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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. -
Defendant-Sided Unjust Factors
This is a repository copy of Defendant-Sided Unjust Factors. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/95432/ Version: Accepted Version Article: Sheehan, D orcid.org/0000-0001-9605-0667 (2016) Defendant-Sided Unjust Factors. Legal Studies, 36 (3). pp. 415-437. ISSN 0261-3875 https://doi.org/10.1111/lest.12115 © 2016, The Society of Legal Scholars. This is the peer reviewed version of the following article: Sheehan, D. (2016) Defendant-sided unjust factors. Legal Studies, 36: 415–437, which has been published in final form at http://dx.doi.org/10.1111/lest.12115. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving. Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ Defendant-Sided Unjust Factors Duncan Sheehan This paper models how duress and undue influence as vitiating factors in contract and unjust enrichment affect the structure of the claimant’s intentional agency. -
Undue Influence Updated: a Framework for Recognizing, Investigating, and Responding
UNDUE INFLUENCE UPDATED: A FRAMEWORK FOR RECOGNIZING, INVESTIGATING, AND RESPONDING NATIONAL ADULT PROTECTIVE SERVICES ASSOCIATION AUGUST 20, 2019 MARY JOY QUINN, MA, RN, MFT CANDACE HEISLER, JD QUINN AND HEISLER UNDUE INFLUENCE, 2019. ALL RIGHTS RESERVED. 1 Overview of Session Psychological aspects of undue influence Legal aspects of undue influence Consent and capacity issues Two research studies ◦ 2010 Exploratory study of undue influence ◦ 2016 Development of screening tool for undue influence Case Studies California Undue Influence Screening Tool (CUIST) QUINN AND HEISLER UNDUE INFLUENCE, 2019. ALL RIGHTS RESERVED. 2 Undue Influence as a Psychological Process •Psychological process, not one time event •One person gradually takes over the thoughts, actions, and decision making powers of another person and benefits by doing so. •Accomplishes this by deceit, isolation, threats, deprivation of sleep or necessities of life, manipulation of medication, withholding information, inducing guilt, creating siege mentality, dependency, fear, fake worlds, relationship poisoning QUINN AND HEISLER UNDUE INFLUENCE, 2019. ALL RIGHTS RESERVED. 3 Legal Perspective • Legal proceedings: deal with results of undue influence ◦ Transfer of property ◦ Changes in beneficiaries of a will, ◦ Change in ownership of bank accounts. ◦ Consent? Capacity? • Federal laws ◦ Elder Justice Act and Older Americans Act –Do not define undue influence or include the term in their definitions of financial exploitation or abuse • State laws vary ◦ May mention the term undue influence but not define it ◦ May include undue influence as part of another definition: e.g., APS, Civil, Probate or Criminal ◦ Definition may be out of date and inconsistent with contemporary thought and practice ◦ State courts laws commonly include undue influence in wills, trusts, gifts, contracts QUINN AND HEISLER UNDUE INFLUENCE, 2019. -
California Breaks New Ground in the Fight Against Elder Abuse but Fails to Build an Effective Foundation Kymberleigh N
Hastings Law Journal Volume 52 | Issue 2 Article 4 1-2001 Extinguishing Inheritance Rights: California Breaks New Ground in the Fight against Elder Abuse but Fails to Build an Effective Foundation Kymberleigh N. Korpus Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Kymberleigh N. Korpus, Extinguishing Inheritance Rights: California Breaks New Ground in the Fight against Elder Abuse but Fails to Build an Effective Foundation, 52 Hastings L.J. 537 (2001). Available at: https://repository.uchastings.edu/hastings_law_journal/vol52/iss2/4 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Notes Extinguishing Inheritance Rights: California Breaks New Ground in the Fight Against Elder Abuse But Fails to Build an Effective Foundation by KYMBERLEIGH N. KoRPUs* "The breakdown of the family challenges the very foundations of American inheritance law.... On December 2, 1988, firemen responded to a call for emergency assistance and entered the home Dolores McKelvey shared with her grown children, Thomas and Theresa.2 The firemen discovered Dolores, a multiple sclerosis victim, who was paralyzed and unable even to use a wheelchair, [i]n a hospital bed lying in excrement from her ankles to her shoulders. Maggots, ants and other insects crawled upon her. She * J.D. Candidate, Hastings College of the Law, 2001; B.A. Political Science, University of California at Berkeley, 1997. -
National Bank of Harvey V. Pauly, 280 Nw2d 85
