A Standard Clause Analysis of the Frustration Doctrine and the Material Adverse Change Clause
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DDS WIRELESS INTERNATIONAL, INC. V. NUTMEG LEASING, INC. (AC 34278) Robinson, Bear and Peters, Js
****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** DDS WIRELESS INTERNATIONAL, INC. v. NUTMEG LEASING, INC. (AC 34278) Robinson, Bear and Peters, Js. Argued March 21Ðofficially released September 10, 2013 (Appeal from Superior Court, judicial district of Ansonia-Milford, Hon. John W. Moran, judge trial referee.) Linda L. Morkan, with whom, on the brief, was Christopher J. -
Who Needs That Recital of Consideration?
DraftingDrafting aa newnew dayday Who needs that ‘recital of consideration’? By Kenneth A. Adams t’s hardly a shocking notion that are hereby acknowledged, the parties Farnsworth, Farnsworth on Contracts any given contract could contain hereto covenant and agree as follows. 150 (2d. ed. 1998).) It follows that Ione or more provisions that reflect Recitals of consideration raise a using instead the vague language of a an inaccurate or outdated view of con- number of issues of legal usage. For traditional recital of consideration tract law. What’s more noteworthy is example, NOW, THEREFORE is archa- would be equally ineffective. the fact one such provision — the tra- ic, while in consideration of the premises Similarly, a false recital of consider- ditional recital of consideration — is simply an obscure way of saying ation cannot create consideration appears in most corporate agreements. “therefore” and is superfluous given where there was none. If, in the con- In this article, I explain why that the preceding “therefore.” And refer- tract between Acme and Roe, Acme traditional recital of consideration ences to the value or sufficiency of recites falsely that the payment to Roe fails to serve its intended purpose and consideration are outdated: With the was in consideration of future services why omitting it could only improve a rise of the “bargain test of considera- and Acme subsequently refuses to pay contract. tion” reflected in the Restatement (Sec- the bonus, Acme should prevail in any The ostensible function of a recital ond) of Contracts, the focus of judges action brought by Roe if it succeeds in of consideration is to render enforce- has shifted from the substance of the proving that the recital was false. -
Force Majeure and Common Law Defenses | a National Survey | Shook, Hardy & Bacon
2020 — Force Majeure SHOOK SHB.COM and Common Law Defenses A National Survey APRIL 2020 — Force Majeure and Common Law Defenses A National Survey Contractual force majeure provisions allocate risk of nonperformance due to events beyond the parties’ control. The occurrence of a force majeure event is akin to an affirmative defense to one’s obligations. This survey identifies issues to consider in light of controlling state law. Then we summarize the relevant law of the 50 states and the District of Columbia. 2020 — Shook Force Majeure Amy Cho Thomas J. Partner Dammrich, II 312.704.7744 Partner Task Force [email protected] 312.704.7721 [email protected] Bill Martucci Lynn Murray Dave Schoenfeld Tom Sullivan Norma Bennett Partner Partner Partner Partner Of Counsel 202.639.5640 312.704.7766 312.704.7723 215.575.3130 713.546.5649 [email protected] [email protected] [email protected] [email protected] [email protected] SHOOK SHB.COM Melissa Sonali Jeanne Janchar Kali Backer Erin Bolden Nott Davis Gunawardhana Of Counsel Associate Associate Of Counsel Of Counsel 816.559.2170 303.285.5303 312.704.7716 617.531.1673 202.639.5643 [email protected] [email protected] [email protected] [email protected] [email protected] John Constance Bria Davis Erika Dirk Emily Pedersen Lischen Reeves Associate Associate Associate Associate Associate 816.559.2017 816.559.0397 312.704.7768 816.559.2662 816.559.2056 [email protected] [email protected] [email protected] [email protected] [email protected] Katelyn Romeo Jon Studer Ever Tápia Matt Williams Associate Associate Vergara Associate 215.575.3114 312.704.7736 Associate 415.544.1932 [email protected] [email protected] 816.559.2946 [email protected] [email protected] ATLANTA | BOSTON | CHICAGO | DENVER | HOUSTON | KANSAS CITY | LONDON | LOS ANGELES MIAMI | ORANGE COUNTY | PHILADELPHIA | SAN FRANCISCO | SEATTLE | TAMPA | WASHINGTON, D.C. -
Force Majeure Tracker
