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Arbitration Waivers

Aribtration clauses are becoming increasingly common as a way to more expeditiously resolve disputes that can arise between parties to a contract. With an arbitration, a neutral, third-party arbitrator decides the case, as opposed to a judge or a jury. Many disputes can arise with respect to the enforceability of an arbitration provision (e.g., unconscionability, […]

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Third-Party Beneficiary Contracts

While it may seem counter-intuitive and illogical, it is possible for a third-party to a contract (i.e., a non-signer) to sue one of the parties to the contract for breach of contract. A third party beneficiary to a contract is one who is not privy to a contract or its consideration but who may still […]

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Lost Profits, Income, Consequential Damages

Lost profits, income or revenue often form a major component of a plaintiff’s damages in business disputes, contract disputes and employment disputes. Loss of profits generally means the amount of money a plaintiff would have realized but for the Defendant’s conduct. Meridian Enters. Corp. v. KCBS, Inc., 910 S.W.2d 329, 331 (Mo. Ct. App. 1995). For […]

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Contract Termination, First Material Breach of Contract

Contracts sometimes include provisions allowing one party to terminate a contract if the other party is not living up to its end of the bargain. The termination provision usually allows the party to cancel without further liability if certain circumstances exist (e.g., the goods/services being provided do not meet certain standards or are otherwise insufficient). […]

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Contract Forum Selection Clauses

A forum selection clause in a contract refers to language which requires that when there is a dispute or litigation relating to the contract that it be resolved or litigated in a certain state, county or other “forum.” These clauses are not always upheld by the Courts. Furthermore, there is sometimes uncertainty that arises when there […]

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Promissory Estoppel versus Breach of Contract Claims

Promissory estoppel and breach of contract are generally inconsistent remedies. Promissory estoppel requires that there must have been (1) a promise, (2) on which the party seeking to recover relied to his or her detriment, (3) in a way the person making the promise expected or should have expected, and (4) the reliance resulted in […]

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Attorney Lien Enforcement

Attorneys are not immune from having a client that fails to pay a bill. In Missouri, an attorney must either typically file an independent suit for breach of contract, suit on account, unjust enrichment etc. to recover any unpaid legal services or file a motion to enforce an attorney lien. The latter is much more […]

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Liquidated Contract Damages, Reasonable Forecast of Damages

In breach of contract litigation, it is the responsibility of the party complaining of the breach to prove all of the damages/harm incurred which form the basis for the monetary request. Certain contracts include liquidated damages provisions. These types of provisions set forth the amount of damages in the event of a breach.  Not all […]

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Contract Under Duress

In breach of contract litigation, many defenses are often lodged by a defendant to attack the validity of the contract or excuse his/her non-performance under the contract. Common defenses in contract litigation include accord and satisfaction, that there is a contractual ambituity, that the other party committed a first material breach, misrepresentation/fraudulent inducement, unconscionability and […]

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“Prevailing Party” in Contractual Attorney Fee Dispute

Parties to a lawsuit are usually responsible for their attorney fees, whether they win or lose. The only thing that changes this in Missouri is if there is a statute or contract which provides that a certain party receives his/her/its attorney fees. Link v. Kroenke, 909 S.W.2d 740, 747 (Mo. Ct. App. 1995). With respect to […]

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