Baruch College Fall 21Practice Essayswith Answers PDF

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BARUCH COLLEGE ZICKLIN SCHOOL OF BUSINESS LAW 1101 PRACTICE ESSAYS.. SET OF 2PROF GARNICA Alan is a fruit wholesaler located in Mineola, Long Island and Ben is a fruit retailer located in the same town. On September 3, 2021, Alan offers to sell Ben the following: 1,000 apples, 1, bananas, 1,000 pear...

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BARUCH COLLEGE ZICKLIN SCHOOL OF BUSINESS PROF GARNICA

LAW 1101

PRACTICE ESSAYS…FIRST SET OF 2

1. Alan is a fruit wholesaler located in Mineola, Long Island and Ben is a fruit retailer located in the same town. On September 3, 2021, Alan offers to sell Ben the following: 1,000 apples, 1,000 bananas, 1,000 pears, and 1,000 oranges at an agreed price. Alan also offers to train Ben’s employees on how to clean fruit so it does not spoil so quickly for a separate price. Alan includes the provision that no changes will be accepted on the oranges and acceptance of the pears will only be valid when received. Please briefly discuss each of the following with reasons for your answers:

a) Suppose that Alan’s offer includes the promise to hold all of these items and training open until December 10, 2021 but, when Ben accepts the items and training on December 6, Alan says that he has already sold everything, including the training, to Carl, another fruit retailer. Does Ben have an legal claim for anything? Why or why not and why?

B does not have a claim for the fruit but might have a claim for the training Under the UCC, a firm offer is an offer, made by a merchant, involving goods, which promises to be held open for a certain period of time. Such an offer can only be held for a maximum of 3 months but can be for less than that. Anything beyond that is not enforceable. However, is a merchant’s offer is for services, or an offer for goods is made by a non-merchant, it is considered a GOL firm offer and not a UCC firm offer and that offer can be made for a reasonable time which could be more than 3 months. In this case, A is a merchant promising to hold an offer for goods ( UCC) and training ( services so GOL) open for a period over 3 months. The goods part ( fruit is invalid beyond 12/3 but the training part is reasonable over 12/3 so B can only perhaps enforce the training offer part.

b) Suppose instead that Ben accepts 900 apples but Alan never responds so Ben sues Alan for breach of contract. Who wins and why? A will win because B’s acceptance was over 5% different from the original offer Under our class rules and our acceptance changes flowchart ( see slide) we agreed that any change over 5% would be too much and therefore invalid. In this case, the change is 10% ( 100 off from 1,000 = 10%) and therefore too much and invalid.

c) Suppose instead that Ben accepts 998 oranges but Alan never responds so Ben sues Alan for breach of contract. Who wins and why? A will win because A clearly stated that no changes would be accepted on the oranges.

Under the UCC the offeror ( here A) can state that no changes will be accepted from the start so any changes will be invalid. Here A, the offeror stated no changes on the oranges so even though B only changed the amount by 2 that is an invalid change and therefore invalid. d) Suppose that Ben accepts everything on November 25th and that acceptance reaches Alan on December 5th but Alan refuses to provide anything so Ben sues Alan for breach of contract. Who wins and why? B wins on everything except the pears because the acceptance on the pears was only good when received and that acceptance was after the 3 month December 3 deadline. Acceptance on everything else was good as soon as sent via the deposited acceptance rule since those things were sent on time. Under the UCC, if the offeror limits acceptance validity to when received then even if the acceptance was sent on time it will be late if received after the deadline. Otherwise, things will be on time if sent before the deadline. Here, everything was sent before the deadline but the pear acceptance was only good when received and it was received late so that acceptance was invalid.

2.

Suppose, in the example above, that the parties forgot to include the prices of the apples, bananas, or pears. A. B will win and the bananas price will be 50 cents a banana because of course of dealing. B. B is wrong since usage of trade will set the pears price for 60 cents per pear. C. Apples should be priced at 80 cents each under course of performance a) Now suppose that Alan and Ben have dealt with bananas for the past three years with Alan selling Ben bananas for 50 cents a banana, so Ben wants that price this year, but Alan argues that he wants a 20% increase in the price for bananas. Who wins and why?

b) Suppose that Alan and Ben have never dealt with pears before, and the price of that kind of pears in this state is 60 cents per pear, but Ben argues that since no price for pears was included, there is no way to save the pear transaction. Is that true? Why or why not? c) Suppose that the last page of the agreement states that the price of apples shall be 10 cents more than last year, which was 70 cents per apple. However, the parties have dealt with apples for the past ten years and the average price of apples for those 10 years is 90 cents per apple. Should the apples be priced at 90 cents each, 70 cents each, or 80 cents each and why? Under the UCC, if a term is missing, we must use anything the contract says ( course of performance), then past history ( course of dealing) and, if these two do not solve the problem, we finally use usage of trade. Here, course of performance will solve the apples issue even though past history has a different

price because course of performance always wins over course of dealing so, since the contract says 10 cents more than last year’s 70 cents, then we will use 80 cents for the apples. Since the contract does not mention banana price, we have to go to the next option which is usage of trade or past history and that tells us bananas should be 50 cents each. Usage of trade will solve the pears price because there is no course of performance on the pears ( contract does not mention anything to help us figure out the pears price) and there is no past history ( course of dealing) so we have to use the final option which is usage of trade.

