Drafting Contracts to Avoid (if you can) and Embrace (if you must) Litigation. Amanda M. Quayle
|
|
- Alvin Percival Matthews
- 5 years ago
- Views:
Transcription
1 Drafting Contracts to Avoid (if you can) and Embrace (if you must) Litigation Amanda M. Quayle I. Overview This paper is intended as a general primer for legal practitioners involved in contract negotiating and drafting. It is written from the point of view of a commercial litigator attempting to identify the general principles that a court or arbitrator will apply where there is a dispute about the meaning of a contact, as well as litigation issues arising from the most common procedural and substantive provisions bargained for in contracts. Finally, suggestions are provided for preventing contractual disputes caused by poor drafting. II. Canons of Construction General Principles of Contract Interpretation General principles have been developed by the courts to assist an interpreter of a contract. 1 Generally, the intention of the parties to the contract should be objectively ascertained from the words of the contract itself. Prior negotiations, subjective intentions, and/or subsequent conduct are not relevant or admissible considerations. 2 However, exceptions to this general principle have been developed by the courts to recognize commercial realities and to promote and ensure commercially reasonable results in resolving contractual disputes. The following general principles are relied on by decision makers in considering and resolving contractual disputes: (a) The departure point for contract interpretation is the well-established proposition that a contract should be interpreted in its grammatical and ordinary sense, except to the extent that some modification is necessary in order to avoid absurdity, inconsistency or repugnancy. 3 Words of ordinary use must also be construed in their ordinary sense taking into consideration the circumstances that obtained at the time of contract formation. The meaning of the words should not be determined without regard for their 1 G.H.L. Friedman, The Law of Contract in Canada, 4 th ed. (Scarborough: Carswell, 1999) at G. McMeel, Prior Negotiations and Subsequent Conduct The Next Step Forward for Contractual Interpretation? (2003) 119 L.Q.R. 272 at K. Lewison, The Interpretation of Contracts, 2 nd ed. (London: Sweet & Maxwell, 1997) at 85.
2 2 context or factual matrix. 4 parties, to be gathered from the words they have used. 5 In other words, effect must be given to the intention of the (b) Where a particular clause is being scrutinized, it should not be examined in isolation. Rather, it should be considered within the context of the entire contract, unless the result would result in an inconsistency. 6 (c) In the case of a standard form contract, greater weight will be given to provisions that have been specifically or intentionally added, and where there is a conflict between the standard additional condition, the latter will prevail. 7 (d) Where there are two plausible interpretations of a contract, the one that gives effect to all parts of the contract will be preferred and, where possible, no part of the contract should be treated as inoperative or surplus. 8 (e) Where one party primarily drafted the contract or a particular provision of the contract, the doctrine of contra proferentem requires that if there is an ambiguity, the contract will be interpreted against the party that inserted the clause and is now attempting to rely on it. 9 (f) The courts have identified ambiguity as a term that is reasonably susceptible of more than one meaning. 10 And for a contract to be ambiguous, it must be an ambiguity that exists in the language as it stands, not one that is itself created by the evidence that is 4 Prenn v. Simmonds, [1971] 3 All. E.R. 237 at (H.L.) and SaskPower International Inc. v. UMA/B&V Ltd SKCA 40, 293 Sask. R. 66 (C.A.) [SaskPower]. 5 Consolidated Bathurst, [1980] 1 S.C.R SaskPower at par Supra note 3 at Supra note 3 at Supra note 5 and Saskatchewan Government Insurance v. Patricia Hotel (1973) Ltd SKCA 70, 375 Sask. R. 50 (C.A.) at para Hi-Tech Group Inc. v. Sears Canada Inc. (2001), 52 O.R. (3d) 97 (C.A.) at para. 18 [Hi-Tech].
3 3 sought to be adduced. 11 Where there is no ambiguity, no extrinsic parol evidence may be admitted to alter, vary, or interpret in any way the words used in the writing. 12 (g) Exceptions to the parol evidence rule in order to avoid injustice are (i) to explain incomplete documents; (ii) to prove that a condition precedent has not been fulfilled; and (iii) to assist in ascertaining the intentions of the parties. 13 (h) Where a contract is ambiguous, an interpreter can consider prior conduct of the parties and/or negotiations subsequent to the formation of the contract in order to ascertain the meaning and legal effect of the contract. 14 (i) Where ambiguity exists and there are two possible interpretations, the more reasonable one which produces a fair result, or the commercially reasonable result, is to be assumed to be intended by the parties. 15 (j) Although looking beyond the contract is generally impermissible, the use of dictionaries and other resource material is acceptable. A decision maker may also consider the commercial purpose of the contract, and in considering that purpose may rely upon its own experience of contracts of a similar character to that under examination. Accordingly, even where there is no ambiguity on the face of the contract, a decision maker may still consider what is commercially reasonable to determine the objective intentions of the parties. 16 III. If It s Broke, Fix It Rectification Another exception to the general principle that the subjective intentions of parties to a contract and extrinsic evidence to the written words of the contract are inadmissible where there is no 11 Supra note 1 at 483, referring to Alampi v. Swartz, [1964] 1 O.R. 488 (C.A.). 12 Supra note 1 at 480 and Eli Lilly & Co. v. Apotex Inc., [1998] 2 S.C.R. 129 [Eli Lilly]. 13 Ibid. 14 Manitoba Development Corporation v. Columbia Forest Products Ltd. and GNC Industries Limited, [1974] 2 W.W.R. 237 (Man C.A.) and Moose Jaw (City) v. British American Oil Co., [ W.W.R. 35 (K.B.). 15 Supra note Supra note 3 at 13, Eli Lilly, and Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423.
