K's hypo

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johansantana21
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Re: K's hypo

Postby johansantana21 » Thu Nov 17, 2011 1:55 am

Doesn't land deals always require writing?

StyrofoamWar
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Re: K's hypo

Postby StyrofoamWar » Thu Nov 17, 2011 3:12 am

buckilaw wrote:
Oglethorpe wrote:O is an old lady who makes an offer to D, her daughter in law. The offer: "I am an old annoying woman and I need someone to take care of me. If you come live with me and take care of me, I will leave you my house when I die." D accepts the offer by moving and beginning care taking responsibilities. Soon after, D can't take O's lip and begins to slap her around. O then kicks D out of the house and makes arrangements to leave her house to another family member. What are the rights of the parties? Specifically, can O recover damages for the costs of obtaining a new care taker based on a promissory estoppel claim?


The SOF doesn't apply in this case because the K was for care of the old woman for the remainder of her life and she could have died in under a year.

The offer from the old woman is for a service so the common law applies. Under common law the offeror is the master of her offer and can specify an exlusive means of acceptance. Here the woman would likely say that she specified that acceptance of the offer would commence when the daughter in law began living with and caring for the old woman and that when this event occured a bilateral contract was created. The offeree might try to construe the contract as one that is unilateral becuase she recived an offer and began performance. In such a situation the old woman would not normally be able to revoke the offer duringf the course of the daughter in law's performance; if this is the case then the old woman couldn't breach the implied option right and the offeree will be entitled to recovery in quantum meruit for the fair market value of the services that she has given the old woman; possibly even reliance damages to account for moving down to live with the old woman, but reliance damages are unlikley given that the daughter's in law traveling expenses may have been mere preperation for perfomance (Curtiss). It is incredibly unlikley that the daughter in law could recieve expectancy damages becuase she didn't fulfill her side of the bargain, expectancy has not historically been allowed in these circumstances, and the daughter in law has arguably breached the implied norm of good faith and fair dealing when she struck the woman (in any event this might be a breach of the express term to care for the woman). It is highly unlikley that the daughter in law could get a warrant for specific performance given the apparant animosity between the parties. It is also very unlikley that she could sue for an injunction becuase an injunction is an equitable remedy and the daughter in law is not coming to the court with "clean hands", there is also the consideration of the old woman's health in an equity situation that seems to outright preclude the grant of an injunction prohibiting her from having a caretaker.

The old woman could likely defeat any argument that her offer could be construed as creating an option on the offeree by refering to section 62 of the 2nd restatement which states:

· Where offer invites offeree to choose b/t acceptance by promise and performance, the tender or beginning of invited performance or a tender of beginning of it is accepted by performance.
· Such acceptance operates as promise to render complete performance.

this makes good sense because in situations like this were an option might exist we don't want the offeror to suffer through a poor performance, or worse in this case actual battery (she likely has a good case for battery, possibly assault, IIED is fucking dumb).

It is unclear whether the old woman can sue the daughter in law under PE as stated in the hypo, but she doesn't really need to. Since section 62 of the restatement is on point and the daughter in law's tender of performance is given the legal effect of an acceptance a bilateral K has been formed so the old woman could sue under K law and could very likely acquire expectancy damages for the cost of a new care taker. However, the daughter in law might be able to defeat expectancy damages by making an argument about certainty because the daughter in law was to be compensated by the house which has a value of X (that actually varies given the condition of the real estate market though a reasonable range could be set) and we don't know when the old woman would die. Therefore the actual compensation per day that the daughter in law received in reference to the consideration offered (the house) is not possible to determine until the old woman actually dies. The court might find a different way of calculating expectancy perhaps using the market price of a care giver for x years while mitigating the fair market value of the servies daughter in law rendered; but this too is problematic since we don't know the length of time to use to calculate damages. (This seems reminscent of the certainty problems in Dempsey v. CCC). However, it is fairly clear that the old woman would be able to recover reasonable reliance damages in going through the transaction costs of finding another caretaker (something like an application fee to an agenecy or money for an add in a paper or something) it is unlikley that the relaince recvoery would allow the woman to say pay attorney's fees to draft a new will where the attorney recieves around 1k an hour.

