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Coraline

February 12, 2009

Why would I see this movie? Yes its a clever stop motion film with creepy elements, which is pretty much my favorite category of movie. There are SO many good movies out now, however. Well the reason is that I have discovered "Wacky Wednesdays" @ a movie theater, meaning all movies are just $5.  For the first time in my life, I might start going to the movies often. (I saw Slumdog Millionaire last week. I cannot praise that movie enough.  Really, I haven't said wow to a movie in a long time before it).

So this wacky wednesday I had the option between this movie, Underworld, He’s just not that into you,  or a really late showing of The Wrestler. No contest.

Right off the bat I have a complaint. HOW IS THIS MOVIE RATED PG? It should have a stricter rating than that. The movie was enough to creep me out and give me nightmares. I had considered taking my neice to see it, but now I wish to spare her the questions on ghost children, button eyes being sown on to people, and a row of dead dogs. Seriously, I love creepy things, but my guard was down since I was expecting a kids’ movie.

Then again, I also thought that maybe as an adult I captured some things that a child would miss.  I wouldn’t recommend you go see this with your child anyway, since it will disturb you.

The actual plotline wasn’t horrible. It was unique, suspenseful, and entertaining.

The good? The soundtrack, the suggestive humor that Coraline was on drugs, the occasional hilarity, and Neil Gaiman’s insanity leaking through.

The bad? You can never look at a doll the same way ever again.

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The Greatest CONTRACTS Outline ever written…

December 18, 2008

….by me anyway. Ok so this is just another way to distract myself from my constant Tortsture. (get it?) Actually, Contracts was actual torture, I don’t mind Torts as much. Come to think of it, my outline was completely useless when it came to Prof. Meyer’s out of nowhere essay.

I couldn’t have done this without my notes, my good ol textbook, LexisNexis, Chris Ortiz (3L at Cornell), Irina and Frank (current 1L’s in other schools), Piper’s Contracts supplemental, a few random student’s websites from around the country, and of course my many hours taken off from work. Oh, this isn’t the complete version, but I don’t feel like going to my laptop for this digression. COPY/ PASTE. Well here it is:

I. CONTRACTS BASICS  

Restatement – suggestions written by authoritative, sophisticated authors
 
UCC – statutes, similar doctrine to be adopted by the states
Is there a contract?
 
       
Case Summary Rule
Ray v. William G. Eurice & Bros., Inc (1952) Ray contracts Eurice to build house. Ray’s lawyer prepares contract & Eurice signs it. Later says that it is not what agreed to. Ray sues for Breach of Contract. Mutual assent is objective. Absent fraud, duress, or mutual mistake, if person can understand what they are signing, then they are legally bound. No more “meeting of the minds” subjective view.
               
         A) Bilateral (exchange of promises) 
                 1) Was there an offer?
                        a) Did the offeror have the capacity to make a contract?
                        b) Was it an offer or an invitation to offer or bid?
                                i.) Did the offer contain sufficient detail?
                                ii.) Was the offer directed to a specific person(s) or to the public in general?
                        c) Was the offer a gratuitous promise?
                                i.) Did the promisee suffer a detriment (give up a right, e.g.)?
                2) Was there an acceptance?
                        a) Did the offer specify a period for which it would be held open?
                                i.) Was there consideration for holding the offer open for that period?
                        b)Were new terms proposed?
                                i.) Was this a sales contract?
                                        1) YES, UCC 2-207. *** See Note II.
                                        2) NO, At common law, no acceptance; counter-proposal and original offer expires
                        c) Was the offer conditional?
                                i.) Were the conditions accepted?
                        d) Did accepting person have capacity?
                3) Was there consideration?
                        a) Not often issue in commercial context EXCEPT option Ks
                        b) Court will not examine adequacy UNLESS
                                i.) De Minimus (phony)
                        c) NO CONSIDERATION IF:
                                i.) Pre-existing legal duty 
      
        B) Unilateral (promise for performance)
                1) Was performance completed as specified?
                2) Was performance partial?
                        a) Old CL Rule: only full performance counts (Brooklyn Bridge)
                        b) Modern CL rule: partial is acceptance PROVIDED performance ultimately completed
  
      
III. UCC 2-207 (different or additional terms operate as acceptance and proposal for new terms and not a counter-offer UNLESS
    
        A) Acceptance expressly and clearly made conditional on acceptance of new or different terms
        B) New or different terms become part of contract UNLESS
                1) material change
                2) offer expressly and clearly limits to own terms only
                3) notification of objection already given or given within reasonable time after
 
“Arguably the greatest statuatory mess of all time” – Grant Gilmore
 
Every contract shall be deemed to include the following clause: Where the parties to the contract have proposed two conflicting provisions which do not materially alter the price, quantity, quality or delivery terms, or one party to the contract has proposed such a term or terms and it is unclear whether the other party has accepted such term or terms the question of which of conflicting or ambiguous term prevails will be decided by a coin toss (as between two conflicting provisions or two positions on the ambiguity stated by the parties in writing) or, if the parties do not both agree to a coin toss, then by submitting the dispute to an arbitrator selected at random from the court’s roster of qualified arbitrators, who shall resolve the dispute as s/he deems just. The allocation between the parties of the cost of the arbitrator’s rate and any additional fees shall be determined by the arbitrator.
 
