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.
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 if you are i
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
I f you have read The Da Vinci Code (DC) and The Holy Blood and the Holy Grail (“HBHG”) as I have, you have probably decided that they are very different books. You will not be surprised to hear that a UK High Court judge supports our view. So how is it that what would have cost a legal advice fee of about a couple of hundred dollars on the Sunshine Coast in Australia has cost over $US4.5M in London? Although it sometimes depends on the idea, the smart money was on DC, as every copyright lawyer knows that copyright does not protect “the idea but the expression of the idea”; although it depends on the idea. For instance, a story where boy meets girl, boy loses girl and boy gets girl back is not protected by copyright. It is just an idea, and many stories have this theme. What if the girl was a cowboy? This is a novel twist (or so John Wayne would have had us believe), but still just an idea. What if you went further still and copied some words from a cowboy film such as “giddyup” or “