Chapter 241 Fraudulent Contracts
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Introduction
17 May 2016 Learn With Us: Boilerplate clauses Jenny Mee, Partner, K&L Gates © Copyright 2016 by K&L Gates. All rights reserved. INTRODUCTION This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances 5/17/2016 without first consulting a lawyer. ©2016 K&L Gates LLP. All Rights Reserved. 1 WHAT IS A “BOILERPLATE” CLAUSE? Boilerplate is any text that is or can be reused in new contexts or applications without being greatly changed from the original (Wikipedia) In contract law, the term "boilerplate language" describes the parts of a contract that are considered standard (Wikipedia) klgates.com 3 ETYMOLOGY ° Wikipedia: ° "Boiler plate" originally referred to the sheet steel used to make boilers ° The analogy between the curved steel used to make water boilers and curved metal used to print prepared text was based on: ° the curved shape of the plate; and ° the fact that it had been prepared elsewhere before being incorporated into a downstream producer’s finished product ° In the field of printing, the term dates back to the early 1900s klgates.com 4 This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances 5/17/2016 without first consulting a lawyer. ©2016 K&L Gates LLP. All Rights Reserved. 2 EXAMPLES OF BOILERPLATE CLAUSES ° “General” clause at the back, covering (eg): ° Governing law and jurisdiction ° Notices ° Entire agreement ° Further assurances ° No waiver ° Severability ° Contra proferentum (no adverse interpretation) ° Standard definitions and interpretation provisions ° Other standard clauses ° eg force majeure, termination, insurance, etc klgates.com 5 AGENDA FOR THIS SESSION ° Entire agreement clauses ° Set-off clauses ° No waiver clauses klgates.com 6 This publication is for informational purposes and does not contain or convey legal advice. -
Law 410 CONTRACTS BUCKWOLD
Law 410 CONTRACTS BUCKWOLD 1 FORMATION: Is there a contract? In order to have a contract, you must have: o Capacity to contract: Note that minors can enforce a contract against adults, but adults cannot enforce against minors. o Consensus ad idem – ie “meeting of the minds”: Parties must be in agreement to the same terms. Offer & acceptance . Certainty as to terms o Consideration: Parties must have exchanged value not necessarily money, but what they deem to be value. 2 types of contract: o Bilateral: promissory offer by X + acceptance by Y entailing a reciprocal promise . E.g. X offers to sell car to Y for $5000 (offer). Y agrees to by the car (acceptance) = Contract! Which includes: Express terms (e.g. price, model, payment, etc.) Implied terms (implied on basis of presumed intention) o Unilateral: promissory offer by X + acceptance by Y through performance of requested act(s) . E.g. X offers to give Y a sandwich if Y dusts X‟s house (offer). Y dusts (acceptance) = Contract! Which includes: Express terms Implied terms (see above) TERMS OF CONTRACT Note: As a general rule, terms of a contract are those expressly established by the offer plus terms that may be implied. (See MJB Enterprises for more on implied terms) Does lack of subjective knowledge of the terms of an offer preclude recognition and enforcement of an unknown term? No. If the terms are readily accessible, then signing the contract (or clicking “I accept”) constitutes agreeing to them. Rudder v. Microsoft Corp Class action lawsuit against Microsoft; Microsoft said -
Consumer Affairs Act CAP
LAWS OF SAINT CHRISTOPHER AND NEVIS Consumer Affairs Act CAP. 18.38 1 Revision Date: 31 Dec 2009 ST. CHRISTOPHER AND NEVIS CHAPTER 18.38 CONSUMER AFFAIRS ACT Revised Edition showing the law as at 31 December 2009 This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Law Revision Act, Cap. 1.03. This edition contains a consolidation of the following laws— Page CONSUMER AFFAIRS ACT 3 Act 9 of 2003 … in force 8th December 2003 Prepared under Authority by The Regional Law Revision Centre Inc. ANGUILLA LAWS OF SAINT CHRISTOPHER AND NEVIS Consumer Affairs Act CAP. 18.38 3 Revision Date: 31 Dec 2009 CHAPTER 18.38 CONSUMER AFFAIRS ACT ARRANGEMENT OF SECTIONS PART I PRELIMINARY 1. Short title 2. Interpretation 3. Application of Act PART II WARRANTIES ETC. 4. Title etc. 5. Supply by description and sample 6. Implied warranties as to quality and fitness 7. References to quality etc. 8. Express warranty by manufacture 9. Express warranty by a supplier. 10. Warranties in relation to the supply of services 11. Contract price 12. Time of completion of contract 13. Restriction on the doctrine of privity of contract 14. Remedies against supplier 15. Options of supplier who has been required to provide remedy 16. Loss of right to reject goods 17. Meaning of “failure of substantial character” 18. Manner of rejecting goods 19. Options of consumer who rejects goods 20. Right of redress where service does not comply with a warranty 21. Exceptions to right of redress under section 20 22. -
