ContractsProf Blog

Lucy van Pelt Ponders Fundamental Contractual Issues

Since Meredith has decided to take an unpaid leave-of-absence this summer, we have to take some short-cuts to make sure we can continue to feed our readers' voracious hunger for new contracts-related stimuli.

Here, for example, is a YouTube clip that bears the caption "All I need to know about contracts"

The comments following the video suggest that 1) Charlie Brown's cause of action would lie in promissory estoppel, not in contract; or 2) that the contract is binding if signed by both parties even in the absence of notarization.

As Charlie Brown might say to express exasperation in this context, *Sigh*.  Isn't this obviously a case of tort rather than breach of contract?  What contractual damages has Charlie suffered?  What non-tort damages would he have based on a theory of promissory estoppel?

[JT]

Summer Slow Down. . . . Off to Vietnam

I apologize in advance that my blogging will be light to non-existent in the next month.  I leave today to travel and then teach in Touro's summer abroad program in Vietnam.

Pursuant to my blogging contract, I believe I promised to post at least once a week. I haven't reviewed the contract in a while, but I believe there is an exemption for summer abroad programs.  Even if not expressly stated, I think the exemption is implicitly established by the previous conduct of Jeremy, our blog overlord editor.

If I don't see you on the blog, have a great month!

[Meredith R. Miller]

"Hot Dogs Don't Have Contracts...."

Yup, an ad for internet service:

[Meredith R. Miller]

Woman Breached Adoption Contract When She Sent Child Back to Russia

Remember the woman who adopted a Russian boy and then decided he had psychological problems and didn't want him anymore?  A Tennessee judge has apparently ordered the woman to pay $150,000 for breach of the adoption contract.  The Washington Post reports:

An American woman who adopted a Russian boy and later sent him back to Moscow on a one-way flight has been ordered to pay a sum of $150,000 and an additional $1,000 per month in child support until he’s an adult.

On Thursday a Bedford County, Tenn., judge said Torry Hansen must begin making the child support payments in June and continue to pay until the boy, who is now 10 years old, turns 18. Circuit Court Judge Lee Russell said the $150,000 Hansen must pay includes damages for breach of contract, legal fees and support for the boy.

Here's more:

Adoption advocates hailed the Tennessee court order as a measure of justice for the boy, and said the judge’s decision would show there are consequences to abandoning adopted children. They have said Hansen never told social workers that she was having problems with the boy.

The agency sued Hansen to deter others from doing anything similar and to show the Russians that “you cannot do this in America and get away with it,” Crain said.

“It has certainly caused concern on the part of Russian officials that unless there are consequences when a parent abandons a child placed in their home, there’s a need for safeguards to make sure this never occurs,” Crain said.

The judge said in his order that when Hanson adopted the boy she signed a contract acknowledging that it was possible the child could have physical, emotional or behavior problems that were unreported and even unknown to the adoption agency.

Lee said $58,000 of the $150,000 will pay for the past two years’ worth of support and medical fees for the boy in Russia.

Here's the entire article.

[Meredith R. Miller]

New in Print

James A. Henderson, Jr., Contract's Constitutive Core: Solving Problems by Making Deals, 2012 U. Ill. L. Rev. 89-138.

Julie M. Spanbauer, Selling Sex: Analyzing the Improper Use Defense to Contract Enforcement through the Lens of Carroll v. Beardon. 59 Clev. St. L. Rev. 693-743 (2011)

We note with pride that Professor Spanbauer cites to a Limerick about Carroll v. Beardon that had its premiere on this blog!!

S.I. Strong, What Constitutes an "Agreement in Writing" in International Commercial Arbitration? Conflicts between the New York Convention and the Federal Arbitration Act, 48 Stan. J. Int'l L. 47-91 (2012)

[JT]

Cosmo Duff-Gordon in the News

Sir Cosmo Duff-Gordon (pictured), Titanic survivor and husband to Lucy, Lady Duff-Gordon of Wood v. Lady Duff-Gordon fame, was pictured in today's New York Times here.  The picture shows Sir Cosmo, along with two British fencing teammates, holding pistols at the 1908 Olympic Games.  Inattentive readers might conclude that Sir Cosmo competed in the dueling competition, but as his Wikipedia entry notes, his specialty (Silver Medal, 1906 Olympics) was the épée.

The individual dueling competition was featured only at the 1906 games and as the Times waggishly notes, "none of the duelists was actually shot," which must have been terribly disappointing for the audience.  No wonder you couldn't even find the games on cable in 1906. The Times explains that the competitors "shot at a dummy dressed in a frock coat."

