the what, why & how of contracts

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THE WHAT, WHY AND HOW OF THE WHAT, WHY AND HOW OF CONTRACTSCONTRACTSD. Scott BerryD. Scott Berry

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Definition of a ContractDefinition of a Contract

““An agreement between two or more persons An agreement between two or more persons which creates an obligation to do or not to do a which creates an obligation to do or not to do a particular thing.” particular thing.” Black’s Law DictionaryBlack’s Law Dictionary, Sixth , Sixth Edition (1991)Edition (1991)

Are all contracts required to be Are all contracts required to be in writing to be legally binding?in writing to be legally binding?

NO!NO!


a)a) A promise to answer for the debt of another person;A promise to answer for the debt of another person;

b)b) A contract to sell goods of $500.00 or more, unless the A contract to sell goods of $500.00 or more, unless the buyer actually receives and accepts the goods or gives buyer actually receives and accepts the goods or gives something in part payment for them;something in part payment for them;

c)c) An agreement which cannot be performed within one An agreement which cannot be performed within one year; andyear; and

d)d) A contract for an interest in real estate.A contract for an interest in real estate.

Contracts that usually have to Contracts that usually have to be in writing to be enforceablebe in writing to be enforceable



Elements of a Contract:Elements of a Contract:

1.1. OfferOffer

2.2. AcceptanceAcceptance

3.3. ConsiderationConsideration

4.4. Capacity to contractCapacity to contract

5.5. Intent of parties to contractIntent of parties to contract

6.6. Object of a contractObject of a contract

Object of a contract:Object of a contract:• The contract must be for a The contract must be for a

legal purposelegal purpose

• A contract is not enforceable if A contract is not enforceable if it is illegal or against public it is illegal or against public policypolicy

• Contracts placing a restraint Contracts placing a restraint on trade, price-fixing and on trade, price-fixing and monopolies are illegalmonopolies are illegal

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Buckley v. Humason, 52 N.W. 385 (1892)

Facts:

•Humason was the owner of property in the city of Chicago. City of Chicago had passed as ordinance that it was unlawful for any person within the City of Chicago to sell real estate without a license.

•Humason asked Buckley to find a purchaser for his property promising to pay Humason a commission based upon a percentage of the sale price of the property despite the fact that Buckley had no license.

•The property was sold and Buckley demanded his commission. Humason refused to pay.

•Buckley brought a lawsuit against Humason based upon the agreement between Humason.

Decision:

“Business transactions, in violation of law, cannot be made the foundation of a valid contract; and the general rule is that where a statute makes a particular business unlawful generally, or for unlicensed persons, any contract made in such business by one not authorized is void.”

The result is that Buckley was not compensated for his services.

Capacity of the Parties to ContractCapacity of the Parties to Contract

•Minor?Minor?

•Incompetent?Incompetent?

•Drunk or under the influence of some Drunk or under the influence of some other mind altering substance?other mind altering substance?


The Parties. . .The Parties. . .


Who is the contract between?Who is the contract between?

IndividualsIndividuals

CorporationCorporation



IF YOU ARE SIGNING THE CONTRACT IF YOU ARE SIGNING THE CONTRACT ONON BEHALF OF A BEHALF OF A CORPORATIONCORPORATION

When identifying the parties to the contract:

•Clearly and correctly state the name of the corporation

“Widget Manufacturing, Inc.”

•Provide the state in which the corporation was filed as well as the entity type of the company

“Widget Manufacturing, Inc., a Minnesota corporation”

OR

“Widget Manufacturing, LLC, a Minnesota limited liability company”



When signing the contract:

•Clearly and correctly state the name of the corporation

“Widget Manufacturing, Inc.”

•Include a signature line for a representative or officer of the company to sign

Widget Manufacturing, Inc.

/s/ John DoeBy John DoeIts President



Verify your position with the company:

•Chief Executive Officer

•President

•Vice President

•Chief Manager

•Manager

•Chief Financial Officer

•Secretary

What is your position?

