Good Faith As Contract's Core Value
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Third Party Beneficiaries and Contractual Networks
Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2015 Third Party Beneficiaries and Contractual Networks Alan Schwartz [email protected] Robert E. Scott Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Contracts Commons Recommended Citation Alan Schwartz & Robert E. Scott, Third Party Beneficiaries and Contractual Networks, JOURNAL OF LEGAL ANALYSIS, VOL. 7, P. 325, 2015; YALE LAW & ECONOMICS RESEARCH PAPER NO. 523 (2015). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1900 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. THIRD PARTY BENEFICIARIES AND CONTRACTUAL NETWORKS Alan Schwartz* and Robert E. Scott** Contact: Robert E. Scott Columbia Law School 435 W. 116th Street New York, New York 10027 212-854-0072 fax: 212-854-7946 [email protected] 1 Electronic copy available at: http://ssrn.com/abstract=2550436 Abstract An increasing trend of economic agents is to form productive associations such as networks, platforms and other hybrids. Subsets of these agents contract with each other to further their network project and these contracts can create benefits for, or impose costs on, agents who are not contract parties. Contract law regulates third party claims against contract parties with the third party beneficiary doctrine, which directs courts to ask whether the contracting parties “intended” to benefit a particular third party. -
Medical Buyer Fails to Prove That Letter Evidenced a Valid Requirements Contract Karina Zabicki
Loyola Consumer Law Review Volume 10 | Issue 3 Article 5 1998 Medical Buyer Fails to Prove that Letter Evidenced a Valid Requirements Contract Karina Zabicki Follow this and additional works at: http://lawecommons.luc.edu/lclr Part of the Consumer Protection Law Commons Recommended Citation Karina Zabicki Medical Buyer Fails to Prove that Letter Evidenced a Valid Requirements Contract, 10 Loy. Consumer L. Rev. 217 (1998). Available at: http://lawecommons.luc.edu/lclr/vol10/iss3/5 This Recent Case is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola Consumer Law Review by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Recent Cases And, part three required that the Unlike the defendant in EDIAS, companies in Arizona. Moreover, "exercise ofjurisdiction must be Cybersell FLs only contact with there was no evidence that any reasonable." Arizona was the information it Arizonan had enlisted Cybersell FL's Cybersell AZ relied on several posted on its web page. As a result, web assistance. Essentially, cases for support, but the court the court found EDIAS unpersuasive Cybersell FL's presence in Arizona found the cases unpersuasive for Cybersell AZ. was negligible. because the holdings were broader Instead, the Ninth Circuit The court concluded that posting than Cybersell AZ suggested. For determined that Cybersell FL took information on the Internet without example, Cybersell AZ relied on an no steps to "purposefully avail" taking steps to purposefully avail Arizona case where the court stated itself of Arizona's benefits, whereas oneself of the laws of the forum that a defendant should not "escape the defendant in EDIAS did. -
In the United States Court of Federal Claims No
In the United States Court of Federal Claims No. 10-048C (Filed: November 30, 2011) * * * * * * * * * * * * * * * * * * * * * * RICHARD CARTER AND JERRY GOODWIN, d/b/a R&J FEED, Plaintiffs, Contract; third-party beneficiary; v. Astra; mutuality; consideration THE UNITED STATES, Defendant, * * * * * * * * * * * * * * * * * * * * * * Stephen Quesenberry, Provo, Utah, with whom was Michael Quesenberry, for plaintiffs. Michael Paul Goodman, United States Department of Justice, Civil Division, Washington, D.C., with whom were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Kirk Manhardt, Assistant Director for defendant. _________ OPINION _________ BRUGGINK, Judge. This is an action for breach of an asserted contract between the United States Department of Agriculture, acting through the Commodity Credit Corporation (“CCC”), and beneficiaries of a drought relief program coordinated by the government and several states. Under the program, the federal government provided large quantities of nonfat dry milk to individual states, which distributed the nonfat dry milk to livestock producers. Before the 1 court is defendant’s motion for summary judgment and plaintiff’s1 motion for Rule 56(d) discovery. The matter is fully briefed. Oral argument was held on September 6, 2011. For the reasons discussed below, we grant in part and deny in part defendant’s motion for summary judgment and deny plaintiff’s motion for additional discovery. BACKGROUND2 The early 2000s were a time of severe drought in western states, resulting in a significant shortage in livestock feed. To ameliorate the effects of the drought, the United States Department of Agriculture (“USDA”) created a drought relief program in 2002 pursuant to 7 U.S.C. § 7285 (2006)3. -
