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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Wednesday, February 25, 2009

How Many Credits For Contracts?

Lecture_hallMost contracts profs would probably prefer to teach the course over two semesters as a six-credit course. When I was a law student, my contracts course was 3/2, but the law school I attended has since eliminated one credit and made it a four-credit course. My own contracts professor applauded this change, explaining that it was hard to get students' attention during the two-credit spring course, as most of their energies were focused on their five-credit property course. I teach a four-credit contracts course and, given that I have always taught it as a four-credit course, I don't experience any hardship in being so limited. Still, I understand that most law schools still retain the six-hour approach to contracts.

We have heard the professors' perspective on this issue, but I wonder if any law students or practitioners would like to weigh in on the merits of four versus six-credit first-year contracts courses.

[Jeremy Telman]

February 25, 2009 in Teaching | Permalink | Comments (1) | TrackBack (0)

Business Associations Limerick of the Week: Ringling Bros.

Bros6

The Ringling Brothers are pictured at right. Together, they created a successful business enterprise. But when they passed the circus on their heirs, things got a bit messy. So messy, in fact, that I no longer teach this case, as the facts are too complicated and the situation too idiosyncratic to justify the time one has to spend on the case in order the earn the meager reward it offers in terms of useful law. Still, it is at least about the breach of a contract, in this case a shareholders agreement, and that makes it a legit case to discuss on this blog. And the facts of the case certainly render it Limerickworthy. 

Much of the background behind the case is nicely explored in J. Mark Ramseyer's article, which can be found on SSRN here. The short version is as follows. John Ringling, one of the original five brothers (he's the one with the mustache!), controlled the circus until his death in 1936. At that point, control passed to three Ringling factions: John's wife Edith, and her son Robert; Aubrey and James Haley; and Ida Ringling North (a sister to the original five) and her sons John Ringling North and Henry North. John Ringling North was the most industrious of the new generation and he actually knew how to run a business. He was the impressario who engaged Igor Stravinsky and George Balanchine to create a ballet for elephants. John North ran the circus ably until 1943 when the Haleys entered into a vote pooling agreement with Edith and Robert Ringling and thus were able to seize control of the board. They did so, Ramseyer tells us, in order to assure that the circus would continue during World War II. 

This was an unwise decision. John North had decided to shut down the circus for the remainder of the war because of the scarcity of fireproof materials for the tents under which the circus performed. But Robert Ringling and the Haleys were willing to take the risk. The result was the tragic Hartford Fire on July 6, 1944, in which 168 people were killed. Ramseyer reports that the fire was either caused by: a mentally handicapped arsonist employed by the circus; a "dirty son-of-a-b----" in the bleachers who threw a cigarette butt; or a monkey jumping around the upper poritions of the tent with a lit cigar. So much for the value of eyewitness testimony. In any case, the circus ended up paying nearly $4 million to settle civil suits, and James Haley was sentenced to a year in jail for involuntary manslaughter. 

Perhaps out of fellow feeling or perhaps out of business savvy, John North made friendly overtures towards his convicted business partner. Robert Ringling, on the other hand, who was himself lucky to have escaped a prison sentence, stayed away. As a result, when Haley got out of jail, he and Aubrey refused to cast their shareholder votes as previously agreed per their shareholder agreement with Edith and Robert Ringling. Aubrey and John North hatched a plan to return control of the circus to John North, while also allowing James Haley the opportunity to benefit from a position as an officer in the corporation.  

The issue before the court then was whether the Haleys had violated their shareholder agreement by refusing to abide by the ruling of the arbitrator appointed under the agreement, one Mr. Loos, and by refusing to cast their votes as Mr. Loos determined they should. The Delaware Supreme Court found that the Haleys were in breach of the agreement but that Mr. Loos had no power to enforce it. It therefore determined that the Haleys' improper votes simply would not count. The result was that the Haleys were simply left without representation on the newly-elected board, but that board was now evenly split between representatives of the North faction and representatives of the Ringling faction, a recipe for deadlock. 

