How to Terminate a Contract
A contract that is void is one that basically never existed. Agreements to commit crimes cannot be enforced because enforcement would mean validating the void contract, which is illegal. Though an agreement can be considered valid upon formation, it loses its enforceability because of the nature of the performance. The term void (or null and void) in contractual issues means having no legal effect. If two men agree to rob a bank and one makes off with all the cash, the other cannot sue his partner to demand his portion because the agreement was voided when the robbery took place.
A legal principle which establishes a right to avoid a contractual obligation is called estoppel. This rule prevents a party from having to perform if the performance contradicts an already established condition. Estoppel may only allow the party to escape from part of the contract that is in contradiction. Let's say a landlord allows a tenant to pay only part of the rent for a month to make up for repairs that the tenant made to the property. He later brings an action to demand payment for the additional amount from the tenant for late payment. The tenant would assert estoppel because the landlord's original statement indicated approval.
There are several variations of estoppels. Some are
· Equitable estoppel. A principle that stops a party from establishing a new expectation that contradicts a previous expectation, expressed through words, actions, or silence when continuing without the estoppel will cause harm.
· Promissory estoppel. Prohibits a promisor from denying a promise they previously made when the promisee relied upon that statement.
· Estoppel by silence. Prevents party A from making an assertion that puts another party at a disadvantage when party A had an opportunity and the obligation to speak but did not do so. Bill can't refuse to pay Tom when Tom mistakenly replaces Bill's roof shingles while Bill is home.
· Estoppel by deed. When a contract performance (such as issuing a property deed) is promised to a party, that party cannot return to deny the contract's validity.
· Collateral estoppel. Establishes that if a truth in an agreement has been previously established, it cannot be denied in any subsequent actions.
Rescission is a method of denying further performance under a contract's terms. Also called setting aside the contract, rescission essentially means to revoke the contract. The contract may be rescinded by one party, or all parties may agree to terminate the agreement. It may be more difficult to rescind the contract if substantial progress has been made towards performance. Rescinding the contract unwinds the agreement, in other words, it brings all parties back to a state that existed prior to the contract being executed; this provides the parties with an equitable remedy, similar to an estoppel. Some states, such as California, recognize rescission as a statutory remedy, governed by law. Reasons for rescission include:
1. Fraudulent activity.
3. Lack of capacity to contract.
4. Impossibility to perform.
Many states allow a rescission period when entering certain contracts, such as a real estate agreement. Typically, this period is enforced on large purchases, and periods can range from one to several days. A valid contract should state the right to rescind and the time period allowed. If rescission rights are not disclosed at the time of signing, an offended party may have the right to rescind even after the period expires.
A party may file a claim of breach of contract to terminate its obligations if another party fails to perform or deviates from specified performance, performs a prohibited act, or interferes with the claimant's ability to complete the agreement. Parties that suffer loss or harm can recover damages under a breach complaint. Depending on the severity of the breach, the aggrieved party can terminate the entire contract or the parties may negotiate an amendment to the contract. A breach can be material (a significant violation of the terms which may result in terminating the contract and assess payment of damages) or immaterial (a minor deviation that may or may not terminate the contract and likely won't result in damages assessed).
Breach can occur in several forms. The parties' relationship, contract performance and timing, outside influences, and the promises committed may all affect whether a breach has taken place. According to the American Law Institute, among the most common breach complaints are
· Breach of duty. A failure to perform a duty to the other party(ies) or the public at large; failure to exercise such caution that a reasonable person would exercise.
· Breach of promise. A failure to follow through with a promise that induced another party to act.
· Breach of the covenant of warranty. Governed by the UCC, a failure of a seller to guarantee a good title (unencumbered, free of defects, and so forth) when the buyer can reasonably expect such guarantee.
· Breach of trust. A failure to perform a duty as a trustee, done willfully, fraudulently, or negligently, that violates the equity expected by a vulnerable party.
· Breach of warranty. A failure of a seller to adhere to a warranty, whether implied or expressed, as to the quality, content, or condition of a good sold.
· Constructive breach. An act perpetrated by a party that precludes them from performing according to the contract.
· Anticipatory breach. An act or statement made by a party which repudiates (denies) a promise to perform that occurs before the party is due to perform; such repudiation involves "a positive statement indicating the promisor cannot or will not substantially perform his contractual duties."
2. Specific Performance. The breaching party must continue to perform their duty towards completing the contract. Usually ordered in cases where the contract's subject matter is rare or unique, and awarding damages would not suffice.
3. Cancelation and Restitution. If a benefit was gained by the breaching party, the non-breaching party can sue to cancel the contract and be awarded compensation that would put them back in a position prior to the contract. This voids the contract and all obligations are dismissed.
Once all the parties have performed according to each promise, and all the terms have been satisfied, then the contract is considered completed. Generally no party has further obligations, though a contract might stipulate that completion allows both parties to enter into a subsequent contract. The subsequent contract is held as its own distinct agreement and all terms and conditions must once again be agreed to by all parties involved.
There are few contracts used more often than a real estate agreement. Because of the expense and relative complexity, real property transactions must be executed in writing (or by parol). Though sales can be negotiated between two private parties, most state laws require a licensed agent to be present when the final sale is transacted. A lawyer or title company typically handles the completion of a purchase or sale. Parties are allowed to terminate a contract by rescission within a short period after agreeing to the terms; the time period varies from state to state.
