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Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
Introduction to Private Law and Offers
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Introduction to Private Law and Offers

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  • Even if one acknowledges that private law exists in the U.S., it must be understood that these sub-categories are dealt with, at least as part of a legal education, entirely separate! For the most part, each has its own: caselaw statutes treatises Restatements
  • I tend to agree with this position.
  • There are at least three distinct but closely related dimensions to the early development of U.S. law that help explain both the overlap between public and private law within our legal system and the concomitant concept of private attorneys general enforcing public policy through private litigation. The first is a political dimension reflected in distrust of the legislature and in the rejection of top-down regulation in favor of an approach that allows the common person to be involved in the regulatory process through private litigation. The second is a systemic dimension resulting from the fact that the common law naturally reflects greater trust in judges to form the law in response to specific cases, particularly as compared to the legislation of general principles in a civil law system. The third is a constitutional dimension that has brought two-plus centuries of interpretation of a document that incorporates a strong separation of governmental powers at the federal level, fundamental rules on the right to a jury trial even in civil cases, the constitutionalization of questions of jurisdiction and civil procedure, and a vertical separation of powers that includes state regulation of the legal profession.
  • A desire to prevent legislative supremacy resulted in a special role for the courts in which private parties are relied upon to use the judicial system not only to vindicate private rights but, also, for more general social regulatory purposes. In more recent U.S. history, this aspect is apparent in: federal antitrust, securities, and consumer law that provides specifically for the role of the private attorneys general and relies heavily on private litigation to serve a regulatory function.
  • A civil law system, which lodges primary responsibility for stating and developing the law in the legislature, results in an essential focus on general societal interests. Civil codes are thus based on general principles contained in the code provisions, which are subject to application in specific cases if other code rules do not explicitly determine the outcome. A civil law court may find it necessary to reason from the general principle (which states a societal interest) to the result in a specific case. A common law system, on the other hand, brings with it a focus on individual interests of the parties involved in the particular case, with the court reasoning from specific facts to the appropriate governing principle (traditionally found in the common law rather than in specific statutes) and then determining where the matter fits in the social order. This approach obviously is more consistent with remedies granted to private parties but designed to fulfill more general purposes, such as punitive damages designed to serve a deterrent role in regard both to the specific defendant and to others similarly situated.
  • Every private civil case has a constitutional aspect through the application of the jurisdictional requirement of a nexus ("minimum contacts") between the defendant and the forum state. Seventh Amendment right to a jury trial in civil cases. This guaranty affects just about every aspect of the civil trial process. It is fundamental to the structure and specificity of rules of evidence which determine what information may be presented at trial and how it may be presented. These rules, in turn, help determine how and by whom evidence may be collected prior to trial and from whom it may be collected. All of this affects the structure of the process leading up to trial as well as the relationships between the parties and between a party and the court. Perhaps most significantly, it affects how decisions are made through the allocation of responsibility to the judge for legal decisions and to the jury for factual determinations.
  • In 1992, the German Federal Supreme Court (Bundesgerichtshof) listed what it determined to be the goals of punitive damages in the United States in its decision not to enforce the punitive portion of a California judgment. Those goals included punishment, adequate compensation, deterrence of future similar uncivilized conduct, and reward to the plaintiff for carrying out an important function of a comprehensive judicial system. All of these are legitimate goals of a civilized system of jurisprudence. What the German court did not do was agree that these are all proper goals of the private civil law system as opposed to the public criminal law system.
  • Regulations Contracts – procurement Torts – possibly where government is plaintiff, especially concerning land. Property environmental laws takings
  • NOTE – most of the discussion on contract law will focus on common law contract principles. You will be exposed to UCC principles in the Obligationenrecht course next year.
  • Contracts are concluded by offer and acceptance (i.e mutual assent is the basis of contract). Existence of both is judged on the objective theory , thus no need for court to determine subjective “meeting of the minds.” Express contract = mutual consent is clear from words spoken or written. “ Implied in Fact” contracts = existence depends in whole or part upon conduct. NOTE – Next week we will talk about use of objective test. This is important in determining whether there has been an offer AND acceptance. Today we are just discussing whether an offer has been made and when an offer can lapse. However, in the real world offer and acceptance are often discussed together using the Objective test.
  • BASIC MODEL One person called the offeror makes an offer to another person called the offeree to enter into K on specified terms. Offer creates power of acceptance in the offeree so that she can bring K into existence by signifiying acceptance. The offeree could reject the offer either by express words or inaction. The offeree can express interest by making a counteroffer , which effectively terminates the original offer.
  • Definitions of offer: Class Text – an offer is a manifestation of a present willingness to enter into a contract in the event of an unconditional acceptance being made. The offer must manifest BOTH an intent to be legally bound and contain definite terms. Certainty of Terms Crucial because a court must be able to enforce an that has been accepted. Examples: From text – where an offer to build a house has been accepted, but there are no plans and specifications for the house, there is no agreement. Certainty and Definiteness is met when the offer contains: subject matter quantity price
  • Manifested – must be communicated to the person to whom it is being addressed. Indicate desire to enter into K must specify performances to be exchanged & terms As creator, offeror has control of terms offer can prescribe manner and time for acceptance As the text states “there must be a certainty of terms: e.g. subject matter, quantity, price Directed at some person or group Must invite acceptance Finally, the offer must create the reasonable understanding that upon acceptance, a contract will arise without any further approval being required from the offeror. NOTE: this last requirement distinguishes an offer from a proposal. NOTE the objective standard This is the power of acceptance!