Back to a potential PE claim, it's unclear that the woman justifiably relied to her detriment on a promise made by the daughter in law. Working with section 62 we can imply a promise from the performance, even absent 62 we can infer a subsidiary promise like in sub v gen contractor cases (Drenan), but I don't see how the ocurt could arrive at any reasonable rational amount of damages.

But, there is a question about the interest in land but that might be able to be worked around by acquiring a promise to devise the property - which might be different than a conveyance in an interest in land - but this argument is kind of shaky, I even think there is a statue of wills. So absent a writing the contract might be unenforcable. If that's the case the daughter in law could still recover in quantum meruit. The woman would likely not be able to sue for expectancy damages since there is no K, but this makes no difference becuase we couldn't value expectancy damages anyway. Old woman can't "rely" on section 62 to get reliance damages but she could likely refer to the Drennan decison to infer a promise in the tender of the daughter in law's performance. So the remedies would be no different.


Is this how you would attempt to respond to this issue on an exam? . Don't know if u are 1,2,3L, but this answer was incredibly difficult to follow in parts. If Ur a 1L, you might want to work on structuring your answers.

I still think there is a lot of mistaken treatment of the law in this, for whatever it's worth. To each their own.

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Oglethorpe
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Re: K's hypo

Postby Oglethorpe » Thu Nov 17, 2011 10:36 am

buckilaw wrote:
Oglethorpe wrote:O is an old lady who makes an offer to D, her daughter in law. The offer: "I am an old annoying woman and I need someone to take care of me. If you come live with me and take care of me, I will leave you my house when I die." D accepts the offer by moving and beginning care taking responsibilities. Soon after, D can't take O's lip and begins to slap her around. O then kicks D out of the house and makes arrangements to leave her house to another family member. What are the rights of the parties? Specifically, can O recover damages for the costs of obtaining a new care taker based on a promissory estoppel claim?


The SOF doesn't apply in this case because the K was for care of the old woman for the remainder of her life and she could have died in under a year.

The offer from the old woman is for a service so the common law applies. Under common law the offeror is the master of her offer and can specify an exlusive means of acceptance. Here the woman would likely say that she specified that acceptance of the offer would commence when the daughter in law began living with and caring for the old woman and that when this event occured a bilateral contract was created. The offeree might try to construe the contract as one that is unilateral becuase she recived an offer and began performance. In such a situation the old woman would not normally be able to revoke the offer duringf the course of the daughter in law's performance; if this is the case then the old woman couldn't breach the implied option right and the offeree will be entitled to recovery in quantum meruit for the fair market value of the services that she has given the old woman; possibly even reliance damages to account for moving down to live with the old woman, but reliance damages are unlikley given that the daughter's in law traveling expenses may have been mere preperation for perfomance (Curtiss). It is incredibly unlikley that the daughter in law could recieve expectancy damages becuase she didn't fulfill her side of the bargain, expectancy has not historically been allowed in these circumstances, and the daughter in law has arguably breached the implied norm of good faith and fair dealing when she struck the woman (in any event this might be a breach of the express term to care for the woman). It is highly unlikley that the daughter in law could get a warrant for specific performance given the apparant animosity between the parties. It is also very unlikley that she could sue for an injunction becuase an injunction is an equitable remedy and the daughter in law is not coming to the court with "clean hands", there is also the consideration of the old woman's health in an equity situation that seems to outright preclude the grant of an injunction prohibiting her from having a caretaker.

The old woman could likely defeat any argument that her offer could be construed as creating an option on the offeree by refering to section 62 of the 2nd restatement which states:

· Where offer invites offeree to choose b/t acceptance by promise and performance, the tender or beginning of invited performance or a tender of beginning of it is accepted by performance.
· Such acceptance operates as promise to render complete performance.

this makes good sense because in situations like this were an option might exist we don't want the offeror to suffer through a poor performance, or worse in this case actual battery (she likely has a good case for battery, possibly assault, IIED is fucking dumb).

