CONTRACTS EXAMINATION
Model Answers and Noteworthy Mistakes
FALL, 2003
PROFESSOR KLEINBERGER
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Warning!!!!
These model
answers have been drafted by the professor, without time pressure and after
reading and evaluating all the blue books.
The model answers reflect a level of sustained competence and
succinctness that no student is expected to reach under the time pressure of an
in-class exam. Many students do reach
this level of competence (but not succinctness) on one or more questions, but
even the best exams typically miss at least one major issue and sometimes more.
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This examination lasted three hours and contained five questions worth in the aggregate 90 points. Points were allocated as follows. The bracketed numbers comprised a suggested time allocation.
Question A 15 points [30 minutes]
Question B 10 points [20 minutes]
Question C 5 points [10 minutes]
Question D 30 points [60 minutes]
Question E 30 points [60
minutes]
Question A – 15
points [30 minutes][1]
A first year law student, U.R. Careless (“Careless”), loses all of his notes for his Contracts class. Horrified, Careless says to each member of his study group, “I’m offering a $100 reward for the safe return of my Contracts notes.” One of the study group members, I.M. Broke (“Broke”) spends that evening searching for the lost notes. After several hours of searching throughout the law school building, Broke locates the notes in a dusty corner of the law library. Promptly exiting the library, Broke turns on her cell phone (which she had turned off while in the library) in order to telephone Careless with the good news. The cell phone indicates one message waiting, and Broke checks the message before calling Careless. The message is from Careless: “I have decided that Contracts is essentially mere common sense and, therefore, I don’t need my notes. Forget about the reward.” If despite receiving this message Broke promptly brings the notes to Careless, is Careless obligated to pay $100 to Broke?
Model Answer: Careless made an offer to form a unilateral contract. He was seeking to exchange his promise (to pay the $100 reward) for a specified act (safe return of the notes). The offer is not accepted and the contract is not formed until the offeree completes the specified act.
Careless’ phone message is an attempt to revoke the offer. Ordinarily, an offeror may revoke an offer at any time before acceptance, and the revocation is effective when the offeree learns of the revocation. In this instance, Broke, an offeree, listened to the message before completing the specified act. On the surface, therefore, it might appear that Careless successfully revoked the offer and is not obligated to pay $100 to Broke.
However, since at least the first Restatement of Contracts, contract law has restricted an offeror’s right to revoke an offer to form a unilateral contract. Various versions of the restrictive rule exist, but all the versions take the same general approach: once the offeree has reached the quantum of performance specified in the rule, the offeror loses the right to revoke and the offeree has a reasonable time to complete performance. Depending on the version followed, the specified quantum might be as little as beginning performance or as much as substantial performance.
Under any version of the restrictive rule, Broke has met the necessary quantum – if finding the notes is part of the performance specified by Careless. Careless may well argue, however, that (i) he did not request that the notes be found but rather that they be safely returned, and (ii) finding the notes is mere preparation for performing the requested act. Broke would likely respond that the “mere preparation” label applies only when the efforts are individual to the offeree and not a necessary part of the specified act. (For example, if the specified act is climbing the flag pole, buying climbing shoes is mere preparation.) I favor Broke’s argument, because, when notes are lost, finding them is inherently part of safely returning them.[2]
One version of the restrictive rule also applies when the offeree has detrimentally relied on the offer. This version would also favor Broke, who has changed her position by dedicating her time and effort to locating the notes rather than engaging in other activities.
Noteworthy Mistakes: failing to characterize the offer as an offer to form a unilateral contract (and therefore missing the issues relating to part performance); labeling the offer as an offer to form a unilateral contract but failing to substantiate that label; invoking the mailbox rule to address the question of acceptance;[3] invoking the mailbox rule to address the question of revocation; noting that Broke heard Careless’ message of revocation before completing performance but leaving implicit the relevant rule re: mechanics of revocation (i.e., effective when the offeree knows of it); stating the rule on the mechanics of revocation but erroneously asserting that revocation is effective when the offeree receives notice;[4] omitting any discussion of revocation; wasting time discussing consideration (which was not plausibly controversial); asserting that the effort made searching for the notes constituted consideration;[5] missing the part performance issue entirely; discerning that issue but missing the crucial question of whether finding the notes constitutes part performance or mere preparation; basing the part performance analysis on Petterson v. Pattberg (a case which, as we discussed, is no longer “good law”); stating that part performance effects “acceptance” (implying that the offer had been accepted) or that part performance forms the contract; asserting that Article 2 applies because notes are “goods”[6]
Question B – 10
points [20 minutes]
In the Take-Home Case:
Model Answer to B-1: Both the majority and the dissent recognize
that (i) a plaintiff seeking damages must prove that the misrepresentation caused
the damages, and (ii) a misrepresentation cannot cause damages unless the
plaintiff relied on the misrepresentation.
