Jump to content

Any case law or code for contract basis?


Linda7
 Share

Recommended Posts

In studying contracts, I came across this -

"Contract enforcement usually falls into the jurisdiction of the state where the contract was actually created. It usually doesn't matter where you reside, or where any other contracted parties reside. All that matters is the actual place where the contract was created."

Is there any case law or code that can be used to substantiate the above?

Link to comment
Share on other sites

Which state's laws do you want to apply to the case?

Virginia! xdancex

In other words, if a Capital One contract says Virginia then looks to me that Virginia should be "where" the contract is based. But, how would you do that?

Edited by Linda7
Link to comment
Share on other sites

No, forget about states where a consumer may reside. I'm more thinking of proving that a company that offers you a credit card/agreement/contract . . . based on how my first post read . . . I would then assume that you can get away from where the consumer resides. I would like to know what you can use - maybe a code or regulation or something to validate that a contract is created where the company office is, etc.

BTW, where is Adsoft and his contract thinking? :rolleyes:

Link to comment
Share on other sites

You can't. Even if there is a law in contract law and you use it as a defense, you still need to be prepared for them to come back at you with your states SOL, so it should be discussed. You gotta have a backup plan.

Read this part again -

"Contract enforcement usually falls into the jurisdiction of the state where the contract was actually created. It usually doesn't matter where you reside, or where any other contracted parties reside. All that matters is the actual place where the contract was created."

If we can find case law or something to back this up, we might have something to work with! xdancex

Link to comment
Share on other sites

Especially for Georgia consumers when backed up with this -

"CONTRACT EXECUTED IN FOREIGN STATE, NOT INTENDED AS GEORGIA CONTRACT, TREATED AS FOREIGN CONTRACT. --Where a contract not only is executed in a foreign state, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign state and governed by its laws. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 7 S.E.2d 737 (1940); Terry v. Mays, 161 Ga. App. 328, 291 S.E.2d 44 (1982)."

And I feel sure that other states have something similar.

Link to comment
Share on other sites

And I found this -

"If a contract is in written form and does not clearly incorporate other materials by reference (that is, refer to and identify other documents which are to be considered part of the contract), the obligations of parties and the meaning of the contract will be judged entirely from the face of the contract itself. No evidence outside the writing of the contract will be considered."

That being said - if the contract from a credit card company states that "only" the state of Delaware or Virginia, etc., governs the contract - then the contract should only be judged entirely from the face of the contract itself. In other words, nothing later should be allowed to be introduced to force a longer sol. smiliejudge2.gif

Edited by Linda7
Link to comment
Share on other sites

what you need is your state's volume on contracts, found at your law library (hopefully)

(for example, in new york we have "New York Jurisprudence, 2d " which will contain relevant information and case law on contracts)

i know nothing about contracts, im simply trying to find something that may help. this may not apply to your situation generally, because it deals with arb, but hey, see if you can pick up anything of use from it:

CREDIT GENERAL INSURANCE COMPANY v. INSURANCE SERVICE GROUP, INC., Tenn: Court of Appeals 2007

parts of it:

We begin our analysis by reviewing the terms of the contract between the parties which contains a provision designated "Governing Law" and states: "This Agreement shall be governed as to performance, administration, and interpretation by the laws of the State of Ohio." As a rule, Tennessee courts will honor a contractual choice of law provision, Goodwin Bros. Leasing, Inc. v. H & B, Inc., 597 S.W.2d 303, 306 (Tenn. 1980), and there is no dispute in the instant matter that the subject choice of law provision is valid and enforceable. Therefore, we must look to the law of Ohio to determine if the parties are required to arbitrate. Our analysis of Ohio law is guided by the decision of the Ohio Court of Appeals in Shafer v. Metro-Goldwyn-Mayer Distributing Corp., 172 N.E. 689 (Ohio Ct. App. 1929), which held that the issue of arbitration was a procedural remedy to be decided pursuant to the law of the forum state.

