Consequential Damages and Exclusion Clauses
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
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. -
Landlord Duty to Mitigate
Minimizing Harm or Maximizing Profi t A Search for Harmony in Texas Between a Landlords’s Duty to Mitigate and Right to Maximize Profi t By Eric J. Fuchs* I. INTRODUCTION Assume Abe abandons his two-bedroom apartment, breaching his lease. Th e landlord currently has 3 vacant two-bedroom apartments available – two on the fi rst fl oor and one on the second fl oor – in addition to Abe’s second-fl oor abandoned unit. All the two-bedroom apartments are similar in layout, square footage, and amenities. Th e only diff erences between the apartments are their location within the complex and location on the fi rst or second fl oor. In essence, the units are non-unique cookie-cutter apartments1 designed for simple and quick construction. Th e next day, Betty, a potential tenant, comes to the apartment complex looking for a two-bedroom apartment. Th e landlord shows her the “model unit” for their two-bedroom layout.2 Betty, impressed with the unit, decides to lease. Th e landlord then shows a diagram of the complex to Betty and highlights the four available units, including the abandoned unit, from which Betty can pick which unit and location she prefers. Betty selects the abandoned unit. Are Betty’s payments now used to mitigate the damages resulting from Abe’s breach? Is the result diff erent if Betty selects one of the units other than the unit Abe abandoned? In 1997 the Texas Supreme Court recognized the common law duty to mitigate damages.3 Th e Texas Legislature quickly followed suit, codifying the duty to mitigate. -
Is Revision Due for Article 2
Volume 31 Issue 2 Article 1 1986 Is Revision Due for Article 2 Fairfax Leary Jr. David Frisch Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Commercial Law Commons, and the Contracts Commons Recommended Citation Fairfax Leary Jr. & David Frisch, Is Revision Due for Article 2, 31 Vill. L. Rev. 399 (1986). Available at: https://digitalcommons.law.villanova.edu/vlr/vol31/iss2/1 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Leary and Frisch: Is Revision Due for Article 2 VILLANOVA LAW REVIEW VOLUME 31 APRIL 1986 NUMBER 2 IS REVISION DUE FOR ARTICLE 2? FAIRFAX LEARY, JR.t DAVID FRISCHi TABLE OF CONTENTS I. INTRODUCTION ....................................... 400 II. SOURCES FOR DISCOVERING A NEED FOR REVISION ..... 404 III. SOME EXAMPLES ...................................... 405 A. Warranty Law .................................... 405 1. Negating Implied Warranties: Blood Transfusions and Livestock .................................. 406 2. Auction Sales .................................. 408 3. Warranties and the Magnuson-Moss Act .......... 410 a. Duration of Implied Warranties ........... 411 b. Consumer Protections .................... 413 c. Disclaimer of Implied Warranties ......... 414 4. Third Party Beneficiaries of a Seller's Warranties ... 416 5. N otice to Sellers ................................ 419 B. The Battle of the Forms ............................ 422 C . R em edies ......................................... 436 1. Reclamation ................................... 436 2. Automotive Lemons ............................. 442 3. The "Lost Volume" Seller and Other Remedial Issues ......................................... 443 4. Four-Tier Damages Classification ................. 447 D. Inflation and Foreign Money Problems .............. -
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. -
Paying for What You Get—Restitution Recovery for Breach of Contract
Pace Law Review Volume 38 Issue 2 Spring 2018 Article 7 April 2018 Paying for What You Get—Restitution Recovery for Breach of Contract Jean Fleming Powers South Texas College of Law Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Contracts Commons Recommended Citation Jean Fleming Powers, Paying for What You Get—Restitution Recovery for Breach of Contract, 38 Pace L. Rev. 501 (2018) Available at: https://digitalcommons.pace.edu/plr/vol38/iss2/7 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. POWERS.DOCX (DO NOT DELETE) 5/8/18 10:33 PM Paying for What You Get—Restitution Recovery for Breach of Contract By Jean Fleming Powers* I. INTRODUCTION Many contracts casebooks, in dealing with contract remedies, include the case Sullivan v. O’Connor,1 a case dealing with an unsuccessful nose job.2 While a case about the results of surgery at first blush seems more fitting for a torts book, Sullivan, like its iconic counterpart Hawkins v. McGee3 uses a vivid fact pattern in an atypical contracts case4 to illustrate important points about contract remedies.5 Sullivan has the added benefit of providing a launching point for a discussion of the three contracts measures of recovery: expectation, reliance, and restitution.6 If the approach of the Restatement (Third) of Restitution and Unjust Enrichment7 [hereinafter referred to as “the Restatement of Restitution,” or just “the Restatement”] * Professor of Law, South Texas College of Law Houston; J.D., University of Houston Law Center, 1978; B.A. -
