Mirror Image Rule Contracts
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Contracts Course
Contracts A Contract A contract is a legally enforceable agreement between two or more parties with mutual obligations. The remedy at law for breach of contract is "damages" or monetary compensation. In equity, the remedy can be specific performance of the contract or an injunction. Both remedies award the damaged party the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppels. Origin and Scope Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda, which is usually translated "agreements to be kept" but more literally means, "pacts must be kept". Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations, along with tort, unjust enrichment, and restitution. As a means of economic ordering, contract relies on the notion of consensual exchange and has been extensively discussed in broader economic, sociological, and anthropological terms. In American English, the term extends beyond the legal meaning to encompass a broader category of agreements. Such jurisdictions usually retain a high degree of freedom of contract, with parties largely at liberty to set their own terms. This is in contrast to the civil law, which typically applies certain overarching principles to disputes arising out of contract, as in the French Civil Code. However, contract is a form of economic ordering common throughout the world, and different rules apply in jurisdictions applying civil law (derived from Roman law principles), Islamic law, socialist legal systems, and customary or local law. 2014 All Star Training, Inc. -
Introduction to Law and Legal Reasoning Law Is
CHAPTER 1: INTRODUCTION TO LAW AND LEGAL REASONING LAW IS "MAN MADE" IT CHANGES OVER TIME TO ACCOMMODATE SOCIETY'S NEEDS LAW IS MADE BY LEGISLATURE LAW IS INTERPRETED BY COURTS TO DETERMINE 1)WHETHER IT IS "CONSTITUTIONAL" 2)WHO IS RIGHT OR WRONG THERE IS A PROCESS WHICH MUST BE FOLLOWED (CALLED "PROCEDURAL LAW") I. Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public." II. Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society. D. Example. Grandma, who is 87 years old, walks into a pawn shop. She wants to sell her ring that has been in the family for 200 years. Grandma asks the dealer, "how much will you give me for this ring." The dealer, in good faith, tells Grandma he doesn't know what kind of metal is in the ring, but he will give her $150. -
Smashing the Broken Mirror: the Battle of the Forms, UCC 2-207, and Louisiana's Improvements, 53 La
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Louisiana State University: DigitalCommons @ LSU Law Center Louisiana Law Review Volume 53 | Number 5 May 1993 Smashing the Broken Mirror: The aB ttle of the Forms, UCC 2-207, and Louisiana's Improvements N. Stephan Kinsella Repository Citation N. Stephan Kinsella, Smashing the Broken Mirror: The Battle of the Forms, UCC 2-207, and Louisiana's Improvements, 53 La. L. Rev. (1993) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol53/iss5/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Smashing the Broken Mirror: The Battle of the Forms, UCC 2-207, and Louisiana's Improvements N. Stephan Kinsella* TABLE OF CONTENTS I. Introduction ........................................................... 1556 II. The Mirror Image Rule and the Last Shot Principle ... 1557 III. Formation of Contracts in Louisiana-Present and Future .................................................................. 1558 IV. UCC Section 2-207 Problems and Civil Code Solutions ............................................................... 1560 A. Where Acceptance is "Expressly Conditional" ..... 1560 1. The Meaning of "Expressly Conditional". ..... 1560 2. Article 2601-Omission of "Expressly"-Ap- parent Disadvantages ................................... 1562 3. Article 2601-Omission of "Expressly"- Advantages ................................................ 1563 B. Expression of Acceptance .................................. 1565 C. Additional and Different Terms as Proposals for M odification .................................................... 1566 D. Additional Terms that "Materially Alter" the C ontract ......................................................... 1567 1. "Different Terms" and Acceptance by Silence 1567 2. -
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. -
Contracts Outline
Contracts Outline NYU Fall 2004, Professor Barry Friedman Chapter 1 What Promise Ought We Enforce.............................................................. 8 1. Why we enforce promise......................................................................................... 8 1.1. Moral claim (Foundational) ........................................................................ 8 1.2. Efficiency / Mutual exchange: we can not exchange things simultaneously.............................................................................................. 8 1.3. Reliance: somebody relies on the promise and changes his plan............. 8 1.4. Will theory: somebody makes the promise means he wants the promise to be enforced. .............................................................................................. 8 1.5. Benefits unjustly retained............................................................................ 8 2. Promise with good consideration........................................................................... 8 2.1. Bargain for exchange is the test of good consideration ............................ 8 2.2. Past consideration is no good consideration.............................................. 9 2.3. Moral promise could be enforced under material benefit rule................ 9 2.4. Illusory promise is no good consideration ................................................. 9 2.5. Conditional promise could be good consideration.................................. 10 2.6. Good consideration could be implied...................................................... -
