brief 2 cases

Hello,

I have two cases to brief (13-3 & 14-4) I will attach them.

Also I will include an example of the previous case, and what it should be like.

Thank you

BRIEF: Lefkowitz v. Great Minneapolis Surplus Store – Case 10-2
ISSUE: Did the Great Minneapolis Surplus Store advertisement constitute a valid
offer, and if so, did the plaintiff’s actions show an acceptance?
FACTS: On two separate Saturdays following the publication of ads for a store, a
man went to the store and presented himself at the appropriate counter to buy a coat
and stole that were advertised. He indicated his readiness to pay the sale price of $ 1.
On both occasions, the store refused to sell the merchandise to the man, stating on the
first occasion that by a “house rule” the offer was intended for women only and sales
would not be made to men, and on the second visit that the knew the store’s house
rules. Damages were awarded to the man for breach of contract. The case was
appealed to the Supreme Court of Minnesota.
RULE: Advertisements are generally not considered to be offers. However, where the
offer is clear, definite, and explicit, and leaves nothing open for negotiation, it
constitutes an offer, acceptance of which will complete the contract.
CONCLUSION:
The Court determined that the offer by defendant of the sale of the item was clear,
definite, and explicit, and left nothing open for negotiation. The man, having
successfully managed to comply with the terms of the advertisement, and having
offered the stated purchase price of the article, was entitled to performance on the part
of the store. The court here agreed with the trial court’s holding that the conduct of the
parties created sufficient mutuality of obligation to constitute a contract of sale.
CASE
13-3
Shumaker, J.
Exculpatory Clauses
ANDERSON v. MCOSKAR ENTERPRISES, INC. kvart
Court of Appeals of Minnesota, 2006
712 N.W.2d 796
Respondent McOskar Enterprises, Inc. owns and operates a
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headache in the back of her head. She contends that she told
the trainer, who suggested that the problem was likely just a
fitness and health club in Monticello known as “Curves for previous lack of use of certain muscles and that Anderson
Women.” [Plaintiff] Appellant Tammey J. Anderson joined would be fine.
the club on April 2, 2003.
As part of the registration requirements, Anderson read
an “AGREEMENT AND RELEASE OF LIABILITY,” ini-
tialed each of the three paragraphs in the document, and
dated and signed it. The first paragraph purported to release
Curves from liability for injuries Anderson might sustain in
participating in club activities or using club equipment:
R
In consideration of being allowed to participate in the
activities and programs of Curves for Women and to
use its facilities, equipment and machinery in addition
to the payment of any fee or charge, I do hereby waive,
release and forever discharge Curves International
Inc., Curves for Women, and their officers, agents,
employees, representatives, executors, and all others
(Curves representatives) from any and all responsibil-
ities or liabilities from injuries or damages arriving
[sic] out of or connected with my attendance at Curves
for Women, my participation in all activities, my use
of equipment or machinery, or any act or omission,
including negligence by Curves representatives.
The second paragraph provided for Anderson’s acknowl-
edgment that fitness activities “involve a risk of injury” and
her agreement “to expressly assume and accept any and all
risks of injury or death.” After completing the registration,
Anderson began a workout, primarily with machines, under
the supervision of a trainer. About 15 or 20 minutes later,
having used four or five machines, Anderson developed a
of Anderson continued her workout and developed pain in
her neck, shoulder, and arm. She informed the trainer but
program for
continued to exercise until she completed the
that session.
The pain persisted when Anderson returned home. She
then sought medical attention, eventually had a course of
physical therapy, and, in June 2003, underwent a cervical dis-
Mkectomy. She then started this lawsuit for damages, alleging
that Curves had been negligent in its acts or omissions
during her workout at the club.
Curves moved for summary judgment on the ground that
Anderson had released the club from liability for negligence.
The district court agreed and granted the motion. Anderson
challenges the court’s ruling on appeal.
**
It is settled Minnesota law that, under certain circumstan-
ces, “parties to a contract may, without violation of public
policy, protect themselves against liability resulting from
their own negligence.” [Citation.] The “public interest in
freedom of contract is preserved by recognizing [release and
exculpatory] clauses as valid.” [Citation.]mo-non
Releases of liability are not favored by the law and are
strictly construed against the benefited party. [Citation.] “If
the clause is either ambiguous in scope or purports to release
the benefited party from liability for intentional, willful or
wanton acts, it will not be enforced.” [Citation.] Further-
more, even if a release clause is unambiguous in scope and is
limited only to negligence, courts must still ascertain whetherCHAPTER 13 ILLEGAL BARGAINS
s enforcement will contravene public policy. On this issue,
a two-prong test is applied:
Before enforcing
an
exculpatory clause, both prongs of
the test are examined, to-wit: (1) whether there was a
disparity of bargaining power between the parties (in
terms of a compulsion to sign a contract containing an
unacceptable provision and the lack of ability to nego-
tiate elimination of the unacceptable provision)… and
ing into consideration whether it is a public or essential
(2) the types of services being offered or provided (tak-
service).
[Citation.]
The two-prong test describes what is generally known as
a “contract of adhesion,” more particularly explained in
Schlobohm:
a
It is a contract generally not bargained for, but which
is imposed on the public for necessary service on a
“take it or leave it” basis. Even though a contract is on
printed form and offered on a “take it or leave it”
basis, those facts alone do not cause it to be an adhe-
sion contract. There must be a showing that the parties
were greatly disparate in bargaining power, that there
