CHAPTER 53

Contracts
Introduction
■ The two fundamental concepts considered the cornerstones of business relationships are
contracts and torts.
■ Although both involve the concept of duty, creation of the duty differs in a manner that
is important to business.
– The parties create contract duties through a bargaining process.
■ The key element in the process is control – individuals are in control of a situation
because they have the freedom to decide whether to enter into a contractual
relationship.
– Tort duties are obligations that the law imposes.
■ Despite the obvious difficulty in controlling tort liability, knowledge of tort theory is
important in strategic planning and risk management.
Contract Defined
■ The legal definition of contract is formalistic – a contract is a promise or a set of
promises for the breach of which the law gives a remedy, or the performance of which
the law in some way recognizes as a duty.
■ The UCC states that contract means a total legal obligation which results from the
parties’ agreement as affected by this Act and any other applicable rules of law.
■ It is essentially a legally enforceable promise.
Sources of Contract Law
■ The most important sources of contract law are common law and statutes:
■ Case (Common) Law and the Restatement of Contracts:
– Contract law was forged in the courtrooms, and thus, by the twentieth century, the
mass of case law was too extensive for efficient use.
– Disturbed by the profusion of cases and the uncertainty of the law, a group of
prominent American judges, lawyers and teachers drafted the Restatement of the Law
of Contracts, completed in 1932. A revision – The Restatement (Second) of Contracts
– was undertaken in 1946 and completed in 1979.
– The restatements are detailed analyses of the decided cases in the field, made with an
eye to determining the various principles that have emerged from the courts, and to
the extent possible, declaring the law as the courts have determined it to be.
– The Restatements have won respect in courts and have been cited in innumerable
cases.
– Common law contract principles govern contracts for real estate and for services.
■ Statutory Law: The Uniform Commercial Code:
– In one area, the common law has been superseded by an important statute – The
Uniform Commercial Code, especially Article 2, which deals with the sale of
goods.
– The UCC is a model law developed by the American Law Institute and the
National Conference of Commissioners on Uniform State Laws. It has been
adopted in one form or another in all fifty states, the District of Columbia, and the
American territories.
– Before the UCC was written, commercial law varied, sometimes greatly, from state
to state, despite some uniform laws existing. This was a nuisance and a serious
impediment to nationwide business.
– Initial drafting of the UCC began in 1942 and was ten years in the making,
involving the efforts of hundreds of practicing lawyers, law teachers, and judges. A
final draft was endorsed by the American Bar Association and published in 1951.
– As more states adopted the code, non-uniform provisions continued to be enacted
by the states. More changes were made to the code, until the current version was
enacted in 1978.
■ The basic framework of the UCC:
– The UCC covers most commercial transactions. While the making of a contract for the
sale of goods, the signing of a check, the endorsement of a check, the shipment of goods
under a bill of lading, and so on, may be considered as separate transactions, the UCC
presupposes that each of these transactions is a facet of one single transaction – the
sale and payment for goods.
– The Code deals with the phases of this transaction from start to finish. These phases are
organized in Articles, as follows:
■ Sales (Article 2),
■ Commercial Paper (Article 3),
■ Bank Deposits and Collections (Article 4),
■ Letters of Credit (Article 5),
■ Bulk Transfers (Article 6),
■ Warehouse Receipts, Bills of Lading, and Other Documents of Title (Article 7),
■ Investment Securities (Article 8),
■ Secured Transactions; Sales of Accounts and Chattel Paper (Article 9).
Three Basic Contract Types and Sources
of Law
■ The primary sources of law for the three basic types of contracts are:
– Real estate: common law,
– Services: common law,
– Sale of goods: UCC.
■ Common law and UCC rules are often similar.
– Both require good faith in the performance of a contract.
■ However, there are two general differences between them that are worth noting:
– The UCC is more liberal than the common law in upholding the existence of a contract.
– The common law of contracts applies to every person equally, while under the UCC,
merchants occasionally receive special treatment.
■ Merchants are persons who have special knowledge or skill who deal in the goods involved in
the transaction.
The Convention on Contracts for the
International Sales of Goods (CISG)
■ CISG was approved in 1980 at a diplomatic conference in Vienna. The Convention has been
adopted by several countries, including the US.
■ The Convention is significant for three reasons:
– The Convention is a uniform law governing the sale of goods – an international Uniform
Commercial Code.
