ContractsProf Blog

Harper Lee Sues to Recover Her Rights to To Kill a Mockingbird

For many lawyers, To Kill a Mockingbird (TKAM) is at the top of their list of "favorite books/movies about a lawyer." TKAM is about more than lawyering, of course.  It's about racism, family, class and much more.  This week, TKAM also is about "fraudulent inducement," "consideration" (a lack thereof) and "fiduciary duty." All of those subjects are in the complaint filed by TKAM author, (Nelle) Harper Lee, against her purported literary agent.

In the suit, Lee alleges that Samuel L. Pinkus (and a few other defendants) fraudulently induced her to sign her TKAM rights over to one of Pinkus's companies in 2007 and again in 2011. According to Lee, Pinkus, the son-in-law of Lee's longtime agent, Eugene Winick, transferred many of Winick's clients to himself when Winick fell ill in 2006. Pinkus then allegedly misappropriated royalties and failed to promote Lee's copyright in the U.S. and abroad.

For Contracts professors, the Lee v. Pinkus suit provides some interesting hypos to discuss when teaching fraud, consideration, and assignments of rights. Regarding fraud, Lee alleges that Pinkus lied to her about what she was signing at a time when she was particularly vulnerable due to a recent stroke and declining eyesight.  Consideration is in play because there allegedly was no consideration from Pinkus to Lee in exchange for Lee's transfer of rights to Pinkus.  Assignment issues arose because the many companies who owed Lee royalties reportedly struggled to figure out which company or companies they should pay given Pinkus's many shell companies.  Overall, it's a sad story for Ms. Lee but one that students may find particularly engaging.

[Heidi R. Anderson]

p.s. Although there are many quote-worthy passages in TKAM, a favorite of mine (useful when advising students about their writing) is: “Atticus told me to delete the adjectives and I'd have the facts.” Please feel free to share your favorites in the comments.

Teaching Sales: A Quandary

So, here's an interesting problem I'm facing.  I taught sales for the first time this semester.  I would say I devoted about 2/3 of class time to going over problems.  In order to maximize active learning, I had the students hand in written answers to three of the problems each week, and that homework counted cumulatively for 40% of the grade).  

My students were amazingly diligent, often looking up cases referenced in the questions and reading through the comments to Article 2 of the UCC.  I don't know what all the students thought about the assessment system, but a few have told me that they appreciated the fact that they had no choice but to keep up with the material, even if answering the questions was time-consuming and often frustrating because of either ambiguities in the Code or tensions between the Code and the caselaw.  

But here's the problem.  I wasn't born yesterday.  Now that there has been a group of students that has taken the course with me, their notes, including their answers to the homework problems, will circulate.  I think it is unrealistic to expect students (especially 3Ls) to refrain from consulting such excellent authority when answering the questions.  Unfortunately, the mystic chords of memory will swell when touched not by the better angels of our nature (as represented at left), but by a consultation with last year's students' answers, leading to idle minds with which devils (represented at right) are just as happy to play as with idle hands.

So how can I re-create this year's experience without coming up with my own original questions every time I teach the course?  

Any suggestions -- from any perspective: law prof, student, interested practitioner -- would be most welcome.

[JT]

"Cop Killer" Reward Offer Leads to Breach of Contract Suit

We previously blogged about high-profile reward offers by Donald Trump, Bill Maher, a laptop-seeking music producer, and a Hong Kong businessman. Only one of those (the producer) led to an actual lawsuit.  The latest reward offer in the news involves murder.

In February of this year, the City of Los Angeles and other entities collectively offered a $1 million reward for information regarding Chris Dorner.  Dorner was the former policeman and Navy officer who (allegedly) killed four people, including two policemen. The manhunt for Dorner, labeled the "Cop Killer," reportedly was one of the largest in LA County's history. 

One of the people claiming the reward, Rick Heltebrake, has filed a breach of contract suit in LA Superior Court (the complaint can be obtained here but only for a fee).  Heltebrake is suing the City of Los Angeles, and supporting entities for $1 million and is suing three cities that offered separate $100,000 rewards related to Dorner. Heltebrake was a carjacking victim of Dorner's. After he escaped, Heltebrake called the police and told them where they could find Dorner. Because Dorner was found at the location Heltebrake identified, he is seeking the rewards.  

The contract controversy is one of interpretation.  The rewards reportedly were available for "information leading to the apprehension and capture of" Dorner, for the "identification and apprehension" of Dorner, for the "capture and conviction" of Dorner, and for "information leading to the arrest and conviction of" Dorner (I do not have the complaint so these excerpts are cobbled together from TMZ, Courthouse News Service, ABC and other sources).  Police charged Dorner on February 11, 2013. Heltebrake called police on February 12.  On February 25, after a shootout with police and structure fire, Dorner was found dead from an apparently self-inflicted gunshot wound.

Given the above facts, some of the intepretations questions are: (i) whether the authorities' shootout and recovery of Dorner's body qualifies as "apprehension" or "arrest," (ii) whether the "and" between "identification and arrest" or between "capture and conviction" means that both are required in order to collect, and many, many more. A complicating factor is that the $1 million reward was merely announced on TV; no written record was made.  At least one reward offeror, the City of Riverside, has stated that the lack of a "conviction" means that it won't pay. Although this is a tragic story, I may mention it the next time I teach the Carbolic Smoke Ball case.

If anyone is able to find the complaint for free, please post a link in the comments.

[Heidi R. Anderson]

 

What Do Assignments of Rights and Bad Opera Have in Common?

