ContractsProf Blog

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

A Member of the Law Professor Blogs Network

Friday, November 2, 2012

A Claim of Impracticability

Just last week I proclaimed to our inimitable editor D.A. Jeremy Telman that I was renewing my vows to the blog.  Since that promise, Hurricane Sandy happened and I am without power and water.  So, I have to claim impracticability.  I will start posting again shortly.

[Meredith R. Miller]

November 2, 2012 in About this Blog, Miscellaneous | Permalink | TrackBack (0)

Wednesday, October 31, 2012

New in Print

Tuesday, October 30, 2012

Weekly Top Tens from the Social Science Research Network

SSRNRECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

August 31, 2012 to October 30, 2012

RankDownloadsPaper Title
1 236 Queues in Law 
Ronen PerryTal Zarsky
University of Haifa - Faculty of Law, University of Haifa - Faculty of Law
2 139 Seduction by Contract: Law, Economics and Psychology in Consumer Markets - Introduction 
Oren Bar-Gill
New York University (NYU) - School of Law
3 138 Rethinking the Nature of the Firm: The Corporation as a Governance Object 
Peer Zumbansen
York University - Osgoode Hall Law School
4 125 Disarming the Trojan Horse of the UAAA and SPARTA: How America Should Reform its Sports Agent Laws to Conform with True Agency Principles 
Marc Edelman
Barry University - Dwayne O. Andreas School of Law 
5 125 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
6 124 CDS Zombies 
Anna GelpernG. Mitu Gulati
American University Washington College of Law, Duke University - School of Law
7 124 Another Step Towards Harmonization in EU Contract Law: The Common European Sales Law 
Maud PiersCedric Vanleenhove
Ghent University, Ghent University
8 117 When Nudges Fail: Slippery Defaults 
Lauren E. Willis
Loyola Law School Los Angeles
9 116 Economic Analysis of Contract Law from the Internal Point of View 
Rebecca Stone
New York University School of Law
10 85 Intellectual Property and Agriculture: The Case on Soybeans and Monsanto 
Marcelo Dias VarellaMarcelo Dias Varella
University Center of Brasilia, University of California, Berkeley - School of Law

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  

August 31, 2012 to October 30, 2012

RankDownloadsPaper Title
1 138 Rethinking the Nature of the Firm: The Corporation as a Governance Object 
Peer Zumbansen
York University - Osgoode Hall Law School
2 125 Disarming the Trojan Horse of the UAAA and SPARTA: How America Should Reform its Sports Agent Laws to Conform with True Agency Principles 
Marc Edelman
Barry University - Dwayne O. Andreas School of Law
3 125 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
4 124 CDS Zombies 
Anna GelpernG. Mitu Gulati
American University Washington College of Law, Duke University - School of Law
5 124 Another Step Towards Harmonization in EU Contract Law: The Common European Sales Law 
Maud PiersCedric Vanleenhove
Ghent University, Ghent University
6 117 When Nudges Fail: Slippery Defaults 
Lauren E. Willis
Loyola Law School Los Angeles
7 116 Economic Analysis of Contract Law from the Internal Point of View 
Rebecca Stone
New York University School of Law
8 100 Harmonization of Private International Law in Europe and Application of Foreign Law: The Madrid Principles of 2010 
Carlos Esplugues
University of Valencia - Faculty of Law
9 74 Moving Beyond Naïve Foreclosure Analysis 
Joshua D. Wright
George Mason University - School of Law, Faculty
10 59 Lexis Nexus Complexus: Comparative Contract Law and International Accounting Collide in the IASB-FASB Revenue Recognition Exposure Draft 
Kurt S. SchulzkeGerlinde Berger-WalliserPier Luigi Marchini
Kennesaw State University, University of Connecticut, University of Parma - Department of Economics
[JT]

October 30, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Monday, October 29, 2012

Contracts Limerick of the Week: Bloor v. Falstaff Brewing

BallantineplantAt right is a drawing of the Ballantine brewery in Newark as it appeared in the late 19th century.  Founded in 1840, the brewery grew to be one of the largest in the United States by the end of the 19th century.  Recognizing that nobody without a gut full of beer could enjoy the American passtime, Ballantine cleverly partnered with the New York Yankees.  Through its partnership of that storied team, Ballantine grew to become the third most popular beer  in the United States.  

