The New Mexico Law of Contracts

Welcome to my newest writing project. During the course of working on revising the New Mexico Uniform Jury Instructions on contracts, I spent a lot of time thinking about the Restatement (Second) of Contracts. The Restatement is a sort of treatise about what the law of contracts is (or perhaps, what its authors think it should be). While any individual state may differ from the Restatement on particular issues, by and large it is an excellent summary and resource.

Like any state, New Mexico agrees with the Restatement on some issues and departs on others. And, of course, New Mexico being a small state, there are still other topics that have not yet been litigated here. I’ve frequently had to figure out where we stand on particular topics. And so finally it occurred to me that maybe I should go about it in a more formal and permanent way. So I’ve decided to start building this Restatement of the New Mexico law of Contracts. Of course, since it is meant to reflect the law as it actually exists, it is not so much a restatement as it is a statement of the law. But I have modeled it on the Restatement to allow readers to easily compare and contrast the two.

I will be attempting to identify each section of the Restatement that has been addressed by New Mexico cases or jury instructions. While it is unlikely that I will do every section of the Restatement, my goal is to hit the important ones, whether or not New Mexico has discussed them, to see how we compare to the Restatement.

As the work proceeds, I’ll be filling out the table of contents below.

Chapter 1: Meaning of Terms

• 1 – Contract Defined
• 5 – Terms of a Promise, Agreement, or Contract
• 7 – Voidable Contracts
• 8 – Unenforceable Contracts

Chapter 2: Formation of Contracts – Parties and Capacity

• 9 – Parties Required
• 12 – Capacity to Contract
• 14 – Infants
• 15 – Mental Illness or Defect
• 16 – Intoxication

Chapter 3: Formation of Contracts – Mutual Assent

Topic 1: General

• 17 – Mutual Assent – Requirement of a Bargain

Topic 2: Manifestation of Assent in General

• 18 – Manifestation of Mutual Assent
• 19 – Conduct as Manifestation of Assent
• 20 – Effect of Misunderstanding
• 21 – Intention to Be Legally Bound
• 22 – Mode of Assent: Offer and Acceptance
• 23 – Necessity That Manifestations Have Reference to Each Other

Topic 3: Making Offers

• 24 – Offer defined
• 30 – Form of Acceptance Invited
• 32 – Invitation of Promise or Performance
• 33 – Certainty

Topic 4: Duration of the Offeree’s Power of Acceptance

• 35 – The Offeree’s Power of Acceptance
• 36 – Methods of Termination of Power of Acceptance
• 38 – Rejection
• 39 – Counter-offers

Topic 5: Acceptance of Offers

• 50 – Acceptance Defined

Chapter 4: Formation of Contracts – Consideration

Topic 1 – The Requirement of Consideration

• 71 – Consideration

Topic 2 – Contracts Without Consideration

• 89 – Modification of an Executory Contract

Topic 3 – Contracts Under Seal; Writing as a Statutory Substitute for the Seal

Chapter 5: Statute of Frauds

Chapter 6: Mistake

Chapter 7: Misrepresentation, Duress, and Undue Influence

Chapter 8: Unenforceability on Grounds of Public Policy

Chapter 9: The Scope of Contractual Obligations

Chapter 10: Performance and Non-Performance

Chapter 11: Impracticability of Performance and Frustration of Purpose

Chapter 12: Discharge by Assent or Alteration

Chapter 13: Joint and Several Promisors and Promisees

Chapter 14: Contract Beneficiaries

Chapter 15: Assignment and Delegation

Chapter 16: Remedies

• 355 – Punitive Damages