ContractsProf Blog

Friday Frivolity: Human v. AI Limerick Challenge

I attended a session last week about using AI in teaching and life. The first example that the person running the webinar used to illustrate generative AI's capabilities was, for some reason, to ask it to compose a Limerick. It was about a cat. Rather tame stuff, I thought, but I had to admit, it was metrically competent.

The next request was for a Limerick about a girl eating an ice cream cone. Some people think that Limericks have to be bawdy. It's not true. The original Limericks were neither bawdy nor very funny. They were just odd. However, if Limericks were supposed to bawdy, the generative AI took no notice of that parameter. And now the composition was metrically bumpy.

Nonetheless, I was anxious. The demonstration involved Microsoft Pilot. What if a more advanced version of the technology surpassed my entire oeuvre of legal Limericks before you could say "estoppel"?

Well, here are some samples.  You be the judge. Is it real or is it generative AI?

Raffles v. Wichelhaus

Two merchants agreed on a ship,
But which Peerless would make the trip?
One was October,
The other sailed over—
So the court let the contract slip.

or 

In Peerless, a contract for cotton
Was found by the court to be rotten.
Two ships that so hailed
To Liverpool sailed,
No consensus ad idem was gotten.

Leonard v. PepsiCo.

Intent to be bound was a barrier
To Leonard getting a harrier.
Now he only drinks Coke,
And he gets every joke,
But I would not say he's much merrier.

Leonard saw jets on TV,
Said, “I’ll cash in my points—get that free!”
But Pepsi replied,
“No jet can be tried—
Our ad wasn’t serious, you see.”

Frigaliment Importing Co. v. B.N.S. International Sales Corp.

Of Judge Friendly's great chicken coup,
Shakespeare's witches would make much ado,
With defendant they'd howl,
"Foul is fair, fair is fowl!"
That is, chickens fit only for stew.

A fight broke out over "chicken,"
With meanings that just wouldn't thicken.
One thought it was young,
But the court found among
The terms, any bird could be stricken.

In due course, I will put the answers in the comments.

Friday Frivolity: A Limerick for Wisconsin Knife Works

Image by DALL-E

I am teaching Wisconsin Knife Works v. National Metal Crafters for the first time this year. It is hard to find good cases on modification under the UCC's Article 2, and I think I may stick with this one, even though it forces me to talk about the Statute of Frauds long before I am ready to talk about the Statute of Frauds. It is a fun case to teach because it is interesting to see Judge Posner and Judge Easterbrook (pictured, as ChatGPT and I imagine them dueling, at right) on different sides of a case when they were both quite new to the Seventh Circuit. They are trying to make sense of UCC § 2-209's provisions relating to oral modifications in the face of a no-oral-modifications clause. 

Judge Posner begins with two thoughts that epitomize what I love about his writing. He dismisses the "reasoning" (scare quotes his) behind the common law's willingness to set aside no-oral-modification clauses through subsequent oral agreements as not reasoning but "a conclusion disguised as a metaphor." Second, he is willing to concede that perhaps the challenge of reconciling the provisions of § 2-209 is simply a product of a failure of foresight. The drafters of the UCC made a "big break" from the common law in eliminating the requirement for consideration. They did not imagine all of the "ramifications of the break." Article 9 underwent significant revisions soon after adoption. Revision of Article 2 could also use a tune-up. I wonder why nobody ever attempted to revise Article 2 . . .  Even if Judge Posner is right about §2-209's blind spots, I don't think either he or Judge Easterbrook comes up with an entirely satisfactory solution grounded in the UCC's text.

Judge Posner correctly identifies the problem: while § 2-209(2) says that no-oral-modifications clauses will be enforced, and § 2-209(3) says that modifications within the Statue of Frauds are also within the statute of frauds, § 2-209(4) seems to undercut both. It says that "attempted" modifications may operate as waivers of the writing requirement. But if all attempted modifications count as waivers, we are back at the common law rule whereby parties can just ignore their own no-oral-modifications clauses.

