There’s a distinction between a breach of contract and a material breach of contract. Depending on the legal situation, the distinction is quite significant. For example, if a party first materially breaches the contract, the party may not be able to sue subsequently to enforce the contract. The reasoning is that if they don’t follow…
Legal Articles
Outbound and Inbound Forum Selection Clauses
A forum selection clause is where a contract picks the place where any disputes must be litigated. There are outbound and inbound clauses. An outbound clause provide for venue in a different state. An inbound clause provides for venue within Missouri, usually in a particular county. Missouri law favors forum selection clauses and presumes them…
Contracts, Agreements to Agree
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;…
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…
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…
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,…
Necessary Parties in Multi-Party Contract Claims
It is usually required that one join all “necessary parties” to a lawsuit. “A necessary [party] is one who is so vitally interested in the subject matter of controversy that a valid judgment cannot be effectively rendered without the party’s presence.” Jones v. Jones, 285 S.W.3d 356, 360 (Mo. Ct. App. 2009). In a breach…
Contractual Ratification and Agency
“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…
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…