Harvard Class of 2012 Forum

[Objection]

Me neither, Objection. Don't feel badly. Besides, I don't think it'd be that great. I still feel awkward when people bring it up in conversation that I got into Harvard. I guess, deep down inside, I'm a shy guy after all. haha

TCR. I'll mention I'm going to law school. If they ask where, I'll say I'm still deciding. It's only if they ask where I'm deciding between that I'll tell them. And usually it comes out in some awkward mumble/whisper thing.

haha both tcr

I agree. I'm actually a 1L in Canada (decided to come back to the states). I got into HLS in the middle of a torts class, and my small group started clapping. So EVERYONE knows. People I've never even met ask for my notes and for help on the material. Others blatantly compete with me on grades. They think I must be a legal genius because I got in. But NO, I just did well on the LSAT! It's really embarassing and awkward.

Haha! TCR, although I'm still in UG.

I told a really close friend of mine, who ended up telling several of our mutual friends. It just so happens I was in a study group yesterday with one of those mutual friends for a subject I don't understand at all (dealing with the biological effects of drug on the brain). So the mutual friend congratulates me, which means everyone else in the group found out. Yet I had sounded like an idiot the entire study group. I'm sure they were thinking, "Uh, this guy got into HLS?"

[Objection]

nvm!

[pinkflamingo]

not that this has anything to do with our education, but does harvard have an official mascot?

[masterpinky0509]

Harvard's not cool enough to have a mascot.

[dueprocess14]

Crimson, but there's no tide.

[Krswmact]

Crimson, but there's no tide.

haha

[eri]

Just wanted to say that I'm staying at the doubletree for March ASW - who else will be there?

[Currie84]

Yes, crimson is both the school color and the name for the sports teams.

In terms of mascot, Harvard kind of has one... some people would say Harvard's mascot is a puritan/John Harvard. It's a horrible mascot. In effect, Harvard has no mascot.

[iagolives]

I think the law school should use those wheat sheaves as a mascot. Nothing says terror like an angry sheaf charging at you.

[pinkflamingo]

I think the law school should use those wheat sheaves as a mascot. Nothing says terror like an angry sheaf charging at you.

hahaha agreed...and probably more intimidating than an unofficial puritan.

[dueprocess14]

Anyone else feel like HLS's financial aid application requirements are on par with getting a state department background check? I'm expecting for them next to ask for written records of my lunch money expenditures from sixth grade...!

[iagolives]

Anyone else feel like HLS's financial aid application requirements are on par with getting a state department background check? I'm expecting for them next to ask for written records of my lunch money expenditures from sixth grade...!

Agreed. I also find it funny that they ask for more documents than required of banks in the first bailout. (http://www.youtube.com/watch?v=0BQceks6fUU) I didn't believe her at first so I looked it up and, indeed, after the instructions, it's two pages long.

So, who else is excited for next weekend! *raises hand*

[excitedutterance]

Anyone else feel like HLS's financial aid application requirements are on par with getting a state department background check? I'm expecting for them next to ask for written records of my lunch money expenditures from sixth grade...!

I've never filled out a FInAid application, so I thought this was normal!

[Objection]

Yay! Our (last names A-L) assignment for our mock class came.

Jacobs & Young v. Kent

[meesawoosa]

ah, i am mildly envious that all of you new admits get to go to ASW and mock class. the mock class last spring was easily my favorite part of the wkend - i was in feldman's class and it was incredibly interesting. (perhaps it helped that he's very good-looking, and a legal celebrity.)

[treple]

Terry v. Ohio for M-Z

[Objection]

This case isn't particularly fun.

It's actually quite convoluted.

I was hoping we'd get something fun for the mock class, but I guess the convolutedness will be used to make a larger point.

