1L Substantive Law Questions (c/o 2017) Forum

[apples89]

did D know what she was doing? did she know the nature of the act?
if not, she was cognitively incapacitated

did D know that her act was morally wrong?
if not, she was morally incapacitated
it's measured by societal standards of morality
in other words, it doesn't matter if D personally feels it's moral or not
the question is whether she knows that society condemns the act

either cognitive or moral incapacitation excuses

thanks! good explanation.

[WestWingWatcher]

Does the eggshell/thinskull rule apply in negligent cases or only intentional torts?

My notes conflict on the issue....

Thanks!

Both. This is what I have in my outline under eggshell skull plaintiff in the negligence portion:

The fact that the extent or severity of the harm was not foreseeable does not relieve Δ of liability. i.e., the tortfeasor takes his victim as he finds him. Eggshell-skull rule. Thus where Δ's negligence causes an aggravation of Π's existing physical or mental illness, Δ is liable for the damages caused by the aggravation.
e.g. a car negligently drive by Δ collides with a car driven by Π. Π suffers a concussion, which was foreseeable, and also suffers a relapse of an existing mental illness, which was not foreseeable. Δ is liable for all of Π's damages.

[BVest]

Does the eggshell/thinskull rule apply in negligent cases or only intentional torts?

My notes conflict on the issue....

Thanks!

It applies equally to negligence. The issue arises in determining proximate cause, and the crux of the eggshell plaintiff rule is that while the plaintiff has to be foreseeable (Palsgraf), the extent of plaintiff's injuries do not have to be foreseeable. See Benn v. Thomas (Iowa) (eta, the facts of which are well described by the post above. P, with heart condition, is rear-ended; stress of accident causes fatal heart attack. P's heart condition does not relieve D of liability for P's death).

[vicpin5190]

Post removed.

[malleus discentium]

Contracts
Can anyone explain precisely what is going on in Hoffman v Red Owl Stores? The case as I read it says that the promise to put Hoffman in a store for $18,000 is one that Hoffman properly relied on, but not one that would "ripen into a contract if accepted by the promisee" (because there were indefinite details). So there isn't a contract here and this is not a breach of contract case. But he still gets reliance damages. If Red Owl's promise was not a contract, but did allow reliance damages, what exactly was it? Is there some sort of special point or promise in preliminary negotiations beyond which there is not necessarily a contract but reliance is in play?

Related: Assuming breach of an enforceable contract, are reliance damages primarily only given when expectation damages cannot be? Or are there other times when reliance damages are used?

[koalacity]

Contracts
Can anyone explain precisely what is going on in Hoffman v Red Owl Stores? The case as I read it says that the promise to put Hoffman in a store for $18,000 is one that Hoffman properly relied on, but not one that would "ripen into a contract if accepted by the promisee" (because there were indefinite details). So there isn't a contract here and this is not a breach of contract case. But he still gets reliance damages. If Red Owl's promise was not a contract, but did allow reliance damages, what exactly was it? Is there some sort of special point or promise in preliminary negotiations beyond which there is not necessarily a contract but reliance is in play?

Related: Assuming breach of an enforceable contract, are reliance damages primarily only given when expectation damages cannot be? Or are there other times when reliance damages are used?

My contracts professor described Hoffman as a promissory estoppel case-Hoffman used promissory estoppel as a cause of action (vs. breach of contract).
From my notes: "Promises that a party can reasonably expect will be relied upon and are relied upon may be enforced to prevent injustice even if the promise itself would not be sufficiently definite to meet the requirements to form an offer for a binding contract"

[apples89]

Contracts
Can anyone explain precisely what is going on in Hoffman v Red Owl Stores? The case as I read it says that the promise to put Hoffman in a store for $18,000 is one that Hoffman properly relied on, but not one that would "ripen into a contract if accepted by the promisee" (because there were indefinite details). So there isn't a contract here and this is not a breach of contract case. But he still gets reliance damages. If Red Owl's promise was not a contract, but did allow reliance damages, what exactly was it? Is there some sort of special point or promise in preliminary negotiations beyond which there is not necessarily a contract but reliance is in play?

