ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, December 14, 2017

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 14, 2017)

Top-10 Scrolling

Top Downloads for: Contracts & Commercial Law eJournal

Recent Top Papers (60 days) as of: 15 Oct 2017 - 14 Dec 2017

Rank

Paper

Downloads

1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Lee C. Buchheit and G. Mitu Gulati

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law

323

2.

Transatlantic Data Privacy

Paul M. Schwartz and Karl-Nikolaus Peifer

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law

195

3.

Pseudo-Contract & Shared Meaning Analysis

Robin Bradley Kar and Margaret Jane Radin

University of Illinois College of Law and University of Toronto - Faculty of Law

162

4.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

Natali Helberger, Frederik J. Zuiderveen Borgesius and Agustin Reyna

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation

137

5.

Abolishing Consideration: An Argument from Coherence

Azfer A. Khan

Harvard University, Law School, Students

127

6.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

Omri Ben-Shahar and Ariel Porat

University of Chicago Law School and Tel Aviv University

116

7.

Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering?

Gillian K. Hadfield and Barry R. Weingast

USC Law School and Department of Economics and Stanford University, Department of Political Science

106

8.

Objective Plain Meaning in Common Law Contracts

Stephen C. Mouritsen

University of Chicago - Law School

101

9.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Jay A. Mitchell

Stanford Law School

94

10.

Deal Momentum

Cathy Hwang

Stanford Law School

90

 

Top Downloads for: Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days) as of: 15 Oct 2017 - 14 Dec 2017

Rank

Paper

Downloads

1.

Introduction: Contract in Commercial Law

James J. Edelman, James Goudkamp and Simone Degeling

University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law

226

2.

Transatlantic Data Privacy

Paul M. Schwartz and Karl-Nikolaus Peifer

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law

196

3.

‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations

Amr Omran

Freshfields Bruckhaus Deringer LLP, Dubai, United Arab Emirates

165

4.

Pseudo-Contract & Shared Meaning Analysis

Robin Bradley Kar and Margaret Jane Radin

University of Illinois College of Law and University of Toronto - Faculty of Law

162

5.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

Natali Helberger, Frederik J. Zuiderveen Borgesius and Agustin Reyna

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation

137

6.

Creatures of Contract: A Half-Truth about LLCs

Mohsen Manesh

University of Oregon School of Law

134

7.

Abolishing Consideration: An Argument from Coherence

Azfer A. Khan

Harvard University, Law School, Students

127

8.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

Omri Ben-Shahar and Ariel Porat

University of Chicago Law School and Tel Aviv University

116

9.

Objective Plain Meaning in Common Law Contracts

Stephen C. Mouritsen

University of Chicago - Law School

101

10.

Crowdfunding Signals

Darian M. Ibrahim

William & Mary Law School

95

 

December 14, 2017 in Recent Scholarship | Permalink

Monday, December 11, 2017

Contracts Law Contributing the Greatest to MBE Performance

Were you aware of this?  A first-of-its-kind study exploring the relationship between specific law school courses and components of the bar exam has identified Contracts as making the greatest contribution to performance on the Multistate Bar Examination among first-time takers.  Most of the other MBE-subject courses showed no significant contribution to overall MBE performance.  Austin, Christopher, and Dickerson, Will I Pass the Bar Exam?: Predicting Student Success Using LSAT Scores and Law School Performance, 45 Hofstra Law Review 753, 772 (2017), available here: http://www.hofstralawreview.org/wp-content/uploads/2017/06/BB.2.Austin-et-al.NEW_.pdf

Hat tip to Otto Stockmeyer for this story!

 

December 11, 2017 in Commentary, Contract Profs, Law Schools | Permalink

Thursday, December 7, 2017

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 7, 2017)

Top-10-3D

Top Downloads For: Contracts & Commercial Law eJournal SSRN Logo2

Recent Top Papers (60 days) as of 08 Oct 2017 - 07 Dec 2017
 
Rank Paper Downloads
1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law
317
2.

Tracing Equity: Realizing and Allocating Value in Chapter 11

University of North Carolina School of Law and Brooklyn Law School
187
3.

Pseudo-Contract & Shared Meaning Analysis

University of Illinois College of Law and University of Toronto - Faculty of Law
136
4.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
122
5.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
118
6.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
113
7.

Legal Certainty: A Common Law View and a Critique

Durham University
111
8.

Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering?

