February 14, 2009
Now in Print
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 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:
- Nathan Koppel, The United States of Consumer Arbitration? Not So Fast, Says 2d Cir. (1/30/09).
- Steven Semeraro, Commercial Law Blog, Class Action Waiver in Credit Card Merchant Agreement Held Invalid (2/3/09).
On pursuits to make up for vanished Madoff money:
- Lawrence Cunningham, Concurring Opinions, Case of the Mistaken (Illusory) Investment (2/6/09) (about which we had posted here).
On A-Rod's doping:
- Dave Hoffman, Concurring Opinions, Playing Defense Against A-Rod's Incomplete Contract (2/8/09).
On the fate of contracts and, more speficially mortgages, in the meltdown:
- Thom Lambert, Truth on the Market, Wanna Keep this Economic Mess to a Minimum? Honor Contracts. (2/9/09).
- Todd J. Zywicki, WSJ, Don't Let Judges Tear Up Mortgage Contracts (2/13/09).
On contract irony in the AP lawsuit against Obama poster artist:
- Jason Mazzone, Concurring Opinions, Did the AP Break the Law? (2/10/09).
On a law firm suing a former associate (isn't it usually the other way around?):
- Brian Baxter, The AM Law Daily, Perkins Coie Sues Ex-IP Associate Who Left Firm for Rival (2/11/09).
[Meredith R. Miller]
February 12, 2009
Unenforceable Contracts in the Context of Advanced Assisted Reproduction Technologies?
More 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?
February 11, 2009
Seattle U. Seeks Podium Visitor
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.
Seattle University School of Law, with 1,000+ students and a student-faculty ratio of 14:1, educates ethical lawyers who distinguish themselves through their outstanding professional skills and their dedication to law in the service of justice. Faculty, students, and staff form a vibrant, diverse, and collaborative community that promotes leadership for a just and humane world. The Law School's commitment to academic distinction is grounded in its Jesuit Catholic tradition – one that encourages open inquiry, thoughtful reflection and concern for personal growth. Innovation, creativity and technological sophistication characterize our rigorous educational program, which prepares our graduates for a wide range of successful and rewarding careers in law, business and public service. The School of Law occupies a state-of-the-art building in one of the nation’s most vibrant and livable cities and is enjoying an exciting upward trajectory of programmatic growth and institutional advancement.
Founded in 1891, Seattle University is one of 28 Jesuit universities in the U.S. Dedicated to educating the whole person, to professional formation, and to empowering leaders for a just and humane world, Seattle University is located near downtown on 48 acres in the Capitol Hill neighborhood.
U.S. News and World Report's "Best Colleges 2009" ranks Seattle University among the top 10 universities in the West that offer a full range of masters and undergraduate programs. There are currently over 7,500 students enrolled within the university's eight schools and colleges. Seattle University is an Equal Opportunity Employer. For more information on Seattle University generally, please visit www.seattleu.edu; for more information on the School of Law, please visit www.law.seattleu.edu.
A letter of interest and resume should be sent via email to: Annette E. Clark, Vice Dean & Associate Professor of Law, at email@example.com.
February 10, 2009
Business Associations Limerick of the Week: Crane v. Anaconda
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.
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 ):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 9, 2009
International Law Blogger Declares Contracts Law Boring
Over 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?
It could be worse, you know. What would Professor Alford say to a Supreme Court decision that turned on the mailbox rule?