BAYAREASHOWS.today.com

TEACHER
Professor Bruce Price
University of San Francisco Law School

CLASS
Contracts Fall 07 Semester
USF Law School

TEXTBOOK
Making and Doing Deals: Contracts in Context
Second Edition 2006
David Epstein, Bruce Markell, and Lawrence Ponoroff
Lexis Nexis
ISBN 0-8205-7044-3 (hardbound)

5 things to think about throughout a deal:

1.    Is there a deal? i.e., mutual assent
2.    Is it enforceable though the law e.g., agreeing to rob a bank
3.    What are the terms?
4.    Did the parties perform?
5.    If not, what should we do about it?

Hill v. Gateway (1997): when purchasing goods, the included terms are applicable, regardless of whether they were read by the offeree/buyer/consumer. (Computer buyer subject to unread contract terms [arbitration] that were included in box).

Lucy v. Zehmer (1954): bluffing can have legal consequences, even when a little buzzed because the other side subjectively believes offer was serious (land deal made over drinks). Intoxication doesn’t matter unless it was extreme.

OFFER

The Effect of Subjective and Objective Intent in K formation
Modern Objective Theory (MOT)

In all cases Lucy (Buyer) wants K.

Zehmer (seller): Subjective (to jest) Objective (to jest)
Lucy: Subjective (Zehmer is serious)

Outcome: no K
Leonard v. Pepsico: Ads are not offers, they are invitations for offers. The buyer’s response is an offer (harrier jet was to jest—objective and seller subjective standard). Unlike Lucy, this was not a dare.

Zehmer: Subjective (to jest) Objective (sell farm)
Lucy: Subjective (Zehmer is serious)

Outcome: K

Zehmer: Subjective (sell farm) Objective (sell farm)
Lucy: Subjective (Zehmer is joking)

Outcome: K

Zehmer: Subjective (to jest) Objective (sell farm)
Lucy: Subjective (Zehmer is joking)

Outcome: no K (subjective truth trumps objective manifestation if we know it)
Lefkowitz: Stating first come first served and quantity available can make it an offer; elements satisfied—subjective truth trumps objective manifestation. (term just for women was not included in ad).

All joking → no K

Four Conditions When an Ad Can Be an Offer:
1)    Definite intention by the offeror to make an offer
2)    Explicit as to the terms
3)    Leave nothing open for negotiation
4)    Over-acceptance problem was accounted for

Price quotes/negotiations are generally not offers, because there is still room for negotiation. Like ads, they are generally invitations for offers.

Longergan v. Scolnick:  reasonable person standard determines an offer had not been made. Further definite assent was required (AD to buy land in Joshua tree).

Carlill v. Carbolic Smoke Ball p.135: Ad satisfied elements of offer (they put money in the bank). Consideration was inducing consumers to purchase product. Must know about offer before purchasing to collect money. Unilateral contract: performance is acceptance. Both sides can quit anytime without cause for action. Reward scenario: notice of acceptance waived by custom

Fairmount Glass Works: This case is an exception because it had the necessary elements. The fact that additional terms were included in the acceptance (and therefore a rejection and counter offer) was not a defense because first quality glass is a custom of the trade.

UCC:
-    approved in 1932.

4 Scenarios of What Can Happen to an Offer:

1. Lapse over time. Reasonable time if not specified (objective: context trumps time).

Minnesota Linseed (predates UCC): Lesson on context. If market price fluctuates dramatically, a party can argue that the life of the offer is almost immediate—custom of the trade in the industry (lapsed: telegram delay unreasonable time based on subjective intentions of parties).
General Rule: offer lapses after it says it lapses or after reasonable time

2. Rejection by offeree. Saying no kills the offer forever (accounts for over acceptance problem). A counteroffer is a rejection and new offer.

3. Revocation by offeror. General rule is that offer is freely revocable until accepted.

Direct (notice given by offeror) or indirect (alternate source) revocation. Indirect revocation can be dangerous (2 acceptances)

Dickinson v. Dodds: promise to hold offer open until Friday can be revoked if no consideration = unenforceable (it was nudum pactum–gratuitous). Dickinson was informed by indirect revocation, which hinges on the credibility of the informer and the strength of the message.
Consideration can also limit offeror’s power to revoke (option K—mini-K to keep K open).

