1L Exam Prep and Motivation Thread Forum

[kcg171]

Torts question --

P was driving down the road but discovered it blocked by a fallen tree. She pulled into D's driveway to turn around. At precisely this time, D was backing out of her driveway in her Hummer, without looking in her mirrors and at a relatively high speed for driving backwards. Upon puling into the driveway P saw this and sought to reverse but could not do so in time. D crashed into the front of P's car, causing herself no damage, but P suffered material property damage and personal injury. P sues D for negligence. What is the key dispositive issue and how would you resolve it?

Thanks in advance.

In addition to what other posters have said, D might have had reason to know that people avoiding the tree would end up in her driveway, leading to a duty of reasonable care to trespassers.

only duty to trespassers is to not be wilful or wanton - could make the argument that it would be wilful and wanton infliction of harm if you knew about the tree but that's a stretch. I think a lot of it has to do with the cost/benefit of checking your mirrors when you're backing up, so even though you don't owe a duty to trespassers, you're still the least cost avoider.

Some jurisdictions say that if a trespasser is discovered or anticipated, the landowner owes a duty of reasonable care. This is from known dangers on property, so I'm not sure if it would be applicable in this case.

[goosey]

Torts question --

P was driving down the road but discovered it blocked by a fallen tree. She pulled into D's driveway to turn around. At precisely this time, D was backing out of her driveway in her Hummer, without looking in her mirrors and at a relatively high speed for driving backwards. Upon puling into the driveway P saw this and sought to reverse but could not do so in time. D crashed into the front of P's car, causing herself no damage, but P suffered material property damage and personal injury. P sues D for negligence. What is the key dispositive issue and how would you resolve it?

Thanks in advance.

In addition to what other posters have said, D might have had reason to know that people avoiding the tree would end up in her driveway, leading to a duty of reasonable care to trespassers.

only duty to trespassers is to not be wilful or wanton - could make the argument that it would be wilful and wanton infliction of harm if you knew about the tree but that's a stretch. I think a lot of it has to do with the cost/benefit of checking your mirrors when you're backing up, so even though you don't owe a duty to trespassers, you're still the least cost avoider.

Some jurisdictions say that if a trespasser is discovered or anticipated, the landowner owes a duty of reasonable care. This is from known dangers on property, so I'm not sure if it would be applicable in this case.

some jdx also abolished any lines between trespassers/invitees/etc and just impose a general duty of reasonable care

[grrrstick]

Thanks everyone. That was more thorough than I expected! Now if I can just figure out how to answer nuisance hypos I will be solid for the exam.

[beach_terror]

Civ Pro tomorrow, I'm not really nervous (about as I would be the night prior to a big game) but more excited. My outlines are in order, my attack outlines are on point, and I feel like I've anticipated pretty much every type of question she's likely to ask.

Gotta slay this, then crim and torts, then its back to slaying women for awhile

[Omerta]

I haven't been able to figure this out for the life of me. Incoming 2-207 question...

So A and B are merchants contracting for a sale of goods over $500. A and B orally agree to K with duties x, y, z. A sends B a memo accurately memorializing the terms. B sends A memo within 10 days that has terms x, y, but not z. Does that count as an objection?

If a suit comes up later, parol evidence would bar the evidence of the oral agreement right? So does 2-207 apply here? If A wanted to enforce the K, then A would have to use B's memo because that's the one B signed. Would B's memo be treated as a modification?

[rejectmaster]

Civ Pro tomorrow, I'm not really nervous (about as I would be the night prior to a big game) but more excited. My outlines are in order, my attack outlines are on point, and I feel like I've anticipated pretty much every type of question she's likely to ask.

