essence clause in Oregon

2005In effect, by operation of law upon his indulgence, a new contract is brought into existence for the time being, from which that clause is absent, and it so remains in this modified form until by reasonable notice to the opposite party that it will thereafter be insisted upon, the agreement between the parties is restored to its original form.’ ” Walker v. Feiring, 53 Or App 433, 437 , 632 P2d 1270 (1981) (quoting Johnson et al v. Berns et al, 111 Or 165, 173 , 224 P 624 (1924)).

1981In effect, by operation of law upon his indulgence, a new contract is brought into existence for the time being, from which that clause is absent, and it so remains in this modified form until by reasonable notice to the opposite party that it will thereafter be insisted upon, the agreement between the parties is restored to its original form. * * *” Johnson et al v. Berns et al, 111 Or 165, 173 , 209 P 94 , 224 P 624 , 225 P 727 (1924); see also, Peck v. Security Bank of *438 Oregon, 276 Or 61, 67 , 554 P2d 505 (1976); Pittman v. Thompson, 45 Or App 627 , 608 P2d 1223 (1980).

2008In Alk v. Lanini, 61 Or App 158, 161 , 656 P2d 367 (1982), rev den, 294 Or 613 (1983), we held that a time of the essence clause, which was included in an earnest money agreement for the benefit of both buyers and sellers, could ‘Tie waived by either party with regard to the timing of the other partys performance” (footnote omitted).

2008In Alk v. Lanini, 61 Or App 158, 161 , 656 P2d 367 (1982), rev den, 294 Or 613 (1983), we held that a time of the essence clause, which was included in an earnest money agreement for the benefit of both buyers and sellers, could ‘Tie waived by either party with regard to the timing of the other partys performance” (footnote omitted).

1999See, e.g., Alderman v. Davidson, 326 Or 508, 513-14 , 954 P2d 779 (1998); Alk v. Lanini, 61 Or App 158, 161-62 , 656 P2d 367 (1982), rev den 294 Or 613 (1983); Walker v. Feiring, 53 Or App 433, 437-38 , 632 P2d 1270 (1981). 4 The issue on the motion for a directed verdict, thus, is whether there is evidence from which the jury could find that Carlson, or Kelly on his behalf, waived the time of the essence clause and did not adequately reinstate it.

1999See, e.g., Alderman v. Davidson, 326 Or 508, 513-14 , 954 P2d 779 (1998); Alk v. Lanini, 61 Or App 158, 161-62 , 656 P2d 367 (1982), rev den 294 Or 613 (1983); Walker v. Feiring, 53 Or App 433, 437-38 , 632 P2d 1270 (1981). 4 The issue on the motion for a directed verdict, thus, is whether there is evidence from which the jury could find that Carlson, or Kelly on his behalf, waived the time of the essence clause and did not adequately reinstate it.

1976(Emphasis added) In State ex rel Dooley v. Connall, supra, 257 Or., at 103 , 475 P.2d, at 586 , we stated the following rule for application in determining whether to allow or deny a motion by the defendant in a criminal case for the discovery of evidence to which he claims to be entitled under Brady: The essence of the rule of Brady v. Maryland is that it is a violation of due process for the prosecution, after request of the defendant, to withhold evidence favorable to the accused.

1976(Emphasis added) In State ex rel Dooley v. Connall, supra, 257 Or., at 103 , 475 P.2d, at 586 , we stated the following rule for application in determining whether to allow or deny a motion by the defendant in a criminal case for the discovery of evidence to which he claims to be entitled under Brady: The essence of the rule of Brady v. Maryland is that it is a violation of due process for the prosecution, after request of the defendant, to withhold evidence favorable to the accused.

2022For our purposes here, the essence of an exception justified by OAR 660-004-0022(3)(c) is that “[t]he use would have a significant comparative advantage Cite as 323 Or App 390 (2022) 407 due to its location (e.g., near existing industrial activity, an energy facility, or products available from other rural activities).” Like the examples of “unique resources” listed in OAR 660-004-0022(3)(a), the listed uses and resources in OAR 660-004-0022(3)(c)—industrial activity, an energy facility, or products available from other rural activities— are not transportation facilities.

2015In State v. Alwinger, 236 Or App 240, 243 , 236 P3d 755 (2010), we opined that the Supreme Court, in Rodriguez/Buck , “appears to have abandoned the ‘arguably rational basis’ test described in Wheeler.” We note however that Rodriguez/Buck involved an as-applied challenge, the essence of the requirement of proportionality in Article I, section 16, between a specific offense and the penalties for that offense.

2015In State v. Alwinger, 236 Or App 240, 243 , 236 P3d 755 (2010), we opined that the Supreme Court, in Rodriguez/Buck , “appears to have abandoned the ‘arguably rational basis’ test described in Wheeler.” We note however that Rodriguez/Buck involved an as-applied challenge, the essence of the requirement of proportionality in Article I, section 16, between a specific offense and the penalties for that offense.

