...1st, 2nd and 4th of October which confirmed their agreement that Clare would pay Barney $250,000 for his interest in the matrimonial home and $1000 per month in maintenance. In return Barney agreed to transfer his half of the property to Clare. Clare has paid the maintenance but Barney refuses to sign the transfer of land which was prepared by Clare’s solicitors. Required: Discuss whether the contract between Barney and Clare lacks formality. Answer: The area of law involved in this question is the formalities of a contract, in particular Statute of Frauds and Doctrine of Part Performance. A Statute of Frauds requires that certain contracts be in writing, and that they be signed by all parties to be bound by the contract. The most common types of contracts to which a Statute of Frauds applies is for a contract involving the sale or transfer of land and contracts to answer for the debt or duty of another. The Statute requires contracts for sale of land and property to be: 1. In writing * Involve some written evidence * Material terms of the contract WHO are the parties to the contract, WHAT the property in question (subject matter) and HOW MUCH the price for the property. May be contained in numerous documents but all must be linked illustrated in Long v. Millar where it was held that the written agreement and signed receipt could be linked together therefore forming sufficient memorandum. * The memorandum or note need not have been in existence...
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...Vennessa Miller Law421 Professor Nikki Chtaini Case Scenario: Big Time Toymaker November 11, 2013 There was contract. What they put together was an agreement in an email. Three days before the expiration of the 90 day period the parties reached an oral distribution agreement at a meeting. Then later a draft agreement contract was sent. The fact that may weigh in favor of Chou is that he has the email that he sent and when he sent the email but on the other hand what may not work in his favor is because both signature is not on the agreement. Yes it does because they do have a source of correspondence to one another. None, since it is a services contract for distribution rights. The Statute of Frauds only comes into play if it is a goods contract. If it is believed by the judge to be a goods agreement then the written requirement, the all terms included requirement and the signed by the sender all have been met by the email with its automatic signature of the manager representing BTT. BTT could not avoid this contract under the doctrine of mistake because there was no mistake the received an email about the agreement that was made between both parties. The only thing that would help is because they did not sign the agreement so it can be avoided Chou would value by having his product dispersed for sale throughout the network of retail that BTT as a board game company had at their disposal. BTT would profit by laying the blame on their cut for dispensing the...
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...both parties. Promissory Estoppel = This is where a person is denying, or not wanting to understand or approve of a certain law. A good example would be a mother and a daughter the mother advises her that if she passes away the inherence will be hers. The mother passes but never changes her will to add the daughter, but the daughter believes she has the right to the inherence. Parol Evidence Rule = This would be a written contract between two party in which prevents one of the party from changing the contract or adding on something else to the contract . Example would be a car dealership representative sells a car to a consumer and expresses to them the car is really good and in good shape but the contact mentions "as is". Statutes of...
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...Chapter 15- Problems and Problem Cases: Problem 10 “Gianni Sport was a New York manufacturer and distributor of women’s clothing. Gantos was a clothing retailer headquartered in Grand Rapids, Michigan. In 1980, Gantos’s sales total was 20 times greater than Gianni Sport’s, and in this industry, buyers were “in the driver’s seat.” In June 1980, Gantos submitted to Gianni Sport a purchase order for women’s holiday clothing to be delivered on October 10, 1980. The purchase order contained the following clause: Buyer reserves the right to terminate by notice to Seller all or any part of this Purchase Order with respect to Goods that have not actually been shipped by Seller or as to Goods which are not timely delivered for any reason whatsoever. Gianni Sport made the goods in question especially for Gantos. This holiday order comprised 20 to 22 percent of Gianni Sport’s business. In late September 1980, before the goods were shipped, Gantos canceled the order. Was the cancellation clause unconscionable?” (Mallor 433). According to the doctrine of unconscionability, the cancellation by Gantos was unconscionable. Gantos was a larger company, and therefore was able to determine the terms of the contract, and Gianni Sport, being the weaker of the two, had no practical choice but to adhere to the terms. Under the UCC, the courts have the power to manipulate the provision containing the unconscionable terms to make the contract just. In this case, I believe the courts would take...
