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1. Facts:

2. Briefly describe the facts.

Empire Paving, Inc. entered into a contract with New England Rock Services, Inc. for subcontracting services.  Problems arose that made Rock Services job more difficult, leading to an agreed upon amendment to the contract to change the method of payment to Rock Services from Empire Paving.  After work was completed, Empire refused to pay the remaining balance due as a result of the amended contract.


1. Which facts were key to the outcome?

The amendment was agreed upon and signed.  Empire failed to do their part in controlling water.

2. Legal issue:

3. What legal issue(s) does this case illustrate (i.e. why is this case in the chapter)?

Modification of a Preexisting Contract


1. What are all of the elements of the main legal rule that this case illustrates? For instance, if the case is about undue influence, list ALL of the elements that the court in this case said had to be proven by the plaintiff.

Modifications to a preexisting contract “must be supported by mutual consideration to be enforceable” (pg. 230).

Repeat 2. for each issue raised.  (For example, a case may discuss 1. Whether there is an implied-in-fact contract, and II.  Whether the UCC or common law applied.  If so, you will repeat 2. for each of these two issues.

B. Expand Perspective, Gain Interpersonal Understanding, and Critically Assess Implications

1. Prevailing party’s point of view:

2. What legal arguments were made by the prevailing party?

Rock Services argued that “Empire’s duty to control or remove the water on the job site arose in accordance with the custom and practice in the industry and, therefore, Empire’s failure to control or remove the water on the site constituted a new circumstance…” (pg. 233),


1. What facts, legal reasoning, social policy, and ethical principles would support a ruling for the prevailing party?

The issue is in Empire not controlling or removing the water which was their duty, thus giving new consideration for an amended contract by exception of the preexisting duty rule.


1. What were the probable motivations behind the prevailing party’s actions leading up to the dispute? After the dispute?

They felt they deserved their money because they had an agreed upon amended contract.

Repeat 3. for each and every issue in the case.

4. Losing party’s point of view:

5. What legal arguments were made by the losing party?

Empire argued that the water conditions did not give rise to new circumstances that would make an amended contract valid.


1. What facts, legal reasoning, social policy, and ethical principles would support a ruling for the losing party?

The preexisting duty rule in that Rock Services was already required by contract to perform the work.


1. What were the probable motivations behind the losing party’s actions leading up to the dispute? After the dispute?

Empire believed no valid consideration occurred to allow for the amended contract to be valid.

Repeat 4. for each and every issue in the case.

5. Judge’s point of view:

6. How did the court rule on each argument?

In favor of New England Rock Services, Inc.


1. What facts, legal reasoning, social policy, and ethical principles did the court use to support its ruling?

The doctrine of consideration and the existence of a new consideration allowing for a change to the original contract per the exception to the preexisting duty rule.


1. What were the probable motivations behind the judge’s decision?

Rock Services were rightfully owed the money based on the amended contract because the the new consideration came about because of Empire’s failure to perform their duty.

Repeat 5. for each ruling made by the judge.


C. Find Recent Developments and Diverse Theories, Synthesize, and Compare


6. Different Rules: Pose the question “What if the court adopted a different legal rule?”


1. Search the web for other articles to refer to in your article or call an attorney or business professional who may have experience with this type of issue. Write a brief one-paragraph summary of this case or article:

Alaska Packers’ Association v. Domenico relates to the issue of new consideration allowing for an enforceable modified contract.  In this case, Domenico was hired by Alaska Packers’ Association to fish for salmon in a remote location for a brief period of time for $50 plus 2 cents for each salmon caught.  After beginning the work, Domenico demanded an increase in pay to $100, to which the company agreed due to the brief time restraint and remote location that made finding new workers difficult.  At the end of the season, Alaska Packers refused to pay more than the price listed in the original contract.  Domenico filed a lawsuit saying the nets were defective, and the extra pay should be honored.  The trial court found the Domenico’s issue fell under the preexisting duty rule and no new consideration was present.  Domenico appealed and the judgement was reversed, although from the facts listed, I do not see reasoning for a reversal in judgement.


1. Ponder and reflect to compare this case to recent news and cases. This is the really cool part.  You will be thinking like a legally astute manager, owner, or professional as you read, analyze and compare cases to draw your conclusions.  Some neat ideas to help with your analysis:  If the outcomes of the recent cases you found are different, can you make sense of the different outcomes?  Are there different legal standards that make for different outcomes?  Is there a trend leaning more in favor of a plaintiff or defendant’s position?  Are the outcomes the same or different simply because the facts are similar or dissimilar?  What accounts for the same or different results?  Write your thoughts here:

Many cases similar to these two follow the same procedures in validating or invalidating new consideration when trying to determine whether the preexisting duty rule is applicable.  The trial courts seem to be consistent in determining whether the preexisting duty rule applies or if there is an exception to the rule.  The courts seem to be strict on determining whether new consideration is present, as further described in Stilk v. Myrick, where two crewmen deserted their ship and the remaining crew tried to split their earnings, which the court did not enforce.  


D. Creative, Application and Critical Thinking Questions

1. Your point of view of the case in the book:

2. Do you agree or disagree with the actual outcome? Why or why not?

Yes, I agree because Rock Services job was made more complicated by Empire not performing what was expected of them, so they were right in requesting more money to finish the job.


1. Change it up: Pose the question “What if the facts were different?”  Create changes to the facts that would probably result in a different outcome of the case and, using critical thinking and legal reasoning, tell why your change in facts would make a difference.

If the water issue was completely out of the realm of Empire’s preemptive duty, then Rock Services would not have an enforceable amended contract because there would be an exception to the preemptive duty rule.




 How will you apply the lessons from this case to your future career?

Perform my job at the level required of me and complete my obligations to avoid further expenditures.

 Write recommendations to avoid future legal problems and that best suit the objectives of a firm or company in your chosen career field.

For Empire’s sake, make sure you are performing the duties you are expected to perform adequately, so as to not give rise to a company’s ability to increase their expenses as a result of your inadequacy.

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