ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, January 24, 2017

Misunderstanding a Question Won't Save You If the Question Wasn't Ambiguous

A recent case out of the Middle District of Georgia, Great Lakes Insurance SE v. Queen, Case No. 3:15-CV-123 (CDL) (behind paywall), serves as an example of a case where the insured claimed the insurance policy at issue was ambiguous and the court disagreed.

In the case, Queen, the insured, owned a home with several outbuildings. While Queen's home and outbuildings were on an eight-acre parcel of land, Queen answered "no" to the question on the Great Lakes homeowners' insurance policy that asked if the property to be insured was on more than five acres. When one of Queen's outbuildings was destroyed in a fire, he sought to recover under the insurance policy. Great Lakes, however, upon learning that Queen's parcel of land encompassed eight acres, denied coverage, alleging that it would not have issued the policy had Queen not misrepresented the size of the parcel of the land. 

Queen argued that he had not made a misrepresentation on the insurance application. He argued that, while the parcel of land he owned totaled eight acres, it had been divided into four tracts, each of which was less than five acres. Queen's home and outbuildings were located on a particular "tract" of the larger parcel that was smaller than five acres, and so Queen had answered "no" to the question. 

The court conceded that Queen may have misunderstood the question on the insurance policy, but asserted that the question was nevertheless not ambiguous. The question asked if "the property" to be insured was situated on more than five acres. In this case, Queen provided an address as "the property" to be insured, and the amount of property associated with that address was eight acres, as even Queen conceded. Queen may have subjectively intended only to insure a particular tract of land inside that parcel, and may have had no intention to mislead Great Lakes, but that didn't change the court's conclusion that it was unambiguous--and in fact undisputed--that the property to be insured--the address provided to Great Lakes by Queen--was situated on more than five acres.

Queen next tried to argue that his misrepresentation was not material. Great Lakes submitted an affidavit that it would not have insured the property had it known that it was situated on more than five acres. The court questioned the business justification for this, asserting that the affidavit provided no explanation for how Great Lakes's risk would have increased, given that Queen's house and outbuildings sat on less than five acres. However, Queen provided no evidence rebutting Great Lakes's affidavit. Without any contrary evidence, the court had no choice but to accept Great Lakes's affidavit at face value and conclude that there was no genuine fact dispute on the question of the materiality of Queen's misrepresentation.

In the end, the court found that Great Lakes was entitled to rescind the insurance policy and granted Great Lakes summary judgment. You get the feeling that the court felt badly for Queen but also felt that it could not reach any other conclusion. 

January 24, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)

Sunday, January 22, 2017

Apollo 11 Moon Rock Bag Stolen, Sold to BFPV at Auction, Now Government Wants it Back

In times with enough serious and often depressing news, I thought I would bring you this little neat story (with profuse apologies to everyone, including my co-bloggers, for my virtual absence for a few months):

An Apollo 11 bag used to protect moon rocks samples was stolen by Max Ary, a former curator convicted in 2006 of stealing and selling space artifacts that belonged to the Cosmosphere space museum in Hutchinson, Kansas. Mr. Ary subsequently served two years in prison and was sentenced to pay more than $132,000 in restitution. Space artifacts found in his home, including the Apollo 11 bag, were forfeited to meet that debt. However, the Apollo 11 bag was incorrectly identified as Ary's and subsequently sold to Nancy Carlson for $995 in February 2015 at a Texas auction held on behalf of the U.S. Marshals Service. MoonRockBack

The government petitioned the court to reverse the sale and return the lunar sample bag to NASA, alleging that due to a mix up in inventory lists and item numbers, the lunar sample bag that was the subject of the April 2014 forfeiture order was mistakenly thought to be a different bag and that no one, including the United States, realized at the time of forfeiture that this bag was used on Apollo 11. The government cited cases where federal courts vacated or amended forfeiture orders, including where inadequate notice was provided to a property owner, as a justification for the bag's return to NASA.

Judge J. Thomas Marten ruled in the U.S. District Court for Kansas that Ms. Carlsen obtained the title to the historic artifact as "a good faith purchaser, in a sale conducted according to law." With her title to the bag now ordered by the Kansas court, Carlson needs to file a motion in the U.S. District Court for Texas for its return from NASA's Johnson Space Center in Houston. However, “[t]he importance and desirability of the [lunar sample] bag stems solely and directly from the efforts of the men and women of NASA, whose amazing technical achievements, skill and courage in landing astronauts on the moon and returning them safely [to Earth] have not been replicated in the almost half a century since the Apollo 11 landing," the judge wrote … Perhaps that fact, when reconsidered by the parties, will allow them to amicably resolve the dispute in a way that recognizes both of their legitimate interests," J. Marten wrote.