4 4 ambiguity in the written contract is the remedy of rectification. The remedy is used by decision makers where an oral agreement that was reduced to writing does not accurately represent the original intentions of the parties. Rectification is premised on the existence of a prior oral written contract whose terms are definite and ascertainable. The plaintiff must establish that the terms agreed to orally were not written down properly. 17 In order to obtain the rectification remedy, the party seeking it must establish three prerequisites: 1. The existence and nature of a common intention by the parties prior to the making of the written document or instrument that contains the error or deficiency. In other words, the existence and content of an inconsistent prior oral agreement; 2. That the common intention remained unchanged as at the date the document or the instrument was made; and 3. That the written document or instrument does not conform to the parties prior common intention and that permitting one party to take advantage of the mistake in the written contract would result in fraud or the equivalent to fraud. 18 The standard of proof for the rectification remedy is higher than the normal civil standard of a balance of probabilities. Court have consistently used the phrase convincing proof in discussing the calibre of the evidence that will be necessary to satisfy the burden of proof that the parties actual agreement is something other than that which the writing reflects. The prerequisites for rectification have been interpreted to be high hurdles that must be overcome to ensure that the remedy does not become an escape route for contracting parties seeking to get out of improvident bargains Sylvan Lake Golf and Tennis Club Ltd. v. Performance Industries Ltd., [2003] 1 S.C.R. 678 and Saskatoon Credit Union Ltd. v. U.F.C.W., Local SKCA 87, 331 Sask. R. 230 (C.A.). 18 Ibid and Wasauksing First Nation v. Wasausink Lands Inc., [2004] O.J. No. 810 (C.A.) at para Public Service Alliance of Canada v. NAV Canada (2002), 59 O.R. (3d) 284 at para. 45.
5 5 IV. Some General Considerations Respecting Oft-Used Procedural and Substantive Contract Clauses Parties engaged in contact negotiation are often focused on ensuring that the terms and conditions most favourable to them in the execution of the contract are bargained for. However, equally important are the rights and responsibilities of the parties in the event of a breach. Certain, often boilerplate, clauses contained in many contracts have a significant impact on the manner in which an action can be litigated if a dispute arises. These types of clauses should be considered in light of the specific circumstances and ultimate objectives of the parties to the contract at the time of contract formation to ensure the manner in which a potential dispute is resolved in a manner that is anticipated by and acceptable to your client. Some examples of boilerplate clauses that can have a significant impact on litigation in the event of a breach of the contractual relationship include the following. 1. Forum, Jurisdiction and Choice of Law If a dispute on a contract arises, the first issue to be determined is what is the appropriate forum? Does the contract contain an arbitration agreement which requires the dispute to be arbitrated, or litigated in a certain jurisdiction regardless of where the substance of the dispute actually arose? What law applies to the dispute? In some cases, the forum, jurisdiction and law to be applied to the dispute may act as a practical bar to an action, for instance, where the dispute is to be arbitrated in another country where the lack of proximity and the resultant cost of the dispute resolution mechanism makes pursuing a dispute impracticable. In addition, alternate dispute resolution provisions or procedural rules of another jurisdiction can have a significant impact on the procedural rights of parties to a dispute including in relation to timelines, discovery and rights of appeal. Finally, where a contract imports the law of a different jurisdiction, understanding the impact of that law on your client s understanding of the bargain is necessary in the course of negotiating the contract, including the retainer of an expert in that jurisdiction to provide advice in that regard.
6 6 2. Injunctive Relief Often contracts contain a clause that in the event of a breach by one party to the contract, such breach will be considered to cause the non-breaching party irreparable harm and entitle that party to injunctive relief to prevent a continuing breach, including without the posting or filing of any bond or other security. Such clauses are not determinative of the issue and clients should understand that despite the inclusion of such a clause, obtaining injunctive relief will depend on the ability to satisfy the Court or arbitrator that the tripartite common law test for injunctive relief has been met, including the general prerequisite for the provision of an Undertaking as to Damages by the party seeking the injunctive relief. 3. Representations and Warranties The Reps and Warranties section of the contract is frequently one of the most important sections when a dispute arises. A representation is a statement of fact as of a moment in time intended to induce reliance. The truthfulness of the representation is determined by going back in time to when the representation was made and comparing it to the facts at that time. If the representation was untrue at the time made, and the other party relied on the representation, that party can sue for misrepresentation. A warranty, by contrast, does not require reliance. A warranty is a promise that a particular statement is true. For instance, one of the contracting parties may represent that it is not subject to any conflicting obligation or any disability that will or might prevent it from performing its obligations under the agreement. If the warranty turns out not to be true, the party who so warranted will be obligated to pay damages to the recipient of the warranty is any damages were suffered as a result of the breach of warranty. Careful consideration and crafting of both representations and warranties are a critical part of communicating the parties understanding of their agreement and should be included in the written contract in order to ensure that they can be relied on in the event of a breach.