  • FLABBY LANGUAGE One cannot be sure who will win this last dispute. Need more context to clarify ambiguity of farm owner's letter. Court have used a variety of factors to distinguish an offer from a preliminary proposal (offer to treat).
  • Facts: "£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. £1000 is deposited with the Alliance Bank, Regent Street shewing our sincerity in the matter. "During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against the disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball. "One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, lOs., post free. The ball can be refilled at a cost of 5s. Address, Carbolic Smoke Ball. Company, 27, Princes Street, Hanover Square, London." The plaintiff, a lady, on the faith of this advertisement, bought on of the balls at a chemist's and used it as directed, three times a daily from November 20, 1891, to January 17, 1892, when she was attacked by influenza. What is the issue? whether ad was a promise to pay or mere “puff” What is the Rule? There is an express promise here, "expressed in language that is perfectly unmistakable" Rationale? 1000 pounds deposited speaks to their sincerity; Not too vague – any way you read it, plaintiff wins; Ads are binding if they offer a specific reward for a specific performance
  • Assign each case to group of THREE students!
  • Transcript

    • 1. American Private Law History, Sources, Views & An Introduction to Common Law Offers
    • 2. What is Private Law? <ul><li>Some argue it is common to organize Anglo-American law into private and public spheres. </li></ul><ul><ul><li>Within private law there is a division between property and obligations. </li></ul></ul><ul><ul><li>Within obligations there is a division between contract and tort. </li></ul></ul><ul><ul><li>Each subcategory generally has separate and distinct rules and theories. </li></ul></ul>
    • 3. What is Private Law? <ul><li>Some argue there is no pure “private law” in America. </li></ul><ul><ul><li>“The first thing for European lawyers to understand about American law is that the distinction between public and private law is in America seldom noticed.” </li></ul></ul><ul><ul><ul><ul><ul><ul><ul><li>Prof. Dr. Paul D. Carrington, Duke Law School </li></ul></ul></ul></ul></ul></ul></ul><ul><ul><li>These people generally believe there is a significant overlap between “public” and “private” law. </li></ul></ul>
    • 4. The Overlap <ul><li>This overlap includes idea of “private attorney generals” enforcing laws and regulating conduct. </li></ul><ul><li>This overlap grows out of: </li></ul><ul><ul><li>distrust of top-down regulation </li></ul></ul><ul><ul><ul><li>over-powerful legislature </li></ul></ul></ul><ul><ul><li>trust in judges to respond to specific cases </li></ul></ul><ul><ul><li>the role of the Constitution in traditional “private law” areas. </li></ul></ul>
    • 5. The Political Dimension <ul><li>Founders had aversion to strong legislature </li></ul><ul><ul><li>resulting in less regulation from above </li></ul></ul><ul><ul><li>leaving a significant regulatory role for private litigation. </li></ul></ul><ul><li>Distrust of legislature + trust of judiciary created tendency to accomplish by litigation what many countries accomplish by legislation. </li></ul><ul><ul><li>EXAMPLE – punitive damages </li></ul></ul><ul><ul><li>some see American tort law as regulatory system. </li></ul></ul>
    • 6. Systemic Dimension <ul><li>Judges are trusted not only to apply law but to create it! </li></ul><ul><ul><li>This is consistent with distrust of legislature </li></ul></ul><ul><li>In civil system, law is created by legislature with broad public good in mind, then applied to individual cases. </li></ul><ul><li>In common law system, rulings on individual cases can later become rules (law) that are applied for the public good. </li></ul>
    • 7. Constitutional Dimension <ul><li>Every civil case involves a constitutional question: jurisdiction. </li></ul><ul><ul><li>courts look to constitutional due process principles to determine whether a court has jurisdiction over the defendant. </li></ul></ul><ul><li>7 th Amendment right to a jury trial </li></ul><ul><ul><li>impacts rules of evidence </li></ul></ul><ul><ul><li>which impacts how evidence is gathered </li></ul></ul><ul><ul><li>which impacts the structure leading up to the trial (discovery). </li></ul></ul>
    • 8. The Key to a “Private” Regulatory System: Contingency Fees <ul><li>Allows lawyers to be compensated only if they are successful. </li></ul><ul><ul><li>General rule is lawyer takes 33% of any award or settlement. </li></ul></ul><ul><ul><li>Means that people without money to pay lawyer can still access courts. </li></ul></ul><ul><li>No loser pays aspect to this system. </li></ul>
