Contracts and Torts

Contracts and Torts

TQ 1.1

In a unilateral contract, one party expressly promises or undertakes to carry out an activity without first receiving a similar agreement from the other party. The offeror makes a promise that is to be exchanged with an act performed by a different part, referred to as the offeree. The tender is under the obligation of the law to fulfil the contract if the other party carries out the tender’s promise. A bilateral contract on the other requires both parties to make promises. The legal detriment suffered by the offeror involves a different promise by the offeror to either perform or not perform an activity that the offeror was formerly not under any legal obligation to perform or not perform (Pagallo 11).

Contracts “implied in law” are agreements in which the terms of the contract are stated by either orally or in writing by the concerned parties. The intentions of the parties must be reflected in the contract. On the other hand, contracts “implied in fact” are conditioned by the facts and the situations of the case or the behaviours of the parties involved. According to the law, there is no difference between the contracts created by words or by conduct (Rock, Nora, Olivo, and Fitzgerald 21).

TQ 1.2

Article 2 of the Uniform Commercial Code deals with the sale of goods. A majority of the provisions of the UCC have no effect on the basic contract law while those that do are provided in Article 2. The code has progressively been used by courts for assistance in several cases other than those relating to the sale of goods. The code is legally binding in only 49 states that have adopted it. The comments to the Uniform Commercial Code are not legally binding since they are yet to be enacted by the legislatures. The comments are considered valuable as the courts have repeatedly relied on them in finding solutions to cases. In case there is a conflict between the UCC and the comments, the UCC has to prevail (Corbin 121).

TQ 1.3

Several factors regarding the case supported the plaintiff’s assertion that the contract was unconscionable, a decision that was similarly upheld by the court. The appellee was conscious of the appellant’s financial standing, according to the records. Before the last purchase, the appellant had decreased her account balance to $164. The balance due to then increased to $678 following the last purchase she made of a stereo radio. The backside of the stereo contract had information regarding the appellant’s occupation and monthly remuneration, which was $218, received from the government on a monthly basis. Despite the appellee’s awareness that the appellant handled feeding, clothing, and supporting herself as well as her seven children with the stipend, he still sold her the stereo. The court noted the conduct of the appellee raised adverse concerns on sharp practice and reckless business practices (Williams v. Walker-Thomas Furniture Company 78).

TQ 1.4

California law provides that a contract is procedurally unconscionable in cases involving oppression or surprise. A contract cannot be declared unconscionable on the grounds of adhesion only. Furthermore, there are elements of oppression in the Agreement. MHN has a better bargaining position compared to the separate MFL Consultants as the agreement was drafted by the lawyers from MHN and it is quite a cultured business establishment. On the other hand, employees generally do not seek the services of lawyers while reviewing their contracts. There is a significant level of unconscionability in arbitration provision if it is very “harsh” or generates results to only one side of the agreement. Secondly, there was an insufficiency in the six-month limitation for plaintiffs to reveal the violations that FLSA allegedly committed, as it is dependent on the treatment of MFL Consultants over time. It is for these two factors that the court found that the provision was unconscionable regarding the laws of California (American Law Reports 87).

Given the above reasons, the court made the judgement that the arbitration agreement that had been voluntarily signed by the appellant on her admission and not as a necessary condition for admission, cannot be considered as being procedurally unconscionable basically because of the appellant’s anger. The court reversed the judgement of the lower while reinstating that of the trial court on the basis that an arbitration agreement willingly entered into by the appellant and not as a requirement for admission that relinquishes the right to trial and the right to pursue disciplinary damages and attorney charges is not substantively unconscionable. Under the same conditions, the judge who decided the Zabrowski case would have similarly upheld the arbitration agreement in the Oakridge Home case.

TQ 1.5

The district court acknowledged that the issue of deliberation was of a procedural variety because of the Illiterate Appellee’s agreement was an attack on the formation of the agreement to arbitrate and not the material of the agreement itself. Evidence for procedural unconscionability was proved by the lack of knowledge, absence of voluntariness, inconspicuous print, the application of complicated legalistic language, differences in the levels of sophistication or the parties’ bargaining power and the absence of the chance to study the contract and consult on its terms. The student agrees with the court’s ruling, as the reasons provided are quite solid and procedural (Zaborowski v. MHN Government Services 63).