Article Constitutional Bad Faith
VOLUME 129 FEBRUARY 2016 NUMBER 4 © 2016 by The Harvard Law Review Association ARTICLE CONSTITUTIONAL BAD FAITH David E. Pozen CONTENTS INTRODUCTION ............................................................................................................................ 886 I. BAD FAITH BASICS ............................................................................................................... 890 II. JUDICIAL TOLERATION OF CONSTITUTIONAL BAD FAITH ..................................... 896 A. Doctrinal Responses ......................................................................................................... 897 1. Explicit Enforcement Zones ....................................................................................... 898 2. Implicit Enforcement Zones ....................................................................................... 902 3. Nonenforcement Zones ................................................................................................ 905 B. Explanations ...................................................................................................................... 909 III. VARIETIES OF CONSTITUTIONAL BAD FAITH ............................................................. 918 A. Subjective Bad Faith ....................................................................................................... 920 1. Dishonesty .................................................................................................................... 920 2. Disloyalty ..................................................................................................................... -
Scott Pearce's Master Essay Method Contracts
Scott Pearce's Master Essay Method Contracts CONTRACTS APPROACH Minimalist Approach I. Formation II. Defenses to Formation III. Breach IV. Defenses to Breach V. Remedies A. Damages B. Restitution C. Contracts Remedies: Reformation and Rescission D. Equity (Specific Performance) VI. Defenses to Remedies Elaborate Approach A thoughtful applicant needs to make two decisions about any contracts question before doing the analysis: 1. Does the common law or the Uniform Commercial Code apply? 2. Which party is aggrieved? (Who is the "good guy" and who is "bad") Once you have decided these threshold issues, proceed to make a careful examination of the facts through the following intellectual framework: Scott Pearce’s Master Essay Method - Contracts Approach I. Formation: Is there a contract? A. Offer 1. Intent of the offeror to be bound 2. Content of the offer a. Parties b. Subject Matter c. Quantity d. Price 3. Communication of offer to offeree B. Acceptance C. Consideration: a bargained-for exchange II. Defenses to Formation A. Incapacity B. Infancy C. Fraud / Duress D. Statute of Frauds E. Mistake III. Terms of the Contract A. Express Terms B. Implied Terms 1. Prior Dealings 2. Custom and Usage C. Oral Contracts: Parol Evidence Rule Scott Pearce’s Master Essay Method - Contracts Approach IV. Rights of Non Contracting Parties A. Third Party Beneficiaries (vesting rules) B. Assignment of Rights may create third party beneficiaries. C. Delegation of Duties always creates third party beneficiaries. V. Conditions A. Satisfaction of Conditions B. Discharge of Conditions C. Excuse of Conditions VI. Breach A. Minor Breach 1. Substantial performance of the contract by the breaching party 2. -
Case: 4:05-Cv-01772-CDP Doc. #: 182 Filed: 08/04/08 Page: 1 of 27 Pageid
Case: 4:05-cv-01772-CDP Doc. #: 182 Filed: 08/04/08 Page: 1 of 27 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION FOAM SUPPLIES, INC., ) ) Plaintiff, ) ) vs. ) Case No. 4:05CV1772 CDP ) THE DOW CHEMICAL ) COMPANY, ) ) Defendant. ) MEMORANDUM OPINION Plaintiff Foam Supplies, Inc. (FSI) was both a customer and a competitor of defendant The Dow Chemical Company. FSI brought this suit because Dow failed to sell it quantities of methyl diphenyl diisocyanate that FSI contends were required by a contract. The remaining claims are breach of sales contract, tortious interference with business expectancy, fraudulent misrepresentation, and breach of non-disclosure agreement. Dow seeks summary judgment on the remaining claims. Because the case is set for trial in three weeks, I entered an order ruling on these motions last week, even though I was not yet ready to issue an opinion explaining the reasons for my rulings. This opinion contains those reasons. Dow is entitled to judgment as a matter of law on the fraud and breach of non-disclosure agreement claims, as FSI’s proof of several of the essential Case: 4:05-cv-01772-CDP Doc. #: 182 Filed: 08/04/08 Page: 2 of 27 PageID #: <pageID> elements of these claims is lacking. FSI’s breach of contract claim, even if proved at trial, could not support its claim for lost profits, because the contract contains a valid limitation of liability provision excluding consequential damages. Genuine disputes remain on all other elements of the breach of contract claim, which survives because FSI has other claims of damages. -
Force Majeure and Common Law Defenses | a National Survey | Shook, Hardy & Bacon
2020 — Force Majeure SHOOK SHB.COM and Common Law Defenses A National Survey APRIL 2020 — Force Majeure and Common Law Defenses A National Survey Contractual force majeure provisions allocate risk of nonperformance due to events beyond the parties’ control. The occurrence of a force majeure event is akin to an affirmative defense to one’s obligations. This survey identifies issues to consider in light of controlling state law. Then we summarize the relevant law of the 50 states and the District of Columbia. 2020 — Shook Force Majeure Amy Cho Thomas J. Partner Dammrich, II 312.704.7744 Partner Task Force [email protected] 312.704.7721 [email protected] Bill Martucci Lynn Murray Dave Schoenfeld Tom Sullivan Norma Bennett Partner Partner Partner Partner Of Counsel 202.639.5640 312.704.7766 312.704.7723 215.575.3130 713.546.5649 [email protected] [email protected] [email protected] [email protected] [email protected] SHOOK SHB.COM Melissa Sonali Jeanne Janchar Kali Backer Erin Bolden Nott Davis Gunawardhana Of Counsel Associate Associate Of Counsel Of Counsel 816.559.2170 303.285.5303 312.704.7716 617.531.1673 202.639.5643 [email protected] [email protected] [email protected] [email protected] [email protected] John Constance Bria Davis Erika Dirk Emily Pedersen Lischen Reeves Associate Associate Associate Associate Associate 816.559.2017 816.559.0397 312.704.7768 816.559.2662 816.559.2056 [email protected] [email protected] [email protected] [email protected] [email protected] Katelyn Romeo Jon Studer Ever Tápia Matt Williams Associate Associate Vergara Associate 215.575.3114 312.704.7736 Associate 415.544.1932 [email protected] [email protected] 816.559.2946 [email protected] [email protected] ATLANTA | BOSTON | CHICAGO | DENVER | HOUSTON | KANSAS CITY | LONDON | LOS ANGELES MIAMI | ORANGE COUNTY | PHILADELPHIA | SAN FRANCISCO | SEATTLE | TAMPA | WASHINGTON, D.C. -
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. -
Choice of Law and the Covenant of Good Faith and Fa
RETAIL AND HOSPITALITY When—or Should We Say Where— Choice of Law and Is Compliance with a Contract also a Breach? the Covenant of By Leon Silver Good Faith and Fair Dealing Carelessness in drafting In my practice, my national and regional retail clients contract language can most often opt for the company’s headquarters’ home state result in your client’s as both the exclusive forum and the source for the control- company undertaking ling law in their master vendor agreements as well as any number of other contracts. While the prac- implies the duty of good faith and fair obligations and becoming tical realities of having to manage litigation dealing in every contract, and because the that could conceivably occur anywhere in states apply the duty differently, if you and exposed to liabilities the country make the forum choice a seem- your clients have not become aware of the ingly straightforward decision, I have often how the controlling jurisdiction treats the that the company never found that contract drafters do not give covenant of good faith and fair dealing, you the choice of law provision enough criti- can find your client’s sober and reasoned anticipated because the cal thought. This is particularly so because business decisions turned on their heads. the choice of controlling law may have the law implies duties that unintended and completely surprising con- Arizona: The Broadest View sequence of making conduct that complies Arizona sits at the broadest end of the good you cannot otherwise with the terms of a contract still actionable faith and fair dealing spectrum. -
Lucarell V. Nationwide Mut. Ins. Co., 152 Ohio St.3D 453, 2018-Ohio-15.]
