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

[JustHawkin]

CivPro

Traditional basis of service on a Corporation's agent is not sufficient for PJ, correct? Must go through Shoe test?

Edit: Or is that not only for Corporations, but for individuals, also?

[hailcaesar34]

Say I have a contract for remodeling a kitchen, and within that there is the purchase of a kitchen sink to be installed. Where does that fall? Is it subsumed within the service contract or can you still apply the UCC?

Depends on what your suing for. Either use the Gravamen test (looks at what complaint is based on) or predominant purpose test which looks at the entire transaction to see if its a sale of service.

So, I finally found out what a gravamen test was. We never did that in our class, just predominant purpose.

tbf it's the minority rule

[03152016]

CivPro

Traditional basis of service on a Corporation's agent is not sufficient for PJ, correct? Must go through Shoe test?

Edit: Or is that not only for Corporations, but for individuals, also?

there are two issues

first issue is whether service in the forum is subject to IS or not
in burnham, scalia says no, pennoyer still reigns
brennan says yes, he runs the traditional base of jurisdiction through IS to find there are min contacts

second issue is whether service on a corp agent establishes pj
nope, that rule applies to natural persons
for corps, you have consent, you have "home" (the equivalent of the pennoyer "domicile" factor; under daimler, where a corp is incorporated or headquartered)
if you don't have one of the two, you have to do a min contacts analysis (unless it's an in rem or quasi-in-rem-1 action)

of course, you still need to serve legally cognizable notice on a corp, it's just not the means of establishing pj in the forum
for example, if tim cook travels to alabama and gets served, it doesn't make apple subject to gen jurisdiction there

[BVest]

Property

how am i supposed to remember all of this material (closed book exam)

not a serious question but taking suggestions

Make a very short list of the things you intend to memorize for the exam, and commit it to memory. It should also be the last thing you review before going into the exam room. When you start the exam, recreate as much of it as you can on scratch paper.

My property was two semesters, but here's what my memorize pages looked like second semester (and yes, I did redraw that chart; the numbering is weird because I copied/pasted from my outline to this document):

[foundingfather]

Property

how am i supposed to remember all of this material (closed book exam)

not a serious question but taking suggestions

Make a very short list of the things you intend to memorize for the exam, and commit it to memory. It should also be the last thing you review before going into the exam room. When you start the exam, recreate as much of it as you can on scratch paper.

My property was two semesters, but here's what my memorize pages looked like second semester (and yes, I did redraw that chart; the numbering is weird because I copied/pasted from my outline to this document):

[pics]/quote]

this is what i did for the last class to took a final on- i may do the same for property

thanks to everyone for your suggestions. i'm going to use all of your advice

[BVest]

Here are my future interests chartsfrom another thread. Not easily recreated on scratch paper but potentially helpful for learning.

[foundingfather]

i spent like two hours making a short estates outline yesterday morning and that's still helpful - thanks

[apples89]

K's

still confused about impracticability and how courts assign risk (what evidence can they use?)

and if a court assigns you the risk, does that mean you can't raise the defense if you were breaching party? If NBP is assigned risk it means you can?

[sesto elemento]

K

This is such a dumb question because its fact dependent but;

What makes something a good v. a service?

For example, if a carpenter (thats his career), builds you a custom dinning table, is he providing a good or a service?

[BVest]

K

This is such a dumb question because its fact dependent but;

What makes something a good v. a service?

For example, if a carpenter (thats his career), builds you a custom dinning table, is he providing a good or a service?

See the UCC definitions §2-105:

(1) "Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8 ) and things in action. "Goods" also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (Section 2-107).

(2) Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.

RE Contract to Sell, see §2-106:

(1) In this Article unless the context otherwise requires "contract" and "agreement" are limited to those relating to the present or future sale of goods. "Contract for sale" includes both a present sale of goods and a contract to sell goods at a future time. A "sale" consists in the passing of title from the seller to the buyer for a price (Section 2-401). A "present sale" means a sale which is accomplished by the making of the contract.

For a custom dining table, it is a [specially manufactured] future good. See also the publishing case above (was publishing the books a good or a service) for one view.

[twenty]

From what I understand, goods are "movable objects." If you have a K that's for both goods and services, for example, A offers B $500 to come by his house and hand out (service) party hats to guests, though B must supply his own (goods) party hats. In this case, it seems like majority of courts go for the Bonebrake Test, or "Predominant Factor Test" where the court will look to the predominant objective of the offeror. In the hypothetical above, A isn't really bargaining for B to drop off party hats at his house, he's bargaining for B to stand at the front door to hand out party hats to guests. So Common Law governs the entire K.

Example to the opposite, Offeror: "I would like to buy a couch (moveable object). However, I am old, so you'll have to send a delivery person to my house to drop the couch off (service)."

