Wednesday, November 15, 2006
Those looking for additional visual aids for classroom presentation of that perennial "consideration for a modification" case, Alaska Packers v. Domenico, here (left ) is the flag of the Alaska Packers Association. The flag was flown from the ships sailed back and forth between San Francisco and the salmon fields of Alaska. According to the web site, House Flags of Shipping Companies, the flag was sometimes flown without the letter "A." The flag design would have been painted on the funnels as well as flown at the staff. A slightly different version is also shown here.
At the upper right is the label from a can of Alaska Packers' Chief Brand Alaska Chum Salmon. product of the Alaska Packers. Feel free to enjoy its "lightly salted" flavor.
Promises of charitable donations are, as we all know, enforceable without consideration. If you're looking for a good illustration of a withdrawn donation, consider the case of Florida International University, where a donor has withdrawn a $20 million pledge to the institution's new medical school.
Longtime FIU supporter Herbert Wertheim had promised $20 million dollars, and the school was planning on naming the school after him. (Yes, the naming rights would be probably be consideration so the charitable gift exception may not apply here.) But FIU balked at his request to allow him to pay it in four annual $5 million installments. On the telephone, the university president reportedly told Wertheim that he'd got the naming rights "on the cheap" and that the University could get $100 million for them. Wertheim apparently told the school that it would be unfair for him to stand in the way if FIU could get $100 million, so he withdrew his pledge and resigned from the Board of Trustees.
Tuesday, November 14, 2006
In their article, "Dear Sister Antillico . . .": The Story of Kirksey v. Kirksey, William Casto (Texas Tech) and Val Ricks (South Texas) unearth a lot of fascinating information about the parties to, and the background of, one of the most famous "consideration" cases in U.S. contract law history, Kirksey v. Kirksey, 8 Ala. 131 (1845).
One nugget in that delightful piece may have escaped your notice: Isaac James Kirksey (1797-1865), the brother-in-law who (the story goes) threw the poor widow Kirksey out in the cold, is the great-great-great grandfather of former CBS News anchor Dan Rather. Isaac, it seems, married one Mary Connally, the sister of Angelico (not "Antillico") Connally Kirksey. Isaac and Mary's daughter Eliza Jane Kirksey married one Daniel Rather of Talladega County, Alabama, in 1840, the same year Isaac sent the invitation to his sister-in-law. The Rathers moved to Shelbyville, Texas, and the rest is history. You can read about it in the Dan Rather genealogy. (Image: Wikipedia)
1 Restitution for Wrongs and the Restatement (Third) of the Law of Restitution, James Steven Rogers (Boston College).
2 Hoffman v. Red Owl Stores and the Myth of Precontractual Reliance, Robert E. Scott (Columbia).
3 Antitrust and Regulation, Dennis W. Carlton (Chicago-Business) & Randal C. Picker (Chicago).
4 Friendship & the Law, Ethan J. Leib (Cal-Hastings).
5 Governing Innovative Collaboration: A New Theory of Contract, Matthew Jennejohn (Columbia).
6 The Cost of Norms: Tax Effects of Tacit Understandings, Alex Raskolnikov (Columbia).
7 The Public Responsibility of Structured Finance Lawyers, Steven L. Schwarcz (Duke).
8 To Make or to Buy: In-House Lawyering and Value Creation, Steven L. Schwarcz (Duke).
9 Unilateral-Modification Provisions in Employment Arbitration Agreements, Michael L. DeMichele & Richard A. Bales (Northern Kentucky).
10 Party Autonomy in the Private International Law of Contracts: Transatlantic Convergence and Economic Efficiency, Giesela Ruehl (Max Planck Institute).
Monday, November 13, 2006
I had never heard of Lenawee County Board of Health v. Messerly before I adopted Knapp, Crystal and Prince's Problems in Contract Law, but I congratulate them on the choice, as the case teaches quite well in my experience. For those unfamiliar with the case, the facts of the case are that the Pickles bought from the Messerlys a 600-square-foot property, which housed a three-unit apartment building. The Pickles agreed to take the property "as is," but soon thereafter discovered a sewage leak that rendered the apartment building uninhabitable. A nonconforming septic system, installed by a prior owner, was the culprit. The trial court found no fraud or misrepresentation. The case serves to address the doctrine of mistake.
