Saturday, December 19, 2009
Study for Monday's Final?
Monday, December 14, 2009
EXAM 1 ANSWERS
Wednesday, December 9, 2009
Minors Being on the hook for a necessity
Minor contracts
Exculpatory Clauses
Monday, December 7, 2009
Thursday, December 3, 2009
Timber Sale Contract
Alexis Domnguez
Christopher Kadera
Philippe Gagnon
Hayden Healy
Issues with the Timber Sale Contract:
UCC Contract- Even though this transaction deals with land, (in that it is clearing timber off of the purchaser's land), it does not involve the selling of the land itself. It does involve the selling of a tangible goods.
Bilateral Contract- There is an predetermined agreement of action on both parties to be fullfilled (services yielded from the seller, and money paid from the buyer) therefore it is a bilateral contract.
Executory Contract- This is not an immediate transaction in which the seller and the buyer both have services already rendered and only need payment. This is a contract in which services are to be rendered in the future, thus this is an executory contract.
Illusory- This contract is not illusory because there is consideration. For this particular contract, it does not apply because it is dealing with land and is already in writing. Statute of Frauds: This statute is waiting to be signed and after the signing takes place, the statute of fraud will no longer be relevant.
Modification: For this contract, all modifications must must be written, dated, signed, witnessed, and attached to the contract. According to the UCC modifying a contract does not need consideration to be binding. For this contract, the specifications are stated with in.
Arbitration: This section can be found in miscellaneous section C which means that in case of an argument over the terms of the contract, the final decison will be made by a third party that both the parites in this contract agree on.
Tittle: In section D, the tittle can be found of the seller because it is saying that the seller is the owner of the timber.
Formal/ Informal- a formal contract because of negotiable instruments and signed by a party that makes an unconditional promise to pay a specific sum of money on demand or at a certain time to the holder of the instrument.
Damages- as listed in the Purchase part in the document(part f) , and any damages are the sole responsibility of the purchaser
Void/Voidable/Valid/Unenforceable-The contract is valid because there is an offer, acceptance and consideration are completed when it is signed.
Consideration -There is proper consideration because the benefit to the promisor is the timer acquired from the land and the detriment to the promisee is the loss of the timber on his land.
Exculpatory Clause - There is an exculpatory clause which saves harmless the seller from any liability for personal injuries, death, and/or property damage
Material Terms - the material terms are outlined in the payments section of the contract and are left blank to be filled by the promisee. These terms include dollar amount, quantity, the amount of acres, and the location.
Timber Sales Contract
Elizabeth Naylor
Devon Seal
Sharlynne Solomon
Cameron Ward
Morgan Payne
Mike Walker
UCC: because it is a good
Bilateral: it is a promise for a promise
Executory: contract is not yet fully performed
Illusory: not illusory because it is enforceable
Statue of frauds: larger than $500 and written miscellaneous
Modification: allows for modifications
Formal: it is signed under seal
Damages: covered by purchaser
Valid: offer + acceptance + consideration = contract
Consideration: yes because promisor benefits
Exculpatory clause: yes because it limits liability
Material terms: cannot cut trees below 4 1/2 feet, pay in one lump sum at time of execution
Alternative Dispute Resolution: Arbitration - yes, miscellaneous C allows for a 3rd party to make a determination
Title: good title because seller owns the goods free and clear
Timber Sale Contract
UCC/Common Law: Article 2 of UCC deals with the sale of goods. This contract falls under UCC because timber is being sold.
Bilateral/Unilateral: This is a bilateral contract because it is a promise for a promise. The seller is promising to sell the timber and also dispose of it. The Purchaser is promising to buy the timber and cut and remove it.
Executed/Executory: This contract is an executory contract because the terms of the contract have not yet been fully performed.
Illusory: This contract is not an illusory promise because both the purchaser and seller have agreed to the terms of the contract. The purchaser has agreed to cut and remove timber on the land and the seller has agreed to dispose of the timber.
Statute of Frauds: This contract is deemed important enough to be in writing. It is not an oral contract, so Statute of Frauds does not exist.
Modification: Since this is a UCC contract, there does not need to be consideration in order to modify the contract. However, if there are any modifications to the contract, they will be reduced to writing, dated, signed, and witnessed, and will be attached to the contract.
Formal Contract: Negotiable instruments make this a formal contract because it is a written document, signed by a party that makes an unconditional promise to pay a specific sum of money on demand or at a certain time to the holder of the instrument.
