ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, January 11, 2018

Starbucks Wins: Enough Coffee in Cup

As we all know, there is a lawsuit for everything, including whether Starbucks deliberately underfills its lattes to save on the cost of milk. This could constitute a breach of express warranty. So argued a group of plaintiffs in the United States District Court for the Northern District of California recently. The court dismissed the argument on a motion for summary judgment. Unknown

Plaintiffs’ arguments were threefold: First, that “when filled to the brink,” Starbucks’ cups hold only exactly the beverage volumes listed on the menus. The court dismissed that argument because Starbucks requires its cup manufacturers to make the cups 8-12% larger than the promised beverage volume. Second, that the milk foam added to lattes should not count towards the beverage volume. However, as plaintiffs themselves had argued that milk foam is a component of a latte, the court quickly dismissed that argument as well. Third, plaintiffs argued that the “fill-to” lines in steaming pitchers used by baristas to make the lattes are too low for the finished product to contain the expressly promised volume. The court also dismissed that as the steam is an essential part of a latte.

In short, the court agreed with Starbucks that plaintiffs could not prove that any false statements had been made at all. What was warranted was also what was sold.

Incidentally, Starbucks is – as many other previously very popular brands – increasingly suffering from an image problem: they have apparently become too boring and basic. Once seen as cool and edgy, they are now seen as too ubiquitous, in large part because they simply have too many stores. Their solution is to open upscale Roasteries and Reserve stores.

Images
Meanwhile, the competition – Dunkin’ Donuts and McDonald’s for example – charge $3 less for coffee than Starbucks. The same fate might be countered by Subway Sandwiches, previously the nation’s second-largest fast-food chain.  They too might have grown too much and too fast. Additionally, Subway’s menus are seen as too boring, especially by younger millennials who prefer a more diverse range of options, including salads and healthier choices."

The Starbucks case is Strumlauf et. al. v. Starbucks Corporation, Case No. 16-cv-01306-YGR.

January 11, 2018 in Commentary, Current Affairs, Famous Cases, Food and Drink | Permalink

Wednesday, January 10, 2018

New Commercial Court in Belgium

Belgium has set up an English-language commercial court in order to attract Brexit-related and international commercial litigation as well as arbitration cases that have so far often been handled by British courts or international arbitration tribunals.  According to the Belgian government, the demand for arbitration is, in particular, likely to grow because of Brexit. “[] Brexit means [] that going to a court in London might not be an appropriate option,” it said, without giving a date for the start of the English-language hearings.

Interesting that Belgium seems to want to attract litigation where in the United States, courts often worry about "opening the floodgates to litigation."

Hat tip to Allen Kamp for bringing this story to the attention of the Contracts Law listserv in October (and apologies for posting this story so relatively late).

Happy New Year!

January 10, 2018 | Permalink

Monday, January 8, 2018

Heating oil contracts in the record cold

The news tonight reported on a real-life contracts issue near and dear to my heart, since my grandmother got caught up in an identical situation with her oil. Basically, New England has been in the middle of a two-week stretch of below-freezing temperatures, unusual for us. It's cold here, but not usually -18. Lots of people have contracts with oil companies that provide for automatic tank refill. These contracts are not cheap to enter into. My grandmother's cost hundreds of dollars a year, and that's just for them to show up; we still have to pay for the oil on top of it. But, because everyone's been using more oil than usual, the oil companies have been caught completely unprepared for how many of their automatic-renewal-contract customers have needed oil. How unprepared? Well, my 85-year-old grandmother spent more than 12 hours completely without heat, problematic in the arctic cold we were gripped in. And the problem is: What were our options? We'd paid hundreds of dollars to never be left in a situation, we thought, when our grandmother's tank would go empty. That was supposed to be the point of the contract, that we wouldn't have to worry about her running out of oil. But that was exactly what happened. 

And, as the news report makes clear, once you enter into this contract, you're not allowed to get your oil from anybody else. So we were in a situation where we couldn't get the service we'd paid for, and we were prohibited by contract from getting the service from anyone else. As the news report states, the oil company may waive the fee on a case-by-case basis. But, for many people on limited incomes dealing with already expensive heating costs, taking the risk of being charged a $399 fee might not be acceptable. 

