August 01, 2012
10 Questions for @theContractsGuy
When did you realize you had a passion for contract law?
I fell in love with contracts while working in the legal department of a Fortune 500 company during a 15-month period early in my legal career (on loan from my law firm through a secondment). I’ve long been fascinated by business, and contracts are where the rubber meets the road and business deals are hammered out. Nothing is more satisfying than looking at a deal through lawyer goggles and identifying important business issues that your client hasn’t thought of.
Who is your typical client?
I do M&A and general corporate work in addition to commercial transactions, and the typical client profile varies depending on the type of work. Contracts clients tend to be larger companies in industries where a business’s relationship with its suppliers or customers is complex. The best clients are those who’ve found contract religion as the result of being involved in litigation over a contract and having an unfavorable result. Those clients tend to appreciate the danger of time bombs sitting in their file cabinets in the form of bad contracts.
What is something interesting you worked on recently?
One of the most interesting projects I’ve done involved a franchisor that wanted its franchisees in the US and Canada to refresh the look of their stores. I represented the contractor that won the bid to perform the work. The project involved drafting and negotiating an agreement between the contractor and the franchisor that balanced the interests of the franchisor and contractor, while properly inducing the franchisees to participate. It was interesting work for a wonderful client with exceptional opposing counsel.
What is the single most valuable lesson you learned in the first year (or so) of practice?
Always produce quality work product. In the rough and tumble of practice you often have to juggle deadlines and multiple projects and sometimes something has to give. Shoddy work product is always the wrong answer. Also, for those who plan to practice in large firms, the proper method of genuflection varies from partner to partner. Keep a list.
What do you wish someone told you when you were in law school?
What are your 3 favorite legal blogs or websites?
Who should ContractsProf readers be following on Twitter?
Has legal scholarship ever been valuable to you in your practice?
I often go to the journals when I’m doing in-depth research. One of the most useful articles I’ve read is “After the Battle of the Forms” by Francis J. Mootz III in I/S: A Journal of Law and Policy. The article has informed my thinking about the battle of the forms in today’s contracting world. Plus, it introduced me to the term “sign-wrap,” which I think is a good way to think of on-line contract terms that are incorporated into paper contracts by reference.
Best efforts or reasonable efforts?
Reasonable efforts. If anything beyond reasonable is expected, it should be spelled out in the contract.
What is your favorite restaurant in St. Louis?
[Meredith R. Miller]
November 29, 2011
Don't Buy This: 'Tis the Cyber Season of Reverse Psychology
Yesterday, now widely known as "Cyber Monday," I received a marketing email from Patagonia. The message: "Don't Buy This Jacket." The email read in part:
Because Patagonia wants to be in business for a good long time - and leave a world inhabitable for our kids - we want to do the opposite of every other business today. We ask you to buy less and to reflect before you spend a dime on this jacket or anything else.
The advertisement reminded me to "think twice" and instructed not to "buy what [I] don't need." The jacket, "[m]ade of warm, breathable, compressible and stretchy high-loft fleece," is apparently one of Patagonia's bestsellers; retail price of $149.
Ha! Nice try, Patagonia. I will not be manipulated by your reverse psychology. Though, it did remind me of a contracts exam fact pattern I used a few years back that involved an email where the sender said something like "I'm selling my house but, trust me, you don't want to buy my house because it has been a real money pit." Seller also says all sorts of funny and brutally frank things about the house. One of the questions raised was whether this email constitued an offer to contract. I am also reminded of the parking lot of a Grateful Dead show in the early 90's and a gentleman wandering around saying "bad [acid] trips, who wants 'em? I got 'em!" But I digress, though only slightly (e.g., Ship of Fools, see below).
Elvis Costello is also participating in this season of reverse psychology. His message: "don't buy my new box set." In fact, Costello apparently wrote on his website: "Unfortunately, we at www.elviscostello.com find ourselves unable to recommend this lovely item to you as the price appears to be either a misprint or a satire." The price? $225. NBC reports:
Costello tried to get the record company to knock the price down, but was unsuccessful. So he is recommending buying the work of another legendary artist.
