Problem Flow-Charts

I.	Problem w/ Defenses as the Focus:

Problem:  Walter and the gas station

1)  What does Walter want:  To save the K (so Walter doesn’t lose his franchise) but get rid of the indemnification clause.

2)  Is this K w/in the UCC:  see p. 37.
The Test:  Must look to “real purpose” of the agreement, based on the intent of the parties, to decide whether w/in Art. 2.  If the real purpose is to sell goods, then w/in.  See Leibel, p. 37.
a) Arguably yes, b/c its like the garage door case (Leibel) and it can be argued that Walter resells the gas (a good) and is not just a franchisee or an agent.
b) Probably not, its a franchise and that is the real purpose, not sales.  
B/c this is a defenses case, w/in the UCC is not to likely to matter anyhow, but make the argument  anyhow.

3)  Parol Evidence Rule:  pp. 33-36.
Can do up front or last.  probably easiest to do last.  Possibly a problem here w/ regard to some of the defenses, but evidence that goes to establishment of fraud, duress, undue influence, misrepresentation, etc., is allowed in, regardless of PER.

4)  Defenses:  

a) Misrepresentation:  p. 40.
K, or section thereof, is voidable if a party’s manifestation of assent is induced by a fraudulent or material misrepresentation by the other party upon which the recipient is justified in relying.

This is potentially good defense b/c it can be, although is not often, used as a scalpel, to remove only the portion of the K that resulted from misrepresentation.

	1) must have fact, not opinion:  
	2) must be material:  
	3) must have been believed by hearer
	4) hearer acts b/c of the misrepresentation.

Here, Walter ran in to several problems:  Was he justified in believing the franchisor sales person (probably yes, b/c of apparent authority); materiality of the misrep., and most problematically, did Walter make his decision based on the misrep (i.e., cause).  Probably not, b/c his livelihood was the station, and he would have signed on regardless.

b) Undue Influence:  pp. 39-40
Doesn’t work well b/c it would kill the entire K.  No psychological dominance and no confidential relationship.

c)  Duress:  pp. 38-39
Doesn’t work well b/c it kills the entire K.  Does not fit the fact pattern well either b/c its all about coercion, which appears to be absent here.  Although, I wander if an economic duress defense could be potentially made out (but wouldn’t waste time, b/c it doesn’t get Walter what he wants).

d) Non-disclosure:  pp. 41-42.
It would kill the K, and even if not the case, there was no duty to disclose.

e) Unconscionability:  pp. 43-44
Serves well for a number of reasons.  1) Don’t have to deal w/ PER, b/c we focus on clause itself, not what the company rep. said.  2)  It works as a scalpel, removing just the bad parts and leaving the remainder of the K intact.  
Test:  Oppression and unfair surprise.  This will be a little tough to est. b/c Walter was aware of the clause (his niece said it was bad).  But it is a good case for both substantive and procedural Unconscionability.  Did Walter really have any other meaningful choice?  NO.

f) Reasonable Expectations (Llewellyn) and Rst §211(3):  pp. 32-33 (pp. 449-450 of text).
Applies in situations of adhesion Ks, especially where one has significant bargaining power over the other.  Unfortunately, its used exclusively in the insurance context.  Also, most court don’t like the doctrine, so its not frequently used at all.  And when it is, Cts usually req. a showing of an ambiguity first.  But, its worthwhile to make a good argument, b/c it works as a scalpel to remove just the bad section.  
The Test:  Concerning boilerplate language, only those provisions that are either “dickered with” or are “reasonably expected” to be in the K are included in the K.  This test is based on the understanding that no one reads insurance Ks.  For Rst 211(3):  where the party using a form K has reason to believe that the other party manifesting assent would not do so if they knew the writing contained the particular provision, the term is read out of the K.

5)  Agency:  pp. 10-11.
If we try to show that Walter acted based on the company rep.’s statements, we must also establish that he had the apparent authority to make the statements he did.  
Test for apparent authority:  A person of ordinary intelligence, diligence, prudence and discretion would have right to believe that the agent possessed the authority he purported to exercise.  (Universal Computer Systems)
If yes to either actual or apparent, then agency exists b/w Grosso and the company rep. and the rep.’s P’s are binding on Grosso.

