Rescission of Real Estate Contracts I
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Unconscionability in Contracts Between Merchants
SMU Law Review Volume 40 Issue 4 Article 4 1986 Unconscionability in Contracts between Merchants Jane P. Mallor Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Jane P. Mallor, Unconscionability in Contracts between Merchants, 40 SW L.J. 1065 (1986) https://scholar.smu.edu/smulr/vol40/iss4/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. UNCONSCIONABILITY IN CONTRACTS BETWEEN MERCHANTS by Jane P. Mallor* HE doctrine of unconscionabilityl has played a role in Anglo-Ameri- can contract law since at least the eighteenth century. 2 In the past twenty years, however, the doctrine has enjoyed an ascendancy that could scarcely have been dreamed of by the chancellors in equity who first employed the doctrine. 3 Its codification in section 2-302 of the Uniform Commercial Code of almost all states,4 and its adoption and application by courts in a wide variety of cases outside the scope of the Uniform Commer- cial Code,5 have brought unconscionability into the forefront of modem American contract law. * B.A., J.D., Indiana University. Associate Professor of Business Law, Indiana Univer- sity School of Business. 1. "Unconscionability is the rubric under which the judiciary may refuse to enforce un- fair or oppressive contracts in the absence of fraud or illegality." Stanley A. Klopp, Inc. v. John Deere Co., 510 F. Supp. -
United States Real Estate Investment: the Contract Process by Lee A
Property Group | 2003 United States Real Estate Investment: The Contract Process By Lee A. Kuntz* large measure, a reflection of the essential laissez faire * Introduction spirit of the United States economic system. For foreign investors, one of the most important but least In most other countries either by law (primarily statutory understood aspects of an investment in United States real law) or custom, the areas of potential controversy in a real property is the negotiation of a contract of sale and, once estate transaction are largely limited to price and the contract is completed, the closing of the acquisition. payment terms. In a fundamental sense, the basic Because this process differs greatly from the contract question of the merchantability of the property is not at process in most other countries, it is a difficult and often issue, because, as a result of the applicable statutory confusing period for foreign investors. Yet, if they are to provisions, the seller is usually obliged to sell the property protect their interests, they must not only understand the in a merchantable condition and the purchaser is process but join actively in it. This paper will explain the generally assured as to its ownership by registration of its United States contract process to help foreign investors to title. The question of merchantability really becomes participate in it more effectively. important only after the conveyance of the property if the To begin at the beginning, a contract of sale provides the purchaser discovers that the property’s condition does not terms and conditions of the transaction. -
Real Estate in 32 Jurisdictions Worldwide Contributing Editor: Sheri P Chromow 2012
® Real Estate in 32 jurisdictions worldwide Contributing editor: Sheri P Chromow 2012 Published by Getting the Deal Through in association with: Achour & Hájek Advokatfirman Glimstedt Arzinger Barrera, Siqueiros y Torres Landa, SC Biedecki Bin Shabib & Associates (BSA) LLP Divjak, Topi´c & Bahtijarevi´c Law Firm Drakopoulos Law Firm EDAS Law Firm ˙IçtemLegal Attorneys at Law ILA Pasrich & Company Katten Muchin Rosenman LLP Kleyr Grasso Associés Kluge Advokatfirma DA Law Chambers Nicos Papacleovoulou Madrona Hong Mazzuco Brandão – Sociedade de Advogados Nagashima Ohno & Tsunematsu Nnenna Ejekam Associates OMG Oppenländer Rechtsanwälte Orrick Rambaud Martel Reed Smith LLP Schellenberg Wittmer Sultan Al-Abdulla & Partners Thiery & Ortenburger Rechtsanwälte OG Tilleke & Gibbins V&T Law Firm VARUL WongPartnership LLP Zang, Bergel & Viñes Abogados CONTENTS ® Albania Evis Jani and Ekflodia Leskaj Drakopoulos Law Firm 3 Real Estate 2012 Argentina Juan Manuel Quintana, Inés M Poffo, Fernando M Aguinaga and Iván Burin Contributing editor Zang, Bergel & Viñes Abogados 9 Sheri P Chromow Katten Muchin Rosenman LLP Austria Ernst W Ortenburger and Herwig Schönbauer Thiery & Ortenburger Rechtsanwälte OG 17 Business development managers Brazil Maria P Q Brandão Teixeira Madrona Hong Mazzuco Brandão – Sociedade de Advogados 22 Alan Lee George Ingledew China Wang Jihong, Gao Lichun, Zhu Yongchun, Xie Yi, Shi Jie, Zhang Xiaofeng and Gao Lei Robyn Hetherington V&T Law Firm 29 Dan White Marketing managers Croatia Emir Bahtijarevic,´ Marin Vukovic´ and Tena -