7 7 4. Exclusion Clauses Central to common law contracts is the notion that where a party agrees to a contractual obligation, that party is responsible for damages when the obligation is not met. The presumption is that parties intend to be bound by their intention. Consistent with that notion, courts will strictly and narrowly construe exculpatory clauses, such as exclusion clauses, restrictive convenants and limitations contained in contracts and the doctrine of contra proferentem will apply. Accordingly, a party seeking to exclude or restrict his liability must do so in clear and unequivocal terms Term and Termination Not all contracts contain a term. Some are implicit in the agreement, for instance a contract governing the one-time supply and purchase of goods. But whether there will be an ongoing relationship between the parties, a well-drafted contract should provide for the term of the agreement, as well as any right to renew the agreement for another term. The absence of a provision setting the term or ambiguity in the drafting of the clause often leads to litigation. Included in considering the term of the contract is a consideration of whether the contract should include an Act of God or force majeure clause that will discharge a contracting party from its contractual obligations where a supervening, sometimes supernatural, event, beyond the control of either party, makes performance impossible. 21 Like other exclusion clauses that attempt to remove or limit liability for non-performance, force majeure provisions will be strictly and narrowly construed. 22 In the result, careful and explicit drafting of force majeure clauses, if relevant, in contract formation is critical in order for a party to find safe harbour in such a clause. Another source of contract disputes that lead to litigation is the failure to provide for circumstances under which contracts can be terminated. What can your client do when 20 Chitty on Contracts, 30 th ed. (London: Thomson Reuters, 2008) at and Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp and Paper Company Limited, [1976] 1 S.C.R. 580 at Lowell A. Westersund, Force Majeure Clauses in Construction Contracts (Calgary: Fraser Milner Casgrain LLP, 2008) at 13.
8 8 confronted with a bad deal or a bad relationship? One answer is to continue to operate under the contract until its term expires. However a default or termination clause can provide for a list of circumstances under which a contract may be terminated by one or both of the parties. Bargaining for and including such circumstances in contracts provides for the orderly windingup of a contractual relationship. Failing to provide for such circumstances can result in breach and litigation. Drafting termination provisions is often not challenging. The difficult part is trying to foresee all the potential grounds for termination at the drafting stage and, obtaining the other party s agreement to a termination provision during the negotiations. V. Conclusion Through the use of the remedy of rectification, the Courts have widened the risk for contracting parties who, absent ambiguity in the terms of their written contracts, could rely on their relationship being governed by the four corners of the written contract. Precision and clarity remain the Holy Grail of contract drafting. These characteristics avoid ambiguity and opening the door to the exceptions to the general principle that the contract is what the contract says. Slavishly following a precedent is as dangerous as it is safe. Setting out the basis for and the terms of the deal in plain language, anticipating both the uneventful execution and unanticipated breach of the agreement is, at all times, the objective. Contract drafting is intended to provide the parties with certainty about their rights and obligations and to allocate risk. In almost all instances, the first time a litigator is consulted about the contract is after the fact, rather than addressing potential issues before the event. Litigators do not get many opportunities to share contract-drafting tips that could help our clients avoid having to see us. Litigators jokingly refer to refer to the transaction work as pre-litigation work. There is value in consulting with a litigator in the drafting of the contract in the initial instance. A litigator s perspective adds value by filling in substantive and procedural information for things like indemnification, choice of law, venue, jurisdiction, etc. which are essentially the areas
9 9 of law in which they have expertise. It gives the contract drafter the benefit of a second set of eyes - eyes belonging to someone in the trenches litigating inartfully drafted contract provisions.
INTERPRETATION OF CONTRACTS
INTERPRETATION OF CONTRACTS ISBN 978-98-3519-11-8 Author: Hamid Ibrahim Binding: Softcover/Extent: 532 pp Publication Price: MYR 210.00 The law is stated as of February 1, 2008 PRINCIPLES & CANONS OF CONSTRUCTION
More informationContracts Professor Keith A. Rowley William S. Boyd School of Law University of Nevada Las Vegas Spring Contract Terms
Contracts Professor Keith A. Rowley William S. Boyd School of Law University of Nevada Las Vegas Contract Terms I. Construing and Interpreting Contracts A. Purpose: A court s primary concern is to ascertain
More informationRecent Developments in the Canadian Law of Contract
Honest Performance and Absolutely Everything Else By Ryan P. Krushelnitzky and Sandra L. Corbett QC Recent Developments in the Canadian Law of Contract Bhasin and Sattva represent important changes and
More informationContracts Professor Keith A. Rowley William S. Boyd School of Law University of Nevada Las Vegas Spring Contract Terms (Expanded)
Contracts Professor Keith A. Rowley William S. Boyd School of Law University of Nevada Las Vegas Contract Terms (Expanded) I. Construing and Interpreting Contracts A. Purpose: A court s primary concern
More informationANNUAL REVIEW OF CIVIL LITIGATION
ANNUAL REVIEW OF CIVIL LITIGATION 2017 THE HONOURABLE MR. JUSTICE TODD L. ARCHIBALD SUPERIOR COURT OF JUSTICE (ONTARIO) # 2017 Thomson Reuters Canada NOTICE AND DISCLAIMER: All rights reserved. No part
More informationBUSINESS LAW GUIDEBOOK
BUSINESS LAW GUIDEBOOK SECOND EDITION CHARLES YC CHEW CHAPTER 4: CONTRACT: TERMS AND REMEDIES FOR BREACH TEST YOUR KNOWLEDGE 1. The terms of a contract may be either express or implied. Explain what is
More informationSpring 2018 Business Law Fundamentals O'Hara 2018 D
Page 1 of 7 as your signature PRINT your name EXAM #2 Business Law Fundamentals LAWS 3930 sections -001, -002-003 Chapters 1-4, 24, 6, 7, 9-19 INSTRUCTIONS: 1. Affix your printed name as your signature
More informationCONTRACT DISPUTES: WINNING FROM THE BEGINNING
Friday, January 27 th, 2017 CONTRACT DISPUTES: WINNING FROM THE BEGINNING Presented By Kimberly Gosling and Christian Andreu-von Euw Senior Associates, Morrison & Foerster, LLP ACC 14th ANNUAL GC ROUNDTABLE
More informationTHE LAW RELATING TO GUARANTEES
THE LAW RELATING TO GUARANTEES ISBN 978-983-3519-16-3 Author: Nasser Hamid Binding: Softcover / 938 pages Publication Price: MYR 290.00 The law is stated as of March 31, 2009 CONTENTS CHAPTER ONE GUARANTEES
More informationProfessionally drafted STANDARD TERMS OF BUSINESS. by legal counsel (Andrew Noble FRICS, FCIArb, Barrister at law)
Professionally drafted STANDARD TERMS OF BUSINESS by legal counsel (Andrew Noble FRICS, FCIArb, Barrister at law) Introduction 1. This service has been set up to assist UK businesses to develop and to
More informationIntroduction to Contract Law: Part II
Introduction to Contract Law: Part II Tuesday 9 May 2017: Module 4 Andrew Charlton Charles Stotler Matthew Feargrieve Richard Gimblett 8-13 May 2017 OVERVIEW I. The Contents of a Contract II. Terminating
More informationARCHITECTS REGISTRATION COUNCIL SEMINARS
ARCHITECTS REGISTRATION COUNCIL SEMINARS CONTRACT FORMATION FRED PHIRI ARCH.Bw May 27, 2017 1 Contents Legal Systems Legal Systems Examples Legal System Applications Civil Law Relationships Law of Obligations
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS TAURUS MOLD, INC, a Michigan Corporation, Plaintiff-Appellant, UNPUBLISHED January 13, 2009 v No. 282269 Macomb Circuit Court TRW AUTOMOTIVE US, LLC, a Foreign LC No.
