Retribution in Contract Law
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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. -
Modernizing Legal L Remedies for a Toxic World
Modernizing Legal Remedies for a Toxic World A Report Prepared Professor Kenneth Rumelt, Environmental & Natural Resources Law Clinic, Vermont Law School for the Vermont Natural Resources Council and the Vermont Public Interest Research Group January 2018 INTRODUCTION .......................................................................................................................... 1 RECOMMENDATIONS ................................................................................................................ 2 Recommendation #1: Hold polluters strictly liable for any harm they cause. ............................ 2 Recent Litigation Involving PFOA Illustrates the Difficulties in Proving Negligence. ......... 3 Strict Liability Fills the Gap When Environmental Law and Regulations Fail to Protect People and the Environment Fully. ......................................................................................... 3 Strict Liability Encourages Safer Practices for Unregulated Contaminants. .......................... 4 Strict Liability is Not a New Concept in the World of Toxic Chemicals. .............................. 5 Strict Liability Helps Lower Litigation Costs. ........................................................................ 6 Strict Liability Requires No New Government Programs, Regulations, or Spending. ........... 7 Recommendation #2: Authorize by statute the right to sue for the cost of medical testing and monitoring after exposure to toxic pollution. ............................................................................ -
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. -
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. -
The Restitution Revival and the Ghosts of Equity
The Restitution Revival and the Ghosts of Equity Caprice L. Roberts∗ Abstract A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases for "suits at common law" satisfying specified dollar amounts. Restitution originated in law, equity, and sometimes both. The Restatement notably attempts to untangle restitution from the law-equity labels, as well as natural justice roots. It explicitly eschews equity’s irreparable injury prerequisite, which historically commanded that no equitable remedy would lie if an adequate legal remedy existed. Can restitution law resist hearing equity’s call from the grave? Will it avoid the pitfalls of the Supreme Court’s recent injunction cases that return to historical, equitable principles and reanimate equity’s irreparable injury rule? Losing anachronistic, procedural remedy barriers is welcome, but ∗ Professor of Law, West Virginia University College of Law; Visiting Professor of Law, The Catholic University of America Columbus School of Law. Washington & Lee University School of Law, J.D.; Rhodes College, B.A. Sincere thanks to Catholic University for supporting this research and to the following conferences for opportunities to present this work: the American Association of Law Schools, the Sixth Annual International Conference on Contracts at Stetson University College of Law, and the Restitution Rollout Symposium at Washington and Lee University School of Law. -
Must the Remedy at Law Be Inadequate Before a Constructive Trust Will Be Impressed?
St. John's Law Review Volume 25 Number 2 Volume 25, May 1951, Number 2 Article 6 Must the Remedy at Law Be Inadequate Before a Constructive Trust Will Be Impressed? St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. 1951] NOTES AND COMMENT ing has never been held to be in this category. The choice of program and set and the failure or success of a broadcaster has been left to the public. The approval or rejection of the Commission's decision will decide whether or not these same principles will apply to color telecasts. Whatever the decision of the court, and whichever system of color television broadcasting is finally approved, the controversy will at last have the finality of a decision of the United States Su- preme Court. There will have been a substantial contribution to a new field of law-television law. Under this law the industry will grow and perfect itself. In this way there will best be served the "public interest, convenience, or necessity." X MUST THIE REMEDY AT LAw BE INADEQUATE BEFORE A CONSTRUCTIVE TRUST WILL BE IMPRESSED? Introduction Generally speaking, a constructive trust is a trust by operation of law, which arises contrary to intention 1 against one, who by fraud, commission -
18-1501 Supreme Court of the United States
18-1501 IN THE Supreme Court of the United States CHARLES C. LIU AND XIN WANG A/K/A LISA WANG, Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit AMICUS CURIAE BRIEF OF THE NEW CIVIL LIBERTIES ALLIANCE IN SUPPORT OF PETITIONERS ____________ JOHN J. VECCHIONE Counsel of Record MARK CHENOWETH MARGARET A. LITTLE KARA ROLLINS New Civil Liberties Alliance 1225 19th Street NW, Suite 450 Washington, DC 20036 (202) 869-5210 Counsel for Amicus Curiae i TABLE OF CONTENTS TABLE OF AUTHORITIES ...................................... iii INTEREST OF AMICUS ............................................ 1 SUMMARY OF ARGUMENT ..................................... 3 I. THE SEC OBTAINED ITS PRESENT DISGORGEMENT POWERS BY A CAREFUL STRATAGEM OF AVOIDING TEXTUAL OR ORIGINALIST EXAMINATIONS OF ITS CLAIM TO THEM ..................................................... 5 A. How Did the SEC Obtain Its Current Disgorgement Power? .............. 