On July 9, Kirkland responded to Guesss` complaint with a general denial. Eight affirmative claims were conclusively asserted, but none of them mentioned the word “arbitration” or referred in any way to an arbitration agreement. Later in July, Guess began the discovery. He responded to requests for documents and interrogations about Kirkland and planned more than 10 third-party statements. Although Kirkland objected for a variety of reasons, Kirkland did not mention the word “arbitration” and did not invoke the right to object to The claims made by Guess in this action. The plaintiff, Karen Cole, was a certified nurse anesthetist who had a contract with Liberty Anesthesia Associates, which had a contract with Jersey City Medical Center. She brought an action against the hospital where she was providing services on behalf of her employer. The hospital, meanwhile, filed a third lawsuit against its seller. The complainant finally amended the complaint by stating that she would designate her employer as a direct defendant.
Although the claimant`s contract with her employer contained an arbitration clause, the employer never invoked the arbitration clause in the response as a defence. The parties completed the discovery in 21 months. The parties had dismissed the plaintiff for six days, but she was never questioned about the arbitration clause. This decision illustrates both the possibility of an unwritten arbitration agreement and the factors that may lead a court to decide that a defendant has waived its right to require arbitration. The defendant may invoke the affirmative defence of illegality if, in a contract, the applicant and the defendant agree to commit an unlawful act. The court will not impose a contract for the performance of an illegal act. For example, Sally agreed to buy five sculptures of Harry for $100. But two sculptures weren`t exactly as Sally liked it. Harry then offered to sell the sculptures to Sally for $85 to solve the problem.
Sally agreed and paid Harry the $85. Later, Sally files a complaint against Harry for not being satisfied with the two sculptures. Harry might be able to affirm consensus and affirmative defense satisfaction. Between 1992 and 1994, Guess?, Inc. and Pour le bebe, Inc. (PLB) entered into four licensing agreements. Guess gave PLB the right to manufacture and sell baby clothing and other items using Guess` trademarks. PLB agreed to pay royalties to Guess. All four licensing agreements had binding arbitration provisions. For example, Maricella and Tommy are involved in a small car accident. Tommy sues Maricella for the damage to the side of his car, including the side mirror that has been resolved. Tommy gets a verdict against Maricella and she pays him the money she ordered.
A few months later, the side mirror falls completely. Tommy files a complaint against Maricella and asks her to replace the side mirror. Maricella may be able to assert legal force as an affirmative defense. On October 1, Kirkland requested that arbitration be required in this case, claiming that he had negotiated with Guess as PLB`s “agent” and was therefore entitled to use the arbitration provisions contained in Guess` license agreements with PLB. . . .