SAMPLE NOTES from OUR LLB CORE GUIDE: Contract Law Privity Chapter
SAMPLE NOTES FROM OUR LLB CORE GUIDE: Contract Law Privity chapter LLB Answered is a comprehensive, first-class set of exam-focused study notes for the Undergraduate Law Degree. This is a sample from one of our Core Guides. We also offer dedicated Case Books. Please visit lawanswered.com if you wish to purchase a copy. Notes for the LPC are also available via lawanswered.com. This chapter is provided by way of sample, for marketing purposes only. It does not constitute legal advice. No warranties as to its contents are provided. All rights reserved. Copyright © Answered Ltd. PRIVITY KEY CONCEPTS 5 DOCTRINE OF PRIVITY Under the common law: A third party cannot… enforce , be liable for, or acquire rights under … a contract to which he is not a party. AVOIDING THE DOCTRINE OF PRIVITY The main common law exceptions are: AGENCY RELATIONSHIPS ASSIGNMENT TRUSTS JUDICIAL INTERVENTION The main statutory exception is: CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 44 PRIVITY WHAT IS PRIVITY? “The doctrine of privity means that a contract cannot, as a general rule, confer PRIVITY rights or impose obligations arising under it on any person except the parties to it.” Treitel, The Law of Contract. Under the doctrine of privity: ACQUIRE RIGHTS UNDER A third party cannot BE LIABLE FOR a contract to which he is not a party. ENFORCE NOTE: the doctrine is closely connected to the principle that consideration must move from the promisee (see Consideration chapter). The leading cases on the classic doctrine are Price v Easton, Tweddle v Atkinson and Dunlop Pneumatic Tyre Co Ltd v Selfridges & Co Ltd. -
The Consumer Protection Act
The Consumer Protection Act Up until now our market laws have been based on the principle of Roman Dutch law that the "buyer must beware". The Consumer Protection Act (the Act) turns this principle on its head and effectively says "seller beware". The principles which will serve to guide us in the interpretation of this Act are to be gleaned from Section 3 (1) of the Act. What this means is that whenever we are uncertain about the meaning and extent of any portion of the Act we must assume that the legislature intended it to be understood to be achieving one of the purposes set out in Section 3. That Section provides that; The purposes of this Act are to promote and advance the social and economic welfare of consumers in South Africa by— (a) establishing a legal framework for the achievement and maintenance of a consumer market that is fair, accessible, efficient, sustainable and responsible for the benefit of consumers generally; (b) reducing and ameliorating any disadvantages experienced in accessing any supply of goods or services by consumers— (i) who are low-income persons or persons comprising low-income communities; (ii) who live in remote, isolated or low-density population areas or communities; (iii) who are minors, seniors or other similarly vulnerable consumers; or (iv) whose ability to read and comprehend any advertisement, agreement, mark, instruction, label, warning, notice or other visual representation is limited by reason of low literacy, vision impairment or limited fluency in the language in which the representation -
Unsolicited Merchandise
UNSOLICITED MERCHANDISE: STATE AND FEDERAL REMEDIES FOR A CONSUMER PROBLEM The practice of sending merchandise as an offer of sale without an order or solicitation has long plagued the consumer.' Gifts of unsolicited goods provide effective advertising since consumers welcome a free opportunity to try a new product, 2 but when unsolicited merchandise 3 is sent as an offer of sale, subsequent attempts to collect payment present difficult consumer problems.' The problems have prompted action by several state legislatures, 5 Congress,6 and the Federal Trade Commission7 attempting to regulate or eliminate this sales technique. Such efforts have radically changed I. See generally FTC Consumer Bulletin No. 2, "Unordered Merchandise-Shippers Obligations and Consumer's Rights" (June 25, 1968), 2 TRADE REG. REP. 7559.75 (1969). Although no statistics are available, the scope of the problem is indicated by some of the findings of fact made by the hearing examiner in Joseph L. Portwood, No. 8681 (F.T.C. Jan. 19, 1968), final order issued, [1967-70 Transfer Binder] TRADE REG. REP. 18,176 (FTC 1968), affd, 418 F.2d 419 (10th Cir. 1969). The defendant, a professional stamp dealer, estimated that 5,000 dealers in the United States mailed unsolicited stamps. 2. If the free goods are razor blades or drugs and are appropriated by children before reaching the intended recipient, a serious health hazard may exist. A bill, H.R. 3954, 90th Cong., Ist Sess. (1967), was once introduced to prohibit the unsolicited mailing of such products except to physicians, dentists, and barbers. Hearings were held, but the bill was not reported out of committee. -