Related: Assuming breach of an enforceable contract, are reliance damages primarily only given when expectation damages cannot be? Or are there other times when reliance damages are used?

My contracts professor described Hoffman as a promissory estoppel case-Hoffman used promissory estoppel as a cause of action (vs. breach of contract).
From my notes: "Promises that a party can reasonably expect will be relied upon and are relied upon may be enforced to prevent injustice even if the promise itself would not be sufficiently definite to meet the requirements to form an offer for a binding contract"

However, my Ks professor is kind of crazy/likes to do his own thing, so...

i think my professor mentioned this pretty much as well. furthermore restatement 90 goes:

o A promise which the promisor should reasonably expect to induce action or forbearance of a definite or substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

my K's question in return:

can someone list some typical substantive and procedural unconscionable K's/terms and a short reasoning as to why they are?

[TheoO]

When doing the Byrd test. What are some hypothetical countervailing factors besides 7th amendment right to jury?

[FKASunny]

Contracts
Can anyone explain precisely what is going on in Hoffman v Red Owl Stores? The case as I read it says that the promise to put Hoffman in a store for $18,000 is one that Hoffman properly relied on, but not one that would "ripen into a contract if accepted by the promisee" (because there were indefinite details). So there isn't a contract here and this is not a breach of contract case. But he still gets reliance damages. If Red Owl's promise was not a contract, but did allow reliance damages, what exactly was it? Is there some sort of special point or promise in preliminary negotiations beyond which there is not necessarily a contract but reliance is in play?

Related: Assuming breach of an enforceable contract, are reliance damages primarily only given when expectation damages cannot be? Or are there other times when reliance damages are used?

My contracts professor described Hoffman as a promissory estoppel case-Hoffman used promissory estoppel as a cause of action (vs. breach of contract).
From my notes: "Promises that a party can reasonably expect will be relied upon and are relied upon may be enforced to prevent injustice even if the promise itself would not be sufficiently definite to meet the requirements to form an offer for a binding contract"

However, my Ks professor is kind of crazy/likes to do his own thing, so...

i think my professor mentioned this pretty much as well. furthermore restatement 90 goes:

o A promise which the promisor should reasonably expect to induce action or forbearance of a definite or substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

my K's question in return:

can someone list some typical substantive and procedural unconscionable K's/terms and a short reasoning as to why they are?

promissory estoppel isn't about unconscionable K terms…

[koval]

When doing the Byrd test. What are some hypothetical countervailing factors besides 7th amendment right to jury?

Prefacing this by stating that I'm a 1L.

Some other affirmative countervailing issues might be due process considerations, sufficiency of evidence, order of trial considerations, or anything in which there's a high federal interest in having federal law govern (excluding considerations of uniform application, which would be Byrd's 3rd prong)

I could be wrong though.

[BVest]

Contracts
Can anyone explain precisely what is going on in Hoffman v Red Owl Stores? The case as I read it says that the promise to put Hoffman in a store for $18,000 is one that Hoffman properly relied on, but not one that would "ripen into a contract if accepted by the promisee" (because there were indefinite details). So there isn't a contract here and this is not a breach of contract case. But he still gets reliance damages. If Red Owl's promise was not a contract, but did allow reliance damages, what exactly was it? Is there some sort of special point or promise in preliminary negotiations beyond which there is not necessarily a contract but reliance is in play?

Related: Assuming breach of an enforceable contract, are reliance damages primarily only given when expectation damages cannot be? Or are there other times when reliance damages are used?

My contracts professor described Hoffman as a promissory estoppel case-Hoffman used promissory estoppel as a cause of action (vs. breach of contract).
From my notes: "Promises that a party can reasonably expect will be relied upon and are relied upon may be enforced to prevent injustice even if the promise itself would not be sufficiently definite to meet the requirements to form an offer for a binding contract"

However, my Ks professor is kind of crazy/likes to do his own thing, so...

i think my professor mentioned this pretty much as well. furthermore restatement 90 goes:

o A promise which the promisor should reasonably expect to induce action or forbearance of a definite or substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

my K's question in return:

can someone list some typical substantive and procedural unconscionable K's/terms and a short reasoning as to why they are?