Judge Posner's solution relies on the fact that § 2-209(4) does not say that all attempts are waivers; they only can operate as waivers. So far so good. But then Judge Posner adds a reliance requirement before an attempted modification transforms into a waiver. It comes out of nowhere. Worse still, UCC § 2-209(5) talks about reliance, so if the drafters wanted reliance to be a necessary element of waiver in §2-209(4), they certainly could have said that. Even worse still, as Judge Easterbrook points out in dissent, it is hard to imagine a scenario were there would not be reliance on a modification, so Judge Posner hasn't taken us far from the common-law conclusion disguised as a metaphor.

Judge Easterbrook's solution, which allows conduct to operate as a waiver, preserves some usefulness to § 2-209(2) and (3). They still prevent an oral modification of a contract that can only be modified through a signed writing, either because of a no-oral-modifications clause or because of the Statute of Frauds. The problem is that Judge Easterbrook provides no textual basis for why waiver through conduct should be favored over waiver through oral agreement. He praises the drafters of the UCC and calls it "one of the most carefully assembled statutes in American history." Seems like careful drafters could have distinguished modification by conduct from modification by oral agreement if that were their intention.

Moreover, I am not sure that there would be many more cases of attempted modification unaccompanied by conduct than there would be cases of attempted modification without reliance. Again, we seem not to have moved far from the common law rule. Perhaps no-oral-modifications clauses really are just standard boilerplate that nobody seriously intends and thus we should not be overly concerned if they are routinely ignored both by the parties and the courts.

The Limerick

Judge Easterbrook thought there was waiver,
While Judge Posner views with disfavor
Such nonchalant changes
To written exchanges
This case is one knife-fight to savor!

New Cases, New Limericks

In the past two years, I got complaints on student evaluations that I had not seen before: too many of the cases I assigned were "old."  In a precedent-based system, old cases are not necessarily bad, but the complaints motivated me to take a hard look at some old cases and see whether there might be more recent cases, to which students could more easily relate, that could  serve well as teaching cases. Some cases that had to be abandoned were ones that I had memorialized in legal Limericks. Was I still teaching these old cases just for the Limericks?

Last year, I added the thumbs-up emoji case to my course. I have paired it with an Oklahoma case, Devon Energy Production L.P. v. Line Finders, LLC, discussed here, in which a lawyer's statement, "looks fine," was treated as closing the deal. But I have gotten out of the habit of writing Limericks when I adopt a new case, and so the Limerick to case ratio in my course is steadily declining. Perhaps that will be a subject for future complaints in student evaluations.

To prevent any such complaints, I have composed a Limerick for the emoji case, and it may be the world's first legal Limerick to include an emoji as a rhyme word. So history is made.

 Southwest Terminal Ltd. v. Achter Land & Cattle Ltd.

Achter, whose conduct was lax,
Was too lazy to e-mail or fax.
Instead of “k”, or “wazzup?”
He just texted “👍”,
And was bound to deliver some flax.

Contracts Profs as Influencers

 

Photo by camknows from Seattle, WA, USA Cropped by WikiKiwi  

Today in my morning class, I called on a student to provide her answer to one of the problems from Blum's Examples and Explanations.  As she fumbled to find the right place in the book and recall her response, she offered, "But I did write a Limerick."

Take note students.  Writing a Limerick will not get you out of responding to my withering Socratic questioning.  But she did find her answer and then she got to recite her Limerick.  Both her answer and her Limerick served my pedagogical goals, although she had to edit out a word from the Limerick, as it was not fit for my family-friendly class.  Hard to think about contracts without getting indulging in some salty language.  I like the passion.

Now I know what PewDiePie feels like.  I'm an influencer.

Weekend Frivolity: Contracts Prof Publishes Two Sonnets

I am happy to share that I have published two sonnets in Light.  These are my first published poems, unless Limericks count, and they don't.  

The setting is fitting for frivolity, as Light publishes humorous verse, and at least one of the poems is truly frivolous.  My poems are in good company; links to some highlights below.

Frigaliment fans might also want to have a look at Bruce Bennett's, A Vulture Is a Vulture Isn't a Vulture.