Gotta slay this, then crim and torts, then its back to slaying women for awhile

good luck man

i have civ pro on tuesday and torts on thursday and then i'm done.

i wish i had criminal law in the 2nd half.. that shit is so much simpler than civ pro and torts

[beach_terror]

good luck man

i have civ pro on tuesday and torts on thursday and then i'm done.

i wish i had criminal law in the 2nd half.. that shit is so much simpler than civ pro and torts

Thanks! You actually think crim is simpler than Civ Pro? I think Civ Pro is pretty much the most straightforward subject I have between the 3, followed by torts.

[ogurty]

I haven't been able to figure this out for the life of me. Incoming 2-207 question...

So A and B are merchants contracting for a sale of goods over $500. A and B orally agree to K with duties x, y, z. A sends B a memo accurately memorializing the terms. B sends A memo within 10 days that has terms x, y, but not z. Does that count as an objection?

If a suit comes up later, parol evidence would bar the evidence of the oral agreement right? So does 2-207 apply here? If A wanted to enforce the K, then A would have to use B's memo because that's the one B signed. Would B's memo be treated as a modification?

I'll take a stab..

I don't think the oral agreement would be barred as evidence; I think it's the defining terms of the contract. Parol evidence doesn't even come into play ever unless the parties intended a complete, fully integrated writing. I don't think any of your facts implicate that; it's called a memo, seeming to suggest that the real K occurred in the words.

Statute of frauds may be a harder hill to climb, though; neither party signed the other's memo, and the merchant timely objected, so I think the whole K is gone due to statute of frauds.

I'm assuming you meant they orally agreed to K whose duties include x, y, z; if you meant they orally agreed to make a K in the future with duties x, y, z, that is more like non-binding agreement to agree.

[Charles Barkley]

Ready to be raped by K's in the morning!

[jawsthegreat]

I haven't been able to figure this out for the life of me. Incoming 2-207 question...

So A and B are merchants contracting for a sale of goods over $500. A and B orally agree to K with duties x, y, z. A sends B a memo accurately memorializing the terms. B sends A memo within 10 days that has terms x, y, but not z. Does that count as an objection?

If a suit comes up later, parol evidence would bar the evidence of the oral agreement right? So does 2-207 apply here? If A wanted to enforce the K, then A would have to use B's memo because that's the one B signed. Would B's memo be treated as a modification?

I'll take a stab..

I don't think the oral agreement would be barred as evidence; I think it's the defining terms of the contract. Parol evidence doesn't even come into play ever unless the parties intended a complete, fully integrated writing. I don't think any of your facts implicate that; it's called a memo, seeming to suggest that the real K occurred in the words.

Statute of frauds may be a harder hill to climb, though; neither party signed the other's memo, and the merchant timely objected, so I think the whole K is gone due to statute of frauds.

I'm assuming you meant they orally agreed to K whose duties include x, y, z; if you meant they orally agreed to make a K in the future with duties x, y, z, that is more like non-binding agreement to agree.

WTF is this analysis DO NOT LISTEN TO IT!

SOF: if they are merchants the SOF is satisfied if they don't object w/in ten days, which it doesn't appear they have done, they have reason to know of it's contents, which it would appear that both parties would in both cases, and if it is written, which it obviously is.

PER: The PER it something is intended to be a final integration of the writing (complete), then you can't use prior evidence of anything to supplement, that is the contract. However, if it wasn't meant to be completely integrated then u can use prior evidence of dealing, performance, and trade usage to supplement, never contradicting the express terms of the K.

2-207: a written agreement received in reasonable time that is not expressly made conditional of assent to the additional terms counts as an acceptance. Between merchants these terms will become part of the contract unless they materially alter them or they are objected to. Since they completely leave out the Z duty it appears as if they would likely be considered materially altering, and the knockout rule would knock the entire agreement over Z out of the K. The outcome is that X and Y would be part of the contract and the Z agreement would not, replaced by any UCC filler terms that would be relevant.

Pretty sure this right, feel free to correct me if I'm wrong.

[Omerta]

I'll take a stab..