More informationOVERVIEW OF CONTRACT LAW
OVERVIEW OF CONTRACT LAW Liability is generally the key issue in regards to contractual disputes. Purpose of K law is to provide the rules which determine when one party is liable to another under or in
More informationCONTRACTS AND SALES QUESTION 1
CONTRACTS AND SALES QUESTION Peter responded to an advertisement placed by Della, a dentist, seeking a dental hygienist. After an interview, Della offered Peter the job and said she would either: () pay
More informationAugust 30, A. Introduction
August 30, 2013 The New Jersey Supreme Court Limits The Use Of Equitable Estoppel As A Basis To Compel Arbitration Of Claims Against A Person That Is Not A Signatory To An Arbitration Agreement A. Introduction
More informationOntario Court Declines to Impose a Duty on a Bank to Protect Third-Party Victims of a Fraud based on Constructive Knowledge
Ontario Court Declines to Impose a Duty on a Bank to Protect Third-Party Victims of a Fraud based on Constructive Knowledge I. Overview Mark Evans and Ara Basmadjian Dentons Canada LLP In 1169822 Ontario
More informationAMERICAN ARBITRATION ASSOCIATION OPINION OF ARBITRATOR. In the instant cause, the Grievants have alleged that the Employer failed to properly
Cook #1 AMERICAN ARBITRATION ASSOCIATION IN THE MATTER OF THE ARBITRATION BETWEEN UNION -and- EMPLOYER OPINION OF ARBITRATOR By: JULIAN ABELE COOK, JR. Arbitrator In the instant cause, the Grievants have
More informationConsultant Allies Terms and Conditions
This Consultant Allies Member Agreement (this Agreement ) constitutes a binding legal contract between you, the Member ( Member or You ), and Consultant Allies, LLC, ( Consultant Allies ), which owns and
More informationCreative and Legal Communities
AIPLA Mergers & Acquisition Committee Year in a Deal Lecture Series Beyond the Four Corners: A Discussion of the Impact of the Choice of New York, Delaware, Texas, and California Law in Contracts Carey
More informationThe clause (ACAS Form COT-3) provided:
THE CONSTRUCTION OF COMPROMISE AGREEMENTS The leading case is Bank of Credit and Commerce International SAI v Ali [2001] UKHL 8; [2002] 1 AC 251. It was also an extreme case where the majority of the House
More informationIndex. References are to sections.
Index References are to sections. A Abandonment Anticipatory breach or repudiation, ground for, 12.35 Damages, 12.35, 14.3 Distinguished from rescission, 14.3 Material breach, ground for, 12.37 Mutual,
More informationCase 1:07-cv PLF Document 212 Filed 03/31/17 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Case 1:07-cv-01144-PLF Document 212 Filed 03/31/17 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA, ex rel., AARON J. WESTRICK, Ph.D., Civil Action No. 04-0280
More informationGEORGE MASON AMERICAN INN OF COURT A LITIGATOR S PERPSECTIVE ON CONTRACTS
GEORGE MASON AMERICAN INN OF COURT A LITIGATOR S PERPSECTIVE ON CONTRACTS September 26, 2017 Pupilage Team Members: Randall K. Miller, Esq. Nicholas M. DePalma, Esq. Michelle Owen West (Student Member)
More informationMBE WORKSHOP: CONTRACTS PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW
MBE WORKSHOP: CONTRACTS PROFESSOR LISA MCELROY DREXEL UNIVERSITY SCHOOL OF LAW CHAPTER 1: CONTRACTS Editor's Note 1: The below outline is taken from the National Conference of Bar Examiners' website. NOTE:
More informationFinanciers' Certifier Direct Deed
RFP Version Stage One - East West Link [ ] State [ ] Financiers' Certifier Contents 1. Defined terms & interpretation... 1 1.1 Project Agreement definitions... 1 1.2 Defined terms... 1 1.3 Interpretation...
More informationCANONS REDUX Bruce M. Kramer
EIGHTH ENERGY LAW SYMPOSIUM: THE FUTURE OF ENERGY CANONS REDUX Bruce M. Kramer Of Counsel March 23-24, 2017 SELF-PROMOTION Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and Leases:
More informationRecent Case: Sales - Limitation of Remedies - Failure of Essential Purpose [Adams v. J.I. Case Co., 125 Ill. App. 2d 368, 261 N.E.
