20(3)pp55-86TeachingSupplement3.pdf TS 70 Analysis of Legal Issues STEVEN C. COMBS Commun ication Studies. Loyo la Marymount Un ivers ity 7900 Loyola Boulevard, Los Angeles, CA 90045 -8 23 1 U.S.A E-mail : scombs@ lmu,edu Student Objectives: (I) To apply principles of criti ca l thinking to a case study; (2) to set priorities and write efficie ntl y in o rder 10 comp ly with page length limitations ; (3) to use facts, ev idence, definition s, and legal principles selectively in c rafting a rgu ments; and (4) to recognize how one' s audience and goal affect the cho ice of reasoning standards and methods of exp ression. Exercise: ( I 1 Students write o ne page of argumentati o n fo r each of the following roles: (A) You are the plaintiff anorney representing sen. Your goa l is to co n- vince the jury that you r s id e is correcl and to awa rd you approp ri ate damages . (B) You are the defense attorney represe nti ng Bernie Miller. Your goal is to convi nce the jury that your client is innocent and/or that any damages are insignifi cant. (C) You are the foreperso n of the jury. Your goal is to use th e arg um ents provided in (Al and (B) 10 arri ve at ajust verdict. (2) Students wri te o ne-two pages of a na lys is s ho wing how the goa l and audience affected the cho ice of reaso ning and use of language in (Al, (B) , and (C) . Cons ider how a judge might have evaluated the case differently from Ihe ju ry foreperso n. Use the detinitions found in the Lega l Dictionary and the Overview of Contract Law to present your case. Note that no t all of the nformation conta ined in these material s is relevant. Yo u mu st decide what is necessary for your analysis. You may be tempted to alter some of the information in the cases. A vo id this tempta- tion! If yo u read (i nfer) between the lin es, defend you r interpretation . Do not, however, add any informalio n that is not clearl y impl ied wi thin the case. Finally, ass ume thai the jury is co mposed of representat ive members of you r commu nity. © Illformal Logic, 20.3 (2000) Teacllillg Supplemellt #3: pp. TS 76-TS 73. Analysis of Legal issues TS 71 Stipulated Facts: Bernie Miller, a Phoenix small business owner, responded to a post card solicitation and ordered a correspondence course in business accounting. He believed that if he had better knowledge of the principles ofaccQunting he could apply them to his record keeping and thus save money by having to pay less to the government in taxes. The Institute guaranteed to evaluate the progress of each student by grad- ing course work sent into the headquarters. The Institute also had instructors available each evening through a toll-free number for those who needed morc intensive assistance. The cost of the course was $499.00. Printed just above the place on the card for his signature appeared the following words, " Upon accept- ance of the course materials, the signatory of this card agrees to pay Southern California Trade Institute [SCT!] the full amount of the course with the return of the first lesson." Bernie signed the card and mailed it. The following morning, Bernie experienced a great deal of buyer's remorse because he knew he didn 't have the time to commit to the course. He called directory assistance, solicited the phone number for the school , and telephoned. He spoke to Constance Allen. He told her that he had sent the card the previous day and wanted them to disregard the order since he decided not to go through with the course. She told him she would do what she could to intercept the card. Three weeks later the materials arrived. Mrs. Miller signed for acceptance . When her husband returned home, he picked up the package, wrote refused on the address card, drove it to the post office. and mailed it to the Institute never having opened it. A few weeks later, form letters arrived prodding Bernie to send in his money with his tirst lesson. Bernie ignored the letters, assuming that his returned materi- als had not been fully processed. Alier about two months, representatives from the Institute started calling demanding the money for the course. Bernie phoned a customer service representative and explained that he had spoken with Constance Allen, who told him she would take care orhis cancellation , and had returned the materials because he felt they had been forwarded in error. They responded by telling him that they had the signature of a "Mary Miller-wife" on the acceptance card that was returned from the delivery. They also told him that there was noth- ing in the original offer that he signed when he ordered the materials that allowed him to return the copyrighted materials without payment. Additionally, they had not received the returned materials and they believed that he still had them, and if he didn't pay within three days, legal actions would be filed against him. Nine weeks after he had responded to the post card