Because 3.1.11 does not say the seller has the right to waive any of the conditions nor does any other condition give the seller this right. 3.1.11 is specific to GDSI as the buyer.
So I ask you again. Please show us/me any written condition of the SPA that gives the seller Rontan these rights.
Show me any place in the SPA that removes this right (3.1.11 agreed to in writing) from GDSI the buyer.
As a legal matter the original complaint, MTD and the ruling “WITHOUT PREJUDICE” do not exist. I posted the legal meaning for the legal term, you know what it says. The FAC is the only form of the complaint that survives and is germane ( has legal standing) once it is submitted anything to do with the original complaint is moot (has no legal standing) the action moves forward as if the original action never occurred.
I never said it was not a part of the historical docket. It is however very much irrelevant in legal standing. The judge made no such ruling on merits. The granting “without prejudice” of the MTD was based on terminology ( legal procedure) that was corrected. Had there been a ruling on merit the ruling would have been “WITH PREJUDICE” and the case would have ended right then and there.
Let me give an easy example of how a judge would rule on the sale agreement for let’s say a dog.
I agree to by a dog for $500 and make up a sale agreement. Once I see the dog to complete the sale. I notice the dog is brown and I was under the impression that it was a brindle. I already paid you but you refuse to refund my money. I file a complaint and sue.
In my complaint I state that I gave defendant $500 for a brindle colored dog. He did not deliver.
The defendant say. I delivered the dog as described and he would not accept the dog for some unknown reason to me. I seek to have the complaint dismissed as I have no idea what he is talking about and no actionable claim has been made
Judge asks for responses
I submit my response saying the ad/sales agreement said age-2 yo dog color-Bn sex-male. In the dog industry bn means brindle. Not brown.
Now the judge rules to grant the MTD based on the fact that the original complaint did not give him grounds for a ruling. With the explanation he now says I am ruling in favor of defendant as there is no grounds stated in the complaint but I rule “without prejudice” because the issue is procedural as to the wording of the original complaint and a restatement of the complaint does not shift the subject of the complaint from the color to the age or sex. It’s still a complaint about the color being misrepresented in the sale agreement by the seller. The judge is not ruling on the merits of the case (what color the dog is or was represented to be).
In short once the complaint is “fixed” the original complaint is moot and has no legal standing. All matters associated with the original complaint are now irrelevant to the litigation going forward. Neither party can use the original complaint the MTD or the ruling on the original complaint to support any action going forward.
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