Business Law: Chapter 15, The Ethical, Global, and E-Commerce Environment, 14th ed., by Mallor, Barnes, Bowers, Langvardt

Introduction to ContractsThe Agreement: Offer

The Agreement: AcceptanceConsideration

Reality of Consent

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Capacity to ContractIllegality

WritingRights of Third Parties

Performance and Remedies

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Illegality

In a free society the state does not administer the affairs of men. It administers justice among men who conduct their own affairs.

Walter Lippman

© 2010 The McGraw-Hill Companies, Inc. All rights reserved.

Learning Objectives

Meaning of illegalityTypes of illegal agreementsEffect on contractsSpecial doctrines

15 - 4

An agreement will be unenforceable because of illegality if the agreement involves an act or promise that violates a law or is against public policy Even if there was voluntary consent

between two parties who have capacity to contract

Effect: no remedy for breach of an illegal agreement

Illegality

15 - 5

Sometimes government legislatures enact statutes that declare certain types of agreements unenforceable, void, or voidable

Examples: New law changes the limits allowed for

interest to be charged on a loan New law prohibiting creation of a landfill

in environmentally sensitive areas

Agreements That Violate Statutes

15 - 6

Agreements that violate public policy include: Agreements to commit a crime Agreements promoting an illegal

purpose Agreement to perform an act for which

the person is not properly licensed Agreements in restraint of competition

Agreements That ViolatePublic Policy

15 - 7

A common regulatory statute requires a person to obtain a license, permit, or registration before engaging in a certain business or profession

If the purpose of the statute is to protect the public against dishonest or incompetent practitioners, then an agreement is unenforceable if an unlicensed person agrees to do an act that requires a license

Licensing Statutes

15 - 8

If the sole purpose of an agreement is to restrain competition, it violates public policy and is illegal

If the restraint on competition was part of an otherwise legal contract, the result may be different because the parties may have a legitimate interest to be protected by the restriction on competition

Agreements in Restraint of Competition

15 - 9

Courts enforce a non-competition clause if: It serves a legitimate business purpose, The restriction is reasonable in time,

geographic area, and scope It does not impose an undue hardship

Example: Nasc Services, Inc. v. Jervis in which the clause would “create an oppressive and unfair scenario” for former employees

Non-competition clauses

15 - 10

An exculpatory clause (a release or liability waiver) in a contract attempts to protect one party from liability for damages

Exculpatory clauses are perhaps suspect on public policy grounds, but courts do not want to interfere with the agreement if it does not threaten public health or safety Example: McCune v. Myrtle Beach Indoor

Shooting Range, Inc.

Exculpatory Clauses

15 - 11

Under the doctrine of unconscionability, courts refuse to grant the equitable remedy of specific performance for breach of contract if the contract is oppressively unfair

Unconscionability means the absence of meaningful choice together with terms unreasonably advantageous to one of the parties

Unconscionable Agreements

15 - 12

UCC 2–302 gives courts power to refuse to enforce all or part of a contract for the sale of goods or to modify such a contract if it is found to be unconscionable

Example: Circuit City Stores, Inc. v. Mantor Company pressured and threatened employee to

sign an agreement to arbitrate in the event of dispute, but court believe it had gone too far

Clause was unconscionable, therefore the contract was unenforceable

Unconscionable Agreements

15 - 13

A contract of adhesion is a contract, usually on a standardized form, offered by a party who is in a superior bargaining position on a “take-it-or-leave-it” basis

Courts will enforce the contracts unless the term is harsh or oppressive

Contracts of Adhesion

15 - 14