George Mason School of Law

1. George Mason School of Law Contracts I O. Brown v. Cara F.H. Buckley fbuckley@gmu.edu

2. Agreements to Agree and the Leval Test • We saw the Second Circuit’s more liberal standard in Adjustrite at 228

3. Brown v. Cara 307 • Was the MOU a binding agreement? Cara Brown 100 Jay Street, Brooklyn

4. Brown v. Cara 304 • The Memorandum of Understanding MOU: The parties will “work together to develop, build, market and manage” the property Brown to front development costs of $175K The parties intend to “enter into a formal contract shortly”

5. Brown v. Cara • What was missing from the MOU?

6. Brown v. Cara • What was missing from the MOU? • Zoning approval? • Financing and construction contracts • Architectural plans • Equity stakes • What happened after the $175,000

7. Brown v. Cara • Why did Cara back off the deal? • And just what part of town was this?

8. Brown v. Cara • Why did Cara back off the deal? • And just what part of town?

9. Brown v. Cara: What happened to the area? Dumbo in the 1980s

10. Brown v. Cara: What happened to the area? Dumbo today Dumbo has emerged as one of New York City's premier arts districts, with a cluster of for-profit art galleries and such not-for-profit institutions as the St. Ann's Warehouse and the A.I.R. Gallery. Chef Jacques Torres opened a chocolate factory in Dumbo in December 2000. Other culinary businesses in the area include Grimaldi's, the Brooklyn Ice Cream Factory, the River Café, and, in the One Old Fulton Street building, Pete's Downtown Restaurant. (Wikipedia)

11. Brown v. Cara: What happened to 100 Jay? Rising 33 stories alongside the Manhattan Bridge, J Condo is Brooklyn’s premiere luxury residential building. As the tallest building in Dumbo, J Condo adds an easily recognizable icon to the Brooklyn skyline with its dramatic curved, sail-like façade of floor to ceiling windows that maximizes the building’s abundant natural light and offers magnificent panoramic views of Manhattan, Brooklyn, the East River, and New York Harbor.

12. Brown v. Cara: What happened to 100 Jay? 3 bedroom for $2.3M 100 Jay Does this suggest why the deal didn’t happen? 12

13. Brown v. Cara • What is the difference between Leval’s Type I and Type II agreements?

14. Brown v. Cara • Badges of Type I agreements?

15. Brown v. Cara • Badges of Type I agreements? • No express denial of an agreement • Partial performance • All material terms agreed to • Not an agreement of a kind usually committed to writing

16. Brown v. Cara • Badges of a Type II agreement?

17. Brown v. Cara • Badges of a Type II agreement? • An intention to be bound • Too uncertain for a Type I agreement • Some partial performance • The context?

18. Brown v. Cara • Badges of a Type II agreement? • An intention to be bound • Too uncertain for a Type I agreement • Some partial performance • The context? • Was Cara in bad faith?

19. Good faith? • What does a good faith Type II negotiation mean? • UCC 1-201(20) “Good faith means …honesty in fact and the observance of reasonable commercial standards of fair dealing”

20. Arcadian Phosphate at 312 • Consistent with Brown?

21. Arcadian Phosphate at 312 • Consistent with Brown?

22. Various Possibilities • A fully binding agreement (Type I) • Not binding in any way • Good faith duties to negotiate (Type II) with an enforceable agreement • Good faith duties with reliance damages • Quasi-contract

23. Recital Clauses? • The Parties have entered into the Agreement in the expectation that it will be mutually binding and that both parties will in good faith perform their obligations as understood by them as of the date of the agreement. • The Parties understand that not all terms and conditions can be entirely specified as of the date of the agreement and undertake to negotiate such terms and conditions in good faith from time to time during the course of the Agreement.