It is unclear whether the old woman can sue the daughter in law under PE as stated in the hypo, but she doesn't really need to. Since section 62 of the restatement is on point and the daughter in law's tender of performance is given the legal effect of an acceptance a bilateral K has been formed so the old woman could sue under K law and could very likely acquire expectancy damages for the cost of a new care taker. However, the daughter in law might be able to defeat expectancy damages by making an argument about certainty because the daughter in law was to be compensated by the house which has a value of X (that actually varies given the condition of the real estate market though a reasonable range could be set) and we don't know when the old woman would die. Therefore the actual compensation per day that the daughter in law received in reference to the consideration offered (the house) is not possible to determine until the old woman actually dies. The court might find a different way of calculating expectancy perhaps using the market price of a care giver for x years while mitigating the fair market value of the servies daughter in law rendered; but this too is problematic since we don't know the length of time to use to calculate damages. (This seems reminscent of the certainty problems in Dempsey v. CCC). However, it is fairly clear that the old woman would be able to recover reasonable reliance damages in going through the transaction costs of finding another caretaker (something like an application fee to an agenecy or money for an add in a paper or something) it is unlikley that the relaince recvoery would allow the woman to say pay attorney's fees to draft a new will where the attorney recieves around 1k an hour.

Back to a potential PE claim, it's unclear that the woman justifiably relied to her detriment on a promise made by the daughter in law. Working with section 62 we can imply a promise from the performance, even absent 62 we can infer a subsidiary promise like in sub v gen contractor cases (Drenan), but I don't see how the ocurt could arrive at any reasonable rational amount of damages.

But, there is a question about the interest in land but that might be able to be worked around by acquiring a promise to devise the property - which might be different than a conveyance in an interest in land - but this argument is kind of shaky, I even think there is a statue of wills. So absent a writing the contract might be unenforcable. If that's the case the daughter in law could still recover in quantum meruit. The woman would likely not be able to sue for expectancy damages since there is no K, but this makes no difference becuase we couldn't value expectancy damages anyway. Old woman can't "rely" on section 62 to get reliance damages but she could likely refer to the Drennan decison to infer a promise in the tender of the daughter in law's performance. So the remedies would be no different.


Exam skills...very nice! Thanks.

This actually sounds closer to what my professor teaches. Amazing how different areas are emphasized from professor to professor.

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Oglethorpe
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Re: K's hypo

Postby Oglethorpe » Tue Nov 22, 2011 3:49 pm

FYI: in case anyone is interested, I came across this while outlining. This is the part I was confused about.

XV. ACEPTANCE BY A PERFORMANCE THAT CANNOT BE ACCOMPLISHED INSTANTLY
a. Restatement 2nd: 2 applicable sections

i. (1) § 62: where the offer does not mandate acceptance by performance, so that it can be accepted either by performance or promise to complete the performance within the time called for.
1. Commencement or tender of performance constitutes an implied promise to complete the performance within the time called for by the offer.
a. Beginning performance is, in effect, an acceptance by promise creating a bilateral K.
i. Therefore, offeree is committed to complete the performance within the time period specified.

ii. (2) § 45: where the offer calls for performance as the exclusive mode of acceptance. (clearly unilateral: cannot accept by promise)
1. beginning or tender of performance as creating an option in favor of the offeree.
a. Offeror loses the right to revoke once performance tendered or begun.
i. To exercise the option offeree must complete performance within the required time or the offer lapses.
1. If not than no contractual payment, but maybe unjust enrichment.

iii. MERE PREPERATION: actual performance must be begun or tendered.
1. Buying necessary tools for performance may suffice

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buckilaw
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Re: K's hypo

Postby buckilaw » Wed Nov 23, 2011 1:27 am

Section 62 applies when the offeree can accept through promise or performance. Section 45 applies when the only method of acceptance is performance

RelativeEase
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Re: K's hypo

Postby RelativeEase » Thu Nov 24, 2011 12:55 am

StyrofoamWar wrote:The old lady caused the problem when she voluntarily kicked the daughter in law out.

The agreement never provided for the daughter to come take care of her AND not slap her around. It simply said "come take care of me". D did so, O kicked her out of O's own accord.


Holy hell i hope you wouldn't seriously argue that. That is really dumb.

