American Contract Law for a Global Age, 2017a

More documents

Recommendations

Info

_____________________ Review Question 2. The dissent, a majority of states, and section 195 of the Restatement (Second) of Contracts take a position under which the release in Hanks would be enforced. What would the policies be that favor enforcement of a contract excusing negligence? If parties have the ability to contract around the duty not to be negligent, how much does that undermine a fundamental purpose of tort law? _____________________ VALLEY MEDICAL SPECIALISTS v. FARBER Supreme Court of Arizona 194 Ariz. 363, 982 P.2d 1277 (en banc 1999) FELDMAN, J. In 1985, Valley Medical Specialists (“VMS”), a professional corporation, hired Steven S. Farber, D.O., an internist and pulmonologist who, among other things, treated AIDS and HIV-positive patients and performed brachytherapy—a procedure that radiates the inside of the lung in lung cancer patients. Brachytherapy can only be performed at certain hospitals that have the necessary equipment. A few years after joining VMS, Dr. Farber became a shareholder and subsequently a minority officer and director. In 1991, the three directors, including Dr. Farber, entered into new stock and employment agreements. The employment agreement contained a restrictive covenant, the scope of which was amended over time. In 1994, Dr. Farber left VMS and began practicing within the area defined by the restrictive covenant, which at that time read as follows: The parties recognize that the duties to be rendered under the terms of this Agreement by the Employee are special, unique and of an extraordinary character. The Employee, in consideration of the compensation to be paid to him pursuant to the terms of this Agreement, expressly agrees to the following restrictive covenants: (a) The Employee shall not, directly or indirectly: . . . (ii) Either separately, jointly, or in association with others, establish, engage in, or become interested in, as an employee, owner, partner, shareholder or otherwise, (b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or (c) the other party is similarly a member of a class protected against the class to which the first party belongs. ______________________________________________________________________________ 316 CHAPTER V: CONTRACT DEFENSES
or furnish any information to, work for, or assist in any manner, anyone competing with, or who may compete with the Employer in the practice of medicine. . . . (iv) Either separately, jointly or in association with others to provide medical care or medical assistance for any person or persons who were patients or [sic] Employer during the period that Employee was in the hire of Employer. . . . (d) The restrictive covenants set forth herein shall continue during the term of this Agreement and for a period of three (3) years after the date of termination, for any reason, of this Agreement. The restrictive covenants set forth herein shall be binding upon the Employee in that geographical area encompassed within the boundaries measured by a five (5) mile radius of any office maintained or utilized by Employer at the time of execution of the Agreement or at any time thereafter. VMS filed a complaint against Dr. Farber seeking (1) preliminary and permanent injunctions enjoining Dr. Farber from violating the restrictive covenant, (2) liquidated damages for breach of the employment agreement, and (3) damages for breach of fiduciary duty, conversion of patient files and confidential information, and intentional interference with contractual and/or business relations. Following six days of testimony and argument, the trial court denied VMS’s request for a preliminary injunction, finding that the restrictive covenant violated public policy. The court of appeals reversed, concluding that a modified covenant was reasonable. A brief reference to basic principles is appropriate. Historically, covenants not to compete were viewed as restraints of trade and were invalid at common law. Eventually, ancillary restraints, such as those incident to employment or partnership agreements, were enforced under the rule of reason. See Restatement (Second) of Contracts § 188 (1981). A covenant not to compete is invalid unless it protects some legitimate interest beyond the employer’s desire to protect itself from competition. The legitimate purpose of post-employment restraints is to prevent competitive use, for a time, of information or relationships which pertain peculiarly to the employer and which the employee acquired in the course of the employment. Despite the freedom to contract, the law does not favor restrictive covenants. We first address the level of scrutiny that should be afforded to this restrictive covenant. Dr. Farber argues that this contract is simply an employer-employee agreement and thus the restrictive covenant should be strictly construed against the employer. See Amex Distributing Co. v. Mascari, 724 P.2d 596, 600 (Ariz. Ct. App. 1986) (noting employer-employee restrictive covenants are disfavored and strictly ______________________________________________________________________________ UNIT 16: POLICY-BASED DEFENSES 317
Page 2 and 3:
___________________________________
Page 4 and 5:
Notices This is the first edition o
Page 6 and 7:
About CALI eLangdell Press The Cent
Page 8 and 9:
Unit 19: Conditions ...............