solicitation, Bernie was served with a lawsuit for breach of contract. The suit claimed damages of $499 .00 for the cost of the course and an additional $300.00 for court and collection costs . TS 72 Steven C. Combs Legal Dictionary: Acceptance, Absolute: An express and positive agreement to pay the bill according to its tenor. Aeeeplane, Conditional: An engagement to pay the bill on the happening of a condition. Agent: A person authorized by another to act for him, one entrusted with another's business; one who repre sents and acts for another under the contract or rela~ tion of agency_ Apparent Agent: One whom the principal , either intentionally or by want of ordi~ nary care, induces third persons to believe to be his agent, though he has not, either expressly or by implication, conferred authority on him . A person who, whether or not authorized , reasonably appears to a third person, because of manifestations of another, to be authorized to act as agent for such other . Breach of Contracl: Failure, without legal excuse or standing, to perform any promise that forms the whole or part of a contract. Cancellation: A bandonment of contract. Contract: A promissory agreement between two or more persons that creates, modifies, or destroys a lega l relation ship. An agreement, upon s ufficient con- sideration, to do or not do a particular thing. Fraud: The intentional perversion of truth, by words or conduct, for the purpose of inducin g another in reliance upon it to part with some va luable thing belong- ing to him or her. Notify: To give notice to; to inform by words or writing, in person or by message; to make known. Offer: To present for acceptance or rejection; to exhibit something that may be taken Or recei ved or not. An offer must be so definite in its terms, or require such definite terms in acceptance, that the promise and the performance to be rendered to and by each part are reasonably certain. The word "offer" as used in a statute providing that the buyer, to resc ind a sale, must offer within a reasonable time to return the goods, is synonymous with the word ' ·tender." Reasonable Notice: Such notice Or information of a fact as may fairly and properly be expected or required in the particular circumstances. Subscriber: One who writes hi s name under a written instrument; whether for the purpose of authenticating or attesting it, of adopting its terms as his own ex- pressions. or of binding him se lfby an engagemenl thal it contains. Suhstanlial Pel/ormance: Exists where there has been no willful departure from the terms of the contract, and where the contract has been honestly and faith- full y performed in its material and substantial particulars, and the only variance from the strict and literal performance consists of technical or unimportant omissions or defects. Analysis of Legal Iss ues TS 73 Tender: An offer of money; the act by which one produces and offers to a person holding a claim or demand against him the amount of money which he consid- ers and admits to be due, in satisfaction of such claim or demand , without any stipulation or condition. The offer of performance, not performance itself, and , when unjustifiably refused , places other party in default and permits party mak- ing tender to exercise remedies for breach of contract. Overview of Contract Law: Contract law is based on a party 's failure to fulfill an obligation that the parties voluntarily created for themselves. A contract is an agreement between two or more parties to do a certain thing in exchange for a promise from another person to do another thing. The agreement must be cntered into freely and willingly by persons who are capable of understanding and consenting to the terms (Bronstein, 1990). Contracts that involve mcntally challenged persons, minors, or individuals that have been coerced or misled about significant issues may be unenforceable . A contract is created when one party makes an offer and the other party ac- cep ts the offer. Contracts differ from "promises" because a contract requires that both parties receive some benefit or "consideration>1 from the contract . The con- sideration cannot be something or some act that is illegal or immoral. The failure of one party to uphold a valid agreement is cons idered a " breach of contract. " Breach of contract allows a party to bring the party in default to court and to get the court to correct the situation. In order to prove a breach of contract one must establi sh the term s of the contract, show a failure to adhere to the terms, and demon strate that the failure resulted in a harm to the plaintiff (Bronstein, 1990) . Reference Brons tein , D . A. (1990 ). DemystifYing the law : An introducti on for profe ssionals . Chelsea, MI: Lewis Publishers. Materials Legal Analysis Exercise; The Southern California Trade Institute (SCTI) v. Bernard Miller; Legal Dictionary ; Overview of Contract Law .