was no opportunity for negotiation and that the ser-
vices could not be obtained elsewhere.
[Citation.]
*** There is nothing in the Curves release that expressly
exonerates the club from liability for any intentional, willful,
or wanton act. Thus, we consider whether the release is
ambiguous in scope.
***
Anderson argues that the release is ambiguous because it
broadly exonerates Curves from liability for “any act or
omission, including negligence…
The vice of ambiguous language is that it fails precisely
and clearly to inform contracting parties of the meaning of
261
their ostensible agreement. Because ambiguous language is
susceptible of two or more reasonable meanings, each party
might carry away from the agreement a different and per-
haps contradictory understanding. In the context of a release
in connection with an athletic, health, or fitness activity, the
consumer surely is entitled to know precisely what liability is
being exonerated. A release that is so vague, general, or
broad as to fail to specifically designate the particular nature
of the liability exonerated is not enforceable. [Citation.]
*** It is clear from this release that Anderson agreed to
exonerate Curves from liability for negligence, that being
part of the express agreement that Anderson accepted and it
is solely negligence of which Curves is accused.
The unmistakable intent of the parties to the Curves
agreement is that Curves at least would not be held liable for
acts of negligence.
***
***
Even if a release is unambiguously confined to liability for
negligence, it still will be unenforceable if it contravenes pub-
lic policy. Anderson contends that the Curves contract is one
of adhesion characterized by such a disparity in bargaining
power that she was compelled to sign it without any ability
to negotiate.
***
Even if there was a disparity of bargaining ability here-
which has not been demonstrated-there was no showing
that the services provided by Curves are necessary and unob-
tainable elsewhere. * * *
The Curves release did not contravene public policy, and
we adopt the supreme court’s conclusion in Schlobohm:
“Here there is no special legal relationship and no overriding
public interest which demand that this contract provision,
voluntarily entered into by competent parties, should be
rendered ineffectual.” [Citation.]
The district court did not err in granting respondent’s
motion for summary judgment on the ground that appellant
signed and agreed to a release of respondent’s liability for
negligence. We affirm.CASE
14-4
Henderson, J.
Intoxicated Persons/Incompetent Persons
FIRST STATE BANK OF SINAI v. HYLAND
Supreme Court of South Dakota, 1987
399 N.W.2d 894
279
Contractual obligations incurred by intoxicated persons
may be voidable. [Citation.] Voidable contracts (contracts
other than those entered into following a judicial determina-
tion of incapacity * * *) may be rescinded by the previously
disabled party. [Citation.] However, disaffirmance must be
prompt, upon the recovery of the intoxicated party’s mental
[Randy Hyland, unable to pay two promissory notes due
September 19, 1981, negotiated with The First State Bank of
Sinai (Bank) for an extension. The Bank agreed on the condi-
tion that Randy’s father, Mervin, act as cosigner. Mervin,
a good customer of the Bank, had executed and paid on
time over sixty promissory notes within a seven-year period. abilities, and upon his notice of the agreement, if he had
Accordingly, the Bank drafted a new promissory note with an
April 20, 1982, due date, which Randy took home for Mervin
forgotten it. [Citation.] ***
A voidable contract may also be ratified by the party who
to sign. On April 20, 1982, the new note was unpaid. Randy, had contracted while disabled. Upon ratification, the contract
becomes a fully valid legal obligation. [Citation.] Ratification
can either be express or implied by conduct. [Citations.] In
addition, failure of a party to disaffirm a contract over a period
of time may, by itself, ripen into a ratification, especially if
on May 5, 1982, brought the Bank a check signed by Mervin
to cover the interest owed on the unpaid note and asked for
another extension. The Bank agreed to a second extension,
again on the condition that Mervin act as cosigner. Mervin,
however, refused to sign the last note; and Randy subsequently rescission will result in prejudice to the other party. [Citations.]
declared bankruptcy. The Bank sued Mervin on December 19,
1982. Mervin responded that he was not liable since he had
been incapacitated by liquor at the time he signed the note.
He had been drinking heavily throughout this period, and in
fact had been involuntarily committed to an alcoholism treat-
ment hospital twice during the time of these events. In between
commitments, however, Mervin had executed and paid his
own promissory note with the Bank and had transacted busi-
ness in connection with his farm. The trial court held that
Mervin’s contract as cosigner was void due to alcohol-related
incapacity, and the Bank appealed.]
Historically, the void contract concept has been applied to
nullify agreements made by mental incompetents who have
contracted
after a judicial determination of incapacity
had been entered. [Citations.] ***
Mervin had numerous and prolonged problems stemming
from his inability to handle alcohol. However, he was not judi-
cially declared incompetent during the note’s signing.
HIRE
***
Mervin received both verbal notice from Randy and writ-
ten notice from Bank on or about April 27, 1982, that the
note was overdue. On May 5, 1982, Mervin paid the interest
owing with a check which Randy delivered to Bank. This
by itself could amount to ratification through conduct. If
Mervin wished to avoid the contract, he should have then
exercised his right of rescission. We find it impossible to
believe that Mervin paid almost $900 in interest without, in
his own mind, accepting responsibility for the note. His
assertion that paying interest on the note relieved his obliga-
tion is equally untenable in light of his numerous past expe-
riences with promissory notes.
***
We conclude that Mervin’s obligation to Bank is not void.
*** Mervin’s obligation on the note was voidable and his
subsequent failure to disaffirm (lack of rescission) and his
payment of interest (ratification) then transformed the void-
able contract into one that is fully binding upon him. We
reverse and remand.