The Times They Are A Changin

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A major supermarket, once the largest retailer in the United States, closed in bankruptcy after 156 years in existence. People much smarter and knowledgeable that we are could better explain the cause of its demise and, in hindsight, could explain how they knew, years and years earlier, it would happen. Ruminations can only offer that the facts and circumstances changed, but the company (meaning its people in charge) did not. But, this blog isn’t about history other than to use it as a platform upon which to stand when engaging in another fool’s errand – forecasting the future.

The reason this now-gone supermarket comes to mind is “Uber.” We’ll get to that, but for now, please suffer along with us. [Read more…]

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Groceries And Other Definitions Revisited

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Groceries, sandwiches, ice cream, supermarkets, restaurants, department stores, variety stores – oh, the words we use, what do they mean? Today, we revisit one of our most-read blog postings because a federal appeals court revisited the underlying case (again). We’re “talking” about the Winn-Dixie case. Our “take” on that underlying case can be read by clicking: HERE. Ruminations urges readers to refresh their memories now by re-reading our earlier blog posting

Winn-Dixie, a supermarket chain, won a court decision in Florida where the lower court ruled that “groceries” included soup, aluminum foil, and similar items. As a result, it ruled that dozens of “dollar” type stores run by three retailers were in violation of a provision in the supermarket’s lease prohibiting others from selling groceries. Basically, the federal court that first heard the lawsuit looked at an earlier state court ruling, and (kind of properly) treated it as binding on itself, the federal court. [Read more…]

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Waiving Non-Waiver Provisions By Waiving Such Provisions (Again)

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We’ve written about the legal concept of “waiver” too many times to warrant furnishing any links to earlier blog postings. To sum it up succinctly, we’ll start with an example of a pretty familiar provision found in most agreements such as leases and mortgages (to keep us within the real property family). It reads as follows:

All waivers must be in writing and signed by the waiving party. A party’s failure to enforce any provisions of this [lease] will not be a waiver and will not estop that party from enforcing that provision or any other provision of this [lease] in the future.

If an English-speaking visitor arrived from outer space and, after completing its abduction of one or more of the world’s inhabitants, read this, it would think there could be no waiver if it were not given in writing. It would be wrong. Likewise, native-born earthlings should always have some doubt as to whether to rely solely on the ability to read. Context (and established law) matter.

Generally speaking, at least under United States jurisprudence, the Texas Supreme Court, in a clarifying (for Texas) May 12, 2017 decision, wrote the following: [Read more…]

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Real Estate Community Expectations And The Agreements We Reach

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In writing for a broad audience in a somewhat breezy manner, Ruminations frequently fears it is misleading some readers. As hard as we try to incorporate appropriate caveats when expounding on legal principles, Ruminations is quite aware of a built-in shortcoming. It isn’t enough to carefully highlight the limitations of what appears in a blog posting. It isn’t enough to warn that this blog is written to provoke discussion and is not written as a substitute for real legal advice. These blog postings discuss matters of law, but the “law” means nothing in the abstract. It only matters when applied to specific facts being examined. The very same “law” applied to two different situations can produce starkly different  ̶  sometimes seemingly opposite  ̶  results. That’s because the law is intended to support a civil society and, in such a society, outcomes are expected to meet community expectations.

An excellent example of a law crafted to meet community expectations is Article 2 of the Uniform Commercial Code. That’s the part of the “UCC” governing the sale of goods. Basically, it works in a number of ways. One of those ways is to act as a “gap filler.” That’s not something one buys at Home Depot, Lowe’s, or an Ace Hardware store. In this context, a gap filler is a contract provision that the contracting parties didn’t write down. The Act’s “gap fillers” are actually a codification of “what really goes on,” hence part of a “Code.” It codifies practices in the commercial community. Basically, in this role, Article 2’s function is to create rules that persons in that community, the one in which buyers and sellers transact in goods, would expect in the absence of something specifically to the contrary in their specific agreement. [Read more…]

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Grammar And Optical Illusions

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Ruminations has never really figured out when to use “which” and when to use “that.” No matter how many times we read that one is used with dependent clauses and the other is used with independent clauses, the rule never sinks in. We don’t even remember which is used with which. To us, it seems like the optical illusion of a hollow mask where you see either a convex face or a concave face depending on who knows what. Small comfort to us that we think we are in good company in this failing. [To learn more about the hollow mask, click: HERE.]