REVIEW YOUR CORPORATE DOCUMENTS!REVIEW YOUR CORPORATE DOCUMENTS!



AVOID SIGNING AVOID SIGNING THE THE

CONTRACT AS CONTRACT AS AN INDIVIDUAL!AN INDIVIDUAL!


Offer & Acceptance

The Offer:The Offer:

•Most offers can be oral or written (some offers must be in writing by law)

•An offer must be a definite expression of the proposed terms and conditions of the proposed contract and how it is to be accepted

•An offer must include the identity and nature of the object being offered, the conditions it is being offered as well as under what terms it is being offered

•Essentially an offer is a promise in exchange to the other person’s promise to act


Offer & Acceptance

Acceptance of the offer:Acceptance of the offer:

•Acceptance of an offer is a manifestation of assent to the terms of the offer made by the offeree in the manner invited or required in the offer. Restatement (Second) of Contracts §50(1).

•According to Black’s Law Dictionary, “Compliance by the offeree with the terms and condition of the offer constitute as ‘acceptance’.”

•Acceptance of an offer can be expressed or implied


Offer & AcceptanceCarlill v. Carbolic Smoke Ball Company

• The Carbolic Smoke Ball Company made a device called a "smoke ball“ that it claimed to be a cure for influenza

• The smoke ball was a rubber ball with an attached tube. After filling the smoke ball with carbolic acid, the tube was to be inserted into the user’s nose. The user then squeezed the bottom of the smoke ball to release the vapors into the nose of the user.


Offer & AcceptanceCarlill v. Carbolic Smoke Ball Company

• The Carbolic Smoke Ball Company published advertisements claiming that it would pay £100 to anyone who got sick with influenza after using the company’s device in accordance with the instructions set out in the advertisement.

• The instructions provided that the person was to use the smoke ball three times per day for two weeks

• The advertisement further stated that £1000 was deposited at the Alliance Bank to cover any claims


Offer & Acceptance

Carlill v. Carbolic Smoke Ball Company

Was it an offer?Was it an offer?


Offer & Acceptance


It It waswas an offer! an offer!The court determined:

1)that the advertisement was a unilateral offer because it specifically provided how the offer could be accepted; and

2)that the company's claim that £1000 was deposited at the Alliance Bank showed the serious intention to be legally bound.


Offer & Acceptance


• Louisa Elizabeth Carlill saw the advertisement, purchased a smoke ball and (according to her) used it in accordance with the advertised instructions.

• Mrs. Carlill got sick with the on January 17, 1892 and wrote a letter to Carbolic Smoke Ball Company to claim the £100.

• The company denied her claim, stating that in order to qualify for the £100 payment that Mrs. Carlill needed to go to the Carbolic Smoke Ball Company's office on a daily basis to be sure she was using it properly.

• Mrs. Carlill refused and brought a lawsuit...


Offer & Acceptance


Was the offer accepted Was the offer accepted by Mrs. Carlill’s actions?by Mrs. Carlill’s actions?


Offer & Acceptance


Yes, she accepted the offerYes, she accepted the offer

The court determined that satisfying conditions provided in the advertisement for using the smokeball constituted acceptance of the offer.


Offer & Acceptance

Felthouse v. Bindley

1)This case involved the sale of a horse from a nephew to his uncle

2)During negotiations between the parties a misunderstanding about the price occurred

3)As a result of the misunderstanding, the uncle wrote his nephew that the uncle would assume that he could purchase the horse for £30.15 if the uncle did not receive a response from his nephew

4)The nephew did not respond, but the horse was sold to a third-party at an auction

5)Uncle brought suit against the nephew or damages based upon conversion


Offer & Acceptance

Felthouse v. Bindley

Was there a Was there a contract?contract?No, the court determined that an acceptance of an offer will not give rise to a binding agreement unless it is expressly communicated to the offeree.


