1. 1 George Mason School of Law Contracts I XX.Contract Modification F.H. Buckley fbuckley@gmu.edu

2. Contract Modification 2  As relational contracts are long term, conditions may change and prompt a modification of the agreement Should there be any restrictions on this?

3. Alaska Packers 381 3 Pyramid Harbor AK Russia

4. Alaska Packers 4  Will a promise to perform that which the promisor was already bound to do under a prior contract satisfy the consideration requirement?

5. Alaska Packers 5  Restatement § 73. Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance is consideration if it differs from what was required by the duty in a way which reflects more than a pretense of bargain. Illustration 4 (Lingenfelder at 383-84)

6. Alaska Packers 6  Restatement § 175(1) If a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim.  Illustration 5

7. Alaska Packers 7  Restatement § 176(1)(d) A threat is improper if (d) the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient.

8. Alaska Packers 8  Restatement § 89 MODIFICATION OF EXECUTORY CONTRACT. A promise modifying a duty under a contract not fully performed on either side is binding (a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or (b) to the extent provided by statute; or (c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.  Illustrations 1 (Brighenti at 386), 3

9. Alaska Packers 9  How would you decide Alaska Packers under these standards?

10. Alaska Packers 10  How would you decide Alaska Packers under these standards? The finding of fact at p. 382

11. Alaska Packers 11  Qu. the changed circumstances under Angel v. Murray p. 385

12. Alaska Packers 12  Qu. the changed circumstances under Angel v. Murray p. 380  Brian v. Brighenti p. 381

13. Alaska Packers 13  No modification clauses: Will they be enforced? Cf. Restatement 311 comment a: “The parties to a contract cannot by agreement preclude themselves from varying their duties to each other by subsequent agreement.”

14. The UCC Consideration out, Good faith in 14  UCC § 2-209(1) Modification, Rescission and Waiver. An agreement modifying a contract within this Article needs no consideration to be binding.  UCC § 1-304. Every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement.

15. UCC 2-209: No Modification Clause 15  A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.

16. UCC 2-209(2): No Modification Clause 16  (2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.

17. UCC 2-209(2): No Modification Clause 17  (2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.

18. UCC 2-209(4): Waiver 18  (4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.

19. UCC 2-209 19  How is a waiver different from an agreement of modification? (We’ll see this again in Wisconsin Knife Works at 639 next term)

20. Are Termination Agreements different? 20  El Paso Natural Gas p. 388

21. Alexi Yashin at 387 21  All I wanted was a termination agreement…

22. What are the drafting choices where good faith is required throughout?  Relational contracting  Vertical integration  Termination rights  Good Faith policing by the courts? 22

23. Eli Lilly at 391 23

24. Eli Lilly at 391  Was this about good faith norms or simple termination rights? 24

25. Eli Lilly at 391  Was this about good faith norms or simple termination rights? Here the good faith party sought to terminate. Suppose instead it had been the bad faith party?  Medinol 25

26. Eli Lilly at 391  So how would you draft a provision that imposed good faith duties throughout? 26