A1 Business Basis of Discrimination on National Origin Case Briefs

Question Description

Answer the following questions based upon your assigned readings and class materials. PLEASE CITE YOUR SOURCES (including the text and slides). Please be advised that by relying on material outside the course may give information that is not as discussed or presented in class and will not provide additional credit.

Your answers must be in complete sentences and free of typographical errors

. Your writing assignment must be saved as either as WORD documents or in PDF, with doublespaced, 1” margins. The assignment must be well written and professional in appearance. Your completed assignment must be uploaded onto Blackboard for submission. NO OTHER FORMATS WILL BE ACCEPTED.






The rule will be the applicable law to answer the identified issue, including its elements, if relevant. The reasoning must apply the facts from the fact pattern to the law (rule) and its applicable elements and/or exceptions.

1. The plaintiff, Amir Peleg, is a gay Jewish male of Israeli national origin. He worked at Neiman Marcus store in Beverly Hills from December 28, 2005-February 21, 2008. The store is owned by the defendant, Nieman Marcus Group, Inc. Peleg worked in the fragrances department and performed his duties in an exemplary manner. Peleg alleges that on February 21, 2008, he was discharged because of his national origin, religion, and sexual orientation in violation of California Fair Employment & Housing Act (FEHA).1 Neiman Marcus responded to the complaint with a motion to compel arbitration of the entire case.

The company at the time of hiring, Peleg, provided him with its “Mandatory Arbitration Agreement.” Peleg asserts that the arbitration agreement is illusory and therefore, unenforceable. Peleg relies on the following language:


All case summaries were drafted by McGraw Hill 2018

“This Agreement to arbitrate shall survive the termination of the employeremployee relationship . . . and shall apply to any covered Claim whether it arises or is asserted during or after termination of the Covered Employee’s employment . . . This Agreement can be amended, modified, or revoked in writing by the Company at any time, but with thirty (30) days’ advance notice . . . However, any amendment, modification or revocation will have no effect on any Claim that was filed for arbitration prior to the effective date of such amendment, modification or revocation.

1. As the judge, what do you decide? Is the contract illusory? Explain your reasoning in the shortened case brief format.

NOTE: To have a full analysis, you must apply the facts to the rule.

2. The parties’ marriage was dissolved on August 27, 2010. The parties had an agreement which the court incorporated into its judgment of dissolution. On February 11, 2015, Defendant filed a Motion to Open the Judgment, alleging that he was subjected to continuous threatening and harassing behavior by Plaintiff which resulted in his concession to the terms of the Separation Agreement, that was incorporated into the judgment.

Defendant claimed that he suffered from Attention Deficient Hyperactivity Disorder (ADHA) for years and was therefore, more susceptible to manipulation, coercion and duress than the average reasonable person.

Defendant was diagnosed with ADHD in 2012. He returned to his therapist in 2015 asking about the effect of the ADHD would have on his life. The therapist did not know him in 2010, but explained that adults with ADHD are usually more susceptible to manipulation and coercion than someone without ADHD.

At the time leading up to the divorce, Defendant explained that Plaintiff was diagnosed with a life-threatening illness. Three months later, they separated and then she filed the legal action. Plaintiff hired an attorney who drafted a proposal for settlement. Plaintiff suggested that he didn’t need an attorney and that they can use a mediator or her attorney to facilitate a settlement. Defendant DID hire an attorney who advised him not to sign the settlement agreement.

2. Do you think the court found sufficient elements for fraud that it would reopen the case? Why or why not?

NOTE: To have a full analysis, you must apply the facts to the rule.

3. Vincent Simmons appeals from the trial court’s order awarding his wife, Dorothy Simmons, a one-half interest in land that he inherited from his parents. Vincent contends that the property is non-marital and therefore, should have remained his separate property (and not subject to the divorce proceeding between him and his wife).

All case summaries were drafted by McGraw Hill 2018

Vincent and Dorothy were married October 9, 1976. On April 11, 1995, Vincent’s mother put her land, in Trust, conveying her interest in the land, upon death, to her children. Vincent’s mother died on April 1, 1999, but the property remained in Trust for several years after her death.

