CONTRACTS
An Overview
A contract is a legally binding exchange of promises or agreement between parties that the law will enforce. Contract law is based on the Latin phrase pacta sunt servanda (literally, promises must be kept.[1] Breach of a contract is recognised by the law and remedies can be provided. Almost everyone makes contracts everyday. Sometimes written contracts are required, e.g., when buying a house.[2] However the vast majority of contracts can be and are made orally, like buying a law text book, or a coffee at a shop. Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations (along with tort, unjust enrichment or restitution).
The above Overview was Retrieved from "http://en.wikipedia.org/wiki/Contracts".
A business contract is one of the most common legal transactions you will be involved in when running a business. No matter what type of business you run, having an understanding of contract law is a key to creating sound business agreements that will be legally enforceable in the event that a dispute arises. The following is a discussion of the law of contracts.
"Contract" - Defined
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A contract is a legally enforceable agreement between two or more parties that creates an obligation to do or not do particular things. The term "party" can mean an individual person, company, or corporation. More on creation of a contract follows below.
Contracts are usually governed and enforced by the laws in the state where the agreement was made. Depending upon the subject matter of the agreement (i.e. sale of goods, property lease), a contract may be governed by one of two types of state law:
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The Common Law. The majority of contracts (i.e. employment agreements, leases, general business agreements) are controlled by the state's common law -- a tradition-based but constantly evolving set of laws that is mostly judge-made, from court decisions over the years.
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The Uniform Commercial Code (UCC). The common law does not control contracts that are primarily for the sale of goods. Contracts for the sale of goods are controlled by the Uniform Commercial Code (UCC), a standardized collection of guidelines that govern the law of commercial transactions. Most states have adopted the UCC in whole or in part, making the UCC's provisions part of the state's codified laws pertaining to the sale of goods.
Creation of a "Contract"
In the eyes of the law, a contract arises when there is an offer, acceptance of that offer, and sufficient "consideration" to make the contract valid:
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An offer allows the person or business to whom the offer is made to reasonably expect that the offering party is willing to be bound by the offer on the terms proposed. The terms of an offer must be definite and certain
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An acceptance is a clear expression of the accepting party's agreement to the terms of the offer.
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Consideration is a legal term given to the bargained-for exchange between the parties to the contract -- something of some value passing from one party to the other. Each party to the contract will gain some benefit from the agreement, and will incur some obligation in exchange for that benefit.
Failure to Perform Under the Contract: "Breach"
When disputes arise over contracts, one party may accuse another of failing to perform under the terms of the agreement. Under the law, a party's failure to fulfill an end of the bargain under a contract is known as "breaching" the contract. When a breach of contract happens (or when a breach is alleged), one or both of the parties may wish to have the contract "enforced" on its terms, or may try to recover for any financial harm caused by the alleged breach.
Enforcing Contracts
If a dispute over a contract arises and informal attempts at resolution fail, the most common method used to resolve contract disputes and enforce contracts is through lawsuits and the court system. If the amount at issue is below a certain dollar figure (usually $3,000 to $7,500 depending on the state), the parties may be able to use "small claims" court to resolve the issue.
Courts and formal lawsuits are not the only option for people and businesses involved in contract disputes. The parties can agree to have a mediator review a contract dispute, or may agree to binding arbitration of a contract dispute.
The above Overview was Retrieved from FindLaw.com
To arrange a free initial consultation with Attorney David LiBassi, call us at (978) 441-9339, or contact us online.
LITIGATION
LITIGATION - GENERAL INFORMATION
The definition for litigation taken from the legal dictionary is any lawsuit or other resort to the courts to determine a legal question or matter; an action brought in court to enforce a particular right. The act of process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
DECIDING WHETHER TO SUE SOMEONE
Do I have a good case..? Is there no other way to achieve my goal (for example, by proposing a compromise settlement or going to mediation)? Assuming a lawsuit is my best or only option, can I collect if I win? If the answer to any of these questions is no, you probably won't want to sue.
To figure out whether you have a good case, it helps to know that lawyers break each type of lawsuit ("cause of action" in attorney-speak) into a short list of legally-required elements. It follows that as long as you know what the elements are for your type of lawsuit, it's usually fairly easy to determine whether you have a good case.
For example, a lawsuit against a contractor for doing substandard construction would be for breach of contract (because the contractor agreed either orally or in writing to do the job properly). The legal elements for this type of lawsuit are as follows:
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Contract Formation. You must show that you have a legally binding contract with the other party. If you have a written agreement, this element is especially easy to prove. Without a written contract, you will have to show that you had an enforceable oral (spoken) contract, or that an enforceable contract can be implied from the circumstances of your situation.
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Performance. You must prove that you did what was required of you under the terms of the contract. Assuming you have made agreed-on payments and otherwise cooperated, you should have no problem with this element.
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Breach. You must show that the party you plan to sue failed to meet his or her contractual obligations. This is usually the heart of the case -- you'll need to prove that the contractor failed to do agreed-on work or did work of unacceptably poor quality.
