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Scott J. Burnham
Scott J. Burnham is the Curley Professor of Commercial Law at Gonzaga University School of Law. For 30 years, he has taught contracts at law schools internationally and throughout the US. He is also a prolific writer on legal topics and a consultant on contract drafting for numerous businesses.
Articles & Books From Scott J. Burnham
Cheat Sheet / Updated 02-23-2022
To be successful in contract law, you need to know the rules and be able to analyze fact situations in the light of those rules. This Cheat Sheet introduces some of the most important concepts in contract law — such as contract formation, promises enforceable because of reliance and restitution, the statute of frauds, the parol evidence rule, and damages for breach of contract — and boils them down for easy reference.
Article / Updated 05-05-2021
Every contract is incomplete, and the courts find that some contract terms are implied even if the parties do not express them. These implied terms include the following:
Terms supplied by course of performance, course of dealing, and trade usage
The obligation of good faith
A standard of quality, ca
Article / Updated 05-05-2021
Parties frequently modify (change the terms of) the contract after they make it. Technically, a contract modification is a new contract requiring consideration. When one party promises to give something up and the other doesn’t, courts sometimes invoke the pre-existing duty rule to determine whether the modification is enforceable.
Article / Updated 05-05-2021
When an unforeseen event makes performance of a contract obligation impracticable (impossible or unrealistic), the seller may claim that its nonperformance is excused. To analyze a claim of impracticability, determine whether all of the following apply:
The event occurred after the contract was made.
Performance became impracticable because of the event.
Article / Updated 05-05-2021
According to the rule of the expectancy, a non-breaching party is entitled to damages that put the non-breaching party in the position it would’ve been in had the contract been fully performed. To use the rule of the expectancy to calculate damages for breach of contract, take the following steps:
Describe what the non-breaching party would’ve had if the contract had been performed.
Article / Updated 05-04-2021
A contract defense is any legal challenge to a contract’s enforceability. Following are common contract defenses:
Illegality: The agreement itself is illegal or violates public policy.
Unconscionability: The agreement is so one-sided that it shocks the conscience of the court.
Mental incapacity or incompetence: One of the parties had a mental illness or incapacity at the time of contract formation.
Article / Updated 05-04-2021
A third party is a person who’s not a party to the contract. Common law recognizes three significant third parties:
Third-party beneficiary: If the parties to the contract intend a third party to be able to sue for enforcement of a promise made in the contract, then that that person is a third-party beneficiary.
Article / Updated 03-26-2016
Parol evidence is evidence of terms or understandings extrinsic to (not included in) a written contract. Courts follow the parol evidence rule to determine whether the evidence is admissible. Here’s the rule itself:
Once the parties have reduced their agreement to a writing that they intend to contain the final and complete statement of their agreement, then evidence of terms that would supplement or contradict it are not admissible.
Article / Updated 03-26-2016
The plaintiff in a breach of contract case faces an uphill battle in proving the case. Any damages the court awards are limited by the following considerations:
Causation: The plaintiff must prove that the breach caused the loss.
Certainty: The plaintiff must prove the amount of damages to a reasonable certainty.
Article / Updated 03-26-2016
If you’re faced with the question of contract formation in your legal dealings, take the following three steps to find the obligation in the parties’ interaction:
Look for a bargained-for contract — an exchange that has the three essential elements of offer, acceptance, and consideration.
Look for a claim based on reliance (also known as promissory estoppel), meaning that one party reasonably changed his position due to the other party’s promise and lost something as a result.
