commercial, property, estates and litigation lawyers
Deals - Assume That You Have a Duty of Good Faith
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 other. It flies in the face of caveat emptor (let the buyer beware). It may be better to say you have a duty not to act with bad faith.
But for your purposes it is best to assume that the parties to a contract must not do anything to hamper the other achieving the benefit intended under the contract i.e. if you make a bargain you must stick to it.
If a judge thinks that you deliberately scuppered the deal you will probably lose. Therefore, the more desperate you are to get out of the deal the more enthusiastic your lawyer must appear to carry it out. Meanwhile, the opposing lawyer will try to look through your lawyer’s enthusiasm for signs of treachery.
Fortunately, for the desperate party, contracts rarely turn out the way that the parties planned. With a bit of luck your lawyer may be able to allow you a dignified exit from the contract claiming it was the other party’s fault. Your lawyer only needs to raise enough doubt to make the other party think twice before suing you.
This explains why your own lawyer is so negative and paranoid. If you had to put up with this sort of thing year after year, decade after decade, you would be miserable and cantankerous too.
In the past when someone owed you money one of the common and popular enforcement options was to cast him (or her) into a debtor’s prison where they would rot until they paid up with interest and costs. This is what happened to Mr Pickwick in The Pickwick Papers. He was accused of breach of promise in that he offered to marry his housekeeper, she had accepted and then he reneged. It was a misunderstanding. But he was sued and the housekeeper won. He was ordered to pay damages and the housekeeper’s legal costs. He refused to pay. The housekeeper’s lawyers applied to the court to enforce the judgment and Mr Pickwick was committed to the Fleet debtors’ prison where he was to remain until he paid the damages and costs. But he continued to refuse to do so and gave every appearance of being prepared to stay there until he died. The housekeeper’s solicitors had planned to receive their costs from Mr Pickwick and when this looked unlikely they claimed against the penniless housekeeper,
S omeone has got something on their website which belongs to you. It could be a photograph, an article or all or part of your own website. You ask them to remove the offending item and they either refuse to do so or ignore you. In a perfect world you would launch a cyber attack, or send an 11 man Israeli assassination team dressed as tennis players to take them out. Less satisfying but just as effective, would be to have the host of the offending website switch it off until the offending items were removed by the website owner. Here is a three step plan to achieve this: • Tell your IT person the problem and ask him to find out who hosts the offending site. If you try to do this yourself you will be awash with terms; some vaguely familiar such as domain name and internet service provider (ISP) and others that are way out, such as WHOIS, carriage service provider, registrar and registrant. • Send the host a Take Down Notice. This is a request which identifies the infringing content a
When your rich uncle leaves you out of his will the obvious explanation is that he was nuts. However, if the will appears rational and correctly executed the Court will presume that the deceased was mentally competent unless there are suspicious circumstances. The nature of the suspicious circumstances can depend on the inventiveness of the deceased’s family, friends, and neighbours but here are seven examples: 1. Enfeebled physical and mental state e.g. medical evidence of significant cognitive impairment and continual deterioration. 2. Evidence of confusion e.g. concerns by friends that the deceased would sign anything put in front of him. 3. Lack of care in preparation by the lawyer e.g. No written record or over 5 (make that 15) typos. 4. A carer left a substantial benefit. 5. Terms of the will departed significantly from previous wills e.g. it excludes persons who you would expect to inherit. 6. Questions concerning the witnesses e.g. a doctor witnes