H/t to Professor Miriam Cherry for bringing this story to my attention.

January 22, 2017 in Commentary, Contract Profs, Current Affairs, Famous Cases, Government Contracting, In the News, Miscellaneous, Science | Permalink | Comments (0)

Thursday, January 19, 2017

The Defendant's "Brain Fog" May Have Made Him Incompetent to Enter into a Contract

I don't come across a lot of cases revolving around competence, but here's a recent one out of New York, Gray v. Jung, No. 62996 (behind paywall). The case, at the summary judgment stage, revolves around plaintiff's seeking of specific performance on a real estate contract. The court found that the plaintiff met his burden regarding the appropriateness of specific performance as a remedy, but the defendant raised sufficient evidence of lack of competency to defeat the plaintiff's motion. The defendant submitted "a considerable amount of medical records" indicating that he suffered from "brain fog" that prevented him from fully understanding the real estate contract at issue. Plaintiff had his own evidence that the defendant was indeed competent to enter into the contract and that his subsequent regret at entering into the contract shouldn't render it unenforceable. However, the court found that there was a genuine dispute of material fact on the question of the defendant's competence that defeated summary judgment. 

January 19, 2017 in Recent Cases, True Contracts | Permalink | Comments (1)

KCON XII Reminder: Conference Proposals Due by January 31

H/T Dov Waisman from the Contracts Prof Listserv for this post:

KCON12-Logo

Dear Colleagues,

Happy New Year!  The 12th Annual International Conference on Contracts (KCON XII) is scheduled to begin on Friday, February 24th.  Here in Los Angeles, we are excitedly preparing for the conference and wanted to write with a couple of reminders.

First, we are still accepting proposals for presentations and panels.  The final deadline for submitting a proposal is Tuesday, January 31st.  We have received many terrific proposals so far and have only a small number of slots left.  So if you wish to submit, please do so at your earliest convenience, and in all events by the 31st.  As a reminder, in addition to traditional panel presentations, this year we are inviting short, ten-minute talks on a number of special topics, all of which are listed in the attached Call for Participation.  If you have already submitted a proposal (thank you!), be sure to register for the conference and book your hotel room.

Also, if you have not done so already, please be sure to register for the conference and book reservations at the conference hotel as soon as possible. Conference registration and hotel information is available here. You should book your room at the Omni Los Angeles Hotel while discounted rooms in the conference block are still available.  Only a limited number of discounted rooms are available, so act fast!  The final deadline for booking a room at the Omni at the discounted rate is Sunday, February 12, but we expect all discounted rooms to be booked well before then.

That’s it for now.  We’ll be in touch with more details early next month.  If you have any questions or concerns about KCON XII, please contact Danielle Hart, Hila Keren, and/or myself at kcon12@swlaw.edu.  We look forward to seeing everyone in L.A. on February 24th and 25th!

Best,

Dov Waisman

Associate Professor of Law

Southwestern Law School

January 19, 2017 in Conferences | Permalink | Comments (0)

Weekly Top Ten SSRN Contracts Downloads (January 19, 2017)

Top-10 Block Letters

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 586 Risk and Anxiety: A Theory of Data Breach Harms
Daniel J. Solove and Danielle Keats Citron
George Washington University Law School and University of Maryland Francis King Carey School of Law
2 246 Empirical Findings on International Arbitration: An Overview
Christopher R. Drahozal
University of Kansas School of Law
3 175 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 146 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
5 135 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
6 130 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
7 130 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
8 112 Remedies
Ariel Porat
Tel Aviv University
9 106 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
10 100 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 175 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
2 135 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
3 130 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
4 130 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
5 112 Remedies
Ariel Porat
Tel Aviv University
6 106 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
7 100 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
8 86 Failures in Law Making: The Case of Arbitration Law in India
Badrinath Srinivasan
Independent
9 58 The Limits of Interpretation in the Law of Contract
Andrew Robertson
Melbourne Law School
10 66 The Hague Choice of Law Principles, CISG and PICC: A Hard Look at a Choice of Soft Law
Brooke Adele Marshall
Max Planck Institute for Comparative and International Private Law

January 19, 2017 in Recent Scholarship | Permalink | Comments (0)

Wednesday, January 18, 2017

Harvard Law School Postdoctoral Fellowship Opportunities

Postdoctoral Fellowship in Private Law 

Overview 

The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies.Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship. 