    • 9. Punitive Damages as Regulation <ul><li>The Purpose: </li></ul><ul><ul><li>punishment </li></ul></ul><ul><ul><li>adequate compensation </li></ul></ul><ul><ul><li>deterrence of future similar uncivilized conduct and </li></ul></ul><ul><ul><li>reward to the plaintiff for carrying out an important function of a comprehensive judicial system. </li></ul></ul><ul><ul><ul><ul><ul><li>Entscheidungen des Bundesgerichtshofes (Zivilsachen) BGHZ 118, 312 (1993 (IX ZR 149/91 Civil Division) </li></ul></ul></ul></ul></ul><ul><li>Note – because of this, some scholars in the U.S. actually argue tort law is public law! </li></ul>
    • 10. Sources of Law <ul><li>Common Law (case law) </li></ul><ul><li>Statutory Law </li></ul><ul><ul><li>Contracts -&gt; U.C.C. </li></ul></ul><ul><ul><li>Torts -&gt; state and federal statutes </li></ul></ul><ul><ul><li>Property -&gt; state and federal statutes </li></ul></ul><ul><li>Regulations </li></ul><ul><li>Restatements </li></ul><ul><ul><li>aim is “to distill the &apos;black letter law&apos; from cases, to indicate a trend in common law.” </li></ul></ul>
    • 11. Contract Law An Introduction to Common Law Offers
    • 12. Essential Contract Elements <ul><li>An oral or written agreement </li></ul><ul><li>The involvement of two or more persons </li></ul><ul><li>An exchange relationship </li></ul><ul><li>At least one promise </li></ul><ul><li>Enforceability </li></ul>
    • 13. All About Communication <ul><li>Mutual Assent is basis of contract </li></ul><ul><li>K communication can be done with: </li></ul><ul><ul><li>words (express) </li></ul></ul><ul><ul><li>actions (implied) </li></ul></ul><ul><li>In perfect world person&apos;s intent is always understood by other party. </li></ul><ul><ul><li>we don&apos;t live in a perfect world </li></ul></ul>
    • 14. The Basic Model without revocation Contract formed on terms of offer No Contract K on terms of counteroffer No Contract and so on = rejection + new offer
    • 15. Definitions <ul><li>Offeror = person who makes the offer </li></ul><ul><li>Offeree = person to whom the offer is made </li></ul><ul><li>Power of Acceptance = offer is such that offeree can bring K into existence by simply accepting. </li></ul><ul><li>Rejection = offeree, expressly or through actions, does not accept the offer. </li></ul><ul><li>Counter-offer = offeree responds by making offer of her own. </li></ul>
    • 16. Nature of an Offer <ul><li>An offer is a manifestation of a present willingness to enter into a contract in the event of an unconditional acceptance being made. </li></ul><ul><li>The offer must manifest BOTH an intent to be legally bound and contain definite terms. </li></ul><ul><li>Let&apos;s break this down! </li></ul>
    • 17. Offer Must Contain <ul><li>Manifested – must be communicated to the person to whom it is being addressed. </li></ul><ul><li>Indicate desire to enter into K </li></ul><ul><li>Directed at some person or group </li></ul><ul><li>Must invite acceptance </li></ul><ul><li>Must contain power of acceptance </li></ul>
    • 18. Example <ul><li>Offer Requirements </li></ul><ul><li>Communicated? </li></ul><ul><li>Specify performances &amp; other terms? </li></ul><ul><li>Directed at someone? </li></ul><ul><li>Invite Acceptance? </li></ul><ul><li>K arise w/out further approval? </li></ul><ul><li>Property owner writes to prospective buyer: </li></ul><ul><li>I offer to sell my farm for $2 million cash. If you wish to buy this property you must deliver your written acceptance to me by midnight on Friday, November 11, 2005. </li></ul><ul><li>Is this an offer? </li></ul>
    • 19. Example <ul><li>Offer Requirements </li></ul><ul><li>Communicated? </li></ul><ul><li>Specify performances &amp; other terms? </li></ul><ul><li>Directed at someone? </li></ul><ul><li>Invite Acceptance? </li></ul><ul><li>K arise w/out further approval? </li></ul><ul><li>I wish to sell my farm and will consider an offer of not less than $2 million. I invite you to make an offer if you are interested in purchasing it. </li></ul><ul><li>Offer? </li></ul>
    • 20. Example <ul><li>Offer Requirements </li></ul><ul><li>Communicated? </li></ul><ul><li>Specify performances &amp; other terms? </li></ul><ul><li>Directed at someone? </li></ul><ul><li>Invite Acceptance? </li></ul><ul><li>K arise w/out further approval? </li></ul><ul><li>I am willing to sell my farm to you, but will not accept less than $2 million cash. Let me have your reply as soon as possible. </li></ul><ul><li>Offer? </li></ul>
    • 21. Carbolic Smoke Ball Case
    • 22. Next Week <ul><li>Read: </li></ul><ul><ul><li>Donovan v. RRL Corporation </li></ul></ul><ul><ul><li>Leonard v. Pepsico, Inc. </li></ul></ul><ul><ul><li>Hobbs v. Massasoit Whip Co. </li></ul></ul>

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