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'Now for Something Completely Different'
No franchise agreement, despite its length and the genius of its drafting, anticipates all commercial realities and advances over its intended life span. For example, until the mid-to-late 1990s, the Internet was a novelty of the military, academia, and entertainment industry, and it formed no part of the commercial landscape for business format franchises. As franchise systems and methods of operation evolve in our technological society, how much of the future should the draftsperson attempt to enmesh in the agreement? Perhaps this issue is less of a concern than first thought. The answer may lie in a doctrine that is, ironically, viewed by franchisors with less favor.
The implied covenant of good faith and fair dealing forms an increasingly popular element in claims and counterclaims by franchisees that the franchisor engaged in wrongful termination of a franchise agreement. The application of this frequently misunderstood and misapplied doctrine by trial courts changes contract interpretation litigation into contract renegotiation. From the franchisor's perspective, the doctrine's misunderstanding by juries makes civil litigation more closely resemble gaming than the administration of justice.
The covenant is a hallmark in the sale of goods governed by the Uniform Commercial Code (UCG). Under Sec. 1-203, every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement. 'Good faith' in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade, per Sec. 2-103(b). The UCC embodied existing contract law. These formulations have long been observed to govern contracts for services that are not subject to the UCC. 1-5 Williston on Contracts, Sec. 670 (1961).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?