When Does an Additional Term Materially Alter a Contract?
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
Parol Evidence Rules and the Mechanics of Choice
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2019 Parol Evidence Rules and the Mechanics of Choice Gregory Klass Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2048 https://ssrn.com/abstract=3150616 Gregory Klass, Parol Evidence Rules and the Mechanics of Choice, 20 Theoretical Inq. L. 457 (2019). This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Contracts Commons, and the Evidence Commons 457 Parol Evidence Rules and the Mechanics of Choice Gregory Klass* Scholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, however, are as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard express integration rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms should automatically be integrated against consumer- side communications, and never integrated against a business’s communications. The argument for each rule rests on the ways parties make and express contractual choices in these types of transactions. Whereas Dagan and Heller emphasize the different values at stake in different spheres of contracting, differences among parties’ capacities for choice — or the “mechanics of choice” — are at least as important. -
Practical Law, Joining Nonsignatories to an Arbitration in the US
PRACTICE NOTE Joining Nonsignatories to an Arbitration in the US by Practical Law Litigation and Practical Law Arbitration, based on an article authored by Allan Van Fleet, G. Allan Van Fleet, P.C., and Mark A. Correro, Correro & Leisure, P.C. Status: Maintained | Jurisdiction: United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-011-3186 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial This Practice Note examines the circumstances under which a party not signing an arbitration agreement may participate in an arbitration. The Note explains when a nonparty to an arbitration agreement can join a signatory, when a party can join a nonsignatory, whether the issue is decided by courts or arbitrators, and when parties to the arbitration can enforce arbitral awards against third parties not signing or participating in the arbitration. Scope of This Note Judicial Assistance in Joining This Note explains the circumstances under which a Nonsignatories to an Arbitration nonsignatory to an arbitration agreement may participate in an arbitration proceeding. Nonsignatories may be joined, Choice of Law for example, where there are multiple interdependent A US court’s approach to joining a nonsignatory contracts or where not all participants of a commercial to an arbitration depends on the relevant state transaction are parties to the agreement containing law principles on the validity, revocability, and the arbitration clause. This issue often arises where a enforceability of contracts (Perry v. Thomas, 482 U.S. contracting party is a member of a group of companies 483, 493, n.9 (1987)). -
Growing with Purpose, Sustainability
Growing with purpose Sustainability Report 2019 Sustainability Report 2019 Table of contents / 2 Table of contents Engagement 56 Introduction 3 Our Corporate Sustainability Strategy 11 Social investment programs 57 Message from our President and CEO 4 Environmental 15 Disaster recovery 60 A note about Kelly’s COVID-19 response 5 Environment 17 A timeline of Kelly’s Corporate Sustainability Strategy 6 Energy efficiency 19 Governance 61 Our business 7 Water consumption 22 Ethics and business conduct 63 Governance 64 Mergers, acquisitions, investments, and divestitures 8 Waste management 22 Code of Business Conduct and Ethics 65 Kelly by the numbers 9 Occupational health & safety 23 Privacy and data protection 66 Recognition 10 Occupational health & safety: employees 24 Occupational health & safety: customers 24 Communication and reporting 67 Internal communications 68 Social 27 Employees and people 29 External communications - sustainability standards 69 Our people 30 Transparency and integrity line 69 Diversity and inclusion 41 How we report 70 Human rights 45 Materiality 71 Supply chain and customer relations 46 Stakeholder engagement 73 Our supply chain (KellyOCG) 49 Supplier risk management 52 About this report 76 S upplier Code of Conduct 53 GRI index 78 Diverse supplier strategy 54 Sustainability Report 2019 Table of contents / 3 Introduction Message from our President and CEO A note about Kelly’s COVID-19 response A timeline of Kelly’s Corporate Sustainability Strategy Our business Mergers, acquisitions, investments, and divestitures Kelly by the numbers Recognition Sustainability Report 2019 Introduction / Message from our President and CEO Table of contents / 4 Message from our President and CEO At Kelly®, we know who we are. -
Is Your Arbitration Clause Enforceable?
