This article is Part IX of the Musings on Contracts series by Glenn D. West, which explores the unique contract law issues the author has been contemplating, some focused on the specifics of M&A practice, and some just random.
A recent decision by the Delaware Supreme Court, Thompson Street Capital Partners IV, L.P. v. Sonova U.S. Hearing Instruments LLC,[1] reveals a potentially worrisome crack in Delaware’s solid and reliable contractarianism. This crack appears in one of the more important bargains made between a buyer and a seller in a private company acquisition agreement—the survival period and the timing and content of the notice of claims required to be delivered by the buyer to the seller to entitle the buyer to the limited indemnification provided by the seller.
Thompson Street Capital involved a seemingly routine dispute concerning the sufficiency and timeliness of a claims notice sent to the seller before the end of the survival period. The seller alleged that this notice (a) failed to include the “specificity” regarding the claim as required by the merger agreement and (b) was untimely because it was not sent within thirty days after the buyer became aware of the issue as required by the merger agreement. While the nature of the dispute was unremarkable, the court’s holding was anything but unremarkable.
The Dispute and the Court of Chancery Decision
The plaintiff, a sell-side private equity firm acting as the “Members’ Representative,” filed a declaratory judgment action in the Delaware Court of Chancery seeking “an order declaring that the Purported Claim Notice did not meet the contractual requirements with which [the buyer] had to comply and, as such, could not serve as a basis to withhold the escrowed funds.”[2] Additionally, the plaintiff’s complaint “sought a mandatory injunction requiring [the buyer] to execute a Joint Instruction letter directing the Escrow Agent to release the contents of the Indemnity Escrow Fund to Plaintiff.”[3] Anyone involved in private company M&A is well familiar with this scenario—i.e., a limited survival period coupled with an escrow fund that serves as the sole recourse for any rights to indemnification that may arise during that survival period, followed by a dispute over the timeliness or sufficiency of the notice of claim.
In response to the plaintiff’s complaint, the buyer made a motion to dismiss, which the Delaware Court of Chancery granted “after concluding that ‘[t]he notice provisions at issue here are unambiguous and [the plaintiff’s] prayers for relief are fatally lacking.’”[4] However, in reaching that holding, the Delaware Court of Chancery focused almost exclusively on the notice provisions of the escrow agreement and failed to recognize that compliance with the notice provisions of the merger agreement was a condition precedent to the buyer’s right to obtain indemnification.
Because there was both a merger agreement and a separate escrow agreement, which do not always mesh, it was understandable that some confusion might arise over which notice requirements were applicable. The Delaware Court of Chancery focused on the escrow agreement rather than the merger agreement, concluding that the notice was valid under the escrow agreement.
The Delaware Supreme Court’s Decision
On appeal, the Delaware Supreme Court determined that the requirements of the merger agreement were unequivocal and should have been the focus of the Court of Chancery’s decision. Section 9.3.2 of the merger agreement provided:
Any claim by a Purchaser Indemnified Party on account of Damages under this Article IX (a “Claim”), including those resulting from the assertion of a claim by any Person who is not a Party to this Agreement (a “Third-Party Claim”), will be asserted by giving the Members’ Representative reasonably prompt written notice thereof, but in any event not later than 30 days after the Purchaser Indemnified Party becomes actually aware of such Claim, provided that no delay on the part of the Purchaser Indemnified Party in notifying the Members Representative will relieve the Merger Parties from any obligation under this Article IX, except to the extent such delay actually and materially prejudices the Merger Party. Such notice by the Purchaser Indemnified Party will describe the Claim in reasonable detail, will include the justification for the demand under this Agreement with reasonable specificity, will include copies of all available material written evidence thereof, and will indicate the estimated amount, if reasonably practicable, of Damages that has been or may be sustained by the Purchaser Indemnified Party. The Purchaser Indemnified Parties shall have no right to recover any amounts pursuant to Section 9.2 unless the Purchaser notifies the Members’ Representative in writing of such Claim pursuant to Section 9.3 on or before the Survival Date.[5]
The court focused almost exclusively on the last sentence of section 9.3.2 (defined in the decision as the “Final Sentence”). Importantly, the Delaware Supreme Court held unequivocally that “the Final Sentence clearly embodies a condition precedent and potential for forfeiture because it states plainly that there is no right to indemnification unless the claim notice is provided.”[6] The court further held that the Final Sentence contained specific language creating the condition precedent of timely and compliant notice, which specific language controlled over the more general language contained in a boilerplate “no waiver” provision.[7] Moreover, the court held that it was “reasonably conceivable that [the buyer] failed to comply with the Specificity Requirement that [the buyer] ‘include copies of all available material written evidence’ of its claim.”[8] Indeed, the buyer had apparently admitted that “it did not provide any written evidence with the Claim Notice beyond its own assertions in the Claim Notice itself.”[9] Finally, the court held that the plaintiff had also sufficiently “alleged that [the buyer] did not comply with the Timing Requirement of Section 9.3.2.”[10] As a result, the Delaware Court of Chancery should not have granted the buyer’s motion to dismiss.
