DOCSLIB.ORG

Contracts Mnemonics

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Contracts Mnemonics CONTRACTS MNEMONICS 1) The ingredients for a valid contract are TACO: T – Definite TERMS, express or implied A – ACCEPTANCE of terms C – CONSIDERATION O – OFFER inviting acceptance 2) An offer expires when it gets TIRED: T – Reasonable TIME after an offer is made, or after expiration date expressly stated in an offer I – Mental INCAPACITY or death of offeror or offeree R – REVOCATION of an offer communicated to an offeree before acceptance E – EXPRESS or implied rejection communicated to offeror D – DESTRUCTION of the subject matter of the offer or intervening illegality terminates an offer by operation of law 3) Options can DIE by: D – DESTRUCTION of subject matter I – Intervening ILLEGALITY E – EXPIRATION of a stated option time extinguishes the option 4) In NY, a signed writing takes the place of consideration for POP: P – PRE–EXISTING duty O – Contract OPTIONS P – PAST consideration (which must be recited in the signed writing) 5) Generally, contracting parties are free to modify a 3rd party beneficiary (3PB) K, unless, prior to receiving notice of the K modification, the 3PB got MAD: M – MANIFESTED an assent called for in the 3PB K, at the request of one of the contracting parties (i.e., accepted a K offer arising from the 3PB K) A – Commenced a breach of K ACTION against the promisor, or D – DETRIMENTALLY relied on the K ©2015 Pieper Bar Review 1 6) Contract assignments may involve the ADA: A – ASSIGNMENT of a contractual right to collect money owed under the K D – DELEGATION of the performance required under the K A – ASSUMPTION of liability for performing the K 7) A gratuitous assignment becomes irrevocable, and a second assignee prevails over a prior assignee of the contract when J.P.N.C.: J – Recovers a JUDGMENT P – Gets PAID NC – Enters a NEW CONTRACT 8) Absent express language in a K prohibiting assignment, K rights are freely assignable, except those of SIR P: S – Where a STATUTE expressly prohibits the assignment of a K right (but if that claim is reduced to judgment, it is assignable) I – Where the assignment is coupled with an IMPROPER delegation of a duty under the K to a person unqualified to fulfill that duty R – Where the assignment increased the RISK to the other contracting party P – Where the services to be rendered are highly PERSONAL in nature (because that would materially alter the bargain) 9) In New York, by statute (see SIR P), you cannot assign a WASP: W – WORKER’S COMPENSATION A – ALIMONY or child support payments S – SPENDTHRIFT TRUSTS P – PERSONAL INJURY or wrongful death causes of action 10) Look at HAIL to determine whether a breach is material or immaterial: H – HARDSHIP on breaching party if total material breach is declared A – AMOUNT of benefit bestowed on non–breaching party I – Whether breach was INNOCENT L – LIKELIHOOD of full performance being achieved 11) Breach of contract defenses are I3 FU2MED & I S2IP: I – INFANCY I – INSANITY – INCOMPETENCY I – INTOXICATION F – FRAUD U – UNCONSCIONABILITY U – UNDUE INFLUENCE M – MISTAKE E – EQUITABLE DEFENSES D – DURESS I – IMPOSSIBILITY of performance S – STATUTE OF FRAUDS S – STATUTE OF LIMITATIONS I – ILLEGALITY P – PAROLE EVIDENCE RULE ©2015 Pieper Bar Review 2 12) Lack of contractual capacity arises from the 3 I’s: I – INFANCY I – INTOXICATION I – Mental INFIRMITY 13) SI2R M is a fraud: S – SCIENTER I – D lied with an INTENT to defraud the P I – P suffered an economic INJURY R – P justifiably RELIED on D’s misrepresentation M – D misrepresented a MATERIAL fact, which induced P to enter the K 14) A unilateral mistake in calculating figures may allow the mistaken party the remedy of equity of rescission, if he calls the COPS: C – The computational mistake was COMMUNICATED to the other party before that person changed his/her position in reliance on those mistaken figures O – The mistake involved was one of ORDINARY negligence P – The mistaken party gave PROMPT notice of the mistake S – The mistake will impose SUBSTANTIAL hardship on the party if not corrected 15) The following SMART FLYS contracts must be in writing, subscribed by the party to be charged with the breach (i.e., must contain defendant’s signature): S – SURETY contracts M – MARRIAGE contracts A – ANSWER for debts discharged in bankruptcy R – REAL ESTATE contracts T – TESTAMENTARY promises (NY ONLY) F – FINDERS FEE arrangements L – LEASES longer than 1 year Y – Contracts not capable of complete performance within 1 YEAR S – UCC Article 2 SALES CONTRACTS for $500 or more 16) Use a COMB for promissory estoppel in NY: C – CHARITABLE pledges O – To avoid OUTRAGEOUSLY unconscionable results M – Oral MARRIAGE contracts B – Promises by gratuitous BAILEES to obtain insurance on bailed goods 17) There are 4 T–CUP elements for a constructive trust: T – TRANSFER of property in reliance on promise C – Existence of CONFIDENTIAL or fiduciary relationship U – UNJUST enrichment to transferee of property or to some third party, AND P – PROMISE, express or implied, to hold