This Limerick addresses the question of what role the Haleys were to have in the new administration of the circus. 

Ringling Bros. v. Ringling

After the Great Hartford Fire,
Aubrey and John did conspire.
The corporation is close;
Aubrey's misconduct, gross
Now the Haleys perform on high wire.

[Jeremy Telman]

February 25, 2009 in Famous Cases, Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2009

Tenure and Contract

Moriarty
The American Association of University Professors, which is like a lioness defending her cubs when it comes to tenure is roaring about its recent success (as an amicus) in the First Circuit case, Otero-Burgos v. Inter-American University.

That case did not involve the tenure struggles of Professor Moriarty (pictured), but of Professor Edwin Otero-Burgos, who was dismissed from Inter American University in 2003 after having worked there for nearly 30 years. He was awarded tenure in 1994. In 1999, one of Professor Otero-Burgos's students complained that his grade of "D" was undeserved. The student demanded an opportunity to improve the grade, but the professor refused. The student appealed to the administration, which determined that the student was entitled to a supplemental evaluation. Professor Otero-Burgos refused to participate in this process and so the university designated an alternate. The student did additional work, was evaluated and received a "C" for the course.

Otero-Burgos was dissatisfied with this resolution, so he filed a grievance, alleging that the university's actions interfered with his academic freedom. A Faculty Appeals Committee supported Professor Otero-Burgos's claim, but the University Chancellor nonetheless considered it meritless. There followed a flurry of letters and accusations sent to the University President. The upshot was an investigation into Professor Otero-Burgos's conduct by an Ad Hoc Committee comprised of three professors chosen by the Professor's Dean. That Committee concluded that Professor Otero-Burgos was insubordinate and had violated all sorts of rules, policies, and norms, as well as his colleagues' rights. As a result, in 2002, the Dean notified Professor Otero-Burgos that he was terminated.

Otero-Burgos appealed that decision, and a new Faculty Appeals Committee entertained that appeal. It concluded that there was no cause for terminating Professor Otero-Burgos, but that view was overruled by the Chancellor. The President backed the Chancellor, and Otero-Burgos was dismissed.

On appeal, the issue was whether Puerto Rico's Law 80 limited Otero-Burgos's remedy to severance pay. It appears that Law 80 was intended to protect "at-will" employees and it provides severance benefits to workers who are hired for no fixed term, so long as they are not fired for cause. The case turned on whether Law 80 would apply to tenure and whether a tenured professor falls under the law because he has "contracted without a fixed term."

The court looked at the intention behind Law 80 and found that it was "a measure that would provide employees with a baseline level of economic protection from the consequences of arbitrary dismissals." It concluded that tenure contracts are "not remotely the at-will employment arrangement to which Law 80 is addressed." But the court proceeds with a very scrupulous inquiry into the purposes of tenure and the compatibility of those purposes with the notion that Law 80 should limit remedies available to dismissed professors. It then concludes that Law 80 could not possibly apply to this situation. It reinstated Professor Otero-Burgos's breach of contract claim, noting that if he can establish that he was fired without adequate cause, "he will be eligible for the panoply of generally available contract remedies."

The full opinion in the case can be found here (go to opinions and type in case no. 07-2501).

[Jeremy Telman]

February 24, 2009 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, February 21, 2009

Cancelled Firm Retreat Leads to Breach of Contract Suit

This story from Carolyn Elefant at Legal Blog Watch:

Akin Gump Strauss Hauer & Feld wasn't able to give its partners a fancy retreat this year, so it's giving them something else instead: a lesson in first year contract law. As the The Am Law Daily reports, Akin Gump scheduled a partner retreat at the luxurious Hotel Del Coronado in San Diego. But after booking the venue, the firm canceled the retreat, deciding that it would be unseemly to host a lavish event with with the economy in its current state. Thereafter, the hotel sued for breach of contract, claiming $385,950 in liquidated damages for, among other things, "877 sleeping room nights" that were set aside for partners at the firm.