2009Indeed, those provisions were expressly affirmed by the parties in Addendum B to "remain unchanged and continue in full force and effect." [4] Recently, this court in Phoenix-Talent School Dist. # 4 v. Hamilton, 229 Or.App. 67, 77 , 210 P.3d 908 (2009), decided an issue similar to the issue in this case.

2009Indeed, those provisions were expressly affirmed by the parties in Addendum B to "remain unchanged and continue in full force and effect." [4] Recently, this court in Phoenix-Talent School Dist. # 4 v. Hamilton, 229 Or.App. 67, 77 , 210 P.3d 908 (2009), decided an issue similar to the issue in this case.

2009“The essence of the requirement is that there be a logical connection” between the evidence and “any motive to accuse the defendant in this case.” Id. at 185 .

2008In cases involving land sale contracts, Oregon courts have consistently held that, once a seller waives a time of the essence clause, a buyer, inter alia, must be afforded “a reasonable time within which to perform [on the contract].” Peck v. Security Bank of Oregon, 276 Or 61, 67 , 554 P2d 505 (1976); see also Legg v. Allen, 72 Or App 351, 355 , 696 P2d 9 *261 (1985); Iversen v. Kiger, 48 Or App 873, 879 , 617 P2d 1386 (1980).

2008In cases involving land sale contracts, Oregon courts have consistently held that, once a seller waives a time of the essence clause, a buyer, inter alia, must be afforded “a reasonable time within which to perform [on the contract].” Peck v. Security Bank of Oregon, 276 Or 61, 67 , 554 P2d 505 (1976); see also Legg v. Allen, 72 Or App 351, 355 , 696 P2d 9 *261 (1985); Iversen v. Kiger, 48 Or App 873, 879 , 617 P2d 1386 (1980).

2006Another subissue involving legal responsibility is whether the intervening events occurring after the violations operate, in accordance with the legislature's intention, to interrupt the chain of legal causation with respect to the alleged violations and plaintiffs' injuries. [7] With regard to the issue of remoteness, the Zickrick court explained: "The essence of the rule is found in the maxim ` Causa proxima, non remota spectatur. ' The proximate, as distinguished from the remote cause, `involves the idea of continuity, that the negligent act continuously extends through every event, fact, a

2006Another subissue involving legal responsibility is whether the intervening events occurring after the violations operate, in accordance with the legislature's intention, to interrupt the chain of legal causation with respect to the alleged violations and plaintiffs' injuries. [7] With regard to the issue of remoteness, the Zickrick court explained: "The essence of the rule is found in the maxim ` Causa proxima, non remota spectatur. ' The proximate, as distinguished from the remote cause, `involves the idea of continuity, that the negligent act continuously extends through every event, fact, a

2003Petitioners rely on cases that hold that failure to exercise an option strictly according to its terms makes the option void, see, e.g., Patterson Lumber Co., Inc. v. Lewis, 47 Or App 705, 709 , 615 P2d 372 (1980) (option required tender of purchase price to accompany notice of intent to exercise), and that a court will not grant specific performance of an earnest money agreement that contains a time of the essence clause when the plaintiff failed to tender the down payment by the required date. 1 See Usinger v. Campbell, 280 Or 751 , 572 P2d 1018 (1977).

2003Petitioners rely on cases that hold that failure to exercise an option strictly according to its terms makes the option void, see, e.g., Patterson Lumber Co., Inc. v. Lewis, 47 Or App 705, 709 , 615 P2d 372 (1980) (option required tender of purchase price to accompany notice of intent to exercise), and that a court will not grant specific performance of an earnest money agreement that contains a time of the essence clause when the plaintiff failed to tender the down payment by the required date. 1 See Usinger v. Campbell, 280 Or 751 , 572 P2d 1018 (1977).

2003Petitioners rely on cases that hold that failure to exercise an option strictly according to its terms makes the option void, see, e.g., Patterson Lumber Co., Inc. v. Lewis, 47 Or App 705, 709 , 615 P2d 372 (1980) (option required tender of purchase price to accompany notice of intent to exercise), and that a court will not grant specific performance of an earnest money agreement that contains a time of the essence clause when the plaintiff failed to tender the down payment by the required date. 1 See Usinger v. Campbell, 280 Or 751 , 572 P2d 1018 (1977).

2003Petitioners rely on cases that hold that failure to exercise an option strictly according to its terms makes the option void, see, e.g., Patterson Lumber Co., Inc. v. Lewis, 47 Or App 705, 709 , 615 P2d 372 (1980) (option required tender of purchase price to accompany notice of intent to exercise), and that a court will not grant specific performance of an earnest money agreement that contains a time of the essence clause when the plaintiff failed to tender the down payment by the required date. 1 See Usinger v. Campbell, 280 Or 751 , 572 P2d 1018 (1977).

