(A) Your supplier cannot provide you with the materials, parts, goods, or services, or (B) you cannot provide the materials, parts, goods, or services to your buyer – can you, your supplier, or your buyer get out of this?

(A) Your supplier cannot provide you with the materials, parts, goods, or services, or (B) you cannot provide the materials, parts, goods, or services to your buyer – can you, your supplier, or your buyer get out of this?

Maybe, maybe not – it depends on the facts and variables, some of which will and some of which will not be relevant depending on the facts and circumstances of the particular situation. The following are some of the issues to consider:

  1. What are the terms of the contract and with respect to providing the materials, parts, goods, or services?
  2. What was the relevant intent of the parties, if there is a provable intent?
  3. What body of law will apply? Is there a choice of law clause? Where are the parties located, where was the contract entered into, where are the materials, parts, goods, or services to be delivered, where does ownership or title to the materials, parts, or goods legally change hands, etc.?
  4. Is there a jurisdiction or venue clause?
  5. What is the reason that the materials, parts, goods, or services cannot be provided?
  6. How hard did the party try to provide the materials, parts, goods, or services? How much of an effort was made?
  7. Is there a force majeure clause – i.e., relating to impossibility or frustration of purpose? If so, does it apply in this circumstance, and how?
  8. Does the UCC apply? If so, the UCC of which jurisdiction or source, and how does it apply?
  9. Are there any applicable industry standards, or customs and practices that might apply?
  10. Is it that the materials, parts, goods, or services cannot be provided, or is it that there is a delay in doing so?
  11. If it is a delay, is the delay material to the receiving party? How material?
  12. Can the parties otherwise resolve the problem by different or modified terms?
  13. What are the provable damages? And there are a lot more questions here.
  14. And the list of issues continues as each such situation needs to be evaluated based on its particular facts and circumstances.

Best to you, Dave Tate, Esq. (San Francisco and California)


Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries and beneficiaries; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets
  • M&A disputes
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes
  • Buy-sell disputes
  • Funding and share dilution disputes
  • Accounting, lost profits, and royalty disputes and damages
  • Access to corporate and business records disputes
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards