“As local and national regulations seek to ‘lower the curve’ of infections of the COVID-19 illness, they have forestalled a host of consumer transactions, most notably those regarding travel, hospitality, and community events,” writes Spencer M. Rubin in Bryan Cave Leighton Paisner’s Insights.

“Even if such regulations do not absolutely prohibit the fulfillment of those transactions, companies must confront the fact that consumers will still want to cancel them for the health and safety reasons.  When this happens, companies’ standard cancellation policies or then-effective termination or force majeure clauses in their consumer contracts are likely insufficient to deal with the high consumer demand for contract cancellations.  Therefore, companies should consider being prepared to enact ‘extenuating circumstances’ cancellation policies (‘ECCPs’) to excuse performance under existing consumer contracts.”

Read the five steps for drafting effective ECCPs.

Read the article.

“The coronavirus pandemic has prevented countless people from fulfilling their contracts, from basketball players to babysitters,” writes Andrew Schwartz in The Daily Reporter’s Commentary.

“Could all of these people be sued for breach of contract, or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled or a dorm room leased at a college that is now closed?”

“Wars, floods and other pandemics have undermined innumerable contracts over the years. In response, U.S. courts have established a fairly clear set of legal rules to answer these questions.”

“As a contracts-law professor, I help future lawyers think through how these rules apply in a wide range of situations. Some of these concern what the law says about contracts that are impossible to meet during pandemics.”

Read the article.

“You are asked to prepare a prenuptial agreement between spouses of different nationalities, who have different prior countries of residency, assets in various international locations and future plans to relocate to one or more countries. Where do you start? And how do you protect yourself?” asks Jeremy D. Morley in International Family Law’s blog.

“It is difficult enough preparing a prenuptial agreement for wealthy or potentially wealthy people when you only have to take into account the law of one jurisdiction. It is far harder and riskier when multiple jurisdictions come into play.”

“The following are some basic principles that the author has developed from handling a large variety of international prenuptial agreements over many years.

Read the article.

“Express contracts are easy enough to understand. An express contract is a legally enforceable agreement formed by an exchange of promises, the terms of which are declared, either orally or in writing, at the time the agreement is formed,” writes Lee E. Berlik in Berlik Law’s The Virginia Business Litigation Blog.

“A mutual meeting of the minds is required, and the agreement must be supported by consideration. If I promise to pay you $10 to wash my car, and you accept my offer and proceed to wash my car, we’ve formed a contract and I am legally obligated to fork over that $10. But what if you just decided on your own to wash my car without discussing it with me first? Or maybe I ask you to wash my car and you accept, but we never discuss price? In situations like these, I may still be required to pay you a fair price for the service you provided, even though we never actually formed a contract. The legal concepts involved are known as unjust enrichment and quantum meruit.”

“Let’s review what these related-but-distinct terms mean.”

Read the article.

Charles Sartain, in Gray Reed’s Energy & the Law, continues the discussion “of the Texas Supreme Court’s opinion in Piranha Partners et al. v. Joe B. Neuhoff et al. determining that an assignment of an overriding royalty in minerals unambiguously conveyed the override in production under an entire lease.  The Court concluded that circumstances surrounding the transaction didn’t matter.”

“Piranha purchased Neuhoff’s interest through an oil and gas clearinghouse auction involving 1,200 properties located in 14 states. There was no negotiation between parties and the winning bidders typically acquired interests as-is, where-is, and without warranty of title. To enter its interests at the auction Neuhoff agreed to various provisions.”

Read the article.

“Every contractor has heard the term and many have had to figure out exactly what it means.  Substantial completion is a legal term found in construction contracts to define that stage of a contractor’s work which is sufficiently complete in accordance with the applicable construction agreement. And when used in relation to a project as a whole, substantial completion is that point where what was constructed is fit for occupancy and ready to be used for its intended purpose,” explains Patrick Barthet in The Lien Zone’s Contracts.