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...Daniels is involved in two different scenarios that have a few issues. In the first fact pattern the issues presented are holder in due course, negotiable instrument, ordinary contract principles, and estoppel. In the following fact pattern, the issue presented is surety versus guaranty. The issues will be solved by analyzing the law of the specific topic or term. First State Bank of Gallup was trying to collect from the maker of the note, in this case Daniels, because Clark defaulted on the loan after several payments. Daniel refuses to pay arguing that the note was a nonnegotiable instrument and therefore invalid in the hands of the bank. For First State Bank to able to collect from Daniels, has to be a holder in due course if the note is a negotiable instrument. Under the U.C.C. – Article 3 – a holder in due course means the “holder of an instrument if: the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and the holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in Section...
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...When a contract is formed the declarations made between the two parties involved can be seen as either terms of the contract or mere representations, it is quite essential for the parties to be able to distinguish the difference between the two as it is criticall for both parties to know what course of action to take if such a term or representation is breached. In order to distinguish wheteher a declaration is a term or a mere representation the courts will analyse four factors, the parole evidence rule, relative expertie of the parties, importance of the declaration and the time that has passed form the declaration to the signing of the contract (e-lawresources). This paper will supremely study Jhons legal position againts the Cars4U garage, it will look at the possible remedies available to him and the difference between warranties, conditions and innominate terms. If a declaration is made by one of the parties that is considered a representation and not a term the innocent party may sue on the basis of misrepresentation; if the declartion turns out to be a false statement of fact and not just of opinion (Bisset v. wilkinson [1927]). The salesman guarantees that the car has no defects and Jhon does not need to inspect it, If the salesman was not in a position to know better this statement could be considered a statement of opinion and Jhon would not be able to claim any remedies for negligent or fraudulent misrepresentation if the car he bought had any defects, but could...
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...Business owners know it is very difficult to borrow money for the business from a creditor without a personal guarantee even if the creditor has security against all of the business. If you sign the typical standard guarantee form used by creditors, you may be giving up rights designed to level the field. Some terms of the creditor guarantee are not in your best interest. . But what is a guarantee, what defences do you as a guarantor have and what are your rights? If you must pay under the guarantee, can you recover the money and how? Before you sign a guarantee, whether to support your business, or to help a relative or friend, you should know the answers to these questions. You should also consult a qualified lawyer to make sure the guarantee is not any broader than absolutely necessary. A guarantee is a contract between the guarantor (the person that gives the guarantee) and the creditor (typically the creditor that makes the loan). As a contract, it must meet theessential conditions required to form a valid and enforceable contract. There must be certainty of the terms of the guarantee: what is the extent of the guarantee, when can the creditor call for performance under the guarantee, and how can it be revoked. There must be some consideration for the guarantee as with all contracts. Usually this is the loan made to the business. It could also be an agreement to hold off taking some action that the creditor is otherwise entitled to take, or allowing more time for the...
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...Listening to the record session was extremely enlighten on how to comprehend what is a retainer agreement. This is when a client hire an attorney to represent them in court. Although, there are document to be file to start this agreement. On the live session Elad show the class an Authority to represent and Contingency fee agreement. Which shows the type of cost and fees that is in the agreement. It also, show the type of cost that the law firm will have to use for their clients. Such as police report, hospital and medical, subpoenas and much more. You cannot mistake the cost with the fees. The fee are for the service that the attorney has provided for the client. The accounting is especially important this is where the paralegal will prepare...
