Part I: A new client has come into the office and is very upset. Alex Smith recently purchased a freezer from Star-Rent-to-Own. Alex thinks he may have been the recipient of a bad contract.
Six months ago, Alex and Sandra Smith signed an agreement with Star Rent-to-Own to purchase a freezer. The Smiths signed an agreement stating that they would make 8 monthly payments at $100. The Smiths thought this price was a bit high, but knew they could make the $100 payment each month. The freezer was delivered the next afternoon.
During the fifth month of their contract, Alex began performing online research in order to purchase an identical freezer as a gift for his mother. Alex learned that the freezer is sold at Lowes, Home Depot, and Wal-Mart. The price listed by each retailer ranges from $229 to $249. Alex and Sandra were heartbroken that they were paying more than triple the cost of other retailers.
Alex and Sandra have already paid $600 on the contract. At this point they would like to avoid making the final 2 payments. Before the attorney can make a decision on whether or not to take the case, the attorney needs to make sure that the Virginia courts apply a two-prong test for unconscionability. The case that the attorney learned this two-prong test from is Galloway v. Galloway, 622 S.E.2d 267 (Va. Ct. App. 2005).
Read Galloway, then locate 2 additional cases that examine the two-prong test for unconscionability. Draft 1 paragraph (4–5 sentences) for each of the additional cases.
Each paragraph should include a sentence that explains whether the court applies the two-prong test for unconscionability.
Part II: Assume that the attorney and the Smiths are Christians. Draft a paragraph explaining whether a Christian should seek to get out of a contract
Part 111: For the following 2 cases write a short paragraph explaining how the case was similar or different to one of the 2 cases you selected.
Derby v. Derby
In the case Derby v. Derby, the wife, Sandra A. Derby, argued that the decision of the circuit court that held a separation agreement was invalid and awarded a divorce to the husband, George E. Derby, on the grounds of the wife’s adultery. She argued that the trial court erred in finding that the husband had proven adultery by clear evidence and erred in finding the separation agreement invalid because of fraud, duress, and undue influence.
In this case, it was determined whether the evidence presented to the trial court sufficed to set aside a written property settlement agreement on the grounds of the unconscionability and constructive fraud or duress.
The court applied the two prong test in that an agreement between husband and wife over property is unconscionable. The court rule is that the settlement agreement was, in fact, unconscionable. The husband only agreed to the agreement after being given the impression that the marriage was to continue
Mckay v McKay
in Mckay v McKay, John McKay and Stephanie Cooke had gotten divorced and shared two sons. Mother was awarded custody, and Father was awarded visitations and was court ordered to pay their son Joel’s college tuition. He visited his boys for 3 years before they cut off ties with him. 3 years later father sought depression treatment, and a year after that tried to reconnect with his sons who wanted nothing to do with him.
Joel started college at Indiana University- Kokomo where he continued to live with his mother. Without telling his father, Joel transferred to Indiana University- Bloomington where he had to live on campus with a fraternity. This made the cost the father had to pay increase.
Mother and father both filed petitions to modify support/education costs. Father again attempted to see his children again, to which Joel declined. Father felt it is not right to have to pay for Joel’s college expenses as he is a man and wants nothing to do with his father, however if Joel established a relationship with him he would have no issue with helping put him through college.
Court denied visitations and required father to pay $150 a month towards tuition and boarding
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