Possible defenses to a breach of contract lawsuit

Did Urban obtain a liquor license?

Misrepresentations by lessor/agent?

 

Discharge by frustration of purpose (unforeseeable intervening event)

 

Discharge by impracticability (extreme and unreasonable difficulty)

 

Discharge by impossibility (death, incapacity, destruction of contract’s subject matter)

 

Forgery

 

Onar does not understand English; did not understand agreement; can we establish that lessor/agent knew that Onar did not understand English?  If so, defense could be unilateral mistake (e.g., Onar either (a) did not know that he personally guaranteed obligation, or (b) thought he could terminate lease before 2010.

 

Tenant has common law duty to pay rent only so long as he is in possession of property.  After he surrenders his leasehold interest back to landlord, his duty to pay rent ends.

 

Breach by Rothschild

 

Rothschild failed to mitigate damages

 

MMPA counterclaim; misrepresentation rendered contract voidable b/c misrepresentation induced Onar to enter into contract.

 

Agreement is vague or ambiguous - does not address issue of early termination.

 

Agreement is vague or ambiguous – refers to parties’ right to arbitrate

 

Lack of mutuality; illusory promise; Lessor is not bound to perform; Lessor may elect to sell premises and avoid all obligation.  Contract is unconscionable because it contains this inconspicuous risk-shifting provision.

 

Lease agreement was contract of adhesion (“take it or leave it”) involving large company and unsophisticated individuals.

 

Agreement does not contain a merger clause (states that writing is complete on its face, no other representations, promises, etc.).  Additionally, guaranty states that terms may be modified by course of conduct.  Therefore, Onar could present parol evidence to show that parties verbally agreed that he could cancel lease upon notice to lessor/agent, or verbally agreed to some other provision.