II.	PROBLEM WITH CONSIDERATION AS THE FOCUS

Problem:  Jan and Della

1.  What does Jan want:  Jan wants to enforce her ex-lovers repeated promises to pay her back for all the financial support she provided over the years.

2.  Is this w/in the UCC:  see p. 37.
No.

3)  Promises:  
Regardless of which theory we use to establish a K, we will need to base it on a P.  So, it is critical to put forward all the P’s up front and deal w/ them as needed.  Under certain doctrines, some P’s will be better than others.  Don't go through every P w/ every doctrine, just focus on best fits.

4)  Consideration:

Note that in considering which doctrine to go w/ remember that the parties involved in this suit are lesbians.  This is not likely to be looked upon favorably by the court.  So, its best to go w/ doctrines that give the Ct. the least amount of discretion.  Bargain is best for this purpose, then Moral C and implied in fact.  Implied in law and reliance give huge amounts of discretion, so are not good for this purpose, but they may be the best shot we have.

a) Bargain Theory:  pp. 1-11.
	1) did party whom we are trying to seek enforcement against benefit.
	2) was the P of that party given to receive the benefit.
	3)  in this context, it was important to separate out the things done for love and the things 	done as a result of the P.

b) Moral Consideration:  pp. 13-14.
Two possible rules: 
Mills Rule (Rst 82): 
	1) originally binding K
	2) made inoperative by positive law,
	3) new P to pay is enforceable, even w/o new C.
Facts here did not fit this scenario, as will be the case in most scenarios.  Unfortunately, this is the majority approach.
Webb Rule (Rst 86):  
	1) P made in recognition of past benefit is binding to the extent necessary to avoid 	injustice, but
	2) P not binding if gift or to the extent its value is disproportionate to the benefit.
The P’or must have received a material benefit.  No problem to argue that $ is such a benefit.
Problems:  1) “to the extent necessary to avoid injustice.”  This is up to complete discretion of court.  So, here, w/ lesbian partners, it could be tough.  2) P not binding if gift.  Same problem as w/ bargain, must prove that the benefit given was b/c of the P, not b/c of love.  3)  And, if can establish all this, what’s it all worth anyhow.  The only really cognizable P was that to pay back for money spent when the  had a broken ankle.  This wouldn’t provide too much.
Good Part:  §86 presumes a P, thus the burden is on the  to establish that she did not make the P.
c) Reliance §90:  pp. 14-19.
	1) P
	2) act/forbearance
	3) by P’ee
	4) foreseeability
	5) injustice
Problems:  1) Must be able to show that the P caused to Jan’s actions (the P was the cause).  Again, the problem exists of separating out those things done for love and those things done in reliance of the P.  2)  Did Jan really believe that  would pay her back, i.e. was there justifiable reliance.
Damages here would be out of pocket expenses, so that’s pretty good (but not the law office the  promised, that would be expectation damages).

d) K implied in Law (Unjust Enrichment):  pp. 11-13.
	1) benefit conferred to 
	2) appreciation/acknowledgment of benefit
	3) s acceptance/retention of benefit.
Although all three of these elements are met, must still meet the purpose of the doctrine:
	1) Enriched:  yes
	2) Unjust:  ??

e) K implied in Fact:  p. 13.
Results from incomplete bargaining.  Going to run into same problem of separating things done b/c of P and b/c of love.

III.	INTERPRETATION/BATTLE OF FORMS QUESTION (w/ PER, SF, Damages)

Problem:  Ricker’s Fine Foods

1)  What does Ricker want:  Ricker wants to keep the K alive but she wants to get out of the indemnification clause.

2)  Is this K w/in the UCC:  see p. 37.
The Test:  Must look to “real purpose” of the agreement, based on the intent of the parties, to decide whether w/in Art. 2.  If the real purpose is to sell goods, then w/in.  See Leibel, p. 37.
	a) Yes, b/c food is goods(§2-105).
	b) No, supplying service is general point of K.
Here, the UCC is better for Ricker, but it will be tough to est. that its UCC.  If this is case (what we want is the worse of the two arguments) make both arguments throughout.

