Law Commons^™

Assent Uber Alles: Enforcing Browsewrap Agreements In Smartphone Applications, Emma F. Duke

Mercer Law Review

When a smartphone user browses a website or downloads a new application (app), the user will most likely be met by a pop-up or hyperlink providing the infamous “terms and conditions.” How many users click and explore the terms and conditions posed by the website or app before clicking “I Agree” and continuing on? Unbeknownst to most users, the terms contained within that seemingly insignificant link can have long-standing consequences if litigation were to arise.

The terms and conditions hyperlink a smartphone user often sees when signing on to an app is called, in the world on internet contracts, a …

A Lottery Ticket Is An Express Written Contract And The General Assembly Waived Their Own Instrumentality From Sovereign Immunity!, Forrest F. Schrum Iv

Mercer Law Review

The creation of an express written contract occurs every day. These are contracts documented on an instrument where two parties agree to performing certain actions or preventing a party from performing, and they allow these parties to be liable to the other if one were to breach the contract. For an express written contract, the right to sue for breach of contract is so vital that when the General Assembly created the Georgia Constitution, a clause was added that precludes Georgia and all entities/instrumentalities within, to use sovereign immunity to avoid litigation. If Georgia or the entities/instrumentalities of the state …

Actions Speak Louder Than Words: Hanham V. Access Management Group L.P. Reestablishes Validity For Course Of Conduct Parol Contracts In Georgia, Elizabeth C. Selph

Mercer Law Review

Many laypeople recognize and revere the value of a written contract as an instrument legally binding, but they also believe such work to be solidified in its construction, unamendable without a rewriting of the agreement. Georgia courts, however, for over a century have allowed for contracts not governed by the statute of frauds to be amended through oral agreements or course of conduct. This principle was reaffirmed in Hanham v. Access Management Group L.P., a 2019 Georgia Supreme Court case where the court recognized that written contracts can be amended by course of conduct in the state of Georgia. …

Could The Rise Of Dockless Scooters Change Contract Law?, John Kendall

Mercer Law Review

Dockless scooters have been revolutionizing the way individuals in highly populated towns and cities commute on a day-to-day basis across the country. Instead of riding the bus, individuals now have the option to pay money to ride scooters short distances and save themselves the hassle of riding on crowded buses. Among the many issues and questions this creates for lawyers and lawmakers, one particularly noteworthy issue is whether the electronic waivers and arbitration clauses scooter companies require riders to sign before operating the scooters can shield the scooter companies from liability when the unexpected occurs. Currently, the top dockless scooter …

Barras V. Bb&T;: Charting A Clear Path To Apply Concepcion Through A Quagmire Of Divergent Approaches, Jacob Johnson

Mercer Law Review

A recent series of Supreme Court opinions, climaxing in the landmark case AT&T Mobility LLC v. Concepcion, has undermined the validity of applying unconscionability to arbitration agreements and generated divergent opinions in lower courts. The saving clause of the Federal Arbitration Act of 1927, 9 U.S.C. § 2 (FAA saving clause), states that "an agreement in writing to submit to arbitration ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract." Until Concepcion, unconscionability was an established ground for revoking arbitration agreements under the FAA saving clause. In …

Allied-Bruce Terminix Companies V. Dobson: The Implementation Of The Purposes Of The Federal Arbitration Act Or An Unjustified Intrusion Into State Sovereignty?, Lauri Washington Sawyer

Mercer Law Review

In Allied-Bruce Terminix Companies v. Dobson, the United States Supreme Court held that section 2 of the Federal Arbitration Act ("FAA) was applicable to contract actions which were brought in state court. The controversy began with a house originally owned by Mr. and Mrs. Gwin in Fairhope, Alabama. In 1987, the Gwins purchased a lifetime termite protection plan from the local Allied-Bruce Terminix office, a franchise of Terminix International. The termite protection plan was to protect the house "'against the attack of subterranean termites,' to reinspect the house periodically, to provide any 'further treatment found necessary,' and to repair, …

Anderson Chemical V. Portals Water Treatment: Ensuring An Inherent Risk Of Business, Adrian Bradley Dozier Jr.