[Meredith R. Miller]

February 21, 2009 | Permalink | TrackBack (0)

Thursday, February 19, 2009

AALS Boycott Did Not Require Breach of Contract

Id_aalsYou may recall last semester's quasi-controversy over whether the AALS Mother Ship should hold any of the annual meeting events at the San Diego Grand Hyatt because it was owned (ostensibly?) by Doug Manchester, who had contributed quite generously to efforts to pass California's anti-gay marriage referendum, Prop 8. The L.A. Metropolitan News reports that the AALS did not have to breach its contract with the Manchester Hyatt when it undertook a boycott:

The American Association of Law Schools did not have to breach any contracts in order to avoid meeting at a San Diego hotel that has become the target of a boycott because of its owner’s support of Proposition 8, the group’s chief executive said yesterday.

Susan Prager told the MetNews that the AALS had reserved blocks of hotel rooms at both the San Diego Marriott and the Manchester Grand Hyatt for its annual meeting, which took place January 6-10.

The organization generally reserves space in two to three hotels to accommodate its meetings, Prager explained, but in light of the controversy over Doug Manchester’s $125,000 contribution to the campaign to overturn same-sex marriage rights in California, the organization issued a statement in August declaring that it would “hold all AALS events at the Marriott to ensure the maximum participation by our members.”

Boycott advocates have cited the AALS as an example for the State Bar of California and Conference of Delegates—which are scheduled to meet at the Hyatt in September—to emulate.

Prager explained yesterday that the AALS “did not breach any contractual arrangement” because it had the option of selecting which hotel would serve as the “headquarters” for the event under its contracts, and that it still offered rooms at the Manchester Hyatt to attendees.

She said that the group’s purpose in exercising its option to hold its events at the Marriott was “to ensure that faculty would feel comfortable attending the meetings, and we wanted to have the meetings in a hotel that would not bring people into personal conflict into personal conflict about whether they would attend the meeting,” but she emphasized that “it was the nature of our contract that shaped our ability to change our plans.”

Take that party-of-the-first-part-Manchester-Grand-Hyatt!

[Meredith R. Miller]

February 19, 2009 in In the News | Permalink | TrackBack (0)

The New Face of Facebook?

Frowny_badge Exposed by Meredith Miller of the ContractsProfs Blog here, Facebook has rescinded its new standard terms of use and is temporarily reverting to its earlier terms of use.  You can read more here or if you prefer, in The New York Times here.

[Jeremy Telman]

February 19, 2009 in In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2009

New and Improved: Facebook Revises Standard Terms of Use

Facebook_picFacebook has revised its standard terms of use. Here's a nice discussion of the major changes, and a follow up discussion concerning the enforceability of the revisions.

[Meredith R. Miller]

February 17, 2009 in In the News | Permalink | TrackBack (0)

Business Associations Limerick of the Week: Pilsbury v. Honeywell, Inc.

VietnamdemWith last week's Limerick, we covered a case that teaches us that a shareholder has a right to inspect a corporation's books and records, including shareholder lists, in the context of a tender offer. State laws, including Section 220 of Delaware's General Corporation Law, provide that a shareholder has inspection rights subject only to the requirement that the shareholder show that she seeks inspection for purposes related to the business of the firm.

In Pilsbury, plaintiff was a member of Project Honeywell, an antiwar group that was trying to get the corporation to stop producing fragmentation bombs for use during the Vietnam War. Pilsbury bought shares in Honeywell so that he could lobby its shareholders on the subject of fragmentation bombs. He said in deposition that his only reason for investing in the company was to call attention to Honeywell's fragmentation bomb production. The court found that his purpose in seeking inspection related to his political views and not to the firm's business. Accordingly, he was denied the right to inspect under Delaware law.

So now, savvy politically-motivated investors know that they have to say in their depositions that they love the corporations that they are seeking to expose, and believe that manufacturing savage weapons is bad for business.

Pilsbury v. Honeywell, Inc.

