052.09 Frank's Ribs Checklist

Breach by Freddy – Frank would argue that Freddy breached the contract by providing pork ribs instead of beef to some of the guests.

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Breach by Freddy – Freddy would counter that he did not breach the contract because it did not mention “beef ribs” anywhere.

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Breach by Freddy – Frank would counter that the terms of the agreement were ambiguous enough for him to point to their conversation in which he told Freddy that he wanted the ribs that Frank himself found delicious, and those were clearly beef ribs, given that Frank never ate anything else.

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Breach by Freddy – Freddy would counter that the contract is unambiguous and does not mention beef ribs.

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Breach/Parol Evidence – Freddy would further argue that to the extent that the contract is ambiguous, the parol evidence shows that he informed Frank that he did not have enough ribs and was told by Frank to “do his best.”

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Breach by Freddy – Freddy would further argue that the contract referred to “fancy people” and that the “fancy” ribs at his place were the special baby back ribs.

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Breach/Parol Evidence – Frank would counter that in parol evidence, he mentioned that he suggested that the guests who came late would go hungry, meaning that Freddy should only make all the ribs that would conform with his request that Freddy make the ribs that Frank enjoyed. In short, Freddy should have only made all the beef ribs he had on stock.

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Frank would also argue that he mentioned that the guests at the gala had not gotten along in “forever” and that they were “religious.”

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Freddy would argue that this was too vague for him to know that they were Arabs and Israelis and that pork ribs would offend them both.

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Whatever conclusion you come to on the ribs is fine here, this is a deliberately close question. But your reasoning must grapple with the most of the points set out above. Personally — and this is very close — I would suggest that Frank was too vague. There is another principal of contract law (which I omitted here because I wanted to see your reasoning) that terms can be construed against the drafter of the contract.That is, Frank could have written “beef ribs” on the napkin contract to be clear but he did not.

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Materiality – For separating the issue of breach generally versus the issue of whether the breach was material or non-material.

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"What If?" – If you concluded that Freddy did not breach the contract, give yourself a point for assuming for purposes of analysis that Freddy DID breach the contract for purposes of analysis and that it was clear that he was supposed to serve beef ribs. You're entitled to come to a conclusion on breach, of course, but if you decide there is no breach, you still should continue the analysis by assuming just for the sake of argument that there was a breach.

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Material breach – Frank would argue that Freddy 's breach was material, based on the fact that he could not serve beef ribs to Muslims and Jews attempting to broker a peace agreement.

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Material breach – Frank would note that since the breach was material, his performance was excused and he owed Freddy no money for the ribs.

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Material breach – Freddy would argue that the breach was not material. He provided 40 plates of beef ribs out of the 50 required and only provided pork ribs because he ran out.

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Material breach – Frank would counterargue (inference here) that any amount of pork ribs were liable to offend his guests, and that Freddy should have brought only the 40 ribs and left the rest at home.

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Material breach – Freddy would argue that Frank said to “do his best” and that this meant making sure all of the guests were fed, which is why he brought.

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Material breach – Give yourself a point for coming to a conclusion on this one way or the other; another not-easy question to resolve. I do think the better view is that based on the substantial ambiguity that Freddy could not be held liable for a material breach because Frank said “do your best.”

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Material breach – If you noted that, assuming that Freddy materially breached the contract, that Frank does not owe payment on the contract. (I would note that there is another doctrine would still allow Freddy to recover something here, given that 75 people still ate his ribs. But to make this analysis easier for you, I did not want you to worry about that for now.)

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Material breach – If you noted that, based on a different conclusion that Freddy did not materially breach the contract, that Frank was not excused from making a cash payment on the contract.

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Non-material breach – Assuming a breach but not a material one, Frank would owe payment on only the 40 plates of beef ribs that conformed with the contract. To say that the pork ribs conformed with the contract would be to reargue the point about breach. This is an easy point and not really arguable. (Again, based on doctrines I specifically excluded from this exercise, Freddy would have at least an argument to recover something for the pork ribs, less than the full contract price, because he incurred costs cooking them and because the guests ate them).

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Non-material breach – If you concluded that Freddy did not breach at all, then Frank owes full payment on 75 plates of ribs.

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Consequential damages – Assuming any breach, Frank would argue that Freddy owed him consequential damages for the loss of his hotel deposit of $200,000. Frank would argue that he specifically mentioned that his guests were “angry, disputatious people” and faced “religious strife.”

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Consequential damages – Freddy would argue that this was not reasonably foreseeable because these warnings were not specific enough to alert Freddy that he was serving potentially religious Muslims and Jews; for all he knew, the religious strife was Protestant v. Catholic, and the warning that they were “foreign” still could have meant they were Irish, not Arab and Israeli.

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Consequential damages – Freddy would further argue that the prospect that they would riot in response to violating their dietary restrictions was not reasonably foreseeable, and that Frank's warnings that they were “angry and disputatious” provided no hint that they were likely to be violent at a hotel meeting.

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Consequential damages – The better view here is that the potluck riot was not reasonably foreseeable. This is not a case in which, for example, an apple grower sells apples to a cider maker. In that case, the precise scope of consequential damages resulting from a breach may be much more foreseeable — the apple maker knows that a failure to deliver would cause the cider maker to fail on his contract. Here, the specifics of failing to deliver on Frank's napkin contract were really not so foreseeable. Perhaps Freddy might have foreseen angry guests, but not a riot.

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Consequential Damages – Assuming a breach, Frank would argue that Freddy owed the U.S. Embassy $1.5 million as the result of worldwide rioting because the delegates to the Arab-Israeli Peace Potluck inadvertently ate pork ribs.

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Consequential Damages – Under the Hadley v. Baxendale rule, Freddy would argue that cleanup from riots based on throwing ribs in other countries was not reasonably foreseeable when he entered into the napkin contract with Frank.

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Consequential Damages – Easy point, the rib riots were really not reasonably foreseeable. You can always say after something has happened that it was foreseeable, but there is no good argument that Freddy should have foreseen international food fights masquerading as riots.

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052.09 Frank’s Ribs Checklist

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