Andrew Frisardi contributes a lovely Ballade for the late Tim Murphy, one my favorite contemporary poets, whose unrivaled ability to write love poems for hunting dogs is on diaplay here.

The issue includes a Limerick-loving lawyer as well, and Stephen Gold's biographical note  is almost as charming as his poem.

Chris O'Carroll's Life Is Better with Cannibals is a great slice of life, especially if like me, you currently live in Oklahoma.  

The issue also includes two new poems from Wendy Videlock, along with the wonderful news that she has both a new book and a collection of essays forthcoming.

Contracts Limerick of the . . . Year

My passion for Limericks ran out when my thesaurus broke.  And still, the muse occasionally o'ertakes me, and I am powerless to resist.  Especially since my muse is Seven of Nine.

The Alaska Supreme Court decided Brady v. State of Alaska in 1998.  The state was experiencing an infestation of bark beetles.  The Brady brothers thought they had a solution.  If the state would just sell them 400 forested acres in a negotiated land sale, they would harvest the timber and then re-forest.  This plan, they proposed, would address the beetle infestation.  

The state seemed interested and entered into negotiations with the brothers.  Seeking to ingratiate themselves with the authorities, the brothers offered to gather data that the state could use in developing a Forest Land-Use Plan (FLUP).  The state accepted this offer.  The state also accepted a $3000 "pre-sale deposit" and sent the brothers encouraging letters about an impending negotiated sale.

There was no sale.  There never could have been such a sale, because such a non-competitive negotiated sale would circumvent state regulations that prohibited the negotiated sale of that much contiguous acreage.  The Bradys then submitted an invoice for $26,250 for the professional services they provided in contributing to the FLUP.

The case is primarily a vehicle for teaching the contours of unjust enrichments doctrine.  The Brady brothers were seeking a business advantage in offering their services, and so the state was not unjustly enriched.  There are two exceptions to this general rule.  The Bradys could have recovered had they manifested an expectation of payment in advance (they didn't).  They also could have recovered if they had relied on the state's promise to pay (they didn't).

Along the way, the case touches on breach of contract and promissory estoppel.  The court quickly concludes that there was no breach of contract because there never was a promise.  No promise, no promissory estoppel.  The case pairs well with Hoffman v. Red Owl Stores, another Limerickworthy case.  Arguably there is no more of a promise in Hofmann than in Brady. 

And now, the Limerick:

Brady’s FLUP seemed an ideal solution
To a plague of beetle pollution.
But when your work is done gratis,
You don’t earn the status
Of one who can claim restitution.

Contracts Limerick of the Week!

I know.  It's been a while.  I thought I had moved on, but just when I thought I was out, they pull me back in.

After we concluded our discussion of Mitchill v. Lath this week, my students demanded a Limerick.  I didn't have one.  I wrote most of the Limericks in my first few years of teaching, and I didn't start teaching Mitchill until a few years ago.  I've used all the easy rhyme schemes, so now any new Limericks I write will just feel recycled.  But then one of my students sent me the beginnings of a poem.  Her rhymes got my creative juices flowing (sort of) and this is the result.

As the Limerick suggests, I use Mitchill and Masterson v. Sine to illustrate the difference between Willistonian and Corbinian approaches to the parol evidence rule.

Mitchill v. Lath

In Mitchill's land deal with Lath,
He slipped down a cold primrose path.
That icehouse, it blights
His view, and his nights
Are consumed with Corbinian wrath.

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 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]

Contracts Limerick of the Week: Special Guest Poet, Chris Osborn

This week we have a guest blogger, Chris Osborn (pictured), a relative newcomer to the world of contracts profs, but already setting cases to Limericks.  Below is Chris's summary of Hooters of America v. Phillips, 173 F.3d 933 (4^th Cir. 1999).