It's the end of the semester which means that I'm finally covering third parties. One of my favorite (and pretty simple) cases in this unit is Rumbin v. Utical Mutual Insurance, Co. Mr. Rumbin, who had settled a personal injury case, was due regular payments under an annuity purchased by Utica and issued by Safeco. When he faced foreclosure and other financial hardships, Rumbin sought a declaratory judgment approving his assignment of rights to J.G. Wentworth. After a student recites the facts, I often pause the class to ask, "How many of you have heard of Mr. Wentworth before?"  Usually, about half of my class has heard of him while the other half is thinking, "J.G. who?"  For those who haven't heard of him, I offer this clip, which sums up Mr. Rumbin's situation rather nicely and features Mr. Wentworth himself at the end as the conductor:

 

If you watch and later find a way to get the "877-CASH-NOW" earworm out of your head, please let me know. I've been stuck with it for nearly 24 hours now.

[Heidi R. Anderson]

Thoughts on Tongish v. Thomas and UCC § 2-713

A lot of very smart contracts scholars, including to name just a few, Omri Ben-Shahar and Lisa Bernstein (here), Victor Goldberg (here), and Peter Siegelman and Steve Thel (e.g., here), have thought long and hard about the seeming conflict between UCC § 2-713 and the general principles of damages set out in UCC § 1-305 (formerly § 1-106).  Most of them support the ruling in Tongish v. Thomas, to which I have just been introduced in teaching Sales for the first time this semester.  I am uncomfortable with the decision for two reasons, which I will set out below.

But first, a brief summary of the case: Tongish agreed to sell his sunflower seeds to the Decatur Coop Association (the Coop) for a fixed price.  The Coop had a deal with Bambino Bean & Seed, Inc. (Bambino) to sell the seeds to them for whatever price the Coop paid plus $0.55 per 100 pounds.  The price of seeds went up and Tongish breached.  The trial court awarded the Coop its lost profits, which came out to $455.51.  The Court of Appeals vacted that award and remanded the case for a calculation of damages based on UCC § 2-713 (and the Kansas Supreme Court upheld that ruling).  UCC § 2-713 allows a buyer to recover the difference between makret price at the time buyer learned of the breach and the contract price.  Under this section, the Coop would recieve not $455 but something like over $5500, despite the fact that it would not have been able to charge Bambino anything more than what it paid Tongish for his seeds.  In short, under the damages awarded by the appellate courts, the Coop gets about $5000 more than expectation damages.

I do not like the result, at least not based on the court's reasoning.  Subsequent law review articles (cited above) provide more sophisticated defenses of § 2-713 based on economic theory.  I cannot address those arguments here.  Instead, I focus on two issues: fault and contract and the court's characterization of UCC § 2-713 as a "statutory liquidated damages provision."  

First, the case is grist for the mill of Friend of the Blog, Steve Feldman, who has been trying unsuccessfully for years to persuade me that courts not only do consider moral fault in assessing damages but should do so.  In Tongish, the Kansas Court of Appeals distinguished the case from a California case, Allied Canners Packers, Inc. v. Victor Packing Co.  In Allied, the California court limited the buyer's remedy to actual loss.  That case was different, says the Kansas court, because in Allied, the seller's crop had been destroyed and so it had no goods that it could deliver to buyer.  Here, Tonigish breached simply becasue the price went up, and so "the nature of Tongish's breach was much different" from that in Allied, because the Kansas court found, "there was no valid reason" for Tongish's breach.   Whether or not the court is right that there was no valid reason for the breach depends on one's views on the doctrine of efficient breach.  More to the point, I find no language in the UCC that indicates that the measure of damages turns on the state of mind of the breaching party.  That is, where in the UCC does it say that whether or not one can recover damages in excess of actual loss depends on whether the breach was innocent or willful?

The Kansas court then proceeds to an actual statutory analysis and notes the principle that a specific clause (in this case § 2-713, which the court reads to provide damages in excess of actual loss) trumps a general clause (§ 1-305, which limits damages to expectations).  Allowing the specific clause to trump the general clause generally makes sense, but I would invoke another canon of contruction and read § 1-305 as articulating the general remedial scheme in light of which the remainder of the Code is to be read.  Section 1-305 puts parties on notice that, unless they set out their own remedial schemes, though allocation of risk, liquidated damages and the like, they should expect that traditional expectation damages will be the most they can hope for in case of breach.  

Read in that light, § 2-713 does nothing more than describe the usual mechanism for calculating expectation damages.  It does not contemplate a contract such as the one at issue in Tongish in which the Coop, very far from demanding liquidated damages in the case of breach, has protected itself against loss by linking its purchase price from Tongish to its sale price to Bambino.  In so doing, it invited the very sort of efficient breach in which Tongish engaged, and it is absurd for it to now to claim entitlement to (effectively) a disgorgement remedy when it failed to negotiate such a remedy at the time of contracting.  

The Kansas court cites to Robert Scott's argument that limiting recovery to lost profits in such cases creates market instability by encouraging breach if the market fluctuates to the seller's advantage.  Applying § 2-713 to permit recovery of damages in excess of actual loss, on the other hand, "encourages a more efficient market and discourages the breach of contracts," says the court.  Once again, that determination turns on one's understanding of efficiency.  In any case, to the extent that the circumstances in Tongish encouraged breach, they were entirely a product of the way the parties drew up their contracts.  They in effect, allocated the risk of breach to the Coop, which had protected itself by finding a buyer who would accept any price so long as it was the same price as what the Coop had paid, plus a $0.55/100 lb. handling fee.  To allow the Coop to recover cover costs on top of lost profits actually creates an incentive for sellers with contractual protections such as the Coop had, to encourage breaches, since the court allowed them recovery ten times in excess of their actual harm.