After Vincent’s mother’s death, Dorothy, became concerned that she would not receive an interest in the property if Vincent died before her. Dorothy hired an attorney who drafted an Affidavit for Vincent to sign that read (in part):

I have been married to my wife, Dorothy Simmons, for 25 years. It is my intention, through this Affidavit, to convey to my wife marital interest in said real property [Vincent’s mother’s property]. If I should die prior to the above-stated Trust being dissolved, then my said wife shall be entitled to her legal marital interest in said real property.

The Trust was distributed to Vincent in November 2002 and Dorothy filed for a divorce in February 2003. The parties agreed on all terms for the divorce, except on the property previously owned by Vincent’s mother. Vincent argues that the Affidavit is not a contract because it lacks consideration and therefore, there is no contract. Dorothy says that her continued marriage to Vincent was the consideration to support the contract.

3. Do you think there was a contract? What rule applies?

NOTE: To have a full analysis, you must apply the facts to the rule.

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Chapter 10 Real Assent/Capacity LEARNING OBJECTIVES After reading this chapter, you should understand the following: 1. Contracts require “a meeting of the minds” between competent parties, and if there is no such “meeting,” the agreement is usually voidable. 2. Parties must enter the contract voluntarily, without duress or undue influence. 3. Misrepresentation or fraud, when proven, vitiates a contract. 4. A mistake may make a contract voidable. 5. Parties to a contract must have capacity—that is, not labor under infancy, intoxication, or insanity. We turn to the second of the four requirements for a valid contract. In addition to manifestation of assent, a party’s assent must be real; he or she must consent to the contract freely, with adequate knowledge, and must have capacity. The requirement of real assent raises the following major questions: 1. Did the parties enter into the contract of their own free will, or was one forced to agree under duress or undue influence? 2. Did the parties enter into the contract with full knowledge of the facts, or was one or both led to the agreement through fraud or mistake? 3. Did both parties have the capacity to make a contract? 10.1 Duress and Undue Influence LEARNING OBJECTIVES 1. Recognize that if a person makes an agreement under duress (being forced to enter a contract against his or her will), the agreement is void. 2. Understand what undue influence is and what the typical circumstances are when it arises to make a contract voidable. Saylor URL: http://www.saylor.org/books Saylor.org 11 Duress When a person is forced to do something against his or her will, that person is said to have been the victim of duress—compulsion. There are two types of duress: physical duress and duress by improper threat. A contract induced by physical violence is void. Physical Duress If a person is forced into entering a contract on threat of physical bodily harm, he or she is the victim of physical duress. It is defined by the Restatement (Second) of Contracts in Section 174: “If conduct that appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.” Comment (a) to Section 174 provides in part, “This Section involves an application of that principle to those relatively rare situations in which actual physical force has been used to compel a party to appear to assent to a contract.…The essence of this type of duress is that a party is compelled by physical force to do an act that he has no intention of doing. He is, it is sometimes said, ‘a mere mechanical instrument.’ The result is that there is no contract at all, or a ‘void contract’ as distinguished from a voidable one” (emphasis added). The Restatement is undoubtedly correct that there are “relatively rare situations in which actual physical force” is used to compel assent to a contract. Extortion is a crime. Duress by Threat The second kind of duress is duress by threat; it is more common than physical duress. Here the perpetrator threatens the victim, who feels there is no reasonable alternative but to assent to the contract. It renders the contract voidable. This rule contains a number of elements. First, the threat must be improper. Second, there must be no reasonable alternative. If, for example, a supplier threatens to hold up shipment of necessary goods unless the buyer agrees to pay more than the contract price, this would not be duress if the buyer could purchase identical supplies from someone else. Third, the test for inducement is subjective. It does not matter that the person threatened is unusually timid or that a reasonable person would not have felt threatened. The question is whether the threat in fact induced assent by the victim. Such facts as the victim’s belief that the threatener had the ability to carry out the threat and the length of time between the threat and assent are relevant in determining whether the threat did prompt the assent. Saylor URL: http://www.saylor.org/books Saylor.org 