FACTS.

Right off the coast of neighboring New Hampshire is the very little known
fishing area called St. Olaf’s Hole, 185—215 miles off the coast. It has some of the best
commercial cod fishing in the North Atlantic. Sebastian Winkin, owner of the lumber
and pulp mill, Le Rive Gauche Moulin, Inc., in Moulin Noir—yes, there are lots of French
Canadians there—was in desperate need of disposing of his mill’s toxic wastes which
were by-products of the production of paper towels, toilet paper, and tissues. He
discussed his problem with the head of his mill operations, Pepe Le Plume de la St.
Tante. He explained to Pepe that the mill might have to close without an effective waste
disposal plan. Pepe, who had come up through the ranks, had a drink that night at the
local bar (you know the one—Pru’s occasional hang out). Our lumberjacks were there,
and they heard him bemoaning the problem over his brandy. They too had had “a few”.
Together, with growing glee, they planned to transport the commercial wastes and
dump them into the deep blue sea. Voila, full employment! Pepe promised them a
contract for all the lumber they could cut and deliver within a year if they would get rid of
the mill’s wastes. They departed, but as they were driving out of the lot, Pepe ran to the
door, having remembered his one college course, Business Law, and shouted in
French, “Je revoque, je revoque”(I revoke, I revoke). The gang was within hearing
range, and one of them turned around and waved at Pepe.

Pepe went back into the bar and decided to have a bite to eat, and he ran into
the famous Prudence Whitaker. Pru had gone into the real estate business and was
selling homes. Pepe felt maybe he’d better get liquid so he could leave town quickly if
he needed to, and he decided to employ Pru as his real estate agent. They agree orally
that Pru could have a commission of 5% of the selling price if he could see Pepe’s
condo. Pru decided to buy the condo herself because the asking price, $278,000, was
a bargain, and Pru felt she could resell it later for much more. Pru told Pepe that she
had a “very private” buyer, and they could close in an escrow and he could have his
money immediately. He was very happy. So was Pru. Later, a friend tells Pepe that
Pru bought his condo and that the sale price was far too low.

Jacques Le Boeuf, the gang’s leader, planned to implement the deed with the wastes
by buying a boat from Jonathan Blinkin (who had a profound facial tic). Le Boeuf
promised him $3,000 plus enough old, prime, white oak to be cut and dried to build a
replica of a 19th Century schooner. Johnny’s oldest friend, best customer, and behind
the scenes financier, however, was Jeremy Nod, the local fishing magnate. Johnny told
Jeremy about this strange deal and what a great deal he’d gotten on the oak from the
oafs. That got Nod athinkin’, and he called his business buddy, S. Winkin (on whose
company’s board he sits), to inquire about what was going on. Winkin knows nothing.
Nod invites him to come fishing with him the following Sunday and Winkin agrees.

In the meantime, the plot thickens. Jacques’ college educated son, Raymond (who is
working on his Ph.D. in chemistry) learns of the deal, and he recognizes a commercially
valuable use for the wastes. He switches the barrels while keeping their same weight
and appearance and he agrees to sell them to the No-Name Extracting Co., Inc. for
beaucoup bucks ($2,500,000) pursuant to an agreement scribbled on the back of an
envelope and signed by the VP for sales for No-Name. The VP is ecstatic and
exclaims, “Ray, you’ve made my day!”. (It’s a phrase invented by their chairman, Mr.
Westwood.) This agreement specifies the time, amount, delivery, future amount, future
delivery times, and the names of the parties. Raymond plays tennis that afternoon and
meets Louise Leyna who is the buying agent for the World-Wide Specialized Chemical
Mega-Corp., Inc. She offers to double the price and he accepts. They sign a contract.

