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A Return to the Classic Analysis of Liquidated Damages Clauses

The links below may be accessed by lexis.com subscribers. Non-subscribers may obtain research packages by the day, week, or month at lexisONE The classical view enforces liquidated damages clauses constituting a reasonable estimate of damages in the event of breach. Under the modern view, they are...

Joint Patent Owners, Although Free to Use Patented Technology Without Regard to the Other, May Vary Their Rights by Contract

The interplay between contract and patent law is examined by Timothy Murray, Esq. in the context of Wisconsin Alumni Research Foundation v. Xenon Pharmaceuticals, Inc., 591 F.3d 876 (7th Cir. 2010). NOTE: The links below may be accessed by lexis.com subscribers. Non-subscribers may obtain research...

The Practical Catches Up with the Theoretical: The Current Status of Texas Indemnity Law

Today most Texas practitioners understand the need to expressly set out the types of negligence they wish to receive or give indemnity upon to an indemnitee. They also understand, and most generally comply with the requirement for conspicuousness. However, indemnity clauses continue to be traps for the...

Beware of Losing Benefits of an Indemnity Provision Elsewhere in the Contract

Timothy Murray, partner, Murray, Hogue & Lannis, discusses possible drafting pitfalls in creating complex indemnity provisions in contracts designed to manage costs and risks of loss. The author writes: This is a cautionary tale for attorneys who draft contracts -- a warning to avoid a common...

The U.S. Supreme Court's Decision in Rent-A-Center, West, Inc. v. Jackson, 2010 U.S. LEXIS 4981 (2010)

The U.S. Supreme Court held in Rent-A-Center, West, Inc. v. Jackson, 2010 U.S. LEXIS 4981 (2010) that a challenge to the validity of an arbitration agreement that contains a provision delegating to the arbitrator exclusive authority to resolve threshold issues relating to the validity of the arbitration...

Note to Self

Note to Self: Remember not to unilaterally change the text of contracts that have been signed ( via Adams Drafting ), even if it's only to "fix" them: The dispute over who owns the Dodgers may turn on one word. It is the 12th word of the second paragraph of the first exhibit of an agreement...

Summary Judgment Granted in Breach of Contract Action

A U.S. district judge in Virginia has ruled that a restaurant chain operator is liable for breach of contract and is obligated to pay a franchise consulting company for sales and marketing services that the consultant performed for the chain under the contract between the two companies. Rejecting...

Preventing Omission of Important Terms in Loan Documentation Forms

by Robert S. Fisher Every lawyer worries about omitting a critical provision from a document being drafted or reviewed. The practitioner structuring a loan transaction should be particularly cognizant when making use of a standardized loan document, which may or may not contain all the needed elements...

Do It Yourself Contracts – What’s a Waiver?

We've been talking the past few posts about boilerplate language in contracts . This standardized language that falls towards the end of almost all contract documents might seem to be excessive and pointless, especially when you're trying to do the writing yourself. Don't be so fast...

How to Simplify and Improve Any Contract

by Thomas L. Bowden, Sr. You get an agreement from a new vendor. You start to read it and your eyes glaze over. "In the event that....provided, however,.....including but not limited to...... For the avoidance of doubt.........." And on and on it goes. What gobbledygook. Of course...

Arbitrating Arbitrability

Arbitrability--whether a contract creates a duty for the parties to arbitrate (rather than litigate) a particular grievance--is ordinarily a question of law to be decided by the court. Virginia, however, adheres to a public policy favoring freedom to contract. If two sophisticated businesses reach...

A Seat at the Table – Compliance in the Contract Tender Process

After all the due diligence on the sales agents and representatives has been completed and they are ready to help you land that large international contract, what is the role of compliance? I would argue that compliance has as central a role to play in any international contract tender process as...

How Can My Loan be in Default if I Never Missed a Payment?

Delinquent loans, mostly residential, are constantly in the news, so it is easy to understand why some business owners may lose track of the fact that missed payments are not the only way to get in trouble under commercial loans, or leases or joint venture agreements, for that matter. Contracts...

Virginia Tortious Interference Law More Permissive than Georgia

In Virginia, to state a claim for tortious interference with contractual relationships, a plaintiff generally must allege (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference...

Supreme Court of California Overrules 78-Year-Old Rule, Makes It Easier to Attack the Validity of Contracts with Evidence of Fraudulent Promises

Excerpt: In a decision with important consequences to businesses that enter into contracts with consumers, the Supreme Court of California in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Association , 2013 Cal. LEXIS 253 (2013) [ an enhanced version of this opinion is available...

Primer on Contract Damages and Options for Non-Breaching Party

Henkel Corp. v. Innovative Brands Holdings, LLC , C.A. No. 3663-VCN (Del. Ch. Jan. 31, 2013). Issue Addressed The only issue addressed in this decision on cross-motions for summary judgment was the amount of damages based on a stipulation as to liability for breach. In the course of its analysis...

Are Purchase Orders Enforceable Contracts?

They can be. The Uniform Commercial Code provides that a contract for the sale of goods may be made in any manner sufficient to show agreement, and that "an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship...

Life Cycle Management of Third Parties – Step 4: The Contract

This post continues to outline what I believe are the five steps in the life cycle of third party management. Today I will look at Step 4, the contract. However, before we get to the contracting stage a word about what to do with Steps 1-3. You cannot simply obtain the information detailed in these first...