ContractsProf Blog

What happens in Vegas ends up in court!

Intoxication always seems like such an irresistible thing to test, because it's so easy to slip into a hypo. A recent case out of Nevada, Wynn Las Vegas, LLC v. Tofani, No. 69936 (behind paywall), brings it up as an issue in the context of Las Vegas gambling. You can listen to the oral argument here (the audio quality is kind of terrible; sorry about that). The Wynn casino advanced Tofani $800,000 in credit, all of which Tofani gambled and lost, and the Wynn is now attempting to collect the debt. Tofani's main defense consisted of lack of capacity because he was intoxicated at the time he borrowed the money. (He also argued that he lacked capacity because of a gambling addiction, but the court found that to be irrelevant based on Nevada statute.)

The Wynn did win a jury verdict but only of $450,000. The majority opinion found that there were fact issues regarding Tofani's level of intoxication and reasonable disaffirmation of the contract, so those were questions that properly went to the jury. However, the jury instructions were incorrect, so the majority reversed and remanded for a new trial.

A concurrence in part - dissent in part walked through Tofani's intoxication defense in more detail. Tofani had indisputably affirmed his debt to Wynn in writing several times...until, eighteen months after incurring the debt, his wife found out how much money he owed, after which he began disaffirming the debt, leading to this lawsuit. The concurrence/dissent pointed out that either Tofani owed $800,000 or Tofani didn't. Therefore, the jury's verdict made no sense: Nobody contended at any point the possibility that Tofani only owed half the amount. The majority's way of dealing with this was through the incorrect jury instruction, but the concurrence /dissent pointed out that there was no fact issues for the jury to resolve: A contract entered into while intoxicated is voidable, not void. The intoxicated person must disaffirm the contract...which Tofani did not do for eighteen months and, to the contrary, repeatedly affirmed the contract in writing. Therefore, Tofani, having indisputably ratified the contract, could not disaffirm the contract later. 

Anyway, entering into a contract while intoxicated doesn't mean you get to keep whatever you were given: "He doesn't get to keep the money forever just because the contract is void; it doesn't magically morph into a Christmas gift with no strings attached just because he was drunk." 

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 21, 2017)

Top Downloads For Contracts & Commercial Law eJournal

Recent Top Papers (60 days) as of: 22 Oct 2017 - 21 Dec 2017

Rank	Paper	Downloads
1.	Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?) Lee C. Buchheit and G. Mitu Gulati Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law	327
2.	Transatlantic Data Privacy Paul M. Schwartz and Karl-Nikolaus Peifer University of California, Berkeley - School of Law and University of Cologne - Faculty of Law	240
3.	Pseudo-Contract & Shared Meaning Analysis Robin Bradley Kar and Margaret Jane Radin University of Illinois College of Law and University of Toronto - Faculty of Law	174
4.	The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	141
5.	Abolishing Consideration: An Argument from Coherence Azfer A. Khan Harvard University, Law School, Students	139
6.	Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering? Gillian K. Hadfield and Barry R. Weingast USC Law School and Department of Economics and Stanford University, Department of Political Science	107
7.	Objective Plain Meaning in Common Law Contracts Stephen C. Mouritsen University of Chicago - Law School	106
8.	Deal Momentum Cathy Hwang Stanford Law School	106
9.	The End of Bargaining in the Digital Age Saul Levmore and Frank Fagan University of Chicago Law School and EDHEC Business School	105
10.	Whiteboard and Black-Letter: Visual Communication in Commercial Contracts Jay A. Mitchell Stanford Law School	99

 

Top Downloads for Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days) as of: 22 Oct 2017 - 21 Dec 2017

Rank	Paper	Downloads
1.	Transatlantic Data Privacy Paul M. Schwartz and Karl-Nikolaus Peifer University of California, Berkeley - School of Law and University of Cologne - Faculty of Law	240
2.	Introduction: Contract in Commercial Law James J. Edelman, James Goudkamp and Simone Degeling University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law	233
3.	Pseudo-Contract & Shared Meaning Analysis Robin Bradley Kar and Margaret Jane Radin University of Illinois College of Law and University of Toronto - Faculty of Law	174
4.	‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations Amr Omran Freshfields Bruckhaus Deringer LLP, Dubai, United Arab	168
5.	The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv	141
6.	Abolishing Consideration: An Argument from Coherence Azfer A. Khan Harvard University, Law School, Students	139
7.	Objective Plain Meaning in Common Law Contracts Stephen C. Mouritsen University of Chicago - Law	106
8.	Deal Momentum Cathy Hwang Stanford Law School	106
9.	Whiteboard and Black-Letter: Visual Communication in Commercial Contracts Jay A. Mitchell Stanford Law School	99
10.	Crowdfunding Signals Darian M. Ibrahim William & Mary Law School	98

 

The 13th Annual International Conference on Contracts (KCON XIII) is Looking Great!

 KCON, the annual International Conference on Contracts, is a favorite of this blog, having been associated with us since its inception. The 13th Annual International Conference on Contracts will be held at Barry University Dwayne O. Andreas School of Law, which is just around the corner (February 23 and 24, 2018).  The conference is shaping up nicely and is well worth adding to your conference and travel plans for next semester!

For those unaware, the 13th Annual International Conference on Contracts is the largest annual scholarly and educational conference devoted to Contracts and related areas of commercial law. The two-day conference is designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, not-yet-fully-formed ideas for scholarship, and pedagogical innovations, as well as to network with colleagues — and potential collaborators or mentors — from around the country and other parts of the world.

Courtesy of conference organizer Dan O'Gorman, here are some highlights so far:

We will be honoring Professor James J. White of the University of Michigan Law School and Professor Robert S. Summers of Cornell Law School with Lifetime Achievement Awards for their contributions to the field of contract law. Professor White will be in attendance to accept the awards on behalf of both himself and Professor Summers.

The Barry Law Review has agreed to have its annual spring symposium be a panel at KCon 13. In honor of our lifetime achievement award recipients, the panel will focus on Article 2 of the U.C.C. The panel will be moderated by Victor Goldberg, and panelists include Lisa Bernstein (via Skype), Robert Hillman, Steven Walt, and James White. A second panel on Article 2 is also in the works moderated by Frank Snyder, and featuring Henry Gabriel, Reporter for the Revisions of U.C.C. Article 2, 1999-2003, and whose piece will also be included in the symposium edition.

 We will have a panel on Judge Posner and his contracts jurisprudence (moderated by Michael Malloy, with panelists Bob Brain, Deborah Gerhardt, Victor Goldberg, and Jeff Harrison).

We will have a panel on the economics of contract law (moderated by Jeff Harrison, with panelists Yonathan Arbel, Peter Gerhart, Victor Goldberg, and Wentong Zheng).

We will have a panel celebrating/decrying Judge Traynor’s 1968 opinion in Pacific Gas & Electric on its 50th anniversary (moderated by Fred Jonassen, with panelists Steve Burton, Robert Hillman, and others soon to be confirmed).

Professor Tina Stark will have a show-and-tell during one of the lunch sessions about her antique English indentures. She has some going back to the 1400s, others from the Elizabethan age, some with huge regnal seals, and others of historical interest because of references to peppercorns.

We have a substantial number of international scholars who will be making presentations.

We will be having dinner at a tapas restaurant in downtown Orlando, with a trivia contest during dinner.

So if you have not done so already, we encourage you to reserve a room at the Embassy Suites by Hilton in downtown Orlando at your earliest convenience. 

You can register for the conference here: http://www.barry.edu/kcon/  

You can book your hotel room here: http://embassysuites.hilton.com/en/es/groups/personalized/M/MCODTES-BAR-20180222/index.jhtml

The deadline to submit an abstract was December 11, but abstracts submitted after that date will be accepted on a space available basis.

We look forward to seeing many of you in Orlando in February. Please note that the average high temperature in Orlando on February 23 and 24 is 74 degrees. (This is not a warranty, however.)

 

Keeping premises safe doesn't necessarily mean banning dogs

A recent case out of Connecticut, Madore v. ISCC, LLC, HHBCV166033741S, sits at the intersection of contract law and negligence. The plaintiff was bit by a dog at an ice skating rink operated by the defendant and sued under theories of both negligence and breach of contract. The contract theory pivoted around the defendant's obligation in its lease to keep the premises in "good, safe, and habitable condition." The plaintiff tried to argue that this created a duty of care toward the plaintiff to keep the premises safe for the plaintiff, which the defendant failed to do since the plaintiff was bit by a dog while on the premises. However, the court noted that the contract said nothing about dogs. The obligation to keep the premises safe did not require the defendant to ban dogs from the premises. Therefore, the provision could not be read to create a duty of care to keep the plaintiff safe from harm caused by dogs on the premises. 

When your extramarital relationship can allegedly be found in a contract

I may have just used the recent royal engagement news as the basis of my Contracts final hypo, so I read with interest this complaint out of the Eastern District of New York, Purcell v. Pressman, 17-cv-6879 (behind paywall), that got sent to me under an alert. (I have the alert set up for "fanfiction," because of my scholarly interest in fan activities, and sometimes I get the most random hits on it, like this one.) The complaint is behind a paywall, but the New York Post has an article up that summarizes both this complaint and the previous fraud complaint filed in Connecticut District Court by Pressman against Purcell a few days before Purcell filed her lawsuit. 