Offer & Acceptance

Beard Implement Co v. Krusa

1) This case is between an implement dealer and a farmer for the sale of a combine from the implement dealer to the farmer

2) After speaking with the implement dealer’s sales representatives about purchasing the combine, the famer signed a purchase order and gave a check to the implement dealer

Was there a contract?Was there a contract?


Offer & Acceptance




3) The purchase order contained language that “This order subject to acceptance by dealer” and contained a signature line for the implement dealer to sign which went unsigned by the implement dealer



Offer & Acceptance





4) According to the implement dealer at the time the purchase order was signed and the check delivered the farmer told the implement dealer “I’ll take the deal.”



Offer & AcceptanceBeard Implement Co v. Krusa




4) According to the implement dealer at the time the purchase order was signed and the check delivered the farmer told the implement dealer “I’ll take the deal.”

5) The farmer decided not to purchase the combine because he thought it was too expensive. Implement dealer brought a lawsuit against farmer based upon a of breach of contract

WHAT DID

WHAT DID

THE COURT

THE COURT

DECIDE?DECIDE?



WHAT DID

WHAT DID

THE COURT

THE COURT

DECIDE?DECIDE?

• The trial court found that there was a contract between the farmer and implement dealer

• However, the Appellate Court of Illinois reversed the trial court and found that “the offeror is the master of his offer. An offeror may prescribe as many conditions or terms of the method of acceptance as he may wish, including, but not limited to, the time, place and manner”

Who was the offeror in this case?Who was the offeror in this case?



WHAT DID

WHAT DID

THE COURT

THE COURT

DECIDE?DECIDE?

• The trial court found that there was a contract between the farmer and implement dealer

• However, the Appellate Court of Illinois reversed the trial court and found that “the offeror is the master of his offer. An offeror may prescribe as many conditions or terms of the method of acceptance as he may wish, including, but not limited to, the time, place and manner”

• The court concluded that the purchase order “unambiguously” required the signature of the implement dealer in order to be a proper acceptance of the farmer’s offer. Because the purchase order was not signed, no contract ever existed

• Generally contract are construed against the party who drafted the contract


Contract Consideration

What is consideration and is it necessary?What is consideration and is it necessary?

(1) To constitute consideration, a performance or return promise must be bargained for.

(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.

(3) The performance may consist of

a) An act other than a promise, orb) A forbearance, orc) The creation, modification, or destruction of a legal relation.

(4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.

Restatement (Second) of Contracts §71

“Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other” Black’s Law Dictionary (Sixth Edition)




Was there consideration?Was there consideration?

Yes, the court determined that purchasing or using the smokeball constituted consideration. There was no benefit to the company for the customer relying on the procedures provided in the advertisement.


Harris v. Time, Inc.

Time distributed a mass mailing in an envelope that purported to give the attorney’s son a new calculator watch if he opened the envelope

He opened the envelope

The offer actually required that he place a subscription order to get the new watch

Attorney demanded a watch, Time refused and, of course, attorney brought a class action for $15,000,000

Really what is consideration?Really what is consideration?



Court concluded that “any bargained for act or forbearance will constitute adequate consideration for an unilateral contract”

What was the result of the lawsuit?What was the result of the lawsuit?

Court dismissed the case stating “the present case is ‘de minimus’ in the extreme”

Was there adequate consideration for Was there adequate consideration for opening the envelope?opening the envelope?




