While attorneys frequently draft memos and briefs, they draft far more letters and emails. Thus, one of the greatest tools an attorney can possess is the ability to draft profes
OVERVIEW
This entire course has focused on written communication in various formats. While attorneys
frequently draft memos and briefs, they draft far more letters and emails. Thus, one of the
greatest tools an attorney can possess is the ability to draft professional letters and emails.
In this final assignment of the session, you will be drafting a professional letter to your client
explaining the decision of the court. You are continuing with the same facts and issues that you
have covered thus far. By now, the facts and law should be as familiar to you as the back of your
hand. Your instructor will provide a summary of the decision of the court (SEE ATTACHED). It will be up to you to
advise your client on the decision of the court and what they should do next.
INSTRUCTIONS
Follow the format that has been included in the prompt (SEE ATTACHED)
. This includes the headings and sections. Make sure your brief is:
1 to 2 pages in length.
Does not include a cover page or running heads.
Single-spaced, Times New Roman, 12-point font.
Follows the format for an advice letter.
STRICTLY FOLLOW THE FORMAT IN THE ATTACHED DOCUMENT NAMED "JONES CLIENT LETTER MEMO"
Will be checked for originality via the Turnitin plagiarism tool. Please provide a TURNITIN AI REPORT.
The Law Offices of Patrick, Wayne and Swayze
To: Associate
From: Susan K. Patrick, Esq.
Re: Joneses, Unconscionability defense – Firm File number 4182016
Concern for the protection of these consumers against overreaching by the small but hardy breed of merchants who would prey on them is not novel. There is a long history of protecting consumers from an inequality of bargaining power by examining the gross disparity of the product’s cost and value as well as the overreaching or oppressive influences of the seller. Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989).
Section 2-302 of the Uniform Commercial Code enacts the moral sense of the community into the law of commercial transactions. It authorizes the court to find, as a matter of law, that a contract or a clause of a contract was "unconscionable at the time it was made", and upon so finding the court may refuse to enforce the contract, excise the objectionable clause or limit the application of the clause to avoid an unconscionable result.
The question before this court is whether or not, under the circumstances of this case, the sale of a laundry pair having a retail value of $1250.00 for $4000.00 (including $1,000.00 for the late payment) is unconscionable as a matter of law. Virginia courts have consistently applied a two-prong test to determine if an agreement is unconscionable: gross disparity, and overreaching or oppressive influences. Derby v. Derby, 378 S.E.2d 74 (Va. Ct. App. 1989). The court believes that the enforcement of this contract as written would create an unconscionable result.
The gross mathematical disparity between $1250.00 (the highest retail value of the laundry pair), which presumably includes a reasonable profit margin, and $3000.00 (the Jones’ cost of the laundry pair), which is exorbitant on its face, carries the greatest weight. Furthermore, the credit charges are near the retail value of the laundry pair. These alone may be sufficient to sustain gross disparity. However, the mathematical disparity alone is not enough to determine if an unconscionable result would be created.
This court must also examine whether there were oppressive or overreaching influences. The seller must know of the very limited financial resources of the purchaser, at the time of the sale, and use that knowledge to their advantage. Advantage was aware of the few options available to the Joneses at the time of their emergency. The agent of Advantage was aware of the limited financial resources of the Joneses and took advantage of their time of need by suggesting that the cost would be slightly higher but still competitive.
Indeed, the value disparity and the influences of Advantage leads inevitably to the conclusion that knowing advantage was taken of the defendants.
There is no question about the necessity and even the desirability of installment sales and the extension of credit. There are many who would be deprived of even the most basic conveniences without the use of these devices. Similarly, the retail merchant selling on installment or extending credit is expected to establish a pricing factor that will afford a degree of protection commensurate with the risk of selling to those who might be default prone. However, neither of these accepted premises can clothe the sale of this laundry unit with respectability.
Having already paid more than $1250.00 toward the purchase of this laundry pair with a retail value of $1250.00, Advantage has been compensated for the laundry pair. However, a payment was missed so an additional penalty is reasonable. The $1,000 penalty is far beyond reasonable. Therefore, the additional payment shall be limited to the equivalent of one monthly payment: $250.00. The contract is reformed and amended by changing the payments to equal the amount already paid by the Joneses plus the $250.00 late penalty.
This document may contain information that is privileged or confidential. If you are not the intended recipient, please delete the information and notify us immediately.
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