So far, so good; this all sounds very contractarian. But then came the bombshell. According to the Delaware Supreme Court, the Final Sentence provides only the “potential” for forfeiture, not a definitive forfeiture of the indemnification right, because, notwithstanding the clear language of the contract, “our law abhors a forfeiture.”[11] As a result of that abhorrence, the buyer’s “noncompliance may be excused if the timing and specificity requirements were not material to the agreement and the noncompliance would result in a disproportionate forfeiture.”[12]
So, the good news for the private-equity-seller plaintiff is that it will now have its day in the Delaware Court of Chancery to (a) prove (or fail to prove) that the buyer’s claim notice was deficient under the merger agreement and (b) if successful, thereby establish that the condition precedent to the indemnification obligation had not occurred, which would then seem to entitle the seller to the release of the escrowed funds as a matter of the bargained-for terms of the merger agreement.
But, the bad news is that, even if successful in proving the noncompliant notice, the private-equity-seller plaintiff must now also provide evidence in the Delaware Court of Chancery that the timing and specificity requirements that it proved were not met were in fact “material to the agreement” and, if not material to the agreement, that the buyer’s noncompliance would not result in a disproportionate forfeiture of the indemnity rights that were legally conditioned upon that compliance. Failing to meet these additional noncontractual requirements could result in the seller’s inability to enforce the bargained-for condition precedent to the buyer’s indemnification right.
It remains unclear (at least to me) how a buyer, whose right to indemnification is expressly conditioned upon a compliant notice being timely given, could be deemed to have forfeited anything if the buyer failed to comply with the express condition that gives rise to that right. Nevertheless, the Delaware Supreme Court held that a forfeiture would occur and that, in such circumstances, the common law’s abhorrence of that forfeiture would apply.[13]
The Materiality of Survival and Notice of Claims Provisions
But even if a forfeiture of a conditional indemnification right occurred because of noncompliance with the condition precedent giving rise to that right, such a forfeiture is permissible if the required terms of compliance were “material to the agreement.” And it is truly hard to fathom how any private equity seller could not have considered the bargained-for length of the survival period and the bargained-for requirements for a notice of claim as material in any negotiation of a private company acquisition agreement. Limiting recourse and establishing a limited time to pursue remedies, based on real, not presumed or anticipated, claims, is private equity dealmaking 101.
Indeed, the Delaware Supreme Court in Thompson Street Capital noted cases that have drawn materiality conclusions as a matter of law. The court cited a non-Delaware decision holding that the notice requirements of a claims-made insurance policy were material as a matter of law, as well as a Delaware Court of Chancery decision involving a claim of forfeiture arising from an earnout provision.[14] While the claims-made insurance policy example closely resembles a survival clause that conditions any indemnification rights on a compliant notice being given before the survival period’s end, the Delaware Supreme Court referenced that example without comment. However, the court did discuss the earnout example of Obsidian Finance Grp., LLC v. Identity Theft Guard Solutions, Inc.[15]
In Obsidian, the Delaware Court of Chancery considered an argument by a disappointed seller who failed to meet the exact requirements for an earnout. Instead of the company obtaining an extension of a government contract for six years as required by the earnout terms, it only received an extension for five years and six months. Certainly close, but no cigar, said the Delaware Court of Chancery:
Obsidian’s argument that the Court may declare immaterial the six-month difference between the 5.5-year contract and the six-year earnout condition is misplaced. Obsidian cites no authority that would support a holding that a party to a merger agreement may be excused from satisfying a condition to an earnout on grounds of forfeiture. This comes as no surprise, as an earnout provision contemplates the payout of additional, often substantial, consideration when the entity sold achieves specific, bargained-for milestones. The value of the contingent consideration is inextricably linked to the estimated probability of the contingent event’s occurrence. To change the benchmark of the earnout would be to change its risk profile and, by extension, the amount that should be paid in the event of its achievement. Under Delaware law, however, “a party may not come to court to enforce a contractual right that it did not obtain for itself at the negotiating table.” Unlike horseshoes or hand grenades, there is no “close enough” when it comes to earnouts negotiated by sophisticated parties based on the estimated probability that the precise measure would be hit. Any adjustment to the earnout condition, then, would be “material” as a matter of law.[16]
The rationale for why this example from the realm of earnouts is not applicable in the context of bargained-for time periods for submitting compliant claims notices as a condition to a buyer’s entitlement to indemnification was not explained. The Delaware Supreme Court simply noted:
We are unable on this record to resolve the materiality and disproportionate forfeiture questions. We address materiality first because excusal of the condition, according to Section 229 of the Restatement, “applies only where occurrence of the condition was not a material part of the agreed exchange.” Although, [the plaintiff] alleges that the timing and particularity requirements were material, the record has not been developed on these points, including whether the parties, in negotiating these agreements, considered these requirements to be material.
Even if we were to determine that the Notice Requirements are not material, we are still unable to determine the disproportionate forfeiture issue on this record. Accordingly, we remand to the Court of Chancery for further consideration on these points.[17]
The court then provided guidance to the Delaware Court of Chancery on remand. That guidance was derived from section 229 of the Restatement (Second) of Contracts, which consists of a list of factors to consider that are somewhat ambiguous. But the court then quoted from a Pennsylvania Superior Court case to summarize what is essentially required for the materiality analysis under section 229 of the restatement: “materiality in the context of Section 229 ‘rests to a large extent on the analysis of the requirement’s purpose, [but] it also involves a consideration of the negotiations of the parties along with all other circumstances relevant to the formation of the contract or to the requirement itself.’”[18]
In private equity deals, sellers desire certainty over the limits of recourse for, and the timing of, indemnification claims. Limiting recourse to the escrowed funds, and returning the remaining sales proceeds held in escrow to the private equity fund’s limited partners after the end of the survival period, is a material part of any private company acquisition agreement. The limited additional record that the Delaware Supreme Court is requiring should be straightforward, therefore. But the fact that it is necessary, in addition to the proof that the notice was in fact noncompliant, is troubling.
Contractarianism Versus Equitable Principles from the Middle Ages
Professors Jody S. Kraus and Robert E. Scott are among the leading theorists in contract law.[19] They have expressed their dismay over the importation into contract law of equitable principles developed by the English Chancery Courts in the Middle Ages, which were intended to mitigate some of the harshness of the common-law courts, where no means were available for enforcing executory contracts and commercial parties instead relied upon penal bonds.[20] The enforcement of the penal bond could sometimes work an injustice because the bond may have been issued for a contract that had in fact been performed, so the Chancery Courts intervened to grant relief from these unjust enforcements.[21] But we no longer live in that world. The common law now provides remedies for breach of executory contracts, and penal bonds have been relegated to the history books.
In addressing the interplay between the law of conditions and the equitable concepts related to forfeitures, Professors Kraus and Scott noted the following:
The law of conditions explicitly endorses the principle of freedom of contract by committing to the strict enforcement of all express conditions. Yet, it is also home to the hoary equitable maxim that “the law abhors forfeitures.” The antiforfeiture norm suffuses the law of conditions, which therefore reads like a schizophrenic text, in one sentence insisting on the sanctity of strict construction and enforcement of conditions in spite of forfeiture, while in the next admonishing courts, whenever interpretation allows, to avoid the conclusion that the promisor’s obligation is subject to an enforceable condition if enforcement of the condition would raise the specter of forfeiture.[22]
The professors further opined:
Even if the parties succeed in writing an express term that unequivocally creates a condition, the ex post form of the antiforfeiture norm strongly encourages courts to exercise their discretion to excuse the condition whenever its enforcement would create a forfeiture and the court deems the condition not to have been a material part of the agreement at the time of formation. In addition, even if a court agrees that a contract contains a material, express condition, the ex post norm encourages the court to find that the promisor has implicitly waived the condition, either retrospectively or prospectively, whenever enforcement of the condition would create a forfeiture.[23]
Accordingly, they encourage a contractarian approach that Delaware is known for generally. Specifically, in their view:
[C]onditions are always material from the ex ante perspective because they allocate risks between the parties, the contract compensates each party for bearing those risks, and the parties inevitably rely on that allocation of risks. Since materiality is determined by the parties’ intent at the time of formation, conditions will always be material.[24]
In other words, the professors are apparently suggesting that the “law abhors a forfeiture” maxim should be consigned to the same historical vault that currently houses penal bonds.
