“Agency” generally refers to one person, an agent, acting on behalf of another, a principal. Ratification is when one approves a contract or transaction after the fact, even though it may have been void or voidable at the time it was originally contemplated or executed. Ratification in the context of agency is the express/implied adoption…
Legal Articles
Reasonable Reliance: Fraud and Intentional Misrepresentation
Fraud has nine (9) elements. A plaintiff’s failure to establish any of these elements is fatal to the claim. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. 1988). Reliance is one of the nine elements of fraud, and thus a plaintiff cannot prevail on a fraud claim unless he or she proves that…
Corporate Liability, Personal Liability on Personal Guaranty Agreements
Many times a lender or creditor will enter into a contract with a corporation or business entity and request that the signer or owner of the business personally guaranty all amounts due. There is a very specific legal way this should be done for the guaranty to be enforceable. When weighing whether a signatory intended…
Specific Performance, Certain Terms
Specific performance is an order and/or judgment from the Court compelling a party to a contract to perform his, her or its contractual duty(ies). It is typically ordered in lieu of damages for breach of contract. An order in specific performance, however, presumes that there is an underlying contract and that there are certain agreed-upon…
Improper Admission/Exclusion of Evidence
In trials in Missouri, the Court has “considerable discretion” in the admission or exclusion of evidence, and, absent clear abuse of discretion, its actions will not be grounds for reversal. Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. 2015). An abuse of discretion occurs if the decision is “clearly against…
Contract Damages, Appeal
An appellate court in Missouri will only reverse a judgment that awards breach of contract damages if there are no facts in that present a “rational basis for a rational estimate of damages.” Gilham v. LaRue Constr., 136 S.W.3d 852, 856 (Mo. Ct. App. 2004). Typically, the objective in awarding contract damages is to put…
Consideration, Contractual Illegality
A valid contract requires consideration. Consideration “may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, loss of responsibility given, suffered or undertaken by the other.” Charles F. Curry and Company v. Hedrick, 378 S.W.2d 522, 522 (Mo. 1964). Any contract premised upon a violation of law or illegality…
Witness Competence/Capacity to Testify
Though not as common as a case challenging someone’s capacity (e.g., guardianship, capacity to sign a will/trust/contract), pretty much any type of case in litigation can involve a question over the capacity of a witness to testify in court under oath. Missouri presumes that a witness may competently testify, except a number of statutory exceptions…
Fraud Exceptions to Bankruptcy Discharge
In a Chapter 7 Bankruptcy, not all debts are subject to discharge. By way of example, debts or liabilities pertaining to a debtor’s fraud is not subject to discharge. 15 USC Sections 523(a)(2)(A) and 15 USC 523(a)(2)(B) are the two most commonly invoked sections by a plaintiff/creditor when trying to prove a fraud exception in…
Federal Unfair Competition Claim
Though “unfair competition” is typically a state law claim, there is a federal cause of action for unfair competition. 15 U.S.C. § 1125 protects against “false designation of origin,” which is commonly referred to as a federal cause of action for unfair competition. Cae, Inc. v. Clean Air Engineering, Inc., 267 F.3d 660, 672-73 (7th…