Is Your Arbitration Clause Enforceable? Is your agreement to arbitrate disputes ironclad? You may be wrong. A recent Hawaii Court of Appeals decision proposes a modification to the theory to which many have subscribed: ambiguous text renders the arbitration agreement as hollow. In this case, determining whether the arbitration agreement was enforceable Sarah E. Carson Partner hinged on indirect evidence of the parties’ intent to be bound by the Raleigh, North Carolina agreement to arbitrate, not merely the provisions in the contract. Washington, D.C. Atlanta, Georgia T: 919.455.0171 The Arbitration Agreement and Supplemental Conditions E: [email protected] In Safeway, Inc. v. Nordic PCL Constr., Inc., 312 P.3d 1224 (Haw. Ct. App. 2013) the owner, a supermarket chain, sued the general contractor for damages associated with a water leak in the store. In moving to compel arbitration, the general contractor relied on language in the AIA A101 Standard Form of Agreement Between Owner and Contractor (the “Contract”), which required disputes to be arbitrated. The owner responded with a two tiered attack. First, the owner argued that a specific clause in the Supplemental Conditions voided the agreement to arbitrate. Second, the owner reasoned that the present dispute over the text of the contract as a whole demonstrates the arbitration agreement’s ambiguity and thus, it must be voided. Determining the contract was “confusing as heck to me,” the trial court judge adopted the owner’s argument as to the ambiguity of the text: “because there’s more than one reasonable interpretation of the arbitration agreement, the agreement itself is ambiguous.” The contractor appealed that ruling. -
UCC “Battle of the Forms” and Arbitrability
What Arbitrators Need to Know: UCC “Battle of the Forms” and Arbitrability CHARTERED INSTITUTE OF ARBITRATORS | JULY 9, 2020 Speakers • Drafts arbitration agreements and advises on consumer arbitration programs. • Litigated over a dozen motions to compel arbitration. • Litigated hotly contested threshold issues of arbitrability. • E.g., does a judge or an arbitrator decide if an arbitration agreement permits class arbitration? • Decided arbitrability as a neutral many times. • Charles E. Harris, II Rejected the claimant’s procedural unconscionability arguments and found that some of the Partner, Mayer Brown claims in the demand fell within the arbitration agreement and some did not. • Drafts and reviews arbitration agreements. • Represents multinational companies before domestic and international arbitral tribunals, including JAMS, AAA, ICC, ICDR and SIAC. • Obtains and defends against judicial review of arbitration awards. • Fellow of the Chartered Institute of Arbitrators. • Center for Conflict Resolution Trained Mediator. Sarah E. Reynolds Partner, Mayer Brown 2 Agenda • Delegation of Arbitrability • UCC Article 2 Battle of the Forms Provision • COVID-19-Related Supply Chain Scenario • Hypotheticals • Questions and Comments 3 Delegation of Questions of Arbitrability to the Arbitrator • Arbitrability generally raises two questions: 1. whether there is a valid arbitration agreement, and 2. whether the particular dispute falls within the scope of that agreement. • As a general rule, courts, not arbitrators, decide arbitrability. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002). • The parties may delegate arbitrability to the arbitrator as long as they do so by clear and unmistakable evidence. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942-46 (1995); Rent-A-Center, W., Inc. -
Unconscionability Wars †
Copyright 2012 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 106, No. 1 UNCONSCIONABILITY WARS † David Horton ABSTRACT —For decades, courts have invoked the contract defense of unconscionability to invalidate one-sided arbitration clauses. Recently, however, a growing cadre of judges, scholars, and litigants has asserted that this practice is incompatible with the Federal Arbitration Act (FAA). Some claim that the FAA only permits arbitrators—not courts—to find arbitration clauses to be unconscionable. Others, such as Justice Thomas—who provided the decisive vote in the Court’s recent decision in AT&T Mobility LLC v. Concepcion —contend that the statute’s plain language immunizes arbitration clauses from unconscionability in all circumstances. This Essay responds to these arguments. In particular, it challenges the cornerstone of both anti-unconscionability theories: that the FAA’s text only allows courts to strike down arbitration clauses for reasons that relate to the “making” of the agreement to arbitrate. AUTHOR —Acting Professor of Law, University of California, Davis, School of Law (effective July 2012); Associate Professor of Law, Loyola Law School, Los Angeles (through July 2012). Thank you to Hiro Aragaki and Stephen J. Ware for helpful comments. † This Essay was originally published in the orthwestern University Law Review Colloquy on August 22, 2011, 106 NW. U. L. REV . COLLOQUY 13 (2011), http://www.law.northwestern.edu/ lawreview/colloquy/2011/17/LRColl2011n17Horton.pdf. 387 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W INTRODUCTION ............................................................................................................ -
