Contracts

Fact pattern

Professor organized a pair of community lectures on how to live an environmentalist life. He scheduled the lecture for two consecutive Wednesday evenings. Professor signed the following valid and binding contract with Caterer to provide beverages and hors d’oeuvres after each lecture:

Caterer will provide drinks and small appetizer bites at two Wednesday-evening lectures, to be presented on October 12 and October 19. Caterer agrees to provide mixed hors d’oeuvres and nonalcoholic beverages to serve 150 guests on each date, assuming each guest will eat three hors d’oeuvres and drink two beverages. 

The precise foods and drinks to be provided are left to Caterer’s discretion, with one exception: it is extremely important to Professor that all food provided be vegetarian. Both lectures in the series touch upon environmental issues related to food production, stressing the positive impact of adopting a meat-free diet. For that reason, it is absolutely critical that no meat be served at any time.

In exchange for this catering, Professor will pay Caterer $5,000 for each week, provided in one lump sum of $10,000 to be paid no later than October 29.

After the first community lecture, Professor was surprised to see that the provided hors d’oeuvres, which his guests were eating, comprised pork pot stickers, miniature hamburgers, and bacon-wrapped dates. The next day, Professor called Caterer, complaining that Caterer had served multiple meat-based dishes at the event. Caterer apologized for the mistake, promising to serve only vegetarian items on the second evening. At the October 19 lecture, Caterer did serve a variety of dishes—all vegetarian.

On October 20, Professor called Caterer and said that, because Caterer served meat dishes on the first night, Professor would not be sending any payment due under the contract. Caterer subsequently sued Professor for breach of contract. 

Assume that the common law of contracts, and not the Uniform Commercial Code, governs here.

Questions

1. Professor argues that he does not have to pay Caterer, because Caterer materially breached their contract. Is Professor correct? Explain, discussing only (A) whether Caterer breached the contract by serving meat and (B) whether that breach was material.
2. Assume that a court finds that Caterer materially breached the contract. Does Caterer have any defense(s), mitigation(s), or other credible grounds to argue that Professor must nonetheless pay all or some portion of the contract price? Explain.