USC Law School and Department of Economics and Stanford University, Department of Political Science
102
9.

Objective Plain Meaning in Common Law Contracts

University of Chicago - Law School
95
10.

Transatlantic Data Privacy

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law
91

 

Top Downloads For: Law & Society: Private Law - Contracts eJournal SSRN Logo2

Recent Top Papers (60 days) as of 08 Oct 2017 - 07 Dec 2017
 
Rank Paper Downloads
1.

Introduction: Contract in Commercial Law

University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law
224
2.

‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations

Freshfields Bruckhaus Deringer LLP, Dubai, United Arab Emirates
162
3.

Pseudo-Contract & Shared Meaning Analysis

University of Illinois College of Law and University of Toronto - Faculty of Law
136
4.

Creatures of Contract: A Half-Truth about LLCs

University of Oregon School of Law
129
5.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
122
6.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
118
7.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
113
8.

Legal Certainty: A Common Law View and a Critique

Durham University
111
9.

Objective Plain Meaning in Common Law Contracts

University of Chicago - Law School
95
10.

Transatlantic Data Privacy

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law
94

 

December 7, 2017 in Recent Scholarship | Permalink

Wednesday, December 6, 2017

Emails can be enforceable, even if a contemplated contract is never signed

A recent case out of the Southern District of New York, Nusbaum v. E-Lo Sportswear LLC, 17-cv-3646 (KBF) (behind paywall), granted summary judgment based on a chain of emails between an employer and employee. The emails were discussing a severance provision, and the last email in the chain read in relevant part, "I am agreeing to the below . . . . I will sign when I get back." The parties never executed any further document. 

The court nevertheless found an enforceable contract between them. Although it was true that the emails seemed to contemplate a final agreement, it was also true that both parties regarded the negotiations as concluded and the agreement reached at the time of the final email. The employee than spent nineteen months performing under this perceived agreement. It was clear from the emails that the parties had reached agreement on the material term, and the matter was not so complex that it needed to be reduced to a formal writing. Indeed, the employer admitted it usually did not reduce employment agreements to a formal writing. Therefore, the emails demonstrated that the parties had reached agreement and they were enforceable. 

December 6, 2017 in Labor Contracts, Recent Cases, True Contracts | Permalink | Comments (0)

Monday, December 4, 2017

As long as an idea is new to you, New York court finds it can serve as consideration

If you're looking for fact patterns involving consideration, a recent case out of the Northern District of New York, West v. eBay, Inc., 1:17-cv-285 (MAD/CFH) (behind paywall), has one for you. 

The following allegations appeared in the complaint: West worked as a consultant for eBay. As a consultant, West told eBay about a business plan he had which represented a "unique business model" for virtual marketplaces. West said he was cautious about sharing his business plan, and eBay promised to keep the business plan confidential. West then sent the business plan to eBay. eBay subsequently promised to compensate West if it used the business plan. eBay then developed a mobile app that West alleged used the business plan. eBay, however, stated that the app was "independently conceived" by other eBay employees. This lawsuit followed, and eBay moved to dismiss West's complaint. 

One of eBay's asserted grounds for dismissal was a lack of adequate consideration for the contract alleged in West's complaint. eBay claimed that the business plan was not "novel" and so had no value and could not serve as consideration. The court noted that under New York law, a not-novel idea can be adequate consideration if it was novel to the party to whom it was being disclosed. This requires a fact-specific inquiry. At the motion to dismiss stage, West had asserted enough facts that the business plan was idea was novel to eBay, meaning that it could serve as adequate consideration for the contract. 

There were other causes of action and arguments involved that I'm not going to get into here, but the complaint also contained promissory estoppel and unjust enrichment claims that also survived the motion to dismiss, if you're interested. 

December 4, 2017 in E-commerce, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)

Friday, December 1, 2017

Casual, young, fun Mexican restaurants have to be allowed to play music!

Montana brings us an anticipatory breach case about a Mexican restaurant, Bridger Del Sol, Inc. v. VincentView, LLC, DA 17-0186

Bridger Del Sol ("BDS") leased some property from VincentView for the purpose of operating a "casual, young, fun Mexican restaurant." I appreciate these adjectives. BDS's Mexican restaurant sounds like a place I'd want to be friends with. 

BDS opened its casual, young, fun restaurant but the upstairs tenants turned out to not be so keen on their hip new downstairs neighbor, complaining about noise and cooking smells. VincentView then sent BDS a Notice of Default and stated that it would take over the premises prior to the expiration of the lease unless BDS stopped playing music and emitting cooking odors. 

