Thinking Like a Transactional Lawyer

• Author: Franklin G. Snyder, Mark Edwin Burge
• Pages: 3-12

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UNIT 1: THINKING LIKE A TRANSACTIONAL LAWYER 3

Unit 1

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INTRODUCTION TO CONTRACT LAW

Part One

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Thinking like a Transactional Lawyer

Welcome to Contracts. While a year ago you might have thought that a “tort”

was a kind of fruity pastry, most students enter law school with some idea of what a

contract is. If we asked you to close your eyes and imagine a contract, what would you

see? Maybe you would imagine an old, musty document like the one the dwarves

persuaded Bilbo Baggins to sign in the movie, The Hobbit: An Unexpected Journey.

You might think of a stack of “closing” papers signed by corporate executives

completing a multi-billion dollar merger. Or maybe you are reminded of an apartment

lease, your internet service provider agreement, or that document the plumber had

you sign before fixing your sink.

Promises the Law Will Enforce. As you will discover in this course, a contract

need not be a written document at all.

1

Oral contracts are not only enforceable but

are in fact ubiquitous. If there is a written document, is that piece of paper the

contract? Or is it just evidence that a contract was made? And what’s the difference

between those concepts? If the contract is not necessarily the piece of paper, what is

it? On second thought, are you confident that you know what a contract is? We had

better fix that.

One common definition of a contract is that it is (1) a promise (or a set of

promises) that (2) the law (3) will enforce.

2

To “enforce” the contract means to

compel the person making the promise (the “promisor”) to either perform it or to pay

damages for failing to do so. Enforcement by “the law” means that it will be done by

duly authorized agencies of the government through the court system,

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and not by

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Except when, for certain reasons in certain cases, the law requires a writing. At this point

you should start getting used to the idea that there are very few flat statements about contract law

that do not have exceptions. And, sometimes, the exceptions have ex ceptions.

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See, e.g., RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981).

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Actually, enforcement can be a little more comp licated in that it isn’t only through the court

system. Sometimes parties contractually agree to hav e a private arbitrator decide their dispute.

Parties also sometimes have “self-help” means of enforcement. We will frequently refer to what

“courts” and “the court system” do with regard to contracts, but we don’t mean to exclude other players

in a complex legal system. We’ve just read so many judicial opinions over the years that we sometimes

can’t stop ourselves from talking about courts. (Note: We are only the first unit, and you already should

be figuring out that almos t every general statement about contract law requires qualification. That,