In Phillips, a waitress employed at a Hooters restaurant in Myrtle Beach, SC reported to her manager that she had been sexually harassed by the local franchise owner’s brother.  Ms. Phillips claimed that the manager responded that she should “let it go,” whereupon she resigned and retained counsel.  When her attorney contacted the franchisor, Hooters of America, Inc. (Hooters), and gave notice of the claim, Hooters invoked an arbitration clause in an employment agreement that the claimant had signed several years after she was hired.  Hooters then filed a declaratory judgment action in federal district court and a motion to enjoin the plaintiff from filing suit (which was treated as a motion to compel arbitration).  

In opposing the motion, Ms. Phillips contended that the arbitration clause was not entered knowingly and voluntarily, was unconscionable, and was not supported by consideration.   The U.S. District Court for the District of South Carolina found the arbitration clause unenforceable, holding inter alia that since the clause was not contained in her initial employment contract, it had to be supported by some additional consideration.  The court then examined the mutual promise to arbitrate unenforceable.  In particular, the court found that the arbitration Rules & Procedures bound the employee but gave the employer alone the right to terminate the agreement to arbitrate at any time on 30 days’ notice.  Moreover, the Rules and Procedures also held the employer to significantly less onerous pleading, discovery, and trial procedures.  Accordingly, the court ruled that Hooters’ promise to arbitrate was illusory (which makes it reminiscent of another case recently reduced to a Limerick, Vassilkovska), and thus it could not serve as consideration for the employee’s promise to submit her claims to arbitration.

The Fourth Circuit affirmed.

Here are the (three!) Limericks:

When Miss Phillips, crying conduct discriminatory
Sought redress for her boss’ tomfoolery
            Her employer said, “Wait,
            You made a promise to arbitrate!”
But the court ruled the whole thing illusory.

“When harassed on the job (wouldn’t ya know?)
A young Hooter’s girl could not “let it go….”
            When the restaurant stalled,
            The court was appalled
“Was there any consideration here?  No. “

When a harassed young waitress brought suit
Her employer did not give a hoot
            It tried to stay litigation
            And demand arbitration
But the court ruled the sham clause was moot.

[JT]

Contracts Limerick of the Week: Bloor v. Falstaff Brewing

At right is a drawing of the Ballantine brewery in Newark as it appeared in the late 19th century.  Founded in 1840, the brewery grew to be one of the largest in the United States by the end of the 19th century.  Recognizing that nobody without a gut full of beer could enjoy the American passtime, Ballantine cleverly partnered with the New York Yankees.  Through its partnership of that storied team, Ballantine grew to become the third most popular beer  in the United States.  

Sadly, in the 1960s the brand declined.  As Judge Friendly recounts in his opinion for the Second Circuit in Bloor v. Falstaff Brewing Corp., in 1969, the brewery suffered the indignity of acquisition by a real estate conglomerate with no experience in brewing.  After bleeding money for a few years, the conglomerate sold Ballantine to Falstaff Brewing Corporation in return for some cash and a promise to use "its best efforts to promote and maintain a high volume of sales" of Ballantine beer.  If it ceased to sell the beer entirely, the contract provided for liquidated damages.

Falstaff chose not to promote Ballantine beer.  It's marketing strategy was summarized by Falsataff's controlling shareholder as follows: We sell beer, F.D.B. the brewery.  You come and get it.  That didn't work very well for Ballantine, and its volume of sales plummeted.  The trustee of what remained of Ballantine sued alleging breach of the best efforst clause and seeking liquidated damages.  Judge Friendly's conclusion is summarized below:

Bloor v. Falstaff Brewing Corp. Limerick

Falstaff had to adhere
To its deal to sell Ballantine beer.
Volume’s not killer
When there’s Bud, Coors and Miller.
Still, its efforts must be sincere.

[JT]

Contracts Limerick of the Week: Halbman v. Lemke

In Halbman v. Lemke, Lemke sold an Oldsmobile to young Halbman, who being under the age of 18, was entiteld to avoid his contractual obligations.  The sale price was $1250, part of which was payable in installments.  However, apparently only weeks after the exchange was made, a connecting rod in the vehicle's enging broke.  Although Lemke, who was the manager at a gas station, offered to install a used engine in the car if Halbman could find one.  Instead, Halbman took the car to a repair shop, which charged him $637.40 for the repairs.  

