Category: contract law

Breach Of Contract: “Rescission” As A Remedy For Breach Of Contract

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Categories: business disputes, Continuing Series, contract law, Contracts & Deadlines, legal services

We lawyers at McGrath and Spielberger, PLLC deal with contracts every day. Unfortunately, that sometimes includes breaches of contract, whether due to a missed deadline or something else. Sometimes the breach is harmless, whilst other times it is devastating; most of the time the consequences are somewhere in between those 2 extremes.

A party who has been legally injured to the other party’s breach of contract (whether related to a missed deadline or not) can seek a “remedy”. Remedies are ways in which such an injury can be corrected or compensated for, and/or a way to enforce contractual rights.

One of the ways in which a wronged contractual party may be able to correct a legal injury is called “rescission”. Rescission generally attempts to put the parties back into the position they were in before the contract and breach of contract, with a focus on trying to undo (or compensate for) damages suffered by the party not in breach of contract.

For example, if the Seller under contract to sell real estate (real property) breaches the agreement by refusing to go forward and complete the sale, the would-be Buyer may have the right of rescission. This could include the right to recover any monies paid to Buyer or put into escrow (such as down payments, deposits, and good faith monies) and to be reimbursed by Buyer for actual costs expended or incurred (such as inspection fees).

Other terms and phrases often associated with rescission are to “unwind the contract” or “void the contract” and “make the parties whole”.

The “right of rescission” may be specifically stated in a legal agreement, but often is not. It is an established remedy which courts can order in appropriate circumstances.

It is rare that rescission is the only possible remedy available for an injured party, but sometimes a party may need to choose to seek rescission instead of another type of remedy.

As you may guess, rescission is not always possible or practical.

You may have the right to rescission and that may be the remedy you should seek. Parties who have been legally injured by a breach of contract should discuss their options with a lawyer and then determine the best route forward, which may or may not include the remedy of rescission.

Don’t hesitate to contact us for contract law services, such as drafting, editing, analyzing, negotiating, and disputes.

Arbitration Fees – How Much do Arbitrators Cost?

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Categories: arbitration, arbitration'contracts, Business Law & Contracts, Continuing Series, contract law, contracts, Jason A McGrath, NC Rules of Civil Procedure, North Carolina, series, small business

Business law Attorney Jason McGrath shares some information about how much you should expect to pay in fees to an Arbitrator in this short video.

https://youtu.be/_mJseLaXzM0

Here are some of the key points contained in this informational video:

  • Arbitrators typically charge fees similar to what lawyers charge.
  • Does the Arbitrator require a minimum amount when the arbitration is scheduled? This may be called a cancellation fee or a retainer fee. The arbitrator may require this to offset a loss if the arbitration cancels.
  • Arbitrators can sometimes be bargained with to lower fees but normally these are set fees.
  • Arbitration fees (which are mostly made up of the Arbitrator’s fees) are often split evenly between the parties, but this can be altered by contract, law, or court order.

You should get advice from an attorney to assist in handling litigation issues like arbitration.

This is part of a continuing series of video blogs on contract law and arbitration – you can find the first part of this series on our blog or on our YouTube Channel.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Arbitration: How Do You Choose The Arbitrator?

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Categories: arbitration, attorney, business contracts, business disputes, Business Law & Contracts, Business Law Disputes, contract law, contracts, Jason A McGrath, lawsuit, Litigation, small business
Attorney Jason McGrathexplains some things to consider when choosing the arbitrator during a lawsuit in this short video.

Here are some of the key points contained in the video:

  • If using a panel of 3 arbitrators: each party picks an arbitrator and then those two arbitrators pick the third one.
  • If using only 1 arbitrator: one side presents a list of possible arbitrators to the other side and the other side picks from the list.
  • You go back and forth and negotiate between the parties until a decision is made.
  • You may wish to avoid attempting private conversations with potential arbitrators in order to avoid the appearance of impropriety.
  • Consider all the information available to you to make an informed decision about your arbitrator.
  • Arbitrators may also be appointed by the court.