Consideration when contracts are Consideration when contracts are amended (Case study)amended (Case study)

• Son-in-law owned a house that he wanted to sell but was unable to find a buyer

• As a result, Son-in-law and Father-in-law enter into a standard form residential lease agreement for the property

• Relevant written lease terms contained in the standard form residential lease agreement that was signed in December:

Monthly lease payment of $1,000.00

Father-in-law receive five year option to purchase

Son-in-law was to be current on all obligations pertaining to the property

Four corners clause stating no verbal agreements or additional agreements relating to the lease of the property other than contained in the lease itself

Clause requiring all amendments to the lease agreement be in writing




• Relevant verbal and other agreements made after the written lease terms were agreed to:

Son-in-law was in default of his mortgage at the time the lease was signed between the parties

Verbal agreement that monthly lease payment was to be reduced if Father-in-law was unable to obtain a tenant for the full monthly mortgage payment amount (commencing January Son-in-law commenced paying Father-in-law $200.00 based on deficiency)

Father-in-law performed repairs and improvements to the property

No formal written amendment was ever signed between the parties evidencing the additional terms




• Termination of the relationship:

In September Son-in-law advised Father-in-law that Father-in-law was responsible for the full rental payment amount pursuant to the standard form residential lease agreement

Father-in-law refused to pay the additional amount

Son-in-law advised Father-in-law to terminate Father-in-law’s lease with the tenant as Son-in-law was to sell the property as a result of Father-in-law’s breach

Father-in-law ceased making payments on the property in September

Property was sold in February

Son-in-law brought action against Father-in-law for unpaid rent. Father-in-law counterclaimed for improvements and repairs.



What’s the result? Why?What’s the result? Why?

Termination of the relationship:







Relevant written lease terms contained in the standard form residential lease agreement that was signed in December:






Relevant verbal and other agreements made after the written lease terms were agreed to:







1.1. What are the final terms of the What are the final terms of the agreement between the parties?agreement between the parties?




















Contract Consideration2.2. Was there consideration for the Was there consideration for the

changes to the lease agreement?changes to the lease agreement?




















Contract Consideration3.3. What about the four corners What about the four corners

clause contained in the clause contained in the agreement?agreement?





















4.4. What about the provision requiring What about the provision requiring amendments to be in writing?amendments to be in writing?





















5. What did the court decide?5. What did the court decide?



















The The importance importance

of well of well written written

agreementsagreements


Why should an Why should an agreement be in writing?agreement be in writing?

If it is not, the contract If it is not, the contract my not be enforced!my not be enforced!


Why should a contract be in writing?Why should a contract be in writing?

1.1. Without a written contract, any dispute as to the terms of the Without a written contract, any dispute as to the terms of the agreement results in “He said – She Said”agreement results in “He said – She Said”

2.2. Without a written contract, you are typically unable get your Without a written contract, you are typically unable get your attorneys fees reimbursed if there is a disputeattorneys fees reimbursed if there is a dispute

4.4. Without a written contract, you may end up in a jurisdiction or Without a written contract, you may end up in a jurisdiction or court for you which never anticipatedcourt for you which never anticipated

5.5. Without a written contract, there is a Without a written contract, there is a greater likelihood you will end up in greater likelihood you will end up in front of . . .front of . . .

3.3. Without a written contract, you may end up being personally Without a written contract, you may end up being personally liableliable


What should be in What should be in a written contract?a written contract?

A clear description of all A clear description of all obligations between the parties. obligations between the parties.

- Include a full and complete description of - Include a full and complete description of all the obligations of each party, including:all the obligations of each party, including:

allall deadlines for delivery of the deadlines for delivery of the products and/or servicesproducts and/or services

specificspecific description of the products description of the products and/or services to be providedand/or services to be provided


What should be in a written contract?What should be in a written contract?

A description of the Payment TermsA description of the Payment Terms. .

HowHow are payments made? are payments made?

WhenWhen are payments due? are payments due?

WhoWho are payments to be made to? are payments to be made to?

a) Cash?

b) Check?

c) Wire?

d) Certified funds?

WhereWhere are payments to be sent? are payments to be sent?

WhatWhat triggers a payment obligation? triggers a payment obligation?

- What happens if a payment is late?


What should be in a written contract?What should be in a written contract?A Description of a Duration of the ContractA Description of a Duration of the Contract. .