RE Promissory Estoppel, when analyzing any question on your K exam, you probably want to consider it in light of (1) K theory (was there offer/acceptance, was it enforceable, what are the remedies), (2) promissory restitution/unjust enrichment (Rest (2d) §86), and (3) promissory estoppel (Rest (2d) §90).

RE Substantive and Procedural Unconscionability (which I believe was a separate question that just got tacked on to the poster's answer of the previous question):

Procedural comes in the form of:
Bargaining Process Irregularities/Misconduct (See the Weaver v. Amoco case)
Unfairness in the bargaining process (Typically because of unbalanced position and lack of bargaining power)
Not so much about the terms themselves but in how they became a part of the contract.

For Substantive, focus on the provision itself (e.g. exculpation/indemnification for gross negligence or fiduciary relationships).

[sam91]

Contracts

my K's question in return:

can someone list some typical substantive and procedural unconscionable K's/terms and a short reasoning as to why they are?

Procedurally Unconscionable:
Unequal Bargaining power at the time of the contract. Ex: You were forced to sign a K in a crowded sports bar with improper lighting, barely read the K, but signed it anyway under pressure.

Substantively Unconscionable:
Grossly unfair TERMS of the K. Ex: Ora Lee v. Walker Thomas Furniture court found it unconscionable that D had P enter into a K with a cross-collateralization clause.

[BVest]

Contracts

my K's question in return:

can someone list some typical substantive and procedural unconscionable K's/terms and a short reasoning as to why they are?

Procedurally Unconscionable:
Unequal Bargaining power at the time of the contract. Ex: You were forced to sign a K in a crowded sports bar with improper lighting, barely read the K, but signed it anyway under pressure.

Substantively Unconscionable:
Grossly unfair TERMS of the K. Ex: Ora Lee v. Walker Thomas Furniture court found it unconscionable that D had P enter into a K with a cross-collateralization clause.

One small point of correction: In [Ora Lee] Williams v. Walker-Thomas Furniture, the appeals court did state that grossly unfair terms were unenforceable (stating the rule), but then remanded the case to the trial court to analyze the cross-collateralization clause utilizing the newly drafted UCC clause that had not been enacted; on remand, the trial court found for Walker-Thomas.

[sam91]

One small point of correction: In [Ora Lee] Williams v. Walker-Thomas Furniture, the appeals court did state that grossly unfair terms were unenforceable (stating the rule), but then remanded the case to the trial court to analyze the cross-collateralization clause utilizing the newly drafted UCC clause that had not been enacted; on remand, the trial court found for Walker-Thomas.

Thanks! So many cases..

[drumstickies]

civil procedures--

we went over rule 15 very briefly in class, but i'm afraid it might still be examinable.

rule 15(a)(1)(B) says that a party (generally plaintiff) can amend its pleading within 21 days after the responsive party (generally defendant) files a 12b motion to dismiss. so, let's say that the P fails to state a claim upon which relief can be granted, and the defendant files a 12(b)(6) motion to dismiss. can the court grant it right there or does it have to give the plaintiff 21 days to amend its pleading?

[chargers]

Torts Question

Jurisdiction has comparative negligence and has retained joint and several liability. How are damages apportioned when there are more than two defendants and one of them settles?

Thanks!

Edit: Bad at grammar

[BVest]

civil procedures--

we went over rule 15 very briefly in class, but i'm afraid it might still be examinable.

rule 15(a)(1)(B) says that a party (generally plaintiff) can amend its pleading within 21 days after the responsive party (generally defendant) files a 12b motion to dismiss. so, let's say that the P fails to state a claim upon which relief can be granted, and the defendant files a 12(b)(6) motion to dismiss. can the court grant it right there or does it have to give the plaintiff 21 days to amend its pleading?

Though there's some split in circuits about 15(a)(2) amendments (some allow granting of leave to amend after a 12(b)(6) motion has been already been granted and some do not), I'm fairly sure that 15(a)(1) always allows amendment after a 12(b)(6) motion has been granted. That said, this situation will rarely arise because the fed courts don't move so quickly as to make a 12(b)(6) ruling within 21 days and because the court will see the potential 15(a)(1) amendment as a way to avoid having to rule on the 12(b)(6), thus giving the court further incentive not to rule on the 12(b)(6) within 21 days.

