ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, October 4, 2005

What do Students Know, Anyway?

The new Princeton Review law school rankings are out.  The winners:

Toughest to Get Into: Yale
Best Overall Academic Experience: Chicago
Professors Rock (Legally): Washington & Lee
Most Competitive Students: Baylor
Best Career Prospects: Northwestern
Most Right-Wing Student Body: Ave Maria
Most Left-Wing Student Body: UDC
Best Environment for Minorities: Howard
Most Diverse Faculty: Howard
Best Quality of Life: St. Thomas (Minn.)
Most Welcoming of Older Students: William Mitchell

[Frank Snyder]

October 4, 2005 in Law Schools | Permalink | TrackBack (0)

A Loss for New England Patriots Fans

Massachusetts_state_flag Following up on Frank’s post about the Bengals suing their fans, here’s a recent contracts case that should, at the very least, give Eagles fans a good laugh.

Yarde Metals, Inc. was a season ticket holder of the New England Patriots for twenty years.  In October 2002, Yarde received a letter from the Patriots’ front office advising that its season ticket privileges had been terminated “effective immediately.”  The reason given: an individual using a ticket from Yarde’s account was ejected from a game for throwing bottles.  Yarde admitted that this particular individual had used one of its tickets to attend the game, but claimed that he had never thrown any bottles.  Instead, Yarde explained that he was ejected from the stadium because he used the women’s restroom (apparently there is/was a widely acknowledged men’s restroom shortage at Gillette Stadium). 

When the Pats wouldn’t restore and renew Yarde’s season tickets, Yarde sued.  Yarde sought to impose liability on the Pats for breach of its “contractual right to season tickets [that included] a contractual right to renew its season tickets annually.”  (Yarde also sought to impose liability on the Patriots based on [in Yarde’s own words] the "doctrine of equitable estoppel [which] prohibits the Patriots from contradicting the expectation of the plaintiff Yarde which the Patriots have created.").

Yarde lost.  Weighing whether season ticket subscriptions include any protected, implied right to renew annually, the Massachusetts court held that they do not.  Moreover, even if the complaint sufficiently invoked some type of option or implied contract claim, the court held that the Pats' revocation of Yarde's tickets would not violate an implied covenant of good faith and fair dealing.

Yarde Metals, Inc. v. New England Patriots Limited Partnership, 2005 Mass. App. LEXIS 904 (Sept. 30, 2005). 

[Meredith R. Miller]

October 4, 2005 in Recent Cases | Permalink | TrackBack (0)

Economic Loss

"The Core of Pure Economic Loss" by GIUSEPPE DARI-MATTIACCI, Universiteit van Amsterdam - Amsterdam Center for Law and Economics George Mason University School of Law; and HANS-BERND SCHäFER, University of Hamburg Faculty of Law.

This article has implications for contracts and torts. It asks whether or not loss of earnings should be compensated? The established law and economics wisdom considers pure economic loss as a transfer of wealth from the victim to a third party, whose earnings increase as a consequence of the accident. Such transfers do not amount to a social loss and, hence, should not be compensated. This article revisits these arguments and shows that the social loss should be calculated by taking into account that: (a) pure economic loss often involves impairment costs resulting from the fact that valuable resources cannot be temporarily used; and (b) the third-party earnings come at the cost of increased capacity. This increased capacity mitigates the expected harm and, hence, is a form of precaution. By taking into account these factors, this article shows that most pure economic loss cases do result in a socially relevant loss. In addition, this article argues that the absence of a social loss is a necessary, but not sufficient, condition for the denial of compensation. The victim (or a third party) may have actually paid for protection against purely private losses. Thus, compensation should be awarded irrespective of whether national law treats the case under tort or contract (where compensation is undisputed). Finally, this article offers considerations on the optimal design of liability rules.

October 4, 2005 in Recent Scholarship | Permalink | TrackBack (0)

Today in History: October 4

1537: Jacobus van Meteren of Antwerp publishes the first Old Testament in the English language, which is printed at Paris and London.

1582: The Gregorian calendar, promulgated by Pope Gregory XIII, goes into effect in Spain, Italy, Portugal, and Poland.  Eleven days will be cut; tomorrow will be October 15.

1822: Future U.S. President Rutherford Birchard Hayes (Harvard Law 1845) is born at Delaware, Ohio.  He’s a national hero in Paraguay, where a city (Villa Hayes) and a region (Presidente Hayes) are named for him.

1824: Mexico adopts a new constitution, making it a federal republic, the United Mexican States.  The liberality of this constitution is a major drawing card for American and European settlers to Mexico.

