Contracts for Benefit of Third Persons
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Drafting and Enforcing Complex Indemnification Provisions
Drafting And Enforcing Complex Indemnification Provisions D. Hull D. Hull Youngblood, Jr. and Peter N. Flocos Youngblood, Jr. is a partner in the Forget about copy and paste. The best indem Austin, Texas office nification provisions start with the details of of K&L Gates LLP. Mr. Youngblood the transaction. focuses his practice on government contracting, the security industry and com plex THE PURPOSE of this article is to assist transactional financial transactions, and regularly represents and litigation attorneys in the negotiation and drafting clients in a wide array of local, state, and federal of customized, and therefore more effective, indemnifi- contracting transactions and disputes. He can be cation provisions in a wide range of situations, and also reached at [email protected]. to spot certain litigation issues that may arise out of in- demnification provisions. This article will identify issues Peter N. and strategies and suggested language that can act as a Flocos starting point to protect the client’s interests in the area is a partner in the of indemnification in complex transactions and litigation. New York City Readers should note that this article is for informational office of K&L Gates purposes, does not contain or convey legal advice, and LLP. Mr. Flocos, may or may not reflect the views of the authors’ firm or who began his any particular client or affiliate of that firm. The infor- legal career as mation herein should not be used or relied upon in regard a transactional lawyer and then to any particular facts or circumstances without first con- became a litigator, sulting a lawyer. -
Confidential Relations and Unenforcible Express Trusts
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1928 Confidential Relations and Unenforcible Express Trusts George Gleason Bogert Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation George Gleason Bogert, "Confidential Relations and Unenforcible Express Trusts," 13 Cornell Law Quarterly 237 (1928). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CONFIDENTIAL RELATIONS AND UNEN- FORCIBLE EXPRESS TRUSTS GEORGE GLEASON BOGERT* It is a commonplace that courts of equity frequently base relief solely on the violation of a confidential relation. One of numerous examples of this action is to be found in the constructive trusts which are often created where a grantee has broken an oral, unenforcible promise to hold in trust for the grantor, and the grantee stood in a confidential relation to the grantor at the time of the making of the promise. The following is a typical case: A has conveyed land to B on B's oral agreement to hold it in trust for A and reconvey at A's command. A and B were in confidential relations before the deed was made. The Statute of Frauds prevents the enforcement of B's express promises. The retention of the land after setting up the Statute is not generally regarded as such inequitable conduct as to justify a decree that the holder is a constructive trustee. -
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 — -
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. -
Orphans' Court of Pennsylvania, Philadelphia County. Mckee Estate
83 Pa. D. & C. 492 Page 1 3 Fiduc.Rep. 274, 83 Pa. D. & C. 492, 1953 WL 4499 (Pa.Orph.) Orphans' Court of Pennsylvania, Philadelphia County. Charities 37(1) McKee Estate 75k37(1) Most Cited Cases No. 654. Distribution of assets of a charitable trust cy pres was delayed for a five year period during which income was to April term, 1902. be applied under a scholarship plan authorized by the audit- February 6, 1953. ing judge and by which the court retains supervisory con- trols of a fund for a limited period of years "in order to per- **1 *493 Exceptions to adjudication. mit the situation to crystallize." West Headnotes Charities 37(6) Wills 618 75k37(6) Most Cited Cases 409k618 Most Cited Cases Where it is clear from a will as a whole that testator's intent The fact that no beneficiary is named to receive and enjoy is primarily charitable, a provision that the fund is to be surplus income earned by testator's residuary estate during used for the specific charitable purposes outlined and for the life of certain of his descendants does not violate any "no other purpose", does not prevent the application of the rule of law where it is clear from the will as a whole that the doctrine of cy pres, unless accompanied by restraints upon surplus income is to be accumulated for the benefit of a alienation, forfeiture or reverter clauses. charity. Charities 37(8) Charities 4 75k37(8) Most Cited Cases 75k4 Most Cited Cases Where a testator who was a Negro and military man left his A gift to charity is not rendered invalid where it vests imme- residuary estate of approximately $1,000,000 for the pur- diately upon testator's death because possession and enjoy- pose of founding and maintaining an inter-racial school for ment are postponed during the life of certain of testator's orphan boys desiring naval training, and the fund is insuffi- descendants. -
Original 10/16/2018