2 There are many types of improper threats that might induce a party to enter into a contract: threats to commit a crime or a tort (e.g., bodily harm or taking of property), to instigate criminal prosecution, to instigate civil proceedings when a threat is made in bad faith, to breach a “duty of good faith and fair dealing under a contract with the recipient,” or to disclose embarrassing details about a person’s private life. Jack buys a car from a local used-car salesman, Mr. Olson, and the next day realizes he bought a lemon. He threatens to break windows in Olson’s showroom if Olson does not buy the car back for $2,150, the purchase price. Mr. Olson agrees. The agreement is voidable, even though the underlying deal is fair, if Olson feels he has no reasonable alternative and is frightened into agreeing. Suppose Jack knows that Olson has been tampering with his cars’ odometers, a federal offense, and threatens to have Olson prosecuted if he will not repurchase the car. Even though Olson may be guilty, this threat makes the repurchase contract voidable, because it is a misuse for personal ends of a power (to go to the police) given each of us for other purposes. If these threats failed, suppose Jack then tells Olson, “I’m going to haul you into court and sue your pants off.” If Jack means he will sue for his purchase price, this is not an improper threat, because everyone has the right to use the courts to gain what they think is rightfully theirs. But if Jack meant that he would fabricate damages done him by a (falsely) claimed odometer manipulation, that would be an improper threat. Although Olson could defend against the suit, his reputation would suffer in the meantime from his being accused of odometer tampering. A threat to breach a contract that induces the victim to sign a new contract could be improper. Suppose that as part of the original purchase price, Olson agrees to make all necessary repairs and replace all failed parts for the first ninety days. At the end of one month, the transmission dies, and Jack demands a replacement. Olson refuses to repair the car unless Jack signs a contract agreeing to buy his next car from Olson. Whether this threat is improper depends on whether Jack has a reasonable alternative; if a replacement transmission is readily available and Jack has the funds to pay for it, he might have an alternative in suing Olson in small claims court for the cost. But if Jack needs the car immediately and he is impecunious, then the threat would be improper and the contract voidable. A threat to breach a contract is not necessarily improper, however. It depends on whether the new contract is fair and equitable because of unanticipated circumstances. If, for example, Olson discovers that he must purchase Saylor URL: http://www.saylor.org/books Saylor.org 3 a replacement transmission at three times the anticipated cost, his threat to hold up work unless Jack agrees to pay for it might be reasonable. Undue Influence The Restatement of Contracts (Second) characterizes undue influence as “unfair persuasion.” [1] It is a milder form of duress than physical harm or threats. The unfairness does not lie in any misrepresentation; rather, it occurs when the victim is under the domination of the persuader or is one who, in view of the relationship between them, is warranted in believing that the persuader will act in a manner detrimental to the victim’s welfare if the victim fails to assent. It is the improper use of trust or power to deprive a person of free will and substitute instead another’s objective. Usually the fact pattern involves the victim being isolated from receiving advice except from the persuader. Falling within this rule are situations where, for example, a child takes advantage of an infirm parent, a doctor takes advantage of an ill patient, or a lawyer takes advantage of an unknowledgeable client. If there has been undue influence, the contract is voidable by the party who has been unfairly persuaded. Whether the relationship is one of domination and the persuasion is unfair is a factual question. The answer hinges on a host of variables, including “the unfairness of the resulting bargain, the unavailability of independent advice, and the susceptibility of the person persuaded.” [2] See Section 10.5.1 “Undue Influence”, Hodge v. Shea. KEY TAKEAWAY A contract induced by physical duress—threat of bodily harm—is void; a contract induced by improper threats—another type of duress—is voidable. Voidable also are contracts induced by undue influence, where a weak will is overborne by a stronger one. EXERCISES 1. What are the two types of duress? 2. What are the elements necessary to support a claim of undue influence? [1] Restatement (Second) of Contracts, Section 177. [2] Restatement (Second) of Contracts, Section 177(b). Saylor URL: http://www.saylor.org/books Saylor.org 4 10.2 Misrepresentation LEARNING OBJECTIVES 1. Understand the two types of misrepresentation: fraudulent and nonfraudulent. 2. Distinguish between fraudulent misrepresentation in the execution and fraudulent misrepresentation in the inducement. 