[JT]

Contracts clauses in contracts class

I thought I might jump on the “classroom posts” bandwagon and blog a little about something I have been trying to do more of in my Contracts class – incorporate contract clauses in class discussions.  What I typically do is introduce a contract provision when I’m wrapping up a particular topic.  For example, when we finished up the section on substantial performance (and breach and conditions- it’s hard to talk about one without the other, IMHO), I asked my students about the meaning and effect of this provision:

“ TIME SHALL BE OF THE ESSENCE IN THE PERFORMANCE OF THE OBLIGATIONS UNDER THIS AGREEMENT. “

The phrasing sometimes throws off students – what’s this “of the essence” business? But they realize that the provision indicates that the timeliness of performance is important to the parties.  In other words, if the services are to be performed according to a schedule, they intend to stick to the schedule. More to the point, without such a clause, a court will probably not find a small delay to be a material breach.  With the clause, even a short delay may constitute a material breach - which brings me to substantial performance.   A material breach has legal effects, one of which is that a party who has materially breached has not substantially performed -- and so can’t recover expectations damages under the doctrine of substantial performance.  A material breach also excuses the other party’s performance. 

The clause illustrates how the different doctrines work together, and given the emphasis on “skills” teaching, underscores that doctrine and skills are really intertwined.  (I’m not sure how anyone can effectively teach skills without a good grasp of the underlying doctrine).  Another reason to introduce contract clauses is to help my students overcome the automatic response that most normal people get when they see boilerplate – glazed eyes, numbing sensation, urge to do something more exciting. My hope is that once they learn the legal meaning behind the legalese, reading a contract will be a more engaging and rewarding experience.

[Nancy Kim]

 

 

Liquidated Damages Clause Leads to Protests in the Streets of Ann Arbor

A student recently sent me this story as an example of a liquidated damages clause gone awry, at least for the contractor. The contractor, Crystal Corp., was supposed to remodel a building to be the new location for a restaurant, Kuroshio, by September 30th. The work was not completed until late December. The contractor does not appear to be contesting whether there was a breach. However, he is contesting the damages.

The contract apparently contained a liquidated damages clause that specified a per-day penalty for any delays. It also required Crystal to notify Kuroshio, in writing, of any delays, and the reason(s) for those delays. Crystal did not supply the required notice. And, because of the length of the delay, the contractor now reportedly owes more money to Kuroshio than he is owed for completing the work. Further, because the contractor has not been paid by the restaurant, he reportedly has not paid his own employees. Thus, the contractor and/or his employees have taken to the street in front of the restaurant.  According to AnnArbor.com, they protested in front of the restaurant every evening for over a week (there's no obvious update since late March). A protester's photo is available here.

I thought this case was a good one to mention in class because it's not every day that a contract dispute leads to public protest. More specifically, I hope to use this dispute to illustrate how liquidated damages clauses may not be enforceable (the cases in the text I use, Kvassay and O'Brian, are great but a present day example always seems to work better for cementing the material into students' minds).  

I also hope to use this dispute as an example of another theme I stress in class.  I tell my studentes that, as a deal lawyer, they'll often have to be the most negative person in the room.  They have to ask many "what if" questions of their clients before suggesting they sign contracts.  For example, "What if...you get inside and find out that the HVAC system is in terrible disrepair? Are you going to want to pay the per-day penalty in that situation? If not, then we need to revise the contract because, as written, you're going to be on the hook for the daily penalty no matter what."  I'm not sure how much of this they'll remember but I'm hopeful that at least some of it will stick with them.

[Heidi R. Anderson, h/t to student Michael DeRosa]

ABA Adopts Radical, Contracts-Based Curricular Reform

Having recieved comments from numerous quarters, including from this blog's own Meredith Miller, the ABA Task Force on the Future of Legal Education, has announced that it is recommending that all areas of law now be understood as subsidiaries of contracts law. In addition to recommending that all law schools require their students to take six hours of contracts in the first year, the Task Force is recommending that second year students take required courses in Sales, Leases, Licensing and International Sales.  Those courses, including related live-client courses, simulations, moot court and trial advocacy competitions, and practica, will constitute much of the second year curriculum. 

According to the Task Force sources who asked not to be named because the Task Force's report has yet to be released officially, those elements of the reform proposal were uncontroversial.  "Everyone recognizes that all lawyers need a firm grounding in contracts and contract-related areas.  The only question disagreement on the Task Force was over whether six credits in the first year was enough.  Some members wanted 24."

Somewhat more controversial is the Task Force's recommendation that other areas of law be subsumed within the law of contracts.  According to our source, the Task Force is recommending that both Constitutional Law and Criminal Law be re-conceptualized as constituting either actual contracts or social contracts best understood with the traditional doctrinal tools of contracts law.  The Task Force concedes that this innovation was in part driven by a desire to reduce students' text book costs.  "All they have to buy is one, maybe two books by Randy Barnett, and they are covered," according to our source.  In addition, the Task Force recommends that International law courses will now be divided into Private International Contracts and Public International Contracts (Treaties). 

When asked if the Task Force anticipated difficulties persuading faculty members from other doctrinal areas to re-conceive those areas in terms of contracts law, our source told us that the Task Force considered the question and could not conceive of a doctrinal area that would not be better understood through contracts doctrine. 

[JT]

UPDATE: THE FULL TASK FORCE PRESS RELEASE CAN BE FOUND HERE.