Reliance, therefore, is an inherent and inescapable part of the element
of causation. The majority cites Group
Health as holding that “that reliance is a necessary component of the
causation element of . . . a [Consumer Fraud Act damage] claim.,” Take-Home
Case at 452, and the dissent agrees: “Group
Health makes clear that reliance is a component of causation that must be
proved in Consumer Fraud Act suits brought under Minn.Stat. § 8.31, subd. 3a.”
Noteworthy Mistakes (B-1): spending time discussing differences between the majority and dissent when this part of the question presupposes agreement between the majority and dissent; stating that reliance is necessary to prove damages without explaining why; answering this question solely in terms of “the court” and thereby ignoring the question’s premise that, on this point, the majority and dissent agree;
Model Answer to B-2: The majority holds that (i) a plaintiff
seeking damages for aviolation of the Consumer Fraud Act must prove reliance
that is “justified,” Take-Home Case at 455, and (ii) as a matter of law,
reliance on oral representations cannot be justified if those representations
“directly contradict otherwise unobjectionable [written] contractual
language.”
The dissent argues that (i) “application of the common law doctrine of justifiable reliance to Consumer Fraud Act cases eviscerates the legislature's intent to provide broader consumer protection than that found in common law fraud cases,” Id., (ii) a jury should decide whether the plaintiff in fact relied on oral statements that contradicted written agreements, and (iii) whether actual reliance was justified should be irrelevant to a Consumer Fraud Act damage claim.[8]
Noteworthy Mistakes (B-2): missing the pivotal importance of the concept of “justified” reliance; stating that, according to the dissent, the plaintiff need not prove reliance or damages;[9] correctly explaining in the answer to B-1 that both the majority and dissent consider reliance a necessary aspect of causation and then, in the answer the B-2, stating that the dissent sees reliance as unnecessary; stating that the majority sees a “question of law” while the dissent sees a “question of fact” but not explaining how the opinions get to their respective conclusions;[10] misusing the terms “implied in law” and “implied in fact” to refer, respectively, to the majority’s conclusion “as a matter of law” and the dissent’s position that the issue remains a question of fact; ignoring the question’s reference to “the contract language”; injecting the parol evidence rule into the analysis[11]
Noteworthy Mistakes (B-1 and B-2): describing parts of the court’s opinion which are not germane to the questions posed; assuming that Judge Wright is male[12]
Question C – 5
points [10 minutes]
Complete the following statement by selecting one of the three alternatives within the brackets and then explain your selection.
The casebook applies the label “promissory restitution” to the “material benefit” rule. But if restitution were truly the correct term, then the court would award the plaintiff:
[expenses and other costs incurred by the plaintiff in providing the services]
[the value of the promise – i.e., the value the plaintiff would obtain through the promisor’s performance of the promise]
[the value of the benefit received by the promisor]
Model Answer: The third alternative is the correct answer, because restitution seeks to remedy unjust enrichment – that is, an unjust increase in the wealth of the defendant. The first alternative would address the diminishment in wealth suffered by the plaintiff in providing the material benefit, and the second alternative reflects the promisee’s “expectation interest” in the promise.[13]
Noteworthy Mistakes: ignoring completely the question’s focus on the meaning of the word “restitution”; stating that the purpose of restitution is to make the plaintiff whole; discussing unjust enrichment (which focuses on value improperly received) as if it were unjust diminishment (i.e., focusing on the depletion suffered by the plaintiff); wasting time, energy and space by restating or analyzing the material benefits rule; concluding that the direction of the recovery (from the promisor to the promisee) determines how to calculate the amount of the recovery; leaving unclear which party was the proper focus of the analysis, or suggesting that restitution seeks to put both parties in status quo ante;[14] choosing the third alternative but supporting that choice by reference to R.2d § 86;[15]
Question D – 30
points [60 minutes]
For many years, Local Company (“Local”) has been buying widgets[16] from Regional Supplier (“Regional”), a family-owned business that manufactures widgets (among other items) and has prided itself on “keeping our prices low and constant.” Local uses the widgets as component parts in machinery that Local manufactures and sells to its customers. Recently, Regional was purchased by new owners, and Local became concerned that Regional’s new owners might start raising prices. Regional’s new owners learned of this concern and, in turn, became concerned that Local might start looking for another widget supplier. Regional’s new owners therefore sent the following letter to Local (“the price guarantee letter”):
We hereby guarantee that we will keep our prices unchanged for twelve months from the date of this letter for any widget orders you may choose to place with us.
