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Messages - Dean Prosser

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51
General Board / Re: Torts v. contracts
« on: October 29, 2004, 03:31:03 PM »
JD - check out UCC 2-209 (1) , in that situation a breach would not be in her best interest, and the offeror would recover heavy damages.  However, in this situation, assuming good faith, offeree could modify the contract for "impracticability" if:
- Contract excutory, not executed (which it is)
- Modifications are fair and equitable...
- in view of the circumstances not anticipated when contract was formed.

This modification would have to be mutually agreed upon, would it not?


           I would hope there would be assent to the modification, and I would look very hard for it.  That the offeror is the offeror, and he *wants* this building built, so badly that he enters into a 1 million dollar contract, and it's clear now that offeree wants to finish it, however needs to modify the original contract in good faith, in a fair and equitable manner in view of the circumstances not anticipated, I do not see how the offeror would *have* to assent to it, especially since there is definite detrimental reliance on the offeree (assuming he is not going to be paid until full performance).  Then again, if offeror said "stop with the building and here is your money" then offeree would have a tough case against offeror to say, "I won't stop until it is complete, I am modifying this contract and you give me another million." 

I found this buried in my notes:
UCC 2-209 View:  You just have to show there was an agreement to modify.  If a party is coerced into agreeing into a modification, that party is protected by the requirement of good faith.   
   Comment (2) a modification must meet the test of good faith imposed by this act.
UCC 1-201:  Honesty in Fact.  Observance of reasonable commercial standards of fair dealing in the trade.


Important to note:  The modification is *only*  for the Sale of Goods (it's article 2).  The reason for 2-209 is to get around the legal technicalities of always making the courts find consideration, a meeting of the minds, and the like, which slows the actual building of the building. 

52
General Board / Re: Torts v. contracts
« on: October 28, 2004, 01:18:04 PM »
JD - check out UCC 2-209 (1) , in that situation a breach would not be in her best interest, and the offeror would recover heavy damages.  However, in this situation, assuming good faith, offeree could modify the contract for "impracticability" if:
- Contract excutory, not executed (which it is)
- Modifications are fair and equitable...
- in view of the circumstances not anticipated when contract was formed.

But it has already been decided that in certain circumstances, a breach is something that the courts will encourage, for economic reasons alone.  Is this a tort however?  Perhaps, technically, but that is still a stretch... however, there is a tort for inducing one to breach, I believe.

53
General Board / Re: Torts v. contracts
« on: October 27, 2004, 02:59:30 AM »
From an outline:  "Right to Breach:  Some courts have done away with the pre-existing duty rule, reasoning that a contracting party always has the 'right' to breach his contract and pay damages; therefore, if the party continues with his performance, he has given up his right to breach... the vast majority of courts and authorities have rejected this rationale, on the grounds that one does not have a 'right' to breach a contract; these courts hold that damages for breach of contract are simply compensation to an injured victim in the same way that a tortfeasor's willingness to pay damages does not give him the 'right' to commit a tort."

Sometimes it is *good* to breach a contract.  And remember, as a torts lawyer says, a tort is not so much about blaming someone as it is about compensating the one who was injured. 

54
General Board / Re: Law School so far
« on: October 13, 2004, 03:46:39 PM »
As we are at the half way point through the first semester, the work is starting to pile on more than in the beginning, because the begininng we only had to deal with new material.  Now, we not only have to brief cases and learn new material, but we have to refresh and memorize the old material as well.  I imagine this only gets more dramatic as the semester moves on and the binge drinking escalates. 

55
West Los Angeles / Presidential Debate at ASU
« on: October 13, 2004, 03:00:07 AM »
From the Arizona Daily Wildcat re a UofA Law student when responding to Michael Moore's visit at the best basketball school in the nation, UofA...

"Joel Feinman, a second year law student, said although students have every right to protest against (Michael) Moore, they probably do not fully understand problems with the Bush administration."

56
General Board / Re: Got a really good question by my professor...
« on: October 12, 2004, 08:47:48 PM »
Negligence has standing, however, for a better recovery, I would stand on a contractual issue between the bank and the CPA firm to provide services in good faith as part of their binding agreement... perhaps even a breach, or detrimental reliance even.  I would run with that, however you would have to make many inferences.

57
West Los Angeles / Re: Jobs, Internships and Representing!
« on: October 12, 2004, 02:06:51 PM »
Creating then Busting a cap in your international laws, American jurisprudence is what we need to concern ourselves with. 

58
General Board / Re: Simple Tort question - hypo
« on: October 12, 2004, 03:37:41 AM »
Just move down in an analytic manner for all hypo's, if one element fails, negligence shall fall apart:

Duty to act (if no act, was there a duty?)
Standard of Care (What is the standard of care for a reasonable person in like circumstance)
Breach of that Standard
Causation
Actual Damage



59
West Los Angeles / Jobs, Internships and Representing!
« on: October 12, 2004, 03:35:03 AM »
Post up!

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