Real Estate Contract
REAL ESTATE CONTRACT THIS REAL ESTATE CONTRACT (the “Contract”) is entered into on the _____ day of _________________, 20____ by and between ___________________________________________, hereinafter designated as “Sellers”, and ____________________________________________, and/or their assigns, hereinafter designated as “Buyers”; pursuant to the Buyers offer to purchase from Sellers the property described in Paragraph 1 herein, subject to the terms and conditions set forth herein: 1. Legal Description/Parcel No. and Address: _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ 2. Purchase Price: The purchase price for the Property shall be the exact sum of $_________________________ which is to be tendered by the Buyer with cash paid to Seller at closing. 3. (a) Financing Contingency. This Contract IS NOT conditioned upon Buyer’s ability to obtain financing to purchase the home. Buyer has fourteen (14) business days from the date of this Contract is signed, to obtain financing. Buyer shall inform Seller in writing that financing has been secured within fourteen (14) business days or this Contract is fully terminated and the Earnest Money shall be returned to Buyer. (b) Inspection Contingency. Buyer has ten (10) business days from acceptance of this offer to conduct an inspection. Buyer may rescind this offer for any reason whatsoever within that ten (10) day period by providing written notice to the title company, which shall immediately return the Earnest Money to the Buyer. In this event, this Contract shall be null and void and the parties shall have no rights one to the other. 4. Earnest Money: Within twenty-four (24) hours of execution of this Contract by Buyer and Seller, Buyer shall tender a signed copy of this Contract, along with a check in the amount of $___________________(the “Earnest Money”) payable to Capital Abstract & Title Co., LLC (the “Title Company”). -
Defendant-Sided Unjust Factors
This is a repository copy of Defendant-Sided Unjust Factors. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/95432/ Version: Accepted Version Article: Sheehan, D orcid.org/0000-0001-9605-0667 (2016) Defendant-Sided Unjust Factors. Legal Studies, 36 (3). pp. 415-437. ISSN 0261-3875 https://doi.org/10.1111/lest.12115 © 2016, The Society of Legal Scholars. This is the peer reviewed version of the following article: Sheehan, D. (2016) Defendant-sided unjust factors. Legal Studies, 36: 415–437, which has been published in final form at http://dx.doi.org/10.1111/lest.12115. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving. Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ Defendant-Sided Unjust Factors Duncan Sheehan This paper models how duress and undue influence as vitiating factors in contract and unjust enrichment affect the structure of the claimant’s intentional agency. -
CHICAGO ASSOCIATION of REALTORS® EXCLUSIVE BUYER - BROKER AGREEMENT This Contract Is Intended to Be a Binding Real Estate Contract Rev
CHICAGO ASSOCIATION OF REALTORS® EXCLUSIVE BUYER - BROKER AGREEMENT This Contract is Intended to be a Binding Real Estate Contract Rev. 01/2012 1 1. BROKER. This Exclusive Buyer-Broker Agreement ("Agreement") is entered into by and between ____________________________ 2 _________________________________________________ ("Broker") and __________________________________________________________ ("Buyer"). 3 Broker agrees to appoint a sales associate affiliated with Broker to act as the Buyer's designated agent ("Buyer's Designated Agent") for the 4 purpose of assisting Buyer in identifying and negotiating the acquisition of residential real estate ("Property") and Buyer agrees to grant 5 Buyer's Designated Agent the exclusive right ("Exclusive Right") to represent Buyer in such acquisition per the terms and conditions set forth 6 in this Agreement. The terms "acquire" or "acquisition" shall mean the purchase (title transfer or Articles of Agreement for deed), lease, 7 exchange, or contract for the option to purchase Property by Buyer or anyone acting on Buyer's behalf. 8 2. TERM. Broker's Exclusive Right shall extend from the Effective Date, as set forth on page 3 ("Commencement Date"), until 11:59 9 P.M. on ___________________________, 20___, at which time this Agreement shall automatically terminate ("Termination Date"). 10 3. COMPENSATION. Broker shall seek to be paid a commission from the listing broker under a cooperative brokerage arrangement 11 or from the seller if there is no listing broker. In the event that the seller or listing broker does not pay Broker a commission, then 12 Buyer shall pay Broker at the time of closing, compensation equal to _______% [percent] of the purchase price of the Property 13 which Buyer acquires during the Term of this Agreement (“Acquisition Commission”), whether or not the Property has been 14 identified by Broker to Buyer. -