The Implied Warranty of Merchantability in Software Contracts: a Warranty No One Dares to Give and How to Change That, 16 J
The John Marshall Journal of Information Technology & Privacy Law Volume 16 Issue 2 Journal of Computer & Information Law Article 6 - Winter 1997 Winter 1998 The Implied Warranty of Merchantability in Software Contracts: A Warranty No One Dares to Give and How to Change That, 16 J. Marshall J. Computer & Info. L. 393 (1998) Robert W. Gomulkiewicz Follow this and additional works at: https://repository.law.uic.edu/jitpl Part of the Computer Law Commons, Contracts Commons, Internet Law Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation Robert W. Gomulkiewicz, The Implied Warranty of Merchantability in Software Contracts: A Warranty No One Dares to Give and How to Change That, 16 J. Marshall J. Computer & Info. L. 393 (1998) https://repository.law.uic.edu/jitpl/vol16/iss2/6 This Symposium is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in The John Marshall Journal of Information Technology & Privacy Law by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. THE IMPLIED WARRANTY OF MERCHANTABILITY IN SOFTWARE CONTRACTS: A WARRANTY NO ONE DARES TO GIVE AND HOW TO CHANGE THAT by ROBERT W. GOMULKIEWICZt "There is no more puzzling question than what this word [merchanta- ble] means." 1 Karl Llewellyn A disclaimer of ALL IMPLIED WARRANTIES, INCLUDING WITH- OUT LIMITING THE IMPLIED WARRANTY OF MERCHANTABIL- ITY, greets virtually everyone who prepares to use a computer software product. 2 Software publishers disclaim the implied warranty of merchantability because they do not know what they might be promising if they give it. -
Breach of Warranty
This chapter was first published by IICLE Press. Book containing this chapter and any forms referenced herein is available for purchase at www.iicle.com or by calling toll free 1.800.252.8062 PART III — CONTRACT AND BUSINESS DISPUTES 15 Breach of Warranty CHRISTOPHER TOMPKINS Jenner & Block LLP Chicago A. [15.1] Cause of Action This chapter provides an overview of the cause of action for breach of warranty in connection with the sale of goods. Claims for breach of warranty involving goods are governed by the Uniform Commercial Code (UCC), 810 ILCS 5/1-101, et seq. A seller of goods may provide a number of different warranties that arise through representations, statements, or actions of the buyer or are implied by the UCC. These warranties are set forth in §§2-312 through 2-315 of the UCC, 810 ILCS 5/2-312 through 5/2-315. If the goods delivered to a buyer fail to meet the standards imposed by these warranties, the buyer may be able to recover damages for resulting economic loss, property damage, or personal injury. B. [15.2] What Law Controls For the warranty provisions of the Uniform Commercial Code to apply, the transaction must first come within the scope of Article 2 of the UCC. Article 2 applies to “transactions in goods.” 810 ILCS 5/2-102. While this test is conceptually simple to apply, there are a great many contracts that involve both goods and services. Nationwide, courts have adopted a number of different approaches to determine whether a mixed contract falls within Article 2. -
In the United States District Court for the Eastern District of Pennsylvania
Case 2:09-cv-03532-JCJ Document 17 Filed 01/26/10 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CLARET CAPITAL NOMINEES, et al., : : Plaintiffs, : CIVIL ACTION : v. : No. 09-cv-3532 : JOHN BENETT, et al., : : Defendants. : MEMORANDUM AND ORDER Joyner, J. January 25, 2010 This case is now before the Court on Plaintiffs’ Motion for Summary Judgment (Doc. No. 8). For the reasons set forth below, Plaintiffs’ Motion for Summary Judgment is GRANTED, and judgment is entered in favor of Plaintiffs in the amount of $3,449,000. Factual Background The factual background of this case has been set forth in detail in this Court’s Memorandum of November 30, 2009 (Doc. No. 12), denying Defendants’ Motion to Dismiss. We will, therefore, only provide a brief overview that will include any additional facts provided by the parties in their summary judgment filings. In the summer of 2008 the parties were involved in litigation before this Court. The parties settled the case and signed a Settlement Agreement, which gives rise to their present dispute. Pursuant to the Settlement Agreement and a Promissory Note, both signed on December 15, 2008, Defendants were to pay 1 Case 2:09-cv-03532-JCJ Document 17 Filed 01/26/10 Page 2 of 15 Plaintiffs $5 million in $1 million installments. On December 23, 2008, the parties also executed an Intercreditor and Subordination Agreement (“ISA”) between themselves and the Wilmington Savings Fund Society (“WSFS”). The ISA made all of the settlement loan documents subordinate to loans made by WSFS to Defendants. -
United States District Court Northern District of Ohio Eastern Division