Reassured, Local decided not to look for another source of widgets. Over the next two months, Local placed four separate orders with Regional, and Regional filled those orders under the price guarantee letter even though Regional had implemented a generally applicable price increase for all its other widget customers.
Seventy days after the date of the price guarantee letter, Local entered into a major manufacturing contract with one of its customers, with the contract price premised in part on Local’s guaranteed price for Regional widgets. The next day Local placed a substantial order with Regional for the widgets necessary for the new manufacturing contract. The day after that, Local received a letter from Regional stating: “We regret that we cannot maintain price protection any longer. We therefore do not accept your order and we rescind the price protection as to all further orders. We would be pleased to fill the order at our regular prices.”
Does Local have the right to enforce the price protection? How, if at all, would it affect your analysis if Local placed the substantial order 120 days after the date of the price protection letter?
Model Answer: Local does have a right to enforce the price protection, but only under the doctrine of promissory estoppel. The price protection promise is not enforceable as a contract, for lack of consideration, and UCC § 2-205 does not apply because the price guarantee letter is not an offer.
The price guarantee letter certainly contains a promise; the letter expressly guarantees a particular performance in the future (i.e., keeping prices constant). However, a promisor is not contractually bound to perform a promise unless that promise is supported by consideration running to the promisor. In this instance, there is no such consideration. Regional neither sought nor obtained any commitment from Local.
It is tempting to resolve the consideration problem by applying UCC § 2-205 to the price guarantee. Under that section (captioned “Firm offers”), “[a]n offer by a merchant to . . . sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration . . . .”
Article 2 doubtlessly applies in general to stated facts. See UCC §§ 2-102 (defining the Article’s scope as “transactions in goods”) and 2-105(1) (defining “goods” as “all things movable”). A “hollow metal cylinder, approximately ½ inch in diameter and approximately 2 inches long” is certainly a movable thing.
As for the elements required to trigger application of § 2-205: (i) Regional, the issuer of the price guarantee letter, is a merchant (“deals in goods of the kind”, UCC § 2-104(1)), (ii) the letter is certainly a writing, and (iii) the facts at least imply that Regional “signed” the letter. (The letter comes from Regional’s new owners and begins with the word “We.” In those circumstances, the use of company letterhead or even the company name would probably constitute a “symbol executed or adopted … with present intention to authenticate” the letter. UCC § 1-201(39).)
The problem is that the price guarantee letter is not an offer. The UCC does not define “offer,” so the common law definition applies. UCC § 1-103 (stating that supplemental general principles of law apply “[u]nless displaced by particular provisions of this Act”). According to R.2d § 24: “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” The price guarantee letter does not invite assent; Regional seeks no reciprocal commitment in exchange for the guarantee. Moreover, Local’s assent could not have concluded a bargain. Suppose that Local had promptly responded to the price guarantee letter by stating, “Delighted. We agree.” What would the bargain have been?
Local’s only viable claim is for promissory estoppel. Local must and can show that: (1) Regional made a clear and definite promise; (2) Regional should reasonably have expected Local to rely on that promise; (3) Local relied on that promise, reasonably and to Local’s detriment; (4) enforcement of the promise is necessary to avoid injustice.[17] As to the first element, the price guarantee letter unequivocally states a specific promise of price protection. As to second element, Regional should have expected Local’s reliance; that reliance was the very result that Regional sought to achieve.
