need to list facts, issues, conclusion

INTERNAL MEMORANDUM TO:CLA Examinee...

INTERNAL MEMORANDUM

TO:CLA Examinee

FROM:

DATE:

RE:New Client File, John Bucks

Debbie Lee, a well known photographer for over 20 years in the State of Success and in the City of Hooray, owns a studio that offers "on location" photography.She really enjoys being able to offer such flexibility to her clients as well as getting a chance to see new spots for taking photographs.Enabling clients to be photographed in environments of their choice is what has built her successful career.John Bucks owns a new health spa located in a nearby mountain region.John had seen and admired Debbie's "on location" photography work.

He called Debbie to arrange for photography as part of his promotional plan for the spa.John told her that he planned to trim 50 lbs from his own considerably hefty and robust frame by participating in the program of diet, exercise, and strength training offered at the spa.He wanted to have "before and after" pictures taken of himself eating at the spa, working out on the spa exercise equipment and hiking along one of the spa's scenic trails.The pictures were to be displayed in strategic locations throughout the spa and would be included in the spa's brochure.Debbie stated that the total charge for the photography (5 before and 5 after pictures) would be $1000.

The parties agreed that the "before" pictures would be taken on the following day.When Debbie arrived at the spa, she learned for the first time that it was a health spa for nudists.She was extremely uncomfortable, but the naked John persuaded her to stay and take the first set of pictures.On the next day, John received the five "before" pictures and a letter from Debbie requesting immediate payment of $500, and stating that the five "after" pictures would be taken by her assistant upon notification that John had lost 50 lbs.

John Bucks has consulted with our office concerning whether an enforceable contract even existed as this was not reduced to writing.He wants this project completed.He also believes that he does not owe her the $500 or the $1000 until Debbie personally completes the photography of the "after" pictures.

Please analyze the following statutes to see if they are applicable in resolving the matters referenced above.

STATE OF SUCCESS STATUTES

SS 453.54CONTRACT NOT TO BE PERFORMED WITHIN A YEAR

(1) Where any promise in a contract cannot be fully performed within a year from the time the contract is made, all promises in the contract are within the Statute of Frauds until one party to the contract completes his performance.

(2) When one party to a contract has completed his performance, the one-year provision of the Statute does not prevent enforcement of the promises ofother parties.

SS 451.04PROMISE REASONABLY INDUCING ACTION OR FORBEARANCE

(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

SS 617.102

FORMAL REQUIREMENTS

(1) Acontractfor thesaleofgoodsfor the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that acontract for salehas been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity ofgoodsshown in such writing.

(2)Between merchantsif within a reasonable time a writing in confirmation of thecontractand sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.

(3)Acontractwhich does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable

(a) if thegoodsare to be specially manufactured for thebuyerand are not suitable forsaleto others in the ordinary course of theseller'sbusiness and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or

(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that acontract for salewas made, but thecontractis not enforceable under this provision beyond the quantity ofgoodsadmitted; or

(c) with respect togoodsfor which payment has been made and accepted or which have been received and accepted

SS 451.23UNCONSCIONABLE CONTRACT OR TERM

If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.

SS 453.3601EFFECT OF MISUNDERSTANDING

(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and

(a) neither party knows or has reason to know the meaning attached by the other; or

(b) each party knows or each party has reason to know the meaning attached by the other.

(2) The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if

(a) that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party; or

(b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.