Case: 1:19-cv-02024-CAB Doc #: 14 Filed: 05/26/20 1 of 13. PageID #: <pageID> UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION ADRIAN VLAD, ET AL., ) CASE NO. 1:19CV2024 ) Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO ) vs. ) ) DGI TRUCKING, INC., ) OPINION AND ORDER ) Defendant. ) CHRISTOPHER A. BOYKO, J: This matter is before the Court on Defendant DGI Trucking, Inc.’s Motion to Stay Proceedings Pending Arbitration. (ECF # 5). For the following reasons, the Court grants, in part, Defendant’s Motion to Stay. The Court will stay the litigation in order to allow the Magistrate Judge assigned to the case to hold an evidentiary hearing on whether the parties clearly and unmistakably agreed to delegate questions or arbitrability to the arbitrator. The Magistrate upon completion of the evidentiary hearing shall provide the Court a Report and Recommendation on the issue for the Court’s approval. According to Plaintiffs’ Complaint, Plaintiffs Adrian Vlad (“Vlad”) Lucian Solomon (“Solomon”), Daniel Varvaruc (“Varvaruc”) and Daniel Tarog (“Tarog”) are owner-operator, independent truck drivers who entered into lease agreements with Defendant DGI Trucking, Case: 1:19-cv-02024-CAB Doc #: 14 Filed: 05/26/20 2 of 13. PageID #: <pageID> Inc. (“DGI”), an authorized carrier. Under federal regulations, authorized carriers like DGI may transport interstate using equipment it does not own so long as the equipment is covered by a written lease that conforms to the requirements of 49 CFR § 376. Each Plaintiff entered into multiple lease agreements with DGI. According to Plaintiffs, DGI failed to include several provisions in the lease agreements required under law. -
Unit 6 – Contracts
Unit 6 – Contracts I. Definition A contract is a voluntary agreement between two or more parties that a court will enforce. The rights and obligations created by a contract apply only to the parties to the contract (i.e., those who agreed to them) and not to anyone else. II. Elements In order for a contract to be valid, certain elements must exist: (A) Competent parties. In order for a contract to be enforceable, the parties must have legal capacity. Even though most people can enter into binding agreements, there are some who must be protected from deception. The parties must be over the age of majority (18 under most state laws) and have sufficient mental capacity to understand the significance of the contract. Regarding the age requirement, if a minor enters a contract, that agreement can be voided by the minor but is binding on the other party, with some exceptions. (Contracts that a minor makes for necessaries such as food, clothing, shelter or transportation are generally enforceable.) This is called a voidable contract, which means that it will be valid (if all other elements are present) unless the minor wants to terminate it. The consequences of a minor avoiding a contract may be harsh to the other party. The minor need only return the subject matter of the contract to avoid the contract. if the subject matter of the contract is damaged the loss belongs to the nonavoiding party, not the minor. Regarding the mental capacity requirement, if the mental capacity of a party is so diminished that he cannot understand the nature and the consequences of the transaction, then that contract is also voidable (he can void it but the other party can not). -
Beyond Unconscionability: the Case for Using "Knowing Assent" As the Basis for Analyzing Unbargained-For Terms in Standard Form Contracts
Beyond Unconscionability: The Case for Using "Knowing Assent" as the Basis for Analyzing Unbargained-for Terms in Standard Form Contracts Edith R. Warkentinet I. INTRODUCTION People who sign standard form contracts' rarely read them.2 Coun- sel for one party (or one industry) generally prepare standard form con- tracts for repetitive use in consecutive transactions.3 The party who has t Professor of Law, Western State University College of Law, Fullerton, California. The author thanks Western State for its generous research support, Western State colleague Professor Phil Merkel for his willingness to read this on two different occasions and his terrifically helpful com- ments, Whittier Law School Professor Patricia Leary for her insightful comments, and Professor Andrea Funk for help with early drafts. 1. Friedrich Kessler, in a pioneering work on contracts of adhesion, described the origins of standard form contracts: "The development of large scale enterprise with its mass production and mass distribution made a new type of contract inevitable-the standardized mass contract. A stan- dardized contract, once its contents have been formulated by a business firm, is used in every bar- gain dealing with the same product or service .... " Friedrich Kessler, Contracts of Adhesion- Some Thoughts About Freedom of Contract, 43 COLUM. L. REV. 628, 631-32 (1943). 2. Professor Woodward offers an excellent explanation: Real assent to any given term in a form contract, including a merger clause, depends on how "rational" it is for the non-drafter (consumer and non-consumer alike) to attempt to understand what is in the form. This, in turn, is primarily a function of two observable facts: (1) the complexity and obscurity of the term in question and (2) the size of the un- derlying transaction.