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
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…
Real Estate Option Contracts, First Right of Refusal
In certain circumstances, particularly in transactions involving real estate developers, a contracting party will attempt to create an option contract over a parcel of land. To be enforceable and valid, an option requires the same types of things a typical contract requires. “An option consists of a continuing and irrevocable offer which the optionor cannot…
Personal Guaranty, Separate Consideration
A personal guaranty is a type of document in which a guarantor agrees to become secondarily liable for the obligation of a principal debtor if the principal debtor does not perform its obligations. Jamieson-Chippewa Inv. Co., Inc. v. McClintock, 996 S.W.2d 84, 87 (Mo. Ct. App. 1999). The liability of a guarantor is strictly construed…
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…
Bona Fide Purchasers, Ownership-Title Disputes
Property ownership disputes can be complex, particularly in the context of real estate. It is not uncommon for there to be an improper or defective conveyance of real estate that goes unnoticed, and then there are several subsequent transfers of the same property between different people. For this reason, it is important to record all…
Requests to Enforce/Compel Settlement
Most lawsuits are resolved without a trial. Cases usually either settle or result in a judgment/dismissal before a contested trial. With cases that result in a settlement, there are often communications between attorneys leading up to the execution of a more formal settlement agreement. There are instances in which an agreement is reached and then one…
Failure of Consideration vs. Lack of Consideration: Promissory Notes, Contracts
Promissory notes and contracts are similar in how they are interpreted and how they are to be enforced in court. To prevail on a claim for breach of a promissory note, a plaintiff needs to show (1) that there is a valid promissory note signed by the maker of the note, (2) that there is…