"If you should really want to buy something special for your loved one at this time of seasonal giving, we can whole-heartedly recommend, 'Ambassador of Jazz' -- a cute little imitation suitcase, covered in travel stickers and embossed with the name 'Satchmo' but more importantly containing TEN re-mastered albums by one of the most beautiful and loving revolutionaries who ever lived – Louis Armstrong," Costello wrote. "The box should be available for under one hundred and fifty American dollars and includes a number of other tricks and treats. Frankly, the music is vastly superior."
It may be earnest, but I read it as a brilliant marketing ploy. Who would have known that Elvis Costello was issuing a new box set? I mean, who buys physical CDs anymore? And it even comes with a vinyl record... but it is overpriced and you don't want it.
[Meredith R. Miller]
August 29, 2011
Plaintiff's Inartful Pleading Leaves Queens Judge Yearning for Some "Old-Fashion Formalism"
In a case that appears to be about a breach of a construction contract, the plaintiff's attorney receives a benchslap from Judge Markey in Queens [ouch!]:
April 27, 2010
Choice Quotations from the Rent-A-Center Arguments
Two quotations from the recent argument in Rent-A-Center West v. Jackson just call out for memorialization on this blog. Mind you, ripped from their contexts, these quotations might seem more significant than they really are, but still. . . .
Justice Breyer: I'm not interested in arbitration law. I am interested in contract law, and I want to know why as a general matter of contract law an allegation of unconscionability, defense of unconscionability is . . . not . . . like the coercion defense or the inducement defense or the "I was in Alaska" defense? Isn't it enough like that that they should be treated alike?
Justice Scalia: No, I don't care what we said in dictum. It doesn't seem to me that unconscionability is the same as duress or the same as fraud . . . that you can be a stupid person who voluntarily signs an unconscionable contact. Now, the courts may protect you because you are stupid, but you haven't been coerced. Is there no distinction between unconscionability and coercion?
March 18, 2010
Promise and Contract: Jane Austen's Take
While thinking about the problems relating to promise and contract explored by Michael Pratt, I came across this scene from Chapter 22 of Jane Austen's Persuasion. The setting, of course, is Bath. The characters are Charles Musgrove and his wife, Mary, the pathetic, self-pitying and miserable sister of Jane Austen's protagonist, Anne Elliot. Charles has just announced, with something like triumph, that he had procured tickets for them all to go to the theater the following evening. His wife interrupts him:
To me, this example illustrates the tension between our ordinary language sense of what it means to make a promise and Professor Pratt's focus on promissory intent. As the doctrine of promissory estoppel recognizes, manifestations that could be reasonably expected to induce reliance and do induce such reliance can create a legal obligation. But we ordinarily think of promissory estoppel as an equitable supplement to contracts law that addresses our moral intuition that, even absent a contract, it is wrong to allow people to induce others to rely to their detriment on one's representations. I substitute the word "manifestations" for "promise" here because I think Professor Pratt is right that what the law enforces are not "promises" but legal undertakings -- that is, expressions of intent to be legally bound by a statement of future intention.
So, Charles Musgrove did not "promise" in Professor Pratt's sense, but he may have promised in the sense of the law. His manifestations might also be regarded by others in his social circle as a promise, which suggests some tension between our intuitions about what constitutes promising and Professor Pratt's understanding of that phenomenon. I think this places me in the camp that Professor Pratt labels "deflationist." I suppose I've been called worse.
In short, we might use the word "promise" to describe both statements that bind us because through them we undertake a moral obligation and moral obligations that arise because others reasonably rely on our representations regardless of our intent. Professor Pratt thinks there are good reasons for keeping these different types of moral obligation separate, but I am not persuaded that anything is gained from the distinction.
February 25, 2010
Mutual Mistake in Vanity Fair?
In Chapter 32 of William Makepeace Thackeray's Vanity Fair, Jos Sedley, whom Thakeray describes as a "very stout, puffy man, in buckskins and Hessian boots," panics that the allied forces had been overrun in Belgium and that Napoleon's army will give no quarter to British men, even if, like Jos, they happen to be civilians. He therefore rambles around Brussels in search of a horse that can carry his portly frame out of the city. He thus falls prey once again to Thackeray's leading character, not to say heroine, Rebecca Sharp, who just happens to be in possession of two fine horses to sell.