Damages: Damages are outlined in section (e) and (f) for the purchaser along with the Insurance section. The purchaser is responsible for repairing any damages to the fence during the removing or logging of timber. The purchaser is liable for damage, destruction, or restoration of private or public improvements in the exercise of the contract and is solely responsible. The purchaser agrees to protect the seller from all liability for personal injuries, death, or property damage suffered or incurred by any person in connection with purchaser during performance of contract.
Void/Voidable/Valid/Unenforceable: Valid because it includes an offer, acceptance, and consideration. Also it does not include any illegal activity.
Consideration: Yes, because there is a benefit to the Seller who receives money from the Purchaser and there is a detriment to the Purchaser because the Purchaser has to pay money to the seller.
Exculpatory Clause: The contract places liability in the Purchaser in that it says that any liability for damage, destruction, or restoration of private or public improvement occasioned by or in the exercise of this contract shall be the sole responsibility of the Purchaser.
Material Terms: The material terms in the contract include subject matter, price, quantity, quality, and parties involved.
Alternative Dispute Resolution: Arbitration: Section Miscellaneous (c) states “in case of dispute over the terms of the contract, final decision shall rest with a reputable person mutually agreed upon by the parties of the contract, and in the case of further disagreement, final decision will rest with an approved board of three persons, one to be selected by each party to this contract and the third to be selected by the other two.
• One issue that we came across regarding arbitration in contracts is that parties are encouraged to select their respective arbitrators prior to acceptance and include them in the contract. This simply eliminates any cause for dispute if arbitration did arise.
Title: Title specifications can be found in section (d) of the “SELLER” section. This clause states “The Seller covenants that he is the lawful owner of the above timber and that no indebtedness or encumbrance exists against the same”. Parties to a timber contract are advised to specify the exact dimensions of the land that will be harvested. Issues regarding title disputes may arise when the contract conflicts with state or environmental forestry laws and regulations.
Other: Issues regarding business dealings specifically with timber often involve disputes between the government and the private parties. This is a statutory issue, and the regulations vary by state. In U.S. v Alaska Pulp Corp, the United States voided a timber contract and ordered that the 17-million acre forest will not be harvested.
Wednesday, December 2, 2009
Group Members
- David Aiello
- Alvaro Figueroa
- Maria Guzman
- Lexan Jaravata
- Mark Lopez
- Matt Rocco
TIMBER SALE CONTRACT
UCC: The contract falls under the UCC because Article 2 of the UCC governs and focuses on contracts for the sale of goods. The transaction in the contract involves a sale of a good, in this case timber.
Bilateral/Unilateral: The contract is bilateral because "a promise for a promise" exists. The seller and is promising to sell the other party timber, and the purchaser is promising the other party a payment for the timber.
Executed/Executory: The contract is executory because the timber has not been cut, the transaction has yet to take place, and the payment has not been made.
Illusory: The contract is not Illusory because there is a commitment to cut the timber and sell it to the purchaser.
Statute of Frauds: There is no statute of frauds because the contract is a written contract and not an oral contract.
Modifications: Modifications may be made to the contract; however, all modifications to the contract will be made in writing, dated, signed, witnessed, and will be attached to the contract.
Formal/Informal: The contract is formal because it is created specifically for the sale of timber.
Damages: The contract can either involve compensatory damages or the kind of damages that requires the breaching party to perform their part of the contract.
Void/Voidable/Valid/Unenforcable: The contract is valid because there is an offer, acceptance and consideration.
Material Terms: In the contract, there are material terms regarding the height of the timber.
Exculpatory Clause: In the contract, there are exculpatory clause that states that the purchaser must agree to protect, indemnify, and save harmless the from any and all liability for personal injuries, death, and/or property damage suffered or incurred by any person in connection with the purchaser's performance of the contract.
Arbitration: In the contract, there is arbitration that states that in case of dispute over the terms of the contract, final decision shall rest with a reputable person mutually agreed upon by the parties of the contract, and in the case of further disagreement, final decision will rest with an approved board of three persons.
Title: The contract involves good title because the seller owns the property/timber, and good title is title that is acquired from someone who already owns the goods free and clear.
Timber Sale Contract- Section 6
Objective vs. Subjective Analysis
Timber Sale Contract--Section 6
Group Members: Karla Velazquez de Leon, Brittany Sheppard, Sean Aguilar, Taylor Shramo, George Peniche, Justin Ditolla, Sean Aguilar, Dean Jackson, Loka Kanongataa, Ryan Connelly
- UCC: This is a UCC contract because it has to do with the selling of goods. Also the UCC says that the sale of timber is a UCC issue.