Merchant’s Firm Offer Rule: a firm offer allows merchants to make offers to buy or sell goods irrevocable without consideration:
- for a reasonable time, but no more than three months
- provided that the offer be put down in writing or otherwise authenticated.
- Terms must imply that the offer will be held open: language of firmness (buybacks will continue until…).
- must be goods
- If state adopted revised 2-205, writing is replaced by record (for e-mails).
- Merchant: someone who deals in good of the kind, or has specialized knowledge.

4. Death or incapacity of the offeror immediately destroys offer. Only applies before K is formed. Estate representative cannot accept after the offeror dies.

New Headley Tobacco: Offer terminates/revokes with offeror’s death, even if offeree unaware. The lessee did not act to bind through assent or performance. This rule can also be applied when the offeror’s mental capacity is damaged. Reasonable time (MOT) to accept is irrelevant.

ACCEPTANCE- K is formed

Note the difference between acceptance and an offer for additional terms (I accept, will you take a check?) and a rejection and counter offer (I accept provided I can pay by check).

4 Ways of Acceptance:

1.    Agreement or a promise
2.    Beginning performance
3.    Silence can be a form of acceptance, although courts are reluctant to find that the case
4.    Any way the offer insists upon
An offer must be made before there is an acceptance. New terms, unless implied, require a new offer.

La Salle National Bank: Reserving the last word is an offer in itself. General rule: where an offer specifies the time, place, or manner of acceptance, the acceptance must comply without variation to these terms.

Evert-tite: If within a reasonable time, commencing work is acceptance (esp. if stated in the K). There is ambiguity as to what defines work commencement. General Rule: courts construe ambiguity against the drafter of the offer.

Davis v. Jacoby p. 118: Death of the offeror revokes unilateral contracts (formed upon performance), but not bilateral contracts (formed at moment of promise). Court will look to circumstances to determine whether bi or uni.

Restatement: in cases of doubt (meaning if offeror specified it a different way, we wouldn’t have doubt), the offeree gets to choose whether the K is made by performance or promise to perform.

Hendricks v. Behee p.126: General Rule: An uncommunicated intention to accept is not an acceptance. Informing a real estate agent does not communicate an offer. This was a bilateral contract because it was a promise, making it irrevocable.

Unilateral Contracts

Marchiondo v. Scheck: Commission for real estate broker is a unilateral contract (performance of getting sale completed) Issue of partial performance is decided by the fact finder. Restatement: In options, contracts begins when performance has begun, preparation is not enough. Test–was it a benefit to the offeror? After partial performance, complete performance must be within a reasonable time.

Option Contracts
-    Offeree’s power of acceptance is not affected if she counter offers during option period. She paid for it.
-    Offeror’s power to revoke is unavailable during option period.
-    MR does not apply to acceptances of option contracts (those that involve consideration)—meaning acceptance must have arrived before time period ends.

Mailbox Rule—RST 63: Only applies to acceptances. Second exception to MOT.
Adams v. Lindsell p. 129: Contract is formed once acceptance is put in mail. Does not apply to revocations, they have to be received by offeree. General Rule: Unless specified otherwise, the offeror impliedly allows acceptance by the same medium as the offer.
If S receives rejection by phone before receiving mail acceptance, there is no K. But if S doesn’t sell to another, there is still a K.
If B mails acceptance before offeror dies, the contract is enforceable.
MR does not apply to acceptances of option contracts (those that involve consideration)—meaning acceptance must have arrived before time period ends.

Egger v. Nesbit: Mailing letter and it is lost still constitutes an acceptance.
Mirror Image Rule: the acceptance has to be the mirror image of the offer; unconditional (paperwork requirement was a condition). MIR is common law standard. Exception: custom of the trade. UCC has gap fillers (reasonable standard).

UCC 2-207 negates last shot rule: contract is valid if the alterations are immaterial. See 2 flow charts.

UCC 2-207—War of the Terms (see two flow charts)

Where parties agree terms are part of K, but disagree on meaning. If either party is not a merchant, additional terms do not become part of the K unless accepted by the offeror.

Definite and Seasonable expression of acceptance: an acceptance without changing of dickered terms (price, quantity, delivery).

New terms material?: Is this a surprise or hardship?

Conditioned on offeror’s assent: express approval by offeror?

Example hypothetical: B, non-merchant, offers to buy widgets. S accepts all dickered terms. S adds “All goods sold as is.” S ships and B pays.
Under 2-207, there is a K, but “as is” is not part of the terms because B never expressly accept it.
Under common law, “as is” is part of the terms because S’s acceptance is actually a reject and counter offer. B is accepting through performance. Last shot rule.
If parties were both merchants, “as is” is not material (no surprise or hardship) so it is included in K under 2-207.

Vagueness and Ambiguity: parties agree that terms are part of the contract, but disagree as to meaning of those terms (e.g., Shake well before opening).
1)    Identify the language that is questionable,
2)    Give possible interpretations of what it could mean, then
3)    Redraft it twice to avoid vagueness or ambiguity.

Raffles v. Wichelhaus: different “peerless” ship. No K, predates UCC. General rule is we construe ambiguity against the drafter.

Varney v. Ditmars p.188: promise of “fair share” of profits was too vague to enforce. Controlling factors: parties’ intent and ability to calculate.

Fair and Reasonable value can be calculated: Fair market value and Quantum Meruit: “as much as he deserves,” reasonable value of services rendered.

CONSIDERATION- Was it a gift?

General Rule: Consideration serves an important function in distinguishing between gratuitous and enforceable promises.

Did the parties intend for there to be a legal consequence? (Family cases)

Two aspects:
1.    An exchange element: a bargain for benefit or detriment for each party
2.    Sufficiency requirement: benefit or detriment must be at least part of what parties negotiated for. Incidental duties are insufficient consideration (if you walk to store, individual offering vs. restaurant owner offering).

Option Contracts; The offeree has bought and paid for the option period. Counteroffers do not terminate the option.

Kirksey v. Kirksey p. 242: Feeling like a good person is not consideration. Brother in law offering home to sister is purely gratuitous. Weak definition of what was promised hurts consideration argument.

Hamer v. Sidway p.246: Consideration is bargain for benefit or detriment. Forbearance can be consideration: avoid doing something you have a legal right to do (smoking pot would not be a legal right). One legal right forebeared is sufficient.

General Rule: the court will not look into the adequacy of consideration, unless it could be a joke. A peppercorn will do.
Restatement: Reciprocal promises that are bargained for constitute consideration.

Schnell v. Nell p. 251: 1 of 3 exceptions to peppercorn rule: like for like. 1 cent in exchange for 600 dollars. Wife’s desire before promise is not consideration because it is a past event.

2nd exception: release of a totally invalid claim is not consideration. Had the faulty nets been a legitimate claim to sue, releasing it would be valid consideration.

3rd exception to peppercorn rule: illusory promises: a promise in which the promissory reserves the right to release herself from her obligations i.e., change her mind. I will agree to perform at your party unless we decide not to. Look to see if there is any obligation on the parties.

§74 Benefit or detriment should pass the giggle test to be consideration.

Past Consideration: does not constitute consideration

Harrington v. Taylor p.278: Saving a life was past event and did not constitute consideration.

Mills v. Wyman p. 279: no pre-existing obligation to take care of son. D’s promise to pay received after P voluntarily cared for son—no enforceable K. Public policy: judicial tyranny: judges should not be choosing which gratuitous promises to enforce.

Webb v. McGowin p. 284: Material Benefit rule: a moral obligation is sufficient consideration if the promisor received a material benefit, there is an injustice, and remedy can be limited.  Ruling contradicts general rule of past events.

Unique in that payments had been regular, reasonable, and formerly made; commercial setting; time for cool reflection; and terms were explicit. This ruling causes problems.

Webb shows how judges can use precedent to find alternative outcomes.

Material benefit rule rarely succeeds. It would not apply to Mills because material benefit must be received by promisor.

Modification of Ks

Alaska Packer Assn v. Domenico: Pre-existing legal duty rule [PELDR]–if you already have a K, parties will need new consideration to modify it. Asking for money to do exactly what you were obligated to do lacks consideration. New consideration must be more than a peppercorn (offer to spread the good word in SF is not enough). If employer had obligation that was not fulfilled (faulty nets), there may be consideration.

Angel v. Murray p.269: City’s growth more than predicted could be unanticipated circumstance. Restatement elements of modification. The fact  that city was not coerced lend credence.