Jos seldom spent a half-hour in his life which cost him so much money. Rebecca, measuring the value of the goods which she had for sale by Jos's eagerness to purchase, as well as by the scarcity of the article, put upon her horses a price so prodigious as to make even the civilian draw back.
As it turns out, the allies had not been overrun and the need for flight was not what either Jos or Rebecca took it to be. Could Jos escape his promise to pay Rebecca in reliance on the doctrine of mutual mistake?
February 01, 2010
Jane Austen on Contracts to Dance
The conversation proceeds on the similarities and dissimilarities between a dance partnership and a marriage partnership. But if Catherine really wanted to impress Mr. Tilney, she would have pointed out that his real complaint sounded in tortious interference rather than in breach of contract.
December 07, 2009
George Eliot on "Going to Law"
The notion of the honest lawyer seems to have been a stranger to the 19th-century English novel. Here is how George Eliot describes the prospects of a law suit in The Mill on the Floss:
Mr. Tulliver was a strictly honest man, and proud of being honest, but he considered that in law the ends of justice could only be achieved by employing a stronger knave to frustrate a weaker. Law was a sort of cock-fight, in which it was the business of injured honesty to get a game bird with the best pluck and the strongest spurs.
. . .
"I hope and pray he won't go to law," said Mrs. Moss, "for there's never any knowing where that'll end. And the right doesn't allays win. This Mr. Pivart's a rich man, by what I can make out, and the rich mostly get things their own way."
October 31, 2008
Brown on Halloween, Promises & Signed Documents
Halloween time always reminds me of the Peanuts Special, It's The Great Pumpkin Charlie Brown. Of course, my thoughts turn to two wise philosophers, admirable contract scholars and lovable losers: Charlie Brown and Linus.
For example, in light of the approaching election day, don't forget Linus' pertinent reminder:
"I've learned there are three things you don't discuss with people: religion, politics and the Great Pumpkin."
Further, the following familiar exchange between Charlie Brown and Lucy (also captured in the clip below) provokes normative questions about the tension between formal legal requirements and fundamental fairness :
Lucy Van Pelt: Say Charlie Brown, I’ve got a football. How about practicing a few placekicks. I’ll hold the ball and you come running and kick it.
Charlie Brown: Oh brother. I don’t mind your dishonesty half as much as I mind your opinion of me. You must think I’m stupid.
Lucy: Oh come on Charlie Brown.
Lucy: I’ll hold it steady.
Charlie: You just want me to come running up to kick that ball so you can pull it away and see me land flat on my back and kill myself.
Lucy: This time you can trust me. See, here’s a signed document testifying that I promise not to pull it away.
Charlie: It is signed! It’s a signed document! I guess if you have a signed document in your possession you can’t go wrong. This year I’m really going to kick that football.
[Charlie runs and goes to kick the ball and, of course, Lucy pulls it away, causing Charlie to fall.]
Lucy: Peculiar thing about this document, it was never notarized.
Poor Charlie. He is persistent at trick-or-treating, and all he can say is "I got a rock!" I suppose that's better than a mere peppercorn. Happy Halloween!
[Meredith R. Miller]
July 29, 2008
The Boss on the Hold Up Game (and Gas Prices)
Bruce Springsteen ranks as the third most-cited rocker in judicial opinions. However, I can’t help but think that, even coming in at number three, the Boss is being underutilized in the judicial lexicon.
"To help matters along," she offered some suggestions "for incorporating Springsteen lyrics into decisions."
Well, I figure it is a worthwhile effort, and I am writing here to endorse it. You see, I actually did some research last night at Giants Stadium. I had the opportunity to see Bruuuuuuce; it was a great show.
Bruce took sign requests from the crowd and, about midway through the set, he played a fan's request for "Held Up Without a Gun." This is a somewhat obscure song off a 2003 release called "The Essential Bruce Springsteen," which has a third disc of live recordings. "Held Up Without a Gun" was recorded back in 1980, but, to the extent it is about high gas prices, it could have been written today. The Boss remarked that the band had played the song maybe twice before, and dedicated the song "to what it cost you guys to drive here."