– @ least in sales, something different
– afraid that in Common Law, whomever had last form “won” the contract
-aimed at doing 2 things:
     – is there a contract?
     – rejecting common law in favor of acceptance of offeror or explicit counter-offer
– 2000 adopted by 49 states (sans Louisiana)
– 2004 – about 6 states
 
Lexis –
 
1] Non-goods Contracts Under the “mirror image” rule, applied in common law transactions, an acceptance must conform to the terms set forth in the offer. No contract is formed if the acceptance contains terms that are different from or additional to those set forth in the offer. Such communication merely constitutes a counter-offer. The formation of a contract is generally precluded even if the discrepancy is trivial, although courts are now increasingly giving effect to an acceptance if the additional or different terms relate to an immaterial detail.

A contract is formed if the offeree unequivocally accepts the offeror’s terms, despite a simultaneous suggestion of alternative terms. Such circumstances merely represent an attempt to modify the terms of an already formed contract based on the original terms, as long as the acceptance is not contingent on the offeror accepting the proposed changes.

 

2] Contracts for the sale of goods The UCC rejects the mirror image rule. It give effect to a definite and seasonable expression of acceptance even though it contains additional or different terms from those offered, unless the offeree expressly makes the acceptance conditional on the offeror’s assent to the different or additional terms. [UCC § 2-207]

 

 
IV. Offer and Acceptance in Bilateral Contracts
 
Offer and acceptance -there has to be definiteness. In Lonergan, it was a form letter, and not moving towards definiteness. He was open to bidders. In Izadi, it was a solicitation, not an offer.
 
BILATERAL CONTRACTS – exchange of promises, there’s an offeror and an offeree.
 
 
Case Summary Rule
Lonergan v. Scolnick (1954) D tried to sell land to P. (40 acre tract of land for $2,500). 1 week later, D repudiated contract, raised the price. (Everything was done by mail) Was a contract entered into? Court rules no. There must be a manifestation of contractual intent.
Normile v. Miller (1985) D owns real estate. Sale to Hawkins. Meanwhile, Byer shows to P. Offer has to be accepted before 5pm on a certain date. Byer gives to D, makes changes. P doesn’t accept or reject offer. Offer made to someone else, who accepts. P decides he wants it after all. Sues for Breach. Counter-offer nulls the original offer. THIS IS NOW RESTATEMENT 39.
Izadi v. Machado (Gus) Ford, Inc. (1989) D puts out “bait and switch” advertisement. Would a reasonable person believe this ad? An offer is understood to be what a reasonable person in the position of the other party, given facts, will perceive it to be.
 
V. Offer and Acceptance in Unilateral Contracts
 
Classical view – if offeror revokes offer after action has been commenced, offeree was denied any remedy. This changes with Cook v. Coldwell.
Restatement 32 -Invitation of promise or performance – offer is interpreted as inviting the offeree to accept either by promising to perform or by rendering the performance
part performance -can’t revoke after certain parts have been charged
 
Only 1 promisor.
 
Case Summary Rule
Petterson v. Pattberg (1928)

D was owner of a bond executed by P – payable by installments or payable at a discount in a lump sum of cash. P attempted to offer the full mortgage in cash for the discount – D decline stating he had sold the bond.

Held: No K – D withdrew the offer before performance by P (P did not give the money – only offered it)

A unilateral offer may be withdrawn before the requested act has been performed

** DISSENT: since the only reason P didn’t accept in time is b/c D didn’t allow it, it shouldn’t be taken advantage of. 

 

Cook v. Coldwell Banker / Frank Laiben Realty Co. (1998) P worked for D, who promised bonus in December if certain goal is met. P met it. D then changed the bonus date to March. P left before then. Demanded bonus and was denied. Trial court, D asks for direct verdict and gets it. If the offeree performs partial, it becomes binding. “Complete performance” becomes “substantial performance”.
 
                 
VI. Consideration
 
Something for something.
If there is consideration, we will assume there is a contract. If there is no consideration, there is no contract.
Not internationally looked at, started in 13th century English courts. (“assumpit”)
This is the “gatekeeper” rule to make sure bargain promises follow through. (Not necessarily gratuitous promises). It facilitates exchange.
 
Lexis: With some exceptions, a promise must be supported by consideration in order to be enforceable. Consideration requires a bargained exchange in which each party incurs a legal detriment.
 
Case Summary Rule
Hamer v. Sidway (1891) Relative says he will give $ if boy refrains from drinking and smoking until his 21st birthday. He dies, and after the P’s bday, he asks for the money from the estate. They don’t want to give him any, stating that there is no consideration. Once there is consideration, Court will not question equivocal value.
Dougherty v. Salt (1919) Aunt gives a boy a note for $3,000 payable on her death or anytime before. Boy sues for money. Was there consideration? The consideration must exist in reality somewhere. Gift promises are not enforceable.
Plowman v. Indian Refining Co. (1937) Employees were downsized, but kept on the payroll in respect to their long service. Company says it was a gift, P’s claim that it was a contract, and it was supposed to last their entire lives. It cannot be consideration for a new contract if it has already been given and without reference to the contract. * (traveling to the office to pick up the paycheck was simply a condition, not consideration.)
Batsakis v. Demotsis (1949) After the war, a Greek resident receives money from American. Received only $25, but the letter in question treats it at worth $2,000. D says there is no consideration, so not paid back. Court will not evaluate adequacy of consideration.
Pennsy Supply, Inc. v. American Ash Recycling Corp. of Pennsylvania (2006) American Ash gave AggRite to Pennsy Supply for free. They used it in a third party contract, and then the project fell apart, due to the AggRite. Does D have duty to make up for it? It wasn’t a gift, since D also received benefit from getting rid of the AggRite. The promise induced the detriment, and the detriment induced the promise. This would be consideration.
 
