The USA Contract Law and Ophelia - Assignment Example

Running head: USA CONTRACT LAW USA Contract Law [Writer’s name] [Institution’s name] USA Contract Law Part I (1998 words) Answer 3 Empro wants a appeal based on the assumption binding effect of a document riles on the parties' intent, this means that the case will carry on . Empro claims that parties planned to be bound . the above mentioned company considers “intent to be bound" as a issue of the both sides condition of the mind, however if intent were completely prejudiced there may have been no parol evidence rule, and no case may have be decided without a jury trial, and the effect of a commercial transaction would remain uncertain till the papers were inked. This would greatly affect the company Contract law does promote and defend the desires of parties, however they have to convey these explicitly. Put in a different way, "intent" as per contract law is objective and is not subjective (Burrows 2009). Considering law parties who sign a agreement "subject to" a later authoritative agreement have included an intent not to be bound, as per the parol evidence rule turns into the definitive intent , regardless of the fact if one party may sate the true intent was not what it seemed to be (Blum 2010). A investigation of the conditions of the letter Empro sent does not support the argument , nevertheless. As per a definitive agreement it occurs twice. The letter also mentions twice, that it includes the "general requisites and conditions", this proves that both parties had he right to make other demands as well . Empro protected itself from binding effect . it managed this by listing, amongst the conditions on which the agreement was signed , this may be subject to the agreement of the shareholders and board of directors of Empro. shareholders and board of directors could reject a deal bargained by the company’s representative for a reason like the belief that Ball-Co was being paid more then it should be and cannot even be permitted to see the documents, or even think about the merits of the deal. They were careful in requiring the return of its $5,000 in earnest money with no set off, if transaction does not take place even though the seller generally gets to keep the earnest money where the other party changes its decision . Thus, Empro was not at fault in this case. Answer 6 The doctrine of unconscionability is based on factual information which stems from equitable doctrine. Unconscionability is a ordinary form contracts normally is used where there is no important alternative on the part of one party In this doctrine the differences among the parties hold important and not both side’s position. However, if one side is extremely experienced then the other side then characteristics may also be considered. Lack of education, Illiteracy or a failure to comprehend the language of the contract is characteristics which the court considers important. Suppose if one party is bankrupt it might work as a substitute for lack of commercial sophistication: it is usually difficult for poor people less educated and experience) to bargain and comprehend a contract. The most well known case regarding the issue in question is , Williams v. Walker-Thomas Furniture Co., it gives a detailed over view of unconscionability, which fits rather well with the segmented into two factors i.e. substantive and procedural factors: “[A]n absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”(cite) After the above mentioned the court points that the question of if there has been a significant choice can only be answered if all the circumstances during the transaction are considered. It then gives a detailed description of meaningful choice it may be made null and void by a unpleasant inequality of bargaining power . The main question in the case was “Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices?”( Skelly 1965 ) This may also be noted in the case of Frostifresh Corp. v. Reynoso where Lack of education is a factor (Ellinghaus 1969) which many courts consider. Illiteracy or an incapability to comprehend the language of the contract may also be considered. The conclusion of such cases by the court is that, as someone normally presume the threat and is bound by a contract which is signed by the individual without full understanding of its conditions, there are example where that rule must be ignored because of procedural misconduct or disobedience. These cases, the court ought to regard as the conditions of the contract and if they are so unfair that enforcement must be withdrawn. Answer7 Regarding liquidated damages provision in purchase an sale provision may generally be imposed so long as, when the contract was carried out, actual damages were difficult to presume and the amount of liquidated damages may have been a reasonable prediction of the actual damages that could steam from breach of the contract. In NPS, LLC v. Minihane, 451 Mass. 417 (2008), the Supreme Judicial Court stated hat “Whether a liquidated damages provision in a contract is an unenforceable penalty is a question of law [and] the burden of showing that a liquidated damages provision ….” (Ellinghaus 1969). The court further stated that “should be enforced, so long as it is not as disproportionate to anticipated damages as to constitute a penalty.” (Ellinghaus 1969) For the contract to be imposed, a liquidated damages provision should fulfill two requirements: first, it has to be ensured that when contracting the actual damages which stem from a breach were hard to determine; and second, that the amount decided on as liquidated damages signifies a reasonable forecast of damages assumed to take place if there is a breach. The NPS Court found that due to the fact there is no “bright line” dividing a legal liquidated damages provision from which operates as a punishment. As per the above provided assumption , $1,000 in liquidated damages may signify just 0.045% of