...Omar Hazien Advanced Contracts 01/31/2011 Burch Case Brief Procedure Nevada Supreme Ct., 2002 James and Linda Burch, Petitioners, Home purchasers, Plaintiffs v. The Second Judicial Court of Nevada and Double Diamond Ranch, Seller, Defendant. James and Linda Burch sue Double Diamond Ranch for breach of express and implied warranties, negligence, and fraud and misrepresentation. Burches requested removing the insulation, professionally treating area with mildew, installing upgraded insulation, constructing proper water barrier underneath ground, and reimbursement of all fees. The Second Judicial District Court granted developers motion to compel arbitration. Home purchasers petition for writ of mandamus. Petition granted and sent to Supreme Court of Nevada. Facts In March 1997, James and Linda Burch purchase home and homebuyer warranty from Double Diamond. Approximately four months after closing (October 1997), Double Diamond gave Linda Burch a 31 page warranty booklet and made her sign an application form but she did not read the booklet. She signed a document that said by signing she acknowledges she has viewed the “Warranty Teamwork” video, read and received copy of warranty, and consent to all terms including Double Diamond Binding Arbitration Provision. Warranty covers free from material and workmanship defects the first year, electrical/ plumbing/ mechanical defects the second year, and free from structural damages for ten years. In January 1999, the Burches...
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...Since the doctrine of undue influence is under the court of equity , it derives from different other doctrines that gives it's classification a wide variation from case to case. Thus , it shouldn't be limited a scope of criteria. The criteria shown is only to describe the possibilities of the decisions and distinguishing the doctrine from others , but shouldn't be a consistent set of rules that defines what it exactly it should be in every case and how it should be applied in every case. operates to release parties from contracts that they have entered into as a result of being 'influenced' by the other party. - 754 - Lord Nicholls of Birkenhead : ' If the intention was produced by an unacceptable means , the law will permit the transaction to stand. The means used is regarded as exercise of improper or 'undue' influence, and hence unacceptable whenever the consent thus procured ought not fairly to be treated as the expression of a person's free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another , and the manner in which influence may be exercised , vary too widely to permit of any more specific criterion' - 770 ' Even this test is not comprehensive. The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable...
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...QUESTION ONE (1) Jones may have claims against the enforceability of his contract with the Suburban Engineering Company (SEC) in regards to consideration and unconscionability of the non-compete clause. Once those issues have been settled, the court will also need to determine if SEC breached its duty of “good faith”. A. Enforceability Issues I. Consideration Jones’ first claim against SEC is that the non-compete clause lacked consideration. Although courts often question the enforceability of such a clause, Jones’ claim will probably not be accepted by the court. The idea of consideration falls within the Justification Principle. This requires that there be no reason not to enforce the promise. Regarding non-compete clauses, there are competing views as to their enforceability. The main question is whether consideration is given. Is subsequent employment sufficient or must there be an independent consideration as to treat the non-compete clause as a separate promise? In order for a contract’s consideration to be sufficient, there must be a detriment to the promisee or a benefit to the promisor. Some courts hold that these clauses fall within the bargained-for exchange of the contract and will constitute just one component of an employee’s promise in exchange for the bargained-for contract from the employer (assuming no bargaining disparity exists). Judge Moyer reasoned that, “the employee’s assent to the agreement is given in exchange for forbearance on the part of the...
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...Contracts I Outline – go through mind map list the 4 big issues, each para under the issues can include subissues, can say it might not be an issue later ------------------------------------------------- Bern’s Model: TMJM ------------------------------------------------- Tsedeq- righteous moral standard ------------------------------------------------- Misphat- applied even handedly ------------------------------------------------- Jurisdiction- by one authority ------------------------------------------------- cannot force to love ------------------------------------------------- civil government has jurisdiction over evil-doer ------------------------------------------------- can use Israel example ------------------------------------------------- Meshar- producing evenness in outcomes in like cases ------------------------------------------------- "Together the three express the thought of the evenhanded and impartial application (mishpat) of a righteous moral standard (tseden) producing an evenness or equality (meshar) in outcomes in like cases." ------------------------------------------------- God has jurisdiction over all as creator. ------------------------------------------------- Man is made in the image of God and can contract based on language and promise ability. ------------------------------------------------- A person has reason to expect that a person made in the image of God should keep his promises. I. Bases for Enforcing Promises-Theories...