3. Know the elements necessary to prove fraudulent and nonfraudulent misrepresentation. 4. Recognize the remedies for misrepresentation. General Description The two types of misrepresentation are fraudulent and nonfraudulent. Within the former are fraud in the execution and fraud in the inducement. Within the latter are negligent misrepresentation and innocent misrepresentation. Misrepresentation is a statement of fact that is not consistent with the truth. If misrepresentation is intentional, it is fraudulent misrepresentation; if it is not intentional, it is nonfraudulent misrepresentation, which can be either negligent or innocent. In further taxonomy, courts distinguish between fraud in the execution and fraud in the inducement. Fraud in the execution is defined by the Restatement as follows: “If a misrepresentation as to the character or essential terms of a proposed contract induces conduct that appears to be a manifestation of assent by one who neither knows nor has reasonable opportunity to know of the character or essential terms of the proposed contract, his conduct is not effective as a manifestation of assent.” [1] For example, Alphonse and Gaston decide to sign a written contract incorporating terms to which they have agreed. It is properly drawn up, and Gaston reads it and approves it. Before he can sign it, however, Alphonse shrewdly substitutes a different version to which Gaston has not agreed. Gaston signs the substitute version. There is no contract. There has been fraud in the execution. Saylor URL: http://www.saylor.org/books Saylor.org 5 Fraud in the inducement is more common. It involves some misrepresentation about the subject of the contract that induces assent. Alphonse tells Gaston that the car Gaston is buying from Alphonse has just been overhauled—which pleases Gaston—but it has not been. This renders the contract voidable. Fraudulent Misrepresentation Necessary to proving fraudulent misrepresentation (usually just “fraud,” though technically “fraud” is the crime and “fraudulent misrepresentation” is the civil wrong) is a misstatement of fact that is intentionally made and justifiably relied upon. Misstatement of Fact Again, generally, any statement not in accord with the facts (a fact is something amenable to testing as true) is a misrepresentation. Falsity does not depend on intent. A typist’s unnoticed error in a letter (inadvertently omitting the word “not,” for example, or transposing numbers) can amount to a misrepresentation on which the recipient may rely (it is not fraudulent misrepresentation). A half-truth can amount to a misrepresentation, as, for example, when the seller of a hotel says that the income is from both permanent and transient guests but fails to disclose that the bulk of the income is from single-night stopovers by seamen using the hotel as a brothel. [2] Concealment Another type of misrepresentation is concealment. It is an act that is equivalent to a statement that the facts are to the contrary and that serves to prevent the other party from learning the true statement of affairs; it is hiding the truth. A common example is painting over defects in a building—by concealing the defects, the owner is misrepresenting the condition of the property. The act of concealment need not be direct; it may consist of sidetracking the other party from gaining necessary knowledge by, for example, convincing a third person who has knowledge of the defect not to speak. Concealment is always a misrepresentation. Nondisclosure A more passive type of concealment is nondisclosure. Although generally the law imposes no obligation on anyone to speak out, nondisclosure of a fact can operate as a misrepresentation under certain circumstances. This occurs, for example, whenever the other party has erroneous information, or, as Reed v. King (Section 10.5.2 “Misrepresentation by Concealment”) shows, where the nondisclosure amounts to Saylor URL: http://www.saylor.org/books Saylor.org 6 a failure to act in good faith, or where the party who conceals knows or should know that the other side cannot, with reasonable diligence, discover the truth. In a remarkable 1991 case out of New York, a New York City stockbroker bought an old house upstate (basically anyplace north of New York City) in the village of Nyack, north of New York City, and then wanted out of the deal when he discovered—the defendant seller had not told him—that it was “haunted.” The court summarized the facts: “Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists [ghosts], reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years. Plaintiff promptly commenced this action seeking rescission of the contract of sale. Supreme Court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction.” The high court of New York ruled he could rescind the contract because the house was “haunted as a matter of law”: the defendant had promoted it as such on village tours and in Reader’s Digest. She had concealed it, and no reasonable buyer’s inspection would have revealed the “fact.” The dissent basically hooted, saying, “The existence of a poltergeist is no more binding upon the defendants than it is upon this