February 16, 2007
Anna Nicole Smith's Will: A Lesson in Careful Drafting?
You may have heard that mysteriously famous Anna Nicole Smith passed away last week. Are there any lessons in careful drafting that we can learn from Anna Nicole Smith's will? Certainly seems that way.
Smith's will, executed in 2001, appears to leave everything in trust to her son. However, as any consumer of mainstream news surely knows by now, her son passed away in September, just three days after the birth of her daughter. Does the will provide for her newborn daughter? Article I of the will appears to purposefully exclude any future spouses or children:
Except as otherwise provided in this Will, I have intentionally omitted to provide for my spouse and other hiers, including future spouses and children and other descendents now living and those hereafter born or adopted, as well as existing and future stepchildren and foster children.
However (and this is where the drafting lesson comes in), as CNN coverage notes, later provisions in her will refer to her "children." For example, the will instructs the executor to manage the estate "such that my children are distributed sufficient sums for their health, education and support."
Sounds like the beginnings of an interesting interpretation battle.
[Meredith R. Miller]
February 14, 2007
Tuscaloosa Wins Breach of Contract case
The first time this New Yorker heard the about "Tuscaloosa" was in David Epstein's BarBri lecture on contracts. Thus, I read this breach of contract story in the Tuscaloosa News with a tinge of nostalgia:
The city of Tuscaloosa has won a defamation and breach of contract lawsuit filed in March 2004 by a Mississippi construction company stemming from the Freeman Park pool project.
The ruling by U.S. District Judge L. Scott Coogler also granted the city’s counterclaim for damages that was filed in response to the initial allegations made by Humphries Kelley of Kelley Contracting Inc.
The city refused to grant payment for what it considered a breach of contract after Kelley Contracting failed to complete work on a pool house building as part of the A.L. Freeman Park swimming pool project. The park opened to the public in May 2004.
Coogler, in ruling in favor of the city, did not assess any of the more than $60,000 in damages as listed in the city’s countersuit. A March 19 trial date has been set to address this issue.
“The city of Tuscaloosa is pleased with Judge Coogler’s ruling and believes it is a fair and correct decision," said Senior Associate City Attorney Tim Nunnally.
Efforts to reach Kelley and his attorney, Barbara Clark of Knoxville, Tenn., for comment were unsuccessful.
Kelley can appeal Coogler’s summary judgment ruling.
Kelley filed the suit -- seeking $3 million in damages -- following the city’s decision to cancel the contract in August 2003 and withhold $28,233.13 of a $475,620 contract that it granted to the West Point, Miss.-based company.
In his complaint, Kelley argued that the city refused to consider natural construction delays associated with suppliers and the weather. The project was supposed to last from July to December 2002.
At the request of Kelley Contracting, the city issued three change orders extending the deadline to March 2003 at no cost to the contractor.
The work still was not completed by August 2003, and a Tuscaloosa construction company was hired to complete it the next month.
Coogler’s ruling, issued Tuesday, said Kelley failed to prove the allegations of a contract breach and defamation.
[Meredith R. Miller]
Contracts are all about promoting mutually beneficial exchanges. And it turns out office romances can also fall into that category. National Public Radio reports that companies may benefit from facilitating such romances. Romantically involved employees are happy, productive, loyal employees (once they get over the early part of the relationship, which apparently involves extra-long lunch breaks, pining, wool-gathering and other negative externalities associated with employees thinking about something other than the bottoom line). As Southwest Airlines has discovered, two romantically-connected employees can share information about the company and become more than the sum of their parts. As of 2002, Southwest employed more than 1000 married couples.
In order to protect themselves from sexual harassment suits in connection with such romances, companies are adopting so-called "love contracts." Love Contracts (also called Relationship Contracts) are apparently especially common in the entertainment industry. They permit employees to disclose their office romances while also shielding employers from liability. A sample form Relationship Contract can be found here.
What a lovely gift to get that special someone this Valentine's Day!
February 12, 2007
Limerick of the Week
The casebook that I use does not include a case that addresses the peppercorn theory of consideration, so I supplement the book with Fischer v. Union Trust Co. In that case, one of the brothers of the incompetent Bertha Fischer gave her a dollar, which she then passed on to her father, William Fischer, Sr., as purported consideration for a deed on certain property. William Sr. descirbed the deed as "a nice Christmas present."
I love this case, with its sweet (and remarkably precise!) details of a deal that had occurred nine years earlier. But I can see why casebook editors would want to steer clear. There is a disucssion of "three classes of consideration," which students find completely opaque. It's also an uncomfortable vehicle for teaching peppercorn theory, as the opinion conclusorily states that Bertha "paid no valuable consideration" for the promised conveyance. That's silly. The 1895 dollar pictured above is now worth $750!
But what really bothers me is that it is very hard to work the word "consideration" into a Limerick.
Consideration provision is tough:
One dollar isn't enough.
Has this court grown weary
Of peppercorn theory
Or is the transaction a bluff?