VII. Mutual Assent
 
Restatement 17 – states that the formation of a contract requires “a bargain to which there is a manifestation of mutual assent to the exchange, and consideration”
 
Classically viewed as “meeting of the minds”.
 

Lexis: Contract formation requires mutual assent to the same terms by the parties, generally manifested by an offer and acceptance. Current law favors an objective standard for determining a party’s intent to be contractually bound. Thus, in general, communications are given the meaning that the recipient of the communication should have reasonably understood. Nevertheless subjective intent is relevant in determining whether the parties intended to be bound. Without such subjective intent, there is no contract.

 

 
Case Summary Rule
James Baird Co. v. Gimbel Bros., Inc. (1933) D put in for bid to build public building, but underestimated cost. P accepted bid one day before withdrawal by D. D claims there is no contract, and was sued for damages. Was there a contract? Using the offer in the course of bidding does not count as relying on it in a legal way, especially since the language of the offer suggests you accept after you have won bid.
Drennan v. Star Paving Co. (1958) D made bid to do paving, and won. Next day, admitted there was a mistake and raised price. D gave to 2nd lowest, and sued for breach of contract, to the amount of difference. Note that this rule is more used than Baird and is in the Restatement 87. Substantial effort or reliance makes the contract whole. Plaintiff bound themselves to act based on the D’s terms, so the D should also be bound.
 
VIII. Battle of the Forms
 
In Normile, 2nd reply becomes offer which must be assented to become a contract
 
If the offeree clearly states that it is only willing to do business if the offeror assents to the offeree’s terms, the offeree has not made a definite acceptance.
 
Lexis: Under the “mirror image” rule, applied in common law transactions, an acceptance must conform to the terms set forth in the offer. No contract is formed if the acceptance contains terms that are different from or additional to those set forth in the offer. Such communication merely constitutes a counter-offer. The formation of a contract is generally precluded even if the discrepancy is trivial, although courts are now increasingly giving effect to an acceptance if the additional or different terms relate to an immaterial detail.

A contract is formed if the offeree unequivocally accepts the offeror’s terms, despite a simultaneous suggestion of alternative terms. Such circumstances merely represent an attempt to modify the terms of an already formed contract based on the original terms, as long as the acceptance is not contingent on the offeror accepting the proposed changes.

 
Case Summary Rule
Brown Machine, Inc. v. Hercules, Inc. (1989) Nov. – Brown, we will build machine under liability exclusion. Jan 7- Hercules, “yes” but new terms (changes expressly agreed) Jan 19 – Brown requires payment. Jan 21 – sends invoice —> not going forward, unless you agree. Feb 5 – please advise if no good. Hercules – acceptance – except for trim. Issue: Did P’s acknowledgement containing the indemnity provision constitute a counteroffer, pf an acceptance of Hercules’ offer w/ additional/different terms? Yes. Brown’s Machine order is NOT a counter-offer. (Acceptance w/ different terms.) Since Hercules’ purchase order specifically limited it to stated terms —> Brown’s terms didn’t matter.
Princess Cruises, Inc., v. General Electric Co. (1998) Princess scheduled an inspection with GE. They negotiated on the terms and settled on GE’s proposal. During the course of repairs, there were delays, which caused the cancellation of a Christmas and Easter cruise. Princess sues for breach of contract. Issue: Should a court rely on the UCC for a contract primarily for services? No, GE’s form is the only one the jury should use in calculating damages. COMMON LAW PRINCIPLES APPLY, NOT UCC, WHEN IT COMES TO SERVICES.
 
IX. Agreement to Agree
 
Judge Clay: “All I want is a definite method, not exact # 10 years prior, rather just find method instead of going into markets I don’t know about.” (Walker)
 
Intent = to be bound to a contract.
Only words of contracts themselves will be taken into consideration here.
 
 
Case Summary Rule
Walker v. Keith (1964) P (lessor) forms a contract for 10 years @ a fixed-rate. Has an option to extend lease for an additional 10 year period, w/ no specified rate. Vague terms to develop new rate. D agrees to extension, but they can’t agree on a new rate. Issue: Did the option provision in the lease fix a method for determining the future rent w/ a degree of certainty sufficient for the court to consider it part of the contract? No. Trial Ct. found for D, appellate court reversed (its NOT in the contract) An agreement must specify w/ sufficient certainty all material and essential terms or prescribe a sufficiently certain method for ascertaining the terms, in order for courts to deem it a contract.
Quake Construction, Inc. v. American Airlines, Inc. (1990) Quake submits bid. AA orally confirms, but can’t submit license #’s unless they confirm they’re going to do it. Send Intent letter. AA has right to cancel letter if Quake doesn’t agree to terms. AA says job, not a contract. Quake says letter authorizes work. Essential terms are there. Issue: Is the letter of intent from Jones Construction (on behalf of AA) to Quake an enforceable contract? Can Quake sue for breach?(Court warns future cases to write their letter of intent carefully). Not exactly. The letter of intent was ambiguous. On one hand, it had a clause that said that Jones can cancel if contract not agreed upon. However, the language included that it was “authorizing”, and also a schedule. It is a contract in its own right. 

A LETTER OF INTENT IS A CONTRACT TO ENGAGE IN NEGOTIATIONS.