Contracts Course
Contracts A Contract A contract is a legally enforceable agreement between two or more parties with mutual obligations. The remedy at law for breach of contract is "damages" or monetary compensation. In equity, the remedy can be specific performance of the contract or an injunction. Both remedies award the damaged party the "benefit of the bargain" or expectation damages, which are greater than mere reliance damages, as in promissory estoppels. Origin and Scope Contract law is based on the principle expressed in the Latin phrase pacta sunt servanda, which is usually translated "agreements to be kept" but more literally means, "pacts must be kept". Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations, along with tort, unjust enrichment, and restitution. As a means of economic ordering, contract relies on the notion of consensual exchange and has been extensively discussed in broader economic, sociological, and anthropological terms. In American English, the term extends beyond the legal meaning to encompass a broader category of agreements. Such jurisdictions usually retain a high degree of freedom of contract, with parties largely at liberty to set their own terms. This is in contrast to the civil law, which typically applies certain overarching principles to disputes arising out of contract, as in the French Civil Code. However, contract is a form of economic ordering common throughout the world, and different rules apply in jurisdictions applying civil law (derived from Roman law principles), Islamic law, socialist legal systems, and customary or local law. 2014 All Star Training, Inc. -
Undue Influence Updated: a Framework for Recognizing, Investigating, and Responding
UNDUE INFLUENCE UPDATED: A FRAMEWORK FOR RECOGNIZING, INVESTIGATING, AND RESPONDING NATIONAL ADULT PROTECTIVE SERVICES ASSOCIATION AUGUST 20, 2019 MARY JOY QUINN, MA, RN, MFT CANDACE HEISLER, JD QUINN AND HEISLER UNDUE INFLUENCE, 2019. ALL RIGHTS RESERVED. 1 Overview of Session Psychological aspects of undue influence Legal aspects of undue influence Consent and capacity issues Two research studies ◦ 2010 Exploratory study of undue influence ◦ 2016 Development of screening tool for undue influence Case Studies California Undue Influence Screening Tool (CUIST) QUINN AND HEISLER UNDUE INFLUENCE, 2019. ALL RIGHTS RESERVED. 2 Undue Influence as a Psychological Process •Psychological process, not one time event •One person gradually takes over the thoughts, actions, and decision making powers of another person and benefits by doing so. •Accomplishes this by deceit, isolation, threats, deprivation of sleep or necessities of life, manipulation of medication, withholding information, inducing guilt, creating siege mentality, dependency, fear, fake worlds, relationship poisoning QUINN AND HEISLER UNDUE INFLUENCE, 2019. ALL RIGHTS RESERVED. 3 Legal Perspective • Legal proceedings: deal with results of undue influence ◦ Transfer of property ◦ Changes in beneficiaries of a will, ◦ Change in ownership of bank accounts. ◦ Consent? Capacity? • Federal laws ◦ Elder Justice Act and Older Americans Act –Do not define undue influence or include the term in their definitions of financial exploitation or abuse • State laws vary ◦ May mention the term undue influence but not define it ◦ May include undue influence as part of another definition: e.g., APS, Civil, Probate or Criminal ◦ Definition may be out of date and inconsistent with contemporary thought and practice ◦ State courts laws commonly include undue influence in wills, trusts, gifts, contracts QUINN AND HEISLER UNDUE INFLUENCE, 2019. -
In Dispute 30:2 Contract Formation