■ The major goal of the drafters was to produce a uniform law acceptable to countries with
different legal, social, and economic systems.
– Although provisions in the Convention are generally consistent with the UCC, there are
significant differences.
■ Under the Convention, consideration is not required to form a contract and there is no Statute of
Frauds requirement.
– The Convention represents the first attempt by the US Senate to reform the private law of
business through its treaty powers.
■ The Convention preempts the UCC if the parties to contract elect to use the CISG.
Basic Contract Taxonomy
■ In general, contracts are classified along these dimensions:
– Explicitness – concerned with the degree to which the agreement is
manifest to those not party to it.
– Mutuality – takes into account whether promises are exchanged by
two parties or only one.
– Enforceability – considers the degree to which a given contract is
binding, and,
– Degree of Completion – considers whether the contract is yet to be
performed or the obligations have been fully discharged by one or
both parties.
Explicitness
■ Express Contract:
– An express contract is one in which the terms are spelled out directly.
– The parties to an express contract, whether oral or written, are conscious that they
are making an enforceable agreement.
■ Implied Contract:
– An implied contract is one that is inferred from the actions of the parties.
– Although no discussion of terms took place, an implied contract exists if it is clear
from the conduct of both parties that they intended there be one.
■ Contract implied in law or quasi contract:
– Both express and implied contracts embody an actual agreement of the parties.
– A quasi contract, by contrast, is an obligation said to be imposed by law in order to
avoid unjust enrichment of one person at the expense of another.
– In fact, a quasi-contract is not a contract at all – it is a fiction that the courts created
to prevent injustice. The law implies a contract for the value of the service or benefit
provided.
Mutuality
■ The garden-variety contract is one in which the parties make mutual promises.
– Each is both a promisor and a promise – each pledges to do something and each is
the recipient of such a pledge.
– This type of contract is called a bilateral contract.
■ Mutual promises are not necessary to constitute a contract.
■ Unilateral contracts, in which only one party makes a promise, are equally valid but
depend upon performance of the promise to be binding.
– One party never makes a promise, but by actually performing, he/she makes the
other party liable to pay.
Enforceability
■ Not every agreement between two people is a binding contract.
■ An agreement that is lacking one of the legal elements of a contract is said to be void – that is, not a contract
at all.
– An agreement that is illegal is void.
– Neither party to a void contract may enforce it.
■ A voidable contract is one that is unenforceable by one party but enforceable by the other.
– Ex: a minor may avoid a contract with an adult – the adult may not enforce the contract against the
minor if the minor refuses to carry out the bargain.
– But the adult has no choice if the minor wishes the contract to be performed.
■ Ordinarily, the parties to a voidable contract are entitled to be restored to their original condition – a return to
the status quo ante.
■ A voidable contract remains a valid contract until it is voided.
– Ex: A contract with a minor remains in force unless the minor decides he does not wish to be bound by
it.
– When the minor reaches his majority, he may ratify the contract, at which point it is fully enforceable
and no longer voidable.
■ An unenforceable contract is one that some rule of law bars a court from enforcing.
Degree of Completion
■ An agreement consisting of a set of promises is called an executory contract before
either promise is carried out.
– Most executory contracts are enforceable.
■ If one promise or set of terms has been fulfilled, the contract is partially executed.
■ A contract that has been carried out fully by both parties is called an executed contract.
Contract Formation
■ Although it has countless wrinkles and nuances, contract law asks two principal
questions:
– Did the parties create a valid, enforceable contract?
– What remedies are available when one party breaks the contract?
■ The answer to the first question is not always obvious – the range of factors that must be
taken into account can be large and their relationship subtle.
■ Whether a valid enforceable contract has been formed depends in turn on whether:
– The parties reached an agreement (offer and acceptance).
– Consideration was present (some “price was paid for what was received in
return”).
– The agreement was legal.
– The parties to the contract had the capacity to make a contract, and,
– The agreement is in the proper form (a signed writing, if required).
The Agreement: Offer and Acceptance
■ The core of a legal contract is the agreement between the parties.
■ There must be a meeting of the minds to form a contract.
■ Although agreements can take any form, including unspoken conduct between the parties, they are
usually structured in terms of an offer and an acceptance.
■ Not every agreement need consist of an offer and an acceptance, as many people reach agreements
without forming contracts.
