[For Hyman The Retard] Breach of Third-Party Beneficiary Contract, in Florida
Breach of Third-Party Beneficiary Contract [1] Elements and Case Citations (1) Defendant and a third-party entered a valid contract; (2) Plaintiff is not a party to the contract; (3) The parties to the contract intended that the contract primarily or directly benefit plaintiff or a class of parties of which plaintiff is a member; (4) The contract is breached; (5) Plaintiff suffered damages as a result of the breach. ___ Florida State Courts Supreme Court: Thompson v. Commercial Union Insurance Co. of N.Y., 250 So. 2d 259, 262 (Fla. 1971). First District: Clark and Co., Inc. v. Dept. of Insurance, 436 So. 2d 1013, 1016 (Fla. 1st DCA 1983) Second District: Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 400 (Fla. 2d DCA 2000) Third District: Networkip, LLC v. Spread Enters., Inc., 922 So. 2d 355, 358 (Fla. 3rd DCA 2006) Fourth District: Jenne v. Church Tower, Inc., 814 So. 2d 522, 524 (Fla. 4th DCA 2002);Carretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So. 2d 1028, 1031 (Fla. 4th DCA 1994). Fifth District: Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp., 850 So. 2d 536, 543 (Fla. 5th DCA 2003), rev. denied 860 So. 2d 977 (Fla. 2003) Florida Federal Courts Eleventh Circuit: Blu-J, Inc. v. Kemper CPA Group, 916 F. 2d. 637, 640 (11th Cir. 1990) [2] Defenses to Claim for Breach of Third-Party Beneficiary Contract (1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses See § 60. (2) Statute of Limitations: § 95.11(2)(b), Fla. Stat. (five years); but see §95.11(5)(a)(one-year statute of limitation for action for specific performance of a contract). (3) The contract does not evidence any intent to benefit a third party. Hollywood Lakes Country Club, Inc. v. Community Assn Serv., Inc., 770 So. 2d 716, 719 (Fla. 4th DCA 2000); Canal Ins. Co. v. Hartford Ins. Co., 415 So. 2d 1295, 1299 (Fla. 1st DCA 1982). (4) Defendants obligation to perform under the contract may be excused under the doctrine of commercial frustration when the purposes of the contract, or those which defendant bargained for, have become ``frustrated because of the failure of consideration, or impossibility of performance by the other party. See Home Design Center Joint Venture v. County Appliances of Naples, Inc., 563 So. 2d 767, 770 (Fla. 2d DCA 1990). (5) Duress requires severe pressure or other influence that destroys the defendants free will, and forces the defendant to do an act or enter into a contract. See Franklin v. Wallack, 576 So. 2d 1371, 1373 (Fla. 5th DCA 1991) (J. Sharp, dissenting); see also Restatement (Second) of Contracts §§ 174-177 (1981). (6) Statute of Frauds: Fla. R. Civ. P. 1.110(d); see also §§ 672.201, 672.206 (Florida U.C.C.), 678.319 (sale of securities), 680.201 (leasing), 725.201 (payment of anothers debt), Fla. Stat; Restatement (Second) of Contracts §§ 110, 130 (1981). (7) The implied covenant of good faith and fair dealing requires that each party act consistently with, and take no actions to frustrate, the contracts purpose, with the exception that Florida courts will not employ the covenant to negate a contracts express terms. Restatement (Second) of Contracts § 205 (1981). (8) Impossibility of performance is a defense to breach of contract when the factual situation renders one partys performance under the contract impossible. See Home Design Center Joint Venture v. County Appliances of Naples, Inc., 563 So. 2d 767, 770 (Fla. 2d DCA 1990). (9) Contract enforcement is unconscionable when the contractual term was unreasonable and unfair (substantive unconscionability) at the time the parties entered the contract (procedural unconscionability). See Kohl v. Bay Colony Club Condominium, Inc., 398 So. 2d 865, 868 (Fla. 4th DCA 1981), rev. denied, 408 So. 2d 1094 (Fla. 1981); see also § 672.302, Fla. Stat.; Restatement (Second) of Contracts § 208 (1981). (10) Mistake: (a) Mutual mistake, which renders a contract voidable when both parties, at the time of making a contract, were mistaken as to a basic assumption of the contract that has a material effect on the parties performances under the contract. Continental Assur. Co. v. Carroll, 485 So. 2d 406, 409 n.2 (Fla. 1986); see also Restatement (Second) of Contracts § 152 (1981); and (b) Unilateral mistake, which allows a party to void a contract when the party, at the time of making a contract, was mistaken as to a basic assumption of the contract that has a material effect of the parties performances which is adverse to the mistaken party. Orkin Exterminating Co., Inc. v. Palm Beach Hotel Condominium Assoc., Inc., 454 So. 2d 697, 699 (Fla. 4th DCA 1984); see also Restatement (Second) of Contracts § 153 (1981). (11) Repudiation: An obligee sued for breach of contract may assert the defense of repudiation when the obligor first repudiated his or her duty of performance. See Southern Crane Rentals, Inc.