Although Halbman ceased payments on the car at that point, Lemke transferred title.  Halbman returned the title, sought to avoid the contract and demanded the return of the $1100 already paid on it. 

Halbman did not pay for the repairs, so the repair shop exercised its garageman's lien and canibalized the car for parts.  It towed what remained of the car to Halbman's father's residence, where it sat, degraded and became unsalvageable.  So matters stood when Halbman sued for the return of his $1100.

Those of you who read last week's Limerick can probably guess how this came out:

Halbman v. Lemke

Halbman, the young contract signer
Admitted that he was a minor.
When the car blew a rod
Lemke, poor sod,
Was left with some scrap and a shiner

[JT]

Contracts Limerick of the Week: Webster Street Partnership, Ltd. v. Sheridan

The Kunz and Chomsky caebook features two cases that highlight the potential for harsh results arising from a mechanical application of the infancy doctrine.  The first such case is the subject of this week's Limerick.  The second, well, you'll have to wait and see.  

In Webster Street Partnership, Ltd. v. Sheridan, the partnership rented an apartment to two infants and expected them to pay $250/month rent, plus some additional incidental costs and a $150 security deposit..  That's right, infants!  The nerve!  How are two little babies supposed to pay the rent?  Sell their diapers for fertilizer?  Pose for cute baby pictures?  Awww, that is a cute baby!

Well, actually, contracts law considers you an infant if you are under 18.  At common law, contracts with infants for non-necessaries are voidable at the election of the infant, and these two boys were under 18 at the time the contract was formed.  The boys did not pay their rent, and the partnership sought to collect.  

The first issue was whether an apartment is a necessary.  Seems like it ought to be, but . . . nope.  Second issue was whether the fact that the boys actually had use and enjoyment of the apartment should count for something.  Nope.   Finally, one of them turned 18 seven days before vacating the apartment, but the court found preposterous the notion that a mere seven days could be a sufficiently lengthy time to permit ratification of the earlier, voidable agreement.  The partnership also had to return the deposit.  Ugh.

A number of jurisdictions have introduced equitable limitations on the doctrine, and that just seems right.  The concept of "necessary" is so elastic as to provide no notice or warning of the possibility of avoidance to parties that might have entered nto contracts with infants in good faith.  The result in this case strikes me as highly unfair to the landlords and permits the two young rapscalions escape the consequences of their delinquencies.

Webster Street Partnership, Ltd. v. Sheridan Limerick

For indulging the two boys’ audacity
In contracting without capacity,
The landlord must tender,
And the court gets to render
A paean to doctrine’s opacity.

[JT]

Contracts Limerick of the Week: Wood v. Boynton

Once again, I have to express my gratitude to Christina Kunz and Carol Chomsky.  Because of their casebook, I have finally had the opportunity to teach Wood v. Boynton, which is just a really fun case to teach.  The students can relate to it, divide up relatively evenly on each side of the case, and can easily see the trouble with the old common law rule that tried to draw Aristotelian distinctions between mistakes as to essential qualities and mistakes that only go to the value of the consideration.  

Mrs. Wood, being in need of cash, returned to Mr. Boynton's jewelry store to see if he was still intersted in purchasing for $1 a rough stone found by her husband.  Boynton renewed his offer, and the two made the exchange.  The rough stone, which Mr. Wood had guessed was a topaz, turned out to be a diamond. According to Wikipedia,  Mr. Boynton sold it to Tiffany's for $850.  Some time later, J.P. Morgan bought the diamond, now known as the Eagle Diamond, and gave it to the American Museum of Natural History in New York.  It was later stolen and perhaps cut into smaller stones.  The Eagle Diamond is no more, but here is a picture of it (from five angles) in its glory:

But to get back to our story.  Upon learning that she had sold a diamond, Mrs. Wood sought rescission based on fraud or mutual mistake.  There seems to have been no fraud, as Mr. Boynton, though a jeweler, had never seen an uncut diamond before.  The court also rejected mistake, as there was no mistake that the thing was a stone.  The only mistake, said the court, was as to its value, and such mistakes are not a ground for rescission.