court.” [3] Statement Made False by Subsequent Events If a statement of fact is made false by later events, it must be disclosed as false. For example, in idle chatter one day, Alphonse tells Gaston that he owns thirty acres of land. In fact, Alphonse owns only twenty-seven, but he decided to exaggerate a little. He meant no harm by it, since the conversation had no import. A year later, Gaston offers to buy the “thirty acres” from Alphonse, who does not correct the impression that Gaston has. The failure to speak is a nondisclosure—presumably intentional, in this situation—that would allow Gaston to rescind a contract induced by his belief that he was purchasing thirty acres. Statements of Opinion An opinion, of course, is not a fact; neither is sales puffery. For example, the statements “In my opinion this apple is very tasty” and “These apples are the best in the county” are not facts; they are not expected to be taken as true. Reliance on opinion is hazardous and generally not considered justifiable. If Jack asks what condition the car is in that he wishes to buy, Mr. Olson’s response of “Great!” is not ordinarily a misrepresentation. As the Restatement puts it: “The propensity of sellers and buyers to Saylor URL: http://www.saylor.org/books Saylor.org 7 exaggerate the advantages to the other party of the bargains they promise is well recognized, and to some extent their assertions must be discounted.” [4] Vague statements of quality, such as that a product is “good,” ought to suggest nothing other than that such is the personal judgment of the opinion holder. Despite this general rule, there are certain exceptions that justify reliance on opinions and effectively make them into facts. Merely because someone is less astute than the one with whom she is bargaining does not give rise to a claim of justifiable reliance on an unwarranted opinion. But if the person is inexperienced and susceptible or gullible to blandishments, the contract can be voided, as illustrated in Vokes v. Arthur Murray, Inc. in Section 10.5.3 “Misrepresentation by Assertions of Opinion”. Misstatement of Law Incorrect assertions of law usually do not give rise to any relief, but sometimes they do. An assertion that “the city has repealed the sales tax” or that a court has cleared title to a parcel of land is a statement of fact; if such assertions are false, they are governed by the same rules that govern misrepresentations of fact generally. An assertion of the legal consequences of a given set of facts is generally an opinion on which the recipient relies at his or her peril, especially if both parties know or assume the same facts. Thus, if there is a lien on a house, the seller’s statement that “the courts will throw it out, you won’t be bothered by it” is an opinion. A statement that “you can build a five-unit apartment on this property” is not actionable because, at common law, people are supposed to know what the local and state laws are, and nobody should rely on a layperson’s statement about the law. However, if the statement of law is made by a lawyer or real estate broker, or some other person on whom a layperson may justifiably rely, then it may be taken as a fact and, if untrue, as the basis for a claim of misrepresentation. (Assertions about foreign laws are generally held to be statements of fact, not opinion.) Assertions of Intention Usually, assertions of intention are not considered facts. The law allows considerable leeway in the honesty of assertions of intention. The Restatement talks in terms of “a misrepresentation of intention…consistent with reasonable standards of fair dealing.” [5] The right to misstate intentions is useful chiefly in the acquisition of land; the cases permit buyers to misrepresent the purpose of the acquisition so as not to arouse the suspicion of the seller that the land is worth considerably more than his asking price. To be a misrepresentation that will permit rescission, an assertion of intention must be false at the time made; that is, the person asserting an intention must not then have intended it. That later he Saylor URL: http://www.saylor.org/books Saylor.org 8 or she does not carry out the stated intention is not proof that there was no intention at the time asserted. Moreover, to render a contract voidable, the false assertion of intention must be harmful in some way to other interests of the recipient. Thus, in the common example, the buyer of land tells the seller that he intends to build a residence on the lot, but he actually intends to put up a factory and has lied because he knows that otherwise the seller will not part with it because her own home is on an adjacent lot. The contract is voidable by the seller. So a developer says, as regards the picturesque old barn on the property, “I’ll sure try to save it,” but after he buys the land he realizes it would be very expensive (and in the way), so he does not try to save it. No misrepresentation. Intentionally Made Misrepresentation The second element necessary to prove fraud is that the misrepresentation was intentionally made. A misre …

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