1883: The Compagnie Internationale des Wagons-Lits introduces a new Istanbul train-and-ferry service, known as the Orient Express.

1895: Twenty-one year-old Englishman Howard Rawlins wins $150 in prize money at the first U.S. Open Golf Tournament, held at the Newport Country Club in Rhode Island.

1957: The Soviet Union launches the first artificial satellite, Sputnik (“Fellow Traveler”) I.  Millions of American school children suddenly have to start studying math and science.

1958: France establishes its Fifth Republic.  But who’s counting?

2004: SpaceShipOne, the first privately funded human-carrying spacecraft (bankrolled by Paul Allen of Microsoft) wins the $10 million Ansari X prize after it successfully flies twice in two weeks.

October 4, 2005 in Today in History | Permalink | TrackBack (0)

Monday, October 3, 2005

A Break from Custom and Usage

For Jewish folks, tonight at sundown marks the beginning of Rosh Hashanah and the 10-day High Holiday season which ends with the close of Yom Kippur.  Back in 1950 in Philadelphia, the Jewish New Year sparked a bit of a contracts controversy. 

Congregation B'nai Yitzhok had contracted with a professional rabbi/cantor to officiate the high holiday services for $1200.  The contract was "entirely silent as to the character of the defendant as an orthodox Hebrew congregation and the practices observed by it as to the seating at the services in the synagogue."  Unbeknownst to the rabbi, the congregation had voted to break from orthodox tradition that year, and decided to allow "mixed seating" between men and women at the services.  When the rabbi found out about the congregation's decision, he refused to officiate the services due to his religious beliefs.  Problem was, it was too late for the rabbi to secure employment at another, more conservative synagogue, and he only managed to find employment elsewhere officiating one service for $100.  The rabbi sued for breach of contract.  The Pennsylvania Superior Court held:

In determining the right of recovery in this case the question is to be determined under the rules of our civil law and the ancient provision of the Hebrew law relating to separate seating is read into the contract only because implicit in the writing as to the basis -- according to the evidence -- upon which the parties dealt. [citation omitted] In our law the provision became a part of the written contract under a principle analogous to the rule applicable to the construction of contracts in the light of custom or immemorial and invariable usage. It has been said that: "When a custom or usage is once established, in absence of express provision to the contrary it is considered a part of a contract and binding on the parties though not mentioned therein, the presumption being that they knew of and contracted with reference to it": 1 Henry Pa. Evid., 4th Ed., § 203. Cf. Restatement, Contracts, § 248(2) and § 249. In this case there was more than a presumption. From the findings of the trial judge supported by the evidence it is clear that the parties contracted on the common understanding that the defendant was an orthodox synagogue which observed the mandate of the Jewish law as to separate seating. That intention was implicit in this contract though not referred to in the writing, and therefore must be read into it.

The rabbi recovered $1100, plus interest.

Fisher v. Congregation B'Nai Yitzhok
, 177 Pa. Super. 359 (1955).

[Meredith R. Miller]

October 3, 2005 in Miscellaneous | Permalink | TrackBack (0)

ContractsProf Dog Names

The “lost dog” and “lost cat” reward cases can provide some useful examples of the acceptance issues surrounding unilateral contracts.  Recently, I struck up a conversation with colleague Mark Movsesian about the best “contracts-related” dog name.  Both “Corbin” and “Williston” were bandied about.  Of course part of this might depend on the type of dog.  What about calling your basset hound “Baxendale”?

[Miriam Cherry]

October 3, 2005 in Miscellaneous | Permalink | TrackBack (0)

Weekly Top 10

Ssrn_logo_26 Ethan Leib takes the number 1 spot for the third week in a row, but three new papers crack the chart.  Following are the top ten most-downloaded papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending October 2, 2005.  (Last week's ranking in parentheses; • indicates fastest-rising papers; t = tie.)

1 (1) On Collaboration, Organizations, and Conciliation in the General Theory of Contract, Ethan J. Leib (UC-Hastings).

2-t (4) Bargaining Power in Contract Theory, Daniel D. Barnhizer (Michigan State).

2-t (3) The Limits of Lawyering: Legal Opinions in Structured Finance, Steven L. Schwarcz (Duke).

4 (7) Is Forum-Shopping Corrupting America's Bankruptcy Courts?, Todd J. Zywicki (Geo. Mason).

5 (6) On-line Boilerplate: Would Mandatory Website Disclosure of E-standard Terms Backfire?, Robert A. Hillman (Cornell).