Restatement: modification requires:
- voluntary agreement to modify,
- before K completely performed by either party
- circumstances not reasonably anticipated by parties at inception, and
- modification must be fair and equitable.

Promisory Estoppel (PE)- Always do K analysis first

These are cases when we have no consideration and therefore no K, but courts enforce a remedy anyways to prevent injustice. Quasi contracts.

1.    Damages

Expectation v. Reliance Damages: what was expected (when we have a K) v. damages to extent P relied upon K (when we have PE)

An example of inducing reliance is putting a down payment on a car when grandpa gratuitously promises him $2k. Reliance damages = down payment and taxes. The full $2k would be expectation damages.

Rickets v. Scothorn (1898) p. 293: No K because he didn’t ask her to quit, his offer was gratuitous, although it was reasonable to expect her to quit her job. First use of PE.

2.    Elements

Restatement on PE
1.    need promise
2.    which the promisor reasonably expects will induce reliance
3.    we need actual reliance by the promisee
4.    we need injustice that requires some remedy
5.    the remedy can be limited. If limit is always expectations damages, the remedy cannot be limited.

Reliance need not be proven for promise to be enforceable in cases where the promise was to charities.

3.   PE in Commercial Setting

Katz v. Danny Dare p.299: PE in a commercial setting. Promise of pension cut after P goes back to work. 13 months negotiation for pension show that D did not have option to fire him. P received only reliance damages because it was not a K.

PE as pre-K liability: Look for reasons why it is reasonable to rely despite the fact that P knows no K yet.

Orion Food Systems p.306: Stipulations in K cannot insulate from PE liability, although they may be persuasive. Promissory statements made by rep can induce reliance and PE. Expanding store still has value; reliance damages should take this into account. Also, delay in getting franchise open may also be damages.

Economic Duress, Undue Influence Defense

Where claimant is forced to agree by means of a “wrongful threat precluding the exercise of free will.” Restatement: generally D must show breach of K damages inadequate, time was of the essence, and there were no reasonable alternatives.

When there is a threat, always analyze it for undue influence and duress.

Odorizzi p. 396: Court found undue influence, not duress, because threat by principal was not unlawful or improper.

Objective and Subjective element of undue influence
Objective: inappropriate manner of gaining assent
Subjective: whether it overcame the will of the weaker party

7 factors in determining undue influence:
1. discussion of the transaction at an unusual or inappropriate time
2. consummation of the transaction in an unusual place
3. insistent demand that the business be finished at once
4. extreme emphasis on untoward consequences of delay
5. multiple persuaders by the dominant side against a single serviant party
6. absence of third party advisors to serviant party
7. statements that there is no time to consult financial advisors or attorneys
Circumstance driven: the more evidence/factors, the stronger the case for undue influence. Analyze the circumstances.

Misrepresentation, Non-Disclosure, and Concealment

This involves D using false or misleading information during K bargaining process that reasonably induced P to enter in K. K is voidable if victim desires. Be wary that actions may be considered bargaining (saying you have less funds) rather than misrep.

Restatement: 3 requirements in addition to showing misrep.
1.    misrep. must be material
2.    fraudulent  or material misrep. must have induced the recipient to assent to K
3.    the recipient must have been justified in relying on misrep.

Halpert p.363: D said no termites on 3 different occasions. Intent to deceive is not necessary in the misrepresentation. Remedy is rescission: putting parties back to position they were before.

Swinton p.368: When no misrep. was made, and termites were found post-sale, D is not liable. Court sees finding D liable for intentional non-disclosure as going too far, they do not want reciprocal obligations (slippery slope).

3 exceptions from Swinton case for D to be liable:
1. if there is a fiduciary relationship between the parties (duty, special relationship), which courts feel require more candor
2. state laws mandate disclosure
3. D takes steps to prevent other party from finding out the information.

Weintraub p. 371: Issue of concealment, not misrep. Court declines to follow Swinton for concealment cases. 4 standards to justify rescission in concealment cases:
1.    concealment has to be deliberate/purposeful
2.    they must be a significant/material nature
3.    problem has to be non-observable, and
4.    damages are insufficient to justice

Public Policy

R.R. v. M.H. p.404: Public policy interest voids an ostensibly valid K: fear of reach people using the bodies of poor people. One cannot pay for babies. Court looked to adoption statutes and was persuaded by 4-day contemplation period for the surrogate mother.

