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LAW WISE     [Kansas Bar Foundation logo]

Published by the Kansas Bar Association
Editor: Crystal Marietta, Attorney at Law, Pittsburg
Coordinators: Ron Keefover, Kansas Supreme Court and Janessa Akin, Kansas Bar Association

February 2006

Greetings from the Kansas Supreme Court and the Kansas Bar Association. Welcome to the first edition of Law Wise for 2006 and the fourth edition of the 2005-2006 school year. The theme of February's edition of Law Wise is "What is a Contract?" which will focus on the definition of a contract and how contracts affect our lives.

In this issue:

Calendar of Events [calendar graphic]

2006

March 4 . . . . . . Regional Mock Trial Tournament, Johnson & Sedgwick counties
March 10 . . . . . Bill of Rights Writing Contest Entry Deadline
April 1. . . . . . . . State Mock Trial Tournament, Kansas City, Kan.
May 1. . . . . . . . .Law Day
May 13. . . . . . . National Mock Trial Tournament, Oklahoma City

What is a Contract?

The term contract, often called an agreement, is used in almost every context. Parties use contracts to buy houses, to use a cell phone, and to agree to do or not to do something with their school or parents. So what exactly is a contract?

Contracts are promises that the law will enforce. The law provides remedies if a promise is breached or recognizes the performance of a promise as a duty. Contracts arise when a duty does or may come into existence, because of a promise made by one of the parties. To be legally binding as a contract, a promise must be exchanged for adequate consideration. Adequate consideration is a benefit or detriment, which a party receives that reasonably and fairly induces them to make the promise/contract. For example, promises that are purely gifts are not considered enforceable because the personal satisfaction the grantor of the promise may receive from the act of giving is normally not considered adequate consideration. Certain promises that are not considered contracts may, in limited circumstances, be enforced if one party has relied to his detriment on the assurances of the other party.

Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law principally includes the terms of the agreement between the parties who are exchanging promises. This private law may override many of the rules otherwise established by state law. Statutory law may require some contracts be put in writing and executed with particular formalities. Otherwise, the parties may enter into a binding agreement without signing a formal written document. In the case of a contract with a school to participate in sports or other activities, the parties to the contract will typically have their own private means of enforcement.

Portions of this article were taken from the Cornell Web site at http://www.law.cornell.edu/wex/index.php/Contracts.

Lesson Plan #1:  

Teaching About Contracts

Grade Level: K-4

Time: One class period

Note: This exercise was created by Chicago attorney Lloyd E. Shefsky. It's a great lesson for a resource person teaching an early elementary class or can be implemented by the teacher if no resource person is available.


Can little children understand contracts? Should they be taught to understand contracts? You bet! My personal experience shows that certain rudimentary principles of contract law are understood intuitively by many, if not all, 5 year olds.

Here's a step-by-step outline for introducing lower elementary students to some of the main concepts involved in contract law as the "stuff" of attorneys' work. This material is introduced in a way that youngsters find exciting and interesting. The strategy is a role-play in which elementary students participate in negotiating a contract and resolving a dispute from knowledge they already possess and experience they already have.

The genesis of the plan presented below was announcements by my 5-year-old son that the parents of his kindergarten class were invited to explain what they did for a living. Parents were to be scheduled individually on different days. How was I to explain to kindergartners the working world of an attorney? If few adults fully understand the legal issues of business law, how could I explain them to a class of 5 year olds, in spite of their above-average intelligence, sophistication, and positive orientation to the law?

Choosing a Topic

The teacher of my son's class had recommended that I limit my presentation to a maximum of 30 minutes, preferably less. Because the attention span of elementary students is short, the presentation had to be both stimulating and concise. For this reason, I quickly rejected a description of a day in my working life as well as a description of a complicated and/or unusual case. (I am pleased to report that at the end of my 30-minute exercise, when attention spans were indeed beginning to show signs of waning, the teacher informed me that I had held class attention far longer than those parents relying on oration.)

There are additional constraints when addressing K-4s in contrast with older students. Limited life experience and substantive knowledge dictate a teaching exercise set up ahead of time within tight limits.

Contractual arrangements permeate our society, and disputes over these arrangements are everyday occurrences for attorneys and laymen. Children, too, enter contractual relationships whenever they go to a movie or borrow library books. Children negotiate simple contracts whenever they promise to relinquish one comic book for another or trade baseball cards.