Washington Law Review Conference Announcement and Survey

Survey in Connection with Upcoming Symposium on Contracts Casebooks  The Washington Law Review is preparing to host a print symposium in December 2013 on the exciting new contracts book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Prof. Lawrence A. Cunningham of George Washington University (published by Cambridge University Press in 2012). This innovative text embraces a modern, narrative approach to contract law, exploring how cases ripped from the headlines of recent years often hinge on fundamental principles extracted from the classic cases that appear in contracts casebooks. Such an approach suggests new ways to imagine modern casebooks. In addition to an article by Professor Cunningham, the WLR will also publish pieces in the December 2013 issue of the Washington Law Review by, among others: Brian Bix (Minnesota), Erik Gerding (Colorado), Jake Linford (Florida State), and Jennifer Taub (Vermont). Survey Before the symposium, participants are interested in learning from contracts professors around the country.  The purpose of this survey is to gather information about the material being taught in contracts classes, and the advantages and/or deficiencies of the approaches taken by current contracts textbooks. The WLR would be grateful if you would complete our online survey by April 15. The information (in both aggregate form and by individual response) will be distributed to the symposium’s participants, and may be reprinted in the Washington Law Review. Although the survey can be completed anonymously, the WLR invites you to leave your name for attribution if your responses are included in our symposium issue. Thank you very much for your thoughts, James Wendell, Editor-in-Chief jwendell@washlrev.org  206.543.4068 [JT]

Teaching Sales 7: Valparaiso Students Revolt Against Entrustment Doctrine

My mild-mannered students became unexpectedly ferocious during last week's class when we discussed entrustment doctrine last week.  UCC § 2-403(3) defines "entrustment" as follows:

"Entrusting" includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor's disposition of the goods have been such as to be larcenous under the criminal law. 

Notwithstanding the clearly expansive nature of the doctrine, my students would not accept that, for example, a mechanic with whom you had left your car for repairs could sell same car and your only remedy against the mechanic (under the UCC) would be a suit for damages.  When I informed them of the true state of the law, their outrage was unquenchable.

"You could still have the authorities pursue criminal charges for theft," I offered.

Not good enough.

Backing away from the lectern and eyeing the emergency exit, I pleaded, "There are likely state statutory protections that would enable you to recover the car.  After all, the buyer is going to have a problem when he tries to register title to the car."

Still not satisfied.

Finally, left with no other choice, I threw Karl Llewellyn under the bus.  "Look, I just teach this stuff," I said.  "I didn't draft the UCC.  Blame Karl! Blame Karl!! Blame Karl!!!!

I put up a white flag from the teaching station that I was hiding behind to avoid the projectiles headed my way, and then it came to me.  "Wait," I said.  "Let's talk about Kahr v. Markland."  In that case, a man gave Goodwill a bag of clothes.  Unbeknowst to him, the bag also included valuable sterling silver.   The court held there had been no entrustment because Kahr intended to donate the clothes but not the silver.  It's reasoning is as follows:

An entrustment requires four essential elements: (1) an actual entrustment of the goods by the delivery of possession of those goods to a merchant; (2) the party receiving the goods must be a merchant who deals in goods of that kind; (3) the merchant must sell the entrusted goods; and (4) the sale must be to a buyer in the ordinary course of business. ( Dan Pilson Auto Center, Inc. v. DeMarco (1987), 156 Ill. App. 3d 617, 621, 509 N.E.2d 159, 162.) The record establishes there was no delivery or voluntary transfer of the sterling silver because plaintiffs were unaware of its place in the bags of clothes.

My students were appeased.  Ahhh.  

But wait!  Whence the court's notion that "there was no delivery or voluntary transfer"?  Saying that there was no delivery in this case is more than a stretch.  It's simply factually untrue.  And saying that the transfer was not voluntary turns on what the term "voluntary," means.  Nobody put a gun to Kahr's head.  He just made a mistake.  In any case, voluntariness is not an element of the test for entrustment as laid out by the Kahr court.  

Of course, I merely thought all these things.  I didn't say them for fear of my students' wrath.  

But how about this hypothetical based on personal experience:  I donate a bunch of books to Goodwill, including an old copy of Atlas Shrugged with a hideous paper cover on it.  One week later, my wife asks me where her copy of Atlas Shrugged is.  Since she is always after me to clear away old books that we are not going to read or re-read, I proudly announce that I delivered it to Goodwill.  

Her jaw drops.  "But that was a first edition bearing the inscription, "I know who John Galt is,  It's you.  Yours, with a passion hot enough to forge Rearden steel, Ayn."  We rush to Goodwill, but we are too late.  The book was snapped up faster than a locomotive powered by an engine that transforms atmospheric static electricity into kinetic electricity.  Did I entrust it to Goodwill?

There is a bit of a discussion of the Kahr case on The Faculty Lounge blog.  

[JT]

A Limerick for Locke

I recently covered the implied duty of good faith and fair dealing in part through the fun case of Locke v. Warner Bros.  In Locke, the LA County Superior Court found that Warner Brothers' alleged failure to even consider Ms. Locke's movie proposals could violate the implied duty of good faith and fair dealing in their contract.  Although Warner Brothers was not obligated to produce Ms. Locke's projects, it was obligated to exercise its discretionary power regarding her proposals in good faith.  If Warner Brothers had, as Ms. Locke alleged, never actually considered her proposals, it would have violated their contract.

