. Forum

[RCSOB657]

they both talk about foreseeability, but cardozo talks about it at duty and andrews talks about it at proximate cause. in an exam setting, are we going into foreseeability at both duty and proximate cause?

You could, but if foreseeability is an issue in the fact pattern that will undercut liability at one point or another, you can just discuss it under "duty" and be done with it, which will save you the time of having to discuss other conditions of negligence.

isnt that redundant?

Well, it would be if you're just saying the same thing twice. If you think 'Dozo's view makes no sense, you can discuss it under the heading of "proximate cause".

The way Hand explained it is the way my prof wants us to do it. He's the only 1L prof here that wants a hard conclusion and if that truncates further analysis so be it. Kind of weird because he's the Assoc Dean imo, but it works for me.

[Leonardo DiCaprio]

palsgraf is a fucking stupid case that profs love but really it just confuses everyone

here's one way to reconcile foreseeability, proximate cause, and duty
but understand that this is only one way of thinking about this
ur prof may have (and probably did) teach it differently, maybe vastly differently

palsgraf represents a foreseeability-based proximate cause analysis that is, for the most part, consistent with R3T
it's the foreseeability-based analysis that's key; the fact he placed it in duty or made it a judge rather than a jury question isn't the key to understanding palsgraf's implications on the doctrine. those latter questions are better explicated thru cases like randi w (validating foreseeability in judge-determined duty analysis) and lancaster (broad duty, fact-intensive foreseeability analysis is a question for the fact-finder).

so then what is the difference between foreseeability in duty and foreseeability in pc? R3T § 29 cmt. f helpfully provides:

Some courts use duty in situations in which other courts would use proximate cause. The classic case of Palsgraf v. Long Island Railroad Co., revealed the potential for interchangeability between duty and scope of liability, although proximate cause was the term employed at the time. Judge Cardozo employed duty, while Judge Andrews employed proximate cause, to determine whether the defendant was liable for harm to a particular plaintiff. Palsgraf's legacy has been a tension in tort law about the proper balance between duty rules and proximate-cause limits to circumscribe appropriately the scope of liability.

One significant difference between these two doctrines is helpful in determining their appropriate spheres of application. Duty is a question of law for the court, see § 7, while scope of liability, although very much an evaluative matter, is treated as a question of fact for the factfinder. Hence, duty is a preferable means for addressing limits on liability when those limitations are clear, when they are based on relatively bright lines, when they are of general application, when they do not usually require resort to disputed facts in a case, when they implicate policy concerns that apply to a class of cases that may not be fully appreciated by a jury deciding a specific case, and when they are employed in cases in which early resolution of liability is particularly desirable. See § 7. Duty is usefully employed when a court seeks to make a telling pronouncement about when actors may or, on the other hand, may not be held liable. Thus, the liability of social hosts for providing alcohol to their guests is best treated as a duty issue, rather than as a matter of scope of liability. On the other hand, when the limits imposed require careful attention to the specific facts of a case, and difficult, often amorphous evaluative judgments for which modest differences in the factual circumstances may change the outcome, scope of liability is a more flexible and preferable device for placing limits on liability. Its use is also consistent with the role of the jury in tort cases.

disclaimer: again, this is just one reconciliation
profs are all over the place in how they teach proximate cause

leo glad ur finding my civ outline helpful
i'm not sure i'm allowed to post my torts outline tho. i booked the class and will be a torts TA next semester, i should, as a courtesy, check w/ my prof to see if he's ok with me distributing to ppl who might end up in his class

ty for this brut.
yeah i understand about the torts outline, no worries.

[buckiguy_sucks]

Since this is a Qs thread now, can someone explain to me with an example what a unilateral contract is? My understanding is offer--performance instead of offer-offer but how would that look in an example? Is there still consideration on the part of the offeree in a unilateral contract?

[peger]

Since this is a Qs thread now, can someone explain to me with an example what a unilateral contract is? My understanding is offer--performance instead of offer-offer but how would that look in an example? Is there still consideration on the part of the offeree in a unilateral contract?

An example would be a bonus scheme for a real estate agent ala Cook v. Caldwell; make X amount this year in commissions, and you'll get X raise. The consideration is the performance itself.

[PeanutsNJam]

Since this is a Qs thread now, can someone explain to me with an example what a unilateral contract is? My understanding is offer--performance instead of offer-offer but how would that look in an example? Is there still consideration on the part of the offeree in a unilateral contract?

My prof really doesn't like unilateral K's. There's a Restatement that basically says unilateral K's are basically bilateral K's where the offeree is given an option once they begin performance. It's one of those things that are debatable so you can argue both sides.

General rule is that once offeree begins performance, offeror can't rescind (I think). I haven't outlined my unilateral K section yet.

