DOCSLIB.ORG

Unconscionability: the Approach of the Louisiana Civil Code Ronald L

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Unconscionability: the Approach of the Louisiana Civil Code Ronald L Louisiana Law Review Volume 43 | Number 6 July 1983 Unconscionability: The Approach of the Louisiana Civil Code Ronald L. Hersbergen Repository Citation Ronald L. Hersbergen, Unconscionability: The Approach of the Louisiana Civil Code, 43 La. L. Rev. (1983) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol43/iss6/1 This Front Matter is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. UNCONSCIONABILITY: THE APPROACH OF THE LOUISIANA CIVIL CODE Ronald L. Hersbergen* INTRODUCTION In 1975 Louisiana became the fiftieth state to enact the Uniform Commercial Code, but unlike its sister states, Louisiana omitted several UCC articles. As of 1983, UCC articles 2, 6, and 9 remain unadopted in Louisiana, and only article 6 remains under serious con- sideration for adoption by the Louisiana State Law Institute. For the present, articles 2 and 9 appear to be dead-letters in Louisiana, the apparent reason for inaction being a perception that the two articles are incompatible with Louisiana's underlying Civil Code principles.' By not enacting article 2 of the UCC, Louisiana remains, with Califor- nia, a jurisdiction without section 2-3022- not the most important sec- tion in the UCC, perhaps, but by far the most interesting one. The UCC section 2-302 comment advises that the section is, in essence, a grant of power to the courts to "police" contracts within the UCC's ambit and, in the court's discretion, to refuse to enforce Copyright 1983, by LOUISIANA LAW REVIEW. * Professor of Law, Louisiana State University. [Editor's note: Professor Hersbergen's article is the culmination of a research project sponsored by the Center of Civil Law Studies, Paul M. Hebert Law Center. A compan- ion article by Professor Hersbergen, Contracts of Adhesion under the Louisiana Civil Code, appearing in issue number one of this volume, was also a part of the research project sponsored by the Center of Civil Law Studies. The author wishes to express his appreciation to Saul Litvinoff, Professor of Law and Director of the Center of Civil Law Studies, Alain Levasseur, Professor of Law and Associate Director of the Center, and Professors Thomas Harrell and Alston Johnson for their assistance on the project.] 1. See Charlton, Louisiana's Civil Law Renaissance; A Bar to Adoption of the U.C.C.?, 18 AM. Bus. L.J. 1, 10-12 (1980); Mashaw, A Sketch of the Consequences for Louisiana Law of the Adoption of "Article 2: Sales" of the Uniform Commercial Code, 42 TUL. L. REV. 740 (1968); Sachse, Report to the Louisiana Law Institute On Article Nine of the Uniform Commercial Code, 41 TUL. L. REV. 505 (1967). 2. S 2-302. Unconscionable Contract or Clause (1) If the court as a matter of law finds the contract or any clause of the con- tract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable oppor- tunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination. (1978 Official Text). 1316 LOUISIANA LAW REVIEW [Vol. 43 any clause or group of clauses found to be unconscionable3 or, indeed, to refuse to enforce the'contract as a whole. The comment suggests that section 2-302 now permits courts in UCC states to do directly what in the past often was done by indirection, that is, the comment suggests that courts historically have policed unfair contracts and clauses by adverse construction of the contract language, by manipula- tion of the rules of offer and acceptance, or by resort to the always- available ideas of "public" policy. But, it may be wondered, what con- tracts require such policing in the first place and why did the most advanced society in the world, by a "vote" of forty-eight to two, decide very nearly at the time of its bicentennial that such "above-the-board" judicial policing was necessary? The answer to both inquiries is found in common law jurisprudence. Historically, the common law courts have assumed that, as a mat- ter of inherent equitable power, the enforcement of unfair contracts or clauses could be refused if the contract or clause was so onerous, oppressive, or one-sided that a reasonable person, not suffering a delu- sion, would not have freely given his consent to it.' In earlier and 3. Common law courts have not hesitated to apply the principle of unconsciona- bility to cases beyond the ambit of S 2-302, recognizing that the adoption of UCC S 2-302 is an expression of legislative will on a matter having public policy implica- tions that go beyond the scope of the UCC. See, e.g., Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (1971); C & J Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169 (Iowa 1975); Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967). Courts also have held that bailments come under UCC article 2's ambit of "trans- actions in goods," Mieske v. Bartell Drug Co., 9 Wash. 2d 40, 593 P.2d 1308 (1979), as do leases of goods, see, e.g., Fairfield Lease Corp. v. Pratt, 6 Conn. Cir. Ct. 537, 278 A.2d 154 (1971); Industralease Automated & Scientific Equip. Corp. v. R.M.E. Enter., Inc., 58 A.D.2d 482, 396 N.Y.S.2d 427 (1977); Baker v. City of Seattle, 79 Wash. 2d 198, 484 P.2d 405 (1971). Still other decisions have applied the principle of § 2-302 by analogy to checking account agreements, David v. Manufacturers Hanover Trust Co., 55 Misc. 2d 1080, 287 N.Y.S.2d 503 (Civ. Ct. 1968), rev'd on other grounds, 59 Misc. 2d 248, 298 N.Y.S.2d 847 (App. Term. 1969), to an enrollment agreement for a "com- puter programmer" course, Educational Beneficial, Inc. v. Reynolds, 67 Misc. 2d 739, 324 N.Y.S.2d 813 (Civ. Ct. 1971), to a contract for the hiring of a party room, Lazan v. Huntington Town House, Inc., 69 Misc. 2d 1017, 332 N.Y.S.2d 270 (Dist. Ct. 1969), and to an apartment lease, Seabrook v. Commuter Housing Co., 72 Misc. 2d 6, 338 N.Y.S.2d 67 (Civ. Ct. 1972), aff'd on other grounds, 79 Misc. 2d 168, 363 N.Y.S.2d 566 (App. Term 1973). As an aid to the analysis of the unenforceability of unfair contracts under the Civil Code of Louisiana, sellers, lenders, lessors, and contractors of work, labor, and services will be referred to collectively as "suppliers," while buyers, bor- rowers, lessees, and those who contract for the performance of work, labor, and ser- vices will be referred to as "consumers," unless the context otherwise requires. 4. The idea that a contract "such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other" should not be enforced typically is traced to Earl of Chesterfield v. Janssen, 2 Ves. Sec. 125, 156, 28 Eng. Rep. 82, 100 (1750). The idea germinated in certain deci- sions of the United States Supreme Court; see United States v. Bethlehem Steel Corp., 19831 UNCONSCIONABILITY 1317 simpler times, perhaps such one-sided contracts or clauses were not common, but neither was the mass production and merchandising of goods and services. With mass merchandising inevitably comes mass contracting and the standardization of transactions -and the resulting decline of negotiation and bargaining as the manner of forming con- tracts. Given the volume of transactions involved- commercial and noncommercial -standardized contracting is perhaps the only orderly method by which goods and services can be distributed in the United States today.' Unavoidably, the terms of standard-form contracts are dictated by the distributors of goods and services, and terms unfairly advantageous to the distributor are the predictable result. A legal system in which goods and services are distributed upon the premise of caveat emptor perhaps can dispense justice only upon a case-by- case resort to "adverse construction of language," "manipulation of the rules of offer and acceptance," or by determinations that certain clauses or contracts are contrary to public policy.' For the forty-eight states which enacted section 2-302, unconscio- nability is now the judicial device of choice by which the fairness of standard form contracts of adhesion is judged and adjusted. The policy of section 2-302 was eloquently stated by the New Jersey Supreme Court in Ellsworth Dobbs, Inc. v. Johnson:7 Courts and legislatures have grown increasingly sensitive to imposition, conscious or otherwise, on members of the public by persons with whom they deal, who through experience, specializa- tion, licensure, economic strength or position, or membership in associations created for their mutual benefit and education, have acquired such expertise or monopolistic or practical control in the business transaction involved as to give them an undue advan- tage. Grossly unfair contractual obligations resulting from the use of such expertise or control by the one possessing it, which result in assumption by the other contracting party of a burden which is at odds with the common understanding of the ordinary and untrained member of the public, are considered unconscionable and therefore unenforceable.
Load more

Recommended publications
  • 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.
