USA Public School Law. Is contract law somehow relevant? I am trying to understand the main, basic tenets of USA public vs. private school law. A question I have is whether or not the relationship between a student (/family) and a public school is somehow regulated by a contract, or under contract law. In the case it is, is there any interesting case discussed in terms of contract law (breach of a contract, remedies, ...)? Thanks for some pointer to relevant references.
As a terminological matter, I assume that by &quot;public school&quot; you mean state-operated K-12 systems. As a part of the government, public schools cannot be sued unless the state has allowed a suit on such grounds. Issues such as negligence and violation of rights are not litigated under contract-law theories. Because the public school is required to accept and teach students, parents are required to send their children to school, and parents are not obligated to pay anything, the opportunities for a contract to exist are highly limited. I set aside popular fake contracts between student and teacher which simply recites the teacher's pedagogical vows and expectations, since these are not enforceable contracts with new obligations and consideration. IEP (Individualized Education Program) &quot;contracts&quot; may be advertised as being agreements, but they are mandated (of the school) by law. The contract would be between the parent and the school because the student as a minor lacks capacity to form contracts. The parent cannot be &quot;forced&quot; into an enforceable contract since state law already mandates that the school must provide an education, and the parent never faces the &quot;sign or no schooling&quot; choice. Public schools can, of course, contract with a business, for example a pest-control service, or employment in general. The person whom they contract with can naturally be a parent of a child in the district, but the business contract is incidental to the person's being a parent.
The provisions of the credit card account agreement will be governed by Delaware law, except to the extent to North Carolina public policy overrides it. The provisions of the online services agreement will be governed by New York law, except to the extent to North Carolina public policy overrides it. The electronic communications agreement will be governed by the law of the place with the most significant connection to any disputed issues arising under it. It could also be considered to be an extension of the online services agreement rather than a separate agreement. UDAP is an acronym referring the state deceptive trade practices acts. The unfair act involves non-receipt of paperless billing statements. Even with this level of detail, I don't believe it is possible to know in advance which of the agreements is implicated and which state's laws will be held to apply (or if the differences between the laws of the candidate states is even material on the issue in question). These issues are decided on a case by case basis when there is a mishmash of facts and the outcomes are not terribly predictable. It also isn't obvious that there is a provision covering the conduct in question in any of the three potentially relevant states. The Delaware Deceptive Trade Practices Act doesn't appear to clearly apply to financial services at all. New York's application to financial services is quite narrow and subject to an exception for conduct in conformity with federal law. A failure to provide an invoice, without more, isn't necessarily a deceptive trade practice at all. All in all, there isn't a straightforward or easy answer to this question that can be reached from the information provided.
TOS are a contract. If you have a contract through the App, you have incorporated the TOS as a term of your contract. Contracts mean what they say they do, what you are thinking of as "basic contract law" is actual just an ordinary and customary term that people in your industry usually make a part of the contract, not contract law itself.
Yes, a contract implied in fact can supersede a written contract: if it both (1) arises after the parties have entered into their initial agreement and (2) if the subject matter of the agreement is not subject to the statutes of frauds (i.e. to a statutory requirement that agreements of this kind must always be in writing). A course of dealings before a written contract is signed if the contract states that it is the entire agreement of the parties, or appears from context to be the entire agreement of the parties, may not be considered pursuant to something known as the parole evidence rule (which is actually a rule of substantive law and not evidence, despite the name). An agreement that is required by statute to be modified in writing, something called a statute of frauds, might or might not be susceptible to being modified in this way. Sometimes, failure to comply with a statute of frauds is excused if the parties have partially performed the unwritten agreement, sometimes the statute is applied more strictly and cannot be overcome. Indeed, in Colorado, where I practice law most of the time, there is actually case law that specifically provides that even if a written contract states that it may only be modified in writing, that any oral or implied in fact agreement which could form a contract in the first place may supersede the written agreement. Proving that the course of dealings actually constituted an actual modification of the contractual obligation, may, in practice, be a challenging matter, however. In practice, there is probably a stronger argument on the available facts in the question, that there has been a waiver of the requirement for further provision of the service that may not be undone retroactively, but may be reasserted prospectively with fair notice to the other party, with the written contract remaining in force. The judge or jury would have to listen to the facts from the parties about their course of dealings and communications, about the nature of the &quot;requirement&quot;, and about the pertinent terms of the written contract, and more generally, the larger context of the transaction, and then would decide which interpretation seemed closer to the truth, or if another explanation of what happened was more plausible. This dilemma and uncertainty is generically a problem any time that the parties course of dealings deviates significantly from a written instrument. These kinds of cases are never clear slam dunks for either party in the event of litigation.