Force majeure tracker April 2020 EXECUTIVE SUMMARY This guide has been prepared to address the substantial business and operational disruptions caused by the COVID-19 pandemic. Given the unexpected nature of the outbreak, parties to commercial contracts may seek to invoke force majeure or similar legal concepts to excuse delay or non-performance. This guide gives a high-level comparative analysis of force majeure in 28 jurisdictions, together with alternative remedies that may apply depending on the governing law of the relevant contracts. If you have any additional questions, please do not hesitate to contact our practitioners listed throughout the document. Asia Pacific EMEA The Americas 2 ASIA PACIFIC Jo Delaney Zhou Xi Roberta Chan Cynthia Tang Angela Ang Australia China Hong Kong Hong Kong Hong Kong +61 2 8922 5467 +86 10 5949 6019 +852 2846 2492 +852 2846 1708 +852 2846 1795 jo.delaney zhouxi roberta.chan cynthia.tang angela.ang @bakermckenzie.com @fenxunlaw.com @bakermckenzie.com @bakermckenzie.com @bakermckenzie.com Andi Kadir Timur Sukirno Yoshiaki Muto Kherk Ying Chew Donemark Calimon Indonesia Indonesia Japan Malaysia Philippines +62 21 2960 8511 +62 21 2960 8500 +81 3 6271 9451 +603 2298 7933 +63 2 8819 4920 andi.kadir timur.sukirno yoshiaki.muto kherkying.chew donemark.calimon @bakermckenzie.com @bakermckenzie.com @bakermckenzie.com @wongpartners.com @quisumbingtorres.com Daljit Kaur Nandakumar Ponniya Henry Chang Pisut Attakamol Singapore Singapore Taiwan Thailand +65 6434 2255 +65 6434 2663 +886 2 2715 7259 + 66 2636 2000 x 3131 daljit.kaur nandakumar.ponniya henry.chang pisut.attakamol @bakermckenzie.com @bakermckenzie.com @bakermckenzie.com @bakermckenzie.com Minh Tri Quach Fred Burke Vietnam Vietnam +84 24 3936 9605 +84 28 3520 2628 minhtri.quach frederick.burke @bmvn.com.vn @bakermckenzie.com 1 2 3 4 5 6 3 1 Is FM recognized in statute? If yes, what is impact of statutory rules on FM clauses in contracts? AUSTRALIA No statutory recognition. -
Fcm Regulations of the Clearing House Lch Limited
FCM REGULATIONS OF THE CLEARING HOUSE LCH LIMITED FCM Regulations Contents CONTENTS Regulation Page Regulation 1 Definitions ..................................................................................................... 2 (a) which the Clearing House and the Rates Exchange have agreed will be cleared in accordance with, and subject to, the Rates Exchange Rules and the FCM Rulebook via the FCM Listed Interest Rates Open Offer clearing mechanism (and not via novation under FCM Regulation 54); and ............ 27 (b) regardless of whether such match is described or characterised as a trade, transaction or agreement in the relevant Rates Exchange Rules. ................ 27 Chapter I - SCOPE ................................................................................................................... 33 Regulation 2 Obligations of the Clearing House to each FCM Clearing Member ........... 33 Regulation 3 Performance by the Clearing House of its Obligations under the Terms of an Open Contract; Novation ........................................................................ 34 Chapter II - STATUS ............................................................................................................... 35 Regulation 4 FCM Clearing Member Status and Application of LCH Regulations ......... 35 Regulation 5 Resigning and Retiring Members ................................................................ 38 Regulation 6 Service Withdrawal ...................................................................................... 40 Chapter -
1 UNITED STATES BANKRUPTCY COURT DISTRICT of MASSACHUSETTS CENTRAL DIVISION in Re: CYPHERMINT, INC. Debtor ) ) ) ) ) ) ) Chapt
Case 10-04054 Doc 69 Filed 07/25/13 Entered 07/25/13 15:27:53 Desc Main Document Page 1 of 13 UNITED STATES BANKRUPTCY COURT DISTRICT OF MASSACHUSETTS CENTRAL DIVISION ) In re: ) Chapter 7 ) Case No. 08-42682-MSH CYPHERMINT, INC. ) ) Debtor ) ) ) JOSEPH H. BALDIGA, TRUSTEE ) ) Plaintiff ) Adversary Proceeding ) No. 10-04054 v. ) ) C.A. ACQUISITION CORP., C.A. ) ACQUISITION NEWCO, LLC, and ) PAYCASH MOBILE, LLC ) ) Defendants MEMORANDUM OF DECISION ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT The plaintiff in this adversary proceeding and the chapter 7 trustee in the main case, Joseph H. Baldiga, has moved for summary judgment on a complaint against defendants C.A. Acquisition Corp. (“C.A. Acquisition”), C.A. Acquisition Newco, LLC (“Newco”), and Paycash Mobile, LLC (“Paycash). The trustee’s claims against the defendants arise primarily from their alleged failure to comply with the terms of an agreement to purchase the assets of Cyphermint, Inc. (“Cyphermint”), the debtor in the main case. The defendants oppose the summary judgment motion. 1 Case 10-04054 Doc 69 Filed 07/25/13 Entered 07/25/13 15:27:53 Desc Main Document Page 2 of 13 Facts The relevant facts have been established by those allegations in the complaint admitted to by the defendants, the two affidavits and accompanying exhibits submitted by the trustee in support of his motion for summary judgment,1 and the facts in the trustee’s Concise Statement of Material Facts which have not been disputed by the defendants. On August 28, 2008, C.A. Acquisition offered to purchase the assets of the debtor. -
Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation
STATE Q&A Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation Status: Law stated as of 01 Jun 2020 | Jurisdiction: Illinois, United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-022-7463 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial A Q&A guide to state law on contract principles and breach of contract issues under Illinois common law. This guide addresses contract formation, types of contracts, general contract construction rules, how to alter and terminate contracts, and how courts interpret and enforce dispute resolution clauses. This guide also addresses the basics of a breach of contract action, including the elements of the claim, the statute of limitations, common defenses, and the types of remedies available to the non-breaching party. Contract Formation to enter into a bargain, made in a manner that justifies another party’s understanding that its assent to that 1. What are the elements of a valid contract bargain is invited and will conclude it” (First 38, LLC v. NM Project Co., 2015 IL App (1st) 142680-U, ¶ 51 (unpublished in your jurisdiction? order under Ill. S. Ct. R. 23) (citing Black’s Law Dictionary 1113 (8th ed.2004) and Restatement (Second) of In Illinois, the elements necessary for a valid contract are: Contracts § 24 (1981))). • An offer. • An acceptance. Acceptance • Consideration. Under Illinois law, an acceptance occurs if the party assented to the essential terms contained in the • Ascertainable Material terms. -
Why Use Requirement Contracts? the Tradeoff Between Hold-Up And
Why Use Requirement Contracts? The Tradeoff between Hold-Up and Breach June 14, 2015 Eric Rasmusen Abstract A requirements contract is a form of exclusive dealing in which the buyer promises to buy only from one seller if he buys at all. This paper models a most common-sense motivation for such contracts: that the buyer wants to ensure a reliable supply at a pre- arranged price without any need for renegotiation or efficient breach. This requires that the buyer be unsure of his future demand, that a seller invest in capacity specific to the buyer, and that the transaction costs of revising or enforcing contracts be high. Transaction costs are key, because without them a better outcome can be obtained with a fixed- quantity contract. The fixed-quantity contract, however, requires breach and damages. If transaction costs make this too costly, an option contract does better. A requirements contract has the further advantage that it evens out the profits of the seller across states of the world and thus allows for an average price closer to marginal cost. Eric Rasmusen: John M. Olin Faculty Fellow, Olin Center, Harvard Law School; Visiting Professor, Economics Dept., Harvard University, Cambridge, Massachusetts (till July 1, 2015). Dan R. and Catherine M. Dalton Professor, Department of Business Economics and Public Policy, Kelley School of Business, Indiana University, Bloomington Indiana. Eras- [email protected] or [email protected]. Phone: (812) 345-8573. Messaging: [email protected]. This paper: http://www.rasmusen.org/papers/holdup-rasmusen. pdf. Keywords: Hold-up problem, requirements contracts, relational contracting, exclusive dealing, expectation damages, option contracts, procurement, Uniform Commercial Code. -
Contracts 8 24
QUESTION 3 On Mayl, Buyer received the following letter: Dear Buyer: I have decided to give up my ranch and move to town. I thought that you might consider buying it from me. I will sell it to you for its current market value, $80,000. Call me by May 10. I will keep this proposal open, and will not withdraw it, until after that date. IS/ Seller The next day, Buyer mentioned to a friend, Mary, that he was considering buying the ranch. Mary responded that an acquaintance of hers, Jody, also had received an offer from Seller to purchase the ranch. Buyer immehately went home and prepared a letter of acceptance, addressed to Seller, and deposited it in the mail at 9:30 A.M. At 10:OO A.M. on May 2, Seller entered into a written agreement with Jody for the purchase of the ranch. At 2:00 P.M. on May 2, Buyer called Seller to arrange for a survey of the ranch. Seller informed Buyer that he had already sold the ranch. Upon hearing this, Buyer exclaimed, "We have a deal. I sent you an acceptance this morning by mail." QUESTION: Discuss whether there is a contract between Buyer and Seller and the basis for your conclusion. DISCUSSION FOR QUESTION 3 An offer is a manifestation of willingness to enter into a bargain so made as to justify another person in understandmg that his assent to that bargain is invited and will conclude it. Res.2d Contracts 8 24. In this case Seller's letter is an offer, since under the objective test of intent, a reasonable person in Buyer's position would understand that Seller was in fact seeking Buyer's assent to his invitation. -
COVID-19 Legal Issues: Frequently Asked Questions
