Monday, February 1, 2010
IMPLIED CONTRACT VS. EXPRESS CONTRACT
“A contract implied in law, or a quasi-contract, is distinguishable from a true contract because a quasi-contract is a legal fiction, an obligation imposed by law regardless of any actual agreement between the parties.” Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 386 (Tex. App.—Fort Worth 2003, pet. ref’d); see Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex. 2000).
SOURCE: Underwood Graves v. Logan (Tex.App.- Houston [1st Dist.] Jan. 28 2010)(no express contract or implied duty for creditor to promptly provide pay-off statement for real estate note found; breach of contract claim brought by maker after sale of real estate fell through accordingly fails)
BREACH OF CONTRACT: ELEMENTS OF CAUSE OF ACTION IN TEXAS The essential elements in a suit for breach of contract are: (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671, 677 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “ DEFINITION OF BREACH OF CONTRACT, CONTRACTUAL OBLIGATION A breach of contract occurs when a party fails to perform an act that it has expressly or impliedly promised to perform.” Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 769–70 (Tex. App.—Dallas 2005, pet. denied). SOURCE: Underwood Graves vs. Logan , No. 01-08-00359-CV (Tex.App.- Houston [1st Dist.] Jan. 28 2010) (real estate transactions, creditor's failure to promptly provide pay-off amount for real estate loan not actionable; no contractual obligation to do so shown; no implied contractual duty)
Monday, January 25, 2010
ELEMENTS OF ORAL AND WRITTEN CONTRACT The elements of written and oral contracts are the same and must be present for a contract to be binding. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555 (Tex. App.—Houston [14th Dist.] 2002, no pet.). A binding contract must have an offer and an acceptance; the acceptance must be in strict compliance with the terms of the offer. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 25 (Tex. App.—Houston [14th Dist.] 2005, no pet.). ASSENT / ACCEPTANCE ELEMENT: MORE THAN MERE ACQUIESCENCE REQUIRED Generally, acceptance of an offer must be communicated to the offeror for a contract to be binding. Id. at 26. Thus, silence does not ordinarily indicate acceptance of an offer. See id. (citing Restatement (Second) of Contracts § 69(1) cmt. a (1981)); see also Tex. Ass’n of Counties County Gov’t Risk Mgmt. Pool v. Matagorda County, 52 S.W.3d 128, 132 (Tex. 2000) (noting that “as a general rule, ‘silence and inaction will not be construed as an assent to an offer’” (quoting 2 Williston on Contracts § 6:49 (4th ed. 1991))). SOURCE: The Levin Law Group, PC v. Sigmon (Tex.App.- Houston [14th Dist.] Jan. 21, 2010) (Defendant conclusively established that he did not accept the terms of the mediation specified in the letters faxed by Plaintiff, the mediation rules form, or the mediation agreement form—an essential element of plaintiff's claim alleging breach of agreement to mediate)