Overview

In the previous three sections, we covered the foundations of contract law: the presence of an agreement that is legally enforceable. This section addresses a deceptively simple question: what are the terms of that agreement? In many instances, of course, this is not a matter of dispute, but it turns out that it can be a more complicated topic than it might seem. The parties may not have written anything down and they may have different recollections of the agreement. The parties may have written down some parts of the agreement but not the whole thing. Or, the parties might have a disagreement about what one of the terms means. And, in addition to those possibilities, there are terms that the law is willing to imply into the agreement; that is, sometimes there are parts of the agreement that the parties never discussed or even contemplated.

This section addresses some, but by no means all, of the doctrines related to these issues. As you read the materials in this section, think about the policy considerations at play. Do you agree with the approach that the courts (and state legislatures) take? Might there be better rules?