 
X. Electronic Contracting
 
Can we think of Brower as two contracts? or Did he agree to additional terms? Customer giving money is not an offer. Offer is when merchandise shipped. “The vendor is the offeror” – Judge Easter-Brooks
 
Contract of Adhesion – prepared by one party, signed by another in a weaker position. “Take it or leave it”. By the time they get offer, they are in no position to reject it.
 
Lexis: Where an offer is communicated by an electronic program and the offeree has reason to know that he is dealing with an electronic agent not programmed to responds to additional terms or queries, any additional or different terms stated in the acceptance are ineffective.
 
Case Summary Rule
Brower v. Gateway 2000, Inc. (1998) P brought PC from D. “Shrinkwrap” agreement included an arbitration clause. P sued, claiming breach of warranty. D dismissed claim on arbitration clause. P claims it is unconscionable (since the ICC, located in France, would be presiding arbitration.) Trial Court finds for D. Issue: Is the designation of the ICC as the arbitrator unconscionable? Yes. UCC 2-302 allows courts to flexibly police against clauses that they find unconscionable. Unequal bargaining power, contract of adhesion. How had P accepted contract? By not returning merchandise within 30 days. The arbitrator chosen was NOT fair, and was designed to discourage customers from arbitration.
Register.com v. Verio, Inc. (2004) Register.com’s database was being looked at by Verio everyday in order to solicit business. Their solicitations mentioned recent acquiring of a domain name. P asked D to stop several times. Eventually they did, but refused to sign anything. Also, they stopped email solicitations, but continued phone calls and snail mail. P called for a restraining order, and injunction. (ICANN oversees P.) Issue: Is Verio legally bound even though it saw the legend w/ Register.com’s terms after dling? Are they bound even though they rejected them? Yes and Yes. Since they went multiple times, and were well aware of the existence of the terms, they couldn’t use that as an excuse. They also admitted knowing, so they are bound. When a benefit is offered, it is up to the offeree to accept terms, or otherwise decline the benefit.
 
XI. Promissory Estoppel
 
Lexis: When a promisee foreseeably relies to his detriment on the promisor’s promise, even in the absence of an enforceable contract, the doctrine of promissory estoppel may be invoked to make such promise binding in order to prevent injustice. The remedy in such cases is based on the extent of the promisee’s reliance, not his expectation. The Restatement, Second, eliminated the requirement from the Restatement, First, that the detriment be “substantial.”
 
Reasonable reliance, promise, detirment of promise.
 
Implied-in-law: quasi contract, quantum meruit, unjust enrichment, common counts
Implied-in-fact: conduct, restitution, implies there was an agreement (act as if there was a contract)
charitiable suscription: an oral or written promise to do certain acts or to give real or personal property to a charity or for a charitable purpose
detrimental reliance: to be worse off bc of reliance
 
3 usual cases:
(1) emergency services – may not require formalities of a contract
(2) would have been possible to form contract, but there was no contractural agreement
(3) family context
 
Section 90 of the 2nd Restatement : Promise Reasonably Inducing Action or Forbearance
 
Case Summary Rule
Kirksey v. Kirksey (1845) D is brother of P’s deceased husband. D offered P home on his property. P relocated 60 miles, and lived there for 2 years. D then moved P to remote area of property and then asked her to leave altogether. P sued for breach of contract, and said that her moving was consideration. Issue: Is a gratuitous promise enforceable where a party has reasonably relied on that promise and has suffered loss and inconvenience? No. A GRATUITOUS PROMISE IS NOT ENFORCEABLE IF A PARTY HAS REASONABLY RELIED ON THAT PROMISE AND HAS SUFFERED LOSS AND INCONVENIENCE. 

*This wouldn’t be true modern day. The doctrine of promissory estoppel is a consideration substitute, and is examined. The dissent of this case makes a note of that.

Greiner v. Greiner (1930) P (a widow) offered land she inherited to one of her stepsons (D), who had been disinherited. D lived in another county, but accepted P’s offer and moved. P later tried to force D out, and D counter-sued. Trial court favored D and ordered P to execute deed. D had been living there for a year before being asked to leave. P appealed. Issue: Can a promise be enforceable even though it does not contain any consideration? Yes. A promise reasonably inducing definite and substantial action is binding. P fulfilled by setting apart land for D. There was definitiveness when they specified the land. 

PROMISSORY ESTOPPEL CAN ONLY BE INVOKED IN CASES WHERE THERE IS NO VALID CONSIDERATION.

King v. Trustees of Boston University (1995) Dr. Martin Luther King had written a letter, where he offered his papers to BU. Coretta Scott King was now suing, stating that it is actually part of the estate. Letter says, “remains my legal property until otherwise noted”. Also argues its not a valid will. Issue: Was Dr. King’s letter containing of a promise supported by consideration or reliance? Yes. In the language he is stating that he’s making a gift. The promise to give the papers was enforceable as a charitable pledge supported by consideration or reliance. 

Charitable pledge, not a contract.

 
XII. Restitution
 
Not just used in contract law –became its own body of law. (esp. in Property)
 
Lexis:compensates a party for the benefit conferred on the other party as a result of partial performance or reliance, and is aimed at preventing unjust enrichment. Restitution damages may be measured by:
  • the reasonable value of the benefit received in terms of what it would have cost to obtain such benefit from another source
  • the extent to which the value of the party’s property has been increased or his other interests advanced.

Restitution may be available:

  • in cases of breach, to either party
  • where a contract is unenforceable (e.g., due to lack of consideration or writing)
  • where a contract is voidable
  • where a duty is excused or discharged due to impracticability, frustration of purpose, non-occurrence of a condition, or disclaimer by a beneficiary
  • in void contracts to a party not in pari delicto.

