preoccupy耶鲁大学-美国合同法笔记-第1周

2021年1月20日发(作者：上游)
Welcome
to
Contracts.
In
these
two
courses,
Contracts
one
and
Contracts
two,
you
will
learn
the
basics
of
US
Contract
Law
.
You
don't
need
to
be
a
lawyer
to
write
contracts. So, these courses will be a value not just to law students, but to business
people in and outside the United States,
that have to deal with contracts governed by
US
law.
Contracts
one,
will
focus
on
the
prerequisites
先决条件

for
contracting.
You'll learn about
offer
and
acceptance
, how contracts manifest
mutual assent
. We'll
be talking a lot about
consideration
and when it is required. Contracts two, will then
turn
to
formation
defenses

and
questions
of
contract
performance
.
You
will
learn
about
contract interpretation
, and the dividing line between
breach and non
-
breach
. In
contracts
two,
we'll
also
be
learning
about
how
contract
law
attempts
to
remedy
breach
by
awarding
various
types
of
damages.

The
law
of
contracts
is
both
judge
made
and
legislature
made,
all
50
states
have
enacted
major
parts
of
the
Uniform
Commercial
Code
or
UCC.
The
UCC
is
divided
into
separate
articles.
Article
one
includes general provisions.
We'll be focused on Article two, which governs the sale
of goods, physical objects.
Other UCC articles relate to different kinds of transactions.
Article nine covers secured transactions, where a borrower gives a lender a security
interest in some borrower asset in order to secure the loan. Article
-
IIA covers leases.
If you have a contract dispute with your barber, is the contract governed by the UCC's
Article II? No. The UCC governs the sale of goods.

The contract to pay money for a
haircut is a service, and is likely to be governed by common law, meaning law created
over time by judges.
However, even with regard to services, many jurisdictions have
health and safety regulations as well as consumer protection statutes that may regulate
the transaction. The common law is judge made law handed down in decisions that
have
precedential
authority
with
regard
to
similar
disputes.
The
common
law
of
contract not withstanding the UCC still has a big role to play in knowing contract law.
Common
law
governs
not
only
service
contracts,
but
it
supplements
the
UCCs
coverage of sale of good contracts. UCC Section 1
-
1O3B, tells us.
by particular provisions of the Uniform Commercial Code, the principles of law and
equity, including the law relative to capacity to contract, principal and agent, estoppel,
fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating
or
invalidating
cause
supplement
its
provisions
In
essence,
this
section
says,
that
unless
displaced
by
particular
provisions
of
the
UCC,
the
common
-
law
lives
the
principles
of
law
and
equity
that
supplement
its
provisions
are
the
principles
developed by common law judges.
The best way to learn the common law is to read
cases, the opinions of judges resolving particular disputes,
we'll be doing a lot of that
in
this
course.
But
the
American
Law
Institute
has
helpfully
created
restatement
of
different areas of law, that tried to summarize different areas of judge made law. The
Restatement
重述

Second of contracts is the current version which was finalized in
1991.
The first was approved in 1932. This restatement second has been enormously
influential. It is not law in the sense that judges are not bound to follow it, but many
supreme courts have found particular provisions persuasive and have expressly relied
upon
certain
provisions,
thus
indirectly
making
these
provisions
binding
in
these
states.
So, to
learn both statutory and
common law of contracts, this
course will be
introducing
you
to
many
provisions
in
the
UCC
and
the
restatement
second
of
contracts.
Like
generations
of
contracts
students
before
you,
you'll
be
reading
and
picking apart dozens of actual judicial opinions. We begin with six cases to give you a
taste of all of contract law.
Two cases, Hamer and Rickets, concern legal prerequisites
for creating enforceable promises.

Two other cases Bolin Farms and Walker
-
Thomas
Furniture,
concern
contractual
defenses.

Finally,
two
cases
Jacob
and
Youngs
and
Sullivan,
concern
remedies
for
breach
of
contract.

This
introductory
section
also
introduces you to three overarching concepts;
default
违约

versus
mandatory rules
强制规则
,
property
财产

versus liability rules
责任规则
, and the Coase theorem.
So, without more do, let's dig in.


Uniform Commercial Code
统一商法典

统一商法典（英语：
Uniform Commercial Code, UCC, the Code
）是美国制定的一
部商法典，在
1952< br>年正式公布，现为美国
50
个州所采纳。

The Uniform Commercial Code (UCC), first published in 1952, is one of a number of
uniform
acts
that
have
been
promulgated
with
the
goal
of
harmonizing
the
law
of
sales and other commercial transactions across the United States of America (U.S.)
through
UCC
adoption
by
all
50
states,
the
District
of
Columbia,
and
the
U.S.
territories.

编数

标题

1

2

3

4

5


总则


买卖


内容





2A


租赁契约


流通票据



银行存款与收款



信用证


4A


6

7

8

9


大宗买卖


权利凭证


投资证券






动产提保交易


A Brief Overview of Contract Law

Contracts are
created in
order to legally bind parties into a promise, but
because of
differing interpretations of legal language, can be tricky to litigate. Contract law is a
complex puzzle, one that requires a deep understanding of what exactly contracts are
and what following through with one entails.

There are a few requirements to make a contract enforceable as well as limitations on
what one can be contractually obligated to do. In this article, we’ll define the terms,
discuss the basics of contract law, the requirements for an
enforceable contract
强制
执行的合同
,
and give an overview what breach of contract entails, as well as possible
remedies that may come out of litigation due to fraud or other contractual errors.

If you’re looking for a lawyer who specializes in contract litigation, look no further
than our ttorneys who specialize in this complex
legal knot
法律纠纷
.


Definition of Terms

A
contract

is
defined
by
the
Legal
Information
Institute
as,
“
an
agreement
between
private
parties
creating
mutual
obligations
enforceable
by
law
”.
More
broadly,
this
includes any promise
（允诺）
promise

n. & v.
允诺；保证；许诺

以特定方式向他人表明自己将要为或不为某事的打算，且该表 达
的方式使对方可合理地理解为其作出了许诺：
保证将为或不为某事。
允诺可以书面或 口头的
方式为之，作出允诺的人是
允诺人〔
promisor
〕
，其 相对方是
受允诺人〔
promisee
〕
。合同实
质上即为有约束力 的允诺；允诺付款，指本票〔
promissory
note
〕上表明出票人
打算偿还
某一债务的字句。
如果仅书面承认债务到期，
并不足以构成允诺付款
the breach of which
will result in legal remedies.

A promise is defined as a manifestation of intention to act or refrain from acting in a
specified way, so made as to justify a promisee in understanding that a commitment
has been made.


要约人，受要约人

A promiser is defined as the person manifesting the aforementioned intention, while
the promisee is the person to whom this manifestation is addressed. A beneficiary may
also
arise
depending
upon
the
type
of
contract,
and
a
beneficiary
is
anyone
who
is
benefited by the performance of the promiser on behalf of the promisee.


Requirements for An Enforceable Contract
有效合同的构成要件

In order for a contract to be enforceable and legally
-
binding, there are a few different
elements of requirement that must be met.


The
first
of these is
mutual assent
（合意，
即意思表示一致）
, which simply means that
both parties agree to the terms of the contract.
Both parties must also express a valid
offer and acceptance, whether in a formal manner or just by agreement to the offer as
presented.

Even
if
the
moment
of
agreement
cannot
be

pinpointed
准确表述
,
the
assertion of an agreement made will
suffice
满足
.


Another
element

of
a
legally
-
enforceable
contract
is
that
both
parties
must
be
reasonably certain that the agreement can be honored in
a legal manner
（内容合法）
--
so if the contract describes illegal behavior, it obviously cannot be enforced.