The Shafer court determined that arbitration was a procedural remedy and therefore, questions regarding its enforceability should be decided pursuant to the law of Ohio, the forum state. In support, the Court quoted the following language:

The lex fori, or law of the jurisdiction in which relief is sought, controls as to all matters pertaining to remedial, as distinguished from substantive, rights, and the only uncertainty which may arise concerning this rule must result from conflicting views as to what matters fall within one or the other of such classes of rights. * * * No matter what law may govern as to the validity and interpretation of a contract, the law of the forum controls as to all matters connected with procedure for its enforcement.

Shafer, id. at 692 (quoting 12 CORPUS JURIS [1917] 483-84, Conflict of Laws). The Court concluded that under Ohio common law at that time, the defendant had a right to revoke his contractual agreement to submit the parties' dispute to arbitration and reversed the lower court's judgment based on the award of the arbitration board.

***

Therefore, applying Ohio law, we are required to look to the law of Tennessee, the forum state, to resolve questions concerning the enforceability of the arbitration clause in the case at bar, based upon the Ohio court's ruling in Shafer and subsequent Ohio case law in accord with the holding that the law of the forum state applies to questions of remedial rights. See, e.g., Guider v. LCI Communications Holdings Company, 622 N.E.2d 415, 418-20 (Ohio Ct. App. 1993) and Jankovsky v. Grana-Morris, No. 2000-CA-62, 2001 WL 1018337 at *2 (Ohio App. 2 Dist. Sept. 7, 2001) ("[T]he law of the forum controls matters connected with procedures for contract enforcement, regardless of the substantive law that applies to the contract's validity and interpretation.").

***

In summary, the parties chose and agreed for the law of the state of Ohio to apply to their agreement. Therefore, we are required to apply Ohio law. On procedural issues, such as whether an issue will be submitted to arbitration or decided by the court, Ohio law requires us to apply the law of the forum state, which is Tennessee.

i cant remember the expert on contracts, they should chime in asap

Link to comment
Share on other sites

Thank you for all responses! But, actually I'm working on something for people in Georgia. They got a bum deal with that appeals case Hill vs. Am. Express and a lot of the consumers are stuck in the middle so to speak. I've seen several Georgia members here that are suddenly coming forth with Capital One complaints. They have a legitimate gripe in my opinion if they're SOL's were going to run out within the 4 year term, but now are faced with the additional 2 years. Capital One, as we've heard so many times - stay silent, don't send statements and this now 6 year sol for credit cards has allowed Capital One to tack on more interest/fees. If the Hill vs Am. Express had not happened, Capital One would have had to come out of hiding within the 4 year sol instead of the 6 year sol. I'm trying to find something they can use even those using arbitration might can surpass some of the court rules that favor Georgia's sol for the consumers.

Showing this -

"Applicable Law. This Agreement will be governed by Virginia law and Federal law." - (2002 Capital One agreement)

Or this -

Governing Law: “This Agreement is to be construed in accordance with and governed by the laws of the United States of America and by the Internal laws of the Commonwealth of Virginia without giving effect to any choice of law rule that would cause this application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties.This Agreement is made in Virginia. It will be governed only by Federal Law, and Virginia law (to the extent permitted by Federal Law). (2005 Capital One agreement).

Then maybe using this could keep it bound to Virginia -

"CONTRACT EXECUTED IN FOREIGN STATE, NOT INTENDED AS GEORGIA CONTRACT, TREATED AS FOREIGN CONTRACT. --Where a contract not only is executed in a foreign state, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign state and governed by its laws. Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 7 S.E.2d 737 (1940); Terry v. Mays, 161 Ga. App. 328, 291 S.E.2d 44 (1982)."

Also, this might be beneficial to hopefully get away from the Georgia "rules" of substantive/procedural -

"The arbitrator will not be bound by, and this Arbitration Provision shall not be subject to, the federal, state or local rules of procedure and evidence that would apply in any court, or to state or local laws that relate to arbitration proceedings."