While these events are transpiring, Jacques and His gang, including their navigator,
Jules Le Peche, take a long and leisurely trip out to St. Olaf’s Hole on Saturday and
dump the barrels. When fishing Sunday, there are no cod for the two business buddies.
Suddenly, Nod puts it all together (he thinks), a storm comes up, and in the violent
weather, Winkin falls overboard—never to be seen alive again. When his body is found
on the beach, a brief limerick is found attached to it –

There once was a man named Nod

Who liked to go fishing for cod
Alas for poor Winkin
He did fall and sink in
His contract was tortious, by God!

“Let me not to the marriage of true minds

Admit impediments; love is not love
Which alters when it alteration finds”
Or bends with the remover to remove” - William Shakespeare

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Facts:
● Sebastian Winkin, owner of the lumber and pulp mill, Le Rive Gauche Moulin,
Inc., in Moulin Noir was in desperate need of disposing of his mill’s toxic wastes
which were by-products of the production of paper towels, toilet paper, and
tissues.
● He discussed his problem with the head of his mill operations, Pepe Le Plume de
la St. Tante.
● He explained to Pepe that the mill might have to close without an effective waste
disposal plan.
● Pepe, who had come up through the ranks, had a drink that night at the local bar.
● The lumberjacks were there, and they heard him bemoaning the problem over
his brandy. They too had had “a few”.
● Together, Pepe and the lumberjacks planned to transport the commercial wastes
and dump them into the deep blue sea.
● Pepe promised them a contract for all the lumber they could cut and deliver
within a year if they would get rid of the mill’s wastes.
● They departed, but as they were driving out of the lot, Pepe ran to the door,
having remembered his one college course, Business Law, and shouted in
French, “Je revoque, je revoque”. The gang was within hearing range, and one
of them turned around and waved at Pepe.

Laws:
a. Express/Unilateral Contract, Revocation, Contractual Capacity
b. Requirements of a Contract, Legality of Object, Clean Water Act (pg 174 & 1020)
c. Classification of Contracts, Implied Contract, Void Contract, Harm to Personal
Property, Conversion, Factual cause, Comparative Negligence

Issues:
a. Is contract between Pepe and the lumberjacks valid under revocation?
b. Is the contract between Pepe and the lumberjacks valid under legality of object?

Decisions:
a. No
b. No

Reasons:
A. A unilateral contact is a contract in which only one party makes a promise. An
express contract is an agreement that is stated in words, either orally or in
writing. Pepe and the lumberjacks enter a unilateral express contract when Pepe
orally promised the lumberjacks a contract for all the lumber they could cut and
deliver within a year if they would get rid of the mill’s wastes. The lumberjacks
never verbally promised anything to Pepe. As the lumberjacks were driving out of
the lot, Pepe ran to the door and shouted in French, “Je revoque, je revoque,”
meaning “I revoke.” The lumberjacks were within hearing range, and one of them

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 turned around and waved at Pepe. An offeror may withdraw an offer at any time
before the offer has been accepted. To be effective, notice of revocation of the
offer must actually reach the offeree before he has accepted the offer. Since the
lumberjacks never verbally accepted Pepe’s offer and they acknowledged Pepe
by waving at him after he yelled “I revoke,” the contract between Pepe and the
lumberjacks is no longer valid. The lumberjacks may argue that Pepe revoked in
French and they do not speak French, therefore they did not know Pepe was
revoking the contract. Pepe used language that was obviously susceptible to
more than one meaning. The lumberjacks may also argue that, even though they
were in hearing range, they did not hear or understood what Pepe shouted and
were just waving goodbye.

B. Pepe promised the lumberjacks a contract for all the lumber they could cut and
deliver within a year if they would get rid of the mill’s wastes. There are four basic
requirements of a contract: mutual assent, consideration, legality of object, and
capacity. Not all of these requirements were met when Pepe made a promise to
the lumberjacks. Legality of object states that the purpose of a contract must not
be criminal, tortious, or otherwise against public policy. Before the contract was
made, Pepe and the lumberjacks “planned to transport the commercial wastes
and dump them into the deep blue sea.” By asking the lumberjacks to get rid of
mill’s wastes, if they were to dispose of the wastes as planned, Pepe is asking
them do something illegal. By dumping the toxic wastes into the sea, the
lumberjacks would be violating the Clean Water Act of 1977 which states that it is
unlawful to dispose of any pollutant from a point source into navigable waters,
unless a permit was obtained. Because of this, the contract between Pepe and
Lumberjacks is void and unenforceable due to being illegal.