Adequate
consideration
（合理对价）

,
or
“the
value
that
convinces
the
parties
to
engage in a contract” in the first place, is also another crucial element.


One
of
the
biggest
reasons
that
contract
disputes
enter
litigation
is
due
to
misrepresentations, mistakes, or either party of the contract being under undue duress,
or pressure, to complete the terms.

欺诈、胁迫、趁人之危、重大误解、显失公平
Many times litigation will find a contract
void or unenforceable
合同无效或不可强制
执行
, which dissolves the terms of the contract to both parties.


If a contract is breached, then litigation may find the
promisee is entitled to damages
as a remedy to contract breach
. Depending upon the type of contract breach, a judge
can
award
expectation
damages
期望损害赔偿
,
reliance
damages
信赖损害
,
and
unjust enrichment
不当得利

to an injured party.


Finding an Attorney Who Specializes in Contract

Litigation
Contract
law
may
be
a
complex
puzzle
--
but
that’s
why
you
need
an
attorney
that
can
untangle
it
for
you.
You
need
a
litigation
attorney

with
your
best
interests
in
mind
who
will
offer
you
expert
advice,
especially
those
with
the
experience
to
achieve
the
best
possible
results
for
their
clients,
often
avoiding
ever
going to trial due to mutual agreements.
< br>特别是那些有经验的诉讼律师，为他们的
客户取得最好的结果，往往是通过达成协议而避免诉讼。



Default Rules, Altering Rules and Mandatory Rules

失责处理规则，变更规则和强制性规则

The effect
of many of the rules
that
you will learn in
law school
can be altered by
agreement
of the parties. Rules that the parties can contract around are often called
default or gap filling rules
默认或空白填充规则
. Just as word processing software
stablishes default margins that a user can alter by changing the settings, any rules are
merely
legal
presumptions
法律推定

that
only
govern
when
he
parties
have
remained
silent,
in
the
absence
of
agreements
to
the
contrary.
Default
rules
can
be
established by common law courts or by legislatures.
When a court decision says, s
Judge Cardoza wrote in Jacob and Young versus Kent, that future parties are, quote,
free
by
apt
and
certain
words,
unquote,
to
contract
for
an
alternative
result,
the
decision is announcing a default rule. When a statute prescribes a rule that will apply,
quote,
unless
otherwise
indicated,
unquote,
in
a
private
contract,
it
is
announcing
a
default
rule.
But
many
times,
statutes
and
decisions
will
not
expressly
address
whether a particular rule can be altered by private agreement, or what words would be
sufficient to accomplish such altering.
When a rule is merely a default, it's important
to understand the necessary and sufficient requirements for opting out of it, or what
are
known
as
altering
rules.
The
UCC,
the
Uniform
Commercial
Code,
section
22061a, for example,
establishes the default that an offer invites acceptance, quote, in
any manner and by any medium reasonable in the circumstances, unquote
. The same
section provides that the default will obtain, quote, unless otherwise unambiguously
indicated, unquote, by the offer or. The reasonable medium rule is the default, and the
unambiguously
indicated
requirement
provides
the
altering
rule.
Not
every
contract
rule can be contracted around.
Those that can not be changed are termed mandatory or
immutable rules
.
Mandatory rules are established by both courts and legislators.
The
common
law
has
also
established
immutable
limits,
for
example,

on
the
maximum
amount of damages that parties can contract for
最大损害赔偿数额可以约定
. These
are restrictions on so
-
called
liquidated damages
约定违约金，
当事人双方在订立合同时，可以预先估计一方当事人违约所可能造成的损失，在合同中规定违约方应支付的赔偿金的
确定数额。 一旦合同当事人就违约金的数额达成协议，则无论其是高于还是低于违约造成
的实际损害，这一固定数额 都是损害赔偿金的标准
, and limits on the maximum length of
covenants not to compete. The duty of good faith
诚信

is a mandatory part of every
agreement,
although
standards
of
good
faith
can
within
reason
be
altered
by
agreement.
In
the
last
60
years,
legislative
and
administrative
bodies
have
promulgated
发布

a host of immutable rules that restrict freedom of contract.

Some types of transactions,
such as those concerning insurance and employment,

have
to
large
extents
been
removed
from
the
general
law
of
contract,
and
are
now
subject
instead
to
a
host
of
specific
mandatory
statutory
rules.
Since
1964,
for
example,
employers have had an immutable duty not to discriminate on the basis of
race or gender when making employment decisions.

Many other commercial activities
are
subject
to
more
limited
mandatory
rules
covering
issues
such
as
antitrust,
consumer protection, and anti
-
terrorism.

雇主 在作出雇用决定时负有不可改变的责
任，
即不因种族或性别而歧视。
许多其他的商业活 动受制于更有限的强制性规则，
如反垄断、
消费者保护和反恐。

Even the relatively simple construction of a private
home is awash with immutable duties. Default rules are not just about contract law,
though.
Every
realm
of
law
can
be
characterized
as
a
mixture
of
default
and
mandatory provisions.
Every area of law has this mixture. The law of intestacy
无遗
嘱死亡
is the default legal treatment of people who die without a will. Corporate law
is
awash
with
default
rules,
and
again,
a
mixture
of
mandatory
rules
as
well.
Cumulative voting
累积投票制

used to be the default rule of corporate democracy,
but now straight or noncumulative voting is the legal default. Even constitutional law
is
a
mixture
of
default
and
mandatory
laws.
For
example,
Article
IV
of
our
Constitution includes the mandate that full faith and credit shall be given in each state
to the public acts, records, and judicial proceedings of every other state. That's the full
faith and credit clause.
But then it immediately goes on to say that, quote, Congress
may
by
general
laws
prescribe
the
effect
thereof,
unquote,
thus
suggesting
that
the
effects of the states' full faith and credit duty can be altered by Congress.


For the rest of your legal education, indeed, for the rest of your life in the law, it's
useful whenever you learn a new rule to identify
whether the rule can be contracted
around
通过合同约定
,
and
if
so,
how?
Indeed,
a
worthwhile
exercise
after
reading
each case is to consider what contractual provisions would be sufficient to reverse the
course's
decision.
If
there
is
no
language
that
could
reverse
the
decision,
make
the
losing party win, no altering rules for displacing this default result, then the court is
applying a mandatory rule. It's also important to think about the policy considerations
that
are
relevant
to
setting
legal
defaults
and
altering
rules.
As
an
initial
normative
matter,
you
should
always
question
whether
it's
reasonable
to
limit
freedom
of
contract by making a legal rule immutable. I'll be talking about this in the next lecture.
If a particular rule is not going to be immutable, how should the lawmakers set the
default?
The
traditional
answer
is
giving
the
parties
what
they
would
have
hypothetically
contracted
for
if
they
had
expressly
contracted.
But
this hypothetical
contracting rule is often devilishly difficult to apply in practice. It's hard to know what
terms
two
parties
would
have
arrived
at
given
their
individual
interests,
relative
bargaining power, other opportunities, and so forth. Often the best a court can do is
adopt
instead
a
majoritarian
approach
and
seek
out
which
terms
most
parties
in
similar
circumstances
would
prefer.
For
example,
in
the
sale
of
goods
contracts
covered
by
the
Uniform
Commercial
Code,
if
the
parties
fail
to
name
a
price,
the
UCC
fills
the
gap
with
a
reasonable
price
default.