As for the third element, actual reliance is clear; Local entered into a substantial contract on the assumption that the price guarantee was in effect.[18] The reasonableness of this reliance seems equally clear. Regional had stood by the guarantee through four previous orders. Detriment also exists, unless Local can buy widgets from an alternate supplier at approximately the same price as per the price guarantee. The facts are silent on this point. However, it seems unlikely that Regional could have raised its prices generally (as stated in the facts) if other widget suppliers were not doing likewise.
As for injustice, the fourth element, Local remains bound to its contract with its customer, and it would be unjust to allow Regional to renege on its promise if doing so would convert Local’s contract from a benefit to a bane.
If Local had placed the substantial
order 120 (rather than 70) days after the date of the price protection letter,
only the analysis of UCC § 2-205 would change.
The time difference would provide an additional reason for that section not
to apply. “[I]n no event may [the
statutory] period of irrevocability exceed three months.” UCC § 2-205.
Seventy days is less than, and 120 days more than, three months.
Noteworthy Mistakes: stating the relevant elements of a rule but adducing no facts to show how the rule actually applies; wasting time, space, energy (yours and your reader’s) by merely reciting the given facts; ignoring the lack of consideration; mentioning the lack of consideration but not pausing to demonstrate the lack or give sufficient attention to its significance;[19] assuming that the price guarantee letter constituted an offer rather than merely a promise; assuming or baldly asserting that the price guarantee letter constituted or had somehow morphed into an agreement; asserting that Local’s placing of orders under the price guarantee letter constituted Local’s acceptance of an offer but failing to indicate what obligations Local had under the supposed resulting agreement;[20] characterizing the price guarantee letter as an offer without considering the crucial consequence of that characterization – namely, that a contract was formed when Local placed the “substantial order”; omitting the UCC § 2-205 analysis; omitting the promissory estoppel analysis; doing the promissory estoppel analysis but omitting the element pertaining to the promisor having reason to expect reliance, the promisee having reasonably relied, or both; failing to answer the second part of the question; discussing the parol evidence rule without establishing the existence of an agreement and in the absence of any facts supporting even a partial integration; discussing the statute of frauds without first establishing at least a plausible argument for an oral agreement than might trigger the statute; stating that the statute of frauds did not apply because no signed writing existed;[21] asserting that, merely because the statute of frauds does not apply or is satisfied, the price protection promise is enforceable; making a “good faith” argument without first establishing the existence of a contract; using course of dealing or course of performance without first establishing the existence of a contract; using course of dealing or course of performance to establish the existence of an agreement;[22] asserting that the price guarantee letter had become part of a contract and then invoking course of dealing, course of performance, or the obligation of good faith and fair dealing to argue that Regional had no right to retract the price protection;[23] invoking § 2-306 and asserting that a requirements contract existed between Local and Regional, when Local had not promised to buy any (let alone all) its widgets from Regional; assuming for the purposes of a § 2-306 analysis that the “substantial order” was significantly larger than previous orders; with regard to the § 2-205 analysis:
§ invoking the section without considering whether Article 2 applied,
§ stating that Article 2 applied but failing to cite the relevant statutory provisions,
§ stating that Article 2 applied, citing the relevant statutory provisions but failing to apply those provisions and thereby disregarding the warning in the instructions the citing authority is not a substitute for stating the law and applying the law to the facts,
§ stating or implying that the parties’ status as merchants was relevant to whether Article 2 applied,
§ asserting that § 2-205 applied without examining the “entrance criteria” (or elements) to the section,
§ mentioning those elements as bald labels – i.e., failing to adduce facts satisfying each element,
§ asserting or assuming that Local’s status as a merchant was relevant to the § 2-205 analysis,
§ referring to the separate signing requirement when there was no “form” involved,
§ treating the absence of consideration as if it were a necessary element of § 2-205,
§ stating that the three month limit applies only if the offer does not state a duration
Question E – 30 points [60 minutes]
Consider the following excerpt from Hysitron, Inc. v. Frederickson:[24]
Hysitron, Inc. hired . . . Nikki J.
Frederickson as Director of Marketing and Sales . . . . Through
numerous e-mail messages, Hysitron president Thomas Wyrobeck[25]
and Frederickson extensively negotiated the terms and conditions of her
employment, including salary, vacation, bonus and benefits. On
Frederickson began her employment with
Hysitron on
If:
should Hysitron succeed in its claim for breach of the obligation of good faith and fair dealing? [Assume that, if Hysitron can show a breach of that obligation, the appropriate remedy would be, as Hysitron contends, a judgment against Frederickson for the amount Hysitron expended to pay off Fredrickson’s student loan.]