The distinction is akin to that between dependent and
independent promises, or between promises and conditions (Anson on Contracts [Corbin's ed.],
sec. 367; 2 Williston on Contracts, sec. 842). Some promises are so plainly independent that they
can never by fair construction be conditions of one another. (Rosenthal Paper Co. v. Nat. Folding
Box & Paper Co., 226 N. Y. 313; Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328). Others are so
plainly dependent that they must always be conditions. Others, though dependent and thus
conditions when there is departure in point of substance, will be viewed as independent and
collateral when the departure is insignificant (2 Williston on Contracts, sec. 841, 842; Eastern
Forge Co., v. Corbin, 182 Mass. 590, 592; Robinson v. Mollett, L. R., 7 Eng. & Ir. App. 802,
814; Miller v. Benjamin, 142 N. Y. 613)

There will be harshness sometimes and oppression in the implication
of a condition when the thing upon which labor has been expended is incapable of surrender
because united to the land, and equity and reason in the implication of a like condition when the
subject-matter, if defective, is in shape to be returned.

Edit: After reading the entire case, it is pretty interesting.

[excitedutterance]

This case isn't particularly fun.

It's actually quite convoluted.

I was hoping we'd get something fun for the mock class, but I guess the convolutedness will be used to make a larger point.

The distinction is akin to that between dependent and
independent promises, or between promises and conditions (Anson on Contracts [Corbin's ed.],
sec. 367; 2 Williston on Contracts, sec. 842). Some promises are so plainly independent that they
can never by fair construction be conditions of one another. (Rosenthal Paper Co. v. Nat. Folding
Box & Paper Co., 226 N. Y. 313; Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328). Others are so
plainly dependent that they must always be conditions. Others, though dependent and thus
conditions when there is departure in point of substance, will be viewed as independent and
collateral when the departure is insignificant (2 Williston on Contracts, sec. 841, 842; Eastern
Forge Co., v. Corbin, 182 Mass. 590, 592; Robinson v. Mollett, L. R., 7 Eng. & Ir. App. 802,
814; Miller v. Benjamin, 142 N. Y. 613)

There will be harshness sometimes and oppression in the implication
of a condition when the thing upon which labor has been expended is incapable of surrender
because united to the land, and equity and reason in the implication of a like condition when the
subject-matter, if defective, is in shape to be returned.

The first time I read it I was like WTF? I read it again after reading the dissent and somehow it made perfect sense. And by perfect sense I mean a lot more sense than before.

[Objection]

The first time I read it I was like WTF? I read it again after reading the dissent and somehow it made perfect sense. And by perfect sense I mean a lot more sense than before.

I feel the same way. In hindsight, it's actually a pretty interesting case, even though the majority opinion is unnecessarily convoluted. I posted before I had gotten to the dissent which made it much clearer.

BTW, I agree with the dissent in this case.

What about you?

[excitedutterance]

The first time I read it I was like WTF? I read it again after reading the dissent and somehow it made perfect sense. And by perfect sense I mean a lot more sense than before.

I feel the same way. In hindsight, it's actually a pretty interesting case, even though the majority opinion is unnecessarily convoluted. I posted before I had gotten to the dissent which made it much clearer.

BTW, I agree with the dissent in this case.

What about you?

I agree with the dissent's point that a contractor is entitled to stipulate the conditions of his contract, and to expect the fulfillment of those conditions. But I also agree with the majority's opinion that in this case where failure to fulfill the terms is neither fraudulent nor willful (as it seemed to be a result of the sub-contractor's failures; even the architect who would later refuse to sign the certificate of completion did not notice any problem upon inspection), and where harm (as determined by the court) is negligible, that the plaintiff should not be required to go through the hardship of demolishing substantial portions of the structure to replace one type of pipe with a pipe of identical quality and value with a different name stamped on it.

But I don't know what I'm talking about. Haha.

[jack-o]

Hi all. When are the dates of Harvard's ASW in April? Apologies if it's included elsewhere.

[Objection]

The first time I read it I was like WTF? I read it again after reading the dissent and somehow it made perfect sense. And by perfect sense I mean a lot more sense than before.

I feel the same way. In hindsight, it's actually a pretty interesting case, even though the majority opinion is unnecessarily convoluted. I posted before I had gotten to the dissent which made it much clearer.

BTW, I agree with the dissent in this case.

What about you?