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...Contracts, Fall 2012, Dr. Adams Introduction Contract law is a promise or set of promises for the breach of which the law gives remedy * Sources of Contract Law & Authority (primarily state law, not federal) * Common Law -Judicial opinions * Restatements – produced by the ALI to bring clarity & consistency to CL * Statutory law- always supersedes CL; UCC only applied to the same of goods * International commercial law & the CISG- applies mainly to international contract issues Consideration * Consideration as Benefit or Detriment 21–32 * Appeal of Clark * Court defines consideration via benefit-detriment analysis * Court allows individuals to place a value on services, the court has no right to limit the values a contracting individual puts on the services they receive * Dougherty v. Salt * In order for there to be consideration, both parties must understand that a bargain has happened (a child cannot understand a bargain) * Why is consideration required * Hamer v. Sidway I * Gratuitous transfer (i.e. to give someone something) is not consideration * Consideration must be something of value (a benefit for a detriment trade-off) * Hamer v. Sidway II * Forbearance from a legal right (drinking, smoking, pressing charges) can be consideration because it counts as the detriment element of consideration * Consideration to enforce...
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...performance or a return promise must be bargained for. (§ 71(1)) Bargained for: sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. (§71(2))(Whitten v. Greeley-Shaw: mistress; husband did not bargain) Performance may consist of: (§71(3)) a) an act other than a promise; b) a forbearance (Hamer v. Sidway: no drinking deal w/ uncle) (Duncan v. Black: empty cotton suit); c) the creation, modification, or destruction of a legal relation ii. Warnings for a lack of bargaining (from Whitten): The party proposing the contract also receives material benefit One party is vulnerable and the other takes advantage of a duress-like situation b. Consideration as Motive (§ 81) i. The fact that what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise. A offers B a book for a promise of $10. Still valid consideration even if A intends to give B $10 whether or not he gets the book. ii. The fact that a promise does not of itself induce a performance or return promise does not prevent the performance or return promise from being consideration for the promise. (Earle v. Angell:$500 to attend funeral) A offers B a book for a promise...
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...Question 1 0 out of 2 points | | | Which of the following was passed largely in response to business scandals of the 2000s, such as Enron? | | | | | | | Correct Answer: | The Sarbanes-Oxley Act of 2002. | | | | | Question 2 0 out of 2 points | | | When would a plaintiff use the doctrine of res ipsa loquitur? | | | | | Selected Answer: | [None Given] | Correct Answer: | To allow the judge and jury to infer that more likely than not, the defendant's negligence was the cause of the plaintiff's harm, even though there is no direct evidence of the defendant's lack of due care. | | | | | Question 3 0 out of 2 points | | | The courts generally hold that landowners have a duty to protect individuals on their property. | | | | | Selected Answer: | [None Given] | Correct Answer: | True | | | | | Question 4 0 out of 2 points | | | Which of the following is punishable by imprisonment for more than one year or death? | | | | | Selected Answer: | [None Given] | Correct Answer: | Felony. | | | | | Question 5 0 out of 2 points | | | Which of the following sets forth the common law rule that the terms of an acceptance must mirror the terms of the offer? | | | | | Selected Answer: | [None Given] | Correct Answer: | The Mirror Image Rule. | | | | | Question 6 0 out of 2 points | | | For a court to enforce a promise, _____________ must offer consideration...
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...The Law Handbook Your Practical Guide to the Law in New South Wales 11th edition Contracts 12 Author Carolyn Penfold, UNSW, Sydney The information contained in this document is as up-to-date and as accurate as possible at time of publication in August 2009. 340 The Law Handbook A consumer is a person who acquires goods or services for personal or household use. We are all consumers. Most consumer dealings, whatever their size, cost or importance, are based on a contract. The basic principles of contract law are discussed in this chapter. These apply to purely commercial transactions (such as between a manufacturing business and its supplier), as well as transactions where one of the parties is a consumer. The development of contract law Contracts under common law Contract law is largely a product of the common law – it has been developed by the courts rather than by parliament passing laws. A basic common law principle is the assumption that a contract is a bargain made freely between equal parties (freedom of contract). Because of this, courts have been unwilling to set aside or alter contracts except in very limited circumstances. Even where there has been unfairness or sharp practice the principle of sanctity of contract has generally prevailed, and contracts have been upheld. not the equality that contract law has traditionally assumed. Limited bargaining opportunity In practice there is usually little opportunity for bargaining – goods and services...