Classic unilateral K is a reward. $999 for the homie who finds my lost watch. If you decide a week later that you don't want the watch anymore, and take the signs down, someone who drove around for a few days would be hard pressed to argue that he "began performance". If he sued you for gas money/lost wages, he wouldn't win. But, if they find your watch and bring it to you, that's tendering performance so they've done their part, and you're bound. I'm not sure how you'd argue that driving around looking for the watch isn't "beginning performance", but you'd sure have to on an exam.

There is consideration. Offeror promises to pay (or do something). Offeree performs. You can derp around with mutual assent/bargain (inducement). This is a K where there is no mutual obligation, however, since the offeree isn't bound to do anything ever. The K is formed when the offeree begins performance, but the offeree can terminate at will (since they have an option). Not sure how this connects to limited promise Ks, but like I said I haven't outlined this far yet.

I'm aware there's a whole acceptance element too, but we didn't discuss it. I.E. if I find the watch, but didn't know about your sign, do I get $$? I think the rule is no. Or if you rescind, but idk about the rescission, and I get you your watch, are you bound? I'm guessing you are, but again, idk. We didn't cover this in class, so idk the rules.

Also, distinguish advertisements, which are generally held not to be unilateral Ks. Again, did not really cover this in class so idk.

Also, "$100 to mow my lawn." What if they go out and buy a lawnmower, but don't start before you retract? Prep costs usually can't be recovered. I don't expect unilateral K to be a big part of the exam to be honest.

[buckiguy_sucks]

Hmm. Seems that we discussed all that w/o really defining them as unilateral Ks, must be that prof doesn't care for the distinction either

[Hand]

Since this is a Qs thread now, can someone explain to me with an example what a unilateral contract is? My understanding is offer--performance instead of offer-offer but how would that look in an example? Is there still consideration on the part of the offeree in a unilateral contract?

Examples are for fucking pussies. How about some definitions?

A unilateral contract is an offer that can only be accepted by performance. It is unilateral in that only the offeror is bound by any contractual duties: if the offeree performs, the offeror is bound to do whatever it is they promised. The offeree is not bound to perform, not even when they start performing.

A bilateral contract, by contrast, is an offer that can be accepted by a return promise. It is bilateral in that both parties are bound once it comes into existence (one person is bound by their offer, the other by their acceptance).

Now an example: if I promise to pay you $10 if you climb all the way to the top of the flagpole, I am bound by my promise to in fact cough up the money if you perform. However, I am not bound by you saying that you are going to do it--I don't give two shits what you say you're gonna do, I'll give you the money if you do it, and not if you won't. You are not bound to climb up the flagpole by my offer, nor by you saying that you're going to do it, since I told you don't care about what you say, only about what you do. Now, while part performance (climbing halfway) on your part will make it true that I can no longer rescind my offer--they effectively create an option for you to complete performance, meaning that I now have not just the obligation to pay when you climb to the top, but also allow you a reasonable amount of time to do it--it still doesn't create any obligations on your behalf. If halfway up you think "fuck it I'm coming down again" then you can just walk away. This is a unilateral contract.

A bilateral contract would be the same as above, except where I do take it to be sufficient if you say you're gonna do it (e.g. you tell me "I'm gonna climb tomorrow" and I say "deal, here's your ten bucks, see you tomorrow")
ETA that reminds me I still owe you $14 bucks for the MBIE I will have it for you tomorrow I PROMISE

[PeanutsNJam]

Yeah the only thing idk is like what if the flag pole is in a zoo where admissions is $10, and you pay the $10 to go in, but don't start climbing, does that count as beginning performance. Can you recover $10 if offeror rescinds.

I'd imagine there's some messiness with acceptance and revocation in unilateral Ks but I didn't cover that stuff in class.

[Hand]

Yeah the only thing idk is like what if the flag pole is in a zoo where admissions is $10, and you pay the $10 to go in, but don't start climbing, does that count as beginning performance. Can you recover $10 if offeror rescinds

I mean that could be either preparation for performance or part performance depending on who your judge is? Not sure there are hard rules for this. Either way you could probably recover reliance damages, since that doesn't require there to be a breach of contract.

If someone makes you this offer, I would first advise you not to take it (since you'll be spending the $10 you earn on getting into the zoo, making no profit) but if you proceed anyway, force the offeror to make explicit that this offer can be accepted by either performance or a return promise, and then provide the return promise.

(edited for clarity)

[RCSOB657]

Nm already covered

[PeanutsNJam]

I'd be down to gang bang the Erie doctrine in here with someone.

[RCSOB657]

I'd be down to gang bang the Erie doctrine in here with someone.

Seemed quite simple to me, without declaring that law unconstitutional, they reversed prior precedent. They said there is no such thing as a true fed only common law, so even if an action is brought in fed ct and there is a controlling state statute or common law decision the fed cts still have to abide by that unless it's one of the types of cases that the us con and congress made fed only.


Am I missing something hand?