Re: Breach of Third-Party Beneficiary Contract, in Florida
On 4/20/2010 4:55 PM, Alexander Terekhov wrote: Breach of Third-Party Beneficiary Contract [1] Elements and Case Citations (1) Defendant and a third-party entered a valid contract; (2) Plaintiff is not a party to the contract; (3) The parties to the contract intended that the contract primarily or directly benefit plaintiff or a class of parties of which plaintiff is a member; (4) The contract is breached; (5) Plaintiff suffered damages as a result of the breach. Why are you describing this? In the U.S., there have been no such suits with respect to the GPL or other open licenses. The GPL itself is not such a license, but even if it were, the only lawsuits have been brought by rights holders. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Breach of Third-Party Beneficiary Contract, in Florida
Hyman Rosen wrote: On 4/20/2010 4:55 PM, Alexander Terekhov wrote: Breach of Third-Party Beneficiary Contract [1] Elements and Case Citations (1) Defendant and a third-party entered a valid contract; (2) Plaintiff is not a party to the contract; (3) The parties to the contract intended that the contract primarily or directly benefit plaintiff or a class of parties of which plaintiff is a member; (4) The contract is breached; (5) Plaintiff suffered damages as a result of the breach. Why are you describing this? Because that's the right way to enforce third-party beneficiary contracts, silly Hyman. no such suits with respect to the GPL or other open licenses. And thus no enforcement and hence no compliance, you retard. http://news.slashdot.org/story/09/11/10/1540242/SFLC-Finds-One-New-GPL-Violation-Per-Day News: SFLC Finds One New GPL Violation Per Day LOL. regards, alexander. P.S. Every computer program in the world, BusyBox included, exceeds the originality standards required by copyright law. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Breach of Third-Party Beneficiary Contract, in Florida
On 4/20/2010 5:20 PM, Alexander Terekhov wrote: Because that's the right way to enforce third-party beneficiary contracts But the GPL is not a third-party beneficiary contract, it's a simple copyright license. You are very confused. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Breach of Third-Party Beneficiary Contract, in Florida
Hyman Rosen writes: You are very confused. I don't think he is confused at all. It's all quite deliberate. He's trolling. -- John Hasler jhas...@newsguy.com Dancing Horse Hill Elmwood, WI USA ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Breach of Third-Party Beneficiary Contract, in Florida
Hyman Rosen wrote: On 4/20/2010 4:55 PM, Alexander Terekhov wrote: Breach of Third-Party Beneficiary Contract [1] Elements and Case Citations (1) Defendant and a third-party entered a valid contract; (2) Plaintiff is not a party to the contract; (3) The parties to the contract intended that the contract primarily or directly benefit plaintiff or a class of parties of which plaintiff is a member; (4) The contract is breached; (5) Plaintiff suffered damages as a result of the breach. Why are you describing this? In the U.S., there have been no such suits with respect to the GPL or other open licenses. The GPL itself is not such a license, but even if it were, the only lawsuits have been brought by rights holders. And the rights holders are excluded as beneficiaries of the GPL contract. The distribution is to other all third parties. 23. Under the License, Mr. Andersen grants certain permissions to other parties to copy, modify and redistribute BusyBox so long as those parties satisfy certain conditions. In particular, Section 2(b) of the License, addressing each Licensee, states: You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License... ROFL: to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties to all third parties Every complaint filed by the SFLC is about making source code available to all third parties. People who distribute GPL code are *parties* to the GPL contract and are specifically *excluded* from the class of beneficiaries designated as all third parties. Only members of the class all third parties may suffer loss of benefits (injury) from non-compliance with the GPL terms. That's why *no* person distributing code under the GPL has Article III standing to enforce the GPL. The very *first* thing a contract lawyer is trained to look for in a contract dispute is who benefits? If no benefit is directed to a party then that party can suffer no injury from a contract breach. Samsung Answer: FIFTEENTH AFFIRMATIVE DEFENSE (Lack of Standing) 50. As a further, separate and distinct Fifteenth Affirmative Defense to the Complaint and each claim for relief alleged therein, Defendant alleges that Plaintiffs lack standing to sue Defendant for copyright infringement. Best Answer: SECOND AFFIRMATIVE DEFENSE 37. Plaintiffs lack standing. Humax Answer: SECOND AFFIRMATIVE DEFENSE (Lack Of Standing) 37. Either or both Plaintiffs lack standing to bring the claims alleged in the Complaint. JVC Answer: As And For A Second Defense 37. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs lack standing to assert them. Western Digital Answer: TENTH DEFENSE (STANDING) 46. Upon information and belief, Plaintiffs lack standing. There certainly are a lot of GPL crank lawyers who don't think the plaintiffs have standing. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Breach of Third-Party Beneficiary Contract, in Florida
On 4/20/2010 10:41 PM, RJack wrote: And the rights holders are excluded as beneficiaries of the GPL contract. The distribution is to other all third parties. What in the world are you talking about? 23. Under the License, Mr. Andersen grants certain permissions to other parties to copy, modify and redistribute BusyBox so long as those parties satisfy certain conditions. In particular, Section 2(b) of the License, addressing each Licensee, states: You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License... Where do you see any distribution to all third parties? You are just amazingly confused. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Breach of Third-Party Beneficiary Contract, in Florida
Hyman Rosen wrote: On 4/20/2010 10:41 PM, RJack wrote: And the rights holders are excluded as beneficiaries of the GPL contract. The distribution is to other all third parties. What in the world are you talking about? 23. Under the License, Mr. Andersen grants certain permissions to other parties to copy, modify and redistribute BusyBox so long as those parties satisfy certain conditions. In particular, Section 2(b) of the License, addressing each Licensee, states: You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License... Where do you see any distribution to all third parties? You are just amazingly confused. You must cause any work that *YOU DISTRIBUTE* or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to *ALL THIRD PARTIES* under the terms of this License... If your reading comprehension is that limited, I'm afraid I can't help you Hyman. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Breach of Third-Party Beneficiary Contract, in Florida
Hyman Rosen hyro...@mail.com writes: On 4/21/2010 9:28 AM, RJack wrote: Hyman Rosen wrote: Where do you see any distribution to all third parties? You are just amazingly confused. You must cause any work that *YOU DISTRIBUTE* or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to *ALL THIRD PARTIES* under the terms of this License... If your reading comprehension is that limited, I'm afraid I can't help you Hyman. Again, where do you see that any distribution to all third parties is required? When you distribute your work under the GPL, you grant a license to all third parties under the terms of the GPL. No, you have to _cause_ the work to be licensed under the GPL. That means that if you give it to others to redistribute, you have to hold them responsible for redistributing licensed under the GPL, regardless to who they distribute. This is a GPLv2 clause. GPLv3 does not use similar wording. For whatever it is worth. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Breach of Third-Party Beneficiary Contract, in Florida
On 4/21/2010 9:28 AM, RJack wrote: Hyman Rosen wrote: Where do you see any distribution to all third parties? You are just amazingly confused. You must cause any work that *YOU DISTRIBUTE* or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to *ALL THIRD PARTIES* under the terms of this License... If your reading comprehension is that limited, I'm afraid I can't help you Hyman. Again, where do you see that any distribution to all third parties is required? When you distribute your work under the GPL, you grant a license to all third parties under the terms of the GPL. In any case, all copying and distribution must be done under the terms of the GPL, otherwise it is copyright infringement. Naturally anti-GPL cranks hate that, but it is true nonetheless. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