 

 unjust enrichment: have to prove 2 things: exhaustion of remedies and other party not giving up anything for something

Implied-in-law: quasi contract, quantum meruit, unjust enrichment, common counts
Implied-in-fact: conduct, restitution, implies there was an agreement (act as if there was a contract)
 
Case Summary Rule
Watts v. Watts (1987) Sue and James Watts never married and are now separated. 5 claims from her: (1) entitled to equal division of property under “family” statute, (2) he should be estopped to assert to P’s claim, (3) entitled to damages for D’s breach of an implied-in-fact contract, (4) D is unjustly enriched, and (5) partition statutes. She acted as a “housewife” and also helped in his business. Circuit ct. dismissed. She claims they lived as husband and wife. Reasoning: (1) shouldn’t apply to non-married, but courts should still be able to examine. (2) also can’t be applied. Steffes – man was also in illicit relationship, why should he get all the benefits? (5) she has a claim for partition as well, since this goes for all cohabitants. (3) D’s argument – should wait for legislation, ct. dismisses this, and also that illicit moral behavior makes it invalid. SEX WASN’T A CONDITION. SO YES, IMPLIED-IN-FACT CONTRACT (joint tax returns and bank accounts) (4) RECOVERY BASED ON UNJUST ENRICHMENT IS A “QUASI-CONTRACT” OR “IMPLIED-IN-LAW”. These are obligations created by law to prevent injustice.
Commerce Partnership 8098 Lts. Partnership v. Equity Contracting Co., Inc. (1997) Commerce oversaw a general contractor, which had a contract w/ Equity. General contractor went bankrupt before paying D. D sues P on quantum meroit. P holds they never had a contract w/ D before. D claims P is unjustly enriched. Reasoning: One didn’t know what the other is claiming. Implied -in- contract (from conduct), they act as if they had an agreement. Equity has to prove 2 things. (1) exhaustion of remedies, (2) commerce not paying anyone else for the work (making them unjustly enriched). Commerce got something and didn’t pay for it. They claim they paid out $223,065. Was any of this money given to Equity? Implied in contract case.  This is analyzed by conduct. If Commerce had indeed paid out, Commerce hasn’t been unjustly enriched.
Quasi K- Pl conferred benefit on def.
Def has knowledge of benefit
Def has accepted or retained the benefit conferred
it would be inequitable for def to retain the benefit w/o paying fair value.
Credit-Bureau Enterprises, Inc. v. Pelo (2000) Pelo was hospitalized after making suicidal threats. A magistrate ordered a 48 hour stay. There were forms for method of payment, that he refused to sign, but a nurse made him. He was kept for 5 days. A small claims court entered summary judgement for P. On appeal. Issue: Did Pelo not owe hospital anything since he had not requested the hospitalization or gained any benefits from it? No, he did owe them. Pelo was liable for services provided since he entered into a quasi-contract (implied contract-in-law). 

THERE IS AN IMPLIED CONTRACT IF PARTY BENEFITS. (performed services, recepient benefits)

 

 
XIII. Promissory Restitution
 
Recipient of services promises to pay, but only after receving benefits. Classical theory would see this as “past consideration”.
Debts incurred aren’t subject to statute of limitations, since they exist before they become legally binding.
material benefit rule: if a person receives a material benefit from another, other than gratuitously, a subsequent promise to compensate the person for rendering such benefit is enforcable
 
Case Summary Rule
Mills v. Wyman (1825) Son of D was returning from a voyage at sea when he got ill. P took care of him up until his death. D promised to pay for all expenses incurred before his son died. He then didn’t want to pay, and P is suing for the promised money. Issue: Was there consideration? Is moral obligation consideration? No, there was only peace of mind – son didn’t die a pauper, taken care of at the end. benefits – didn’t have to pay for it. Courts put this on the conscience of the promisor. Son was already 25 and out of his father’s home, so there was no obligation. MORAL OBLIGATION IS NOT A LEGAL CLAIM.
Webb v. McGowin (1935) P saw McGown standing below the mill he was working at only after he threw a pine block. Knowing it would hurt him, he threw himself in order to divert the block. In doing this, he became disabled. McGown agreed to pay him weekly for the rest of his life. McGowin died some years later, and the estate stopped paying. Issue: Is there a valid contract for P to keep getting paid? Reasoning : McGown became morally cound when his life was saved. Agreement was complied for the next 8 years. Here the promisor received a material benefit constituting valid consideration. (Rendered at McGown’s request anyway). There is no consideration under classical contract law. THis court, however will not follow traditionally. BENEFIT TO THE PROMISOR OR INJURY TO THE PROMISEE IS SUFFICIENT LEGAL CONSIDERATION FOR THE PROMISOR’S AGREEMENT TO PAY.
 
XIV. Statute of Frauds
 
If a promise is not supported by consideration (or some substitute), then compliance with the statute of frauds will not be sufficient for enforcement.
Must be in wiriting (Cannot prove oral contract), all essential terms must be in writing (can be several documents), must be a signature, must link documents (if cannot – then no contract. can use parole evidence to do this)
 
Not intended as an excape route for persons seeking to avoid obligations undertaken or imposed upon them.
 
parol evidence rule – operates in situations where there is a writing that represents the final embodiment of the contract or some of its terms. The rule governs whether parties may introduce evidence of extrinsic agreements to prove the existence of additional or modified terms. If contract is ambiguous on its face, then this rule can’t apply.
 