[PeanutsNJam]

Well yeah substantive law is ez the problem is procedural rules. I just hate the Boyd "countervailing circumstances/strong federal interest" test, like could you be more subjective?

My bad by Erie I meant all the way through Hanna v Plumer. My prof calls that whole mess "Erie analysis." Maybe cause one of those cases talked about interpreting the York outcome determinative test in light of the "twin aims of Erie". Forgot the case name.

[Poldy]

I didn't think that unilateral contracts were as simple as saying that they become binding on the offeror once performance begins. My understanding was that expectation interest would only be awarded in the case of an offer which invited acceptance by either performance or a return promise. When an offer only invites performance, couldn't the offeror withdraw and the offeree would only be entitled to reliance interest?

Maybe I'm not remembering that correctly but I think that's how it works.

[PeanutsNJam]

I didn't think that unilateral contracts were as simple as saying that they become binding on the offeror once performance begins. My understanding was that expectation interest would only be awarded in the case of an offer which invited acceptance by either performance or a return promise. When an offer only invites performance, couldn't the offeror withdraw and the offeree would only be entitled to reliance interest?

Maybe I'm not remembering that correctly but I think that's how it works.

If an offer invites a return promise, how would that be different from a bilateral k.

[RCSOB657]

I was just talking about being unable to revoke the uni K once performance was initiated. That's true. Damages I'm not 100 on.

[RCSOB657]

Well yeah substantive law is ez the problem is procedural rules. I just hate the Boyd "countervailing circumstances/strong federal interest" test, like could you be more subjective?

My bad by Erie I meant all the way through Hanna v Plumer. My prof calls that whole mess "Erie analysis." Maybe cause one of those cases talked about interpreting the York outcome determinative test in light of the "twin aims of Erie". Forgot the case name.

Okay, we're not through all the cases yet.

[03152016]

erie doctrine is an absolute trainwreck

it borders on sadistic

[buckiguy_sucks]

Also, distinguish advertisements, which are generally held not to be unilateral Ks. Again, did not really cover this in class so idk.

With a fresh grasp on THE LAW, I think I remember this.

It's whether the advert is an "invitation to offer" or the offer itself. Carbolic Smoke Ball lays out a specific plan of action for acceptance while the Pepsi commercial just tells you about the program/points you towards the way to redeem.

So if a store was like "jump up and down 50 times and we'll give you a free turkey" that would be an offer but if they say like "come discuss how to jump up and down 50 times to get a free turkey" that would be an invitation to bargain?

[Poldy]

I didn't think that unilateral contracts were as simple as saying that they become binding on the offeror once performance begins. My understanding was that expectation interest would only be awarded in the case of an offer which invited acceptance by either performance or a return promise. When an offer only invites performance, couldn't the offeror withdraw and the offeree would only be entitled to reliance interest?

Maybe I'm not remembering that correctly but I think that's how it works.

If an offer invites a return promise, how would that be different from a bilateral k.

It isn't. I probably phrased that badly. An offer that invites performance or promise is a bilateral K, even though acceptance by performance looks like a unilateral K. Because of this, I thought that accepting by starting performance bound both the offeror and the offeree and entitled both to expectation interest.

A true unilateral K is performance only and I think that the offeree is entitled to reliance interest if the offeror revokes the offer before completion. Also, the offeree is not bound to complete once they start performing.

I was speaking more generally about the acceptance by performance and the characterization as bilateral Ks that give the offeree an option after accepting.

[PeanutsNJam]

Well yeah substantive law is ez the problem is procedural rules. I just hate the Boyd "countervailing circumstances/strong federal interest" test, like could you be more subjective?

My bad by Erie I meant all the way through Hanna v Plumer. My prof calls that whole mess "Erie analysis." Maybe cause one of those cases talked about interpreting the York outcome determinative test in light of the "twin aims of Erie". Forgot the case name.

Okay, we're not through all the cases yet.

You're in for a treat. Granted, there's a lot to talk about, so my strategy is pre-write a lot of my Erie doctrine stuff based off practice exams and just vomit out a couple thousand words when I get to the choice of law in diversity jdx question.

[Big Red]

Iqbal is the biggest train wreck imo

[Kinky John]

Since this is a Qs thread now, can someone explain to me with an example what a unilateral contract is? My understanding is offer--performance instead of offer-offer but how would that look in an example? Is there still consideration on the part of the offeree in a unilateral contract?

Rescission = there is a K, one side has performed, and you want get rid of the K (rescind) and write a new one (novate) instead of modifying it.
Revocation = offeror takes back the offer, K hasn't been formed yet.

And a unilateral K is not binding until the offeree fully performs. An option is created if you at least tender a beginning of performance, but up until performance is complete there is no K (just the possible option K).

[PeanutsNJam]

yeah what he said

[Minnietron]

I'm not sure I like the turn this thread has taken. Not because of the participants or the subject matter, but because I now realize how below-median I really am. I did - at least - recognize most of the case names...