I agree with the dissent's point that a contractor is entitled to stipulate the conditions of his contract, and to expect the fulfillment of those conditions. But I also agree with the majority's opinion that in this case where failure to fulfill the terms is neither fraudulent nor willful (as it seemed to be a result of the sub-contractor's failures; even the architect who would later refuse to sign the certificate of completion did not notice any problem upon inspection), and where harm (as determined by the court) is negligible, that the plaintiff should not be required to go through the hardship of demolishing substantial portions of the structure to replace one type of pipe with a pipe of identical quality and value with a different name stamped on it.

But I don't know what I'm talking about. Haha.

Me neither, but here is my attempt at pretending:

Even if sub-contractor was at fault, that seems to be an issue between Jacobs & Youngs and the contractor. The contractor can sue the sub-contractor to recoup his losses. It may not have been neither fraudulent nor willful on the part of the contractor because it was the sub-contractor's fault, but it was still his responsibility to honor the terms of the contract as written.

As the dissent states, it doesn't matter why Kent wanted that specific type of pipe. All that matters is that he wanted it badly enough to specify it in the contract. If he was willing to settle for an equivalent, he would have put "Reading (or equivalent)" in the contract. If a stipulation of a contract is such a key component that without agreement on that stipulation the contract would not have been signed, then that part of the contract cannot just be tossed aside. In this case, it can be assumed that Kent would not have signed the contract if the contractor said "We will give you 2/5 Reading and the rest equivalent," because Kent was incensed enough to sue. It might be a minor detail in the eyes of the court, but it was a major part of the deal to Kent.

If you order Cocoa Krispies and are instead given its generic brand Cocoa Dyno-bites, were the terms of your purchase honored?

The defendant had a right to contract for what he wanted. He
had a right before making payment to get what the contract called for. It is no answer to this
suggestion to say that the pipe put in was just as good as that made by the Reading Manufacturing
Company, or that the difference in value between such pipe and the pipe made by the Reading
Manufacturing Company would be either “nominal or nothing.” Defendant contracted for pipe
made by the Reading Manufacturing Company. What his reason was for requiring this kind of
pipe is of no importance. He wanted that and was entitled to it. It may have been a mere whim on
his part, but even so, he had a right to this kind of pipe, regardless of whether some other kind,
according to the opinion of the contractor or experts, would have been “just as good, better, or
done just as well.” He agreed to pay only upon condition that the pipe installed were made by
that company and he ought not to be compelled to pay unless that condition be performed.

[excitedutterance]

The first time I read it I was like WTF? I read it again after reading the dissent and somehow it made perfect sense. And by perfect sense I mean a lot more sense than before.

I feel the same way. In hindsight, it's actually a pretty interesting case, even though the majority opinion is unnecessarily convoluted. I posted before I had gotten to the dissent which made it much clearer.

BTW, I agree with the dissent in this case.

What about you?

I agree with the dissent's point that a contractor is entitled to stipulate the conditions of his contract, and to expect the fulfillment of those conditions. But I also agree with the majority's opinion that in this case where failure to fulfill the terms is neither fraudulent nor willful (as it seemed to be a result of the sub-contractor's failures; even the architect who would later refuse to sign the certificate of completion did not notice any problem upon inspection), and where harm (as determined by the court) is negligible, that the plaintiff should not be required to go through the hardship of demolishing substantial portions of the structure to replace one type of pipe with a pipe of identical quality and value with a different name stamped on it.

But I don't know what I'm talking about. Haha.

Me neither, but here is my attempt at pretending:

Even if sub-contractor was at fault, that seems to be an issue between Jacobs & Youngs and the contractor. The contractor can sue the sub-contractor to recoup his losses. It may not have been neither fraudulent nor willful on the part of the contractor because it was the sub-contractor's fault, but it was still his responsibility to honor the terms of the contract as written.

As the dissent states, it doesn't matter why Kent wanted that specific type of pipe. All that matters is that he wanted it badly enough to specify it in the contract. If he was willing to settle for an equivalent, he would have put "Reading (or equivalent)" in the contract. If a stipulation of a contract is such a key component that without agreement on that stipulation the contract would not have been signed, then that part of the contract cannot just be tossed aside. In this case, it can be assumed that Kent would not have signed the contract if the contractor said "We will give you 2/5 Reading and the rest equivalent," because Kent was incensed enough to sue. It might be a minor detail in the eyes of the court, but it was a major part of the deal to Kent.

