Limiting Implied Duties and Terms in Commercial Contracts: Key Cases and Strategies to Minimize Risk
Incorporation, Merger, Choice-of-Law, Sole Discretion, Good Faith and Fair Dealing, and Additional Exclusion Clauses
A live 90-minute CLE webinar with interactive Q&A
This CLE webinar will provide practical guidance in structuring contractual provisions to limit or negate the invisible terms implied in every commercial contract. The panel will discuss entire agreement, incorporation and merger clauses, provide practical guidance on enforceable additional provisions to effectively exclude implied terms, duties or pre-contractual representations, examine the relevant UCC and Restatement (Second) of Contracts approaches, and highlight recent cases interpreting these provisions to eliminate the problems associated with implied rules of law serving as traps for the unwary drafter.
- Implied duties and contracts terms
- Restatement and UCC
- Best practices and drafting strategies
- Case studies
The panel will review these and other key issues:
- How can contract drafters subtly leverage the disfavored status of implied contract terms?
- What are the most common implied duties and terms in commercial agreements?
- What are the nuances of the implied incorporation doctrine?
- What are the relevant UCC and Restatement (Second) of Contracts approaches?
- How can a drafter avoid contractual incompleteness?
- How have courts employed the conclusive presumption that every party knows the law?
- What have courts said regarding implied contract terms and the "hypothetical bargain"?
- Is the implied incorporation doctrine a rule of interpretation or construction?
- What are best practices for limiting or negating invisible terms?
- What are the critical evidentiary issues upon which courts often rely?
- What roles do choice of law and conflict of laws play?
- What are the critical lessons from cases that have limited or rejected the inclusion of implied duties and terms?
- How can contract drafters exploit the line of federal cases that reject the implied incorporation doctrine?
John R. Gotaskie, Jr.
Mr. Gotaskie represents individuals, partnerships and companies in diverse legal matters including complex commercial... | Read More
Mr. Gotaskie represents individuals, partnerships and companies in diverse legal matters including complex commercial litigation, bankruptcy litigation and franchising issues. He represents both franchisors and franchisees in litigation and general corporate matters, including advice respecting franchise disclosure documents, franchise agreements and related contracts. Mr. Gotaskie is the editor of the firm's Franchise Law Update blog, which highlights not only the regulatory aspects of franchising but also diverse topics such as business finance, employment, litigation and the protection of IP. He also regularly speaks on a variety of legal topics.Close
Ms. Hyman focuses her practice on complex commercial disputes, with an emphasis on financial services and intellectual... | Read More
Ms. Hyman focuses her practice on complex commercial disputes, with an emphasis on financial services and intellectual property litigation. Her clients include financial, technology, media, and entertainment companies. Ms. Hyman uses her industry experience to help clients achieve their business objectives, whether at mediation, at trial, or on appeal.Close
Michael M. Krauss
Mr. Krauss, a former Assistant United States Attorney for the Southern District of New York, advises banks,... | Read More
Mr. Krauss, a former Assistant United States Attorney for the Southern District of New York, advises banks, institutional trustees, and investors on an array of complex financial disputes, as well as corporate trust and structured product matters, including residential mortgage-backed securities litigation and actions alleging breach of trust. He also represents banks and other creditors to enforce remedies and defend counterparty claims. Mr. Krauss routinely litigates disputes arising from insolvencies, particularly in matters where a business' collapse was brought about by criminal fraud.Close
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