Pilsbury protests Vietnam
Honeywell could not give a damn.
If he'd only lied,
He'd have not been denied!
Is Section 220 a sham?!?

[Jeremy Telman]

February 17, 2009 in Famous Cases, Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2009

Love Contracts, Volume III

BaglioneEvery year on February 14th -ish, we like to update our readers on the latest news regarding love contracts.  If you don't know what a love contract is, you are a total loser, but you can remedy that status by following this link.  Actually, if you watch "The Office," you are definitely not a total loser and you should know what a love contract is, as it figured prominently in an episode recounted here

This year, we can only report that the popularity of love contracts continues to grow, as reflected in this report in KansasCity.com.  The report includes the staggering new that according to CareerBuilder.com, 40 percent of workers surveyedsaid they had dated a co-worker.  This is actually great news for parents with boomerang children.  Look kid, you want to find love, go get a job!  It's also great news for employers who are looking to motivate their employees to spend more time at the office.

[Jeremy Telman]

February 16, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, February 14, 2009

Now in Print

Pileofbooks

Michael J. Borden, Mistake and Disclosure in a Model of Two-Sided Informational Inputs, 73 Mo. L. Rev. 667 (2008).

Zev J. Eigen, The Devil in the Details: The Interrelationship Among Citizenship, Rule of Law and Form-Adhesive Contracts, 41 Conn. L. Rev. 381 (2008).

Marjorie Florestal, Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts, 14 Mich. J. Race & L. 1 (2008).

Jennifer S. Martin, Adapting U.C.C. Section 2-615 Excuse for Civilian-Military Contractors in Wartime, 61 Fla. L. Rev. 99 (2009).

Susan Randall, Freedom of Contract in Insurance, 14 Conn. Ins. L.J. 107 (2007).

Lorelei Ritchie, Reconciling Contract Doctrine with Intellectual Property Law: An Interdisciplinary Solution, 25 Santa Clara Computer & High Tech. L.J. 105 (2008).

Donald J. Smythe, The Scope of a Bargain and the Value of a Promise, 60 S.C. L. Rev. 203 (2008).

Richard Warner, Turned on its Head?: Norms, Freedom, and Acceptable Terms in Internet Contracting, 11 Tul. J. Tech. & Intell. Prop. 1 (2008).

Meredith A. Wegener, Giving Promises Force: Allowing Debtor's Breach of Contract Claim Despite Position Taken in Bankruptcy, 78 Miss. L.J. 105 (2008).

[Keith A. Rowley]

February 14, 2009 in Recent Scholarship | Permalink | TrackBack (0)

Friday, February 13, 2009

Contract News Round Up

Some President's weekend reading related to current events and contract law:

On the invalidated AMEX class action waiver:

On pursuits to make up for vanished Madoff money:

On A-Rod's doping:

On the fate of contracts and, more speficially mortgages, in the meltdown:

On contract irony in the AP lawsuit against Obama poster artist:

On a law firm suing a former associate (isn't it usually the other way around?):

Tx20720lasso801Enjoy!

[Meredith R. Miller]

February 13, 2009 in In the News | Permalink | TrackBack (0)

Thursday, February 12, 2009

Unenforceable Contracts in the Context of Advanced Assisted Reproduction Technologies?

Embryo_8_cellsMore in our continuing series of posts on the topic of contracts issues relating to advanced reproductive technologies (earlier posts can be found here and here). Today's New York Times has a report that includes more information on Nadya Suleman, a 33-year old woman who recently gave birth to octuplets, giving her a grand total of 14 children. One question that has arisen in connection with this story is why her fertility doctor implanted so many embryos. That Times reports that Ms. Suleman's doctor is currently under investigation by the California medical board in connection with her case.