“It is a critical term in the life of any construction project as any construction lawyer would advise. It signifies the time the owner versus the contractor becomes responsible, when the contractor’s work is done so that the owner can begin to use the contracted work for its planned function,  or in the case of a building, occupy it. That said, it is not necessarily tied to the issuance of a certificate of occupancy.”

Read the article.

“Companies that utilize third-party staffing vendors should take stock of the Fifth Circuit’s decision in Hiser v. NZone Guidance, L.L.C. The March 24, 2020 opinion, applying Texas law, reinforces that both contract language, and keeping such language up-to-date, is critical for navigating the legal landscape of company relationships with vendors, including enforcing arbitration provisions,” write A. John Harper III and Paige A. Cantrellnin Littler’s News & Analysis.

“In this case, the defendant NZone contracted with the plaintiff and other workers as independent contractors via RigUp, Inc., a workforce bidding platform. The plaintiff brought class claims against the defendant for violations of the Fair Labor Standards Act (FLSA) on behalf of himself and other workers similarly situated.  RigUp was not named as a defendant, but was alleged to be a joint employer with NZone.”

“The workers entered into an agreement with RigUp allowing them to use RigUp’s on-line platform, which contained an arbitration provision (the ‘RigUp Agreement’). NZone moved to compel arbitration of the FLSA claims pursuant to that agreement.  The RigUp Agreement stated that arbitration was to be used to ‘resolv[e] disputes between you and RigUp,’ and that ‘[a]ny arbitration between you and RigUp will be settled under the Federal Arbitration Act.’  The RigUp Agreement further stated that either ‘you or RigUp may commence an arbitration proceeding.'”

Read the article.

“While it’s sometimes said that one person’s failure to plan ahead doesn’t constitute an emergency for everyone else, but one couldn’t plan ahead for this current Coronavirus pandemic that now has indeed created an unprecedented, unforeseeable emergency with many scrambling to evaluate the consequences of a failure or inability to perform,” writes Joseph I. (“Joe”) Rosenbaum in Rimon’s Insights & Analysis.

“In many ways, in addition to memorializing the intent and expectation of parties to a transaction, a contract is a method of allocating the risk inherent in the transaction. The parties entering into the contract try to assign rights and obligations, crafting a variety of clauses intended to reflect the expectations of each of the parties under most circumstances and dealing with the consequences and potential remedies should those intentions and expectations go awry. But no matter how lengthy and detailed your efforts at documentation may have gone, no contract could possibly deal with every possible contingency – and by definition, all the potential unforeseeable events.”

“The coronavirus outbreak is a tragic, but poignant example of just such an unforeseeable occurrence. In most cases, by government order or restriction, the pandemic has forced the closure of businesses, the cancellation of concerts, sporting events, and conferences, has delayed, suspended or completely ended many commercial transactions and has interfered with travel, transportation and the supply of goods and services – in some ways with dire health-related consequences. In short, while some may merely be delayed or suspended for a time, the COVID-19 pandemic has made many contracts either impossible or extremely impractical to perform.”

Read the article.

“Despite the speed and efficiency that comes with signing documents electronically, many business people (and even some lawyers) remain reluctant to accept electronic signatures.  Luckily for those of us who are sheltering in place or practicing social distancing, most electronic signatures are just as valid and enforceable as a traditional manual signature,” writes Ryan P. Siney in Tucker Arensberg’s News + Insights.

“A federal law, the Electronic Signatures in Global and National Commerce (ESIGN) Act, and the law of nearly every state (through the adoption of the Uniform Electronic Transactions Act or similar legislation), provide that electronic signatures are legally enforceable as long as a few basic requirements are satisfied.  These laws require electronically signed contracts to be enforced and treated the same as any document signed by traditional means.  In other words, no contract can be voided or rendered unenforceable merely because it was signed electronically.”