Basically, Purcell's complaint alleges a passionate and intense relationship begun in a hotel in Puerto Rico and continued over lavish vacations in Antigua and New York City. At one point, Pressman allegedly drew up a contract between his alleged business Triton and Purcell, containing certain provisions under which the company agreed to pay some of Purcell's expenses, although neither party ever signed the contract. The contract, according to the allegations of the complaint, was meant to be a gesture of commitment on the part of Pressman to his romantic relationship with Purcell. Pressman's complaint denies ever drafting the contract. 

The allegations continue: Purcell and Pressman moved in together. A few days later, Pressman suffered a medical emergency and was rushed to the hospital after Purcell called 911. Pressman also disputes this version of the tale in his complaint, claiming he called 911 himself after Purcell failed to assist him; as you can tell, Pressman's complaint tells a different story about the relationship with Purcell, accusing her of defrauding him, instead of Purcell's opposite allegations.

While in the hospital, Purcell claims to have answered Pressman's ringing cell phone and to have realized only then that Pressman was married. The complaint then continues to allege further events in the relationship and then asserts a number of causes of action, including breach of contract based on the contract Pressman had allegedly drawn up. 

The complaint concedes that neither party ever signed the contract, but Purcell alleges that she acted in reliance on the enforceability of the contract and so, therefore, the contract should be treated as valid, with the execution of it merely a formality. As I've stated, Pressman has denied ever drafting the contract. 

There are no other pleadings in this case yet. 

If you're going to release your right to pursue unknown claims, you'd better mean it

A recent case out of the Seventh Circuit, ADM Alliance Nutrition, Inc. v. SGA Pharm Lab, Inc., Nos. 16-2331 and 16-2953, reminds us all that signing a release of unknown claims can, indeed, do exactly that. (You can listen to the oral argument here).

The parties in question were two sophisticated commercial parties with presumably access to legal advice if they desired it. When they terminated their business relationship, they signed a release from all claims, known or unknown. ADM then later discovered alleged fraud on SGA's part during the course of their former business relationship and sought to sue for this fraud. The Seventh Circuit, however, enforced the plain language of the release, noting that releases are permitted to encompass unknown fraud claims: 

Two sophisticated businesses signed an agreement to walk away from each other here. ADM chose to relinquish its right to bring any and all claims arising out of the Purchase Agreement, whether known or unknown. It also agreed that no representations were made to induce it to enter into the Termination Agreement other than those contained in the agreement.

Therefore, the release was enforced. Let this be a word of warning: Be careful when signing releases. 

Facebook's terms of use have gaps that leave consumers powerless

Venkat Balasubramani over on Technology and Marketing Law Blog has a piece on the defeat of a recent lawsuit against Facebook based on Facebook's tracking of logged-out users on third-party websites. The court had previously rejected other claims, which left only contract-based claims, which the court also rejected in this most recent ruling. Basically, Facebook's statements about not tracking logged out users could not be found in the terms of service. Instead, Facebook made them in other documents, like data use policies and help center pages. Therefore, the court found there was no contractual provision governing Facebook's behavior. 

As the blog notes, "Ouch." It takes the court a long time to wade through Facebook's voluminous documents to determine what is and is not a contractual promise, an act that we surely can't expect the typical consumer (even if a lawyer) to engage in. This ruling seems to allow Facebook to be a little bit coy about where it makes its statements in order to avoid certain claims. The gap on tracking logged-out users in the terms of use seems to leave consumers without a cause of action here, and to make it difficult for consumers to piece together all of the documents to determine Facebook's true stance on the issue. 

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 14, 2017)

Top Downloads for: Contracts & Commercial Law eJournal

Recent Top Papers (60 days) as of: 15 Oct 2017 - 14 Dec 2017

Rank	Paper	Downloads
1.	Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?) Lee C. Buchheit and G. Mitu Gulati Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law	323
2.	Transatlantic Data Privacy Paul M. Schwartz and Karl-Nikolaus Peifer University of California, Berkeley - School of Law and University of Cologne - Faculty of Law	195
3.	Pseudo-Contract & Shared Meaning Analysis Robin Bradley Kar and Margaret Jane Radin University of Illinois College of Law and University of Toronto - Faculty of Law	162
4.	The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law Natali Helberger, Frederik J. Zuiderveen Borgesius and Agustin Reyna University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation	137
5.	Abolishing Consideration: An Argument from Coherence Azfer A. Khan Harvard University, Law School, Students	127
6.	The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	116
7.	Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering? Gillian K. Hadfield and Barry R. Weingast USC Law School and Department of Economics and Stanford University, Department of Political Science	106
8.	Objective Plain Meaning in Common Law Contracts Stephen C. Mouritsen University of Chicago - Law School	101
9.	Whiteboard and Black-Letter: Visual Communication in Commercial Contracts Jay A. Mitchell Stanford Law School	94
10.	Deal Momentum Cathy Hwang Stanford Law School	90