Case Western Reserve Law Review Volume 22 Issue 2 1971 Recent Case: Sales - Limitation of Remedies - Failure of Essential Purpose [Adams v. J.I. Case Co., 125 Ill. App. 2d 368, 261 N.E.2d 1 (1970)] Case
More informationQuestion If CapCo files a lawsuit against the Bears seeking damages for breach of contract, who is likely to prevail? Discuss.
Question 2 CapCo sells baseball caps to youth leagues and recently approached two new teams, the Bears and the Lions. Uncertain how many caps the team would require, the Bears team manager signed a written
More informationCalifornia Bar Examination
California Bar Examination Essay Question: Contracts And Selected Answers The Orahte Group is NOT affiliated with The State Bar of California PRACTICE PACKET p.1 Question Berelli Co., the largest single
More informationReality of Consent. Reality of Consent. Reality of Consent. Chapter 13
Reality of Consent Chapter 13 Reality of Consent It is crucial to the economy and commerce that the law be counted on to enforce contracts. However, in some cases there are compelling reasons to permit
More informationOPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. October 31, FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John C. Morrison, Jr.
Present: All the Justices JAMES KLAIBER v. Record No. 022852 FREEMASON ASSOCIATES, INC., ET AL. RICHARD SIENICKI OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. October 31, 2003 v. Record No. 022853 FREEMASON
More informationChinese Contract Law: A Brief Introduction. ZHANG Xuezhong. Assistant Professor of Law.
Chinese Contract Law: A Brief Introduction ZHANG Xuezhong Assistant Professor of Law zhangxuezhong@ecupl.edu.cn East China University of Politics and Law Overview 1. In General 2. Principles of Chinese
More informationArticle 6. Binding force of contract A contract validly entered into is binding upon the parties.
Principles of Latin American Contract Law Chapter 1. Preamble Section 1. General provisions Article 1. Scope of Application (1) These principles set forth general rules applicable to domestic and international
More informationWalking Gracefully through the Minefield. Contract Clauses and Practical Tips to Help Avoid Litigation
Walking Gracefully through the Minefield Contract Clauses and Practical Tips to Help Avoid Litigation Eric Fishman Partner Pillsbury Winthrop Shaw Pittman LLP Jennifer K. Mailander Associate General Counsel
More informationOBJECTIVISM VERSUS SUBJECTIVISM IN THE PROCESS OF THE INTERPRETATION OF THE CONTRACT
Humanities and Social Sciences Review, CD-ROM. ISSN: 2165-6258 :: 04(02):221 226 (2015) OBJECTIVISM VERSUS SUBJECTIVISM IN THE PROCESS OF THE INTERPRETATION OF THE CONTRACT Pavlína Jane ková Masaryk University,
More informationDRAFTING AND ANALYZING CONTRACTS
0001 VERSACOMP (4.2 ) COMPOSE2 (4.43) NEW LAW SCH. Front Matter SAMPLE for PERFECTBOUND Pubs J:\VRS\DAT\03037\FM.GML --- r3037_fm.sty --- POST DRAFTING AND ANALYZING CONTRACTS A Guide to the Practical
More informationUnfair Terms in Computer Contracts
Page 1 of 8 20th BILETA Conference: Over-Commoditised; Over-Centralised; Over- Observed: the New Digital Legal World? April, 2005, Queen's University of Belfast Unfair Terms in Computer Contracts Ruth
More informationContract Interpretation
Contract Interpretation Eric E. Johnson ericejohnson.com Konomark Most rights sharable 1 Basic Procedure for the Court Contract interpretation is a question of law. The interpretation of an unambiguous
More informationCERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 12/12/07 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE AMANDA MITRI et al., Plaintiffs and Respondents, v. ARNEL MANAGEMENT
More informationIN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO. Plaintiff-Appellant, : CASE NO. CA : O P I N I O N - vs - 1/12/2009 :
[Cite as Air-Ride, Inc. v. DHL Express (USA), Inc., 2009-Ohio-99.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY AIR-RIDE, INC., : Plaintiff-Appellant, : CASE NO. CA2008-04-012
More informationTHE USE OF EXTRINSIC EVIDENCE AND THE ANTI-INFLATION ACT REFERENCE
THE USE OF EXTRINSIC EVIDENCE AND THE ANTI-INFLATION ACT REFERENCE R. B. Buglass* One of the more novel aspects of the Anti-Inflation Act Rejerence' relates to the discussion of the use of extrinsic evidence.
More informationAbsolute And Unconditional Guarantees Under New York Law
Absolute And Unconditional Guarantees Under New York Law By Steven P. Caley and Philip D. Robben * This article is republished with permission from the July 2003 edition of The Metropolitan Corporate Counsel.
More information1. What are the current challenges to enforcement of multi-tiered dispute resolution clauses?