Mercer Law Review

In Anderson Chemical v. Portals Water Treatment, the United States District Court for the Middle District of Georgia addressed 'the issue of whether a document executed between two corporations regarding a proposed stock purchase merger and acquisition agreement constituted a binding contract for the sale of securities or a non-binding letter of intent. Specifically, the court addressed a scenario in which a proposed purchaser of securities in an alleged stock purchase agreement made certain oral representations that directly contradicted limiting language in a document executed between the proposed seller and purchaser. The seller then acted in reliance upon the …

Contracts, B. Morris Martin

Mercer Law Review

In 1990 the Georgia General Assembly passed an Act addressing a long-standing debate concerning the proper limits on contracts that restrain parties in their trade, business, or employment. After reaffirming the principle that contracts in general restraint of trade are against public policy and void, the general assembly codified the exception to the rule carved out by the courts. This exception held reasonable restraints on competition in business or employment are partial restraints of trade and are not against public policy. The Act, which became effective on July 1, 1990, amended section 13-8-2 of the Official Code of Georgia Annotated …

Contracts, Luther P. Cochrane, Curtis W. Martin

Mercer Law Review

This year's contract decisions offer a review of some legal issues of first impression, along with a refinement and restatement of positions taken previously by the State's appellate courts. Among other decisions, the court of appeals has ruled that an employee may recover benefits described in an employer's brochure in spite of a master employment plan that stated benefits in a more limited fashion. The supreme court has refined the law governing covenants restricting competition, distinguishing between such covenants in employment contracts and sale-of-business contracts. This article discusses that distinction and its implications. Our appellate courts also continued their strict …

Federal Common Law, Not State Law, Controls Interpretation Of Federal Bail-Bond Contracts, William T. Wingfield Jr.

Mercer Law Review

The U.S. Court of Appeals for the Fifth Circuit, in United States v. Miller, held that the liability of a surety on a federal bail-bond contract depends on the wording of the contract as interpreted under general federal common-law principles of suretyship and contract law.

Resolute Insurance Company was surety for Thomas Miller on two identical appearance bonds. Miller was found guilty of assaulting an FBI agent, had pleaded guilty to interstate transportation of stolen goods, and was sentenced to a total of three years and three months of imprisonment. The trial court, at Miller's request and in the …

Contracts, Mitchel P. House Jr.

Mercer Law Review

During the survey period, the appellate courts of Georgia reviewed approximately 80 cases involving problems of contract law. As is usually the case, the great majority of the cases merely applied well-settled principles. Many turned on procedural points. While none have truly landmark significance, a few are worthy of discussion in that they present interesting problems in the application of established principles to new situations.

Contracts, James P. Houlihan

Mercer Law Review

No abstract provided.

Contracts, Edgar Hunter Wilson

Mercer Law Review

During the survey period the appellate courts of Georgia reaffirmed the following general contract principles: The requisites of a sealed instrument are a recital in the instrument that it is under seal and a signature followed by a scroll or seal. An assignee of a non-negotiable chose in action takes subject to the equities existing between the assignor and obligor at the time of the assignment. The acceptance and cashing of a check given as a final audit on an unliquidated and disputed claim constitutes an accord and satisfaction. An agreement to pay a sum of money in settlement of …

Promissory Estoppel In Georgia, Burt Derieux

Mercer Law Review

The classic doctrine of consideration is that " . . . the promise and the consideration must purport to be the motive each for the other in whole or at least in part. It is not enough that the promise induces the detriment or that detriment induces the promise if the other half is wanting."' From this established concept of consideration, the doctrine of promissory estoppel is a departure.

Contracts, Edgar Hunter Wilson

Mercer Law Review

It is interesting for a contracts teacher to note the relatively small number o' contract cases decided during the survey period and that the contract cases decided seldom involve problems of offer, acceptance or consideration, the basic content of a law school course on contracts. The conclusion to be drawn, however, is not that the wrong emphasis is being placed in contract courses, but rather that the lawyer generally is so well informed on the more fundamental problems of contracts that he either avoids the creation of such problems or is able to decide upon the proper rule without going …