3)  Where’s the K:
a) oral conversation?	yes, b/c there was O, A.
				no, b/c no enough details, the critical one missing being the Q.  No 					meeting of minds yet.
b) battle of the forms: pp. 20-24.
	1) Ricker’s Form:  its either an O, a written confirmation (of the oral K), A, or counter-O.
		a) A:  if conversation was to vague to be K, it could be O, thus making the this 			form an A (flushing out all the details).
		b) O:  If the oral conversation was just preliminary negotiations, this form could 			be O.
		c) Written Conf:  If the oral conversation was a K, this could be written conf.
		d) Counter-O:  If conversation was O and this form has different terms, it could be 			a counter-O.
	2) s Form:
		a) if Art. 2:  A, b/c it has different forms.  If so, need to go through the 				§2-207 analysis:  B/c we are trying to get rid of the s different terms, it is to our 			advantage to try and show that the parties are not merchants (§1-204).
			1) assent?  Yes.
			2) If merchants, add’l terms in, unless:
				a) O expressly limits A to its terms:  No
				b) new terms materially alter the O:  ???  Probably not:  would need 				to show some business practice establishing that parties in this 					business are usually responsible for own liability or something.
				c) notification of objection:  No.
		b) if common law:  Counter-O, (last shot rule) b/c the form had different terms 			(mirror image rule).  This document then becomes the controlling document.  			Since Ricker didn’t do anything w/ the document, but did show up to perform, she 			A’d, by conduct.

3) Breach:  pp. 45-48.
We can attempt to get Ricker out of the K if the  breached the K (by failing to clean the hotel so Ricker could set up) prior to Ricker’s breach.

4) Damages:  pp. 49-54.
To get damages w/ any value (beyond just the cost of the cake) the bride will probably attempt to establish emotional damage.  Punitive only if the bride can establish a tort (perhaps negligence in assembling the tables).

5) Parol Evidence Rule:  pp. 33-36
We want to try and get the oral promise in b/c:
	a) if under UCC, may help show a material alteration.
	b) if common law, can change stage at which K was formed (????)
Can also try to get in PER under a fraud/misrepresentation theory.

Statute of Frauds:  pp. 25-31.
Only in the SF if this is a sale of goods (§2-201).  If so, deal w/ §2-201(2) (for merchants).  SF satisfied.

IV.	FORMATION AND BREACH (w/ Agency, Damages and PER)

Problem:  Maria and Northeastern News

1)  What does Maria want:  Maria wants money damages.  So, we must establish that there was a K and that NN breached it.

2)  Is this K w/in the UCC:  see p. 37.
The Test:  Must look to “real purpose” of the agreement, based on the intent of the parties, to decide whether w/in Art. 2.  If the real purpose is to sell goods, then w/in.  See Leibel, p. 37.
No.

3)  Promise(s) and O/A:  
P:  Here it was the P not to publish and this is the P that Maria is seeking to enforce.  Note that there may times when there are a few P’s.  You need to pick the one which your client seeks to enforce.  Secondly, sometimes a P can be construed as a Condition (and vice versa).  Also, up front, its important to focus on breach.  We want to pick a P that has been breached (as is clearly the case here).  
Here, we wanted it to be a P, b/c we want to show a breach to get damages whereas a breach of condition would just end the K.  (See pp. 45-47 for P v. condition, esp. Jones Assoc.)
O:  Maria’s O to tell her story.
A:  Cindi’s agreement to write story.

4)  Consideration:

a) Bargain Theory:  pp. 1-11.
	1) did party whom we are trying to seek enforcement against benefit (or vice versa).
	2) was the P of that party given to receive the benefit (or vice versa).
	3) in this context, it was important to separate out the things done for love and the things 	done as a result of the P.
Here, the benefit to Cindi is pretty clear.  Less clear is what Maria benefited to get the P.  If its safety of future victims, that a little too amorphous (and doesn’t really have a $ value); if its her anonymity, that’s no good b/c she already had it.  The best is to go w/ the legal right to her anonymity, (i.e., Hamer v Sidway (p. 8)).

