Scott J. Burnham

Scott J. Burnham is the Curley Professor of Commercial Law at Gonzaga University School of Law. For 30 years, he has taught contracts at law schools internationally and throughout the US. He is also a prolific writer on legal topics and a consultant on contract drafting for numerous businesses.

Articles & Books From Scott J. Burnham

Cheat Sheet / Updated 02-23-2022
To be successful in contract law, you need to know the rules and be able to analyze fact situations in the light of those rules. This Cheat Sheet introduces some of the most important concepts in contract law — such as contract formation, promises enforceable because of reliance and restitution, the statute of frauds, the parol evidence rule, and damages for breach of contract — and boils them down for easy reference.
Article / Updated 05-04-2021
A third party is a person who’s not a party to the contract. Common law recognizes three significant third parties: Third-party beneficiary: If the parties to the contract intend a third party to be able to sue for enforcement of a promise made in the contract, then that that person is a third-party beneficiary.
Article / Updated 03-26-2016
In contract law, a condition is an event that must occur before some performance is due. Parties may claim that they aren’t in breach of contract because the condition that had to occur before they had to perform hasn’t occurred. A condition can be express or implied: Express: An express condition, which usually uses words like if, is stated in the contract.
Article / Updated 03-26-2016
To determine whether a transaction is within the statute of frauds and therefore must be evidenced by a writing, check whether the transaction is any of the following: An agreement concerning real estate An agreement to rent real property for longer than a year An agreement that by its terms can’t be performed within a year from the making An agreement to answer for the duty of another An agreement for the sale of goods for $500 or more If an agreement is within the statute, look for evidence of a writing signed by the person against whom enforcement is sought.
Article / Updated 03-26-2016
A contract is a legally enforceable exchange of promises. Contract formation requires the following three essential ingredients: Offer: The offeror promises the offeree something in exchange for the offeree’s promise to do or not to do something. Acceptance: The offeree gives the offeror whatever was requested, such as a promise to do or not to do something.
Article / Updated 03-26-2016
The plaintiff in a breach of contract case faces an uphill battle in proving the case. Any damages the court awards are limited by the following considerations: Causation: The plaintiff must prove that the breach caused the loss. Certainty: The plaintiff must prove the amount of damages to a reasonable certainty.
Article / Updated 03-26-2016
Parol evidence is evidence of terms or understandings extrinsic to (not included in) a written contract. Courts follow the parol evidence rule to determine whether the evidence is admissible. Here’s the rule itself: Once the parties have reduced their agreement to a writing that they intend to contain the final and complete statement of their agreement, then evidence of terms that would supplement or contradict it are not admissible.
Article / Updated 03-26-2016
If you’re faced with the question of contract formation in your legal dealings, take the following three steps to find the obligation in the parties’ interaction: Look for a bargained-for contract — an exchange that has the three essential elements of offer, acceptance, and consideration. Look for a claim based on reliance (also known as promissory estoppel), meaning that one party reasonably changed his position due to the other party’s promise and lost something as a result.
Article / Updated 05-05-2021
When an unforeseen event makes performance of a contract obligation impracticable (impossible or unrealistic), the seller may claim that its nonperformance is excused. To analyze a claim of impracticability, determine whether all of the following apply: The event occurred after the contract was made. Performance became impracticable because of the event.
Article / Updated 05-05-2021
According to the rule of the expectancy, a non-breaching party is entitled to damages that put the non-breaching party in the position it would’ve been in had the contract been fully performed. To use the rule of the expectancy to calculate damages for breach of contract, take the following steps: Describe what the non-breaching party would’ve had if the contract had been performed.