Contracts Commons^™

Discharge In The "Law" Of Arbitration, Roland P. Wilder Jr.

Vanderbilt Law Review

The vast majority of arbitrators will refuse to find just cause unless the discharge penalty bears some reasonable relation to the seriousness of the grievant's offense. They believe it to be their responsibility to determine whether the "punishment fits the crime" by realistically appraising the wrongful act's deleterious effects on the industrial community. If the grievant's proven offense appears to merit discipline short of discharge, the arbitrator usually will feel compelled to modify the discharge penalty in favor of some lesser degree of discipline. Since this amounts to a review of the penalty imposed by management, there is a substantial …

The Plaintiff In Default, Richard H. Lee

Vanderbilt Law Review

This article is concerned with one basic fact pattern. A party to a contract has commenced performance but has stopped short of completion. His failure to perform further is legally inexcusable. The other party has not performed, but is not in default. Can the one in default salvage anything from the wreckage of the contract when he himself "cast it on the rocks"? Can he recover the value of his part performance despite the fact that he refused to abide by his contract? The answer most commonly given by the courts is a righteous no.' But there are many factors …

Private Legislation And The Duty To Read--Business Run By Ibm Machine, The Law Of Contracts And Credit Cards, Stewart Macaulay

Vanderbilt Law Review

"It will not do for a man to enter into a contract, and, when called upon to abide by its conditions, say that he did not read it when he signed it, or did not know what it contained."' This rallying cry often is sounded in contracts and restitution opinions. Sometimes it makes such good sense that it is axiomatic. Yet in common with all grand slogans, there are situations where it just doesn't fit...

More difficult are the cases where the words are there in a form more easily read and understood but where the probabilities are very great …

Contracts -- 1964 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Promissory Estoppel--Application by Federal Court

II. Third Party Beneficiary--Enforcement of Labor and Material Bond

III. Statute of Frauds--Statute as Defense to Third Party

IV. Parol Evidence Rule--Application to Extrensic Subsequent Agreement

V. Illegal Bargains--Agreement Not to Compete

VI. Death of Party to Personal Service Contract as Terminating the Contract

Restitution -- 1964 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The most significant case during the Survey period is Gulf Oil Corp.v. Forcum. The State of Tennessee condemned for highway purposes certain property including the location of a filling station. Defendant was lessee of this property and had installed its own tanks, pumps and other equipment. Plaintiff had the contract to construct the highway and was entitled under this contract to salvage condemned property. Refusing to allow defendant's agent to remove the service station equipment, plaintiff removed the equipment itself at considerable expense. When the condemnation proceeding was completed, defendant was awarded 2,000 dollars for the value of its leasehold, …

Reflections Upon Hegel's Concept Of Property, Contract, Punishment, And Constitutional Law, Morris D. Forkosch

Vanderbilt Law Review

Codification and re-codification in federal and state jurisdictions has proceeded in a geometrical progression these past decades. To what extent is the old law yielding or, au contraire, to what extent is the ancient law reappearing? For example, are Plato's views on crime and punishment being revived, continued, or changed?' Or,to what extent are Hegel's views in a certain few legal areas of present interest and value? As we shall see, an understanding of Hegel's juris-prudential views, as related to specific topics, is a present-day pragmatic necessity. We propose to seek these views, albeit briefly, in the fields of property, …

Contracts -- 1963 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Both the one year provision and the sale of goods provision of the Statute of Frauds were construed in Anderson-Gregory Co. v. Lea.'Regarding the duration of the contract, the facts in the opinion are somewhat sparse... The court held that the contract did not come within this provision of the statute. If a contract could have been performed, under its terms, within a year from the time of its making, it is not within the Statute of Frauds, even though it is improbable that the contract would be performed within a year.

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The Tennessee Supreme Court case of Oman …

Contracts -- 1962 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Revival of a Debt Barred by Statute of Limitations --An Acknowledgement by Debtor that He Owes the Debt as a Revival of the Cause of Action

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II. Rules for Determining Priority of Right Where Successive Assignees Competing for Same Claim --Applicability of those Rules in Contest Between an Assignee and Debtor whose obligation has been assigned

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III. Breach of Contract--Necessity for Tender of Performance by Promisee where Promisor cannot perform -- Rights of Promisee against Third Party inducing Breach of Contract

Restitution -- 1962 Tennessee Survey, John W. Wade

Vanderbilt Law Review

For the prevention of unjust enrichment of a defendant the courts make available a number of restitutionary remedies to a plaintiff. These remedies developed separately, and they differ somewhat in their characteristics, but during recent years writers have seen that there is a single principle underlying them all, whether they are administered at law or in equity.

