Contracts and Sales

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Contracts and Sales MBE Testing Distribution MBE Question Breakdown ________ (I) Formation, (II) Consideration, (VII) Formation of Contracts: ________ Conditions, (IX) Impossibility, and (X) Consideration: ________ Discharge: Third-Party Beneficiary Contracts: ________ (III) Third-Party Beneficiaries, (IV) ________ Assignment and Delegation, (V) Statute Assignment and Delegation: ________ of Frauds, (IV) Parole Evidence, (VIII) Statute of Frauds ________ Remedies Parol Evidence and Interpretation ________ Conditions ________ Remedies ________ Impossibility, Impracticability, and ________ Frustration of Purpose Discharge of Contractual Duties ________ I. Formation of Contracts III. Third-Party Beneficiary Contracts A. Mutual Assent __ A. Intended Beneficiaries __ 1. Offer B. Incidental Beneficiaries __ 2. Acceptance C. Impairment or Extinguishment of Third- 3. Non-Conforming Acceptance Party Rights __ 4. Avoidance of Contract D. Enforcement by the Promisee __ B. Capacity to Contract __ IV. Assignment and Delegation C. Improper Contracts __ A. Assignment of Rights __ D. Implied-in-Fact Contracts and Quasi- Contracts __ B. Delegation of Duties __ E. Pre-Contract Detrimental Reliance __ V. Statue of Frauds F. Warranties __ A. Common Law __ II. Consideration B. Writing Requirement __ A. Bargained-for Exchange and Legal C. UCC __ Detriment __ VI. Parol Evidence and Interpretation B. Adequacy of Consideration __ A. Four Corners Rule __ C. Modern Substitutes for Bargain __ B. Collateral Contract Rule __ D. Modification of Contracts __ C. Evidence of Usage of Trade __ E. Compromise and Settlement of Claims D. Course of Dealing __ __ 1 VII. Conditions IX. Impossibility, Impracticability and A. Express Conditions __ Frustration of Purpose B. Constructive Conditions __ A. Impossibility of Performance __ C. Obligations of Good Faith and Fair B. Impracticability __ Dealing __ C. Frustration of Purpose __ D. Suspension or Excuse of Conditions __ E. Prospective Inability to Perform and X. Discharge of Contractual Duties Anticipatory Repudiation __ A. Substituted Agreement __ B. Novation __ VIII. Remedies C. Account Stated __ A. Election of Substantive Rights and D. Accord and Satisfaction __ Remedies __ E. Miscellaneous Discharges __ B. Total and Partial Breach of Contract __ C. Equitable Remedies __ D. Rescission and Reformation __ E. Measure of Damages __ F. Consequential and Other Damages __ G. Liquidated Damages and Penalties __ H. Restitution and Reliance Recoveries __ I. Remedial Rights of Defaulting Parties __ J. Avoidable Consequences and Mitigation of Damages __ K. Risk of Loss __ 2 .

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Introduction
17 May 2016 Learn With Us: Boilerplate clauses Jenny Mee, Partner, K&L Gates © Copyright 2016 by K&L Gates. All rights reserved. INTRODUCTION This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances 5/17/2016 without first consulting a lawyer. ©2016 K&L Gates LLP. All Rights Reserved. 1 WHAT IS A “BOILERPLATE” CLAUSE? Boilerplate is any text that is or can be reused in new contexts or applications without being greatly changed from the original (Wikipedia) In contract law, the term "boilerplate language" describes the parts of a contract that are considered standard (Wikipedia) klgates.com 3 ETYMOLOGY ° Wikipedia: ° "Boiler plate" originally referred to the sheet steel used to make boilers ° The analogy between the curved steel used to make water boilers and curved metal used to print prepared text was based on: ° the curved shape of the plate; and ° the fact that it had been prepared elsewhere before being incorporated into a downstream producer’s finished product ° In the field of printing, the term dates back to the early 1900s klgates.com 4 This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances 5/17/2016 without first consulting a lawyer. ©2016 K&L Gates LLP. All Rights Reserved. 2 EXAMPLES OF BOILERPLATE CLAUSES ° “General” clause at the back, covering (eg): ° Governing law and jurisdiction ° Notices ° Entire agreement ° Further assurances ° No waiver ° Severability ° Contra proferentum (no adverse interpretation) ° Standard definitions and interpretation provisions ° Other standard clauses ° eg force majeure, termination, insurance, etc klgates.com 5 AGENDA FOR THIS SESSION ° Entire agreement clauses ° Set-off clauses ° No waiver clauses klgates.com 6 This publication is for informational purposes and does not contain or convey legal advice.
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Law 410 CONTRACTS BUCKWOLD
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DDS WIRELESS INTERNATIONAL, INC. V. NUTMEG LEASING, INC. (AC 34278) Robinson, Bear and Peters, Js
****************************************************** The `òfficially 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 `òfficially released'' date appearing in the opinion. In no event will any such motions be accepted before the `òfficially 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.