The court characterized that as an anticipatory breach on VincentView's part. As the court noted, "Restaurants commonly play music and must cook. Thus, VincentView's new rules were not reasonable or fair to BDS." This was therefore a breach of VincentView's duty of good faith and fair dealing and VincentView would have been unjustified in retaking the premises as it threatened unequivocally to do. 

December 1, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, November 30, 2017

Here's an Example of an Illegal Contract

I always struggle to think of examples of illegal contracts other than contracts to kill people, which makes for a dramatic class discussion but I fear might cause the students to write off illegal contracts as a subject better suited for Breaking Bad or something. So I was delighted to come across this recent case out of Michigan, M-D Investments Land Management, LLC v. 5 Lakes Adjusting, LLC, No. 336394 (behind paywall), dealing with an illegal contract. 

While the contract is found illegal in this case, the facts are not glamorous. The plaintiff hired the defendant to adjust its fire insurance claim and signed a contract for the services. Later, the plaintiff filed this action seeking a declaration that the contract between the parties was illegal as against public policy, and therefore voidable at the plaintiff's option. The issue was that the contract had not been approved by the Department of Insurance and Financial Services ("DIFS") as required by Michigan statute. 

The trial court found the contract in violation of the statute and thus voidable, and this appellate court agreed. The statute required the adjuster to seek approval from DIFS of its contract, and the defendant's failure to do so, no matter the reason, made the contract at least voidable at the plaintiff's option (which the plaintiff had chosen to exercise), if not void altogether. 

The defendant argued that it has since obtained DIFS approval of its contract. However, it was undisputed that it did not have this approval for the entire time the contract with the plaintiff was in effect. Thus, the contract could not be saved by after-the-fact approval.  

November 30, 2017 in Commentary, Law Schools, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)

Contracts and Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (November 30, 2017)

Top Ten Logo 2

 

Top Downloads for Contracts & Commercial Law eJournal SSRN Logo2

Recent Top Papers (60 days) as of 01 Oct 2017 - 30 Nov 2017

Rank Paper Downloads
1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law
315
2.

Tracing Equity: Realizing and Allocating Value in Chapter 11

University of North Carolina School of Law and Brooklyn Law School
184
3.

Smart Contracts: Terminology, Technical Limitations and Real World Complexity

Singapore Management University
129
4.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
110
5.

Legal Certainty: A Common Law View and a Critique

Durham University
107
6.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
106
7.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
105
8.

Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering?

USC Law School and Department of Economics and Stanford University, Department of Political Science
101
9.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Stanford Law School
88
10.

Objective Plain Meaning in Common Law Contracts

University of Chicago - Law School
84

 

Top Downloads for Law & Society: Private Law - Contracts eJournal SSRN Logo2

Recent Top Papers (60 days) as of 01 Oct 2017 - 30 Nov 2017

Rank Paper Downloads
1.

Introduction: Contract in Commercial Law

University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law
217
2.

‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations

Freshfields Bruckhaus Deringer LLP, Dubai, United Arab Emirates
152
3.

Smart Contracts: Terminology, Technical Limitations and Real World Complexity

Singapore Management University
129
4.

Creatures of Contract: A Half-Truth about LLCs

University of Oregon School of Law
124
5.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
111
6.

Legal Certainty: A Common Law View and a Critique

Durham University
107
7.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
106
8.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
105
9.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Stanford Law School
88
10.

Objective Plain Meaning in Common Law Contracts

University of Chicago - Law School
84

 

November 30, 2017 in Recent Scholarship | Permalink

Wednesday, November 29, 2017

If You Really Want a Meeting, Don't Be Casual About It - Propose a Time!

As a recent case out of Utah, Desert Mountain Gold LLC v. Amnor Energy Corp., No. 20160654-CA, reminds us, if your contract tells you what to do, you'd better do it. 

In the case, the two parties had entered into a contract regarding mining claims. Desert Mountain allegedly breached the contract, which Desert Mountain disputed. Under the terms of the contract, in the event of a disputed breach such as this, the parties were required to "hold one informal meeting" before resorting to legal proceedings. Amnor sent Desert Mountain a communication stating that it was "willing to meet to discuss" the dispute. When Desert Mountain never took them up on the offer to meet, Amnor argued that it was justified in treating the contract as breached. 