“To qualify as an enforceable electronic signature, there must be evidence of the signer’s intent to execute or accept the agreement.  This is typically accomplished by requiring the signer to take affirmative action, like typing their name or drawing their signature using a mouse or touchscreen.  As long as the signer’s intent to agree to the contract can be discerned from the record, an electronic signature is likely to be enforceable. Courts in some states have enforced contracts where a party’s intent to accept the terms of the agreement were evidenced by email exchange or text message, even though there was no drawn or typed signature.”

Read the article.

“Business continuity and disaster recovery (BC/DR) plans are an essential element of your and your suppliers’ business—an increasingly apparent fact as we now face the uncertainty caused by COVID-19. Your agreements with suppliers and service providers likely account for exigent circumstances via force majeure and BC/DR provisions, and reviewing and updating those contingencies now is imperative. The following steps will help you critically review how the BC/DR plans supporting your organization plan for COVID-19,” advises Aaron M. Oser, John L. Barton and Mia Render in Pillsbury’s Alert.

Read the four steps you should be taking.

Read the article.

“Much has already been written regarding the potential of COVID-19 to impact construction or development projects.  For example, businesses may experience personnel or material shortages, or stoppages that result from Government-directed actions. These delays jeopardize project timelines and place businesses in vulnerable positions regarding liquidated damages or other contract penalties. These businesses are reviewing their contracts to see whether they may seek relief pursuant to their contract’s force majeure clause,” reports Joseph Romero, Esq. in Vandeventer Black LLP’s Articles.

“Businesses performing mandatory remedial actions or other corrective action pursuant to regulatory enforcement documents, including settlement agreements and consent orders with Federal or State regulators, will face similar challenges. These businesses and individuals should review their settlement agreements or consent orders to understand the procedural requirements they must follow to invoke their force majeure clause.”

Read the article.

Read the article.

“A signature communicated through an electronic medium like email correspondence is not a binding signature unless agreed to by the parties. In the absence of such agreement, a signature will only be valid if it appears in manuscript form regardless of the medium of communication. When entering into contracts, explicit provision must be made regarding what is meant by ‘signature’,” asks Rosalind Lake and Priyanka Naidoo in Norton Rose Fulbright’s General.

“On 18 March 2020 the Supreme Court of Appeal found that funds were improperly transferred by a financial services provider (FSP) when it received fraudulent emailed instructions from a hacker posing as its client. The court found that the FSP acted without receiving proper instructions and contrary to its mandate because there was no signature on the instructions.”

“In terms of the client’s written mandate to the FSP, the FSP was engaged to act as the client’s agent and invest money on his instructions, provided that such instructions would be sent to a stated fax number or email address ‘with client’s signature’. The client’s email account was hacked by fraudsters. The fraudsters sent three separate emails to the FSP instructing that amounts be transferred to certain accounts. Two of the emails ended with the words ‘Regards, Nick’, and the third email ended with the words ‘Thanks, Nick’.”

Read the article.

“As the global outbreak of coronavirus brings the American economy to a halt, countless companies will undoubtedly have trouble meeting their contractual obligations. But there are a few legal options that may help businesses avoid headaches down the road,” discusses Dan Niepow in Twin Cities Business’ Law + Crime.

“Many contracts often include force majeure provisions, which excuse poor performance under exceptional circumstances. A global pandemic would likely qualify for many agreements, but it’s worth taking a second look at contract language in any case, legal experts say.”

“As with most legal issues, there’s not really a one-size-fits-all answer. Force majeure provisions vary company to company and industry to industry, but generally speaking, they’re pulled out when something happens beyond either parties’ control. Some businesses have relied on force majeure provisions during work outages caused by striking workers or unprecedented weather conditions, said Jonathan Bye, a Ballard Spahr LLP attorney who’s worked on breach-of-contract cases for more than 30 years.”

Read the article.