If you need legal services in North Carolina,
South Carolina,
Georgia,
Florida,
Ohio,
or Tennessee we invite you to fill out our confidential client formfor possible legal assistance.

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Wedding Bell Blues: Contractual Considerations for Weddings and Events in a COVID-19 World – Part 1

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Categories: breach of contract, Business Law & Contracts, contract law, COVID-19, Force Majeure, Service Contracts, Weddings

As an attorney who routinely drafts and analyzes business contracts and a bride during the COVID-19 pandemic, I knew that there were several contractual aspects I would need to consider when entering into countless contracts with the vast array of people and vendors involved in planning a wedding, especially during a global pandemic.

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While it appears that the initial “panic” of the COVID-19 pandemic has gradually decreased and many 2020 weddings have been rescheduled, the health concerns with regard to mass gatherings are still very much present and will not be going away any time soon. Whether you’re in the beginning stages of planning like myself, or attempting to navigate the contracts you entered into months ago, below are some considerations and legal concepts you may find helpful.

Force Majeure

Service contracts typically have stated procedures or policy for when an event is cancelled or interfered with. The cancellation policy may reference “Acts of God,” which is commonly referred to as a “force majeure” clause. These clauses, if invoked, may relieve one or both parties from being penalized for breaching the contract based upon nonperformance due to a disruption caused by an unpredictable event.

While courts can enforce these clauses, they will treat each clause different as no two clauses are the same. Each clause differs in what triggers the clause (i.e., the event, incident, and/or catastrophe) and the parties’ available options if the clause is triggered (i.e., right to cancel the contract, ability to reschedule event, etc.). Common triggering events included in these clauses are Acts of God, government action or regulation, natural disasters, and terrorism. Okay, so a global pandemic would be considered an “Act of God,” right? Maybe. Maybe not.

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So what can you do? If you are currently engaged in the negotiation stage of your contract, you can insist on the clause including language specific to COVID-19, such as “pandemic” or “public health crisis” in the chance that there is another ‘wave’ of infection. Regarding your options after the clause is triggered, you and the other party should discuss what can be done should you need to cancel your original wedding or event date. Rather than provide the option for either party to cancel the contract altogether, it would be advantageous to, instead, suggest that the clause provide for the rescheduling of the event within a specified period of the original event date, like six months or a year.

In the absence of a force majeure clause or the language that specifically suggests COVID-19 concerns, you may have still have some defenses to your contract obligations under the doctrines of impracticability and frustration of purpose.

💬 We hope you enjoyed the post. Return to our blog next Wednesday for part two.

Decision On An Arbitration Provision In A Contract

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Categories: arbitration, business law, Business Law & Contracts, Business Law Disputes, Continuing Series, contract law, contracts, Jason A McGrath, lawsuit, Litigation, North Carolina, series, video
Attorney Jason McGrath discusses some items to consider when deciding to include an arbitration provision in a contract matter in this short video.

Watch here > https://youtu.be/rOPNhRSSLVE

Here are some of the key points contained in the video:

⬤  Arbitration: do you prefer arbitration or a formal court case if there is a dispute?

⬤  The intent of an arbitration provision in a contract is to avoid a formal court case.

⬤  Arbitration provisions are, in general, enforceable and typically will be binding in the same way that a civil court judgment can be enforced.

⬤  There are ways to appeal an arbitration decision but they are limited.

⬤  Arbitration is usually less expensive than a formal court case.

⬤  You should talk to an attorney for advice when considering including an arbitration provision to your business contract.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Arbitration Agreement: How to Get to Arbitration if A Lawsuit Was Filed First

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Categories: arbitration, business law, Business Law & Contracts, Business Law Disputes, contract law, contracts, Jason A McGrath, lawsuit, Litigation, North Carolina, video
Attorney Jason McGrath shares some items to consider when your contract has an arbitration provision but the other party has already filed a formal lawsuit in the court system in this short video.