ORIGINAL 10/16/2018 IN THE SUPREME COURT OF MONTANA IN THE STATE OF MONTANA A Private for-profit governmental services Corporation STATE OF MONTANA - DUN AND BRAD #945782027 ) Case # D DST) A private registered legal business entity A subsidiary corporation of UNITED STATES Corporation A De Facto for profit Governmental Services Corporation'FILED ) OCT 1 5 vS 2018 Ed" Smith DARRIN LELPAD REI3ER dba CLERK OF THE SUPREME COURT STATE OF MONTANA An artificial entity created through fraud, and Unlawful Conversion of natural Name by the STATE OF MONTANA Unlawfully Convicted, the man being involuntarily held as surety appearing by special appearance of Darrin Leland; of family of Reber A Living Soul, A man of GOD, Bondservant of Christ, Non Personam, Sui Juris a Non-representative/Non-agent CC: US Army Provost Marshal General Notified in Writing CC: US Commerce Secretary Notified in Writing U.S.C. Title 18 242: Deprivation of Rights Under Color of Law This is a Living Testimony in form of an Affidavit; a Challenge of my Rights, Status, Standing &Jurisdiction; a Notice of Discovery of Fraud and Impropriety; a Writ of Habeas Corpus; a Demand for Remedy; and a Claim for Compensation Notice to principle is notice to agent, Notice to agent is notice to principle. I hereby pray to God for relief and command the administrator as public servant of"We the People" to read this thoroughly and with comprellension, this document is of a very serious nature and is not frivolous. Page 1 of 87 There will be no presumptions or assumptions, no Tacit agreements, no waiver of rights, no hearsay, no lawyering or attornment from the bench. -
Contracts of Adhesion-Some Thoughts About Freedom of Contract
CONTRACTS OF ADHESION-SOME THOUGHTS ABOUT FREEDOM OF CONTRACT FRIEDRICH KESSLER With the development of a free enterprise system based on an un- heard of division of labor, capitalistic society needed a highly elastic legal institution to safeguard the exchange of goods and services on the market. Common law lawyers, responding to this social need, trans- formed "contract" from the clumsy institution that it was in the six- teenth century into a tool of almost unlimited usefulness and pliability. Contract thus became the indispensable instrument of the enterpriser, enabling him to go about his affairs in a rational way. Rational be- havior within the context of our culture is only possible if agreements will be respected. It requires that reasonable expectations created by promises receive the protection of the law or else we will suffer the fate of Montesquieu's Troglodytes, who perished because they did not ful- fill their promises. This idea permeates our whole law of contracts, the doctrines dealing with their formation, performance, impossibility and damages. Under a free enterprise system rationality of the law of contracts has still another aspect.1 To keep pace with the constant widening of the market the legal system has to place at the disposal of the members of the community an ever increasing number of typical business trans- actions and regulate their consequences. But the law cannot possibly anticipate the content of an infinite number of atypical transactions into which members of the community may need to enter. Society, therefore, has to give the parties freedom of contract; to accommodate the business community the ceremony necessary to vouch for the delib- erate nature of a transaction has to be reduced to the absolute minimum. -
Lesser Known Breach of Contract Defenses
LESSER KNOWN BREACH OF CONTRACT DEFENSES Jack A. Walters, III Cooper & Scully, P.C. Founders Square 900 Jackson Street, Suite 100 Dallas, Texas 75202 (214) 712-9500 (214) 712-9540 fax www.cooperscully.com [email protected] 3rd Annual Construction Symposium January 25, 2008 TABLE OF CONTENTS I. INTRODUCTION...............................................................................................................1 II. BACKGROUND ON CONSTRUCTION CONTRACTS..................................................1 A. Contract Documents...............................................................................................1 B. Checklist of Issues Covered in a Contract..............................................................1 C. Definitions..............................................................................................................2 III. CONTRACT DEFENSES...................................................................................................3 A. Limitations (Statute of Limitations & Statute of Repose)......................................3 B. Standing/Privity......................................................................................................5 C. Failure of consideration / Lack of consideration....................................................6 D. Mistake 7 E. Ratification.............................................................................................................8 F. Waiver 9 G. Plaintiff's Prior Material Breach.............................................................................9 -
Use of Declaratory Judgment Actions in Probate
North Dakota Law Review Volume 46 Number 3 Article 2 1969 Use of Declaratory Judgment Actions in Probate Shirley A. Webster Follow this and additional works at: https://commons.und.edu/ndlr Part of the Law Commons Recommended Citation Webster, Shirley A. (1969) "Use of Declaratory Judgment Actions in Probate," North Dakota Law Review: Vol. 46 : No. 3 , Article 2. Available at: https://commons.und.edu/ndlr/vol46/iss3/2 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact [email protected]. USE OF DECLARATORY JUDGMENT, ACTIONS IN PROBATE SHIRLEY A WEBSTER* An action for a declaratory judgment is an extremely useful procedure in probate. Probate administration gives rise to complex problems involving every conceivable kind of property. The intertwined and often con- flicting rights of the distributees, heirs and creditors create uncer- tainties which can delay the closing of administration. A prompt and final determination of these problems is most desirable from the point of view of the fiduciary, his attorney, the persons interested in the estate and the general public. A fiduciary is often confronted with problems as to the inter- pretation of a will, determination of who are heirs or distributees, questions of priority of claims, title and rights to property, abate- ment of bequests and many other matters. The parties interested do not have all of the information held by the fiduciary and are not in a position to see the overall picture of the estate. -
