Class 8, Thursday, Jan. 26

1. Class 8, Thursday, Jan. 26 Announcements Friday: read pp. 146-59; Problem 2-2(158-59); recap Today’s agenda Katz v. Danny Dare Shoemaker v. Commonwealth Bank Restitution in the absence of a promise

2. Tomorrow is Friday

3. Katz v. Danny Dare Missouri Court of Appeals 610 S.W.2d 121 (1980)

4. Who is suing whom? For what kind of damages? What is the legal basis for the claim? What is the factual basis for the claim? Arguments/defenses?

5. What happened at trial? What happened on appeal? Issue? Authorities/Rule? Application to facts in case? What policies does it further/ignore?

6. Use of analogous cases: A lesson in comparing and contrasting Feinberg v. Pfeiffer Trexler’s Estate Pitt v. McGraw-Edison

7. Plowman revisited; more on comparing and constrasting In light of Katz, was Plowman decided incorrectly? Is Plowman more like Katz, Hayes v. Plantations Steel Co. (note 3), or Pitt?

8. Note 2. Detrimental reliance?

9. ERISA Employment Retirement Income Security Act of 1974

10. Shoemaker v. Commonwealth Bank Pennsylvania Superior Court 700 A.2d 1003 (1997)

11. Who is suing whom? For what kind of damages? What is the legal basis for the claim? What is the factual basis for the claim? Arguments/defenses?

12. What happened at trial? What happened on appeal? Issue? Authorities/Rule? Application to facts in case? What policies does it further/ignore?

13. Note 1 • “I told them go ahead and do so because at that point I was in no financial situation to do so on my own.” • Duration. • October 25 letter. • “No-oral modification” clause

14. Note 4 A good exercise: construct hypos based on the brief parentheticals for the successful and unsuccessful causes of action based on promissory estoppel.

15. Note 5 For our purposes, do not concern yourself with subsection 2 of §90 dealing with charitable subscriptions and marriage settlements.

16. Brief recap Historically: 4 categories where promissory estoppel generally arose • 1. Gratuitous promise to convey land, followed by reliance by the promisee who moves onto the land and makes improvements, often in the form of an immovable structure. • 2. Gratuitous promises made by bailees in connection with gratuitous bailments. The bailor delivers goods to the bailee. Bailee promises to get insurance but fails to do so. Bailor in reliance does not get insurance. Goods are destroyed. • 3. Gratuitous promises to charities. • 4. Gratuitous promises within the family.

17. Another important category: gratuitous promises to pay a pension

18. promise induced action/forbearance by promisee action/forbearance was foreseeable by promisor injustice Counterarguments: no promise no action/forbearance; not induced—would have happened anyway not reasonably foreseeable no injustice if promise not enforced § 90

19. More on action/forbearance Induced? Was the person's freedom to act or not act affected/influenced/induced by the promise? Was action/forbearance detrimental to promisee? Consider Vastoler v. American Can Co.

20. Approach First see if a breach of contract claim can be brought based on mutual assent and consideration. If that fails, see if you can bring an alternative basis for recovery such as promissory estoppel/reliance OR restitution, which we will cover on Thursday.

21. Restitution Quasi contract Implied-in-law contract (different from an implied-in-fact contract) Quantum meruit Quantum valebat Many names, a lot of confusion.

22. Restatement of Restitution §1 A person who has been unjustly enriched at the expense of another is required to make restitution to the other. Two elements: 1. enrichment 2. under circumstances where retention of benefits would be unjust

23. Two broad categories for us • restitution in the absence of a promise • promissory restitution

24. Credit Bureau Enterprises, Inc. v. Pelo Supreme Court of Iowa 608 N.W.2d 20 (2000)

25. Who is suing whom? For what kind of damages? What is the legal basis for the claim? What is the factual basis for the claim? Arguments/defenses?

26. What happened at trial? What happened on appeal? Issue? Authorities/Rule? Application to facts in case? What policies does it further/ignore?

27. Restatement of Restitution §116 A person who has supplied things or services to another, although acting without the other’s knowledge or consent, is entitled to restitution therefor from the other if (a) he acted unofficiously and with intent to charge therefor, and • the things or services were necessary to prevent the other from suffering serious bodily harm or pain, and • the person supplying them had no reason to know that the other would consent to receiving them , if mentally competent, and • it was impossible for the other to give consent or, because of extreme youth or mental impairment, the other’s consent would have been immaterial

28. Easier case Illustration 3, §116. A is seriously hurt in an accident. Becoming hysterical with pain, he fights his rescuers and refuses to permit anyone to touch him. Over his protests, B, a surgeon, renders first aid services in stopping a hemorrhage which soon would have caused A’s death. B is entitled to compensation from A.

29. A little more difficult Note 2. In re Estate of Crisan, 107 N.W.2d 907 (Mich. 1961). A city, which had taken an unconscious person to a hospital, and which had furnished hospital service to the patient who died without regaining consciousness, filed a claim against her estate for hospital services.

30. Emergency aid §116 covers aid to protect person; §117 covers aid to protect property (see note 4) **very similar in approach Starting point--presumption of gratuitousness To prevail, must show: • unofficiously & intent to charge • no meaningful opportunity to communicate/negotiate K • services were necessary to protect person/property • benefit was conferred

31. Hypo What if I were to find a stranger who is unconscious and I render CPR, which saves the person’s life. I am not a medical doctor. Do I have a restitution claim?

32. Another I see a stranger lying unconscious on the side of the road. I pick up the stranger and drive her to the nearest hospital. May I recover based on restitution? Var. 1. Would it matter if I were driving a taxi cab? Var. 2. Would it matter if the nearest hospital were 300 miles away?

33. Yet another A roofer stops by your house, notices that your roof is about to cave in. The roof does indeed require repair. The roofer fixes the roof, does a good job. When you arrive home, you are presented with a bill for a reasonable amount for the materials and services. Are you liable?

34. Note 3 Relationship between contract and restitution. Last paragraph on p.123. Two cases cited—look at the parentheticals. Take note of the last clause to §107(1) (on p. 125). ------------------------------------ Implied-in-fact K versus implied-in-law K. We will discuss this in the context of the next case.

35. Note 5 Judge Posner and transaction costs. His examples: doctor; violinist Probably also works with the roofer hypo. Does it work with my CPR hypo?

36. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., Inc. Florida District Court of Appeal, en banc 695 So. 2d 383 (1997)

37. Commerce Partnership (owner) World Properties (general contractor) Equity Contracting (subcontractor)

38. Who is suing whom? For what kind of damages? What is the legal basis for the claim? What is the factual basis for the claim? Arguments/defenses?

39. What happened at trial? What happened on appeal? Issue? Authorities/Rule? Application to facts in case? What policies does it further/ignore?

40. What about the failure of Equity to secure a Mechanics’ Lien? What is a mechanics’ lien? Case is remanded. What must Equity establish in order to prevail on their quasi contract claim?

41. Palimony and restitution • One area we are skipping involves restitution in the context of so-called palimony lawsuits.

42. End of class tomorrow: read pp. 146-59; Problem 2-2(158-59); recap