Academics similarly suggest that historically inherited and now-encrusted boilerplate is often used impulsively by practitioners without considering the original purpose behind such provisions.[25] As a result, these inherited provisions may no longer accomplish their intended objective and instead undermine more bespoke provisions in a contract. Could it be that courts are effectively doing the same thing—i.e., applying legal maxims that are effectively “historical artifacts”[26] to the modern law of contracts?
Perhaps, but the professors’ and other academics’ theories remain just that. And Thompson Street Capital embodies the current law in Delaware. Nevertheless, can Delaware’s contractarianism offer a potential means of avoiding an evidentiary hearing to assess the materiality of bargained-for indemnification regimes in the future? I believe the answer is yes.
Delaware’s Contractarianism Remains Strong
Delaware justifiably “prides itself on the contractarian nature of its law.”[27] Sophisticated dealmakers and their counsel rely on Delaware courts to enforce the terms of their freely made contracts and to respect the decisions they make about the “risk they should bear.”[28] As a result, “Delaware courts are ‘especially chary about relieving sophisticated business entities of the burden of freely negotiated contracts.’”[29]
This contractarianism is so strong that Delaware courts will generally only override the parties’ binding contract “upon a strong showing that dishonoring the contract is required to vindicate a public policy interest even stronger than freedom of contract.”[30] And these stronger public policy “interests ‘are not to be lightly found, as the wealth-creating and peace-inducing effects of civil contracts are undercut if citizens cannot rely on the law to enforce their voluntarily-undertaken mutual obligations.’”[31] Thus, “Delaware courts will ‘not rewrite the contract to appease a party who later wishes to rewrite a contract he now believes to have been a bad deal.’”[32] This is so because “[p]arties have a right to enter into good and bad contracts, the law enforces both.”[33]
The law’s abhorrence of forfeiture does not appear to be one of the strong public policy interests sufficient to override the parties’ material bargained-for exchange.[34] Indeed, Thompson Street Capital makes that clear by instructing the Court of Chancery to further develop the record regarding the materiality of the timing and specificity requirements of the merger agreement’s indemnification regime. Assuming that the additional record indicates that the timing and specificity conditions related to the right of indemnification were material to the parties’ agreement, which experience suggests they should be, the Delaware Supreme Court indicated that the antiforfeiture concern will be overcome.
Some Possible Additions to the Survival Clause
But to avoid the requirement that a trial record be established in the future, couldn’t the parties agree on the fact of that materiality in the contract and rely on Delaware’s contractarianism to uphold that agreement? I suggest that they should.[35]
My current view is that there should be a statement in the survival clause reflecting the parties’ agreement that compliance with the terms of the notice provisions is not only a condition precedent to the indemnifying party’s obligation to indemnify but also a material part of the parties’ bargained-for exchange. I also believe that adding “time is of the essence” language to the survival clause might be helpful, as those words seem to have an almost talismanic effect in other contexts.[36]
What might these additions to a survival clause look like? Well, I am still musing, but here is a quick effort at such additions:
Notwithstanding anything herein to the contrary, the obligations to indemnify, pay, reimburse, compensate, and hold harmless a Person pursuant to this ARTICLE IX in respect of a breach of representation or warranty, covenant, or agreement shall terminate on the applicable survival termination date (as set forth in Section 9.1(a)), unless an Indemnified Party shall have made a claim for indemnification pursuant to Section 9.2 or Section 9.3, prior to such survival termination date, as applicable, including by delivering an Indemnification Claim Notice or Third-Party Indemnification Claim, as applicable, to the Indemnifying Party. The Parties specifically and unambiguously intend and agree that (a) the survival periods that are set forth in this Section 9.1(a) shall replace any statute of limitations that would otherwise be applicable; (b) the timely delivery of an Indemnification Claim Notice or Third-Party Indemnification Claim, as applicable, to the Indemnifying Party pursuant to Section 9.2 or Section 9.3 shall be an express condition precedent to the obligations to indemnify, pay, reimburse, compensate, and hold harmless a Person pursuant to the ARTICLE IX; (c) time shall be of the essence in the delivery of an Indemnification Claim Notice or Third-Party Indemnification Claim, as applicable, to the Indemnifying Party pursuant to Section 9.2 or Section 9.3; and (d) the survival periods, and the timing and content of an Indemnification Claim Notice or Third-Party Indemnification Claim, as required by this ARTICLE IX, were a material part of the agreed exchange made by the Parties in entering into this Agreement.[37]
Will this effectively eliminate the need for an evidentiary hearing to establish the materiality of the bargained-for conditions for indemnification, given the law’s abhorrence of forfeitures? Who knows? But it might help. And I welcome improvements and corrections.
