Contracts clauses in contracts class

I thought I might jump on the “classroom posts” bandwagon and blog a little about something I have been trying to do more of in my Contracts class – incorporate contract clauses in class discussions.  What I typically do is introduce a contract provision when I’m wrapping up a particular topic.  For example, when we finished up the section on substantial performance (and breach and conditions- it’s hard to talk about one without the other, IMHO), I asked my students about the meaning and effect of this provision:

“ TIME SHALL BE OF THE ESSENCE IN THE PERFORMANCE OF THE OBLIGATIONS UNDER THIS AGREEMENT. “

The phrasing sometimes throws off students – what’s this “of the essence” business? But they realize that the provision indicates that the timeliness of performance is important to the parties.  In other words, if the services are to be performed according to a schedule, they intend to stick to the schedule. More to the point, without such a clause, a court will probably not find a small delay to be a material breach.  With the clause, even a short delay may constitute a material breach – which brings me to substantial performance.   A material breach has legal effects, one of which is that a party who has materially breached has not substantially performed — and so can’t recover expectations damages under the doctrine of substantial performance.  A material breach also excuses the other party’s performance. 

The clause illustrates how the different doctrines work together, and given the emphasis on “skills” teaching, underscores that doctrine and skills are really intertwined.  (I’m not sure how anyone can effectively teach skills without a good grasp of the underlying doctrine).  Another reason to introduce contract clauses is to help my students overcome the automatic response that most normal people get when they see boilerplate – glazed eyes, numbing sensation, urge to do something more exciting. My hope is that once they learn the legal meaning behind the legalese, reading a contract will be a more engaging and rewarding experience.

[Nancy Kim]