 6.36] V. Creation and Disclaimer of Warranties in Particular Transactions [ 6.37] A. In General [ 6.38] B. Sales of Goods [ 6.39] TOC-14 March 2013, State Bar of Wisconsin PINNACLE

13 1. U.C.C. [ 6.40] a. In General [ 6.41] b. Section : Express Warranties by Affirmation, Promise, Description, or Sample [ 6.42] c. Disclaimer or Limitation of Express U.C.C. Warranties [ 6.43] d. Section : Warranty of Title to Goods [ 6.44] e. Section (1): Warranty of Title to Registered Motor Vehicles [ 6.45] f. Section (3): Warranty Against Infringement of Intellectual Property Rights [ 6.46] g. Section : Implied Warranty of Merchantability; Disclaimer [ 6.47] h. Section : Implied Warranty of Fitness for Purpose; Disclaimer [ 6.48] 2. Magnuson-Moss Warranty Act [ 6.49] 3. Wisconsin Lemon Law [ 6.50] C. Lease of Goods Under U.C.C. [ 6.51] D. Real Estate [ 6.52] 1. Common Law [ 6.53] 2. Wisconsin Statutory Warranties [ 6.54] a. Improvements by Vendor [ 6.55] b. Residential Seller Disclosure [ 6.56] c. Time-Share Ownership Interests [ 6.57] d. Residential and Other Leases [ 6.58] E. Services [ 6.59] 1. Common Law [ 6.60] 2. Mixed Contracts of Goods and Services [ 6.61] F. Securities, Bank Items, and Other Instruments [ 6.62] 1. U.C.C. [ 6.63] 2. Common Law [ 6.64] VI. Limitations of Remedies for Breach of Warranty [ 6.65] A. In General [ 6.66] B. Contracts Subject to U.C.C. [ 6.67] C. Grounds for Avoiding Enforcement [ 6.68] 1. In General [ 6.69] 2. Contracts Subject to U.C.C. [ 6.70] March 2013, State Bar of Wisconsin PINNACLE TOC-15

14 a. Failure of Remedy s Essential Purpose [ 6.71] b. Unconscionability [ 6.72] VII. Impact of Economic Loss Doctrine [ 6.73] A. Adoption and Development of the Economic Loss Doctrine in Wisconsin [ 6.74] B. Application of Doctrine to Consumer Claims [ 6.75] C. Definition of Economic Loss [ 6.76] D. Other Property or Integrated System? [ 6.77] E. Application of Doctrine to Non-U.C.C. Contracts [ 6.78] 1. Services [ 6.79] 2. Mixed Contracts [ 6.80] 3. Real Estate [ 6.81] F. Exceptions to Economic Loss Doctrine [ 6.82] 1. De Minimis Injury to Other Property [ 6.83] 2. Public Safety Exception [ 6.84] 3. Intentional Misrepresentation [ 6.85] 4. Dakota Exception [ 6.86] G. Conclusion [ 6.87] CHAPTER 7 MODIFICATIONS by Troy Hilliard and Lewis W. Beilin I. Scope [ 7.1] II. What Consideration Is Required? [ 7.2] A. Contracts Not Subject to U.C.C. [ 7.3] 1. Executory [ 7.4] 2. Performed [ 7.5] B. Contracts Subject to U.C.C. [ 7.6] C. Sufficiency of Consideration [ 7.7] D. Effect of Illegal Consideration [ 7.8] III. Must Modification Be in Writing? [ 7.9] A. Contracts Within Statutes of Frauds [ 7.10] 1. Contracts Not Subject to U.C.C. [ 7.11] 2. Contracts Subject to U.C.C. [ 7.12] TOC-16 March 2013, State Bar of Wisconsin PINNACLE

