Acceptance and Receipt: an Anomaly in the Statute of Frauds Minn
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Freight Payment Terms and "Risk of Loss"
Freight Payment Terms and "Risk of Loss" By: George Carl Pezold We often get questions about which party (the shipper or the consignee) is entitled to file a claim for freight loss or damage. The Uniform Straight Bill of Lading (and most bills of lading used by shippers and carriers) has a provision for identifying the party to whom the carrier should send its freight bills. The "official" version of the bill of lading as published in the National Motor Freight Classification has a box that states: "Freight charges are PREPAID unless marked collect" and a place to "CHECK BOX IF COLLECT". Many bills of lading also have a "Bill To" box if the freight bills are to be sent to someone other than the shipper or the consignee, such as a freight payment agent. It is a common misconception that the identification of the party to pay the freight charges, i.e., whether the freight charges are "prepaid" or "collect", also determines which party should file a claim for loss or damage. The first step in any claim case is to ascertain who has risk of loss in transit. This concept is significant because it determines who has the legal right or obligation to file the claim, and who is the proper “party in interest” in the event of litigation. Under common law and the old Uniform Sales Act, which has been replaced by the Uniform Commercial Code, risk of loss generally followed “title” to the goods. However, under the Uniform Commercial Code, risk of loss is related to “delivery” of the goods. -
The Economic Implications of the Doctrine of Impossibility, 26 Hastings L.J
Hastings Law Journal Volume 26 | Issue 5 Article 5 1-1975 The conomicE Implications of the Doctrine of Impossibility Stephen S. Ashley Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Stephen S. Ashley, The Economic Implications of the Doctrine of Impossibility, 26 Hastings L.J. 1251 (1975). Available at: https://repository.uchastings.edu/hastings_law_journal/vol26/iss5/5 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. THE ECONOMIC IMPLICATIONS OF THE DOCTRINE OF IMPOSSIBILITY If one accepts as a norm Cardozo's maxim that "[t]he final cause of law is the welfare of society,"' economic theory may provide a useful basis for evaluating the social consequences of legal doctrines. This note will demonstrate the usefulness of applying an economic analysis to the doctrine of impossibility of contract performance, the legal prin- ciple applied to contract disputes which arise when an unforeseen catas- trophe prevents performance of a contract whose terms do not allocate the risk of that catastrophe. The traditional legal analysis, by limiting its view to the allocation of losses which have already occurred and by ignoring the problem of assigning the risk of future losses, has pro- duced inconsistent and arbitrary risk assignments, to society's detri- ment. The proposals of other legal writers would have the same effect. This note will demonstrate through an economic analysis that the law should allocate the risk of disruption unequivocally to the party better able to insure against the risk, subject to reassignment by the parties in their contract. -
In the United States District Court for the Northern District of Alabama Southern Division
Case 2:11-cv-01183-AKK Document 54 Filed 03/28/13 Page 1 of 36 FILED 2013 Mar-28 PM 04:05 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION NATIONWIDE MUTUAL FIRE ) INSURANCE COMPANY, ) ) Plaintiff / Counter Defendant, ) ) Civil Action Number vs. ) 2:11-cv-1183-AKK ) GUSTER LAW FIRM, LLC, et ) al., ) ) Defendants / Counter Claimants ) MEMORANDUM OPINION AND ORDER A fire destroyed commercial property insured by Nationwide Mutual Fire Insurance Company. Nationwide’s investigation of the ensuing claim revealed discrepancies in the details outlined in the insurance applications, including, among other things, the age of the property, the identity of the true owner, and its occupancy and habitability status. Nationwide subsequently filed this action against its insured, Guster Law Firm, LLC, alleging that Guster Law had no insurable interest in the property and that its applications contained material misrepresentations or were fraudulent. Nationwide seeks a declaratory judgment as to the rights and liabilities of the parties under both the commercial property Page 1 of 36 Case 2:11-cv-01183-AKK Document 54 Filed 03/28/13 Page 2 of 36 and general liability policies.1 Doc. 1. Guster Law and Guster Properties, LLC, the true owner of the insured property, filed a counterclaim alleging breach of contract, bad faith refusal to pay the insurance claims, and reformation of the named insured in the insurance policies due to mutual mistake. Doc. 15. Nationwide moved for summary judgment contending that it is not liable for the loss, doc. -