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.

Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property 

Overview 

The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship. 

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events, and blogging.

 

January 18, 2017 | Permalink

Tuesday, January 17, 2017

Upcoming Conference on Assessment

“Compliance with ABA Standard 314: Formative Assessment in Large Classes” is a one-day conference sponsored by the Institute for Law Teaching and Learning. The conference is for law teachers and administrators who want to learn how to design, implement, and evaluate formative assessment plans. The conference will be interactive workshops during which attendees will learn about formative assessment techniques from games to crafting multiple choice questions to team-based learning. Participants will also learn ways to coordinate assessment across the curriculum. The conference workshop sessions will take place on Saturday, March 25, 2017, at Emory University School of Law. Conference Content: Sessions will address the following topics: Why Assess: Empirical Data on How it Helps Students Learn Games as Formative Assessments in the Classroom Formative Assessment with Team-Based Learning Creating Multiple Choice Questions and Ways to Using Them as Formative Assessment Coordinating Formative Assessment Across the Curriculum.

More information can be found here: http://lawteaching.org/conferences/

Here is the link to register: https://emorylaw.wufoo.com/forms/institute-for-law-teaching-learning-conference/

January 17, 2017 | Permalink

Friday, January 13, 2017

Reminder: Contracts Mean What They Say. And External Grants Aren't Non-Tenure Track Positions

Frequently when I teach Contracts I find myself telling the students to just put in the contract exactly what they want it to say, because so often I feel like cases revolve around parties saying, "I know what it said, but I thought that meant something else entirely." Although, often, of course, these might be ex post facto proclamations when a situation turns out to not be exactly what the party thought it was going to be. 

A recent case out of Maryland, Norman v. Morgan State University, No. 1926 September Term 2015 (behind paywall), is another illustration of a party claiming that a contract means what a court finds it does not mean. In that case, Norman had sued Morgan State after he was denied tenure there. The parties entered into a settlement agreement under which Norman was permitted to apply for "any non-tenure track position at [Morgan State] for which he was qualified." The current lawsuit is the result of Norman's allegation that Morgan State prevented him from applying for an external research grant that that would have funded a future position at the school for him. 

The court, however, found that the contract clearly stated that Norman could apply for "any non-tenure track position." It said nothing about external grants and external grants are not non-tenure track positions. Therefore the settlement agreement did not require Morgan State to permit Norman to seek the external grant. Norman tried to argue that he would not have agreed to the settlement agreement had he known it allowed Morgan State to block applications for external grants, but the court dismissed that argument based on the plain and unambiguous language of the contract. 

January 13, 2017 in Commentary, Labor Contracts, Law Schools, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)

Thursday, January 12, 2017

Weekly Top Ten SSRN Contracts Downloads (January 12, 2017)

Top Ten Infinity

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 518 Risk and Anxiety: A Theory of Data Breach Harms
Daniel J. Solove and Danielle Keats Citron
George Washington University Law School and University of Maryland Francis King Carey School of Law
2 198 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 161 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
4 137 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
5 126 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
6 124 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
7 116 Empirical Findings on International Arbitration: An Overview
Christopher R. Drahozal
University of Kansas School of Law
8 104 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
9 102 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
10 98 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 198 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
2 161 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
3 126 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
4 124 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
5 104 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
6 102 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
7 98 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
8 94 Remedies
Ariel Porat
Tel Aviv University
9 81 Failures in Law Making: The Case of Arbitration Law in India
Badrinath Srinivasan
Independent
10 66 Forced Arbitration: How Corporations Use the Fine Print to Bully Americans
AAJ Research
American Association for Justice

January 12, 2017 in Recent Scholarship | Permalink | Comments (0)

Wednesday, January 11, 2017

City Can't Delegate Duties as Owner of Apartment Units

If you're looking for an example of duties unable to be delegated, a recent case out of the Middle District of Florida, Floyd v. City of Sanibel, Case No. 2:15-cv-00795-SPC-CM, has one for you. In the case, the Floyds live in a housing unit owned by the City of Sanibel. The City claimed to have delegated its housing duties to Community Housing & Resources ("CHR"), with whom the Floyds entered into a lease that named CHR as its landlord. However, the City was heavily involved with both funding CHR and making decisions on everyday operations for CHR's properties, undermining the assertion that it wasn't involved with the contract at issue. Even without that involvement, though, Florida law dictates that property owners cannot delegate their duties to provide reasonably safe premises by hiring another entity to operate and maintain the property. Therefore, the court allowed the Floyds' claims against the City to stand, holding the City to the lease as CHR's principal. 