Criticism: Court unclear on the issue, intruded on intimate issue, biological father now shares custody with a stranger.

Power Ridge p.414: General Rule: companies should not be able to exempt themselves from their own negligence, especially when: (a) they are opening their land to the public, (b) consent is obtained through exculpatory adhesion Ks, and (c) they did not offer an insurance option. Court does not want snowtube co to become more lax with their regulations (slippery slope). Adhesion gives grossly unequal bargaining power to D.

Standard: in determining whether public policy issue, look to totality of circumstances against the backdrop of current societal expectations

K Enforcement – Unconscionability

Williams: Court rules pro rata K invalid.
Aggravating factors
o    suspect terms in small print on note cards
o    seller was aware of buyer’s financial and living situation.
o    Power disparity
o    Historical, social, and racial context.

K  Enforcement – Mistake of Fact and Law

Sherwood: Rosie the Cow. Rule: Rescission available for mutual mistake of material fact. Dissent emphasize there were no warranties with the sale of Rosie.

Who bears risk?

A party bears a risk of a mistake when:
- allocated by agreement, or
- party is aware at time K is made, that she has limited knowledge but treats here limited knowledge as sufficient, or
- risk is allocated by court

If there is a material mistake of fact as to a basic assumption on which the K is made and the party seeking relief does not bear the risk, the K is voidable by the adversely affected party. Did the mistake make the K based on fundamentally different things?
* General Rule: Mistake of fact as to the quality or value are not grounds for rescission for mutual mistake.

Burgraff: Lesson on mistake of law. Mutually mistaken belief that shorefront property was zoned to allow development does not justify rescission. Parties could have consulted an attorney.

Donovan: General Rule: Just as mutual mistakes, unilateral mistakes as to price/value do not justify rescission. If P knows ad was mistake, then no unilateral mistake

Unilateral mistake?
-    mistake as to basic assumption
-    material affect on performance
-    P does not bear the risk, AND

-    Enforcement would be unconscionable, or
-    Other party has reason to know of mistake or his fault caused the mistake.

“The only people for me are the mad ones, the ones who are mad to live, mad to talk, mad to be saved, desirous of everything at the same time, the ones that never yawn or say a commonplace thing, but burn, burn, burn like fabulous yellow roman candles exploding like spiders across the stars” Jack Kerouac

It’s Tuesday now, two days displaced from Ed Hochuli’s blunder. Chargers fans were furious yesterday. Has their madness subsided?

It has in Norv Turner, who looked eerily like Al Gore on November 5, 2000. “Anything that we talk about or anything that is discussed in terms of any of the rules or any of the calls, isn’t going to change the outcome of that game,” Turner submitted. “That game is going to be 39-38 forever.” However, there was still some sense of madness from an unexpected source.

“That particular official gets a lot of criticism. [Ed Hochuli] is a highly criticized official in the NFL,” Cowboys Owner Jerry Jones said.

But the most resonating support came from Chargers Nation, and surprisingly also from NFL Nation. So far, our makeshift petition has almost 500 supporters in its first day. There is also another petition circling. I think everyone can agree that NFL referees should be held accountable for unprofessional performance. I leave it to your comments to determine whether Monday’s reaction from the NFL was appropriate.

Did the NFL chastise Hochuli, or grant him a get-out-of-jail-free card?

I leave you with some of my favorite mad comments from Chargers and NFL Nation in response to yesterday’s post . Diverse sentiments indeed. One thing we can all agree on is that Ed Hochuli’s decision was incorrect, even Ed may himself.

My Favorite Comment by James Fingerman:

“Give credit to the Denver camera crew for literally pulling the plug on the cameras to prevent in their eyes another ass kicking in mile high. Takes guts to do that. Hochuli should be either suspended for the year or made a permanent side judge.” James Fingerman

Simply Mad:

“Ed Hochuli should be released of his duties just like any player would be if they didn’t perform well. The NFL received a black eye yesterday because it can’t say that Denver’s win was legitimate. That call and the other replay mistake reek of ‘home town’ bias.” Coach

“Hochuli blew the whistle, blew the game and blew his professional reputation. I certainly home he’s a better lawyer than ref.” LouAnn Larsen

Literary Madness:

“The horror………………….the horror.” Sara

“The kicker is, Shanahan didn’t even complain, which is like the dog that didn’t bark in the famous Sherlock Holmes story (the killer was the homeowner, and the dog knew him, which is why the dog didn’t bark).” Darren

Scornful Madness:

“Mister Ed you suck! Get your head out of your ass and start watching the game! You blew the whistle, you blew the game…and you can blow me!” Ken Howard

“Ed, you’re supposed to manage the game not affect it directly. Get some humility and stick the whistle in your pocket until the end of the play. I understand that you’re real excited to get on the microphone and show the TV world how big your guns are but let the players play. You’re a stage-hand!” Chuck Boon

A Mad Conspiracy:

“This game was fixed. FBI should look into it. Why wouldn’t a check be done before the start of the game for the equipment performance. Was Denver involved in this? Also why would the Referee make such a blatant mistake in the end? Chargers were winning and the bets on this game should be checked to see which way they were placed.” Kamran Azimzadeh

“This one really smells to high heaven. It’s got Tim Donaghy (the disgraced NBA referee) written all over it. Terrible.” Darren

Rhetorical Madness:

“Most frustrating call I’ve ever seen. I dont give a damn if a whistle was blown, especially when it was clearly a fumble, and Ed ADMITTED it was a fumble. Is the whistle the all knowing, seeing hand of God or something? Even when it was clearly blown in error?” Jeremy R.

NFL Nation:

“Your petition states that we as fans expect ‘near flawless’ performance of the officials, and that’s exactly what we got. Near-flawless. Mistakes happen.” Midavis00

“This game needs to be given back to San Diego no matter what the rules state. The commissioner needs to step in and put an end to this corruption. I am a Pats fan and was completely disgusted when I saw that on television. The man should be fired, this is not high school ball it is a multi-billion dollar industry, some old bag like Ed that can probably barely see 20 feet in front of him. [He] shouldn’t be able to blatantly throw a game like that.” Nick

Disbelief:

“This was the worst officiating I’ve seen from one of the best officials. The NFL should not tolerate bad officiating and must fine and/or suspend the referees who alter the game with obviously blown calls.” Sean Bennett

Ed Hochuli, NFL Referee, botched two calls during the San Diego Chargers-Denver Broncos football game on September 14, 2008. Most importantly, in the waning minutes of the 4th quarter, Hochuli had no reason to call a fumble dead, costing the Chargers the game. After admitting his error, Hochuli did not have the decency to do what was right, and call the play as it appeared. NFL referees should not be deciding games like this. Such obvious incompetence cannot stand without justified protest, not just from Chargers Fans, but also from fans of professional football. We must hold NFL referees accountable when they perform substandard. Who knows, next week’s victim could be your team. Please sign this petition in protest if you believe that Hochuli’s performance was unprofessional and that he should be financially reprimanded for his self-admitted error during the game, and his subsequent improper handling of it. We should expect near flawless performance of our NFL Referees, who make hundreds of thousands of dollars.

ADDENDUM:

To comment about the league’s response to fans who were disgruntled about Hochuli’s performance on Sunday, visit:

http://bayareashows.today.com/2008/09/16/was-the-nfls-response-to-ed-hochelis-fumble-enough-nfl-nation-reacts/

The petition is also available there for you to sign. Digg it so we can reach 1000 signatures, and send it to the league office. We are not asking that the Chargers be given the victory, which is what would have happened if Hochuli did not err. We simply want a penalty that appropriately holds referees accountable. An apology is not enough. Frankly, I don’t consider a 1-game suspension too harsh. Why would anybody?

-BayAreaShows

High quality digital photographs from Cakebread Cellars in Napa Valley, California are available if you contact bayareashows@gmail.com. Each photo was taken during the Summer of 2008. There are ~26 total photos. Pictures include some machinery, the sycamore patio, grapes and the grape fields, and the barreling areas. HERE are some good examples of the content. If you have a myspace account you can view some more examples here: MORE CAKEBREAD PHOTOS. These are not all of the photos available. Don’t hesitate to ask if you are looking for a particular photo.