•6 (-) Are Heuristics a Problem or a Solution?, Douglas A. Kysar (Cornell).

Florencia_marotta_wurgler 7 (8) Are 'Pay Now, Terms Later' Contracts Worse for Buyers? Evidence from Software License Agreements, Florencia Marotta-Wurgler (NYU) (left)

8 (-) Resolving the Paradox of the Consideration Doctrine: The Implications of Inefficient Signaling and of Anti-Commodification Norms, David Scott Gamage (Texas) & Allon Kedem

9 (-) Competition and the Quality of Standard Form Contracts: An Empirical Analysis of Software License Agreements, Florencia Marotta-Wurgler (NYU).

10 (9) New Basics: 12 Principles for Fair Commerce in Mass-Market Software and Other Digital Products, Jean Braucher (Arizona).

[Frank Snyder]

October 3, 2005 in Recent Scholarship | Permalink | TrackBack (0)

Bengals Bite Fans

Season ticket holders for the long-hapless Cincinnati Bengals have sometimes talked about suing the team -- maybe for fraud, in claiming to be an NFL team -- but with the surprising Bengals now undefeated at 4-0, the shoe is on the other foot.  It's the Bengals who are suing their fans.

Seems that to finance the team's $458 million stadium, it sold "seat licenses" to fans, which entitled them to buy season tickets.  A seat license sold for $150, and each license allowed the owner to buy a season ticket, which ran for $1,000 to $2,000.  When some fans decided to stop buying tickets and thus forfeit their licenses, the Bengals sued, claiming that the fans were obligated to keep buying tickets.  One issue in the case is whether materials sent to season ticket holders after purchase of the tickets count as terms of the agreement.

[Frank Snyder -- hat tip to Bill Sjostrom (Northern Kentucky)]

October 3, 2005 in In the News | Permalink | TrackBack (0)

A Ballad of Offer & Acceptance

Chapman's Tom W. Bell has a penchant for legal lyrics.  His Excuses (a C&W take on contract excuse) is quickly becoming a classic, and he's now out with another poem:

                   Priscilla v. Dunston
                             ~ or ~
A Harmonic Mnemonic on Contract Formation

Wrote Dunston to Priscilla,
"Will you come with me to the show?"
Wrote back the apt-named Prissy,
"Please no burlesque! But yes, I'll go."

You can find the rest on Tom's Agoraphlia Blog.

[Frank Snyder]

October 3, 2005 in Miscellaneous | Permalink | TrackBack (0)

Today in History: October 3

1226: The founder of the Order of Friars Minor, Giovanni Bernardone, who is better known by his nickname “Francis” (“Frenchie”), dies at Assisi in Italy.

1863: President Lincoln, by proclamation, fixes the last Thursday in November as a “day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens.”

1872: Brothers Lyman and Joseph Bloomingdale open their “Great Eastern Bazaar” in New York City.  Critics argue that no one will go that far north in the city to shop.

1873: Emily Post (née Price) is born into a prominent family in Baltimore, Maryland.  After a divorce, financial distress will make her turn to writing, and she’ll reestablish her fortune with her 1922 book, Etiquette.

1901: The Victor Talking Machine Co. ("His Master's Voice") is incorporated in New Jersey as a combination of the Berliner Gramophone Co. and the Consolidated Talking Machine Co.

1919: Nobel-winning public choice economist James McGill Buchanan Jr. (The Calculus of Consent) is born at Murfreesboro, Tennessee.

1941: Warner Bros. releases The Maltese Falcon (“A guy without a conscience -- a dame without a heart!”), starring Humphrey Bogart and Mary Astor.

1960: The Andy Griffith Show introduces America to Mayberry, North Carolina.  The original pilot episode featured an interesting contract question: Was Aunt Bea obliged to pay forever for the rented tuxedo her husband was buried in?

1995: A Los Angeles jury acquits O.J. Simpson of murder in the most widely covered trial in U.S. history.

October 3, 2005 in Today in History | Permalink | TrackBack (0)

Sunday, October 2, 2005

Cosby's Contract

Entertainer Bill Cosby has a number of unusual clauses in his performance contract.  First, you can't advertise his concerts in either the Philadelphia Inquirer, the Philadelphia Daily News, or the Boston Globe.  Second, you've got to make sure his toilet has high-quality bathroom tissue, "Cottonelle or equivalent.  Third, you've got to provide him with the shirt he'll wear -- he'll give you the specifications.  Fourth, you're obligated to make sure in advance you know where the nearest Starbuck's is so you can get the correct latte in the shortest possible time.  Sixth, you've got to get him a "Presidential Suite quality" room to stay in.  Here are excepts from his contract rider.