property for plaintiff’s benefit, which promise has been breached ©2015 Pieper Bar Review 3 18) A THUG may render an illegal contract enforceable, based on: T – TYPE of illegality & extent to which the public is harmed H – HARM that forfeiture would cause if contract was declared unenforceable due to illegality; ct looks to see whether contract has been substantially performed U – UNJUST enrichment (a windfall) to party asserting illegality defense G – Relative GUILT of each party 19) The theory of impossibility frequently involves the 4 Ds: D – DEATH D – DANGER to life/ill health D – DESTRUCTION of the subject matter of the law suit D – DELAYS, temporarily causing performance to become impracticable or impossible 20) OF MICE2 permits parole evidence: O – To establish an ORAL condition precedent to legal effectiveness of contract, provided it doesn’t contradict express term(s) of the contract F – A party cannot invoke the Parole Evidence Rule to shield that party from allegations of FRAUD or Misrepresentation M – To establish MUTUAL Mistake or claim for reformation of contract I – To establish ILLEGALITY C – To establish failure of CONSIDERATION E – To EXPLAIN ambiguous or missing terms E – To show that no ENFORCEABLE agreement was ever intended 21) Contract law does not allow damages recovery for CAPS: C – To recover consequential damages, unless they were within the CONTEMPLATION OF BOTH PARTIES when the contract was executed A – Damages that party could have AVOIDED P – Damages for PAIN & suffering or emotional distress resulting from a breached contract, even if such damages were foreseeable S – SPECULATIVE damages aren’t recoverable (all damages must be proven within a reasonable certainty) 22) Generally, parties can put whatever terms they’d like into a K, except for PLUS: P – Terms that violate PUBLIC POLICY L – Terms providing for an excessive amount of LIQUIDATED DAMAGES U – Terms that are UNCONSCIONABLE S – Clauses providing that one party can seek SPECIFIC PERFORMANCE in the event of a breach (the contract does NOT have to enforce these clauses) 23) Apply a TISSUE to a covenant restricting a former employee from competing: T – TIME restriction must be reasonable (usually two years or fewer) I – INABILITY of the employee to gain work elsewhere S – The geographic SPACE/SCOPE of the restriction must be as narrow as possible (must only be to the extent necessary to protect employer’s interest) SUE – The employee services must be SPECIAL, UNIQUE, or EXTRAORDINARY ©2015 Pieper Bar Review 4 SALES MNEMONICS 24) ICOP limits the Perfect Tender Rule: I – INSTALLMENT contracts C – Timely delivery was COMMERCIALLY IMPRACTIBLE by an event not contemplated by the parties. O – Delivery in good faith, OBJECTIVELY and reasonably believing the goods would be acceptable to the buyer P – PRIOR TO DELIVERY DATE set forth in the contract, conforming goods are delivered to replace the nonconforming goods 25) Additional terms will not be added to the contract when OCAN: O – The offeror OBJECTS to additional terms within a reasonable time C – The offer expressly CONDITIONS the agreement on accepting the terms in the offer as they are A – The additional terms materially ALTER the offer N – Either or both parties are NON–MERCHANTS 26) A J STRAW clause materially alters an offer if it would cause surprise or hardship to the offeror if the offeror was not made aware of its existence: J – Bestowing JURISDICTION on a particular court, or requiring offeror to consent to jurisdiction in particular state S – Shortening the STATUTE OF LIMITATIONS to sue for non–conforming goods T – Limiting TORT liability or limiting a buyer’s right to sue for consequential damages R – Altering UCC rules for RISK OF LOSS A – Adding an ARBITRATION CLAUSE (unless customary to do so in the trade) W – Adding a clause negating a WARRANTY (e.g., one of merchantability or fitness) 27) Exceptions to the Statute of Frauds requirement are SWAMP: S – Contracts for SPECIALLY manufactured goods W – WAIVER A – Judicial ADMISSION of contract M – “MERCHANT MEMORANDUM” P – PART PERFORMANCE 28) If a sales contract is silent on a topic, the UCC implies the following CIDER rules: C – Seller is not obligated to extend CREDIT to the buyer I – Buyer has the right to INSPECT the seller’s tendered goods (except no right to inspect when the transaction involves a bill of lading) D – Seller’s tender of DELIVERY is implied to be at seller’s place of business, unless both parties know that the goods are located elsewhere E – Buyer and seller must EXCHANGE performance concurrently R – RISK
Load more

Recommended publications
  • 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]
  • 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]
  • 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]
  • Contracts of Adhesion-Some Thoughts About Freedom of Contract