If you order Cocoa Krispies and are given its generic brand Cocoa Dyno-bites, were the terms of your purchase honored?

The defendant had a right to contract for what he wanted. He
had a right before making payment to get what the contract called for. It is no answer to this
suggestion to say that the pipe put in was just as good as that made by the Reading Manufacturing
Company, or that the difference in value between such pipe and the pipe made by the Reading
Manufacturing Company would be either “nominal or nothing.” Defendant contracted for pipe
made by the Reading Manufacturing Company. What his reason was for requiring this kind of
pipe is of no importance. He wanted that and was entitled to it. It may have been a mere whim on
his part, but even so, he had a right to this kind of pipe, regardless of whether some other kind,
according to the opinion of the contractor or experts, would have been “just as good, better, or
done just as well.” He agreed to pay only upon condition that the pipe installed were made by
that company and he ought not to be compelled to pay unless that condition be performed.

This is fun. Kent actually never filed suit; the original suit was filed by Jacobs & Young when Kent refused to make the final payment after the architect did not certify the property as complete. While it would be one thing if the plaintiff never inspected the pipe, it seems to me another that the plaintiff, sub-contractor, architect, and others all inspected the pipe and found it to be of the correct type; as he had instructed the sub-contractor to supply this type of pipe, and upon inspection it was found that he had, it was reasonable for the plaintiff to believe that the sub-contractor would continue to do his job as directed, and as was previously deemed acceptable. It seems less reasonable that the plaintiff should have to subsequently personally inspect over 2000 feet of pipe in order to ensure this point. I agree with the majority on the point that the error was neither willful nor grossly negligent on the part of the plaintiff, and that "omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture...." In this case, there was an error on the part of the contractor, but the error was reasonable and the assessed harm is negligible; if in the course of such a project an error is made that violates a stipulation of the contract, but the error was made only after diligent steps were taken to ensure that such an error would not be made, then the responsibility of the contractor for the error is greatly mitigated. As the majority states, "It is true that in most cases the cost of replacement is the measure (Spence v. Ham, supra). The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value."

Basically, I agree that anyone can make stipulations in a contract. But I also believe if the contractor takes reasonable steps to ensure the fulfillment of those stipulations, and after such reasonable steps he fails to fulfill them to the letter, and where the subsequent harm is negligent, that the contractor should be entitled to the original payment less damages, which in this case are none.

[Objection]

This is fun. Kent actually never filed suit; the original suit was filed by Jacobs & Young when Kent refused to make the final payment after the architect did not certify the property as complete.

True, which I picked up on my second read through. So just amend my previous comment that he was "pissed off enough to sue" to "he was pissed off enough to not pay."

While it would be one thing if the plaintiff never inspected the pipe, it seems to me another that the plaintiff, sub-contractor, architect, and others all inspected the pipe and found it to be of the correct type; as he had instructed the sub-contractor to supply this type of pipe, and upon inspection it was found that he had, it was reasonable for the plaintiff to believe that the sub-contractor would continue to do his job as directed, and as was previously deemed acceptable. It seems less reasonable that the plaintiff should have to subsequently personally inspect over 2000 feet of pipe in order to ensure this point.

I don't find any of this to be relevant. A mistake is a mistake, and they should be required to correct the entirety of their mistake. Even if they inspected it 5,000 times, that doesn't correct their mistake. If a building is built and inspected 5,000 times, yet still collapses due to faulty workmanship, are the builders not at fault because they inspected?

I agree with the majority on the point that the error was neither willful nor grossly negligent on the part of the plaintiff,

I agree, but I also find this to be irrelevant, as the contract was for Reading pipe and Reading pipe was not used. The contract was breached. When payment depends on performance of the contract, and that contract is not performed, payment cannot be due. As I will quote later, to hold otherwise would be creating a new contract.