The court disagreed, because the court found that Amnor's statement was merely "casual[]." That was not enough to fulfill the requirement of holding an informal meeting. It should proposed a time to meet. Further, Amnor did not argue that Desert Mountain was in breach until fourteen months later, when Desert Mountain accused Amnor of being in breach for missing a royalty payment. The court said that violated the contract's "demand that it promptly seek legal action in the event that an informal meeting proved to be unsuccessful." 

I quoted that in full because I think it's an interesting finding. The relevant clause as excerpted by the court states that, if the informal meeting is unsuccessful, the dispute "shall be resolved in a legal proceeding." The only place "promptness" seems to show up as a requirement is when the court reads it in. It's unclear what timeline the court would have viewed as prompt, given the contract doesn't provide for one, except that this one wasn't it. 

The lesson from this case seems to be that if your contract calls for an informal meeting, you'd better not be casual about asking for it. Your informal meeting demands a little more proactive effort on your part. After all, we all know when people vaguely say "We should get together soon," no plans ever materialize!

November 29, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)

Tuesday, November 28, 2017

Chip, Joanna, and Their HGTV Contract's Non-Compete Provision

I spent my Thanksgiving fretting about net neutrality, so I thought for my first blog entry back from the holiday I'd let us indulge in a bit of speculation about Chip and Joanna Gaines and their future plans. My love for HGTV is well-known to my Contracts students, as I am constantly mining it for hypos, so I read with interest this Vanity Fair piece stating that Chip and Joanna from "Fixer Upper" have pitched another show to other networks. The article notes that Chip and Joanna's contract with HGTV's parent company probably prohibits them from doing another home-improvement show for another network, so it speculates that they're pitching some other type of show, possibly a talk show. 

Would you watch Chip and Joanna do a non-home-improvement show? What kind of show? And do you think networks will successfully negotiate for broader non-competes to keep their stars off competing networks altogether in the future? 

November 28, 2017 in Celebrity Contracts, Current Affairs, In the News, Labor Contracts, Television, True Contracts | Permalink | Comments (0)

Monday, November 27, 2017

Registration is Now Open for the 13th Annual International Conference on Contracts (KCon XIII) – Orlando, FL

Registration is now open for the International Conference on Contracts, February 23-24, 2017, hosted by Barry University School of Law (Orlando, Florida). Registration and all of the conference details can be found here: http://www.barry.edu/kcon/.

The two-day conference is “designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, as-yet-fully-formed ideas for scholarship, and pedagogical innovations and to network with colleagues—and potential collaborators or mentors—from around the country and other parts of the world.”

A block of hotel rooms at a conference rate is being held by Embassy Suites in downtown Orlando. Shuttle service to and from the hotel and the law school will be provided. You are encouraged to book your hotel room early, as there are a limited number of rooms being held.

Please direct any questions to the conference organizer, Professor Dan O’Gorman at dogorman@barry.edu.

November 27, 2017 | Permalink

Tuesday, November 21, 2017

Desperate times for law schools

As widely reported elsewhere such as by  David Frakt in The Faculty Lounge, law schools seem to be turning desperate to hide their student recruiting practices and ABA communications (see, e.g., Desperation Times at Thomas Cooley).  That blog post was cited to by the ABA in its brief in opposition to a motion filed by the Cooley law school for a temporary restraining order and preliminary injunction in an attempt to prevent the ABA from publishing a letter online stating Cooley's noncompliance with at least one accreditation standard. Images

Of course, law students choosing to attend law school execute legally binding contracts with their schools.  So do employees choosing to work for these schools, many of which seem to be on the brink of discontinuation of operations.  For how much longer can we as law schools continue defending _not_ telling applicants the real truth about their prospects for passing the bar given our applicants' LSAT scores which are, we have to admit, highly determinative in predicting ultimate bar passage rates?  Is what we do ethical and professional?  Do we even follow contract laws against fraud in the inducement, or torts fraud laws, when we as schools have information that could and likely is crucial to applicants' decision-making?

David Frakt developed what he calls a "risk band" that correlates LSAT scores and students' risk of failing the bar.  Taking that even further, shouldn't applicants be told their _individual_, percent-wise chance of passing the bar?  If, for example, students know that with an LSAT score of 143 (this is just a random example), they have virtually zero chance of passing the bar, would they still execute a three-year contract with a law school that may cost them upward of $100,000?  I doubt it.  More honesty and transparency is clearly required in both the law school hiring and admissions world.

