Unit 6 – Contracts
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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. -
In Dispute 30:2 Contract Formation
CHAPTER 30 CONTRACTS Introductory Note A. CONTRACT FORMATION 30:1 Contract Formation ― In Dispute 30:2 Contract Formation ― Need Not Be in Writing 30:3 Contract Formation ― Offer 30:4 Contract Formation ― Revocation of Offer 30:5 Contract Formation ― Counteroffer 30:6 Contract Formation ― Acceptance 30:7 Contract Formation ― Consideration 30:8 Contract Formation ― Modification 30:9 Contract Formation ― Third-Party Beneficiary B. CONTRACT PERFORMANCE 30:10 Contract Performance — Breach of Contract — Elements of Liability 30:11 Contract Performance — Breach of Contract Defined 30:12 Contract Performance — Substantial Performance 30:13 Contract Performance — Anticipatory Breach 30:14 Contract Performance — Time of Performance 30:15 Contract Performance — Conditions Precedent 30:16 Contract Performance — Implied Duty of Good Faith and Fair Dealing — Non-Insurance Contract 30:17 Contract Performance — Assignment C. DEFENSES Introductory Note 30:18 Defense — Fraud in the Inducement 30:19 Defense — Undue Influence 30:20 Defense — Duress 30:21 Defense — Minority 30:22 Defense — Mental Incapacity 30:23 Defense — Impossibility of Performance 30:24 Defense — Inducing a Breach by Words or Conduct 30:25 Defense — Waiver 30:26 Defense — Statute of Limitations 30:27 Defense — Cancellation by Agreement 30:28 Defense — Accord and Satisfaction (Later Contract) 30:29 Defense — Novation D. CONTRACT INTERPRETATION Introductory Note 30:30 Contract Interpretation — Disputed Term 30:31 Contract Interpretation — Parties’ Intent 30:32 Contract Interpretation — -
Who Needs That Recital of Consideration?
DraftingDrafting aa newnew dayday Who needs that ‘recital of consideration’? By Kenneth A. Adams t’s hardly a shocking notion that are hereby acknowledged, the parties Farnsworth, Farnsworth on Contracts any given contract could contain hereto covenant and agree as follows. 150 (2d. ed. 1998).) It follows that Ione or more provisions that reflect Recitals of consideration raise a using instead the vague language of a an inaccurate or outdated view of con- number of issues of legal usage. For traditional recital of consideration tract law. What’s more noteworthy is example, NOW, THEREFORE is archa- would be equally ineffective. the fact one such provision — the tra- ic, while in consideration of the premises Similarly, a false recital of consider- ditional recital of consideration — is simply an obscure way of saying ation cannot create consideration appears in most corporate agreements. “therefore” and is superfluous given where there was none. If, in the con- In this article, I explain why that the preceding “therefore.” And refer- tract between Acme and Roe, Acme traditional recital of consideration ences to the value or sufficiency of recites falsely that the payment to Roe fails to serve its intended purpose and consideration are outdated: With the was in consideration of future services why omitting it could only improve a rise of the “bargain test of considera- and Acme subsequently refuses to pay contract. tion” reflected in the Restatement (Sec- the bonus, Acme should prevail in any The ostensible function of a recital ond) of Contracts, the focus of judges action brought by Roe if it succeeds in of consideration is to render enforce- has shifted from the substance of the proving that the recital was false. -
“Supply for Consideration”? Presented by Tony Van Der Westhuysen BA; LLB; H
12/05/2017 Just what is a “Supply for consideration”? Presented by Tony van der Westhuysen BA; LLB; H. Dip Tax Law; MBA; Cert IV TAA 1 12/05/2017 Legislative Background Section 9-5 You make a taxable supply if: (a) you make the supply for consideration; and (b) the supply is made in the course or furtherance of an enterprise that you carry on; and (c) the supply is connected with the indirect tax zone; and (d) you are registered, or required to be registered. However, the supply is not a taxable supply to the extent that it is GST- free or input taxed. 