After Ms. Locke survived summary judgment, the case later settled. Prior to that time, Ms. Locke also had suggested that Warner Brothers never seriously considered her proposals as a favor to her ex, Clint Eastwood. Locke and Eastwood had worked together on the movie, The Outlaw Josey Wales (poster pictured to the right), and cohabitated for several years therafter.  When the two actors split, Eastwood allegedly convinced Warner Brothers to give Locke the "first look" deal as part of his settlement with her and perhaps had even reimbursed Warner Brothers for the money it paid to Locke under its deal with her.  

Inspired by this tale of love and faith lost, student Catherine Witting crafted the following limerick and authorized me to share it with the world. 

Locke sued the Dubya B,

Saying "Don't you patronize me!

Clint may pay the bill,

But discretion is still

Subject to good faith guarantee!"

For a more recent case that tracks the facts of Locke, see this post regarding director John Singleton from 2011.

 

Teaching Sales 6: Another Problematic Case

Yesterday, I bellyached about a Ninth Circuit opinion with which I disagree.  Today, I would like to complain about a Second Circuit decision with which I disagree, although not quite so passionately.  The case is Bayway Refining Co. v. Oxygenated Marketing and Trading.  The relevant facts are pretty simple.  Oxygenated Marketing and Trading (OMT) send an order to Bayway Refining Co. (Bayway) for 60,000 barrels of a gasoline blendstock.  Bayway sent a conflirmation that specified all of the relevant terms of the agreement and also included the following language:

Notwithstanding any other provision of this agreement, where not in conflict with the foregoing, the terms and conditions as set forth in Bayway Refining Company's General Terms and Conditions dated March 01, 1994 along with Bayway's Marine Provisions are hereby incorporated in full by reference in this contract.

Bayway's General Terms included a "Tax Clause" that required the purchaser to pay all taxes associated with the transaction.  OMT never asked for and Bayway never sent a copy of its General Terms.  Bayway then sent the blendstock and OMT accepted delivery.  The taxes associated with the transaction came to nearly $500,000.  Bayway paid the tax and then sued OMT to recover.

The Second Circuit correctly saw the outcome of the case as turning on the battle of the forms.  Under UCC § 2- 207(1), Bayway's confirmation constitutes an acceptance of OMT's offer even though it contained additional terms.  Under 2-207(2), because both parties are merchants, the additional terms become part of the contract unless one of three exceptions apply.  The relevant exception in this case is materiality.  The Second Circuit correctly noted that the Tax Clause was not per se material, in that there was no clear legal rule that had already determined such clauses to be material.   So the Court proceeded to determine materiality based on a common law test, under which a clause is material if it causes surprise or (perhaps) hardship.  

The court defined "surprise" as meaning that "under the circumstances, it cannot be presumed that a reasonable merchant would have consented to the additional term."  The court found that no surprise occurred in this case because provisions like the Tax Clause were common (although not universal) in the industry.  New York law is not clear on whether hardship is an element of its materiality analysis for the purposes of the battle of the forms.  The Second Circuit did not reach the issue because it found that OMT could not show hardship in this case.  OMT claimed hardship because "it is a small business dependent on precarious profit margins, and it would suffer a loss it cannot afford."  The Second Circuit was unmoved because "any loss that the Tax Clause imposed on OMT is limited, routine and self-inflicted."  

I have two problems with the Second Circuit's analysis.  First, its discussion of surprise did not address the fact that clause at issue was part of an agreement incorporated by reference and never shared with OMT.  While that fact might not change the outcome in the case, since the court found the evidence of industry practice convincing enough to put OMT on constructive notice, it strikes me as at least worthy of mention in the context of a discussion of surprise.  

Second, I think the court could have treated the Tax Clause as relating to price.  Industry practice suggested that sometimes contracts like the one at issue in the case included language like the Tax Clause, but in other cases the tax was just added to the price of the product.  If OMT's original order included a price term, then Bayway's confirmation containing a price term plus the Tax Clause introduces not an additional term but a different term.  I think the best reading of UCC § 2-207(2) suggests that different terms knock each other out.  We then proceed to § 2-207(3) to enforce a contract consisting of the agreed-upon terms plus any additional terms the UCC can provide.  The court should have been able to then determine the fair market price for the 60,000 barrels of a gasoline blendstock.  Such an approach might have resulted in a Solomonic ruling or it might have made clear that one party or the other was trying to pull a fast one.

[JT]

Teaching Sales 5: White v. Summers and Diamond Fruit Growers

Last week, I taught an infuriating case called Diamond Fruit Growers v. Krack Corp.  The case infuriates me not only because I think the Ninth Circuit bungled the battle of the forms so as to eliminate the UCC's § 2-207's important innovations and replaced them with with a rule unknown in either the code or the common law, but because James White, co-author with Robert Summers of the standard treatise on the Uniform Commercial Code, endorses the opinion.  I can't understand why.  Summers disagrees with his co-author but without the passion or incredulity that I think the context demands.

The parties to the contract at issue had been doing business together for ten years.  Metal-Matic provided metal tubing for Krack's air conditioning business.  The parties' practice was that Krack would send Metal-Matic an annual estimate of its needs, and Metal-Matic would send back its own acknowledgment form disclaiming warranties and consequential damages.  Moreover, capitalizing on the langauge of § 2-207(1), Metal Matic's form included the following: "Metal-Matic, Inc.'s acceptance of purchaser's offer or its offer to purchaser is hereby expressly made conditional to purchaser's acceptance of the terms and provisions of the acknowledgment form."

The effect of that language under the UCC should be to make Metal-Matic's response into a counter-offer which would govern the parties' transactions once Krack, having notice of the terms, had accepted delivery.  In this case, we know that Krack had notice of the terms, because it tried to get Metal-Matic to remove the disclaimer of warranties and limitations of damages, and Metal-Matic refused to do so.  Having continued to accept delivery on that basis, Krack should be bound by Metal-Matic's terms.