I don't think the oral agreement would be barred as evidence; I think it's the defining terms of the contract. Parol evidence doesn't even come into play ever unless the parties intended a complete, fully integrated writing. I don't think any of your facts implicate that; it's called a memo, seeming to suggest that the real K occurred in the words.

Statute of frauds may be a harder hill to climb, though; neither party signed the other's memo, and the merchant timely objected, so I think the whole K is gone due to statute of frauds.

I'm assuming you meant they orally agreed to K whose duties include x, y, z; if you meant they orally agreed to make a K in the future with duties x, y, z, that is more like non-binding agreement to agree.

Sorry bro, I don't know what the right answer is but I know that none of what you said is right.

SOF: if they are merchants the SOF is satisfied if they don't object w/in ten days, which it doesn't appear they have done, they have reason to know of it's contents, which it would appear that both parties would in both cases, and if it is written, which it obviously is.

PER: The PER it something is intended to be a final integration of the writing (complete), then you can't use prior evidence of anything to supplement, that is the contract. However, if it wasn't meant to be completely integrated then u can use prior evidence of dealing, performance, and trade usage to supplement, never contradicting the express terms of the K.

2-207: a written agreement received in reasonable time that is not expressly made conditional of assent to the additional terms counts as an acceptance. Between merchants these terms will become part of the contract unless they materially alter them or they are objected to. Since they completely leave out the Z duty it appears as if they would likely be considered materially altering, and the knockout rule would knock the entire agreement over Z out of the K. The outcome is that X and Y would be part of the contract and the Z agreement would not, replaced by any UCC filler terms that would be relevant.

Pretty sure this right, feel free to correct me if I'm wrong.

I'm sure you're right about the SoF. The issue that I was confused about is how A can show that term z was in the oral agreement without running into parol evidence. B originally orally agreed to term z but omitted it from B's written copy to A. Maybe argue reformation exception to Parol evidence? Would A have needed to object within 10 days to the alternation? I agree with you regarding the result from 2-207; I just didn't know how A would produce evidence showing that A and B's oral agreement included term z without running into parol evidence issues.

[kalvano]

I think my brain has died. I simply don't give a fuck about contracts.

[09042014]

Doesn't SoF have to be a signed writing?

Also doesn't 2-207 only cover acceptances with additional terms? They already contracted orally and are just sending memorializations. There are rules about that buy it isn't UCC 2-207.

[Omerta]

I think my brain has died. I simply don't give a fuck about contracts.

I can actually type this sentence pretty much from memory because it completely destroyed any motivation I had for learning contracts. I think it was from Chirelston or however it's spelled. "the whole doctrinal panoply of offer, acceptance, consideration, and assent really has no practical relevance to modern commercial transactions."

Doesn't SoF have to be a signed writing?

Also doesn't 2-207 only cover acceptances with additional terms? They already contracted orally and are just sending memorializations. There are rules about that buy it isn't UCC 2-207.

So what happens then? 2-207 covers situations with additional terms, differing terms, or a hodgepodge of terms with no definite contract formed. The oral K can't be used; so what do you do with conflicting memos? Parol evidence exception because the extrinsic information goes to the finality of the K? Since the document is supposed to be wholly integrated but something got messed up in the transcription/reformation?
I'm glad I'm spending so much time thinking about this since it surely won't be on my exam.

[kalvano]

§ 2-207. Terms of Contract; Effect of Confirmation.

Subject to Section 2-202, if (i) conduct by both parties recognizes the existence of a contract although their records do not otherwise establish a contract, (ii) a contract is formed by an offer and acceptance, or (iii) a contract formed in any manner is confirmed by a record that contains terms additional to or different from those in the contract being confirmed, the terms of the contract are:

(a) terms that appear in the records of both parties;

(b) terms, whether in a record or not, to which both parties agree; and

(c) terms supplied or incorporated under any provision of this Act.



§ 2-202. Final Expression in a Record: Parol or Extrinsic Evidence.