2001Reeves Corp. v. City of Portland, 131 Or App 578, 580 , 886 P2d 1095 (1994), rev den 320 Or 569 (1995), we reiterated that “ [w] e have repeatedly held that circuit court jurisdiction under ORS 197.825(3)(a) is very limited in nature, and the clearest of the situations in which it does not arise is where the essence of the claim is that there was an error in a land use decision that was or could have been reviewed through the LUBA process.” (Emphasis in original.) Relators do not contend that the trial court had jurisdiction to review the county’s decision under ORS 197.825(3)(a).

2001Reeves Corp. v. City of Portland, 131 Or App 578, 580 , 886 P2d 1095 (1994), rev den 320 Or 569 (1995), we reiterated that “ [w] e have repeatedly held that circuit court jurisdiction under ORS 197.825(3)(a) is very limited in nature, and the clearest of the situations in which it does not arise is where the essence of the claim is that there was an error in a land use decision that was or could have been reviewed through the LUBA process.” (Emphasis in original.) Relators do not contend that the trial court had jurisdiction to review the county’s decision under ORS 197.825(3)(a).

1999The essence of the requirement is that there be a “logical connection between the * * * [defendant’s proffered evidence] and any motive to accuse this defendant in this case.” State v. Thompson, 131 Or App 230, 236 , 884 P2d 574 (1994), rev den 320 Or 508 (1995).

1999The essence of the requirement is that there be a “logical connection between the * * * [defendant’s proffered evidence] and any motive to accuse this defendant in this case.” State v. Thompson, 131 Or App 230, 236 , 884 P2d 574 (1994), rev den 320 Or 508 (1995).

1997We held that the plaintiffs action might have waived the right to accelerate “if the provision which [the defendants] breached had been that requiring timely payment and if [the] plaintiff, after reinstating the time of the essence clause, had accepted another late payment.” 87 Or App at 67 .

1997Defendant relies on Staats v. Praegitzer, 67 Or App 543 , 679 P2d 334 , rev den 297 Or 339 (1984), and Auernheimer v. Metzen, 99 Or App 642 , 783 P2d 1027 (1989), rev den 309 Or 441 (1990), to support her argument that, by accepting late payments, plaintiff necessarily waived the time of the essence clause as to all obligations under the trust deed.

1997Defendant relies on Staats v. Praegitzer, 67 Or App 543 , 679 P2d 334 , rev den 297 Or 339 (1984), and Auernheimer v. Metzen, 99 Or App 642 , 783 P2d 1027 (1989), rev den 309 Or 441 (1990), to support her argument that, by accepting late payments, plaintiff necessarily waived the time of the essence clause as to all obligations under the trust deed.

1997Defendant relies on Staats v. Praegitzer, 67 Or App 543 , 679 P2d 334 , rev den 297 Or 339 (1984), and Auernheimer v. Metzen, 99 Or App 642 , 783 P2d 1027 (1989), rev den 309 Or 441 (1990), to support her argument that, by accepting late payments, plaintiff necessarily waived the time of the essence clause as to all obligations under the trust deed.

1997Defendant relies on Staats v. Praegitzer, 67 Or App 543 , 679 P2d 334 , rev den 297 Or 339 (1984), and Auernheimer v. Metzen, 99 Or App 642 , 783 P2d 1027 (1989), rev den 309 Or 441 (1990), to support her argument that, by accepting late payments, plaintiff necessarily waived the time of the essence clause as to all obligations under the trust deed.

1992Duyck v. Tualatin Valley Irrigation Dist., 304 Or. 151, 160 , 742 P.2d 1176 (1987). [13] Fazzolari v. Portland School Dist.

1992Duyck v. Tualatin Valley Irrigation Dist., 304 Or. 151, 160 , 742 P.2d 1176 (1987). [13] Fazzolari v. Portland School Dist.

1987Thus, instead of the appellate court being confronted with a belated review of the merits, the court is being asked more narrowly to decide whether, on procedural *582 grounds, the appellant is entitled to have the prior decision set aside and the case reopened.” 294 Or at 655 .

1987See, e.g., Smith v. Piluso, 79 Or App 238 , 719 P2d 33 (1986); Salishan Hills, Inc. v. Krieger, 62 Or App 84 , 660 P2d 160 , rev den 295 Or 259 (1983).

1987See, e.g., Smith v. Piluso, 79 Or App 238 , 719 P2d 33 (1986); Salishan Hills, Inc. v. Krieger, 62 Or App 84 , 660 P2d 160 , rev den 295 Or 259 (1983).