ContractsProf Blog

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]

New in Print

Shannon L. Ferrell, The Technical and Ethical Challenges for Lawyers in Evaluating Wind Energy Development Agreements, 17 Drake J. Agri. L. 55 (2012)

Hein Kotz, Contract law in Europe and the United States: Legal Unification in the Civil Law and Common Law, 27 Tul. Eur. & Civ. L.F. 1 (2012)

William P. Johnson, The Hierarchy that Wasn't There: Elevating "Usage" to Its Rightful Position for Contracts Governed by the CISG, 32 Nw. J. Int'l L. & Bus. 263 (2012)

Daniel Markovits and Alan Schwartz, The Expectation Remedy Revisited, 98 Va. L. Rev. 1093 (2012)

Preston M. Torbert, Contract Drafting: a Socratic Manifesto, 14 Scribes J. Legal Writing 93 (2011-2012)

[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 
August 31, 2012 to October 30, 2012

Rank	Downloads	Paper Title
1	236	Queues in Law  Ronen Perry, Tal 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 Gelpern, G. 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 Piers, Cedric 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 Varella, Marcelo 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

Rank	Downloads	Paper 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 Gelpern, G. 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 Piers, Cedric 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. Schulzke, Gerlinde Berger-Walliser, Pier Luigi Marchini,  Kennesaw State University, University of Connecticut, University of Parma - Department of Economics

[JT]

Contracts Limerick of the Week: Bloor v. Falstaff Brewing

At 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]

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.

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]