“The want of performance of an obligation, or of
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Posted On: 10/14/2020 1:48:45 PM
“The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate: (2) When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary.”4 Even if not entirely impossible to perform, if it is utterly impractical to perform, the same result obtains—performance of contractual duties may be excused.
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5. Is a delay in performance rather than a suspension of the entire contract merited? From an objective standpoint, a delay in performance is far less drastic than a termination of all contractual rights. It may be more plausible to take that position, at least at the outset as events unfold, reserving the right to seek to be excused from the entire obligation.”
If I recall correctly the contract stated 5M due Oct (1?) 2020…..
This contract & court filing were both agreed & filings occurred more than 5(?) yrs ago…thus totally unforeseen event that prevented the (courts) process from moving on in their normal timetable.
It also stated after that date ( Oct 1 (?)….. interest would be applied at a rate of 25,000 (?) / month.
,” a delay in performance is far less drastic than a termination of all contractual rights”
The interest rate agreed upon meets the “far less drastic” option of ….”total to be excused from the entire obligation.”
From first paragraph: (2) When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary.”4
The question is a pandemic produce the same condition = …”delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States”
Need to review foot note # 4 “ 4 Cal. Civ. Code § 1511.”……anyone have this?
On this reading it appears the question to the court is:
1. Does … “…”delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States” meet the standard as stated IE: pandemic = to war delays?
2. Is there in the contract a less drastic solution than…. “a termination of all contractual rights”…… the court might recognize the agreement in the contract that would prevent cancelation of the contract…that would be the interest rate..25,000 / mo
https://www.dorsey.com/newsresources/publicat...e-disputes
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5. Is a delay in performance rather than a suspension of the entire contract merited? From an objective standpoint, a delay in performance is far less drastic than a termination of all contractual rights. It may be more plausible to take that position, at least at the outset as events unfold, reserving the right to seek to be excused from the entire obligation.”
If I recall correctly the contract stated 5M due Oct (1?) 2020…..
This contract & court filing were both agreed & filings occurred more than 5(?) yrs ago…thus totally unforeseen event that prevented the (courts) process from moving on in their normal timetable.
It also stated after that date ( Oct 1 (?)….. interest would be applied at a rate of 25,000 (?) / month.
,” a delay in performance is far less drastic than a termination of all contractual rights”
The interest rate agreed upon meets the “far less drastic” option of ….”total to be excused from the entire obligation.”
From first paragraph: (2) When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary.”4
The question is a pandemic produce the same condition = …”delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States”
Need to review foot note # 4 “ 4 Cal. Civ. Code § 1511.”……anyone have this?
On this reading it appears the question to the court is:
1. Does … “…”delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States” meet the standard as stated IE: pandemic = to war delays?
2. Is there in the contract a less drastic solution than…. “a termination of all contractual rights”…… the court might recognize the agreement in the contract that would prevent cancelation of the contract…that would be the interest rate..25,000 / mo
https://www.dorsey.com/newsresources/publicat...e-disputes
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