■ One of the major functions of the law of contracts is to sort out these agreements that are legally
binding (those that are contracts) from those that are not.
■ In interpreting agreements, courts generally apply an objective standard.
– The Restatement defines agreement as a manifestation of mutual assent by two or more
persons to one another.
– The UCC defines agreement as the bargain of the parties in fact as found in their language or
by implication from other circumstances including course of dealing or usage of trade or
course of performance.
– The critical question is what the parties said or did, not what they thought they said or did.
■ The distinction between objective and subjective standards crops up occasionally when one person claims he spoke
in jest.
– If the jest is not apparent and a reasonable hearer would believe that an offer was being made, then the
speaker risks the formation of a contract which was not intended.
– It is the objective manifestations of the offeror that count and not the secret, unexpressed intentions.
– If a party’s words or acts, judged by a reasonable standard, manifest an intention to agree in regard to the
matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed
state of the party’s mind on the subject.
■ An offer is a manifestation of willingness to enter into a bargain such that it would be reasonable for another
individual to conclude that assent to the offer would complete the bargain.
■ Offers must be communicated and must be definite – they must spell out the terms to which the offeree can assent.
■ To constitute an agreement, there must be an acceptance of the offer. The offeree must manifest his assent to the
terms of the offer in a manner invited or required by the offer.
■ Complications arise when offers are accepted indirectly through correspondence. Although offers and revocation of
offers are not effective until received, an acceptance is deemed accepted when sent if the offeree accepts in the
manner specified by the offeror.
– If the offeror specifies no particular mode, then acceptance is effective when transmitted as long as the
offeree uses a reasonable method of acceptance.
– It is implied that the offeree can use the same means used by the offeror or a means of communication
customary to the industry.
– This is known as the mailbox rule. Acceptances are considered effective when mailed, regardless of the
method used to transmit the offer.
Consideration
■ Consideration is the quid pro quo – something given or received for something else –
between the contracting parties in the absence of which the law will not enforce the promise
or promises made.
■ Contract should contain a set of mutual promises in which each party pledges to give up
something to the benefit of the other.
■ The existence of consideration is determined by examining whether the person against
whom a promise is to be enforced (the promisor) received something in return from the
person to whom he made the promise (the promisee).
■ The something that is promised or delivered cannot just be anything. It must be something
known as a legal detriment – an act, a forbearance, or a promise of such from the promisee.
– The detriment need not be an actual detriment – it may in fact be a benefit to the
promisee, or at least not a loss.
– The detriment to the promisee need not confer a tangible benefit on the promisor – the
promisee can agree to forego something without that something being given to the
promisor.
■ Whether consideration is legally sufficient has nothing to do with whether it is morally
or economically adequate to make the bargain a fair one.
■ Consideration is a legal concept that centers on the giving up of a legal right or benefit.
■ Consideration has two elements:
– Whether the promisee has incurred a legal detriment.
– Whether the legal detriment was bargained for – did the promisor specifically
intend the act, the promise, or the forbearance in return for his promise?
Promissory Estoppel

■ There is a widely recognized exception to the requirement for consideration. In cases of

promissory estoppel, the courts will enforce promises without consideration.
■ Promissory estoppel means that the court will stop the promisor from claiming that there
was no consideration.
■ The doctrine of promissory estoppel is invoked in the interest of justice when three
conditions are met:
– The promise is one that the promisor should reasonably expect to induce the
promisee to take action or forbear from taking action of a definite and substantial
character,
– The action or forbearance is taken, and,
– Injustice can be avoided only be enforcing the promise.
Illegality
■ In general, illegal contracts are unenforceable.
■ The courts must grapple with two types of illegalities:
– Statutory violations, and,
– Violations of public policy not expressly declared unlawful by statute, but so
declared by courts.
Capacity
■ A contract is a meeting of the minds. Hence, if someone lacks mental capacity to understand what he is assenting to,
or that he is assenting to anything, it is unreasonable to hold him to the consequences of his act.
■ The general rule is that persons younger than eighteen can avoid their contracts. Although this is the age of majority
in most states, some states still put the age of majority at twenty one. Legal rights for those under twenty one remain
ambiguous, however.
■ Although 18 year olds may assent to binding contracts, in states where the age of majority is 21, this may not be
trusted by other parties and thus, they may require parents to co-sign.