Is contract within the statute? Is the statute satisfied? Any additional evidence?
 
LEXIS:

1) be memorialized in a writing or record;2) be signed by or on behalf of the party against whom enforcement is sought;

3) indicate that a contract has been made between the parties;

4) state with reasonable certainty the essential terms of the unperformed promises, in the case of non-goods contracts;

5) specify the term of quantity, in the case of contracts for the sale of goods . UCC § 2-201 specifically states that “a record is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable . . . beyond the quantity of goods shown in the record.”

Contracts Within the Statute of Frauds

The following types of agreements fall within the statute of frauds:

1) Agreements that by its terms cannot be performed within a year from the making of the contract

2) Promise to answer for the debt, default or miscarriage of another – A promise by a surety or guarantor to a creditor to pay the debt or perform the obligation of a principal debtor must be in writing where the creditor has reason to know of the surety/guarantor relationship. Many states likewise require a writing to memorialize a promise by an executor or other personal representatives to pay the obligations of the estate which they represent with their own funds. This requirement does not apply when the promise merely involves payment of another’s debts with funds that belong to the debtor or which the promisor holds for the purpose of paying the debtor’s obligations.

3) Agreements made upon consideration of marriage, other than mutual promises to marry, e.g., to provide a dowry or child support.

4) Agreements for the sale of land and for an interest in land

5) Agreements for the lease of real property for longer than one year

6) Agreement by a purchaser of real property to pay an indebtedness secured by a mortgage or deed of trust upon the property, unless assumption of the indebtedness by the purchaser is specifically provided for in the conveyance of the property.

7) Contracts for the sale of goods for the price of $500 or more [UCC § 2-201]; under the proposed revision, the price threshold is raised to $5,000

8) Contracts for sale of other personal property – e.g, intellectual property, royalties – in the amount or value exceeding $5,000

9) Leases of goods in the total amount of $1,000 or more [UCC § 2A-201]

10) Agreements which creates a security interest in personal property if it is not in possession of the secured party, and agreements for the assignment of contract rights [UCC § 9-203

 
Case Summary Rule
Crabtree v. Elizabeth Arden (1953) P asked D for 3 year contract after a job offer. Arden said she can offer 2 year contract (20K for first 6 mos, 25K for 2nd 6 mos, 30K for 2nd year) He took this. After one year, they wouldn’t increase to 30,000, Arden refused to approve pay increase, and he left employment. D said no contract existed, and even if it did, Statute of Frauds would bar its enforcement. Issue : Does the memorandum satisfy the statute of frauds? Reasoning: Yes, there is sufficient connection btw. papers. THE STATUTE OF FRAUDS DOES NOT REQUIRE THE MEMORANDUM TO BE IN ONE DOCUMENT. SIGNED AND UNSIGNED WRITINGS CAN BE READ TOGETHER, PROVIDED THAT THEY CLEARLY REFER TO THE SAME SUBJECT MATTER OR TRANSACTION.
Alaska Democratic Party v. Rice (1997) D worked for P until 1991, when she was fired. She began to work for the Maryland Democratic Party. Wakefield was new chair of P, and contacted D to be his executive director. Landau, chair of the Maryland DP, resigned to work for VP Gore and asked D to come with him. She accepted, but later decided to work for P. Wakefield then stated she can’t have the job. Lower Ct. awarded her claims, and appeal followed. Issue: Can the doctrine of promissory estoppel be invoked to enforce an oral contract that falls within the statute of frauds? RESTATEMENT 39. ENFORCEMENT BY VIRTUE OF ACTION IN RELIANCE APPLIES. (D did resign from her job, move to Alaska, and lose money. Her reliance on oral reps. were reasonable. Victim of injustice w/o any remedies.)
 
XV. Principles of Interpretation
 
10 Maxims –
 
Parol Evidence Rule – doctrine precluding parties to an agreement from introducing evidence of prior or contemporaneous agreements in order to repudiate or alter the terms of a written contract.
 
 used to exclude evidence.
 
Not so much a rule of evidence as it is of substantive law.
 
The parol evidence rule does not apply to evidence offered
-to show that the agreement is invalid for any reason, such as fraud, duress, undue influence, incapacity, mistake, or illegality.
-to explain the meaning of the agreement
-made AFTER the execution of the writings
-to show that effectiveness of the agreement was subject to an oral condition precedent.
-to establish a right to an “equitable” remedy, such as reformation of the contract.
– to establish a collateral agreement between the parties
 
Case Summary Rule
Thompson v. Libby (1885) P brought an action to enforce a written contract for the sale of logs. D defended on on oral warranty. Issue: May parol evidence be admitted to prove the existence of a contemporary parol warranty? WHEN A CONTRACT IS COMPLETE ON ITS FACE, PAROL TESTIMONY IS INADMISSABLE TO VARY ITS TERMS.
Taylor v. State Farm Mutual Automobile Insurance Co. (1993) P was insured by D when he was in an accident. The other parties sued P in 2.5 million excess of his insurance limits. Ct. of Appeals affirmed those claims. P sued D for bad faith, seeking damages for the excess judgement, stating that D failed to settle within its limits. D says it was barred by release he signed in 1981, regarding his cycling insurance. Issue: Must a judge first consider the offered evidence and, if he finds that the contract language is “reasonable susceptible” to the interpretation asserted by its proponent, admit the evidence to determine the meaning intended by the parties? A JUDGE MUST FIRST CONSIDER THE OFFERED EVIDENCE AND, IF HE OR SHE FINDS THAT THE CONRACT LANGUAGE IS “REASONABLY SUSCEPTIBLE” TO THE INTERPRETATION ASSERTED BY ITS PROPONENT, ADMIT THE EVIDENCE TO DETERMINE THE MEANING INTENDED BY THE PARTIES.
 