Sadly, in the 1960s the brand declined.  As Judge Friendly recounts in his opinion for the Second Circuit in Bloor v. Falstaff Brewing Corp., in 1969, the brewery suffered the indignity of acquisition by a real estate conglomerate with no experience in brewing.  After bleeding money for a few years, the conglomerate sold Ballantine to Falstaff Brewing Corporation in return for some cash and a promise to use "its best efforts to promote and maintain a high volume of sales" of Ballantine beer.  If it ceased to sell the beer entirely, the contract provided for liquidated damages.

Falstaff chose not to promote Ballantine beer.  It's marketing strategy was summarized by Falsataff's controlling shareholder as follows: We sell beer, F.D.B. the brewery.  You come and get it.  That didn't work very well for Ballantine, and its volume of sales plummeted.  The trustee of what remained of Ballantine sued alleging breach of the best efforst clause and seeking liquidated damages.  Judge Friendly's conclusion is summarized below:

Bloor v. Falstaff Brewing Corp. Limerick

Falstaff had to adhere
To its deal to sell Ballantine beer.
Volume’s not killer
When there’s Bud, Coors and Miller.
Still, its efforts must be sincere.

[JT]

October 29, 2012 in Famous Cases, Food and Drink, Limericks, Teaching | Permalink | Comments (0) | TrackBack (0)

Profile Tech Falls Out with Facebook and Sues for Breach

Chris Claydon, the Managing Director of a New Zealand based company, Profile Technology, Ltd. (Profile Tech.), has brought suit against the social networking giant, Facebook, alleging breach of contract, interference with business relationships, defamation, and unlawful, unfair and fraudulent business practices.  Claydon’s Complaint alleges that Profile Tech. and Facebook entered into an agreement in 2008 allowing Profile Tech. to acquire Facebook data by automated “crawling,” for the purpose of creating a service called Profile Engine.  Profile Engine became the world’s first search engine dedicated to Facebook.  However, according to the Complaint, without notice, Facebook cut off the access Profile Tech. needed to continue its venture shorty after October 13, and began a “malicious” defamation campaign, thereby damaging Profile Tech.’s business and reputation.

MarkZuckerberg
Facebook Founder, Mark Zuckerberg
Claydon claims the agreement was partially written (via emails) and partially implied through the parties’ conduct, As consideration, Facebook gained a search engine more powerful than any of its own tools.  According to the Complaint, after months of disruption, Facebook denied the existence of an agreement maintaining that Profile Tech.’s data was obtained without authorization and that Profile Tech. sold the information to background services without Facebook’s or its users’ permission.   When Profile Tech confronted Facebook, the latter allegedly wrote a letter to Profile Tech. demanding that it “go out of business” and threatening that if it did not do so, “Facebook would escalate its efforts” to punish Profile Tech.  When Profile Tech. refused these demands, Claydon contends Facebook did, in fact, punish Profile Tech. by informing Facebook users that Profile Tech was “unsafe” and “spammy,” and disabled both Profile Tech.’s and Claydon’s Facebook page, which were used to communicate with customers, and indeed, with Facebook itself.    

Claydon further alleges that Facebook interfered with access to its other applications, independent of Profile Engine (IQ Test, Survey, Polling, etc…)  Facebook’s actions were allegedly purposeful and malicious and as such, require punitive damages in addition to compensation for lost profits and defamation.  In addition, Claydon requested an injunction to prevent Facebook from any further defamation it is allegedly employing against Profile Tech.

Claydon states that Facebook breached the implied duties found in every contract:  to deal fairly and in good faith, and refrain from doing anything that would have an ill effect on, or injure the rights of the other party’s receiving the fruits of the contract. 

[Christina Phillips & JT]

October 29, 2012 in Recent Cases, Web/Tech | Permalink | Comments (0) | TrackBack (0)