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Contracts II

Contracts II. Performance of the contract. Contract B reach Actions. Formation of a C ontract Performance Breach ( interpretation issues ) Damages Peppercorn clause : ”For one dollar and other good and valuable consideration agreed upon ”. The P arol E vidence R ule.

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Contracts II

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  1. Contracts II Performance of the contract

  2. ContractBreach Actions • Formation of a Contract • Performance • Breach (interpretation issues) • Damages • Peppercornclause: ”For one dollar and othergood and valuableconsiderationagreedupon”

  3. The ParolEvidence Rule • No extrinsic evidence to contradict the final written contract • Includes communications prior or at the same time as contract formation • When is a contract final? • Integration/Merger clauses • Exceptions: defenses to formation, ambiguous terms • Partial integration: consistent terms

  4. Example • CompleteAgreement; GoverningLanguage.ThisLicenseconstitutes the entireagreementbetweenyou and Apple relatingto the useof the Apple Software and supersedes all prior or contemporaneousunderstandingsregardingsuchsubjectmatter. No amendmentto or modificationofthisLicensewill be bindingunless in writing and signed by Apple. AnytranslationofthisLicense is done for localrequirements and in the event of a disputebetween the English and any non-English versions, the English version ofthisLicenseshallgovern, to the extent not prohibited by locallaw in yourjurisdiction.

  5. Interpretation of a contract • 1. Course of performance (same people & contract) • 2. Course of dealing (same people & different contract) • 3. Custom and usage (other people, similar contracts) • Contracts construed against drafter

  6. Readco v. Marine Midland • 1) Facts of the case • 2) Legal question • 3) Conclusion • What is the legal rule for future cases?

  7. Morgan Stanley v. Seven Circle • 1) Facts of the case • 2) Legal question • 3) Conclusion • What is the legal rule for future cases?

  8. Choice oflawclauses • Choice oflaw • Choice of forum • Choice ofvenue

  9. Choice of law/forum selection clauses • Express choice of law clauses: Valid in general • Exceptions: Public policy, No true consent, No reasonable basis for choice of law (forum non conveniens), Statute of Frauds circumvented • No express choice of law clauses: • Vested rights approach v. Center of gravity approach • Governmental interest: Babcock test (which state has the greatest interest) • Contracts: Center of gravity: Identify facts, law and policy

  10. Choice oflaw & forum • Contracts: • >250K: NY law may govern without relationship • Exception: labor & personal services need connection • > 1M: NY law & forum, prohibition to dismiss • Where in NYGOL do you find the choice of law sections?

  11. Contractualissues • Choice oflawrules? • A contract for 100K between a US & a Swedish corporation. ”Thiscontractshall be governed by the lawsof Sweden, and shall be litigated in the N.Y. court system.” • A contractfor 100 K betweena French& a Swedish corporation. ”Thiscontractshall be governed by the lawsofNew York, and shall be litigatedin the New York court system.” • A contract for 260 K between a French & Swedish corporation. ”Thiscontractshall be governed by the lawsof the stateof New York, and shall be litigated in the New York statecourt system.”

  12. Contractualissues • Contractualwaivers from federal jurisdiction? • ”anydisagreementsarising from thiscontractshall be litigated in the stateof New York” • ”anydisagreementsarising from thiscontractshall be litigated in the statecourtsof New York” • ”anydisagreementsarising from thiscontractshall be litigated in the statecourtof New York, without right ofremoval” • ”anydisagreementsarising from thiscontractshall be litigated in New York courtswithin the geographicalboundariesofAlleganycounty, NY”

  13. British West Indies Guaranty v. Banque Int. a Luxembourg • 1) Facts of the case • 2) Legal question • 3) Conclusion • What is the legal rule for future cases?

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