Contracts Commons^™

What's In Your Box? Removing The Tiffany Standard Of Knowledge In Online Marketplaces, Hayley Dunn

Catholic University Journal of Law and Technology

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc. v. eBay, Inc., online marketplaces face almost no liability …

Caveat Emptor: Real Property Law’S “Get Out Of Jail Free” Card V. The Property Condition Disclosure Act, Alessandra E. Albano

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

The Surety's Liability For "Bad Faith": Claims For Extra-Contractual Damages By An Obligee Under The Payment Bond, John J. Aromando

Maine Law Review

The theory of “bad faith” is by now well established in the areas of liability and casualty insurance. Although the relief available takes different forms in different jurisdictions, a common thread is the exposure of the insurance carrier to extra-contractual damages as a result of its conduct in handling a claim. Depending on the jurisdiction, these extra-contractual damages can include one or more of the following: penal interest and attorneys' fees; consequential damages for breach of contract; and recovery in tort. Even in the most restrictive jurisdiction the exposure is substantial, and in the most expansive it can be catastrophic. …

Taking Note Of Notary Employees: Employer Liability For Notary Employee Misconduct, Nancy Perkins Spyke

Maine Law Review

The law of agency governs the relations between principals, agents, and third persons. A portion of that body of law deals with the liabilities that arise when an agent causes harm to a third party. Situations in which negligent employees cause harm to their employers' customers are ripe for the application of standard agency principles. Those principles dictate that the employer will be liable for the tort of an employee if the tort is committed in the scope of employment. The Restatement (Second) of Agency and case law provide many illustrations. If an employer directs an employee to perform a …

Corporate And Business Law, Laurence V. Parker Jr.

University of Richmond Law Review

Over the past three years, there have been a number of legislative changes to Virginia's business entity statutes. In Part I,this article highlights the changes to the Virginia Stock Corporation Act ("VSCA") and the Virginia Nonstock Corporation Act ('"VNSCA"). Part II highlights changes to the Limited Liability Company Act ("LLC Act"). Part III summarizes Virginia's new intrastate crowdfunding law. The Supreme Court of Virginia has also addressed several significant issues over the last three years, including the applicability of appraisal rights in a stepped transaction. Part IV reviews several of the significant cases during this period.

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

No abstract provided.

Privity's Shadow: Exculpatory Terms In Extended Forms Of Private Ordering, Mark P. Gergen

Florida State University Law Review

No abstract provided.

Petitioning Foreign Governments: The Act Of State And Noerr-Pennington Doctrines, Don R. Sampen

Georgia Journal of International & Comparative Law

No abstract provided.

Fiduciary Duties And Exculpatory Clauses: Clash Of The Titans Or Cozy Bedfellows, Louise Lark Hill

University of Michigan Journal of Law Reform

Centuries ago, when land represented the majority of wealth, the trust was used primarily for holding and transferring real property. As the dominant form of wealth moved away from family land, the trust evolved into a device for managing financial assets. With this transformation came the use of exculpatory clauses by both amateur and professional trustees, providing an avenue for these fiduciaries to escape liability for designated acts. With the use of exculpatory provisions, discussion abounded about whether fiduciary duties were mandatory or subject to modification. The latter view eventually prevailed, with the majority of jurisdictions viewing fiduciary duties as …

In Re Healthsouth Corp. Securities Litigation, Adam Paul Gordon

NYLS Law Review

No abstract provided.

A Comparative Fault Defense In Contract Law, Ariel Porat

Michigan Law Review

This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost.

Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat

Michigan Law Review

The basic rule of liability in tort law is fault. The basic rule of liability in contract law is no fault. This is perhaps one of the most striking divides within private law, the most important difference between the law of voluntary and nonvoluntary obligations. It is this fault line (speaking equivocally) that the present Symposium explores. Is it a real divide-two opposite branches of liability within private law-or is it merely a rhetorical myth? How can it be justified? As law-and-economics scholars, this fault/no-fault divide between contract and tort is all the more puzzling. In law and economics, legal …

Construction Law, D. Stan Barnhill

University of Richmond Law Review

No abstract provided.