2 12/05/2017 Section 9-10 Meaning of ‘supply’ • A supply of goods or services; • The provision of advice or information; • A grant, assignment or surrender of real property; • The creation, grant, transfer, assignment or surrender of any right; • Includes financial supplies Continued…. Section 9-10 (continued) Includes • an entry into an obligation or • release from an obligation • to do anything • to refrain from an act • to tolerate an act or situation 3 12/05/2017 What is not a supply? “Supply” does not include a supply of money, unless the money is provided as consideration for a supply that is a supply of money. (s9-10(4)) Section 9-15 Meaning of ‘consideration’ “Consideration” Includes: • any payment or any act or forbearance • in connection with, • in response to or • for the inducement of • a supply of anything 4 12/05/2017 Case law • Reliance Carpet Company Pty Ltd v FCT AAT (yes) FFC (no) HC (yes) • COT v Qantas Airways Ltd AAT (yes) FFC (no) HC (yes) GSTR 2006/9 The meaning of “Supply” 5 12/05/2017 The Propositions Sixteen in total Proposition 4 • A transaction may involve two or more supplies • Non-monetary consideration • GST-inclusive market value 12 6 12/05/2017 Proposition 5 • To 'make a supply' an entity must do something • The ordinary meaning of 'supply' requires a positive act by the supplier • Compulsory acquisitions? Re Hornsby Shire Council v. -
CIVIL ACTION FRANK FUMAI, : : Plaintiff, : : V. : : HARVEY LEVY, SUBURBAN : THERAPY, INC., and : SUBURBAN MEDICAL ASSOCIATES, : : Defendants
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : CIVIL ACTION FRANK FUMAI, : : Plaintiff, : : v. : : HARVEY LEVY, SUBURBAN : THERAPY, INC., and : SUBURBAN MEDICAL ASSOCIATES, : : Defendants. : NO. 95-1674 M E M O R A N D U M Reed, J. January 16, 1998 The Court issues this memorandum in support of its Order dated January 9, 1998 (Document No. 42), in which the Court denied the motion of defendants Harvey Levy (“Levy”), Suburban Therapy, Inc. (“ST”), and Suburban Medical Associates (“SM”) (collectively “the defendants”) for partial reconsideration of the Order dated December 19, 1997 (Document No. 38) and granted in part the renewed motion of plaintiff Frank Fumai (“Fumai”) in limine to exclude all evidence and argument at trial that pertains or relates to the defendants’ claim or defense that Fumai breached a fiduciary duty owed to Allegheny United Hospitals (“Allegheny”) in connection with the sale of the assets of ST and SM to Allegheny (Document No. 37). I. BACKGROUND The following background facts are undisputed.1 On November 1, 1990, Fumai entered into an agreement with the defendants whereby Fumai would receive a commission from the sale of capital stock or assets of ST and SM if he procured a purchaser or introduced a party to the defendants who later introduced or procured a purchaser. Under the agreement, Fumai would receive 10% of the purchase price of ST and 5% of the purchase price of SM for such a sale. At the time of the contract between Fumai and the defendants, the main business of ST was the management of physician care services, including management of SM. -
Effective Thermal Fire-Extinguishing Agents
NIST Technical Note 1440 Characteristics and Identification of Super- Effective Thermal Fire-Extinguishing Agents: Final Report, NGP Project 4C/1/890 William M. Pitts Jiann C. Yang Rodney A. Bryant Linda G. Blevins Marcia L. Huber NIST Technical Note 1440 Characteristics and Identification of Super- Effective Thermal Fire-Extinguishing Agents: Final Report, NGP Project 4C/1/890 William M. Pitts Jiann C. Yang Rodney A. Bryant Linda G. Blevins Building and Fire Research Laboratory Marcia L. Huber Chemical Science and Technology Laboratory June 2001 Issued July 2006 U.S. Department of Commerce Donald L. Evans, Secretary National Institute of Standards and Technology Dr. Karen H. Brown, Acting Director Certain commercial entities, equipment, or materials may be identified in this document in order to describe an experimental procedure or concept adequately. Such identification is not intended to imply recommendation or endorsement by the National Institute of Standards and Technology, nor is it intended to imply that the entities, materials, or equipment are necessarily the best available for the purpose. National Institute of Standards and Technology Technical Note 1440 Natl. Inst. Stand. Technol. Tech. Note 1440, 138 pages (July 2006) CODEN: NSPUE2 TABLE OF CONTENTS LIST OF TABLES............................................................................................................................................ iii LISTS OF FIGURES ........................................................................................................................................ -
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. -
Force Majeure and Common Law Defenses | a National Survey | Shook, Hardy & Bacon