    [Show full text]
  • Drafting and Enforcing Complex Indemnification Provisions
    Drafting And Enforcing Complex Indemnification Provisions D. Hull D. Hull Youngblood, Jr. and Peter N. Flocos Youngblood, Jr. is a partner in the Forget about copy and paste. The best indem­ Austin, Texas office nification provisions start with the details of of K&L Gates LLP. Mr. Youngblood the transaction. focuses his practice on government contracting, the security industry and com plex THE PURPOSE of this article is to assist transactional financial transactions, and regularly represents and litigation attorneys in the negotiation and drafting clients in a wide array of local, state, and federal of customized, and therefore more effective, indemnifi- contracting transactions and disputes. He can be cation provisions in a wide range of situations, and also reached at [email protected]. to spot certain litigation issues that may arise out of in- demnification provisions. This article will identify issues Peter N. and strategies and suggested language that can act as a Flocos starting point to protect the client’s interests in the area is a partner in the of indemnification in complex transactions and litigation. New York City Readers should note that this article is for informational office of K&L Gates purposes, does not contain or convey legal advice, and LLP. Mr. Flocos, may or may not reflect the views of the authors’ firm or who began his any particular client or affiliate of that firm. The infor- legal career as mation herein should not be used or relied upon in regard a transactional lawyer and then to any particular facts or circumstances without first con- became a litigator, sulting a lawyer.
    [Show full text]
  • 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.
    [Show full text]
  • Deed of Novation and Variation of The
    DEED OF NOVATION AND VARIATION OF THE SUPPLEMENTAL FUNDING AGREEMENT FOR LISKEARD HIL.LFORT PRIMARY SCHOOL The Parties to this Deed are: (1) THE SECRETARY OF STATE FOR EDUCATION of Sanctuary Buildings, Great Smith Street, London SW1P 3BT (the “Secretary of State”); (2) ADVENTURE LEARNING ACADEMY TRUST, a charitable company incorporated in England and Wales with registered company number 08614382 whose registered 12th address is at Michelmores LLP, Floor, 6 New Street Square, London, EC4A 3SF (“Outgoing Academy Trust”); and (3) TRURO & PENWITH ACADEMY TRUST, a charitable company incorporated in England and Wales with registered company number 08880841 whose registered address is at College Road, Truro, Cornwall TR1 3XX (“Incoming Academy Trust”), together referred to as the “Parties”. INTRODUCTION A. Liskeard Hillfort Primary School is an academy within the meaning of the Academies Act 2010 (the “Academy”) and is currently operated by the Outgoing Academy Trust (a multi academy trust). S. The Secretary of State and the Outgoing Academy Trust entered into a Supplemental Funding Agreement on 29 May 2014 (the “Agreement”) for the maintenance and funding of the Academy (attached as Schedule 1 “Existing Supplemental Funding Agreement”). C. It is proposed that, with effect from 00.01 am on 1 April 2019 (“Transfer Date”), the Incoming Academy Trust will assume responsibility for the management and operation of the Academy in succession to Outgoing Academy Trust. D. The Parties wish to novate the Agreement to the Incoming Academy Trust and the Secretary of State and the Incoming Academy Trust wish to vary the terms of the Agreement subject to the provisions of this Deed.
    [Show full text]
  • Acceptance and Receipt: an Anomaly in the Statute of Frauds Minn
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1953 Acceptance and Receipt: An Anomaly in the Statute of Frauds Minn. L. Rev. Editorial Board Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Editorial Board, Minn. L. Rev., "Acceptance and Receipt: An Anomaly in the Statute of Frauds" (1953). Minnesota Law Review. 2712. https://scholarship.law.umn.edu/mlr/2712 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. ACCEPTANCE AND RECEIPT: AN ANOMALY IN THE STATUTE OF FRAUDS The enactment of the English Statute of Frauds' in 1677 has been attributed to the ineffectual trial procedure of that period.2 Both the practice of awarding new trials and the development of the rules of evidence were in a formative stage.3 At that time juries could reject the evidence heard and reach a verdict on their own privately secured information,4 and the parties to the action, who were not familiar with the facts, could not testify.5 Fraud and perjury were to be prevented primarily by removing from juries any determination of liability in certain cases unless the statutory formalities were met.6 Furthermore, the turbulent times following the Civil War, the Commonwealth, and the Restoration probably encouraged claims without any foundation. 7 The present day statutes of frauds which relate to the sale of goods are derived from Section seventeen of the English Statute of Frauds.
