1. American Private Law History, Sources, Views & An Introduction to Common Law Offers

2. What is Private Law?

Some argue it is common to organize Anglo-American law into private and public spheres.

• Within private law there is a division between property and obligations.

• Within obligations there is a division between contract and tort.

• Each subcategory generally has separate and distinct rules and theories.

3. What is Private Law?

Some argue there is no pure private law in America.

• 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.

• • • • • • Prof. Dr. Paul D. Carrington, Duke Law School

• These people generally believe there is a significant overlap between public and private law.

4. The Overlap

This overlap includes idea of private attorney generals enforcing laws and regulating conduct.

This overlap grows out of:

• distrust of top-down regulation

• • over-powerful legislature

• trust in judges to respond to specific cases

• the role of the Constitution in traditional private law areas.

5. The Political Dimension

Founders had aversion to strong legislature

• resulting in less regulation from above

• leaving a significant regulatory role for private litigation.

Distrust of legislature + trust of judiciary created tendency to accomplish by litigation what many countries accomplish by legislation.

• EXAMPLE punitive damages

• some see American tort law as regulatory system.

6. Systemic Dimension

Judges are trusted not only to apply law but to create it!

• This is consistent with distrust of legislature

In civil system, law is created by legislature with broad public good in mind, then applied to individual cases.

In common law system, rulings on individual cases can later become rules (law) that are applied for the public good.

7. Constitutional Dimension

Every civil case involves a constitutional question: jurisdiction.

• courts look to constitutional due process principles to determine whether a court has jurisdiction over the defendant.

7 thAmendment right to a jury trial

• impacts rules of evidence

• which impacts how evidence is gathered

• which impacts the structure leading up to the trial (discovery).

8. The Key to a Private Regulatory System: Contingency Fees

Allows lawyers to be compensated only if they are successful.

• General rule is lawyer takes 33% of any award or settlement.

• Means that people without money to pay lawyer can still access courts.

No loser pays aspect to this system.

9. Punitive Damages as Regulation

The Purpose:

• 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.

• • • • Entscheidungen des Bundesgerichtshofes (Zivilsachen) BGHZ 118, 312 (1993 (IX ZR 149/91 Civil Division)

Note because of this, some scholars in the U.S. actually argue tort law is public law!

10. Sources of Law

Common Law (case law)

Statutory Law

• Contracts -> U.C.C.

• Torts -> state and federal statutes

• Property -> state and federal statutes

Regulations

Restatements

• aim is to distill the 'black letter law' from cases, to indicate a trend in common law.

11. Contract Law An Introduction to Common Law Offers 12. Essential Contract Elements

An oral or written agreement

The involvement of two or more persons

An exchange relationship

At least one promise

Enforceability

13. All About Communication

Mutual Assent is basis of contract

K communication can be done with:

• words (express)

• actions (implied)

In perfect world person's intent is always understood by other party.

• we don't live in a perfect world

14. The Basic Model without revocation Contract formed on terms of offer No Contract K on terms of counteroffer NoContract and so on = rejection + new offer 15. Definitions

Offeror= person who makes the offer

Offeree= person to whom the offer is made

Power of Acceptance= offer is such that offeree can bring K into existence by simply accepting.

Rejection= offeree, expressly or through actions, does not accept the offer.

Counter-offer= offeree responds by making offer of her own.

16. Nature of an Offer

Anofferis 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.

Let's break this down!

17. Offer Must Contain

Manifested must becommunicatedto the person to whom it is being addressed.

Indicate desire to enter into K

Directed at some person or group

Must invite acceptance

Must containpower of acceptance

18. Example

Offer Requirements

Communicated?

Specify performances & other terms?

Directed at someone?

Invite Acceptance?

K arise w/out further approval?

Property owner writes to prospective buyer:

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.

Is this an offer?

19. Example

Offer Requirements

Communicated?

Specify performances & other terms?

Directed at someone?

Invite Acceptance?

K arise w/out further approval?

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.

Offer?

20. Example

Offer Requirements

Communicated?

Specify performances & other terms?

Directed at someone?

Invite Acceptance?

K arise w/out further approval?

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.

Offer?

21. Carbolic Smoke Ball Case 22. Next Week

Read:

• Donovan v. RRL Corporation

• Leonard v. Pepsico, Inc.

• Hobbs v. Massasoit Whip Co.