18 Unconscionability and Proprietary Estoppel Remedies
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Unconscionability in Contracts Between Merchants
SMU Law Review Volume 40 Issue 4 Article 4 1986 Unconscionability in Contracts between Merchants Jane P. Mallor Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Jane P. Mallor, Unconscionability in Contracts between Merchants, 40 SW L.J. 1065 (1986) https://scholar.smu.edu/smulr/vol40/iss4/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. UNCONSCIONABILITY IN CONTRACTS BETWEEN MERCHANTS by Jane P. Mallor* HE doctrine of unconscionabilityl has played a role in Anglo-Ameri- can contract law since at least the eighteenth century. 2 In the past twenty years, however, the doctrine has enjoyed an ascendancy that could scarcely have been dreamed of by the chancellors in equity who first employed the doctrine. 3 Its codification in section 2-302 of the Uniform Commercial Code of almost all states,4 and its adoption and application by courts in a wide variety of cases outside the scope of the Uniform Commer- cial Code,5 have brought unconscionability into the forefront of modem American contract law. * B.A., J.D., Indiana University. Associate Professor of Business Law, Indiana Univer- sity School of Business. 1. "Unconscionability is the rubric under which the judiciary may refuse to enforce un- fair or oppressive contracts in the absence of fraud or illegality." Stanley A. Klopp, Inc. v. John Deere Co., 510 F. Supp. -
The Overlapping of Legal Concepts a Legal Realist Approach to the Classification of Private Law
THE OVERLAPPING OF LEGAL CONCEPTS A LEGAL REALIST APPROACH TO THE CLASSIFICATION OF PRIVATE LAW by DAVID SALMONS A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Birmingham Law School College of Arts and Law University of Birmingham Summer 2011 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT The main aim of this research is two-fold; firstly, these chapters will seek to demonstrate the unreliability of theoretical or abstract approaches to legal reasoning in describing the law. Secondly, rather than merely providing a deconstruction of previous attempts to classify private law, the chapters attempt to construct an overlapping approach to classification. This represents a new way of classifying private law, which builds on the foundations of the lessons of legal realism and explains how classification can accommodate overlaps to assist in identifying the core elements of private law reasoning. Following the realist tradition, the thesis argues for narrower formulations of the concepts of property, contract and tort. It is then argued that within these narrower concepts, the law is made more predictable and clearer. -
Unconscionability Wars †
Copyright 2012 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 106, No. 1 UNCONSCIONABILITY WARS † David Horton ABSTRACT —For decades, courts have invoked the contract defense of unconscionability to invalidate one-sided arbitration clauses. Recently, however, a growing cadre of judges, scholars, and litigants has asserted that this practice is incompatible with the Federal Arbitration Act (FAA). Some claim that the FAA only permits arbitrators—not courts—to find arbitration clauses to be unconscionable. Others, such as Justice Thomas—who provided the decisive vote in the Court’s recent decision in AT&T Mobility LLC v. Concepcion —contend that the statute’s plain language immunizes arbitration clauses from unconscionability in all circumstances. This Essay responds to these arguments. In particular, it challenges the cornerstone of both anti-unconscionability theories: that the FAA’s text only allows courts to strike down arbitration clauses for reasons that relate to the “making” of the agreement to arbitrate. AUTHOR —Acting Professor of Law, University of California, Davis, School of Law (effective July 2012); Associate Professor of Law, Loyola Law School, Los Angeles (through July 2012). Thank you to Hiro Aragaki and Stephen J. Ware for helpful comments. † This Essay was originally published in the orthwestern University Law Review Colloquy on August 22, 2011, 106 NW. U. L. REV . COLLOQUY 13 (2011), http://www.law.northwestern.edu/ lawreview/colloquy/2011/17/LRColl2011n17Horton.pdf. 387 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W INTRODUCTION ............................................................................................................ -
Promissory Estoppel, the Civil Law, and the Mixed Jurisdiction
Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1998 Comparative Law in Action: Promissory Estoppel, the Civil Law, and the Mixed Jurisdiction David V. Snyder Indiana University School of Law - Bloomington Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Civil Law Commons, and the Contracts Commons Recommended Citation Snyder, David V., "Comparative Law in Action: Promissory Estoppel, the Civil Law, and the Mixed Jurisdiction" (1998). Articles by Maurer Faculty. 2297. https://www.repository.law.indiana.edu/facpub/2297 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. COMPARATIVE LAW IN ACTION: PROMISSORY ESTOPPEL, THE CIVIL LAW, AND THE MIXED JURISDICTION David V. Snyder* "Touching estoppels, which is an excellent and curious kind of learning. .. I. PROMISSORY ESTOPPEL IN A MIXED JURISDICTION Promissory estoppel, a quintessential creature of the common law, is ordinarily thought to be unknown to the civil law. Arising at first through a surreptitious undercurrent of American case law, promissory estoppel was eventually rationalized in the Restatement of Contracts (Restatement)2 as a necessary adjunct to the bargain theory of consideration. The civil law, with its flexible notion of causa or cause, is free from the constraints of the consideration doctrine. The civil law should not need promissory estoppel. At least initially, the common law and the civil law would appear as disparate in this area as anywhere, and comparative lawyers would be confined to observations about two systems that never meet. -