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...important TCOs: A and I. These will be foundational for the term. As TCO A is our ethics TCO and TCO I is our international TCO, note that both of these TCOs will be important under and inside each of our topical TCOs (e.g., contracts, environmental law, employment law, etc.) | | Business Ethics | | As we move through the course, each learned TCO should remain in the back of your mind. We will build on them while learning the law. As you will find, most of the TCO A ethical strategies include as a first question the following: Is the behavior illegal? A "yes" answer will (usually) lead you to decide automatically that the behavior is unethical, unless the law itself is unethical (as is sometimes the case). Therefore, as we learn what is and isn't legal, we will want to utilize that information in solving ethical dilemmas. When we move our businesses overseas or to Mexico or...
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...important TCOs: A and I. These will be foundational for the term. As TCO A is our ethics TCO and TCO I is our international TCO, note that both of these TCOs will be important under and inside each of our topical TCOs (e.g., contracts, environmental law, employment law, etc.) | | Business Ethics | | As we move through the course, each learned TCO should remain in the back of your mind. We will build on them while learning the law. As you will find, most of the TCO A ethical strategies include as a first question the following: Is the behavior illegal? A "yes" answer will (usually) lead you to decide automatically that the behavior is unethical, unless the law itself is unethical (as is sometimes the case). Therefore, as we learn what is and isn't legal, we will want to utilize that information in solving ethical dilemmas. When we move our businesses overseas or to Mexico or Canada, as many of our...
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...contract law T H I R D E D I T I O N M I N DY C H E N - W I S H A RT 1 INDEX Web 1 Incapacity W1 Diagram W1A Overview of incapacity W2 W1.1 Children W3 W1.1.1 Contracts to supply ‘necessaries’ W3 W1.1.2 Employment and other benefi cial contracts W4 W1.1.3 Contracts involving land, marriage settlements, company shares, and partnerships W5 W1.1.4 Other contracts W6 W1.1.5 Restitution to children W6 W1.1.6 The liability of children W6 W1.2 Mental incapacity, drink, and drugs W8 W1.3 Companies W10 W1.4 Public authorities W11 Web 2 Illegality and public policy W13 W2.1 What are illegal contracts? W14 W2.1.1 Statutory illegality W14 Diagram W2A Overview: Categories of illegal contracts W15 W2.1.2 Common law illegality W16 W2.1.2.1 Contracts to commit a crime W17 W2.1.2.2 Contracts made for the deliberate commission of a civil wrong W17 W2.1.2.3 Contracts interfering with the administration of justice W17 W2.1.2.4 Contracts to oust the jurisdiction of the courts W18 W2.1.2.5 Contracts prejudicial to the state W18 W2.1.2.6 Contracts which further sexually immoral purposes W19 W2.1.2.7 Contracts prejudicial to family life W19 W2.1.2.8 Contracts unduly restrictive of personal liberty W20 W2.1.2.9 Contracts in restraint of trade W20 W2.1.2.10 Restrictive trading and analogous agreements W24 W2.1.3 Illegality and unfairness W24 W2.2 The effects of illegality W25 W2.2.1 The enforceability of the contract W26 W2.2.1.1 Illegality at formation W26 web contents ...
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...Terminal Course Objectives (TCOs): A | Given an organizational requirement to conform business practices to both the law and best ethical practices, apply appropriate ethical theories to shape a business decision. | I | Given specified circumstances of a business decision to expand to international markets, determine what international legal requirements or regulatory controls apply. | Topics for This Week's Discussion * Introduce yourself to your professor and the rest of the class. (not graded) * Thread over TCO A/I (graded) * Ethics and Patent Rights Post 9/11 (graded) * Q & A Forum for your questions and comments (not graded) | | There is a drop down arrow next to the "Select a Topic" box. Click on this arrow to select topics for discussion. | ------------------------------------------------- Top of Form Select a Topic: Bottom of Form The World Bank Situation (graded) | Class, please read Chapter 2, problem 5 from the Jennings text, p. 72. This week, we will discuss the Wolfowitz situation at the World Bank. Consider the questions at the end of the problem as you make comments in the threads this week. What are the ethics here? Was Wolfowitz trying to do the right thing? Does that make a difference ethically? Throughout the week, I will bring in further questions. Be sure to read the lecture and the international ethics article stated in your reading for the week as well. | Collapse All | Show Options | sort by: response...
