David et al,

We have had this discusion before and somewhat agreed that the subject line should indicate the nature of the missive in order to give people the option of deleting without having to read it first....I get so many emails that I have to filter through without reading each and everyone...that's why when people email me but keep the subject line the same, I may delete without knowing that the email is a different topic...so, please make sure your email subject lines indicates the true nature of the contents.......Laura below did indicate the political substance of her email: "John Kerry v. the Bushies."  That strikes me as a political comment and allws me to delete without prejudice.....I, as the moderator, just hesitate to place restrictions on our content since so many of our good discussions are controversial in nature.  But, I understand david's sensibilities in this area.  It is the cost of open discussion, nonetheless, and I think our concensus on the subject line notation will work to alleviate most of this issue.

Dan

>>> Dave Schein <[log in to unmask]> 11/01/06 2:12 PM >>>
Folks - I would like to suggest we avoid political discussions on this list serve. I do not agree with the emails below, but feel this is an inappropriate forum to discuss political issues. 
 
FYI: My Dad served as an enlisted man in the Navy until he retired after 28.5 years and he was one of the brightest people I know. He was also committed to peace through strength and abhorred war and violence. 
 
DAVID D. SCHEIN, MBA, JD, Ph.D.
 
 
 
-----Original Message-----
From: [log in to unmask]
To: [log in to unmask]
Sent: Wed, 1 Nov 2006 1:35 PM
Subject: John Kerry v. the Bushies


I found a cartoon in the form of a fake recruiting poster not long after the Iraq war began and put it on my office door.  Alongside the drawing of the soldier, it says “Out of work?  Undereducated?  No Health Plan?  Join the Army and See Iraq.”  I put it up because I thought then and still think that there is a lot of truth in it.  That’s what I took Kerry to mean.  And I get the same feeling when every weeknight I watch in silence and sadness “the honor roll of service personnel killed in Iraq and Afghanistan” on The Lehrer News Hour.  I don’t think Kerry owes John McCain or anyone else an apology for pointing out an ugly truth about this war.
Laura
 



From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Robert Emerson
Sent: Wednesday, November 01, 2006 1:24 PM
To: [log in to unmask]
Subject: Re: parol evidence question (And another one)
 
No matter, Jim.  I know what you meant (just like I know what John Kerry meant - and it's not what the Bushies are saying).  And thank you for reminding us of the good ole UCC.  I teach the same point, and it's good to hear others evidently do as well.
                           Robert
 
Robert W. Emerson
Huber Hurst Professor of Business Law 
Chair, Department of Management
Warrington College of Business Admin.
University of Florida         
----- Original Message ----- 
From: James Highsmith 
To: [log in to unmask] 
Sent: Wednesday, November 01, 2006 1:07 PM
Subject: Re: parol evidence question (And another one)
 
I have really gotten bad at proofreading in my old age...:-))
On Nov 1, 2006, at 9:50 AM, James Highsmith wrote:



This strand seems to have ended, but I missed any discussion of UCC warranties. If an express warranty given orally and a disclaimer in writing have the intended effect of takING away the affirmations of fact just giveN, the UCC clearly indicates that the disclaimer is ineffective. Of course, there are always problems of proving the oral affirmations of fact, so wise to jot them down on the written agreement. But I think the principles of both parol evidence exceptions attacking the validity of the contract, together with the Code's clear preference for an innocent buyer justifiably to rely on affirmations of fact that become a PART OF THE basisright to rescind.
On Oct 26, 2006, at 2:59 PM, Keith A Maxwell wrote:



I agree with the conclusion that the P.E. rule does not exclude evidence of fraud or misrepresentation. But here is another question: If the clause in Dan’s example had been expressly exculpatory in attempting to hold the dealership harmless for misrepresentations (as distinguished from fraud), would a court likely strike it down as contrary to public policy? Anyone know of precedent one way or the other? (I think it is fairly clear the there can be no exculpation of liability for intentional fraud.)
Keith
ooooooooooooooooooooooooooooooooooooooooooooooooo
Keith A. Maxwell
Nat S. and Marian W. Rogers Professor   
Professor of Legal Studies and Ethics
School of Business and Leadership
University of Puget Sound
Tacoma, WA 98416
Office Phone: 253.879.3703
www.ups.edu/faculty/maxwell/home.htm
ooooooooooooooooooooooooooooooooooooooooooooooooo



From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of John Allison {allisonj}
Sent: Thursday, October 26, 2006 2:41 PM
To: [log in to unmask]
Subject: Re: parol evidence question
Whether it’s fraud or an innocent misrepresentation, the parol evidence rule does not exclude evidence of these statementss.  The statements do not fit within the definition of the parol evidence rule.
Obviously, the P.E. rule would only apply in the first place if the court found the document to be “integrated”—that is, the parties apparently intended the document to be the final word on the terms they agreed upon.  This is where the “merger clause” comes in—it spells out that intent.
The P.E. rule does not exclude parol evidence if it is introduced for the purpose of proving that there is not a valid contract in the first place, such as evidence tending to show fraud, innocent misrepresentation, duress, mistake, a condition precedent, etc.
John
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Don Carper
Sent: Thursday, October 26, 2006 4:28 PM
To: [log in to unmask]
Subject: Re: parol evidence question
One cannot tell from the example whether it is misrepresentation or fraud because the sellers knowledge and intent is not disclosed.  However, in either case the testimony should be allowed as proof of a material misrepresentation. 
If the included provision changed the situation then it might as well read " No representations of any kind even if fraudulent, including of any salesperson, will be any part of this agreement unless the representation is written down here and signed by both the seller's agent and the buyer.
I expect the court would refuse to enforce the provision as against public policy.
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of James A. Bryant
Sent: Thursday, October 26, 2006 2:07 PM
To: [log in to unmask]
Subject: Re: parol evidence question
I am inclined to go with fraud because of misrepresentation of past or
present facts. I think parol evidence is directed to contractual
provisions such as what the dealer was agreeing to do to serve the car,
etc.
James A. Bryant
>>> Daniel Warner <[log in to unmask]> 10/26/2006 3:23 PM >>>
Hi Colleagues:
What do you think about this problem:
Innocenta bought a car from Used Car Co.  The car salesman, Bagit,
told
Innocenta that the car had never been in a wreck and that it would go
at
least 2000 miles without adding oil; neither of these points was in
the
written contract, signed by Innocenta, which had this provision:
This written contract is the complete understanding of the parties.
No
representations of any kind, including of any salesperson, will be any
part of this agreement unless the representation is written down here
and signed by both the seller's agent and the buyer.
Wkay, it seems to me that there are two arguments.  First is that
evidence of contemporary oral statements that amount to fraud will be
allowed as an exception to the parol evidence rule; Innocenta wins.
The other is that a clear merger or integration clause controls,
notwithstanding fraud.  If the rule were otherwise principals (the
salesperson's boss) would always be at the mercy of unauthorized
representations made--or alleged to have been made--by their agents.
Innocenta loses.
I'm inclined to go with the second analysis. What do you think?
Thanks
Dan Warner
Professor Daniel M. Warner
Department of Accounting (Business Legal Studies)
MS 9071, Western Washington University
516 High St.
Bellingham, WA 98225
(360) 650-3390
[log in to unmask]



 
 
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