Offer and Acceptance Problem Questions
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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. -
Offer and Acceptance
ROLL FOLD... DOUBLE CHECK ADJUSTMENTS FOR ROLL FOLD... 1/16" creep. MAKE ADJUSTMENTS FOR DOT GAIN. diligence period expires, the earnest money should “contingencies” must be performed by the dates are a number of exceptions to this requirement. timeshare in North Carolina from a seller classified by these transactions may be riskier than a conventional be refunded to you. If you terminate after the due specified in the contract or very soon thereafter, Consequently, for application of this law to a particular law as a developer of a timeshare project, you have five purchase, you should consult your attorney before into diligence period, the earnest money is usually depending upon whether the contract states that situation, you should consult your attorney. days to cancel your purchase contract which you can do entering such agreements. forfeited to the seller unless the seller is unable “time is of the essence.” If time is of the essence, and • Lead Paint Disclosure. If you are by mail. If you are a resident of another state, you may • Lease-Purchase. In lease-purchase Questions and Answers on: or unwilling to satisfy the terms of the contract. If you or the seller fail to perform by the stated deadline, purchasing a residential building constructed before also have additional rescission rights under the laws of transactions, you occupy property as a tenant but agree there is any dispute between you and the seller the other party may terminate the contract. If the 1978, federal law requires sellers and their brokers to your home state. The developer must hold all funds to purchase it at a future date. -
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 — -
A Primer on Contractual Interpretation
McCarthy Tétrault Advance™ A PRIMER ON CONTRACTUAL INTERPRETATION GEOFF R. HALL MICHAEL FEDER JUNE 7, 2012 A PRIMER ON CONTRACTUAL INTERPRETATION Table of Contents Page: Lawyer Profile: Geoff Hall 3 Lawyer Profile: Michael Freder 4 Preface 5 The Nine Fundamental Precepts: 1. Words and their context 5 2. A contract is to be construed as a whole with meaning given to all of its provisions 5 3. The factual matrix 6 4. Interpretation is an objective exercise 6 5. Commercial efficacy 6 6. Every effort should be made to find a meaning 7 7. A contract is to be interpreted as of the date it was made 7 8.The parol evidence rule 7 9.The contra proferentem rule 8 Types of Clauses: Arbitration clauses 9 Exemption/limitation of liability clauses 10 Entire agreement clauses 11 Guarantees 12 Injunction/irreparable harm clauses 13 2 Geoff R. Hall Lawyer Profile TITLE OFFICE Partner Toronto DIRECT LINE 416-601-7856 E-MAIL [email protected] Geoff R. Hall is a partner in the Litigation Group based in our Toronto office. Mr. Hall's practice focuses primarily on corporate/commercial litigation, and he also has extensive experience in bankruptcy/restructuring litigation, constitutional and administrative law litigation. Mr. Hall holds a B.A. from McGill University (1987, Gold Medallist in Economics), an M.A. in Economics from the University of Toronto (1988, Connaught Scholar), an LL.B. from the University of Toronto (1991, Silver Medallist), and an LL.M. from Harvard Law School (1996). Mr. Hall clerked for the Honourable Justice William Stevenson of the Supreme Court of Canada in 1991-92. -
Why Expectation Damages for Breach of Contract Must Be the Norm: a Refutation of the Fuller and Perdue "Three Interests&Quo
Nebraska Law Review Volume 81 | Issue 3 Article 2 2003 Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis W. David Slawson University of Southern California Gould School of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation W. David Slawson, Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis, 81 Neb. L. Rev. (2002) Available at: https://digitalcommons.unl.edu/nlr/vol81/iss3/2 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. W. David Slawson* Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis TABLE OF CONTENTS 840 I. Introduction .......................................... Principal Institutions in a Modern Market II. The 843 Economy in Which Contracts Are Used ................ A. The Institution of the Economic Market: Contracts 843 as Bargains ....................................... Institution of Credit and Finance: Contracts as B. The 845 Property .......................................... 846 the Institutions' Needs ....................... III. Meeting 846 A. Providing a Remedy for Every Breach ............. Contracts Enforceable as Soon as They Are B. Making 847 M ade ............................................. Has Compensating the Injured Party for What He C. 848 ost ............................................... L 848 Damages Under the Expectation Measure ...... 1. 849 2. Damages Under the Reliance Measure ......... 849 a. -
Contractual Risk Transfer in Construction Contracts