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...How justified is the fact that Parole Evidence Rule has outlived its importance in the modern day life? The parol evidence rule has long been a controversial element of the common law system. It has been frequently attacked for the injustices that result from its application and sometimes even for a lack of rationality in its justification. This exposition results from the conviction that useful light can be shed on the problems surrounding the parol evidence rule by an examination of its status in other common law jurisdictions, where it has also been the subject of constant dispute throughout the previous half century. The written document produced by the parties is merely a memorandum of the agreement that they have reached. Consequently, when a court attempts to resolve a dispute regarding the agreement, the written document is construed as persuasive evidence of what was agreed, and can be contradicted by other evidence tending to show that the actual agreement was something different. By contrast, the objective theory of contracting holds that the written document is in fact the agreement itself, so that in attempting to discern the nature of the bargain between the parties it is improper to admit evidence that contradicts the written document. Since the actual intentions of the parties are not being considered by the court, evidence that would tend to demonstrate that their intentions were something other than the written document reflects is simply irrelevant. ...
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...Memorandum To: Krusty Senior Partner From: Christian Martin Date: 7/14/2013 Re: Patrick Ford contract problem ------------------------------------------------- Question Presented The question presented is whether the parol evidence rule will preclude us from using Mr. Moxie’s statements to supplement the contract and if Mr. Ford has a claim against Mr. Moxie/ Electronics, Audio & Radio Sales for the money he paid for the home entertainment equipment that he purchased in the contract agreed on between the two parties. Brief Answer The answer is no, Mr. Ford does not have a claim for breach of contract against Mr. Moxie and EARS for the installation of the home entertainment. Mr. Ford does not have a claim because the contract between the two parties of Mr. Ford and Mr. Moxie/EARS was written and final. Even though Mr. Moxie reassured Mr. Ford that the entertainment equipment he was interested in purchasing would meet all of his expectations especially in regards to the wireless signal being able to allow him to stream movies, television and music throughout his home. The parol evidence rule would in fact apply in this particular case because even though Mr. Moxie did relay some questionable information to Mr. Ford about the system being able to be effectively relay the signal throughout the entire house. As previously stated the contract between Mr. Ford and EARS through the sales representative Mr. Moxie was written and definite making the ultimate...
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...Uniform Rules for Demand Guarantees Article 1 These Rules apply to any demand guarantee and amendment thereto which a Guarantor (as hereinafter described) has been instructed to issue and which states that it is subject to the Uniform Rules for Demand Guarantees of the International Chamber of Commerce (Publication N°458) and are binding on all parties thereto except as otherwise expressly stated in the Guarantee or any amendment thereto. Article 2 a) For the purpose of these Rules, a demand guarantee (hereinafter referred to as "Guarantee") means any guarantee, bond or other payment undertaking, however named or described, by a bank, insurance company or other body or person (hereinafter called "the Guarantor") given in writing for the payment of money on presentation in conformity with the terms of the undertaking of a written demand for payment and such other document(s) (for example, a certificate by an architect or engineer, a judgment or an arbitral award) as may be specified in the Guarantee, such undertaking being give i) at the request or on the instructions and under the liability of a party (hereinafter called "the Principal"); or ii) at the request or on the instructions and under the liability of a bank, insurance company or any other body or person (hereinafter "the instructing Party") acting on the instructions of a Principal b) Guarantees by their nature are separate transactions from the contract(s) or tender conditions on which they may...