the purchase price .this will be received by the seller however only after the contract has been performed. Another case which highlights the same issue is TAL Fin. Corp. v. CSC Consulting, Inc., 446 Mass. 422, 431 (2006). In this case the court sates that “Whether a liquidated damages provision in a contract is an unenforceable penalty is a question of law.” (Rodger 2010) . it may be noted that in this case the responsibility of showing unenforceability may be on the other party or side. Answer 8 In promissory condition, the promisor has a little control. Promissory Condition is an incident or fact in which both sides agreement is essential and which a promise in the contract is and as a result it is dependent upon the performance of one of the parties to the contract. Implied that party will act in Good Faith to fulfill the condition. Reinert v. Lawson is a good example (Blum 2010). Where as in Ordinary conditions are often regarded as provisions contained in the dispositive norms which is implemented automatically implemented to the contract if the contract is arisen . it is unnecessary for contracting parties to agree on them The distinction between ordinary and promissory conditions is critical because the consequences of a failure of the condition are dependent on breech . as both have different norms. Ordinary have dispositive norms which parties are free to avoid where in Promissory Condition both parties have to abide by the norms (Blum 2010).. Answer 9 Specific performance should be the standard remedy as compared to expectation damages , however it consists of 4 major disadvantages that at times lower joint contractual value. Firstly vendor may have to perform even if that is extremely costly for them to do so (presume that an excavator suddenly hits a bolder) and overshadows its value to the buyer. Obviously , if the above mentioned conditions prevail then sellers may even negotiate so that the good may be released , however that may include bargaining costs and there may also be a possibility that no agreement is made (Lando & Rose 2004) . The Second disadvantage may be that , the possibility of these issues related with high production expense may make sellers consider wasteful avoidance precautions (to buy rock-crushing machines without thinking about the fact that it is extremely uneconomic). Third, disadvantage is the probability that sellers will have to pay a huge sum of money for releases if performance was to be extremely costly ( it may even be more disadvantageous if performance had to be taken place), it may give rise to an detrimental risk for sellers. Although excessive performance may under no circumstances occurs due to sellers negotiate releases, they stall may face a great risk, I.e. the cost. Fourth disadvantage may be that the procedure of enforcement of an obligation to perform may include substantial expense and this may lead to subpar consequences. The above mentioned disadvantages of specific performance normally may not arise in the expectation measure of damages, thus it may be considered as the measure of damages (Barnett 2010). in the expectation measure, suppose it was costly to perform, then sellers possibly will, and generally may prefer breach and pay damages and not perform (an excavator suddenly hits a bolder most probably may do the before mentioned ). Therefore, sellers will not be required to perform and usually may keep away from more than average bargaining costs, may not be encouraged to use the budget carelessly on avoidance steps, and will not face risk more then that of expectation damages. furthermore, the parties involved will not handle the costs of implementing specific performance. To analyze the difference between specific performance and damage remedies, it may be considered that a contract may be of a extremely uncomplicated character: the contract may emphasize on an unconditional duty – inorder manufacture a good, or to convey property, in either case the result may be price, and a remedy for breach, any one of the two may be used specific performance or expectation damages. However it is worthwhile to analyze this assumption. Firstly It may be considered that the contractual duty is an unconditional means which the contract will not offer for parties to be exempted from the responsibility to perform under difficult conditions , like high price. A contract which offers clearly for all contingencies may be one that the parties would desire specially to be enforced, as by definition it will represent the proper requirements of the parties, whatever may occur, and will state not only when there must be performance but even when there will be no obligation to perform. In reality, obviously, contracts generally require a number of contingencies yet may continue to be considerably partial; they do not offer specifically for a lot of probable situations due to the impracticalities and costs that will be related with making extremely comprehensive contracts. The most suitable means to study the proposition of incompleteness of contracts is to suppose, like it is mentioned above , that the contracts in question include no contingent provisions. Another argument may be that the remedy of specific performance, can be considered as the remedy that makes sure that the contractual responsibility is performed or fulfilled. The understanding of this remedy may be according to the contractual context and would be implemented on s a variety of different yet specific issues. As per the contract regarding producing goods, specific performance may mean that seller has to under any circumstance perform. The third argument may be that the measure of damages maybe considered being the expectation measure. It may also be considered as the safety precaution for the contract price to be paid , as this is the preferred, central measure of indemnity that legal systems utilize. The above analysis compares damage measures and