Most
parties
are
probably,
these
kinds of parties probably contract for a reasonable price. Who wants an unreasonable
price? Which is normally going to be cashed out as closely related to the market price.
Indeed, any time you see the word
reasonable included in the description of a default
,
there's a good chance that hypothetical or majoritarian gap filling is at work. But the
law sometimes chooses to fill gaps with terms that do not accord with the hypothetical
contracting approach.
Whereas the UCC will fill in a missing price with a reasonable
price,
it
does
not
fill
in
quantity
gaps
by
trying
to
divine
what
would
have
been
a
reasonable quantity.
Instead, the impact of the UCC's statute of fraud is often to create
de facto

(1)
实际上的；事实上的

指虽不合法，但因实际目的而必须予以承认的职位、政
府或事实状态等。

a quantity default of zero.
The
contra proferentem rule
不利于提供
者

用于书面文件的解释，意 为文件中的模稜两可之处应作最不利于文件起草者或文件提
供者的解释。
,
which is Latin to say, to resolve a contractual ambiguity by interpreting
the contract against the drafting party.
This contra proferentem rule seems to aim to
penalize sloppy drafting rather than attempting to divine what the parties would have
expressly contracted for if they had been asked to resolve the ambiguity themselves.
These departures might
at
times
make good sense. Sometimes it
might be useful to
establish defaults that penalize one or both parties in ways that encourages the parties
to provide information by contracting around the default.
Penalty defaults
违约罚款

or information forcing defaults that intentionally penalize a contractor failing to fill a
gap
can
further
both
equity
and
efficiency
by
giving
a
contractor
the
incentive
to
expressly say to the other party and to the world what they want.

A penalty default rule
is a rule that the contractors would not have wanted. Its
presence in the right case will provide contractors an incentive to contract around the
default rule, and therefore to choose affirmatively the contract provision they prefer.
In
contrast
to
the
received
wisdom,
penalty
defaults
are
purposely
set
at
what
the
parties would not want, in order to encourage the parties to reveal information to each
other, or to third parties, especially courts. When strategic consideration cause a more
knowledgeable party not to
raise issues
that could
improve contractual
efficiency, a
penalty default that penalizes the more informed party may encourage the revelation
of
information.
The
Hadley
rule
,
哈德利规则
The
Hadley
rule
in
English
contract
law limits the scope of damages for breach of contract, starting the modern contract
damage law.
英国契约法中的哈德利规则限制了违约损害赔偿的 范围，
开创了现代
合同损害赔偿法之先河。
which
limits
consequential
damages
to
those
that
are
foreseeable by the breaching party, is arguably an information forcing default of just
this kind. It gives the party with hidden information about its
unforeseeable losses
.
In
this case, in the case of breach, it gives them a new reason to share that information
with the other side. Only by revealing that you as a buyer are likely to suffer unusual
losses in the case of sell or breach, will you be able to recover extra damages from a
breaching seller. In fact, there are a host of reasons besides information forcing that
can cause a minoritarian default. That is a default that only a minority of contracting
parties
would
actually
prefer.

Minoritarian
rules
少数规则

might
be
justified
by
differences
in
private
cost
of
contracting,
differences
in
private
cost
of
failing
to
contract,
differences
in
the
public
cost
of
filling
gaps,
differences
in
private
information
about
the
law.
At
the
end
of
the
day,
the
choice
of
an
efficient
default
does not boil down merely to a choice between the majoritarian rule for which most
contractors would've contracted and a penalty default designed to induce a contractor
to reveal information about her type.

Instead,
efficiency
-
minded
lawmakers
will
often
need
to
consider
a
host
of
factors to decide whether it is more efficient to chose a default that only a minority
values.

Finally,
once
lawmakers
have
decided
that
a
rule
should
be
contractable,
and
decided whether to adopt majoritarian or minoritarian default, they must still establish
separate
rules
governing
how
private
parties
can
contract
around
the
default
legal
treatment.
Altering
rules
establish
the
necessary
and
sufficient
conditions
for
displacing a default.

Usually,
lawmakers
try
to
facilitate
contractual
freedom
and
efficiency,
will
allow
multiple
altering
means,
so
as
to
minimize
the
cost
of
contracting
around
a
default
. But as with the default setting, the setting of altering rules should take into
count the costs of altering, the cost of various kinds of error, and the possibility that
altering can impose negative externalities on others.

There are two broad reasons for structuring altering rules that deviate for merely
minimizing transaction costs. First,
at
times it'll be more important
to
minimize the
cost
of
party
error,
especially
non
-
drafter
error
and
third
-
party
error,
especially
judicial
error,
than
it
is
to
minimize
the
cost
of
altering.
Second,
when
externality
concerns
or
paternalistic
concerns
to
protect
the
contractors
themselves
are
insufficient to justify a full
-
blown mandatory rules, lawmakers might at times impose

impeding
altering
rules,
which
intentionally
deter
subsets
of
contractors
from
contracting
for
legally
disfavored
provisions.
Impeding
altering
rules
produce
an
intermediate category of quasi
-
mandatory or sticky defaults which manage but do not
eliminate externalities and paternalism concerns. What is the last legal rule that you
learned? Is it a mandatory or a default rule? Identify a mandatory rule on your word
processing
system.
Identify
a
default
rule
of
your
word
processing
system.
And
describe in detail the altering rules associated with that default. Would it be better for
contract law to set the reasonable quantity as the default quantity for dcontracts?




Consideration n.
对价

合同成立的诱因；
致使缔 约方缔结合同的原因、
动机、
代价或强迫性的影响
力；
一方当事人获得的权利 、利益、利润或好处，或另一方当事人所遭受的损失
或承担的义务。
这是
有效合同存在并对当事人有法律约束力的基本且必须的要素。
对价是英美合同法的重要概念。
其引入 是基于以下的原因：
按照传统的观点，
合
同是一项或一组这样的允诺〔
pro mise
〕
：它或它们一旦被违反，法律就会给予救
济。
而要使允诺成为一项 法律能为之提供救济的允诺，
即成为有法律约束力的合
同，则受允诺人〔
promis ee
〕必须向允诺人〔
promisor
〕提供某种与该诺言相对
应的回报， 这种回报就被认为是对价。关于对价，有两种理论具有重要影响力：

其一是
19世纪初产生的「获益
-
受损公式」
〔
benefit
-
detriment
〕
，即如果允诺
人从交易中获益，
那么这种获益就是其作 出允诺的充分对价；
而另一方面，
如果
受诺人遭受了某种损害，
那么这种损害 也足以证明对方曾经作出过某种允诺。
其
二是
19
世纪末产生的「对价的变换 理论」
〔
bargain theory of consideration
〕，即：
对价的本质在于它是作为允诺的动机或诱因而提出和接受的；
反言之，
允诺 之做
出亦是对价之给付的诱因。
整件事的根本就在于对价与允诺之间的互惠引诱关系。
该理论由于与商品经济的飞速发展极为适应，
因此很快成为美国法中对价制度的
新正统。根据《 美国
(
第二次
)
合同法重述》
〔
Restatement
(Second)
of
Contracts
〕
，
对价之 意义，
系指合乎法律规定之交换要素，
其重心在于１受允诺人承诺或履行
了其在法律上 原无义务的作为或不作为，即受允诺人受有损害〔
detriment
〕
；２
允诺人以其允诺交换磋商〔
bargain for
〕受诺人之作为或不作为。

由此可见，对价的功能主要有以下三点：

１证据功能，
即对价之存在是双方 当事人有意缔结一具有拘束力的契约之客
观证明，
它能于法院在决定哪些约定是当事人所意欲成 就者，
或哪些约定只是出
于赠与〔
gift
〕
、恩惠〔
gr atuity
〕
，而无强制履行之意思时，提供一可资判断之依
据；

２警示功能，
即对价具备后，
使契约得出强制履行之效果，
能促使当事人事
前谨慎为之，减少交易行为之瑕疵；

３政策功能，即对于经深思熟虑之交易行为，法律上采取 不加干涉之政策，
以确保交易之确定性。对价制度在英美法发展至今，由于受到基于公平、正义、
信赖的衡平法观点上产生的「允诺型不容否认」
〔
promissory estoppel
〕原理的创
设和不断发展之冲击，
其在契约法中的效力和地位已日见衰微。
允 诺无对价便无
法律约束力这一传统契约法理论，
已被虽欠缺对价但使一方当事人因信赖而受有< br>实质损害的允诺是具有法律拘束力的这一新契约法理论所取代。

