November 18

 Nanakuli
o Issue with this case- the price protection is opposite of the express terms
o Court calls this an exception even though it feels like a negation
o Court motivated to find price protection because course of performance, course of
dealing, and usage of trade suggests the opposite of the express term
o They call it an exception to try and not destroy the hierarchy of express terms
o Argument for this- we want to find out what the parties really want- the hierarchy
is a shortcut for getting it right and there might be circumstances that would
warrant ignoring it
 New state can have Nanakuli express term exception, but this does not feel satisfactory
 Reformation of contracts?
o Delicatessen
o Nanakuli
 UCC allows disclaimer of types of evidence if the contract is extraordinarily clear
 The difference between gap filling and interpretation is that there is nothing that helps fill
the gap
 Haines v. City of New York
o NY 1977
o Facts
 1920s- contract between NYC and a village in upstate NY for NYC to
build a sewage treatment plant because upstate is polluting the water
supply with sewage
 Contract- NYC will pay for everything necessitated by future growth
within the plant
 This case is a Coasean bargain
 No term in the contract about how long NYC will pay for growth
 P, in 1977, wants to build on land and put more strain on the sewage
system
 Gap 1- duration
 Gap 2- when the population growth overruns the plant and necessitates
building a second plant
o Does NYC have to build another plant?
o We also in 1977 have environmental regulations that stop the village from putting
their sewage in the freshwater
o Ordinarily, duration of a contract is not an issue because people die eventually
o Court- if not in express terms, look at intentions
o “Fairly and reasonably fixed by the surrounding circumstances”
o Duration- reasonable time- until NYC no longer needs the water
o But what if NYC found other water the day after the contract was created? Is it
okay to stop paying?
o The court’s answer on duration seems sensible for the current situation but might
not always seem so
o The court also says that NYC doesn’t have to pay for additional plants
o Why? Policy? They support P and D in different parts of the case
 Haslund v. SPG