American Contract Law for a Global Age, 2017a

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The first issue is whether the labeling of the envelope, allegedly containing $15,000 in cash, as “documents regarding school bills” constitutes a misrepresentation. A misrepresentation is “an assertion that is not in accordance with the facts.” Plaintiff asserts that “documents” suffices as a general description of currency. This is an untenable position. The term “documents regarding school bills” does not indicate that the contents are inherently valuable to third-party interlopers or others in DHL’s position. Plaintiff’s description is not in accord with the now alleged fact that there was cash in the envelope and, consequently, is a misrepresentation of the contents. The second element is whether the misrepresentation was fraudulent or material. If the misrepresentation was non-fraudulent or innocent, it must be material for the contract to be voidable. Rest. 2d § 164 cmt b. On the other hand, if the misrepresentation was fraudulent, it is not required to be material for the contract to be voidable. (1) A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion. Rest. 2d § 162. The plaintiff claims that the description was as accurate as he felt it could be without inviting theft. By making such an assertion, to some extent plaintiff purposely misled DHL about the contents of the shipment. However, plaintiff also claims that he was unaware that DHL would not ship cash. In considering the requirement to view the record in a light most favorable to the non-moving party, the Court is simply unwilling at this point to rule that the misrepresentation was fraudulent as a matter of law. The alternative factor to be considered under the second element is, if the misrepresentation is not fraudulent, is it, nevertheless, material. (2) A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so. Rest. 2d § 162. “The materiality of a misrepresentation is determined from the viewpoint of the maker.” Id. cmt c. In the instant case, plaintiff had in his possession airbills which are bills of lading. Based on this long-time use of DHL’s services, plaintiff cannot now be heard ______________________________________________________________________________ 286 CHAPTER V: CONTRACT DEFENSES
to complain that he was unaware of the terms and conditions contained on the Airway bill. Therefore, plaintiff is bound by those terms and conditions, as he signed the Airway bill. Given that plaintiff must be charged with the knowledge that DHL does not accept cash for delivery, the misrepresentation becomes material. It is material because “the maker [plaintiff] knows that for some special reason it is likely to induce the particular recipient to manifest his assent.” Rest. 2d § 162 cmt c. Put simply, the plaintiff had reason to know DHL would not accept cash and describing the shipment as otherwise, he induced DHL to enter into a contract to which it would not otherwise assent to. The third element to be considered is whether the misrepresentation induced DHL to enter into the contract. “A misrepresentation induces a party’s manifestation of assent if it substantially contributes to his decision to manifest his assent.” Rest. 2d § 167. It is not necessary that this party’s reliance on the misrepresentation be “the sole or even the predominant factor in influencing his conduct.” Id. cmt a. “It is assumed, in absence of facts showing the contrary, that the recipient attached importance to the truth of the misrepresentation if it was material, but not if it was immaterial.” Id. cmt b. In the instant case, the misrepresentation was material. Further, there is nothing in the record to indicate that DHL did not attach importance to the misrepresentation. In fact, it is just the opposite. As noted before, the shipper’s 1 signature block of the Airway bill contains the following statement, “I warrant that all details given herein are true and correct,” plus paragraph 2 on the back of the bill, relating to giving an accurate description of the contents, reflects DHL’s concern as to the accuracy of the description of the shipment, as does the blank the shipper uses to describe the contents. Therefore, it is clear that the misrepresentation was a substantial factor in DHL’s decision to enter into the contracts at issue. The fourth element to be considered is whether DHL’s reliance on the misrepresentation is reasonable. A misrepresentation will have no legal effect unless the recipient’s reliance is justified. Prior to shipping and giving the envelope to DHL, plaintiff twice inquired as to the availability of $15,000 worth of insurance. This would indicate that the documents’ value belied the description on the Airway bill. DHL argues that plaintiff attempts to impose a duty to inspect every envelope. This may or may not be plaintiff’s intent but that is of no moment. What is important is the fact that DHL does reserve the right to inspect the envelopes it accepts for delivery. DHL would not reserve such a right if it did not believe that at 1 [Be careful with the terminology here, as it sometimes confuses students. In a transportation contract, the “carrier” is the entity that transports the goods (in this case, DHL), and the “shipper” is the person (Alabi) who has delivered the goods to the carrier for shipment.—Eds.] ______________________________________________________________________________ UNIT 15: ASSENT-BASED DEFENSES 287
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Notices This is the first edition o
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About CALI eLangdell Press The Cent
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Unit 19: Conditions ...............