3. Dan is a wholesaler of mini-pines located in Brooklyn and Ed is a chef. Dan and Ed agree over the phone that Dan will sell Ed 10 mini-pines. Please discuss each of the following with reasons for your answers: A) In defense of D: E did not properly identify, so D could pick any pines from that group. In defense of E: D did not use good faith and ethics in giving E the worst pines B) E only has a case for fraud as to the state, because the difference between Michigan pines and Ohio pines is material and relevant, but E has no fraud claim as to the day bought or lucky days, because that is trivial and meaningless and so not material. C) Under the Merchant Memo Rule, E waited over 10 business days to object to the note and therefore the note is now the contract and E is stuck with it.

a)

Suppose that Ed goes to Dan’s warehouse and points at 30 mini-pines saying “ I want 10 of those”. After Ed leaves, Dan picks the three worst looking pines and sends them to Ed, who becomes angry when he sees the ugly pines and demands his money back. Pretend you are Dan’s lawyer and argue in defense of Dan and then pretend you are Ed’s lawyer and argue in defense of Ed.

b) Suppose that Dan tells Ed that all of his pines are from Michigan, which is known as having the best pines in the country, and that he chose these pines on a Friday, which has always been Dan’s lucky day. Now suppose that Ed discovers that the pines were actually bought from Ohio, which is know as having average quality pines, and that Dan bought the pines on a Tuesday. Ed wants to sue Dan for both of these lies. Does he have a case for each? Why or why not? c) Suppose that Dan sends Ed a note stating “This is to confirm your purchase of 10 mini-pines at $ 40 a pine.” Three weeks later, Ed objects to the price of the pines and the number, providing clear evidence that both are wrong. Dan argues that Ed is too late in objecting to Dan’s note. Which party will win in court and why?

4. Ken agrees to sell Young 800 pounds of cement and install that cement in Young’s driveway all for $ 5,000. Please discuss each of the following with reasons for your answers.

A) Under the predominant factor test, this contract is mainly goods ( UCC) since without cement there is no cement to install so we will use UCC law B) Y’s efforts will fail because he cannot use specific performance to force K to perform since specific performance cannot be used for a service since that is slavery and invalid C) Under Anticipatory Breach, Y can 1) sue when due 2) sue now 3) try to settle and discuss D) Under mitigation of damages and mitigation damages, Y can sue K for the extra $ 2,000 he had to spend getting W to do the job K was supposed to do

a) Suppose that there is a dispute as to which type of law ( UCC or GOL) should apply to and govern this situation so the parties ask you to comment. How would you respond and why?

b) Suppose that Ken supplies Young with the cement but refuses to install it as agreed, so Young seeks a court order demanding that Ken install the cement. Will Young’s efforts succeed? Why or why not? c) Suppose that Ken informs Young that he, Ken, will not be doing the job as agreed. What are Young’s rights in such a situation and why? d) Suppose that Ken instead refuses to do the job and Young is forced to have Walter, another cement contractor, do the same job for $ 2,000 more. What are Young’s rights and why?

5. Paul, owner of Paul’s Burritos, a small store in Arizona, creates the following logo for his store When Domino’s Pizza sues Paul for trademark infringement, arguing that Paul is using their logo without consent, Paul argues that he never heard of Domino’s, therefore has never seen their logo, and that his logo is different than theirs because it is rotated in a different way. As the lawyer for Domino’s, how do you respond to Paul’s defensive claims and why? P’s defense claims will all fail. Under federal intellectual privacy law, a trademark logo has the right to be protected even where the one violating it was ignorant of it or the logo is slightly different. Here, P’s claims of ignorance have no effect and even though the logo is a bit different, it is close enough that people might confuse it with the Domino’s logo.

6. Ken is involved in a traffic accident resulting in his being awarded $ 80,000 damages. A jury finds that Ken was 40% responsible for his harm. According to our class discussion, how much will Ken end up getting from that award and why?

K will get $ 48,000. Under Comparative Negligence, K’s award will be reduced to his percent of no fault. Since he was 40% at fault, that means he is 60% not at fault so he will get 60% of $ 80,000 which is $ 48,000. 7. Ronald is harmed by pollution from a river near his home. A court determines that one of five companies, A,B,C, D, or E, is responsible for Ronald’s harm, but is unable at this time to determine which one. Suppose that the companies have the following share in the market of the chemical involved. A….20% B….10%.... C…..20% D…..10% E…40% Please answer the following questions showing all work; A) How much will Company C have to pay and why? B) How much more will Company E pay than Company B and why? A) Company C will have to pay 20% of whatever R is awarded under Market Share Liability. Under Market Share Liability, each company will pay the percent of its market share from whatever award the victim is given by the court and jury. Suppose R is awarded $ 60,000 so C would be 20% of $ 60,000 which is .2 x $ 60,000 which is $ 12,000 B) Company E will pay 4 times more than whatever B pays because E has 4 times the market share than B has. In the example above where R is awarded $ 60,000 damages, B would pay 10% of that $ 60,000 which is $ 6,000 so E would have to pay four times that which is $24,000. 8. David employs Greg, Henry, and Irving in his jewelry store. One day, David meets Greg, Henry, and Irving in the park and informs them that he, David, intends to pay them each $ 500 for being so honest in handling the store jewelry for 10 years. Please discuss each of the following with reasons