|N.D. Supreme Court| National Bank of Harvey v. Pauly, 280 N.W.2d 85 (N.D. 1979) Filed May 9, 1979 [Go to Documents] IN THE SUPREME COURT STATE OF NORTH DAKOTA The National Bank of Harvey, a national banking association, Plaintiff and Appellee v. Donald P. Pauly, d.b.a. Don Pauly Cheese, Inc., and Don Pauly Cheese, Inc., a Wisconsin corporation, Defendant and Appellant Civil No. 9563 Appeal from a Judgment of the First Judicial District Court, the Honorable John O. Garaas, Judge. AFFIRMED. Opinion of the Court by Sand, Justice. Lamb, Schaefer, McNair & Larson, P.O. Box 2189, Fargo, for Plaintiff and Appellee; argued by Leland M. Stenehjem, Jr. Schlosser & Schmitz, P.O. Box 1762, Bismarck, for Defendant and Appellant; argued by Orell D. Schmitz. [280 N.W.2d 86] National Bank of Harvey v. Pauly Civil 9563 Sand, Justice. The issue involved in this case concerns the admissibility of parol evidence to vary the terms of a written notation contained on the face of a check. The appellant, drawer of the check, argued it was error on the part of the trial court to allow the admission of parol evidence to establish an oral agreement varying the terms of a notation which stated the purpose for which the check was issued. We affirm. The National Bank of Harvey, appellee, filed a summons and complaint on 3 August 1977 seeking judgment against Donald P. Pauly, individually, and Don Pauly Cheese, Inc., a Wisconsin corporation, for payment on a $30,000 promissory note plus interest. The defendant appellant answered, asserting as an affirmative defense that the note had been satisfied as evidenced by a draft on the account of Don Pauly Cheese, dated 26 July 1975 in the amount of $30,000 payable to the National Bank of Harvey. -
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. -
Parol Evidence of Fraud Is Admissible to Prove the Invalidity of a Contract - Riverisland Cold Storage, Inc
William Mitchell Law Review Volume 40 | Issue 1 Article 5 2013 He Said She Said: Parol Evidence of Fraud Is Admissible to Prove the Invalidity of a Contract - Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass'n Kathryn Albergotti Sascha Yim Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Albergotti, Kathryn and Yim, Sascha (2013) "He Said She Said: Parol Evidence of Fraud Is Admissible to Prove the Invalidity of a Contract - Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass'n," William Mitchell Law Review: Vol. 40: Iss. 1, Article 5. Available at: http://open.mitchellhamline.edu/wmlr/vol40/iss1/5 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Albergotti and Yim: He Said She Said: Parol Evidence of Fraud Is Admissible to Prove HE SAID SHE SAID: PAROL EVIDENCE OF FRAUD IS ADMISSIBLE TO PROVE THE INVALIDITY OF A CONTRACT—RIVERISLAND COLD STORAGE, INC. V. FRESNO-MADERA PRODUCTION CREDIT ASS’N Kathryn Albergotti† and Sascha Yim†† I. INTRODUCTION ...................................................................136 II. HISTORY ..............................................................................139 A. The Parol Evidence Rule ..................................................139 B. The Codification of the Parol Evidence Rule in the California Statutes ..........................................................139 C. The Parol Evidence Rule—Case Law ................................140 D. The Exception: Permitting Parol Evidence of Fraud to Establish the Invalidity of the Instrument...........................141 E. -
The Objective Theory ®F Contract and the Rule in V Estrange V
VOL. L11 SEPTEMBER 1974 SEPTEM RE No. 3 THE OBJECTIVE THEORY ®F CONTRACT AND THE RULE IN V ESTRANGE V. GRAUCOB Halifax, N.S. Introduction In a recent article, J. R. Spencer criticizes the so-called rule in L'Estrange v. Graucob' on the ground that it contradicts the settled theory of agreement which underlies the law of contract generally? It seems, he says, to be generally accepted that a person who signs a contractual document may not dispute his agreement to any of the terms which it contains, unless he can establish one of three defences : (a) fraud, (b) misrepresentation, or (c) non est factum.' Spencer submits that this rule is wrong, and that there is a fourth defence which ought to be open to the party who signed the document, namely the defence that he simply did not agree to the term in question. Everyone says that the common law theory of agreement is, "objective", which means that the parties have to be judged by what they outwardly ap- peared to decide rather than by what they inwardly meant to decide. But this, Spencer claims, is vague, and to see what this "objective" theory really means we must look at the cases upon which it is based. One of these cases is Smith v. Hughes.' Although it usually features under "mistake", mistake is often no more than the other side of agreement. According to Smith v. Hughes, * R. A. Salnek, of the Faculty of Law, Dalhousie University, Halifax, N.S. '[193412 K.B. 394. Signature, Consent, and the 11le in L'Estrange v. -
United States District Court Eastern District of Louisiana
Case 2:02-cv-00236-HGB-ALC Document 176 Filed 04/14/08 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA BANK OF LOUISIANA CIVIL ACTION VERSUS NO. 02-0236 AETNA US HEALTHCARE, INC., SECTION: “C” (5) AETNA LIFE INSURANCE COMPANY, AND AETNA INSURANCE COMPANY OF CONNECTICUT ORDER AND REASONS Before the Court is a Motion in Limine to Exclude to Preclude Evidence Regarding Pre- Contract Matters, filed by the plaintiff, Bank of Louisiana (“BOL”) (Rec. Doc. 167). The defendants, Aetna US Healthcare, Inc., Aetna Life Insurance Company, and Aetna Insurance Company of Connecticut (“Aetna”), oppose the motion. Having considered the record, the memoranda of counsel and the law, the Court has determined that the Motion in Limine should be granted in part, and denied in part. In their motion, BOL argues that the contract between itself and Aetna was an integrated agreement, and thus, parol evidence regarding “pre-contract materials” should be excluded from evidence. In opposition, Aetna asserts that the “pre-contract materials” are necessary to clarify the terms of the agreement. Indeed, Aetna maintains that the contract’s provisions are 1 Case 2:02-cv-00236-HGB-ALC Document 176 Filed 04/14/08 Page 2 of 3 susceptible to more than one interpretation, and that parol evidence is needed to illustrate the parties’ true intentions. Finally, Aetna argues that the “pre-contract materials” are necessary to rebut BOL’s detrimental reliance claim. The general rule regarding parol evidence is contained in Louisiana Civil Code Art. 1848: Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. -