Model Answer: In an “at-will employment arrangement,” both the employer and employee have the right to end the employment contract at any time without having to have “good” cause. Therefore, although the obligation of good faith and fair dealing (“the good faith obligation”) inheres in every contract, Frederickson’s exercise of her discretion to quit cannot by itself give Hysitron a claim for breach of the good faith obligation.
Hysitron’s best chance is to invoke the “fruit of the bargain” concept of good faith and then support that concept with the “objective” approach to evaluating good faith. Hysitron has little chance under the “subjective” approach.[27]
The “fruit of the bargain” concept obliges a party to avoid conduct that, while perhaps technically permitted by the contract terms, would nonetheless vitiate some purpose manifestly central to the other party’s decision to enter into the contract. Hysitron can argue that: (i) Hysitron’s purpose was to employ Frederickson, not merely to cause Frederickson’s former employer to lose her services, (ii) the loan payment was in the nature of a hiring bonus, (iii) as a hiring bonus, the loan payment made no sense for Hysitron unless Frederickson made at least a “good faith” effort to provide Hysitron the “fruits” of that aspect of the bargain – i.e., to stay “hired” and make the job last, and (iv) Frederickson breached the good faith obligation by prematurely quitting her job merely because her own idiosyncrasies gave her trouble in dealing with Wyrobeck.
Hysitron can buttress this position by invoking the “objective” notion of good faith. According to this notion, a party is obliged to exercise discretion (in this instance, the discretion to quit) in a way that a reasonable person in comparable circumstances would consider reasonable. The stated assumptions (“If . . .”) indicate, albeit indirectly, that Frederickson’s reaction to Wyrobeck was not reasonable. “Wyrobeck’s conduct toward Frederickson was not in any way unlawful, did not breach the contract between Frederickson and Hysitron,” and, moreover, would not have “compel[led] an average, reasonable worker to quit and become unemployed.”[28]
Frederickson can respond to these arguments by asserting that she met her good faith obligation by staying until the situation became personally intolerable to her. She acted not to injure her employer but rather to protect her own honestly-held interests. She therefore met the subjective test of the good faith obligation, and Hysitron should be entitled to nothing more. From this perspective, Hysitron did receive the fruits of the loan payment bargain – i.e., an honest effort by Frederickson to make the job work.
On balance, given contract law’s strong adherence to the principle of at-will employment and the failure of the contract to expressly require Frederickson to do anything more than start work in order to earn the loan repayment, Hysitron probably should not succeed in its claim for breach of the obligation of good faith and fair dealing.
Noteworthy Mistakes: failing to use all three approaches discussed in class for analyzing good faith claims; failing to use any of those three approaches; merely stating a rule (e.g., the “fruit of the bargain” approach) but not applying that rule to the facts; adducing facts without tying them to a specific rule; referring generally to “the fruits of the bargain” or “the spirit of the contract” but not indicating the content of those fruits or that spirit; merely listing facts without linking those facts to some aspect of the doctrine of good faith; invoking the unemployment compensation information but doing nothing to connect that information to a theory of good/bad faith; speculating that Frederickson entered into the contract intending to quit soon after her loans were paid off, which both assumes a fact and pertains to fraud in the inducement rather than bad faith in performance; wasting time/space/energy (and the reader’s attention) establishing that a contract existed, when that point is obvious and non-controversial; invoking the parol evidence rule, even though the question concerns an alleged breach of a term implied in law and not an effort to vary through parol evidence the express terms of an integrated agreement; arguing promissory estoppel, which is inappropriate given the existence of a contract and, in any event, irrelevant to the question posed; applying the UCC concepts of good faith to this service contract; asserting that Frederickson gave consideration for loan payoff by suffering the detriment of losing her benefits from her previous employer[29]
[1] As explained in the instructions, the time allocation is merely a suggestion. [This footnote was part of the Exam.]
[2] It was not necessary to side with Broke on this on this issue or to advance the distinction suggested in the Model Answer. I awarded full credit to any answer that recognized the issue and asserted any plausible solution.
[3] The mailbox rule – also know as the “deposited acceptance” rule – applies when an offeree dispatches through some means of a communication an acceptance to an offer to form a bilateral contract. The rule does not apply to the acceptance of an offer to form a unilateral contract.
