Pedagogical Nomenclature
posted by Lawrence Cunningham
The traditional style of doctrinal illustrations in the American Law Institute’s Restatements of Law identifies parties by meaningless letters such as A, B, C and D. In Contracts, at least, it would be clearer for the illustrations to identify parties by meaningful normative categories they occupy, such as General-Sub, Company-Inventor, Buyer-Seller, Borrower-Lender, Father-Daughter, or even Promisor-Promisee, Obligor-Obligee and so on.
Using meaningless letters adds unnecessary, if slight, cognitive demand to exercises that should be maximally parsimonious. Normative categories in Contracts are especially useful to emphasize the context in which an exchange occurs. The abstract lettering system should be abandoned in future Restatements. A few examples from Illustrations to Section 227 of the Restatement (Second) of Contracts appear below.
Restatement (Second) of Contracts
§ 227 STANDARDS OF PREFERENCE WITH REGARD TO CONDITIONS
(1) In resolving doubts as to whether an event is made a condition of an obligor’s duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee’s risk of forfeiture, unless the event is within the obligee’s control or the circumstances indicate that he has assumed the risk.
Illustration 1. A, a general contractor, contracts with B, a sub-contractor, for the plumbing work on a construction project. B is to receive $100,000, “no part of which shall be due until five days after Owner shall have paid Contractor therefor.” B does the plumbing work, but the owner becomes insolvent and fails to pay A. A is under a duty to pay B after a reasonable time.
Better: General contracts with Sub for the plumbing work on a construction project. Sub is to receive $100,000, “no part of which shall be due until five days after Owner shall have paid General therefor.” Sub does the plumbing work, but Owner becomes insolvent and fails to pay General. General is under a duty to pay Sub after a reasonable time.
Illustration 2. A, a mining company, hires B, an engineer, to help reopen one of its mines for “$10,000 to be payable as soon as the mine is in successful operation.” $ 10,000 is a reasonable compensation for B’s service. B performs the required services, but the attempt to reopen the mine is unsuccessful and A abandons it. A is under a duty to pay B $10,000 after the passage of a reasonable time.
Better: Mining Company hires Engineer to help reopen one of its mines for “$10,000 to be payable as soon as the mine is in successful operation.” $10,000 is a reasonable compensation for Engineer’s service. Engineer performs the required services, but the attempt to reopen the mine is unsuccessful and Mining Company abandons it. Mining Company is under a duty to pay Engineer $10,000 after the passage of a reasonable time.
Illustration 3. A, a mining company, contracts with B, the owner of an untested experimental patented process, to help reopen one of its mines for $5,000 paid in advance and an additional “$15,000 to be payable as soon as the mine is in successful operation.” $10,000 is a reasonable compensation for B’s services. B performs the required services, but because the process proves to be unsuccessful, A abandons the attempt to reopen the mine. A is under no duty to pay B any additional amount.
Better: Mining Company contracts with Inventor of an untested experimental patented process to help reopen one of its mines for $5,000 paid in advance and an additional “$15,000 to be payable as soon as the mine is in successful operation.” $10,000 is a reasonable compensation for Inventor’s services. Inventor performs the required services, but because the process proves to be unsuccessful, Mining Company abandons the attempt to reopen the mine. Mining Company is under no duty to pay Inventor any additional amount.
August 11, 2008 at 5:01 pm
Posted in: Teaching
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Responses (4)
Patrick S. O'Donnell - August 11, 2008 at 6:21 pm
An eminently sensible proposal. I hope it captures the attention of the powers-that-be.
Howard Wasserman - August 12, 2008 at 7:48 am
When I give multiple-choice exams, the actors are matched to their roles: (P)laintiff, (D)efendant, (W)itness, etc. I then pick completely random words beginning with that letter for each question (“Walla Walla testifies for Persepolis in his breach-of-contract suit against Dogma.”). It keeps the question-writing process interesting and students have said they like it.
Jason - September 23, 2009 at 1:40 pm
I am glad bar examiners have recently begun to heed sensible advice such as this.
Student - March 16, 2010 at 1:15 pm
Re: Howard Wasserman. That approach still presents the same problem of requiring more cognitive demand than necessary for problems where normative categories suffice.
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