 

November 21, 2017 in Commentary, Contract Profs, In the News, True Contracts | Permalink

Thursday, November 16, 2017

Contracts and Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (November 16, 2017)

The Top Ten list returns after a week away: Happy Thanksgiving to our U.S. readers next week!

Top-10-wArrowUp

Top Downloads for the Contracts & Commercial Law eJournal SSRN Logo2

Recent Top Papers (60 days) as of 17 Sep 2017 - 16 Nov 2017

Rank Paper Downloads
1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law
290
2.

The Promise and Perils of Crowdfunding: Between Corporate Finance and Consumer Contracts

University of Oxford - Faculty of Law and University of Oxford Faculty of Law
217
3.

Tracing Equity: Realizing and Allocating Value in Chapter 11

University of North Carolina School of Law and Brooklyn Law School
172
4.

The Comments to the Uniform Voidable Transactions Act Relating to Self-Settled Spendthrift Trusts are Correct

Visiting Professor at Large
136
5.

Formalizing Contract Law for Smart Contracts

Tilburg Law School
134
6.

The Bureaucrats of Private Law

Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law
115
7.

Smart Contracts: Terminology, Technical Limitations and Real World Complexity

Singapore Management University
111
8.

Legal Certainty: A Common Law View and a Critique

Durham University
103
9.

Distributive Justice and Contract Law: A Hohfeldian Analysis

Stetson University College of Law
102
10.

Spite: Legal and Social Implications

University of Florida - Levin College of Law
99

 

Top Downloads for Law & Society: Private Law - Contracts eJournal SSRN Logo2

Recent Top Papers (60 days) as of 17 Sep 2017 - 16 Nov 2017

Rank Paper Downloads
1.

Formalizing Contract Law for Smart Contracts

Tilburg Law School
134
2.

The Bureaucrats of Private Law

Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law
115
3.

Smart Contracts: Terminology, Technical Limitations and Real World Complexity

Singapore Management University
111
4.

Creatures of Contract: A Half-Truth about LLCs

University of Oregon School of Law
110
5.

Legal Certainty: A Common Law View and a Critique

Durham University
103
6.

Distributive Justice and Contract Law: A Hohfeldian Analysis

Stetson University College of Law
102
7.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
99
8.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
95
9.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
83
10.

Borrowing in the Shadow of Death: Another Look at Probate Lending

University of California, Davis - School of Law
77

 

November 16, 2017 | Permalink

Wednesday, November 15, 2017

Closing date of the essence results in liquidated damages

I love when I reach the end of the semester teaching contracts because everything is still extra-fresh in my mind and every case starts to read like an exam hypo to me. This recent case out of New York, GB Properties NYC LLC v. Bonatti, 503564/2017, discusses time is of the essence issues in the context of a real estate contract. 

The parties entered into the contract on July 28, 2016, and while no date was set for closing in the contract, the contract stated it should take place within 60 days of the contract's execution or on some other mutually agreeable date. Sixty days after execution of the contract, the plaintiff had not provided the necessary information to close. Defendants' counsel informed plaintiff's counsel that the closing would be scheduled for December 6 and that the date was "of the essence." Plaintiff's counsel requested an extension, which was agreed to and set for December 28, but time was still deemed to be of the essence in the extension document. 

On December 28, the defendants appeared for the closing but the plaintiff never appeared. Two days later plaintiff's counsel requested an extension to January 12. The defendants agreed only if the plaintiff timely provided additional money to be held in escrow; otherwise they would consider the parties' contract to be concluded for violation of the time is of the essence condition and they would keep the money already in escrow (as had been provided in the contract by way of liquidated damages). The plaintiff did not provide extra money. On January 27 the defendants entered into a contract to sell the property to someone else. This lawsuit resulted, with the plaintiff seeking specific performance of the contract. 

The defendants maintained that both parties agreed that the December 28 date was of the essence and the plaintiff was not ready to fulfill its contractual obligations on that date. Therefore, the plaintiff breached the contract and the defendants were entitled to declare the contract terminated and maintain the down payment as liquidated damages. The plaintiff, however, alleged that the failure to close was the defendants' fault because the defendants had not provided clean title by the closing date and so the defendants were not ready to close on December 28.  