15 B. Contracts Outside Statutes of Frauds [ 7.13] 1. In General [ 7.14] 2. Contracts Containing Requirement That Modification Be in Writing [ 7.15] a. Contracts Not Subject to U.C.C. [ 7.16] b. Contracts Subject to U.C.C. [ 7.17] IV. Who Are Necessary Parties to Modification? [ 7.18] A. In General [ 7.19] 1. General Rule [ 7.20] 2. Effect of Modification by Fewer Than All Parties [ 7.21] 3. Effect of Contractual Terms Permitting Modification by Fewer Than All Parties [ 7.22] B. Specific Contracts and Parties [ 7.23] 1. Restrictive Covenants [ 7.24] 2. Guarantees [ 7.25] 3. Contracts with Third-Party Beneficiaries [ 7.26] 4. Collective Bargaining Agreements [ 7.27] CHAPTER 8 DOCTRINE OF THIRD-PARTY BENEFICIARIES by Michael B. Apfeld and Jane C. Schlicht I. Scope [ 8.1] II. Nature of Issue; Historical Development; Theory [ 8.2] III. Related Doctrines Distinguished [ 8.3] A. In General [ 8.4] B. Trust [ 8.5] C. Assignment; Novation [ 8.6] D. Suretyship [ 8.7] E. Indemnity [ 8.8] F. Breach of Warranty/Product Liability [ 8.9] G. Negligent Provision of Professional Services [ 8.10] IV. Basic Rule; Elements [ 8.11] A. Basic Rule [ 8.12] B. Contract [ 8.13] March 2013, State Bar of Wisconsin PINNACLE TOC-17

16 TOC-18 C. Consideration [ 8.14] 1. In General [ 8.15] 2. Charitable Subscriptions [ 8.16] D. Privity [ 8.17] E. Intent to Benefit [ 8.18] 1. General Requirement [ 8.19] 2. Intent to Benefit: Express Disclaimer [ 8.20] 3. Beneficiaries Classified [ 8.21] 4. Identification of Beneficiaries [ 8.22] F. Knowledge, Acceptance, Disclaimer [ 8.23] G. Nature of Right: Contract or Property? [ 8.24] V. Vesting and Defeasance of Rights [ 8.25] A. Conditions [ 8.26] B. Modification and Release [ 8.27] VI. Remedies [ 8.28] A. Of Third-Party Beneficiary [ 8.29] B. Of Promisee [ 8.30] VII. Defenses [ 8.31] A. In General [ 8.32] B. Suretyship Defenses [ 8.33] C. Statutes of Frauds [ 8.34] D. Parol Evidence Rule [ 8.35] E. Statutes of Limitation [ 8.36] F. Miscellaneous Defenses [ 8.37] VIII. Choice of Law [ 8.38] IX. Common Applications [ 8.39] A. In General [ 8.40] B. Payment and Performance Bonds [ 8.41] C. Public Servant Bonds [ 8.42] D. Construction Contracts [ 8.43] E. Loan Commitments and Agreements [ 8.44] F. Public Contracts [ 8.45] G. Sale of Goods [ 8.46] H. Insurance [ 8.47] 1. Liability and Indemnity Insurance [ 8.48] 2. Reinsurance [ 8.49] 3. Fire, Property, and Casualty Insurance [ 8.50] March 2013, State Bar of Wisconsin PINNACLE

17 4. Life Insurance [ 8.51] 5. Agreements or Requirements to Procure or Maintain Insurance [ 8.52] 6. Bad Faith [ 8.53] 7. Miscellaneous [ 8.54] I. Agreement to Pay Debts to or of Third Party [ 8.55] 1. In General [ 8.56] 2. Assumption of Mortgage [ 8.57] 3. Promises to Pay Unrelated Debts [ 8.58] 4. Assumption of Company Debt [ 8.59] J. Agreements for Support and Maintenance [ 8.60] K. Agreements to Make Will [ 8.61] X. Related Applications [ 8.62] A. Labor [ 8.63] B. Leases, Appraisals, and Other Real Property Agreements [ 8.64] C. Miscellaneous [ 8.65] CHAPTER 9 ASSIGNMENT AND DELEGATION by David B. Billing I. Scope [ 9.1] II. Historical Perspective and Terminology [ 9.2] III. Assignment of Rights [ 9.3] A. General Requirements [ 9.4] 1. Basic Rule [ 9.5] 2. Writing [ 9.6] 3. Intent [ 9.7] 4. Present Transfer Having Immediate Effect [ 9.8] 5. Notice [ 9.9] 6. Consideration for Assignment [ 9.10] a. In General [ 9.11] b. Gratuitous Assignments [ 9.12] (1) Revocable [ 9.13] (2) Irrevocable [ 9.14] March 2013, State Bar of Wisconsin PINNACLE TOC-19