But, I couldn't help thinking that the song was, additionally, about economic duress:
I was out driving just a taking it slow Looked at my tank it was reading low Pulled in a Exxon station out on Highway One Held up without a gun, held up without a gun
Some damn fool
with a guitar
nowhere to go
nothing to eat
Man with a cigar says,
"Sign here son"
Held up without
a gun, held up
without a gun
Now it's a sin
and it oughta
be a crime
You know it
all the time
Try to make a
living, try to
have a little
Held up without
a gun, held up
without a gun
[Meredith R. Miller]
March 01, 2008
Three Cheers for Merchants!
If merchants "were [ever] considered" no better than thieves, I say, consider who's doing the considering. The possibility of gains from trade in the hands of "merchants" was and is the key driver for social and economic mobility and the political instability that comes with it. Feudal lords had much to fear and loathe at the possibility that by trading among themselves serfs might drag themselves out of hunger and ignorance. And so too the Church. Trade is possible only when people assert property rights. Assertion and exploitation of property rights by political subordinates is the beginning of the end of a social order based on birthright and violence.
Stirring stuff. But why does it seem so familiar? Ah, yes, here's what it reminds me of:
The bourgeoisie, historically, has played a most revolutionary part.
The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal, idyllic relations. It has pitilessly torn asunder the motley feudal ties that bound man to his "natural superiors", and has left no other nexus between people than naked self-interest, than callous "cash payment". It has drowned out the most heavenly ecstacies of religious fervor, of chivalrous enthusiasm, of philistine sentimentalism, in the icy water of egotistical calculation. It has resolved personal worth into exchange value, and in place of the numberless indefeasible chartered freedoms, has set up that single, unconscionable freedom -- Free Trade. . . .
The bourgeoisie has disclosed how it came to pass that the brutal display of vigor in the Middle Ages, which reactionaries so much admire, found its fitting complement in the most slothful indolence. It has been the first to show what man's activity can bring about. It has accomplished wonders far surpassing Egyptian pyramids, Roman aqueducts, and Gothic cathedrals; it has conducted expeditions that put in the shade all former exoduses of nations and crusades.
What great 19th-century thinker is Mary T. Reilly channeling (find out below the break)?
Now I'm not saying that we here at the Contracts Profs Blog don't enjoy a little competition from our friends and colleagues over at the Commercial Law Blog. I'm just saying they're a bunch of godless commies.
October 01, 2007
Radio Clips: Groucho on Alternative Defenses
Waldorf T. Flywheel: Any mail this morning?
Miss Dimple: Yes, there's a letter from the typewriter company. They say you haven't paid for the typewriter yet.
Flywheel: Why should I pay for the typewriter? You're the only who uses it.
Dimple: But Mr. Flywheel, I --
Flywheel: Never mind, take a letter to those cheap chiselers. Ah . . . Gentlemen . . . I never ordered that typewriter . . . If I did, you didn't send it . . . If you sent it, I never got it . . . If I got it, I paid for it . . . And if I didn't, I won't. Best regards.
"Flywheel Shyster & Flywheel"
Esso Five Star Theater, Feb. 13, 1933
September 05, 2007
Lawyer Malpractice: The Operetta
Lawyer-client disputes in the U.S. often get nasty. They do things in better style in the world of operetta. The following is from Die Fledermaus, by Johann Strauss, Jr., libretto by Carl Haffner & Richard Genée.
In the scene, Eisenstein -is meeting with his lawyer, Blind, and his inamorata, Rosalinde. Eisenstein is furious that Blind, hired to defend him, actually managed to get his sentence increased.
No, with advocates like this
One is sold short and betrayed,
Making one lose patience.
Just be patient!
Instead of the matter being over,
It’s changed for the worse
And it’s all his fault.
Who’s at fault?
His fault? Could it be his fault?
Yes, it is entirely his fault!
That’s not true.
You’ll soon see.
What’s happened? Explain yourself.
So listen to me!
No, first I will defend myself!
Save yourself the trouble,
Such a thing is not to be defended!
It seems to me you want to insult me!
Calm down, blood! Why the fury?
This notary babbles like a fool.
Herr Eisenstein started to shout.
You’re stuttering with every word!
You keep on scolding!
You’re crowing like a rooster!
You’re a boor!
You’re an idiot!
You are quite inhuman!
You rant as in a fever frenzy
And gobble like a turkey-cock!
You’re spouting cod liver oil
And spinning like a weathercock.
Save your voice,
Be done with all this.
It would be best if you went out
Or this will become a scandal.