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26 Chap 26.Qxp
Chapter 26 CONTRACT CLAUSES MANAGING, ALLOCATING, AND TRANSFERRING CONSTRUCTION PROJECT RISKS C. Michael Shull III, Esq., Editor and Author (2007 Supplement) Holland & Hart LLP Douglas A. Karet, Esq., Editor and Author (2005 Supplement); Author (2003 Supplement) Holloway Brabec & Karet PC Buck S. Beltzer, Esq., P.E., Author (2005 Supplement) Holland & Hart LLP Robert E. Benson, Esq., Editor and Author (2003 Supplement) Holland & Hart LLP SYNOPSIS § 26.1 INTRODUCTION § 26.1.1—Overview § 26.1.2—Types Of Risks To Which Parties To A Construction Contract Can Be Exposed, And Which Risks Can Be Managed, Allocated, And Transferred § 26.1.3—The “Means” Of Parties Managing, Allocating, And Transferring Construction Project Risks § 26.1.4—Methods Of Management, Allocation, And Transfer Of Construction Project Risks By Contract § 26.1.5—The Meaningful Considerations About Risk Transfer Clauses § 26.2 PROCEDURAL CLAUSES FOR MANAGEMENT, ALLOCATION, AND TRANSFER OF RISKS § 26.2.1—Overview § 26.2.2—Choice Of Law Clauses § 26.2.3—Forum Selection Clauses § 26.2.4—Notice Of Claim Clauses § 26.2.5—Contractual Statutes Of Limitation § 26.2.6—Clauses Defining Commencement Of Statute Of Limitations § 26.2.7—Mediation Clauses § 26.2.8—Arbitration Clauses (10/07) 26-1 The Practitioner’s Guide to Colorado Construction Law § 26.2.9—Waiver Of Trial By Jury § 26.2.10—No Discovery Clauses § 26.2.11—Change Order Requirements § 26.2.12—Warranties § 26.2.13—Summary Of Procedural Clauses § 26.3 DAMAGE LIMITATION CLAUSES § 26.3.1—Overview § 26.3.2—Limitations On Types
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SAMPLE NOTES from OUR LLB CORE GUIDE: Contract Law Privity Chapter
SAMPLE NOTES FROM OUR LLB CORE GUIDE: Contract Law Privity chapter LLB Answered is a comprehensive, first-class set of exam-focused study notes for the Undergraduate Law Degree. This is a sample from one of our Core Guides. We also offer dedicated Case Books. Please visit lawanswered.com if you wish to purchase a copy. Notes for the LPC are also available via lawanswered.com. This chapter is provided by way of sample, for marketing purposes only. It does not constitute legal advice. No warranties as to its contents are provided. All rights reserved. Copyright © Answered Ltd. PRIVITY KEY CONCEPTS 5 DOCTRINE OF PRIVITY Under the common law: A third party cannot… enforce , be liable for, or acquire rights under … a contract to which he is not a party. AVOIDING THE DOCTRINE OF PRIVITY The main common law exceptions are: AGENCY RELATIONSHIPS ASSIGNMENT TRUSTS JUDICIAL INTERVENTION The main statutory exception is: CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 44 PRIVITY WHAT IS PRIVITY? “The doctrine of privity means that a contract cannot, as a general rule, confer PRIVITY rights or impose obligations arising under it on any person except the parties to it.” Treitel, The Law of Contract. Under the doctrine of privity: ACQUIRE RIGHTS UNDER A third party cannot BE LIABLE FOR a contract to which he is not a party. ENFORCE NOTE: the doctrine is closely connected to the principle that consideration must move from the promisee (see Consideration chapter). The leading cases on the classic doctrine are Price v Easton, Tweddle v Atkinson and Dunlop Pneumatic Tyre Co Ltd v Selfridges & Co Ltd.
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Scott Miskimon, Partner Smith Anderson Buyer Beware Determining Liability When the Deal Falls Apart by Scott A
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IN the COURT of APPEALS of IOWA No. 9-342 / 08-1570 Filed
IN THE COURT OF APPEALS OF IOWA No. 9-342 / 08-1570 Filed July 22, 2009 ADDISON INSURANCE COMPANY, Plaintiff-Appellant, vs. KNIGHT, HOPPE, KURNICK & KNIGHT, L.L.C., Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge. Appellant appeals the grant of summary judgment and asserts legal malpractice against its former counsel. AFFIRMED. Robert Hogg and Patrick M. Roby of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellant. James E. Shipman and Chad M. VonKampen of Simmons Perrine Moyer Bergman, P.L.C., Cedar Rapids, and David Macksey and Victor J. Pioli of Johnson & Bell, Ltd., Chicago, Illinois, for appellee. Heard by Sackett, C.J., and Vogel and Miller, JJ. 2 VOGEL, J. Addison Insurance Company (Addison) appeals the grant of summary judgment in favor of its former counsel, Knight, Hoppe, Kurnik & Knight, L.L.C. (Knight) on a legal malpractice claim. We affirm. I. Background Facts and Proceedings The underlying lawsuit was brought in New York on March 24, 1995, by the administratrix of the Gary Ketten Estate after Ketten was killed in a vehicle collision on April 2, 1993. The suit generally alleged Knoedler Manufacturing Company (Old Knoedler) was liable for the manufacture of a defective truck seat. Addison insured Old Knoedler at the time of the accident. On December 17, 1993, approximately nine months after the accident, Old Knoedler was sold to Sturhand Investments, Inc., who also purchased the name Knoedler Manufacturers, Inc., (New Knoedler). The sale was made under an asset purchase agreement.1 Addison also insured New Knoedler from December 18, 1993, to December 18, 1994, but provided no coverage to New Knoedler for the date of the accident, nor was there any assignment of insurance coverage in the asset purchase agreement.