(1) Terms with respect to which the confirmatory records of the parties agree or which are otherwise set forth in a record intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be supplemented by evidence of:

(a) course of performance, course of dealing, or usage of trade (Section 1-303); and

(b) consistent additional terms unless the court finds the record to have been intended also as a complete and exclusive statement of the terms of the agreement .

(2) Terms in a record may be explained by evidence of course of performance, course of dealing, or usage of trade without a preliminary determination by the court that the language used is ambiguous.

[09042014]

Yea I'm definitely wrong. 2-207 does cover confirmations which apparently is memorializations of oral agreements after the fact.

So 2-207 does apply. My class never covered confirmations.

[GeePee]

I think my brain has died. I simply don't give a fuck about contracts.

I can actually type this sentence pretty much from memory because it completely destroyed any motivation I had for learning contracts. I think it was from Chirelston or however it's spelled. "the whole doctrinal panoply of offer, acceptance, consideration, and assent really has no practical relevance to modern commercial transactions."

Doesn't SoF have to be a signed writing?

Also doesn't 2-207 only cover acceptances with additional terms? They already contracted orally and are just sending memorializations. There are rules about that buy it isn't UCC 2-207.

So what happens then? 2-207 covers situations with additional terms, differing terms, or a hodgepodge of terms with no definite contract formed. The oral K can't be used; so what do you do with conflicting memos? Parol evidence exception because the extrinsic information goes to the finality of the K? Since the document is supposed to be wholly integrated but something got messed up in the transcription/reformation?
I'm glad I'm spending so much time thinking about this since it surely won't be on my exam.

Under 2-202, parol evidence may add consistent, additional terms so long as the parties did not intend their writings to be a complete and exclusive agreement.

So, any analysis of whether parol evidence could introduce the term is done within this scope:
1) Is the term consistent with the existing terms of the contract, or does it contradict?
2) Did B intend a complete written agreement by its confirmation writing?

If yes to (1) and no to (2), then you may at least introduce the oral, parol evidence to clarify this agreement and purport to add this term. It's not guaranteed whether the judge or jury will decide to honor it, though.

[savagecheater]

I haven't been able to figure this out for the life of me. Incoming 2-207 question...

So A and B are merchants contracting for a sale of goods over $500. A and B orally agree to K with duties x, y, z. A sends B a memo accurately memorializing the terms. B sends A memo within 10 days that has terms x, y, but not z. Does that count as an objection?

If a suit comes up later, parol evidence would bar the evidence of the oral agreement right? So does 2-207 apply here? If A wanted to enforce the K, then A would have to use B's memo because that's the one B signed. Would B's memo be treated as a modification?

I'll take a stab..

I don't think the oral agreement would be barred as evidence; I think it's the defining terms of the contract. Parol evidence doesn't even come into play ever unless the parties intended a complete, fully integrated writing. I don't think any of your facts implicate that; it's called a memo, seeming to suggest that the real K occurred in the words.

Statute of frauds may be a harder hill to climb, though; neither party signed the other's memo, and the merchant timely objected, so I think the whole K is gone due to statute of frauds.

I'm assuming you meant they orally agreed to K whose duties include x, y, z; if you meant they orally agreed to make a K in the future with duties x, y, z, that is more like non-binding agreement to agree.

what?

B would almost certainly raise the SoF but merchant-10 day rule so no dice. A might try to introduce evidence of the oral, parole term, but PE rule would be raised against it.

You don't specify if they signed; a court may or may not see it as totally integrated, and from the pretty bare info a court might be compelled to see it as a partial integration. This is a UCC case though so a court will be pretty liberal in its admission of PE; trade usage/dealing/p.perf.

Remember, a lot of it comes down to whether the extrinsic stuff contradicts or supps/clarifies - it's pretty context sensitive in that regard.

edit: jaws is pretty on spot.

[ogurty]

I haven't been able to figure this out for the life of me. Incoming 2-207 question...

