default clause in Massachusetts

2011Before discussing the trial judge’s findings here, we point out that “[ejven if a default clause would otherwise be effective, our courts ‘do not look with favor upon penalties and forfeitures.’” Id., quoting Judkins v. Charette, 255 Mass. 76, 83 (1926).

2005Also of note is Barry v. Frankini, 287 Mass. 196, 199-200 (1934), where the court wrote, “Ordinarily equity will not set aside a contract at the suit of a party thereto on the sole ground of nonperformance by the other party of one of his agreements therein contained, in the absence of an agreement for termination upon breach by such nonperformance, where the breach is not of such a material and substantial nature as to excuse the party suing from proceeding with the contract, but will leave the party suing to his remedy by way of damages.” Even if a default clause would otherwise be effective

2024Park Corp., 479 Mass. 721, 734 (2018) (essential and inducing features of contract are provisions so serious that "a failure to uphold the provision would justify the other party walking away from the contract"). "[E]ven when there is a default clause, '[e]quitable considerations, . . . if present, may entitle the tenant to relief against the forfeiture of his lease for a mere failure to perform his promise.'" DiBella, supra at 646 , quoting Restatement (Second) of Property (Landlord & Tenant) § 13.1 comment j (1977).

2024"If the breach is insignificant or accidental, even if there is a default clause, our courts will not allow termination." DiBella, supra at 644 .

2025Id., 437 Mass. at 720 ; accord Classic Restaurant Concepts, 104 Mass. App. Ct. at 339.

2005Also of note is Barry v. Frankini, 287 Mass. 196, 199-200 (1934), where the court wrote, “Ordinarily equity will not set aside a contract at the suit of a party thereto on the sole ground of nonperformance by the other party of one of his agreements therein contained, in the absence of an agreement for termination upon breach by such nonperformance, where the breach is not of such a material and substantial nature as to excuse the party suing from proceeding with the contract, but will leave the party suing to his remedy by way of damages.” Even if a default clause would otherwise be effective

2025Auth., 344 Mass. 668, 673 (1962).

2024See Klingel v. Reill, 446 Mass. 80, 84 (2006) ("When the Legislature adopted the language of [a uniform act], it intended an interpretation of that term consistent with the rationale explained in the comment accompanying that language"). 9 Pertinent here, § 3 (a) of the act provides that in determining whether to adjust trust assets between principal and income, a trustee "(1) shall administer a trust . . . in accordance with the terms of the trust or the will," even if the MPIA sets forth a different default rule; and "(3) shall administer a trust . . . in accordance with [the MPIA] if the te

2024Park Corp., 479 Mass. 721, 734 (2018) (essential and inducing features of contract are provisions so serious that "a failure to uphold the provision would justify the other party walking away from the contract"). "[E]ven when there is a default clause, '[e]quitable considerations, . . . if present, may entitle the tenant to relief against the forfeiture of his lease for a mere failure to perform his promise.'" DiBella, supra at 646 , quoting Restatement (Second) of Property (Landlord & Tenant) § 13.1 comment j (1977).

2023Bldrs., LLC v. Dwyer, 442 Mass. 87, 90 (2004) (discussing the Restatement [Third] of Property [Servitudes] § 4.8[3] [2000], which permits a servient estate to make reasonable changes in the location or dimensions of an easement and noting that § 4.8[3] is a default rule, "to apply only in the absence of an express prohibition against relocation in the instrument creating the easement and only to changes made by the servient, not the dominant, estate owner" [emphasis added]).

2023Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).

2015See DiBella v. Fiumara, 63 Mass. App. Ct. 640, 645 (2005), citing Restatement (Second) of Property (Landlord & Tenant) §13.1 comment j (parties can agree that landlord’s remedies for breach by tenant will be greater or less than what remedies would be in absence of such agreement), and 13 Corbin, Contracts §68.9, at 247-250 (rev. ed. 2003); JonJame Realty Trust v. Ryan, 2011 Mass. App. Div. 16, 18-19 (2011) (“[Wjhen a lease contains a default clause, the factfinder must determine whether a claimed breach is ‘insignificant’ or ‘accidental,’ which will not trigger the clause, or ‘significant,’ w

2014In Quaranto, supra at 426-427 , we noted in dicta the default rule that, where an assignor assigns a debt, the assignor thereby also assigns any security he or she holds for the debt.

2014Id. (“Generally, the assignment of a debt carries with it every remedy or security that is incidental to the subject matter of the assignment”).

2012It presumes that “in making a business decision the directors of a corporation acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the company.” “[W]here the business judgment [rule] presumptions are applicable, the board’s decision will be upheld unless it cannot be attributed to any rational purpose.” Reis v. Hazelett Strip-Casting Corp., 28 A.3d 422, 457 (Del.Ch. 2011), quoting Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984) (overruled on other grounds, Brehm v. Eisner, 746 A.2d 244 (Del. 2000)), and In re Walt Disney Co. De

2012It presumes that “in making a business decision the directors of a corporation acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the company.” “[W]here the business judgment [rule] presumptions are applicable, the board’s decision will be upheld unless it cannot be attributed to any rational purpose.” Reis v. Hazelett Strip-Casting Corp., 28 A.3d 422, 457 (Del.Ch. 2011), quoting Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984) (overruled on other grounds, Brehm v. Eisner, 746 A.2d 244 (Del. 2000)), and In re Walt Disney Co. De

2007“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ” Addington v. Texas, supra at 423 , quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring).

2006As authority for the proposition that the intention of the parties controls the nature and duration of a servitude, the plaintiffs cite Perodeau v. O’Connor, 336 Mass. 472,474 (1957), and Cheever v. Graves, 32 Mass. App. Ct. 601, 607 (1992).

2005See, e.g., Mactier v. Osborn, 146 Mass. 399, 402 (1888) (accidental breach of an obligation to insure); Judkins v. Charette, 255 Mass. 76, 82-83 (1926) (accidental failure to pay rent on time); Kaplan v. Flynn, 255 Mass. 127, 129-131 (1926) (failure to paint); Howard D.

2005See, e.g., Mactier v. Osborn, 146 Mass. 399, 402 (1888) (accidental breach of an obligation to insure); Judkins v. Charette, 255 Mass. 76, 82-83 (1926) (accidental failure to pay rent on time); Kaplan v. Flynn, 255 Mass. 127, 129-131 (1926) (failure to paint); Howard D.

2005Co., 272 Mass. 49, 52 (1930).

2005Co., 272 Mass. at 52 ), the default clause will in most cases be controlling.

2005See Eno Sys., Inc. v. Eno, 311 Mass. 334, 340 (1942) (license terminated for failure to exploit a patent, a matter going to the root of the parties’ agreement).

2002In all cases where a defendant fails to preserve his claim for review we must still grant relief when “we are left with uncertainty that the defendant’s guilt has been fairly adjudicated.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. Chase, 433 Mass. 293, 299 (2001).

2002In all cases where a defendant fails to preserve his claim for review we must still grant relief when “we are left with uncertainty that the defendant’s guilt has been fairly adjudicated.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. Chase, 433 Mass. 293, 299 (2001).

1982This court accepts as true, as it must, Farley v. Sprague, 374 Mass. 419, 424-425 (1978) (Quirico, J.) the uncontroverted sworn testimony of the defendant’s prior attorney stating that neither she nor any member of her firm received timely notice of either the default hearing or the entry of default which occurred in 1976.