January 8, 2018 in Commentary, Current Affairs, In the News, True Contracts | Permalink | Comments (2)

Wednesday, January 3, 2018

"Illegal use of alcohol" doesn't mean driving under the influence

A recent case out of the Sixth Circuit, Heimer v. Companion Life Insurance Co., No. 16-2274, "is about whether a contract should mean what it says." The insurance policy at issue disclaimed coverage for injuries that resulted from the "illegal use of alcohol." Heimer legally consumed a great deal of alcohol (he was legal drinking age), but then illegally operated a motorbike while his blood alcohol level was nearly twice the legal limit. He collided with another motorbike and suffered extensive injuries. 

The insurance company claimed that the policy didn't cover the accident because it resulted from the illegal use of alcohol. The court disagreed based on the plain language of the contract. The policy said "use," not "under the influence." Therefore, Heimer's injuries weren't covered only if his use of the alcohol was illegal, which it was not. Heimer's criminal offense was illegally using a motor vehicle, not illegally using alcohol.  

The court acknowledged that obviously the insurance company didn't want to have to pay for the injuries caused by the drunken motorbike driving, but the court noted that the contract's language needed to be modified to reach that result. 

A concurrence in part / dissent in part agreed with the outcome and accused the insurance company, the contract's drafter, of "sloppy drafting," but did allow that the phrase might be ambiguous. 

 

January 3, 2018 in Current Affairs, In the News, Recent Cases, True Contracts | Permalink | Comments (0)

Tuesday, January 2, 2018

Here's one for any of us who have ever felt frustrated by Internet speeds

A class action brought in the Western District of Tennessee over Internet service speeds, Carroll v. TDS Telecommunications Corp., No. 1:17-cv-01127-STA-egb (behind paywall), recently survived a motion to dismiss. Among the claims was a breach of contract claim based on the plaintiff's procurement of a high-speed Internet service plan. The plaintiff agreed to pay between $120 and $150 a month for access to service of a particular speed, which she alleged she did not receive, rendering her Internet incapable of supporting the uses, such as Netflix and YouTube, that she had been told the Internet plan would support. The court found these to be sufficient allegations of a breach of contract to survive the motion to dismiss. The plaintiff's other causes of action, including for fraud, unjust enrichment, and civil conspiracy, also survived the motion. 

January 2, 2018 in Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)

Tuesday, December 26, 2017

What happens in Vegas ends up in court!

Intoxication always seems like such an irresistible thing to test, because it's so easy to slip into a hypo. A recent case out of Nevada, Wynn Las Vegas, LLC v. Tofani, No. 69936 (behind paywall), brings it up as an issue in the context of Las Vegas gambling. You can listen to the oral argument here (the audio quality is kind of terrible; sorry about that). The Wynn casino advanced Tofani $800,000 in credit, all of which Tofani gambled and lost, and the Wynn is now attempting to collect the debt. Tofani's main defense consisted of lack of capacity because he was intoxicated at the time he borrowed the money. (He also argued that he lacked capacity because of a gambling addiction, but the court found that to be irrelevant based on Nevada statute.)

The Wynn did win a jury verdict but only of $450,000. The majority opinion found that there were fact issues regarding Tofani's level of intoxication and reasonable disaffirmation of the contract, so those were questions that properly went to the jury. However, the jury instructions were incorrect, so the majority reversed and remanded for a new trial.

A concurrence in part - dissent in part walked through Tofani's intoxication defense in more detail. Tofani had indisputably affirmed his debt to Wynn in writing several times...until, eighteen months after incurring the debt, his wife found out how much money he owed, after which he began disaffirming the debt, leading to this lawsuit. The concurrence/dissent pointed out that either Tofani owed $800,000 or Tofani didn't. Therefore, the jury's verdict made no sense: Nobody contended at any point the possibility that Tofani only owed half the amount. The majority's way of dealing with this was through the incorrect jury instruction, but the concurrence /dissent pointed out that there was no fact issues for the jury to resolve: A contract entered into while intoxicated is voidable, not void. The intoxicated person must disaffirm the contract...which Tofani did not do for eighteen months and, to the contrary, repeatedly affirmed the contract in writing. Therefore, Tofani, having indisputably ratified the contract, could not disaffirm the contract later. 