    [Show full text]
  • Contracts Course
    Contracts A Contract A contract is a legally enforceable agreement between two or more parties with mutual obligations. The remedy at law for breach of contract is "damages" or monetary compensation. In equity, the remedy can be specific performance of the contract or an injunction. Both remedies award the damaged party the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppels. Origin and Scope Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda, which is usually translated "agreements to be kept" but more literally means, "pacts must be kept". Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations, along with tort, unjust enrichment, and restitution. As a means of economic ordering, contract relies on the notion of consensual exchange and has been extensively discussed in broader economic, sociological, and anthropological terms. In American English, the term extends beyond the legal meaning to encompass a broader category of agreements. Such jurisdictions usually retain a high degree of freedom of contract, with parties largely at liberty to set their own terms. This is in contrast to the civil law, which typically applies certain overarching principles to disputes arising out of contract, as in the French Civil Code. However, contract is a form of economic ordering common throughout the world, and different rules apply in jurisdictions applying civil law (derived from Roman law principles), Islamic law, socialist legal systems, and customary or local law. 2014 All Star Training, Inc.
    [Show full text]
  • In Dispute 30:2 Contract Formation
    CHAPTER 30 CONTRACTS Introductory Note A. CONTRACT FORMATION 30:1 Contract Formation ― In Dispute 30:2 Contract Formation ― Need Not Be in Writing 30:3 Contract Formation ― Offer 30:4 Contract Formation ― Revocation of Offer 30:5 Contract Formation ― Counteroffer 30:6 Contract Formation ― Acceptance 30:7 Contract Formation ― Consideration 30:8 Contract Formation ― Modification 30:9 Contract Formation ― Third-Party Beneficiary B. CONTRACT PERFORMANCE 30:10 Contract Performance — Breach of Contract — Elements of Liability 30:11 Contract Performance — Breach of Contract Defined 30:12 Contract Performance — Substantial Performance 30:13 Contract Performance — Anticipatory Breach 30:14 Contract Performance — Time of Performance 30:15 Contract Performance — Conditions Precedent 30:16 Contract Performance — Implied Duty of Good Faith and Fair Dealing — Non-Insurance Contract 30:17 Contract Performance — Assignment C. DEFENSES Introductory Note 30:18 Defense — Fraud in the Inducement 30:19 Defense — Undue Influence 30:20 Defense — Duress 30:21 Defense — Minority 30:22 Defense — Mental Incapacity 30:23 Defense — Impossibility of Performance 30:24 Defense — Inducing a Breach by Words or Conduct 30:25 Defense — Waiver 30:26 Defense — Statute of Limitations 30:27 Defense — Cancellation by Agreement 30:28 Defense — Accord and Satisfaction (Later Contract) 30:29 Defense — Novation D. CONTRACT INTERPRETATION Introductory Note 30:30 Contract Interpretation — Disputed Term 30:31 Contract Interpretation — Parties’ Intent 30:32 Contract Interpretation —
    [Show full text]
  • Download Download
    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.
    [Show full text]
  • SAMPLE NOTES from OUR LLB CORE GUIDE: Contract Law Privity Chapter
    SAMPLE NOTES FROM OUR LLB CORE GUIDE: Contract Law Privity chapter LLB Answered is a comprehensive, first-class set of exam-focused study notes for the Undergraduate Law Degree. This is a sample from one of our Core Guides. We also offer dedicated Case Books. Please visit lawanswered.com if you wish to purchase a copy. Notes for the LPC are also available via lawanswered.com. This chapter is provided by way of sample, for marketing purposes only. It does not constitute legal advice. No warranties as to its contents are provided. All rights reserved. Copyright © Answered Ltd. PRIVITY KEY CONCEPTS 5 DOCTRINE OF PRIVITY Under the common law: A third party cannot… enforce , be liable for, or acquire rights under … a contract to which he is not a party. AVOIDING THE DOCTRINE OF PRIVITY The main common law exceptions are: AGENCY RELATIONSHIPS ASSIGNMENT TRUSTS JUDICIAL INTERVENTION The main statutory exception is: CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 44 PRIVITY WHAT IS PRIVITY? “The doctrine of privity means that a contract cannot, as a general rule, confer PRIVITY rights or impose obligations arising under it on any person except the parties to it.” Treitel, The Law of Contract. Under the doctrine of privity: ACQUIRE RIGHTS UNDER A third party cannot BE LIABLE FOR a contract to which he is not a party. ENFORCE NOTE: the doctrine is closely connected to the principle that consideration must move from the promisee (see Consideration chapter). The leading cases on the classic doctrine are Price v Easton, Tweddle v Atkinson and Dunlop Pneumatic Tyre Co Ltd v Selfridges & Co Ltd.
