 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Long Fish v. Nanotronics Corp.6/9/2003
BR>
Because Nanotronics never sold any Sh-Boom products, the Fish trust has no claims against Nanotronics under the express terms of the Technology Transfer Agreement.
B. Implied Provisions
As we have indicated, as an alternative to its contention royalties are required by the express terms of the Technology Transfer Agreement, the Fish trust argues that an obligation to pay royalties on products sold by third parties, such as Patriot, should be implied.
"The rules which govern implied covenants have been summarized as follows: '(1) the implication must arise from the language used or it must be indispensable to effectuate the intention of the parties; (2) it must appear from the language used that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it; (3) implied covenants can only be justified on the grounds of legal necessity; (4) a promise can be implied only where it can be rightfully assumed that it would have been made if attention had been called to it; (5) there can be no implied covenant where the subject is completely covered by the contract.' [Citations.]" (Lippman v. Sears, Roebuck & Co. (1955) 44 Cal.2d 136, 142, quoting Cousins Inv. Co. v. Hastings Clothing Co. (1941) 45 Cal.App.2d 141, 149.)
In Lippman v. Sears, Roebuck & Co. a commercial lease required a relatively small minimum rent with the bulk of the tenant's rental obligation calculated as a percentage of the tenant's retail sales. The lease further provided, in the event the tenant assigned, sublet or abandoned the premises, the tenant would be liable for the average rent paid in the previous 12 months. When the tenant converted its store from retail sales to storage, the court found, in light of the insubstantial nature of the minimum required rental, the tenant had breached an implied covenant to remain in the retail sales business. The court further found that the tenant was liable to the landlord in the amount of the average rent paid in the previous 12 months. (44 Cal.2d at p. 145.) The court found the lease provisions with respect to rent due on assignment or abandonment in effect "liquidated the damages to the lessor from a loss of a percentage of the income from the lessee's business if it ceased to occupy the premises. It is a reasonable implication from these provisions that the parties agreed upon the same measure of damages when that loss resulted from an abandonment of the integral purpose for which the lease was made." (Id. at pp. 146-147.)
In Ellis v. Chevron, U.S.A., Inc. (1988) 201 Cal.App.3d 132, 140- 141, we refused to imply a covenant which would have permitted a commercial tenant to continue its business after expiration of a 20-year lease. In particular, although at the end of the 20-year term the lease gave the existing tenant the right to meet any competing offer on the premises, we refused to limit the type of competing offers the landlord could consider. We found at the end of the lease term the landlord was free to attempt to exploit the value of his land in any commercially reasonable manner. " he purpose of lease . . . , was to permit the [landlord] to exploit the value of his land after having given up that right for an extended period of time. Under the terms of the [lease] . . . [the tenant's] ability to continue its business beyond the term of the lease was made subordinate to that opportunity. Given this purpose the only duty which may be implied under the covenant [of good faith and fair dealing] is a duty on the part of [the landlord] to act in a commercially reasonable manner." (Ellis v. Chevron, U.S.A., Inc., supra, 201 Cal.App.3d at p. 140.)
In sum then, under t
Page 1 2 3 4 5 6 7 8 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|