 

Top Downloads for: Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days) as of: 15 Oct 2017 - 14 Dec 2017

Rank	Paper	Downloads
1.	Introduction: Contract in Commercial Law James J. Edelman, James Goudkamp and Simone Degeling University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law	226
2.	Transatlantic Data Privacy Paul M. Schwartz and Karl-Nikolaus Peifer University of California, Berkeley - School of Law and University of Cologne - Faculty of Law	196
3.	‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations Amr Omran Freshfields Bruckhaus Deringer LLP, Dubai, United Arab Emirates	165
4.	Pseudo-Contract & Shared Meaning Analysis Robin Bradley Kar and Margaret Jane Radin University of Illinois College of Law and University of Toronto - Faculty of Law	162
5.	The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law Natali Helberger, Frederik J. Zuiderveen Borgesius and Agustin Reyna University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation	137
6.	Creatures of Contract: A Half-Truth about LLCs Mohsen Manesh University of Oregon School of Law	134
7.	Abolishing Consideration: An Argument from Coherence Azfer A. Khan Harvard University, Law School, Students	127
8.	The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	116
9.	Objective Plain Meaning in Common Law Contracts Stephen C. Mouritsen University of Chicago - Law School	101
10.	Crowdfunding Signals Darian M. Ibrahim William & Mary Law School	95

 

Contracts Law Contributing the Greatest to MBE Performance

Were you aware of this?  A first-of-its-kind study exploring the relationship between specific law school courses and components of the bar exam has identified Contracts as making the greatest contribution to performance on the Multistate Bar Examination among first-time takers.  Most of the other MBE-subject courses showed no significant contribution to overall MBE performance.  Austin, Christopher, and Dickerson, Will I Pass the Bar Exam?: Predicting Student Success Using LSAT Scores and Law School Performance, 45 Hofstra Law Review 753, 772 (2017), available here: http://www.hofstralawreview.org/wp-content/uploads/2017/06/BB.2.Austin-et-al.NEW_.pdf

Hat tip to Otto Stockmeyer for this story!

 

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 7, 2017)

Top Downloads For: Contracts & Commercial Law eJournal

Recent Top Papers (60 days) as of 08 Oct 2017 - 07 Dec 2017

 

Rank	Paper	Downloads
1.	Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?) Lee C. Buchheit and G. Mitu Gulati Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law	317
2.	Tracing Equity: Realizing and Allocating Value in Chapter 11 Melissa B. Jacoby and Edward J. Janger University of North Carolina School of Law and Brooklyn Law School	187
3.	Pseudo-Contract & Shared Meaning Analysis Robin Bradley Kar and Margaret Jane Radin University of Illinois College of Law and University of Toronto - Faculty of Law	136
4.	Abolishing Consideration: An Argument from Coherence Azfer A. Khan Harvard University, Law School, Students	122
5.	The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law Natali Helberger, Frederik J. Zuiderveen Borgesius and Agustin Reyna University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation	118
6.	The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	113
7.	Legal Certainty: A Common Law View and a Critique John Linarelli Durham University	111
8.	Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering? Gillian K. Hadfield and Barry R. Weingast USC Law School and Department of Economics and Stanford University, Department of Political Science	102
9.	Objective Plain Meaning in Common Law Contracts Stephen C. Mouritsen University of Chicago - Law School	95
10.	Transatlantic Data Privacy Paul M. Schwartz and Karl-Nikolaus Peifer University of California, Berkeley - School of Law and University of Cologne - Faculty of Law	91

 

Top Downloads For: Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days) as of 08 Oct 2017 - 07 Dec 2017

 