Yes, she is right, go out
Or this will become a scandal!
Yes, go, there is the door,
No, this tone can’t be tolerated!
I’m going out!
I’m just leaving this house!
It is best you go out!
It would be best if you went out!
October 17, 2006
Tom Waits on Commerce
Tom Waits performing "Step Right Up" in 1977. Mostly accurate lyrics/translation available here. ["You got it buddy: the large print giveth and the small print taketh away..."]
[Meredith R. Miller]
October 09, 2006
Bart and Lisa Simpson on Sales
In the seventh season of The Simpsons, Bart expresses some skepticism about the notion of a soul, then proceeds to sell his soul (in writing) to Millhouse for $5.00. Of course, Lisa advised Bart that he would regret it, but Bart didn’t listen:
Lisa: For five dollars, Milhouse could own you for a zillion years.
Bart: If you think he got such a great deal, I'll sell you my conscience for four-fifty. (Lisa walks away) I'll throw in my sense of decency too! It's the Bart Sales Event. Everything about me must go!
After the sale, the family dog (Santa’s Little Helper) will longer play with Bart, automatic doors no longer open for him, and Itchy and Scratchy cartoons cease to be funny. When Bart tries to buy his soul back from Millhouse, Millhouse has already “kinda traded” Bart’s soul at the comic book store for Alf pogs. Of course, in the end, Lisa buys back Bart’s soul for him:
Bart: You bought my soul back?
Lisa: With the spare change in my piggy bank.
Bart: You don't have any spare change in your piggy bank.
Lisa: Not in any of the ones you know of.
[Meredith R. Miller]
May 05, 2006
Music Clips: Rock and Roll Contracts
Wrapped up in a rock 'n' roll contract
Lots of paper I had to sign lots of times
Man told me not to worry 'bout the business
Just keep on poppin' those hits
Badfinger, Rock 'N' Roll Contract
Album: Say No More (1981)
Badfinger founder Peter Ham committed suicide in 1975, blaming contractual disputes with his manager.
April 04, 2006
Quotes: Let's Hope This Isn't True
In sum, a more carefully and fully tested piece of legislation has never been presented in these United States.
Karl Llewellyn, on the proposed Uniform Commercial Code
March 28, 2006
Perhaps It Was Delivered by Pickfords
Some may not realize that Sir Edward Hall Alderson, the author of Hadley v. Baxendale (the case of the shaft that got delayed in transit) grew up in the world of Jane Austen, not Charles Dickens. He was, in fact, a contemporary of many of Austen's heroes, including Edmund Bertram of Mansfield Park (left). He may have shared Austen's view of the likelihood of packages going astray:
“Mr. Bertram,” said [Miss Crawford], “I have tidings of my harp at last. I am assured that it is safe at Northampton; and there it has probably been these ten days, in spite of the solemn assurances we have so often received to the contrary.” Edmund expressed his pleasure and surprise. “The truth is, that our inquiries were too direct; we sent a servant, we went ourselves; this will not do seventy miles from London -- but this morning we heard of it in the right way. It was seen by some farmer, and he told the miller, and the miller told the butcher, and the butcher’s son-in-law left word at the shop.”
Ultimately, Henry Crawford must send his coach to Northampton to pick up the harp there.
February 14, 2006
Quotes: Predicting Student Success
Parenthesis: For generations we've used the oracular reading of oxen guts to predict our students’ careers, or lack thereof.
Hercules: Eeeyugh! Couldn't you use some sort of aptitude test instead?
Parenthesis: We tried that. The oxen guts were more accurate by 72 percent.
From: Hercules (TV Series)
February 10, 2006
When you have Mama, who needs a warranty?
Mama's gonna buy you a mockingbird
And if that mockingbird won't sing,
Mama's gonna buy you a diamond ring
And if that diamond ring turns brass,
Mama's gonna buy you a looking glass
And if that looking glass gets broke,
Mama's gonna buy you a billy goat
And if that billy goat won't pull,
Mama's gonna buy you a cart and bull
And if that cart and bull turn over,
Mama's going to buy you a dog named Rover.
And if that dog named Rover won't bark,
Mama's going to buy you a horse and cart.
And if that horse and cart fall down,
You'll still be the sweetest little baby in town.