Amicus Brief June 29, 2016
Amici curiae respectfully submit this brief pursuant to Maryland Rule 8-511 in support of the Maryland Court of Special Appeals’ application of the Economic Loss Rule. STATEMENT OF INTEREST Amici curiae are comprised of four national and three regional associations representing the interests of thousands of design professionals from across the country, including Maryland, who provide professional engineering, architecture, and land surveying services in the development of the built environment in which we live. The services provided by these design professionals include the preparation of plans and specifications for public infrastructure, commercial development, and residential projects, “allowing Americans to drink clean water, enjoy a healthy life, take advantage of new technologies, and travel safely and efficiently.”1 The American Council of Engineering Companies of Maryland (“ACEC-MD”) is a nonprofit association representing over 90 consulting engineering firms located throughout the state that serve the public and private sectors. Member firms employ over 6,500 employees and are responsible for the design of most of the area’s infrastructure, including environmental and building construction. Founded in 1957, the organization promotes the business interests of the consulting engineering profession in Maryland and the surrounding region. 1 About ACEC, http://www.acec.org/about/ (last visited June 29, 2016). Founded in 1968, the American Council of Engineering Companies of Virginia (“ACEC-VA”) is the largest engineering firm association in Virginia. It represents the business interests of more than 90 consulting engineering firms which employ more than 4,000 employees. ACEC-VA actively advocates on behalf of its membership, and is a leader in promoting industry excellence and professionalism. -
Its the Secret Trust? the Law
Trust? Its the Secret Trust? The law ROMAN CANON LAW 3.3 Rights Suspension and Corruption Article 100 - Cestui Que Vie Trust Canon 2057 Any Administrator or Executor that refuses to immediately dissolve a Cestui Que (Vie) Trust, or if the man/woman wants to take control upon their Private Person establishing their status and competency, The Fiduciary is guilty of fraud and fundamental breach of their fiduciary duties requiring their immediate removal and punishment Canon 2045 By 1815 and the bankruptcy of the Crown and Bank of England by the Rothschilds, for the 1st time, the Cestui Que Vie Trusts of the United Kingdom became assets placed in private banks effectively becoming "private trusts" or "Fide Commissary Trusts" administered by commissioners (guardians). From 1835 and the Wills Act, these private trusts have been also considered "Secret Trusts" whose existence does not need to be divulged. Canon 2046 From 1917/18 with the enactment of the Sedition Act and the Trading with the Enemy Act in the United States and through the United Kingdom, the citizens of the Commonwealth and the United States became effectively "enemies of the state" and "aliens" which in turn converted the "Fide Commissary" private secret trusts to "Foreign Situs" (Private International) Trusts. Canon 2047 In 1931, the Roman Cult, also known as the Vatican created the Bank for International Settlements for the control of claimed property of associated private central banks around the world. Upon the deliberate bankruptcy of most countries, private central banks were installed as administrators and the global Cestui Que Vie/Foreign Situs Trust system was implemented from 1933 onwards. -
Re-Defining Privity of Contract: Brown V. Belleville (City) 731
RE-DEFINING PRIVITY OF CONTRACT: BROWN V. BELLEVILLE (CITY) 731 RE-DEFINING PRIVITY OF CONTRACT: BROWN V. BELLEVILLE (CITY) M.H. OGILVIE* I. INTRODUCTION The classical definition of the common law doctrine of privity states that “a contract cannot (as a general rule) confer rights or impose obligations arising under it on any person except the parties to it.”1 The latter part of the proposition is uncontroversial since it is universally acknowledged to be unjust for parties to agree to impose an obligation on an unsuspecting other and thereby be able to sue to enforce that obligation. The former part of the proposition is controversial, particularly where the expressed purpose of the contract is to bestow a benefit on another. The controversial part of that proposition is the implication that a third party could, by virtue of the contract, obtain a legal right to sue to enforce an agreement made for the third party’s benefit when the third party is not a party to the consideration, that is, has contributed nothing to the exchange, and, therefore, should not be entitled to enforce the agreement. By definition, contract law is about the enforcement of promises exchanged by the parties who have voluntarily consented and contributed to that exchange, and anticipate benefiting from it in a way meaningful to each other. The doctrine of consideration serves the important function of identifying the parties to the exchange, but it does not necessarily identify who is to benefit from it; a party to the consideration could well have entered the agreement to purchase something to bestow as a gift on another in the future.