例如美国
《统 一商法典》
〔
U.C.C.
〕
即在第
2
-
205< br>条中规定：
在货物买卖中，
在一定条件下可以承认没有对价的确定的要约。
在此 ，
有必要对对价与法国合同
法中的约因〔
cause
〕之联系与区别作一说明 。所谓约因，是指订立合同的动机
或目的，
最早人们将之解释为使契约法体现正义要求的要件，
即作为契约订立的
原因，
当事人或者是要使对方纯获利益以体现慷慨，
或者是 要用自己的行为交换
对等的价值以体现分配正义，
这是用以确定合同是否正当有效的唯一工具。
但在
唯意志论到来之际，
由于意思自治至高无上，
合意已经在根本上说明了契 约效力
的由来，
因而约因就降格为某种表面化的可有可无的东西，
不再是决定契约效力
的因素。
约因与对价在产生起源上有一定的联系，
其产生都是被用来给予合同效
力的确定一个统一的标准的；

但是在其作用方式上，约因与对价就有极大的区别。约因在< br>19
世纪前后，
在合同效力制度中经历了从积极地位到消极地位的转变；而对价自其产生 至今，
在区分诺言有无法律约束力，
即决定合同是否成立上，
一直发挥着积极作用，< br>虽
然
20
世纪以后对价原理因公平、正义等价值标准在合同效力制度中占有越来 越
重要的地位而遭到了贬抑，
但其整体上的作用发挥仍是约因制度所不能比的。
总之，对价制度与约因制度是不同的，

这种不同主要是由于英美法国家和大陆法国家对合同 的观念存在着差别：
英
美法国家认为，
合同就是交易，
交易带有经济性，合同的效力来自对方对经济利
益的互易，
因此体现这种经济利益互易的对价便是合同不可或 缺的要素；
而大陆
法国家却认为，
合同具有法定约束力的原因是道义上的，
而 非经济上的，
约因正
是用来从道义上衡量合同效力的标准。



Concept of consideration


Today we're going to learn about the concept of consideration by exploring the
classic chestnut of

a case Hamer versus Sidway
, which was decided by the New York
Court of Appeals in 1891. The facts of this family dispute are memorable.
William E.
Story Senior
promised to pay his nephew,
William E. Story The Second
, $$5,000 if the
latter
would
refrain
from
drinking,
using
tobacco,
swearing,
and
playing
cards
or
billiards
for
money
until
he
became
21
years
of
age
.
The
nephew
agreed
and
performed his promise. On his 21st birthday, the nephew requested the $$5,000 and the
uncle told him that he would have the money certain, but that it would be held from
him
until
the
uncle
thought
the
nephew
was
capable
of
taking
care
of
it.
After
the
uncle's death,
this suit was brought by the plaintiff, and the present appellant, Louisa
Hamer
. She was the assignee
代理人

of the nephew after several
mesne assignments
（转委托）
. Looks like it's spelled mez
-
nee, but it's pronounced mean and it means
intermediate assignments. So, that's
where the nephew would assign his
interests in
bringing this case to somebody else who ultimately assigned it to Louisa Hamer. The
other
party,
Franklin
Sidway,
was
the
executor
of
the
uncle's
estate
and
who
is
claiming that the state didn't have to pay the $$5,000.
The central issue in the case is
this,
is
forbearance
from
arguably
harmful
activity
like
drinking,
sufficient
consideration
to
support
a
contract?

Sidway
representing
the
uncle's
estate,
argued
that the uncle's promise to pay wasn't enforceable, because the agreement lacked the
necessary consideration. We need to understand the concept of consideration, because
consideration
is
a
traditional
prerequisite
先决条件

to
enforcing
a
contractual
promise.
Section 17 of the Second Restatement of Contracts provides,
of a contract requires a bargain in which there is a manifestation of mutual assent to
the exchange and a consideration.
By the way, was there a manifestation of mutual
assent
in
Hamer?
You
bet.
The
uncle
made
an
offer
and
the
case
says
the
nephew
assented.
From that moment on, both parties were bound to a contract, that is if there
is
sufficient
consideration.
Once
the
contractual
bell
rings,
the
nephew
would
have
breached the contract
created
by the exchange of promises if he drunk at any point
after promising. So, in Hamer versus Sidway, it's included in most contract case book
because
it
helps
teach
us
what
counts
as
consideration.
So,
to
begin
it's
helpful
to
think of consideration as what's given in return for someone else's promise.
It is the
quid given for the quo
（
status quo
现状
）

in the phrase quid pro quo. Sidway
argued
that
in return for the uncle's promise, the nephew hadn't given up enough because the
nephew had only promised to forebear from doing things that would have harmed him.
（编者注，不作为在特定情况下也可成立合同）


The
court
rejected
Sidway's
argument
and
found
there
was
a
sufficient
consideration,
A valuable consideration, in the sense of the law, may consist either in
some right, interest, profit or benefit accruing to the one party, or some forbearance,
loss,
or
responsibility
given,
suffered,
or
undertaken
by
the
other.

Under
Hamer
versus Sidway, a return promise to be a sufficient consideration doesn't have to be an
actual detriment
（
detriment

n.
损失；损害；不利益

指任何财产损失或人身伤害。在合同法中，亦可专 指合同对价的一
种。合同之对价既可以是金钱或其他有价物的给付，亦可以是受允诺人所受之损失或「损 害」
。
在此种意义上，该词意指受允诺人作为对允诺的回报，暂缓行使其本可行使的某些法定的 权利，
或放弃其本有权保有的物品，或实施其本有权不作为之行为。
）
,
it
is
enough
for
it
to
be
a
legal
detriment
to
the
promisee.
A
legal
detriment
means
promising
to
do
anything
that
you
didn't
have
to
do,
or
promising
to
forebear
from
doing
anything
that
you
might have legally done. The case is interesting because the uncle didn't receive any
obvious benefit,
and one might
plausibly argue
the nephew did
not
suffer an actual
detriment
from
the
performance
of
his
promise.
Thus,
the
court's
conclusion
that
a
legal detriment for purposes of consideration, can be very different from the common
sense meaning of what an actual detriment is.

The Hamer decision is that classic statement of the benefit
-
detriment conception
of consideration.
Under this definition, either an actual benefit to the promisor, or a
legal
detriment
to
the
promisee,
is
a
sufficient
consideration.
Because
it's
hard
to
factually establish whether the promisor, here the uncle, actually benefited from his
nephew's abstinence
节制
. The benefit
-
detriment conception of consideration almost
always
looks
to
whether
there
was
a
legal
detriment
.
One
way
of
establishing
a
promises
benefit
would
be
to
rely
on
the
economic
concept
of
revealed
preference.
The uncle must have benefited from the nephew's
abstinence, or the uncle wouldn't
have been willing to pay for it. But the revealed preference argument proves too much.
The consideration requirement is
meant
to
preclude legal
enforcement of
gratuitous
promises, promises for which there is no return promise. But anyone who promises to
give $$1,000 gratuitously to another, reveals a preference for that state of the world.
The
gratuitous
promise
无偿允诺
doesn't
reveal
that the promisor
gained anything
from the promisee's return promise when there isn't one. The problem with the legal
detriment conception of consideration is that savvy contractors could manipulate the
return
promise
to
qualify
as
a
legal
detriment.
For
example,
Jane
offers
to
pay
Joe
$$10,000 if Joe promises to inhale sometime in the next 60 seconds. Joe readily agrees
and
then
loudly
inhales.
Jane
then
refuses
to
pay,
and
when
Joe
sues
for
breach
of
contract,
Jane
has
the
audacity
to
argue
that
there
was
no
consideration
for
her
promise to pay $$10,000. The question here is under the benefit
-
detriment conception
of consideration, should Jane win? The answer to this quiz is no.
Joe had a legal right
to hold his breath for a minute, his promise to forebear from holding his breath is a
legal
detriment,
creating
consideration
for
Jane's
promise
to
pay
$$10,000.