    CONTRACTS OF ADHESION-SOME THOUGHTS ABOUT FREEDOM OF CONTRACT FRIEDRICH KESSLER With the development of a free enterprise system based on an un- heard of division of labor, capitalistic society needed a highly elastic legal institution to safeguard the exchange of goods and services on the market. Common law lawyers, responding to this social need, trans- formed "contract" from the clumsy institution that it was in the six- teenth century into a tool of almost unlimited usefulness and pliability. Contract thus became the indispensable instrument of the enterpriser, enabling him to go about his affairs in a rational way. Rational be- havior within the context of our culture is only possible if agreements will be respected. It requires that reasonable expectations created by promises receive the protection of the law or else we will suffer the fate of Montesquieu's Troglodytes, who perished because they did not ful- fill their promises. This idea permeates our whole law of contracts, the doctrines dealing with their formation, performance, impossibility and damages. Under a free enterprise system rationality of the law of contracts has still another aspect.1 To keep pace with the constant widening of the market the legal system has to place at the disposal of the members of the community an ever increasing number of typical business trans- actions and regulate their consequences. But the law cannot possibly anticipate the content of an infinite number of atypical transactions into which members of the community may need to enter. Society, therefore, has to give the parties freedom of contract; to accommodate the business community the ceremony necessary to vouch for the delib- erate nature of a transaction has to be reduced to the absolute minimum.
    [Show full text]
  • Lesser Known Breach of Contract Defenses
    LESSER KNOWN BREACH OF CONTRACT DEFENSES Jack A. Walters, III Cooper & Scully, P.C. Founders Square 900 Jackson Street, Suite 100 Dallas, Texas 75202 (214) 712-9500 (214) 712-9540 fax www.cooperscully.com [email protected] 3rd Annual Construction Symposium January 25, 2008 TABLE OF CONTENTS I. INTRODUCTION...............................................................................................................1 II. BACKGROUND ON CONSTRUCTION CONTRACTS..................................................1 A. Contract Documents...............................................................................................1 B. Checklist of Issues Covered in a Contract..............................................................1 C. Definitions..............................................................................................................2 III. CONTRACT DEFENSES...................................................................................................3 A. Limitations (Statute of Limitations & Statute of Repose)......................................3 B. Standing/Privity......................................................................................................5 C. Failure of consideration / Lack of consideration....................................................6 D. Mistake 7 E. Ratification.............................................................................................................8 F. Waiver 9 G. Plaintiff's Prior Material Breach.............................................................................9
    [Show full text]
  • Amicus Brief June 29, 2016
    Amici curiae respectfully submit this brief pursuant to Maryland Rule 8-511 in support of the Maryland Court of Special Appeals’ application of the Economic Loss Rule. STATEMENT OF INTEREST Amici curiae are comprised of four national and three regional associations representing the interests of thousands of design professionals from across the country, including Maryland, who provide professional engineering, architecture, and land surveying services in the development of the built environment in which we live. The services provided by these design professionals include the preparation of plans and specifications for public infrastructure, commercial development, and residential projects, “allowing Americans to drink clean water, enjoy a healthy life, take advantage of new technologies, and travel safely and efficiently.”1 The American Council of Engineering Companies of Maryland (“ACEC-MD”) is a nonprofit association representing over 90 consulting engineering firms located throughout the state that serve the public and private sectors. Member firms employ over 6,500 employees and are responsible for the design of most of the area’s infrastructure, including environmental and building construction. Founded in 1957, the organization promotes the business interests of the consulting engineering profession in Maryland and the surrounding region. 1 About ACEC, http://www.acec.org/about/ (last visited June 29, 2016). Founded in 1968, the American Council of Engineering Companies of Virginia (“ACEC-VA”) is the largest engineering firm association in Virginia. It represents the business interests of more than 90 consulting engineering firms which employ more than 4,000 employees. ACEC-VA actively advocates on behalf of its membership, and is a leader in promoting industry excellence and professionalism.