CONTRACTUAL RISK TRANSFER IN CONSTRUCTION CONTRACTS Tarron L. Gartner Katie McClelland Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, TX 75202 214/712-9500 214/712-9540 (Fax) © 2008 TABLE OF CONTENTS PAGE I. CONTRACTUAL RISK TRANSFER IN CONSTRUCTION CONTRACTS............................... 1 A. “Insured Contract” – The Essence of Contractual Liability Coverage ............................................ 1 1. Contractual Liability Exclusion and Exception .................................................................. 1 B. Mechanics of Determining Contractual Liability Coverage ............................................................ 2 1. Determine the Validity of the Indemnity Agreement ......................................................... 2 2. Determine Whether Covered Injuries are Alleged Against Indemnitee ............................. 3 3. Determine Whether Indemnity Agreement was Executed Prior to Covered Injury ........... 3 4. Determine Whether to Assume Defense of Indemnitee...................................................... 3 C. Sole Negligence Variation on “Insured Contract”........................................................................... 4 D. Insured Contract Exception to Employer’s Liability Exclusion ...................................................... 4 II. VALIDITY OF INDEMNITY AGREEMENT UNDER FAIR NOTICE RULES ......................... 5 A. Express Negligence Test.................................................................................................................. 5 1. -
Writing Sample
Writing Sample Office of Career Services What is the purpose of a writing sample? The purpose of a writing sample is to illustrate how you organize and express your thoughts in writing. Legal employers use the writing sample to determine whether your skills and abilities meet their standards. Your writing sample should demonstrate your legal reasoning and analytical skills as well as your ability to communicate succinctly. When should I submit a writing sample? You should only submit a writing sample when an employer ProTip! specifically requests it. It is recommended to take copies of your writing sample to an You should not send a writing sample when sending networking letters. interview and provide a copy upon request. What is the proper format? Page length: 5 to 10 pages, double-spaced. If an employer sets a minimum or maximum page limit, you should adhere to those specifications. The writing sample, including the cover page, should fit into the employer’s given page limit. You should also include a header or footer with your name and page number on every page. Note: It is important to note that there are some exceptions when applying for judicial clerkships. See your CSO for more information. How do I condense my writing sample? If your sample exceeds the page requirements, you can select an excerpt from the sample as long as you provide an explanation in the cover page of the context of the excerpt, including facts and issues that will provide the reader with a complete understanding of the work product. You should also ensure that the selected excerpt demonstrates your analytical and legal reasoning skills and ability to communicate clearly and concisely. -
The Problem of Delay in the Contract Formation Process: a Comparative Study of Contract Law Mikio Yamaguchi T
Cornell International Law Journal Volume 37 Article 3 Issue 2 2004 The rP oblem of Delay in the Contract Formation Process: A Comparative Study of Contract Law Mikio Yamaguchi Follow this and additional works at: http://scholarship.law.cornell.edu/cilj Part of the Law Commons Recommended Citation Yamaguchi, Mikio (2004) "The rP oblem of Delay in the Contract Formation Process: A Comparative Study of Contract Law," Cornell International Law Journal: Vol. 37: Iss. 2, Article 3. Available at: http://scholarship.law.cornell.edu/cilj/vol37/iss2/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. The Problem of Delay in the Contract Formation Process: A Comparative Study of Contract Law Mikio Yamaguchi T Introduction ..................................................... 358 I. Law Applicable to the Problem of Delay in the United States .................................................... 3 6 1 A. Structure of Applicable Law ........................... 361 B. Priority of the Applicable Law ........................ 362 II. Comparative Study of the Contract Formation Process ..... 363 A. Legal Structure of the Contract Formation Process ..... 363 1. Structure of the Contract Formation Process Under the Comm on Law ................................. 363 2. Structure of the Contract Formation Process from a Comparative Perspective ........................... 364 B. A Major Function of the Common Law in the Contract Form ation Process .................................... 365 1. Common Law Rules and Principles That Reflect the Balancing Function ................................ 365 2. Balancing Function from a Comparative Perspective ....................................... -
Is the Assignee of a Contract Liable for the Non-Performance of Delegated Duties?