The Troubles with Law and Economics
Hofstra Law Review Volume 20 | Issue 4 Article 2 1992 The rT oubles with Law and Economics Leonard R. Jaffee Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Jaffee, Leonard R. (1992) "The rT oubles with Law and Economics," Hofstra Law Review: Vol. 20: Iss. 4, Article 2. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol20/iss4/2 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Jaffee: The Troubles with Law and Economics THE TROUBLES WITH LAW AND ECONOMICS Leonard 1? Jaffee* In this Article's first Part, the author sets Law and Economics' own devices against its fundamental proposition: In free contractual pursuit of personal wealth, we find the best means of serving nearly all of our legitimate interpersonaland social interests. Using the classic "efficient breach" case as paradigm, Profes- sor Jaffee argues that all contracts cases defy judgment of whether agreement or breach is efficient-that every such case is intractably ambiguous and threatens inefficient or vagrant costs, profits, or demoralization. He offers instead specific performance as the pre- ferred remedy for breach of contract. He argues that neither ex ante nor ex post contractual adjustments-whether toward an agreed remedy like liquidated damages or modification of obliga- tion-sufficiently resolve such cases or stay their threats, since we cannot ever know what is needed to compensate properly. -
The Eleventh Circuit Reaffirms Validity of Waiver of Consequential Damages Provisions in Contracts
The Eleventh Circuit Reaffirms Validity of Waiver of Consequential Damages Provisions in Contracts By E. Tyron Brown Hawkins Parnell Thackston & Young LLP Atlanta, Georgia 30308 [email protected] The Eleventh Circuit Court of Appeals, in Silverpop Systems, Inc. v. Leading Market Technologies, Inc., 2016 U.S. App. LEXIS 196 (11th Cir. January 5, 2016) enforced a contractual waiver of consequential damages provision, thereby reaffirming the validity of such provisions in Georgia. In that case, the Plaintiff Silverpop Systems, Inc. (“Silverpop”) provided digital marketing services to businesses such as the Defendant Leading Market Technologies, Inc. (“LMT”). The parties entered into a service agreement whereby LMT was authorized to access Silverpop’s web-based e-mail marketing program and upload digital advertising content and recipient e-mail addresses. The advertising content was then sent to the e-mail addresses. The list of e-mail addresses from LMT was stored on Silverpop’s marketing program. Silverpop’s program eventually had a list of nearly 1/2 million email addresses from LMT. Then, a data breach occurred to Silverpop’s program and the hackers gained access to the information stored on the program by 110 of Silverpop’s customers -- including LMT. Silverpop said it could not confirm that the hackers exported the data files out of the system. Subsequently, Silverpop filed a declaratory judgment action against LMT seeking a judgment declaring, inter alia, that LMT was not damaged by the data breach or that LMT incurred only consequential damages which were barred by a waiver of consequential damages provision in the contract. LMT counterclaimed against Silverpop asserting several claims. -
The Efficacy of the Negative Injunction in Breach of Entertainment Contracts, 46 J
UIC Law Review Volume 46 Issue 2 Article 1 2013 The Efficacy of the Negative Injunction in Breach of Entertainment Contracts, 46 J. Marshall L. Rev. 409 (2013) Eliot Axelrod Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Contracts Commons, Courts Commons, Entertainment, Arts, and Sports Law Commons, and the Legal Remedies Commons Recommended Citation Eliot Axelrod, The Efficacy of the Negative Injunction in Breach of Entertainment Contracts, 46 J. Marshall L. Rev. 409 (2013) https://repository.law.uic.edu/lawreview/vol46/iss2/1 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. Do Not Delete 3/12/2013 5:35 PM THE EFFICACY OF THE NEGATIVE INJUNCTION IN BREACH OF ENTERTAINMENT CONTRACTS ELLIOT AXELROD* I. INTRODUCTION Many aspects of the entertainment business are highly speculative and entertainment firms are known to invest heavily in developing and marketing the various products they create. While revenues from successful entertainment projects can be enormous, these successes are frequently offset by other expensive flops. As performers become more individually successful, they become generally more concerned with maximizing their own personal profits than with helping to subsidize development of entertainment projects to benefit their successors.1 When it comes to remedies for breach of entertainment contracts, it is a constant battle to find a fair balance between the interests of entertainment entities seeking to make a profit—or at a minimum, recoup their investments—and performers seeking artistic autonomy and financial leverage. -