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What's Wrong With Restitution? 221 What's Wrong With Restitution? David Stevens' and Jason W. Neyers" The law of restitution has developed out of the law Le droit en matiere de restitution emane du droit of quasi-contract and the law of constructive trust. du quasi-contrat et du droit de la ftducie Inadequate attention to the logic and coherence of d'interpretation. Mais I'attention insufftsante doctrines in the law of restitution, however, renders accordie a la logtque et a la cohirence des this new law as opaque and confused as its doctrines du droit en matiere de restitution rend ce predecessor. This is largely due to the remedial nouveau droit aussi opaque etfiou que le pricident, mentality of the common law. The remedy to the ce qui est largement altribuable a la mentaliti remedial mentality is to concentrate future efforts in remediatrice du common law. Lafafon de contrer stating doctrine on defining rights, not remedies. celte mentaliti est d'axer les efforts futurs de The precedent for this type of change in method is definition de la doctrine sur la definition des droits the transformation that occurred in contract and et non des reparations. Ce changement dans la tort over the past 100 years, inspired, in part, by facon de prodder a son origine dans la civilian theories of private law. transformation survenue dans le droit contractuel et The right that generates the remedy restitution is le droit de la responsabilile' delictuelle au cours des the cause of action in unjust enrichment. It arises cent dernieres annies, et inspires, en parlie, des where there has been a non-consensual receipt and theories civiles de droit prive. -
Offer and Acceptance
CHAPTER TWO Offer and Acceptance [2:01] In determining whether parties have reached an agreement, the courts have adopted an intellectual framework that analyses transactions in terms of offer and acceptance. For an agreement to have been formed, therefore, it is necessary to show that one party to the transaction has made an offer, which has been accepted by the other party: the offer and acceptance together make up an agreement. The person who makes the offer is known as the offeror; the person to whom the offer is made is known as the offeree. [2:02] It is important not to be taken in by the deceptive familiarity of the words “offer” and “acceptance”. While these are straightforward English words, in the contract context they have acquired additional layers of meaning. The essential elements of a valid offer are: (a) The terms of the offer must be clear, certain and complete; (b) The offer must be communicated to the other party; (c) The offer must be made by written or spoken words, or be inferred by the conduct of the parties; (d) The offer must be intended as such before a contract can arise. What is an offer? Clark gives this definition: “An offer may be defined as a clear and unambiguous statement of the terms upon which the offeror is willing to contract, should the person or persons to whom the offer is directed decide to accept.”1 An further definition arises in the case of Storer v Manchester City Council [1974] 2 All ER 824, the court stated that an offer “…empowers persons to whom it is addressed to create contract by their acceptance.” [2:03] The first point to be noted from Clark’s succinct definition is that an offer must be something that will be converted into a contract once accepted. -
Capacity to Bear Loss As a Factor in the Decision of Certain Types of Tort Cases L
April, i93i CAPACITY TO BEAR LOSS AS A FACTOR IN THE DECISION OF CERTAIN TYPES OF TORT CASES L. W. FEEZER In a previous issue of the University of Pennsylvania Law Review the writer discussed under the present title a number of tort cases involving municipal corporations.' The purpose was to point out what seemed to be a noticeable tendency in recent cases to depart from the rule that a municipal corporation is not liable for torts arising in connection with a municipal function. It was suggested that this tendency may be due in part to a desire to place the burden of loss through injury where it can be borne with the least hardship. It was noted that this is attained by placing it where it can be absorbed with a lesser probability of creating further problems of social adjustment. When the bur- den in such cases is put upon the defendant, that defendant can distribute the loss burden over a considerable group, viz., the body of tax-payers. In this way the loss is ultimately born by the social organization for whose benefit the risk producing agency was brought into existence. The industrialization and mechanization of social organiza- tion has brought into existence for the benefit of society great organizations whose activities involve dangers of injury which were not present in the simpler and more rural organization of earlier times. This is not to say that life is less secure now than when "Adam delved and Eve span", but security of life is menaced by risks traceable to the "conveniences" which have come to be regarded as necessities in modern life and which are provided through great business organizations. -