Anyway, entering into a contract while intoxicated doesn't mean you get to keep whatever you were given: "He doesn't get to keep the money forever just because the contract is void; it doesn't magically morph into a Christmas gift with no strings attached just because he was drunk." 

December 26, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, December 21, 2017

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 21, 2017)

Top-ten-gift-package

Top Downloads For Contracts & Commercial Law eJournal

Recent Top Papers (60 days) as of: 22 Oct 2017 - 21 Dec 2017

Rank

Paper

Downloads

1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Lee C. Buchheit and G. Mitu Gulati

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law

327

2.

Transatlantic Data Privacy

Paul M. Schwartz and Karl-Nikolaus Peifer

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law

240

3.

Pseudo-Contract & Shared Meaning Analysis

Robin Bradley Kar and Margaret Jane Radin

University of Illinois College of Law and University of Toronto - Faculty of Law

174

4.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

Omri Ben-Shahar and Ariel Porat

University of Chicago Law School and Tel Aviv University

141

5.

Abolishing Consideration: An Argument from Coherence

Azfer A. Khan

Harvard University, Law School, Students

139

6.

Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering?

Gillian K. Hadfield and Barry R. Weingast

USC Law School and Department of Economics and Stanford University, Department of Political Science

107

7.

Objective Plain Meaning in Common Law Contracts

Stephen C. Mouritsen

University of Chicago - Law School

106

8.

Deal Momentum

Cathy Hwang

Stanford Law School

106

9.

The End of Bargaining in the Digital Age

Saul Levmore and Frank Fagan

University of Chicago Law School and EDHEC Business School

105

10.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Jay A. Mitchell

Stanford Law School

99

 

Top Downloads for Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days) as of: 22 Oct 2017 - 21 Dec 2017

Rank

Paper

Downloads

1.

Transatlantic Data Privacy

Paul M. Schwartz and Karl-Nikolaus Peifer

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law

240

2.

Introduction: Contract in Commercial Law

James J. Edelman, James Goudkamp and Simone Degeling

University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law

233

3.

Pseudo-Contract & Shared Meaning Analysis

Robin Bradley Kar and Margaret Jane Radin

University of Illinois College of Law and University of Toronto - Faculty of Law

174

4.

‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations

Amr Omran

Freshfields Bruckhaus Deringer LLP, Dubai, United Arab

168

5.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

Omri Ben-Shahar and Ariel Porat

University of Chicago Law School and Tel Aviv

141

6.

Abolishing Consideration: An Argument from Coherence

Azfer A. Khan

Harvard University, Law School, Students

139

7.

Objective Plain Meaning in Common Law Contracts

Stephen C. Mouritsen

University of Chicago - Law

106

8.

Deal Momentum

Cathy Hwang

Stanford Law School

106

9.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Jay A. Mitchell

Stanford Law School

99

10.

Crowdfunding Signals

Darian M. Ibrahim

William & Mary Law School

98

 

December 21, 2017 | Permalink

The 13th Annual International Conference on Contracts (KCON XIII) is Looking Great!

 Barry-New-LogoKCON, the annual International Conference on Contracts, is a favorite of this blog, having been associated with us since its inception. The 13th Annual International Conference on Contracts will be held at Barry University Dwayne O. Andreas School of Law, which is just around the corner (February 23 and 24, 2018).  The conference is shaping up nicely and is well worth adding to your conference and travel plans for next semester!

For those unaware, the 13th Annual International Conference on Contracts is the largest annual scholarly and educational conference devoted to Contracts and related areas of commercial law. The two-day conference is designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, not-yet-fully-formed ideas for scholarship, and pedagogical innovations, as well as to network with colleagues — and potential collaborators or mentors — from around the country and other parts of the world.

