News & Analysis as of

Specific Performance

Built-In Contract Remedies: Avoiding the Unenforceable Penalty

by Miller Starr Regalia on

Under California law, a provision of a contract found to impose a penalty is unenforceable as a forfeiture and contrary to public policy. The characteristic feature of a penalty is the lack of proportional relation between...more

The Redemption 'Make Whole' Remedy Controversy – An Easy Fix

The new year has brought an unexpected controversy in an otherwise very issuer-friendly high yield bond market, one involving limiting the available remedies following default that were expanded in last year’s decision by the...more

Impeding the Counterparty’s Ability to Satisfy a Condition Precedent Could Result in Liability

Justice Jeffrey K. Oing in the Commercial Division handed down a decision recently that discusses frustration of the occurrence of a condition precedent by parties to commercial contracts. Nesconset ZJ 1 v. Nesconset...more

Damages for Seller’s Breach of a Real Estate Purchase and Sale Agreement: a Recent Case Example

When a seller breaches a purchase and sale agreement and fails to complete the sale to the buyer, the buyer’s usual remedy is to seek “specific performance” of the agreement — i.e., a court judgment ordering the seller to...more

Civil Code Reform: New Provisions on Contracts and Obligations

by White & Case LLP on

On 8 March 2015, the President signed Federal Law No. 42-FZ "On Amending Part 1 of the Russian Civil Code." The amendments aim at increasing the stability and predictability of contractual relations under Russian law at...more

The Defaulting Seller and a Notice of Lis Pendens

by Jaburg Wilk on

After months of searching, you have finally found the house of your dreams, and much to your delight the Seller has accepted your offer of $500,000. You deposit your $15,000 “earnest money” with the escrow company, and an...more

Ninth Circuit Affirms Judge Robart’s RAND Decision (Microsoft V. Motorola)

by Kelley Drye & Warren LLP on

Yesterday, the Ninth Circuit court of appeals issued a decision affirming Judge Robart’s RAND decision in the much watched Microsoft v. Motorola case, basically ruling that the determination of a reasonable and...more

It’s Time to Rewrite Wisconsin’s Single-Party Listing Agreement

by Foley & Lardner LLP on

A note to the drafters of Wisconsin’s single-party listing contract: It’s time to redefine what triggers the payment of a commission under the contract after a recent decision of Wisconsin’s supreme court in Ash Park, LLC v....more

Court Of Chancery Confirms Jurisdiction Over Escrows

by Morris James LLP on

There are often disputes over funds held in escrow under earn out or indemnification provisions in various deals. This decision confirms that the Court of Chancery will take jurisdiction over a suit seeking specific...more

Interpreting The Right To Specific Performance In A Shareholder Buy-Sell Agreement

by Brooks Pierce on

I've never thought very hard about the remedy of specific performance. That means ordering a party to a contract to perform its contractual obligations. But the ability of the Court to order specific performance was...more

Business Litigation Reporter - February 2015

by Goodwin on

Goodwin Procter’s Business Litigation Reporter provides timely summaries of key cases and other developments within dedicated Business Litigation sessions and related courts throughout the country – courts within which...more

Recovering Damages Through Escrow

by Buchalter on

Most developers have been there a few times. You found a great property, it’s well priced, and perfect for your newest development; be it a flip or an income property. Originally published on Commercial Property...more

Real Property, Financial Services & Title Insurance Update: Weeks Ending October 24, 31 & November 7, 2014

by Carlton Fields on

REAL PROPERTY UPDATE - - Commercial Landlord Duty: commercial landlord has no common law duty to provide automatic external defibrillator in its stores for use in medical emergency – Verdugo v. Target Corp., No....more

Court Grants in Part and Denies in Part Nomura’s Motion to Dismiss Trustee Repurchase Action

On July 18, Justice Marcy Friedman of the New York County Supreme Court, Commercial Division, granted in part and denied in part Nomura Credit & Capital Inc.’s motion to dismiss claims brought by HSBC, as Trustee for the NAAC...more

Musicians in the theatre production ‘War Horse’ lose their legal bid

by DLA Piper on

Musicians employed by the National Theatre in its production of War Horse at the New London Theatre have been refused their application for an interim injunction, or alternatively specific performance, to require the National...more

Further Developments In Ongoing Reinsurance Dispute

by Carlton Fields on

A reinsurance dispute between Guarantee Trust and American Medical has been ongoing for some time; we posted prior updates in March 2011 and July 2013. Most recently, Guarantee Trust filed motions seeking to file a second...more

U.S. Government Shutdown: Will Performance of Private Contracts Be Excused?

With Congress unable to reach an agreement on a continuing resolution, the federal government shut down all “non-essential” services on October 1, 2013. The shutdown will remain in effect until Congress passes appropriations...more

Why A “Lifetime” Warranty Is Only A Six Year Warranty For Contractors And Manufacturers

Most would assume that a warranty lasts for as long as the warranty’s terms. In North Carolina, a recent Court of Appeals decision has made clear that an extended warranty, absent evidence of fraudulent, willful, or wanton...more

Delaware Court of Chancery Analyzes Damages Claims in Failed Asset Sale

The Delaware Court of Chancery recently denied, with one exception, cross-motions for summary judgment in an action to determine damages arising from a failed asset purchase agreement....more

Ober|Kaler Obtains Confirmation of Significant Arbitration Award for Condo Unit Owner’s Claim

by Baker Donelson on

Ober|Kaler Construction Group principal Raymond D. Burke and associates Matthew T. Vocci and Jackson B. Boyd secured judicial confirmation last year in the Circuit Court for Baltimore City of a significant arbitration award...more

Trustee Brings $640 Million RMBS Suit Against Deutsche Bank

On November 27, HSBC Bank, acting as trustee for a Real Estate Mortgage Investment Conduit Trust, filed suit against DB Structured Products, Inc., a Deutsche Bank affiliate, in the federal district court for the Southern...more

Can A Receiver Be Appointed To Collect Accounts Receivable?

by Ervin Cohen & Jessup LLP on

QUESTION: Can a receiver be appointed at the request of a secured creditor holding a lien on accounts receivable for the limited purpose of collecting the receivables?...more

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