Some “advice” is well thought out; some is authoritative; some is important; some is trivial; some are well-meaning but dangerous. To us, the common factor is that all (that we have seen) are backward-looking. What about tomorrow? In the words of Bishop T. D. Jakes, “Never make a permanent decision based on a temporary storm. No matter how raging the billows are today, remind yourself: ‘This too shall pass!’” [Read more…]
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These days, unsurprisingly, there is no shortage of emails, blogs, and other communications about how the COVID-19 crisis impacts on legal rights and duties. We get dozens of such each day. Most focus on “Force Majeure”; some address the doctrines of impossibility and impracticability. Some concern themselves with “insurance,” something that will be of next to no help for this situation. There’s a lot of good thinking on the “legal” side of those issues, but (alas) facts also matter. And, the “facts” change by the minute. “Stay home” orders, mandated closings, moratoriums, ordered closings, etc. pop up each time we open our browsers. The “Shadow” may know what comes next, but Ruminations doesn’t.
Hubris (hu·bris), n. [Gr. Hybris].wanton insolence or arrogance resulting from excessive pride or from passion. That’s what it would be if we were to present today’s blog posting as if our subject matter was important in the current situation. It is also what all of us, unknowingly for sure, have demonstrated in thinking that our agreements could cover every possibility. If any reader had a COVAD-19 provision in their documents before January, we invite you to share it with the rest of us.
There are lessons to be learned by looking outside of our own field of interest. That was our thinking when we saw a decision out of a New Jersey appellate court last Tuesday. It involved how a document was drafted, an arbitration requirement, and more than questionable behavior by one party. Initially, when we saw that the heart of the case was overreaching by a nursing home, we set the decision aside. But, we were troubled. So, we resumed reading the decision and were rewarded with a tidbit of “wisdom.” What drew our attention was the following provision from the disputed agreement, especially its opening 229-word sentence: 
Often, we come across a court decision based on a narrow set of facts and, thus, limited in its effect. The court’s analysis and the case’s result is primarily of interest to the involved parties and a handful of others who might find themselves in the same situation. Sometimes, however, there is a larger lesson to be gleaned, one not even about the narrow subject matter discussed by the court. As we see it, at the very end of January, a Florida District Court of Appeal Court delivered such a decision.
Is a holdover rent of 200% or even 150% an unenforceable penalty or does it just give the tenant an option: pay it or leave? Earlier this month, a California appellate court answered that question for its jurisdiction, but not without a lengthy analytic dissent.
At one time (and even today), when you saw a closeout bookseller or a Halloween store at a shopping center, a good guess was that the property was sucking wind or its functional equivalent. Though these are generally unattractive uses, they do bring revenue and customer traffic. So, the impact of their presence lies in the eyes or the pockets of the observer.
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