Litigation & Arbitration Group Client Alert COVID-19 Legal Issues: Frequently Asked Questions April 2, 2020 In managing the volatility and uncertainty caused by the global COVID-19 pandemic, many industries are grappling with complex legal and commercial challenges, from manufacturing shutdowns, interrupted supply chains and quarantines, to dislocated labor markets and restrictions on trade and movement, including the practical shutdown, or near shutdown, of substantial portions of the world economy. Moreover, governments have intervened to provide liquidity and emergency relief to credit markets and vulnerable industries and to preserve payrolls. Nonetheless, economic uncertainty has forced many companies, lenders and investors to seek guidance on their rights with respect to contractual obligations, especially in these key areas: • force majeure provisions • the doctrines of impossibility • material adverse effects and impracticability provisions • the frustration of purpose • ordinary course of business doctrine covenants • EBITDA maintenance covenants The analysis of any particular contract, transaction or dispute is always fact-specific and depends on, among other things, the specific contract language and conduct of the parties in each instance, as well as the relevant law applicable to that contract, transaction or dispute. Additionally, current market norms continue to evolve and legal rules cannot be interpreted in a vacuum. Regulatory and judicial interpretations of particular contract provisions, duties and applicable law may -
In Re First Phoenix
United States Bankruptcy Court Western District of Wisconsin Cite as: 575 B.R. 828 In re: First Phoenix-Weston, LLC, and FPG & LCD, L.L.C., Debtors Bankruptcy Case Nos. 16-12820-11 and 16-12821-11 (Jointly Administered) August 14, 2017 Justin M. Mertz, Esq., Michael Best & Friedrich LLP, Milwaukee, WI, for Debtors Frank W. DiCastri, Esq., Husch Blackwell LLP, Milwaukee, WI, for Creditor Catherine J. Furay, United States Bankruptcy Judge MEMORANDUM DECISION This is a tale of two views of the same transaction. Debtor First Phoenix-Weston, LLC (“Weston”) borrowed $14,694,599.73 from Sabra Phoenix TRS Venture, LLC (“Sabra Phoenix”) in November of 2013. The transaction was documented by a Loan Agreement, Note, and Mortgage. In addition, an Option Agreement was executed the same day between Weston and Sabra Phoenix. The Loan Agreement and related documents—including the Option Agreement—were assigned to Sabra Phoenix Wisconsin, LLC (“Sabra”) by Sabra Phoenix. On August 15, 2016, Weston and Co-Debtor FPG & LCD, L.L.C. (“FPG”) (collectively the “Debtors”), filed voluntary Chapter 11 petitions. On December 21, 2016, the Debtors’ largest pre-petition lender, Sabra, filed Proof of Claim No. 16 in the Weston case. The claim was in an amount “not less than” $17,773,438.77.1 The Proof of Claim contains an addendum detailing the calculation of the stated amount and, further, asserts “an unliquidated, unsecured amount as damages for Debtors’ pre-petition breach of the Option Agreement.” The Debtors objected to Sabra’s Proof of Claim No. 16 (“Claim Objection”). The objection focuses on the claim for additional sums related to the Option.2 Sabra moved “for Entry of Orders: (I) Estimating Claim for Breach of Option Agreement; and (II), to the Extent Necessary, Temporarily Allowing Sabra’s Claims for Voting Purposes” (the “Option Motion”). -
Application of the Uniform Commercial Code to Option Contracts for The
Campbell Law Review Volume 23 Article 4 Issue 1 Fall 2000 October 2000 Application of the Uniform Commercial Code to Option Contracts for the Sale of Goods, and Implying Promises to Find Sufficient Consideration: Why and How the North Carolina Supreme Court Got It Wrong in Fordham v. Eason James T. Newman Jr. Follow this and additional works at: http://scholarship.law.campbell.edu/clr Part of the Commercial Law Commons Recommended Citation James T. Newman Jr., Application of the Uniform Commercial Code to Option Contracts for the Sale of Goods, and Implying Promises to Find Sufficient Consideration: Why and How the North Carolina Supreme Court Got It Wrong in Fordham v. Eason, 23 Campbell L. Rev. 49 (2000). This Note is brought to you for free and open access by Scholarly Repository @ Campbell University School of Law. It has been accepted for inclusion in Campbell Law Review by an authorized administrator of Scholarly Repository @ Campbell University School of Law. Newman: Application of the Uniform Commercial Code to Option Contracts fo Application of the Uniform Commercial Code to Option Con- tracts for the Sale of Goods, and Implying Promises to Find Suffi- cient Consideration: Why and How the North Carolina Supreme Court Got it Wrong in Fordham v. Eason* "Oft times members of both the bench and bar are criticized for failing to distinguish the forest from the trees. In this case, however, the con- troversy arises from an attempt to separate the trees from the forest."1 I. INTRODUCTION The North Carolina Supreme Court rarely ventures into cases involving contract disputes.