NOYES V. ANTIQUES at POMPEY HOLLOW, LLC, ET AL
****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** DAPHNE B. NOYES v. ANTIQUES AT POMPEY HOLLOW, LLC, ET AL. (AC 34430) Lavine, Beach and Keller, Js. Argued March 21Ðofficially released July 30, 2013 (Appeal from Superior Court, judicial district of Windham, Vacchelli, J.) Neil Johnson, for the appellants (defendants). Eric H. Rothauser, with whom, on the brief, was John L. -
Commercial Impracticability - an Overview
Duquesne Law Review Volume 13 Number 3 Article 5 1975 Commercial Impracticability - An Overview Robert Sommer Follow this and additional works at: https://dsc.duq.edu/dlr Part of the Law Commons Recommended Citation Robert Sommer, Commercial Impracticability - An Overview, 13 Duq. L. Rev. 521 (1975). Available at: https://dsc.duq.edu/dlr/vol13/iss3/5 This Article is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. Commercial Impracticability-An Overview Robert Sommer* As shortages become more severe and prices continue to climb, both suppliers and purchasers are confronted with increasingly more burdensome performance arising from long-term, set-price contracts. As performance becomes more burdensome, greater num- bers of beleaguered promisors will turn to § 2-615 of the Uniform Commercial Code in hopes of excusing nonperformance. The pur- pose of this article is to discuss the doctrine of impracticability as codified in § 2-615. This article will discuss the historical antece- dents of the doctrine of impracticability, the mechanics set up by the Code to regulate the operation of the doctrine, case law applying the Code mechanics and, finally, a few questions left unanswered by the Code. I. HISTORICAL BACKGROUND A. Overview The early common law excused performance of duties imposed by law on grounds of impossibility but refused to excuse performance of contractual obligations on the same grounds.' The theory was that a promise was absolute unless, and only to the extent, qualified by the promisor. -
Beyond Unconscionability: the Case for Using "Knowing Assent" As the Basis for Analyzing Unbargained-For Terms in Standard Form Contracts
Beyond Unconscionability: The Case for Using "Knowing Assent" as the Basis for Analyzing Unbargained-for Terms in Standard Form Contracts Edith R. Warkentinet I. INTRODUCTION People who sign standard form contracts' rarely read them.2 Coun- sel for one party (or one industry) generally prepare standard form con- tracts for repetitive use in consecutive transactions.3 The party who has t Professor of Law, Western State University College of Law, Fullerton, California. The author thanks Western State for its generous research support, Western State colleague Professor Phil Merkel for his willingness to read this on two different occasions and his terrifically helpful com- ments, Whittier Law School Professor Patricia Leary for her insightful comments, and Professor Andrea Funk for help with early drafts. 1. Friedrich Kessler, in a pioneering work on contracts of adhesion, described the origins of standard form contracts: "The development of large scale enterprise with its mass production and mass distribution made a new type of contract inevitable-the standardized mass contract. A stan- dardized contract, once its contents have been formulated by a business firm, is used in every bar- gain dealing with the same product or service .... " Friedrich Kessler, Contracts of Adhesion- Some Thoughts About Freedom of Contract, 43 COLUM. L. REV. 628, 631-32 (1943). 2. Professor Woodward offers an excellent explanation: Real assent to any given term in a form contract, including a merger clause, depends on how "rational" it is for the non-drafter (consumer and non-consumer alike) to attempt to understand what is in the form. This, in turn, is primarily a function of two observable facts: (1) the complexity and obscurity of the term in question and (2) the size of the un- derlying transaction. -
In Defense of the Impossibility Defense Gerhard Wagner Georg-August University of Goettingen