Even
though courts wanted to avoid having to assess the messy factual question of whether
the promisor actually benefits
from
the promisee's return promise, t
he Joe and Jane
hypothetical show why the promisor benefit question is hard to avoid if we want to
stop
hold
your breath
types of shenanigans
恶作剧
. The
common law responded to
this
problem
in
cases
decided
after
Hamer
versus
Sidway,
by
replacing
the
early
conception of consideration as either a benefit to the promisor or a detriment to the
promisee, with what is known as the bargained for conception of consideration
. This
bargain for, or inducement conception of consideration can be seen in Section 71 of
the Restatement Second
of Contracts.
To constitute consideration, a performance or
return promise must be bargained for. Then Section Two tells us that a performance or
return
promises
bargained
for
if
it
is
sought
by
the
promisor
in
exchange
for
his
promise, and is given by the promise in exchange for that promise. In contrast to the
benefit
-
detriment
conception
of
consideration,
which
focuses
on
the
welfare
of
the
parties, the bargained for conception
focuses on the parties reasons for entering into
the
transaction
排除了戏谑行为
.

Although
the
benefit
-
detriment
framework
still
exerts considerable influence in England and Commonwealth countries, the bargained
for theory has largely won the day in the United States.

That said because contract law
is a product of judicial decisions, it has many authors and old rules die hard.
Although
the
bargained
for
theory
is
the
dominant
approach
to
consideration,
the
benefit
and
detriment
tests
still
figure
into
many
courts
holdings.
Section
79
of
the
Second
Restatement
states,

if
the
requirement
of
consideration
is
met,
there's
no
additional
requirement
of
a
gain
advantage
or
benefit
to
the
promisor
or
of
a
loss
disadvantage, or detriment to the promisee.
that some courts say, a legal detriment is sufficient even though there is no economic
detriment or other
actual loss, but
suggest
that it's more
realistic to
say simply that
there is no requirement of detriment anymore.

Another way of looking at the Hamer versus Sidway case,
is that the court isn't
really looking for a benefit or legal detriment, but simply for a bargained for exchange.

出自交易的目的
The uncle has offered to pay $$5,000 in exchange for the nephew's
clean living. Isn't it fairly clear that the return promise was sought by the promisor in
exchange for this return promise? After all, we don't think the uncle would have been
willing to make his promise to pay unless the nephew had made his promise in return.
Thus, the facts of the case if not the court's actual language provide support for the
Second Restatement's bargained for a rule that neither a benefit nor an actual of the
case reveals that the uncle in Hamer versus Sidway made two separate promises. One
on March 20th at a wedding anniversary, and the second one in a letter of February
6th,
1875.
The
court's
analysis
of
the
case
focuses
entirely
on
whether
the
first
promise
was
supported
by
consideration,
but
the
suit
is
more
I
think
accurately
premised on the second promise. The nephew's consideration for the uncle's second
promise
was
different.
The
nephew's
promise
not
to
drink
or
smoke
was
the
consideration
for the first
promise.
Even if
there was
no consideration
for that first
promise,
the
second
promise
might
well
be
supported
by
consideration.

For
the
second
promise,
the
nephew
gave
up
a
plausible
lawsuit
for
breach
of
the
first
promise in exchange for the uncle's promise to pay $$5,000 plus interests.
Giving up
the right to sue was arguably a settlement of a claim and separately enforceable. So,
what have we learned? Consideration is a requirement for a contractual promise to be
enforced.
Under
Hamer,
consideration
could
be
either
a
promisor
benefit,
or
more
likely
a
legal
detriment
to
the
promisee.
Finally,
because
of
the
problems
with
the
legal
detriment
test
being
manipulated,
modern
courts
tend
now
to
require
that
the
promisor's return promise was bargained for, that the return promise actually induced
the promisor to make his or her promise.




Promissory Estoppel


允诺的不容否定

允诺人相信对方将由于信赖其允诺作出某项实质性的作为或不作为，
所受允诺人确实因此作出某项作为或不作为，
且作出的允诺不得否定或取消，
以免给对 方造
成损害。

In
the
last
lecture,
we
talked
about
consideration
and
how
courts
look
for
a
bargain for exchange to determine whether a promise
creates an enforceable contract.
Today,
we're
going
to
introduce
another
basis
for
enforcing
promises
known
as
promissory Estoppel
.

The
doctrine
of
promissory
estoppel
has
its
roots
in
the
1898
Nebraska
case
called
Ricketts versus Scothorn
,
in which there was no bargain for exchange, but the
courts found a legally enforceable promise anyway.
The facts are these,
the plaintiff
in
the
Ricketts
case,
Katie
Scothorn

received
a
written
promise
from
her
grandfather,
John C Ricketts that he would pay her,
-
demand $$2,000 to be at six percent per
annum
fixed
out
something
that
you
have
not
got
to
work
anymore.
and
that
none
of
my
grandchildren work and you don't have to. A year later with the consent and assistance
of
her
grandfather,
she
got
a
new
job.
Two
years
later,
the
grandfather
died
having
paid one year's interest on the note, and having expressed regret that he had not been
able
to
pay
the
balance.
Ms.
Scothorn
then
sued
the
executor
of
the
grandfather's
estate,
Andrew D Ricketts
for the balance.
So, was there consideration in this case?
No, not this case
.
The grandfather promised to give his granddaughter the money, but
he did not ask for anything in return nor did she promise anything in return.
Although
she
quit
her
job
after
he
implied
that
she
would
not
need
to
work
anymore,
her
grandfather did not condition the money on her quitting her job. In the words of the
court, the plaintiffs grandfather gave her the note as a
gratuity
消费，
酬金

and asked
for
nothing
in
return,
and
the
abandonment
by
Ms.
Scothorn
over
position
as
a
bookkeeper
was
altogether
voluntary.
Therefore,
the
note
was
not
given
in
consideration
of
the
plaintiff
pursuing
or
agreeing
to
pursue
any
particular
line
of
conduct.
The
trial
court
found
for
the
plaintiff
and
the
instant
court
affirmed
not
withstanding the lack of consideration.
So, the central issue on appeal is this, despite
the lack of consideration, is the grandfather's promise still legally enforceable?
As we
just discussed, the court found there was no consideration in this case. So therefore, if
consideration is absolutely necessary for a binding promise, the grandfather's promise
would
not
be
legally
enforceable.
However,
there
have
always
been
traces
of
an
easiness
respecting
a
strong
consideration
requirement.
Much
of
the
dissatisfaction
relates
to
transactions
such
as
those
involved
in
rickets
大错

where
a
promise
induces
substantial
and
bargained
for
reliance
on
the
part
of
the
promisee.
Do
you
think it would be fair if the grandfather, or in this case his estate, could later fail to
perform his promise after his granddaughter relied on that promise and quit her job?
The
court
didn't
think
it
would
be
fair.

The
court
reason
that
the
grandfather
intentionally influenced the plaintiff to alter her position for the worse on the faith of
the note being paid when due. So,
it would be grossly inequitable to permit the maker
or his executor to resist payment on the ground that the promise was given without
consideration.