I can never quite get my mind around the idea of a 600-square-foot plot of land upon which a three-unit appartment building is situated. One of my students this semester hales from Lenawee County and tells me that it is a rural area where people seldom deal in tracts of land smaller than one acre. Equally baffling, how can it be that nobody had any knowledge of the nonconforming setpic system and the attendant sewage leak until the Pickles quite literally stepped in it? Do these people lack a sense of smell? My students always raise these worldly questions, but conveniently they play no role in the opinion. This allows us to focus on mistake:
The sewage leak, that was no trickle.
Now the property ain't worth a nickel.
When "as is" you take,
You eat your mistake,
So bon appetite, Mr. Pickles.
Friday, November 10, 2006
The November 10 Boston Globe reports a ruling from Worcester Superior Court Judge Jeffrey A. Locke, "ending, for now, a food fight between Panera Bread Co. and Qdoba Mexican Grill." Panera filed suit against the owners of the White City Shopping Center in Shrewsbury, Mass., claiming that a lease with Qdoba violated a 2001 agreement with Panera that restricted the mall from renting space to another sandwich shop. Panera argued for a broad definition of sandwich, saying a flour tortilla qualifies as bread, and a food product with bread and a filling is a sandwich. (And, they might have added, "chicken is everything except a goose, a duck, and a turkey.") The judge disagreed. "A sandwich is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans." A burrito is just a burrito, Qdoba's experts testified. For the full story, go here.
[Carol Chomsky, with thanks to 2L Nick Rogers at U of MN Law School for sending the story]
It was only a matter of time, but we have now learned via the Contracts Professors Listserve that the first lawsuit has been filed by two people who appear in Sacha Baron Cohen's film, "Borat." The complaint, in a suit styled Doe v. One America Productions, alleges that "Sasha [sic] Baron Cohen is a prankster" whose HBO show achieved "moderate success" and who, along with his staff "lie[s] really well." The complaint gives Mr. Cohen's film mixed reviews, alleging that one's ability to enjoy the film depends on one's tolerance "for incest and penis jokes." Although the complaint identifies 50 defendants by the fictitious names Roes 1-50, neither Mr. Cohen (who is real) nor Mr. Borat (who is fictitious) is named as a defendant.
According to the complaint, plaintiffs are two fraternity members, one of whom is under 21, who were plied with drink and then agreed to sign a release (likely the one that was the subject of an earlier post on this blog) and appear in a documentary film. Plaintiffs allege that defendants assured them that the resulting film would not be released in the United States and that their fraternity would not be identified by name. As a result of these misrepresentations, and because they were encouraged to become inebriated, plaintiffs "engaged in behavior they otherwise would not have engaged in." They assert causes of action for fraud, rescission of contract, false light, appropriation of false likeness and negligent infliction of emotional distress.
Some have suggested that the complaint might be yet another prank by the irrepressible Mr. Cohen. But if that were so, why wasn't the case styled I.P. Freely & I. Tappa Keg v. Borat?
Wednesday, November 8, 2006
Miriam R. Albert (Hofstra Law)
B.A., Tufts University
J.D., Emory University
M.B.A., Emory University
L.L.M, New York University
Miriam Albert is a Visiting Associate Professor of Law at Hofstra, where she teaches contracts, business organizations, business planning and business drafting.
Professor Albert joined Hofstra in the fall of 2004, with practice experience as a corporate and securities attorney and teaching experience at law and business schools. She was previously on the faculties of Fordham Business School and Widener Law School, teaching business law topics including corporate, agency and partnership law, mergers and acquisitions, securities law, and interviewing and counseling, as well as legal writing.
Her research interests focus on business organization and international and domestic securities law issues. Her articles have appeared in publications such as the Arizona Law Review, Rutgers Law Journal and the American Business Law Journal, a peer-reviewed journal for which she is a reviewer. Before entering academia, she practiced corporate and securities law at Stroock & Stroock & Lavan in New York.
She is a former stand up comic and pilates instructor, and the mom of a sweet 3 year old daughter she adopted from Russia when she was 10 months old. Her interests are focused on both lofty scholarly pursuits and the Wiggles, a group of 4 annoying Australians who sing and dance and basically fascinate her daughter.
Well, I'm quite put out that several other blawgs have scooped ContractsProf Blog on this burning contract issue, but those of you interested in learning how Sacha Baron Cohen duped people into giving him interviews for his new movie, "Borat," can find the release on Slate.com. Those who would like to see what the interlopers have to contribute on this issue can find comments here and here.