[drumstickies]

civil procedures--

we went over rule 15 very briefly in class, but i'm afraid it might still be examinable.

rule 15(a)(1)(B) says that a party (generally plaintiff) can amend its pleading within 21 days after the responsive party (generally defendant) files a 12b motion to dismiss. so, let's say that the P fails to state a claim upon which relief can be granted, and the defendant files a 12(b)(6) motion to dismiss. can the court grant it right there or does it have to give the plaintiff 21 days to amend its pleading?

Though there's some split in circuits about 15(a)(2) amendments (some allow granting of leave to amend after a 12(b)(6) motion has been already been granted and some do not), I'm fairly sure that 15(a)(1) always allows amendment after a 12(b)(6) motion has been granted. That said, this situation will rarely arise because the fed courts don't move so quickly as to make a 12(b)(6) ruling within 21 days and because the court will see the potential 15(a)(1) amendment as a way to avoid having to rule on the 12(b)(6), thus giving the court further incentive not to rule on the 12(b)(6) within 21 days.

thanks! just what i was looking for

[apples89]

crim law

is necessity seen as a justification or excuse? furthermore, does it apply to murder/homicide (in my notes it says no to CL but available to MPC, but i don't remember this from class)?

and a difference between MPC and CL necessity (choice of evils) is that in the MPC, if you were reckless/neg in causing the situation, or reckless/neg when considering if it was truly necessity, you cannot claim necessity.

can anyone think of such a scenario? other than rehashing dudley stevens.

what if, you were drunk driving and hit + killed a pedestrian, but you did it while escaping a serial killer on your tail?
murder or MS? (MPC jurisdiction)
now instead, what if you went to go grab drinks with this serial killer because you thought you could get him drunk and drop some vigilante justice on him?

[Kimikho]

sorry if this has already been answered (just direct me to the link then)

Contracts

UCC 2-207 Battle of the forms:

- when both parties are NOT merchants, and there were additional terms added to the acceptance that were not conditional, additional terms are just proposals to the contract. (1) For additional terms--they are just not part of the K. Has a contract still formed, or was this acceptance not really an acceptance? (2) for different terms, does the same thing happen?

- both merchants --> additional terms added to the acceptance that weren't conditional --> AND original offeror either expressly limited acceptance to terms of the offer or the terms materially altered the K or there was a timely objection (basically, the list of exceptions in 2-207(2)), they also become "proposals." (1) Same question as above: has a K been formed here?

Basically, is this correct between two merchants:
acceptance states additional terms --> acceptance does NOT say that the acceptance is conditional on accepting these terms --> original offer said "no new terms" --> K is formed based on original terms.

Finally, 2-207(3): if there is a contract through conduct, you don't go through the above approach, right? You just skip straight to the agreed terms + UCC gap fillers, regardless if the agreed terms are additional or different? Or do you still go through this process?

(In my notes I have: "Conduct by both parties which recognizes the existence of a K is sufficient to establish a K for sale even though the writings do not make a K. When this happens (when conduct makes the K), the terms are: what the parties agree and gap fillers.")

Thankyouthankyouthankyou

[jayessbee]

sorry if this has already been answered (just direct me to the link then)

Contracts

UCC 2-207 Battle of the forms:

- when both parties are NOT merchants, and there were additional terms added to the acceptance that were not conditional, additional terms are just proposals to the contract. (1) For additional terms--they are just not part of the K. Has a contract still formed, or was this acceptance not really an acceptance? (2) for different terms, does the same thing happen?

No one knows. Some courts treat the two as the exact same, others knock the different terms out and replace them with gap fillers. Depends on the jurisdiction.

- both merchants --> additional terms added to the acceptance that weren't conditional --> AND original offeror either expressly limited acceptance to terms of the offer or the terms materially altered the K or there was a timely objection (basically, the list of exceptions in 2-207(2)), they also become "proposals." (1) Same question as above: has a K been formed here?

