Week Eight, Part 6 - Contracts: The Game of Law School

Professor Cathy Kaveny starts class by propping our supplementary text, “Contract Law: Selected Source Materials,” on the podium. A mere 312 pages, the purple paperback contains the Restatement Second of Contracts and Articles 1, 2, and 9 of the Uniform Commercial Code (“UCC”).

The book’s editor is Steven J. Burton, a professor at the University of Iowa College of Law. He writes in the first paragraph, “The law of contracts originated as common law – the law made by judges on a case-by-case basis. Increasingly, however, statutes and regulations – laws enacted by legislatures and administrative agencies – govern contractual transactions.”

Adjusting her neck scarf, Kaveny echoes the same theme. The Restatement is the general common law, she says; the UCC is statutory. It's a distinction I feel like I should have learned long ago, perhaps in a government or history class.

Kaveny suggests we highlight the provisions of the UCC that we review in class. “This will help you distinguish the common law and get it to gel better in your brain.”

We discuss how the UCC was designed to bring uniformity to commercial transactions. Kaveny says it has been adopted with modifications in all fifty states. There’s a touch of awe in her voice, as if this event were a miracle.

“Remember, the UCC applies to sale of goods,” Kaveny says. "If you have services, you're in the realm of common law.”

We open our casebooks to Keith v. Buchanan, a 1985 case from the California Court of Appeals. Kaveny says we will use it to explore the concept of “obligation arising from statutory warranty.” Briefless, I follow along.

The plaintiff, actor Brian Keith, bought a ocean-going sailboat for $75,000. Though a sales brochure described the it as “a picture of sure-footed seaworthiness,” Keith found the boat unfit for sailing. He sued, alleging breach of warranty.

I remember watching Keith on the TV series Family Affair. Uncle Bill was always so nice to Buffy and Jody. And Mr. French too. I can’t imagine him suing anyone.

Kaveny asks, “Should Mr. Keith have been able to rely on the statements in the literature as to the boat’s seaworthiness?”

“Yes!” someone in the back calls out.

Kaveny glances toward me and I nod, as if the answer were in my head as well.

We look at section 2-313 of the UCC: “Express Warranties by Affirmation, Promise, Description, Sample.” According to Kaveny, a statement by a seller of “this car has been driven less than 10,00 miles” creates an express warranty. However, “this is a wonderful car” does not. It’s mere puffing, a statement of opinion not meant as a factual representation.

Kaveny sums up. “A description of goods is likely to create a warranty. Advertising, however, is closer to puffery.”

At the end of class, Kaveny talks to us about the upcoming mock mid-term. “You need a little bit of ironic distance from the self-imposed pressure,” she says. “And work to still stay yourself – kind and friendly – even when you're under stress. You wouldn't believe the number of attorneys who snap at their secretary when under duress.”

As we close our books, there’s one more bit of wisdom. “How well you play the game of law school is not necessarily how good a lawyer you'll be.”

I find her statement strangely comforting.

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