Facts:
● Pepe ran into Prudence Whitaker.
● Pru had gone into the real estate business and was selling homes.
● Pepe decided to employ Pru as his real estate agent.
● They agree orally that Pru could have a commission of 5% of the selling price if
he could see Pepe’s condo.
● Pru decided to buy the condo herself because the asking price, $278,000, was a
bargain, and Pru felt she could resell it later for much more.
● Pru told Pepe that she had a “very private” buyer, and they could close in an
escrow and he could have his money immediately.
● Later, a friend tells Pepe that Pru bought his condo and that the sale price was
far too low.

Laws:
a. Express Contract, Definition of Agency, Duty to Inform, Fiduciary Duty, Self-
Dealing
b. Contractual Duties, Compensation

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Issues:
a. Can Pepe recover the damages from Pru under fiduciary duty?
b. Can Pepe recover the 5% commission and his home from Pru?
c. Can Pepe be awarded punitive damages under this scenario?

Decisions:
a. Yes
b. Yes
c. Yes

Reasons:
a. Bound under an implied contract to pay what the goods or services furnished
were reasonably worth. Under self-dealing, an agent who is employed to sell may
not become the purchaser nor may he act as agent for the purchaser without the
consent of the principal (Restatement, Section 8.06) pg 371
Pru did not make any attempt or effort to secure consent from this principal in
regards to this matter. Since Pru failed to disclose the conflict of interest while
attempting to purchase the property from Pepe, he broke his fiduciary duty.
Under such conditions, Pepe can rescind the transaction altogether.

b. Under contractual duties of compensation, an agent loses the right to

compensation by breaching the duty of loyalty. Pru breached duty of loyalty when
she decided to buy Pepe’s condo herself because the asking price was far too
low and she felt she could resell it later for much more. As Pepe’s agent, Pru has
a fiduciary duty to act loyally for the principal’s benefit in all matters connected
with the agency relationship. Pru also failed to be loyal when she told Pepe that
she had a “very private” buyer, but never told Pepe that the buyer was her.
Because Pru breached duty of loyalty, Pepe can recover the 5% commision that
was originally agreed upon in their contract and may rescind the transaction
completely if he so chooses.

c. Punitive damages are monetary damages in addition to compensatory damages

awarded to the plaintiff in certain situations involving wilful, wanton, and
malicious conduct. Their purpose is to punish the defendant and thus discourage
others from similar conducts. Given that Pru’s action undermine the very
foundation of the relationship between the principal and agent by breaking one of
its key tenets ( as discussed above: no self-dealing without disclosure, breach of
duty, breach of loyalty ), the court may be willing to consider sending a message
to any other agents who would seek to imitate Pru. Pru’s behavior and actions
were clearly wanton ( deliberate and unprovoked ), wilful, and malicious (
intending to harm.. By benefiting oneself at another’s expense ). Based on this
characterization, it is possible Pepe can be awarded punitive damages.

Facts:

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 ● Jacques Le Boeuf, the gang’s leader, planned to implement the deed with the
wastes by buying a boat from Jonathan Blinkin (who had a profound facial tic).
● Le Boeuf promised him $3,000 plus enough old, prime, white oak to be cut and
dried to build a replica of a 19th Century schooner.
● Johnny’s oldest friend, best customer, and behind the scenes financier, however,
was Jeremy Nod, the local fishing magnate.
● Johnny told Jeremy about this strange deal and what a great deal he’d gotten on
the oak from the oafs.
● Nod called his business buddy, S. Winkin (on whose company’s board he sits), to
inquire about what was going on.
● Winkin knows nothing. Nod invites him to come fishing with him the following
Sunday and Winkin agrees.