Krack delivered some air conditioning units to Diamond Fruit Growers, but some of the Metal-Matic tubing failed, causing harm to Diamond Fruit Growers products.  Diamond sued Krack and Krack turned around and filed a third-party complaint againts Metal-Matic.  Metal-Matic's disclaimers and limitations on damages were now in play.

The court noted the important principle of neutrality underlying § 2-207.  In contrast to the common law mirror image rule and last shot rule, the UCC is designed to avoid privileging either the offer or the counter-offer.  Determining that it therefore could not give effect to Metal-Matic's unilaterally imposed terms, it looked to the UCC, as is proper under § 2-207(3), to supply the missing terms of the contract that had been formed by the parties' conduct.  Since the UCC does not provide for limitations of damages and disfavors disclaimers of warranties, the court found that Metal-Matic's terms were out.  

The court was focused on avoiding a return to the common law's last shot rule: 

That result is avoided by requiring a specific and unequivocal expression of assent on the part of the offeror when the offeree conditions its acceptance on assent to additional or different terms. If the offeror does not give specific and unequivocal assent but the parties act as if they have a contract, the provisions of section 2-207(3) apply to fill in the terms of the contract. 

The are numerous problems with this approach.  Most obvsiouly, the UCC does not require a specific and unequivocal expression of assent by the offerer to additional terms.  It certainly could have done so if the framers of the UCC so intended.  More fundamentally, the result at which the court arrives is inconsistent with the principle of neutrality at the heart of the UCC"s approach to the battle of the forms.  Indeed, the court's solution to the problem presented advantages the offeror far more than did the common law.  Under the court's approach, the offeror is not only master of the offer; she is master of the transaction, and the offeree can do nothing through its writings to add terms to the contract.  

The court suggests that allowing Metal-Matic to prevail in this situation would be arbitrary because it would turn only on which party sent the form last.  But that is not so.  Metal-Matic conditioned its acceptance on Krack's assent to its terms.  Krack did not do likewise.  Sticking to the language of the forms at issue in this transaction, Metal-Matic's terms would govern regardless of the order in which the parties exchanged forms.  Here we have two sophisticated parties who knew what they were about.  Metal-Matic insisted on its terms and Krack acquiesced because it needed the tubing.

The outcome of the case thus seems extremely unfair.  Although I don't think it changes the UCC analysis, one might feel differently about the equities in the case if Krack were unaware of the terms and accepted the goods thinking that they were warranted, etc., but that was not the case here.  Krack took the goods knowing the terms on which it accepted them.  The court should not bail out commercial parties in these circustances, and courts do not bail out consumers who are bound by shrink-wrap terms to which they never expressly and unequivocally assent.

But James White, in § 2-13 of the White and Summers Treatise suggests otherwise, apparently on the ground that the UCC does not recognize acceptance by performance in this context.  That's very odd, because the UCC is all about the liberalization of rules, including rules of offer and acceptance.  As Summers points out, even the common law recognizes acceptance by performance and Summers sees no injustice given the parties' conversation about the disputed terms.  White thinks the proper remedy for seller is to refuse to ship until buyer assents to its terms, but since a straight reading of the UCC would give a seller no reason to think such express assent necessary, I do not think Metal-Matic was on notice of that requirement.  

[JT]

CA fires contractor, providing a helpful breach of K scenario

The LA Times reports that the state of California has terminated its contract with SAP Public Services, a contractor that was supposed to fix the state's outdated computer network system that handles paychecks and medical benefits for 240,000 state employees. 

While both SAP and California are unhappy about the state of events, I have just covered breach, substantial performance, conditions and damages in my Contracts course and was delighted to find a real life scenario to illustrate the relevance of the material we just covered. 

So what triggered CA's termination?  SAP was hired three years ago but when its program was tested, it made errors at "more than 100 times" the rate of the old system. 

Was failing this test a breach?  If so, was it a minor or material breach?  It seems it would depend on what was in the contract. As contracts profs know, the first place to look in a contract dispute is the contract itself.  The are terms in the contract that will be relevant in evaluating whether there was a breach or the applicable measure of damages.  For example, there may be performance targets (i.e. conditions) that SAP had to meet which weren't met.  Those conditions would be relevant in determining each party's obligations (would the contract terminate upon failure to meet the condition, for example?)  There's also likely to be a provision dealing with whether SAP gets paid per deliverable or target met or per person/hour or time spent on a project. If this was a scheduled deliverable, then the facts tend toward finding a breach (or, if the contract language indicates, it could be a condition that was just never met).  If it was a test done in the course of moving the project toward completion, CA may have jumped the gun.  A material breach would allow CA to then terminate its obligation.  If not a material breach, CA should have sought adequate assurance of performance and could itself be in breach by terminating the contract.

 Facts matter, as I repeat like a broken record to my students (I guess I should update my reference for the iPod generation) - so it matters what it means to say that SAP failed the test.  The LA Times reports that:

    "During a trial run involving 1,300 employees....some paychecks went to the wrong person for the wrong amoung.  The system canceled some medical coverage and sent child-support payments to the wrong beneficiaries."

Furthermore, because the system sent money to retirement accounts "incorrectly,"' the state had to pay $50,000 in penalties.

Given the late stage of the project, if not a material breach itself, the failed trial seems to at least give rise to a reasonable belief that SAP would breach.  What did CA do then?  Did it immediately terminate or seek explanations/reassurance? 