[4] This point is noteworthy because the offeree’s cell phone received the information before the offeree came to know the information.
[5] In a unilateral contract, the requested acts constitute the consideration running toward the offeror. Part performance is sometimes referred to as consideration for the offeror’s implied promise to keep the offer open, but in the given scenario the offeror did not request “searching.”
[6] They may well be, but there is no “sale” or “contract for sale.” Title to the notes never transfers. See UCC § 2-106(1).
[7] It was not necessary to quote language from the opinions in order to receive full credit for this answer.
[8] It was not necessary to quote language from the opinions in order to receive full credit for this answer.
[9] At first glance, there seems to be some support for this proposition in the beginning of the dissent. However, the proposition is inconsistent both with the remainder of the dissent and the premise stated in question B-1.
[10] They differ on a point of law – i.e., whether to prove causation the plaintiff must show merely actual reliance [the dissent] or actual and justifiable reliance [the majority].
[11] The majority opinion does reflect a respect for documents that is consistent with a Williston-like approach to the parol evidence rule. That consonance is not, however, relevant to the question posed.
[12] There was no point deduction for this unwarranted and, as it so happens, incorrect assumption.
[13] It was not necessary to explain away the first and second alternatives in order to receive full credit for this answer.
[14] As we will see in more detail next semester, the restitution remedy does often produce this result, but that result is not germane to the promissory restitution context.
[15] That section takes the value of the promise as the starting point for determining the amount of the remedy.
[16] For the purpose of this question, a widget is a hollow metal cylinder, approximately ½ inch in diameter and approximately 2 inches long. [This footnote was part of the Exam.]
[17] Our materials include several versions of this rule. It was not necessary to follow precisely this formulation in order to receive full credit for this part of the response. It was, however, necessary to address the major elements stated here.
[18] Local’s decision not to seek an alternate supplier was also reliance, but that reliance was not connected to any detriment in the given situation.
[19] The lack of consideration for the price protection promise is necessarily the starting point, because it is that lack that creates the need for all further analysis.
[20] Without any such obligations, there could be no enforceable contract, because there was no consideration running to Regional.
[21] The statute of frauds was inapposite, but in any event this rationale is flat out wrong. A signed writing might satisfy the statute of frauds, but the absence of a signed writing has nothing to do with whether the contract comes within the statute.
[22] A pattern of conduct can lead a court to find a contract implied in fact, but “course of performance” and “course of dealing” are not proper labels to describe such a pattern. Course of performance and course of dealing are each terms of art, applicable in the interpretation of existing agreements. The two terms are inapposite to the question of contract formation.
[23] If the price guarantee letter had become part of an enforceable contract, the terms of the price guarantee letter expressly prohibited the retraction. There was therefore no need to resort to course of dealing and course of performance, even assuming they could be demonstrated from the facts. Likewise (and again assuming an enforceable contract), there was no need to invoke the implied obligation of good faith when an express term provided for price protection.
[24]
Hysitron, Inc. v. Frederickson, No. C2-02-865, 2002 WL 31689530 (
[25] Assume that Wyrobeck’s conduct binds Hysitron. [This footnote was part of the Exam.]
[26]
Under
An employee who quits employment is disqualified from receiving unemployment benefits unless the employee quit the employment because of a good reason caused by the employer. Minn.Stat. 268.095, subd. 1(1) (2002). A good reason to quit is “directly related to the employment ... for which the employer is responsible” and so significant that it would “compel an average, reasonable worker to quit and become unemployed rather than remain[ ] in the employment.” Minn.Stat. § 268.095, subd. 3(a)(1), (2) (2002).
Shafiee v. Grossman Chevrolet Co., Inc., No. A03-327,
2003 WL 22435715 (Minn.Ct. App.)
[27] It was not necessary to agree with this assessment of the strength of Hysitron’s claim under the three separate theories but, to get full credit for this answer, it was necessary to consider all three theories.
[28] It was possible to elaborate further here by suggesting that the objective standard of good faith required Frederickson to try to resolve her problems with Wyrobeck before exercising her discretionary right to quit. There were, however, no facts to indicate whether Frederickson had done so.
[29] While this quid pro quo might be useful as part of the “fruits of the bargain” approach, consideration as such is irrelevant to the good faith analysis.