Courtesy of conference organizer Dan O'Gorman, here are some highlights so far:

James J. White Robert SummersWe will be honoring Professor James J. White of the University of Michigan Law School and Professor Robert S. Summers of Cornell Law School with Lifetime Achievement Awards for their contributions to the field of contract law. Professor White will be in attendance to accept the awards on behalf of both himself and Professor Summers.

The Barry Law Review has agreed to have its annual spring symposium be a panel at KCon 13. In honor of our lifetime achievement award recipients, the panel will focus on Article 2 of the U.C.C. The panel will be moderated by Victor Goldberg, and panelists include Lisa Bernstein (via Skype), Robert HillmanSteven Walt, and James White. A second panel on Article 2 is also in the works moderated by Frank Snyder, and featuring Henry Gabriel, Reporter for the Revisions of U.C.C. Article 2, 1999-2003, and whose piece will also be included in the symposium edition.

 We will have a panel on Judge Posner and his contracts jurisprudence (moderated by Michael Malloy, with panelists Bob Brain, Deborah Gerhardt, Victor Goldberg, and Jeff Harrison).

We will have a panel on the economics of contract law (moderated by Jeff Harrison, with panelists Yonathan Arbel, Peter Gerhart, Victor Goldberg, and Wentong Zheng).

We will have a panel celebrating/decrying Judge Traynor’s 1968 opinion in Pacific Gas & Electric on its 50th anniversary (moderated by Fred Jonassen, with panelists Steve Burton, Robert Hillman, and others soon to be confirmed).

Professor Tina Stark will have a show-and-tell during one of the lunch sessions about her antique English indentures. She has some going back to the 1400s, others from the Elizabethan age, some with huge regnal seals, and others of historical interest because of references to peppercorns.

We have a substantial number of international scholars who will be making presentations.

We will be having dinner at a tapas restaurant in downtown Orlando, with a trivia contest during dinner.

So if you have not done so already, we encourage you to reserve a room at the Embassy Suites by Hilton in downtown Orlando at your earliest convenience. 

You can register for the conference here: http://www.barry.edu/kcon/  

You can book your hotel room here: http://embassysuites.hilton.com/en/es/groups/personalized/M/MCODTES-BAR-20180222/index.jhtml

The deadline to submit an abstract was December 11, but abstracts submitted after that date will be accepted on a space available basis.

We look forward to seeing many of you in Orlando in February. Please note that the average high temperature in Orlando on February 23 and 24 is 74 degrees. (This is not a warranty, however.)

 

December 21, 2017 in Conferences | Permalink

Keeping premises safe doesn't necessarily mean banning dogs

A recent case out of Connecticut, Madore v. ISCC, LLC, HHBCV166033741S, sits at the intersection of contract law and negligence. The plaintiff was bit by a dog at an ice skating rink operated by the defendant and sued under theories of both negligence and breach of contract. The contract theory pivoted around the defendant's obligation in its lease to keep the premises in "good, safe, and habitable condition." The plaintiff tried to argue that this created a duty of care toward the plaintiff to keep the premises safe for the plaintiff, which the defendant failed to do since the plaintiff was bit by a dog while on the premises. However, the court noted that the contract said nothing about dogs. The obligation to keep the premises safe did not require the defendant to ban dogs from the premises. Therefore, the provision could not be read to create a duty of care to keep the plaintiff safe from harm caused by dogs on the premises. 

December 21, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Wednesday, December 20, 2017

When your extramarital relationship can allegedly be found in a contract

I may have just used the recent royal engagement news as the basis of my Contracts final hypo, so I read with interest this complaint out of the Eastern District of New York, Purcell v. Pressman, 17-cv-6879 (behind paywall), that got sent to me under an alert. (I have the alert set up for "fanfiction," because of my scholarly interest in fan activities, and sometimes I get the most random hits on it, like this one.) The complaint is behind a paywall, but the New York Post has an article up that summarizes both this complaint and the previous fraud complaint filed in Connecticut District Court by Pressman against Purcell a few days before Purcell filed her lawsuit

Basically, Purcell's complaint alleges a passionate and intense relationship begun in a hotel in Puerto Rico and continued over lavish vacations in Antigua and New York City. At one point, Pressman allegedly drew up a contract between his alleged business Triton and Purcell, containing certain provisions under which the company agreed to pay some of Purcell's expenses, although neither party ever signed the contract. The contract, according to the allegations of the complaint, was meant to be a gesture of commitment on the part of Pressman to his romantic relationship with Purcell. Pressman's complaint denies ever drafting the contract. 

