QUESTION 4 - Neighborly Conduct

The following is apparently a true story, reported in a 1978 issue of Jet Magazine.

A German couple, Demetrius and Traute Soupolos, wanted a child, but Demetrius was sterile (unable to have children). So they approached their neighbor Frank Maus, who was married with two children, and offered him $2,500 to impregnate Traute. After trying 72 times to get her pregnant, Maus went to a doctor and learned that he too was sterile; Maus' wife then admitted to Maus that someone else was the father of their children. The story made the news when Demetrius and Traute sued Maus for breach of contract, demanding their $2,500 back since Maus had failed to impregnate Traute. Maus refused to return the money, claiming he had only promised to try to get Traute pregnant, and had never guaranteed success.

Suppose it was determined at trial that in exchange for $2,500, Maus had in fact promised to get Traute pregnant, not just attempt to.

1. (a)What would be the conceptual basis for calculating expectation damages in this case? (That is, what would expectation damages attempt to measure?)
2. (b)If Demetrius and Traute bought a crib and some baby clothes after signing the contract, would this affect the damages owed? Explain.
3. (c)Suppose Maus claimed impossibility. Who do you think is the efficient bearer of the risk that Maus is sterile? Why? What does that mean? (Should Maus owe damages to the couple or not?)

Now suppose instead that the court determined that Maus had only promised to sleep with Traute, not to get her pregnant.

1. (d)Under the Bargain Theory, did the two sides have a binding contract? Explain. Should anyone owe damages to anyone?
2. (e)Suppose that after the contract was signed but before Maus began sleeping with Traute, it was learned that she was already pregnant. Would the couple still have to pay the $2,500? Why or why not?
3. (f)SupposeMausknewhewassterilewhenhesignedthecontractbutdidn'ttellthecouple. Would they still have to pay Maus the $2,500? Why or why not?