ContractsProf Blog

Now in Print

Lord Justice Richard Aikens, The Post-contractual Duty of Good Faith in Insurance Contracts: Is There a Problem that Needs a Solution?, [2010] J. Bus. L. 379.

Laura K. Bailey, Note, The Demise of Arbitration Agreements in Long-term Care Contracts, 75 Mo. L. Rev. 181 (2010).

Maree Chetwin, Beyond Fuller and Perdue's Classification: Welcome Steps or Troublesome Taxonomy?, 26 J. Contract L. 271 (2010).

Sarah Coleman, Note, Enforcing International Framework Agreements in U.S. Courts: A Contract Analysis, 41 Colum. Hum. Rts. L. Rev. 601 (2010).

Brian Coote, Contract as Assumption and Remoteness of Damage, 26 J. Contract L. 211 (2010).

Christopher R. Drahozal & Stephen J. Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St. J. Disp. Resol. 433 (2010).

Michelle Shenker Garrett, Note, Efficiency and Certainty in Uncertain Times: The Material Adverse Change Clause Revisited, 43 Colum. J.L. & Soc. Probs. 333 (2010).  

B.E. Harris, The EC REACH Regulation and Contractual Supply Obligations, [2010] J. Bus. L. 394.

Laura Heymann, Reading the Product: Warnings, Disclaimers, and Literary Theory, 22 Yale J.L. & Human. 393 (2010).

Hila Keren, Considering Affective Consideration, 40 Golden Gate U. L. Rev. 165 (2010).

Nancy S. Kim & Chii-Dean Lin, Arbitration's Summer Soldiers Marching Into Fall: Another Look at Eisenberg, Miller, and Sherwin's Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts, 34 Vt. L. Rev. 597 (2010).

Susanna Lopez-Bayon y Manuel Gonzalez-Diaz, Indefinite Contract Duration: Evidence from Electronics Subcontracting, 30 Int'l Rev. L. & Econ. 145 (2010).

Graham S. McBain, Abolishing the Statute of Frauds 1677 Section 4, [2010] J. Bus. L. 420.

Daniel Markovits, Arbitration's Arbitrage: Social Solidarity at the Nexus of Adjudication and Contract, 59 DePaul L. Rev. 431 (2010).

Sue Payne, Teaching Contract Drafting to First-Year Law Students in Three Hours or Less, 18 Perspectives 145 (2010).

James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude," 119 Yale L.J. 1474 (2010).

Porcher L. Taylor, III, Fernando M. Pinguelo & Timothy D. Cedrone, The Reverse-Morals Clause: The Unique Way to Save Talent's Reputation and Money in a New Era of Corporate Crimes and Scandals, 28 Cardozo Arts & Ent. L.J. 65 (2010).

Doron Teichman, Old Habits Are Hard to Change: A Case Study of Israeli Real Estate Contracts, 44 L. & Soc'y Rev. 299 (2010).

Brian Vito, A Carrot From Any Other Farmer Will Still Go in the Soup: Uniqueness and Casebook Contract Law, 9 Fla. St. U. Bus. L. Rev. 103 (2010).

[Keith A. Rowley]

Sarah Palin’s CSU Contract (and Speaking Fee) Revealed

Sarah Palin was hired by California State University Stanislaus to appear at a June Fundraiser.  When a non-profit government transparency group sought to find out her speaking fee through a public information request, the University refused to reveal the information.  Last week, a California judge ordered the University to disclose the details.

Now that the contract is public record (you can read it in its entirety here), it reveals that Palin received $75,000 for three hours' work, in two payments of $37,500. The University was also on the hook for her accommodations and travel expenses, which included two first class tickets and two unrestricted coach tickets.  Among other interesting tidbits, we learn that Palin requires bendable straws, wooden lecterns and skirted tables:

A spotlight directly on the Speaker should be avoided. Unopened bottled still water (2 bottles) and bendable straws are to be placed in or near the wooden lectern. A representative of WSB [Washington Speakers Bureau] or the Speaker's party will open the water at an appropriate time prior to the Speaker's participation in the program.

 * * *

No Plexiglass or thin lecterns, please. If Speaker is seated on-stage at a table (sic) customer to ensure that the table is skirted.

Guess this confidentiality clause could not insulate the government entity from transparency:

The Parties agree that the terms of this Agreement, including its compensation terms, ("Confidential Information") are confidential and should be held in confidence by each party. The Parties shall not publicly disclose any Confidential Information and acknowledge that any breach, negligent or intentional, of this confidentiality shall be deemed a material breach of this Agreement for which the breaching party will be held liable.

[Meredith R. Miller]

A Hairy Breach of Contract Suit against Paris Hilton

Paris Hilton is no stranger to this blog (she had previously been sued for failing to promote a movie, Pledge This!).  According to the Washington Post, Hilton is now facing a $35 million lawsuit by Hairtech International, claiming that she breached a contract to promote and wear hair extensions.  Apparently, she was wearing the hair extensions of a competing manufacturer.  According to WaPo:

Spokeswoman Dawn Miller said in a statement released Thursday that Hilton's attorneys state, "There is no merit whatsoever to any of these claims. We will pursue all of our defenses vigorously and any potential counter claims."

Hairtech claimed Hilton did not wear the company's extensions as promised and missed a launch party in 2007 because she was in jail. They claim the damages from the missed appearance were at least $6.6 million.

Hilton served 23 days in 2007 after she was caught driving twice on a suspended license while on probation for reckless driving.

