Friday, October 28, 2011

Question: Contract Defenses


How would you logically organize the many defenses in a contracts course?


This is an important questions, with a fairly simple answer. You're going to want to separate the defenses to formation of the contract from the defenses to enforcement of the contract.

Let's assume for a moment that after reading a fact pattern, you've determined that there has been a valid offer, a valid acceptance, and valid consideration on both sides of the contract. It would seem that the required elements (ie, mutual assent) have been satisfied and the contract has been formed. You'll immediately, however, at this point, want to consider whether there are any defenses to prevent formation of the contract. The defenses you will want to consider (ie, the defenses to formation of the contract) are as follows: mutual mistake; unilateral mistake; ambiguity; misrepresentation; illegality; duress; and lack of capacity.

If you've determined that none of the above defenses apply, then the contract has been formed. At that point, if the contract is to be avoided, then a defense within the second group of defenses (ie, defenses to enforcement) will have to apply. These defenses are as follows: Statute of Frauds; unconscionability; impossibility; impracticability; and frustration of purpose.

You should absolutely keep these two groups separate in your mind as you analyze the contract, first analyzing the defenses in group 1, then analyzing the defenses in group 2. I'd be glad to address any of these defenses in detail should there be any questions, and future notes on this blog will be focusing on contractual defenses, in detail.

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