specific performance in detail. Part 2 (1948 words) Ophelia If Ophelia ‘s case against Tom is considered then she by the general principle regarding damages to the rented property she may be able recover compensation by an using tort law for all injuries that may have occurred from Tom’s carelessness of termite infection . If the case goes to court then the judge may entitle Ophelia for damages that will compensate for the damage which may have been caused by the tom’s carelessness of the termite infection. But it also may be kept in mind that the judge predetermine, compensation according to the amount of damages due to the terminates and not the future damage which may take place. Thus if the case goes to court Tom should be prepared for a compensation verdict from the judge (Frey & Frey 2000). The main purpose behind granting compensation is to provide the claimant to go back to the former position. However, here Tom can argue that no major loss has been taken place due to the termite and that he could have controlled the issue before it went out of hand. He may also point out in his past tenure of the lease no such damages had occurred to the property and that the court should consider this before giving the verdict of compensation. Apart from this the damages are replaceable and may be even dealt with out any case in court (Burrows 2004). However Tom may be secure that the property does not have any permanent damage or the court may have granted permanent damages the claim made by Ophelia may be filed for permanent injury damages and could not exclude her from right for consequential injury damages. Tom could have to face a consequential damage case, in which Ophelia would have prove that there may be severe damage to the property if the terminate infection is not cleared out in fact there may even be damage in the property. Ophelia may also have to state the worth of the damage to the court, if so, them Tom may be in trouble and will have to pay the damage that is if the judge gives the verdict of paying compensation to Ophelia. Susie As for Susie’s case, it may be noted a verbal contract is a verbal exchange of conditions or an agreement based on conditions. Susie should have kept in mind at the time of signing the lease that written agreement is more reliable then an oral agreement, even the courts prefer a written one as the document itself serves as an evidence in the case. however Tom may be in trouble as a verbal contract is equally enforceable in court , if Susie can prove the that Tom had told her that he would extend the lease if everything went well and as the verbal agreement fulfilled all the requirements of an enforceable contract (Burrows 2009). Susie does realize that verbal agreement is as legally acceptable as a written contract, although it may be difficult for her to prove in court. As Susie’s agreement meets the standard of law she can take Tom to court Here, however it must be noted that it will he a she say /he say situation in court. The court may take a verdict on Tom’s favor as well. Tom on the other hand can sate his intentions of why he is not going through with the verbal contract; he can also completely refuse the fact that he said any such thing. This may be immoral but in such cases this usually is the situation. But if Tom does not prove himself innocent then the court may consider it a breach of contract on his part. As this is small claims is Susie is most like to approach the small claims court. This may be an efficient way to resolve verbal contract dispute without lawyers. As per this case the involvement of lawyers is not required any how. This may make it easier for Tom to remove the allegation of breech of contract Tom may be able to avoid the entire verdict as there may be no legal (Blum 2010) representative i.e. lawyers to defend Susie. Here one may not that Tom could have the upper hand compared to Susie. However, if Tom breeched the written contract then he would be in trouble. But in this case scenario Tom does have chances of removing the verdict as it will be a he say/she say case. Junior In junior’s case it may be noted that Tom may be trouble as had promised junior that he would eventually hand over the business to him after he finished his education. Thus, if Tom was to extend Susie’s lease and not hand over the business to Junior then Junior can file the case in court. If the case was to go to court then Tom would be "estopped" from claiming in court that contract infact was not signed, as the Junior relied on only on his father’s word of handing over the business. In this case promissory estoppel may be considered (Furmston 2007). It may be able to be suggested in this case as it may allow Tom to claim freedom from legal responsibility as of a lack of concern and may would lead to injustice. As per law of contracts, the doctrine that state that if a party (in this case Tom ) does not fulfill his/ her promise to a extent either through acting or forbearing from acting in dependence upon a unwarranted promise, then I has to be imposed the promise even though the vital elements of a contract are not there (Gan 2012). A few elements must be determined if promissory estoppels is to be imposed on Tom. Tom who made the promise to Junior — however he has made a gratuitous promise that he must logically have expected to provoke action or forbearance of a specific and significant character on the part Junior, as the promise was made to him. Tom must justly fulfill the promise or he may face a court case. A substantial damage which in this case may be, an economic loss — allows junior to take action regarding the case. Injustice in this case can only avoid if Tom fulfills the promise (Frey 2000). Even here Tom may have away of defending him self from the case in question as he had no written contract. It will be a he say/she say case. However, a few judges do not pass verdict compensation or to act upon the promise in