18 B. Assignments of Particular Rights [ 9.15] 1. In General [ 9.16] 2. Assignment of Expectancies [ 9.17] 3. Assignment of Wages [ 9.18] 4. Assignment of Causes of Action [ 9.19] C. Limitations on Assignment [ 9.20] 1. In General [ 9.21] 2. When Assignment Has Specified Consequences for Promisor [ 9.22] 3. When Contract to Be Assigned Is Personal [ 9.23] 4. When Assignment Is Limited by Contract [ 9.24] D. Priorities Among Assignees [ 9.25] E. Formalities and Drafting Considerations [ 9.26] 1. In General [ 9.27] 2. Contracts Subject to U.C.C. [ 9.28] 3. Contracts Within Statutes of Frauds [ 9.29] F. Defenses and Counterclaims of Promisor Against Assignee [ 9.30] IV. Delegation of Duties [ 9.31] A. General Rules [ 9.32] B. Limitations on Delegation [ 9.33] 1. When Delegation Is Prohibited [ 9.34] a. In General [ 9.35] b. Contracts Subject to U.C.C. [ 9.36] 2. When Obligation Is Personal [ 9.37] CHAPTER 10 JOINT AND SEVERAL CONTRACTS by Michael J. Klinker I. Scope [ 10.1] II. Multiple Promisors to Promisee [ 10.2] A. Defining Key Terms [ 10.3] 1. In General [ 10.4] 2. Joint Duties [ 10.5] 3. Several Duties [ 10.6] 4. Joint and Several Duties [ 10.7] TOC-20 March 2013, State Bar of Wisconsin PINNACLE

19 B. Procedural and Remedial Consequences of Joint, Several, or Joint and Several Liability [ 10.8] 1. In General [ 10.9] 2. Permissive Joinder of Multiple Promisors [ 10.10] 3. Circumstances Requiring Joint Judgment [ 10.11] 4. Effect of Judgment Against One Multiple Promisor [ 10.12] 5. Effect of Release of One Multiple Promisor [ 10.13] 6. Effect of Death of Joint Promisor [ 10.14] 7. Special Considerations Related to Statutes of Limitation [ 10.15] C. Contracts Involving Voluntary Associations [ 10.16] III. Multiple Promisees to Promisor [ 10.17] A. Defining Key Terms [ 10.18] 1. In General [ 10.19] 2. Joint, Several, and Joint and Several Rights [ 10.20] B. Procedural and Remedial Consequences of Joint, Several, and Joint and Several Rights [ 10.21] 1. Presumption of Joint Rights [ 10.22] 2. Permissive Joinder of Promisees [ 10.23] 3. Effect of Discharge by One Promisee [ 10.24] 4. Effect of Death of Joint Promisee [ 10.25] IV. Contracts Subject to U.C.C. [ 10.26] V. Multiple Promisors or Promisees to Each Other: Contribution [ 10.27] CHAPTER 11 CONDITIONS by Larri J. Broomfield I. Scope [ 11.1] II. Nature of a Condition [ 11.2] A. Definition [ 11.3] B. Manner of Creation [ 11.4] March 2013, State Bar of Wisconsin PINNACLE TOC-21

