Law Advices and Legal Tips

Archive for December, 2010

A legal contract is a set of promises that the law will view as duties of the promising parties. Those parties must perform their promises; should one party fail to do so, the law will enforce a remedy for the other party. Parties should seek the advice of an attorney before drafting a contract.

Mutual Assent
1. A legal contract requires mutual assent by the parties. Mutual assent includes both offer and acceptance. One party (the “offeror”) must demonstrate to the other that the offeror is willing to enter into contract. The other party (the “offeree”) will then have the power to create a contract by accepting the offeror’s terms.

When the offeree does accept, there is mutual assent. In deciding whether there was a valid offer and acceptance, courts will look at outward, objective behavior, rather than what was in the parties’ minds at the time.

Consideration
2. Even if there was mutual assent between parties, every legal contract still requires valuable consideration. Consideration means that each party has changed its legal position in return for the other party’s promise. However, this change in position must be of legal value.

For instance, let’s say John is legally bound to pay child support, and then he makes a contract with Mary in which his end of the bargain is a promise to pay child support. The law will not recognize any legal value in John’s promise, because he was already obligated by law to perform it. The contract would fail due to lack of consideration on John’s part. Read the rest of this entry »

Contracts are legally enforceable promises that something will or will not happen in the future. Understanding what creates a contract and what makes one unenforceable can make decision-making much easier and empower you in daily negotiating as well as protect your rights if a promise is broken.

Understanding Types and Enforceability
Contracts are created expressly with words or implied by conduct or words and conduct. The first is called an express contract and the second an implied contract. A third kind, an implied-by-law contract, is not a true contract but courts will enforce them to prevent an injustice to one party.

Should you need to create an enforceable or valid contract, it must be part of a bargain for valid consideration, make the promisee rely on the promise to his detriment or be enforceable by statute.

Construction
A contract contains three things: offer, acceptance and consideration. The offer is a demonstration of intent to be bound by the promise. Offers are not binding until acceptance and generally revocable any time before acceptance. Some common expressions that are not offers include advertisements, invitations to submit a bid, opinions, statements of intent, price estimates and auctions without reserve.

Acceptance of an offer occurs in two ways. First by return promise, which is called a bilateral contract or simply by performance, which is called a unilateral contract. Modern contract interpretation finds acceptance is invited by “any means reasonable” under the circumstances and unless the offer dictates otherwise.

Consideration involves a bargained for exchange and each party must rely on the promise to a point of legal detriment. That detriment occurs where a party did not have a pre-existing duty nor was obligated to perform. Courts will not rule on the adequacy of consideration honoring the longstanding notion of freedom of contract.

Warnings and Remedies
Be aware of agreements that must satisfy the Statute of Frauds. This means the understanding has to be in writing, signed by the party against whom enforcement is sought, show a contract has been made, state the essential terms of the contract and specify a quantity if the agreement is for the sale of goods.

The kinds of contracts that require the statute’s fulfillment include but are not limited to: a contract that takes longer than a year to perform, sales of goods in value of $500 or more, sales of land, leases of goods of value over $1,000 and leases of property for longer than a year.

You may have a right to defend against a contract’s enforcement. Common defenses against void or voidable contracts demonstrate the agreement’s lack of a meeting of the minds. Incapacity (contracts made with minors or someone with mental impairment), coercion, undue influence (one party takes advantage of the other), mistake and misrepresentation are all defenses against a contract’s enforcement.

Inevitably promises are broken. If you are on the losing end of this breach, you have remedies available. Parties are free to explicitly state remedies in the contract.

Otherwise, a court may declare you entitled to some of the following remedies: expectation damages (the benefit you would have gotten should the breach not occurred), restitution (compensation for the benefit that would have been conferred), incidental damages (typically occur in sale of good contracts available to buyers and sellers), interest and punitive damages (only if the contractual breach also resorted in a tort).

Occasionally a court will order specific performance by one party if the agreement is unique and performance is the only way a party can be made whole.

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Grantors, especially the elderly, designate an individual with power of attorney to ensure their wishes are met and decisions are made in their best interest in case of their inability to do so.

Parties
1. A principal is the person who gives the power of attorney to the attorney in fact. The attorney in fact must be a competent adult over the age of 18. When the principal grants power of attorney, the attorney in fact has the legal authority to make decisions on behalf of the principal.

Types
2. There are three types of power of attorney. A durable power of attorney grants a specified person the immediate legal power to make decisions on behalf of the grantor even if the grantor becomes incompetent or disabled.

Non-durable power of attorney grants immediate legal power to make decisions on behalf of the grantor, but is no longer valid if the grantor becomes disabled or incompetent. A health care power of attorney allows a designated person to make health care decisions on behalf of the grantor.

Considerations
3. A power of attorney can be revoked by the principal any time. Consult an attorney when creating the power of attorney to ensure all necessary elements are included, including length of validity.

The Illinois Notary Public Act sets out the requirements to become a notary public, as well as the duties and responsibilities of the job. Becoming a notary public in Illinois is a rather straightforward process once the eligibility requirements are met.

Eligibility
Illinois has certain requirements that must be met before a person can become a notary. The person must be: 1) an Illinois resident for at least 30 days prior to the application; 2) a United States citizen or a legally admitted permanent resident alien; 3) 18 years old; 4) able to read and write English; and 5) free of any felony convictions.

A resident of a state bordering Illinois who is otherwise eligible may be appointed as a notary in Illinois if the person has a place of work or business in Illinois and the bordering state allows Illinois residents to become notaries in that state.

Application and Appointment
The person applying to become a notary public must file an application form with the Illinois Secretary of State’s Office. A filing fee is required ($10.00 in 2010) along with an Illinois Notary Public Bond for $5,000 issued by a surety company qualified to issue such bonds in Illinois.

Once the completed application is accepted, the applicant must record her commission with the county clerk and pay an additional fee ($5.00 in person/$10.00 by mail in 2010).

Term
Illinois residents are appointed for a term of four years. Nonresidents are appointed for a period of one year. At or prior to the end of the term, the notary must apply for reappointment. Read the rest of this entry »

Notaries public are regulated by and responsible to the secretary of state’s office in the states in which they reside. For this reason, verifying notary public commissions and authenticity is often quite easy, since all authorized notaries are registered with the state.

Notaries—public servants who oversee and verify the signing of important documents and administration of oaths—act as officers of the state to deter fraud and make sure legal documents are signed appropriately.

1. Review the notary’s certification. This should show the date of certification, the notary’s legal name and the state in which it was issued. In some states, an identification number may be associated with the notary’s certification.

2. Check the notary’s certification at your state secretary of state’s website. Most states have searchable databases of authorized notaries. Verify the information you find there against the information you collect from the notary. Review any discrepancies with the notary and, if necessary, with the secretary of state’s office. You also can visit the secretary of state’s office in person.

3. Search an online database of notaries public in the United States; many of these are available. As with the secretary of state’s website, you should verify the information you find in your search against the information collected from the notary public. Read the rest of this entry »