    [Show full text]
  • Re-Defining Privity of Contract: Brown V. Belleville (City) 731
    RE-DEFINING PRIVITY OF CONTRACT: BROWN V. BELLEVILLE (CITY) 731 RE-DEFINING PRIVITY OF CONTRACT: BROWN V. BELLEVILLE (CITY) M.H. OGILVIE* I. INTRODUCTION The classical definition of the common law doctrine of privity states that “a contract cannot (as a general rule) confer rights or impose obligations arising under it on any person except the parties to it.”1 The latter part of the proposition is uncontroversial since it is universally acknowledged to be unjust for parties to agree to impose an obligation on an unsuspecting other and thereby be able to sue to enforce that obligation. The former part of the proposition is controversial, particularly where the expressed purpose of the contract is to bestow a benefit on another. The controversial part of that proposition is the implication that a third party could, by virtue of the contract, obtain a legal right to sue to enforce an agreement made for the third party’s benefit when the third party is not a party to the consideration, that is, has contributed nothing to the exchange, and, therefore, should not be entitled to enforce the agreement. By definition, contract law is about the enforcement of promises exchanged by the parties who have voluntarily consented and contributed to that exchange, and anticipate benefiting from it in a way meaningful to each other. The doctrine of consideration serves the important function of identifying the parties to the exchange, but it does not necessarily identify who is to benefit from it; a party to the consideration could well have entered the agreement to purchase something to bestow as a gift on another in the future.
    [Show full text]
  • Special Investigative Committee on Oversight Report
    HISTORY OF THE COMMITTEE The House Special Investigative Committee on Oversight (the Committee) was formed by Speaker Todd Richardson on February 27, 2018, and consists of seven members: Chairman Jay Barnes, Vice-chairman Don Phillips, Ranking Member Gina Mitten, Rep. Jeanie Lauer, Rep. Kevin Austin, Rep. Shawn Rhoads, and Rep. Tommie Pierson Jr. House Resolution 5565, adopted by a unanimous vote of the House of Representatives on March 1, 2018, established procedures for the Committee. In particular, HR 5565 empowered and required the Committee to “investigate allegations against Governor Eric R. Greitens” and “report back to the House of Representatives within forty days of such committee being appointed[.]” It further permitted the Committee to close all or a portion of hearings to hear testimony or review evidence, and to redact testimony transcripts and other evidence to protect witness identities or privacy. Subpoenas were issued to compel the appearance of witnesses and the production of documents. Every witness before the Committee testified under oath. • On February 22, 2018, Speaker Todd Richardson indicated he would form a committee to investigate allegations against Governor Greitens (Greitens). In response, counsel for Greitens stated that they would “welcome reviewing this issue with the independent, bipartisan committee of the Missouri House of Representatives.” Counsel promised to “work with the committee,” after faulting the Circuit Attorney for the City of St. Louis for refusing to meet with Greitens.1 • On February 27, 2018, the Committee was formed by Speaker Todd Richardson. • On February 28, 2018, Chairman Barnes made contact with attorneys Ed Dowd, Counsel for Greitens; Scott Simpson, counsel for Witness 1; and Al Watkins, counsel for Witness 3.
    [Show full text]
  • The Manor House: a Novel
    Bard College Bard Digital Commons Senior Projects Spring 2017 Bard Undergraduate Senior Projects Spring 2017 The Manor House: A Novel Cleo Rose Egnal Bard College, [email protected] Follow this and additional works at: https://digitalcommons.bard.edu/senproj_s2017 Part of the Fiction Commons This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Recommended Citation Egnal, Cleo Rose, "The Manor House: A Novel" (2017). Senior Projects Spring 2017. 308. https://digitalcommons.bard.edu/senproj_s2017/308 This Open Access work is protected by copyright and/or related rights. It has been provided to you by Bard College's Stevenson Library with permission from the rights-holder(s). You are free to use this work in any way that is permitted by the copyright and related rights. For other uses you need to obtain permission from the rights- holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/or on the work itself. For more information, please contact [email protected]. The Manor House: A Novel Senior Project submitted to The Division of Languages and Literature of Bard College by Cleo Egnal Annandale-on-Hudson, New York May 2017 Acknowledgments I would like to thank my family and friends for being so utterly supportive of this project. To my parents: for reading draft after draft, and for instilling in me a passion for books. To my professors: for continuing to impress in me a love for learning, and broadening my intellectual horizons. Most of all, I would like to thank my advisor, Porochista Khakpour, without whom this novel would still be a twelve-page short story tucked away in my college portfolio.