Page 10 and 11:
___________________________________
Page 12 and 13:
hired Corleone family thugs 4 or an
Page 14 and 15:
described herein, and agrees to fre
Page 16 and 17:
6. MARY BETH WHITEHEAD, Surrogate,
Page 18 and 19:
Surrogate and WILLIAM STERN, Natura
Page 20 and 21:
10. Consider paragraph 5. Should th
Page 22 and 23:
The two court opinions that follow
Page 24 and 25:
Venue Venue is a concept of place
Page 26 and 27:
Their first child, Ryan, was born o
Page 28 and 29:
Subsequent to entering into the sur
Page 30 and 31:
The sixth and final argument sugges
Page 32 and 33:
It is argued by amicus that the $ 1
Page 34 and 35:
no stated public policy on surrogac
Page 36 and 37:
IN RE BABY M Supreme Court of New J
Page 38 and 39:
adoption; the sole purpose of the c
Page 40 and 41:
The surrogacy contract violates the
Page 42 and 43:
Problems Donald Donor is a single,
Page 44 and 45:
An Introduction to CONTRACT FORMATI
Page 46 and 47:
particular obligation? In Europe, i
Page 48 and 49:
The evidence is undisputed that pla
Page 50 and 51:
After some negotiation a price of $
Page 52 and 53:
The answer of A.H. Zehmer admitted
Page 54 and 55:
no, that is beer and liquor talking
Page 56 and 57:
on the Zehmers as well as on himsel
Page 58 and 59:
offer and of the reward and its sub
Page 60 and 61:
your professor. You will come acros
Page 62 and 63:
car title you’re holding there. I
Page 64 and 65:
In the modern world, the question o
Page 66 and 67:
pair of sunglasses. The drumroll th
Page 68 and 69:
This letter was apparently sent onw
Page 70 and 71:
Because these cases generally invol
Page 72 and 73:
teenager’s schoolmates gape in ad
Page 74 and 75:
Review Question 3. Note how Judge W
Page 76 and 77:
cash in ten days,” it must be dee
Page 78 and 79:
“Before a contract can be complet
Page 80 and 81:
for the purpose of doing the work a
Page 82 and 83:
accidentally being bound to unwante
Page 84 and 85:
___________________________________
Page 86 and 87:
Here, we have a counter-offer. The
Page 88 and 89:
parties.” Metropolitan Sports Fac
Page 90 and 91:
court. See Minn. R. Civ. App. P. 10
Page 92 and 93:
Thus, it clearly appears that the d
Page 94 and 95:
with distribution. The parties ulti
Page 96 and 97:
all essential terms. See, e.g., Sit
Page 98 and 99:
Enclosed, we beg to hand you contra
Page 100 and 101:
to call for an acceptance particula
Page 102 and 103:
than identify himself, Dealer says,
Page 104 and 105:
offer.” More often, they nod, sha
Page 106 and 107:
The next attack will be my end, I a
Page 108 and 109:
from all the facts and circumstance
Page 110 and 111:
Notice to the agent, within the sco
Page 112 and 113:
2. Written approval by United State
Page 114 and 115:
contrary in the offer, the acceptan
Page 116 and 117:
HOBBS v. MASSASOIT WHIP CO. Supreme
Page 118 and 119:
stranger may impose a duty upon ano
Page 120 and 121:
contract in this case come into exi
Page 122 and 123:
___________________________________
Page 124 and 125:
An Introduction to CONSIDERATION Th
Page 126 and 127:
and you are free to change your min
Page 128 and 129:
Ridge Runner that she lacked the pr
Page 130 and 131:
We conclude that the territory enco
Page 132 and 133:
He further answered, that it was gi
Page 134 and 135:
This action was brought upon an all
Page 136 and 137:
consideration does in fact benefit
Page 138 and 139:
Review Question 5. The promisors in
Page 140 and 141:
The distinction between such a cond
Page 142 and 143:
Vincent refuses. Fritz eventually s
Page 144 and 145:
enefit was money received, the subs
Page 146 and 147:
they stopped work in a body, and de
Page 148 and 149:
supervise this building. Under the
Page 150 and 151:
The day before trial the plaintiffs
Page 152 and 153:
General rules of law established fo
Page 154 and 155:
For the foregoing reasons we are al
Page 156 and 157:
WEBB v. McGOWIN Court of Appeals of
Page 158 and 159:
100 P. 631 (Kan. 1909); Edson v. Po
Page 160 and 161:
McGowin’s adult child, would that
Page 162 and 163:
efuses, saying, “We had a deal.
