Terms of Engagement: What Does All that Contract Legalese Really Mean and How Can We Better Teach It to Our Students?
Midwest Law Journal, Vol. 26, No. 3, 2012
37 Pages Posted: 30 Mar 2012 Last revised: 8 Nov 2013
Date Written: February 27, 2012
Teaching the law of contracts has always been one of the most fundamental tasks that legal studies/business law professors carry out. Truly, no legally successful business transaction can be realized without a commanding knowledge of contract law. Still, most of our time in the classroom focuses on teaching the elements of a contract accompanied by illustrative appellate level cases rather than explaining and discussing what the important terms and clauses in a typical contract really mean. Knowing the important terms that appear in most contracts and how they relate to contract law can add a significant and essential dimension to contract law pedagogy.
Improving the teaching of contract law has historically driven the energies and talents of professors in legal studies in business. The Journal of Legal Studies Education, for example, has presented a broad range of important and useful teaching notes and articles on how to improve the teaching of contract law.
This paper seeks to take a more in-depth examination and discussion, than has previously appeared in the legal studies in business literature, of the some of the most important and common substantive terms incorporated in a sales contract. The aim is to provide instructors the information they need to teach business law students what these contractual terms really mean. Moreover, the paper furnishes a detailed hypothetical meant to lay out some of the behind-the-scenes strategies underlying negotiations incorporating the terms. The contract terms which will be presented and discussed in Parts II and III, are: (1) Approval and Payment, (2) Length of the Contract, (3) Notice and Cure, (4) Implied Warranties, (5) Limitation of Liability, (6) Indemnity Clause, (7) Arbitration Clause, (8) Attorney Fees, (9) Choice of Law, (10) Choice of Forum, (11) Confidentiality Clause (12) Assignment and Delegation, (13) Force Majeure (14) Integration Clause and (15) Time Is of the Essence Clause.
While the foregoing list is admittedly not exhaustive, these terms represent a fair sample of the more important and common clauses found in business contracts. Moreover, the hypothetical presented in Part II generally embodies actual negotiation scenarios that were carried out by the authors during the course of their professional experiences in many industries including the representation of software vendors as well as those purchasing such systems. As such it can be used as an appropriate real world example for the instructor to use.
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