A Casebook for All Seasons?

• Publication year: 1996
• Citation: Vol. 20 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 20, No. 2WINTER 1997

Reviews

A Casebook for All Seasons?

Cases and Materials on Contracts: 5th Edition. By E.Allan Farnsworth(fn*) and William F. Young.(fn**) Westbury, New York: Foundation Press, 1995. Pp. xxx, 1006

Reviewed by Geoffrey R. Watson(fn*)

By any measure, Farnsworth and Young's Cases and Materials on Contracts(fn1) is one of the leading American casebooks on contracts, perhaps the leading casebook. It is the most widely-used American casebook on the subject, having been adopted at over one hundred American law schools.(fn2) Its authors are distinguished professors at Columbia Law School, and Farnsworth is particularly well known as reporter of the Restatement (Second) of Contracts(fn3) and the author of the leading modern treatise on contracts.(fn4) The casebook just entered its fifth edition-itself an achievement in a crowded market in which some casebooks never make it past a first edition. In fact, the "fifth edition" is really the ninth edition of a casebook first published by Professor Edwin W. Patterson in 1935, a book that eventually gathered two co-authors and made it to a fourth edition.(fn5)

Part I of this Review considers the book's merits as a tool for teaching contract doctrine. In this respect the book excels. Part II considers it as a tool for introducing students to broader perspectives on contract law. In this respect the book's success is somewhat less complete.

I.

The organization of the fifth edition, like that of the fourth, is generally sensible. It begins with bases for enforcing promises, then takes up mutual assent, the Statute of Frauds, "policing the bargain," remedies, interpretation, performance, breach, impracticability, frustration, beneficiaries, and assignment and delegation. There is a certain chronological logic to this order of presentation: it follows the life of a contract, beginning with formation, moving to defenses, and finally turning to performance and breach. Obviously the chapter on remedies violates this logic, but this seems a sensible compromise: remedies are too important to leave for the last few rushed weeks of class. Arguably the chapters on beneficiaries and assignment and delegation belong in the formation part of the book as well; indeed, I and other professors cover some of this material just before or after the chapter on the Statute of Frauds. Most professors, however, probably do not regard these subjects as essential for the first year, so again their placement in the back of the book is quite sound.(fn6)

Although the book saves most of remedies for the middle of the course, it also introduces remedies in a short opening section.(fn7) This segment immediately precedes the material on enforcing promises. It is designed to help the students understand what it means to "enforce" a promise-providing substitutional relief in the form of damages, or occasionally specific relief in the form of an injunction. Many teachers, myself included, skip this section and return to it while covering the main chapter on remedies. I find that I can introduce these themes by using the cases on consideration, restitution, and reliance that immediately follow. Moreover, the cases in that segment either seem too uninteresting (e.g., White v. Bentkowski(fn8)) or too rich (e.g., Sullivan v. O'Connor(fn9)) for the first week of class. Sullivan is a great case, but it raises a variety of issues-for example, intent to be legally bound-that profit from exposure to the materials on mutual assent in Chapter Two. The casebook editors envision that we consider Sullivan at both points,(fn10) but that seems to slow things down. It is easier to consider the case all at once.

Even so, Farnsworth and Young have done well to accommodate different tastes by including this segment on remedies.(fn11) It does present some material that can serve as a foundation for more complex concepts to come. For example, the note on the economics of remedies usually proves eye-opening for students. It is usually easier for them to grasp the concept of efficient breach presented here than economic analysis of formation doctrine. A newcomer to economics can easily understand why it is inefficient to force parties to adhere to a contract when everyone would be better off after breach. But a newcomer will not so easily understand Posner's present-value argument for enforcing gratuitous promises, which is presented in the section on consideration.

The editors' decision to begin with theories of obligation rather than mutual assent is eminently sound, but it does raise interesting pedagogical issues. Consideration doctrine hits the student with a surprise right away-namely, that the primary basis for enforcement of a promise is getting something in return, not putting the promise in writing. This discovery helps the student realize that there is sometimes a disconnect between the law on the books and the law on the street. It helps the student understand why people might pay an attorney to work on a contract problem. Consideration doctrine induces in many students a healthy skepticism about the wisdom of legal doctrine. And it disabuses them of the notion that the study of contracts will be a tedious exercise in formalism, in memorizing rules about fine print. Consideration doctrine is also useful for teaching case-reading skills. It is an excellent vehicle for teaching how to draw relevant (and irrelevant) distinctions between cases. With a little prodding, students prove remarkably adept at distinguishing a case like Webb v. McGowin(fn12) from a case like Mills v. Wyman.(fn13)

That said, there is an equally strong case to be made for starting with mutual assent rather than consideration. Most contract teachers seem to agree that offer and acceptance is more accessible than consideration doctrine, which suggests it might serve as a better introduction to the course. A number of other casebooks(fn14)-including the forerunner to Farnsworth and Young itself(fn15)-have taken this tack. Like consideration doctrine, offer and acceptance soon teaches the student that there is more to contract than memorizing what goes in fine print and that the law is not a collection of immutable bright-line rules. One problem with mutual assent is that it is an enormous topic; covering it first might prolong it unnecessarily because class moves slowly at the outset. Knapp and Crystal,(fn16) however, have managed to address this problem by treating "classical" offer and acceptance law in their first full chapter, and saving more complex modern problems-options, the "battle of the forms," precontractual liability, and the "agreement to agree"-for a later chapter.(fn17) This approach seems just as workable as Farnsworth and Young's solution.

Having begun with theories of obligation, the fifth edition of Farnsworth and Young does a good job of choosing and editing relevant cases, though perhaps not as good a job as the fourth edition. The segment on consideration begins with Homer v. Sidway,(fn18) an old chestnut that combines entertaining facts with a "benefit-detriment" theory of consideration.(fn19) As a vehicle for teaching doctrine, Hamer is not perfect: one is forced almost to teach against the case, to rely on the notes following Hamer to show the students the rise of the bargain theory. But as a vehicle for introducing students to the study of law, Hamer is terrific. For one thing, its vintage resonates with tradition. Students almost seem to expect their first contracts case to be a dusty old case with quirky facts, and Hamer fits the bill. For another, the meandering procedural history of the case, including the assignment of claims and appointment of an executor, provides good practice in case-reading skills. Moreover, the simple facts provide a great running hypothetical for illustrating problems like the conditional gift promise.

The cases in the rest of the chapter are also well chosen, but there are some exceptions. Fiege v. Boehm,(fn20) the case following Hamer, seems an odd choice. Fiege involves forbearance to assert an invalid claim, a problem well worth covering, but the claim in question is for bastardy-a subject that nervous first-year students (and instructors) may not feel comfortable discussing on the second day of class. The fourth edition used Fiege but also included State v. Bryant,(fn21) a claim settlement case that covered the same doctrine in a more neutral setting.

More regrettably, the fifth edition has omitted East Providence Credit Union v. Geremia,(fn22) a difficult but instructive promissory estoppel case. In Geremia, a couple supposedly relied to their detriment on a credit company's "promise" to renew their car insurance policy for them. The case can be used to ask whether the company's "promise" was really a threat, and whether the law should "enforce" threats that the threat-maker reasonably expects will induce reliance. (If I promise to break your knees, and you rely on my promise by investing in a security fence, am I liable to you if I break my "promise"?)(fn23) Geremia can also be used to introduce the concept of the moral hazard, as well as to present a difficult consideration issue, well worth some review time in class. Geremia will be missed.

Finally, the cases in this chapter have been re-arranged. Restitution doctrine now follows consideration doctrine...