To
get
around
the
consideration
requirement,
the
court
invoked
the
doctrine
of
equitable
estoppel.
The
court
conceded
that
the
promise

Being
given
without any valuable consideration was nothing more than a promise to make a gift in
the future, and that ordinarily such promises are not enforceable.

held that a promisor who promises to make a gift maybe a stopped that is stopped or
barred
from
denying
the
existence
of
the
consideration

if
the
promisee
changes
her
position
in
reliance
on
the
promise.

In
other
words,
even
though
the
grandfather's
promise to his granddaughter was not supported by consideration, the executor of the
estate was stopped from arguing that the promise lacked consideration. Because his
granddaughter had quit
her job
in reliance on that
promise. The
court supported its
position with precedent, past courts have held that,
church
college
or
other
like
institution
upon
the
faith
of
which
money
has
been
expended or obligations incurred, could not be successfully defended on the grounds
of
a
want
of
consideration

But
those
courts
found
an
enforceable
promise
for
a
different reason.
Those courts held that,
liability by the
donee
受赠人
on the faith of the promise, constitutes a valuable and
sufficient consideration
no consideration, but stopped the defendant from raising that defense.

This
use
of
estoppel
was
unusual
for
two
reasons.
First,
equitable
estoppel
traditionally only
applied to
representations
of
facts.
If
you
represent
it
to
a patient
that you are a specialist, you can be estopped from later denying it in court, even if
you in fact are not a specialist. Second, the doctrine of
equitable estoppel
衡平法的
禁反言

is
commonly
understood
to
provide
a
shield
not
a
sword.
Estoppel
is
a
defense that prevents another from denying certain facts.
In Ricketts, the doctrine is
applied as a sword to support a new cause of action that would otherwise not exist.
Was the Ricketts court simply confused about the meaning of equitable estoppel? Well,
one
might
instead
read
the
opinion
as
a
good
example
of
judicial
craft
under
the
common
law.
The
court
observed
a
form
of
injustice
that
the
law
might
remedy,
finding no clear legal grounds at hand and facing the bar against enforcement under
the
doctrine
of
consideration.
It
took
a
neighboring
legal
category,
estoppel
and
stretched
it
a
bit
to
do
new
work.
This
is
the
process
of
creative
destruction
where
courts
sometimes
do
injury
to
an
existing
concept
to
help
redeploy
it
in
another
context. It's only later that courts feel comfortable giving the new creation a separate
and new name. The modern term, Promissory Estoppel
允诺的不容否定

dates from
Samuel Willistons
1920 previous
on
contract
law. Williston,
carefully
studied
cases
and convinced himself that the consideration doctrine could not explain all the case
outcomes. In his treatise, Williston collected a number of cases including Ricketts in
which
reliance
seemed
to
be
doing
the
job
of
consideration.
It
was
a
substitute
for
consideration.
Recognizing
the
differences
between
the
well
-
established
doctrine
of
equitable
estoppel
and
the
doctrine
invoked
by
this
collection
of
cases,
Williston
suggested a new name for the latter, Promissory Estoppel. Williston later served as the
reporter on the first restatement of contracts and included a new section, s
ection 90
for
promissory
estoppel
.
The
section's
number

remained
the
same
in
the
second
restatement
, which now reads a promise which the promisor should reasonably expect
to
induce
action
or
forbearance
on
the
part
of
the
promisee,
or
a
third
person,
and
which does induce such action or forbearance is binding if injustice can be avoided
only by enforcement of the promise. The remedy granted for breach may be limited as
justice
requires.
Section
90
is
one
of
the
few
sections
of
the
restatement
that
you
should commit to memory as synonymous with promissory estoppel.

You can see that it has
three elements
.

The promisory should have expected her promise to induce reliance,

the promise must actually induce reliance,

and injustice can be avoided only by the promises enforcement.


If the plaintiff in Ricketts v. Scothorn had not quit her job after her grandfather
promised
her
$$2,000
plus
interest,
would
the
promise
had
been
binding
under
the
theory of promissory estoppel? Nope.
If Ms. Scothorn did not rely on the promise to
her detriment, she would not satisfy one of the requirements for promissory estoppel.

So,
the
promise
would
not
be
binding
under
that
doctrine.
The
court
awarded
Ms.
Scothorn the $$2,000 face amount of the promissory note plus interests. This put Ms.
Scothorn in the position she would have been in if the promise had been performed.
When a court does this, we say that the court awards expectation damages because the
court puts the plaintiff in the position she would expect to be in when the promise was
made. But section 90 permits courts to limit the remedy as justice requires. Relying on
her grandfather's promise, Ms. Scothorn quit her job which paid $$10 a week for a year
before taking another job.
In other words, she sacrificed at most $$520 when she relied
on the promise.
Therefore, when justice be served, if damages were limited to $$520, if
the court did so, we would say that
the court awarded reliance damages
信赖利益损
失
. Reliance damages seek to make the promisee whole by compensating her for the
cost
she
incurred
in
relying
on
the
promise,
instead
of
putting
the
promisee
in
the
position she would have been in had the promise been fully performed.

Grant
Gilmore
famously
predicted
in
a
book
called

of
Contracts
that
section 90 would swallow contracts. That promisees would use promissory estoppel
claims under section 90 instead of breach of contract claims to enforce their promises.
But Gilmore's prediction has not come true. Promisees routinely opt to sue for breach
of
contract
because
it's
a
more
certain
basis
for
liability,
avoiding
all
these
considerations
of
what
justice
requires,
and
without
potentially
having
limited
damages. So, let's recap.
Sometimes consideration is not needed to enforce a promise
.
If a promisee reasonably relies on a promise and changes her position accordingly, the
promise may be binding even without consideration if justice so requires. However,
the remedy granted for the breach may be limited to compensate the promisee for her
reliance, and the court need not award the full value of the promise.
法院不需要判决
全额补偿。




Bolin Farms v. American Cotton Shippers Association


Today
we
turn
to
one
of
two
introductory
cases
where
Promisors
who
entered
into seemingly valid contracts attempt to avoid liability for not following through on
their
promises.
Today's
case,
Bolin
Farms
versus
American
Cotton
Shippers
Association, involves a Futures Contract for the sale of cotton. In the first few months
of
1973,
11
cotton
farmers
in
Western
Louisiana
among
them
Bolin
Farms,
signed
contracts
with
American
Cotton
Shippers
to
sell
cotton
grown
on
their
farms
at
harvest time that year.
Those contracts locked in prices of between $$0.2941 per pound
while the market price of cotton at that time range between $$0.2832 per pound.
But
commodity markets can change quite rapidly. By the time the farmers were harvesting
their cotton in September,
cotton prices had more than doubled to around $$0.80 per
pound.
The deals they had gotten before of up to $$0.41 per pound no longer seem so
good. So the farmers sued for


So
that
they
could
sell
for
a
better
price
they
bargained
for.

The
suit
came
before
the
Federal
District
Court
for
the
Western
District
of
Louisiana
and
the
Court
had
to
decide
whether
future
contracts
remain
valid
even
when
the
market
price
becomes
very different from the contract price.

Common
law
court
opinions
have
changed
over
time
about
whether
changed
circumstances
情势变更

can affect the parties obligations under a contract. The old
rule is that pacta sunt servanda
协议必须遵守
, agreements
are to be honored. Most
famously the English Court of King's
Bench said in
paradigm
V Jane in 1647, that
when the party by his own contract creates a duty or charge upon himself, he's bound
to
make
it
good.
If
he
may
not
withstanding
any
accident
by
inevitable
necessity
because
he
might
have
provoked
against
it
by
his
contract.
That
is,
no
matter
how
circumstances have changed since the contract was signed.
If a party cannot fulfill her
promise, she must compensate the other party to the contract.