The allegations continue: Purcell and Pressman moved in together. A few days later, Pressman suffered a medical emergency and was rushed to the hospital after Purcell called 911. Pressman also disputes this version of the tale in his complaint, claiming he called 911 himself after Purcell failed to assist him; as you can tell, Pressman's complaint tells a different story about the relationship with Purcell, accusing her of defrauding him, instead of Purcell's opposite allegations.

While in the hospital, Purcell claims to have answered Pressman's ringing cell phone and to have realized only then that Pressman was married. The complaint then continues to allege further events in the relationship and then asserts a number of causes of action, including breach of contract based on the contract Pressman had allegedly drawn up. 

The complaint concedes that neither party ever signed the contract, but Purcell alleges that she acted in reliance on the enforceability of the contract and so, therefore, the contract should be treated as valid, with the execution of it merely a formality. As I've stated, Pressman has denied ever drafting the contract. 

There are no other pleadings in this case yet. 

December 20, 2017 in Celebrity Contracts, Current Affairs, In the News, Recent Cases, True Contracts | Permalink | Comments (0)

Tuesday, December 19, 2017

If you're going to release your right to pursue unknown claims, you'd better mean it

A recent case out of the Seventh Circuit, ADM Alliance Nutrition, Inc. v. SGA Pharm Lab, Inc., Nos. 16-2331 and 16-2953, reminds us all that signing a release of unknown claims can, indeed, do exactly that. (You can listen to the oral argument here).

The parties in question were two sophisticated commercial parties with presumably access to legal advice if they desired it. When they terminated their business relationship, they signed a release from all claims, known or unknown. ADM then later discovered alleged fraud on SGA's part during the course of their former business relationship and sought to sue for this fraud. The Seventh Circuit, however, enforced the plain language of the release, noting that releases are permitted to encompass unknown fraud claims: 

Two sophisticated businesses signed an agreement to walk away from each other here. ADM chose to relinquish its right to bring any and all claims arising out of the Purchase Agreement, whether known or unknown. It also agreed that no representations were made to induce it to enter into the Termination Agreement other than those contained in the agreement.

Therefore, the release was enforced. Let this be a word of warning: Be careful when signing releases. 

December 19, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)

Monday, December 18, 2017

Facebook's terms of use have gaps that leave consumers powerless

Venkat Balasubramani over on Technology and Marketing Law Blog has a piece on the defeat of a recent lawsuit against Facebook based on Facebook's tracking of logged-out users on third-party websites. The court had previously rejected other claims, which left only contract-based claims, which the court also rejected in this most recent ruling. Basically, Facebook's statements about not tracking logged out users could not be found in the terms of service. Instead, Facebook made them in other documents, like data use policies and help center pages. Therefore, the court found there was no contractual provision governing Facebook's behavior. 

As the blog notes, "Ouch." It takes the court a long time to wade through Facebook's voluminous documents to determine what is and is not a contractual promise, an act that we surely can't expect the typical consumer (even if a lawyer) to engage in. This ruling seems to allow Facebook to be a little bit coy about where it makes its statements in order to avoid certain claims. The gap on tracking logged-out users in the terms of use seems to leave consumers without a cause of action here, and to make it difficult for consumers to piece together all of the documents to determine Facebook's true stance on the issue. 

December 18, 2017 in Commentary, True Contracts, Web/Tech | Permalink | Comments (0)

Thursday, December 14, 2017

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 14, 2017)

Top-10 Scrolling

Top Downloads for: Contracts & Commercial Law eJournal

Recent Top Papers (60 days) as of: 15 Oct 2017 - 14 Dec 2017

Rank

Paper

Downloads

1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Lee C. Buchheit and G. Mitu Gulati

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law

323

2.