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hired Corleone family thugs 4 or an
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described herein, and agrees to fre
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6. MARY BETH WHITEHEAD, Surrogate,
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Surrogate and WILLIAM STERN, Natura
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10. Consider paragraph 5. Should th
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The two court opinions that follow
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Venue Venue is a concept of place
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Their first child, Ryan, was born o
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Subsequent to entering into the sur
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The sixth and final argument sugges
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It is argued by amicus that the $ 1
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no stated public policy on surrogac
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IN RE BABY M Supreme Court of New J
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adoption; the sole purpose of the c
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The surrogacy contract violates the
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Problems Donald Donor is a single,
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An Introduction to CONTRACT FORMATI
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particular obligation? In Europe, i
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The evidence is undisputed that pla
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After some negotiation a price of $
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The answer of A.H. Zehmer admitted
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no, that is beer and liquor talking
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on the Zehmers as well as on himsel
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offer and of the reward and its sub
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your professor. You will come acros
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car title you’re holding there. I
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In the modern world, the question o
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pair of sunglasses. The drumroll th
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This letter was apparently sent onw
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Because these cases generally invol
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teenager’s schoolmates gape in ad
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Review Question 3. Note how Judge W
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cash in ten days,” it must be dee
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“Before a contract can be complet
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for the purpose of doing the work a
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accidentally being bound to unwante
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Here, we have a counter-offer. The
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parties.” Metropolitan Sports Fac
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court. See Minn. R. Civ. App. P. 10
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Thus, it clearly appears that the d
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with distribution. The parties ulti
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all essential terms. See, e.g., Sit
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Enclosed, we beg to hand you contra
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to call for an acceptance particula
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than identify himself, Dealer says,
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offer.” More often, they nod, sha
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The next attack will be my end, I a
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from all the facts and circumstance
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Notice to the agent, within the sco
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2. Written approval by United State
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contrary in the offer, the acceptan
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HOBBS v. MASSASOIT WHIP CO. Supreme
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stranger may impose a duty upon ano
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contract in this case come into exi
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An Introduction to CONSIDERATION Th
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and you are free to change your min
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Ridge Runner that she lacked the pr
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We conclude that the territory enco
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He further answered, that it was gi
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This action was brought upon an all
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consideration does in fact benefit
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Review Question 5. The promisors in
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The distinction between such a cond
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Vincent refuses. Fritz eventually s
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enefit was money received, the subs
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they stopped work in a body, and de
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supervise this building. Under the
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The day before trial the plaintiffs
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General rules of law established fo
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For the foregoing reasons we are al
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WEBB v. McGOWIN Court of Appeals of
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100 P. 631 (Kan. 1909); Edson v. Po
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McGowin’s adult child, would that
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efuses, saying, “We had a deal.
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Giles had no right to use it. But t
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BLICESTER: That’s crazy. JUDGE: N
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A. She took the piece of paper and
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According to the undisputed proof,
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We recognize that upon different fa
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was discussed with compensation to
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CONRAD v. FIELDS Court of Appeals o
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her job at Qwest and enroll in law
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Seth Wyman’s estranged son Levi i
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An Introduction to ALTERNATIVE REGI
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consistency. Some provisions have p
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TOUSLEY-BIXLER CONSTRUCTION CO. v.
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of goods within this Article whethe
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differently from other contracts? F
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nine units was delivered and paid f
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think they have struck a deal.” Q
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more sense for contract formation t
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COMMERCIAL CODE § 2-206:12 (3D ED.