Interpretation of Words and the Parol Evidence Rule Arthur L
Cornell Law Review Volume 50 Article 3 Issue 2 Winter 1965 Interpretation of Words and the Parol Evidence Rule Arthur L. Corbin Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Arthur L. Corbin, Interpretation of Words and the Parol Evidence Rule , 50 Cornell L. Rev. 161 (1965) Available at: http://scholarship.law.cornell.edu/clr/vol50/iss2/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE INTERPRETATION OF WORDS AND THE PAROL EVIDENCE RULE* Arthur L. Corbint GROWTH OF THE LAW, IN SPITE OF LONG REPETITION OF FORMALISTic RULES At an earlier date, this author warned that "in advising clients and in predicting court decisions, it must always be borne in mind that the assumption of uniformity and certainty in the meaning of language, however erroneous, has been made so often and so long that it will be repeated many times in the future."1 This prediction has been fully borne out in the court opinions that have been published in the fourteen years since it was made. It is still being said, sometimes as the ratio decidendi but more often as a dictum representing established law, that extrinsic evidence is not admissible to aid the court in the interpretation of a written contract (an integration) if the written words are them- selves plain and clear and unambiguous. -
Admissibility of Parol Evidence to Show Non-Donative Intent in Joint Bank Accounts
DePaul Law Review Volume 4 Issue 1 Fall-Winter 1954 Article 5 Admissibility of Parol Evidence to Show Non-Donative Intent in Joint Bank Accounts DePaul College of Law Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation DePaul College of Law, Admissibility of Parol Evidence to Show Non-Donative Intent in Joint Bank Accounts, 4 DePaul L. Rev. 49 (1954) Available at: https://via.library.depaul.edu/law-review/vol4/iss1/5 This Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. COMMENTS landowners would also discourage the practice in some cases of allowing the taxes to run on land that is not likely to be sold for lack of buyers at the tax sale, in the hope of a settlement at a later time, through a consent foreclosure proceeding, for a smaller amount than the taxes due. If the lien were placed on the owner, as well as on the land, the loss through this process to the state might be lessened. The threat of a personal action for the payment of the unpaid real estate taxes should increase the number that are paid, especially on vacant land in undeveloped areas, the principal class of land on which it has been found profitable in some instances to allow the taxes to accrue. While the use of the personal method of the enforcement of a tax claim will hardly end all nonpayment of taxes, it may possibly act as some deterrent to the most flagrant violators of the tax law, those who look at it as a speculation, hoping to, in effect, discount their property tax by allowing it to accrue, and by means of a friendly foreclosure proceeding, aided by the highly technical process to obtain a merchantable title to land without the consent of the former owner, reduce the amount of tax they pay. -
Contents EXAM STRUCTURE
Laws1075 --- Contracts Contents EXAM STRUCTURE ........................................................................................................................................................................... 2 CONTRACT ............................................................................................................................................................................................ 3 I. Identify term ................................................................................................................................................................................. 3 II. Incorporation ................................................................................................................................................................................ 3 III. Wholly in writing OR Partly oral or partly written ............................................................................................................. 5 IV. Construing term ........................................................................................................................................................................... 6 V. Terminate ...................................................................................................................................................................................... 6 A. Terminate by agreement ....................................................................................................................................................... 7 B. Terminate