Rigos Multistate Bar Exam (MBE) Review, Third Edition Volume 1
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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. -
Requirements Contracts Under the Uniform Commercial Code
654 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 102 REQUIREMENTS CONTRACTS UNDER THE UNIFORM COMMERCIAL CODE The merchant whose selling market is subject to fluctuation often seeks a means, perhaps at a constant price, to assure a source of supply for his raw materials which will relieve him of the burden of predicting his needs beyond the time required for production. The common method of accom- plishing this is to negotiate a requirements contract whereby the buyer binds himself to purchase all of his requirements from the seller in exchange for a promise from the seller to supply the buyer's needs. A manufacturer, wishing to avoid the problem of correlating his production with future demand, may seek an output contract in which he binds himself to. sell all of his production to the buyer in return for the latter's promise to take all of the output. In this way the seller may shift the burden of marketing his production. Since the problems of output and requirements contracts are in many respects similar, this Note will utilize the term requirements contract to refer generally to both types of agreements.' Requirements contracts have been held void by courts which took the view that the terms of the agreement were too uncertain to be enforced, or that since the buyer did not bind himself to have requirements, performance of the contract depended on the buyer's whim and therefore lacked con- sideration.2 More recent authority, however, recognizes that in the bar- gained-for exchange of promises each party has limited his freedom to some extent and that the terms "requirements" or "needs" supply a suffi- ciently objective standard to be enforceable.3 Thus, today, the typical re- 1. -
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. -
Assignment and Assumption Or Novation: Cape Town Convention Implications for the Still Unwary Drafter
Cape Town Convention Journal, 2017 Vol. 6 Assignment and Assumption or Novation: Cape Town Convention Implications for the Still Unwary Drafter Phillip Durham and Robert Ricketts* Abstract This paper considers how a practitioner should treat, in the context of the Cape Town Convention, an assignment and assumption under the laws within various states of the United of States and novation agreements governed under the law of England and Wales. It considers the treatment of such in the Official Commentary and the experi- ences of practitioners in this particular field. I. Introduction In 2008 one of the authors of this article, Phillip Durham, addressed the American Bar Association’s Aircraft Financing Subcommittee on the differing treatment of assignment and assumption agree- ments and novations under the Cape Town Convention and its Aircraft Protocol. The presentation attempted to aid the practitioner in understanding and appreciating the interplay between the Cape Town Convention and applicable national law. Mr. Durham concentrated his analysis on the impact of the characterization of an outright transfer of a lessor’s interest in an aircraft operating lease as either an assignment or a novation under the laws of certain of the States of the United States and under English law and the impact that such characterization would have on the characterization under the Cape Town Convention and its Aircraft Protocol. In the nine years since that presentation the Cape Town Convention and its Aircraft Protocol have expanded greatly and are now -
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...................................................... -
Case 3:17-Cv-00155-L Document 39 Filed 04/14/17 Page 1 of 13 Pageid
Case 3:17-cv-00155-L Document 39 Filed 04/14/17 Page 1 of 13 PageID <pageID> IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DR. DEREK MELBY and DR. DANILO § POLICARPIO, individually and on behalf § of all others similarly situated, § § Plaintiffs, § v. § § Civil Action No. 3:17-CV-155-L AMERICA’S MHT, INC.; SCOTT § POSTLE; ASCENTIUM CAPITAL, LLC § and CLIFF MCKENZIE, § § Defendants. § MEMORANDUM OPINION AND ORDER Before the court is Plaintiffs’ Opposed Motion for Temporary Restraining Order and for Preliminary Injunction (“Motion”) (Doc. 20), filed February 16, 2017; Plaintiffs’ Opposed Motion for Expedited Discovery (Doc. 22), filed February 16, 2017; and Ascentium Capital, LLC and Cliff McKenzie’s Motion to Dismiss Class Action Complaint (Doc. 30), filed February 27, 2017. After considering the motions, briefs, pleadings, the evidence submitted regarding Plaintiffs’ request for injunctive relief, and applicable law, the court denies Plaintiffs’ Opposed Motion for Temporary Restraining Order and denies without prejudice Plaintiffs’ Motion for Preliminary Injunction (Doc. 20); denies Plaintiffs’ Opposed Motion for Expedited Discovery (Doc. 22); and denies Ascentium Capital, LLC and Cliff McKenzie’s Motion to Dismiss Class Action Complaint (Doc. 30) as herein Memorandum Opinion and Order – Page 1 Case 3:17-cv-00155-L Document 39 Filed 04/14/17 Page 2 of 13 PageID <pageID> set forth.* The court will allow Plaintiffs to file an amended complaint, as it is unclear at this juncture whether amendment to cure the deficiencies in Plaintiffs’ pleadings is futile. I. Factual and Procedural Background Plaintiffs Dr. Derek Melby and Dr. Danilo Policarpio (“Dr. -
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. -
The 1956 Revision of the Uniform Commercial Code
Volume 2 Issue 1 Article 2 1956 The 1956 Revision of the Uniform Commercial Code Robert Braucher Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Commercial Law Commons, and the Legislation Commons Recommended Citation Robert Braucher, The 1956 Revision of the Uniform Commercial Code, 2 Vill. L. Rev. 3 (1956). Available at: https://digitalcommons.law.villanova.edu/vlr/vol2/iss1/2 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Braucher: The 1956 Revision of the Uniform Commercial Code Villanova Law Review VOLUME 2 NOVEMBER, 1956 NUMBER 1 THE 1956 REVISION OF THE UNIFORM COMMERCIAL CODE ROBERT BRAUCHER t Introduction. S INCE ITS ENACTMENT in Pennsylvania in 1953, effective July 1, 1954, the Uniform Commercial Code has generated a tremendous volume of discussion but no further legislative enactment.' To consider criticism and suggestions for improvement, the American Law Institute and the National Conference of Commissioners on Uniform State Laws, the sponsors of the Code, reactivated a joint Editorial Board in 1954. The Board, in turn, appointed a sub- committee for each of the several articles of the Code. Suggestions were made by committees of the Pennsylvania State Chamber of Commerce, the American Bankers Association, and other interested groups. By far the most important review of the Code was the study begun by the New York Law Revision Commission in 1953. -
