Jun 4, 2021

The Importance of Follow-Up/Oversight on Contract Provisions

Companies should be aware that even when they have a written contract that spells out the parties’ responsibilities, e.g., pay rent monthly, they need to monitor compliance with those responsibilities.  Failure to do so – sloppy follow-up – can result in a “quasi-new agreement.” The Georgia Court of Appeals’ recent decision in The Hatchett Firm, P.C. v. Atlanta Life Financial Group, Inc., 358 Ga. App. 607 (2021), vividly illustrates this point.  In that case, a sublessee paid partial rent payments for ten months and no rent for 6 months.  The sublessor sued the subtenant for the unpaid past due rent… Read more

Feb 5, 2020

When in Doubt Write it Out: Modifying, Cancelling, Revoking or Rescinding a Contract Subject to the Statute of Frauds


When entering into a contract, parties always have to ask themselves whether the contract must be written down and signed. Under the Georgia Statute of Frauds, contracts for (1) marriage; (2) sale of real property; (3) guaranteeing another’s debts; (4) terms of longer than one-year; (5) sale of goods for more than $500; (6) executor or other estate representative, promising to pay damages out of his/her own estate; (7) reviving a debt after the passage of the statute of limitations; and (8) commitment to lend money, must be in a writing and signed by the party to be charged therewith…. Read more

Dec 7, 2017

“We Have a Deal” Email Established an Enforceable Settlement, and “Standard” Release Was Not a Material Term of the Settlement

Email on Keyboard

In Scheinmann v. Dykstra, 2017 WL 1422972 (S.D.N.Y. Apr. 21, 2017), a New York federal court considered the issues of whether a series of emails was sufficient to establish an enforceable settlement agreement between the parties, and whether a “standard” release was part of the deal. In this lawsuit against a former Mets baseball player, Lenny Dykstra, brought by his social media manager, the federal court held that emails constituted an enforceable settlement, even without a formal settlement agreement and even though one of the parties expected a “standard” release to be part of the settlement. On March 13, 2017,… Read more

Jul 21, 2017

The Importance of Retaining Evidence of Receipt

envelopes mail

A contractor’s ability to recover on a claim may turn on whether the contractor provided timely notice of the claim to the project owner.  Claim notice requirements in contracts are “…legal and binding on the parties in the absence of special circumstances, such as waiver or estoppel.”[i] Claim notice provisions in construction contracts vary in their specific requirements and should be reviewed on each project, but they typically require that the party making a claim provide written notice delivered in person or sent by registered, certified, or statutory overnight mail (e.g. Fed Ex) to the other party.[ii]   But what happens… Read more

Mar 31, 2016

Material Breach and the Consequences of Being Wrong

Authored by: Scott Cahalan and Darren Rowles It’s not uncommon for parties to a construction contract to exchange heated letters accusing each other of material breach of their contract.  Determining whether a breach occurred is easy compared to determining whether that breach was material. A breach is a failure to perform an express or implied obligation under a contract.  Whether that breach is material turns on the facts and circumstance surrounding the formation of the contract and is often a matter of degree.  For instance, a seller would breach a contract to sell a 1964 metallic mint green Buick Skylark… Read more

May 19, 2015

Force Majeure Events and Contract Clauses

Recent events have again demonstrated the fragility of the network of overseas suppliers for industries ranging from automobile manufacturers to big-box retailers. Supply disruptions can be caused by labor disputes at port facilities; by piracy, cyclones or other events that disrupt goods-in-transit; and by natural or man-made events such as earthquakes or armed conflicts that disrupt production or transportation in an overseas country. Unfortunately, the construction industry is not immune to disruptions in the supply of goods from foreign sources. Most construction contracts include a force majeure provision; however, not all such provisions are created equal. Some provisions do not… Read more

Dec 16, 2014

AIA Additions and Deletions Report May Be More Important Than You Think

The parol evidence rule is a substantive common-law rule that prevents a party to an integrated (complete) written contract from presenting extrinsic evidence that contradicts or adds to the written terms of the contract unless one of a handful of narrow exceptions applies. The rule means that one cannot use evidence of prior negotiations to alter the terms of an integrated (complete) written contract. The American Institute of Architect’s (“AIA”) proprietary software requires changes in the form agreement to be shown as redlined or strikethrough text, or as an Additions and Deletions Report appended to the end of the document. For… Read more

Feb 26, 2014

Utility Interference Work in New York

Imagine you are a contractor that has decided to pursue work with the city. You are lucky enough to secure a lucrative contract to upgrade the city’s infrastructure, but you discover that certain other infrastructure owned by a private utility must be relocated to complete your work. Now imagine that the private utility refuses to relocate its infrastructure and refuses to enter into a contract to allow you to relocate the utility’s interfering infrastructure. The utility’s lack of cooperation is likely to cause significant and costly delays on your job with the city. What can you do? In Perfetto Contracting… Read more