[Cite as Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15.] LUCARELL, APPELLEE, v. NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT. [Cite as Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15.] Contracts—Breach of contract—Punitive damages—Implied duty of good faith and fair dealing—Release of liability—Prevention-of-performance doctrine— Fraud—Punitive damages are not recoverable in a breach-of-contract action—When a breach of contract involves conduct that also constitutes a tort, punitive damages may be awarded only for the tort, not for the breach, and any punitive damages awarded are subject to the statutory limitations on punitive damages imposed in R.C. 2315.21—A party to a contract does not breach the implied duty of good faith and fair dealing by seeking to enforce the agreement as written or by acting in accordance with its express terms, nor can there be a breach of the implied duty unless a specific obligation imposed by the contract is not met—An unconditional release of liability becomes effective upon execution and delivery and bars any claims encompassed within it unless it was procured by fraud, duress, or other wrongful conduct—A party seeking to avoid a release of liability on the basis that it was procured under duress is required to prove duress by clear and convincing evidence—The prevention-of-performance doctrine, which states that a party who prevents another from performing a contractual obligation may not rely on that failure of performance to assert a claim for breach of contract, is not a defense to a release of liability and therefore cannot be asserted as a defense to a release—A fraud claim cannot be predicated on predictions or projections relating to future performance or on misrepresentations made to third parties. -
Good Faith and Fair Dealing - Alive and Well Or Is It a Matter of Business Judgment?
American Bar Association 39th Annual Forum on Franchising ____________________________________________________________ GOOD FAITH AND FAIR DEALING - ALIVE AND WELL OR IS IT A MATTER OF BUSINESS JUDGMENT? Erica L. Calderas Hahn Loeser & Parks LLP Cleveland, Ohio and Jason M. Murray Murray Law, P.A. Miami, FL November 2-4, 2016 Miami Beach, FL ____________________________________________________________ ©2016 American Bar Association Table of Contents Page I. INTRODUCTION .............................................................................................................1 II. THE DUTY OF GOOD FAITH AND FAIR DEALING IN THE FRANCHISE CONTEXT .......................................................................................................................1 A. Source and Nature of the Duty of Good Faith and Fair Dealing ............................ 1 B. What Does It Mean To Act With Good Faith and Fair Dealing? ............................ 3 C. Express Contract Terms and the Waiver of the Implied Covenant ....................... 4 D. The Tension Between Franchisors and Franchisees When It Comes To The Implied Covenant of Good Faith and Fair Dealing ......................................... 6 III. THE BUSINESS JUDGMENT RULE IN THE FRANCHISE CONTEXT ........................... 8 A. The Nature of the Business Judgment Rule From Corporate Law ........................ 8 B. Translating the Business Judgment Rule to Franchise Law ................................. 8 C. The Developing Law on the Business Judgment Rule ...................................... -
Part II Interpretation Applying the Vienna Convention on the Law of Treaties, a the General Rule, 5…
ICC-02/05-01/09-389-Anx3 28-09-2018 1/55 RH PT OA2 9/25/2018 Oxford Public International Law: Part II Interpretation Applying the Vienna Convention on the Law of Treaties, A The General Rule, 5… Part II Interpretation Applying the Vienna Convention on the Law of Treaties, A The General Rule, 5 The General Rule: (1) The Treaty, its Terms, and their Ordinary Meaning From: Treaty Interpretation (2nd Edition) Richard Gardiner Previous Edition (1 ed.) Content type: Book content Product: Oxford Scholarly Authorities on Series: Oxford International Law Library International Law [OSAIL] ISBN: 9780199669233 Published in print: 01 June 2015 Subject(s): Vienna Convention on the Law of Treaties — Good faith — Ordinary meaning (treaty interpretation and) — Object & purpose (treaty interpretation and) http://proxy.ppl.nl:2061/view/10.1093/law/9780199669233.001.0001/law-9780199669233-chapter-5?print 1/55 ICC-02/05-01/09-389-Anx3 28-09-2018 2/55 RH PT OA2 9/25/2018 Oxford Public International Law: Part II Interpretation Applying the Vienna Convention on the Law of Treaties, A The General Rule, 5… (p. 161) 5 The General Rule: (1) The Treaty, its Terms, and their Ordinary Meaning Treaty—good faith—ordinary meaning—terms—context—object and purpose Interpretation under Article 31 of the Vienna Convention is a process of progressive encirclement where the interpreter starts under the general rule with (1) the ordinary meaning of the terms of the treaty, (2) in their context and (3) in light of the treaty’s object and purpose, and by cycling through this three step inquiry iteratively closes in upon the proper interpretation.