Smo06d
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Re: K's hypo

Postby Smo06d » Thu Nov 24, 2011 12:52 pm

O is an old lady who makes an offer to D, her daughter in law. The offer: "I am an old annoying woman and I need someone to take care of me. If you come live with me and take care of me, I will leave you my house when I die." D accepts the offer by moving and beginning care taking responsibilities. Soon after, D can't take O's lip and begins to slap her around. O then kicks D out of the house and makes arrangements to leave her house to another family member. What are the rights of the parties? Specifically, can O recover damages for the costs of obtaining a new care taker based on a promissory estoppel claim

R2D 62 applies, the old lady was ambiguous in her offer so D has the option of accepting by performance or promise.
Old lady requires "Someone to take care of me"
Consideration fulfilled by leaving the house to D when she dies, part of the original agreement so an option contract is created when performance begins. (this seems to be majority view itt)

However, I believe the contract to become void due to R2s 179 once the abuse begins.
" A public policy against the enfocement of promises or other terms may be derived by the court from
a. legislation relevant to such policy
b. the need to protect some aspect of the public welfare, as is the case for the judicial policies against, for example
i. restraint of trade
ii. impairment of family relations
iii. interference w. other protected interest"

Obviously elder abuse, assault, battery etc demonstrate a need to void the contract based on public policy.
Like many others itt, I do not see any need/basis for a PE claim by O for the cost of finding a new caretaker (Sidenote: How would you calculated the $ amount of damages?) Her best bet of recovery would be a torts action for assault, battery, IIMD etc and use the $ for hookers and blow.

However, I would like to hijack the thread for a bit and focus on D's ability to recover for services rendered before breach.
What if we added that D left a high paying job and sold her house to move down to take care of O. She believed that she was going to ultimately complete performance (because r2d 62 (2) binds her to render complete performance, and was planning on selling the house and retiring off the cash)
-Other than an unjust enrichment claim, what does D have? Her actions voided the K, which would most likely crush her in court (if she was so reliant on the compensation from the house, would she have so blatantly breached the contract?)

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Oglethorpe
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Re: K's hypo

Postby Oglethorpe » Fri Nov 25, 2011 5:11 pm

Smo06d wrote:O is an old lady who makes an offer to D, her daughter in law. The offer: "I am an old annoying woman and I need someone to take care of me. If you come live with me and take care of me, I will leave you my house when I die." D accepts the offer by moving and beginning care taking responsibilities. Soon after, D can't take O's lip and begins to slap her around. O then kicks D out of the house and makes arrangements to leave her house to another family member. What are the rights of the parties? Specifically, can O recover damages for the costs of obtaining a new care taker based on a promissory estoppel claim

R2D 62 applies, the old lady was ambiguous in her offer so D has the option of accepting by performance or promise.
Old lady requires "Someone to take care of me"
Consideration fulfilled by leaving the house to D when she dies, part of the original agreement so an option contract is created when performance begins. (this seems to be majority view itt)

However, I believe the contract to become void due to R2s 179 once the abuse begins.
" A public policy against the enfocement of promises or other terms may be derived by the court from
a. legislation relevant to such policy
b. the need to protect some aspect of the public welfare, as is the case for the judicial policies against, for example
i. restraint of trade
ii. impairment of family relations
iii. interference w. other protected interest"

Obviously elder abuse, assault, battery etc demonstrate a need to void the contract based on public policy.
Like many others itt, I do not see any need/basis for a PE claim by O for the cost of finding a new caretaker (Sidenote: How would you calculated the $ amount of damages?) Her best bet of recovery would be a torts action for assault, battery, IIMD etc and use the $ for hookers and blow.

However, I would like to hijack the thread for a bit and focus on D's ability to recover for services rendered before breach.
What if we added that D left a high paying job and sold her house to move down to take care of O. She believed that she was going to ultimately complete performance (because r2d 62 (2) binds her to render complete performance, and was planning on selling the house and retiring off the cash)
-Other than an unjust enrichment claim, what does D have? Her actions voided the K, which would most likely crush her in court (if she was so reliant on the compensation from the house, would she have so blatantly breached the contract?)



I think unjust enrichment would be all that D has because she breached. I don't think P.E. would apply because D would have had to reasonably rely on a promise that she ended up breaching herself.

However, unjust enrichment could be used in an attempt to recover those expenses. D quit her job and moved to the benefit of O. (unjust for O not to pay restitution? I dunno) This is a stretch, but it could be like the situation where P agrees to draw up plans for D, but D never picks them up. D hasn't been directly benefited, but P can still recover on U.E. grounds because he did what was asked of him. (at least according to my Prof) Still this seems to be a stretch though.

The high paying job could be problematic because of the at will nature of employment K's. If D's employment K had been for a fixed term, then maybe she could recover those damages assuming she can sufficiently prove them, has attempted to mitigate, and they were foreseeable. But still probably unlikely.




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