January 11, 2017 in Government Contracting, Recent Cases, True Contracts | Permalink | Comments (0)

Saturday, January 7, 2017

When the Break-Up of a Marriage Is Also a Breach of Contract

HGTV

Photo Source: hgtv.com

The main reason I have cable these days, honestly, is because of my HGTV addiction. I like that the shows are so predictable and formulaic, which makes them low-stress. It's a habit I started years ago as a stressed-out lawyer in a law firm, when I needed to come home and watch something that didn't require thought, and it's kept me company as I transitioned into academia. And I'm apparently not alone in using it as comfort television

I use HGTV a lot in my Contracts class as the foundation of hypotheticals (so much that I'm contributing a chapter to a book detailing how I use it) and so I'm always interested when there is a real-life HGTV contract problem...such as is happening right now with "Flip or Flop." 

You might not be anxiously following HGTV shows, so let me tell you that the world was recently rocked (well, a small corner of the world) by the revelation that Christina and Tarek, the married couple with two young children at the center of the house-flipping show "Flip or Flop," were separated and/or getting divorced. And now come reports that HGTV has threatened them with a breach of contract action if their ongoing marital problems affect the filming of the show.

This is an example of the interesting issues that arise when your personal life becomes the equivalent of your contractually obligated professional life. Christina and Tarek no longer want to be married to each other, apparently, which is a stressful enough situation, without adding in the fact that their marriage is also the source of their livelihood. HGTV has a point that the show is less successful when you know that their personal life is a mess. The network was running a commercial pretty steadily through the holiday season where Christina and Tarek talked about their family Christmas, and every time I saw it I thought it was so weird and that they should pull the commercial. But that was clearly the advertising campaign HGTV had long planned for the show and it was probably costly for HGTV to change it at that point.

I am curious to see what the resolution of this is. I'm unclear how much longer Christina and Tarek were under contract for. They probably hoped to keep their separation quiet for as long as they could (they had, after all, kept it quiet for several months). But now that it's out in the open, we'll have to see how the parties recalibrate not just their personal but also their contractual relationships with each other. There is always a lot of talk about how "real" the shows on HGTV is. This situation is testing where our boundaries on "real" vs. "fake" actually lie. 

January 7, 2017 in Celebrity Contracts, Commentary, Current Affairs, In the News, Labor Contracts, Teaching, Television, True Contracts | Permalink | Comments (1)

Thursday, January 5, 2017

Weekly Top Ten SSRN Contracts Downloads (January 5, 2017)

As AALS continues in full swing in San Francisco, let's take a moment to glance at our first Top Ten Downloads lists for 2017:

  Top-10-New-Years-Resolutions

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 457 Risk and Anxiety: A Theory of Data Breach Harms
Daniel J. Solove and Danielle Keats Citron
George Washington University Law School and University of Maryland Francis King Carey School of Law
2 311 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
3 189 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
4 122 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
5 120 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
6 102 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
7 95 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
8 93 Local Governments and Risky Home Loans
Kathleen C. Engel
Suffolk University Law School
9 93 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
10 88 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 311 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 189 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 120 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
4 102 Introduction to Contract, Status, and Fiduciary Law
Paul B. Miller and Andrew S. Gold
McGill University Faculty of Law and DePaul University College of Law
5 95 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
6 93 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
7 88 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
8 88 Remedies
Ariel Porat
Tel Aviv University
9 82 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law
10 73 Failures in Law Making: The Case of Arbitration Law in India
Badrinath Srinivasan
Independent

 

January 5, 2017 in Recent Scholarship | Permalink | Comments (0)

Wednesday, January 4, 2017

Non-Compete Earns a Preliminary Injunction in Case Involving a Community Publication

I started reading this case because the first party's name was "Our Town" and I have fondness for that play...but it turned out to be a really interesting dispute over a non-compete provision that resulted in a preliminary injunction.

