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Guide de lecture.
 

"Talking Law" N°7 : Memorandum of Law.

Un guide en plusieurs articles pour comprendre et utiliser l’anglais juridique, par KC Anderson (www.SpeakLegalEnglish.com)... Voici le septième article (N°6 ici) :

"If I can’t have too many truffles, I’ll do without truffles."
Colette

When we left Ben Forthwright last week, he had requested that his law clerk, Allison, do some additional research in the Blaze Masterson case and prepare a memorandum of law on the possible causes of action. Here is her memo.

Memorandum of Law

To : Ben Forthwright
From : Allison
Date : May 12, 2006
Re : CISG and truffles

As per your request I have done some additional research on the UN Convention on the International Sale of Goods (hereinafter referred to as “CISG”) to determine whether or not Blaze Masterson has a cause of action under the CISG or any other legal theory. Here are my findings.

Facts

On March 11, 2006 Blaze Masterson ordered 1000 grams of White Italian Truffles at the advertised price of $1500 and 1000 grams of French Black Truffles from Gourmet Value at the advertised price of $1400. Gourmet value listed many different truffle varieties on its order form including truffles from Asia, Oregon and Australia as well as Italy and France.

The truffles arrived on March 24, 2006 via UPS. When Masterson opened the box he found a container with a label identifying the contents as “Certified Fresh Oregon State Truffles”. He said that he did not open the enclosed container but rather packed them back into the box and sent them back to Gourmet Value with a note. “I will not accept these inferior quality truffles. I did not order these and will not pay for them. You will be hearing from my lawyers.

As you know, because of the substitution of the Oregon Truffles Masterson canceled his “All Around the Truffle” dinner and wants to sue Gourmet Value for his losses.

Law

We have discussed several different legal theories that may be applicable to the case at hand.

Fraud

The elements of a cause of action for fraud are as follows :

1) a false misrepresentation of a past or present material fact, (2) knowledge by the person making the false assertion that it is false or ignorance of the truth of the assertion, (3) an intention to induce the claimant to act or to justify the claimant to act, (4) the claimant must have been induced to act or justified in acting in reliance on the representation, and (5) the claimant must suffer damage proximately caused by the misrepresentation.

In other words, we would have to claim that Gourmet value intentionally lied in its advertising in order to get Masterson to order the truffles, that Masterson relied on this false advertising when he ordered he truffles and that the losses suffered by Masterson were directly caused by the false advertisement.

Material Misrepresentation

Material misrepresentation is the first element of fraud and is usually used as a defense to an action where a party seeks to enforce a contract. In this case if Gourmet Value tries to force Masterson to pay for the Oregon truffles we could claim material misrepresentation as a defense. A contract based on a material misrepresentation would be void.

False or Deceptive Advertising

This is not really a private cause of action but rather a claim to be made by a governmental agency. We could report Gourmet Value to the proper authorities but we could not use this legal theory to support a private lawsuit. Of course the false or deceptive nature of the advertising can be the basis of a material misrepresentation or fraud.

Breach of Contract

Under the CISG the seller of goods breaches the contract of sale if he sends non-conforming goods. Under Section II Article 35 the seller must deliver goods which are the quantity, quality and description required by the contract.

The first question arises as to whether the truffles are the quantity, quality and description required by the contract. My preliminary research on the question of the “quality” of truffles has been surprising. (See below) We would definitely need a truffle expert on the point of truffle quality as the subject is very complicated.

It is also important to note the definition of conforming goods under this provision.
And unless there is an agreement otherwise, the goods do not conform unless they :
(a) are fit for the purposes for which goods of the same description would ordinarily be used ;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller’s skill and judgment.

So the question under section (a) is whether or not Oregon truffles are fit for the purpose that French or Italian truffles would ordinarily be used. If not then they would be considered non-conforming goods. Furthermore, we need to determine whether Masterson or someone else at the restaurant informed the people at Gourmet Value that the truffles would be used for a special truffle dinner planned by the chef. Then the question becomes whether the Oregon truffles were fit for this particular purpose under section (b). The burden of proving non-conformance would be easier for us under section (b).

Conclusion

Under the facts of this case, a cause of action for fraud looks weak unless we could show that the Gourmet Value intentionally lied in its advertising. Material representation would be a valid defense to a suit by Gourmet Value to enforce payment under the contract.

Breach of Contract based on non-conforming goods is our strongest cause of action. However, we will need some expert support in order to establish that the Oregon truffles do not conform to a contract for French and Italian truffles.

Interesting Truffle Info :

The Oregon truffles are not the same exact fungus as the French and Italian varieties. Within the European varieties there are also different levels of quality. Asian truffles are considered to be inferior to both Oregon and European truffles.
Perigord Black (Black Diamond) - tuber melanosporum ($1800-$2000 or more per kg.)
Italian White (Piedmont) - tuber magnatum ($2000 or more per kg.)
Burgundy Truffle - tuber aestrium or tuber uncinatum ($400-$800
per kg.)
Oregon Black - Leucangium carthusiana ($400 or more per kg.)
Oregon White - tuber orgonense ($350 or more per kg.)
Asian Black - tuber indicum or tuber himalayensis ($100 or more per kg.)

KC Anderson
SpeakLegakEnglish.com
Test your legal English now !

DISCLAIMER : This article is fictional and was created for instructional purposes only. The author gives no assurances or warranties as to the accuracy of any of the information contained herein. The author is not engaged in rendering any legal or other professional advice.

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