Wood v. Boynton Limerick

Ms. Wood found and then sold a rough stone.
Its value was then quite unknown.
Later, she’d holler
Having sold for a dollar
Ere the doctrine “mistake” was full-grown.

I think that, under the test articulated in the Restatement (Second) of Contracts, rescission would have been available.  

[JT]

 

Contracts Limerick of the Week: B. Lewis Productions v. Angelou

Some people are just too impatient!

Last week, I taught B. Lewis Productions v. Angelou for the first time.  For those unfamiliar with the case, Butch Lewis, a boxing promoter, entered into an agreement to be Maya Angelou's exclusive agent for the purpose of the marketing her writings for greeting cards, calendars and other items on which one could slap a few lines of verse.  In 1997, Mr. Lewis negotiated a deal with Hallmark on Ms. Angelou's behalf.  According to the case, their deal soured in March 1997 when Ms. Angelou saw Mr. Lewis "punctuate a conversation" with a group of white men in Las Vegas by grabbing his crotch.  As the court put it, after witnessing this conduct, Ms. Angelou "burned up his [Mr. Lewis's] ears" and told him that their venture was at an end.  

Although Ms. Angelou's literary agent wrote to inform Mr. Lewis that Ms. Angelou was not going to pursue a deal with Hallmark, there was some evidence that the two continued to work towards that goal in 1998. In 1999, Ms. Angelou went ahead with the deal on her own while also notifying Mr. Lewis that their agreement had terminated.  In 2000, Ms. Angelou signed a deal with Hallmark that gave her a $1 million advance.  After Judge Mukasey of the Southern District of New York denied Ms. Angelou and Hallmark's motion for summary judgment, Ms. Angelou settled with Mr. Lewis for $1 million.

Having been my colleague and BFF for five years but now dead to me, Alan White knows a Limerickworthy case when he sees one.  So, a bit belatedly, here it is:

B. Lewis Productions v. Angelou Limerick

"Your actions were lewd and obtrusive,"
 Said Maya, in language abusive.
But Butch still can sell
Her poems on "Get Well"
Cards, 'cause their deal said exclusive. 

[JT]

Contracts Limerick of the Week: Lucy v. Zehmer

Speaking of Lucy v. Zehmer, I had never taught the case until this year.  I don't know why so many casebooks no longer include it.  My students responded very well to it, and we had a very interesting discussion both of the joke/dare issue and of the drunkenness issue.  How drunk does one have to be to be adjudicated incompetent to enter into a contract?  Zehmer claimed he was "high as a Georgia pine."  That might have been enough, but the court didn't buy it.

Lucy v. Zehmer Limerick 

Some come to Virginnie to dine
Some come to draft contracts and sign.
As did Zehmer, and so
He was bound even though
He was high as an old Georgia pine.

[JT]

Contracts Limerick of the Week: Angel v. Murray

We apologize to the honest, hardworking people in the legitimate business of waste management and understand that the business is not "mobbed up" as the following Limerick suggests.  Poetic license.

The Kunz & Chomsky casebook contains a bounty of new cases that provide interesting perspectivs on contracts doctrine.   Angel v. Murray is a vehicle for exploring the doctine of prior consideration/contract modification.  

The City of Newport entered into a five-year contract with Maher for refuse collection, with a contract price of $137,000/year.  Three years in, Maher requested an additional $10,000/year on the ground that the city had added 400 new dwelling units, which was unexpected, since the city had been growing at a rate of 20-25 new units per year.  Under R.2d § 89, the case seems a no brainer.  The modification is "fair and equitable in view of circumstances not anticipated by the parties at the time the contract was made."

The case would be more interesting if Mr. Maher were actually named Mr. Soprano and we had suspicions about the real reasons for the increase in the payments.  We can imagine that such a Mr. Maher might defend himself as follows: 

As Maher explained at Da Bing!
Waste management’s really our t’ing
It costs some cannoli
To dump your e coli;
‘Dis isn’t about buyin’ bling.