Rank	Paper	Downloads
1.	Introduction: Contract in Commercial Law James J. Edelman, James Goudkamp and Simone Degeling University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law	224
2.	‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations Amr Omran Freshfields Bruckhaus Deringer LLP, Dubai, United Arab Emirates	162
3.	Pseudo-Contract & Shared Meaning Analysis Robin Bradley Kar and Margaret Jane Radin University of Illinois College of Law and University of Toronto - Faculty of Law	136
4.	Creatures of Contract: A Half-Truth about LLCs Mohsen Manesh University of Oregon School of Law	129
5.	Abolishing Consideration: An Argument from Coherence Azfer A. Khan Harvard University, Law School, Students	122
6.	The Perfect Match? A Closer Look at the Relationship between EU Consumer Law and Data Protection Law Natali Helberger, Frederik J. Zuiderveen Borgesius and Agustin Reyna University of Amsterdam - Institute for Information Law (IViR), University of Amsterdam - IViR Institute for Information Law (IViR) and BEUC, The European Consumer Organisation	118
7.	The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	113
8.	Legal Certainty: A Common Law View and a Critique John Linarelli Durham University	111
9.	Objective Plain Meaning in Common Law Contracts Stephen C. Mouritsen University of Chicago - Law School	95
10.	Transatlantic Data Privacy Paul M. Schwartz and Karl-Nikolaus Peifer University of California, Berkeley - School of Law and University of Cologne - Faculty of Law	94

 

Emails can be enforceable, even if a contemplated contract is never signed

A recent case out of the Southern District of New York, Nusbaum v. E-Lo Sportswear LLC, 17-cv-3646 (KBF) (behind paywall), granted summary judgment based on a chain of emails between an employer and employee. The emails were discussing a severance provision, and the last email in the chain read in relevant part, "I am agreeing to the below . . . . I will sign when I get back." The parties never executed any further document. 

The court nevertheless found an enforceable contract between them. Although it was true that the emails seemed to contemplate a final agreement, it was also true that both parties regarded the negotiations as concluded and the agreement reached at the time of the final email. The employee than spent nineteen months performing under this perceived agreement. It was clear from the emails that the parties had reached agreement on the material term, and the matter was not so complex that it needed to be reduced to a formal writing. Indeed, the employer admitted it usually did not reduce employment agreements to a formal writing. Therefore, the emails demonstrated that the parties had reached agreement and they were enforceable. 

As long as an idea is new to you, New York court finds it can serve as consideration

If you're looking for fact patterns involving consideration, a recent case out of the Northern District of New York, West v. eBay, Inc., 1:17-cv-285 (MAD/CFH) (behind paywall), has one for you. 

The following allegations appeared in the complaint: West worked as a consultant for eBay. As a consultant, West told eBay about a business plan he had which represented a "unique business model" for virtual marketplaces. West said he was cautious about sharing his business plan, and eBay promised to keep the business plan confidential. West then sent the business plan to eBay. eBay subsequently promised to compensate West if it used the business plan. eBay then developed a mobile app that West alleged used the business plan. eBay, however, stated that the app was "independently conceived" by other eBay employees. This lawsuit followed, and eBay moved to dismiss West's complaint. 

One of eBay's asserted grounds for dismissal was a lack of adequate consideration for the contract alleged in West's complaint. eBay claimed that the business plan was not "novel" and so had no value and could not serve as consideration. The court noted that under New York law, a not-novel idea can be adequate consideration if it was novel to the party to whom it was being disclosed. This requires a fact-specific inquiry. At the motion to dismiss stage, West had asserted enough facts that the business plan was idea was novel to eBay, meaning that it could serve as adequate consideration for the contract. 

There were other causes of action and arguments involved that I'm not going to get into here, but the complaint also contained promissory estoppel and unjust enrichment claims that also survived the motion to dismiss, if you're interested. 

Casual, young, fun Mexican restaurants have to be allowed to play music!

Montana brings us an anticipatory breach case about a Mexican restaurant, Bridger Del Sol, Inc. v. VincentView, LLC, DA 17-0186. 

Bridger Del Sol ("BDS") leased some property from VincentView for the purpose of operating a "casual, young, fun Mexican restaurant." I appreciate these adjectives. BDS's Mexican restaurant sounds like a place I'd want to be friends with. 

BDS opened its casual, young, fun restaurant but the upstairs tenants turned out to not be so keen on their hip new downstairs neighbor, complaining about noise and cooking smells. VincentView then sent BDS a Notice of Default and stated that it would take over the premises prior to the expiration of the lease unless BDS stopped playing music and emitting cooking odors. 

The court characterized that as an anticipatory breach on VincentView's part. As the court noted, "Restaurants commonly play music and must cook. Thus, VincentView's new rules were not reasonable or fair to BDS." This was therefore a breach of VincentView's duty of good faith and fair dealing and VincentView would have been unjustified in retaking the premises as it threatened unequivocally to do.