Contracts -- 1961 Tennessee Survey (Ii), Paul J. Hartman

Vanderbilt Law Review

Statutes may impose a tax upon the transaction of certain business merely for the purpose of raising revenue, and not with any view of regulating the business itself. Even though such statutes impose a penalty for failure to comply with their provisions, contracts made without paying the requisite tax or obtaining the requisite license generally are not thereby made unenforceable. Of course, the legislature may provide that the failure to comply with a revenue statute will invalidate a bargain. But where, as in the Acuff case, the purpose of the statute is the protection of the public, a bargain made …

Book Reviews, Law Review Staff

Vanderbilt Law Review

Decision at Law

By David W. Peck.

New York: Dodd, Mead & Co.,1961. Pp. vii, 303.

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Corporation Lawyer: Saint or Sinner? By Beryl Harold Levy.

Philadelphia and New York: Chilton Co., 1961. Pp. x, 175.

reviewer: Elliott E. Cheatham

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Criminal Psychology Edited by Richard W. Nice. New York: Philosophical Library, Inc., 1962. Pp. 284.

reviewer: J. Paschall Davis

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Symposium on the Labor-Management Reporting and Disclosure Act of 1959 Edited by Ralph Slovenko. Baton Rouge: Claitor's Bookstore, 1961. Pp. xliv, 1237. $20.00.

reviewer: Robert N. Covington

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Handling Accident Cases, Vol. 3

By Albert Averbach.

Rochester: The Lawyers …

Trade Regulation -- 1961 Tennessee Survey (Ii), Leo I. Raskind

Vanderbilt Law Review

This field of law, not previously treated independently in the annual survey, is designated as Trade Regulation or alternatively as Government or Public Control of Business. In the limit, this body of doctrine is an amalgam of tort and contract principles bearing the impress of the equity practice. These distinct principles are now embodied in both state and federal statutes as the foundations of legal control over competitive commercial conduct. Their scope extends, with different emphasis, from public utility rate regulation to a variety of aspects of market structure and conduct in the unregulated sector of the economy. The principal …

Agency -- 1961 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

The topic "agency" includes the areas of "master and servant" as well as those of "principal and agent." There were few cases in these areas decided by the Tennessee courts during the period under survey. Generally, basic principles were applied to routine cases.In certain instances the reliance upon a prior fact determination avoided the necessity of an elaborate treatment of the facts. In one or two cases the court reached a result that may not be deemed desirable though supported by much authority. Significant points received less attention than they deserved in certain cases. In one case the basic question …

Contracts -- 1961 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

I. Offer and Acceptance--Notification of Acceptance Before Notification of Revocation--Duration of Offer with Fixed Expiration Date

II. Implied and Quasi Contract--Claim for Services Where Family Relationship Involved

III. Parol Evidence Rule--Application of Rule to Third Party Not a Party to the Written Instrument--Pre-existing Duty as Consideration

IV. Exculpatory Contracts--Contracting Against Liability for Consequences of Own Negligent Conduct

V. Agreement in Restraint of Trade-Agreement of Seller of Business Not to Compete--Enforcement of Restraint in Area Greater than Required to Protect Purchaser

Comment: The Enforcement Of Agreements To Arbitrate, Irving Kovarsky

Vanderbilt Law Review

Three 1960 Supreme Court decisions' have limited the ability of litigants to challenge successfully the jurisdiction and award-making powers of labor arbitrators. The limitations imposed by the Court upon the judiciary's power to question the arbitrator, a reversal of traditional procedure, is of great significance and will unquestionably necessitate some readjustment on the part of management. This article attempts to place these recent developments in perspective and to suggest briefly certain practical changes in the attitudes of courts and contract negotiators that may result from them.

