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Just as a businessperson scans the corporate environment for potential
legal pitfalls within the organization, so too, he or she must similarly
judge the potential liability of decisions involving outside individuals
or businesses. While a written contract is not necessary for every action
and decision taken by a businessperson, it can prove invaluable when:
* Disputes arise over delivery dates or option terms;
* Clear, precise written proof is required to resolve litigation;
* Complex details are anticipated and dealt with on paper instead of in
There are several instances when it is in an executive's own best
interests to have a simple written agreement on file. First, a boilerplate
model of a basic agreement should be kept on file and used when a company
hires a consultant or independent contractor. Second, a letter of
agreement should be used when an executive wants to create a "written
handshake" which states the essentials of the agreement without becoming
mired in details. Such an agreement states the simple facts in writing,
and is confirmed and accepted when signed and returned to the sender.
This simple document should:
* Identify both parties and the role of each in the agreement;
* Describe the nature of the agreement;
* State payment terms, time expectations and other elements of the
An early warning system of liability sensitivity requires prudence rather
than panic. It isn't necessary to call an attorney before making every
decision. Such hesitation affects the spontaneity of business agreements.
Yet it is wise to have boilerplate documents reviewed by counsel prior to
being used for the first time. When in doubt regarding a simple agreement,
it is worth the peace of mind to consult an attorney. Counsel should be
sought when complex situations are involved, such as incorporation,
partnership, lease agreements, real estate agreements, debt collection,
litigation, and labor/management relations.
The Small Business Administration (SBA) provides useful information
through Business Development Specialists who can provide useful
information and direction in response to telephone queries. To find a
nearby District Office call (800) 827-5722.
A contract is an agreement that is enforceable by law. Modern business
could not exist without such contracts. Most business transactions involve
commitments to furnish goods, services, or real property; these
commitments are usually in the form of contracts.
Use of the contract in business affairs ensures, to some extent, the
performance of an agreement, for a party that breaks a contract may be
sued in court for the damages caused by the breach. Sometimes, however, a
party that breaks a contract may be persuaded to make an out-of-court
settlement, thus saving the expense of legal proceedings.
A contract arises when an offer to make a contract is accepted. An offer
contains a promise (for example, "I will pay $1,000") and a request for
something in return (a person's car). The acceptance consists of an assent
by the party to whom the offer is made, showing that the person agrees to
the terms offered.
The offer may be terminated in a number of ways. For example,the party
making the offer may cancel it (a revocation), or the party to whom the
offer is made may reject it. When the party to whom the offer is made
responds with a different offer, called a counteroffer, the original offer
is terminated. Then the counteroffer may be accepted by the party making
the original offer.
REQUIREMENTS OF A VALID CONTRACT
For a contract to be valid, both parties must give their assent. They
must act in such a way that the other people involved believe their
intention is to make a contract. Thus a person who is clearly not sincere
in saying that he or she accepts an offer usually is not held to a
contract by the courts.
On the other hand, a person who secretly has no intention of making a
contract but who acts in a manner that leads people to believe he or she
had, may be held to a contract. Legally, it is the external appearance
that determines whether one is held to a contract
A contract results from a bargain. This implies that each party to the
contract gives up something, or promises to, in exchange for something
given up or promised by the other party. This is called consideration. In
the example given above, the consideration on one side is the promise to
pay $1,000, and on the other, the promise to deliver a car.
With rare exceptions, a promise by one party, without some form of
consideration being extended by the other party, does not result in a
contract or other enforceable obligation, regardless of the sincerity of
the promise. Although each party must extend consideration to the other in
order to form a contract, the value of the consideration need not be equal.
Determining how good a bargain is becomes the responsibility of the
parties involved. Otherwise, the courts would be in the impossible
position of having to appraise the relative value of millions of promises
made every year
For a contract to be enforceable it must be between competent parties. A
contract with a person who has been adjudicated insane is likely to be
declared void. A contract involving a minor--in most states of the United
States a minor is now a person under 18--may be enforced or voided by the
minor, unless the contract is for necessities such as food, lodging, or
medical services, in which case he or she may be held responsible for the
reasonable value of what was purchased.
Persons suffering from a disability such as intoxication from drugs or
liquor, or insane persons not adjudicated insane, usually may void a
contract if the other party knows or should have known of the disability
and if the consideration received is returnable
The last requirement of a valid contract is that its provisions be legal.
If a purported contract requires an illegal act, the result is a void
contract. Parties to an illegal contract have no standing in court. If one
party receives money or property under an illegal contract, the other may
not sue to recover what was paid under the contract. Not only are
contracts requiring criminal acts illegal, so are contracts requiring
commission of a TORT (a breach of civil law such as misrepresentation or
trespass) or those in breach of public policy. Although public policy is
difficult to define, it includes some serious breaches of conventional
morality or ethics.
It is commonly assumed that an enforceable contract must be in writing.
This is usually untrue. Most oral contracts are enforceable, but written
contracts are easier to prove.
Some types of contracts must be in writing, for example, contracts for
the purchase or sale of any interest in real property, contracts to pay
debts of others, and contracts that require more than a year to perform.
Contracts for the sale of personal property--that is, movable property--as
distinguished from land, at a price above a specified sum set by law must
be in writing unless payment or delivery has been made or unless the goods
were specially manufactured.
Although only a few types of contract must be in writing, the terms of a
written contract ordinarily may not be contradicted in court by oral
REMEDIES FOR BREACH OF CONTRACT
In the event of a breach of contract, the injured party usually sues for
money damages (the award of a sum of money designed to compensate for
losses stemming from the breach). Damages are measured by what may
reasonably be foreseen as financial losses; unforeseeable losses may not
be collected. If an award of money is not compensatory because something
about the promised performance was unique, the party who breaks a contract
may be ordered by the court to perform as agreed. This is called specific
performance. For example, real estate is always considered unique.
Therefore, when a party has contracted to sell real estate but changes his
or her mind, the court may grant specific performance and order that the
deed for the real estate be delivered to the agreed buyer.
Most contracts are formed with an implicit understanding that neither
party need perform unless the other has completed his or her promised
performance. An exception to this understanding occurs when a party has
performed most of his or her obligation and the part not performed is
relatively immaterial. The doctrine of substantial performance provides
that in such a case, the opposite party must perform, although he or she
may secure money damages to the extent that he or she was damaged by lack
of complete performance.
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