2020 — Force Majeure SHOOK SHB.COM and Common Law Defenses A National Survey APRIL 2020 — Force Majeure and Common Law Defenses A National Survey Contractual force majeure provisions allocate risk of nonperformance due to events beyond the parties’ control. The occurrence of a force majeure event is akin to an affirmative defense to one’s obligations. This survey identifies issues to consider in light of controlling state law. Then we summarize the relevant law of the 50 states and the District of Columbia. 2020 — Shook Force Majeure Amy Cho Thomas J. Partner Dammrich, II 312.704.7744 Partner Task Force [email protected] 312.704.7721 [email protected] Bill Martucci Lynn Murray Dave Schoenfeld Tom Sullivan Norma Bennett Partner Partner Partner Partner Of Counsel 202.639.5640 312.704.7766 312.704.7723 215.575.3130 713.546.5649 [email protected] [email protected] [email protected] [email protected] [email protected] SHOOK SHB.COM Melissa Sonali Jeanne Janchar Kali Backer Erin Bolden Nott Davis Gunawardhana Of Counsel Associate Associate Of Counsel Of Counsel 816.559.2170 303.285.5303 312.704.7716 617.531.1673 202.639.5643 [email protected] [email protected] [email protected] [email protected] [email protected] John Constance Bria Davis Erika Dirk Emily Pedersen Lischen Reeves Associate Associate Associate Associate Associate 816.559.2017 816.559.0397 312.704.7768 816.559.2662 816.559.2056 [email protected] [email protected] [email protected] [email protected] [email protected] Katelyn Romeo Jon Studer Ever Tápia Matt Williams Associate Associate Vergara Associate 215.575.3114 312.704.7736 Associate 415.544.1932 [email protected] [email protected] 816.559.2946 [email protected] [email protected] ATLANTA | BOSTON | CHICAGO | DENVER | HOUSTON | KANSAS CITY | LONDON | LOS ANGELES MIAMI | ORANGE COUNTY | PHILADELPHIA | SAN FRANCISCO | SEATTLE | TAMPA | WASHINGTON, D.C. -
'Capacitas': Contract Law and the Institutional
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Research Papers in Economics ‘CAPACITAS’: CONTRACT LAW AND THE INSTITUTIONAL PRECONDITIONS OF A MARKET ECONOMY Centre for Business Research, University Of Cambridge Working Paper No. 325 by Simon Deakin University of Cambridge Centre for Business Research Judge Business School Building Trumpington Street Cambridge CB2 1AG Email: [email protected] June 2006 This working paper forms part of the CBR Research Programme on Corporate Governance. Abstract Capacity may be defined as a status conferred by law for the purpose of empowering persons to participate in the operations of a market economy. This paper argues that because of the confining influence of the classical private law of the nineteenth century, we currently lack a convincing theory of the role of law in enhancing and protecting the substantive contractual capacity of market agents, a notion which resembles the economic concept of ‘capability’ as developed by Amartya Sen. Re-examining the legal notion of capacity from the perspective of Sen’s ‘capability approach’ is part of a process of understanding the preconditions for a sustainable market order under modern conditions. JEL Classification : K12, K31 Keywords : contract law, capacity, capability approach Acknowledgements This paper is based on the work of the ‘Capacitas’ project which was funded by the European Union’s Fifth Framework Programme, as part of a wider research network examining the politics of capabilities in Europe (‘Eurocap’). I am grateful to fellow project-members who took part in meetings in Nantes and Cambridge in 2003 and 2005 respectively and whose work I draw on here, in particular Wiebke Brose, Sandrine Godelain, Jean Hauser, Martin Hesselink, Alain Supiot and Aurora Vimercati. -
Department of Veterans Affairs VA Directive 0000 Washington, DC 20420 Transmittal Sheet November 14, 2018