20 C. Promise or Duty Distinguished [ 11.5] III. Types of Conditions [ 11.6] A. In General [ 11.7] B. Classification by Manner [ 11.8] 1. Express Conditions [ 11.9] 2. Implied-by-Law Conditions [ 11.10] C. Classification by Time [ 11.11] 1. Conditions Precedent [ 11.12] 2. Conditions Subsequent [ 11.13] 3. Distinguishing Conditions Precedent and Subsequent [ 11.14] 4. Concurrent Conditions [ 11.15] IV. Satisfaction of Conditions [ 11.16] A. Effort to Satisfy [ 11.17] B. Nature of Satisfaction [ 11.18] V. Nonoccurrence of a Condition [ 11.19] A. Effects of Unexcused Nonoccurrence [ 11.20] B. How Is Nonoccurrence Excused? [ 11.21] 1. In General [ 11.22] 2. By Waiver [ 11.23] 3. To Avoid Injustice [ 11.24] a. In General [ 11.25] b. Breach of Good Faith: Wrongful Prevention or Substantial Hindrance [ 11.26] c. Passive Noncooperation [ 11.27] d. Repudiation [ 11.28] 4. To Avoid Forfeiture [ 11.29] a. Impracticability [ 11.30] b. Disproportionate Forfeiture [ 11.31] C. Effects of Excused Nonoccurrence [ 11.32] VI. Practical Considerations [ 11.33] A. Drafting [ 11.34] B. Reasons to Include Conditions [ 11.35] C. Common Contractual Conditions [ 11.36] TOC-22 March 2013, State Bar of Wisconsin PINNACLE

21 CHAPTER 12 PERFORMANCE, BREACH, AND EXCUSED NONPERFORMANCE by Kenneth B. Axe I. Scope [ 12.1] II. Performance Due and Breach [ 12.2] A. In General [ 12.3] B. Performance Due [ 12.4] 1. In General [ 12.5] 2. Duty to Comply with Terms of Contract [ 12.6] a. In General [ 12.7] b. Full Performance Discharges Duty Under Contract [ 12.8] c. Contracts Subject to U.C.C [ 12.9] 3. Implied Aspects of Performance of Terms [ 12.10] a. In General [ 12.11] b. Duty to Act in Good Faith [ 12.12] (1) In General [ 12.13] (2) Meaning [ 12.14] c. Time for Performance and Duty to Perform in Timely Fashion: When Delay Constitutes Material Breach [ 12.15] C. Types of Breach [ 12.16] 1. Anticipatory Breach or Repudiation [ 12.17] 2. Material Breach [ 12.18] 3. Tort of Bad Faith Breach (Insurance Contracts) [ 12.19] D. Effect of Substantial Performance [ 12.20] 1. What Is Substantial Performance? [ 12.21] 2. Applicability of Doctrine [ 12.22] 3. How Substantial Performance Is Determined to Have Occurred: Elements [ 12.23] a. Necessity of Good Faith [ 12.24] b. Fulfillment of Contract s Essential Purpose [ 12.25] c. Burden of Proof [ 12.26] 4. Significance of Substantial Performance [ 12.27] 5. What Is Amount of Recovery? [ 12.28] March 2013, State Bar of Wisconsin PINNACLE TOC-23

22 6. Remedy, Other than Recovery, for Party That Does Not Substantially Perform: Quantum Meruit [ 12.29] III. IV. If Performance Is Defective or Incomplete: Common Law Rights of Nonbreaching Party [ 12.30] A. In General [ 12.31] B. When May Nonbreaching Party Stop Performing? [ 12.32] 1. Ending Performance: Unilateral Cancellation or Rescission [ 12.33] a. In General [ 12.34] b. Anticipatory Breach or Repudiation [ 12.35] c. Material Breach [ 12.36] (1) In General [ 12.37] (2) Partial Performance [ 12.38] 2. Suspending Performance [ 12.39] a. In General [ 12.40] b. Anticipatory Breach or Repudiation [ 12.41] c. Material Breach [ 12.42] 3. Problematic Areas [ 12.43] a. Effect of Divisibility of Contract [ 12.44] b. Effect of Deeming Failure of Assurance to Be Repudiation [ 12.45] C. When May Nonbreaching Party Seek Damages? [ 12.46] 1. In General [ 12.47] 2. Anticipatory Breach or Repudiation [ 12.48] 3. Material Breach [ 12.49] When Is a Party Excused from Complete Performance? [ 12.50] A. General Rule [ 12.51] B. Impossibility [ 12.52] 1. Under Common Law [ 12.53] a. In General [ 12.54] b. In Original Contract [ 12.55] c. Due to Supervening Events [ 12.56] d. Affecting Only Part of Performance [ 12.57] e. Of Temporary Nature [ 12.58] f. Due to Superior Authority [ 12.59] TOC-24 March 2013, State Bar of Wisconsin PINNACLE