[Frank Snyder -- hat tip to Paul Caron]

October 2, 2005 in Celebrity Contracts | Permalink | TrackBack (2)

Tulsa Seeking UCC/Commercial Profs

This from the good folks at the University of Tulsa:

THE UNIVERSITY OF TULSA COLLEGE OF LAW invites applications from both entry-level and experienced faculty for one or more tenure-track and/or visiting faculty position(s) beginning in the 2006-2007 academic year.  Areas of teaching interest likely include: UCC, corporate law, commercial law and tax, as well as general curricular subjects.  We seek candidates with superior academic records from highly-regarded J.D. and/or graduate law programs and who, as demonstrated by their performance to date, have a proven record of excellence in scholarship and teaching or a strong potential to excel as scholars and teachers.  The University of Tulsa, an equal employment opportunity/affirmative action employer, is committed to diversifying its faculty and staff.  Members of under-represented groups (including people of color, people with disabilities, women, and veterans) are strongly encouraged to apply.  If you would like to learn more about the College of Law generally, you may visit our website at  Please submit letters of interest and resumes to Assoc. Prof. Janet Levit, Chair, Appointments Committee, University of Tulsa College of Law, 3120 E. 4th Place, Tulsa  OK 74104, or by email here.

[Frank Snyder]

October 2, 2005 in Help Wanted | Permalink | TrackBack (0)

Kanye West on Prenuptial Agreements

Hip-hop superstar Kanye West’s song “Gold Digger” has recently dominated the Billboard charts, and he was a musical guest on Saturday Night Live’s season premier last night. He has been described as “outspoken” and “controversial” after his critical comments about President Bush’s “response” to Hurricane Katrina. Whether or not you agree with his Katrina comments, his recent hit song is candid on another topic nearer to this blog: contract law. The song counsels on the importance of a Prenuptial Agreement:

18 years, 18 years
She got one of yo kids got you for 18 years
I know somebody payin child support for one of his kids
His baby momma's car and crib is bigger than his
You will see him on TV Any Given Sunday
Win the Superbowl and drive off in a Hyundai
She was spose to buy ya shorty TYCO with ya money
She went to the doctor got lypo with ya money
She walkin around lookin like Micheal with ya money
Should of got that insured GEICO for ya moneeey
If you aint no punk holla We Want Prenup
It's something that you need to have
Cause when she leave yo ass she gone leave with half
18 years, 18 years
And on her 18th birthday he found out it wasn't his

From “Gold Digger” off of the Late Registration album (Roc-A-Fella/Def Jam 2005) [NOTE: surrounding “EXPLICIT LYRICS” omitted (as defined and determined by RIAA's parently advisory labeling system)].

[Meredith R. Miller]

October 2, 2005 in Quotes | Permalink | TrackBack (0)

Today in History: October 2

1187: After 88 years of Christian rule, Jerusalem falls to Saladin, who agrees to ransom 7,000 of the captives for 30,000 bezants.  Women are half-price.

1889: Former Army scout Nicholas Creede shouts “Holy Moses!” when he finds a vein of silver in what is now Mineral County, Colorado.  His Holy Moses Mine will touch off the last great silver boom in U.S. history.

1928: Harmonica ace DeFord Bailey cuts eight tracks at the new Victor Records Studios in Nashville, Tennessee, marking the first studio recording sessions in “Music City” history.  Bailey, an African-American, is one of the first stars of WSM Radio's newfangled Grand Ole Opry.

1937: Twenty-six year-old Ronald Reagan gets his first starring role, as a crime-fighting radio announcer, in Warner Bros.’ Love is On the Air.

1950: A new comic strip appears in seven newspapers.  Author Charles Schulz wants to call it “L’il Folks,” but the syndicator, United Features Syndicate, changes the name to “Peanuts” over his objections.

1959: “There is a fifth dimension beyond that which is known to man,” intones narrator Rod Serling, as Twilight Zone debuts on CBS Television.

1967: Thurgood Marshall is sworn in as a Justice of the U.S. Supreme Court.

2001: After 71 years of operations, Switzerland’s national air carrier, Swissair, files for bankruptcy.

2001: Today is the first palindromic date (10/02/2001) in more than 600 years.  The previous one was 08/31/1380.

October 2, 2005 in Today in History | Permalink | TrackBack (0)