Requirements and Output Contracts: Quantity Variations Under the Ucc
IukI 10urnal VOLUME 1973 AuGusT NUMBER 3 REQUIREMENTS AND OUTPUT CONTRACTS: QUANTITY VARIATIONS UNDER THE UCC JOHN C. WEISTART* INTRODUCTION: THE AMBIGUITY OF THE CODE Despite the many advantages which may attend revisions of basic commercial law such as that undertaken in the Uniform Commerical Code, there is a danger that proposal of a broad-based modification will invite commentary on many fronts and so diffuse the attention of both drafters and critics that the relative importance of a particular change may not be appreciated. Such appears to have been the case with re- spect to section 2-306 of the UCC dealing with requirements and out- put contracts. The section is a significant departure from prior uniform sales legislation which attempted no codification of the law in this area.1 If the originality of the codification did not prompt debate, then * Professor of Law, Duke University. A.B. 1965, Illinois Wesleyan University; J.D. 1968, Duke University. 1. Pre-Code decisions treating output and requirements contracts are discussed in IA A. CoRaiN, CoTIRa cTs §§ 156-58 & 168 (1963); 3 id. § 569 (1960); 1 S. WILLisToN, CoNTAcrs § 104A (3d ed. 1957); 3 id. § 421A (3d ed. 1960); 2 S. WmLisroN, SALES §§ 464(a)-(d) (1948); and Havighurst & Berman, Requirement and Output Contracts, 27 ILL. L. REV. 1 (1932). HEREINAFTER THE FOLLOWING CITATIONS WILL BE USED IN THIS ARTICLE: A. CORBIN, CoNTRAcTs (1960) [hereinafter cited as ColuIw]; 3 R. DtJsENBERG & L. KING, SALE AND BuLx SALES (1968) [hereinafter cited as DUESENBERG & KING]; Havighurst & Berman, Requirement and Output Contracts, 27 ILL. L. -
Limitations on the Availability of Specific Performance
COMMENTS past history so that they may impose an appropriate penalty,"s but this pro- cedure greatly increases the possibility that the verdict will be influenced by factors not relevant to the question of the defendant's guilt or innocence. 33 When the court imposes punishment the jury must be discouraged from ac- quitting defendants whose guilt is certain but whom they are unwilling to con- vict because they fear that the penalty will be too harsh. Permitting the jury to recommend mercy is therefore desirable, since it would tend to eliminate that fear. Yet if the rule of reasonable doubt is to be adhered to, either juries must be more strictly controlled in making recommendations of mercy, or it must be ad- mitted that the policy of the law has changed and that in doubtful cases it is now preferable to convict defendants and allow jurors to ease their consciences in so doing by convincing themselves that the penalty will be light. LIMITATIONS ON THE AVAILABILITY OF SPECIFIC PERFORMANCE Normally the damages which are awarded for breach of contract are intended to put a plaintiff in as good a position as he would have been in had the agree- ment been carried out. Such expectation damages insure a rough measure of compensation for hard-to-prove or hard-to-measure elements of reliance and for the distress and insecurity which result from failure to keep promises. In addition, good guesses about future needs in our free enterprise economy are rewarded. One would therefore naturally expect that the plaintiff would be given, whenever possible, an exact equivalent of performance, rather than its approximation in damages. -
Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation
STATE Q&A Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation Status: Law stated as of 01 Jun 2020 | Jurisdiction: Illinois, United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-022-7463 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial A Q&A guide to state law on contract principles and breach of contract issues under Illinois common law. This guide addresses contract formation, types of contracts, general contract construction rules, how to alter and terminate contracts, and how courts interpret and enforce dispute resolution clauses. This guide also addresses the basics of a breach of contract action, including the elements of the claim, the statute of limitations, common defenses, and the types of remedies available to the non-breaching party. Contract Formation to enter into a bargain, made in a manner that justifies another party’s understanding that its assent to that 1. What are the elements of a valid contract bargain is invited and will conclude it” (First 38, LLC v. NM Project Co., 2015 IL App (1st) 142680-U, ¶ 51 (unpublished in your jurisdiction? order under Ill. S. Ct. R. 23) (citing Black’s Law Dictionary 1113 (8th ed.2004) and Restatement (Second) of In Illinois, the elements necessary for a valid contract are: Contracts § 24 (1981))). • An offer. • An acceptance. Acceptance • Consideration. Under Illinois law, an acceptance occurs if the party assented to the essential terms contained in the • Ascertainable Material terms. -
Vallario Contract Formation Course Materials Fall 2020 Table of Contents
Vallario Contract Formation Course Materials Fall 2020 Table of Contents INTRODUCTION ................................................................................................................ 2 Sources of Law .............................................................................................................................2 Case briefing .................................................................................................................................3 Legal analysis and IRAC ..............................................................................................................3 MODULE ONE: OFFER ..................................................................................................... 7 A. Offer ........................................................................................................................................7 B. Destruction of the Offer ............................................................................................................9 C. Irrevocable Offers ................................................................................................................. 12 MODULE TWO: COMMON LAW ACCEPTANCE ........................................................ 13 MODULE THREE: OFFER AND ACCEPTANCE UNDER THE UCC ........................... 16 A. Offer and Acceptance under UCC ...................................................................................... 17 B. Battle of the Forms ................................................................................................................