In this case, there was an error on the part of the contractor, but the error was reasonable and the assessed harm is negligible; if in the course of such a project an error is made that violates a stipulation of the contract, but the error was made only after diligent steps were taken to ensure that such an error would not be made, then the responsibility of the contractor for the error is greatly mitigated.

Someone somewhere along the way made a mistake. Kent is entitled to have his contract honored, and the rest of the people can sue each other until they find who is to blame. Kent, on the other hand, has done nothing wrong, but rather has been wronged because he was not given what he ordered. The man just wants his Reading pipe! Why he ordered it is irrelevant. Maybe he has a Reading pipe fetish - who knows? It doesn't matter. He contracted someone to install Reading pipe, and, it can be inferred, would not have agreed to hire Jacob & Young if they had not agreed to that stipulation.

As the majority states, "It is true that in most cases the cost of replacement is the measure (Spence v. Ham, supra). The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value."

The good to be attained is that the contract will be honored. The Reading pipe requirement was specifically mentioned in the contract..

There were, in essence, two parts of the contract:

1. Do my plumbing
2. Use Reading pipe

Essentially half of the contract was not met.

If the contractor had done their job right the first time, there would be no problems with the "cost of completion [being] grossly and unfairly out of proportion to the good." But he didn't. He (through his sub-contractor) messed up. The case states that Reading pipe was not used due to "inattention and oversight" by the sub-contractor. Since when are inattention and oversight excuses for breaching a contract? The excess costs currently faced are due to that "inattention and oversight" (everyone he hired is his responsibility), not due to any unreasonable demands made by Kent. Now if the contractor wants to sue the sub-contractor to recoup his losses, then he should, but as it stands now, he has a contract with Kent in which a key stipulation was violated.

Basically, I agree that anyone can make stipulations in a contract. But I also believe if the contractor takes reasonable steps to ensure the fulfillment of those stipulations, and after such reasonable steps he fails to fulfill them to the letter, and where the subsequent harm is negligent, that the contractor should be entitled to the original payment less damages, which in this case are none.

The court has, apparently, contradicted itself with this case.

Smith v. Brady

“I suppose it will be conceded that every one has a right to build his house, his cottage or his store after such a model and in such style as shall best accord with his notions of utility or be most agreeable to his fancy. The specifications of the contract become the law between the parties until voluntarily changed. If the owner prefers a plain and simple Doric column, and has so provided in the agreement, the contractor has no right to put in its place the more costly and elegant Corinthian. If the owner, having regard to strenght and durability, has contracted for walls of specified materials to be laid in a particular manner, or for a given number of joists and beams, the builder has no right to substitute his own judgment or that of others. Having departed from the agreement, if performance has not been waived by the other party, the law will not allow him to allege that he has made as good a building as the one he engaged to erect. He can demand payment only upon and according to the terms of his contract, and if the conditions on which payment is due have not been performed, then the right to demand it does not exist. To hold a different doctrine would be simply to make another contract, and would be giving to parties an encouragement to violate their engagements, which the just policy of the law does not permit.”

There is no mention of any "good faith effort" standard. If the contract falls short, the contract falls short. The demand was reasonable. The demand was explicit. The demand was key. Therefore, the demands need to be met, and if they're not, the contract has not been met. Why should Kent be obligated to uphold the entire end of his side of the contract (payment in full) when the contractor has not upheld his?

When the contractor has not met the entire contract, he does not deserve the entire payment.

If I order a pair of Nike Air Pump Super X9000s (value $90) and I receive a pair of Walmart Air Pump Super X9000s (value $88), both shoes identical except for the branding, am I entitled to an exchange or simply a $2 keychain that makes up the difference between the value of the pairs of shoes?


BTW, I bet we sound like total douches right now.

[sluggo]

wtf is up with not including the dissent with the terry case? i just wiki'd it and it wasn't a 9-0 so i'm wondering why they didn't include douglas's dissent.

anyhow, i thought it was a really fun read and I thought Warren had solid reasoning even if he takes about 4x more words than is necessary (i'm assuming this will be a common theme in law school).