The Cakebread Vineyards photographs were shot with an 8.1 megapixel digital camera. The maximum size the images can be sent at is ~42 x 32 inches, which is ~37 MBs a photo (at 300 pixels an inch). However, we can send them at any size you prefer. We are selling them for $3 each and four photos for 10 dollars. You can purchase the whole lot at $30 dollars. They can be sent in any format you prefer, but they are currently jpegs. Of course, the security tags will be removed from the photos. The Cakebread images you see here and on the myspace account are lower quality than the ones purchased.

ALBUM REVIEW: Pink Floyd, The Dark Side of the Moon, Recorded in 1973 at Abbey Road Studios. Harvest Records: London, England

The album begins with the subtle rising sounds of a heart beating. The personified screams of birds transition into trademark David Gilmour guitar. The listener is borne into a world of audio hysteria. Breath, breath in the air. Don’t be afraid to care. The emotional journey of the opening track is a foretelling of the jarring sensations that comprise Pink Floyd’s The Dark Side of the Moon.

What is almost as compelling as the message is the mystique surrounding the album. Some people believe that Pink Floyd intentionally synchronized the album with the 1939 film Wizard of Oz, one of the first American movies to use Technicolor. The synchrony has been called The Dark Side of the Rainbow or The Dark Side of Oz. However, whereas Dorothy literally embarks on an adventure to another dimension, The Dark Side of the Moon is a figurative exploration into the tormenting aspects of modern society.

Dissonant clock alarms mark the beginning of Time, an eye-opening memento mori on the fleeting aspects of youth. Before you know it, youth is lost and irrecoverable. Unfortunately, what replaces youth can be regret. Such a realization is a distressing shot to the head, but the strong guitar makes this morose message easier to swallow.

The rising sounds return with a beautiful vocal composition on The Great Gig in the Sky. Clare Torrey’s soaring vocals spin us on a calming journey. During the song, a tornado juggles Dorothy’s farm into the opaque land of Oz.

Money offers another commentary, this time on the false virtues of consumerism. Set to the noise of jingling coins and cash register sales, a strumming baseline establishes the song’s deriding lyrics against what is considered the central tenet of capitalist society.

The last song Eclipse serves as the album’s inspiring message for redemption. Musically, Eclipse segue ways from Brain Damage—the most detached and alienated track of the album. Juxtaposing the most motivating track with the most maddening track of the album—while keeping the songs audibly similar—optimizes the philosophical effect. The layering vocals push for us to accept our neurosis and cease the moment. Heartbeats return as the album comes to a finish, restoring a sense of clarity to the listener.

Demonstrating the diverse reach and seminal nature of the album, in 2003 a reggae group named the Easy Star All-Stars released a tribute album titled The Dub Side of the Moon. If you are a fan of live reggae, listen to the above performance.

Tuesday is free live music night at El Rios, which is a good way to promote local music while also providing a watering hole for the raging alkies. One thing the venue could benefit from is a small stage, which would provide a better view for the audience. There was a backyard patio, which was homely.

Two bands performed at El Rio. Untrust Us opened with their premiere live show. They sounded like a tougher version of the Get Up Kids. I met the guitarist Justin, a rustic fellow from the north of Sweden. It’s amazing how his regularly thick accent is inaudible when he sings. Untrust Us was followed by The Boiling Suns, which brought a unique blues twist to the night. Their music sounds similar to Jethro Tull, which is a good thing.

If you enjoy seeing live local music in the San Francisco bay area, click here to view El Rio’s Calendar, which provides a very informative list of the daily band lineups. Directions: El Rio is located at 3158 Mission St (@ Cesar Chavez), San Francisco, CA 94110. (415) 282-3325

A malevolent blue light emanated from a large screen behind the Stone Temple Pilots. It engulfed the performers, the stage and the audience. The screen would occasionally shift to car chases, a swirl optical illusion and cloudy skies, but most of the time it simply blinded the audience, and perhaps exacerbated a latent dementia in them.

My photographer was the first to catch the brunt of the crowd’s manic psychosis. “You take your damned camera and get behind the fucking line!” A Napoleonic man in a black baseball cap appeared ready to charge. I’ll never forget the terror and fear in his eyes. He had spent nearly two week’s pay for this moment. My Canadian photographer sure wasn’t going to ruin it for him.

The Greek Theatre is a very nice venue. It is made from rock and there is an impressive view of Sather tower against the backdrop of the San Francisco Bay. The acoustics were above average, and the place was near capacity. The only flaw was the malevolent indigo blotch, which limited the quality of my photographer’s pictures.