CHAPTER 30 CONTRACTS Introductory Note A. CONTRACT FORMATION 30:1 Contract Formation ― In Dispute 30:2 Contract Formation ― Need Not Be in Writing 30:3 Contract Formation ― Offer 30:4 Contract Formation ― Revocation of Offer 30:5 Contract Formation ― Counteroffer 30:6 Contract Formation ― Acceptance 30:7 Contract Formation ― Consideration 30:8 Contract Formation ― Modification 30:9 Contract Formation ― Third-Party Beneficiary B. CONTRACT PERFORMANCE 30:10 Contract Performance — Breach of Contract — Elements of Liability 30:11 Contract Performance — Breach of Contract Defined 30:12 Contract Performance — Substantial Performance 30:13 Contract Performance — Anticipatory Breach 30:14 Contract Performance — Time of Performance 30:15 Contract Performance — Conditions Precedent 30:16 Contract Performance — Implied Duty of Good Faith and Fair Dealing — Non-Insurance Contract 30:17 Contract Performance — Assignment C. DEFENSES Introductory Note 30:18 Defense — Fraud in the Inducement 30:19 Defense — Undue Influence 30:20 Defense — Duress 30:21 Defense — Minority 30:22 Defense — Mental Incapacity 30:23 Defense — Impossibility of Performance 30:24 Defense — Inducing a Breach by Words or Conduct 30:25 Defense — Waiver 30:26 Defense — Statute of Limitations 30:27 Defense — Cancellation by Agreement 30:28 Defense — Accord and Satisfaction (Later Contract) 30:29 Defense — Novation D. CONTRACT INTERPRETATION Introductory Note 30:30 Contract Interpretation — Disputed Term 30:31 Contract Interpretation — Parties’ Intent 30:32 Contract Interpretation — -
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. -
HORIZON VENTURES of WEST VIRGINIA, INC., a WEST VIRGINIA CORPORATION, Plaintiff Below, Petitioner
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2021 Term FILED _____________ April 1, 2021 released at 3:00 p.m. No. 19-0171 EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS _____________ OF WEST VIRGINIA HORIZON VENTURES OF WEST VIRGINIA, INC., A WEST VIRGINIA CORPORATION, Plaintiff Below, Petitioner V. AMERICAN BITUMINOUS POWER PARTNERS, L.P., Defendant Below, Respondent ________________________________________________ Appeal from the Circuit Court of Marion County The Honorable Patrick N. Wilson, Judge Civil Action No. 18-C-76 REVERSED AND REMANDED ________________________________________________ Submitted: February 9, 2021 Filed: April 1, 2021 Mark A. Kepple John F. McCuskey Bailey & Wyant, PLLC Roberta F. Green Wheeling, West Virginia Shuman, McCuskey, & Slicer PLLC Attorney for the Petitioner Charleston, West Virginia Attorneys for the Respondent CHIEF JUSTICE JENKINS delivered the Opinion of the Court. JUSTICES HUTCHISON and WOOTON concur and reserve the right to file concurring opinions. SYLLABUS BY THE COURT 1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). 2. “‘A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).” Syllabus point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992). -
“Supply for Consideration”? Presented by Tony Van Der Westhuysen BA; LLB; H
12/05/2017 Just what is a “Supply for consideration”? Presented by Tony van der Westhuysen BA; LLB; H. Dip Tax Law; MBA; Cert IV TAA 1 12/05/2017 Legislative Background Section 9-5 You make a taxable supply if: (a) you make the supply for consideration; and (b) the supply is made in the course or furtherance of an enterprise that you carry on; and (c) the supply is connected with the indirect tax zone; and (d) you are registered, or required to be registered. However, the supply is not a taxable supply to the extent that it is GST- free or input taxed. 2 12/05/2017 Section 9-10 Meaning of ‘supply’ • A supply of goods or services; • The provision of advice or information; • A grant, assignment or surrender of real property; • The creation, grant, transfer, assignment or surrender of any right; • Includes financial supplies Continued…. Section 9-10 (continued) Includes • an entry into an obligation or • release from an obligation • to do anything • to refrain from an act • to tolerate an act or situation 3 12/05/2017 What is not a supply? “Supply” does not include a supply of money, unless the money is provided as consideration for a supply that is a supply of money. (s9-10(4)) Section 9-15 Meaning of ‘consideration’ “Consideration” Includes: • any payment or any act or forbearance • in connection with, • in response to or • for the inducement of • a supply of anything 4 12/05/2017 Case law • Reliance Carpet Company Pty Ltd v FCT AAT (yes) FFC (no) HC (yes) • COT v Qantas Airways Ltd AAT (yes) FFC (no) HC (yes) GSTR 2006/9 The meaning of “Supply” 5 12/05/2017 The Propositions Sixteen in total Proposition 4 • A transaction may involve two or more supplies • Non-monetary consideration • GST-inclusive market value 12 6 12/05/2017 Proposition 5 • To 'make a supply' an entity must do something • The ordinary meaning of 'supply' requires a positive act by the supplier • Compulsory acquisitions? Re Hornsby Shire Council v.