Page 164 and 165:
Giles had no right to use it. But t
Page 166 and 167:
BLICESTER: That’s crazy. JUDGE: N
Page 168 and 169:
A. She took the piece of paper and
Page 170 and 171:
According to the undisputed proof,
Page 172 and 173:
We recognize that upon different fa
Page 174 and 175:
was discussed with compensation to
Page 176 and 177:
CONRAD v. FIELDS Court of Appeals o
Page 178 and 179:
her job at Qwest and enroll in law
Page 180 and 181:
Seth Wyman’s estranged son Levi i
Page 182 and 183:
An Introduction to ALTERNATIVE REGI
Page 184 and 185:
consistency. Some provisions have p
Page 186 and 187:
TOUSLEY-BIXLER CONSTRUCTION CO. v.
Page 188 and 189:
of goods within this Article whethe
Page 190 and 191:
differently from other contracts? F
Page 192 and 193:
nine units was delivered and paid f
Page 194 and 195:
think they have struck a deal.” Q
Page 196 and 197:
more sense for contract formation t
Page 198 and 199:
COMMERCIAL CODE § 2-206:12 (3D ED.
Page 200 and 201:
face of which appears the notation,
Page 202 and 203:
Problem 10.3 On June 1, the sales d
Page 204 and 205:
except for personal use. If, howeve
Page 206 and 207:
[T]he plain reading of the statute
Page 208 and 209:
not lubricated in any way. Without
Page 210 and 211:
we also note that Best Bolt’s vic
Page 212 and 213:
(c) are fit for the ordinary purpos
Page 214 and 215:
This purchase order represents the
Page 216 and 217:
provision would cause no “surpris
Page 218 and 219:
FLENDER CORPORATION v. TIPPINS INTE
Page 220 and 221:
well that the reservations each par
Page 222 and 223:
The alternate approach, recognized
Page 224 and 225:
(a) Is Ivy League University a “m
Page 226 and 227:
and ratified a treaty called the Un
Page 228 and 229:
(2) The fact that the parties have
Page 230 and 231:
e. Manufacturer in Texas contracts
Page 232 and 233:
an authorized distributor of Defend
Page 234 and 235:
undisputed that each of these alleg
Page 236 and 237:
Treaty Text Note. Read Articles 18,
Page 238 and 239:
*4 (S.D. Ohio Mar. 26, 2009); see a
Page 240 and 241:
perform a substantial part of his o
Page 242 and 243:
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 294 and 295: The first issue is whether the labe
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 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
Page 340 and 341: position to all of his patients (or
Page 342 and 343: An Introduction to TERMS AND INTERP
Page 344 and 345: ___________________________________
Page 346 and 347: contract itself. Thus written docum
Page 348 and 349: consideration of the simultaneous a
Page 350 and 351: the contract on the basis of which
Page 352 and 353: The subject-matter of the written c
Page 354 and 355: understandings or agreements.” 3
Page 356 and 357: little time to compose it . . . . A
Page 358 and 359: expressed in the writing. KN Energy
Page 360 and 361: Article 8 UNITED NATIONS CONVENTION
Page 362 and 363: contracts or that parol evidence re
Page 364 and 365: percent (50%) protein, as tested on
Page 366 and 367: get the deal they intended, and the
Page 368 and 369: Cases and Materials W.W.W. ASSOCIAT
Page 370 and 371: do so because of some identified am
Page 372 and 373: The truth is that whatever virtue a
Page 374 and 375:
Absent strong public policy conside
Page 376 and 377:
FRIGALIMENT IMPORTING CO. v. B.N.S.