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Damages. You must show that you suffered an economic loss as a result of the other party's breach of contract. Assuming the work must be redone or finished, this element should also be relatively straightforward to prove.
Is there an alternative?
Even if you decide you have a good case, don't rush down to the courthouse to file a lawsuit. First, think about ways to settle your dispute out of court. You can talk directly with your opponent and try to negotiate a mutually beneficial compromise. Or you can hire a mediator -- a neutral third person who will help you and your opponent evaluate your goals and options in order to find a solution that works for everyone. Also, and especially if your contract provides for it, you may be able to submit your dispute to binding arbitration.
Can I collect if I win?
Your answer to the third question is incredibly important. There is no point in getting a court judgment against a deadbeat. Most reputable businesses and individuals will pay you what they owe. But if your opponent tries to stiff you, you may be in for a struggle. Unfortunately, the court won't collect your money for you or even provide much help; it will be up to you to identify the assets you can grab.
Normally, if an individual is working or owns valuable property -- such as land or investments -- collection won't be difficult; you can instruct your local law enforcement agency (usually the sheriff, marshal or constable) to garnish that person's wages or attach his or her non-exempt property. The same is true of a successful business, especially one which receives cash directly from customers. You can authorize your local sheriff or marshal to collect your judgment right out of the cash register. And in many states, if you are suing a contractor or other business person with a state license, you can apply to have the license suspended until the judgment is paid.
But if you can't identify any collection source -- for example, you're dealing with an unlicensed contractor of highly doubtful solvency -- think twice before suing. A judgment will be of no value to you if the business or individual is insolvent, goes bankrupt or disappears.
The above information derived from: Findlaw.com
To arrange a free initial consultation with Attorney David LiBassi, call us at (978) 441-9339, or contact us online.
LANDLORD/TENANT
Tenant Rights
If your application to rent an apartment is rejected, you have a right to know why. It is illegal for a landlord to refuse your rental application for discriminatory reasons. Federal law prohibits discrimination on the basis of:
• Race
• Color
• Religion
• National origin
• Sex
• Age
• Familial status (including not allowing children, discrimination against pregnant women)
• Physical disability
• Mental disability (including alcoholism and past drug addiction)
States and many cities have similar housing laws, and yours may prohibit other kinds of discrimination, including:
• Marital status
• Sexual orientation
Federal housing law prohibits a variety of discriminatory conduct:
• The landlord may not make any similar implication or statement.
• A landlord cannot say that an apartment is not available when in fact it is available.
• A landlord cannot use a different set of rules for assessing applicants belonging to a protected class.
• A landlord cannot refuse to rent to persons in a protected class.
• A landlord cannot provide different services or facilities to tenants in a protected class or require a larger deposit, or treat late rental payments differently.
• A landlord cannot end a tenancy for a discriminatory reason.
• A landlord cannot harass you.
Note: The federal housing statutes do not apply to all rental property. The main exceptions are owner-occupied buildings with four or fewer rental units (e.g., a duplex), housing offered by religious groups or private organizations for their members, housing designated for senior citizens, and single-family housing being rented without discriminatory advertising or a real estate broker.
A landlord cannot refuse to rent to you because of a "no pets" policy if you have a trained helper animal, such as a seeing-eye dog, or a dog that helps you negotiate with a physical or mental disability. If the landlord does refuse, he or she has violated federal law, including the Americans with Disabilities Act.
Top 5 Tips for Tenants
1. Bring your paperwork. The best way to win over a prospective landlord is to be prepared. Bringing the following information when you meet prospective landlords will give you a competitive edge over other applicants: a completed rental application; written references from landlords, employers, friends and colleagues; and a current copy of your credit report (see "How to Get a Copy of Your Credit Report," at the end of this list).
2. Review the lease. Carefully review all of the conditions of the tenancy before you sign on the dotted line. Your lease or rental agreement may contain a provision that you find unacceptable -- for example, restrictions on guests, pets, design alterations, or running a home business.
3. Get everything in writing. To avoid disputes or misunderstandings with your landlord, get everything in writing. Keep copies of any correspondence and follow up an oral agreement with a letter, setting out your understandings. For example, if you ask your landlord to make repairs, put your request in writing and keep a copy for yourself. If the landlord agrees orally, send a letter confirming this.
4. Protect your privacy rights. Next to disputes over rent or security deposits, one of the most common and emotion-filled misunderstandings arises over the tension between a landlord's right to enter a rental unit and a tenant's right to be left alone. If you understand your privacy rights (for example, the amount of notice your landlord must provide before entering), it will be easier to protect them.
5. Demand repairs. Know your rights to live in a habitable rental unit -- and don't give them up. The vast majority of landlords are required to offer their tenants livable premises, including adequate weatherproofing; heat, water, and electricity; and clean, sanitary, and structurally safe premises. If your rental unit is not kept in good repair, you have a number of options, ranging from withholding a portion of the rent, to paying for repairs and deducting the cost from your rent, to calling the building inspector (who may order the landlord to make repairs), to moving out without liability for your future rent.