23 g. Due to Act of God [ 12.60] h. Due to Party s Disability or Death [ 12.61] 2. Under U.C.C. [ 12.62] C. Frustration of Purpose [ 12.63] V. When Do Determinations of Performance or Breach Become Irrelevant? [ 12.64] A. In General [ 12.65] B. Mutual Rescission, Cancellation, and Abandonment [ 12.66] C. Discharge by Superseding Contract (Novation) [ 12.67] D. Waiver of Strict Performance [ 12.68] 1. Express or Implied [ 12.69] 2. By Payment and Acceptance [ 12.70] E. Settlement of Dispute by Accord and Satisfaction [ 12.71] 1. Definition and Scope [ 12.72] 2. Elements of Agreement to Compromise [ 12.73] a. Offer [ 12.74] b. Acceptance of Offer [ 12.75] (1) By Conduct [ 12.76] (2) Attempted Reservation of Rights or Protest [ 12.77] c. Consideration [ 12.78] (1) In General [ 12.79] (2) Compromise of Dispute [ 12.80] (3) Unliquidated Claim [ 12.81] F. Release and Covenant Not to Sue [ 12.82] 1. In General [ 12.83] 2. Release [ 12.84] 3. Covenant Not to Sue [ 12.85] VI. Appendices 12A U.C.C. Flow Chart 12B Performance/Remedy Flow Chart 12C Checklist for Accord and Satisfaction (Evidentiary Considerations) March 2013, State Bar of Wisconsin PINNACLE TOC-25

24 CHAPTER 13 DAMAGES, SPECIFIC PERFORMANCE, AND REFORMATION by Randall L. Nash I. Scope [ 13.1] II. Election of Remedies [ 13.2] III. Damages [ 13.3] A. In General [ 13.4] B. Compensatory Damages [ 13.5] 1. What Are Compensatory Damages? [ 13.6] 2. How Are Compensatory Damages Measured? [ 13.7] a. In General [ 13.8] b. Interests Considered [ 13.9] (1) In General [ 13.10] (2) Expectation Interest [ 13.11] (3) Reliance Interest [ 13.12] (4) Restitution Interest [ 13.13] c. Type or Severity of Breach [ 13.14] (1) In General [ 13.15] (2) Delay [ 13.16] (3) Anticipatory Repudiation [ 13.17] (4) Defective but Substantial Performance [ 13.18] d. Interest, Attorney Fees, and Costs [ 13.19] (1) In General [ 13.20] (2) Power to Specify in Contract [ 13.21] (3) What If Contract Is Silent? [ 13.22] e. Adequacy of Remedy Unconscionability [ 13.23] f. Common-Law and Statutory Limitations on Recovery [ 13.24] (1) In General [ 13.25] (2) Statute of Limitation [ 13.26] (3) Causation [ 13.27] (4) Foreseeability: Hadley v. Baxendale [ 13.28] (5) Certainty [ 13.29] (6) Mitigation of Damages [ 13.30] (7) Economic Loss Doctrine [ 13.31] TOC-26 March 2013, State Bar of Wisconsin PINNACLE

25 (8) Present Value Concept [ 13.32] (9) Mental Suffering [ 13.33] (10) Financial Status [ 13.34] C. Liquidated Damages [ 13.35] 1. What Are Liquidated Damages? [ 13.36] 2. When Are Liquidated Damages Enforceable? [ 13.37] a. General Requirement of Reasonableness [ 13.38] b. Determining Reasonableness [ 13.39] (1) In General [ 13.40] (2) Totality of the Circumstances [ 13.41] (3) Difficulty of Accurately Estimating Loss [ 13.42] (4) Proportionality of Liquidated and Actual Damages [ 13.43] D. Punitive Damages [ 13.44] 1. When Are Punitive Damages Recoverable? [ 13.45] a. General Rule and Contract Action [ 13.46] b. Exceptions [ 13.47] 2. How Are Punitive Damages Measured? [ 13.48] a. Claimant s Evidence [ 13.49] b. Jury s Factors [ 13.50] c. Relationship to Compensatory Damages [ 13.51] IV. Specific Performance [ 13.52] A. In General [ 13.53] B. Enforcement of Performance [ 13.54] 1. Prerequisites [ 13.55] a. In General [ 13.56] b. Binding Agreement [ 13.57] c. Certainty of Terms [ 13.58] d. Inadequate Legal Remedy [ 13.59] e. Performance or Tender of Performance [ 13.60] f. Fairness [ 13.61] 2. Effect of Provision for Liquidated Damages [ 13.62] 3. Waiver or Estoppel [ 13.63] March 2013, State Bar of Wisconsin PINNACLE TOC-27

