Exculpatory Clauses and Contracts: A Legal Analysis - Prof. William M. Mcclenahan, Study notes of Business and Labour Law

Download Exculpatory Clauses and Contracts: A Legal Analysis - Prof. William M. Mcclenahan and more Study notes Business and Labour Law in PDF only on Docsity! Chapter November 11, 2008 Papers you sign when bungee jumping: Law won’t allow you to relieve them of intentional torts. Only relieve them of negligence. Exculpatory clause not valid when you can’t expect to be harmed in certain way. McCune v. Myrtle Beach pg 383 Ill fitting masking. Took off got shot in the eye. Motion for summary judgement by defendant because she signed a clause. Argument that it was a peculiar way to be injured outside the scope of normal injuries of paintball range does not hold. Clause said you presume all risk “known and unknown”. #8 pg. 392 What was different between exculpatory clauses- different positioning. This case it inconspicuous, hidden not bold or large face font. While in the McCune case it was bold and on the top. McCune is also broad while this one is more specific. “any sport exercise or activity” he was just sitting on the bench, he was not doing anything out of the ordinary in the gym. Sitting is not an activity. Narrower language. Heterosexual or homosexual you can contract to treat certain things required in your relationship a certain way. Prenups can be struck down because of duress. Classis case- jack cook- 4 th wife from Bolivia 1/3 of his age. She testified against cocaine users could og back to Bolivia. Negotiated prenup with her. If they live together as man and wife or if he died she gets abillion dollars. In VA a wife or spouse can take against a will. You can get 1/3 of estate in lieu of will. Marriage annulled cause they got married in mexico and had to marry quickly or she would be deported. So she signed quickly=duress. Estate didn’t want to fight it and gave her $40million. Procedural unconscionability- unfairness in the bargaining process Substantive unconscionability- terms themselves are unfair Circuit City Question #2 & #5 2. Assume 24 hr waiting period/ state requires procedural & substantive to strike down agreement. Should the arbitration clause enforced. Procedural = not giving her a copy, not explaining terms. Substantive? Yes based on only doctors on panel. Should arb clause be enforced? no 5. what kind of employment is this. What kind of customers would they have here? Covenant not to compete. Will the noncompetition agreement be enforced. Most people do not have repetitive fires. Customer list would not matter. However with water damage you can have repeat business. Intentional tort- civil version of theft- conversion. Should his stealing matter? Court would not enforce covenant based on this. Customer list value is based on the nature of the business.