Department of Veterans Affairs VA Directive 0000 Washington, DC 20420 Transmittal Sheet November 14, 2018 DELEGATIONS OF AUTHORITY 1. REASON FOR ISSUE: Directive 0000 is being reissued to update policy regarding VA Delegations Of Authority (DOA). 2. SUMMARY OF CONTENTS/MAJOR CHANGES: This revised directive announces changes in the responsible office from the Office of Information and Technology (OIT) to the Office of Enterprise Integration (OEI), establishes an Enterprise Delegation Control Officer within OEI, and clarifies roles and responsibilities of officials managing the Delegation of Authority program for the enterprise. 3. RESPONSIBLE OFFICE(S): The Office of Policy and Interagency Collaboration (008D3) within the Office of the Assistant Secretary for Enterprise integration (008). 4. RELATED HANDBOOK: None. 5. RESCISSION: VA Directive 0000, Delegations of Authority, dated September 9, 2009. CERTIFIED BY: BY THE DIRECTION OF THE SECRETARY OF VETERANS AFFAIRS: /s/ /s/ Melissa S. Glynn, Ph.D. Melissa S. Glynn, Ph.D. Assistant Secretary Assistant Secretary for Enterprise Integration for Enterprise Integration DISTRIBUTION: Electronic Only VA Directive 0000 November 14, 2018 This page is intentionally left blank. 2 November 14, 2018 VA Directive 0000 DELEGATIONS OF AUTHORITY 1. PURPOSE AND SCOPE. This directive sets forth policies for issuing delegations of authority from the Secretary of Veterans Affairs, Deputy Secretary of Veterans Affairs, Chief of Staff, Assistant Secretaries, Under Secretaries, and Other Key Officials. Section 512(a) of title 38 of the United States Code (U.S.C.), allows the Secretary to delegate, except as otherwise provided by law, the authority to act or render decisions with respect to all laws administered by the Department of Veterans Affairs (VA). -
Lesser Known Breach of Contract Defenses
LESSER KNOWN BREACH OF CONTRACT DEFENSES Jack A. Walters, III Cooper & Scully, P.C. Founders Square 900 Jackson Street, Suite 100 Dallas, Texas 75202 (214) 712-9500 (214) 712-9540 fax www.cooperscully.com [email protected] 3rd Annual Construction Symposium January 25, 2008 TABLE OF CONTENTS I. INTRODUCTION...............................................................................................................1 II. BACKGROUND ON CONSTRUCTION CONTRACTS..................................................1 A. Contract Documents...............................................................................................1 B. Checklist of Issues Covered in a Contract..............................................................1 C. Definitions..............................................................................................................2 III. CONTRACT DEFENSES...................................................................................................3 A. Limitations (Statute of Limitations & Statute of Repose)......................................3 B. Standing/Privity......................................................................................................5 C. Failure of consideration / Lack of consideration....................................................6 D. Mistake 7 E. Ratification.............................................................................................................8 F. Waiver 9 G. Plaintiff's Prior Material Breach.............................................................................9 -
Contractual Capacity
CONTRACTUAL CAPACITY Contractual Capacity: The minimum mental capacity the law requires to bind a party who enters into a contract. The law presumes that the following classes of persons lacked contractual capacity when they entered into a contract to bind them to a contract they wish to avoid: (1) persons who were minors; (2) persons who were mentally impaired, including those whose impairment was due to voluntarily consuming alcohol or drugs; (3) persons who were mentally incompetent, but had not been adjudged incompetent and were not under the care of a legal guardian. Unlike a void contract, which the law will not enforce, a voidable contract is enforceable unless the party with the right to avoid it elects to do so. Disaffirmance: A person with the option to avoid a contract due to lack of capacity may do so by manifesting, by words or actions, his intent not to be bound. Disaffirmance must be timely. Ch. 14: Contracts: Capacity and Legality - No. 1 Clarkson et al.’s Business Law (13th ed.) MINORITY Subject to certain exceptions, an unmarried legal minor (in most states, someone less than 18 years old) may avoid a contract that would bind him if he were an adult. Contracts entered into by young children and contracts for something the law permits only for adults (e.g., a contract to purchase cigarettes or alcohol) are generally void, rather than voidable. Right to Disaffirm: Generally speaking, a minor may disaffirm a contract at any time during minority or for a reasonable time after he comes of age. When a minor disaffirms a contract, he can recover all property that he has transferred as consideration – even if it was subsequently transferred to a third party.