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face of which appears the notation,
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Problem 10.3 On June 1, the sales d
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except for personal use. If, howeve
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[T]he plain reading of the statute
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not lubricated in any way. Without
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we also note that Best Bolt’s vic
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(c) are fit for the ordinary purpos
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This purchase order represents the
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provision would cause no “surpris
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FLENDER CORPORATION v. TIPPINS INTE
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well that the reservations each par
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The alternate approach, recognized
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(a) Is Ivy League University a “m
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and ratified a treaty called the Un
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(2) The fact that the parties have
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e. Manufacturer in Texas contracts
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an authorized distributor of Defend
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undisputed that each of these alleg
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Treaty Text Note. Read Articles 18,
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*4 (S.D. Ohio Mar. 26, 2009); see a
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perform a substantial part of his o
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shall be settled by binding arbitra
Page 244 and 245: An Introduction to CONTRACT DEFENSE
Page 246 and 247: ___________________________________
Page 248 and 249: which extended even to being able t
Page 250 and 251: Dickerson, 72 Ala. 318 (1882). In t
Page 252 and 253: loss from the transaction, includin
Page 254 and 255: this definition. Whether other area
Page 256 and 257: ORTELERE v. TEACHERS’ RETIREMENT
Page 258 and 259: medicine, this physician “judged
Page 260 and 261: The avoidance of duties under an ag
Page 262 and 263: 7. What is my total service credit?
Page 264 and 265: Review Question 5. In McGovern v. C
Page 266 and 267: will pay the full listed price of $
Page 268 and 269: endeavoured to be upheld by Perjury
Page 270 and 271: Y Contracts that cannot be performe
Page 272 and 273: you think the consideration doctrin
Page 274 and 275: NICKELS, J., dissenting. I disagree
Page 276 and 277: contracts. What is the real purpose
Page 278 and 279: At the ensuing trial, defendant den
Page 280 and 281: There may be cases in which it woul
Page 282 and 283: professional. Things were really ge
Page 284 and 285: GUENTHER v. AMER-TEX CONSTRUCTION C
Page 286 and 287: (b) Subsection (a) of this section
Page 288 and 289: Problem 14.3 Van der Rohe USA, Inc.
Page 290 and 291: sold, the terms of the sale, the na
Page 292 and 293: the judgment of a vulnerable party.
Page 296 and 297: some point or on some occasion it w
Page 298 and 299: As a matter of law, based on the fa
Page 300 and 301: or, more particularly, in cases suc
Page 302 and 303: “deprived Loral of its free will.
Page 304 and 305: As to mistake, the amended complain
Page 306 and 307: In Weger v. Rocha, 32 P.2d 417 (Cal
Page 308 and 309: I had brought back the topaz, and h
Page 310 and 311: May 5, 1886, plaintiff went out to
Page 312 and 313: arren cow is substantially a differ
Page 314 and 315: prior to the sale was Buyer aware t
Page 316 and 317: Against Public Policy. In many situ
Page 318 and 319: HANKS v. POWDER RIDGE RESTAURANT CO
Page 320 and 321: interest adversely, and identified
Page 322 and 323: illogical, in these circumstances,
Page 324 and 325: _____________________ Review Questi
Page 326 and 327: construed against the employer). Th
Page 328 and 329: acquired by virtue of effort and ex
Page 330 and 331: _____________________ Review Questi
Page 332 and 333: Mere inadequacy of consideration wi
Page 334 and 335: District of Columbia Court of Appea
Page 336 and 337: In determining reasonableness or fa
Page 338 and 339: Problems Problem 16.1 The Californi
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Page 342 and 343: An Introduction to TERMS AND INTERP
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contract itself. Thus written docum
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consideration of the simultaneous a
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the contract on the basis of which
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The subject-matter of the written c
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understandings or agreements.” 3
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little time to compose it . . . . A
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expressed in the writing. KN Energy
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Article 8 UNITED NATIONS CONVENTION
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contracts or that parol evidence re
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percent (50%) protein, as tested on
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get the deal they intended, and the
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Cases and Materials W.W.W. ASSOCIAT
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do so because of some identified am
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The truth is that whatever virtue a
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Absent strong public policy conside
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FRIGALIMENT IMPORTING CO. v. B.N.S.