[JT]

Weekly Top Tens from the Social Science Research Network

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 
March 23, 2012 to May 22, 2012

Rank	Downloads	Paper Title
1	397	The Impact of the Broker-Dealer Fiduciary Standard on Financial Advice  Michael S. Finke, Thomas Patrick Langdon,  Texas Tech University, Unaffiliated Authors - affiliation not provided to SSRN
2	205	The Perils of Social Reading  Neil M. Richards,  Washington University in Saint Louis - School of Law
3	197	Zotero - A Manual for Electronic Legal Referencing  John Prebble, Julia Caldwell,  Victoria University of Wellington, Victoria University of Wellington
4	154	Does the Constitution Protect Economic Liberty?  Randy E. Barnett,  Georgetown University Law Center
5	133	The Common European Sales Law (CESL) Beyond Party Choice  Jan M. Smits,  Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
6	123	Transaction Simplicity  Stephen J. Lubben,  Seton Hall University - School of Law
7	105	Forcing Forgetfulness: Data Privacy, Free Speech, and the 'Right to Be Forgotten'  Robert Kirk Walker,  University of California - UC Hastings College of the Law
8	97	'Offer to Sell' as a Policy Tool  Lucas Osborn,  Campbell University Law School
9	92	The Private Equity Contract  Steven M. Davidoff,  Ohio State University (OSU) - Michael E. Moritz College of Law
10	92	Outsourcing Regulation: How Insurance Reduces Moral Hazard  Omri Ben-Shahar, Kyle D. Logue,  University of Chicago Law School, University of Michigan Law Schoo

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  
March 23, 2012 to May 22, 2012

Rank	Downloads	Paper Title
1	205	The Perils of Social Reading  Neil M. Richards,  Washington University in Saint Louis - School of Law
2	163	The Questionable Basis of the Common European Sales Law: The Role of an Optional Instrument in Jurisdictional Competition  Eric A. Posner,  University of Chicago - Law School
3	154	Does the Constitution Protect Economic Liberty?  Randy E. Barnett,  Georgetown University Law Center
4	143	Modern Chinese Real Estate Law: Property Development in an Evolving Legal System (Chapter 1)  Gregory M. Stein,  University of Tennessee College of Law
5	132	The Common European Sales Law (CESL) Beyond Party Choice  Jan M. Smits,  Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
6	98	Errors of Fact and Law: Race, Space, and Hockey in Christie v. York  Eric M. Adams,  University of Alberta - Faculty of Law
7	60	Instructing Juries on Noneconomic Contract Damages  David A. Hoffman, Alexander Radus,  Temple University - James E. Beasley School of Law, Temple University James E. Beasley School of Law
8	58	Remedial Consilience  Marco Jimenez,  Stetson University College of Law
9	57	Europe-Building Through Private Law: Lessons from Constitutional Theory  Chantal Mak,  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)
10	57	How Many Systems of Private Law are There in Europe? On Plural Legal Sources, Multiple Identities and the Unity of Law  Martijn W. Hesselink,  University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

 

[JT]

Representations and Warranties

Over at Ken Adams' Koncision blog, he has a fascinating post and cri de coeur about how to present statements of fact in a contract.  I recommend this post and this blog to practitioners who are interested in writing neat, clean, clear, and above all enforceable agreements.  In this post, Ken urges contract drafters to eschew the magic words "representations" (or "represents") and "warranties" (or "warrants"). in favor of the simpler "states."

I think I agree with Ken that the phrase "represents and warrants" is reflexive boilerplate that creates confusion in most cases.  Unlike Ken though, I think the terms have clear, separate meanings and that they retain their utility when used separately and precisely.

While I have not thought the issue through with Ken's gusto, I am far more inclined to be a traditionalist on such matters.  "States" does not mean the same thing as "represents," and there are reasons to be persnickety about this.  I may state that I am the very model of the modern major general, but that is very different from representing that I am.  Having parties state things in contracts has no meaning in standard contract parlance, nor should it because one cannot rely on a mere statement unless it is accompanied by another statement, one which acknowledges that such reliance is warranted because the party stating the facts also represents that they are true.  So, my inclination is to disagree with Ken's claim that only those of us introduced to the mysteries of the law can appreciate the difference between a statement and a representation.

I likewise disagree with Ken's claim that most practitioners could not identify the difference between a warranty and a representation or that their failure to respond satisfactorily when subjected to the terrors of my Socratic questioning is relevant to the issue of whether or not there is a useful distinction between the terms as a matter of contracts law.  If the majority of practitioners said, "I don't know; I'd have to look it up," that would satisfy me, so long as people like Ken keep writing drafting manuals that explain the difference between a statement of fact and a warranty.

Ken says that courts do not really recognize the "magic words"  ("represents and warrants") as operating as many people think they do.  However, his evidence only states that you can create a warranty without invoking the words "warranty" or "guarantee."  That evidence is not enough to persuade me that a carefully drafted contract should not clearly identify its warranties as such, and it seems to me that using some form of  the word "warranty" is the best way to do so.  As far as substituting the word "[party X] states" for "[party X] represents," with respect to factual statements/representations, I see the advantages of plain language, but beyond that, I think a representation is something more than a statement and therefore that the traditional language should be preserved.

Let the blawg battle begin!

[JT]