So A and B are merchants contracting for a sale of goods over $500. A and B orally agree to K with duties x, y, z. A sends B a memo accurately memorializing the terms. B sends A memo within 10 days that has terms x, y, but not z. Does that count as an objection?

If a suit comes up later, parol evidence would bar the evidence of the oral agreement right? So does 2-207 apply here? If A wanted to enforce the K, then A would have to use B's memo because that's the one B signed. Would B's memo be treated as a modification?

I'll take a stab..

I don't think the oral agreement would be barred as evidence; I think it's the defining terms of the contract. Parol evidence doesn't even come into play ever unless the parties intended a complete, fully integrated writing. I don't think any of your facts implicate that; it's called a memo, seeming to suggest that the real K occurred in the words.

Statute of frauds may be a harder hill to climb, though; neither party signed the other's memo, and the merchant timely objected, so I think the whole K is gone due to statute of frauds.

I'm assuming you meant they orally agreed to K whose duties include x, y, z; if you meant they orally agreed to make a K in the future with duties x, y, z, that is more like non-binding agreement to agree.

WTF is this analysis DO NOT LISTEN TO IT!

SOF: if they are merchants the SOF is satisfied if they don't object w/in ten days, which it doesn't appear they have done, they have reason to know of it's contents, which it would appear that both parties would in both cases, and if it is written, which it obviously is.

PER: The PER it something is intended to be a final integration of the writing (complete), then you can't use prior evidence of anything to supplement, that is the contract. However, if it wasn't meant to be completely integrated then u can use prior evidence of dealing, performance, and trade usage to supplement, never contradicting the express terms of the K.

2-207: a written agreement received in reasonable time that is not expressly made conditional of assent to the additional terms counts as an acceptance. Between merchants these terms will become part of the contract unless they materially alter them or they are objected to. Since they completely leave out the Z duty it appears as if they would likely be considered materially altering, and the knockout rule would knock the entire agreement over Z out of the K. The outcome is that X and Y would be part of the contract and the Z agreement would not, replaced by any UCC filler terms that would be relevant.

Pretty sure this right, feel free to correct me if I'm wrong.

I'm getting the feeling that I was taught parol evidence different from everyone else, because my professor hates it, and I don't mean to turn this thread into everyone teach me parol evidence, but...

under 2-202, parol evidence is excluded only if the writings are intended as a final expression of the parties' agreement, or if the confirmatory memoranda of the parties agree, right? So the confirmatory memoranda don't agree, and given the disagreement I'd hazard a guess that neither party agreed that either writing would be a final expression of the parties' agreement. So all of the parol should be admissible. Right?

Second, why is everyone assuming that the confirmation sent by B does not constitute an objection? It expressly disagrees with A's confirmation; doesn't that count as objecting? Making the Statute of Frauds not satisfied?

Again, maybe I'm way off, because I'm really getting the feeling that I was taught contracts different from everyone else.

[lawchampion]

I have Civ pro in about a week. I have made quite few canned answers, but not quite sure if that's what i need for the test. Anyone is willing to take a look, or even exchange some?

[skoobily doobily]

There's a special pit in hell, where the fire burns a little hotter, for the writers of the UCC.

[mths]

There's a special pit in hell, where the fire burns a little hotter, for the writers of the UCC.

No, that's reserved for the writers of the 28 USC

[los blancos]

There's a special pit in hell, where the fire burns a little hotter, for the writers of the UCC.

No, that's reserved for the writers of the 28 USC

Ah c'mon, Title 28 isn't THAT bad.

[goosey]

I get so unhealthily happy when I finish another exam study aid---I just finished making a table of usc sections for civ pro...and proceeded to stare at it for 5 minutes. and I *know* I am not the only one that does that.

If I dont get an A in civ pro, im going to slap somebody

[PirateCap'n]

There's a special pit in hell, where the fire burns a little hotter, for the writers of the UCC.

No, that's reserved for the writers of the 28 USC

I'm pretty sure they all just share like one big happy family.