2025 WL 1213667 (Del. Apr. 28, 2025). ↑
Id. at *5. ↑
Id. ↑
Id. at *6. ↑
Id. at *2 (emphasis in original). ↑
Id. at *1 (emphasis added). ↑
Id. at *21. The “no waiver” provision stated: “No failure or delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.” Id. at *2. The potential that this type of standard boilerplate may do violence to the specific notice of claims procedures made part of your indemnification regime was previously discussed in Glenn D. West, The Perils and Delights of Contractual Boilerplate, Bus. L. Today (Apr. 15, 2025). ↑
Thompson St. Cap., 2025 WL 1213667, at *16. ↑
Id. ↑
Id. at *17. ↑
Id. at *1. ↑
Id. ↑
But see Vague v. Bank One Corp., 2006 WL 290299, at *11 (Del. Ch. Feb. 1, 2006) (failure to timely exercise options in accordance with the strict terms of an unambiguous agreement resulted in loss of options notwithstanding efforts at “formulating (or piecing together) a theory of equitable relief that would overcome the terms of the parties’ express agreement”). ↑
Thompson St. Cap., 2025 WL 1213667, at *20 n.148. The non-Delaware case cited with respect to a claims-made insurance policy’s notice requirements was Citizens Insurance Co. of America v. Assessment Systems Corp., 2019 WL 4014955, at *5–7 (D. Minn. Aug. 26, 2019). But it is interesting to note that in the context of consumer-based life insurance policies, “[i]t has long been established that forfeiture of life insurance coverage for late payment of premiums is ‘not favored in the law; and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so on which the party has relied and acted.’” Speziale v. Nat’l Life Ins. Co., 159 F. App’x 253, 255 (2d Cir. 2005). ↑
2021 WL 1578201 (Del. Ch. Apr. 22, 2021). ↑
Id. at *8 (emphasis added). ↑
Thompson St. Cap., 2025 WL 1213667, at *20. ↑
Id. at *21 (citing Acme Mkts., Inc. v. Fed. Armored Express, Inc., 648 A.2d 1218, 1222 (Pa. Super. Ct. 1994)). ↑
See Robert E. Scott & Jody S. Kraus, Contract Law and Theory (Carolina Academic Press, 6th ed. 2023). ↑
Jody S. Kraus & Robert E. Scott, The Case Against Equity in American Contract Law, 93 S. Cal. L. Rev. 1323 (2020); Jody S. Kraus & Robert E. Scott, Contract Design and the Structure of Contractual Intent, 84 N.Y.U. L. Rev. 1023 (2009). ↑
Kraus & Scott, The Case Against Equity in American Contract Law, supra note 20, at 1334–38. ↑
Kraus & Scott, Contract Design and the Structure of Contractual Intent, supra note 20, at 1081–82; see also Kraus & Scott, The Case Against Equity in American Contract Law, supra note 20, at 1375. ↑
Kraus & Scott, Contract Design and the Structure of Contractual Intent, supra note 20, at 1084; see also Kraus & Scott, The Case Against Equity in American Contract Law, supra note 20, at 1376. ↑
Kraus & Scott, Contract Design and the Structure of Contractual Intent, supra note 20, at 1084; see also Kraus & Scott, The Case Against Equity in American Contract Law, supra note 20, at 1377. ↑
See, e.g., Stephen J. Choi, Mitu Gulati & Robert E. Scott, Comparing Agency Costs in Contract Production: Private Equity M&A Versus Corporate and Sovereign Bonds, 74 Case W. Rsrv. L. Rev. 47 (2023); Stephen J. Choi, Mitu Gulati, Matthew Jennejohn & Robert E. Scott, Contract Production in M&A Markets, 171 U. Pa. L. Rev. 1881 (2023); Robert E. Scott, Stephen J. Choi & Mitu Gulati, Revising Boilerplate: A Comparison of Private and Public Company Transactions, 2020 Wis. L. Rev. 629 (2020). ↑