The court found that the defendants were ready to close on December 28 and that the extension negotiated between the parties unequivocally made the December 28 date of the essence. The plaintiff's failure to appear on that date was a breach of contract. The plaintiff itself admitted that it did not have the money for the closing on that date. Therefore, the plaintiff was in breach and the defendants were entitled to retain the down payment pursuant to the liquidated damages provision in the contract. 

November 15, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Monday, November 13, 2017

Red Lobster's employee arbitration clause found enforceable

A recent case out of the District of New Mexico, Laurich v. Red Lobster Restaurants, LLC, No. CIV 17-0150 JB/KRS (behind paywall but you can read an article written about the complaint here), enforced an arbitration agreement between Red Lobster and a former employee, Laurich. Laurich was working at a Red Lobster when the restaurant chain was sold to the current corporate entity, the defendant in this case. When the defendant bought the restaurant chain, Laurich was informed during a shift that she had to look over an employment agreement. She asked for a paper copy but was told there were none and it was only available on the computer. She was also told that she had to sign the electronic document or she would be taken off the work schedule. So Laurich signed the document and went back to work. Unsurprisingly, the document contained an arbitration provision.

Laurich alleged that a fellow employee at Red Lobster eventually began harassing her on the basis of her race and sex, escalating to physical assault. She complained to her supervisors and eventually requested that the other employee not be there while she was there. She then learned that Red Lobster had terminated her employment. Laurich then filed this complaint and Red Lobster moved to compel arbitration under the agreement. 

Laurich argued that the arbitration agreement was both illusory and unconscionable. The court found that it was not illusory: Laurich agreed to arbitrate and Red Lobster agreed to continue employing Laurich. That was sufficient consideration on both sides. It wasn't as if Laurich was already working for this corporate entity when she was asked to sign the agreement "out of the blue." Rather, she was presented the agreement as soon as Red Lobster became her employee. 

Nor was the agreement unconscionable. The agreement was only half-a-page long and it was similar to one Laurich had been working under before. And the threat to be taken off the work schedule was only a temporary threat, not a threat of termination. So there was no procedural unconscionability, nor was the arbitration agreement substantively unconscionable. Both sides were bound by the clause, and Laurich was excused from paying arbitration fees. 

Therefore, the court enforced the arbitration agreement. 

November 13, 2017 in Food and Drink, Recent Cases, True Contracts | Permalink | Comments (0)

Friday, November 10, 2017

Accord and satisfaction requires good faith dispute

When I teach accord and satisfaction, I always remind my students, "Don't forget, for this to work, there has to be a good faith dispute!" A recent case out of Illinois, Piney Ridge Properties, LLC v. Ellington-Snipes, Appeal No. 3-16-0764, carries the same reminder. The defendant took out a mortgage of almost $26,000. Although his monthly payment was over $600, he paid only $354 a month, which he did for a little over a year, and then stopped paying altogether. The mortgage company filed a foreclosure action and asserted that the defendant owed around $10,000 on the mortgage. The defendant by letter to the mortgage company's counsel agreed that that was the amount he owed. However, about a year later, while the foreclosure action was still in progress, the defendant sent the mortgage company a check for $354 on which he wrote "Acceptance of this check constitute [sic] payment in full of account." The mortgage company cashed the check. The defendant then filed a motion to dismiss the foreclosure action, arguing that his check constituted an accord and satisfaction on the mortgage debt. 

The parties agreed that the check had a conspicuous statement that it was to fully satisfy the mortgage debt, and they agreed that the mortgage company cashed the check. However, the court noted that an accord and satisfaction can only be successful if there is a bona fide good faith dispute about the debt. The defendant had already admitted that he owed around $10,000; he was not disputing the amount. The court, in fact, concluded that it was likely that the defendant's action was done "in hopes of deceitfully escaping his larger mortgage debt." There being no good faith dispute between the parties, an accord and satisfaction did not occur here. 

November 10, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, November 9, 2017

The Weinstein Protection Machine Was Fueled by Contracts

I mean, our entire society is filled with contracts, so it's no surprise that Harvey Weinstein was surrounded by a web of contracts designed to protect himself from accusations. Not just the NDAs I've previously discussed, but also contracts with his lawyer and with the investigators they hired. Not to the mention the interaction between his contracts with the National Enquirer's publisher and the National Enquirer's information. Because Dylan Howard at the National Enquierer's publisher considered himself to have to act in Weinstein's best interests because of other business deals, it affected the way National Enquirer used the information gained by its reporters. 

