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Monthly Archives: October 2012

Risk of Loss in Real Estate Transactons

What happens if a manufacturer purchases scrap metal from a vendor and while the metal is being transmitted it is destroyed in an accident? Who is responsible for the goods sold? Similarly, what happens if you enter into a real estate contract and before the closing takes place the home is destroyed/damaged? Is the buyer […]

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Duty to Read and Disclose in Contracts

With contracts, under traditional common law (i.e., case precedent), in the absence of fraud, one who signs a written agreement is bound by its terms regardless of whether he/she read and understood it. Accordingly, people are bound by their contracts even if they choose not to read them. If not reading a contract was a […]

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Warrant Requirements: Specificity & Particularity

The Missouri and U.S. Constitutions require that a search warrant be reasonably particular as to the location of the place to be searched and a description of the items to be searched. Article I, Section 15 of the Missouri Constitution, for instance, provides — That the people shall be secure in their persons, papers, homes […]

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Corporate Shareholder Derivative Claims

Management of a corporation’s operations is vested in a board of directors. The board of directors, in turn, owe the corporation’s shareholders a fiduciary duty of loyalty, due diligence, and care. What happens if the board of directors violates this fiduciary duty? Given that management of the corporation is vested in the board of directors, […]

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Real Estate Ejectment, Disputes

Real estate disputes come in different forms: breach of contract claims arising out of real estate sales (both commercial and sale), ownership disputes, deed problems, adverse possession, private/public nuisance, etc. One of the more fundamental disputes that can arise is when another person takes possession of even a small parcel of real property you own. […]

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Contracts: Anticipatory Repudiation, Nonperformance

Can there be a breach of contract before the actual time for performance? The answer is yes — and the answer is an anticipatory repudiation. In order to constitute a repudiation,  a party’s language must be sufficiently positive to be reasonably interpreted to mean that the party will not or cannot perform. Language that under […]

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Real Estate Brokers, Transactions, Fiduciary/Legal Responsibilities

Real estate brokers are similar to attorneys to the extent that they are governed by public licensing regulations and fairly strict oversight. In the case of a seller’s agent, a principal-agent relationship is implied by traditional contract and agency law. Both a broker and a selling agent, in working on behalf of the seller, owe […]

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Contracts: Adhesion & Unconscionability

Not all contracts involve extensive negotiation between all parties and a deal being hammered out in detail and reduced to writing. Most contracts, instead, occur when one person adheres to the terms and conditions of an offer. For example, when I go and purchase a TV at a local store for the list price, I’m […]

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Constitutional Issues Present in Marriage — Same-Sex Marriage

The Supreme Court recently began its 2012-2013 term. One of the most hotly anticipated issues which may be brought before the Court is the constitutionality of same-sex marriage. Two of the most common legal arguments in support of  same-sex marriage is that prohibiting it violates the equal protection clause and the due process clause. Both […]

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Partnership Agreements, Disputes

Partnership agreements are essential in any type of business form in Missouri: limited liability companies (LLC), professional corporations (PC), limited liability partnerships (LLP), and even general partnerships. More than anything else, they should be put in place to ensure that operation of the business is in line with how the business owners want the business […]

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