A minority of courts use severability where they try and apply UCC to the goods part and Common Law to the services part.

Take everything I say with a grain of salt, I'm a 1L that's studying for Ks right now.

[sesto elemento]

Thank you both for the replies!

Twenty, I didn't even know that such a test existed to help determine what's a good or service.

BVest, thanks for citing to the UCC rule, our prof basically left learning the UCC up to ourselves even though its fair game to use on the exam.

[BVest]

I will say that just barely changing the facts could push this hypo more strongly in either direction:

1) The carpenter exclusively sells custom furniture; he relies on his own supplies. He doesn't do any other carpentry work. Stronger case that this is a future good and the K is controlled by UCC 2.

2) You bring wood to the carpenter in some form (lumber, an antique piece of furniture that's not useable to you in its current form, etc.) and ask him to turn it into a dining table for you. Almost certainly a service.

3) The carpenter does all sorts of carpentry work for people -- repairing furniture and household woodwork, installing doors and windows, building and installing custom bookshelves, and building custom furniture, I still think that ordering from him a custom table (where he supplies the materials) would be a future good, but I could see how strong arguments could be made that this is actually a service.

[twenty]

Well. it's not a test to figure out if something's a good or a service, the PFT is used to determine what body of law governs a K for both goods and services.

Like this one you mentioned here:

if a carpenter (thats his career), builds you a custom dinning table

You're not really bargaining for the carpenter to build a custom dining table, you're bargaining for the dining table itself.

Look at what BVest posted, though. You can see that by just changing the facts slightly, you end up with a different governing body of law pretty easily.

[BVest]

Yeah, the oddity of the Texas publishing case (besides the fact that the court probably got it wrong in saying that ordering 5000 custom-published books from a publishing house is predominantly a service rather than a good) is that they say UCC should not apply, but because the appellant waived the error of the trial court applying the wrong law, they then are forced to apply the UCC anyway.

"It appears to us that the services are the essence or the dominant factor of a printing contract; therefore, [Title] 2 of the [UCC] would not apply."

"Appellant has not assigned a point of error as to whether the trial court's judgment is supported by the verdict of the jury. Therefore any error concerning this point is waived. We indulge in the doubtful assumption that [Title] 2 of the [UCC] governs the contract between parties to enable us to adequately consider appellant's points of error."

Printing Center of Texas, Inc. v. Supermind Pub. Co., 669 S.W.2d 779, 782, (Tex. App. Houston 14th Dist. 1984)

[utahraptor]

1Ls: any of y'all have a good resource for Daimler? It's just

General jurisdiction:
For people- domicile
For corps- place of incorp & ppb

Specific:
Apply international shoe


Yeah?

[JustHawkin]

Since we're on Ks:

Buyer (merchant) calls to order widgets from seller (merchant) for well in excess of $500, to be delivered in 30 days, and payment to be made 30 days after that. Delivery is made right on time. Several days before payment is due, widgets malfunction.

Are rights and obligations of the buyer and seller still governed by UCC, or is this under common law because not in writing?

[BVest]

Since we're on Ks:

Buyer (merchant) calls to order widgets from seller (merchant) for well in excess of $500, to be delivered in 30 days, and payment to be made 30 days after that. Delivery is made right on time. Several days before payment is due, widgets malfunction.

Are rights and obligations of the buyer and seller still governed by UCC, or is this under common law because not in writing?

Still under UCC. Also are a couple specific exceptions to the SOF to help the seller enforce the K:

UCC 2-201

(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable

. . .
(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted [BVest: since the buyer is in possession of the goods, it would be difficult for them to make a truthful pleading denying the K; instead they'd rely on defense for warrantability]; or

(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (Sec. 2-606).

[dibreezy]

Contracts

If X unknowingly completes a unilateral contract, is the offeror responsible for paying X the offered sum?

Hypo: Y leaves a letter on X's door stating, "I hate that apple tree in your yard. If you cut it down I will pay you $500." The wind blows the letter away and X never sees it. That weekend, X cuts down the apple tree. Two days later he learns of the note from Y's sister. Is Y required to pay X $500?

Would this be classified as consideration?

[hailcaesar34]

Contracts

If X unknowingly completes a unilateral contract, is the offeror responsible for paying X the offered sum?

Hypo: Y leaves a letter on X's door stating, "I hate that apple tree in your yard. If you cut it down I will pay you $500." The wind blows the letter away and X never sees it. That weekend, X cuts down the apple tree. Two days later he learns of the note from Y's sister. Is Y required to pay X $500?

Would this be classified as consideration?

I thought you needed to be aware of an offer to accept it/ seems like past consideration issue but idk

[twenty]

Hypo: Y leaves a letter on X's door stating, "I hate that apple tree in your yard. If you cut it down I will pay you $500." The wind blows the letter away and X never sees it. That weekend, X cuts down the apple tree. Two days later he learns of the note from Y's sister. Is Y required to pay X $500?