England Simon Hart RPC London Simon.Hart@rpc.co.uk Law firm bio 1. What are the current challenges to enforcement of multi-tiered dispute resolution clauses? There are two key challenges a party may face
More informationContents. Table of Statutes. Table of Secondary Legislation. Table of Cases. The Agreement to Contract
Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: The Agreement to Contract 1.1 Introduction 1.2 Elements required for a valid simple contract 1.3 The phenomenon of agreement
More informationLAWS 1072: CONTRACTS
LAWS1072- CONTRACTS 2- EXAM NOTES: LAWS 1072: CONTRACTS 2 Semester 2 2010 1 LAWS1072- CONTRACTS 2- EXAM NOTES: 2 LAWS1072- CONTRACTS 2- EXAM NOTES: CONSTRUCTION: 1. Express terms: a. Statements made during
More informationSUPERIOR COURT OF JUSTICE DIVISIONAL COURT. SWINTON, THORBURN, and COPELAND JJ. ) ) ) ) ) ) ) ) ) ) ) ) ) )
CITATION: Movati Athletic (Group Inc. v. Bergeron, 2018 ONSC 7258 DIVISIONAL COURT FILE NO.: DC-18-2411 DATE: 20181206 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, THORBURN, and COPELAND
More informationContents. Table of Statutes. Table of Secondary Legislation. Table of Cases. The Agreement to Contract
Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: The Agreement to Contract 1.1 Introduction 1.2 Elements required for a valid simple contract 1.3 The phenomenon of agreement
More informationCOURT OF APPEAL FOR BRITISH COLUMBIA
COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Between: And Larc Developments Ltd. v. Levelton Engineering Ltd., 2010 BCCA 18 Commonwealth Insurance Company Larc Developments Ltd. and Rita A. Carle Date:
More informationSOUTHERN GLAZER S WINE AND SPIRITS, LLC. EMPLOYMENT ARBITRATION POLICY
SOUTHERN GLAZER S WINE AND SPIRITS, LLC. EMPLOYMENT ARBITRATION POLICY Southern Glazer s Arbitration Policy July - 2016 SOUTHERN GLAZER S WINE AND SPIRITS, LLC. EMPLOYMENT ARBITRATION POLICY A. STATEMENT
More informationRectification Wills and Trusts
Rectification Wills and Trusts Amanda Hardy QC Tax Chambers 15 Old Square Lincoln s Inn Recent cases: Rectification of a will Marley v Rawlings and another [2014] UKSC A husband and wife each executed
More informationCORPORATE LITIGATION: THE EFFECTIVENESS OF NON-RELIANCE PROVISIONS. Underlying Principles
CORPORATE LITIGATION: THE EFFECTIVENESS OF NON-RELIANCE PROVISIONS JOSEPH M. MCLAUGHLIN AND YAFIT COHN * SIMPSON THACHER & BARTLETT LLP April 15, 2016 This month we continue our discussion of contractual
More informationa) You must present acceptable photo identification for admission to the test center.
COMPUTER-BASED TESTING CANDIDATE EXAMINATION AGREEMENT READ THIS EXAMINATION AGREEMENT ( AGREEMENT ) BEFORE PROCEEDING WITH THE (ISC) 2 EXAM AND CERTIFICATION PROCESS. BY TAKING THE EXAMINATION, I AM AGREEING
More informationBuying or Selling a Business
TAB 2 Buying or Selling a Business Restrictive Covenants in Commercial and Employment Contexts: Key Cases and Considerations Adrian Ishak, Rubin Thomlinson LLP Parisa Nikfarjam, Rubin Thomlinson LLP March
More informationPractical Pointers to CYA When Drafting Business Contracts - 3/26/15
Practical Pointers to CYA When Drafting Business Contracts - 3/26/15 Robert Rosenthal, Esq. and Robert Hernquist, Esq. 3800 Howard Hughes Parkway, Ste. 1000 Las Vegas, NV 89169 (702) 257-1483 rrosenthal@howardandhoward.com
More informationFILED: NEW YORK COUNTY CLERK 10/28/ :04 PM INDEX NO /2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/28/2016
FILED: NEW YORK COUNTY CLERK 10/28/2016 05:04 PM INDEX NO. 190293/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X VINCENT ASCIONE, v. ALCOA,
More informationMLL111- Exam Notes Contract Law (All Topics + Cases)
1 MLL111- Exam Notes Contract Law (All Topics + Cases) 2 Contents Page Page 8: Formation of Contracts Offer and Acceptance Page 9: Acceptance Communication of Acceptance: Waiver Silence Page 10: Acceptance
More informationOn December 14, 2011, the B.C. Court of Appeal released its judgment
LIMITATION PERIODS ON DEMAND PROMISSORY NOTES: THE SIGNIFICANCE OF MAKING THE NOTE PAYABLE A FIXED PERIOD AFTER DEMAND By Georges Sourisseau and Russell Robertson On December 14, 2011, the B.C. Court of
More informationWhere Should I File My Lawsuit in California? bc-llp.com 1
WHERE SHOULD I FILE MY LAWSUIT IN CALIFORNIA? If you are filing a lawsuit against someone for a breach of contract, an injury, or any other type of wrong that you have suffered, it is important that you
More informationSUPREME COURT OF THE UNITED STATES
Cite as: 532 U. S. (2001) 1 NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of
More information6 Binding The Federal Government
6 Binding The Federal Government PART A: UNAUTHORIZED REPRESENTATIONS BY GOVERNMENT EMPLOYEES EQUITABLE ESTOPPEL 6.01 INTRODUCTION TO THE QUESTION OF EQUITABLE ESTOPPEL AGAINST THE FEDERAL GOVERNMENT Justice
More informationBAREXAMDOCTOR.COM UNLIMITED ESSAYS AND PTS ONLINE! ESSAY APPROACH. Bar Exam Doctor. CONTRACTS ESSAY
ESSAY APPROACH www.barexamdoctor.com CONTRACTS ESSAY I. DOES THE UCC APPLY? a. The UCC governs all Ks for the sale of goods b. The UCC also has special rule governing transactions between merchants c.