- Bilateral: This contract is bilateral because it involves a promise for a promise. The seller agrees to sell the timber and the purchaser agrees to buy for the sum of “___ dollars.”
- Executory: The contract is executory because it has not been signed and the act has not yet been completed. The timber has not actually been sold yet. It will be executed once it has been signed
- Illusory: This contract is not illusory because there is consideration.
- Statute of Frauds: This statute does not apply because this is a written contract which will be signed. The statute of Frauds requires certain contracts to be written but this one is already written so the statute does not apply.
- Modification: The contract states that for a modification to occur it must be written, dated, signed, witnessed, and attached to the contract. UCC says that modifying a contract doesn’t need consideration to be binding and the rules for modification are stated in the contract.
- Formal: This is a formal contract because it has a special form and manner. There are formalities, which are taken to complete it, it is written and signed.
- Damages: Damages are stated in sections e and f. The Purchaser will repair what the Purchaser damages. The Purchaser bears the responsibility of any damages
- Valid: The contract is valid because the activities are not illegal and it has consideration, acceptance, and contractual capacity.
- Consideration: There is consideration because there is a bargain for exchange. The seller agrees to sell the timber and the buyer agrees to buy it. The promisor can benefit because he will get money and the promisee has a detriment in that is will lose the money in paying it to the promisor.
- Exculpatory Clause: There is an exculpatory clause for the Seller in section f where it says that the liability is on the Purchaser.
- Material Terms: Once payment is specified and filled out then material terms will have been specified. This is because material terms include price, subject matter, quantity etc.
- Alternative Dispute Resolution: Arbitration: This can be found in section C under Miscellaneous which says that in the case of a dispute the final decision will be decided by a reputable person that is mutually agreed upon by both parties.
- Title: The title can be found in section d of the Seller because it is saying that the Seller is a lawful owner of the timber.
Timber Sale Contract Section 5
Timber Sale Contract - Analyzing Potential Issues
Nick Sardo, Anthony Vieira, Drew Kootman, Ryan Powell, Justin Neglia, William Vasko, Mark Yeilding, Martin Jison
Issues
Uniform Commercial Code
Bilateral - The seller promises to provide the timber, and the buyer promises to provide the money.
Executory - There has yet to be an exchange of money/timber between the parties, therefore the contract has yet to be executed.
Illusory - The contract itself has not been signed yet. Most likely, there has only been a verbal agreement that a contract will be signed in the future.
Statute of Frauds - Requires that contracts be in writing and signed. In this case, the contract has been wrote, and is waiting to be signed.
Modification - The contract states that "all modifications of this contract will be reduced to wriging, dated, signed and witnessed, and will be attached to this contract."
Informal - There is no prescribed form for this type of contract. It is not a contract under seal, recognizance, letter of credit, or a negotiable instrument.
Damages - Any liability for damage, destruction, or restoration of private or public improvements occasioned by or in the exercise of this contract shall be the sole responsibility of the purchaser.
Valid - The contract is valid since it does not appear to have any illegal subtance. Furthermore, this contract will be valid as long as the parties are not affected by physical or economical duress when signed.
Consideration - There is a detriment to the buyer, as they are relinquishing their money/assets to the promisor.
Exculpatory Clause - An exculpatory clause is a statement releasing one of the parties to an agreement from all liability, regardless of who is at fault or what the injury suffered is. In this case, "any liability for damage, destruction, or restoration of private or public improvements occasioned by or in the exercise of this contract shall be the sole responsibility of the purchaser. "
Material Terms - The contract does not specify quantity of timber, the price per unit of timber, type, or quality of timber.
Alternative Dispute Resolution: Arbitration - In case of dispute over the terms of this contract, final decision shall rest with a reputable person mutually agreed upon by parties to this contract. In this case of further disagreement, final decision shall rest with an approved board of three persons, one to be selected by each party to this contract and the third to be selected by the other two.
Title - The contract does not specify that the seller is the owner of the timber. This is an example of "Good Title", since the timber is to be acquired from someone who already owns the goods free and clear.
Timber Sale Contract: Section 05
Megan Detrick
Alexandra Fagelson
Jennifer Seivers
Christina Erny
Mary Griffith
Susan Walker
Ray Soria
Jennifer Ix
Nick Kostielmey
Julian Strickland
· UCC- Sale of Goods
· Bilateral- because the seller agrees to sell and the purchaser agrees to buy for ‘x-amount’ of dollars.