Basically, is this correct between two merchants:
acceptance states additional terms --> acceptance does NOT say that the acceptance is conditional on accepting these terms --> original offer said "no new terms" --> K is formed based on original terms.

Correct. If objection has been given before acceptance (or within a reasonable time after) then the new terms are not part of the K (I think).

Finally, 2-207(3): if there is a contract through conduct, you don't go through the above approach, right? You just skip straight to the agreed terms + UCC gap fillers, regardless if the agreed terms are additional or different? Or do you still go through this process?

(In my notes I have: "Conduct by both parties which recognizes the existence of a K is sufficient to establish a K for sale even though the writings do not make a K. When this happens (when conduct makes the K), the terms are: what the parties agree and gap fillers.")

Yes. Conflicting terms get kicked out and replaced.

Thankyouthankyouthankyou

I hope this flowchart helps.

[Kimikho]

sorry if this has already been answered (just direct me to the link then)

Contracts

UCC 2-207 Battle of the forms:

- when both parties are NOT merchants, and there were additional terms added to the acceptance that were not conditional, additional terms are just proposals to the contract. (1) For additional terms--they are just not part of the K. Has a contract still formed, or was this acceptance not really an acceptance? (2) for different terms, does the same thing happen?

No one knows. Some courts treat the two as the exact same, others knock the different terms out and replace them with gap fillers. Depends on the jurisdiction.

- both merchants --> additional terms added to the acceptance that weren't conditional --> AND original offeror either expressly limited acceptance to terms of the offer or the terms materially altered the K or there was a timely objection (basically, the list of exceptions in 2-207(2)), they also become "proposals." (1) Same question as above: has a K been formed here?

Basically, is this correct between two merchants:
acceptance states additional terms --> acceptance does NOT say that the acceptance is conditional on accepting these terms --> original offer said "no new terms" --> K is formed based on original terms.

Correct. If objection has been given before acceptance (or within a reasonable time after) then the new terms are not part of the K (I think).

Finally, 2-207(3): if there is a contract through conduct, you don't go through the above approach, right? You just skip straight to the agreed terms + UCC gap fillers, regardless if the agreed terms are additional or different? Or do you still go through this process?

(In my notes I have: "Conduct by both parties which recognizes the existence of a K is sufficient to establish a K for sale even though the writings do not make a K. When this happens (when conduct makes the K), the terms are: what the parties agree and gap fillers.")

Yes. Conflicting terms get kicked out and replaced.

Thankyouthankyouthankyou

I hope this flowchart helps.

Thank you! That did help!

[lawlschool1l]

Civ Pro

What is the standard of review for injunctive relief? I have in my notes that it can be reviewed both for abuse of discretion and de novo but can't really understand how.

[Redamon1]

Civ Pro

What is the standard of review for injunctive relief? I have in my notes that it can be reviewed both for abuse of discretion and de novo but can't really understand how.

Shooting from the hip here, so beware, but instinctively I would say that the standard of review does not fluctuate based on the remedy granted by the court. As it would for monetary damages or simply determination of liability, COA will review the facts for abuse of discretion (e.g. in the context of a preliminary injunction, whether there is a great and irremediable risk of harm to the P) and the law de novo (e.g. does the statute authorize the court to grant injunctive relief).

[koval]

Civ Pro

What is the standard of review for injunctive relief? I have in my notes that it can be reviewed both for abuse of discretion and de novo but can't really understand how.

Prefacing this by stating that I'm a 1L.

Courts have multiple ways of reviewing injunctions. Often times COA employ some form of a balancing test, where they measure whether the plaintiff will be irreparably harms if the injunction is denied, if the harm to the plaintiff exceeds the harm to the defendant, if the plaintiff is likely to prevail in court, and if granting the injunction detriments the public interest (welfare payments, constitutionally rights, etc.). If the COA determines that the district judge weighed the factors correctly then they deny the appeal. Most of the formulas I've seen function more or less like that. The 2nd Circuit employs almost an exact version of the above test (except with some weird threshold factor), while the 7th Circuit, in American Hospital Supply, used a crazy law and economics test (Posner).

But, again, I'm a 1L so I could be wrong.