26 4. Particular Types of Contract [ 13.64] a. In General [ 13.65] b. Real Estate (Options, Leases, Subject to Encumbrance) [ 13.66] c. Personal Property [ 13.67] d. Services [ 13.68] e. Construction Agreements [ 13.69] f. Loans [ 13.70] g. Arbitration [ 13.71] C. Variations on Enforcement of Performance [ 13.72] 1. In General [ 13.73] 2. Performance of Contract with Conditions [ 13.74] 3. Relief in Addition to or in Lieu of Specific Performance [ 13.75] a. Incidental Equitable Relief [ 13.76] b. Damages [ 13.77] V. Reformation [ 13.78] A. In General [ 13.79] B. Grounds for Reformation [ 13.80] 1. In General [ 13.81] 2. Antecedent Agreement [ 13.82] 3. Mutual Mistake [ 13.83] 4. Unilateral Mistake Coupled with Fraud [ 13.84] C. Defenses [ 13.85] 1. In General [ 13.86] 2. Ratification [ 13.87] 3. Waiver or Estoppel [ 13.88] D. Burden of Proof [ 13.89] E. Parties Entitled to Relief [ 13.90] 1. General Rule [ 13.91] 2. Effect on Third Parties [ 13.92] F. Types or Subject Matter of Contracts [ 13.93] 1. In General [ 13.94] 2. Real Estate (Deeds, Leases, Mortgages) [ 13.95] 3. Insurance Policies [ 13.96] 4. Releases [ 13.97] TOC-28 March 2013, State Bar of Wisconsin PINNACLE

27 CHAPTER 14 RESCISSION AND RESTITUTION by Allen A. Arntsen and Jonathan P. Witt I. Scope [ 14.1] II. Rescission [ 14.2] A. What Is Rescission? [ 14.3] B. When May Contract Be Rescinded? [ 14.4] 1. In General [ 14.5] 2. Common Law [ 14.6] a. Mutual Assent [ 14.7] b. Void, Voidable, or Unenforceable Contracts [ 14.8] c. Material Breach [ 14.9] (1) In General [ 14.10] (2) Anticipatory Breach or Repudiation [ 14.11] (3) Delay [ 14.12] 3. Statutory Rescission [ 14.13] a. In General [ 14.14] b. U.C.C. [ 14.15] (1) In General [ 14.16] (2) Rejection, Revocation, Cancellation [ 14.17] c. Other Statutes [ 14.18] C. How Must Contract Be Rescinded? [ 14.19] 1. Form of Rescission [ 14.20] 2. Party Seeking Rescission Must Restore Status Quo [ 14.21] 3. Complete Versus Partial Rescission [ 14.22] 4. Timeliness and Waiver Issues [ 14.23] D. Procedural Issues in Actions to Rescind [ 14.24] 1. No Right to Jury Trial [ 14.25] 2. Election of Remedies [ 14.26] a. In General [ 14.27] b. Election Between Rescission and Claim for Breach of Contract [ 14.28] c. Election Between Rescission and Tort Claim for Misrepresentation [ 14.29] (1) Common Law [ 14.30] (2) Statutory [ 14.31] March 2013, State Bar of Wisconsin PINNACLE TOC-29