Constitutional Law -- 1961 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

Although a relatively small number of cases turned upon constitutional questions during the survey period, some important decisions were handed down in this area. In five separate decisions legislation was declared unconstitutional. The impact of the constitutional decisions varies from the right to millions of dollars in school funds in Shelby County and the salary of the clerk of General Sessions Court of Clay County to approval of permanent tenure for all franchised automobile dealers in the state. The scope of governmental power over the administration of estates, condemnation of private property and the pursuit of private businesses brought forth …

Restitution -- 1961 Tennessee Survey, John W. Wade

Vanderbilt Law Review

"A person who has been unjustly enriched at the expense of an-other is required to make restitution to the other." This is the first section of the Restatement of Restitution.' It indicates the principle underlying a field of the law coordinate with tort and contract.About a dozen cases during the survey period may be classified as raising a problem within this general subject. They do not cover the whole range of the field and have here been classified on a pragmatic rather than an analytical basis.

Services are normally rendered under a contract which governs the nature of the services …

Financing Industrial Development In The South, Margie F. Pitts

Vanderbilt Law Review

Proponents of public industrial building financing justify their position by pointing to the need to supplement private investment and to raise the level of per capita income in areas which have chronically suffered from this condition. The view one adopts of such financing is often couched on the high theme of free enterprise versus governmental participation. Yet the problem may also be viewed from the perspective of the South and its immediate needs.In the long run, it might well be that this program will have served to furnish a starting point for the process of development which would lead to …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Implied Warranties Governed by Law of the State Most Closely Associated with the Contract

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Constitutional Law--Due Process--Absolute Statutory Prohibition of the Use of Contraceptives Not a Violation of Rights Secured by Fourteenth Amendment

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Constitutional Law--Freedoms of Speech and Press--Ordinance Prohibiting Distribution of Handbills Without Identification of Author Violates Fourteenth Amendment

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Contracts--Termination--Employment for Indefinite Duration not Terminable for Refusal of Employee to Commit Perjury

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Evidence--Federal Courts--Evidence Obtained by State Officers Through Unreasonable Search and Seizure Inadmissible in Federal Courts

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Judgments--Limitation of Overruling Decision to Parties Before the Court and to Causes of …

Overlapping Coverages In Liability Contracts; Subrogation, John A. Appleman

Vanderbilt Law Review

Within the last twenty-five years, approximately, a considerable transition has taken place in approaching the coverages of automobile policies. At one time, liability insurers used to require their policy-holders to pledge that they did not carry other insurance of like character. It is difficult to understand why this situation ever arose. It may have been an outgrowth of fire coverages, or health and accident provisions, in which a moral hazard actually might exist where excessive protection is carried. Thereafter, instead of making this a matter of warranty, policies frequently provided that in the event there should be any other valid …

Business Associations -- 1960 Tennessee Survey, Kenneth L. Roberts

Vanderbilt Law Review

Two opinions of the court of appeals during the survey period-one unpublished-discussed the fiduciary duties owing by officers and directors to their corporations. In Harriman Welding Supply Co. v. Lake City Lightweight Aggregate Corp.,' Presiding Judge McAmis of the eastern section found occasion to state the principles applicable when the fairness of contracts between two corporations having interlocking directorates is questioned.

Automobile Policy Exclusions, A. L. Plummer

Vanderbilt Law Review

The exclusions in the automobile liability insurance policies have required much litigation to clarify and interpret the intent of the draftsmen and underwriter who wrote them. An exclusion takes away or modifies certain coverages given in the insuring agreements. The giving and taking-away provisions of insurance policies are necessary in the making of a limited contract. They tend to avoid duplication of coverage, limit the assumed risk or hazard, avoid underwriting the primary liabilities of others that should be covered by other policy forms, and otherwise limit the scope of coverage. Since 1936 there has been a constant effort by …

Contracts -- 1960 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

During the period covered by this survey, the Tennessee courts have had occasion to decide some rather basic questions in the law of contracts. These cases are the subject of comment. Other cases involving only questions of burden of proof regarding contracts questions have not be commented on.

