Search results

4 results

Arbitration Clauses: Are Arbitration Clauses in Engagement Letters Binding When the Client Doesn’t Sign and the Party Suing is Doing So Derivatively?

Cedillo v. Immobiliere Jeuness Establissement, 476 S.W.3d 557 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)

Simultaneous vs. Split Sign and Close: Drafting and Practical Considerations

This article describes the difference between a simultaneous and split signing and closing structure in M&A transactions and provides drafting and practical considerations and sample provisions for M&A practitioners. Practitioners have many options to address the risks posed by a delayed closing, some of which can be complex and specific to the idiosyncrasies of a transaction. Therefore, this article seeks to provide an introductory overview to some of the key provisions utilized to address the risks of a delayed closing

Did My Email Do More Than I Intended? Contractual or Other Entities Created by Email

In Texas, an enforceable, binding agreement typically has the following elements: 1) an offer; 2) an acceptance in strict compliance with the terms of the offer; 3) mutual assent or a “meeting of the minds”; 4) each party’s consent to the terms; and 5) execution and delivery of the contract with the intent that it be mutual and binding.1 There must also be consideration. An agreement does not always have to be in writing for it to be binding. A now-infamous deal that was “done Texas-style, with a handshake,” was found by a Texas jury in 1985 to have amounted to an enforceable contract, resulting in a $10.53 billion damages award. The Texas Supreme Court issued a decision last year confirming that it will enforce an unambiguous written agreement as written, even where one party claims (and a jury finds) that the party justifiably relied on oral representations made by the other party during negotiations. The Court held that there can be no justifiable reliance when the alleged oral representations are contradicted by the contract’s written terms—particularly where the parties are sophisticated and negotiated at arm’s length. According to the Court, the “parties’ relationship and sophistication required greater diligence than the execution of a written contract that directly contradicted [the plaintiff’s] assumed bargain and assertion of fraudulent inducement.” A few months later, the Court also refused to consider industry custom and usage in a hotly-contested 5-4 decision regarding an unambiguous consent-to-assign provision in a farmout agreement. When there is a written contract between sophisticated parties, their bargained-for agreement can be expected to be enforced by the courts as written—because, as one commentator explained: “the contract is the contract.”

Contracting In Cyberspace

Acceptance of an offer to contract on the internet “has exposed courts to many new situations, [but] it has not fundamentally changed the principles of contract.” One of these bedrock principles is “[m]utual manifestation of assent, whether by written or spoken word or by conduct . . .” Contracts formed in cyberspace can manifest primarily in one of two ways: i) “‘clickwrap’ or ‘click-through’ agreement in which the internet purchaser is required to affirmatively click an ‘I agree’ box after being presented with a list of terms and conditions of use [or ii)] [a]lternatively, consumers may be presented with a ‘browsewrap’ agreement, in which terms and conditions of use are posted on a website accessible through a hyperlink at the bottom of the subscriber's computer screen.” Recent caselaw has further granulated cyberspace contracting, recognizing both "scrollwrap" and "sign-in-wrap", in addition to clickwrap and browsewrap. Regardless of the moniker given to the cyber-contract at issue, in determining the existence and enforceability of contracts in cyberspace, the case law focuses on the very simple issue of whether the parties know that a contract is being offered and formed.