Transatlantic Data Privacy

Paul M. Schwartz and Karl-Nikolaus Peifer

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law

195

3.

Pseudo-Contract & Shared Meaning Analysis

Robin Bradley Kar and Margaret Jane Radin

University of Illinois College of Law and University of Toronto - Faculty of Law

162

4.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

Natali Helberger, Frederik J. Zuiderveen Borgesius and Agustin Reyna

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation

137

5.

Abolishing Consideration: An Argument from Coherence

Azfer A. Khan

Harvard University, Law School, Students

127

6.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

Omri Ben-Shahar and Ariel Porat

University of Chicago Law School and Tel Aviv University

116

7.

Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering?

Gillian K. Hadfield and Barry R. Weingast

USC Law School and Department of Economics and Stanford University, Department of Political Science

106

8.

Objective Plain Meaning in Common Law Contracts

Stephen C. Mouritsen

University of Chicago - Law School

101

9.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Jay A. Mitchell

Stanford Law School

94

10.

Deal Momentum

Cathy Hwang

Stanford Law School

90

 

Top Downloads for: Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days) as of: 15 Oct 2017 - 14 Dec 2017

Rank

Paper

Downloads

1.

Introduction: Contract in Commercial Law

James J. Edelman, James Goudkamp and Simone Degeling

University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law

226

2.

Transatlantic Data Privacy

Paul M. Schwartz and Karl-Nikolaus Peifer

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law

196

3.

‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations

Amr Omran

Freshfields Bruckhaus Deringer LLP, Dubai, United Arab Emirates

165

4.

Pseudo-Contract & Shared Meaning Analysis

Robin Bradley Kar and Margaret Jane Radin

University of Illinois College of Law and University of Toronto - Faculty of Law

162

5.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

Natali Helberger, Frederik J. Zuiderveen Borgesius and Agustin Reyna

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation

137

6.

Creatures of Contract: A Half-Truth about LLCs

Mohsen Manesh

University of Oregon School of Law

134

7.

Abolishing Consideration: An Argument from Coherence

Azfer A. Khan

Harvard University, Law School, Students

127

8.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

Omri Ben-Shahar and Ariel Porat

University of Chicago Law School and Tel Aviv University

116

9.

Objective Plain Meaning in Common Law Contracts

Stephen C. Mouritsen

University of Chicago - Law School

101

10.

Crowdfunding Signals

Darian M. Ibrahim

William & Mary Law School

95

 

December 14, 2017 in Recent Scholarship | Permalink

Monday, December 11, 2017

Contracts Law Contributing the Greatest to MBE Performance

Were you aware of this?  A first-of-its-kind study exploring the relationship between specific law school courses and components of the bar exam has identified Contracts as making the greatest contribution to performance on the Multistate Bar Examination among first-time takers.  Most of the other MBE-subject courses showed no significant contribution to overall MBE performance.  Austin, Christopher, and Dickerson, Will I Pass the Bar Exam?: Predicting Student Success Using LSAT Scores and Law School Performance, 45 Hofstra Law Review 753, 772 (2017), available here: http://www.hofstralawreview.org/wp-content/uploads/2017/06/BB.2.Austin-et-al.NEW_.pdf

Hat tip to Otto Stockmeyer for this story!

 

December 11, 2017 in Commentary, Contract Profs, Law Schools | Permalink

Thursday, December 7, 2017

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 7, 2017)

Top-10-3D

Top Downloads For: Contracts & Commercial Law eJournal SSRN Logo2

Recent Top Papers (60 days) as of 08 Oct 2017 - 07 Dec 2017
 
Rank Paper Downloads
1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law
317
2.

Tracing Equity: Realizing and Allocating Value in Chapter 11

University of North Carolina School of Law and Brooklyn Law School
187
3.

Pseudo-Contract & Shared Meaning Analysis

University of Illinois College of Law and University of Toronto - Faculty of Law
136
4.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
122
5.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
118
6.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
113
7.

