Indtrædelse i garanti

Ny Højesteretsdom tillader tredjemand at indtræde i en entreprenørs garanti.

I dommen af 12. august 2015 udtalte Højesteret, at det måtte have fremstået som en nærliggende mulighed for et forsikringsselskab, at en garanti for en totalentreprenørs forpligtelser kunne påberåbes af senere erhververe af byggeriet – uanset at der ikke var sket transport af garantien.

Dommen må antages at få betydning for fremtidige garantier i entrepriseforhold. 

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Hvornår er et udlån en gældsforpligtelse?

Ifølge sag fra Skatterådet skal man kunne dokumentere, at der ligger en forpligtelse til tilbagebetaling.

I skattelovgivningen findes der ikke nogen præcis definition på, hvornår noget er gæld. Definitionen af, hvornår et udlån foreligger, skal derfor søges i anden lovgivning.

Hvis man gennemgår øvrig lovgivning, kan man givetvis sammenfatte en definition af gæld derhen, at der er tale om en fordring fra en kreditor mod en debitor, stiftet ved erlæggelse af et pengebeløb fra kreditor til debitor og bestående af en gyldig realretlig forpligtelse for debitor til både objektivt og subjektivt at tilbagebetale et beløb til kreditor. Pligten er ofte kendetegnet ved, at der er pligt til at betale renter. 

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NLRB Redefines and Expands “Joint-Employer” Status

The National Labor Relations Board (“NLRB” or “Board”) has issued its long-anticipated  decision in Browning-Ferris Industries, 362 NLRB No. 186 (pdf), establishing a new test for determining joint-employer status under the National Labor Relations Act (“NLRA” or the “Act”).  Because this revised standard will resonate with businesses relying on contractors and staffing firms throughout the economy and across industry lines, employers should be wary of its potential impact upon relationships with service providers that are supportive of, or critical to, their enterprise. 

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OSHA Means Business in Targeting the Health Care and Nursing Care Industries

The Occupational Safety and Health Administration (“OSHA”) recently intensified its scrutiny of the health care and nursing care industries. On June 25, 2015, the agency announced a new enforcement initiative targeting inpatient health care and nursing care facilities. But this increased scrutiny of the health care and nursing care industries does not end there—OSHA is spreading its enforcement reach to other types of health care entities. 

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Opposing a tenant’s 1954 Act lease renewal – Part 3

This is the third in a series of articles looking at the grounds a landlord can use to oppose a tenant’s lease renewal where the lease is protected by the terms of the Landlord and Tenant Act 1954. In this article we are going to be looking at the grounds of opposition contained in sections 30(1)(d) and 30(1)(e). These are both referred to as “non-fault” grounds, where the landlord is not relying on the default of the tenant but on a ground given within the statute which, if proven, entitles the landlord to possession and disentitles the tenant to a new lease. If a landlord is successful in opposing a lease renewal relying on either of these grounds then a new lease will not be granted to the tenant. However, if the landlord is successful when relying on section 30(1)(e) statutory compensation is payable to the tenant. We will see in the next quarter’s article that statutory compensation is also payable to a tenant if a landlord successfully relies on the grounds in section 30(1)(f) and section 30(1)(g). More…

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HRSA Issues Proposed “Omnibus Guidance”

The Health Resources and Services Administration (“HRSA”) issued a notice proposing guidance under the 340B Drug Pricing Program.  The proposed Omnibus Guidance was issued in pre-publication format and is available online at  The notice is scheduled to be published in the Federal Register on August 28, 2015 and will be available at

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McDonald Hopkins Government Strategies Advisory: This Week in Washington — August 28, 2015

Editors Note: With Congress out of session for the August recess, we present an abbreviated “This Week in Washington.” 

Senate to take aim at medical device tax

There is bipartisan support for repeal of the medical device tax. Although the House passed its repeal bill in June, hurdles still remain to get the bill across the finish line in the Senate.

When Congress returns in September it appears that the Senate will finally take a stab at it, but it is unclear exactly when a bill will move, with aides saying only that it will happen “before the end of the year.”

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Thomas C. Erb Named “Lawyer of the Year” for Mergers and Acquisitions Law

Chairman of Lewis Rice, Tom advises both public and private companies on mergers, asset and stock acquisitions and sales, consolidations, reorganizations, recapitalizations, and similar transactions. He has counseled both buyers and sellers in M&A transactions spanning numerous industries including agriculture, manufacturing, technology, banking, consumer goods, and service industries. Tom has extensive experience assisting companies acquiring assets in distressed situations, and he works closely with our restructuring and workout group in such transactions. Best Lawyers has included him in its annual list since 2007. More…

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An Estate Planning Reminder for Parents with Minor Children

I just tweeted an article by a Boston financial planner, Dee Lee, who discusses the importance of parents with minor children getting their estate plans in place.  I strongly feel that setting up an estate plan with protections for minor children is just as important as the other aspects of parenting for which we take so much care and concern.  I have written about this here and here.   Just like finding the right pediatrician, car seat, and child care, an estate plan is an essential protection for your children.  This writer said it so well, that I am posting here some highlights — and  a good reminder — from her article:

“Experts estimate that less than 35% of individuals have wills. This is one thing people procrastinate about, especially parents with young children. 

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NLRB Elections Now 40% Quicker – Median of 23 Days From Filing

Evidence continues to mount as to how much more quickly representation elections are being held since the National Labor Relations Board’s (“NLRB” or “Board”) Amended Representation Election Rules that took effect on April 14, 2015. The Wall Street Journal has crunched the data and reports today that the median number of days between the filing of a representation petition and the day on which employees vote has fallen to 23 days in uncontested elections where the employer and union stipulated to the terms for the vote, and 25 days in the 20 contested cases in which the election was directed by the Board after a hearing.  In comparison, during the Board’s 2014 fiscal year, the last full year before the new rules took effect, the median time was 38 days for all elections and 59 days in contested elections.

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