What do you think? :rolleyes:

Then also -

"If a contract is in written form and does not clearly incorporate other materials by reference (that is, refer to and identify other documents which are to be considered part of the contract), the obligations of parties and the meaning of the contract will be judged entirely from the face of the contract itself. No evidence outside the writing of the contract will be considered."

Of course, I don't have any case law for the last paragraph, but would love to see anything that anybody can find for the State of Georgia.

Link to comment
Share on other sites

i can try to look up georgia contract law when i go to the law library.

i dont know if ill find what you are looking for, but if you give me your email i can send you tons of contract material to look over (specific to georgia, or va, or whatever state you wish)

im sure lexis has a research tool taht can find waht you are looking for. ill try to find it

Link to comment
Share on other sites

wait

Linda, maybe im wrong but isnt the issue in Hill vs. Am. Express about open v written contracts? even if you overcome the issue of contract enforcement wouldnt there still be an issue of whether the contract is open or written? i would think that this case establishes the types of cases that would be viewed as written then the 6 year rule would apply (unless you are already passed that and just want a specific answer to your specific question, which i can understand.)

Link to comment
Share on other sites

Thank you, Jackson! Nothing about the Hill case would help or hurt at this point. It only set a precedent that moved credit cards to be viewed with a longer sol - from 4 years previous to the Hill case in 2008 to now 6 years.

What I would like to find out if there are "any" cases in Georgia "after" the appeals case in 2008 that have been able to bind these credit card companies to the agreements that they offered - Some way of getting away from the substantive/procedural rules of Georgia? If it is always going to be made to fall under the Georgia rules, the sol will always be 6 years. But, if somewhere there are cases that can be cited that were able to bind the credit card companies to their own agreement terms showing that other states like Delaware or Virginia govern the agreements as stated in the contracts, then those states sol will be applied which would be 3 year sol instead of the 6 year sol of Georgia.

Any help would be appreciated! :)++

Link to comment
Share on other sites

Here's a little bit of argument that "maybe" a Georgia consumer could use against the companies who have that Virginia clause will govern the agreement. But, I would like some Georgia cases to cite so as to complete the argument about the contract - after all the company and the consumer had a "meeting of the minds" and agreed to the terms in the beginning. The contract was a formal binding contract and somehow there should be a way to make them stay bound to it.

Defendant averts that the Virginia Statute of Limitations, code section 8.01-246(4); (In actions based upon any unwritten contract, express or implied, within three years), applies to this matter, and thus, this suit is time barred. Plaintiff cannot disavow the choice of law provision contained in the document it attaches to its Complaint so it can take advantage of the Georgia statute of limitations.

In Virginia's landmark case of Newport News Hampton & Old Point Dev.Co. v Newport News Street Ry. Co., 32 S.E. 789, 790 ( Va. 1899), the court held that "nothing must be left open for future negotiation and agreement; otherwise it cannot be enforced." On this case, the credit agreement is subject to unilateral changes by the Plaintiff, there is no duration limitation to the agreement and there exists no indication as to the credit limit or interest rate, and the agreement is not signed by the defendant. Under a Newport analysis, the agreement is an oral contract.

The Plaintiff being the master of its contract cannot now disavow Virginia's choice of law provision therein so as to now take advantage of the Georgia statute of limitations.

Link to comment
Share on other sites

Also pondering this as part of the defense - If the Virginia laws clause of the contract is not to be enforced by the Georgia Court, then the contract is null and void and no part of it can be enforced. Per the agreement, Virginia’s State Law was adopted which created an ambiguity that should be resolved against the drafter of the document by in fact giving the debtor the benefit of Virginia’s SOL. The court would not and could not give the creditor a longer SOL by virtue of the creditor having chosen the Virginia’s state laws in its cardholder agreement-but a shorter one may perhaps be afforded the debtor. If the court is willing I would like to request YOUR HONOR to uphold a time-honored principle of contract law- that ambiguities are construed so as to favor the party that did not write the document and grant a motion to dismiss.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.