b) Reliance §90:  pp. 14-19.
	1) P (not to publish, yes)
	2) act/forbearance (yes)
	3) by P’ee (yes)
	4) foreseeability (yes)
	5) injustice (???)
Problems:  1) Must be able to show that the P caused to Maria’s actions (the P was the cause).  2)  Did Maria really believe that  would keep her name anonymous, i.e. was there justifiable reliance.  
Damages here would be out of pocket expenses.

c) Moral Consideration:  pp. 13-14.
Two possible rules: 
Mills Rule (Rst 82): 
	1) originally binding K
	2) made inoperative by positive law,
	3) new P to pay is enforceable, even w/o new C.
Facts here did not fit this scenario, as will be the case in most scenarios.  Unfortunately, this is the majority approach.
Webb Rule (Rst 86):  
	1) P made in recognition of past benefit is binding to the extent necessary to avoid 	injustice, but
	2) P not binding if gift or to the extent its value is disproportionate to the benefit.
The P’or must have received a material benefit.  No problem to argue that $ is such a benefit.
Problems:  1) “to the extent necessary to avoid injustice.”  This is up to complete discretion of court.  So, here, w/ lesbian partners, it could be tough.  2) P not binding if gift.  Same problem as w/ bargain, must prove that the benefit given was b/c of the P, not b/c of love.  3)  And, if can establish all this, what’s it all worth anyhow.  The only really cognizable P was that to pay back for money spent when the  had a broken ankle.  This wouldn’t provide too much.
Good Part:  §86 presumes a P, thus the burden is on the  to establish that she did not make the P.

We did not discuss the following w/ regard to this test.  If you do, spend very little time unless C is the entire Q (which is no likely):

d) K implied in Law (Unjust Enrichment):  pp. 11-13.
	1) benefit conferred to 
	2) appreciation/acknowledgment of benefit
	3) s acceptance/retention of benefit.
Although all three of these elements are met, must still meet the purpose of the doctrine:
	1) Enriched:  yes
	2) Unjust:  ??

e) K implied in Fact:  p. 13.
Results from incomplete bargaining.  Going to run into same problem of separating things done b/c of P and b/c of love.

5)  Agency:  pp. 10-11.
If we try to show that Maria acted based on the reporters statements, we must also establish that the reporter had the apparent authority to make the statements he did.  
Actual Authority:  Apparently not, b/c the editor went behind the reporter’s back and printed the name.
Apparent authority (test):  A person of ordinary intelligence, diligence, prudence and discretion would have right to believe that the agent possessed the authority he purported to exercise.  (Universal Computer Systems)
If yes to either actual or apparent, then agency exists b/w NN and Maria, and Maria’s P’s are binding on NN.

6)  That form Maria signed (what is it?):
This form states that no compensation or inducements were given to Maria in order that she tell her story.  This could ruin our case, b/c it would help destroy any finding of C.  Best to look to the purpose of such a form.. It exists to protect the paper against defamation suits, not to kill C.  Make that argument.  It is still problematic though.

7)  Parol Evidence Rule:  pp. 33-36.
Can do up front or last.  Probably easiest to do last.  Remember that evidence that goes to establishment of fraud, duress, undue influence, misrepresentation, etc., is allowed in, regardless of PER.
	1) evidence is oral (yes)
	2) prior to actions (yes)
	3) contradicts the writing (yes)
So how do we get out of the PER?  We must argue that the writing is not an integration, total or partial (b/c neither would allow contradictory evidence).  The form here only relates to one of the parties (NN) (like a promissory note), they are the only parties w/ any responsibilities under the writing.  Note:  Here, we do not want to argue collateral agreement, b/c that only gets us to partial integration, which, as I said, is no good here.

8)  Damages:  pp. 49-54.
The problem in this case is to separate out the damages Maria suffered as a result of the rape and the damages suffered as a result of the breach.  This is tough, especially considering most the damage is psychological.  
Note:  Maria is going to therapy and trying to get better, so there is not mitigation problem.
Punitive??:  If we can tie in a tort (intentional infliction of emotional distress) we can try and punitive damages as well.

9)  Defenses:  starting p. 39.
We don't really want to discuss defenses b/c were trying to enforce it, not get out of it, regardless of whether there was unconscionability, etc.  If the opposing party has a strong defense to the K, mention it.