You sign two identical contracts with two different suppliers, one to buy stuff and the other to buy services. If both of your suppliers default in the exact same way, your rights will be the same under each contract, right?
Probably not, because the law that applies to the sale of goods is not the same as the law that applies to the sale of services. There’s a lot of overlap, and most contract law principles apply to both, but the law isn’t the same. [continue reading…]
If a travel website erroneously lists a low price for air fare and you book a trip, can you hold the airlines to the low fare? As the ContractsProf Blog recently explained, it depends, but you might be able to. The ContractsProf’s post discusses a situation where the published fare was a fraction of the going rate for a round trip from San Francisco to Palau. Was it a case of a unilateral mistake? It depends on whether the customer should have known that the fare was in fact too good to be true.
Becwood, a Minnesota-based distributor, contracted with Dingxi, a Chinese supplier, to purchase a large amount of organic Kosher inulin. Becwood planned to sell the inulin to Stoneyfield Farm, Inc. for use in yogurt products. Dingxi shipped the product in four separate shipments. Becwood paid for the first shipment in full before its arrival, but then rejected all four shipments claiming that the product was contaminated with mold.
Dingxi recalled the third and fourth shipments before they reached their destination ports and sued in the United States District Court for the District of Minnesota for breach of contract and misrepresentation seeking to recover the full price for shipments two, three, and four. [continue reading…]
In his lesser-known recent opinion in which ostriches make an appearance, Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals considered whether a memorandum of understanding and a letter of intent formed binding contracts. As you might have guessed from this post’s title—which is a quote from the opinion—the answer was no.
(In his better-known ostrich opinion, Judge Posner benchslapped one of the lawyers arguing before the court for disregarding precedent that was detrimental to his case. The opinion, in which Judge Posner compares the lawyer to an ostrich with his head in the sand, is complete with pictures. See this post at Above the Law for the picture of man in suit with head in sand.) [continue reading…]
Sometimes the boring standard provisions in the back of a contract can really be brutal.
Take this scenario, for example:
Bloomberg reported yesterday that Groupon has been accused in a lawsuit of altering emails containing agreements with merchants after both sides had accepted the terms.
The plaintiff has accused Groupon of intentionally altering contracts after the fact (“Unbeknownst to Plaintiff and the other Class members … Groupon accesses its merchant-clients’ emails containing the Merchant Agreements while those emails are in post-transmission electronic storage and alters the content of those emails.”). [continue reading…]
The billable hour is bad for your law business. It’s also bad for your career, it’s bad for your clients, and, yes, it’s bad for your soul.
From the traditional law firm perspective, billable hours are what they sell. Sure firms advertise the skill and pedigrees of their lawyers, the depth and breadth of their practice areas, their geographic reach, their success stories, and their best clients. (And, of course, every law firm is responsive, cost-effective, and client-centered.) [continue reading…]
A New Jersey appellate court recently refused to enforce an online forum selection clause that was contained in a browsewrap agreement, but it stopped short of holding that browsewraps are unenforceable as a matter of law. The case is interesting because of the comparisons the court draws with the influential and well-known case of the United States Court of Appeals for the Second Circuit Specht v. Netscape Communications Corp. and the New Jersey case Caspi v. Microsoft Network, L.L.C. (It’s also interesting because the case involves the online purchase of a “performance-enhancing” supplement known as “Erection MD,” but I digress.) [continue reading…]
I’ve written fairly often in these web pages about whether online terms and conditions are enforceable—partly because it’s a developing area of contract law, partly because I’m fascinated by the legal fiction that there’s a “meeting of the minds” between website owner and user, and partly because I’m waiting to see what happens when a website owner crosses the line as illustrated by this South Park clip. The ABA’s Business Law Today magazine recently published an excellent article about whether online terms are enforceable, which focuses on the incorporation by reference doctrine. The article was written by Raymond P. Kolak and Ryan D. Strohmeier and it’s well worth a read.
Kudos to Active.com for putting together an excellent browsewrap checkout screen. I had to navigate through the screen recently in order to sign up for the St. Louis Rock ‘n’ Roll half marathon.
When courts determine whether to enforce online terms and conditions, they tend to focus on whether users had notice of the online terms and whether they assented to them. To my mind, the perfect notice and assent procedure would require the terms to be loaded onto the user’s computer screen for long enough to ensure that the user had sufficient time to read them. [continue reading…]