Top 6 Tips for Landlords
1. Screen tenants. Don't rent to anyone before checking credit history, references, and background. Haphazard screening and tenant selection too often results in problems -- a tenant who pays the rent late or not at all, trashes your place, or lets undesirable friends move in.
2. Get it in writing. Get all the important terms of the tenancy in writing. Beginning with the rental application and lease or rental agreement, be sure to document important facts of your relationship with your tenants -- including when and how you handle tenant complaints and repair problems, notice you must give to enter a tenant's apartment, and the like.
3. Handle security deposits properly. Establish a fair system of setting, collecting, holding, and returning security deposits. Inspect and document the condition of the rental unit before the tenant moves in, to avoid disputes over security deposits when the tenant moves out.
4. Make repairs. Stay on top of maintenance and repair needs and make repairs when requested. If the property is not kept in good repair, you'll alienate good tenants, and tenants may gain the right to withhold rent, repair the problem and deduct the cost from the rent, sue for injuries caused by defective conditions, and/or move out without needing to give notice.
5. Provide secure premises. Don't let your tenants and property be easy marks for a criminal. Assess your property's security and take reasonable steps to protect it. Often the best measures, such as proper lights and trimmed landscaping, are not that expensive.
6. Provide notice before entering. Learn about your tenants' rights to privacy. Notify your tenants whenever you plan to enter their rental unit, and provide as much notice as possible, at least 24 hours or the minimum amount required by state law.
The above information was retrieved from / Additional information may be found at - FindLaw.com
To arrange a free initial consultation with Attorney David LiBassi, call us at (978) 441-9339, or contact us online.
COLLECTIONS
DEALING WITH DEBT COLLECTORS - FAQ
1. Collection agencies have been calling me - How can I get them to stop contacting me?
It's against federal law for a bill collector who works for a collection agency (as opposed to working in the collections department of the creditor itself) to call you at an unreasonable time. The law presumes that calls before 8 am or after 9 pm are unreasonable. But other hours may be unreasonable, too, such as daytime hours for a person who works nights. The federal Fair Debt Collection Practices Act (FDCPA, 15 U.S.C. § 1692 and following) bars collectors from calling you at work, harassing you, using abusive language, making false or misleading statements, adding unauthorized charges, and many other practices. Under the FDCPA, you can demand that the collection agency stop contacting you, except to tell you that collection efforts have ended or that the creditor or collection agency will sue you. You must put your request in writing.
2. The collections department of a local merchant is harassing me. Can I do anything about it?
Unfortunately, the federal Fair Debt Collection Practices Act (FDCPA) does not apply to the collection department of a creditor (it only applies to outside collection agencies). However, many states have laws on fair debt collection that do cover these collection departments. Check with your state consumer protection office to see if your state law applies to in-house collectors and to find out what types of collection practices it prohibits.
3. How should I deal with a debt collector who is not abusive?
Unless you're judgment-proof or truly plan to file for bankruptcy, most credit counselors believe that you shouldn't ignore your debt or try to hide from a debt collector. Generally, the longer you put off resolving the issue, the worse the situation and consequences will become. Whether you negotiate directly with the collector or obtain a lawyer's assistance, most counselors feel it is almost always best to talk with the collector and work out a mutually satisfactory arrangement.
4. A bill collector insisted that I wire the money I owe through Western Union. Am I required to do so?
No, and it could add more money to your debt if you did do it. Many collectors, especially when a debt is more than 90 days past due, will suggest several "urgency payment" options, including:
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Sending money by express or overnight mail. This will add at least $10 to your bill; a first-class stamp is fine.
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Wiring money through Western Union's Quick Collect or American Express's Moneygram. This is another $10 waste.
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Putting your payment on a credit card not charged to its maximum. You'll never get out of debt if you do this.
5. Can a collection agency add interest to my debt?
Yes. The FDCPA allows a collector to add interest if your original agreement calls for the addition of interest during collection proceedings or the addition of such interest is allowed under state law. Every state authorizes the collection of such interest.
6. A collection agency sued me and won. What collection measures can it now take against me?
Before obtaining a court judgment, a bill collector generally has only one way of getting paid: demanding payment. This is done with calls and letters. However, once the collector (or creditor) sues you and gets a judgment, the law allows it to take further steps to collect the debt. If you have a job, the collector may try to garnish up to 25% of your net wages. The collector may also try to seize bank or other deposit accounts you have. If you own real property, the collector may record a lien against it, which will have to be paid when you sell or refinance your property. Even if you're not currently working or have no property, the judgment won't disappear. Depending on the state, court judgments can last up to 20 years and, in many states, can be renewed for years beyond that.
The above information taken from: Findlaw.com
To arrange a free initial consultation with Attorney David LiBassi, call us at (978) 441-9339, or contact us online.