5 B. The Petitioners’ Penalties Starkly Illuminate the Unbound Nature of the SEC’s Assumed Powers .................................................. 12 II. THIS COURT’S MODERN JURISPRUDENCE FORECLOSES THE REMEDY AWARDED HERE AND THE NINTH CIRCUIT MUST BE REVERSED .......................................... 14 A. The SEC Cannot Inflict Penalties Not Delineated by Statute .................................................. 15 ii B. Equity Means Equity and Not What the SEC Wants It to Mean ........ 17 C. This Disgorgement Is a Penalty and Cannot Be Countenanced in Equity ................................................... 20 D. Ruling Against the SEC Here Comports with Other Precedents of the Court .......................................... 23 CONCLUSION .......................................................... 24 iii TABLE OF AUTHORITIES CASES Australian Land Title, Ltd., 92 F.T.C. 362 (1978) ......................................... 11 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) ................................ 5, 23, 24 Central Bank of Denver v. -
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. -
1 Builders Risk Insurance
BUILDERS RISK INSURANCE: Utilizing Builder’s Risk Policies to Help Settle Construction Defect Cases Finding the Oasis in the Desert Gregory N. Ziegler Rebecca M. Alcantar Katherine K. Valent MACDONALD DEVIN, P.C. I. What is Builder’s Risk insurance? Builder’s risk insurance is a unique form of first-party property insurance that typically covers a structure under construction, the materials and equipment used in construction, and the removal of debris of covered property damaged by a covered loss. Builder’s risk insurance policies are typically purchased by the project general contractor or the owner. It is sometimes called “course of construction” coverage because it is only intended to apply during the course of construction, erection, and fabrication of a structure until the construction is considered completed. Coverage typically commences on the “start date” of the project and ends when the work is completed. i. Who is covered? Builder’s risk policies cover the interests of owners, contractors, subcontractors and others involved in the construction project. While contractors and subcontractors are typically covered, it’s a good idea for contractors and subcontractors to request being named insureds on the policy. In comparison, liability insurance covers damage to third parties, such as passersby injured by construction or for damage to adjoining property. ii. What does it cover? Typically, it is written on an “all risks basis” and covers direct physical loss from all causes except those specifically excluded. This does not mean it covers everything, so it is important to look at the exclusions. Although it is typically limited to the construction site, an insured can request coverage for property stored off site and in-transit. -
Restitution in the Restatement (Second) of Contracts Joseph Perillo Fordham University School of Law
Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 1981 Restitution in the Restatement (Second) of Contracts Joseph Perillo Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Law Commons Recommended Citation Joseph Perillo, Restitution in the Restatement (Second) of Contracts, 81 Colum. L. Rev. 37 (1981) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/788 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. Restitution in the Second Restatement of Contracts Joseph M. Perillo* The rules governing restitution in the Restatement (Second) of Contracts combine outworn dogma with audacious innovation. The new Restatement's uni- fied coverage of the topic is an important improvement on its predecessor's treat- ment of the subject; the first Restatement's chapter on restitution dealt with res- titution primarily in three contexts: as a remedy for a defendant's breach; as relief in favor of a defaulting plaintiff; and as compensation for a performance rendered under a contract unenforceable because of noncompliance with the Stat- ute of Frauds.' In the Restatement (Second) the topic expands to encompass also restitution following -
Paying for What You Get—Restitution Recovery for Breach of Contract
Pace Law Review Volume 38 Issue 2 Spring 2018 Article 7 April 2018 Paying for What You Get—Restitution Recovery for Breach of Contract Jean Fleming Powers South Texas College of Law Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Contracts Commons Recommended Citation Jean Fleming Powers, Paying for What You Get—Restitution Recovery for Breach of Contract, 38 Pace L. Rev. 501 (2018) Available at: https://digitalcommons.pace.edu/plr/vol38/iss2/7 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. POWERS.DOCX (DO NOT DELETE) 5/8/18 10:33 PM Paying for What You Get—Restitution Recovery for Breach of Contract By Jean Fleming Powers* I. INTRODUCTION Many contracts casebooks, in dealing with contract remedies, include the case Sullivan v. O’Connor,1 a case dealing with an unsuccessful nose job.2 While a case about the results of surgery at first blush seems more fitting for a torts book, Sullivan, like its iconic counterpart Hawkins v. McGee3 uses a vivid fact pattern in an atypical contracts case4 to illustrate important points about contract remedies.5 Sullivan has the added benefit of providing a launching point for a discussion of the three contracts measures of recovery: expectation, reliance, and restitution.6 If the approach of the Restatement (Third) of Restitution and Unjust Enrichment7 [hereinafter referred to as “the Restatement of Restitution,” or just “the Restatement”] * Professor of Law, South Texas College of Law Houston; J.D., University of Houston Law Center, 1978; B.A.