Laws:
a. Express Contract
b. Material Breach, Anticipatory Repudiation

Issues:
a. Was an enforceable contract formed between Jacques and Jonathan?
b. Can Jonathan Blinkin recover the cost of the boat once he realizes he won’t be
paid by Jacques Le Boeuf?

Decisions:
a. Yes
b. Yes

Reasons:
a. The agreement in question follows the four basic requirements of a contract;
Mutual assent, consideration, legality of object, and capacity. In this case, both
parties did assent to the contract, there was consideration, both parties had the
capacity and although, Jacques plans to utilize the boat for illegal activity, that
fact is unknown to Blinkin. Under normal circumstances, illegality does causes
agreements to become unenforceable. There are, however, exceptions. In this
case, Blinkin can easily claim excusable ignorance as there is no indication that
he knew anything about the illegal agreement between Lumberjack and Pepe.
Because of this, an enforceable contract was formed between Jacques and
Jonathan.

b. Pepe revoked the contract that promised Le Boeuf and the lumberjacks all the
lumber they could cut and deliver within a year if they would get rid of the mill’s
wastes. Le Boeuf promised Blinkin $3,000 plus enough old, prime, white oak to
be cut and dried. Since the contract between Pepe and Le Boeuf was revoked,
Le Boeuf won't get paid the lumber and to be able to fulfill the contract
requirements with Blinkin. Although we have no idea whether or not Le Boeuf will
perform the contractual duties or not, Blinkin can charge Le Boeuf with

5
 anticipatory repudiation if he has reason to believe the contract will not be
fulfilled. If Le Boeuf does not perform after Blinkin brought up this charge, there is
a material breach and Blinkin may recover damages due to the breach.

Facts:
● Jacques’ college educated son, Raymond (who is working on his Ph.D. in
chemistry) learns of the deal, and he recognizes a commercially valuable use for
the wastes.
● He switches the barrels while keeping their same weight and appearance and he
agrees to sell them to the No-Name Extracting Co., Inc. for beaucoup bucks
($2,500,000) pursuant to an agreement scribbled on the back of an envelope and
signed by the VP for sales for No-Name.
● The VP is ecstatic and exclaims, “Ray, you’ve made my day!”.
● This agreement specifies the time, amount, delivery, future amount, future
delivery times, and the names of the parties.
● Raymond meets Louise Leyna who is the buying agent for the World-Wide
Specialized Chemical Mega-Corp., Inc.
● She offers to double the price and he accepts. They sign a contract.

Laws:
a. Express Contract
b. Tort of Liability of Agent, Self-Dealing, Duty to Inform
c. Specially manufactured goods?
d. Fraud in the inducement - false representation, Knowledge of Falsity
e. Interference with contractual relations section 766, Breach of contract

Issues:
a. Is Ray liable to No-name?
b. Is Ray liable to World-Wide Specialized Chemical Mega-Corp?
c. Is Ray and/or Lousie Leyna liable to No-Name?

Decisions:
a. Yes
b. Yes
c. Yes, No-Name can hold Lousie Leyna liable.

Reasons:
a. Under the requisites for fraud in the inducement; a false representation of a fact
that is material and made with knowledge of its falsity and the intention to
deceive and which representation is justifiably reliable on. Ray changed the
contents of the barrels with the intention to deceive No-Name Extracting Co and
collect a profit.
b. Under the same reasoning, fraud in the inducement, Ray is liable to World-Wide
Specialized Chemical Mega-Corp because he is selling a misrepresented
product.

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c. There was a signed agreement, contracting the barrels in which specified the
time, amount, delivery, future amount, future delivery times, and the names of the
parties. One who intentionally and improperly interferes with the performance of
a contract between another and a third person by inducing or otherwise causing
the third person not be perform the contract, is subject to liability to the other for
the pecuniary loss resulting to the other from the failure of the third person to
perform the contract. One could reasonably assume that Lousie doubling the
offer, would result in interference occurring as a natural consequence of her
actions. This means that Lousie is liable to No-Name for any loss resulting from
Ray not following through with their agreement.