I thought I was done writing Limericks, but then I switched to the Kunz & Chomsky casebook and got inspired.   In short,

 

[JT]

Contracts Limerick of the Week: Vassilkovska v. Woodfield Nissan

The case is pretty plain vanilla.  Vassilkovaska bought a car from Woodfield Nissan, Inc. (Woodfield).  A dispute ensued over allegedly misleding terms in the finance agreement, and Vassilkovska sued in state court.  However, Vassilkovska had also signed a separate arbitration agreement.  The terms of the arbitration agreement provided that Vassilkovska had to arbitrate any "dispute" she had with Woodfield and provided for certain exceptions.  The court found that the exceptions covered every sitution in which Woodfield would sue Vassilkovska and none in which Vassilkovska would sue Woodfield.  As a result, the court found that there was no consideration for Vassilkovska's agreement to arbitrate.  She promised to arbitrate; Woodfield promised nothing.  

Vassilkovska v. Woodfield Nissan, Inc. Limerick

In the process of selling a car,
Woodfield took things too far.
For consideration
Of compelled arbitration,
The parties must be on a par.

The last line should not of course be taken to indicate that there must be "adequate" consideration; only that both sides must give consideration that induces a reciprocal promise.

A student asked why Woodfield would have opted for a separate arbitration agreement over an arbitration clause in a purchase or finance agreement.  I admit that I am stumped.  Can anybody think of a reason why there could be an advantage to a separate arbitration agreement?

[JT]

Contracts Limerick of the Week: Pennsy Supply v. American Ash Recycling Corp.

Just when you thought it was safe to venture onto the blog. . . .

I've actually been in Limerick rehab for the past three years.  But with a new casebook, I have some fresh material.  I think I'm still a bit rusty because the facts of this case are highly Limerickworthy, and yet I'm uncertain that this is a keeper.  

American Ash made available to paving companies a material known as AggRite -- all the paving companies had to do was cart it away.  Pennsy Supply did so for use in paving driveways and parking lots in a high school in Northern York County, Pennsylvania.  In fact, it carted away 11,000 tons of the stuff.  

The AggRite didn't work so well, and the pavement cracked during its first winter.  Pennsy perfomed all the repairs, which involved carting away and disposing of the AggRite, which it turns out is hazardous waste.  I love the idea of dumping 11,000 tons of hazardous waste in a public high school parking lot.  It's the kind of metaphor that could be at the heart of a Don DeLillo novel.  

The Superior Court of Pennsylvania found that there was consideration and thus that Pennsy had a viable warranty claim (at least for the purposes of surviving a motion to dismiss/demurrer).  American Ash received a benefit when Pennsy agreed to haul away 11,000 tons of hazardous waste for free.

Pennsy Supply, Innc. v. American Ash Recycling Corp. of Pennsylvania

The court found a bargain was closed
When American Ash Corp. disposed
Of its AggRite through Pennsy
In the ideal dispens’ry:
A lot to a school juxtaposed.

[JT]

The Student Evaluation (in Limerick Form)

As I write, my students at the DePaul University College of Law are taking my Business Organizations exam.  Because I visited at other law schools in Fall 2010 and this Fall, I have not taught contracts in two years.  I miss it, but I had a great deal of fun with the DePaul students.  They were very accepting of me despite the fact that I now have very long hair (for a business law professor) and I banned all use of laptops and electronic devices during class.  As a result, my class had a rather unorthodox look to it, as the picture at right illustrates.

Somehow, a tradition developed in my afternoon class that one of the students would draw a little picture on the attendance sheet.  But when I picked up the attendance sheet after the last day of class, there was no picture.  I immeidately protested.  After class, a student, who would neither confirm nor deny that he had drawn the previous pictures (the outcome of forensic testing is pending), drew a snowman holding a sign.  On the sign, he wrote the following:

At first, I thought Telman a kook,
He looks like Jesus and no Facebook
But despite my apprehension
I actually paid more attention.
That Telman's okay in my book.

Awwwww.

[JT]