Estoppel in Property Law Stewart E
Nebraska Law Review Volume 77 | Issue 4 Article 8 1998 Estoppel in Property Law Stewart E. Sterk Benjamin N. Cardozo School of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Stewart E. Sterk, Estoppel in Property Law, 77 Neb. L. Rev. (1998) Available at: https://digitalcommons.unl.edu/nlr/vol77/iss4/8 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Stewart E. Sterk* Estoppel in Property Law TABLE OF CONTENTS I. Introduction .......................................... 756 II. Land Transfers ....................................... 759 A. Inadequate Writings .............................. 760 B. Oral "Agreements". ............................... 764 III. Servitudes by Estoppel ................................ 769 A. Representations by Sellers or Developers .......... 769 B. Representations by Neighbors ..................... 776 C. The Restatement .................................. 784 IV. Termination of Servitudes ............................. 784 V. Boundary Disputes .................................... 788 A. Estoppel Against a True Owner .................... 788 1. By the True Owner's Representations .......... 788 2. By Physical Barriers and Improvements Without Representations ............................... 791 B. Estoppel to Claim Adverse Possession -
A New Look at Contract Mistake Doctrine and Personal Injury Releases
19 NEV. L.J. 535, GIESEL 4/25/2019 8:36 PM A NEW LOOK AT CONTRACT MISTAKE DOCTRINE AND PERSONAL INJURY RELEASES Grace M. Giesel* “[C]ourts cannot make for the parties better agreements than they themselves have been satisfied to make.”1 TABLE OF CONTENTS INTRODUCTION ............................................................................................... 536 I. THE SETTING: THE TYPICAL CASE ..................................................... 542 II. CONTRACT DOCTRINE APPLIES .......................................................... 544 III. CONTRACT MISTAKE DOCTRINE ......................................................... 545 IV. TRADITIONAL APPLICATION OF CONTRACT DOCTRINE TO THE TYPICAL PERSONAL INJURY RELEASE SITUATION.............................. 547 A. A Shared Mistake of Fact and Not a Speculation or Prediction . 547 B. The Injured Party Has the Risk of Mistake by Conscious Ignorance .................................................................................... 548 C. The Release Places the Risk of Mistake on the Injured Party ..... 549 D. Traditional Application of the Unilateral Mistake Doctrine to the Typical Personal Injury Release Situation ............................ 554 E. Conclusions about Traditional Application of the Mistake Doctrine ...................................................................................... 555 V. COURTS’ TREATMENT OF PERSONAL INJURY RELEASES .................... 555 A. Mistake Doctrine Applies with an Unknown Injury But Not with an Unknown Consequence of a Known Injury ................... -
October 2017 Insurance Law Alert
Insurance Law Alert October 2017 In This Issue Pennsylvania Supreme Court Rejects Motive Requirement For Statutory Bad Faith Claims Addressing a matter of first impression, the Supreme Court of Pennsylvania rejected an “ill-will” or motive requirement for statutory bad faith claims against an insurer. Rancosky v. Washington National Ins. Co., 2017 WL 4296351 (Pa. Sept. 28, 2017). (Click here for full article) No Coverage Where Policyholder Failed To Meet Its Burden To Allocate “Simpson Thacher Damages, Says Second Circuit has many litigators The Second Circuit ruled that although a liability policy covered a portion of losses arising from who are very experienced faulty construction claims, the insurer had no duty to indemnify based on the policyholder’s in handling complex, inability to allocate the underlying jury verdict between covered and non-covered losses. Univo multi-faceted litigation v. Harleysville Worcester Ins. Co., 2017 WL 4127538 (2d Cir. Sept. 19, 2017). (Click here for involving novel issues.” full article) –Benchmark 2018 quoting a client Second Circuit Rules That Statutory Prejudgment Interest Begins To Accrue On Date Of Sworn Loss The Second Circuit ruled that statutory prejudgment interest begins to accrue when a sworn proof of loss is submitted, not when the policyholder has fulfilled conditions precedent to coverage. Warehouse Wines and Spirits v. Travelers Prop. Cas. Co. of Am., 2017 WL 4227943 (2d Cir. Sept. 21, 2107). (Click here for full article) Applying Nevada Law, Second Circuit Rules That Insured v. Insured Exclusion Unambiguously Bars Coverage For Director’s Suit The Second Circuit ruled that under Nevada law, an insured v. -
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. -
MINERVA SURGICAL, INC. V. HOLOGIC, INC., ET AL