In the midst of the four dollar sodas and a potentially volatile audience, I managed to get caught up in the melodic waves of The Stone Temple Pilots. They played hits like Plush and Sour Girl. The band didn’t perform any new songs because they plan to hit the studio after this re-acclimation tour, which finishes August 31. For high resolution pictures from the 7/25 performance of STP from the Greek Theatre at the University of California, Berkeley, visit http://www.myspace.com/bayareashows.

As we careened out of the San Francisco haze, my photographer mentioned that we had a very strict itinerary. First, we were to become winos in the vineyards of Napa Valley. He then barked that we had to meet the Dutchmen back in San Francisco for a trip south. Sipping Pacifico under the Santa Cruz sun was part B of our transient plan. A harsh, capricious tumble into the American dream. Fear and loathing in Northern California.

We arrived at Cakebread Cellars, a vineyard just south of St. Helena. The customers are invited by a large wooden spectacle, almost as if carved from the scraps of an Old Seaman’s chapel. Tasting fees for Cakebread Vineyards range from $10. A large sycamore patio is available for the larger events of the day.

Napa Valley wine country has an exotic allure. The area is draped almost exclusively of vineyards. Directions: Cakebread Cellars is located at 8300 St. Helena Hwy. To make reservations for tour tastings, visit here.

Our wine tasting manager was Hans Van Dale, a European immigrant who has worked with Cakebread Vineyards for almost two years. Before then, he was a professional shot putter for the German national team. I have always been suspect of wine culture. But my fears of old money were assuaged by the simple ambiance of Cakebread Cellars.

For Friday July 25, BayAreaShows will be reliving 1992 with the Stone Temple Pilots at the Greek Theatre in Berkeley, California. A friend is working the concert and I go where I can get in gratis. I hope STP plays tracks off of Core, the only album I really got into (older sister). The band was recently reunited after a hiatus since 2003. For pictures from the 7/25 performance of Stone Temple Pilots from the Greek Theatre at the University of California, Berkeley, visit http://www.myspace.com/bayareashows. Tickets are $52.50 through another Planet Entertainment via Ticketmaster. The Greek Theatre is located on Gayley Road in Berkeley, CA 94720.

Movie Review

Step Brothers

Starring: Will Ferrell and John C. Reilly

Rated R Columbia Productions 2008

How long can Will Ferrell last? I was watching a Reno 911 episode in which before Deputy Trudy Wiegel thought she was going to die, she wanted to thank Will Ferrell and she didn’t know why. I empathize with the sentiment. Ferrell has brought me the most genuine laughter above all other comedic actors. And when he is partnered up with Adam McKay, the unbridled laughter is almost a guarantee. But like with any hype, Will Ferrell’s limitations will inevitably accompany his video saturation. When Ferrell made films such as Kicking and Screaming and Elf, I wished he would make more adult-targeted comedies. Now that he is, I find some parts absolutely hilarious and other parts too lewd. Nonetheless, I appreciate Will Ferrell because of his natural ability to make almost any situation hilarious, and the majority of Step Brothers is no different.

Ferrell’s character is Brennan, a 40 year-old child forced to live with Dale (John C. Reilly) after their generous parents fall in love and get married. Ferrell tests the limits of crude humor and frankly, he wins. When goaded by Dale, his fellow free rider, Brennan is sometimes reserved. In one dinner scene, he breaks down into a silent cry and has to leave the room. At other times, Brennan unloads spastic outbursts. There is a hysterical drum scene that best reflects this split personality.

Step Brothers is absolutely ridiculous. The plot is weak, but that is not why people go and see Ferrell films. They go to laugh, and I sincerely laughed throughout. I will definitely see Step Brothers again. However, I could not help but wonder how much longer Ferrell’s improvisations will continue to humor me. Hopefully, for much longer. But as a pragmatist, I can only be skeptical.

My friend proposed that the epitome of improvisational comedy would be a Will Ferrell-Dave Chappelle movie, where Will plays the black man and Dave Chappelle, of course, plays the straight-laced white man. Such a juxtaposition would result in a definite laugh riot. Hopefully Will and Dave can understand this equation and encourage their respective agents to work together and produce a film. To read other movie reviews by Jason Alyesh, click here