Wcg's Unconscionability

PG&E had a duty of care that they did not uphold. A duty of care is the duty of all persons as established by tort law to exercise a reasonable amount of care in their dealings with others. Failure to do so constitutes the tort of negligence (p.114, Miller). The basic idea is that people are

That the modification involved a subsequent remedial measure. involving the issue of whether the federal law requirement that generic drugs must bear the same FDAapproved labels as their brand-name counterparts preempts state law claims for failure to warn? Answer Selected Answer: That federal law preempted state law claims for failure to warn based on strict liability but that failure to warn claims based on negligence could proceed. That federal law preempted state law claims for failure to warn. Correct Answer:

A dealer sold a new car to Raymond Smith. The sales contract contained language expressly disclaiming liability for personal injuries caused as a result of defects in the car and limiting the remedy for breach of warranty to repair or replacement of the defective part. One month after purchasing the auto, Smith was seriously injured when the car veered off the road and into a ditch as a result of a defect in the steering mechanism of the car.

In Greenman V. Yuba Power, the plaintiff was injured while using a power tool called the Shopsmith that was given to him as a gift from his wife in 1955. In 1957, while using the tool, the piece of wood he had been working without difficulty suddenly flew out and struck him on the head causing injuries. Ten and a half months later, he gave the retailer and manufacturer written notice of the claimed breaches of warranties and filed a complaint against them both alleging such breaches and negligence. After a trial before the jury, the court ruled there was no evidence that the retailer was negligent or breached an express warranty and that the manufacturer was not liable for the breach of any implied. The jury returned a verdict for the retailer

Barnes, separately, had commenced proceedings in the District Court of NSW. Both proceedings were transferred to the Federal Court and heard with the proceedings issued by the ACCC. The judgment on this case was delivered on February 27, 1998 six years after Australia passed a statutory code dealing with defective goods in 1992 sixty years after the verdict on the Donoghue v Stevenson’s case.

The disclaimer of warranties was not unconscionable and therefore was valid and binding on the plaintiff

Hamilton (the Company) was a subsidiary of Motor Company (MC). In 1999 the Company spun off from MC and incorporated. After the separation MC informed the Company that they owed $350-$800 million in warranty claims related to sales that occurred prior to the separation in 1999. Hamilton’s management believed that any warranty claims related to sales prior to the separation should be limited to the reserve amount that was agreed upon separation. MC wanted the full payment for what they owed relating to warranty claims. MC remained Hamilton’s largest client and because of that, Hamilton’s management was motivated to find a solution that would appease MC. Management realized that in paying anything over $100 million to MC would cause a significant reduction in operating income. For this reason, management had significant incentives to mask the true level of warranty expense in order to meet analysts’ forecasts. Management made the decision to report favorable results, no matter what.

I think the court got it right. First, “an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious,” Windsor Mills, Inc., 25 Cal. App. 3d at 993. The provisions at issue was written under the warranty section of a 101-page brochure titled “Product Safety & Warranty Information”. It was not only unnoticed, but also supposed to constitute the seller’s “affirmation of facts or promise”, not the customers’ promise. This reminds me of those fine prints in the advertisement or organ donation on the back of DMV form.

Statute of limitations. Firwood's resale may have taken three years, and the contract goods may have been sold as parts, but Firwood acted in good faith in trying to mitigate damages because there simply was no market for PCIs at the time of General Tire's breach. Firwood acted in good faith and pursued buyers diligently over that three-year period. While the time period may be less than optimal and the sale of the goods as parts not always desirable, Firwood did the best it could given the market following the breach. Firwood was awarded the contract price difference of $187,513 and $100,476 in interest. [Firwood Manufacturing Co., Inc. v. General Tire, Inc., 96 F.3d 163 (6th Cir.)]

However, “Although warranties solve the problem of the seller having better information than the buyer, they also create a form of moral hazard” (4 Pindyck/Rubinfield, 7e, Prentice

Although the express warranty in question seeked to limit the manufacturer's liability to replacement of parts, disclaiming all other warranties, the conflicting interests of the parties must be evaluated, based on social policy.

In an effort to guard against, Bad Faith litigation, Kinsale has instructed their claim staff, to refrain from documenting their claim files with any type of claims analysis. Kinsale is of the opinion; Bad Faith litigation is occurring with greater frequency against insurers. Consequently, insurers are under a constant threat by the plaintiff’s bar, looking to expose carriers to liability, by identifying any missteps in their claims handling processes. Therefore, as a protective measure, Kinsale restricts their claim staff from posting any type of claim analysis and-or opinions based statements in their claim files, avoiding the litigation discovery pitfalls of misinterpreting the claim staff’s written communications. Conversely, the lack of

The covenant signed by Mr. Guy will not be enforceable due to the unreasonable terms cited. The covenant’s eighty-mile radius is too large and outweighs the damages Pretentious Petit Four Bakery might sustain.

This has resulted with Cycloplatform’s maintenance contracts unworkable and losing revenue alluding to implications of deterring or preventing Cycloplatform from engaging in competitive conduct in the market under s 46(1)(c) . Greenbike’s use of its substantial market power would breach the CCA on the condition it was for the purpose of eliminating or substantially damaging a competitor under s46(1)(a) . Furthermore, it is not necessary to establish the relevant purpose was the only purpose or the main purpose. The two-step process taken into consideration in the Melway case subsumes whether the disputed conduct was materially facilitated the firm’s possession of a substantial degree of power and any rational business justification of the firm’s conduct. It does appear likely that Greenbike’s action was facilitated by its market power but there are no conclusive proof as even smaller competitors could do the same if their parts are exclusively made. However, there is no rational justification for the difference in

A real case study of this can be seen; buyers of diseased hogs sued sellers for a breach of an implied warranty that the hogs were fit for breeding purposes. A Nebraska court agreed with the buyers, and although the sales price of the hogs was $2,045, awarded damages were $14,500. (Terrence J. Centner, and Michael E. Wetzstein. Reducing Moral Hazard Associated with Implied Warranties of Animal Health. 1987). These laws on warranties therefore distribute the risk from buyer to seller more equally. As the seller now carries the possibility of an extreme fine, if the quality of livestock is not up to standard, thus causing an incentive for the seller to maintain a high product