MPL Beta 1

[Alexander Terekhov]

On Tue, Dec 7, 2010 at 5:25 PM, John Cowan <cowan at mercury.ccil.org> wrote:
> Alexander Terekhov scripsit:
>
>> ***) "The rights granted hereunder will terminate automatically if You
>> fail to comply with any terms herein. "
>>
>> US Courts disagree.
>>
>> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaim&vol=1999/97476c
>>
>> "In addition, prior to the filing of the infringement suit, RT Graphics
>> never took affirmative steps to terminate the license which it had
>> granted.
>
> This may or may not be on all fours, because we don't know if the license
> in question contained explicit words of recission.  My guess would be that
> it did not.

http://openjurist.org/443/f2d/773/loma-linda-university-v-district-realty-title-insurance-corporation

"A right to cancel a contract specifically provided by the contract
itself must be exercised within a reasonable time after discovery of
the facts upon which cancellation is predicated. As long as it is
exercised within that period, the right is not waived. Cocoa Prod. Co.
v. Duche, 156 Va. 86, 158 S.E. 719 (1931); John S. Hudson, Inc. v.
Power Plant Eng'r Co., 154 Wash. 172, 281 P. 324 (1929); see Davidson
Hardware Co. v. Delker Bros. Buggy Co., 170 N.C. 298, 86 S.E. 958. See
generally 17 Am.Jur.2d Contracts 497, 510 (1964); Annot., 164 A.L.R.
1014, 1024 (1946)"

http://www.kentlaw.edu/faculty/rwarner/classes/ecommerceonline/graham/graham_james.htm

"Even assuming Graham materially breached the licensing agreement and
that James was entitled to rescission, such rescission did not occur
automatically without some affirmative steps on James's part. 22A N.Y.
Jur.2d Contracts  § 497 (1996) (“The failure of a party to perform his
part of a contract does not per se rescind it. The other party must
manifest his intention to rescind within a reasonable time.”) . . . "

Why should any court enforce the blatant circumvention of the
requirement by law for the licensor to "manifest his intention to
rescind within a reasonable time” ... "after discovery of the facts
upon which cancellation is predicated", or otherwise, be considered to
waive the termination right?

regards,
alexander.