But the Times also provides some insights into the dynamics at work. As we mentioned before, in vitro fertilization is expensive, so women who cannot afford multiple cycles pressure their doctors to implant multiple embryos. Dr. Tien C. Chiu, who formerly treated Ms. Suleman, claimed to have implanted eight embryos in a woman at her insistence only after making her sign an agreement that she would agree to a selective reduction in case several of the embryos developed into fetuses. The Times reports that the agreement was "very likely unenforceable," and that seems right. I also wonder how specific the agreement was. What if the woman became pregnant with triplets? Where would one draw the line?

[Jeremy Telman]

February 12, 2009 in In the News | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2009

Seattle U. Seeks Podium Visitor

Seattleu

Seattle University School of Law invites applications for a year-long “podium” visit in Contracts/Commercial Law for 2009-10. 

Contracts is a 1L required course: 3 credits in the fall, 3 credits in the spring, with a final exam at the end of each term. In addition to Contracts, the visitor will teach two out of three of the following upper division commercial law offerings: UCC Sales & Secured Transactions (4 cr), Payment Law (2 cr) , and Bankruptcy (3 cr). Compensation will be commensurate with skills and experience, and priority in hiring will be given to experienced faculty with outstanding academic credentials.

Continue reading

February 11, 2009 in Help Wanted | Permalink | TrackBack (0)

Tuesday, February 10, 2009

Business Associations Limerick of the Week: Crane v. Anaconda

Anaconda At left, we have an anaconda.  At right, we have a crane.Crane

Alright.  I can imagine an anaconda swallowing a crane.  But here we have a case about a crane trying to swallow an anaconda.  And that, I find, well . . .  hard to swallow. 

Crane Co. attempted to purchase Anaconda Co. in a tender offer and asked for Anaconda's shareholder list to facilitate its offer.  Anaconda refused on the ground that the request was unrelated to the business of the firm, since corproate control is not a part of the firm's business.  The court rejected that argument as about as farfetched as the idea of a bird consuming a serpent.

Crane Co. v. Anacondan Co.

The very idea's insane!
A serpent consuemd by a crane?!?
Crane may inspect
As it aims to effect
A change in the corproate domain.

[Jeremy Telman]

February 10, 2009 in Famous Cases, Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)

50 Cent Not Gonna Give a Dime

As reported in today's New York Law Journal, a New York trial court recently granted summary judgment to rapper "50 Cent" in a breach of contract action brought by his ex-girlfriend (and mother of his child). The ex claimed that 50 Cent orally promised to take care of her for the rest of her life when he "made it big" in the entertainment industry. She also argued, among other things, for quantum meruit. Here's a little taste:

According to plaintiff's affidavit, the parties entered into an express oral agreement "on or about September of 1996" wherein in exchange for plaintiff "providing the defendant homemaking and domestic services while we lived together, the defendant would devote his time to becoming a successful recording artist and share with me equally all his earnings from that success." Plaintiff's affidavit provides as follows:
I agreed to continue to live with him, maintain his home, perform homemaking and domestic services for him as well as support him mentally, emotionally and financially to the best of my abilities. I also agreed to accompany him to social and other events . . . .Defendant agreed that he would vigorously pursue a professional recording career with the understanding that our combined efforts could result in the accumulation of substantial wealth and assets that we would divide and share equally.
Plaintiff admitted that she was in love with defendant when they entered into this agreement in September 1996 (EBT, p. 206), after all, "He was a corner crack dealer parolee. He didn't have anything . . . .So I was going to be with him whether he was 50 Cent, with a hundred million dollars, or Curtis Jackson, working for sanitation, making $50,000 a year. I would have been with him, because I loved him. It wasn't about him saying that he would give me everything he had. It's when you love a person, you don't - it's not about the monetary. If you're a prostitute, then it's a monetary thing. We were two people in love with each other."

While statements such as these demonstrate loving devotion and loyalty, these same statements undermine plaintiff's breach of contract and quantum meruit claims for half of defendant's wealth.

"As to personal services between unmarried persons living together or unmarried persons whose actions flow out of mutual friendship and reciprocal regard, there is very little difference" (Trimmer v. Van Bomel, 107 Misc 2d 201 [Sup. Ct. New York County 1980]). "An implied contract to compensate for those things which are ordinarily done by one person for another as a matter of regard and affection should not, under these well established principles, be recognized in this state" (Id.).