XVI. Implied Obligation of Good Faith
 
Every contract imposes an obligation of good faith in its performance or enforcement. – can be seen as protecting the reasonable expectations.
Implied Warranty – a promise made by one party to a contract that the other may rely on a fact, reliving that party from the obligation of determining whether the fact is true and indemnifying the other party from liability if the fact is shown to be false.
warranties – caveat emptor – let the buyer beware – DOCTRINE THAT THE BUYER PURCHASES SOMETHING AT ITS OWN RISK
 
 
Case Summary Rule
Caceci v. DiCanio Construction Corp. (1988) P contracted with D for a parcel of land on which a one-family ranch home was to be contructed. D guaranteed the plumbing, heating, and electrical work, roof, basement walls for 1 year from title closing. When the kitchen floor started dipping 4 years later, D unsuccessfully attempted to repair the cracks. P sued for breach of duty. Issue: Does the housing merchant warranty impose by legal implication a contractural liability on a homebuilder for skillful performance and quality of a newly constructed home? YES, IT IMPOSES BY LEGAL IMPLICATION ON A CONTRACTURAL LIABILITY ON A HOMEBUILDER FOR SKILLFUL PERFORMANCE AND QUALITY OF A NEWLY CONSTRUCTED HOME.
Locke v. Warner Bros. (1997) Clint Eastwood “get her off my back” case. P claimed that D denied her the benefit of her bargain, breached her contract, fradulently entered into the agreement with her, and discriminated against her on the basis of sex when it refused to develop any projects she presented. WHERE A CONTRACT CONFERS ON ONE PARTY A DISCRETIONARY POWER AFFECTING THE RIGHTS OF THE OTHER, A DUTY IS IMPOSED TO EXERCISE THAT DISCRETION IN GOOD FAITH AND IN ACCORDANCE WITH FAIR DEALING.
 
XVII. Avoiding Enforcement
Duress / Undue Influence
bequest – a transfer of property that is accomplished by means of a testamentary instrument
rescission – the cancelling of an agreement and the return of the parties to their positions prior to the formation of the contract
undue influence – improper influence that deprives the individual freedom of choice or substitutes another’s choice for the own person’s 
duress – unlawful threats or other coercive behavior by one person that causes another to commit acts he would not otherwise do
economic duress – defense to an action that a party was unlawfully coerced into the performance of an action by another due to fear of imminent econmic loss and was not acting in accordance with own free volition   
 
Case Summary Rule
Odorizzi v. Bloomfield School District (1966) P was arested for homosexual criminal activity. At the time, was under contract as a teacher for D. After being released on bail, was told to resign. P was aquitted of charges, but was refused employment. Says he was under duress when asked to resign. WHEN A PARTY’S WILL HAS BEEN OVERBORNE, SO THAT IN EFFECT HIS ACTIONS ARE NOT HIS OWN, A CHARGE OF UNDUE INFLUENCE MAY BE SUSTAINED.
Totem Marine Tug & Barge, Inc., v. Alyeska Pipeline Service Co. (1978) P was contracted with D. D cancelled contract w/o reason, and due to impending bankruptcy, P settled. Later sued, claiming economic duress. A CONTRACT CAN BE VOIDED IF IT WAS ENTERED INTO AS THE RESULT OF ECONOMIC DURESS.
 
XVIII. Unconscionability
 
Rule of law whereby a court may excuse performance of a contract, or of a particular contract term, if it determines that such terms are unduly oppressive or unfair to one party to the contract.
 
Case Summary Rule
Williams v. Walker-Thomas Furniture Co. (1965) P brought furniture, form was unfair. Had already paid over 1,000, but was 164 overdue. now. D now was going to replvy all furniture. THE DEFENSE OF UNCONSCIONABILITY TO ACTION ON A CONTRACT IS JUDICIALLY RECOGNIZED.
XVIX. Contract Avoidance – Public Policy
 
restrictive covenant – a promise contained in a deed to limit the uses to which the property will be made
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oh i just remembered…

December 8, 2008

Funny how many things come to mind when I’m trying to focus on studying. I have never been a person that can sit still long for anything, so when I took 3 days off from work (its day 1) to solely work on my contracts outline and memorize it, i immediately found a million ways to procastinate. All of a sudden, I want to contact old friends I kept meaning to. I want to go out and buy a Christmas stocking for my nephew Charlie for his first Christmas. I want to clean my room. I want to upload pics to facebook, since I’m so behind on that. Oh and look at this, I also remembered I had a blog at one point.

 Law school itself isn’t so bad. It’s combining it with a full time job and caring for a sick parent where it gets complicated. I really do wish there were 36 hours in the day, just so I can get more done. I’m not regretting going to law school, in fact, going over contracts has been very interesting. I just miss having free time sometimes. I miss being able to spontaneously go away for a weekend, or grab a few drinks with my friends after work. I miss being able to dedicate 2 hours to my neice in the evening, where we could play. I guess it’ll be worth it in the end…right?