The rules have become somewhat more
lenient
宽大的，
仁慈的

over time. One
typical approach is found in section 2
-
615 of the Uniform Commercial Code, which
says non
-
delivery by a seller is not a breach of his duty under a contract for sale
if
performances
agreed
has
been
made
impracticable
by
the
occurrence
of
a
contingency the non
-
occurrence of which was a basic assumption on which the
contract was made.
如果约定的履行因偶然性的发生而变得不可行，
则该偶然性
的不发生是订立合同的一个基本假 设。
If the parties made their agreement based on
an assumption about the world that turns out to be false, that could relieve a party of
the responsibility to follow through on the promise.
But possible changes in the world
that parties were aware of when they form the contract will not invalidate the contract.
Note, that the Uniform Commercial Code itself does not apply in this case. Louisiana
is the one state that is not adopted Article two of the UCC. Generally,
Louisiana laws
often different from that of other states because it retains elements of the French Civil
Code law from when it was a French colony before the Louisiana Purchase of 1803.
In
the
case
of
Bolin
farms,
judge
Hunter
found
it
quite
easy
to
determine
that
the
contract is valid.
The entire purpose of a Futures Contract is to
hedge
障碍

against
possible
future
changes
in
the
price
of
the
underlying
good
or
commodity
.
The
farmers entered into the contract, knowing that if the price of cotton fell, they would
make money on the contract because they could sell at the agreed upon future price
instead of the market price. They also knew that if the price of cotton rose, they would
miss out on a higher market price or spot price at harvest time
. In signing the contract,
they locked in a particular future price foregoing both the possible future gains and
future losses. They cannot now abrogate their agreements simply because it turns out
to be less favorable than selling at the higher spot market price. They would not have
wanted the American Cotton Shippers Association to do that if the price isn't fallen.
I've
included
this
case
to
show
you
that
not
all
contract
disputes
are
difficult.
The
result
in
Bolin
farm
accords
with
most
people's
common
sense.
So,
here's
a
quiz.
Suppose that instead of rising to 80 cents per pound the price of cotton had fallen to
10 cents per pound. Now, the American Cotton Shippers Association wants to have
the contract declared
void
无效

so they can buy cheaper cotton elsewhere. How will
the court rule? Well, just as the farmer could not evade their obligation to sell their
cotton
at
the
agreed
upon
price
when
the
market
price
rose,
the
American
Cotton
Shippers Association could not evade its obligation to buy the farmers cotton at the
agreed upon price when the market Price falls.
So the contract will be held to be valid.

The
parties
are
mutually
bound
to
this
reciprocal
bargain.
But
this
kind
of
price
mutuality is not a mandatory part of all contracts. Option contracts explicitly give the
option holder price protection, but the option of trading at a more favorable spot price.
Thus
the
farmers
might
have
merely
purchase
put
options
to
sell
their
cotton
at
particular forward prices, but they would have to pay for that
asymmetric
不对称的

option.
From
Bolin
farms,
we
have
learned
about
the
impact
change
circumstances
can have on a contract. Will come back to this when we study impracticability again.
The general rule remains the same as it's been for centuries. Parties to a contract are
responsible fulfilling their promises or compensating the other side if they breach. We
saw that this has been loosened somewhat by the UCC Section 2
-
615 which allows
parties
to
evade
their
promises
if
fundamental
assumptions
underlying
the
contract
turn out to be impracticable. However, since losing money on a Futures Contract as
happens in Bolin farms
is certainly not the kind of thing that is enough to invalidate
the farmers obligation.
By the way, the farmers also raised the question about whether
they were somehow victims of buyer insider information, superior information. The
court
rejected
the
allegation
as
a
factual
matter.
Cotton
buyers
don't
have
much
opportunity to learn about weather or the boll weevil infestation ahead of time. But
we'll be returning to the question of whether buyers or sellers have a duty to disclose
superior
information
later
in
the
course,
especially
when
we
discuss
the
Supreme
Court's decision in Laidlaw.




Ex Ante and Ex Post
事前与事后


Ex
Ante
and
Ex
Post,
mean
respectively
from
before,
and
from
after.
The
Ex
Ante
and
Ex
Post
perspectives,
are
always
defined
with
regard
to
some
event
that
might
occur, or has
occurred.

For example, think about
how
you should respond to
learning about a cheating spouse. The Ex Ante perspective, asks before the cheating
has occurred, before the fact, what will be a spouse's best response to cheating? From
this perspective, you might be more likely to want to threaten harsh consequences, to
deter
your spouse from
cheating.
In contrast,
the Ex Post
perspective asks
after the
cheating has occurred, after the fact. What is the best response? Ex Post, you might be
drawn to less harsh reactions, since it's no longer possible to deter what already has
occurred. Ex Ante, we might want to deter unauthorized immigration with the threat
of punishment, and
deportation
驱逐
. Ex Post, we might prefer a path to citizenship.

These
perspectives
resonate
in
different
ways
with
our
systems
three
core
lawmakers; juries,
judges,
and legislators. Juries
are placed in
the Ex Post
position.
They are assembled to adjudicate what should happen to litigants after the supposed
wrong
has
occurred.
The
quality
of
mercy
more
often
resonates
共鸣

with
the
Ex
Post perspective. In contrast, judges sit and announce rules that govern as precedent,
the future parties as well as the current litigants before them, and are more likely to
adopt rules that makes sense from the Ex Ante perspective.

For example, Ward Farnsworth, in talking about the Ex Ante, Ex Post distinction,
uses an Illinois Supreme Court decision concerning a bank thief who went into a bank,
put a gun to the head of an innocent customer, and demanded that a bank teller give
the
thief
$$5,000
or
the
thief
would
kill
the
customer.
The
teller
refused,
the
thief
executed
the
customer,
and
the
customer's
estate
sued
the
bank.
The
Ex
Post
perspective here focuses on the bank's behavior after the threat has been made. To get
used
to
focusing
in
on
the
event
at
issue,
you
should
become
comfortable
using
phrases
like
Ex
Post
the
threat.
Was
the
bank's
behavior
reasonable?
Given
that
a
threat has occurred, Ex Post of the threat, it seems unreasonable for the teller as the
bank's
representative
to
refuse
the
demand.
After
all,
a
life
is
more
valuable,
much
more
valuable
than
$$5,000.
But
the
Illinois
Supreme
Court,
in
deciding
the
case
in
favor of the bank, took much more of an Ex Ante perspective.
Looking at the policy,
Ex Ante the threat, the court reasoned, ''In this particular case, the result may appear
to be harsh and unjust. But for the protection of future business invitees, we cannot
afford to extend to the criminal another weapon in his
arsenal
兵工厂
''. From the Ex
Ante
perspective,
denying
liability
reduces
the
criminal
arsenal
because
future
criminals
cannot,
by
killing
customers,
threaten
to
impose
liability
on
banks
if
the
banks refuse to give the robber money. Denying liability in this case, might
deter
阻
止

future
bank
robberies,
and
thus
protect
future
business
invitees,
that
is,
future
customers.
Judges
are
unique
in
our
legal
system
because
their
job
focus
them
to
engage
in
a
mixture
of
Ex
Post
and
Ex
Ante
decision
-
making.
Deciding
the
case
before them, as well as creating precedence that will influence the decision in future
disputes.
Indeed at
times,
judges will announce
rules that apply only to
perspective
disputes.
Meaning
that
they
apply
one
rule
to
the
litigants
before
them,
but
and
a
different
rule
will
apply
to
the
future
litigants.
Legislators
and
regulators
are
positioned
dominantly
to
promulgate
rules
that
will
apply
prospectively,
and
thus
naturally
are
likely
to
take
the
Ex
Ante
perspective,
hence
legislators
are
keenly
attuned
to
Ex
Ante
deterrence
arguments.
But
even
here,
legislatures
might
pay
attention
to
how
stiff
criminal
penalties
have
led
to
high
fiscal,
and
social
costs
of
mass incarceration. Even legislatures might therefore take Ex Post considerations into
account, even when choosing prospective rules.