    [Show full text]
  • INDIANA LAW REVIEW [Vol
    132 INDIANA LAW REVIEW [Vol. 9:182 live damages in all bad faith breach of contract cases.** The devel- opment of punitive damage recovery in consumer contract suits*^ should increase the likelihood of such suits, thereby encouraging increased av^areness of consumers* rights. VII* Contraets and Commereial Law Gerald L. Bepko* During the past year there have been several interesting de- velopments in Indiana involving contract and commercial law. The following discussion is a cursory review of some of the most significant of those developments. Some matters which might logically be considered here are discussed in the section of this survey on consumer law. This section does not duplicate that discussion. Most significant among these other matters are developments in the subject of remedies for breach of contract. First, the Indiana Court of Appeals continued to approve punitive damage awards in breach of contract actions where the defendant's conduct was oppressive;^ secondly, the In- diana General Assembly amended a provision of the Sales Article of the Uniform Commercial Code to provide for the recovery of attorneys' fees in fraud actions.^ A, Statute of Frauds It is not unusual for a person who has been disappointed with the results of some medical procedure to sue the person under whose care the procedure was administered claiming not only negligence, but also breach of contract to produce a specific medical result.^ In cases of this kind, defendants have often ar- **''Ashman, Contracts . Punitive Damages, What's New in the Law, 61 A.B.A.J. 101 (1975). ^^See Note, The Expanding Availability of Punitive Damages in Contract Actions, 8 Ind.
    [Show full text]
  • In the United States District Court for the Northern District of Texas Dallas Division
    Case 3:13-cv-02852-D Document 44 Filed 11/06/14 Page 1 of 25 PageID <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ABRAHAM SHAKERI, et al., § § Plaintiffs, § § Civil Action No. 3:13-CV-2852-D VS. § § ADT SECURITY SERVICES, INC. § d/b/a ADT, § § Defendant. § MEMORANDUM OPINION AND ORDER In this removed action seeking damages arising from the armed robbery of a jewelry store, defendant Tyco Integrated Security LLC, f/k/a ADT Security Services, Inc. (“ADT”)1 moves under Fed. R. Civ. P. 9(b) and 12(b)(6) to dismiss plaintiffs’ claims for fraudulent inducement and violation of the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”), Tex. Bus. & Com. Code Ann. §§ 17.41-17.63 (West 2011), and it seeks to limit to $1,000 the amount of damages that can be recovered for breach of contract. For the reasons explained, the court denies ADT’s Rule 9(b) motion, grants its Rule 12(b)(6) motion, holds that the damages for breach of contract are capped at $1,000, and raises sua sponte that ADT is entitled to dismissal of plaintiffs’ separate claim for breach of the implied warranty of good and workmanlike performance of services. 1ADT Security Services, Inc. changed its name to Tyco Integrated Security LLC in June 2012. Because the name change occurred after the events giving rise to this litigation, the court will refer to the defendant as ADT. Case 3:13-cv-02852-D Document 44 Filed 11/06/14 Page 2 of 25 PageID <pageID> I Plaintiffs Abraham Shakeri (“Shakeri”) and Kahatereh Taji (“Taji”) operate a jewelry store called Neimax Jewelry (“Neimax Jewelry”).2 In 1988, shortly after the store opened, plaintiffs and the corporate entity Neimax Jewelry, Inc.
    [Show full text]
  • Stuffed Deer and the Grammar of Mistakes
    California Western School of Law CWSL Scholarly Commons Faculty Scholarship 2017 Stuffed Deer and the Grammar of Mistakes Daniel B. Yeager California Western School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/fs Part of the Criminal Law Commons Recommended Citation Yeager, Daniel B., "Stuffed Deer and the Grammar of Mistakes" (2017). Faculty Scholarship. 206. https://scholarlycommons.law.cwsl.edu/fs/206 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of CWSL Scholarly Commons. For more information, please contact [email protected]. Essay Stuffed Deer and the Grammar of Mistakes I. Introduction II. Exculpatory Mistakes III. The Concept of Mistake and Its Limits IV. Inculpatory Mistakes V. Conclusion I. Introduction Impossible attempts were first officially recognized as non-criminal in 1864.1 Not that they needed official recognition. Because “[t]he easiest cases don’t even arise,”2 that 1864 ruling literalized what then had to be a given: a person whose anti-social bent poses no appreciable risk of harm is no criminal. Over 150 years later, scholarly output on the subject persists,3 marked by thoughtful takes on the inner and outer worlds and an odd preoccupation with “imaginative hypotheticals”4 like “Lady Eldon,”5 a difficulty as unlikely to arise 1 Regina v. Collins, 169 Eng. Rep. 1477 (Crown Cases Reserved 1864). 2 K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (Posner, J.).
    [Show full text]