28 III. Restitution [ 14.32] A. What Is Restitution? [ 14.33] B. When Is Restitution Available? [ 14.34] 1. In General [ 14.35] 2. When Parties Have Entered into Contract [ 14.36] a. Void, Voidable, or Unenforceable Contracts [ 14.37] b. Material Breach [ 14.38] 3. When No Contract Exists: Unjust Enrichment [ 14.39] a. In General [ 14.40] b. Contracts Implied in Fact; Quantum Meruit [ 14.41] c. Contracts implied by Law [ 14.42] (1) In General [ 14.43] (2) Quasi-Contracts [ 14.44] (3) Claims Relating to Family or Household Matters [ 14.45] d. Partial Performance by Breaching Party [ 14.46] C. How Is Restitution Measured? [ 14.47] 1. In Rescission of Void, Voidable, or Unenforceable Contracts [ 14.48] 2. For Material Breach [ 14.49] 3. Unjust Enrichment [ 14.50] a. Ramsey v. Ellis [ 14.51] b. Contracts Implied in Fact [ 14.52] c. Contracts Implied by Law [ 14.53] d. Partial Performance by Breaching Party [ 14.54] e. Rescission, Restitution, and the Economic Loss Doctrine [ 14.55] TOC-30 March 2013, State Bar of Wisconsin PINNACLE

29 CHAPTER 15 GENERAL DRAFTING PRINCIPLES by Kim Marie Wynn I. Scope [ 15.1] II. Goals of Drafting [ 15.2] III. Predrafting Considerations [ 15.3] A. Obtaining Relevant Information [ 15.4] 1. In General [ 15.5] 2. Checklist for Client Meeting [ 15.6] 3. Existing Documents [ 15.7] B. What Are the Legal Requirements? [ 15.8] 1. Record Notice or Filing Requirements [ 15.9] 2. Substantive Law [ 15.10] C. Should There Be More Than One Document? [ 15.11] 1. In General [ 15.12] 2. Multiparty Transactions [ 15.13] 3. Submission to Third Party or Placement in Public Records [ 15.14] 4. Customs Dictating Separate Documentation [ 15.15] D. Who Is to Be the Drafter? [ 15.16] 1. Determining the Drafter [ 15.17] 2. Consequences of Determination [ 15.18] E. Will There Be a Letter of Intent? [ 15.19] F. Key Issues for Letters of Intent [ 15.20] G. What Is the Tax Effect of the Transaction? [ 15.21] IV. Drafting the Contract [ 15.22] A. Are There Existing Forms That May Be Useful? [ 15.23] B. Choosing the Language [ 15.24] 1. Methods of Achieving Clarity [ 15.25] a. In General [ 15.26] b. Language That Is Precise [ 15.27] (1) Distinguished from Plain Language Doctrine [ 15.28] (2) Definitions [ 15.29] (3) Terms of Art [ 15.30] March 2013, State Bar of Wisconsin PINNACLE TOC-31

30 TOC-32 (4) Placement on Page [ 15.31] (5) Good Grammar and Avoidance of Legalese [ 15.32] (6) Gender-Neutral Language [ 15.33] c. Language That Avoids Conflicts [ 15.34] d. Language That Sets Parameters for Performance [ 15.35] e. Language Broad Enough to Avoid Loopholes [ 15.36] 2. Advantages and Disadvantages of Ambiguity [ 15.37] 3. Gratuitous Language [ 15.38] 4. Reasonable Efforts [ 15.39] C. Sections of Formal Agreement [ 15.40] 1. In General [ 15.41] 2. Preamble [ 15.42] a. In General [ 15.43] b. Issues Relating to Identification of Parties [ 15.44] (1) Is Agreement Enforceable Against the Intended Party? [ 15.45] (2) Are There Intended Beneficiaries? [ 15.46] (3) Are Third Parties Desired for Good Will or Resources? [ 15.47] 3. Recitals [ 15.48] 4. Introduction [ 15.49] 5. Body of Agreement [ 15.50] a. In General [ 15.51] b. Reciprocal Covenants [ 15.52] c. Representations and Warranties [ 15.53] d. Conditions Precedent [ 15.54] e. Default and Remedies [ 15.55] (1) In General [ 15.56] (2) Definition of Default [ 15.57] (3) Contractual Remedies and Limitations on Remedies [ 15.58] (4) Additional Protection Against Other Party s Default [ 15.59] f. Allocation of Risk [ 15.60] (1) In General [ 15.61] (2) Indemnifications and Releases [ 15.62] March 2013, State Bar of Wisconsin PINNACLE