You can read the whole story here. It's extremely lengthy and I have not done it justice at all in this tiny blog entry, but it's got a lot about contracts there: what they said, why they existed, what was being done under them, etc. Just...a lot of contracts. All of them to keep people silent. 

November 9, 2017 in Celebrity Contracts, Commentary, Current Affairs, In the News, Labor Contracts, True Contracts | Permalink | Comments (0)

Sunday, November 5, 2017

St. Vincent de Paul trademark battle falters on breach of contract and promissory estoppel, but unjust enrichment survives

I think there is sometimes an impression out there that implied-in-fact contracts can be used to save all situations where formal contracts weren't executed, but that is definitely not the case. Implied-in-fact contracts still require some allegation of contractual intent between the parties. A recent case out of the Western District of Wisconsin, National Council of the U.S. Society of St. Vincent de Paul, Inc. v. St. Vincent de Paul Community Center of Portage County, Inc., 16-cv-423-bbc, reiterates this. (Actually, this case dates from late May, but just crossed my inbox now. No idea why, but I'll blog it for you anyway!)

The case is a trademark dispute over several trademarks owned by the plaintiff. The plaintiff sued the defendant for trademark infringement and the defendant asserted a number of counterclaims, including breach of contract. The defendant's breach of contract claim was based on a "contract implied in fact" because the plaintiff allegedly knew (either constructively or actually) about the defendant's use of the marks and the course of dealing between the parties created an implied contract regarding this use. But the complaint failed to show any intention to contract between the parties. Rather, its allegations illustrated that the parties coexisted but that they did so independent of each other. 

Even if there was an implied-in-fact contract, though, it would be terminable at will, meaning that the plaintiff could terminate it when it objected to the arrangement. The court refused to infer that any implied-in-fact contract waived the plaintiff's trademark rights against defendant in perpetuity, considering that there was so little evidence of any contractual intent in the first place. 

The defendant next asserted promissory estoppel but there was no allegation the plaintiff had ever made any promise that the defendant could rely on. The defendant's unjust enrichment claim, however, was allowed to proceed. The defendant had alleged that the plaintiff would benefit unjustly from the goodwill the defendant had built up in the community and that was enough to survive the motion to dismiss. 

November 5, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)

Saturday, November 4, 2017

Al Hirschfeld's art galleries didn't have the right to reproduce giclees

A recent case out of the Southern District of New York, Al Hirschfeld Foundation v. The Margo Feiden Galleries Ltd., 16 Civ. 4135 (PAE) (the decision is behind a paywall, but you can read a news account of it here), is another contract interpretation case, this one involving a contract between the late cartoonist Al Hirschfeld and the art galleries that represented him. There are many things at issue in the case, among them the galleries' sale of giclees, "high-quality photostatic reproductions of existing works." The Foundation argued that the Galleries did not have the right under the contract to sell these giclees. The Galleries of course argued that they did. 

The contract language at issue was a clause giving the Galleries the ability to reproduce works "in connection with [the Galleries'] promotion, advertising and marketing in furtherance of [the Galleries'] rights under this . . . Agreement." But the court found that this was a limited carve-out that did not extend to giclees. The reproductions done under this clause were meant to further the rights of the Galleries, not to be freestanding rights, which the giclees were. There was no indication that the parties intended the Galleries' ability to reproduce works to be extended to include the giclees

There were lots of other issues in this case. I've just confined myself to this one in the interest of space. 

November 4, 2017 in Celebrity Contracts, Current Affairs, In the News, Recent Cases, True Contracts | Permalink | Comments (0)

Friday, November 3, 2017

Registration is Now Open for the 13th Annual International Conference on Contracts (KCon XIII) – Orlando, FL

Registration is now open for the International Conference on Contracts, February 23-24, 2017, hosted by Barry University School of Law (Orlando, Florida). Registration and all of the conference details can be found here: http://www.barry.edu/kcon/.

The two-day conference is “designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, as-yet-fully-formed ideas for scholarship, and pedagogical innovations and to network with colleagues—and potential collaborators or mentors—from around the country and other parts of the world.”

A block of hotel rooms at a conference rate is being held by Embassy Suites in downtown Orlando. Shuttle service to and from the hotel and the law school will be provided. You are encouraged to book your hotel room early, as there are a limited number of rooms being held.

Please direct any questions to the conference organizer, Professor Dan O’Gorman at dogorman@barry.edu.

November 3, 2017 | Permalink