■ The exact day on which the disability of minority vanishes also varies. The old common law rule put it on the day
before the twenty first birthday. Many states have changed this rule so that majority commences on the day of the
eighteenth or twenty first birthday.
■ A minor’s contract is voidable, not void. A child wishing to avoid the contract need do nothing positive to disaffirm
the contract, as the defense of minority to a lawsuit is sufficient.
– Although the adult cannot enforce the contract, the child can.
■ When the minor becomes an adult, he has two choices:
– He may ratify the contract, either explicitly - no further consideration is necessary – or by implication, such
as keeping goods or continuing to make payments.
– He may disaffirm it. If a child has not disaffirmed the contract while still a minor, he may do so within a
reasonable time after reaching majority.
DISCHARGE OF
CONTRACTUAL
DUTIES
Discharge by Performance (or Non-
Performance) of the Duty
■ A contract can be discharged by complete performance or material non-performance of
the contractual duty.
■ The parties have a good faith duty to each other to perform their duties.
– There is, in every contract, an implied covenant of good faith that the parties will
deal fairly, keep their promises, and not frustrate the other party’s reasonable
expectations of what was given and was received.
■ Full Performance
– Full performance (and only full performance) of the contractual obligation
discharges the duty.
Non-Performance, Material Breach
■ Non-performance involves not doing much or any work to fulfill the duties under the
contract.
■ A party that ends a contract breached by the other party is said to have effected a
cancellation.
■ The cancelling (non-breaching) party retains the right to seek a remedy for breach of the
whole contract or any unperformed obligation.
■ Distinction between cancellation and termination: termination occurs when either party
exercises a lawful right to end the contract for a reason other than breach.
■ When a contract is terminated, all executory duties are discharged on both sides, but if
there has been a breach, the right to seek a remedy survives for the non-breaching party.
Substantial Performance
■ Anything less than full performance, even a slight deviation from what is owed, is sufficient
to prevent the duty from being discharged and constitutes a breach of contract.
■ At classic common law, either you did the thing you promised completely or you had
materially breached.
■ However, under modern theories, the doctrine of substantial performance has developed.
■ If one side has substantially, but not completely, performed, so that the other side has
received a benefit, the non-breaching party owes something for the value received, and will
not be entitled to cancel the contract as they would in the case of a material breach.
■ In an important category of disputes over contract performance, one party asserts their right
to full payment on the ground that he or she has completed their performance, while the
other party refuses to pay on the ground that there is a material failure of performance.
– In such cases, it is common to state the issue in terms of whether there has been
substantial performance.
■ If there has been substantial although not full performance, the breaching party has a
claim for value provided, while the non-breaching party has a claim for damages that
will put him in the position he would have been had the contract been fully performed.
■ If there has not been substantial performance, then you have material breach, and the
breaching party has no claim for the value provided, although he may have a claim in
restitution; the non-breaching party will again have a claim that will put him in the
position he would have been had the contract been fully performed.
■ The contest here is between the one who claims discharge by the other’s material breach
and the one who asserts there has been substantial performance.
■ What constitutes substantial performance is a question of fact, and the doctrine has no
applicability when the breaching party willfully failed to follow the contract.
Anticipatory Breach and Demand for
Reasonable Assurances
■ When a promisor announces before the time his performance is due that he will not
perform, he is said to have committed an anticipatory breach (or repudiation).
■ Of course a person cannot fail to perform a duty before performance is due, but the law
allows the promisee to treat the situation as a material breach that gives rise to a claim for
damages and discharges the obligee from performing duties required of him under the
contract.
– Ex: Hochster v. De La Tour
■ The non-breaching party has a duty to mitigate its damages rather than simply sue and do
nothing.
■ Another type of anticipatory breach consists of any voluntary act by a party that destroys,
or seriously impairs, that party’s ability to perform the promise made to the other side.
■ The law gives the obligee the right to sue when the future nonperformance is announced in
words or actions.
■ Related to the concept of anticipatory breach is the idea that the obligee has a right to
demand reasonable assurances from the obligor that contractual duties will be
performed.
■ If the obligee makes such a demand for reasonable assurances and no adequate
assurances are forthcoming, the obligee may assume that the obligor will commit an
anticipatory breach, and consider it so.
■ That is, after making the contract, the obligee may come upon the disquieting news that
the obligor’s ability to perform is shaky due to any number of situations.