IN the COURT of APPEALS of IOWA No. 9-342 / 08-1570 Filed
IN THE COURT OF APPEALS OF IOWA No. 9-342 / 08-1570 Filed July 22, 2009 ADDISON INSURANCE COMPANY, Plaintiff-Appellant, vs. KNIGHT, HOPPE, KURNICK & KNIGHT, L.L.C., Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge. Appellant appeals the grant of summary judgment and asserts legal malpractice against its former counsel. AFFIRMED. Robert Hogg and Patrick M. Roby of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellant. James E. Shipman and Chad M. VonKampen of Simmons Perrine Moyer Bergman, P.L.C., Cedar Rapids, and David Macksey and Victor J. Pioli of Johnson & Bell, Ltd., Chicago, Illinois, for appellee. Heard by Sackett, C.J., and Vogel and Miller, JJ. 2 VOGEL, J. Addison Insurance Company (Addison) appeals the grant of summary judgment in favor of its former counsel, Knight, Hoppe, Kurnik & Knight, L.L.C. (Knight) on a legal malpractice claim. We affirm. I. Background Facts and Proceedings The underlying lawsuit was brought in New York on March 24, 1995, by the administratrix of the Gary Ketten Estate after Ketten was killed in a vehicle collision on April 2, 1993. The suit generally alleged Knoedler Manufacturing Company (Old Knoedler) was liable for the manufacture of a defective truck seat. Addison insured Old Knoedler at the time of the accident. On December 17, 1993, approximately nine months after the accident, Old Knoedler was sold to Sturhand Investments, Inc., who also purchased the name Knoedler Manufacturers, Inc., (New Knoedler). The sale was made under an asset purchase agreement.1 Addison also insured New Knoedler from December 18, 1993, to December 18, 1994, but provided no coverage to New Knoedler for the date of the accident, nor was there any assignment of insurance coverage in the asset purchase agreement. -
Misrepresentation: the Pitfalls of Pre-Contract Statements
inbrief Misrepresentation: the pitfalls of pre-contract statements Inside What makes a misrepresentation actionable? Causes of action Remedies Risk management Practical tips inbrief Introduction Prior to the conclusion of a contract What makes a misrepresentation complete the work in the stated timescale. parties will often make statements actionable? However, the statement of opinion carries with it an implied representation of fact, namely that to each other - during negotiations, There are various conditions that must be satisfied the supplier in fact held such an opinion. In an in tender documents and in a variety to make a misrepresentation actionable: appropriate context, it also carries with it an of other ways. Most pre-contract implied representation of fact that the supplier 1. There must be a statement by the statements are carefully considered. had reasonable grounds for holding that representor or his agent. The statement But sometimes statements are made opinion and perhaps also the further implied can be oral, written or by conduct. which are false or misleading. When representation that it had carried out a proper false statements induce an innocent 2. The statement must be a statement of fact analysis of the amount of time needed to (as opposed to a statement of opinion or complete the work. Proving that those implied party to enter into a contract the future intention). representations of fact were false would in consequences can be serious. principle lead to liability in misrepresentation. 3. The representation must be made to the The purpose of this guide is to representee or to a class of which the The key point is that actionable consider the litigation risks generated representee is a member. -
Re-Defining Privity of Contract: Brown V. Belleville (City) 731