More informationProfessional Services Agreement Renewable Energy Consulting
Saugus Contract # 16-17-359 Professional Services Agreement Renewable Energy Consulting ( Effective Date ) This Professional Services Agreement (the Agreement ) is entered between the parties identified
More informationFundamental Principles in Interpretation of Contract
Fundamental Principles in Interpretation of Contract Ir. Harrison Cheung Barrister-at-law, Arbitrator, Adjudicator & Mediator Dispute Resolution Advisor FICArb, MHKIE, RPE harrisoncheung.counsel@gmail.com
More informationSTATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT STERNE, AGEE & LEACH, INC., ET AL. **********
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 04-218 NORMAN E. WELCH, JR. VERSUS STERNE, AGEE & LEACH, INC., ET AL. ********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 213,215
More informationUNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA. Before the Court is Twin City Fire Insurance Company s ( Twin City ) Motion for
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BRADEN PARTNERS, LP, et al., v. Plaintiffs, TWIN CITY FIRE INSURANCE COMPANY, Defendant. Case No. -cv-0-jst ORDER GRANTING MOTION FOR JUDGMENT
More informationONTARIO SUPERIOR COURT OF JUSTICE. ) ) ) Defendant ) ) ) ) HEARD: September 24, Proceeding under the Class Proceedings Act, 1992
COURT FILE NO.: 07-CV-333934CP DATE: 20091016 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: 405341 ONTARIO LIMITED Plaintiff - and - MIDAS CANADA INC. Defendant Allan Dick, David Sterns and Sam Hall
More informationSUPREME COURT OF NOVA SCOTIA Citation: O Regan Properties Limited v. Business Development Bank of Canada, 2018 NSSC 193. O Regan Properties Limited
SUPREME COURT OF NOVA SCOTIA Citation: O Regan Properties Limited v. Business Development Bank of Canada, 2018 NSSC 193 Between: O Regan Properties Limited Date: 2018 08 21 Docket: Hfx No. 463257 Registry:
More informationDesign and Construct Contract - Standard User Funding Agreement
QCA Draft 8 September 2014 Aurizon Network Pty Ltd [insert Trustee] Design and Construct Contract - Standard User Funding Agreement (amended form of AS 4902-2000) Ref: QRPA15047 9101397 11391098/5 L\313599357.2
More informationContractual Interpretation In Singapore: Compatibility With The Evidence Act?
Contractual Interpretation In Singapore: Compatibility With The Evidence Act? Asst Professor Goh Yihan, Faculty of Law, National University of Singapore Three Distinct but Relevant Questions Before examining
More informationContract and Tort Law for Engineers
Contract and Tort Law for Engineers Christian S. Tacit Tel: 613-599-5345 Email: ctacit@tacitlaw.com Canadian Systems of Law There are two systems of law that operate in Canada Common Law and Civil Law
More informationSINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC)
GUIDE TO INTERNATIONAL ARBITRATION IN SINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC) Written By S. Ravi Shankar Advocate on Record - Supreme Court of India National President of Arbitration Bar of India
More informationIN THE COURT OF APPEALS OF THE STATE OF OREGON
No. 153 April 16, 2014 273 IN THE COURT OF APPEALS OF THE STATE OF OREGON ADAIR HOMES, INC., an Oregon corporation, Plaintiff-Appellant, v. DUNN CARNEY ALLEN HIGGINS & TONGUE, LLP, an Oregon limited liability
More informationCONTRACT LAW RUSSIA 22 MAY 2015 KEY AMENDMENTS TO RUSSIAN CONTRACT LAW
client alert CONTRACT LAW RUSSIA 22 MAY 2015 KEY AMENDMENTS TO RUSSIAN CONTRACT LAW A major reform of Russian contract law will come into effect on 1 June 2015 (the "Reform"). The Reform, which results
More informationDRAFT as of 31 October 2016 Updates to ICDR Supplementary Procedures
Updated Supplementary Procedures for Internet Corporation for Assigned Names and Numbers (ICANN) Independent Review Process 1 Revised as of [Day, Month], 2016 Table of Contents 1. Definitions... 2 2. Scope...
More informationAffidavits in Support of Motions
Affidavits in Support of Motions To be advised and verily believe or not to be advised and verily believe: That is the question Presented by: Robert Zochodne November 20, 2010 30 th Civil Litigation Updated
More informationNEGATIVE TEN COURSE POINTS
Page 1 of 9 as your signature PRINT your name comprehensive EXAM #3 Business Law Fundamentals LAWS 3930 sections -001, -002-003 Chapters 1-4, 24, 6, 7, 9, 10 through 23, 43, 44, 46, 50, & 51 INSTRUCTIONS:
More informationSTATE OF MICHIGAN COURT OF APPEALS
STATE OF MICHIGAN COURT OF APPEALS JEFFREY EHLERT and LEANNE EHLERT, Plaintiffs-Appellees, UNPUBLISHED December 11, 2003 v No. 239777 Montcalm Circuit Court EARL WISER and ROBERTA L WISER, LC No. 00-000463-CK
More informationClass Action Exposure Post-Concepcion
Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 customerservice@law360.com Class Action Exposure Post-Concepcion Law360, New
More informationLeoppky v. Meston, 2008 ABQB 45
Two cases concerning the Statute of Frauds (1677, U.K.) by Jonnette Watson Hamilton Leoppky v. Meston, 2008 ABQB 45 http://www.albertacourts.ab.ca/jdb/2003-/qb/family/2008/2008abqb0045.ed1.pdf Wasylyshyn
More informationThe Boiling Point Drafting and Defending Boilerplate Contract Provisions-PART II
The Boiling Point Drafting and Defending Boilerplate Contract Provisions-PART II Gregory M. Bergman & Robert D. Bergman 10880 Wilshire Blvd., Suite 900 ""Los Angeles, CA 90024 "(310) 470-6110 17762 Cowan,
More informationThe Labour Relations Board Saskatchewan. MARVIN TAYLOR, Applicant and REGINA POLICE ASSOCIATION, INC., Respondent
The Labour Relations Board Saskatchewan MARVIN TAYLOR, Applicant and REGINA POLICE ASSOCIATION, INC., Respondent LRB File No. 016-03; June 25, 2003 Chairperson, Gwen Gray, Q.C.; Members: Gloria Cymbalisty
More informationCarriage of Goods Act 1979
Reprint as at 17 June 2014 Carriage of Goods Act 1979 Public Act 1979 No 43 Date of assent 14 November 1979 Commencement see section 1(2) Contents Page Title 2 1 Short Title and commencement 2 2 Interpretation
More informationA breach of contract occurs where a party does not comply with one or more of the terms of contract, express or implied.