 Another issue is what damages measure is applicable?  CA paid SAP $50million dollars but it had incurred much more trying to get the system up and running.  It wasn't clear to me whether the $50million dollar amount was the amount paid up to that point, or the total due to SAP.  In class, the cases we study regarding breach of contract to provide services typically involve some type of construction contract.  The standard measure then would be the difference between the cost of completion and the contract price.  But in a situation like this, the cost of completion is a bit funny given the various factors involved - and the period of time it would take to implement a new project (SAP took the project over from a prior contractor).  Furthermore, the purpose of the new system wasn't so CA could make money (no loss profit measure applicable here).  Given that, the standard expectation measure likely would not be appropriate and a reliance (or restitution) measure makes more sense.  Not surprisingly, CA is seeking recovery of the $50million dollars paid. 

What about SAP? Will it claim that it substantially performed?  I don't think it can with a straight face, but again, I am only basing my conclusion upon the facts contained in the newspaper article.  Will SAP seek restitution for the reasonable value of its services to CA?  It very well may, (and any students reading this, should raise it on an exam...) since it has spent three years on this project.  Based upon the information in the article, it doesn't sound as though CA received any benefit from the services rendered.  If SAP is determined to be the breaching party, it may not get awarded anything. The real world problem for SAP is that trying to hang on to money for delivering a system that doesn't work might hurt its reputation even more.  And it doesn't help that the other party is a state entity - meaning lots of future potential business at stake.  (The LA times noted that SAP projects with other CA entities are not going so well, either).

As is true for other contracts profs, I spend a lot time trying to situate doctrine into a problem solving (or minimizing) scenario since this is how most lawyers deal with contract law.  For example, prior to cancelling the contract, the attorneys for the state of CA most likely sat down and discussed its available options under both the contract and contract law.  SAP, too, likely reviewed (or is reviewing) its options under the contract and contract law.  My guess is that the contract terms probably permit CA to cancel under these circumstances, although a spokesperson for SAP stated that it believed it had "satisfied all contractual obligations in this project."

I'm sure I missed a few things in my quick analysis of ths situation, so feel free to note any other issues in the comments.

[Nancy Kim]

Teaching Webster v. Blue Ship Tea Room

In a previous post, I shared a way to illustrate the differences between certain types of chicken for the frequently-used ambiguity case, Frigaliment.  For today's random teaching tip, I am leaving chicken behind and moving on to fish.  Because I have the luxury of a six-credit Contracts course, I have time to cover warranties, both express and implied, for sales of goods.  The case I use to teach the implied warranty of merchantability, Webster v. Blue Ship Tea Room, involves fish chowder.  The primary issue is whether a fish bone in a cup of New England fish chowder sold to Ms. Webster at the Blue Ship Tea Room resulted in a breach of the implied warranty of merchantability.  The court answered, "no," but not before going into the details of the way chowder is made in New England.  After I call on a student to share the facts of the case, I say that I've unearthed this clip showing exactly how the fish chowder was made (start at 0:17):  

 

I also encourage students to craft their own limericks for cases--just as our own Prof. Telman has done.  The latest student limerick submitted was for Webster.  Kudos to student Sareena Beasley for this one:

—Sat down for a bowl of fish chowder

—Ended up with a bone but they doubt her

—So don't pick a fight

—With the Fishermen's delight

When it's known that there’s bones in the flounder

And to those who say that Contracts is the driest 1L class, I say,"puh-shaw!"

[Heidi R. Anderson]

A New Stambovsky?

[Edited: Apologies to my co-blogger, Nancy Kim, for posting this before reading our own blog to see that she already covered it. I'll keep this up for the links to the cases but please read Nancy's post for a more in-depth analysis of the materiality issue.]

For professors who teach nondisclosure as a "reason not to enforce a contract," (that's what the book I use calls "defenses"), Stambovsky v. Ackley often is a favorite case due its entertaining facts. In the case, the buyers of a Nyack, NY house (pictured) seek to have the contract rescinded due to the home being haunted by poltergeists. The haunted condition was known by the sellers but was not disclosed to the buyers.

I am particularly fond of the case in part because the opinion is filled with puns such as, "[I]n his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn't a ghost of a chance, [however,] I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his down payment.". Puns aside, the case is instructive because it helps students understand the difference between nondisclosure versus misrepresentation and gets some students to question their faith in caveat emptor. The fact that I teach the case right around Halloween is a nice bonus.  

The only potential problem with the case is that it's somewhat dated (yes, something from the 1990s can feel dated to current first-year students).  Thankfully, a student of mine from last semester just sent me a link to this newer version of Stambovsky out of Pennsylvania (what do ghosts love about the mid-atlantic states?).  In this new dispute, the buyer, a recent widow, is seeking to rescind the contract for sale of a home based on the nondisclosure of a murder-suicide in the home in the same year she agreed to purchase it.  The trial court granted summary judgment to the sellers and the appellate court affirmed, finding that, "psychological damage to a property cannot be considered a material defect in the property which must be revealed by the seller to the buyer."  The buyer now has appealed the case to the Supreme Court of Pennsylvania. No one knows how that court will exorcise its discretion (ba-dum-bum).

[Heidi R. Anderson] 

Another Visual Aid for Frigaliment, the Chicken Case

We here at ContractsProf Blog can't seem to get enough of the "Chicken Case," also known as Frigaliment.  Many of us use this case when teaching the "ambiguous term" exception to the parol evidence rule.  In the case, the seller argued that the written contract term of "chicken" meant any type and age of chicken of the specified size while the buyer argued that "chicken" meant only "roasters and fryers" of the specified size, which are younger and appreciably better than older "fowl."  