Disputes may arise after contracts are consummated for a variety of reasons - one party cannot or will not fulfill the agreement or is perceived as not living up to all or part of the terms of the contractual agreement. In the example of the children's exchanged promises, a comic book may have missing pages.

A complex legal issue that frequently arises is known formally as a "mistake of fact." According to Black's Law Dictionary, a "mistake of fact" is an unconscious ignoring or forgetting of a fact relating to a contract, or a belief that something material to the contract exists or has existed when, in fact, it does not nor ever has existed. It is not, however, a mistake caused by a party's neglecting a legal duty. A "mistake of fact" can be mutual or not, each with differing legal results.

Negotiating a contract and then resolving a dispute over a mistake of fact was the focus that I chose for explaining my work as an attorney. This is a legal situation arising again and again in the real world of business and, indeed, everyday life. The next step was devising and planning an appropriate situation for "acting out," so that I could instruct my kindergartners by allowing them to participate.

Planning Ahead

When legal professionals accept requests to contribute to law-related education projects, careful preparation is perhaps the most important prerequisite, just as it is for trial or negotiating a transaction. No matter how short and simple the instructive session is to be for the K-4s, careful preparation is vital. An ill-prepared speaker can fall back on ad hoc discussion and "thought" questions when facing high school students; you can't disguise lack of planning when instructing K-4s.

My preplanning for my son's class involved asking him about the "sweet tooth" preferences of his classmates. I discovered that at least two of them are very fond of chocolate bars, but that one was devoted to plain chocolate and the other strongly preferred chocolate with nuts. It is advisable to know the likes and dislikes of several classmates ahead of time in case substitutes are needed.

Bringing Props

The next step is to bring props. My props were few and very easy to assemble:

  1. A black crepe-paper "robe" suitable for a kindergarten-size judge. A sheet of black crepe (or tissue) paper, available at most variety stores, works quite well once a hole is cut in the center to go over a child's head.
  2. Enough chocolate bars for the entire class, some plain and some with nuts. Only one of each kind will be used initially and shown to the class; the rest should be hidden from view. Unknown to the class, however, one of the two bars in full view is actually an empty wrapper made to look like an actual candy bar. (Substitutions can be made here so long as there are two items similar in intrinsic value, but variable in their preferred value.)
  3. A tape recorder. This was originally for my own later enjoyment, but recording the class exercise can also serve as a useful learning device for the entire class. Children love to hear their recorded voices, and the teacher can play back the classroom activity, perhaps on the following day, for a short discussion or a question/answer period about simple kinds of contracts the children would understand.

Involving Students as Active Participants

Although much has been written about the value of role-playing as a teaching device, there is some reluctance in using it with lower elementary students. My experience will hopefully dispel this reluctance. As soon as I arrived in class, I assigned one child to be the judge (in my case, my son), followed by "hands up" voting on preferences for chocolate bars (with or without nuts). I then asked for two volunteers, one to represent each candy bar preference, with my selection guided by what my son had told me in the planning stage. A single bar of each of the two types of chocolate bars was placed on the "judge's" table in front of the class, and each of the two volunteers was asked to stand behind, but not touch, the bar he least preferred. I then told these two students that, even though each had received the kind of bar he did not particularly like, they were both free to talk to each other and work out an arrangement to exchange the assigned bar if they wanted to do so. The one condition I specified was that each must speak into the tape recorder, one at a time. The two volunteers quickly discussed an exchange of chocolate bars to satisfy each other's preference. When both were satisfied that a "deal" had been reached, I suggested each pick up the candy bar he had obtained in the "negotiated" exchange.

If the negotiating session was consummated quickly, the concluding portion of the exercise involved a more complicated legal issue. In a business deal, one party does not always get what he thinks he bargained for. Thus, in the classroom, one of the children was very surprised and chagrined to discover that he had received an empty wrapper and not the chocolate bar he assumed was there. When I asked the "cheated" child to express his feelings into the tape recorder, he expressed every legal concept of "mistake of fact." Interestingly, at no time did he resort to an allegation of fraud, since it was clear that the child who had received the candy bar knew nothing of the deception.

The child with the candy bar, of course, had quite different opinions about what constituted a fair resolution, saying that "fair is fair" and "a deal is a deal." Having exhausted all of his logical arguments, the child with the empty wrapper then suggested that perhaps they should split the candy bar. The owner of the bar promptly rejected this suggestion, commenting that he couldn't understand why his classmate would want to split the bar since the other boy didn't even like that kind of bar in the first place.