There can be several documents which are included in real property purchases. Not only are there contracts assigning legal ownership, but documents for financing, testing and repair requirements, insurance, taxes, and more. New buildings require an additional, separate contract. A package for a property with an existing home typically includes a purchase and sale agreement, deed of trust, mortgage, home inspection, disclosures, escrow instructions, and a closing settlement statement.
Purchase price. Includes the total price and may indicate the appraisal amount, if known.
Title. A search conducted must reveal that the seller has the right free and clear to sell the property.
Restrictions, easements, and covenants. The contract will be subject to existing requirements concerning zoning, access, and property lines among others.
Default. Provisions for protecting each party in the event a party does not complete his obligations are specified.
· Obtaining financing to purchase the property.
· Receiving an appraisal price near the purchase price.
· A safe water source test result.
If a contingency is not met to a party's satisfaction, they may cancel the agreement by rescinding their offer. However, the parties can choose to renegotiate the clause that fails satisfaction, thereby making a counter offer that must be accepted by the seller to become valid. The balance of the contract typically remains in force.
- Amount Financed. The contract must explain the amount to be financed minus any prepaid fees, down payment, and other charges.
- Finance Charge. The lender must disclose the cost of borrowing the funds, in the form of an Annual Percentage Rate (APR).
- Financing Costs. The contract must list any costs associated with repayment, such as late fees or accumulated charges.
- Balance Computation. The lender must explain how payments are credited to the outstanding amount, and how the remaining balance will be calculated upon payment.
- Right of Rescission. Mortgage loans provide the right to rescind the contract within a short period after signing.
- Dispute Settlement. The contract must clearly define how disputes may be resolved, and what forum must be chosen.
- Total Payments. For fixed loans, the total amount to be repaid must be listed.
- Acceleration Clause. Conditions that allow a lender to demand repayment of the entire loan in the event the borrower violates a term or defaults on the contract.
- Security Interest. The collateral to be demanded if the borrower defaults must be listed in the contract.
Contracts made with the governmental bodies in the United States are highly regulated. Government contracts are governed by statutes and regulations as opposed to most other contracts that are governed by common law or the UCC. These statutory requirements dictate how an agency can solicit bids from contractors, how a contract can be negotiated, what types of businesses are eligible to contract, and whether the process allows for open, competitive bidding or restricts the number of bidders. Agencies purchasing goods and services must follow the Federal Acquisitions Regulations (FAR). Businesses entering into a government contract must follow procedural requirements that, in many cases, provide "full and open competition." The amount to be awarded to a bidder dictates what process is used and who is eligible to bid.
Statutes impose a number of socio-economic conditions that a business must address before it is eligible to compete for a contract. Affirmative action, drug-free workplace, and minimum wage requirements are just a few conditions that must be met. Though agreements appear to be contracts of adhesion, there is some negotiating room if the bidder fulfills the conditions to be eligible to participate in the procurement process.
- Termination for the Convenience of Government. Allows the agency to terminate the contract at any time, if it is in government's best interest. Wars, changing technologies, and diminished natural resources are a few reasons where the contract could be voided. The agency must notify the other party(ies) in writing according to regulations. This unilateral term is offset by the affected parties' right to recover certain expenses.
- Changes. Considered by many to be the most powerful clause in contracts, this allows the agency to make unilateral changes to provisions within the contract, provided they are made within the scope of the agreement. In exchange for this privilege, the U.S. government allows for an equitable adjustment if the change warrants higher contractor expenses or additional performance time.
Contracts for employment can be structured in one of three ways 1) a contract of service, whereby one party agrees to become employed by another, 2) a contract for services, which stipulates an agreement to provide work as an independent contractor or subcontractor, and 3) a collective bargaining agreement that brings an employer and a group of employees (such as a union) together. While most employment is on an at-will basis, which constitutes an implied contract, sometimes agreements are created to clearly define compensation, responsibilities, rights, and duration of employment.
- Pay Rate. Specifies compensation criteria, including salary or wages, vacation and bonus pay, overtime, holiday and sick pay details, or pay increase criteria.
- Work Conditions. Includes place of employment, health and safety compliance, work hours, and reporting responsibilities.
- Benefits. Includes health and other insurances offered, retirement programs, and other special considerations available.
- Discipline. Describes which situations are grounds for termination, suspension, or dismissal.
- Complaints and Grievances. Includes the forum, process, and resolution options for employee disputes with management.
- Confidentiality. Requires that subject matter must be held as confidential as a requirement for the job.
- Non-competition. Explains that an employee may not seek employment from a direct competitor performing similar functions.
- Termination. Stipulates the requirements for terminating the contract.
- Exclusive Employment. Requires that the employee may be employed by only the contracting company.
- Governance. Explains that lawsuits are governed by the laws of a particular state, no matter where the lawsuit is filed.
Labor relationships are best defined by a written contract. Verbal agreements, and offer letters, are generally difficult to enforce; conditions may change and terms can be adjusted without notice. Employees are best protected from unfair termination or discipline if employment terms are clearly defined within a written contract.
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- Understanding the Basics of a Contract
- The Process of Enforcing a Contract
- The Process of Writing and Negotiating a Contract
- Contractual Situations and Conditions that are Improper and Unfair
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- A Manager's Overview of a Company's Accounting Processes
- The Diverse Workload of an Administrative Assistant
- Handling Issues When Working From Home as a Virtual Assistant
- Negotiating Mistakes
- The Fundamentals of Employment Law
- The Importance of Practicing Business Ethics
- An Introduction to Listening Skills
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