Breach of contract requires: (1) existence and terms of a contract, (2) plaintiff fully performed under the contract, (3) breach by defendant, and (4) damages. Keveney v. Missouri Military Academy, 304 S.W.3d 98, 104 (Mo. 2010). To prove the existence and terms of a contract, there must be: (1) competency of the parties to contract;…
Legal Articles
Economic Loss Doctrine
Contract claims and tort claims are generally separate theories of recovery. Indeed, “the mere failure to perform a contract cannot serve as the basis of tortliability.” State ex rel. William Ranni Assoc., Inc. v. Hartenbach, 742 S.W.2d 134, 140 (Mo.1987). In a similar vein, or stated differently, the economic loss doctrine prohibits a plaintiff from…
Contract: Time for Performance
Written contracts often include precise language covering when certain acts must be done. For example, contracts often include provisions as to when payment should be made and when parties are obligated to perform their contractual duties. What happens when a contract is silent on timing? When a contract does not specify a time for performance,…
Adhesion Contracts, Unconscionability, Reasonable Expectations
Missouri law does not honor unenforceable contracts of adhesion. An adhesion contract is essentially a take it or leave it proposition. One party accepts the contractual terms of the other party. It is “a form of contract created and imposed by a stronger party on a weaker one.” Swain v. Auto Servs., Inc., 128 S.W.3d…
Specific Performance, Land, Costs
Specific performance is a contract remedy. It is when one party breaches a contract and the plaintiff asks the court to order the breaching party to perform its contractual obligation, rather than awarding money damages. Courts have discretion when it comes to awarding specific performance. Smith v. Najafi, 584 S.W.3d 389, 394 (Mo. Ct. App….
Illusory Promise, Breach of Contract
Contracts must be mutual to be enforceable. “Mutual” means there must be mutuality of obligation. Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429, 443 (Mo. Ct. App. 2010). Contracts that give one party a right to cancel can be considered illusory. An “illusory promise” does not create a contract. It is neither enforceable, nor operative…
General Partnerships, Death & Dissolution
General, common law partnerships are not as prevalent as corporations, limited liability companies, limited liability partnerships, or other statutory entities registered with the Missouri Secretary of State. A partnership may arise legally, however, if parties are not careful. Co-ownership and sharing of profits between one or more persons, without anything more formal (written or otherwise),…
Alter Ego Theories; Piercing the Corporate Veil
Corporations and limited liability companies are oft-utilized because they generally insulate the owners of the business from business liabilities. A “corporation is regarded as a wholly and separate legal entity, distinct from the members who compose it.” Blanks v. Fluor Corp., 450 S.W.3d 308, 375 (Mo. Ct. App. 2014). An exception to this rule is…
Objective Theory of Contract Acceptance
In any breach of contract dispute or litigation, it’s essential to first establish that the underlying agreement is a legally enforceable contract. In other words, whether there was a “meeting of the minds” between the contracting parties is essential. Particularly in the absence of a signed writing, this is not a straightforward inquiry. In Missouri,…
Limited Liability Company Derivative Actions
Derivative lawsuits generally refer to claims made relating to the mismanagement of a corporation or limited liability company. It is brought by a shareholder, as the corporation’s representative. Nickell v. Shanahan, 439 S.W.3d 223, 227 (Mo. 2014). The shareholder is only a nominal plaintiff, and the corporation or limited liability company is the real party…