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...#23 Manila Insurance v. sps Amurao GR 179628 1-16-2013 J. Del Castillo Suretyship - liability of surety Facts: Sps. Amurao (Creditor/Obligee) entered into a Construction Contract Agreement (CCA) w/ Aegean Construction Devt Corp (Debtor/Obligor) for the construction of a 6-storey commercial bldg. To guarantee its full & faithful compliance w/the terms & conditions of the CCA, Aegean posted a performance bond by Manila Insurance Co. (Surety) & Intra Strata Assurance Corp. (Surety). Due to failure of Aegean to comply w/the project, Sps. Amurao filed a Complaint vs. the Sureties to collect on the performance bond at the RTC QC. Manila Ins. filed a (motion to dismiss) M/D seeks to dismiss on grounds: 1) Lack of cause of action vs. Surety that filing of Complaint is premature due to failure to implead principal contractor; and that at the time the Surety Issued the performance bond, CCA was not yet signed; and 2) lack of jurisdiction. During pre-trial, Sureties discovered that the CCA contained an arbitration clause. RTC - denied Sureties M/D and subsequent M/R. It disregarded the fact that CCA was not yet signed at the time Surety issued the performance bond. CA - dismissed the petition. 1) The presence of arbitration clause in the CCA does not merit dismissal of the case; it is only when there are differences in the interpretation that parties may resort to arbitration 2) found no GAD on the part of the RTC, it explained that performance bond was intended to be coterminous...
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...1 Is Contract Management a Career for Me? xxxxxxxxxxxxxx Professor xxxxxxxxxxx Contract and Purchasing Negotiation Techniques – BUS 340 November 26, 2010 2 Contract Management is defined as: the work of managing a contract for goods, services or works, which includes monitoring performance, commercial aspects, delivery, improvement, complaints and customer satisfaction. The Federal Acquisition Regulation includes a set of four performance objectives: (1) to satisfy the customer in terms of cost, quality, and timeliness of the delivered product or service, (2) to minimize administrative operating cost, (3) to conduct business with integrity, fairness, and openness, and (4) to fulfill public policy objectives. Incorporating these objectives and operating under the clear definition, is critical to a Contracting Officer or Specialist. Before I was in the contracting field, I was in logistics in the military. Some of my duties were as follows: Establishes and maintains stock records and other records; establishes and maintains automated and manual accounting records, posts receipts and turn-ins; reviews and verifies quantities received against shipping documents; prepares and maintains records on equipment usage, operation, maintenance, modification, and calibration; processed inventories, surveys, and warehousing documents; prepares...
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...Assignment on Practice of International Bank Guarantee Mutual Trust Bank Ltd (MTB) and Bangladesh Perspective Prepared by Md. Ashraf Ali Senior Officer Mutual Trust Bank Limited Table of contents |Introduction |3-4 | |Guidelines (BB & URDG) |4-11 | |Practice of International Bank Guarantee at MTB |12 | |Problems |13 | |Recommendations and Conclusion |14 | Introduction A guarantor issues a guarantee usually a bank on behalf of an exporter. It is a guarantee to the buyer that the exporter will fulfill the contractual obligations. If these obligations are not fulfilled, the guarantor undertakes to pay a sum of money to the buyer in compensation. This sum of money can be anything from 1% to 100% of the contract value. Bank guarantee is one of the security instruments which can be utilized to reduce the risks or to recover the losses or damages involve in many business transactions to buyer and seller since it's...
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...Introduction This essay is to discuss the nature and confusions with Parol Evidence Rule. To do this, the rule will be described and be reviewed with a brief history. Debates will be given after, in order to project its application and suitable situations to be influential. Nevertheless, exceptions, where the rule does not have such influence and cannot be applicable will be argued after. Finally, its application in prevention of further objections for contracts will construct the final deliberation. Ultimately the discussion will be concluded as a brief review to what has been done. Debate Parol Evidence Rule (PER) is a consideration of substantive common law that applies to contracts and eliminates parties to encounter any previous parol and oral evidences, with respect to their written total agreement (Corbin, 1944 and Blum, P: 2007, 348). According to Lawrence (1991) the history of the addressed rule travels to when agreements were made credible by written stamped latters, due to the impact of mystical and formal combination; where such formal evidences are nowadays a considerable factor for many courts to conclude justice. The rule was primarily established in 17th century English common law and has since been distributed among the other regions’ system of justice (Beveridge, 2000). Contract parties usually approach a set of common agreements after their interests are deliberately criticized and defended (Alces, 2005). A construction contract can be observed as an example...
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