University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1920 Is the Assignee of a Contract Liable for the Non-Performance of Delegated Duties? Grover C. Grismore University of Michigan Law School Available at: https://repository.law.umich.edu/articles/1167 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Contracts Commons Recommended Citation Grismore, Grover C. "Is the Assignee of a Contract Liable for the Non-Performance of Delegated Duties?" Mich. L. Rev. 18 (1920): 284-95. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. IS THE ASSIGNEE OF A CONTRACT' LIABLE FOR THE NON-PERFORMANCE OF DELEGATED DUTIES? T is an oft recurring statement that "rights arising out of a con- tract cannot be transferred if they are coupled with liabilities." 2 It is such obscure statements as this which give rise to and per- petuate error, and an examination of the cases will show that this one has been responsible for no little confusion in regard to the mat- ter of assignment in the law of Contract. Our courts, under the pres- sure of a well filled docket, are prone to seize upon a broad generali- zation of this kind without examining its true meaning or defining its proper limitations. It is high time for us to do away with such archaic conceptions and to recognize what the modem business man assumes, viz: that contract rights may be as freely transferred as any other species of property. -
Indemnity: "Pass-Through" Provisions
Indemnity: "Pass-Through" Provisions January 2005 by: James Donohue, Esq. and Edward M. Koch, Esq. Overlooking the subtle nuances of indemnity provisions in a proposed contract is a common—and often costly—mistake. Parties eager to win a bid often look past contract language which can require them to pay not only for their own mistakes, but for those of another party, too. (For more background on indemnity, see, “Who Pays For Your Mistakes”, Executive Newsletter, Fall 2004, located in the Publications Section of www.whiteandwilliams.com). For matters being decided under Pennsylvania law, a recent Supreme Court decision illuminates a previously dim region of the indemnity landscape. In Bernotas v. Super Fresh Food Markets, Inc., the Court substantially abrogates the use of so-called “pass-through,” “conduit,” or “flow-through” indemnification provisions that are common in construction subcontracts. Under the Supreme Court’s decision, “passthrough” indemnification provisions will only be valid if the indemnification obligation is stated in clear and unequivocal terms. Form book or cut-and-paste boilerplate won’t do. INDEMNIFICATION, GENERALLY Indemnification refers to one party’s obligation to pay for the liability of another for certain specified events. The source of this obligation can be either through the common law or, as addressed by the Supreme Court in Bernotas, through contract. Historically, Pennsylvania courts have closely scrutinized contractual indemnification provisions. For example, one could seek indemnity from another for one’s own negligence, but general indemnity language was insufficient to affect this end. Instead, a clear and unequivocal statement of indemnification for one’s own negligence had to be clearly spelled-out in the contract provision in order for it to be effective under Pennsylvania law. -
What Is Invitation to Treat?
Cyber Law: © Dr. Qais Faryadi (F.S.T) www.dr-qais.com WHAT IS INVITATION TO TREAT? Invitation to treat or simply speaking information to bargain means a person inviting others to make an offer in order to create a binding contract. An example of invitation to treat is found in window shop displays and product advertisement. Invitation to treat comes from the Latin phrase invitatio ad offerendum and it means inviting an offer. In another words it is a special expression showing a person’s willingness to negotiate. When a shopkeeper makes an invitation to treat may not accept any offer on his goods as soon as it is accepted by the person who makes an offer. There is a difference between an offer and invitation to treat. When A accepts an offer from B a contract is complete. When B accepts an advertisement in a shop window, he is actually making an offer. It is up to the advertiser to accept or to reject the offer. The issue of invitation to treat was discussed in the case of Fisher v Bell 1 by the English Court of Appeal: “It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.” As such when a person displays a good on his shop or advertises something in his shop window merely bargaining an offer on it. -
Exclusion Clauses and the UCTA
Issue 217 - July 2018 Dispatch highlights some of the most important legal developments during the last month, relating to the building, engineering and energy sectors. Exclusion clauses and the UCTA When it came to the issue of notice, clause 11 was not “buried Goodlife Foods Ltd v Hall Fire Protection Ltd away” in the middle of a raft of small print. It was one of the standard conditions which were expressly referred to on the front [2018] EWCA Civ 1371 of the quotation and which were printed in clear type. Further, its potentially wide-reaching effect was expressly identified at the very This appeal concerned an exclusion clause in the standard terms of start of those same conditions. Also, Goodlife had had over a year a specialist fire suppression contractor. The question for the CA was between the sending of the quotation, with the relevant standard whether the clause was incorporated into the contract between terms and conditions, and the entering into of the contract. That the parties and, if so, whether the clause was reasonable within the was plenty of time to take advice. meaning of the Unfair Contract Terms Act 1977 (“UCTA”). The case followed a fire at factory premises in Warrington. Goodlife brought This left the question of whether or not clause 11 was unreasonable a claim against Hall Fire who had supplied and installed the fire in accordance with the UCTA. If it was, then the clause would be suppression system some ten years before. The claim for breach ineffective. Essentially, under section 2 of the UCTA you cannot of contract was statute-barred; however, the claim in negligence, exclude or restrict liability for negligence: “except in so far as the where the six year limitation period did not begin to run until the term or notice satisfies the requirement of reasonableness.