Is the contract renewable? If so, how?Is the contract renewable? If so, how?

How long is the contract?How long is the contract?

- Is the contract complete upon delivery of the products - Is the contract complete upon delivery of the products and/or services?and/or services?

- Is the contract a 30 day, 6 month or one year contract?- Is the contract a 30 day, 6 month or one year contract?

- Does the contract have to be renewed in - Does the contract have to be renewed in writing?writing?

- How much notice is required to renew the contact?- How much notice is required to renew the contact?

- Or does the contract automatically renew?- Or does the contract automatically renew?


What should be in a written contract?What should be in a written contract?

Termination of the ContractTermination of the Contract. .

Can the contract be terminate for any reason or just upon good cause?Can the contract be terminate for any reason or just upon good cause?

How much notice is required to terminate a contract?How much notice is required to terminate a contract?

If it is terminated for good cause, can a default be cured after notice of If it is terminated for good cause, can a default be cured after notice of termination was received? termination was received?

How is notice of termination required to be provided?How is notice of termination required to be provided?


Does your contract include a deadlock provision? Does your contract include a deadlock provision?

What should be in a written contract?What should be in a written contract?Insurance ProvisionsInsurance Provisions. .

Is insurance necessary and/or required?Is insurance necessary and/or required?

- Are the risks equal for all parties?

- What risks are associated with the performance of the contract?

- Who is responsible for obtaining and paying for the insurance?


What should be in a written contract?What should be in a written contract?Governing Law ProvisionsGoverning Law Provisions. .

WhatWhat jurisdiction’s law controls? Minnesota or another state’s? jurisdiction’s law controls? Minnesota or another state’s?

- District court, arbitration or mediation?

- What state and county is a dispute required to be brought?

WhereWhere is lawsuit brought? is lawsuit brought?

HowHow is lawsuit brought? is lawsuit brought?


Arbitration or Litigation?Arbitration or Litigation?Advantages to ArbitrationAdvantages to Arbitration::

1. Usually more expedient resolution.

2. Depending upon the amount of dispute, arbitration can be less costly.

3. Depending on the rules of arbitration, any evidence may be allowed.

4. Not a public hearing and there is no public record of the proceedings.

5. The arbitration process can be less adversarial than litigation which mayhelp to maintain business relationships between the parties.

6. Arbitration is more informal than litigation.

HOWEVER,HOWEVER, There is usually no or a very limited ability There is usually no or a very limited ability to appeal a decision of an arbitrator.to appeal a decision of an arbitrator.

Choices of arbitrators are usually limited Choices of arbitrators are usually limited and can be a gamble.and can be a gamble.

No or limited ability to conduct discovery.No or limited ability to conduct discovery.


What should be in a written contract?What should be in a written contract?Warranty and Guaranty ProvisionsWarranty and Guaranty Provisions. .

Are the products and/or services guaranteed to be delivered within a Are the products and/or services guaranteed to be delivered within a specific period of time?specific period of time?

What happens with the products and/or services are not delivered as What happens with the products and/or services are not delivered as provided in the agreement?provided in the agreement?

Strongly-worded warranty provisions will motivate better performance Strongly-worded warranty provisions will motivate better performance and protect the purchasing party if performance is substandard. and protect the purchasing party if performance is substandard.

- Price reduction?

- Full refund?

- Other described damages?


What should be in a written contract?What should be in a written contract?Other ProvisionsOther Provisions. .

Confidentiality Provisions.Confidentiality Provisions.

Noncompete Provisions.Noncompete Provisions.

Intellectual Property Provisions. Intellectual Property Provisions.

Independent Contractor Provisions. Independent Contractor Provisions.

A provision describing how the agreement can be signed (by fax, email A provision describing how the agreement can be signed (by fax, email multiple copies). multiple copies).

Personal guaranty provisions. Personal guaranty provisions.

Attach any other documents referred to in your contract.Attach any other documents referred to in your contract.



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