My anger at being scooped is termpered by the realization that I can now justify cancelling class to take my students to see "Borat."
Tuesday, November 7, 2006
The Denver Post reports that University of Colorado officials have "terminated a contract" with Gasper Lazzara, a donor who reneged on a $95.7 million pledge to its dental school. A consequence? The orthodontics students may see a significant increase in their tuition bills. Lazzara was covering students' tuition and paying them $35,000 annual stipends. In exchange, the students promised to work for Lazzara for seven years after graduation in a national chain of orthodontic clinics.
Ten students in CU's orthodontics residency program sued Lazzara for breach of contract in October, claiming he promised them jobs that paid $150,000 per year, plus profit-sharing and new clinics in the community of their choice.
The deal began to fall apart shortly after the students started the program in August 2004. Stipend payments were three months late, forcing the students to get emergency loans and charge up their credit cards, according to their lawsuit.
Lazzara's Orthodontic Education Company later "greatly reduced" their income projections and told students they might not get new clinics, the lawsuit says.
Lazzara has apparently reneged on pledges to other dental schools at Jacksonville University and the University of Nevada.
Why did Lazzara fail to follow through?
Lazzara did not return phone calls Monday, but he previously acknowledged that his business plan was "too cash-intensive."
Lazzara also blamed a negative "culture" at CU that clashed with his plan to change orthodontics from individual clinics to a brand-name chain similar to Pearle Vision eye clinics.
What about the center for oral-facial health at the University that bears Lazzara's name? The regents have not proposed to change the name:
University leaders were quick to point out that Lazzara's $3 million gift to build the dental school is the largest in school history and that he gave an additional $3.8 million to the program and its students.
* * *
"He's donated more than a lot of other people who have buildings named after them," Wilson said. "His name deserves to be on that building."
* * *
"Had we not assumed some of those risks in 2003, we would not have a new school of dentistry building nor would we have a graduate program in orthodontics," the chancellor said.
[Meredith R. Miller]
In an opinion delivered in Klamath Siskiyou Wildlands v. Bureau of Land Management on November 6th, the Ninth Circuit enjoined two timber sales from going forward, finding that the Bureau of Land Management (BLM) violated the Federal Land Policy and Management Act and the National Environmental Policy Act in its treatment of the red tree vole (the rodent at left). In 2001, the BLM created a six-category Survey and Manage species classification system within the Northwest Forest Plan. The red tree vole was assigned to Category C, which afforded the critter some habitat protections. One year later, the vole was downgraded to Category D, and in 2003 the vole was removed from the Survey and Manage designation system entirely.
Because of the changes in the categorization of the vole, the BLM did not conduct pre-disturbance sruveys for the vole in connection with the two challenged timber sales, and it issued Findings of No Significant Impact with respect to both sales. In connection with one of those sales, the BLM acknowledged that if vole nests existed within the units to be harvested, they would likely be destroyed.
The court concluded that because the two challneged timber sales did not "conform to the approved [resource management] plan[s]" (43 C.F.R. s. 1610.5-3), they are invalid and must be enjoined.
Monday, November 6, 2006
The language in Mills v. Wyman is enough to inspire some great poetry . . .
and other poetry as well:
Seth Wyman's interior forum
Is not the law's sanctum sanctorum
With this none would quarrel:
Seth's conduct's immoral.
Still, he breaches not law but decorum.
Sunday, November 5, 2006
This article from Florida's Bradenton Herald describes the situation where a homeowner changes her mind about selling her home. The article calls the common phenomenon "seller's remorse disease." Setting aside the arguably inapt medical analogy (there doesn't seem to be anything unsual about people changing their minds), the article provides some insight into the two scenarios when seller's remorse is likely to hit:
Longtime homeowners are likely to incur this disease shortly after listing their house or condo on the market for sale. To illustrate, just a few days ago, I met an elderly lady who was going through her scrapbook as she was cleaning out her house in preparation to move to an assisted living residence. As she threw away the yellowed newspaper clippings, she told me only about 10 percent of the clippings were worth saving.
Unlike that woman who seemed highly motivated to move on, many home sellers often incur second thoughts as they prepare for the sale, such as by cleaning out closets and throwing away years of memories.
The best thing the seller can do at this point, if the seller isn't highly motivated, is to cancel the listing. Smart realty agents willingly cancel a listing if the seller asks because it is a waste of time to work with an uncooperative seller.
The second and most common situation where home seller's remorse strikes occurs shortly after the home seller accepts a buyer's purchase offer. This is the moment when the home seller understands it's time to move out and he or she realizes the "old home" is pretty nice after all.
The 30- to 60-day "escrow period" after the seller accepts the buyer's purchase offer is the critical time when the home seller is most likely to consider not selling. The reason is sellers start thinking about all the wonderful memories enjoyed in their home or how they will never be able to find another residence as nice.
What is the listing agent to do when the seller says "I've changed my mind" after signing a contract of sale? (The "worst words a listing agent can hear.") Remind the seller of the reasons she said she wanted to sell in the first place. If that doesn't work:
politely inform the home seller of the possible legal consequences of their breach of the sales contract. In a nutshell, if the buyer really wants the home, the buyer can bring a "specific performance lawsuit" to force the seller to complete the sale on the terms agreed in the signed sales contract.
To make matters worse for the seller, a savvy buyer's lawyer will usually record a "lis pendens" against the title to prevent the seller from selling to another buyer or even refinancing the property. The legal reason is every property is unique so monetary damages are not an adequate remedy for the buyer if the seller breaches the sales contract.
[Meredith R. Miller]
Friday, November 3, 2006
Those who teach Rockingham County v. Luten Bridge Co. may be interested in recent scholarship by Barak Richman of Duke Law School, which provides the full historical background to that case and answers the inevitable question: Why would anyone build a bridge to nowhere?
In October of 2003, when the Staten Island ferry crashed into a concrete pier, a mate on the Dorothy J. tugboat put down his newspaper and went to assist in the salvage of the ferry. Apparently, the crew of the Dorothy J. never got a thank you for their rescue efforts. And, according to the NY Times, the tugboat mate has sued in the EDNY seeking a reward for their actions on that day. The theory: “pure marine salvage.” This is apparently an old admiralty law from a line of cases that requires the rescuer to show “that the salvaged vessel was in peril of being lost or destroyed, that the service rendered was voluntary, and that the service was a success.” The salvage law is obviously meant to encourage mariners to assist one another even when they are putting their own commercial interests at risk.
The City’s defense (at least in part) seems to be: the tugboat was only doing what it had a preexisting duty to do under its contract – i.e., move ferries. The tugboat mate responds that moving ferries normally would require two tugboats and a pilot to direct the effort – i.e., this well beyond the scope of what we had originally agreed to undertake.
The price tag for the work of a good Samaritan: the tugboat mate seeks a $6 million reward. If he doesn’t get the money? Well, then the purpose of the “pure marine salvage” line of case law will be thwarted: next time there is a disaster like the Staten Island ferry crash, he will just “keep [his] head in the paper and keep reading.”
[Meredith R. Miller]
Wednesday, November 1, 2006
Jack Graves arrived as a member of the legal academy having traveled a somewhat more circuitous path than many. Before attending law school, Jack spent fifteen years in business management—serving as a CFO, COO, and President of various private and publicly held corporations. Jack ultimately left the business world for law school, earning his degree from the University of Colorado in 1994. Following law school, Jack first clerked for the Honorable David M. Ebel on the United States Court of Appeals for the Tenth Circuit, and then joined the law firm of Chrisman, Bynum & Johnson, P.C. (now the Boulder, Colorado office of Faegre & Benson LLP). Six years later, Jack left the world of law practice for legal academia.
Jack has been a “well traveled” law professor to date, having taught Contracts at the University of Colorado School of Law, Stetson Unive rsity College of Law, and, now, Touro Law School. Along with Contracts, Jack teaches a variety of other courses related to business law, but his favorite is a course he initially developed while at Stetson and expects to be teaching at Touro next fall—International Sales Law & Arbitration. His recent scholarship has focused on party autonomy in choice of contract law, as well as a pedagogical article on teaching international commercial law and arbitration. He is currently working on a casebook intended for use in teaching international sales law and arbitration together in a fully integrated manner. Jack’s scholarly interests also mesh well with his continuing service as a coach of law student teams in the Vis International Commercial Arbitration Moot.
When not teaching, writing, or thinking about law, Jack is an avid outdoor enthusiast, including climbing (see photo – Alps ’06), cycling, kayaking, and skiing.
*Photo caption: Is my helicopter rescue contract specifically enforceable in a Swiss court?