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Facts:
● Jacques, Jules Le Peche, and his gang take a trip to St. Olaf’s hole and dump
the barrels
● While fishing on Sunday, Nod pulls it together (he thinks), a storm comes up, and
Winkin falls overboard and is never seen again
● His body is found on the beach with a note attached

Laws:
a. Clean Water Act, Nuisance tort
b. Classification of Contracts, Implied Contract, Void Contract, Conversion, Factual
cause
c. Harm, wrongful death

Issues:
a. Are Jacques, Jules Le Peche, and his gang liable for damages?
b. Is Pepe liable for damages caused by Jacques, Jules Le Peche, and his gang?
c. Is Nod liable for the death of Winkin?

Decisions:
A. Yes.
B. Yes.
C. Yes.

Reasons:
a. The gang committed the tort, by dumping the barrels into St. Olaf’s hole and
thus, will be liable for any damages incurred. Defined as imposed liability for
significant and unreasonable harm to another’s use or enjoyment of land the
lumberjacks are negligent under the nuisance tort.
The Lumberjacks could not argue that they were bound by a contract
since a valid, enforceable contract was never formed due illegality of the
agreement. The lumberjacks would also not be able to successfully argue that
since they dumped the pollutant in international waters, they did not break the
law. For one, just travelling in international waters does not grant immunity, nor is
it sufficient to avoid prosecution as, based on the facts of the story, it can be
reasonably assumed that the seller of the boat had it registered in the US and
therefore was subject to US laws. There is no indication of any attempts by the
Lumberjacks to register the boat with any other nation state to avoid prosecution
in US courts and as such it can also be reasonably assumed that the original
assumed registration remained in place. There is also no indication that
Lumberjacks attempted to sail the ship without the flag, which could, potentially,
allow some defense. Given those facts, the boat and its crew are subject to US
jurisdiction and liable under Clean Water Act.
The only defense Lumberjacks can realistically use is comparative
negligence. They can attempt to shift as much blame as they can to Pepe in
hopes that their share of liability would be lowered.

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b. While we have already established that the contract is void due to illegality, the
question remains whether Pepe is liable for the damages done by the
Lumberjacks. There are two factors that determine Pepe’s liability. Pepe’s
actions are a factual cause for Lumberjacks polluting navigable waters. Were it
not for Pepe and Lumberjacks working together with “glee”, it is likely the event of
dumping pollutant would not occur. The “but-for” test applies in this case. The
event would not have occurred had an implied agreement had been attempted to
be reached. However, it is not absolutely certain that Lumberjacks would not
have been dumped the pollutant had after the agreement was made between
them and Pepe. Since that is the case, foreseeability could be argued.
That said, it is not immediately apparent that Pepe’s conduct was
negligent. He may be able to successfully argue that intoxication inhibited his
contractual ability to the extent that led Lumberjacks to an implied assent to the
illegal agreement. He may be able to successfully argue that because, while
Lumberjacks were departing, he attempted to revoke the contract. The above
does not change that the agreement was void to begin with due to illegality, but it
does put into question the extent of Pepe’s liability.
Since that is the case, the question immediately becomes, was Pepe
negligent in his conduct. The general rule is that a person is under a duty to all
others to exercise reasonable care. There are several elements that must be
considered to determine whether Pepe’s conduct was negligent.
i. Negligence consists of conduct that creates unreasonable risk of harm. It
is hard to argue that planning to pollute and hiring Lumberjacks to carry
out this plan with an enticement of a promise does not create an
unreasonable risk of harm. In this case, Pepe’s only defenses are that he
may have drunk too much and that he did attempt to mitigate the issue,
and revoke the agreement almost immediately afterwards he came to his
senses.
ii. Negligence per se arises from the apparent violation of the Clean Water
Act.
iii. Absent Clear Water Act, negligence under Duty to act requires that when
person’s conduct creates continuing risk of physical harm, that person has
a duty to prevent that harm. Pepe did attempt to minimize that harm only
after he realized his potential liability. That said, his conduct resulted in a
situation that continuing physical harm to begin with.
iv. Negligence arising from foreseeability. Given the circumstances, Pepe
and Lumberjacks planned with “glee” their joint venture. Pepe as an actor
in this case played a lead role in orchestrating the events that directly led
to harm that polluted water. He cannot argue those events could not be
foreseen, because he planned those events. Worse yet, in this particular
set of circumstances, he could be perceived and painted as the leader if
not the mastermind of this scheme.
v. Pepe’s negligence did cause harm to a protected interest ( navigable
water )