The plaintiff in the case out of Pennsylvania, Our Town v. Rousseau, No. 3:16-CV-2484 (behind paywall), operates a community publication called "Our Town." The defendants in the case entered into a contract to franchise the "Our Town" brand in a county in New Jersey. The franchise contract contained a non-compete provision prohibiting the defendants from operating any similar business within fifty miles of the franchise location or other "Our Town" publications for a period of three years. 

After a series of political editorials, the defendants decided to terminate the franchise relationship, alleging that "Our Town" was no longer viable in the franchise location and they wished to launch a more "family friendly publication." On the day that defendants notified the plaintiff they were terminating the agreement, the plaintiff learned that the defendants were operating a similar publication called "Home Town" in the franchise location. The plaintiff, alleging that this was a violation of the non-compete, sought a preliminary injunction. 

The court granted the injunction. The court found that the plaintiff was likely to succeed on the merits of the case. The parties behaved as if they were bound by the franchise agreement, and the non-compete in the agreement was enforceable. The court found it was supported by valid consideration, that fifty miles has been found to be a reasonable geographic restriction, and that three years have been found to be a reasonable time period. Plus, the court found that the non-compete protected the plaintiff's legitimate business interests and so the plaintiff would be irreparably harmed without the injunction. 

The defendants tried to argue that the injunction would harm them because they would be unable to make a living if the non-compete was enforced. The court noted, however, that this harm was of the defendants' own making. 

January 4, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, December 29, 2016

Time Is of the Essence...Or Is It?

Multiple sources report that Syracuse University is suing its long-term law firm over the firm's failure to put a "time is of the essence" clause into one of the university's contracts. I can't seem to track down the docket online so I haven't been able to look at the actual court documents but if you're teaching "time is of the essence" clauses next semester and looking for a recent controversy, here's one!

December 29, 2016 in Current Affairs, In the News, Teaching | Permalink | Comments (0)

Weekly Top Ten SSRN Contracts Downloads (December 29, 2016)

For your reading pleasure, ContractsProf Blog presents the final Top Ten Downloads list of 2016. We also hope our readers will resolve (notwithstanding Calvin, below) to have a happy and productive 2017!

New-years-resolution-comic-strip Top-10 wStars

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 306 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 183 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 113 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
4 109 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
5 108 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
6 92 Local Governments and Risky Home Loans
Kathleen C. Engel
Suffolk University Law School
7 92 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
8 91 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
9 86 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
10 83 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 306 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 183 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 109 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
4 108 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
5 92 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
6 91 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
7 86 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
8 83 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
9 82 Remedies
Ariel Porat
Tel Aviv University
10 72 Drafting for Dispute Resolution
John M. Newman
University of Memphis - Cecil C. Humphreys School of Law

December 29, 2016 in Recent Scholarship | Permalink | Comments (0)

Wednesday, December 28, 2016

Contractual Brouhaha in the Fashion World

There is major drama happening in the world of high fashion, and it all revolves around an alleged non-compete. Carolina Herrera has sued Oscar de la Renta to keep Laura Kim from working for the rival company. According to CH, Kim signed a non-compete with CH which gave it the option of paying Kim fifty percent of her salary and health benefits in exchange for Kim not competing against it for six months. The six months seems like a suitably short period of time in the fast-moving fashion industry, especially as it has important impacts on New York Fashion Week in February. 

The judge ordered a TRO which has since been lifted pending a preliminary injunction hearing in the new year. In the meantime, you should go to this article for all of the juicy details on what exactly went down between Kim and CH. 

December 28, 2016 in Current Affairs, In the News, True Contracts | Permalink | Comments (1)

Friday, December 23, 2016

Faculty Handbook as Contract

Just a quick entry in advance of a weekend that is a holiday for many, but this post on Inside Higher Ed caught my eye, discussing an in-progress case against NYU. An appellate court allowed two professors' complaint to survive a motion to dismiss based on sufficient allegations that the faculty handbook was a formal binding contract. One to keep an eye on in the new year. 

However you plan to spend this upcoming weekend, I hope it's full of peace and joy. 