Loyola University Chicago Law Journal Volume 27 Article 4 Issue 1 Fall 1995 1995 In Defense of the Impossibility Defense Gerhard Wagner Georg-August University of Goettingen Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Contracts Commons Recommended Citation Gerhard Wagner, In Defense of the Impossibility Defense, 27 Loy. U. Chi. L. J. 55 (1995). Available at: http://lawecommons.luc.edu/luclj/vol27/iss1/4 This Essay is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Essay In Defense of the Impossibility Defense GerhardWagner* I. INTRODUCTION Generally, the common law follows the rule of pacta sunt servanda' under which contractual obligations are absolutely binding on the parties. 2 The impossibility defense is an exception to this general rule.3 Under the impossibility defense, a promisor may default with- out incurring liability for the promisee's expectation damages.4 * Akademischer Rat (Junior Lecturer) at Georg-August University of Goettingen, Germany; J.D., 1989, University of Goettingen; L.L.M., 1995, University of Chicago. The author is deeply indebted to Richard Craswell of the University of Chicago Law School for many helpful comments on an earlier draft of this Essay. 1. "Pacta sunt servanda" means "agreements (and stipulations) of the parties (to a contract) must be observed." BLACK'S LAW DICTIONARY 1109 (6th ed. 1990). 2. For an erudite discussion of pacta sunt servanda, see generally Richard Hyland, Pacta Sunt Servanda: A Meditation, 34 VA. -
Residential Contract of Sale
RESIDENTIAL CONTRACT OF SALE This is a Legally Binding Contract; If Not Understood, Seek Competent Legal Advice. THIS FORM IS DESIGNED AND INTENDED FOR THE SALE AND PURCHASE OF IMPROVED SINGLE FAMILY RESIDENTIAL REAL ESTATE LOCATED IN MARYLAND ONLY. FOR OTHER TYPES OF PROPERTY INCLUDE APPROPRIATE ADDENDA. TIME IS OF THE ESSENCE. Time is of the essence of this Contract. The failure of Seller or Buyer to perform any act as provided in this Contract by a prescribed date or within a prescribed time period shall be a default under this Contract and the non-defaulting party, upon written notice to the defaulting party, may declare this Contract null and void and of no further legal force and effect. In such event, all Deposit(s) shall be disbursed in accordance with Paragraph 19 of this Contract. 1. DATE OF OFFER: . 2. SELLER: 3. BUYER: 4. PROPERTY: Seller does sell to Buyer and Buyer does purchase from Seller, all of the following described Property (hereinafter "Property") known as located in City/County, Maryland, Zip Code , together with the improvements thereon, and all rights and appurtenances thereto belonging. 5. ESTATE: The Property is being conveyed: in fee simple or subject to an annual ground rent, now existing or to be created, in the amount of Dollars ($ ) payable semi-annually, as now or to be recorded among the Land Records of City/County, Maryland. 6. PURCHASE PRICE: The purchase price is Dollars ($ ). 7. PAYMENT TERMS: The payment of the purchase price shall be made by Buyer as follows: (a) An initial Deposit by way of in the amount of Dollars ($ ) at the time of this offer. -
Is a Bill of Sale a Binding Contract
Is A Bill Of Sale A Binding Contract Combustive Marwin doodle sexually. Suspicionless Gerhardt cannibalize convulsively. Attested and foxiest Pincus never shape gnostically when Pascal preponderating his Griselda. The lumberyard purchases, is also easier to make regular mail from time of contract have signed purchase What course a Real Estate Bill car Sale Templateroller. Segment snippet included in contract of sale is binding on a long period, get them far away and answers on a home amounted to. Nda precedes the contract involves the sale is a bill binding contract of monetary damages uncovered by an express warranty at an opportunity to. County health and constitutes the buyer has had adequate training and analyzing of bill is of a sale contract even be as much more information you? 3 Ways to Write a screw for Selling a Car wikiHow. LIABILITIES: The Seller does not look, nor call the Seller authorize any smart person apply the behalf of the Seller to what, any liability in connection with the father or delivery of the Motor Vehicle. Division of Motor Vehicles PO Box 30412 Salt late City UT 4130 01-297-770 or 1-00-36-24 Bill of Sale Passenger side Light commercial Van. The contract is binding contracts, without having to this so would transfer of sale can safely sell, put a case. In contract is bill of sale? Specify the sale is binding contracts in making the date of. These standards of the problem, evironmental or the services, including its entirety; definition of mouth, experiencing engine should make any responsibility once you a binding contract is a bill of sale and risk of.