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Conflict and distributive bargaining
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a) Adequacy of Consideration
a) It is an elementary and oft quoted principle that the law will not inquire into the adequacy of consideration as long as the consideration is otherwise valid or sufficient to support a promise.
i) § 7:21.Adequacy of consideration, 3 Williston on Contracts § 7:21 (4th ed.)
b) Unconscionability
a) "A contract may be unenforceable due to unequal bargaining power if the party challenging the contract . . . was denied the opportunity to seek legal advice prior to entering into the agreement; or if the contract is somehow unconscionable."
i) § 71:43.Disproportionate exchange of value; Disproportionate bargaining power, 28 Williston on Contracts § 71:43 (4th ed.)
b) At a minimum, an unconscionability claim requires proof that a contract “was both procedurally
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A party alleging procedural unconscionability should allege information concerning her education, financial status, access to counsel in connection with the negotiation and execution of the agreement and her ability to obtain the bargained for performance elsewhere. A court may take into account disparities between the education and experience of the parties. Examples of procedural unconscionability include, but are not limited to: . . . an imbalance in the acumen and understanding of the parties.
i) § 6:27.Elements of unconscionability—Procedural unconscionability, 28 N.Y. Prac., Contract Law § 6:27
c) A contract may be unenforceable due to unequal bargaining power . . . if it was denied the opportunity to seek legal advice prior to entering into the agreement; or if the contract is somehow unconscionable.
i) Outek Caribbean Distributors, Inc. v. Echo, Inc., 206 F. Supp. 2d 263, 268 (D.P.R. 2002)
d) Substantive
law is adequate” ( 41). If the government seems to think the laws are adequate on a
The article "When is a contract legally enforceable?", helped me understand legally enforceable because it talks about the elements of a contract which are "offer and acceptance, legal consideration, capacity to create a
It is not the case that it is all right for someone to be absolutely certain that something is so providing only that no overriding (consideration or) considerations make it all right. (242).
In this case study, Laura and Danny have had significant changes in their lives. Laura has now left with the children and planning on moving with them to El Paso, Texas in a month. She has also filed for divorce from Danny. While Laura is making positive improvements to her life she is still concerned for Danny. She goes to collect what’s left of her belongings when she finds Danny in a state of panic. Danny has let himself go at this point. He started consuming alcohol, has not found a job, and is living with no electricity. Kid decides to pay Danny and Laura a visit and he quickly realizes Danny is in trouble. Danny begs for Kid’s assistance in order to help him start a new life. Danny is worried that he will end up alone and homeless
Distributive bargaining is a very important negotiation skill. Used as the core of the core of an negotiation, distributive bargaining is defined as, “a negotiation method in which two parties strive to divide a fixed pool of resources, often money, each party trying to maximize its share of the distribution” (Michael R. Carrell, 2008). Within the distributive bargaining process, the two parties involved have to negotiate over a set of assets in which one person looses and the other gains. This is why Distributive bargaining is also called Zero-sum. Carroll explains that distributive bargaining is called a zero-sum process because one party looses whatever amount is gained by the other” (Michael R. Carrell, 2008).
...aw in the US and Australia where the doctrine can be used to found a cause of action to remedy the non-performance of a promise unsupported by consideration. In the UK however, it is a means where contractual rights may be suspended, but not by which new rights can be formed. In the US, where the doctrine can be used as a cause of action and has been used in multiple cases, commentators have claimed that the doctrine is a ‘flexible means of achieving fairness’ and ‘cannot be reduced to a precise formula or series of tests’ .
The Pacific Oil Company was formed in 1902 and had been the leader in the manufacturing of a petroleum product Vinyl Chloride Monomer (VCM). This product was Pacific Oil's major product line and was the main component to the manufacturing of plastics, used in many products. In 1979, Pacific Oil had landed a major contract with reliant and had over the years establish a great working partnership. The Reliant Corporation was one of Pacific’s largest and most valued customers and Pacific Oil Company wanted to renegotiate their current contract with the Reliant Corporation, with the goal of extending before it expired. Pacific’s negotiation team, Jean Fontaine, Marketing Vice President for Europe with Paul Gaudin, Marketing Manager of VCM along with representatives Frederick Hauptmann, Senior Purchasing Manager and Egon Zinnser, Regional VP for European operation from The Reliant Corporation, where to spend nearly two year working through the extension of the contract. In the end, the contract settlement was down to a final item that Pacific was not happy about, that may my then loose the extension altogether.
Gillett v. Holt The doctrine of proprietary estoppel is an equitable intervention in cases where the enforcement of legal rights is considered by the courts to be unconscionably unfair. The essence of the doctrine arises, as defined by Snell: '[when] one (A) is encouraged to act to his detriment by the representations or encouragement of another (O) so that it would be unconscionable for O to insist on his strict legal rights.' (McGhee, 2000, p.637) In the absence of a written agreement, estoppel acts as an evidentiary tool with which the courts can help ensure fair interaction in property dealings. Proprietary estoppel is a method by which informal arrangements are recognized as being capable of creating proprietary interests.
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
The basic law of a contract is an agreement between two parties or more, to deliver a service or a product. And reach a consensus about the terms and conditions that is enforced by law and a contract can be only valid if it is lawful other than that there can’t be a contract. For a contract to exist the parties must have serious intentions, agreement, contractual capacity meaning a party must be able to carry a responsibility, lawful, possibility of performance and formalities. Any duress, false statements, undue influence or unconscionable dealings could make a contract unlawful and voidable.
This case mentioned below is a fine example of understanding the Law of Contract in a better manner. (Gerald, 2014).
The journey of my decision analysis learning process has been a roller coaster ride. While I enjoyed reading, understanding and learning about the various methodology and aspects of decision analysis, I also find myself stressed, frustrated and ready to give up. For me, the concept about what is decision analysis, the utility of decision analysis, and the topics on decision bias, ethics, complexity and controversy of decision analysis make sense to me as I understood what they are and how they can impact a decision making process. Quantitatively, while I enjoy experimenting and learning the R, Rattle and Excel Decision Tree Plan, statistically, I am frustrated as I am unable to come up with the correct answers when it comes to the quantitative models and calculations such as the probability matrices, binomials, conditional probability, and Markov modeling. Learning the functionalities and seeing an outcome from the R software and knowing what an excel can do to a set of data is intriguing yet exciting to me,
In the case of one party promising to give another party £50, it is merely seen as a gift, therefore this is considered unenforceable as a simple contract. This may be justifiable as there is nothing which clearly illustrates that, it is a necessity for a party to give something, in order for them to be able to enforce a promise. This is also known as the “quid pro quo,” it has been similarly illustrated in; Dunlop v Selfridge [1915] AC 847 (HL).
Making decisions is an important part of our everyday life. Decisions define actions and lead to the achievement of goals. However, these depend on the effectiveness of the decision-making process. An effective decision is free from biases, uncertainties, and is deeply dependent on information and critical thinking. Poor decisions lead to the inability to achieve set objectives and could lead to losses, if finance is a factor. Therefore, it is important to contemplate about quality and ways to achieve it in decision-making, which is the focus of this paper. The purpose is to look into the needs of decision-making, including what one should do and what one should not do.