Maller-Saks:
Applicable law:
• Bonebrake: The predominant thrust of the agreement is Saks’ lease at The Newstate Mall. Common Law applies.
Enforceability:
Offer §24: o Maller manifested his willingness to bargain when he opened a mall which needed anchor tenants, one of which was Saks Fifth Avenue (Saks), with who he and his attorneys negotiated the contract to become one of the two anchor tenants in The Mall of Newstate.
Acceptance §50: o Saks mirrored Maller’s manifestation to assent when Saks and their lawyers negotiated with Maller to become one of the two anchor tenants in The Mall of Newstate along with Nordstrom.
Consideration(suspenders) §71: o Maller promised to allow Saks to be one of the anchor tenants in the mall for an initial …show more content…
o Saks’ CEO and lawyers do not agree that article 1, which Maller presented was the text that they had agreed upon. As they are both merchants (Maller owns The Newstate Mall and Saks is an anchor tenant in The Newstate Mall, as well as many other malls), the terms that are agreed upon would stay, while those that are not agreed upon would be out. o Since we assume the version that Saks has is the first version, those terms that are in Maller’s version, which are materially different will be out. o “If the Destruction is partial, Tenant shall complete the restoration within 90 days after the Destruction. If the Destruction is total, Tenant shall complete the restoration within 180 days after the Destruction.” Is materially different and will be left out because in the Saks’ version, rather than forcing them restore within either 90 or 180 days, it would abate the annual rent until conditions shall be remedied, and would not require the tenant to rebuild quickly.
Breach:
• Saks breached the contract when it “dragged its feet” in rebuilding its store in the Mall of Newstate.
Damages:
• Liquidated …show more content…
• Restitution §371: o Because neither side appears to be unjustly enriched, restitution is not likely to be available.
• Specific Performance §359(1): o If cash would not be an adequate remedy for Maller, he could ask for specific performance because he may want the prestige that having Saks in his mall would bring, in regard all both shoppers and higher rent for other stores.
Defenses:
• Statute of Frauds o The contract is likely to be within the statute because it is for the lease of part of a mall for more than a year. o The contract was in writing, and the writing appears to be sufficient. o Therefore, within the statute.
• Good Faith o If Maller and his legal team made the change to article 1 intentionally and not through inadvertence, then they would be acting in bad faith. §205.
Conclusion:
• If Saks’ version of article 1 is the more valid one, then contractually Saks does not have the obligation to rebuild quickly. If Maller’s version is valid, then Saks would be liable for “dragging their feet.” But if Maller’s team did not act in good faith when they changed article 1, then Saks’ version would be the only valid
Applicable law:
• Bonebrake: The predominant thrust of the agreement is Saks’ lease at The Newstate Mall. Common Law applies.
Enforceability:
Offer §24: o Maller manifested his willingness to bargain when he opened a mall which needed anchor tenants, one of which was Saks Fifth Avenue (Saks), with who he and his attorneys negotiated the contract to become one of the two anchor tenants in The Mall of Newstate.
Acceptance §50: o Saks mirrored Maller’s manifestation to assent when Saks and their lawyers negotiated with Maller to become one of the two anchor tenants in The Mall of Newstate along with Nordstrom.
Consideration(suspenders) §71: o Maller promised to allow Saks to be one of the anchor tenants in the mall for an initial …show more content…
o Saks’ CEO and lawyers do not agree that article 1, which Maller presented was the text that they had agreed upon. As they are both merchants (Maller owns The Newstate Mall and Saks is an anchor tenant in The Newstate Mall, as well as many other malls), the terms that are agreed upon would stay, while those that are not agreed upon would be out. o Since we assume the version that Saks has is the first version, those terms that are in Maller’s version, which are materially different will be out. o “If the Destruction is partial, Tenant shall complete the restoration within 90 days after the Destruction. If the Destruction is total, Tenant shall complete the restoration within 180 days after the Destruction.” Is materially different and will be left out because in the Saks’ version, rather than forcing them restore within either 90 or 180 days, it would abate the annual rent until conditions shall be remedied, and would not require the tenant to rebuild quickly.
Breach:
• Saks breached the contract when it “dragged its feet” in rebuilding its store in the Mall of Newstate.
Damages:
• Liquidated …show more content…
• Restitution §371: o Because neither side appears to be unjustly enriched, restitution is not likely to be available.
• Specific Performance §359(1): o If cash would not be an adequate remedy for Maller, he could ask for specific performance because he may want the prestige that having Saks in his mall would bring, in regard all both shoppers and higher rent for other stores.
Defenses:
• Statute of Frauds o The contract is likely to be within the statute because it is for the lease of part of a mall for more than a year. o The contract was in writing, and the writing appears to be sufficient. o Therefore, within the statute.
• Good Faith o If Maller and his legal team made the change to article 1 intentionally and not through inadvertence, then they would be acting in bad faith. §205.
Conclusion:
• If Saks’ version of article 1 is the more valid one, then contractually Saks does not have the obligation to rebuild quickly. If Maller’s version is valid, then Saks would be liable for “dragging their feet.” But if Maller’s team did not act in good faith when they changed article 1, then Saks’ version would be the only valid