contracts: march 4 2010 class notes

recap.
express warranty.
can be against public policy.
implied warranty (repairs made to the roof and the lessor did not authorize them; lessor couldn't know if hte lessee's negligence created the disrepair or choose what updates they wanted to make. lessee forfeits right to reimbursement of repair because of the court's reading of an implied warranty)
clark v. west: author, publisher will pay him $2 a page or $6 a page if he doesn't drink. publishers see the early work, approve and tell him not to worry about the drinking. west then won't pay for the book. clark argues successfully that west waived its rights to the drinking clause. it's possible to be entitled to a condition and yet waive the obligations set forth in the condition. it was an oral waiver -- was parole evidence an issue? no: this was not about figuring out the meaning of the bargain or agreement, it was instead about a modification of waiver after the creation.

in exchange of the waiver of condition, does there need to be fresh consideration?

ferguson takeaway: you can have pretty rock hard language and still there are creative ways to pick holes into it. there are some things however that are pretty immutable. this case would have been better resolved as a tort case (SPL) but the problem at the time was one of privity.

performance and constructive conditions of exchange. 
when does the breach of one condition generate an excuse to not perform on the other side?
in other words, when are conditions in/dependent?
when does one party's performance depend on another performance?


kingston v. preston

at what point did the property exchange hands, when the buyer finished his duties of making payments or when the arrangement was reached?
security: giving the security was a condition that had to be fulfilled first. the transfer of the business was contingent on the security being met. if/since it was not, then the seller's ability to transfer the business is excused because the preceeding requirements are not met. there is a sequence due to the nature of hte business relationship: the seller won't transfer without the security, otherwise the security agreement would have no meaning.

palmer v. fox
sale of land where there's a down payment and then monthly payments over a few years, and then a balance is left of $700-ish dollars. the seller's assignee sues for the balance.
the defense is that the assignees failed to make required improvements, which justifies non-payment of the balance.
however, the contract did not say *when* the improvements had to be made. though it *did* specify when the payments had to be made.
doesn't a delay deprive the buyer of value of the use as the seller delays repairs? why didn't the buyer specify a timeline for repairs? why do we construe this ambiguity against the seller in their having to make the improvements? 
fairness.
the plaintiff wants the money even though it hasn't made the repairs. however, the plaintiff didn't make any improvements.
the plaintiff has breached a condition and the obligation to pay was dependent on the condition to improve.
does the court agree with the defendant? how does the case turn out?
do all breaches of dependent conditions automatically excuse performance?
no only MATERIAL BREACH
what makes something material instead of immaterial?

jacob v. kent... exercise of perfect tender
why should it matter if the breach is in good faith instead of willful?

o.w. grun v. cope
can be argued different ways. you can argue that color is different than pipes. that color is material or immaterial to the usability of the product.

property law: march 4 2010 class notes.

partition.

partition in kind (actual partition): below notes are from warda&yanano llp 

partition in kind is essentially a court-order to divide the property, instead of outright selling it and dividing proceeds.  This is favored by courts when possible because, unlike partitions by sale, the property will stay with one or more of its current owners who may want to keep it.

There is a big decision handed down many years ago involving two branches of a farming family in the southern San Joaquin Valley, where 4,700 acres of land (and water rights to a water ditch) were involved, and the two sides of the family just didn’t get along.  The land was known as the Ward Ranch.

One side sought the partition by sale.  The other side wanted it divided.  The appellate court upheld a lower court’s ruling that the property could be divided in-kind, meaning divided among the family members.  When possible,  this will be the direction of every court.  But it has to pass the fairness test, meaning this route would be fair and equitable for all parties.

delfino v. vealencis


sharing the benefits and burdens of co-ownership: when there is a need for independent property rules to determine how the benefits/ burdens are to be shared... 

** who gets to make the call that the portion mrs. vealencis would make on the sale is worth the loss of her property? -- mrs. vealencis does!! 
** what law supports this? what laws apply to these partition actions? how do we protect the subject value of the land in addition to any objective measures? 
(1) free & clear share of the land in FSA: the tenant in common who doesn't want to sell can determine if they want to sell or not (proportional share of either property or the proceeds)
(2) would the owners' interests be better served by the sale? how do we understand/quantify the owners' interests?
(3) can the property be portioned off fairly?
(4) does it effect the economic health and the marketability of the property to proportion it out?

the court's holding illustrates that the best way of allocating resources (unless there's a really good reason to the contrary) is to let the market work out the subjective and objective interests. but in tenancy in common, the court will respect each party's subjective and objective intentions and desires to the extent that they don't infringe on the other party's rights

partition by allottment:

partition by sale (licitation, or succession):

spiller v. mackereth

how do you avoid ouster? 
composite activities test:


when a cotenant is in exclusive possssion of the concurrently owned property, the majority holds that unles theer has been an ouster, the cotenant in possession does not have to pay a proportionate share of the rental value to the cotenants out of possession. 
what constitutes an ouster? 


fiduciary duties: generally, cotenants are not fiduciaries with respect to each other and each tenant is expected to look after his/her own interests. but a fiduciary duty is imposed when (1) one cotenant buys in concurrently owned property at a mortgage forclosure, thus having a superior position and (2) where there's a possibility of adverse possession against the other cotenants, the actor may only do so if his position is so unequivocal and notorious as to put his cotenants on actual notice of a hostile claim. 

swartzbaugh v. sampson
at trial court, the judgment went for sampson against mrs. swartzbaugh.
how is it determined if mrs. swartzbaugh is entitled to the execution of the lease cancellation? 

each joint tenant has the right to use and possess the whole. either cannot do so to the exclusion of the other, however. 

this problem is similar to delfino: one holder of a concurrent interest wants to use the land one way, and the other objects. how is the dispute resolved?

what rights does sampson, the lessee, get in effect through swartzbaugh?  
compare this case to riddle and sprague.
in riddle, the written instrument did sever the joint tenancy. 
in sprague, the mortgage will sever the joint tenancy if it is considered under the title theory, but not if it's considered under the lien theory. 

now, with a lease of the joint tenant -- does it destroy the unities or not?  
sampson has possession and use of the whole equal to mr. swartzbaugh's. mrs' can't get rid of her, but she does have some remedies... 
ouster! mrs. s may go to enter and possess the property! 

how may she establish that? 
she can physically go to the ring.... tough luck in her elderly, feeble position. 
she can appoint someone else to go do it! 
she can give someone else permission to use the land, and when sampson interferes with their use, it would be ouster. 
an accounting: 
a contribution: 
repairments and improvements: