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Monthly Archives: December 2012

Personal Guaranty: General & Special, Breach, Interpretation

A guaranty — a species of contract — is a collateral agreement for another’s undertaking and is an independent contract that imposes responsibilities different from those imposed in the agreement to which it is collateral. Specifically, a guaranty is a contract where a guarantor becomes secondarily liable for the obligation of a debtor in the event the […]

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Joint Business Ventures/Enterprises

A joint venture is a partnership of one or more sole proprietors, partnerships, corporations, or limited liability companies formed  for the purpose engaging in a specific type of business. The most obvious advantage with a joint venture agreement is that a new business entity does not necessarily have to be created to effectuate the joint […]

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Health Insurance Termination During Divorce, Legal Separation

The standard for divorce in Missouri is if there is no reasonable likelihood that the marriage of the parties can be preserved, and, as a result, it is irretrievably broken. The standard for legal separation, on the other hand, is that the marriage of the parties is not irretrievably broken and that therefore there remains […]

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Escheat: When Property/Estate without Heirs goes to the State

What happens when someone passes away and there is nobody alive who can legally inherit? Does the property just sit without an owner for eternity? Does it go to auction? Under traditional Common Law, the property escheats — that is, it reverts to ownership by the State/Government. This principle is codified in Missouri in statutory Chapter […]

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Circumstantial Negligence: Res Ipsa Loquitur

A plaintiff/claimant has the burden of proof in a case. In other words, it is their responsibility to show the existence of facts which demonstrate they should recover in their case. In a negligence action, therefore, the plaintiff/claimant must prove that there was a certain (1) standard of care which was (2) breached and which […]

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Illinois’ Conceal & Carry Law: Moore, et al. v. Madigan, et al.

The 7th Circuit Court of Appeals in Illinois (a Court immediately below the U.S. Supreme Court) recently struck down Illinois’ ban on carrying a concealed weapon. Specifically, the relevant statute forbid — with exceptions mainly for police officers, security personnel, and members of target shooting clubs — the carrying of a gun that is ready […]

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When are communications protected by the Attorney-Client Privilege?

The attorney-client privilege attaches when there are (1) communications between (2) attorney and client related to (3) legal counsel. When communications are subject to the attorney-client privilege, then neither the attorney nor the client may be compelled to testify as to the substance of the communication. Do note that the client is the “holder” of […]

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Federal Jurisdiction: When cases go to Federal Court

The vast majority of litigation which occurs in the U.S. occurs in State courts. The reason for this is that while State courts have inherent authority to hear  all disputes, federal jurisdiction is limited. Just as the federal congress’ powers are few and defined (in theory), the federal judiciary’s jurisdiction is specifically enumerated. Although there […]

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Contract Novation: Replacing Parties & Obligations

A contract novation is a substitution of a new contract, obligation, or party for an old contract, obligation, or party. It is, therefore, a type of contract amendment between parties. In litigation, a novation is often used as an affirmative defense to defend a breach of contract claim. The complaining party will allege breach, but […]

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