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Damages: the Measure of Damages for Anticipatory Repudiation and Seller's Duty to Mitigate, 37 Marq
Marquette Law Review Volume 37 Article 8 Issue 1 Summer 1953 Damages: The eM asure of Damages for Anticipatory Repudiation and Seller's Duty to Mitigate Fintan M. Flanagan Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Fintan M. Flanagan, Damages: The Measure of Damages for Anticipatory Repudiation and Seller's Duty to Mitigate, 37 Marq. L. Rev. 76 (1953). Available at: http://scholarship.law.marquette.edu/mulr/vol37/iss1/8 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW [Vol. 37 York rule when inter vivos disposition is restricted. Although in the Michel case the contract was binding prior to death and the stock was held to have passed under the will, the court stressed that this was because of the fact situation there, the optionee being also made legatee of the shares. Regardless of the merits of this decision when considered in the light of the Wilson case 21 it seems safe to predict that at least where that peculiar fact situation does not exist, the court would prob- ably adopt the New York or so-called "Federal Rule." Thus until further decisions clarify the present situation, it would seem most advisable for the attorney in drafting one of these agree- ments to fix its provisions with an eye to making the price set acceptable to the Commissioner of Internal Revenue and probably the Wisconsin Tax Department will follow suit unless the option holder is bequeathed the shares.
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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.
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Commercial Impracticability - an Overview
Duquesne Law Review Volume 13 Number 3 Article 5 1975 Commercial Impracticability - An Overview Robert Sommer Follow this and additional works at: https://dsc.duq.edu/dlr Part of the Law Commons Recommended Citation Robert Sommer, Commercial Impracticability - An Overview, 13 Duq. L. Rev. 521 (1975). Available at: https://dsc.duq.edu/dlr/vol13/iss3/5 This Article is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. Commercial Impracticability-An Overview Robert Sommer* As shortages become more severe and prices continue to climb, both suppliers and purchasers are confronted with increasingly more burdensome performance arising from long-term, set-price contracts. As performance becomes more burdensome, greater num- bers of beleaguered promisors will turn to § 2-615 of the Uniform Commercial Code in hopes of excusing nonperformance. The pur- pose of this article is to discuss the doctrine of impracticability as codified in § 2-615. This article will discuss the historical antece- dents of the doctrine of impracticability, the mechanics set up by the Code to regulate the operation of the doctrine, case law applying the Code mechanics and, finally, a few questions left unanswered by the Code. I. HISTORICAL BACKGROUND A. Overview The early common law excused performance of duties imposed by law on grounds of impossibility but refused to excuse performance of contractual obligations on the same grounds.' The theory was that a promise was absolute unless, and only to the extent, qualified by the promisor.
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Misrepresentation: the Pitfalls of Pre-Contract Statements
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In Defense of the Impossibility Defense Gerhard Wagner Georg-August University of Goettingen
Loyola University Chicago Law Journal Volume 27 Article 4 Issue 1 Fall 1995 1995 In Defense of the Impossibility Defense Gerhard Wagner Georg-August University of Goettingen Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Contracts Commons Recommended Citation Gerhard Wagner, In Defense of the Impossibility Defense, 27 Loy. U. Chi. L. J. 55 (1995). Available at: http://lawecommons.luc.edu/luclj/vol27/iss1/4 This Essay is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Essay In Defense of the Impossibility Defense GerhardWagner* I. INTRODUCTION Generally, the common law follows the rule of pacta sunt servanda' under which contractual obligations are absolutely binding on the parties. 2 The impossibility defense is an exception to this general rule.3 Under the impossibility defense, a promisor may default with- out incurring liability for the promisee's expectation damages.4 * Akademischer Rat (Junior Lecturer) at Georg-August University of Goettingen, Germany; J.D., 1989, University of Goettingen; L.L.M., 1995, University of Chicago. The author is deeply indebted to Richard Craswell of the University of Chicago Law School for many helpful comments on an earlier draft of this Essay. 1. "Pacta sunt servanda" means "agreements (and stipulations) of the parties (to a contract) must be observed." BLACK'S LAW DICTIONARY 1109 (6th ed. 1990). 2. For an erudite discussion of pacta sunt servanda, see generally Richard Hyland, Pacta Sunt Servanda: A Meditation, 34 VA.
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