Waiver can be established as a matter of law. The use and application of equitable defenses are perfect examples of this gray area. 2002, orig. Laches may bar an action where the plaintiff acquiesces in the way and manner a trust is handled for many years. Adams v. First Nat. One who retains benefits under a transaction cannot avoid its obligations and is estopped to take an inconsistent position. denied). Thus, when seeking an equitable remedy, a party must do equity and come to the court with clean hands. denied). 432 S.W.2d at 749. The court further ordered that the sister take nothing on all her claims and ordered her to pay attorneys fees for the trustee. This Q&A covers defenses to contract formation, performance, and damages. There are two basic elements to an estoppel by laches defense: One of the most common uses of laches is when a plaintiff delays filing to avoid dealing with witnesses that may hurt their recovery. Oct. 30, 2007). 1999, pet. At the core of these equitable defenses is the concept that a party should not be allowed to act inconsistently: have knowledge of conduct and fail to object to it for a period of time (thereby tacitly agreeing to the conduct) and then later raising claims against the trustee for the same conduct. App.Fort Worth 1999, pet. No. You can also claim that the contract was not finalized. The record shows that Robert initiated approximately fifty real estate transactions in which he invested Trust assets. Deborah agreed to all of these transactions. Lack of meeting of the minds. In this circumstance, the trustee may want to raise certain equitable defenses to those claims, such as laches, ratification, waiver, and estoppel. See also Collins v. Moroch, 339 S.W.3d 159, 164 (Tex. App.Dallas 1991, no writ). Co. v. Ed Bell Invs., 864 S.W.2d 211, 215 (Tex. your case. Where a party affirms a contract through his actions and conduct after knowledge of the facts, the defense of waiver or ratification is established as a matter of law. Civ. Lumbermens Mut. Law, Government Submit your case to start resolving your legal issue. However, the wife submitted evidence that she was led into the agreement by the husbands fraud and threats. A sister filed a breach of fiduciary duty claim based on this failed investment. It is common to argue all the defenses that are available to you, which might include one or more of the . NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 524, 525 (Tex. Prior to joining LegalMatch, Ken practiced Law for four years in San Francisco, California, handling a wide range of cases in areas as diverse as Family Law (divorces, child custody and support, restraining orders, paternity), Real Estate (property ownership, landlord/tenant disputes for residential and commercial property), Criminal Law (misdemeanors, felonies, juvenile, traffic infractions), Personal Injury (automobile accidents, medical malpractice, slip and fall), Entertainment (recording contracts, copyright and trademark registration, licensing agreements), Employment Law (wage claims, discrimination, sexual harassment), Commercial Law and Contracts (breach of contract, drafting contracts), and San Francisco Bankruptcy (chapter 7 personal bankruptcies). It is not uncommon for beneficiaries to sue a trustee for actions that the beneficiaries had knowledge of but where they failed to object to that conduct for a period of time. Houtchens v. Matthews, 557 S.W.2d 581, 585 (Tex. 325, 167 S.W.2d 506 (1943); Newsom v. Starkey, 541 S.W.2d 468 (Tex. Faulty/Defective Products/Services (Auto, Drug), Investments (Annuities, Securities, IPOs), (this may not be the same place you live), Online Law Under this defense, the person or entity being accused of a breach of contract argues that the other party is not entitled to a remedy under Florida. Specifically: The same evidence that created a fact issue as to [the husbands] extrinsic fraud precludes a finding that [he] conclusively proved his affirmative defense of estoppel, whether couched in terms of judicial or quasi-estoppel. Law, Intellectual Wrongful or tortious interference with contracts happens when a third-party intentionally causes a contracting party to commit a breach of contract. In re Marriage Stroud,376 S.W.3d 346, 356-57 (Tex. Additionally, quasi estoppel is a defense that prevents a party from obtaining a benefit by asserting a right to the disadvantage of another that is inconsistent with the partys previous position. DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Faulty/Defective Products/Services (Auto, Drug), Investments (Annuities, Securities, IPOs), (this may not be the same place you live), Online Law They may accomplish this through inducement, or by disrupting a party's ability to perform as detailed by the terms of the contract. There are three types of claims that a laches defense usually apply to: specific performance, contract rescission, and contract reformation. Acts which, although in affirmance of the contract, do not indicate any intention to waive the fraud, cannot be held to operate as a waiver. Dunnagan v. Watson, 204 S.W.3d 30, 41 (Tex. Laches is an equitable defense that a party can assert when a non-breaching party takes an unreasonably long amount of time to file a suit for relief. It is not uncommon for beneficiaries to sue a trustee for actions that the beneficiaries had knowledge of but where they failed to . Id. Fort Worth 2011, no pet.). Burton v. Natl Bank of Commerce, 679 S.W.2d 115 (Tex. In re EGL Eagle Global Logistics, LP, 89 S.W.3d 761, 766 (Tex. Defenses Related to Contract Formation Duress 1988, writ denied). 823 S.W.2d at 765. Facility v. Personnel Servs., Inc., 895 S.W.2d 889, 894 (Tex. The contract contains a unilateral mistake that was material to the agreement and the other party knew or should have known of the mistake. App.El Paso 1975, writ refd n.r.e.) Civ. A Q&A guide to common defenses to contract claims under Florida common law. Sometimes, the application or inapplication of equitable defenses can be proven as a matter of law by a judge; but more often, these defenses will have be resolved by a fact finder (by a judge, or if requested, by a jury). Specifically, [the wifes] summary-judgment evidence that her approval and acceptance of the terms of the settlement were the product of [the husbands] threats and misrepresentations creates fact issues as to the validity of her acceptance of benefits and representations in the documents she signed. Adams v. First Nat. Beneficiaries may argue that the trustee has acted with unclean hands and therefore may not take advantage of equitable defenses. Therefore, Deborahs claims for breach of fiduciary duty are barred by the affirmative defense of quasi-estoppel. If the removal of this witness severely limits the breaching partys defense potential or causes significant economic harm, then they can use a laches defense to limit the harm. Statement in compliance with Texas Rules of Professional Conduct. 1996); Bass & Co. v. Dalsan Props.Abilene, 885 S.W.2d 572, 577 (Tex. App.Dallas 2005, no pet. All transactions except Bighorn were successful and the Trust benefitted from those prior investments. at 765. Specifically, the court found [i]n this case, by agreeing to be bound by the lease, [plaintiffs] did not ratify the tortious conduct that cause them to have to accept the lease or else lose the property. Accord and satisfaction is a settlement of an unliquidated debt. App.Tyler March 5, 2019, pet. Also, the beneficiaries may also argue other theories prevent the use of the equitable defenses. Improvement Assn., 23 S.W.3d 398, 403 (Tex. See also Collins v. Moroch, 339 S.W.3d 159, 164 (Tex. Estate 1957). App.Amarillo 1991, no writ). Co., 140 Tex. App.Houston [1st Dist.] For example, inVessels, the court overturned summary judgment on the defendants defense of ratification. Summary judgment should not have been granted on the basis of ratification. Id. Civ. Contracts which will not be performed within a year; A promise to pay the debt of a decedent; and. USTR Releases 2023 Special 301 Report on Intellectual Property Washington Signs Into Law an Act for Consumer Health Data Privacy: Dont Look Twice, Its Alright The FCC Pulls Back the Curtain on Trending in Telehealth: April 18 24, 2023. Id. Id. The contract limits the amount of damages that can be recovered. Ken holds a J.D. Legal issues surrounding contract formation, enforcement, and failures can have a huge economic impact on all parties involved. Where one partys tortious conduct has placed the other party in a position of forced conducti.e. The record shows that Robert initiated approximately fifty real estate transactions in which he invested Trust assets. An express ratification is not necessary; any act based on a recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it has the effect of waiving the right of rescission. Example: A party to the contract is 16 years old or is mentally incompetent. App.Dallas 1976, writ refd n.r.e.). Law, Products A contract which contains agreements for an illegal act, such as drug trafficking or murder is unenforceable; Unconscionability. App.Dallas Jun. Id. In the broad body of laws called contract law, there are, in general, four types of defenses which may be used against a claim of a breach of contract, including: Anticipatory repudiation; Defense by waiver; Tortious interference; and Unclean hands. Id. App. Further, quasi estoppel may be asserted even though there has been no concealment or misrepresentation on one side, and no ignorance or detrimental reliance on the other side. Laches applied to bar such a claim. in Spanish, both from Auburn University. v. Cadence McShane Corp., No. The elements of ratification are: (1)approval by act, word, or conduct; (2)with full knowledge of the facts of the earlier act, and (3)with the intention of giving validity to the earlier act. Co., 925 S.W.2d 640, 643 (Tex. Further, waiver is largely a question of intent. Jennifer joined LegalMatch in 2020 as a Legal Writer. 1971)). The court held that no one has the right to remain inactive when action is demanded while another party so changes his position that great damage will be inflicted by granting the remedial writ. Steubner Realty 19 v. Cravens Road 88, 817 S.W.2d 160, 164 (Tex. Further, the doctrine of waiver is applicable to all rights and privileges to which a person is legally entitled. A court may use the states statute of limitations in determining if a delay causes harm or prejudice, and this deadline can still prevent a plaintiff from seeking relief even when the breaching party is not harmed by said delay. App.Amarillo 1991, no writ). Performance of the contract has become impossible or the purpose of the contract has become frustrated. Defenses which may be available to equitable remedies include: If a non-breaching party seeks either monetary damages or equitable relief, it is important to ensure that none of the violations above apply to the partys actions during the contractual process. 1987). App.Dallas 1992, writ denied). denied). To embed, copy and paste the code into your website or blog: Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: [Ongoing] Read Latest COVID-19 Guidance, All Aspects, [Hot Topic] Environmental, Social & Governance. Steubner Realty 19 v. Cravens Road 88, 817 S.W.2d 160, 164 (Tex. App.Houston [14th Dist.] New Antidumping and Countervailing Duty Petition on Non-Refillable Steel Cylinders I-9 Verification and Compliance: Navigating New Nuances Post-COVID, Foreign Sponsors Breaking Into The Us Renewables Market: Challenges And Solutions, Labor and Employment Update for Employers May 2023, Global Mobility Opportunities And Challenges: How To Navigate A Global Workforce. Vessels, 823 S.W.2d at 762;Theriot v. Smith, 263 S.W.2d 181, 183 (Tex. If one party violates a contract, the other party will likely suffer economic losses. To establish the affirmative defense of accord and satisfaction, the defendant must show that in the new contract: (1) the parties agree to discharge the existing obligation; (2) the parties agree that one party will perform and the other will accept something different from what each expected from the existing obligation; (3) the parties unmistakably communicate that the different performance will discharge the existing obligation; (4) the agreement to discharge the existing obligation is plain, definite, certain, clear, full, explicit, and not susceptible of any other interpretation; and (5) the parties agreement must be accompanied by acts and declarations that the creditor is bound to understand. Honeycutt v. Billingsley, 992 S.W.2d 570, 576-77 (Tex. The plaintiffs had agreed to be bound by the terms of a mineral lease following the settlement of a lawsuit with the FDIC. Thus, to find waiver through a partys conduct, intent must be clearly demonstrated by the surrounding facts and circumstances. Hardship, which is a defense that is cited when a plaintiff can prove that a breach has occurred but forcing the breaching party to perform would cause severe hardship. There are several remedies for breach of contract, such as award of damages , specific performance , rescission, and restitution. Pennsylvania Medical Supply Company Agrees to $5 Million Settlement. App.Houston [1st Dist.] A contract is an enforceable promise. Library, Bankruptcy App.Waco 1981, writ dismd) (petitioners affidavit created fact issue on whether she accepted the benefits due to financial need and duress precluding summary judgment on estoppel). Breach of Contract - Essential Factual Elements. Steubner Realty 19, 817 S.W.2d at 164. LegalMatch Call You Recently? An equitable remedy is designed to provide legal relief to a non-breaching party in a contractual relationship. Copyright 1999-2023 LegalMatch. For example, inIn Re Marriage Stroud, the wife accepted benefits of the terms of a divorce settlement, which she later sought to challenge in court. It includes common defenses to contract formation, contract performance, the plaintiff's ability to bring the lawsuit, and damages. proceeding). in Criminology and Criminal Justice and a B.A. While breach of contract actions seek monetary damages, sometimes the plaintiff seeks an equitable remedy rather than a financial one. 2 v. Callewart, 837 S.W.2d 693, 699 (Tex. Deborah agreed to all of these transactions. App.Waco 1957, writ refd n.r.e.). Garver v. First Natl Bank, 432 S.W.2d 745 (Tex. David'sfinancial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class You are responsible for reading, understanding and agreeing to the National Law Review's (NLRs) and the National Law Forum LLC's Terms of Use and Privacy Policy before using the National Law Review website. Contents What Does a Laches Defense Accomplish? Bldg. Beneficiaries should not generally be allowed to lay behind the log, have knowledge of a trustees conduct, not object to such conduct for a period of time, and then later complain in litigation of that conduct. denied). However, it was the defendants tortious conduct which placed the plaintiffs in a position of either having to accept the lease or else lose the property. 2002, orig. (citingLoggins v. Gates, 301 S.W.2d 525, 527 (Tex. Bldg. The defense involves a new contract, either express or implied, in which the existing obligation is released by agreement of the parties through means of [a] lesser payment tendered and accepted.Richardson v. Allstate Tex. Law, Employment A Checklist of common defenses available to a defendant when responding to a petition or complaint that pleads breach of contract under Texas common law. where the tortious conduct leaves the innocent party with no real choice but to act in a manner consistent with the tortious conduct, the innocent partys actions do not constitute ratification of the tortious conduct. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. Depending on the case at hand, the unclean hands defense can be either an equitable defense or an affirmative defense. Slowing the Spread of Litigation: An Update on First Circuit COVID-19 Has Your Business Attorney Met Your Estate Planning Attorney? & Mort. at 513. Sometimes the contract and relationship is too important to toss out entirely and drawing up new terms on the same subject matters serves both parties positively. App.Corpus Christi 2003, no pet.) The absence of an adequate remedy at law. The project failed, and the trusts lost the $2.1 million. Did Gulbenkian v. Penn, 151 Tex. For example, in Garver, a husband and wife filed suit against a bank seeking recovery of an interest in the proceeds of oil and gas leases that had been deposited with the bank for the benefit of the heirs of the wifes parents. App.Texarkana 1992, writ denied). The sister appealed. Judicial Council of California Civil Jury Instructions (2022 edition) Download PDF. App.Dallas 2007, no pet.). Law, Employment Institute of Public Law. For instance, a certain finishing material may become unavailable, forcing the owner and contractor to agree on a backup preference. 12-17-00234-CV, 2019 Tex. But if the plaintiff takes too long to file their lawsuit, a defendant may be able to assert an equitable defense known as laches. LegalMatch Call You Recently? . Fortune Prod. A. at 764. Co. v. Conoco, Inc., 52 S.W.3d 671, 677 (Tex. The sale of goods over a specific amount. Frank agrees to accept a radio worth $50 in exchange for discharging the debt. Defense of Unenforceability 3. App.Dallas 2002, pet. 1996);Bass & Co. v. Dalsan Props.Abilene, 885 S.W.2d 572, 577 (Tex. More specifically, to invoke equitable doctrines such as estoppel, waiver, or ratification the defendant must come with clean hands.Ford Motor Co. v. Motor Vehicle Bd., 21 S.W.3d 744, 758 (Tex. Id. Vessels, 823 S.W.2d at 762. While waiver may be inferred from conduct, waiver by implication should not be inferred contrary to the intention of the party whose rights would be injuriously affected thereby, unless the opposite party has been misled to his or her prejudice. In this circumstance, the trustee may want to raise certain equitable defenses to those claims, such as laches, ratification, waiver, and estoppel. Any retention of the beneficial part of the transaction affirms the contract and bars an action for rescission as a matter of law. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. Law, Government denied), a court found that a trustee was not barred from challenging an oil and gas lease under an equitable ratification theory by accepting royalty payments. Specifically: The same evidence that created a fact issue as to [the husbands] extrinsic fraud precludes a finding that [he] conclusively proved his affirmative defense of estoppel, whether couched in terms of judicial or quasi-estoppel. App.Austin 1995, no writ) (estoppel);Pickett v. Heygood, Orr & Reyes, L.L.P., No. App.Dallas 1987, writ denied); Brodrick Moving & Storage Co. v. Moorer, 685 S.W.2d 75, 77 (Tex. Estate K.B. A false representation may be accomplished by conduct, or when one has a duty to speak, by mere silence. v. Prize Energy Res., L.P.,510 S.W.3d 497, 505 (Tex. Search manuals and training by topics such as DWI. 16 people have successfully posted their cases, 5 people have successfully posted their cases, 10 people have successfully posted their cases, 6 people have successfully posted their cases, 20 people have successfully posted their cases, 7 people have successfully posted their cases, 9 people have successfully posted their cases. Civ. At the core of these equitable defenses is the concept that a party should not be allowed to act inconsistently: have knowledge of conduct and fail to object to it for a period of time (thereby tacitly agreeing to the conduct) and then later raising claims against the trustee for the same conduct. App.Houston [14th Dist.] This Q&A covers defenses to contract formation, performance, and damages. Therefore, Deborahs claims for breach of fiduciary duty are barred by the affirmative defense of quasi-estoppel. 1991, no writ). denied). The trustee may inadvertently use its standard formula for compensation, which was technically too much and over the amount allowed under the trust document. Tortious interference laws are in place to allow parties the . In 2007, the trustee of four trusts invited his mother, the primary beneficiary, and his siblings, also beneficiaries, to participate in a real estate investment that he created by allowing the use of trust funds. Daniel v. Goesl, 161 Tex. 1969)). A false representation may be accomplished by conduct, or when one has a duty to speak, by mere silence. The most common defenses to enforcement of a contract or liability for damages are: Enforcement of the contract would violate public policy. Acts which, although in affirmance of the contract, do not indicate any intention to waive the fraud, cannot be held to operate as a waiver. Please provide a valid Zip Code or City and choose a category, Please select a city from the list and choose a category. 2000) (quoting Kennedy v. Bender, 104 Tex. 2000, pet. Vessels, 823 S.W.2d at 762. See Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex. App. Quasi estoppel refers to conduct such as ratification, election, acquiescence, or acceptance of benefits. She holds a B.A. Lloyds, 235 S.W.3d 863, 865 (Tex. Bank of Bells/Savoy, 154 S.W.3d 859 (Tex. She holds a J.D. App.Dallas 1984, no writ). 20, 2019, pet. (quasi-estoppel); Spangler v. Jones, 861 S.W.2d 392, 397-98 (Tex. 1971)). Most defenses to a breach of contract claim are referred to as "affirmative defenses." As a legal matter, this means that the party raising the defense (the person sued for breach of contract) has the burden of proving the defense, if the dispute goes to trial. When the promise is fulfilled, then the contract terms have been satisfied. In order to prove the intent required for ratification, a party must show that the opposing party, after obtaining knowledge of the facts of the transaction, either (1)continued to accept benefits under the transaction or (2)conducted himself so as to recognize the transaction as binding. When two or more parties enter into a contract, they make a promise to uphold their end of the bargain based upon the terms of the contract which are agreed to by the parties involved. op.) In re EGL Eagle Global Logistics, LP, 89 S.W.3d 761, 766 (Tex. Later, a beneficiary is in conflict with the trustee and then, for the first time, alleges that the trustee has breached its duties by overcompensating itself. It also covers procedural and equitable defenses specific to breach of contract. Where one party claims that the other has breached a contract, there may be the availability of the defense of "equitable estoppel." The term "estoppel" refers to "stopping" someone from taking a certain position that differs from a prior position-and "equitable" refers to that certain degree of fairness that is expected of . App.Dallas Jun. Lack of capacity. At the core of these equitable defenses is the concept that a party should not be allowed to act inconsistently: have knowledge of conduct and fail to object to it for a period of time (thereby tacitly agreeing to the conduct) and then later raising claims against the trustee for the same conduct. Domestic Violence Training for Frontline Court Staff, Example: Dan hires Tom to paint his house, but the house burns down before the contract can be performed. This Q&A covers defenses to contract formation, performance, and damages. (Livingston v. Estoppel prevents one party who has induced another to act in a particular way from adopting an inconsistent position, attitude, or course of conduct that will cause loss or injury to the other person. All rights reserved. The trustee, however, has disclosed the actual compensation it paid itself on quarterly statements. The use and application of equitable defenses are perfect examples of this gray area. 1911)) (internal quotation marks omitted). For example, if a key witness is sick or elderly, then the plaintiff may try to wait until the person passes to begin legal procedures. The plaintiffs had agreed to be bound by the terms of a mineral lease following the settlement of a lawsuit with the FDIC. Breach of contract claims are subject to many defenses, App.Waco 1981, writ dismd) (petitioners affidavit created fact issue on whether she accepted the benefits due to financial need and duress precluding summary judgment on estoppel). A trust document may not allow for reasonable compensation, but have a specific formula or limit on compensation. LEXIS 4048, 2008 WL 2266133, at *5 (Tex. The Beneficiaries may argue that they did not know all of the material facts to make an informed decision in accepting the trustees conduct and/or they were misled by untrue statements by the trustee. In order for the parties to fulfill their obligations under the contract, they must perform their duties. App.Dallas 1987, writ denied);Brodrick Moving & Storage Co. v. Moorer, 685 S.W.2d 75, 77 (Tex. denied). LegalMatch, Market The elements of waiver include the following: (1) existing right, benefit, or advantage; (2) actual or constructive knowledge of its existence; and (3) an actual intent to relinquish the right inferable from the conduct. Ins. The National Law Review is a free to use, no-log in database of legal and business articles. Id. v. Prize Energy Res., L.P., 510 S.W.3d 497, 505 (Tex. . Accord and satisfaction can apply to torts as well as breach of contract claims. 1999, pet. 1988, writ denied). An equitable remedy is designed to provide legal relief to a non-breaching party in a contractual relationship. For example, in Bank of Am., N.A. Dist. The court further ordered that the sister take nothing on all her claims and ordered her to pay attorneys fees for the trustee. Breach of Contract, Next: Accord and satisfaction can apply to torts as well as breach of contract claims. 16 people have successfully posted their cases, 5 people have successfully posted their cases, 10 people have successfully posted their cases, 6 people have successfully posted their cases, 20 people have successfully posted their cases, 7 people have successfully posted their cases, 9 people have successfully posted their cases. (mem. Co. v. Conoco, Inc., 52 S.W.3d 671, 677 (Tex. Practice tip. The existence of imminent harm. The elements of equitable estoppel are: (1)a false representation or concealment of material facts, (2)made with the knowledge, actual or constructive, of those facts, (3)to a party without knowledge, or the means of knowledge, of those facts, (4)with the intention that it should be acted on, and (5) the party to whom it was made must have relied or acted on it to his prejudice. Did Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials. In general, there are two types of remedies that a party can receive for breach of contract: legal remedies or equitable remedies. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. Sandi Samms v. Autumn Run Cmty. Also, the beneficiaries may also argue other theories prevent the use of the equitable defenses. App.Tyler 1993, no writ). App.Fort Worth 1977, writ dism.). at 350-51. Id. If the non-breaching party lied or made misrepresentations to the other parties during the negotiation and formation of the contract, a court may refuse to grant the equitable remedy that the non-breaching party seeks; Mistake, which occurs when a factual or legal mistake is made that makes the contract unenforceable; and. There can be no waiver unless so intended by one party and so understood by the other. Id. Example: The contract states that in the event of a minor breach, the damages will be $100 regardless of the actual loss. Many of these defenses can also apply to lawsuits which seek monetary damages. Prods. The bank had handled the deposits for many years, as directed by the estates executors, who were the wifes brothers. LEXIS 8586, at *45 (Tex. App.Eastland 1963, no writ). 1965). Critically, the evidence must establish the parties assent to the new agreement, and [t]here must be an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation. Ind. Equitable Remedies for Contract Actions: Texas To obtain a permanent injunction under the common law in Texas, the applicant typically must plead and prove: The existence of a wrongful act.
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