CITY UNIVERSITY OF HONG KONG Breach and Remedy Refer to Richards, P. Law of Contract Chapters 16-18 Uff, J. Construction Law 9 th Edition Chapter 9 BREACH OF CONTRACT A breach of contract occurs where
More informationMastering Civil Procedure Checklist
Mastering Civil Procedure Checklist For cases originally filed in federal court, is there an anchor claim, over which the court has personal jurisdiction, venue, and subject matter jurisdiction? If not,
More informationThe Real Estate Finance Opinion Report of 2012
The Real Estate Finance Opinion Report of 2012 History and Summary By Edward J. Levin Edward J. Levin is a partner in the Baltimore, Maryland, office of Gordon Feinblatt LLC and the chair of the Real Property
More informationNOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
More informationPART 2 FORMATION, TERMS, AND READJUSTMENT OF CONTRACT. (a) A contract or modification thereof is enforceable,
1 PART 2 FORMATION, TERMS, AND READJUSTMENT OF CONTRACT SECTION 2-201. NO FORMAL REQUIREMENTS. (a) A contract or modification thereof is enforceable, whether or not there is a record signed by a party
More informationCONTRACT LAW. Elements of a Contract
CONTRACT LAW Contracts: Types and Sources in Australia CONTRACT: An agreement concerning promises made between two or more parties with the intention of creating certain legal rights and obligations upon
More informationSupreme Court of Ohio Clerk of Court - Filed May 15, Case No IN THE SUPREME COURT OF OHIO * * * * * * * * * *
Supreme Court of Ohio Clerk of Court - Filed May 15, 2015 - Case No. 2015-0615 IN THE SUPREME COURT OF OHIO DELLA WALL, Plaintiff-Appellant, vs. THE KROGER CO., Defendant-Appellee. Appeal No. 15-0615 Appeal
More informationCONSTITUTION. 1. The name of the Society is B.C. INVESTMENT AGRICULTURE FOUNDATION.
CONSTITUTION 1. The name of the Society is B.C. INVESTMENT AGRICULTURE FOUNDATION. 2. The purposes of the Society are: (e) (f) To foster increased long-term growth, competitiveness of, and employment in,
More informationPart 36, Construction and the Doctrine of Mistake. Andrew Hogan
Part 36, Construction and the Doctrine of Mistake Andrew Hogan For many reasons, the tool of choice to use for the compromise of disputes, either litigated or at the pre-litigation stage, is the part 36
More informationINTERPRETATION IN INTERNATIONAL LAW
INTERPRETATION IN INTERNATIONAL LAW Interpretation in international law? Are there any principles concerning the interpretation of international law? What is the legal character of these principles? Do
More informationThe Benefits and Pitfalls of Mandatory Mediation Provisions in Commercial Contracts
The Benefits and Pitfalls of Mandatory Mediation Provisions in Commercial Contracts Presented by: David Tupper, Melanie Gaston and Chris Petrucci Blake, Cassels & Graydon LLP February 25, 2015 - Calgary
More informationNo. 44,188-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * * * * * * * * * * * *
Judgment rendered April 8, 2009. Application for rehearing may be filed within the delay allowed by Art. 2166, LSA-CCP. No. 44,188-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * CARTER
More informationMARK SCHEME for the May/June 2012 question paper for the guidance of teachers 9084 LAW. 9084/31 Paper 3, maximum raw mark 75
UNIVERSITY OF CAMBRIDGE INTERNATIONAL EXAMINATIONS GCE Advanced Level www.xtremepapers.com MARK SCHEME for the May/June 2012 question paper for the guidance of teachers 9084 LAW 9084/31 Paper 3, maximum
More informationConsolidated text PROJET DE LOI ENTITLED. The Arbitration (Guernsey) Law, 2016 * [CONSOLIDATED TEXT] NOTE
PROJET DE LOI ENTITLED The Arbitration (Guernsey) Law, 2016 * [CONSOLIDATED TEXT] NOTE This consolidated version of the enactment incorporates all amendments listed in the footnote below. It has been prepared
More informationIndexed as: Corniola v. Zurich Insurance Co. Between: Giuseppina Corniola, applicant, and Zurich Insurance Company, insurer
Page 1 Indexed as: Corniola v. Zurich Insurance Co. Between: Giuseppina Corniola, applicant, and Zurich Insurance Company, insurer [1999] O.F.S.C.I.D. No. 237 File No. FSCO A99-000022 Ontario Financial
More informationKnowles v. Anchorage Holdings Co. Ltd. (1964), 46 W.W.R. 173, 43 D.L.R. (2d) 300
Osgoode Hall Law Journal Volume 3, Number 2 (April 1965) Article 55 Knowles v. Anchorage Holdings Co. Ltd. (1964), 46 W.W.R. 173, 43 D.L.R. (2d) 300 Irvin H. Sherman Follow this and additional works at:
More informationArbitration Act of United Kingdom United Kingdom of Great Britain and Northern Ireland
Arbitration Act of United Kingdom United Kingdom of Great Britain and Northern Ireland (Royaume-Uni - Royaume-Uni de Grande-Bretagne et d'irlande du Nord) ARBITRATION ACT 1996 1996 CHAPTER 23 An Act to
More information