“Litigation has its place, but most in-house counsel agree: avoid it if at all possible. That’s why Chris Fairey is a proponent of arbitration clauses in his employee contracts. Fairey is General Counsel for American Residential Services (ARS), one of the nation’s largest residential and commercial heating, air-conditioning, and plumbing services companies. ARS earns approximately $1 billion dollars in revenue annually and has more than 6,000 employees across the country. Like any legal leader of a company that size, Fairey spends a lot of time thinking about risk,” discusses Mark P. Henriques in Womble Bond Dickinson’s Articles and Briefings.

“One of the big upsides to arbitration from Fairey’s point of view is that the process takes a lot of the emotion out of a dispute.  He points out that presenting a case to an experienced arbitrator, rather than a jury, removes many of the emotional elements that can go along with litigation, especially when employees or consumers are on the other side. A jury trial can be subject to grandstanding by plaintiff’s counsel, which is not the case in arbitration.”

Read the article.

Read the article.

A “plaintiff entered into an exclusive listing agreement with the defendant, Deal Lake Village Gardens, LLC to broker a sale of the defendant’s apartment complex. The agreement included the following provision: “If a sale or exchange is consummated after the termination of this agreement to or on behalf of a party who was introduced to the property by [plaintiff], [plaintiff] will also be entitled to a full commission.” writes Gary M. Albrecht in Cole Schotz’ Real Esate & Construction Law.

“The property was sold, but not until after the term of the plaintiff’s exclusive listing expired. At the trial court level, the plaintiff argued that even though the property was sold after the exclusive listing agreement expired and the defendant had hired a new broker, it had earned a commission because it had introduced a principal of the purchaser to the property while its exclusive listing agreement was in effect. The trial court rejected the plaintiff’s claim, but its reasoning came under the Appellate Division’s scrutiny.”

“When negotiating exclusive listing agreements or other forms of commission agreements, whether on the side of a property owner or broker, any right to a commission after a broker’s agency has expired must be discussed and memorialized in a contract to avoid a similar fate to the parties of this case, which in the case of the defendant, may include the payment of two full commissions (in addition to legal fees) depending upon the disposition of the remanded case at the trial court.”

Read the article.

“One often sees a definition of “Business Day” in purchase agreements and other legal documents, usually to define when an event such as delivery of a legal notice or payment of an amount can legally occur. The idea is that it is somehow inconvenient to deliver an annoying default notice or a satchel of cash on a weekend or holiday when the recipient might be out enjoying a day at the beach and would not be paying attention to the notice or satchel,” writes Jose Sariego in Bilzin Sumberg’s Insights.

Read the article.

“Legal technologies promise to flourish in the coming decade, and although it is not possible to predict all the innovations that are likely to become mainstream, the use of smart contracts appears to be on the rise. A typical smart contract uses computers and code to automate performance of some or all of the parties’ obligations. However, the legal terms of the contract are likely to remain in written form in a contract that people can read. If a dispute arises, the parties may prefer arbitration as an alternative to court, but arbitration doesn’t happen on its own – it typically requires a properly drafted arbitration clause.”

Steven K. Davidson, Michael J. Baratz, Jared R. Butcher and Molly Bruder Fox provide some tips in Steptoe’s News/Publications to keep in mind when considering how to draft these clauses.

Read the article.

“It is important for contractual language to be not only precise but also accurate. Many agreements govern multiple individuals, some of whose gender is unclear or variable. This article will give you advice and guidance on how to adjust contract language to be gender-neutral. As society moves towards treating all genders equally, legal contracts should too.” advises Kati I. Pajak in Mintz’s Insights Center.

“Conversations around gender and gender neutrality are becoming more and more mainstream. Thompson Reuters reported that in the past year (2018), there has been an increase in the number of clients requesting gender-neutral documents. Start-ups are at the forefront of change and industry disruption, so it is logical that they stay ahead of the trend.”

“Now, the shift towards non-gendered pronouns and away from binary choices of “he” or “she” means attorneys need to adopt new drafting techniques. As entrepreneurs and leaders of your own business, you can encourage this shift.”

Read the article.