contractual waiver in Massachusetts

2010“For a contract to arise from astatute there must be a clear intention of the Legislature that a statute be so interpreted.” Milton v. Commonwealth, 416 Mass. 471, 475 (1993). “[A] clear legislative intent is necessary to infer a private cause of action from a statute.” Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court 448 Mass. 15, 38 (2006), quoting Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543 (1998); see Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 373 (2008).

1999Finally, Codman was decided prior to Milton v. Commonwealth, 416 Mass. 471, 475 (1993), in which the court held that a contractual claim does not arise under a statute unless the Legislature has explicitly expressed the intent to waive sovereign immunity and create a contractual remedy.

2026Thus, a liquidated damages provision “will not be enforced if the sum is ‘grossly disproportionate to a reasonable estimate of actual damages’ made at the time of contract formation.” Kelly v. Marx, 428 Mass. 877, 880 (1999), quoting Lynch v. Andrew, 20 Mass. App. Ct. 623, 628 (1985).

2026Thus, a liquidated damages provision “will not be enforced if the sum is ‘grossly disproportionate to a reasonable estimate of actual damages’ made at the time of contract formation.” Kelly v. Marx, 428 Mass. 877, 880 (1999), quoting Lynch v. Andrew, 20 Mass. App. Ct. 623, 628 (1985).

2026A liquidated damages provision, like the contractual requirement that Gecko pay ETFs if it terminates the parties’ contracts without cause, is enforceable “provided two criteria are satisfied: first, that at the time of contracting the actual damages flowing from a breach were difficult to ascertain; and second, that the sum agreed on as liquidated damages represents a ‘reasonable forecast of damages expected to occur in the event of a breach.’ ” NPS, LLC v. Minihane, 451 Mass. 417 , 420 673 (2008), quoting Cummings Props., LLC v. National Communications Corp., 449 Mass. 490, 494 (2007).

2026As the judge noted, it is "elementary that an unambiguous agreement must be enforced according to its terms," Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 706 (1992), and here the agreements require the plaintiffs to be paid based on the owner distributions that Burr actually pays himself.

2026See Ashall Homes Ltd., 992 A.2d at 1247 ("interpretation of the [agreements'] termination provision and application of the doctrine of contractual waiver are issues for the court identified in the [FSC] to decide").

2018See Dowell v. Biosense Webster, Inc. , 179 Cal. App. 4th 564 , 575, 102 Cal.Rptr.3d 1 (2009) (broadly worded nonsolicitation clause that prevents employees for period of eighteen months postemployment from "soliciting any business from, selling to, or rendering any service directly or indirectly to any of the accounts, customers or clients with whom they had contact during their last [twelve] months of employment" is "void and unenforceable under [§] 16600"); Retirement Group v. Galante , 176 Cal. App. 4th 1226 , 1238, 98 Cal.Rptr.3d 585 (2009) ( " [§] 16600 bars a court from specifically enfo

2018See Dowell v. Biosense Webster, Inc. , 179 Cal. App. 4th 564 , 575, 102 Cal.Rptr.3d 1 (2009) (broadly worded nonsolicitation clause that prevents employees for period of eighteen months postemployment from "soliciting any business from, selling to, or rendering any service directly or indirectly to any of the accounts, customers or clients with whom they had contact during their last [twelve] months of employment" is "void and unenforceable under [§] 16600"); Retirement Group v. Galante , 176 Cal. App. 4th 1226 , 1238, 98 Cal.Rptr.3d 585 (2009) ( " [§] 16600 bars a court from specifically enfo

2018See Dowell v. Biosense Webster, Inc. , 179 Cal. App. 4th 564 , 575, 102 Cal.Rptr.3d 1 (2009) (broadly worded nonsolicitation clause that prevents employees for period of eighteen months postemployment from "soliciting any business from, selling to, or rendering any service directly or indirectly to any of the accounts, customers or clients with whom they had contact during their last [twelve] months of employment" is "void and unenforceable under [§] 16600"); Retirement Group v. Galante , 176 Cal. App. 4th 1226 , 1238, 98 Cal.Rptr.3d 585 (2009) ( " [§] 16600 bars a court from specifically enfo

2018See Dowell v. Biosense Webster, Inc. , 179 Cal. App. 4th 564 , 575, 102 Cal.Rptr.3d 1 (2009) (broadly worded nonsolicitation clause that prevents employees for period of eighteen months postemployment from "soliciting any business from, selling to, or rendering any service directly or indirectly to any of the accounts, customers or clients with whom they had contact during their last [twelve] months of employment" is "void and unenforceable under [§] 16600"); Retirement Group v. Galante , 176 Cal. App. 4th 1226 , 1238, 98 Cal.Rptr.3d 585 (2009) ( " [§] 16600 bars a court from specifically enfo

2015Id. at 236.

