Law Commons^™

Digital Handshakes In Cyberspace Under E-Sign: "There's A New Sheriff In Town!", Michael H. Dessent

University of Richmond Law Review

Without doubt, electronic commerce has increased the efficiency of businesses and consumers seeking to purchase goods, services, or intangibles by placing these objects just a keystroke away. If you already enjoy buying lingerie and foie gras over the Internet, you will love the new Electronic Signatures in Global and National Commerce Act ("E-SIGN") Want to borrow $10,000 at four in the morning over the Internet to buy a car? E-SIGN allows it. Or how about entering a "cybersigning chat room," extending a "digital handshake," and then buying that cherished wedding gown? E-SIGN allows this to happen. In this era of …

Dear Sir Or Madam: You Cannot Contract In A Closet, David J. Depippo

University of Richmond Law Review

This comment will examine this seemingly basic question through the lens of two recent Gateway cases. In Hill v. Gateway 2000, Inc., the Seventh Circuit held that the Standard Terms were part of the sales agreement, and thus, the consumer was bound by them. The United States District Court for the District of Kansas, in Klocek v. Gateway, Inc., however, held that the contract for sale had been made when the seller identified the computer for shipping, or at the very least, shipped the computer, and thus, the Standard Terms were merely proposals of additional terms to which the consumer …

Annual Survey Of Virginia Law: Revised Article 9: A Primer For The General Practitioner, David Frisch

University of Richmond Law Review

These are exciting times for commercial lawyers. Over the past fifteen years, the sponsoring organizations of the Uniform Commercial Code (UCC or the Code), the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL), have been hard at work to keep the UCC responsive to contemporary needs. Aside from periodic adjustments to existing UCC articles that reflect societal changes, two new articles have been added to cover commercial activity previously governed by the common law of contract. In 1998, the ALI and NCCUSL gave their approval to the final text of the newest version …

Annual Survey Of Virginia Law: Technology Law, John S. Jung

University of Richmond Law Review

During the 2000 Session, the General Assembly considered eighty-one technology related bills, forty of which were enacted. This article summarizes the more significant technology bills enacted during this session. One of these bills, House Bill 719,1 enlarged the Joint Commission on Technology and Science ("JCOTS"). The 1997 Virginia General Assembly created JCOTS aas a permanent legislative agency" to "generally study all aspects of technology and science and endeavor to stimulate, encourage, promote, and assist in the development of technology and science in the Commonwealth and sound public policies related thereto." JCOTS, which originally consisted of nine legislators-five delegates and four …

Annual Survey Of Virginia Law: Corporate And Business Law, Peter E. Broadbent Jr., John E. Russell

University of Richmond Law Review

Virginia corporate and business law changes in the last year continue to challenge the practitioner to stay abreast of such developments in order to provide accurate advice to clients. This article summarizes the developments in the law in Virginia occurring from June 1999 through May 2000, with the legislative changes described based on Virginia General Assembly action in the 2000 session. Part II examines those legislative changes in corporate and business law (excluding public service corporation/public utility law issues). While many of the legislative changes are not significant, three new uniform laws (revised Article 9 of the Uniform Commercial Code …

Annual Survey Of Virginia Law: 1999 Technology Legislation In Virginia, Diane E. Horvath, John S. Jung

University of Richmond Law Review

During its 1999 Session, the Virginia General Assembly passed sixty-four pieces oflegislation related to technology that were signed into law. Of these, eighteen bills and resolutions were proposed by the Joint Commission on Technology and Science ("JCOTS").

A Literalist Proposes Four Modest Revisions To U.C.C. Article 3, Timothy R. Zinnecker

University of Richmond Law Review

I first taught a Payment Systems class during the fall of 1994. Not having taken the course in law school, and bringing very little "real world" experience in this area of commercial law to the classroom, I approached the task of teaching the course with some degree of fear and trepidation. I had already taught Secured Transactions, so I was familiar with the challenges of teaching a statutory course to a reluctant audience scarred by horror stories of their predecessors. I also audited a Payment Systems course taught by a colleague during the summer, so I had a good start …

Products Liability Tort Reform: Why Virginia Should Adopt The Henderson-Twerski Proposed Revision Of Section 402a Restatement (Second) Of Torts, Peter Nash Swisher

University of Richmond Law Review

Over the past three decades, literally thousands of American products liability judicial opinions have explicitly referred to, and analyzed, section 402A of the Second Restatement of Torts. At least thirty-four states have judicially adopted section 402A, and

five other states have passed specific statutes adopting the section.3 Since the landmark products liability case of Greenman v. Yuba Power Products,Inc.4 in 1963, at least forty-five states have now adopted some form of strict liability in tort remedy in American products liability actions.5 Only Virginia and four other states do

not recognize a strict liability in tort remedy applied to state prod- …

Blood Bank And Blood Products Manufacturer Liability In Transfusion-Related Aids Cases, Dana J. Finberg

University of Richmond Law Review

Can a blood bank or a blood products manufacturer be held liable if a patient contracts AIDS through a transfusion of blood or a blood product? And, if so, should the bank or manufacturer be held liable? As of February 1989, approximately 200 cases touching on this issue were pending in the United States.

Annual Survey Of Virginia Law: Bankruptcy Law, Michael A. Condyles

University of Richmond Law Review

This survey article reviews and analyzes legislative and judicial developments that have occurred in bankruptcy law between April, 1991 and April, 1992. The article is intended to alert the general practitioner to significant recent developments in the bankruptcy area. Legislative changes made to Virginia statutory law and federal bankruptcy decisions issued within the Fourth Circuit are the focus of this article.

Annual Survey Of Virginia Law: Commercial Law, Michael J. Herbert

University of Richmond Law Review

This survey of commercial law in Virginia discusses significant Uniform Commercial Code ("Code") cases decided by the Virginia Supreme Court during the past year, as well as all significant statutory changes made to the Code during the 1991 session of the General Assembly. It also reviews selected Code cases decided in the Virginia circuit courts and in the various federal courts sitting in Virginia.

Annual Survey Of Virginia Law: Commercial Law, Michael J. Herbert

University of Richmond Law Review

This survey of commercial law discusses all Supreme Court of Virginia cases interpreting Virginia's version of the Uniform Commercial Code (the "Code" or the "U.C.C.") during the previous year, as well as statutory changes made to the Code in the most recent session of the General Assembly. It also reviews significant Code cases decided in the Virginia circuit courts and in the various federal courts sitting in Virginia. It is current as of about May 1, 1990.

The Letter Of Credit As Security For Completion Of Streets, Sidewalks, And Other Bonded Municipal Improvements, James P. Downey

University of Richmond Law Review

When approving a land development project, municipalities require assurance that developers will construct the required public improvements, and that in the event of default, the surety will be responsive, so that the project will be completed promptly, without risk to the municipal treasury. A form of guarantee sometimes used is the letter of credit. The case law involving public improvement letters of credit is sparse, yet the contingent liability to municipalities from defaulted land developments, with illusory sureties, should not be underestimated.

Annual Survey Of Virginia Law: Commercial Law, Michael J. Herbert

University of Richmond Law Review

This survey of commercial law reviews all Virginia Supreme Court cases interpreting the Virginia Uniform Commercial Code (the "Code") and all statutory changes made to the Code in the 1988 session of the General Assembly. It also reviews significant Code cases decided in the various federal courts located in Virginia and in the Virginia circuit courts. It is current as of approximately May 1, 1988.

The Collision Of Tort And Contract In The Construction Industry, Murray H. Wright, Edward E. Nicholas Iii

University of Richmond Law Review

Over the past two decades, several courts have allowed construction industry plaintiffs to assert tort claims to recover for purely economic losses (i.e. other than injury to person or property) from other participants in the construction process. Parties assert tort claims, instead of or in addition to contract claims, to take advantage of the more liberal tort damage rules and, probably more importantly, to escape unfavorable contract provisions. This article briefly discusses the different origins and goals of tort and contract law. It then reviews some of the decisions allowing recovery of purely economic losses in tort as well as …

Annual Survey Of Virginia Law: Commercial Law, Michael J. Herbert

University of Richmond Law Review

It has been a fairly busy year for Commercial Law in Virginia courts, but not in the legislature. This may not last; there are already legislative efforts underway to extend the coverage of Virginia's Uniform Commercial Code (the "Code") to electronic fund transfers and personal property leasing. If those efforts are successful, the General Assembly will soon have on its hands the considerable task of evaluating the first major overhaul of the Code in a decade.

The Purchase Money Security Interest In Inventory Versus The After-Acquired Property Interest-A "No Win" Situation, Nathaniel Hansford

University of Richmond Law Review

Extending credit entails risk. Seldom is a creditor absolutely assured of complete payment of his debt. Not only is there a risk in almost every loan, but the types of risks that must be weighed are manifold. The debtor may be a poor business person and never make a profit sufficient to repay the debt. The debtor class is replete with scoundrels and outright crooks who borrow money without any intention to service the debt. The economy may slump to such a degree that even astute business persons are pressed to pay their outstanding obligations. The creditor's collateral may deteriorate …

Annual Survey Of Virginia Law: Commercial Law, Michael J. Herbert

University of Richmond Law Review

It has been a quiet year in the Commonwealth of Virginia, at least in the area of commercial law. There have been only a smattering of cases, for the most part routine, and slight amendments to Virginia's Uniform Commercial Code (the "Code"). The most significant commercial law development occurred neither in the General Assembly nor the courts, but at the Federal Trade Commission, which is again busying itself with the regulation of consumer credit.

Virginia's Lemon Law: The Best Treatment For Car Owner's Canker?, Carol S. Nance

University of Richmond Law Review

The consumer advocacy movement of the late 1970's induced the Congress and the state legislatures to enact numerous consumer protection statutes. Unfortunately, several years elapsed before the public and the legislatures realized that those statutes did not protect the consumer in what is frequently the consumer's most significant personal purchase-the automobile.

Annual Survey Of Virginia Law: Commercial Law, Michael J. Herbert

University of Richmond Law Review

During its 1984 and 1985 sessions, the General Assembly enacted a number of minor technical amendments to Virginia's Uniform Commercial Code. These included both the much-needed and long-awaited change of the word "state" to "Commonwealth" throughout the Code and a series of inexplicable revisions in the Code's punctuation. The most significant of these technical changes was undoubtedly the increase in the filing fees for Article 9 financing statements filed with the State Corporation Commission. (One substantial legislative change which indirectly affects the Code was the enactment of Virginia's new "Lemon Law." Some aspects of that statute are discussed below in …

Twisting Slowly, Slowly In The Wind: The Effect Of Delay On A Surety's Obligations In Virginia, Michael J. Herbert

University of Richmond Law Review

It is a commonplace among lawyers that the surety, especially the uncompensated surety, is a favorite of the law whose obligations are strictly construed, and with whose sacred rights no designing creditor dare tamper with impunity. In fact, a more reliable maxim might be that "the [surety's] lot is not a happy one." While at common law any change in the obligation of the principal to the creditor discharges the surety, this rule, in many respects, is quite meaningless; and, even where meaningful, easily circumvented. The consent of the surety to a change in the obligation generally precludes discharge, even …

The Trustee Versus The Trade Creditor: A Critique Of Section 547(C)(1), (2) & (4) Of The Bankruptcy Code, Michael J. Herbert

University of Richmond Law Review

The Bankruptcy Code, like its predecessor the Bankruptcy Act, permits the trustee to avoid certain preferential transfers made or suffered by the bankrupt just prior to bankruptcy. Generally, any transfer relating to an antecedent debt made to or for a creditor by an insolvent within ninety days before the filing of the bankruptcy petition is avoidable by the trustee. The trustee may sue the creditor to recover the preference. In addition, the preferred creditor will not be entitled to any dividend from the estate until the preference is repaid.

Toxic Substances Litigation In The Fourth Circuit, Francis E. Mcgovern

University of Richmond Law Review

Personal injuries caused by toxic substances have generated problems of major concern to our social, political and legal systems. Reports in the news media concerning harm caused by toxic substances and expressions of public awareness of potential dangers associated with exposure to toxic substances are commonplace. Legislatures, administrative agencies and courts at both federal and state levels have begun to devote substantial energy to addressing issues raised by exposure to toxic Substances. Scientific, industrial, financial, and legal communities are seeking to deal with these problems from a number of different perspectives. Just as terms such as "Love Canal" and "asbestosis" …

Products Liability And The Virginia Statute Of Limitations - A Call For The Legislative Rescue Squad, Robert I. Stevenson

University of Richmond Law Review

In recent years a flood of federally-funded scientific break-throughs have on almost a weekly basis established that some form of cancer or other dreaded disease is "caused" by exposure to a man-made product often not previously suspected of having a toxic tendency. Persons so afflicted then seek recovery from the product manufacturer. Their basis in tort is either for negligence in producing so harmful (and thus defective) a product, or for having failed to warn of the danger, or for "strict liability" within Section 402A of the Restatement (Second) of Torts. Where, as in Virginia, there is uncertainty as to …

The Due-On-Sale Clause: A Marriage Gone Sour- A Checklist For The Practitioner, W. Wade Berryhill

University of Richmond Law Review

The problem begins simply enough. Soon moving to another city a homeowner negotiates and signs a contract for the sale of his present home. The contract provides that the purchasers are to assume the current mortgage with an interest rate of 91 %. The vendor and the purchasers notify the lender of the intended sale. Despite the fact that the proposed purchasers qualify as acceptable credit-risks, the lender informs the parties that the current mort- gage contains a "due-on-sale" clause and that he intends to accelerate the due date of the mortgage unless the purchasers agree to accept an increase …

Virginia Should Adopt Strict Tort Recovery In Products Liability, John P. Rowley Iii, Sally Y. Wood

University of Richmond Law Review

Since World War H, revolutionary changes have overtaken the American law of products liability. Such changes have been in response to the increase in consumer injuries resulting from defects in sophisticated products mass-produced by sophisticated manufacturing processes. This has occurred during a time of increased litigiousness and general awareness of the need for consumer protection. Accordingly, products liability suits have multiplied, and the legal theories used to determine the outcome of such suits have similarly been in an era of dramatic transition. Such legal changes have significantly affected both tort and warranty law across the country. Until 1960 products liability …

Purchase Of Consumer Paper And Subjection To Collateral Forces, Benjamin Geva

University of Richmond Law Review

The purchase of commercial paper issued in return for consumer goods [hereinafter referred to as consumer paper] is a common and wide-spread sales financing practice. Various judicial techniques and legislative schemes have been employed to disqualify purchasers of consumer paper from becoming holders in due course [hereinafter referred to as HDC], thus rendering these purchasers subject to defenses to the instrument based upon consumer dissatisfaction with the goods. Underlying the denial of HDC sttus to purchasers of consumer paper are the following premises: (1) the sale of consumer goods is not a commercial transaction and should not be governed by …

Civil Procedure-Title 8.01: Virginia's New Civil Procedure Act, Scott D. Anderson, Theodore I. Brenner

University of Richmond Law Review

On October 1, 1977, Title 8 of the Code of Virginia was repealed and Title 8.01 became effective. The revisers of Title 8 have produced an extensive, as well as comprehensive, change in the statutes which govern civil procedure in Virginia. Most of the provisions have been rewritten, deleted or moved to other titles. With several notable exceptions, civil procedure in Virginia will remain basically unchanged. Much of the revisers work leaves Title 8 substantively intact. The major changes will be discussed in a chapter by chapter analysis of Title 8.01 in Section II of this article.

A Guide To Federal Warranty Legislation-The Magnuson-Moss Act, Richard H. Matthews

University of Richmond Law Review

One of the primary causes of concern in the recent movement toward greater consumer protection has been in the area of product warranties. Limited express warranties, liability disclaimers and ambiguous remedy

procedures often have been used by manufacturers and merchants to strip the consumer of all but a bare minimum of protection against defective products. Finding state laws incapable of adequately solving this problem, Congress preempted the field by enacting the Magnuson-Moss Warranty Act.' This Act makes major changes in the law of warranties and places much heavier legal burdens upon manufacturers and other warrantors. This comment will attempt to …

Virginia Law Of Interest And Usury, John W. Edmonds Iii

University of Richmond Law Review

The concept of a limitation upon the charges that may be imposed for the hire of money is hardly modem. Although it may not be the oldest usury law, a reference to Deuteronomy should suffice: "Unto a stranger thou mayest lend upon usury; but unto thy brother thou shall not lend upon usury."