A) The court is wrong in awarding G the $ 500 because this was an oral promise based on preexisting duty and therefore bad consideration B) H will not succeed in that demand because under the special NY rules that note is not clear so unenforceable. C) I will not succeed because this was an unliquidated promise which he cancelled by depositing the check. a) Suppose that David never pays Greg anything so Greg sues David for the $ 500 and a court agrees with Greg, ordering that David pay the $ 500. Based on these facts, is the court correct in its ruling? Why or why not?

b)

Suppose instead that David sends Henry a signed note reading “ I promise to pay you twice what I promised the others in the park because you are the most loyal of all.” Henry wants to demand $ 1,000 but asks you if he can succeed in that demand. What do you tell him and why?

c) Suppose instead that David sends Irving a check for $ 300 marked “ In recognition of your loyalty and honesty for 10 years.” Irving deposits the check and seeks the remaining $ 200 promised by David. Will Irving succeed? Why or why not?

9. Tom is the proud owner of two silver eagle statues, each worth $ 1,800, which he shows everyone who visits his home. One day, Tom takes one of the statues to Silver Clean, a silver and gold polishing service, to have that statue cleaned and polished. That night, however, John, a frequent visitor to Tom’s home and one of his two employees, carries the other statue to his car without Tom’s knowledge and takes it to Silver Clean, intending to clean it before Tom orders him to do so the next day as Tom usually does. Tom usually has John or Wallace , his other employee, take his statues for cleaning but, this month, Tom had decided to take one of the statues for cleaning himself as described above. The next day, Tom orders John to take the statue for cleaning but becomes upset when John informs him that he has already taken it for cleaning the day before. Tom argues that he does not like it when employees do things without his approval or request. Tom goes to Silver Clean but discovers that Vince, the owner of Silver Clean, has sold both statues for $ 4,000 to Cindy, who thinks that Vince owned the statues. Please discuss each of the following with reasons:

A) Enraged, Tom demands that Cindy return both statues. Result and reasons? rights, if any, does Tom have against Vince? Why ?

B) What

A) T cannot get either statue back from C due to the Entrustment Rule B) T can seek the value of the statues from V according to the Entrustment Rule According to the UCC, the Entrustment Rule states that where a party willingly or apparently takes an item to be cleaned or fixed etc he or she gives good title to the cleaner/fixer such that if that person should sell the item, the innocent third party buyer of that item will have good title and can keep the item. The original owner who took the item would then only have the resort of getting the value of the lost items from the business that sold them without permission. Where an item is stolen, however, good title is never passed along so the original owner can seek and gain return of the item stolen from him/her . Here, T clearly took one of the statues willingly to V so he loses that item to C via the Entrustment Rule as noted above. However, even though T never actually ordered or authorized J to take the other item, there appears to be a history of J acting as T’s agent and doing that sometimes so in this case that apparent authority will be enough to be as if T had taken it himself. After all, the item that J took was never stolen by J. Therefore, T loses both items to innocent buyer C and can only seek the value of the items from V ( B)

10. Ben, an author, agrees in writing to allow Mason, a college professor, the right to copy the first five chapters of Ben’s new book on buying psychology for use in one of Mason’s lectures. Please discuss each of the following with reasons.

a) Suppose that Ben wants to present his notes of a phone call into evidence to argue that he only gave permission for Mason to copy 5 pages of that 800 page book. Mason denies such a call and asks you to argue his case in court. What will you argue in court and why? One could perhaps argue Parol Evidence Rule violation and hope. According to the Parol Evidence Rule, one cannot submit oral testimony or personal testimony simply to contradict a written contract. However, such evidence could be allowed to clarify that contract. As M’s lawyer, one could argue that B’s notes are not credible since B could have made them later and that the notes contradict the written agreement. I would then hope that the court does not decide that the notes could clear things up.

b) Suppose that Mason does, in fact, copy 5 pages of the book for use in his lecture, so Ben sues Mason for copyright violation. What will be the result of this lawsuit and why?

B will lose this lawsuit due to the Fair Use Doctrine. According to Federal Copyright law, the Fair Use Doctrine allows teachers to copy small parts of works for use in lectures and teaching. Here, M copied less than 1% of the book for teaching, so by the Fair Use Doctrine M is allowed to do that so B will lose his claim against M.

c) Finally, suppose that Ben dies in 2021 and, in 2071, Mason, still teaching, copies most of the book for use in his lectures. What rights, if any, does Ben’s family have against Mason and why?

B’ s family can sue and win against M in Federal Court for Federal Copyright Violation. According to Federal Copyright Law, a book copyright lasts the life of the author plus 70 more years. Here, B died in 2021 which means that his book is protected until 2091, so M violated that protection because only 50 years have passed since B’s death....