During all of this discussion, it should be noted that neither child became belligerent or teary. My role as attorney-leader involved some directing, but directing should be minimized as much as possible to allow the children to handle their own bargaining and dispute settlement. Once assignment of roles had been made and the few instructions given, I found my main job was to act as occasional prodder when talk bogged down.

Ultimately, the judge was called upon to decide the dispute in a brief, "mini mock trial." He concluded, in 5-year-old language, that while there was merit on both sides, he felt his two classmates should split the sole candy bar. No doubt, a judgment based on fairness, although one cannot ignore the fact that he was concerned about his ability to coexist with classmates. (Is that very different from our common law tradition?)

Once the verdict was handed down and accepted, without any adult coaching, I then distributed my surprise supply of hidden candy bars to the entire class, including the child with the empty wrapper.

Concluding

The happy class listened to a brief word about what I do for a living and the role of deals and disputes in this work. I explained very simply that people constantly get into arguments, because one person thinks that a situation, not necessarily another person, has been unfair, like the child who had expected a candy bar but got only paper. When someone feels hurt at losing to another what he thinks should rightfully be his, he and the other each hire an attorney to solve the problem. Because lawyers are experienced and know the rules, they can make a deal for the person each represents (the client) and then help decide a fair result if the deal later turns out differently than expected. Because lawyers are not so involved - they do not get candy bars from the agreement - they can more easily reach a bargain or deal and resolve a later dispute. Finally, if even the lawyers can't agree or persuade their clients to agree, the lawyers and clients can go to court and allow a judge to make a decision.

A major value of this little exercise was its revelation about the capacity of lower elementary students to apply certain concepts of fairness and common sense that, after all, underlie law in general. The arguments made by the two student participants sounded amazingly familiar to anyone who has witnessed lawyers arguing the merits of a disputed transaction on behalf of clients. Although the language and presentation of lawyers are more sophisticated, the youngsters' reasoning process was very similar to lawyers. The judge's verdict, too, was like the verdicts in numerous court cases following meetings of counsel in the judge's chambers.

The children began to learn about the system of formal rules and informal practices, which institutionalize the same rules of fair play that most of them have already begun to internalize. A definition of what is just may vary among this age group, as it does among a group of adults, but it exists nonetheless. The brief exercise in contracts reinforced the children's understanding that even though events may seem unfair to one party, there is something that can be done to rectify them in a reasonable way.

The ability to exercise control within the rules was another valuable lesson. Although I had set up the rules of "our" game ahead of time, the student-volunteers, representing the entire class, were allowed to negotiate their own deal without outside interference. Only when the bargain struck by them was found lacking an expected element - a candy bar for each - was it necessary to rely on formal "rules" for achieving a fair, if not totally satisfactory, resolution. In their ensuing arguments, this class learned firsthand some of the rudimentary skills of conflict management.

The final lesson is that deals and business arrangements of many types may not always be completely satisfying to every party, but a sense of fairness and justice can be achieved within the limits imposed by factors outside the control of anyone. And that after all, is the purpose of law.

Lloyd E. Shefsky is of counsel to the Chicago law firm of Shefsky & Froelich Ltd. This article is used with his permission and can be accessed at http://www.abanet.org/publiced/lawday/schools/lessons/k4_contract.html.

Lesson Plan #2:  

Minors and Contracts

Grade Level: 9-12

Time: One class period

Source: Written by the Institute for Citizen Education in the Law, Seattle, to complement the student edition of Street Law (6th ed.) and was updated in 1999. Staff at the Washington State Office of the Administrator for the Courts (OAC) edited the lesson. For more information, contact OAC Judicial Education, 1206 Quince St. S.E., P.O. Box 41170, Olympia, WA 98504-1170. This lesson plan was based on a resource person, but can be used by a teacher as well. It has been adapted to use Kansas law.


Objective: Students will:

Materials Needed:

Procedures:

Begin the class by introducing yourself, briefly telling a little about what you do, if this is your first class. Introduce today's class by indicating that it will be on minors and contracts.

Explain to students there are special laws regarding minors and contracts. Today, the class will review the rules in Kansas. Note: This lesson assumes the teacher has already taught the elements of a contract and the difference between void and voidable contracts.

Pass out Handout A. Tell students they have 10 minutes to work in pairs to answer hypotheticals one through four. Before conducting this activity, make sure that students understand the terms "void" and "voidable."

Use of Handout A is to test for students' present knowledge of minors and contract law and to use the debriefing as a way to educate students about the law.

Debrief by getting all the pairs who answered hypothetical one to report their answers and their reasons. Then report the state of law in Kansas on that particular hypothetical. Continue on with student answers to hypothetical two, and report on the state of the law in Kansas and so on through the hypotheticals.

This lesson plan can be accessed at http://www.courts.wa.gov/education/lessons/index.cfm?fa=education_lessons.display&displayid=Minrcont. Please note that the lesson plan has been adapted to conform to Kansas law, whereas the Web address listed is based on the law in the state of Washington.

 

Lesson 2 - Handout A
Can The Minor Cancel This Contract?

Directions: Read the hypotheticals that follow and decide whether the minor can void the contract (get out of the contract without a penalty). Give your reasons.

  1. Dan, who is 17 years old but looks like he is 20 years old, signs a contract for a $1,000 stereo system from Cascade Stereo. The contract requires him to put $300 down and pay $50 monthly. He puts his $300 down and after two weeks decides he wants out of the contract. Can he legally do this? Give your reasons.

  2. Judy, who is 13, ran away from home and took her mother's credit card. She had no food or place to stay. She paid for a motel and some food with the credit card. Now, she wants to get out of these contracts. Can she do this and get a refund from the motel and stores where she bought the food? Give your reasons.

  3. George, at 17, buys a used car on credit, agreeing to pay $50 each month for three years. When he turns 19, two years after signing the contract for the car, he decides to get out of the contract and get his money back. Can he do that? Give your reasons.

  4. Miriam, who is 17, set up her own business making T-shirts. She took and filled many orders for sets of T-shirts. She now wants to get out of the contracts she hasn't filled because she has spent the money on other things and doesn't have enough money to produce the T-shirts. Can she do that? Give your reasons.

 

Lesson 2 - Handout A (answers)
Answers to Handout 1

Hypothetical one: Dan, who is 17 years old but looks like he is 20 years old, signs a contract for a $1,000 stereo system from Cascade Stereo. The contract requires him to put $300 down and pay $50 monthly. He puts his $300 down and after two weeks decides he wants out of the contract. Can he legally do this?
Response: Dan can disaffirm this contract. He is entitled to get all the money back that he has paid, and he is obligated to return the stereo to Cascade Stereo.

The fact that Dan looks older than 17 is not enough to change the outcome. However, if Dan had told Cascade Stereo that he was 18 or older, he would not be able to cancel his contract.

Hypothetical two: Judy, who is 13, ran away from home and took her mother's credit card. She had no food or place to stay. She paid for a motel and some food with the credit card. Now, she wants to get out of these contracts. Can she do this and get a refund from the motel and stores where she bought the food?
Response: No, Judy is obligated to pay for these items because they are "necessities" defined as food, clothing, shelter, and medical care. Minors are bound by their contracts for food, shelter, clothing, and medical aid.

Hypothetical three: George, at 17, buys a used car on credit, agreeing to pay $50 each month for three years. When he turns 19, two years after signing the contract for the car, he decides to get out of the contract and get his money back. Can he do that?
Response: No, George cannot do that. The law requires that in order for minors to void contracts entered into when they were minors, they must cancel within a reasonable time after turning 18. One full year beyond the 18th birthday is an unreasonable time. George will have ratified the contract, and he may not get out of it.

Hypothetical four: Miriam, who is 17, set up her own business making T-shirts. She took and filled many orders for sets of T-shirts. She now wants to get out of the contracts she hasn't filled because she has spent the money on other things and doesn't have enough money to produce the T-shirts. Can she do that?
Response: No, Miriam cannot do that. K.S.A. 38-103 prevents minors from voiding their contracts when they have engaged in business as an adult, and the other party had good reason to believe the minor was capable of contracting.

Review the rules with students after the exercise.
In Kansas, certain, but not all, contracts of minors (persons under 18) are voidable, meaning that minors can get out of their contracts if they choose to do so. The minors cannot be forced to carry out the promises they made and may cancel or refuse to honor their contracts. Minors who void their contracts must return all money and property received because of the contract that is still within their control at the time they turn 18. Minors should realize, however, that voiding their contracts will result in very poor credit history that can affect their future financial affairs.

Ask students why they think minors have the right to void their contracts.
The rule is designed to protect minors from being taken advantage of because of their age and lack of experience. However, minors will have an impossible time getting credit because of this rule. This is why most stores require a parent or other adult to co-sign any major contract. The adult co-signer is responsible for making payments if the minor doesn't honor his or her promise.