IN the COURT of APPEALS of IOWA No. 17-0482 Filed April 18
IN THE COURT OF APPEALS OF IOWA No. 17-0482 Filed April 18, 2018 JM 48, LLC, Plaintiff-Appellee, vs. HEARTLAND CO-OP, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge. Heartland Co-op appeals a district court ruling denying its motion to compel arbitration. AFFIRMED. John F. Lorentzen of Nyemaster Goode, P.C., Des Moines, for appellant. Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, P.C., Carroll, for appellee. Heard by Vogel, P.J., and Potterfield and Mullins, JJ. 2 MULLINS, Judge. Heartland Co-op (Heartland) appeals a district court ruling denying its motion to compel arbitration. Heartland contends the parties entered into an arbitration agreement that is enforceable under the Federal Arbitration Act (FAA) as well as the Iowa Arbitration Act (IAA) and, therefore, the district court erred in denying its motion to compel arbitration. Heartland alternatively argues an arbitration agreement should be enforced through the doctrine of promissory estoppel.1 I. Background Facts and Proceedings The following facts are generally undisputed. In May 2010, Gerald Murphy, on behalf of JM 48, LLC (JM), signed a contract authorization form with Heartland. The authorization form provided: I the customer grant the following individuals authorization to enter into grain contracts on behalf of the account name and number stated above, including credit sale contracts and warehouse receipts. Contracting of Grain: I represent to Heartland on behalf of the Customer that: (1) we routinely sell grain to elevator; (2) we have the particular skills and knowledge of grain trading practices that enable us to understand the terms of grain sale contracts enter into; (3) we are a merchant with respect to the sale of grain; and (4) each of the individuals names above is authorized to enter into grain contracts with Heartland on our behalf. -
Important Concepts in Contract
Munich Personal RePEc Archive Practical concepts in Contract Law Ehsan, zarrokh 14 August 2008 Online at https://mpra.ub.uni-muenchen.de/10077/ MPRA Paper No. 10077, posted 01 Jan 2009 09:21 UTC Practical concepts in Contract Law Author: EHSAN ZARROKH LL.M at university of Tehran E-mail: [email protected] TEL: 00989183395983 URL: http://www.zarrokh2007.20m.com Abstract A contract is a legally binding exchange of promises or agreement between parties that the law will enforce. Contract law is based on the Latin phrase pacta sunt servanda (literally, promises must be kept) [1]. Breach of a contract is recognised by the law and remedies can be provided. Almost everyone makes contracts everyday. Sometimes written contracts are required, e.g., when buying a house [2]. However the vast majority of contracts can be and are made orally, like buying a law text book, or a coffee at a shop. Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations (along with tort, unjust enrichment or restitution). Contractual formation Keywords: contract, important concepts, legal analyse, comparative. The Carbolic Smoke Ball offer, which bankrupted the Co. because it could not fulfill the terms it advertised In common law jurisdictions there are three key elements to the creation of a contract. These are offer and acceptance, consideration and an intention to create legal relations. In civil law systems the concept of consideration is not central. In addition, for some contracts formalities must be complied with under what is sometimes called a statute of frauds. -
Smashing the Broken Mirror: the Battle of the Forms
Law Review SMASHING THE BROKEN MIRROR: THE BATTLE OF THE FORMS, UCC 2-207, AND LOUISIANA'S IMPROVEMENTS Smashing &heBroken ,Mirror: The Battle of the Forms, UGC 2-207, and Louisirasrra% Improvements TABLE OF CONTENTS I. introduction.. ......................................................... 11. The Mirror Image Rule and the Last Shot Principle ... 111. Formation of Contracts in Louisiana-Presenm1 and Future ........................ .. ....................................... IT. UCC Section 2-28'? Problems and Civil Code Solutions ............................................................. A. Where Acceptance is ""Expressly Conditional". ..... I. The Meaning of ""Expressly Conditional" ...... 2. Article 260 l -Omission of '"Expresslyq'-Ap- parent Disadvantages ................................... 3. Article 2681 -Omission of ""Expressly"- Advantages ............................ .. ............. B. Expression of Acceptance ............................... ... C. Additional and Different Terms as Proposals for Modification .................................................... D. Additional Terms that ""Materially Alter9' the Contract ....................... ................................. 1. ""Different Terms" and Acceptance by Silence 2. ""Materially Alter" ...*............... ............... 3. Is it the Offer, or is it the Contract, that is . Materially Altered"? ................................ E. Where the Offer Limits Acceptance to the Terans of the Offer .................................................... I. Ambiguity of Offer-Reskrictioras -
Clearing the Air After the Battle: Reconciling Fairness and Efficiency in Aormal F Approach to U.C.C
Case Western Reserve Law Review Volume 33 Issue 3 combined issue 3 & 4 Article 3 1983 Clearing the Air after the Battle: Reconciling Fairness and Efficiency in aormal F Approach to U.C.C. Section 2-207 Gregory M. Travalio Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Gregory M. Travalio, Clearing the Air after the Battle: Reconciling Fairness and Efficiency in aormal F Approach to U.C.C. Section 2-207, 33 Case W. Rsrv. L. Rev. 327 (1983) Available at: https://scholarlycommons.law.case.edu/caselrev/vol33/iss3/3 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review Volume 33 1983 Numbers 3 & 4 Clearing the Air After the Battle: Reconciling Fairness and Efficiency in a Formal Approach to U.C.C. Section 2-207 Gregory M. Travalio* Section 2-207 of the Uniform Commercial Code addresses the "Battle of the Forms." In a typical commercialtransaction, a sellermay respondto a buyer's offer by proposingadditional or diferent terns and expressly conditioningits acceptance on the buyer's assent to these terms. f the partiessubsequently perform, despite the failure ofthe forms to match, a question arisesas to the terms of the resulting con- tract. ThisArticle examines both scholarly commentary and casesproposingalterna- tive methods of applying section 2-207 to this scenario. -
Default Rules in Sales and the Myth of Contracting out James J
University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2002 Default Rules in Sales and the Myth of Contracting Out James J. White University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/381 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Commercial Law Commons, Computer Law Commons, Consumer Protection Law Commons, and the Contracts Commons Recommended Citation White, James J. "Default Rules in Sales and the Myth of Contracting Out." Loyola L. Rev. 48, no. 1 (2002): 53-85. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. DEFAULT RULES IN SALES AND THE MYTH OF CONTRACTING OUT James J. White* I. INTRODUCTION In his celebrated article The Problem of Social Cost,1 Ronald Coase argued that rules of law alterable by agreement were not inherently inefficient because parties could and would negotiate to an efficient result. Coase explicitly qualified his principle with the corollary that the costs of negotiating might keep parties from reaching efficient outcomes. 2 Where this is so, the existing law that governs the transaction - now sometimes called the "default rule" - prevails despite its inefficiencies. In the modern sale of goods, Coase's corollary has overtaken the principle. Few contracts for the sale of goods are fully negotiated either in person or by electronic or other remote communication. -
Deterring Nuisance Suits Through Employee Indemnification
Deterring Nuisance Suits through Employee Indemnification Wallace P. Mullin Department of Economics, George Washington University, Washington, DC 20052. Email: [email protected]. Christopher M. Snyder Department of Economics, Dartmouth College, Hanover, NH 03755. Email: [email protected]. March 8, 2010 Abstract: Broad employee indemnification is pervasive among corporations. Indemnification covers individual sanctions, such as fines, for corporate actions. These guarantees that are not merely tolerated but indeed encouraged by public policy. We offer a new rationale for widespread indemnification. Indemnification deters meritless civil suits by strengthening employees’ resolve to fight them. Keywords: indemnification, litigation, settlement bargaining Acknowledgements: The authors thank Ian Ayres, Tracy Lewis, and seminar participants at the George Washington University, International Industrial Organization Conference (Boston, 2009), University of Melbourne, and the University of Sydney Economics of Organizations Conference for helpful comments. 1. Introduction Litigation against corporations and their officers and directors is a major industry. While some of these lawsuits may be useful to society, it is feared that a fraction are so called “nuisance suits.” These suits are motivated solely by the prospect of extracting settlement payments. A logical strategic response by targeted corporations would be to strengthen their bargaining position against such plaintiffs in the settlement negotiations. According to a recent survey, 98 percent of U.S. firms with over 500 shareholders had third party D&O (director and officer) insurance (Tillinghast-Towers Perrin 2002). One interpretation of broad indemnification is that the firm (or shareholders) will absorb fines and settlements ostensibly levied against officers and directors. The most direct rationale for widespread indemnification is that it shares risk between risk neutral shareholders and risk averse officers and directors. -
Battle of the Forms" and the Conflict of Laws
LEX MERCATORIA: Essays on International Commercial Law in Honour of Francis Reynolds Edited by FRANCIS D. ROSE Professor ofCommercial Law University ofBristol ILILIPI 2000 Chapter 11 The "Battle of the Forms" and the Conflict of Laws Gerhard Dannemann INTRODUCTION Most readers will know that "battle of the forms" denounces the situation where, during contractual negotiations, both parties keep on referring to their own set of standard terms and then go ahead with the performance without having actually resolved between them which one of these two sets should govern the contract. Scholars have devoted considerable attention to this topic. One gains the impression that the number of learned articles exceeds the number ofreported cases where such a "battle" has occurred. I This somewhat unhealthy ratio may account for the fact that, to my knowledge, Francis Reynolds has never raised his voice in this lively academic debate. Yet the reverse ratio between academic writing and jurisprudence emerges when one looks at cases where commercial law and conflicts oflaw-two areas oflaw to which Francis Reynolds has devoted much ofhis work-join up for a "battle ofthe forms" on questions ofconflict oflaws.2 By this, I mean diverging provisions in standard terms which relate to choice oflaw, choice ofjurisdiction (including arbitration clauses) or choice ofplace ofperformance. Iflegal systems throughout this world could agree on one standard solution for the "battle ofthe forms", which applied equally to substantive law, choice of I The Index to Legal Periodicals alone lists 21 articles on the "battle of the forms" which have been published since 1981. 2 Conspicuous silence as to the conflicts implications of a "battle of the forms" prevails in the literature, be it standard textbooks such as Dicey & Morris on the Conflict ofLaws, 13th edn.