Page 378 and 379:
persuasive if sustained by the reco
Page 380 and 381:
and there is force in defendant’s
Page 382 and 383:
RANDOM HOUSE, INC. v. ROSETTA BOOKS
Page 384 and 385:
language of the grant was broad, en
Page 386 and 387:
F.3d at 1095, would conclude that t
Page 388 and 389:
When Hurricane Rubin strikes the lo
Page 390 and 391:
the business. The contract was sile
Page 392 and 393:
party argues ambiguity), the loan f
Page 394 and 395:
accordance with the terms of this c
Page 396 and 397:
of the advance payments, or the num
Page 398 and 399:
imbibe alcoholic beverages and stil
Page 400 and 401:
significant satisfied requirement o
Page 402 and 403:
TOWN OF FAIRFIELD v. D’ADDARIO Su
Page 404 and 405:
damages. The notice of Kant’s act
Page 406 and 407:
who had turned down lucrative offer
Page 408 and 409:
were to suggest some express provis
Page 410 and 411:
notice of ninety days. The plaintif
Page 412 and 413:
Review Question 2. What was Judge C
Page 414 and 415:
exercising discretion under the con
Page 416 and 417:
NANAKULI PAVING AND ROCK CO. v. SHE
Page 418 and 419:
§ 490:1-102(2)(b). The drafters of
Page 420 and 421:
trade existed in Hawaii in 1969 and
Page 422 and 423:
1978) (unpublished opinion) (holdin
Page 424 and 425:
Plaintiff does not contest its stat
Page 426 and 427:
product. The concept of “merchant
Page 428 and 429:
discovery by defendant of the defec
Page 430 and 431:
Unfortunately, Plumber’s work doe
Page 432 and 433:
An Introduction to PERFORMANCE AND
Page 434 and 435:
___________________________________
Page 436 and 437:
doctrine, so that close-enough perf
Page 438 and 439:
the number of joists used in all th
Page 440 and 441:
JACOB & YOUNGS, INC. v. KENT Court
Page 442 and 443:
transgressor must accept the penalt
Page 444 and 445:
was for requiring this kind of pipe
Page 446 and 447:
The evidence is undisputed that the
Page 448 and 449:
eing a new roof. We are not prepare
Page 450 and 451:
This case is simple if the perfect
Page 452 and 453:
yacht remained located at SIYS’ f
Page 454 and 455:
happens by mere operation of law; s
Page 456 and 457:
Problems Problem 21.1 Actor is a ve
Page 458 and 459:
processor for the same price as the
Page 460 and 461:
venue. Under Paradine v. Jane, this
Page 462 and 463:
At trial, the court allowed IH’s
Page 464 and 465:
In order for a supervening event to
Page 466 and 467:
The court interpreted this passage
Page 468 and 469:
economic circumstances sufficiently
Page 470 and 471:
A cancellation order given by her o
Page 472 and 473:
e entitled to judgment. They certai
Page 474 and 475:
performance is excused when unfores
Page 476 and 477:
caused to communications and transp
Page 478 and 479:
Following the closing of the above-
Page 480 and 481:
performance. 407 East 61st Garage,
Page 482 and 483:
Canal, across the Mediterranean thr
Page 484 and 485:
An Introduction to REMEDIES We now
Page 486 and 487:
___________________________________
Page 488 and 489:
multiplication and (very rarely) di
Page 490 and 491:
It was also erroneous and misleadin
Page 492 and 493:
and we turn to the question of whet
Page 494 and 495:
testified that the total gas, oil,
Page 496 and 497:
BRANDEIS MACHINERY & SUPPLY CO., LL
Page 498 and 499:
PEEVYHOUSE v. GARLAND COAL & MINING
Page 500 and 501:
explanation as to why a measure of
Page 502 and 503:
work; however, where the contract p
Page 504 and 505:
clear and unambiguous and the parti
Page 506 and 507:
pool contractor to finish the pool
Page 508 and 509:
___________________________________
Page 510 and 511:
Nevertheless, the English courts he
Page 512 and 513:
perform the work. As Lee failed to
Page 514 and 515:
UNITED STATES ex rel. COASTAL STEEL
Page 516 and 517:
emanded for those findings. When th
Page 518 and 519:
the substance is that the plaintiff
Page 520 and 521:
the agreement would continue on a m
Page 522 and 523:
Review Question 7. Note the paralle
Page 524 and 525:
product that would be fully functio
Page 526 and 527:
car to the Country Music Museum for
Page 528 and 529:
___________________________________
Page 530 and 531:
Restatement (Second) of Contracts s
Page 532 and 533:
Harrahs brings the instant action a
Page 534 and 535:
contest payment for same if constru
Page 536 and 537:
This is in accord with the earlier
Page 538 and 539:
Defendant’s sole defense to this
Page 540 and 541:
particular. Certainly, none of the
Page 542 and 543:
sustained where, from the nature of
Page 544 and 545:
ut will be happy to try to help in
Page 546 and 547:
the full $7,500 price of admission
Page 548 and 549:
Problem 25.2 Mina is a second-year
Page 550 and 551:
___________________________________
Page 552 and 553:
other types of specific performance
Page 554 and 555:
imposed as the remedy for breach of
Page 556 and 557:
certainty, then S&M should be compe
Page 558 and 559:
There is simply no requirement in t
Page 560 and 561:
“other proper circumstances” th
Page 562 and 563:
fence plaintiff erected to discoura
Page 564 and 565:
y no means certain, at the time of
Page 566 and 567:
cannot use that method of self-help
Page 568 and 569:
contract price of $533,000) that La
Page 570 and 571:
teacher resigned at the beginning,
Page 572 and 573:
eaching its lease with Perez by the
Page 574 and 575:
___________________________________
Page 576 and 577:
An Introduction to CONTRACT NONPART
Page 578 and 579:
___________________________________
Page 580 and 581:
fraud, mistake, and illegality. If
Page 582 and 583:
may be the diversity of opinion els
Page 584 and 585:
given him by the will for a particu
Page 586 and 587:
since Lawrence v. Fox in a desire t
Page 588 and 589:
workers’ compensation benefits),
Page 590 and 591:
to divide a lawyer’s loyalty betw
Page 592 and 593:
Review Question 9. Lawyers do many
Page 594 and 595:
Problems Problem 27.1 Hank and Hild
Page 596 and 597:
___________________________________
Page 598 and 599:
interested in jumping into such a b
Page 600 and 601:
limitations barred the claims. She
Page 602 and 603:
assigned their claim to recover the
Page 604 and 605:
application to this contract as it
Page 606 and 607:
A breach of contract has been defin
Page 608 and 609:
moved to Arizona and had no further
Page 610 and 611:
It is evident from the express lang
Page 612 and 613:
contracted to assume, and the assig
Page 614:
March 1 for the conveyance of Purpl
show all

American Contract Law for a Global Age, 2017a

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?