There isn't enough information to give a reliable answer in the abstract. It is a hard concept for lots of people to understand, but words don't have the same meaning in every context. Law is not physics or chemistry. Words that mean one thing in a particular instrument or statute could mean another thing somewhere else, even if exactly the same words are used. More context would be helpful in determining a meaning. It could be a reference to a type of use, like AirBnB or other short term rentals (e.g. use as a hotel or hostel). It could also be a reference to a type of building that is not permanent such as tents, RVs, or other non-permanent structures intended for residential occupancy. Usually, a look at what the adjacent and framing language of the covenants say would clarify the intent as would some sense of the kind of structures built or intended to be built in the vicinity. It also isn't clear from context if the emphasis is on "residential" (e.g. in a property with a storage facility included), or on "temporary" (e.g. in a posh suburb).
Jurisdiction has not been provided, so I've written a general answer: Not necessarily; often, such provisions clauses will have their own expiration dates, for example "for five years after signing, X", with X still being valid after cancellation up to 5 years(so if you cancel after 3 years, X is still valid for 2 more years), or "for two years after cancellations, Y"(especially common with non-compete clauses) where the time-limit of Y starts when the contract is cancelled. Other clauses are meant to indeed be enforced forever, such as some non-disclosure, non-disparagement, or indemnity clauses. For example, an indemnity clause in a contract that prevents a party from suing the counter-party for work done under the contract would be pointless if it could be bypassed by a party terminating the agreement. There are lots of legal limits, based on the terms of the provision, and its nature, all governed by the contract law of the jurisdiction under which the contract was drafted under and/or is governed by (this is generally obvious, except for some cross-border contracts, which generally will have a declaration as to whose laws apply). It is not inherently abusive, but can certainly be abused. What is considered abusive often varies from jurisdiction to jurisdiction (not only on this issue, but on legal issues in general). It depends on the jurisdiction, and generally on the terms of the provision itself. If the court asked to enforce the terms of the agreement feels that the provision is illegal or abusive, they won't be enforced (and possibly the entire document declared null and void, depending on the central-ness of the illegal or abusive provision; some provisions specifically state that invaliding the provision doesn't invalidate the whole contract to try to prevent this). If they don't feel the provision is illegal or abusive, they will generally enforce it.
First, the clearly redundant phrase is “applicable laws” - these apply to everything. Second, some acts, particularly consumer protection or sale of goods acts imply provisions into a contract, create obligations that sit beside the contract or create equitable remedies. Many of these can be limited or excluded but this needs to be done explicitly. Third, in legal writing, clarity is preferred to brevity - nice if you can get both but if not, be clear rather than brief. Fourth, the contract is not the document. The document is a record of the “meeting of the minds” that formed the contract. In the event of a dispute, it may be useful to know that particular laws were specifically considered by the parties. Fifth, in legal writing, just as all writing, some people are better than others.
Adam cannot simply void the contract because he has a chance to publish in a more prestigious journal. What he can do depends on the provisions of he contract to which Adam agreed. It is likely, but far from certain, that the agreement permits Adam to cancel it under specified circumstances. If it does, and if those circumstances now apply, Adam can cancel and then submit the paper to the other journal. It is possible that the contract gives he first journal (J1)_ exclusive rights only for a limited period of time. If this is so, and if that time has passed, then Adam may submit the paper to the other journal (J2) without violating the agreement. It is likely, but not certain, that the agreement has provisions permitting the paper to be republished in another journal. If it does, than Adam may republish by complying with those provisions. They will probably include a requirement that the J@ publication include a notice similar to this: This paper was originally published in J1 in the {date} issue. J2 would have to be willing to include such a notice. The agreement between Adam and J1 will specify some things that J1 must do, as well as things that Adam must do. If J1 has failed to carry out a significant part of its obligations, for example if it never published Adam's paper, Adam may be able to rescind the agreement for materiel breach. Exactly what failures on J1's part allow this varies by jurisdiction. Adam would be wise to consult a lawyer before taking this step. Adam may request permission from J1 if none of these situations applies, and J1 may give permission. It would probably insist on a notice like the one mentioned above. But J1 does not have to grant such permission. If none of the situations above apply, and Adam cannot get (or does not ask for) permission from J1, then submitting the paper to J2 would probably violate Adam's agreement with J1. J1 could sue Adam, and perhaps J2 also. If the people running J2 know of this situation, they may well refuse Adam's paper. Adam may be able to write a new paper, based on the same research as his original paper, perhaps with more recent research added. That would not be covered by Adam's agreement with J1, and he could submit that to J2.