2013Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 350 (2008), irrespective of whether it is raised against the assignor or assignee.

2013See State v. Abbey, 13 Ariz. App. 55, 57 (1970) (concluding that the State did not disprove the defendant’s contractual claim-of-right defense, with no discussion of reasonableness).

2011In particular, the court will not construe a contractual clause “as indenmifying one against his own negligence or that of his employees unless express language unequivocally so requires.” New York, N.H. & H.R.R., 340 Mass. at 5 (emphasis added).

2010“For a contract to arise from astatute there must be a clear intention of the Legislature that a statute be so interpreted.” Milton v. Commonwealth, 416 Mass. 471, 475 (1993). “[A] clear legislative intent is necessary to infer a private cause of action from a statute.” Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court 448 Mass. 15, 38 (2006), quoting Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543 (1998); see Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 373 (2008).

2010“For a contract to arise from astatute there must be a clear intention of the Legislature that a statute be so interpreted.” Milton v. Commonwealth, 416 Mass. 471, 475 (1993). “[A] clear legislative intent is necessary to infer a private cause of action from a statute.” Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court 448 Mass. 15, 38 (2006), quoting Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543 (1998); see Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 373 (2008).

2010“For a contract to arise from astatute there must be a clear intention of the Legislature that a statute be so interpreted.” Milton v. Commonwealth, 416 Mass. 471, 475 (1993). “[A] clear legislative intent is necessary to infer a private cause of action from a statute.” Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court 448 Mass. 15, 38 (2006), quoting Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543 (1998); see Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 373 (2008).

2008Co. v. West Tex. Lumber Co., 34 S.W.2d 896, 899 (Tex. 1930), wherein it was held that a contractual clause prohibiting assignment “of any interest” precluded subrogation of a surety.

2007Such a contractual waiver of trial by jury is enforce-ablei Chase Commercial Corp. v. Owen, 32 Mass.App.Ct. 248, 251-52 (1992).

2001Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass.R.Civ.P. 56(c).

2001Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass.R.Civ.P. 56(c).

2000See Urban Investment and Development Co., 35 Mass.App.Ct. at 107-08 .

2000See Pittston, 143 F.R.D. at 72 ; Bituminous Casualty, 140 F.R.D. at 386 (absent showing that the parties intended the language of the insurance policy’s cooperation clause to work as a waiver of the attorney-client privilege, the court declines to find a contractual waiver of the privilege); State of Wisconsin v. Hydrite Chemical Co., 220 Wis.2d 51 , 582 N.W.2d 411, 421 (Wis.App. 1998) (the broadly worded cooperation clause does not supersede the attorney-client privilege or work product doctrine).

2000See Pittston, 143 F.R.D. at 72 ; Bituminous Casualty, 140 F.R.D. at 386 (absent showing that the parties intended the language of the insurance policy’s cooperation clause to work as a waiver of the attorney-client privilege, the court declines to find a contractual waiver of the privilege); State of Wisconsin v. Hydrite Chemical Co., 220 Wis.2d 51 , 582 N.W.2d 411, 421 (Wis.App. 1998) (the broadly worded cooperation clause does not supersede the attorney-client privilege or work product doctrine).

2000See Pittston, 143 F.R.D. at 72 ; Bituminous Casualty, 140 F.R.D. at 386 (absent showing that the parties intended the language of the insurance policy’s cooperation clause to work as a waiver of the attorney-client privilege, the court declines to find a contractual waiver of the privilege); State of Wisconsin v. Hydrite Chemical Co., 220 Wis.2d 51 , 582 N.W.2d 411, 421 (Wis.App. 1998) (the broadly worded cooperation clause does not supersede the attorney-client privilege or work product doctrine).

2000See Pittston, 143 F.R.D. at 72 ; Bituminous Casualty, 140 F.R.D. at 386 (absent showing that the parties intended the language of the insurance policy’s cooperation clause to work as a waiver of the attorney-client privilege, the court declines to find a contractual waiver of the privilege); State of Wisconsin v. Hydrite Chemical Co., 220 Wis.2d 51 , 582 N.W.2d 411, 421 (Wis.App. 1998) (the broadly worded cooperation clause does not supersede the attorney-client privilege or work product doctrine).

1997Over-myer Co. v. Frick Co., 405 U.S. 174, 185-186 (1972) (upholding a contractual waiver of due process rights to prejudgment notice and hearing).

1996R.R., 227 Mass. 307, 308-310 (1917) (waiver of rights in contravention of interstate commerce act not enforceable). 5 Because the application review provisions of c. 138 are grounded in general policy concerns rather than protection of private property rights, we hold that Toscano’s contractual waiver of the right to apply for a license, and the Association’s contractual waiver of the right to oppose the issuance of a license, are unenforceable.