98-720C • PRECISION PINE & TIMBER, INC., V. the UNITED STATES
In the United States Court of Federal Claims No. 98-720 C Filed September 14, 2007 ____________________________________ ) Timber sale contracts, expectancy damages, PRECISION PINE & TIMBER, INC., ) consequential damages, lost volume seller, ) cover damages, “hole in the profit pipeline”, Plaintiff, ) burden of proof, offset, collateral v. ) undertakings; overrun factor; conversion ) factor; product mix; economic THE UNITED STATES, ) impracticability; gross profit; net profit; ) manufacturing overhead; administrative Defendant. ) overhead ____________________________________) Alan I. Saltman, Saltman & Stevens, P.C., Washington, D.C., for plaintiff. Richard W. Goeken and Bryan T. Bunting, Saltman & Stevens, P.C., Washington, D.C., of counsel. David A. Harrington, Trial Attorney, Marla T. Conneely, Trial Attorney, Kathryn A. Bleecker, Assistant Director, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, Peter D. Keisler, Assistant Attorney General, United States Department of Justice, Washington, D.C., for defendant. Lori Polin Jones and Patricia L. Disert, U.S. Department of Agriculture, Washington, D.C., of counsel. OPINION AND ORDER GEORGE W. MILLER, Judge. This matter is before the Court following the Court’s previous Opinion and Order, 72 Fed. Cl. 460 (2006), requiring the parties to submit to the Court supplemental post-trial briefing with respect to plaintiff’s modified lost volume seller theory of damage recovery, and on plaintiff’s motion of October 17, 2006, styled as a “Motion for Relief from Limited Aspects of the Court’s Order and Opinion of September 19” (docket entry 431, Oct. 17, 2006) and treated by the Court as a motion for reconsideration of the September 2006 Opinion pursuant to Rule 59(a)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). -
Reexamining the Expectation and Reliance Interests in Contract Damages Mark Pettit Jr
Hastings Law Journal Volume 38 | Issue 3 Article 2 1-1987 Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages Mark Pettit Jr. Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Mark Pettit Jr., Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages, 38 Hastings L.J. 417 (1987). Available at: https://repository.uchastings.edu/hastings_law_journal/vol38/iss3/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. Article Private Advantage and Public Power: Reexamining the Expectation and Reliance Interests in Contract Damages by MARK PETTIT, JR.* Introduction Fifty years ago Fuller and Perdue asked why it is that in cases of breach of contract courts usually award "expectation" damages rather than "reliance" damages.I The authors defined these damages measures by their purposes.2 The object of the expectation measure "is to put the plaintiff in as good a position as he would have occupied had the defend- ant performed his promise."'3 The object of the reliance measure, on the other hand, is to "undo the harm" caused by reliance on a promise that was later broken, that is, "to put [the plaintif] in as good a position as he was in before the promise was made."'4 Fuller and Perdue concluded * Professor of Law, Boston University. A.B. -
Measuring Sellers' Damages: the Lost-Profits Puzzle
Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1979 Measuring Sellers' Damages: The Lost-Profits Puzzle Charles J. Goetz Robert E. Scott Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Contracts Commons, and the Law and Economics Commons Recommended Citation Charles J. Goetz & Robert E. Scott, Measuring Sellers' Damages: The Lost-Profits Puzzle, 31 STAN. L. REV. 323 (1979). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/690 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Measuring Sellers' Damages: The Lost- Profits Puzzlet Charles J. Goetz* Robert E. Scott** A buyer repudiates a fixed-price contract to purchase goods, and the seller sues for damages. How should a court measure the seller's loss? The answer seems simple: The seller should be awarded dam- ages sufficient to place it in the same economic position it would have enjoyed had the buyer performed the contract.' But the seductive conceptual simplicity of the compensation principle disguises sub- stantial practical problems in measuring seller's damages. Contract law has traditionally minimized measurement difficul- ties by basing damages in most cases on the difference between the contract price and market value of the repudiated goods.' The com- t We would like to thank Albert Clovis, Arthur Leff, Richard Posner, Alan Schwartz, John Weistart, and the participants in the University of Virginia Faculty Workshop for their helpful comments on earlier versions of this article. -
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.