Creditors' Rights And Security Transactions -- 1960 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Two cases involving mechanic's liens were decided during the period under survey. Rowland v. Lowe' presented the question of the validity of a material men's lien against the owner of land subject to a contract of sale which required the purchaser to erect improvements on the land. In order to protect the vendor's lien, which was to be retained in the deed, the contract provided:

"The purchaser obligates himself to pay all sums for labor and materials in the construction of the improvements on said lot, and in no event shall there be any lien on the lot of ground …

Local Government Law -- 1960 Tennessee Survey, A. E. Ryman, Jr.

Vanderbilt Law Review

This survey is directed to the law peculiar to local government. Although nearly every case involves law applicable to parties other than governmental agencies, the focus of attention here is on the aspects peculiar to such agencies. Critique of the law of general application is not within the scope of this article. Although "Elections and Representation" could be treated (as it was last year) under the topic of "Relations of Local Government and Private Persons," it is separated here to emphasize the logical distinction between laws concerned with the creation of governmental agencies on the theory that power is derivative …

Promissory Estoppel, James O. Bass Jr.

Vanderbilt Law Review

The general nature and application of the doctrine of promissory estoppel' has been thoroughly discussed in the past by very able commentators. It is not the purpose of this note to enlarge upon these analyses. However, as a basis for a summary of the present status of the doctrine, perhaps a brief review is in order. No proposition of law is more familiar to the legal profession in general than the rule that consideration consists of any legal detriment incurred by the promisee, which was "bargained for and given in exchange for the promise.' There are numerous situations in which …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases:

CONTRACTS--CONFLICT OF INTERESTS--GOVERNMENT EXPERT'S PRINCIPAL EMPLOYMENT INSUFFICIENT TO VOID CONTRACT ON GROUNDS OF PUBLIC POLICY

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CRIMINAL LAW-ATTEMPT-CONVICTION OF ATTEMPT TO RECEIVE PROPERTY NOT IN FACT STOLEN

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DOMESTIC RELATIONS-UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT--RELIEF FROM-EXTRADITION UPON PETITION OF THE OBLIGOR

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EVIDENCE-ADMISSIONS--GUILTY PLEA TO TRAFFIC LAW VIOLATION INADMISSIBLE IN SUBSEQUENT CIVIL SUIT

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FEDERAL JURISDICTION AND PROCEDURE--DIVERSITY JURISDICTION--ABSTENTION BY FEDERAL COURT FROM THE EXERCISE OF JURISDICTION IN DIVERSITY CASE

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LABOR LAW--LABOR--MANAGEMENT RELATIONS ACT-STATE COURT PRE-EMPTED FROM ENFORCING GRIEVANCE PROCEDURES OF COLLECTIVE BARGAINING AGREEMENT

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PROFESSION OF LAW--BAR ASSOCIATION MAY NOT DISCIPLINE AN ATTORNEY FOR CONDUCT AS …

The Real Estate Broker's Undertaking, William E. Wallace

Vanderbilt Law Review

In earlier articles I have discussed problems dealing with the enunciation and expression of listing agreements, their formal import' and the effect of one important segment of many of the attendant" payment" clauses. The former article concerned itself with the general problem of the relationship existing between a real property owner and his broker, while the latter dealt with the significance of words by which the payment clause of a brokerage agreement was introduced and with the effect of a wrongful default by the landowner. The present article will consider the legal significance of the actual terms employed to designate …

Restitution--1959 Tennessee Survey, William Wicker

Vanderbilt Law Review

A defrauded party to a contract may ask for the alternative right of cancellation of the contract and restitution of the consideration, rather than a right to damages for being led into the fraudulent transaction. This restitutionary remedy is the right of the defrauded party to be restored to the situation which he occupied prior to the fraudulent transaction.

In Bluff City Company v. Davis, seller falsely represented that an automobile was new, and buyer relied on that representation. Within a reasonable time after buyer learned that he had bought a used automobile, he offered to return it. It was …

Contracts -- 1959 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

The distinction between an implied contract (implied in fact) and a quasi contract (implied in law) was presented in a somewhat unusual fashion in the federal case of Holbert v. United States decided by the District Court for the Eastern District of Tennessee. Whether or not a federal district court had jurisdiction over plaintiff's case turned on whether the claim was based on implied contract or on quasi contract.

One of the grounds on which the Tucker Act confers jurisdiction on federal district courts to entertain actions against the United States is where the claim is based "upon any express …