Such a claim in the context of a cohabiting relationship is against New York's public policy (as evidenced by the 1933 abolition of common-law marriages) Soderholm v. Kosty, 177 Misc 2d 403, 676 NYS2d 850 [N.Y. Just. Ct. 1998] citing Morone v. Morone, 50 NY2d 481, 488, 429 NYS2d 592, supra).

Suits involving "unmarried persons living together who thereafter seek financial recovery frequently run afoul of the theory that a contract founded upon an agreement to live together as man and wife will not be enforced (Civ. Rts. Law, s 80-a)" (Trimmer v. Van Bomel, 107 Misc 2d 201, supra). The Court recognizes that services rendered by one paramour for the other which are non-sexual in nature and do not arise directly from such a relationship, may be deemed separable, and form the basis for compensation (Id., citing Matter of Gordon, 8 NY2d 71, 202 NYS.2d 1; 6A Corbin on Contracts, s 1476, p. 622; 15 Williston on Contracts, §1745; Restatement of Contracts s 589). However, this is not such a case.

Here, the purported agreement was made when plaintiff and defendant were living together, albeit sporadically, as lovers, and by its terms, required the defendant to support plaintiff for the rest of his and her life, even if the parties broke up and ceased cohabitating. The services for which plaintiff seeks compensation arise out of the nature of the relationship of the parties to one another. The services involved - to devote time and attention to the defendant, to act as companion, to accompany him to social events and perform household duties - are of a nature which would ordinarily be exchanged without expectation of pay (see Trimmer v. Van Bomel, supra citing Rubinsteen v. Klevin, 261 F 921, Robinson v. Munn, 238 NY 40, 43; Matter of Adams, 1 AD2d 259, 149 NYS2d 849, aff'd 2 NY2d 796, 159 NYS2d 698; Matter of Basten, 204 Misc 937, 126 NYS2d 459; Matter of Mulderig, 196 Misc 527, 91 NYS2d 895).

As Judge Meyer noted in Morone v. Morone (50 NY2d 481, 488, 429 NYS2d 592,488, 429 NYS2d 592 [1980]):

As a matter of human experience personal services will frequently be rendered by two people . . . because they value each other's company, or because they find it a convenient or rewarding thing to do. For courts to attempt through hindsight to sort out the intentions of the parties and affix jural significance to conduct carried out within an essentially private and generally noncontractual relationship runs too great a risk of error . . . .There is, therefore, substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid.
Providing loving care and assistance to her boyfriend and the father of their son before and after he was shot and seriously injured, does not transform her relationship to a one founded upon contract. To conclude otherwise would transform the parties' personal, yet informal relationship to that of a marriage.

In any event, even assuming the purported oral agreement is recognized in New York, as the party seeking to enforce a contract, plaintiff bears the burden to establish that a binding agreement was made and to prove the terms of the contract (Allied Sheet Metal Works, Inc. v. Kerby Saunders, Inc., 206 AD2d 166, 619 NYS2d 260 [1st Dept 1994]). This plaintiff failed to do.

Before a court will impose a contractual obligation, it must ascertain that a contract was made and that its terms are definite (Charles Hyman, Inc. v. Olsen Indus., Inc., 227 AD2d 270, 642 NYS2d 306 [1st Dept 1996] citing Cobble Hill Nursing Home v. Henry & Warren Corp., 74 NY2d 475, 482, 548 NYS2d 920, cert. denied 498 US 816, 111 SCt 58]). Here, it is clear that the alleged oral agreement to "take care of" plaintiff for the rest of her life, contains no specifics as to the manner in which defendant was obligated to "take care of" the plaintiff, and, assuming this included the tender of monies to plaintiff, no specifics as to the frequency and amount of payments.