Students who are only familiar with Chick-Fil-A and the packaged chicken parts in the grocery store tend not to appreciate the practical difference between the two sides' meanings.  Confused students? ContractsProf bloggers to the rescue!  

For a picture that says it all, see Prof. Snyder's post from 2010.  For a video-based explanation of the issues in the case from none other than Hitler, see my post from last year. Prof. Miller also has offered another video-based teaching aid to use. Today, I bring you this clip, the source of which I cannot remember.  

 

Apologies to whomever showed this clip to me first (a former student? a previous post on this blog that is not coming up in my search?).  

I like this clip because you only need to take a few seconds of class time and it sticks with the students more than a 2-D picture thanks to Ms. Child's natural charm. 

[Heidi R. Anderson]

p.s. If you're now intrigued by Julia Child and are tempted to watch the recent movie, Julie & Julia, be sure to review Prof. Telman's post first.

An Innovative Contracts Course at UVA

There's a post of potential interest to our readers over at the Legal Sklls Prof Blog, courtesy of Scott Fruehwald.

Here's a taste:

Professor Rip Verkerke [pictured] has developed an innovative contracts course at the University of Virginia School of Law.  (full story here)  He received a grant "to convert a fall-semester course into a 'hybrid technology-enhanced' offering."  In addition to using innovative technology in his class, he redesigned his course as a "flipped" classroom model, "in which students watch pre-recorded lectures outside of class and participate in more interactive learning inside the classroom. . ."  His goal for this flipped model is "to promote deeper learning for students."  The article states, "he has taken a quantum leap this year in reimagining how to teach Contracts with online tools and a new understanding of how students learn."

Scott Fruehwald adds: 

This is exactly the type of class that law schools should be teaching to better prepare their students for the contemporary legal world.  Problem-solving exercises force students to apply what they have learned to facts, and studies have shown that students learn more when they apply their knowledge.  Small-group discussions, along with the problem-solving exercises, make the students active learners, rather than passive receptacles as the Socratic method does.  Education scholarship has determined that frequent formative assessment helps students learn more and remember more.  I suspect that Verkerke's nightly quizzes are especially effective.  He is also developing metacognitive learning by asking metacognitive questions to his students and causing them to self-reflect.  (''What aspect(s) of the materials in this module did you find most difficult or confusing?' is a metacognitive question because it forces the students to "think about their thinking.")

In sum, Professor Verkerke's Contracts class is a model of what a law school class should be.  Hats off to Professor Verkerke!

The rest can be found here.

[JT]

Teaching Sales 4: What Could Be Better than Nanakuli?

In theory, if you are looking for a case to illustrate the UCC's potential liberality in letting in trade usage evidence to modify a written contract, nothing could be better than Nanakuli Paving v. Shell Oil.  One cannot avoid feeling gobsmacked by the Ninth Circuit's insouciance as it uses parol evidence to alter a clear, unambiguous price term.  And it's fun to say "Nanakuli."

But Nanakuli is long.  In order for students to understand it, they have to appreciate the idiosyncrasies of the asphaltic paving industry in Hawaii and they have to know quite a bit of detail about the the relationship between Nanakuli and Shell.  If you have six credits to play with, luxuriate in Nanakuli's details, but if you are on a time budget, do I have a case for you!

Whaley and McJohn's Problems and Materials on the Sale and Lease of Goods includes Columbia Nitrogen Corp. v. Royster Co., 451 F.2d 3 (4th Cir. 1971), which is just as outré as Nanakuli but much, much shorter.  The case is about a phosphate sale, most likely for the manufacture of fertilizer.  Despite the image at left, there's nothing sexy about the case, other than the fact that its logical contortions (like those in Nanakuli) are reminiscent of the Kama Sutra.  Still, it's a good way to hammer home the point that, under the UCC, one cannot expect the parol evidence rule to provide much protection against the introduction of course of dealing, course of performance and trade usage evidence.

[JT]

Using The Blind Side as a Visual Aid for the Parol Evidence Rule

I start the second semester of Contracts with the Parol Evidence Rule.  I think it's a complex but manageable topic that engages my no-longer-terrified "seasoned" students at the beginning of the semester.  Some students, however, struggle to understand exactly what the effect of the rule is, especially after I tell them that it's not really a rule of evidence.  Then, after we cover the exceptions, they're even more confused.  So, for the visual thinkers in the class, I show this clip:

 

For the students not familiar with football, I explain that the player featured in the video, Michael Oher, is an offensive lineman at the heart of the book and movie, The Blind Side.  His primary job is to protect the quarterback.  More specifically, Oher's job is to protect the quarterback's "blind side"--the side the QB can't see when looking downfield to pass (for right-handed quarterbacks, the left tackle protects the blind side; for lefty QBs, it's the right tackle's job).  

Then, I say, "Michael Oher is the Parol Evidence Rule.  The defenders rushing in are parol (or extrinsic) evidence.  Defensive linemen are prior written agreements.  Linebackers are contemporaneous statements. The safety is fraud in the inducement.  The quarterback is the judge.  Most of the time, Michael Oher (a.k.a., the Parol Evidence Rule) is keeping the extrinsic evidence away from the quarterback/judge.  The QB/Judge knows the evidence is there but it does not reach him or affect his decision.  That said, Michael Oher is not perfect.  Neither is the parol evidence rule.  Sometimes, a safety gets through, and for good reason."  

And so on.  The analogy breaks down in various places but still seems to work for some students.  Thus, I thought I'd share it on the blog.  I hope some of you find it useful.

[Heidi R. Anderson]