term clause in Kentucky

2023Nevertheless, the term “claim preclusion” is often preferable to the term “res judicata,” if only for the sake of clarity and to use a term that parallels “issue preclusion.” See, e.g., Yeoman, 983 S.W.2d at 465 n.2 (“In this opinion we employ the term claim preclusion to refer to the doctrine which bars subsequent litigation of a cause of action which has previously been adjudicated.

2011Nevertheless, the term “claim preclusion” is often preferable to the term “res judicata,” if only for the sake of clarity and to use a term that parallels “issue preclusion.” See, e.g., Yeoman, 983 S.W.2d at 465 n. 2 (“In this opinion we employ the term claim preclusion to refer to the doctrine which bars subsequent litigation of a cause of action which has previously been adjudicated.

2007Language contained in the body of a form is regarded as conspicuous “if it is in larger or other contrasting type or color.” Id.

2007Id.

1996See also Chambers v. NASCO, Inc., 501 U.S. 32 , 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991); Lake Village Water Assn. v. Sorrell, Ky. App., 815 S.W.2d 418 (1991).

1991We find this view to have been expressed in Vaughn v. Hearrell, supra, wherein the court noted that the term clause of an oil and gas lease dictates the period for which the lease shall run, unless the clause is properly modified by another lease provision.

1991The lease form in Vaughn, supra, contained both a delay rental clause and a dry hole clause, which are intended to keep the lease in force only within the primary term.

1985Hertz relied in part on Childers & Venters, supra. The terms and conditions on the reverse side of the retail purchase order do include limited warranties, and to this extent, the identification of these must be “conspicuous.” The Uniform Commercial Code, found in KRS 355.1-201(10), defines “conspicuous” as: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it.

1961Fagan & Co. v. Burns, 247 Mich. 674 , 226 N.W. 653, 655 , 67 A.L.R. 522 , speaking of the form of the oil and gas lease known as Producers 88, the court said: “ * * * By the great weight of authority, the term clause, * * * dominates the period for which the lease shall run, so that, unless it is properly modified by other provisions, all rights of the lessees cease at the expiration of the fixed time stated in the term clause, except in the one contingency that at the expiration of such time the lessee is actually producing oil and gas on the premises * * *.

1961Fagan & Co. v. Burns, 247 Mich. 674 , 226 N.W. 653, 655 , 67 A.L.R. 522 , speaking of the form of the oil and gas lease known as Producers 88, the court said: “ * * * By the great weight of authority, the term clause, * * * dominates the period for which the lease shall run, so that, unless it is properly modified by other provisions, all rights of the lessees cease at the expiration of the fixed time stated in the term clause, except in the one contingency that at the expiration of such time the lessee is actually producing oil and gas on the premises * * *.

1961At the expiration of the fixed time, if there is no production to extend it, the lease ends, not by forfeiture, but by its own terms. * * * ” Though the Michigan case just quoted holds that under a Producers 88 lease it is not enough for the lessee to commence drilling within the primary term, and that the lease terminates at the end of the primary term in the absence of actual production, thus declining to follow Lester v. Mid-South Oil Co., 6 Cir., 296 F. 661 , which, in construing a Kentucky lease, held otherwise, certainly that portion of the opinion applicable to the question in this case