31 (3) Liability Baskets and Time Limitations [ 15.63] (4) Insurance [ 15.64] g. Termination [ 15.65] (1) In General [ 15.66] (2) Effect of Termination [ 15.67] 6. Standard Clauses [ 15.68] a. In General [ 15.69] b. Checklist [ 15.70] 7. Signatures [ 15.71] a. Execution of Contract [ 15.72] b. Faxed or ed Signatures [ 15.73] 8. Seal [ 15.74] a. Affixing a Seal [ 15.75] b. Effect of a Seal [ 15.76] (1) Evidence of Consideration [ 15.77] (2) Statute of Limitation [ 15.78] (3) Requisite for Recording [ 15.79] (4) U.C.C. [ 15.80] 9. Acknowledgment, Authentication, and Witnesses [ 15.81] 10. Attachments [ 15.82] D. Mechanics of Numbering and Captioning [ 15.83] 1. Recitals [ 15.84] 2. Body of Agreement [ 15.85] 3. Attachments [ 15.86] E. Interacting with Parties [ 15.87] 1. Client [ 15.88] 2. Other Parties [ 15.89] F. Modifications [ 15.90] V. Sample Contract [ 15.91] A. Hypothetical Facts [ 15.92] B. Predrafting Considerations [ 15.93] 1. Obtaining Relevant Information [ 15.94] 2. What Are the Legal Requirements? [ 15.95] 3. Should There Be More Than One Document? [ 15.96] 4. Who Should Be the Drafter? [ 15.97] March 2013, State Bar of Wisconsin PINNACLE TOC-33

32 C. Drafting the Contract [ 15.98] 1. Preamble: Identification of Parties [ 15.99] 2. Body of Agreement: Covenants; Defaults and Remedies; Allocation of Risk; Termination [ ] 3. Interacting with Other Party [ ] D. Sample Contracts [ ] 1. Contract Relating to Services [ ] 2. Easement Agreement [ ] CHAPTER 16 ELECTRONIC TRANSACTIONS by Gretchen E. Cleveland, Michael J. Klinker, Kim Marie Wynn, and Andrew J. Schlidt III I. Scope [ 16.1] II. Background [ 16.2] A. In General [ 16.3] B. National Conference of Commissioners on Uniform State Laws (NCCUSL) [ 16.4] C. Wisconsin Status [ 16.5] D. Summary of Wisconsin s Version of the Uniform Electronic Transactions Act [ 16.6] III. New Form of Commerce and Traditional Contract Principles [ 16.7] A. In General [ 16.8] B. Writing [ 16.9] C. Signature [ 16.10] D. Electronic Agent [ 16.11] IV. Approach [ 16.12] A. In General [ 16.13] B. Freedom of Contract [ 16.14] C. Technological Neutrality [ 16.15] D. Minimal Impact on Substantive Law [ 16.16] V. Transactions Subject to the Wisconsin UETA [ 16.17] TOC-34 March 2013, State Bar of Wisconsin PINNACLE

33 VI. Operative Provisions [ 16.18] A. Legal Status of Electronic Records and Signatures [ 16.19] 1. Electronic Records [ 16.20] 2. Transferable Records [ 16.21] 3. Electronic Signatures [ 16.22] 4. Notarization and Acknowledgment [ 16.23] B. Legal Requirements as to Form or Manner of Communication [ 16.24] C. Legal Requirements for Retention of Records [ 16.25] D. Time and Place of Sending and Receipt [ 16.26] E. Attribution of Electronic Records and Signatures [ 16.27] F. Security Procedures, Errors, and Changes [ 16.28] G. Modification by Agreement [ 16.29] H. Electronic Agents [ 16.30] I. Automated Transactions [ 16.31] VII. Related Laws [ 16.32] A. UETA and Federal Law [ 16.33] B. The Electronic Signatures in Global and National Commerce Act [ 16.34] C. Other Uniform Laws [ 16.35] INDEX March 2013, State Bar of Wisconsin PINNACLE TOC-35