See Tara Chowdhury, Faith Chudkowski & Mitu Gulati, The Form Knows Best, 79 U. Mia. L. Rev. 607, 625 (2025). But see Glenn D. West, The Form Doesn’t Know Anything: A Response to Chowdhury, Chudkowski & Gulati, 79 U. Mia. L. Rev. 628 (2025). ↑
New Enter. Assocs. 14, L.P. v. Rich, 295 A.3d 520, 565 (Del. Ch. 2023). ↑
Id. at 566 (quoting Abry Partners V, L.P. v. F&W Acquisitions, LLC, 891 A.2d 1032, 1061 (Del. Ch. 2006)). ↑
Id. (quoting Abry Partners, 981 A.2d at 1062). ↑
Id. (quoting Libeau v. Fox, 880 A.2d 1049, 1056 (Del. Ch. 2005), aff’d in part, rev’d in part on other grounds, 892 A.2d 1068 (Del. 2006)). ↑
Id. (quoting Libeau, 880 A.2d at 1056–57). ↑
Id. (quoting Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010)). ↑
Id. (quoting Nemec, 991 A.2d at 1126); see also HC Cos., Inc. v. Meyers Indus., Inc., 2017 WL 6016573, at *9 (Del. Ch. Dec. 5, 2017) (“Delaware courts enforce bad deals the same as good deals. The Court cannot rewrite the contracts, and it cannot ignore the plain terms of the contracts.”). ↑
This would appear to contrast with the common law’s abhorrence of “penalties” for breach of contract. See Glenn D. West, When “Liquidated Damages” Are Not—The Common Law’s Abhorrence of Penalties and What You May or May Not Be Able to Do About It, Weil’s Glob. Priv. Equity Watch (Dec. 22, 2020). The law’s problem with penalties was part of the decision in Crispo v. Musk, 304 A.3d 567 (Del. Ch. 2023) (“A party cannot recover damages for consideration that it would not expect to receive had the contract been performed. Such provisions are considered penalties. If a contractual provision defines damages to include penalties, then it is unenforceable.”). But as part of the legislative response to the Crispo decision invalidating provisions providing for lost shareholder premium damages in a busted merger, Delaware General Corporation Law section 261(a) now specifically permits penalties as a remedy against a party who breaches a merger agreement. 8 Del. Code § 261(a). For background on the Crispo decision, see Glenn D. West, Surprise: Target Company May Not Be Entitled to Expectancy Damages Based upon the Lost Premium for an Acquirer’s Wrongful Failure to Close a Merger, Weil’s Glob. Priv. Equity Watch (Nov. 14, 2023). ↑
While perhaps not directly in point, Delaware courts have honored contractual stipulations of irreparable harm for the purposes of awarding injunctive relief and specific performance. See, e.g., Gildor v. Optical Sols., Inc., 2006 WL 4782348, at *11 (Del. Ch. June 5, 2006). ↑
See HIFN, Inc. v. Intel Corp., 2007 WL 1309376, at *9 (Del. Ch. May 2, 2007) (“When time is of the essence in a contract, a failure to perform by the time stated is a material breach of the contract that will discharge the non-breaching party’s obligation to perform its side of the bargain. Whether time is of the essence in a contract turns in the first instance on whether the contract explicitly states so. When the contract fails to contain a time of the essence clause, time will only be of the essence if the circumstances surrounding the contract or the parties’ course of dealing clearly indicate that strict compliance with a specified timeframe was intended.”). ↑
While much of this language is a response to Thompson Street Capital, clause (a) is in response to another concern that was highlighted in a Business Law Today article. See Glenn D. West, Making Sure Your Survival Clause Works as Intended, Bus. L. Today (Mar. 7, 2025). ↑