· Executed- when contract is signed, the sale is made and completed. under payment- purchaser further agrees to pay to the seller the sum of x dollars in one lump-sum payment due at the time of executing this contract
· Not illusory because there is consideration
· Valid contract because there is offer, acceptance, and consideration
· Statute of Frauds- irrelevant because it is in writing ; because it has to do with land it must in writing.
· In order for a modification to happen, it must be written, dated, signed and witnessed, and attached to the contract. UCC does not require this, but because it is written in the contract, it must be followed.
· There is consideration: Seller is promisor, a promise to sell, and the benefit they get is the money they receive; detriment to purchaser is that they must pay money.
· Formal because it is written.
· Damages are the sole responsibility of the purchaser (‘Purchaser’ sections e and f)
· Good title- acquired from someone already owning the goods free and clear
· Exculpatory clause- ‘Purchaser’ section f- because it frees the seller from liability arising out of performance for that contract and puts it onto the purchaser
· Material terms- payment section (price, subject matter, quality, quantity) and introduction of the contract- material terms are not included and must be filled in
· Arbitration- miscellaneous section c
· Other: Promisory Estoppel does not exist in this contract
· Express Contract- all terms are clearly set forth in written words
· Conclusion of UCC- Predominant Purpose Test- primarily timber, not service of cutting it down
Timber Sale Contract
Timber Sale Contract
The contract is subject to the Universal Commercial Code because it concerns the selling of the timber on the land not the real estate. It is contracting the sale of a commodity not the land. If it were the sale of the real estate it would be classified as a Common Law contract.
This is a bilateral contract because the contract is a promise for a promise. The contract offeror is proposing a contract to the offeree and expects a certain action from them. In this contract the promise is to exchange timber for the promise of payment. When these promises are exchanged, the contract forms legal obligations for both the promisor and the promisee.
This is an executory contract because the act of selling the timber has not taken place. The exchange of goods is executory, it has not been executed yet. The contract is not complete because the details have not been filled out and the contract signed. When the exchange of payment for the timber occurs the contract will be considered executed.
The contract is an Illusory promise because the details (of the contract have not been established. Neither the promisor or the promisee have made commitments to the contract or promised to perform any part of the contract. If the contract was signed it would then not be an illusory promise.
Statute of Frauds is the requirement of contracts to be in writing to be enforceable.
Modification of the contract can only happen when modifications are in writing, dated, signed and witnessed by the parties. Because this is a UCC contract modifications do not need new consideration.
This will be a formal contract when it is signed and an unconditional promise to pay a specific sum of money on demand or at a certain time to the holder of the instrument is made. This contract is a formal contract because it was created in a special form and a specific manner.
The Purchaser is taking on all liability for “personal injuries, death and/or property damage suffered in connection with the Purchaser’s performance of this contract”. The Purchaser must cover all damages that occur in connection to the harvesting of the timber. They must furnish insurance to protect against injuries or damages.
It can be assumed that this is a valid contract because the activity involves a legal sale of a commodity to the Purchaser.
There is consideration because the promisor has the potential to benefit monetarily from the sale of the timber, and there is a detriment to the promisee in the form of payment for the timber. The exceptions of consideration do not apply because there is no promise for love and affection, it does not involve an illegal activity, there is no past consideration, there is no pre-existing legal duty, and this is not an agreement to modify an original contract.
The Exculpatory Clause is that “any liability for damage, destruction, or restoration of private of public improvements occasioned by or in the exercise of this contract shall be sole responsibility of the Purchaser”. This releases the seller from any liability after the sale of the property.
The Material terms in the contract include the subject matter, price, quantity, quality, and parties. This contract does not have material terms because it is not filled out. These have been left blank and will be determined
Alternative Dispute Resolution is addressed in the contract: “In case of dispute over the terms of this contract, final decision shall rest with a reputable person mutually agreed upon by parties to this contract…” It provides an alternative to going to court to settle disagreements; the mediation will be decided among an independent third party chosen by the contracted parties. This resolution will take place out of court and attempt to resolve conflict.
The Title refers to the documentation of ownership of the timber. There is no discussion of the exchange of the title in the contract. There should be an exchange of title from the seller to the Purchaser so they legal own the timber on the land as outlined in the contract.
Mackenzie Ott, Fred Myrtle, Bridget O’Connor, Casey Wilkins, Kyle Sullivan, Steven Chatwood, Alyssa Perry