So, does this have anything to do with legal matters? We think so based on a recent decision out of the Delaware Chancery Court, one pitting lawyers from a pair of top drawer Delaware and Washington DC firms against a similar pair of top draw firms from Delaware and Washington DC. And, like many other disputes we’ve read about in judicial decisions, we just wonder: “How do some of us keep a straight face when making some of these arguments?” [Read more…]

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How Can I Get Out Of My Oral Agreement?

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It’s not true that oral contracts aren’t worth the paper they’re printed on. In fact, for all but some small classes of agreements, oral ones are no different than ones printed on the finest of rag papers. Certainly, they are more difficult to prove their very existence, let alone their detailed provisions. That’s a good reason they should be memorialized in a written version. We’ve written, “memorialized” because, in many cases that’s the real function the writing performs. The parties will have already agreed to the terms of their intended transaction. At that stage, they have a contract – a binding agreement. Writing it down doesn’t make it any more “official,” just a lot easier to follow and a lot easier to explain the “deal” to others, attorneys included.

So as not to mislead some readers, we aren’t dismissing the “Statute of Frauds,” something most (perhaps all) states adopted based on a 1677 English law with the self-explanatory name: “An Act for the Prevention of Frauds and Perjuries.” While various states have different lists of what kind of agreements need to be in writing lest one party or the other be able to disavow their agreement just because it was oral (and for no other disabling reason), traditionally most agreements involving conveyances of real property fall or fell (depending on where the property is located) under these statutes. [Read more…]

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Who Fixes What At The Shopping Center? How Do You Know?

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A shopping center has a finite number of elements requiring maintenance, repair or replacement. Basically, in mathematical terms, it is a closed set. That means all possible points are within its boundaries. So, if you allocate responsibilities for certain parts of a shopping center to one party and then say that the other party has responsibility for everything else, you’ve covered every possibility. Given that the leased space is a sub-part of the entire shopping center, it is easier to list a tenant’s responsibilities than to list its landlord’s. That’s made even easier if you can say that the tenant is responsible for everything inside the leased space except for a short list of discrete items. Then, you can add a short list of items outside the leased space and the result will almost always be complete as to the tenant’s role. Everything else would be cast upon the landlord. [Read more…]

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Can A Tenant Just Pay-Up And Close Its Store In Violation Of A Continuous Operating Covenant?

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Continuous operation lease provisions are contentious. The ability of a landlord to impose such an obligation within a particular lease is determined by the relative bargaining power of the parties. All bargaining power, like all politics, is local. If a tenant doesn’t really “need” to be at a particular property and the landlord really “needs” that (or any) tenant, then it’s unlikely that any resulting lease will include one. At least, in a rational world, that’s the way it would be.

Today, Ruminations will describe two unusual court decisions with the caveat that the fat lady hasn’t yet sung. Each are at the “preliminary injunction” stage, actually at the stage where two courts, in geographically distant jurisdictions, have ordered two different tenants, with different landlords, to keep their stores open. That’s where the similarity ends, as today’s blog posting will tell.

[As to the two cases, each being in the preliminary injunction stage, no final decision has been reached. All the separate courts have ruled is that what the tenants were “doing yesterday,” i.e., operating a store, they need to do “today,” i.e., keep operating that store (at least until a final decision is reached). That means not all the facts and legal arguments are yet on the table. For that reason, Ruminations won’t be analyzing the living daylights out of either case. We’ll be waiting for a final “call” as to one of those cases (the Indiana one) before going down that road.] [Read more…]

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