To Err Is Human, Keith A. Rowley

Michigan Law Review

There are many kinds of mistakes. One kind-a rational, well-intended act or decision resulting in unanticipated, negative consequences-was the focus of Allan Farnsworth's previous foray into the realm of legal angst. Another kind-an act or decision prompted by an inaccurate, incomplete, or uninformed mental state and resulting in unanticipated, negative consequences- is the subject of the present book. Like its predecessor, Alleviating Mistakes does not confine itself to contract law, Farnsworth's home turf; it explores criminal, tort, restitution, and other areas of substantive law as well. As such, it paints on too large a canvas to capture its entirety in …

The Responsible Thing To Do About "Responsible Party" Provisions In Nursing Home Agreements: A Proposal For Change On Three Fronts, Katherine C. Pearson

University of Michigan Journal of Law Reform

Nursing homes routinely seek the signature of a family member on nursing home agreements, calling the signer a "responsible party" or sponsor for the resident. Federal Medicare and Medicaid law provides that participating facilities must "not require a third party guarantee of payment to the facility as a condition of admission ...to, or continued stay, in the facility. "Nonetheless, if federal benefits prove to be unavailable, courts are holding responsible parties contractually liable for thousands of dollars for the care of their elders. This Article proposes private and public responses to the increasing likelihood that nursing homes will seek collection …

Labor And Employment Law, Thomas M. Winn Iii

University of Richmond Law Review

No abstract provided.

At-Will Employment In Washington: A Review Of Thompson V. Sl Regis Paper Co. And Its Progeny, Richard Wall

Seattle University Law Review

The purpose of this Article is to examine the nature and origin of the issues now being faced by Washington courts in the area of at will employment and to argue that the well-established legal principles governing other kinds of contracts be consistently applied to at will employment contracts. This will result in a proper balance between the desire to protect at will employees from unfair termination and the need to allow employers the freedom to make decisions in the hiring and termination of at will employees without undue interference. This Article will first review the historical development of the …

The Interlocking Death And Rebirth Of Contract And Tort, Jeffrey O'Connell

Michigan Law Review

The first portion of this article will examine the growing inclination of courts to apply tort principles to cases based on contracts; at the same time, the defects of tort will be discussed insofar as they militate against the wisdom of so extending tort principles. In the last half of the article, an alternative contractual method for allocating losses in one particular area will briefly be presented; this method does not contain the defects in loss allocation that have impelled courts to reject traditional contractual principles, but it also avoids many inefficiencies of traditional tort remedies.

Profits And Their Recovery, Graham Douthwaite

Villanova Law Review

No abstract provided.

Recent Developments In Products Liability Law In Pennsylvania, Warren W. Faulk

Villanova Law Review

No abstract provided.

Article Eight: A Premise And Three Problems, Ernest L. Folk Iii

Michigan Law Review

This essay concerns itself with a basic premise and three problems concerning investment securities under Article Eight of the Uniform Commercial Code (Code). Although some amount of relevant exposition is necessary to make the arguments intelligible, general familiarity with the essentials of the Code's treatment of investment securities is assumed.

Insurance--Motor Vehicles--"Newly Acquired Automobile" Clause Extended To Cover Previously Owned Inoperable Vehicles--National Indem. Co. V. Giampapa, Michigan Law Review

Michigan Law Review

Plaintiff insurance company brought an action for a declaratory judgment that it be held not liable on a policy it had issued to the insured motorist. A party injured in an accident involving the insured had obtained a judgment against the insured in a suit which the insurer defended with a reservation of rights. Although a 1949 Cadillac was the "Described Automobile" in the insurance policy, the insured was driving a 1956 Ford at the time of the accident. The trial court found that during the term of the policy the Cadillac had become inoperable and was replaced by the …

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 …

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 …

Concurrent Causation In Insurance Contracts, William Conant Brewer Jr.

Michigan Law Review

A great deal of work and thought has been devoted to concurrent causation problems in the field of torts. Less attention has been paid to the insurance cases, and no serious effort has been made to formulate the separate rules applicable to them. It is the thesis of this article that concurrent causation problems which arise under an insurance contract must be handled somewhat differently from those which arise in connection with tort litigation, and that the tendency to borrow rules of law from the larger tort field and apply them to the smaller volume of insurance cases can only …

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 …

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 …

Professional Negligence Liability Of Public Accountants, Carl S. Hawkins

Vanderbilt Law Review

At least since 1905, in this country, accountants have been recognized as "a skilled professional class ... subject generally to the same rules of liability for negligence in the practice of their profession as are members of other skilled professions."' The question, then, is not whether the usual concepts of professional negligence apply to accountants, but how. What situations have produced malpractice litigation? What are the specific practices or omissions which have resulted in liability? And what are the limits of liability? Like other professionals, the accountant usually gets into the position where he must exercise his professional skill as …

Liability Of Funeral Directors For Negligence, Edgar E. Smith

Vanderbilt Law Review

Funeral directing cannot be classed absolutely as a "profession."'On the contrary, the funeral director's principal concern probably is the sale of caskets and burial supplies, thus making him a "merchant"or "trader." However, for purposes of rendering services in connection with the care and burial of the dead as well as in accommodating the family and friends of the deceased, the funeral director is considered a "professional man." It is the latter capacity which is under consideration here. It is inconsequential for legal purposes whether a mortician is referred to as a "funeral director," an "embalmer," or an "undertaker." An embalmer …