Mistakes/Fraud Case problem
LAW001 Business Law 1
Week 6 Assignment
Mistakes/Fraud Case problem
Chapter 15 – Mistakes, Fraud and Voluntary Consent
A Read the case Desgro v. Pack CaseLinks to an external site.
Links to an external site.
B. Study the Whiteboard.Links to an external site.
watch Prof J videoLinks to an external site.
C. Carefully explain (define and provide the reasoning) in your own words (paraphrase and do not copy from the case) the following:
1. “The trial court granted summary judgment to defendant, finding that the contractual limitation period was reasonable and enforceable. The trial court stated that plaintiff ‘had plenty of time to find any deficiency’ because he had been living in the home for at least ten months when the contractual limitations period expired.”
2. “Courts may determine the intention of the parties by a fair construction of the terms and provisions of the contract, by the subject matter to which it has reference, by the circumstances of the particular transaction giving rise to the question, and by the construction placed on the agreement by the parties in carrying out its terms.”
3. “Accordingly, we do not need to examine the contract’s provisions to determine their reasonableness because the agreement at issue is not a contract of adhesion.”
4. “Home inspections have been deemed by this court to be a ‘service of great importance to the public,’ and the exculpatory clauses contained in home inspection agreements have been determined to affect the public interest as well.” Carey v. Merritt, 148 S.W.3d 912, 918 (Tenn. Ct. App. 2004)Links to an external site.; Russell v. Bray, 116 S.W.3d 1, 8 (Tenn. Ct. App. 2003)Links to an external site..
5. “Tennessee has long-recognized the well-established general rule that in the absence of a prohibitory statute, a contract provision is valid which limits the time for bringing suit, if a reasonable period of time is provided, and that the general statutes of limitations are not prohibitory of such contractual provisions.”
6. “In this case, the language plaintiff complains of is not an unenforceable exculpatory clause.The language is a contractual limitations period, which our court has repeatedly held to be enforceable so long as the period is reasonable. The provision does not exculpate defendant from most or all liability, but rather limits the time period within which plaintiff can file suit against defendant. Thus, plaintiff’s argument in this regard is without merit.”
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