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Contractual Consideration

The three basic components of a contract are offer, acceptance and consideration. When these things exist can change depending on the nature of the parties (e.g., UCC, merchants). While the concepts of offer and acceptance are relatively straightforward to a non-lawyer, consideration is often not. Consideration is either a promise (to do or refrain from […]

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Constructive Fraud, Statute of Frauds

The statute of frauds generally requires that certain types of contracts be in writing. There are, however, certain exceptions to this rule, many of which stem from the aim to prevent further fraud. In other words, the statute of frauds exists so as to prevent certain contracts from being enforced unless they are in writing, […]

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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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Oral Agreements to Modify, Postpone Debt Payments

Often times there are apparent attempts to modify loan agreements (e.g., promissory notes, repayment contracts, purchase agreements, etc.) orally. This is especially true with promissory notes or mortgages when the debtor/paying party requests more time to make payments. In Missouri, however, oral modifications to credit agreements are not valid unless they are in writing. Section […]

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Mental/Testamentary Capacity: Contracts, Wills, Trusts

Mental capacity generally refers to a signatory’s state of mind when he/she signs a document. To be valid, the signatory’s mental capacity must be clear, lucid and free from any undue influence or restraint. It is not uncommon for documents to be challenged for lack of capacity. Depending on the document, the legal standards governing […]

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Equitable Contribution: Promissory Notes, Contracts, Guarantees

Contribution is an equitable remedy that often arises between co-debtors. While contribution may generally applies where one or more individuals shares a common burden, the focus here is on a common between co-debtors/co-guarantors. Missouri District Telegraph Co. v. Southwestern Bell Telephone Co., 93 S.W.2d 19, 23 (Mo. 1935). Contribution is grounded in case precedent. Commercial Union Insurance […]

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Severability Clauses in Contracts

In contractual disputes, particularly breach of contract cases, a common issue that arises is whether the underlying contract is even enforceable. A prudent attorney will determine if there are any substantive or procedural deficiencies which can sink the contract. Just because one specific section of a contract is void or unenforceable, however, does not necessarily […]

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Performance/Acceptance Under Reservation of Rights

The Missouri Uniform Commercial Code (“UCC”) generally applies to contracts or transactions for the sale of goods between merchants. Broadly speaking, it liberalizes many of the rigid common law rules relative to breach of contract actions, contract interpretation and business disputes by seeking to, among other things, “permit the continued expansion of commercial practices.” Section […]

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Credit Agreements/Contracts — Writing Requirement

The Missouri statute of frauds requires that certain contracts be in writing and signed by the party sought to be charged. Specifically, it requires that contracts for, among other things, an interest in real estate be in a signed writing. See 432.010, RSMo. This statute, however, is not the only statute requiring a writing. Sections 432.045 and […]

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