The person with whom the minor contracted cannot cancel the contract simply because the other person is a minor.

Review with students that the special rights of minors to void their contracts do not apply to all contracts. Take about two minutes to brainstorm the list of contracts that minors cannot void. List these on the board or on an overhead transparency.

If a minor fails to disaffirm a contract within a reasonable time after reaching age 18, the contract cannot be canceled.

Minors are bound for contracts they make for necessities, such as food, clothing, medical attention, and housing. (A car is not a necessity.)

Minors may not void contracts when they have misrepresented their age to the other party or they have operated a business as an adult, and the other party reasonably believed the minor was capable of contracting.

To close the class, have students consider whether they agree with the law on minors and contracts in Kansas.

note Bill of Rights Writing Contest

Fifth grade students throughout Kansas are encouraged to participate in The Bill of Rights and the George Mason Prose or Poetry Contest.

The contest is designed to educate students about the history and importance of liberty and freedom guaranteed to American citizens in the Bill of Rights. Guidelines and judging are based on Kansas standards in social studies and language arts. The Kansas Press Association coordinates the judging.

Entries must be postmarked by March 10, 2006. The winner will be notified by April 10, 2006. A $100 monetary gift will be awarded to the winner along with a private tour of the Kansas Supreme Court.

More contest information and downloadable entry forms can be found at http://ktwu.washburn.edu/education/bor/.

The Kansas Bill of Rights Committee proudly sponsors the contest.

Bill of Rights Book Available

Ever wonder how the Bill of Rights came to be? Based on historical fact, this fictional tale explores Founding Father George Mason's reason for ultimately not signing the U.S. Constitution.

"I'm Not Signing That! George Mason Stands Up for the Bill of Rights," is full of historical facts and points to ponder. The fictional story was created by young people for young people, and is appropriate for grades 4-7.

The book may be downloaded at http://ktwu.washburn.edu/education/bor/ or copies of the book are available for purchase by contacting Melissa Masoner at mmasoner@carrollsweb.com.

Resources at the Law-Related Education Inventory

The Law-Related Education Inventory has the following items that are useful in working with students on mock trials which are coming up soon. Even if you do not have a team going to competition, there are many mock trials available to teach students of all ages about the system and various points of law. Check out the following:

  1. B.B. Wolf v. Curly Pig. This mock trial is scripted for elementary students. Library No. 347.4201/W582m.

  2. Ms. Piggy LaHogg v. Fatback Café Inc. This simulated mock trial is for middle school students and contains fact sheets, instructions for "characters," and other materials. Library No. 347.4201/P624m.

  3. Murphy v. National Sheet Metal. This mock trial simulation is for high school students and includes facts, scripts, and instructions for use in presenting a mock trial. Library No. 347.4201/Sa47smc.

The Law-Related Education Inventory has many resources to help teach about law-related topics. To order a catalog, call Janessa Akin at the Kansas Bar Association, (785) 234-5696. The Kansas Bar Association and the lawyers in your community sponsor the Law-Related Education Inventory. The clearinghouse will mail free copies of law-related posters, games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8 a.m. to 7 p.m., and Friday, 8 a.m. to 5 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education Inventory, is Marla Darby. She can be reached at darbymar@emporia.edu.

   Terrific Technology for Teachers

  1. A good definition of contracts, as well as different types of contracts and warranties, can be found at http://dictionary.law.com/default2.asp?typed=contract&type=1&submit1.x=68&submit1.y=14.
  2. The basic elements of a contract and contract formation are covered in a short article at http://www.seniormag.com/legal/contractelements.htm.
  3. Some examples of contracts kids can make with their parents regarding health, safety, social, and educational issues can be found at http://kidscontracts.com/.

WANTED: LAW WISE EDITOR

Are you looking for an interesting and rewarding way to serve the cause of law-related education, network with fellow teachers, and supplement your income a little? If so, then this is the job for you. Law Wise is seeking an editor beginning with the 2006-07 school year. The person selected may be a teacher, an attorney, or other person committed to law-related education. Attorney Crystal Marietta, Pittsburg, has been the editor for the past four years.

Duties consist of editing six issues of Law Wise per school year, in coordination with the Office of Judicial Administration and the Kansas Bar Association. Coordinators Ron Keefover and Janessa Akin will continue to assist by drafting articles, suggesting themes, etc. The working conditions are excellent and the job can be done from any location.

If you are interested or have questions about this opportunity, please contact Ron Keefover at (785) 296-4872.