Click this link to view on YouTube https://youtu.be/J23FU7EDFB0, or watch below.

 

Here are some of the key points contained in the video:

What do you do if the other party has already filed a formal lawsuit in the court system?

  1. You go to the other side and point out that there is an arbitration clause in the contract and demand it be honored.
  2. If the other side refuses to halt the lawsuit and go to arbitration, you file a motion asking the court to dismiss or stay the lawsuit and order arbitration.
  3. This type of a motion needs to be filed before the case goes to far in the formal court system.
  4. If the court believes the arbitration clause to be valid, it will typically order arbitration and halt the lawsuit in the meantime.
  5. More often than not, arbitration clauses are enforced by courts.

You should get advice from an attorney to assist in handling litigation issues like arbitration.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Where Does an Arbitration Physically Take Place?

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Categories: arbitration, business, Business Law & Contracts, Business Law Disputes, Continuing Series, contract law, contracts, Jason A McGrath, lawyer, Litigation, llc, North Carolina, series, video

Attorney Jason McGrath shares some information about where you can expect an arbitration proceeding to physically take place in this short video and summarized in this blog post.

Understand the practical logistics of an arbitration that may arise from a dispute about your business contract.

Here are some of the key points contained in this informational video:

Where will the arbitration physically take place? What city or county? An attorney’s office? The courthouse? City hall?

  • As far as city or county, arbitration often takes place where a related lawsuit would be (or is) taking place.
  • Some arbitration agreements will dictate what city or county the arbitration must occur in.
  • Arbitration can usually occur anywhere that the parties agree.
  • The arbitration hearing could take place at a private law office or the arbitrator’s office.
  • Arbitration doesn’t usually occur in the courthouse.

Occasionally a court will enter an order as to the logistical specifics of arbitration, such as the hearing location. You should get advice from a contract attorney to assist in handling litigation issues like arbitration.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio or Tennessee, we invite you to fill out our confidential client form for possible legal assistance.

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Follow the Contract’s Arbitration Clause or File a Lawsuit?

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Categories: arbitration, arbitration clause, business law, Business Law & Contracts, Business Law Disputes, contract law, contracts, Dispute, Jason A McGrath, lawsuit, North Carolina, series

Attorney Jason McGrath explains some things to consider when deciding whether to follow a contract’s arbitration clause or file a lawsuit in this short video.

Click here to watch on YouTube or watch the video below.

Here are some of the key points contained in the video:

  • How do you end up in arbitration vs. in court?
  • Typically, someone has to decide – do we follow the arbitration clause or just file a lawsuit?
  • Parties usually just file a formal lawsuit as if there is no arbitration clause.
  • There can be some negatives to ignoring the arbitration clause.

You should have your attorney take a look at the contract and then make a careful decision on how to proceed based on a through legal analysis of your case and the contract.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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Arbitration Clause: One Arbitrator Or More?

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Categories: arbitration, business law, Business Law & Contracts, Business Law Disputes, contract law, contracts, Jason A McGrath, lawsuit, McGrath amp; Spielberger, North Carolina, video

Attorney Jason McGrath explains some things to consider when when considering the arbitration clause in a contract in this short video.

https://youtu.be/VaxZHXUP3PY

Here are some of the key points contained in the video:

    • How many arbitrators would you prefer?

 

    • Are you comfortable with the decision being in the hands of just one person? Keep in mind that trial level legal cases in the regular judicial system are handled by one judge.

 

    • Keep in mind that the more arbitrators involved, the more expensive arbitration will be.

 

  • Does the arbitration clause in the contract address how many arbitrators there are going to be?

The arbitration provision in a contract doesn’t have to address the issue of how many arbitrators. You can leave the option open if you prefer.  You want to be mindful of this when crafting your contract and the arbitration provision.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio, or Tennessee we invite you to fill out our confidential client form for possible legal assistance.

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