December 23, 2016 in Current Affairs, In the News, Teaching, True Contracts | Permalink | Comments (0)

Thursday, December 22, 2016

Weekly Top Ten SSRN Contracts Downloads (December 22, 2016)

Wishing you all the joys of the season from us here at ContractsProf Blog!  Now go help yourself to the gift of recent scholarship from our collective favorite area of the law.

Top-ten-gift-package

SSRN Top Downloads For SSRN Logo2
Contracts & Commercial Law eJournal

Rank Downloads Paper Title
1 302 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 243 Online RPM and MFN Under Antitrust Law and Economics
Pinar Akman and D. Daniel Sokol
University of Leeds and University of Florida - Levin College of Law
3 177 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
4 105 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
5 102 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
6 98 The Commercial Law of Bitcoin and Blocktrain Transactions
Stephen M. McJohn and Ian McJohn
Suffolk University Law School and Independent
7 91 Local Governments and Risky Home Loans
Kathleen C. Engel
Suffolk University Law School
8 87 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport 
9 86 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
10 85 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork

 

SSRN Top Downloads For SSRN Logo2
Law & Society: Private Law - Contracts eJournal

Rank Downloads Paper Title
1 302 Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals
John C. Coates, IV
Harvard Law School
2 177 The Promise and Problems of Universal, General Theories of Contract Law
Brian Bix
University of Minnesota Law School
3 105 Long-Term Business Relationships and Implicit Contracts in European Private Law
Ugljesa Grusic
Faculty of Laws, University College London
4 102 Contractual Estoppel and the Misrepresentation Act 1967
Richard Hooley
University of Cambridge - Faculty of Law
5 87 Excessive Contractual Penalties in Football
Despina Mavromati
Court of Arbitration for Sport
6 86 The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions
Jan H. Hendrik Dalhuisen
King's College London
7 85 'And So the Legal World Goes Round': The Search for a Meaningful Law of Restitution (in Response to Virgo, 'All the World's a Stage')
Steve Hedley
University College Cork
8 76 The Corporation as Courthouse
Rory Van Loo
Boston University School of Law
9 63 Forced Arbitration: How Corporations Use the Fine Print to Bully Americans
AAJ Research
American Association for Justice
10 72 Remedies
Ariel Porat
Tel Aviv University

December 22, 2016 in Recent Scholarship | Permalink | Comments (0)

Monday, December 19, 2016

The Continuing Impact of Confidentiality Provisions

Confidentiality provisions are everywhere these days, especially in all of those arbitrations most contracts now require. I've blogged about them in connection with Donald Trump, and now they are playing a starring role in the very messy divorce between Johnny Depp and Amber Heard, in which Depp is allegedly refusing to provide Heard's divorce settlement because he alleges she breached their agreement's confidentiality provision when she spoke out publicly against domestic violence. 

It's unclear to me what the wording of the confidentiality provision was and whether Heard's behavior really did violate it. What is clear to me is that the confidentiality provision is being used to prevent communications of encouragement and support to people who are victims of domestic violence. There is a dual tragedy here: Not only are words of encouragement being muffled, but victims of domestic violence are now receiving the message that those words of encouragement could lead to punishing consequences. 

Confidentiality provisions can make sense, and there are definitely situations where they are vital to a deal getting done. But there are also situations where they seem to be operating against public policy. 

December 19, 2016 in Commentary, In the News, True Contracts | Permalink | Comments (1)

Thursday, December 15, 2016

Reminder: Moral Obligations Do Not Equal Legal Obligations

A recent case out of Arkansas, Baxter v. Wing, No. CV-16-21 (behind paywall), has a nice discussion of the difference between moral obligation and legal obligation. In the case, a man named one of his four stepchildren, Susannah, as the sole beneficiary of his life insurance policy and asked her to share it with her three siblings.

Nobody disputed that it was the deceased man's wish that Susannah share the money with her siblings. The problem, though, was that her obligation to comply with his wishes was merely moral, not legal, and the court could do nothing to force her to comply with it. The deceased man gave Susannah instructions, but he did not make her any promise, nor did Susannah make any promise in exchange. There was no deal along the lines of, "I promise to make you the sole beneficiary if you promise in exchange to share the proceeds with your siblings." The deceased man gave Susannah instructions, which did not rise to the level of an enforceable contract. 

Cases like this are valuable when you're teaching consideration but they always make me sad, because consideration cases so frequently seem to be about families feuding on a level so rancorous that they turn to the court system. Tough cases to get through. 

December 15, 2016 in Commentary, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)