Therefore, the alleged oral agreement to take care of plaintiff for the rest of her life in exchange for her promise to perform household duties and take care of the parties' children is unenforceable. And consequently, any claims based on such oral agreement, including specific performance of same, an accounting of all of defendant's assets, mandamus relief, and declaratory relief, lack merit, and are dismissed.

Tompkins v. Jackson, 104745/2008, (New York County Supreme Court, decided February 3, 2009) (Edmead, J.).

[Meredith R. Miller]

February 10, 2009 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2009

International Law Blogger Declares Contracts Law Boring

AlfordOver at Opinio Juris, everyone's favorite international law blog, Roger Alford (pictured) has a post about United States v. Eurodif, S.A., a recent Supreme Court decision that actually addresses some contracts issues. The question in the case is familiar to anyone who has had to cover the U.C.C.: is the contract at issue (in this case, the subject matter is the importation of low-enriched uranium) one for goods or services? Professor Alford's conclusion: *yawn*!

The Court deferred to the Commerce Department's conclusion that the contract in question was one for the sale of goods rather than services. It did so by distinguishing the process at issue in this contract from a dry cleaning service, which is properly understood as a service rather than a goods contract.

Professor Alford comments as follows:

While I have no expertise in the matter, I can’t help but wonder whether the process of manufacturing LEU could be adjusted to more closely resemble a service by simply requiring a precise and specific quantity of uranium feed be transformed and delivered as LEU. If one wishes a tailor to manufacture a shirt, one could do so by providing three yards of fabric designated for each individual shirt or one could simply provide thirty yards of fabric and contract for the end product of at least ten shirts. Is this the sale of an untracked and fungible good or is it a service that substantially transforms ten specific units of three linear yards of fabric? Who knows, and in truth, who cares?

Well, exc-youze-me!!

It could be worse, you know. What would Professor Alford say to a Supreme Court decision that turned on the mailbox rule?

[Jeremy Telman]

February 9, 2009 in In the News, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Friday, February 6, 2009

Now in Print: Dispatches from Abroad

Pileofbooks

In an effort to help raise awareness among this blog's readers, most of whom are (as am I and my fellow bloggers) based in the U.S., this is the second of an irregular series of posts designed to call attention to recent English-language contracts scholarship appearing in journals that SmartCILP generally does not index and to which Westlaw or LexisNexis may not provide full-text on-line access. (Hein Online makes many of these periodicals available -- but typically not the most recent issues.)

J.W. Carter, Intermediate Terms Arrive in Australia and Singapore, 24 J. Contract L. 226 (2008).

David Pearce, Remedies for Breach of a Keep-Open Covenant, 24 J. Contract L. 199 (2008).

Nathan Tamblyn, Damages Under String Contracts for Sale of Goods, [2009] J. Bus. L. 1.

Paul-Erik Veel, Penalty Clauses in Canadian Contract Law, 66 U. Toronto Fac. L. Rev. 229 (2008).

Goh Yihan, Towards a Consistent Approach in Breach and Termination of Contract at Common Law: RDC Concrete Pte. Ltd. v. Sato Kogyo (S) Pte. Ltd., 24 J. Contract L. 251 (2008).

Qi Zhou, Is a Seller's Efficient Breach of Contract Possible in English Law?, 24 J. Contract L. 268 (2008).

[Keith A. Rowley]

February 6, 2009 in Recent Scholarship | Permalink | TrackBack (0)

Thursday, February 5, 2009

Now in Print

Home_photo_books

Wayne Barnes, French Subjective Theory of Contract: Separating Rhetoric from Reality, 83 Tul. L. Rev. 359 (2008).

Robert Boyle, The Enforceable Prepayment Penalty, 6 DePaul Bus. & Com. L.J. 585 (2008).

James W. Fox, Jr., The Law of Many Faces: Antebellum Contract Law Background of Reconstruction-Era Freedom of Contract, 49 Am. J. Legal Hist. 61 (2007).*

Juliet P. Kostritsky, Uncertainty, Reliance, Preliminary Negotiations and the Holdup Problem, 61 SMU L. Rev. 1377 (2008).