(Slip Opinion) OCTOBER TERM, 2020 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MINERVA SURGICAL, INC. v. HOLOGIC, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 20–440. Argued April 21, 2021—Decided June 29, 2021 In the late 1990s, Csaba Truckai invented a device to treat abnormal uterine bleeding. The device, known as the NovaSure System, uses a moisture-permeable applicator head to destroy targeted cells in the uterine lining. Truckai filed a patent application and later assigned the application, along with any future continuation applications, to his company, Novacept, Inc. The PTO issued a patent for the device. No- vacept, along with its portfolio of patents and patent applications, was eventually acquired by respondent Hologic, Inc. In 2008, Truckai founded petitioner Minerva Surgical, Inc. There, he developed a sup- posedly improved device to treat abnormal uterine bleeding. Called the Minerva Endometrial Ablation System, the new device uses a moisture-impermeable applicator head to remove cells in the uterine lining. The PTO issued a patent, and the FDA approved the device for commercial sale. Meanwhile, Hologic filed a continuation application with the PTO, seeking to add claims to its patent for the NovaSure System. -
PROPRIETARY ESTOPPEL Recent Developments in England and Wales
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Apollo 110 Singapore Academy of Law Journal (2010) 22 SAcLJ PROPRIETARY ESTOPPEL Recent Developments in England and Wales This article analyses the contrasting reasoning and outcomes in two cases concerning proprietary estoppel that recently came before the highest court in England and Wales. It argues that a context-based dichotomy may emerge in the application of estoppel principles in order to reconcile the Law Lords’ opinions. The article highlights the difficulties in drawing distinctions between “domestic” and “commercial” cases. It then discusses general difficulties raised by the use of proprietary estoppel in the “domestic” context and specifically in connection with the enforcement of oral testamentary promises. With an eye to developments in the comparative law, the article concludes that a statutory scheme for the enforcement of such promises could remedy the difficulties outlined by removing many “domestic” cases from the realm of estoppel. ∗ Brian SLOAN BA (Cantab), LLM (Cantab); Bob Alexander College Lecturer in Law; Fellow of King’s College, University of Cambridge. I. Introduction 1 The very word “estoppel” is defensive. As such, proprietary estoppel was classically used to prevent landowners from unconscionably asserting their strict legal entitlement as against an improver of the land’s value.1 In the modern era, however, it has become a powerful “sword” for claimants who have detrimentally relied on representations given by property owners. The detrimental reliance, moreover, need not be in the form of improvements to the land. In Watts v Story, Slade LJ decided that it was not “possible, or even desirable, to attempt to define the nature and extent of the prejudice or ∗ The author is grateful to Prof Kevin Gray and Dr Jens M Scherpe for their comments on an earlier draft. -
Bona Fide Purchaser--Without Title John E
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Kentucky Kentucky Law Journal Volume 36 | Issue 2 Article 2 1948 Bona Fide Purchaser--Without Title John E. Howe Creighton University Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Property Law and Real Estate Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Howe, John E. (1948) "Bona Fide Purchaser--Without Title," Kentucky Law Journal: Vol. 36 : Iss. 2 , Article 2. Available at: https://uknowledge.uky.edu/klj/vol36/iss2/2 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. BONA FIDE PURCHASER-WITHOUT TITLE1 By JoHN E. HoWEv The legal mind in time of confusion resorts to the use of ancient maxims and Latin phrases in an effort to bring order from chaos. Unless that mind has a fundamental traming m Latin and Legal History-and few minds have such training- the use of such material tends to further mire the person in the depths of misunderstanding. Judicial decisions based on such reasoning are entirely worthless, as the propounders themselves fail to have a basic concept of the idea or thought that is being advanced. If we seek further we will find that it is not uncommon for the teacher, attorney and student of law to justify decisions of the courts through the use of these phrases. -
Mere Equities’
WHAT IS A MERE EQUITY?: AN INVESTIGATION OF THE NATURE AND FUNCTION OF SO-CALLED ‘MERE EQUITIES’ Jack Wells PhD University of York Law January 2019 Abstract This thesis will examine the type of equitable claim known as a ‘mere equity’. The basic characteristics of a mere equity are well established. A mere equity is ‘proprietary’ in that it can be enforced against certain third parties and is capable of alienation in favour of certain third parties. Despite its proprietary flavour, however, a mere equity does not amount to an interest in any property to which it relates. The main consequence of this is that a mere equity is postponed to any interest, legal or equitable, subsequently purchased for value and without notice of the mere equity. While the core features of mere equities are settled, there is much confusion over the underlying legal nature and practical function of these claims. This confusion has produced the criticism that mere equities are an anomalous category, and brought into question whether mere equities should even exist as a juridical concept. This state of affairs is clearly unsatisfactory, especially given that mere equities are the admitted basis of a sizable body of equitable doctrines, including rescission, rectification and proprietary estoppel. This thesis aims to demystify mere equities. It will show that the existing scholarly literature has not adequately engaged with the concept of a mere equity. It will then look afresh at the primary legal materials in order to fill in the conceptual gaps. In short, the thesis will argue that a mere equity is an equitable right of action: a simple claim to pursue a particular equitable remedy against a particular defendant.