≡ Menu

Texas choice-of-law crib sheet

This page is under construction. Suggestions for revisions & additions are welcome; please use the suggestion form.

Attorneys’ fees clauses

Even without an attorneys’-fees clause, a party that successfully sues to enforce its rights under an oral or written contract is entitled to recover its reasonable attorneys’ fees, in addition to the amount of the claim and costs. See Tex. Civ. Prac. & Rem. Code § 38.001(8).

The Texas Supreme Court has held [link] that this right of recovery extends to a party suing for breach of warranty, not just breach of contract. 

On the other hand, this right of recovery apparently does not include a party that successfully defends against a breach-of-contract suit; for that, the contract would have to include a prevailing-party attorneys-fees clause.

Express negligence rule

Under the Texas “express negligence” doctrine, an indemnity clause that indemnifies a party from the consequences of its own negligence is unenforceable unless the clause expressly and conspicuously says so.  See, e.g., this article and this one and this one. (Suggested by Rita Campanile.)