Legal Certainty: A Common Law View and a Critique

Durham University
111
8.

Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering?

USC Law School and Department of Economics and Stanford University, Department of Political Science
102
9.

Objective Plain Meaning in Common Law Contracts

University of Chicago - Law School
95
10.

Transatlantic Data Privacy

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law
91

 

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

Recent Top Papers (60 days) as of 08 Oct 2017 - 07 Dec 2017
 
Rank Paper Downloads
1.

Introduction: Contract in Commercial Law

University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law
224
2.

‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations

Freshfields Bruckhaus Deringer LLP, Dubai, United Arab Emirates
162
3.

Pseudo-Contract & Shared Meaning Analysis

University of Illinois College of Law and University of Toronto - Faculty of Law
136
4.

Creatures of Contract: A Half-Truth about LLCs

University of Oregon School of Law
129
5.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
122
6.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
118
7.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
113
8.

Legal Certainty: A Common Law View and a Critique

Durham University
111
9.

Objective Plain Meaning in Common Law Contracts

University of Chicago - Law School
95
10.

Transatlantic Data Privacy

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law
94

 

December 7, 2017 in Recent Scholarship | Permalink

Wednesday, December 6, 2017

Emails can be enforceable, even if a contemplated contract is never signed

A recent case out of the Southern District of New York, Nusbaum v. E-Lo Sportswear LLC, 17-cv-3646 (KBF) (behind paywall), granted summary judgment based on a chain of emails between an employer and employee. The emails were discussing a severance provision, and the last email in the chain read in relevant part, "I am agreeing to the below . . . . I will sign when I get back." The parties never executed any further document. 

The court nevertheless found an enforceable contract between them. Although it was true that the emails seemed to contemplate a final agreement, it was also true that both parties regarded the negotiations as concluded and the agreement reached at the time of the final email. The employee than spent nineteen months performing under this perceived agreement. It was clear from the emails that the parties had reached agreement on the material term, and the matter was not so complex that it needed to be reduced to a formal writing. Indeed, the employer admitted it usually did not reduce employment agreements to a formal writing. Therefore, the emails demonstrated that the parties had reached agreement and they were enforceable. 

December 6, 2017 in Labor Contracts, Recent Cases, True Contracts | Permalink | Comments (0)

Monday, December 4, 2017

As long as an idea is new to you, New York court finds it can serve as consideration

If you're looking for fact patterns involving consideration, a recent case out of the Northern District of New York, West v. eBay, Inc., 1:17-cv-285 (MAD/CFH) (behind paywall), has one for you. 

The following allegations appeared in the complaint: West worked as a consultant for eBay. As a consultant, West told eBay about a business plan he had which represented a "unique business model" for virtual marketplaces. West said he was cautious about sharing his business plan, and eBay promised to keep the business plan confidential. West then sent the business plan to eBay. eBay subsequently promised to compensate West if it used the business plan. eBay then developed a mobile app that West alleged used the business plan. eBay, however, stated that the app was "independently conceived" by other eBay employees. This lawsuit followed, and eBay moved to dismiss West's complaint. 

One of eBay's asserted grounds for dismissal was a lack of adequate consideration for the contract alleged in West's complaint. eBay claimed that the business plan was not "novel" and so had no value and could not serve as consideration. The court noted that under New York law, a not-novel idea can be adequate consideration if it was novel to the party to whom it was being disclosed. This requires a fact-specific inquiry. At the motion to dismiss stage, West had asserted enough facts that the business plan was idea was novel to eBay, meaning that it could serve as adequate consideration for the contract. 

There were other causes of action and arguments involved that I'm not going to get into here, but the complaint also contained promissory estoppel and unjust enrichment claims that also survived the motion to dismiss, if you're interested. 

December 4, 2017 in E-commerce, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)

Friday, December 1, 2017

Casual, young, fun Mexican restaurants have to be allowed to play music!

Montana brings us an anticipatory breach case about a Mexican restaurant, Bridger Del Sol, Inc. v. VincentView, LLC, DA 17-0186

Bridger Del Sol ("BDS") leased some property from VincentView for the purpose of operating a "casual, young, fun Mexican restaurant." I appreciate these adjectives. BDS's Mexican restaurant sounds like a place I'd want to be friends with. 

BDS opened its casual, young, fun restaurant but the upstairs tenants turned out to not be so keen on their hip new downstairs neighbor, complaining about noise and cooking smells. VincentView then sent BDS a Notice of Default and stated that it would take over the premises prior to the expiration of the lease unless BDS stopped playing music and emitting cooking odors. 

The court characterized that as an anticipatory breach on VincentView's part. As the court noted, "Restaurants commonly play music and must cook. Thus, VincentView's new rules were not reasonable or fair to BDS." This was therefore a breach of VincentView's duty of good faith and fair dealing and VincentView would have been unjustified in retaking the premises as it threatened unequivocally to do. 

December 1, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, November 30, 2017

Here's an Example of an Illegal Contract

I always struggle to think of examples of illegal contracts other than contracts to kill people, which makes for a dramatic class discussion but I fear might cause the students to write off illegal contracts as a subject better suited for Breaking Bad or something. So I was delighted to come across this recent case out of Michigan, M-D Investments Land Management, LLC v. 5 Lakes Adjusting, LLC, No. 336394 (behind paywall), dealing with an illegal contract. 

While the contract is found illegal in this case, the facts are not glamorous. The plaintiff hired the defendant to adjust its fire insurance claim and signed a contract for the services. Later, the plaintiff filed this action seeking a declaration that the contract between the parties was illegal as against public policy, and therefore voidable at the plaintiff's option. The issue was that the contract had not been approved by the Department of Insurance and Financial Services ("DIFS") as required by Michigan statute. 

The trial court found the contract in violation of the statute and thus voidable, and this appellate court agreed. The statute required the adjuster to seek approval from DIFS of its contract, and the defendant's failure to do so, no matter the reason, made the contract at least voidable at the plaintiff's option (which the plaintiff had chosen to exercise), if not void altogether. 

The defendant argued that it has since obtained DIFS approval of its contract. However, it was undisputed that it did not have this approval for the entire time the contract with the plaintiff was in effect. Thus, the contract could not be saved by after-the-fact approval.  

November 30, 2017 in Commentary, Law Schools, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)

Contracts and Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (November 30, 2017)

Top Ten Logo 2

 

Top Downloads for Contracts & Commercial Law eJournal SSRN Logo2

Recent Top Papers (60 days) as of 01 Oct 2017 - 30 Nov 2017

Rank Paper Downloads
1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law
315
2.

Tracing Equity: Realizing and Allocating Value in Chapter 11

University of North Carolina School of Law and Brooklyn Law School
184
3.

Smart Contracts: Terminology, Technical Limitations and Real World Complexity

Singapore Management University
129
4.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
110
5.

Legal Certainty: A Common Law View and a Critique

Durham University
107
6.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
106
7.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
105
8.

Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering?

USC Law School and Department of Economics and Stanford University, Department of Political Science
101
9.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Stanford Law School
88
10.

Objective Plain Meaning in Common Law Contracts

University of Chicago - Law School
84

 

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

Recent Top Papers (60 days) as of 01 Oct 2017 - 30 Nov 2017

Rank Paper Downloads
1.

Introduction: Contract in Commercial Law

University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law
217
2.

‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations

Freshfields Bruckhaus Deringer LLP, Dubai, United Arab Emirates
152
3.

Smart Contracts: Terminology, Technical Limitations and Real World Complexity

Singapore Management University
129
4.

Creatures of Contract: A Half-Truth about LLCs

University of Oregon School of Law
124
5.

Abolishing Consideration: An Argument from Coherence

Harvard University, Law School, Students
111
6.

Legal Certainty: A Common Law View and a Critique

Durham University
107
7.

The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law

University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation
106
8.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

University of Chicago Law School and Tel Aviv University
105
9.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Stanford Law School
88
10.

Objective Plain Meaning in Common Law Contracts

University of Chicago - Law School
84

 

November 30, 2017 in Recent Scholarship | Permalink