I am not sure of the contract price, but if it is less than $35 million, the lawsuit raises interesting damages issues.  But, mostly, I tend to have a similar reaction as Prof. Jonathan Turley: if anyone at Hairtech is reading this blog, I would be happy promote and wear the hair extensions for a much better price.  Though, I suppose you should go with Prof. Turley, because he's always on the telly talking to Olbermann and Maddow.  Definitely Hairtech's targeted demographic.

[Meredith R. Miller]

Is a Website's Privacy Policy a Binding Contract?

Richard Raysman and Peter Brown write in today's NYLJ that the answer to that question remains unsettled. The issue was raised in a recent case involving a Cleveland newspaper that reported on a judge's anonymous comments (about pending cases) to its website.  Here's a taste of Raysman and Brown's article:

The law surrounding the contractual nature of privacy policies remains unsettled: Are they merely broad statements of company policy or enforceable contracts?

Some courts have held that general statements like privacy policies are unilateral corporate statements that are not sufficiently definite to form a contract. Others have found privacy policies can form a contract, particularly when parties claiming a breach have alleged that they read and subsequently relied on the policy prior to transacting business with the site operator. See e.g., Meyer v. Christie, 2007 WL 3120695 (D. Kan. Oct. 24, 2007).

Regardless, any successful claim for breach of contract requires a showing of compensable loss arising out of the alleged breach, beyond a generalized claim of loss of privacy.

For example, in Smith v. Trusted Universal Standards in Electronics Transactions Inc., 2010 WL 1799456 (D. N.J. May 4, 2010), the plaintiff alleged that his Internet service provider failed to adhere to its privacy policy by failing to explain fully why his communications were blocked for spam-related violations.

Ruling on a motion to dismiss, the court found that the plaintiff seemed to have alleged that the privacy policy provisions allegedly violated were part of his agreement with his ISP and that he relied on them.

However, the court dismissed the plaintiff's contract claims, with leave to amend, because the plaintiff failed to plead any loss stemming from the alleged breach.

Similarly, in Cherny v. Emigrant Bank, 604 F.Supp.2d 605 (S.D.N.Y. 2009), the court ruled that the disclosure of an e-mail address allegedly in contravention of the defendant's privacy policy that resulted in the plaintiff's receipt of spam, but no other misuse, could not form a cognizable breach of contract action because of a lack of recoverable damages.

They also discuss the FTC’s “aggressive stance” with regard to data privacy.  Interesting issue; the article is worth a read.

Brown & Raysman, Contractual Nature of Online Policies Remains Unsettled, NYLJ (8/10/10).

[Meredith R. Miller]

Now in Print

Oliver J. Armas & Thomas J. Hall, Contracts are Binding -- In Good Times, and Bad?  Contractual Impossibility, Material Adverse Change Clauses and Adequate Assurances During Economic Crisis, 42 U.C.C.L.J. 283 (2010). 

Michelle Boardman, Insuring Understanding: The Tested Language Defense, 95 Iowa L. Rev. 1075 (2010).

Richard Buxton, "Construction" and Rectification After Chartbrook, 69 Cambridge L.J. 253 (2010).

David Capper, The Unconscionable Bargain in the Common Law World, 126 L.Q. Rev. 403 (2010).

David Epstein, Melinda Arbuckle & Kelly Flanagan, Contract Law's Two "P.E.'s": Promissory Estoppel and the Parol Evidence Rule, 62 Baylor L. Rev. 397 (2010).

James Gilbert, A Major Misunderstanding of Minors' Contracts?  Enforcement and Restitution Under the Minors' Contracts Act 1969, 40 Victoria U. Wellington L. Rev. 721 (2009).

Ethan J. Lieb, Contracts and Friendships, 59 Emory L.J. 649 (2010).

Mitchell McInnes, Fundamental Breach in the Supreme Court of Canada, 126 L.Q. Rev. 365 (2010).

Jennifer S. Martin, Fighting Piracy with Private Security Measures: When Contract Law Should Tell Parties to Walk the Plank, 59 Am. U. L. Rev. 1363 (2010).

Geoffrey P. Miller, Bargains Bicoastal: New Light on Contract Theory, 31 Cardozo L. Rev. 1475 (2010).

C. Scott Pryor, Clear Rules Still Produce Fuzzy Results: Impossibility in Indian Contract Law, 27 Ariz. J. Int'l & Comp. L. 1 (2010).

Alexandra W. Reimelt, Note, An Unjust Bargain: Plea Bargains and Waiver of the Right to Appeal, 51 B.C. L. Rev. 871 (2010).

Solène Rowan, For the Recognition of Remedial Terms Agreed Inter Partes, 126 L.Q. Rev. 448 (2010).

Randall Thomas, Erin O'Hara & Kenneth Martin, Arbitration Clauses in CEO Employment Contracts: An Empirical and Theoretical Analysis, 63 Vand. L. Rev. 959 (2010).

Deborah L. Thorne et al., Navigating Turbulent Economic Waters; Using the Uniform Commercial Code to Steady the Boat, 42 U.C.C.L.J. 305 (2010). 

Tess Wilkinson-Ryan & David A. Hoffman, Breach Is For Suckers, 63 Vand. L. Rev. 1003 (2010).

Robert K. Wise, Andrew J. Szygenda & Thomas F. Lillard, Fist-Refusal Rights Under Texas Law, 62 Baylor L. Rev. 433 (2010).

[Keith A. Rowley]