No, the offeree must know of the offer when he was performing the act.

http://openjurist.org/308/f2d/160

"For the offer to be accepted and the contract to become binding, the desired act must be performed with knowledge of the offer."

[dibreezy]

Hypo: Y leaves a letter on X's door stating, "I hate that apple tree in your yard. If you cut it down I will pay you $500." The wind blows the letter away and X never sees it. That weekend, X cuts down the apple tree. Two days later he learns of the note from Y's sister. Is Y required to pay X $500?

No, the offeree must know of the offer when he was performing the act.

http://openjurist.org/308/f2d/160

"For the offer to be accepted and the contract to become binding, the desired act must be performed with knowledge of the offer."

This is what separates the men from the boys. Thank you so much.

Now I have another one. Specifically concerning R.2d. of Contracts §53, §62, & §32.

In §53 an offeree may revoke acceptance after beginning the process of performing so long as a few conditions have been met. (1) The offeror made an offer which granted acceptance by performance only. (2) The offeree has not complete performance yet (obviously) (3) the offeror has not performed his promise, and (4) it was within a reasonable amount of time.

In §62 the situation is different. An offeror invites acceptance by either performance or promise. The offeree may choose either. However, if the offeree begins performance this is considered acceptance and a promise to render complete performance. As a result, he cannot revoke.

In §32 the terms are ambiguous and it is unclear if the offeror intended for acceptance by performance or promise. If this is the case you revert to the rules as they were outlined in §62.

Amirite?

[twenty]

Hypo: Y leaves a letter on X's door stating, "I hate that apple tree in your yard. If you cut it down I will pay you $500." The wind blows the letter away and X never sees it. That weekend, X cuts down the apple tree. Two days later he learns of the note from Y's sister. Is Y required to pay X $500?

No, the offeree must know of the offer when he was performing the act.

http://openjurist.org/308/f2d/160

"For the offer to be accepted and the contract to become binding, the desired act must be performed with knowledge of the offer."

This is what separates the men from the boys. Thank you so much.

Now I have another one. Specifically concerning R.2d. of Contracts §53, §62, & §32.

In §53 an offeree may revoke acceptance after beginning the process of performing so long as a few conditions have been met. (1) The offeror made an offer which granted acceptance by performance only. (2) The offeree has not complete performance yet (obviously) (3) the offeror has not performed his promise, and (4) it was within a reasonable amount of time.

In §62 the situation is different. An offeror invites acceptance by either performance or promise. The offeree may choose either. However, if the offeree begins performance this is considered acceptance and a promise to render complete performance. As a result, he cannot revoke.

In §32 the terms are ambiguous and it is unclear if the offeror intended for acceptance by performance or promise. If this is the case you revert to the rules as they were outlined in §62.

Amirite?

(again, studying 1L disclaimer warning)

§53 isn't about the offeror revoking, 53 is about the offeree manifesting an intention to not accept. For instance, if I "promise to give you $50 for you to mow my lawn and that you can't just promise to mow my lawn, you can only accept by mowing my lawn (so that we're very clear this is a unilateral K)", and you begin mowing my lawn, but then go "to hell with this" and leave, I can't sue you for breach.

Whereas under §62, if you'd been able to verbally accept my offer (regardless of whether you did), and started working on mowing my lawn, that partial performance is acceptance, and if you quit, you breach. More importantly (what you're getting to under 62), I can't revoke my offer because you've legally accepted by beginning performance, so we're legally bound.

The R2d. you're looking for is §45, whereby if I make a unilateral K offer for you to mow my lawn for $50, I can't wait until you're almost done mowing my lawn, and then yell "I revoke!" out the window at you. There's an invisible "options contract" that exists so that you have a reasonable amount of time to finish performance. Keep in mind this IS NOT a contract to do the work, it's a contract to where your performance keeps me from being able to revoke. So you can quit up to the point where you finish performance, but because I made it unilateral only, I can't revoke my offer once you've started performing.

edit> actually, upon re-reading your question, I'm not sure if you're asking about the offeree's manifestation to not accept, or the offeror's revocation. You used the word "revocation" which usually refers to the offeror, but yeah. Either way, hope that helped.

[yguy]

Civ Pro Policy Question

What issues would you discuss in a policy question that asks about due process in class actions, especially 23b3 classes?

[03152016]

civ question

say i get sued by A in NY state court
i choose not to assert a counterclaim, which isn't a problem b/c ny state has no compulsory counterclaim
then i sue A in federal court on a federal claim involving the same common nucleus of operative fact as A's state claim
i want A's claim in fed court to take advantage of a favorable procedural rule
is there any reason i can't argue the fed court should have supplemental jurisdiction over A's claim under §1367?
can pendent jurisdiction be used "offensively"?