In contractual settings, there is often more possibility of agreement, Ex Ante, the
creation of the contract than Ex Post its formation. For example, imagine a far fetched
hypothetical. You own Walton's mountain, and have entered into an agreement to sell
timber
to
cut
up
Industries,
one
of
five
windmills.
The
standard
mill
contract
calls
upon you to cut the timber and float the logs down the river to the mill. You've chosen
to
contract
with
Cut
Up
Industries,
even
though
it
is
further
downstream,
and
therefore
harder
to
get
the
logs
downstream,
because
it
has
offered
you
by
far
the
most money for your timber, $$10 per cubic foot. At the appointed time, you cut and
float the logs downstream, and you tender the logs to Cut Up Industries. But now Cut
Up is saying, they don't have to pay you because, ''The sun is in their eyes


喝多了
To
be
drunk
''.
This
somehow
makes
it
more
difficult
for
them
to
mill
your
timber.
They're only willing to pay you three dollars per cubic foot much lower than any of
the other mills offered, and much lower than what Cut Up promised to pay you. But
because Cut Up is further downstream than any of the other mills, it's not feasible to
take your logs to another mill, and you reluctantly accept the three dollars but sue Cut
Up for breach of contract. Cut Up defends by arguing that ''The sun was in their eyes''
and that made buying your logs impractical. The court now needs to decide whether
to
recognize
this
crazy
sun
in
the
eyes
contractual
defense.
Think
about
the
likely
briefs that the court will receive from you, from Cut Up, and from your two respective
industry groups. It's easy to imagine that Cut Up will argue in favor of such a defense,
and that you will argue against it. After all, there's money on the line, and each of you
would prefer to have it. But what about the respective industry groups? What is the
Mill
Association,
and
the
Timber Association
likely
to
argue
in
their
friends
of
the
court amicus briefs? Well, the Timber Association, like you, will argue that this sun in
the
eyes
defense
makes
no
sense.
But
the
surprise
is
that
the
Mill
Association,
the
association representing other Mills, might very well join them. While some students
will think that the Mill Association will side in litigation with one of their members,
the Mill Association has multiple members to worry about.
The mills, who want to
enter into future milling agreements with timber owners, might not want the court to
recognize
a
sun
in
the
eyes
defense.
If
this
defense
is
inefficient,
then
the
defense
might
reduce
the
joint
gains
of
trade.
It
might
hurt
mill
owners.

More
concretely,
timber
owners
might
start
demanding
that
mills
pay
in
advance,
and
paying
in
advance, in turn, might subject mills to the risk that the logs floated down streams will
be poor quality. The litigants making arguments about a past dispute are naturally in
the Ex post position, and unavoidably in opposition about who should bear the cost of
particular
risks.

But
the
trade
association
cares
more
about
the
future
parties,
who
were in the Ex ante position.
From the Ex ante position, parties are much more likely
to embrace legal rules that enhance the joint gains of trade. When we talk about what
the
future
parties
want,
we're
essentially
taking
the
Ex
ante
perspective.
Ex
ante
perspectives are particularly prized in law and economics. One of the worst criticisms
a law and economic professor can hear is to have someone point out that her analysis
failed
to
consider
what
is
efficient
from
the
Ex
ante
perspective.
While
law
and
economics uses the Ex ante perspective to analyze efficiency, in another lecture, I'll be
talking about how John Rawls used a more radical Ex ante perspective, what is called
being behind the veil of ignorance, to analyze equity. Let me end with a cautionary
tale about thinking from the
Ex ante perspective
. Imagine that Professor Heart has just
arrived
at
Truth
University
for
a
year
-
long
visit.
He's
out
to
dinner
with
Professor
Econohead
who
mentions
that
she
is
planning
to
sell
her
eight
-
year
-
old
family
car
when the school years begins. She figures she can take it down to the university quad,
and
quickly
be
able
to
sell
it
to
an
incoming
student
with
no
muss
or
surface
for
$$2,500, which is $$500 less than its Blue Book value. Professor Heart interjects that he
is
interested
in
buying
the
car,
and
asks
if
he
can
have
a
mechanic
inspect
the
car.
Econohead is reluctant. She says,
me if you find anything wrong with it. You don't have to buy it for 2,500. Just promise
not to tell me why you're not buying it.
his mechanic. The next day, Professor Heart calls Professor Econohead, and they have
the
following
conversation.
Heart,

sorry
but
my
mechanic
found
something
wrong
with
your
car.
Econohead,

tell
me.
Heart,

a
safety
problem.
Econohead,
conversation,
should
Professor
Econohead
be
liable
if
he
sells
the
car
without
disclosing
the
safety
problem,
and
the
buyer
is
subsequently
hurt
by
the
latent
condition? The answer to this question is a pretty straightforward yes.
You sold a car
with knowledge that it might have a safety problem, you're going to have a liability.
But a harder and more interesting problem is to think about the legal responsibility of
Professor Heart. Professor Heart promised not to tell if a mechanic found something
wrong.

How
should
the
law
treat
the
breach
of
that
confidentiality
promise?
One
response
is
to
hold
that
the

non
-
disclosure
agreement
should
be
unenforceable
as
against public policy.
不披露协议不得违反公共秩序

Professor Heart should be free
to disclose any negative information without risking legal liability. But this result does
not
help
make
the
world
better
when
judged
from
the
Ex
ante
perspective.
If
the
non
-
disclosure
agreement,
if
non
-
disclosure
agreements,
which
basically
said
that,
remember, Econohead would allow his car to be inspected only if Heart promised not
to
disclose
negative
information,
if
that
kind
of
non
-
disclosure
agreement
is
unenforceable, then Econohead would not have lent her car. She would have simply
sold
the
car
to
some
student
on
the
quad,
who
would
be
in
the
same
situation
of
driving the car without knowing about the safety defect. It might be wiser to enforce
the
non
-
disclosure
agreement,
and
to
hold
Professor
Heart
liable
if
he
failed
to
disclose a safety defect. If the mechanic found a safety problem, Heart would have to
either pay a small amount, roughly equal to the cost of repairing the safety problem
for
breaching
the
promise
of
non
-
disclosure,
or
pay
a
much
larger
amount
for
withholding the valuable safety information. Enforcing the non
-
disclosure agreement
might
thus
induce
Heart
to
disclose
and
pay
Econohead's
small
damages.
Notwithstanding
the
possibility
of
liability,
Heart
might
still
enter
into
this
kind
of
agreement.
Heart
would
get
the
benefit
of
knowing
whether
the
car
was
in
good
condition, and might not face any liability if the mechanic said that the car was fine or
only
found
non
-
safety
problems,
such
as
the
radio
being
broken.
Ex
ante
analysis
might
suggest
that
enforcing
the
non
-
disclosure
agreement,
and
coupling
breach
damages
with
higher
tort
damages
for
non
-
disclosure
of
safety
concerns,
would
produce a more efficient and safe equilibrium.
But very few people are willing to go
this
far
in
embracing
Ex
ante
thinking.
Absolving
the
bank
for
the
teller's
unwillingness
to
pay
off
for
a
money
or
her
life
threat
is
one
thing,
but
holding
someone liable for non
-
disclosure of a safety concern is a bridge too far. Thus, while
law and economics people tend to strongly prefer the Ex ante analysis as a descriptive
matter, our legal regime in different context displays a mixture of Ex ante and Ex post
analysis in
its
decision
making.
Here's a final and much simpler puzzler for
you to
ponder from the Ex post and Ex ante perspective. If the purpose of exams is to get
students to study the material, then on the day of the exam, after the studying is done,
should professors make exams optional?