one or more specific situations. In fact law at times emanates the doctrine from conditions like, when a benefactor promises to transfer his property as a present and the donee does what the donor says according to the requirement of attaining the property (Furmston2007). Hereby, Tom may have a chance in court. With respect to what Tom may face regarding recovery, it may not be just to award the Tom the benefit of the bargain, if he does not handover his business to Junior and extends Susie’s lease, as there was no space for bargain in such case. However like in many other cases, injustice may also be avoided here awarding the Tom an amount equal to the amount of the property (Gan 2012). Here it may be noted that Tom may have to handover the property as soon as possible as Junior has completed his education and thus, as promised should be given the property. This may be morally as well as legally correct on the part of Tom. Carey careless Carey’s case is quite simple and may not stand strong in court as at the time of signing the job contract Tom had motioned conditions relevant to the deduction of pay in the contract. The Payment of Wages Act may support Tom’s action of pay deduction as The Act support the employer’s right to make deductions from an employee’s salary or earnings by as long as that an employer did provide the employee with a (a) earlier written contractual right to make the deduction; as well as (b) that the employer should provide a week’s notice of the deduction which is to made (Burrow 2004).. The second condition may serve as a source of verdict from the judge to Tom It may be held in court that a unilateral reduction in pay, if the reason behind is valid and to a fairly small degree, might be a material breach of an essential element in the contract of employment. The judge may require Tom to verify if the employment contract was unilaterally varied by Carey or not, as it cannot be implemented without with out the consent of employee in question. Here it also may be noted that Tom can produce a positive verdict for himself as Tom attempted to impose a reduction in Carey’s salary with her consent, i.e. the terms provided in the employment contract. Then this may entitle to be safe from the claim constructive unfair dismissal (Barnett 2010) Carey will not be able to even sue for discrimination or” for reimbursement for the loss that the she may suffer due to the reduction in salary. In either case, Tom will be able to prove that he did avoid unilaterally imposing a reduction in salary of Carey. Here Carey, may not stand strong But this was not the case here the employer i.e. Tom had already written in the contract the terms of reduction in pay so no changes were made in the contract. Infact to may have the upper hand and the court may allow Tom to even terminate Carey. As according to legal conditions if employees do not tare to a decrease in pay, then an employer can even terminate the employees’ contracts of employment by providing him/her a contractual notice and presented the condition of renewing the contract if he agrees to the reduction (Frey 2000). The court may also give the verdict in Carey’s favor if the judge considers the second condition of the Act of one week notice before deduction. But then again the employment contact has clearly written conditions regarding the pay. Tom could even point out the damage caused to him due to Carey. This would even make her accountable for giving Tom compensation apart from the reduction. Tom may be in win –win situation if he claims for damages against the claim which Carey has made. Tom must be careful as the judge can give the verdict against him as damages may even be claimed by Carey .in this case Carey had agreed to the terms and conditions of employment when she signed the contract but yet she pursued a claim for unfair reduction of pay. This is quite common in a lot of cases, as in this one but may be noted that that Tom was humble enough not to claim damages (Blum 2010). If such claims for unfair reduction of pay are eventually successful will depend on a lot of different factors, as per this case they as under: Tom may have an advantage if he employer establish a valid business reason for the reduction in pay; If the disadvantages that Carey may suffer due to reduction and if such disadvantages were more then the advantages to Tom while reducing the pay. If Tom had informed the employees regarding the conditions under which pay may be deducted It Carey had accepted the terms an deductions regarding pay reduction If other possible methods of penalty was considered by Tom If the Tom acted sensibly in all the situations when responding to Carey’s objections of pay reduction (Furmston 2007). References Barnett E. Randy (2010). Contracts: The Oxford Introductions to U.S. Law, Oxford Univ. Press Barnett E. Randy (2009). Perspectives on Contract Law, 4 edition, Aspen Law & Business Burrows Andrew (2004), Remedies for Torts and Breach of Contract. Butterworths Burrows Andrew (2009), A Casebook of Contract Butterworths Blum A. Brian (2010). Examples & Explanations: Contracts, 5th Ed. Aspen Publishers. Frey H. Phyllis and Frey A. Martin (2000). Essentials of Contract Law Delmar Publishers Inc; 1 edition Furmston Michael ( 2007). Butterworths’ Law of Contract Butterworths Law; 2nd Revised edition Gan, Orit (2012), Promissory Estoppel: A Call for a More Inclusive Contract Law (February 7, 2012). Journal of Gender, Race and Justice, Vol. 16, . J. Skelly Wright (1965) , Williams v. Walker-Thomas Furniture Company 350 F.2d 445 (D.C. Cir. 1965) Lando, Henrik and Rose Caspar (2004) , “On the Enforcement of Specific Performance in Civil Law Countries”, 24 International Review of Law and Economics 473-487 M. P. Ellinghaus (1969); 'In Defense of Unconscionability', Yale Law Journal 78: 757–815 Roger T. Manwaring (2010 ); Liquidated Damages in P&S.. massachusetts Academy of Trial Attorneys Journal, Read More