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...Nature of Law Sources of law: 1. Statute law laws crated by State and Federal Parliament 2. Common law courts and judiciary system 3. Equity expands remedies beyond monetary compensation Classification of law: * International v domestic * Public v private * Substantive (rights and duties under the law) v procedural (rules of evidence and conduct) * Common (parliament and courts) v civil (legal code) * Civil actions v criminal actions Origins of Australian Law: * 1865 Colonial Laws Validity Act NSW (AUS) can pass own laws as long as they don’t conflict with England laws * 1901 Federation 6 separate states become 1 Government * 1931 Statute of Westminster legislative independence. * 1986 Australia Act Final court of appeal became the High Court The Westminster System: * A constitutional monarchy * Separation of powers 1) The Parliament Legislative 2) The Executive Government 3) The Judiciary interprets the law Making a law: 1. Draftsman drafts a Bill 2. 1st, 2nd, 3rd reading in HOR 3. 1st, 2nd, 3rd reading in Senate 4. Governor General consent 5. Bill becomes an Act and become law The Judiciary: Rule of law a means of maintaining the balance between personal freedom and legislative power in a modern democracy. Role of the courts: Impose a legally binding decision on the parties to the dispute. Features of the court hierarchy: * Provides a system of appeals ...
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...Constitutional Law II Tebbe Spring 08 4 Equality and the Constitution 4 Class 1: Slavery and the Constitution 4 1. The Original Constitution 4 2. State v. Post 4 3. Dred Scott v. Sandford (1857) 4 4. Reconstruction 5 5. Post-Reconstruction Cases 6 Class 2: The Advent of American Constitutional Law: Brown 7 6. RACIAL EQUALITY 7 7. Brown I (1954) The segregation of children in public schools based solely on race violates the Equal Protection Clause. 7 2. Brown II 8 3. What was the constitutional harm in Brown? 8 4. THEORY 8 5. Subsequent School Desegregation 9 Class 3: Local Efforts to Desegregate: Parents Involved 11 6. Parents Involved 11 Class 4: Rational Basis Review: Cleburne, Romer, etc. 13 2. Tiers of Scrutiny 13 3. Beazer (1979) 13 4. Moreno (1973) 14 5. Cleburne (1985) 14 6. Romer (1996) 15 7. Nordlinger (1992) and Allegheny Pittsburgh (1989) 16 8. Lee Optical (1955) 17 Class 5: Racial Classifications and Heightened Scrutiny: Strauder, Korematsu, Loving 17 9. Heightened Scrutiny Analysis 17 10. Strauder (1880) 17 11. Korematsu (1944) 18 12. Loving (1967) 19 13. Theories Supporting Strict Scrutiny of Racial Classifications 20 14. Tiers of Scrutiny 20 15. Tiers of Scrutiny Table 21 Class 6: Facially Neutral Classifications: Washington v. Davis 21 16. Types of Discrimination (from Fall) 21 X. Disparate...
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...Commercial Transactions: Complete Notes: MacDougall: 2010/2011 Term 1 • These notes are a compilation of my class notes and the course package. I also used Atiyah Sale of Goods Act for clarification at times. • The spelling and grammar below is atrocious, but I couldn't be bothered to fix it. • Good luck! Hopefully some of this is helpful. I. Introduction • This is mostly a common law course, since the SGA merely codifies as closely as possible the existent common law. • US has replaced the SGA with the UCC, which is comprehensive and covers all of commercial law. • The BC SGA also includes some material that is covered in the "Factors Act" in other jurisdictions • BC has the oldest version of the SGA in Canada o close to the original version • At its heart, commercial transactions is about buying and selling goods Property • May be real • or Personal: "choses" o chattels real o Chattels personal ▪ chose in possession (goods), meaning things that are capable of being possessed ▪ chose in action (intangibles), which cannot be possessed or seized physically, like an an account or a debt. • documentary intangibles (ie. a bank note), the document represents the intangible • pure intangible, which does not even have a document to represent it (increasingly common) Property Interests • ownership ...
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