    [Show full text]
  • 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.
    [Show full text]
  • United States District Court Southern District of Florida
    Case 9:16-cv-80076-RLR Document 177 Entered on FLSD Docket 04/25/2018 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 16-80076-Civ-Rosenberg/Brannon INSPIRED DEVELOPMENT GROUP, LLC, Plaintiff, v. INSPIRED PRODUCTS GROUP, LLC, Defendant. ______________________________/ REPORT AND RECOMMENDATION THIS CAUSE is before the Court on Defendant’s Motion for Its Attorneys’ Fees and Costs (“Motion”) [DE 160], Plaintiff’s response in opposition [DE 162], and Defendant’s reply [DE 165], which has been referred to the undersigned for appropriate disposition [DE 175]. Being fully advised, the Court RECOMMENDS that Defendant’s Motion [DE 160] be GRANTED IN PART and DENIED IN PART, and that Defendant be awarded $205,946.80 in attorneys’ fees and Defendant’s request for costs be denied. I. BACKGROUND This case arises from Defendant’s, Inspired Products Group, LLC (“IPG”/“Defendant”), alleged breach of its promise to pay $3 million to Plaintiff, Inspired Development Group (“IDG”/“Plaintiff”), in exchange for using IDG’s character car seat concept and licensing its patents. On December 5, 2016, IPG served on IDG a Proposal for Settlement for $300,000 pursuant to Fla. Stat. § 768.79 (the “Offer”) [DE 160-1], which IDG never accepted. Thereafter, the parties engaged in mediation and filed briefs on motions for summary judgment and motions in limine. On January 25, 2017, the Court granted summary judgment to IPG on Counts II 1 Case 9:16-cv-80076-RLR Document 177 Entered on FLSD Docket 04/25/2018 Page 2 of 14 (breach of contract), III (unjust enrichment), and IV (promissory estoppel) of the four-count complaint.1 On February 2, 2017, the remaining count, Count I for breach of contract, was dismissed with prejudice after the parties entered into a stipulated settlement agreement of $50,000, with IPG to make payment upon conclusion of the appeal or other proceedings in this case.
    [Show full text]
  • Jacob Hale Russell, Rutgers Law School DATE
    TO: UPF Civil Law Seminar Participants FROM: Jacob Hale Russell, Rutgers Law School DATE: 6 December 2017 Thanks for the opportunity to present my work-in-progress on unconscionability later this month. I’m attaching a draft of the project, which is at an early stage and still has many flaws to address. My approach and normative conclusions remain very tentative, so I am eager to hear your views, critiques, and suggestions. In addition, although the piece is not comparative in nature, I would be interested in your thoughts on whether I would benefit from any scrutiny of the distinct approaches to unfair terms in consumer contracts in EU private law and in civil law systems. (It may be that those approaches are too different to be relevant for this particular project and my pri- mary focus — how unconscionability, and more broadly consumer protection law, should deal with the heterogeneity of consumers.) I look forward to talking with you all on 18 December. 1 Unconscionability’s Resurrection Jacob Hale Russell Rutgers Law School DRAFT | December 6, 2017 Abstract Reports of unconscionability’s death are greatly exaggerated. The widespread view among courts and scholars is that the common-law con- tracts doctrine is rarely used, except in limiting clauses that purport to waive consumers’ procedural rights. As this Article documents, the doctrine ap- pears to be quietly flourishing in state courts over recent years, used to strike down substantive terms, including interest rates, in consumer finance con- tracts. To name just a few recent examples, courts have rewritten or voided payday loans, signature loans, overdraft fees, and mortgage contracts on the basis of unconscionability.
    [Show full text]