This posting continues the question of whether fault should be considered in evaluating a claim for breach of contract, specifically, whether the courts should weigh the “fault” of the non-breaching party. When would such “fault” by the non-breaching party arise? It would seem that three time frames could be considered: Before (i.e., during the formation …
Continue reading “A Comparative Fault Defense in Contract Law – Part 2”
Continuing his recent discussion of fault in contract law, Judge Posner explains that, “The idea of ‘good faith’ is an example. We generally want people to be honest and aboveboard in their dealings with others. But there is no general duty of good faith in contract law. If you offer a low price for some …
Continue reading “Judge Posner Writes on Blameworthiness in Contract Theory”
Judge Richard A. Posner of the Seventh Circuit Court of Appeals contributed his thoughts at a symposium on the rationale for liability for breach of contract. One of his points is a sound analytic distinction between tort liability and contract liability, a concept which is sadly muddled in California cases. Writes Judge Posner, “Here is …
I read a recent article in the Consumer Finance Law Quarterly Report about bankruptcy filings after the 2005 reform act. The author (Jon Ann H. Giblin) compared 2006 filings with 2007 filings (in her table). I asked myself – Which states have more filings, on a percentage basis? (This, of course, begs the question of …
Relationship-based fiduciary duties (as counterposed with contract-based fiduciary duties) arise in many different situations. I recently came across an extension of the fiduciary concept in the field of charitable solicitations. Specifically, California Business and Professions Code section 17510.8 states, “There exists a fiduciary relationship between a charity or any person soliciting on behalf of a …
Continue reading “Fiduciary Duties Arising From Charitable Contributions – Section 17510.8”
I have been approached by numerous potential clients asking if I can help with the restructuring of their mortgages. The short answer is that I can provide no assurance regarding a refinancing. The rules are murky, and the literature indicates that lenders are not providing meaningful reductions. A recent article by Prof. Brent White from …
Continue reading “Underwater and Not Walking Away – or, Why Don’t Lenders Refinance?”