Richard Moberly, Protecting Whistleblowers by Contract, 79 U. Colo. L. Rev. 975 (2008).

Dudi Schwartz, Interpretation and Disclosure in Insurance Contracts, 21 Loy. Consumer L. Rev. 105 (2008).

* - While the cover date for Jamie Fox's article is 2007, the issue's copyright date is 2009.  Oh well, it is a journal of legal history after all. 

[Keith A. Rowley]

February 5, 2009 in Recent Scholarship | Permalink | TrackBack (0)

Madoff Mistake Case?

This story from the NY Times:

In June 2006, Steven Simkin and Laura Blank, who were in the process of a divorce, agreed to evenly split the $5.4 million in an account they had with Madoff Securities, according to a suit that Mr. Simkin filed Tuesday in State Supreme Court in Manhattan. Mr. Simkin gave Ms. Blank $2.7 million in cash, according to the suit, and held onto the account.

All this happened, of course, before federal authorities arrested Mr. Madoff in December on charges that he ran a Ponzi scheme that lost up to $50 billion. Mr. Simkin, much to his chagrin, would discover that his account was “worthless, literally not worth the paper on which the parties’ valuation rested,” the suit claimed, referring to the couple.

Now Mr. Simkin is suing Ms. Blank for the $2.7 million that he said he paid her.

“Steven, the bulk of whose liquid assets were invested with Madoff Securities, has been gravely damaged,” the lawsuit said. “It is only fair and equitable for Laura to shoulder her share of that harm.”

The couple was married for 30 years, separated in January 2002, and divorced in 2006, according to the suit.

During their divorce proceedings, the lawsuit said, Mr. Simkin and Ms. Blank struggled to value many of their assets — their Scarsdale home, his law partnership, her Manhattan apartment — but one of the values that came easily was that of their account with Mr. Madoff. They agreed to an equal split, the suit said. Because the account turned out to be valueless, the lawsuit said, the spirit of the agreement was broken.

“Allowing Laura to retain her asymmetrically large portion of the parties’ true assets would allow her to profit, at Steven’s expense, from Madoff’s fraud,” the suit said. “This is an inequitable benefit conferred on Laura by virtue of the parties’ joint mistake regarding the value of the Madoff account, and an inequitable harm to Steven.”

Ms. Blank did not return a telephone message seeking comment.

Mr. Simkin is a partner at the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison and chairman of the firm’s real estate department. He has represented lenders in several major real estate transactions.

So, it seems that there was a mutual mistake here: both parties thought the account was worth $5.4 million, but it was, in fact, worthless. However, did Simkin bear the risk of this mistake? Keeping the account entitled him to its (magical) rate of return, so does this mean he also risked any losses?

[Meredith R. Miller][H/T Alan Hornstein]

February 5, 2009 in In the News | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 4, 2009

Apple Sued (Again!) for Breach of Warranty over 3G Speed

Two things near and dear to my heart have converged in one place: contract law and the iphone.  Apple was already facing lawsuits over 3G reception, and now PCWorld reports:

Apple and AT&T Mobility are facing two new lawsuits claiming the speed and infrastructure of the 3G network is insufficient.

The lawsuits were filed in the United States District Court of the Southern District of Florida and in the United States District Court Eastern District of Texas Sherman Division this week.

The lawsuit claims this violates statutory and common law, including consumer protection statutes, negligent misrepresentation, unjust enrichment, and breaches of express and implied warranties.

The lawsuits make eight claims against the companies including Breach of Express Warranty, Breach of Implied Warranty of Fitness of Purpose, Unjust Enrichment, Negligent Misrepresentation, Intentional Misrepresentation, and Breach of Contract.

Well, at least 3G is still so much faster than EDGE (in a fit of irrepressible geekiness, I tried this test myself on the AT&T network):

[Meredith R. Miller]

February 4, 2009 in In the News, Recent Cases | Permalink | TrackBack (0)