 I haven’t looked forward to Christmas break as I am this this time in years. After losing my father a few years ago, the holidays seemed kind of meaningless, and I was working around the time anyway. Even going to Florida the year before last for the entire month of my break wasn’t the most exciting thing. This year though…I am crazy-excited! I have 2 finals left, and then I will be able to just go home after work and be able to start my christmas shopping, take Amanda to see Santa Claus at Macy’s, write out cards for people, and pack for my vacation. (I’m going to Punta Cana in January.) I will be able to spend more time with my mom, which I have been feeling guilty about. I will be able to see my friends whenever I want (after business hours) and attend holiday parties. I am so happy that its the season.

Now back to my contracts outline…

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kiss off

September 8, 2008

I take one, one one cause you left me and
two two two for my family and
three three three for my heartache and 
four four four for my headaches and 
five five five for my lonely and 
six six six for my sorrow and 
seven SEVEN for no tomorrow and
eight eight…I forget what 8 was for and
nine NINE NINE for a lost god and 
ten ten ten ten for everything
everything everything EVERYTHING

disclaimer: nah I’m not depressed, popping pills, or is this entry supposed to be philosophical in any way. I’ve just been stuck with this song all day, and I think its great.

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Developments // Stuff

July 8, 2008

I’ve been neglecting this thing even more than usual lately. This is because of all sorts of crazy things going on. I feel bad about not documenting the last season at Shea, but I’ll try to catch up as much as I can. In all honestly, I was inspired since I just got home from the most lopsided Mets game I’ve been to all season (METS WIN 7-0!!). So the best thing is to just list out my excuses:

  • I got into Law School. I actually got into a few schools, and after constant pro/cons lists, I’ve decided on NY Law in Tribeca. I start in less than 5 weeks. I’m not really nervous as much as I am anticipating how busy I’ll be. My days will be full…
  • That’s right, I’m still going to be working full time. Actually, I recently received a promotion. I went from being a Constituent Liaison for Chuck Schumer to being the Deputy Immigration Director. This means a lot more paperwork and less creativity, but at least its a lot closer to actual legal work. I’ve been putting long hours into the office recently since no one was hired for my old position for awhile, so I was splitting my time.
  • I took a vacation with my pookie, Steve. We went to Puerto Plata, Dominican Republic and had an AMAZING time! Getting bit by pirhanas, staying at an all-inclusive resort, riding ATV’s, going horseback riding through the mountains, meeting some Dominicans that were like bizarro-us, dancing every night, and eating eating eating sums up only some of what turned out to be one of the greatest weeks of my life. I lovvvvvvvve you.
  • I am currently looking for an apartment. So if anyone knows of anyone needing a roommate…? My office is in midtown and my classes will be in tribeca so it only makes sense I steer towards the city. 9am-10pm days will not make fun times going allll the way back to Fresh Meadows everyday. I really didn’t want to resort to finding a stranger for a roommate on Craigslist, but it seems that’s what I’ll have to do.
  • Just spent this past weeked in Philadelphia. Fun city, but let me just point out I went to the worst baseball game of my life, and that’s saying A LOT. The Phillies won in the bottom of the 9th, beating the Mets in the only game they won in the 4 game series. (naturally i didn’t see the other 3). I also fell down the stairs pretty harshly, proving that the stadium itself rejects me.
  • My mom is still pretty sick. I thank people that are keeping her in their prayers. I’m at a loss at how to help her anymore. Just trying to make her happy, and hoping that makes her feel better is all I can do right now. =(

Hmmm that pretty much sums up everything I have been busy with lately. I’ll have pictures of Dominican Republic soon, and maybe a Mets entry or 2. I can still remember those in detail.

Here’s a picture of a perfect day in Puerto Plata.

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True Love. What a Tragedy.

June 5, 2008

An article that struck me today while I was on the overcrowded E train and actually made me smile:

Crane vic’s fiance turns down aid from Mets player

Wednesday, June 4th 2008, 10:42 PM

The fiancee of a crane operator killed in last week’s tragic collapse on Wednesday rejected an offer of help from Mets star Ryan Church because her future hubby was a Yankee fan.

A day after burying Donald Leo, Janine Belcastro said she couldn’t accept the offer from the right fielder and his wife.

“Don was a die-hard Yankee fan,” Belcastro said in a statement. “It would not respect his memory if he accepted this.”

The grieving Belcastro added that she “greatly appreciated” the offer.

The money was to come from Church’s participation in a Mets’ fund-raiser for a variety of causes. A spokesman said Church will choose another charity.

Now that’s LOVE. Seriously. She understood her fiancee like a true soulmate would. Often times, people don’t believe me when I say that Baseball is like a religion, and Shea Stadium is the most sacred place for me. This guy had felt the same way, and she got that. It’s such a shame that the crane killed him, especially right before his wedding. R.I.P., even though you were a Yankees Fan.

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best loss ever.

June 4, 2008

the game i went to almost a month ago (i had been dreading doing this post, since i tried to block this game out of my mind) was both the WORST and BEST loss i have ever been to. why was it the worst? the mets lost by 6 runs to the lowly NATIONALS, and on top of that i dropped my $5 hot dog. why was it the best? because i was plastered.

so the game started out ok. the mets were even winning at one point. and the nats were using Odalis Perez. You know, that pitcher that hadn’t even won a game yet. figueroa was pitching for us again, and showing promise still.

but it was all for not. i don’t even want to get into detail. its pretty painful. the only bright side is that joe smith struck out the side. i was with my best friend frank (president/only member, official joe smith fan club) so this was amazing for him of course. we also ran into the steves there, who i think were a date or something.

finding our way home was some of the funnest time i have ever had with frank, or at shea. good times, good times.

record: 3-2 (.600)