RE-DEFINING PRIVITY OF CONTRACT: BROWN V. BELLEVILLE (CITY) 731 RE-DEFINING PRIVITY OF CONTRACT: BROWN V. BELLEVILLE (CITY) M.H. OGILVIE* I. INTRODUCTION The classical definition of the common law doctrine of privity states that “a contract cannot (as a general rule) confer rights or impose obligations arising under it on any person except the parties to it.”1 The latter part of the proposition is uncontroversial since it is universally acknowledged to be unjust for parties to agree to impose an obligation on an unsuspecting other and thereby be able to sue to enforce that obligation. The former part of the proposition is controversial, particularly where the expressed purpose of the contract is to bestow a benefit on another. The controversial part of that proposition is the implication that a third party could, by virtue of the contract, obtain a legal right to sue to enforce an agreement made for the third party’s benefit when the third party is not a party to the consideration, that is, has contributed nothing to the exchange, and, therefore, should not be entitled to enforce the agreement. By definition, contract law is about the enforcement of promises exchanged by the parties who have voluntarily consented and contributed to that exchange, and anticipate benefiting from it in a way meaningful to each other. The doctrine of consideration serves the important function of identifying the parties to the exchange, but it does not necessarily identify who is to benefit from it; a party to the consideration could well have entered the agreement to purchase something to bestow as a gift on another in the future. -
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. -
July 30, 2005: Are You Ready for the Ontario Consumer Protection Act
JULY 30, 2005: ARE YOU READY FOR THE ONTARIO CONSUMER PROTECTION ACT, 2002? Miller Thomson LLP © 2005 TABLE OF CONTENTS 1. WHO IS A “CONSUMER”?...............................................................................................3 2. THE CPA APPLIES TO SERVICES..................................................................................4 3. ARE THERE EXCEPTED BUSINESSES WHO NEED NOT COMPLY?.......................4 4. DISCLOSURE AND DELIVERY OF THE CONTRACT TO THE CONSUMER ..........4 5. QUALITY OF SERVICES AND GOODS .........................................................................4 6. UNFAIR BUSINESS PRACTICES AND MISLEADING ADVERTISING.....................4 7. SPECIFIC TYPES OF CONTRACTS GOVERNED BY THE NEW CPA .......................6 7.1 Future Performance Agreements................................................................................6 7.2 Time Share Agreements .............................................................................................7 7.3 Personal Development Services .................................................................................7 7.4 Direct Agreements......................................................................................................7 7.5 Internet Agreements ...................................................................................................8 7.6 Remote Agreements ...................................................................................................8 7.7 Amending or Renewing Consumer Agreements........................................................9 -
Michigan Consumer Protection Law and Other Michigan Consumer Statutes
MICHIGAN CONSUMER PROTECTION LAW AND OTHER MICHIGAN CONSUMER STATUTES Gary M. Victor Eastern Michigan University and Sole Practitioner Steven E. Goren Goren & Goren. PC I. THE MICHIGAN CONSUMER PROTECTION ACT A. INTRODUCTION AND OVERVIEW When the Michigan Consumer Protection Act (MCPA) was passed in 1977, it appeared to be one of the broadest and most powerful consumer protection acts in the country. It prohibits over thirty types of conduct as unfair and deceptive practices when committed in trade or commerce. See MCL 445.903(1)(a) through (cc) and MCL 445.903(b). It defined “trade or commerce” very broadly including virtually all types of economic activity providing goods or services for “personal, family or household” purposes. See MCL 445.902(c). It provided remedies in the form of declaratory judgments, injunctions, individual damages and class actions. See MCL 445.911. Perhaps most importantly, in individual actions it provided for a minimum amount of damages of $250.00 together with reasonable attorneys’ fees. See MCL 445.911(2). During the early years of litigation under the MCPA, several important cases illustrated the great possibilities the MCPA could provide for redressing consumer complaints. Smolen v Dahlmann Appartments, Ltd, 127 Mich App 108 (1983), for example, held that a violation of the Landlord-Tenant Relationships Act (MCL 554.601, et seq.), which does not provide for attorneys’ fees, could also constitute a violation the MCPA which does. Mikos v Chrysler Corp, 158 Mich App 781 (1987) established the principle that a breach of an implied warranty of merchantability constituted a violation of the MCPA entitling the plaintiff to attorneys’ fees.