9
 From those five points it becomes clear that Pepe’s conduct was negligent. He is
not, however, the only liable party. As such, we determine that given Pepe’s last
clear chance to avoid injury by attempting to revoke the agreement, and his
intoxication, his liability for the damage is 30% and Lumberjacks 70%.

c) While not covered in our book, it is difficult, if not impossible to ignore a death of
a person of interest in this case and the circumstances surrounding it. Since that is the
case, we covered the death of Winkin based mostly on external sources and the highly
publicized case of O.J Simpson.
When a person dies or is killed due to negligence, misconduct ( including murder
), the surviving members of the family may sue for “wrongful death”. It should be
immediately noted that under normal circumstances, such suites follow the criminal trial.
The fact that the defendant may be found liable for the wrongful death does not
automatically translate into a conviction of a crime associated with that death. Civil case
deals with the harm, liability and the pecuniary award should the guilt be proven based
on preponderance of evidence ( as opposed to beyond reasonable doubt standard for
criminal trial ).
Wrongful death suits may be brought by personal representative of the
decedent’s estate. We have no indication from the case facts that there is anyone who
would bring such a suit, but at this time we are only discussing a for potential civil
liability and not its probability.
The facts of the case do seem to indicate that, at the very least, Nod may be
liable for the “wrongful death” of Winkin. Based on the facts of the case it appears he
may have had a motive to kill Winkin based on his suspicion that Winkin orchestrated
an attempt to dump pollutant that killed all the fish in the area. As a local fishing
magnate, Nod stood to lose a lot of money. Nod definitely had the opportunity to kill
Winkin with the storm being quite the cover. Nod also had the means to do it as there is
no indication of his reasonable strengths or health indicating otherwise. As per
instructions, we are ignoring the “tortious contract” limerick as a fact related to the case.
With all this in mind, it seems like a remarkable coincidence that only Nod
returned from this trip. There is no immediate indication of foul play, but the progression
of events is simple and telling. Winkin dies shortly after Nod “puts it all together”. Based
on the preponderance of evidence, he may be found liable for Winkin’s death.
Nod may attempt to use the same defense as Lumberjacks: they were in
international waters. Here, based on what we were able to locate on the issue, he may
have some standing depending on the ‘nationality’ of the ship. There is no clear
indication of the vessel type used, whether it was registered in any way, whether there
was any flag used -- whether it was, in fact, a ship without a nationality. If Nod was able
to prove that he obtained a ship without a ‘nationality’ then, apart from drug trafficking,
piracy and transporting slaves, he could murder if with criminal impunity if he wanted to.
It would not shield him from civil liability.
Nod could also attempt to claim that Winkin willingly accepted the risk of fishing
in the area by agreeing to go fishing with him effectively claiming that there was no
negligence since Winking willingly accepted the risk of the activity according to the facts
of the case. If he was able to successfully argue that, then, assuming no preponderance
of evidence that he killed Winkin is found, he may be end up being not liable for
Winkin’s death.

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 That said, based on the preponderance of evidence it does look like Nod killed
Winkin. He had the means, motive and a way to do it.
Money can be a quite a powerful motive.

References:

"Wrongful Death Overview - FindLaw." Findlaw. N.p., n.d. Web. 11 Dec. 2016.

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