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Some Contract Terms are More Important That Others

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  The terms of a contract can be divided into two types:  1.    Non-essential terms otherwise called warranties. The court will order damages to compensate you rather than allow you to walk away. Therefore, small breaches by the other party are not much help in getting out of a contract.    2.    Essential terms otherwise called conditions or material terms. For instance, a conditional contract where you need to be satisfied as to finance or due diligence within 14 days. However, essential terms (even where the contract is marked “time of the essence”) are divided into yes you got it - two types:    a.    Where substantial performance is sometimes acceptable e.g. The seller does not have a copy of a stamped lease at the completion of the sale of a property. It is common sense that a buyer should not be permitted to terminate for a minor issue.     b.    Where there must be strict compliance e.g. Handing over the money on time.  In short, all terms are not created equal.  ©  Paul Brenna

Deals - Assume That You Have a Duty of Good Faith

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We all try to do the right thing and act honorably even if it includes some sacrifice on our part.  For instance, if you make a bargain you stick to it.  However, in business it normally depends on exactly how much sacrifice.  Usually, if it is going to cost under say two thousand dollars most people, not all, will reluctantly grin and bear it.  Over that amount clients want their lawyer to find a loophole in a contract. Contracts are usually signed and then put in a drawer.  In the event of a dispute the contract is retrieved and poured over, with a view to either enforcing it against an unwilling party or getting out of it, if you happen to be that unwilling party. There are eight things you should know to avoid problems with the deals that you enter into or at least give you an advantage in your approach. Here is the first one -  Assume that you have a duty of good faith There is some argument about whether or not parties entering into a contract owe a duty of good faith to the othe

Matters Of Principle And Your Money

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  There are two types of matters of principle.    The first type starts with you saying to your lawyer, “It is not about the money…” This is often about the money or comes to focus on the money as the legal action progresses.    The second type starts with you saying to your lawyer something like, “I know this is not a sensible course of action but…”  This usually involves personal insult, family honour, accusations that you are a lousy driver or not good in bed or variations on conflicts which result in hurt feelings and a desire for revenge.     Although there are lawyers who are prepared to litigate on your behalf at no charge, the “payment up front” business model remains the preferred method for lawyers in matters of principle.    Some clients are driven to legal action by their spouses, families or what other people think.  You will find your lawyer focusing on the total cost of the proceedings rather than discussing payment plans or other forms of finance to ease the financial b

Employee Legal Awareness Day

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Policies and Procedures are extremely important but often unbearably long and incredibly dull. There is a certain satisfaction in drafting a considered policy document and keeping it up to date. But if employees do not read it until a problem arises then they may not be aware of the avoidable legal pitfalls that can cause significant loss to their employer before it is too late. In about 2007, I founded Employee Legal Awareness Day. Since then, I have made legal presentations, written articles such as  Ten Legal Things That your Employees Need To Know  and devised the 3 Minute  "Are you legally savvy" Quiz  to promote the advantages of keeping employees legally savvy. One US company proposed three tips to make the day a hit, including a Trivia Night. However, I accept that it could be a long night for employees unless the prizes were exceptionally expensive. In the last decade, policy documents appear to have substantially increased in length while remaining unappealing to an

Ten legal things that your employees need to know

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  If you are the sort of Employer who likes to guide your staff from time to time on how to improve themselves and you have exhausted your diatribes on safety, working as a team and not putting cigarette butts out the window then law is the subject for you.  Here are 10 legal things that your employees need to know: Do not write down your insults in emails. It is too easy to prove if the company and you are sued for defamation. Illegal downloads (music, pornography etc.) do not disappear when you press the delete button. Don’t take the client list or reveal our secrets when you leave or we will sue your pants off. Emails can be binding legal contracts. Don’t unwittingly commit the company. Court cases waste time and money and take the focus off business do not get us involved in disputes. If we get into legal proceedings because of you even if you are in the right, we are likely to settle the proceedings before we get anywhere near court having incurred a great deal of expense and time

Your money lives on when you are gone

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  Anyone who has watched Midsummer Murders on TV will know how unexpectedly death can occur. As distressing as your death might be, handled properly it is a fantastic tax avoidance event. With a well set-up trust, your business affairs can continue and no one need miss you at all (so accountants say). However, leave a mess and your relatives must sort it out, as well as coping with their abject grief at losing you. There are three steps to putting your legal affairs in order prior to your immediate demise. Step 1      A will Many of you might prefer to leave this detail until you are on your deathbed. Apart from causing your lawyer to run around like a scalded cat it can be a prelude to the family dividing between those who were at the deathbed and who, coincidentally, benefited from the will, and those who couldn’t make it and lost out. Step 2      An enduring power of attorney This enables one, two or more people chosen by you (called attorneys) to deal with your affairs

Why read the Art of War by Sun Tzu?

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  Most people engage in litigation only once in their lives, unless they have a very understanding spouse. At the outset, there is a lot to be gained by reading  The  Art of War  by Sun Tzu , which is not only a manual of military strategy, but a sage guide to engaging in conflicts both business and personal.  I first came across the Art of War when I lived in Hong Kong. It was written about 2,500 years ago by Sun Tzu, general of the Kingdom of Wu. Much has been written about the Art of War by management gurus and others so that there are at least 1,500 titles in paperback on Amazon alone.  The Art of War has an immediate strategic advantage when compared with any law book in that it is only thirteen chapters (6,000 words) long in translation, available for immediate download and free.  [1] It was written at a time when an ill-advised attack on a neighbouring state could lead to disaster and death. This may not be the case in a dispute between neighbours today, but if you have ever bee