■ Under such circumstances, the obligee has a right to a demand for reasonable assurance
that the obligor will perform as contractually obligated.
■ The reason for such a rule is that a contract imposes an obligation on each party that the
other’s expectation of receiving due performance will not be impaired.
■ The obligee must have reasonable grounds to believe that the obligor will breach.
■ The fear must be that of a failure of performance that would amount to a total breach – a
minor defect that can be cured and that would at most give rise to an offset in price for
damages will not generally support a demand for assurances.
Discharge When Performance Becomes
Impossible or Very Difficult
■ There are at least five circumstances in which parties may be discharged from contractual
obligations because performance is: impossible (1. death or incapacity, 2. destruction or
deterioration, 3. change of law), 4. difficult, or 5. useless.
■ Every contract contains an element of risk. Contract liability is strict – the obligor must
either perform or risk paying damages for breach of contract, even if his failure is due to
events beyond his control.
■ An obligor could always limit his liability through the contract itself. Similarly, damages in
the event of breach can be limited. A clauses could also be included to cancel the contract in
the event of unexpected events.
– If these provisions are absent, the obligor is generally held to the terms of his bargain.
■ Exceptions include the concepts of impossibility, impracticability, and frustration of
purpose.
Impossibility
■ Death or Incapacity of a Personal Services Contractor:
– Death or incapacity of an obligor performing a personal service makes a contract
impossible to perform – ex: death of a portrait painter.
■ Destruction or Deterioration of a Thing Necessary for Performance:
– When a specific object is necessary for the obligor’s performance, its destruction
or deterioration making its use impracticable discharges the obligor’s duty.
■ Performance Prohibited by Government Regulation or Order:
– When a government promulgates a rule after a contract is made, and the rule either
bars performance or will make it impracticable, the obligor’s duty is discharged.
– An obligor is not required to break the law and risk the consequences.
Impracticability
■ Less absolute than impossibility, impracticability can also function to discharge a contract.
– Impracticability is said to exist when there is a radical departure from the
circumstances that the parties reasonably contemplated would exist at the time they
entered into the contract.
– On such facts, the court may grant relief.
– They will do so when extraordinary circumstances, often Acts of God or Force
Majeure, make it unjust to hold a party liable for performance.
– When performance cannot be undertaken except with extreme difficulty or at a highly
unreasonable expense, it might be excused on the theory of commercial
impracticability.
– Impracticable (the action is impossible) is not the same as impractical (the action
would yield an insufficient return or would have little practical value).
– Courts allow a considerable degree of fluctuation in market prices, inflation, weather,
and other economic or natural conditions before holding that an extraordinary
circumstance has occurred.
Frustration of Purpose
■ If the parties made a basic assumption, express or implied, that certain circumstances would not arise, but
they do arise, then a party is discharged from performing his duties if his principal purpose in making the
contract has been substantially frustrated.
■ This is not a rule of impossibility, as it operates even though the parties easily might be able to carry out their
contractual duties.
■ The frustration of purpose doctrine comes into play when circumstances make the value of one party’s
performance virtually worthless to the other.
■ The purpose that is frustrated must be the core of the contract, known and understood by both parties, and
the level of frustration must be severe.
– The value of the contract to the party seeking to be discharged must be destroyed or nearly destroyed.
– Ex: coronation cases and room bookings.
■ Supervening government regulations (different from illegality), floods that destroy buildings in which an
event was to take place, and business failures may all contribute to frustration of purpose.
– But there can be no general rule: the circumstances of each case are determinative.
■ The parties can provide in the contract that the duty is absolute and that no supervening event shall give rise
to discharge by reason of frustration of purpose.
REMEDIES
Remedies
■ Monetary awards called damages, specific performance, and restitution are the three principle remedies.
■ In view of the importance given to the intention of the parties in forming and interpreting contracts, it
may seem surprising that the remedy for every breach is not a judicial order that the obligor carry out is
undertakings.
■ However, it is actually not surprising. Some duties cannot be performed after a breach – time and
circumstances will have altered their purpose and rendered many worthless.
■ Although there are numerous other occasions on which it would be theoretically possible for courts to
order the parties to carry out their contracts, the courts will not do it.
■ Common law looks more towards compensating the promisee for his loss than towards compelling the
promisor to perform.
– A person always has the power, though not the right, to breach a contract.
■ The law of remedies often provides the parties with an incentive to break the contract. The promisor has
a choice: to perform or pay.
■ The purpose of contract remedies is, for the most part, to compensate the non-breaching party for the
losses suffered – to put the non-breaching party in the position he/she would have been in had there
been no breach.
Compensatory Damages
■ One party has the right to damages when the other party has breached the contract,
unless the contract itself or other circumstances discharge or suspend that right.
■ Compensatory damages is one category of damages awarded to make the non-breaching
party whole.
Consequential Damages
■ A basic principle of contract law is that a person injured by breach of contract is not entitled
to compensation unless the breaching party, at the time the contract was made, had reason to
foresee the loss as a probable result of the breach.
■ Hadley v. Baxendale case.
■ When two parties have made a contract which one of them has broken, the damages which
the other party ought to receive in respect of such breach of contract should be such:
– As may be fairly and reasonably be considered either arising naturally – according to
the usual course of things, from such breach in the contract itself, or,
– As may reasonably be supposed to have been in the contemplation of both parties, at
the time they made the contract, as the probable result of the breach of it.
■ This rule was a subtle change from the earlier rule that permitted damages for any
consequences as long as the breach caused the injury and the plaintiff did not exacerbate it.
■ Damages that flow as a foreseeable consequence of the breach are called consequential
damages.
Nominal Damages
■ If the breach caused no loss, the plaintiff is nevertheless entitled to a minor sum,
perhaps one dollar, called nominal damages.
Incidental Damages
■ Incidental damages are additional costs incurred by the non-breaching party after the
breach in a reasonable attempt to avoid further loss, even if the attempt is unsuccessful.
Punitive Damages
■ Punitive damages are those awarded for the purpose of punishing a defendant in a civil action, in
which criminal sanctions may be unavailable.
■ They are not part of the compensation for the loss suffered, and are proper in cases in which the
defendant has acted willfully and maliciously and are thought to deter others from acting similarly.
■ Since the purpose of contract law is compensation, not punishment, punitive damages have not
traditionally been awarded, except when the breach of contract is also a tort for which punitive
damages may be recovered.
– Punitive damages are awarded in tort law when the behavior is malicious or willful.
– Some kinds of contract breaches are also tortious – ex: creditor holding collateral as security
under a contract for a loan sells the collateral even though the debtor has not defaulted. The
creditor has breached the contract and committed the tort of conversion.
■ Punitive damages are not fixed by law – the judge or jury may award at its discretion whatever
sum is believed necessary to redress the wrong or deter like conduct in the future.
– But the judge in all cases can remit some or all of a punitive damage award if he/she
considers it excessive.
Specific Performance
■ Specific performance is a judicial order to the promisor that he undertake the
performance to which he obligated himself in a contract.
■ It is an alternative remedy to damages and may be issued at the discretion of the court,
subject to a number of exceptions.
■ Specific performance is an attractive but limited remedy – it is only available for breach
of contract to sell a unique item. Real estate is always unique.
Restitution
■ Restitution is a restoring to one party of what he gave to the other.
■ Therefore, only to the extent that the injured party conferred a benefit on the other party
may the injured party be awarded restitution.
■ If the claimant has given the other party a sum of money, there can be no dispute over
the amount of the restitution interest.
■ But serious difficulties arise when the benefit conferred was performance.
■ The courts have considerable discretion to award either the cost of hiring someone else
to do the work that the injured party performed (the market price of the service) or the
value that was added to the property of the party in breach by virtue of the claimant’s
performance.
– Which measure is used depends on who repudiated the contract and for what
reason.
Tort vs. Contract Remedies
■ Frequently a contract breach may also amount to tortious conduct.
■ The choice as to whether to sue for tortious conduct or for breach of contract involves at
least four considerations:
– Statute of limitations – most statutes of limitations prescribe longer period for
contract than for tort actions.
– Allowable damages – punitive damages are more often permitted in tort actions,
and certain types of injuries are compensable in tort but not in contract suits, ex:
pain and suffering.
– Expert testimony – in most cases, the use of experts would be the same in either
tort or contract suits, but in certain contract cases, the expert witness could be
dispensed with.
– Insurance coverage – most policies do not cover intentional torts, so a contract
theory that avoids the element of willfulness would provide the plaintiff with a
surer chance of recovering money damages.