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persuasive if sustained by the reco
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and there is force in defendant’s
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RANDOM HOUSE, INC. v. ROSETTA BOOKS
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language of the grant was broad, en
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F.3d at 1095, would conclude that t
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When Hurricane Rubin strikes the lo
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the business. The contract was sile
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party argues ambiguity), the loan f
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accordance with the terms of this c
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of the advance payments, or the num
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imbibe alcoholic beverages and stil
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significant satisfied requirement o
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TOWN OF FAIRFIELD v. D’ADDARIO Su
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damages. The notice of Kant’s act
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who had turned down lucrative offer
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were to suggest some express provis
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notice of ninety days. The plaintif
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Review Question 2. What was Judge C
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exercising discretion under the con
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NANAKULI PAVING AND ROCK CO. v. SHE
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§ 490:1-102(2)(b). The drafters of
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trade existed in Hawaii in 1969 and
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1978) (unpublished opinion) (holdin
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Plaintiff does not contest its stat
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product. The concept of “merchant
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discovery by defendant of the defec
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Unfortunately, Plumber’s work doe
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An Introduction to PERFORMANCE AND
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doctrine, so that close-enough perf
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the number of joists used in all th
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JACOB & YOUNGS, INC. v. KENT Court
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transgressor must accept the penalt
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was for requiring this kind of pipe
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The evidence is undisputed that the
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eing a new roof. We are not prepare
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This case is simple if the perfect
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yacht remained located at SIYS’ f
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happens by mere operation of law; s
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Problems Problem 21.1 Actor is a ve
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processor for the same price as the
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venue. Under Paradine v. Jane, this
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At trial, the court allowed IH’s
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In order for a supervening event to
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The court interpreted this passage
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economic circumstances sufficiently
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A cancellation order given by her o
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e entitled to judgment. They certai
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performance is excused when unfores
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caused to communications and transp
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Following the closing of the above-
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performance. 407 East 61st Garage,
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Canal, across the Mediterranean thr
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An Introduction to REMEDIES We now
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multiplication and (very rarely) di
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It was also erroneous and misleadin
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and we turn to the question of whet
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testified that the total gas, oil,
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BRANDEIS MACHINERY & SUPPLY CO., LL
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PEEVYHOUSE v. GARLAND COAL & MINING
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explanation as to why a measure of
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work; however, where the contract p
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clear and unambiguous and the parti
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pool contractor to finish the pool
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Nevertheless, the English courts he
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perform the work. As Lee failed to
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UNITED STATES ex rel. COASTAL STEEL
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emanded for those findings. When th
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the substance is that the plaintiff
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the agreement would continue on a m
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Review Question 7. Note the paralle
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product that would be fully functio
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car to the Country Music Museum for
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Restatement (Second) of Contracts s
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Harrahs brings the instant action a
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contest payment for same if constru
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This is in accord with the earlier
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Defendant’s sole defense to this
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particular. Certainly, none of the
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sustained where, from the nature of
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ut will be happy to try to help in
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the full $7,500 price of admission
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Problem 25.2 Mina is a second-year
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other types of specific performance
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imposed as the remedy for breach of
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certainty, then S&M should be compe
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There is simply no requirement in t
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“other proper circumstances” th
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fence plaintiff erected to discoura
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y no means certain, at the time of
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cannot use that method of self-help
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contract price of $533,000) that La
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teacher resigned at the beginning,
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eaching its lease with Perez by the
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An Introduction to CONTRACT NONPART
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fraud, mistake, and illegality. If
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may be the diversity of opinion els
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given him by the will for a particu
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since Lawrence v. Fox in a desire t
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workers’ compensation benefits),
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to divide a lawyer’s loyalty betw
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Review Question 9. Lawyers do many
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Problems Problem 27.1 Hank and Hild
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interested in jumping into such a b
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limitations barred the claims. She
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assigned their claim to recover the
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application to this contract as it
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A breach of contract has been defin
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moved to Arizona and had no further
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It is evident from the express lang
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contracted to assume, and the assig
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March 1 for the conveyance of Purpl
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